Keeping the Data-Breach Headlines In Perspective

The Neiman Marcus Case

The facts alleged in Neiman are important. Neiman does not dispute that some 350,000 cards (some Neiman store cards, and some non-Neiman, bank-issued credit and debit cards) were compromised. Of vital importance is the allegation (which again, Neiman does not dispute) that 9,200 customers have already incurred fraudulent charges on their credit cards. At least two of the four named class representatives are in that category of customers. Further, the plaintiffs allege several kinds of injury they claim to have actually suffered: 1) lost time and money resolving the fraudulent charges; 2) lost time and money protecting themselves against future identity theft; 3) financial loss from overpaying for Neiman Marcus merchandise they would not have purchased had they known of the store's careless approach to cybersecurity; and 4) lost control over the value of their personal information. The plaintiffs also allege that they have standing based on two imminent injuries: 1) an increased risk of future fraudulent charges; and 2) greater susceptibility to identity theft. The Seventh Circuit addressed the two alleged imminent injuries first and then the four asserted actual injuries. For the purpose of dissecting whether the Neiman opinion really offers any sort of earth-shattering departure from past cases, we think it makes sense to look at the alleged injuries in reverse.

First, with regard to “the 9,200,” the Seventh Circuit noted that the plaintiffs conceded “that they were later reimbursed [for the fraudulent charges] and that the evidence does not yet indicate that their identities (as opposed to the data) have been stolen.” But, the court noted that, as the plaintiffs have alleged, “there are identifiable costs associated with the process of sorting things out” ' the aggravation and loss of value of the time needed to set things straight (get replacement cards, etc.), to reset payment associations after credit card numbers are changed, and to pursue relief for unauthorized charges. The court noted that Neiman had challenged the standing even of these class members. But the court gave that argument short shrift, stating simply, “we see no merit in that point.” At least at the pleading stage, the court held that this alleged actual injury was sufficient to confer Article III standing. In our view, there is nothing particularly novel or surprising about this ruling.

Second, with regard to the alleged actual injury of “lost time and money protecting against future identity theft,” the Seventh Circuit affirmed one of the holdings in Clapper that “mitigation expenses do not qualify as actual injuries where the harm is not imminent” and plaintiffs “cannot manufacture standing by incurring costs in anticipation of non-imminent harm.” But, the Neiman court cautioned against overstating Clapper in this regard and distinguished the facts of Clapper vis-'-vis the case before it.

Clapper was addressing speculative harm based on something that may not even have happened to some or all of the plaintiffs. In this case, Neiman Marcus does not contest the fact that the initial breach took place. An affected customer, having been notified by Neiman Marcus that her card is at risk, might think it necessary to subscribe to a service that offers monthly credit monitoring. It is telling in this connection that Neiman Marcus offered one year of credit monitoring and identity-theft protection to all customers for whom it had contact information and who had shopped at their stores between January 2013 and January 2014. It is unlikely that it did so because the risk is so ephemeral that it can safely be disregarded. These credit-monitoring services come at a price that is more than de minimis . For instance, Experian offers credit monitoring for $4.95 a month for the first month, and then $19.95 per month thereafter. That easily qualifies as a concrete injury.

Even more significant to the issue of whether Neiman is a watershed case, the Neiman court pointed out that its analysis on this point is consistent with the First Circuit's 2011 ruling in Anderson v. Hannaford Bros. Co., 659 F. 3d 151, “where the First Circuit held before Clapper that the plaintiffs sufficiently alleged mitigation expenses ' namely, the fees for replacement cards and monitoring expenses ' because under Maine law, a plaintiff may 'recover for costs and harms incurred during a reasonable effort to mitigate, regardless of whether the harm is nonphysical.'”

Regarding the last two allegations of actual harm ' overpayment for Neiman goods because the retailer failed to invest in adequate security and loss of value of the plaintiffs' private information ' the Neiman court declined to definitively rule on these issues, stating that it need not decide whether those allegations were sufficient to support standing on their own, but viewed these claims as “dubious” support for standing.

Future Harm

So, with regard to “the 9,200,” the court found actual injury that supported standing. But the allegations with respect to the remaining proposed class members were merely that unreimbursed fraudulent charges or identity theft may happen in the future, and that these injuries are likely enough that immediate preventive measures are necessary. That might sound pretty speculative, perhaps calling for the Clapper treatment. So why did the Seventh Circuit not limit the class to just “the 9,200″?

