As anyone who has ever misplaced a credit card knows, consumers who learn that their credit or debit card data has been stolen endure a significant amount of inconvenience. The existing account must be canceled. A new account may need to be opened. The consumer may be without a credit or debit card while awaiting delivery of a new card. Automatic payments must be transferred from the cancelled card to the new card. The consumer ends up devoting a considerable amount of time to undoing the disarray caused by the theft of the consumer’s credit or debit card data.

Can consumers recover against retailers for that lost time and effort when a breach of the retailer’s computer systems results in disclosure of their credit and debit card data? The Maine Supreme Judicial Court is being asked to address that question by Judge Brock Hornby, the federal judge in the Hannaford Brothers data breach litigation. That consolidated class action has been brought on behalf of Hannaford customers whose credit and debit card data was compromised in a breach of the computer systems of the Maine-based grocery store chain. Defendants sought and obtained dismissal of claims asserted by named plaintiffs whose data had been stolen but who had not suffered any out-of-pocket losses as a result of the data breach. Such plaintiffs’ lack of out-of-pocket damages, Judge Hornby concluded, was fatal to their claims for breach of contract and violation of Maine’s consumer protection statute.