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Judge Tosses Class Action Over Michaels Data Breach Citing Lack of Damages

chicksdaddy writes: Data breaches have become so common that they’ve taken on a kind of formality. One of the phrases that often accompany such incidents goes something like this: “[Company X] has no evidence that any of the stolen information has been used inappropriately.” Or you might read that “there is no evidence of fraud linked to the stolen data.” Such assurances are generally interpreted as wishful thinking. But when courts are asked to weigh in on the question of damages resulting from cyber incidents in civil suits, the question of what harm resulted from the incident is very different – and very real. To put it simply: if nobody can prove harm resulting from a cyber incident, a company can’t be held liable for those damages. That fact was underscored again late last month, when a federal judge in U.S. District Court for the Eastern District of New York dismissed a class action suit against arts and crafts giant Michaels Stores that was filed in the wake of that company’s widely-reported data breach. As part of her ruling, the judge, Joanna Seybert, cited a legal precedent set by the recent Supreme Court ruling in “Clapper v. Amnesty International,” concluding that the plaintiffs hadn’t proven that any harm resulted from the Michaels breach. “Simply put, Whalen has not asserted any injuries that are ‘certainly impending’ or based on a ‘substantial risk that the harm will occur,'” Seybert wrote in her decision, referring to Mary Jane Whalen, the Michaels customer in whose name the class action suit was filed. “Thus, Whalen’s claims are DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction,” Seybert concluded. This isn’t to say that Whalen or other Michaels stores customers were not the target of fraudsters. In fact, Whalen’s attorneys presented evidence that her stolen credit card (or a clone of it) was presented for payment fraudulently in Ecuador: at a local gym and at a venue that sold concert tickets. But regulations in the U.S. exempt consumers from paying the cost of credit card fraud, and Whalen wasn’t asked to pay any unreimbursed charges as a result of the fraudulent use, the court noted. Whalen’s other attempts to establish “costs” associated with the breach were also disregarded. They included the cost of credit monitoring services and the cost (in time and effort) to obtain replacement cards, the intrinsic value of her credit card information and the risk of future fraud tied to the theft of her credit card data.


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