Privacy & Cybersecurity Law Blog

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.