Takeaway: With new stories of data breaches popping up almost daily, a recent Second Circuit decision illustrates the difficulties named plaintiffs face establishing actual injury and surviving a motion to dismiss based on Article III standing. To establish standing, the plaintiff must allege more than a refunded fraudulent charge or the fear of future identity theft. A recent ruling by the Second Circuit demonstrates that, especially in cases involving only exposure of payment card information (and not personal information), standing limitations can be a potent weapon in the class action defendant’s arsenal.

In Whalen v. Michaels Stores, Inc., No. 16-260 (L), 2017 WL 1556116, at *1 (2d Cir. May 2, 2017), the Second Circuit upheld the district court’s dismissal of a putative class action alleging claims arising out of a data breach at Michaels stores, agreeing with the Eastern District of New York that the plaintiff failed to show either actual injury or impending future injury.

Whalen involved a data breach affecting around 2.6 million credit cards used at Michaels stores between May 8, 2013 and January 27, 2014. Whalen v. Michael Stores Inc., 153 F. Supp. 3d 577, 578 (E.D.N.Y. 2015), aff’d sub nom. Whalen v. Michaels Stores, Inc., No. 16-260 (L), 2017 WL 1556116 (2d Cir. May 2, 2017). Whalen alleged that she made a purchase with her credit card during the relevant period and brought claims against Michaels for breach of implied contract and violations of the New York GBL § 349. Critically, the breach only involved the release of payment card information. There was no allegation that any customer personal information (such as social security numbers or addresses) had been released. Michaels persuaded the district court to dismiss for lack of standing. 2017 WL 1556116 at *1.

The Second Circuit’s analysis focused on the specific harm suffered by Whalen as a result of the data breach. Whalen alleged that (1) her credit card information had been used twice in attempted fraudulent purchases in Ecuador; (2) she faced a future risk of identify fraud; and (3) she lost time and money attempting to resolve the charges and monitoring her credit. The Court of Appeals rejected all three contentions.

First, the Second Circuit ruled that, because Whalen did not pay and was never asked to pay the fraudulent charges, the unauthorized use of her credit card did not constitute actual injury. Whalen, 2017 WL 1556116, at *2. On this point, the district court observed below that every major credit card issuer, including Whalen’s, has a zero-fraud-liability policy and distinguished Whalen’s alleged injury from other data breach cases where the individual plaintiffs alleged that they incurred actual charges as a result of the fraud, including unreimbursed charges, blocked access to bank accounts resulting in an inability to pay bills, or related bank fees. Whalen, 153 F. Supp. 3d at 581 (citing In re Target Corp. Data Sec. Breach Litig., 66 F. Supp. 3d 1154, 1159 (D.Minn. 2014); In re Michaels Stores Pin Pad Litig., 830 F. Supp. 2d 518, 527 (N.D. Ill. 2011)). The Whalen court’s ruling suggests that the mere fraudulent use of a credit card, absent allegations of monetary loss, does not suffice to establish standing.

Second, the Second Circuit found that Whalen could “not allege[ ] how she can plausibly face a threat of future fraud.” Whalen, 2017 WL 1556116, at *2. In Clapper v. Amnesty International USA, 568 U.S. 398 (2013), the Supreme Court held that threatened injury must be “certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient. Here, Whalen cancelled her stolen credit card after the breach and there was no allegation that any other personal information, such as her social security number, had been exposed in the breach. The Second Circuit concluded that these allegations at best demonstrated possible future injury.

Finally, the Second Circuit held that Whalen “pleaded no specifics about any time or effort that she herself has spent monitoring her credit.” Whalen, 2017 WL 1556116, at *2. The district court noted that Michaels had provided data breach victims with 12 months of free credit monitoring, and that no monitoring was necessary given that she had cancelled her credit card and no personal information was exposed. Whalen, 153 F. Supp. 3d at 581.

The Whalen decision illustrates that, in many data breach cases, class-action defendants can use standing to obtain dismissal long before class certification. But Whalen involves a relatively benign set of facts and may be distinguishable from cases involving a more widespread data breach or where the named plaintiff can allege some cognizable monetary loss.