First, the Neiman court correctly noted that Clapper does not completely foreclose allegations of future harm to establish Article III standing, if that harm is “certainly impending.” Clapper held that “allegations of possible future injury are not sufficient.” But, Clapper also notes that previous Supreme Court cases “do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.”

Neiman Marcus contended that the allegations related to the class members beyond “the 9,200″ ' that unreimbursed fraudulent charges and identity theft may happen in the future, and that these injuries are likely enough that immediate preventive measures are necessary ' were too speculative to serve as injury-in-fact. It argued that all of the plaintiffs would be reimbursed for fraudulent charges because that is the common practice of major credit card companies. But the plaintiffs contend that, just like “the 9,200,” the remaining class members must spend time and money replacing cards, fighting off fraudulent charges and monitoring their credit score.

Importantly, the Neiman court noted: “This reveals a material factual dispute on such matters as the class members' experiences and both the content of, and the universality of, bank reimbursement policies.” The court also noted that “zero liability” for fraudulent charges is not a requirement of federal law, leaving open the possibility that the plaintiffs could ultimately prove that “zero liability” was not necessarily guaranteed. The Neiman court also agreed with the plaintiffs' argument that the risk that plaintiffs' personal data will be misused by the hackers who breached Neiman's systems is immediate and very real, specifically relying on the allegations in plaintiffs' complaint that: 1) the hackers deliberately targeted Neiman Marcus in order to obtain their credit card information; and 2) the information was actually stolen. Based on these allegations, the Neiman court found an “objectively reasonable likelihood” that the class members outside of “the 9,200″ would suffer the same types of injuries that the 9,200 have already allegedly suffered. Thus, the court held that “[a]t this stage in the litigation, it is plausible to infer that the plaintiffs have shown a substantial risk of harm from the Neiman Marcus data breach.”

In our view, none of this is particularly unreasonable, novel or inconsistent with Clapper, or the First Circuit's earlier holding in Hannaford Bros. What is somewhat unique about the Neiman breach is that the plaintiff class includes 9,200 members who have allegedly already suffered actual harm. It is the allegations with respect to “the 9,200″ ' the “identifiable costs associated with the process of sorting things out” ' and the lack of certainty that fraudulent credit card charges will necessarily be reimbursed for the remaining class members that appear to have convinced the Neiman court that the remaining members of the class face a substantial risk of concrete injury.

Standing and Class Certification In Data Breach Cases

Neiman is not even close to the first data breach case in which a proposed plaintiff class has gotten over the standing hurdle. As noted, that also occurred in Hannaford Bros . It also occurred in, among other cases, Lambert v. Hartman, 517 F.3d 433 (6th Cir., 2008), Resnick v. AvMed, 693 F.3d 1317 (11th Cir., 2012), Pisciotta v. Old National Bancorp, 499 F. 3d 629 (7th Cir., 2007) and Krottner v. Starbucks Corp., 628 F. 3d 1139 (9th Cir., 2010).

To be sure, all of these cases pre-dated the Clapper ruling. But if Neiman is significant for any reason, it is to show that anyone who thought that Clapper set forth a completely new framework for Article III standing was simply mistaken. The District Court for the Southern District of California, in In Re Sony Gaming Networks and Customer Data Security Litigation, 966 F. Supp. 2d 942 (S.D. Calif., Jan. 21, 2014), already persuasively set forth in its opinion just last year that this would be an over-reading of Clapper.

Rather, Neiman is just the latest in a long string of cases which show that, while Article III standing is a significant hurdle for plaintiffs to overcome in any data breach class action, it is not an insurmountable one. The standing analysis depends on the facts of the particular case (as well as, perhaps, some artful pleading).

