Alere Argues for Dismissal of Stolen Laptop Class Action Lawsuit

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On Monday, Alere Home Monitoring Inc. filed a motion to dismiss a class action lawsuit accusing the company of actions amounting to identity theft when a company laptop containing medical-monitoring patient information was stolen.

Lead plaintiff John Falkenberg alleged that Alere violated California’s Confidential Medical Information Act (CMIA) when a password-protected laptop containing confidential patient data was stolen from an employee’s car in a restaurant parking lot along with other items. He is seeking damages amounting to $116 million for Class Members potentially affected by the theft. He argues that Alere should have encrypted patient information in addition to password protection.

Alere announced the theft in 2012 indicating that a password-protected laptop containing names, addresses, dates of birth, Social Security numbers and diagnosis codes of medical monitoring patients was stolen, and quickly notified affected patients and offered them a year of credit monitoring. Falkenberg filed the Alere class action lawsuit in January of 2013 and was joined by another plaintiff thereafter.

Alere argued in its motion to dismiss the data theft class action lawsuit that the plaintiffs’ claims should be tossed because they do not establish that they or any Class Members have been harmed by the theft. The fact that a password-protected company laptop was stolen, contends Alere, doesn’t prove that their confidential information was seen by anyone outside the company.

Of the $116 million in damages the plaintiffs seek, Alere says, “That cannot be the result intended by the CMIA, especially given that plaintiffs cannot plausibly allege that their confidential information has been viewed by any unauthorized third parties in the nearly two years since the incident.”

While Alere admits that one of the plaintiffs claims that he was the victim of identity theft after the laptop theft, the two events aren’t necessarily connected, the company contends. “[T]emporal proximity alone does not plausibly allege causation, given that plaintiffs offer no factual context to suggest a causal link between the laptop theft and the identity theft,” Alere contends.

Alere also disputes the plaintiffs’ Fair Credit Reporting Act claims. The company doesn’t fall under the definition of a “consumer reporting agency” under the FCRA and the personal and medical information it compiles shouldn’t be considered a “consumer report,” Alere argues in its motion to dismiss the data theft class action lawsuit.

Alere contends that the plaintiffs’ alleged injuries are still speculative, and that the complaint should be dismissed without leave to amend. In October, Alere won a motion to dismiss the data theft class action lawsuit, but a California federal judge gave the plaintiffs leave to amend their complaint, which they did.

The plaintiffs are represented by Carey Gavin Been and Eric A. Grover of Keller Grover LLP, Douglas G. Blankinship of Finkelstein Blankinship Frei-Pearson & Garber LLP and by Jeremiah Frei-Pearson of Meiselman Packman Nealon Scialabba & Baker PC.

The Alere Class Action Lawsuit is Falkenberg, et al. v. Alere Home Monitoring Inc., Case No. 3:13-cv-00341, in the U.S. District Court for the Northern District of California.