Barnes & Noble Urges Judge to Dismiss Data Breach Class Action

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Last week, Barnes & Noble Inc. told a federal judge that a recent decision by the 7th U.S. Circuit Court of Appeals that allows plaintiffs to take legal action against P.F. Chang’s over an alleged data breach should not be sufficient to allow a class action lawsuit filed over the bookseller’s 2012 data breach to proceed.

A federal judge is currently considering whether or not to dismiss the Barnes & Noble class action lawsuits that were filed after the bookseller’s 2012 announcement that it had been targeted by a massive PIN code skimming scheme that compromised thousands of consumers’ credit and debit card information.

Barnes & Noble was subsequently hit with several data breach class action lawsuits that were consolidated in Illinois federal court as In re: Barnes and Noble Pin Pad Litigation.

On April 21, Barnes & Noble filed its response to a notice of supplemental authority filed earlier in April to notify the judge of the appellate court’s decision in the P.F. Chang’s litigation. The plaintiffs argued that the P.F. Chang’s ruling supports their standing in the B&N data breach class action lawsuit.

The bookseller differentiated its case from the P.F. Chang’s decision, in which the appellate court concluded that the plaintiffs’ allegations of future harm were sufficient to grant standing, due to the possibility of future harm stemming from the data breach because the hackers were likely to use the ill-gotten information to make fraudulent charges or commit identity theft.

“But in this case, in 2016, it is simply not plausible to make that same inference of a substantial risk of future harm,” Barnes & Noble argues. “It has now been nearly three and a half years since Barnes & Noble announced in the fall of 2012 that it was the victim of the alleged security incident, and still no Plaintiff has come forward with any allegations that they have been impacted by the incident at all.”

Barnes & Noble claims that the diners in the P.F. Chang’s class action lawsuit had alleged they’d incurred fraudulent charges and spent time and money monitoring their finances to guard against identity theft and fraud. Only one of the plaintiffs in the Barnes & Noble litigation reportedly spent money on an identity protection monitoring service, but the bookseller claims that the plaintiff subscribed to the service prior to the B&N data breach.

“Thus, the Seventh Circuit’s inference that the plaintiffs in P.F. Chang’s faced a substantial risk of harm does not apply here,” Barnes & Noble argues. “This Court properly dismissed the Complaint once, and should do so again.”

The Barnes & Noble class action lawsuit was first dismissed in September 2013.

The plaintiffs are represented by Joseph J. Siprut of Siprut PC and Ben Barnow and Sharon Harris of Barnow & Associates PC.

The Barnes & Noble Data Breach Class Action Lawsuit is In re: Barnes and Noble Pin Pad Litigation, Case No. 1:12-cv-08617, in the U.S. District Court for the Northern District of Illinois.

UPDATE: On May 20, 2016, Barnes & Noble argued that a data breach class action lawsuit pending against the company should be dismissed in the wake of the recent Spokeo Inc. v. Robins decision that requires class action plaintiffs to show they’ve been harmed.

UPDATE 2: On Nov. 30, 2016, Barnes & Noble pleaded with an Illinois federal court to once again dismiss a class action relating to a 2012 data breach, saying the plaintiffs still failed to allege facts plausibly showing that they were damaged as a result of the incident despite amending their claims numerous times.