Home Depot Wants Data Breach Class Action Tossed

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Home Depot Inc. wants a Georgia federal judge to dismiss a data breach class action lawsuit against the home improvement retailer, arguing that the lawsuit is merely a “carbon-copy” of others and that the plaintiffs have not suffered any injuries.

“Plaintiffs John Solak and Dennis O’Rourke rushed to file this class action two days after it became public that Defendant Home Depot had been the victim of a data breach by criminals even though plaintiffs suffered no injury from the breach,” the company explains.

The Home Depot data breach class action lawsuit was filed in early September by Solak and O’Rourke alleging that Home Depot’s computer system had been under attack by hackers from about late April or early May until the lawsuit was filed.

The breach allegedly occurred through “the point-of-sale network that processes credit card and bank debit cards,” compromising “personal and/or financial information for hundreds of thousands, if not millions of individuals.”

Home Depot offers three reasons why the data breach class action lawsuit should be dismissed without leave to amend.

First, the company says that plaintiffs lack standing to file the Home Depot data breach class action lawsuit because it has caused “no actual or imminent injury” to the plaintiffs.

In addition, plaintiffs lack standing to bring a data breach class action lawsuit in states where they’ve never “purchased Home Deport products nor where plaintiffs reside.”

Lastly, Home Depot contends that because Solak and O’Rourke haven’t suffered any actual injury “they cannot plausibly plead any claim for recovery.”

O’Rourke and Solak’s allegations against Home Depot include violations of state data breach statutes for not “informing the public” that the breach had occurred in a timely manner, negligence, breach of implied contract, bailment, and unjust enrichment.

According to Home Depot, the Georgia data breach laws don’t apply to Home Depot because “nothing in Georgia’s data-breach statute provides for a private right of action” because it “says nothing about its enforcement.” In addition, Home Depot explains that the Georgia data breach statutes are supposed to apply to data collectors and information brokers, which does not apply to Home Depot.

Home Depot says that the “negligence claims fail for want of actual injury.”

“They cannot plausibly plead either a meeting of the minds or an injury to support their implied contract claims,” the company continues.

“Their bailment claims founder because there can be no bailment over personal information that plaintiffs never plausibly expected Home Depot to return,” Home Depot explains.

“And, when plaintiffs gave Home Depot their payment cards for purchases, Home Depot received no ‘unjust benefit’ from the transaction that could possibly support an unjust enrichment claim,” it adds.

As of Oct. 10, there are were at least 21 Home Depot class action lawsuits that have been filed in federal courts. If the Georgia federal judge does not dismiss Solak and O’Rourke’s class action lawsuit, these data breach class actions may be consolidated into a multidistrict litigation (MDL) or mass tort, the Atlanta Business Chronicle reported.

Solak and O’Rourke sent a notification to the Panel on Multi-District Litigation in September when a third data breach class action lawsuit was filed against Home Depot. They are asking that all Home Depot data breach class action lawsuits be combined in the U.S. District Court for the Northern District of Georgia, Atlanta Division, where their class action lawsuit was filed and in the city where Home Depot is headquartered.

The plaintiffs are represented by Harris Penn Lowry LLP, Federman & Sherwood and Abington Cole.

Home Depot is represented by James A. Pratt, Phyllis B. Sumner and Sidney S. Haskins of King & Spalding LLP.

The Home Depot Data Breach Class Action Lawsuit is John Solak et al. v. The Home Depot Inc., Case No. 1:14-cv-02856, in the U.S. District Court for the Northern District of Georgia.

UPDATE: On Mar. 7, 2016, Home Depot has agreed to pay $13 million to settle the class action lawsuits that followed a massive data breach in 2014.

UPDATE 2: The Home Depot Data Breach Class Action Settlement is now open! Click here to file a claim or visit www.HomeDepotBreachSettlement.com for more details.