However, there has still never been a court that has certified a class in a data breach case. And in Neiman, all the Seventh Circuit did was remand the case for further proceedings. That's the same procedural history that occurred in Hannaford Bros. But, even if class action plaintiffs make it getting over the standing hurdle, they still need to overcome the even more significant hurdle of class certification. Some in 2011 also saw the appellate court's decision in Hannaford Bros. as a harbinger in data breach litigation. But the same district court that originally granted the defendants' motion to dismiss based on standing (and was reversed) ultimately dismissed the case at the class certification stage, because the plaintiffs failed to establish predominance. Under Fed. R. of Civ. P. Rule 23(b)(3), the party proposing class certification must show that the “questions of law or fact common to class members predominate over any questions affecting only individual members.” Every data breach case that has thus far survived a motion to dismiss based on standing has either been settled or has been dismissed for a failure to establish predominance. There can be little doubt that, when it's time for the Neiman plaintiffs to meet their burden at the class certification stage, the Seventh Circuit's revelation of “a material factual dispute on such matters as the class members' experiences and both the content of, and the universality of, bank reimbursement policies” will once again be front and center. The individualized issues of whether class members have been reimbursed for all authorized charges or actually spent any time monitoring their credit reports may very well be viewed by the district court as predominating over the questions of fact common to the class. Many a proposed class action has been doomed at the class certification stage by the possibility that separate “mini-trials” on factual circumstances that would necessarily be distinct for each member of the class would threaten to overwhelm the benefits of class certification. Ultimately, the Neiman case may be no more significant than Hannaford Bros.

John Hutchins is an attorney in Atlanta office of LeClairRyan. He is the leader of the firm's Privacy & Data Security practice team. He can be reached at [email protected].

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From the Sony Pictures settlement, to the Ashley Madison debacle, data breaches are making big headlines of late. And when it comes to one case in particular ' the data breach at luxury retailer Neiman Marcus (Remijas v. Neiman Marcus, No. 14-3122 (7th Cir. July 20, 2015)) ' some would-be experts are spinning a misleading, black-and-white storyline. As you may remember, the 2013 data breach exposed the credit card data of 350,000 Neiman Marcus customers. This led to fraudulent charges occurring in 9,200 of those customer accounts. In short order, a class-action lawsuit followed in which customers sought $5 million in damages. While a district court dismissed the case ' in part because customers had been reimbursed for the false charges in question ' the U.S. appeals court reversed that dismissal in late July.

This ruling, according to the pundits, represented a tipping point toward victims of cyber fraud, and one that, as they saw it, may lead to a wave of successful class-action lawsuits filed across the country. To be sure, data breaches are a significant problem and certainly represent a liability risk. However, let's take a closer look at the precise meaning and context of the Neiman Marcus ruling. Do the pundits truly appreciate the procedural context in which the court reviewed the case? Are they accounting for the most important part of any class-action lawsuit ' class certification?

In the Neiman case, after all, the primary issue under consideration was standing. The district court had granted the defendant's motion to dismiss, based on the well-worn argument that the plaintiffs' alleged injuries were not sufficiently “concrete” to establish standing, citing the U.S. Supreme Court's 2013 case, Clapper v. Amnesty International, 638 F. 3d 118 (Feb. 26, 2013). Clapper held that, in order to establish Article III standing, plaintiffs must allege they are at imminent risk of suffering a concrete injury. The Seventh Circuit disagreed with the district court, but not with the Supreme Court's ruling in Clapper, and remanded the case for further proceedings.

The Neiman Marcus Case

The facts alleged in Neiman are important. Neiman does not dispute that some 350,000 cards (some Neiman store cards, and some non-Neiman, bank-issued credit and debit cards) were compromised. Of vital importance is the allegation (which again, Neiman does not dispute) that 9,200 customers have already incurred fraudulent charges on their credit cards. At least two of the four named class representatives are in that category of customers. Further, the plaintiffs allege several kinds of injury they claim to have actually suffered: 1) lost time and money resolving the fraudulent charges; 2) lost time and money protecting themselves against future identity theft; 3) financial loss from overpaying for Neiman Marcus merchandise they would not have purchased had they known of the store's careless approach to cybersecurity; and 4) lost control over the value of their personal information. The plaintiffs also allege that they have standing based on two imminent injuries: 1) an increased risk of future fraudulent charges; and 2) greater susceptibility to identity theft. The Seventh Circuit addressed the two alleged imminent injuries first and then the four asserted actual injuries. For the purpose of dissecting whether the Neiman opinion really offers any sort of earth-shattering departure from past cases, we think it makes sense to look at the alleged injuries in reverse.

