Data loss and security breach incidents have become common. However, lawsuits related to these incidents are not so common or successful. The problems plaintiffs have encountered include not only figuring out the proper cause of action to seek recovery (many states lack laws permitting private lawsuits for damages related to data loss) but also how to establish provable damages. For example, if a large retail store suffers a security breach of 2 hours leaving your personal identifying information exposed to thieves or hackers, have you really suffered any damages if the information is never used or compromised? What about so called "mitigation" damages or out of pocket expenses for future protection such as credit card insurance, fraud protection, or getting a new credit card and incurring an annual fee?
The First Circuit Court of Appeals in Anderson v. Hannaford Bros. Co recently shed some light on the potential for recovery of mitigation damages in data breach litigation. In the Hannaford case, hackers stole up to 4.2 million credit and debit numbers, expiration dates, and security codes, but they did not steal customer names. Hannaford also had received notice that there were 1,800 cases of alleged misuse or fraud from the theft. In response, many financial institutions cancelled consumers' cards and fees were incurred to reinstate new cards. Additionally, several consumers purchased identity theft protection for fear of future misuse. 26 separate lawsuits followed that were consolidated into one action in Maine.
At the trial court level, nearly all of the plaintiffs' claims (20 out of 21) were dismissed based on problems with the alleged theories of recovery or the damages claims. The court found that the damages were not recognized under Maine law for claims for lost time and effort or too speculative to prove for claims involving lost points on cards, fees for replacement cards, and insurance.
On appeal, the First Circuit upheld implied contract and negligence as proper theories of recovery. In regards to damages, the First Circuit reversed the trial court and found that "a plaintiff may recover for costs and harms incurred during a reasonable effort to mitigate." To recover, however, the plaintiffs needed to establish an actual injury such as money lost as opposed to only time and effort.
In finding that the plaintiffs stated a proper claim for damages in a data breach case, the First Circuit noted that the Hannaford breach was not inadvertent loss or simple breach with no misuse. Rather, the court emphasized that there was actual misuse of the information that may have been global in reach running up thousands of charges. This type of breach presented a "real risk of misuse." Thus, it was foreseeable that a customer might replace a card or purchase insurance to avoid or mitigate future misuse. The court specifically noted the many other cases finding no action for damages, but distinguished those cases based on the real threat and misuse that occurred with the Hannaford breach.
Although the Hannaford case appears to show a possible breach in the dam regarding damage claims in data breach cases, a closer look reveals that it may be more limited in scope. The Hannaford case involved actual misuse of the information with sophisticated thieves intent on doing harm for financial gain. It is unlikely that Hannaford will provide support for other mitigation cases unless those claims involve actual or legitimate threats of misuse.