A Florida federal court has dismissed a putative class action against The Wendy’s Co. alleging the company failed to adequately secure its customers’ financial information but granted the plaintiff leave to amend. Torres v. Wendy’s Co., No. 16-0210 (M.D. Fla., order entered July 15, 2016).
The court found that while the plaintiff’s financial information had been fraudulently used to complete two transactions, “other district courts have concluded that mere fraudulent charges on debit or credit cards do not rise to the level of actual identity theft sufficient to establish standing.” Further, because the charges were reimbursed by the plaintiff’s credit union, he had “not alleged any monetary harm stemming from the two fraudulent charges.”
The plaintiff also argued that he and the putative class had standing because of the threat of future harm because they must monitor for future identity theft. The court distinguished the facts at issue from a similar case in which the threat of future harm after a data breach was considered sufficient to support standing, noting that “in that case, over 9,200 customers’ credit cards experience fraudulent charges following the breach.  In the instant case, it is unclear the size of the Data Breach and how many other customers were affected. The Class Action Complaint indicates that, to date, only Plaintiff was affected by the Data Breach, and he has not asserted any out-of-pocket losses that current case law is willing to recognize.” Accordingly, the court dismissed the case but granted the plaintiff leave to amend the complaint. Addition information about the original complaint appears in Issue 594 of this Update.