First, with regard to “the 9,200,” the Seventh Circuit noted that the plaintiffs conceded “that they were later reimbursed [for the fraudulent charges] and that the evidence does not yet indicate that their identities (as opposed to the data) have been stolen.” But, the court noted that, as the plaintiffs have alleged, “there are identifiable costs associated with the process of sorting things out” ' the aggravation and loss of value of the time needed to set things straight (get replacement cards, etc.), to reset payment associations after credit card numbers are changed, and to pursue relief for unauthorized charges. The court noted that Neiman had challenged the standing even of these class members. But the court gave that argument short shrift, stating simply, “we see no merit in that point.” At least at the pleading stage, the court held that this alleged actual injury was sufficient to confer Article III standing. In our view, there is nothing particularly novel or surprising about this ruling.

Second, with regard to the alleged actual injury of “lost time and money protecting against future identity theft,” the Seventh Circuit affirmed one of the holdings in Clapper that “mitigation expenses do not qualify as actual injuries where the harm is not imminent” and plaintiffs “cannot manufacture standing by incurring costs in anticipation of non-imminent harm.” But, the Neiman court cautioned against overstating Clapper in this regard and distinguished the facts of Clapper vis-'-vis the case before it.

Clapper was addressing speculative harm based on something that may not even have happened to some or all of the plaintiffs. In this case, Neiman Marcus does not contest the fact that the initial breach took place. An affected customer, having been notified by Neiman Marcus that her card is at risk, might think it necessary to subscribe to a service that offers monthly credit monitoring. It is telling in this connection that Neiman Marcus offered one year of credit monitoring and identity-theft protection to all customers for whom it had contact information and who had shopped at their stores between January 2013 and January 2014. It is unlikely that it did so because the risk is so ephemeral that it can safely be disregarded. These credit-monitoring services come at a price that is more than de minimis . For instance, Experian offers credit monitoring for $4.95 a month for the first month, and then $19.95 per month thereafter. That easily qualifies as a concrete injury.

Even more significant to the issue of whether Neiman is a watershed case, the Neiman court pointed out that its analysis on this point is consistent with the First Circuit's 2011 ruling in Anderson v. Hannaford Bros. Co., 659 F. 3d 151, “where the First Circuit held before Clapper that the plaintiffs sufficiently alleged mitigation expenses ' namely, the fees for replacement cards and monitoring expenses ' because under Maine law, a plaintiff may 'recover for costs and harms incurred during a reasonable effort to mitigate, regardless of whether the harm is nonphysical.'”

Regarding the last two allegations of actual harm ' overpayment for Neiman goods because the retailer failed to invest in adequate security and loss of value of the plaintiffs' private information ' the Neiman court declined to definitively rule on these issues, stating that it need not decide whether those allegations were sufficient to support standing on their own, but viewed these claims as “dubious” support for standing.

Future Harm

So, with regard to “the 9,200,” the court found actual injury that supported standing. But the allegations with respect to the remaining proposed class members were merely that unreimbursed fraudulent charges or identity theft may happen in the future, and that these injuries are likely enough that immediate preventive measures are necessary. That might sound pretty speculative, perhaps calling for the Clapper treatment. So why did the Seventh Circuit not limit the class to just “the 9,200″?

First, the Neiman court correctly noted that Clapper does not completely foreclose allegations of future harm to establish Article III standing, if that harm is “certainly impending.” Clapper held that “allegations of possible future injury are not sufficient.” But, Clapper also notes that previous Supreme Court cases “do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.”

Neiman Marcus contended that the allegations related to the class members beyond “the 9,200″ ' that unreimbursed fraudulent charges and identity theft may happen in the future, and that these injuries are likely enough that immediate preventive measures are necessary ' were too speculative to serve as injury-in-fact. It argued that all of the plaintiffs would be reimbursed for fraudulent charges because that is the common practice of major credit card companies. But the plaintiffs contend that, just like “the 9,200,” the remaining class members must spend time and money replacing cards, fighting off fraudulent charges and monitoring their credit score.

