Because the data breach class action plaintiffs were unable to show they sustained any actual harm, the New York U.S. District Court granted Michaels Motion to Dismiss their case, without prejudice, on December 28, 2015.
In its Memorandum Opinion, the Court distinguished the Target and Neiman Marcus cases because, unlike those cases, there were no fraudulent charges on the plaintiff’s credit card: “she asserts only that her credit card was ‘physically presented for payment in Ecuador.’ There are no allegations that Whalen was required to pay the charges in Ecuador.” (Mem. Op. p. 8). In the Neiman Marcus case, “one critical distinction in that case is that 9,200 of those customers experienced fraudulent charges following the breach. By contract, Whalen’s Complaint only indicates that she was affected, and even she did not suffer any out-of-pocket losses.” (Mem. Op. p. 15).
The court’s rationale for its dismissal was, “[s]imply put, Whalen has not asserted any injuries that are ‘certainly impending’ or based on a ‘substantial risk that the harm will occur.’”