Federal Judge Tosses Alere Class Action Lawsuit

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A class action lawsuit against Alere Home Monitoring Inc. was tossed by a California federal judge, who said that it could not be held liable for stolen medical information that was on a laptop that was stolen from an employee’s car.

Alere helps doctors track the medical care of patients who are living at home but are receiving a large amount of in home monitoring. Because of this Alere keeps a lot of “confidential medical information from those patients.” This information includes names, addresses, birth dates, social security numbers as well as their medical history.

In September 2012, an Alere employee’s laptop was stolen from her car that was property of Alere and contained confidential patient information.

Plaintiffs John Falkenberg and Steven Ingargiola allege that on the employee’s laptop was the confidential information of 116,000 patients.

According to Falkenberg and Ingargiola, a password is needed to log on to the computer but the patient information is not encrypted. The plaintiffs and other affected Alere customers were notified in November that the laptop was stolen.

The allegations against Alere include violation of the CMIA, negligence, unjust enrichment, willful violation of the Fair Credit Reporting Act, negligent violation of the Fair Credit Reporting Act, and violating California’s Unfair Competition Law.

At the time that Falkenberg and Ingargiola filed the Alere class action lawsuit, there were two appeals before the California Court of Appeals and so U.S. District Judge Jon Tigar decided to put a stay on this class action lawsuit until those other lawsuits were decided.

On those grounds, Judge Tigar is dismissing this Alere class action lawsuit, which the plaintiffs had argued should not be considered in deciding their Alere class action lawsuit because they could still be overturned by the California Supreme Court.

“These two California Court of Appeals decisions are the only published opinions interpreting this California statute statutory law, and plaintiffs have cited no other data that would persuade this federal court sitting in diversity that the California Supreme Court would necessarily decide the issue otherwise,” Judge Tigar wrote.

Judge Tigar tossed the FCRA allegations because the plaintiffs did not show how Alere should qualify as a credit reporting agency just because the company maintains patient information.

He also said that the unfair competition and unjust enrichment claims couldn’t stand because “the plaintiffs ‘have not presented any authority to support the contention that unauthorized release of personal information constitutes a loss of property.'”

And they not have charged Alere with any sort of negligent conduct, as well.

In its motion to dismiss, Alere argued that the damages alleged by the plaintiffs, which include emotional distress, risk of identity theft, risk of wrongful use of medical information, invasion of privacy, and and the deprivation of the exclusive use of private information, are “speculative” and allege “future potential harm.”

Judge Tigar has given the plaintiffs 21 days to file an amended lawsuit.

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.

Alere is represented by Stephanie Sheridan, Kelly Savage Day and Alison Andre of Sedgwick LLP.

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