Importantly, the Neiman court noted: “This reveals a material factual dispute on such matters as the class members' experiences and both the content of, and the universality of, bank reimbursement policies.” The court also noted that “zero liability” for fraudulent charges is not a requirement of federal law, leaving open the possibility that the plaintiffs could ultimately prove that “zero liability” was not necessarily guaranteed. The Neiman court also agreed with the plaintiffs' argument that the risk that plaintiffs' personal data will be misused by the hackers who breached Neiman's systems is immediate and very real, specifically relying on the allegations in plaintiffs' complaint that: 1) the hackers deliberately targeted Neiman Marcus in order to obtain their credit card information; and 2) the information was actually stolen. Based on these allegations, the Neiman court found an “objectively reasonable likelihood” that the class members outside of “the 9,200″ would suffer the same types of injuries that the 9,200 have already allegedly suffered. Thus, the court held that “[a]t this stage in the litigation, it is plausible to infer that the plaintiffs have shown a substantial risk of harm from the Neiman Marcus data breach.”

In our view, none of this is particularly unreasonable, novel or inconsistent with Clapper, or the First Circuit's earlier holding in Hannaford Bros. What is somewhat unique about the Neiman breach is that the plaintiff class includes 9,200 members who have allegedly already suffered actual harm. It is the allegations with respect to “the 9,200″ ' the “identifiable costs associated with the process of sorting things out” ' and the lack of certainty that fraudulent credit card charges will necessarily be reimbursed for the remaining class members that appear to have convinced the Neiman court that the remaining members of the class face a substantial risk of concrete injury.

Standing and Class Certification In Data Breach Cases

Neiman is not even close to the first data breach case in which a proposed plaintiff class has gotten over the standing hurdle. As noted, that also occurred in Hannaford Bros . It also occurred in, among other cases, Lambert v. Hartman, 517 F.3d 433 (6th Cir., 2008), Resnick v. AvMed, 693 F.3d 1317 (11th Cir., 2012), Pisciotta v. Old National Bancorp, 499 F. 3d 629 (7th Cir., 2007) and Krottner v. Starbucks Corp., 628 F. 3d 1139 (9th Cir., 2010).

To be sure, all of these cases pre-dated the Clapper ruling. But if Neiman is significant for any reason, it is to show that anyone who thought that Clapper set forth a completely new framework for Article III standing was simply mistaken. The District Court for the Southern District of California, in In Re Sony Gaming Networks and Customer Data Security Litigation, 966 F. Supp. 2d 942 (S.D. Calif., Jan. 21, 2014), already persuasively set forth in its opinion just last year that this would be an over-reading of Clapper.

Rather, Neiman is just the latest in a long string of cases which show that, while Article III standing is a significant hurdle for plaintiffs to overcome in any data breach class action, it is not an insurmountable one. The standing analysis depends on the facts of the particular case (as well as, perhaps, some artful pleading).

However, there has still never been a court that has certified a class in a data breach case. And in Neiman, all the Seventh Circuit did was remand the case for further proceedings. That's the same procedural history that occurred in Hannaford Bros. But, even if class action plaintiffs make it getting over the standing hurdle, they still need to overcome the even more significant hurdle of class certification. Some in 2011 also saw the appellate court's decision in Hannaford Bros. as a harbinger in data breach litigation. But the same district court that originally granted the defendants' motion to dismiss based on standing (and was reversed) ultimately dismissed the case at the class certification stage, because the plaintiffs failed to establish predominance. Under Fed. R. of Civ. P. Rule 23(b)(3), the party proposing class certification must show that the “questions of law or fact common to class members predominate over any questions affecting only individual members.” Every data breach case that has thus far survived a motion to dismiss based on standing has either been settled or has been dismissed for a failure to establish predominance. There can be little doubt that, when it's time for the Neiman plaintiffs to meet their burden at the class certification stage, the Seventh Circuit's revelation of “a material factual dispute on such matters as the class members' experiences and both the content of, and the universality of, bank reimbursement policies” will once again be front and center. The individualized issues of whether class members have been reimbursed for all authorized charges or actually spent any time monitoring their credit reports may very well be viewed by the district court as predominating over the questions of fact common to the class. Many a proposed class action has been doomed at the class certification stage by the possibility that separate “mini-trials” on factual circumstances that would necessarily be distinct for each member of the class would threaten to overwhelm the benefits of class certification. Ultimately, the Neiman case may be no more significant than Hannaford Bros.

John Hutchins is an attorney in Atlanta office of LeClairRyan. He is the leader of the firm's Privacy & Data Security practice team. He can be reached at [email protected].

'