Class Action – Damages and Class Treatment – 2013 Year in Review

by BakerHostetler

In 2013, theories of injury and damages revealed themselves to be deciding factors at the class certification stage of litigation and whether plaintiffs are able to prove damages on a class-wide basis.  Even in those cases where some members of the proposed class can show that they suffered injury, the existence and nature of any injuries tend to vary greatly amongst putative class members.  One key decision issued in 2013 reinforced the conclusion that variation in the existence and extent of any damages suffered by the victims of a privacy breach can prevent class treatment, but another illustrated that the availability of statutory damages may be used to overcome this problem.

First, In March, the United States District Court for the District of Maine denied the plaintiffs’ motion to certify a class in In re Hannaford Brothers Company Data Security Breach Litigation.[1] The court’s analysis was a victory for the class action defense bar because it turned on the issue of the plaintiff’s inability to prove total damages.  Without a reliable method to demonstrate the damages of class members, the court held, plaintiffs could not meet the predominance requirement of Rule 23(b)(3).

Hannaford arose out of a criminal attack on the payment card system network at the Hannaford Bros. grocery chain, which potentially affected over 4 million credit and debit card numbers.  Notably, at the time of its decision on certification, the court was adjudicating the case on remand from the First Circuit, which had affirmed the viability of the plaintiffs’ negligence and implied breach of contract claims because they had alleged damages as foreseeable costs, including fees for replacing cards and the cost of identity theft protection products, to mitigate harm arising from the data breach.[2]

On remand, the plaintiffs filed their motion for class certification in line with the First Circuit decision by limiting the proposed class to “Hannaford customers who incurred out-of-pocket costs in mitigation efforts that they undertook in response to learning of the data intrusion.” Nevertheless, the court held plaintiffs could not overcome the predominance requirement because they had not identified a purported expert with a method to show class-wide damages.  The Hannaford court held that although plaintiffs had established commonality as to purported liability, without an expert to show lump-sum damages, they would be left with a series of mini-trials to determine individualized damages.

Conversely, in comScore v. Dunstan, in June, the Seventh Circuit upheld the certification of data privacy class action for alleged privacy violations under various federal statutes, including the Stored Communications Act (SCA) and the Electronic Communications Privacy Act (ECPA).  According to the complaint, comScore, “an Internet research corporation that provides marketing data to a wide variety of clients, generally in the form of aggregated reports about online consumer behavior,” obtained information including “username and passwords,” “PDFs,” and “every file on the monitored consumer’s computer” through software distributed by either “paying affiliate partners to post comScore’s advertisements on their websites in an effort to solicit consumers to download comsScore’s Surveillance Software” or “paying developers to bundle the Surveillance Software with the third-party application provider’s software.”  The expansive class included all individuals “who have had comsScore’s Surveillance Software installed on their computer(s).”

The Northern District of Illinois granted certification in April on the statutory claims, which carried with them statutory damages. The court found that the “plaintiffs raise[d] a variety of common questions that can be resolved on a classwide basis” under these statutes—which define statutory penalties per violation—and that it would be “far more efficient to resolve all of the common issues in a single proceeding, and then to hold individual hearings on damages if necessary, than it would be to litigate all of the common issues repeatedly in individual trials.”[3]

Notably, in its appeal to the Seventh Circuit, comScore argued that “individualized issues inherent in cases of this type make them particularly unsuited to class treatment” because plaintiffs would not be able to prove that the entire class, which could potentially include “tens of millions of people,” had “even downloaded comScore’s software, a prerequisite to membership in the class.” The court rejected this argument and, without releasing a written opinion, denied leave to appeal certification[4] of the 10-million member internet privacy class—“the largest privacy case ever certified on an adversarial basis.”

The key difference between Hannaford and comScore is that the damages in comScore were statutory in nature.  Thus, the efficacy of the argument that data privacy class action plaintiffs cannot prove damages on a class-wide basis appears to have been compromised where the damages are statutory in nature.

[1] In re Hannaford Brothers Company Data Security Breach Litigation, 293 F.R.D. 21. (D. Me. 2013).

[2] Hannaford was adjudicated prior to the Supreme Court’s decision in Clapper, and the issues were decided in the context of a Rule 12(b)(6) motion to dismiss.

[3] Harris v. comScore, Inc., 292 F.R.D. 579 (N.D.Ill. April 2, 2013).

[4] comScore v. Dunstan, No. 13-cv-8007 (7th Cir. Jun. 11, 2013).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.