Wines, Vines, & Corks, LLC v. First National of Nebraska, Inc., No. 8:14-cv-82 (D. Neb., Aug. 20, 2014).
In a putative class action, Wines, Vines & Corks alleged that it has a credit card processing agreement with the defendants and that, as a result of a data breach at the defendants, it was charged fees for multiple unauthorized credit card transactions processed through its account. The defendants moved to dismiss all claims for breach of contract, negligence, and violations of the Nebraska consumer protection and deceptive trade practices acts—arguing that the factual allegations of a data breach were conclusory and that the economic loss doctrine barred all but the contract claim. The court disagreed, finding that the factual allegations were sufficient to survive a motion to dismiss and that the economic loss doctrine “has no applicability to this case.” As the court explained, rather than seeking to recover in tort for the failure to perform a purely contractual duty, the plaintiff is claiming that the defendants violated duties independent of the contract. The court stated, “There are duties and standards imposed on banks and credit card processing companies that are supplemental to the duties imposed in the contract.”.