Maine SC sides with grocery store in security breach suit

Jessica M. Karmasek Sep. 29, 2010, 11:34am

AUGUSTA, Maine (Legal Newsline) - The Maine Supreme Court, in a unanimous decision, has ruled that a group of consumers do not need to be compensated for time and effort they put into cleaning up the damage caused by data thieves.

In answering a pair of certified questions for a federal court, the state's high court says time and effort alone do not constitute a cognizable injury for which damages can be recovered under the state's negligence or implied contract laws.

The case involves the final litigation surrounding a 2007 data breach against Hannaford Bros. Co., a 165-store grocery chain. The breach exposed more than 4 million payment cards to a cyberthief gang run by Albert Gonzalez.

Between December 2007 and March 2008, the data thieves stole debit and credit card numbers, expiration dates, security codes, PINs and other information belonging to customers who had used the chain's electronic payment processing services.

By late February 2008, Visa, Inc., had notified Hannaford of the breach. The chain discovered the means of the thieves' access on March 8, 2008, contained it, notified all financial institutions within two days, and publicly disclosed the breach on March 17.

Due to the theft, a number of customers had experienced fraudulent and unauthorized charges on their accounts. However, most were able to resolve the charges with their banks.

In fact, in October 2008, when a group of 21 plaintiffs filed their complaint in federal court, only one had outstanding fraudulent charges on her account. The other plaintiffs had already been reimbursed by their financial institutions.

According to their complaint, the plaintiffs alleged breach of implied contract, breach of implied warranty, breach of a confidential relationship, failure to advise customers of the data theft, strict liability, negligence, and unfair trade practices. The plaintiffs sought damages to compensate them for their time and efforts, which they say were necessary to remedy the disruption of their financial affairs.

The federal judge overseeing the civil lawsuits against the grocery chain had initially ruled that consumers suing Hannaford had to prove actual financial damages that were material before he could allow that portion of the case to continue.

Attorneys for those consumers argued that the losses in time and effort were significant and that those efforts, coupled with what they contended was Hannaford's negligence in protecting that payment card data, made a civil ruling against the chain appropriate.

But the federal judge turned the consumers down, ruling that the losses were "too remote, not reasonably foreseeable, and/or speculative" and that there was "no way to value and recompense time and effort." He added that such non-financial losses were merely "the ordinary frustrations and inconveniences that everyone confronts in daily life with or without fraud or negligence."

Following the judge's ruling, attorneys for the consumers asked him to reconsider. The judge set aside his decision and asked the Maine Supreme Judicial Court to rule on the matter.

The Court, in its opinion authored by Justice Joseph M. Jabar, unanimously sided with the grocery chain.

It noted that the plaintiffs had suffered no physical harm, economic loss or identity theft.

Jabar reaffirmed the federal judge's ruling, "The tort of negligence does not compensate individuals for the typical annoyances or inconveniences that are a part of everyday life."

The Court said its case law does not recognize the expenditure of time and effort alone as a harm.

"Unless the plaintiffs' loss of time reflects a corresponding loss of earnings or earning opportunities, it is not a cognizable injury under Maine law of negligence," it wrote.

The Court made the same conclusion in regards to the alleged breach of implied contract. The federal judge had already shot down the plaintiffs' other five charges listed in their complaint.

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