Barnes & Noble Says Amended Data Breach Class Action Still Fails

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

Barnes & Noble is pleading with an Illinois federal court to once again dismiss a class action relating to a 2012 data breach, saying the plaintiffs still fail to allege facts plausibly showing that they were damaged as a result of the incident despite amending their claims numerous times.

U.S. District Judge Andrea R. Wood gave the consumers another go at their claims relating to a PIN pad card skimming incident that occurred when credit and debit card PIN pads were compromised at 63 Barnes & Noble stores.

B&N argued Wednesday that the recently amended complaint is still deficient as it fails to plead any economic or out-of-pocket damages that ensued as a result of the Barnes & Noble data breach.

“Plaintiffs have now each filed one individual complaint and three consolidated complaints. Despite having had ample time and opportunity to allege a legally cognizable injury, plaintiffs have failed to do so,” the bookstore said. “Instead, they replead the same allegations, with modifications that are inconsequential. Given plaintiffs’ failure to cure the numerous deficiencies this court previously identified, further amendment would be futile.”

The case has been twice dismissed and is now on its fourth round of complaint pleading. In 2013, the case was first dismissed without prejudice by U.S. District Judge John W. Darrah. Judge Darrah ruled that the consumers failed to show that they were victims of identity theft as a result of the Barnes & Noble data breach and lacked standing to bring the class action lawsuit.

Last spring, B&N presented a round of arguments to once again dismiss the complaint, citing the Supreme Court’s Spokeo ruling that requires class action plaintiffs to show they have been harmed and also challenged the Seventh Circuit’s ruling in litigation involving P.F. Chang’s arguing that plaintiffs’ claims in this case were different than the Barnes & Noble plaintiffs.

But last month, Judge Wood allowed the customers to proceed with an amended complaint, referencing the Seventh Circuit’s 2015 ruling in Remijas v. Neiman Marcus Group. That decision held that plaintiffs had constitutional standing to pursue their claims against the retailer based on an alleged increased risk of future fraudulent charges and greater susceptibility to identity theft.

Still, Judge Wood held the plaintiffs failed to sufficiently plead their claims for breach of contract, invasion of privacy, and violations of various California and Illinois consumer fraud laws and dismissed the lawsuit, but gave the plaintiffs leave to file a second amended complaint but only if it “cures the deficiencies identified in the opinion.”

The plaintiffs submitted their amended complaint on Oct. 31, but BN countered that the new allegations in the second amended complaint provide no basis for the Court to reverse its decision that the plaintiffs fail to state a claim for relief.

“In the Second Amended Complaint, Plaintiffs have added no new substantive allegations in support of their remaining four claims, and instead reassert essentially the same allegations,” the book retailer said.

For example, plaintiff Heather Dieffenbach alleges for the first time that she took certain steps to obtain a new payment card due to suspected fraudulent activity, but she still fails to allege that she incurred any monetary losses, B&N stated.

Barnes & Noble also argued that plaintiff Susan Winstead’s attempts to modify her previously dismissed claim is an attempt to recast a critical factual admission. Winstead previously alleged that she had subscribed to a credit monitoring service for unrelated reasons prior to the data breach, but the Court dismissed her claims because she could not allege damages specific to the Barnes & Noble data breach.

The book retailer went on to further assert that the other plaintiffs fail to bring forth viable claims. Plaintiff Ray Clutts has not varied his claims at all, thereby failing to “cure the deficiencies” in his case, and plaintiff Jonathan Honor has reportedly “disappeared from the Complaint,” B&N states.

Overall, Barnes & Noble claims that the plaintiffs’ second amended complaint fails and they have requested that the Court dismiss the case a third time, this time with prejudice.

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

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