[BreachExchange] Putative Data Breach Class Action Dismissed for the Third Time

[Audrey McNeil]

https://www.huntonprivacyblog.com/2017/06/22/putative-data-
breach-class-action-dismissed-third-time/

On June 13, 2017, Judge Andrea R. Wood of the Northern District of Illinois
dismissed with prejudice a putative consumer class action filed against
Barnes & Noble. The case was first filed after Barnes & Noble’s September
2012 announcement that “skimmers” had tampered with PIN pad terminals in 63
of its stores and exposed payment card information. The court had
previously dismissed the plaintiffs’ original complaint without prejudice
for failure to establish Article III standing. After the Seventh Circuit’s
decision in Remijas v. Neiman Marcus Group, the plaintiffs filed an almost
identical amended complaint that alleged the same causes of action and
virtually identical facts. Although the court found that the first amended
complaint sufficiently alleged Article III standing, the plaintiffs
nevertheless failed to plead a viable claim. The court therefore dismissed
the first amended complaint under Rule 12(b)(6).

The second amended complaint reduced both the number of plaintiffs and
claims, advancing causes of action for breach of implied contract and
various claims under Illinois’ and California’s consumer protection
statutes. Plaintiffs added factual allegations of injuries stemming from
emotional distress, loss of PII value, expended time spent with bank and
police employees, used cell phone minutes, inability to use payment cards
during the replacement period and the cost of credit monitoring services.
The court found, however, that none of the alleged damages, including the
cost of the credit monitoring services, were cognizable injuries under Rule
12(b)(6). Finding that further amendment would be futile, given the prior
and ample amendment opportunities, the court dismissed the case with
prejudice.
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