Neiman Marcus Wants Data Breach Class Action Lawsuit Dismissed

The Neiman Marcus Group LLC has filed a motion to dismiss a class action lawsuit related to a recent data breach, arguing that the plaintiff failed to show that she suffered actual harm as a result of the Neiman Marcus data breach.

Plaintiff Melissa Frank initially filed the Neiman Marcus data breach class action lawsuit on January 13, shortly after the luxury retailer announced that it had been affected by a data breach, in which hackers reportedly stole the information for more than 1 million debit and credit cards. Neiman Marcus has reported that about 2,400 payment cards have incurred fraudulent charges. The retailer subsequently issued notices to customers who may have been affected by the breach and offered them one free year of credit monitoring and identity theft protection.

In her class action lawsuit, Frank alleged that she made purchases at a Long Island Neiman Marcus store between Dec. 15, 2013 and Jan. 1, 2014, and that her debit card subsequently received fraudulent charges. However, Neiman Marcus argues that this claim is insufficient because she cannot link the fraudulent charges to the Neiman Marcus data breach.

“[Frank] does not allege that a data incursion at Neiman Marcus caused the fraudulent charges on her debit card,” Neiman Marcus argued in its motion to dismiss the data breach class action lawsuit. “Indeed, she does not even allege that the card issuer is seeking to hold her liable for the damages.”

Further, the luxury retailer says that the malware used to steal the credit and debit card data was only active between July 16 and Oct. 30, 2013. Because Frank did not claim that she made purchases during this period, the alleged fraudulent charges on her debit card cannot be traced to the Neiman Marcus data breach.

In its motion to dismiss the class action lawsuit, Neiman Marcus states that even if the fraudulent charges on Frank’s debit card could be traced to the data breach, she has not suffered any actual harm. Because her card issuer provides zero fraud liability, Frank will not be required to pay any money to settle the unauthorized charges on her debit card.

“Because the complaint describes no specific harm she has suffered, monetary or otherwise, there is no way that a judgment in her favor would make her whole,” the luxury retailer said. “Rather, she is whole already.” Therefore, Neiman Marcus argues that the class action lawsuit should be dismissed based on lack of standing.

A similar class action lawsuit related to the Neiman Marcus data breach was filed in Georgia at the end of January.

The Neiman Marcus data breach was announced weeks after Target Corp. disclosed that it had been the victim of a massive data breach in which the payment information of more than 40 million customers was stolen by hackers between Nov. 27 and Dec. 15, 2013. Consumers from around the country have filed class action lawsuits against Target, alleging that the retail giant failed to properly safeguard their customers’ financial information.

The plaintiff is represented by Tina Wolfson, Robert Ahdoot, Theodore W. Maya and Bradley K. King of Ahdoot & Wolfson PC and Wendy R. Stein of the Law Office of Wendy R. Stein.

The Neiman Marcus Data Breach Class Action Lawsuit is Frank v. The Neiman Marcus Group LLC, et al., Case No. 2:14-cv-00233, in the U.S. District Court for the Eastern District of New York.