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United States District Court District of Connecticut UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT MEGAN MCLOUGHLIN, et al., : o/b/o others similarly situated, : Plaintiffs, : CIVIL ACTION NO. : 3:08-cv-00944(VLB) v. : : PEOPLE’S UNITED BANK, INC. and : August 31, 2009 BANK OF NEW YORK MELLON, INC., : Defendants. : MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTIONS TO DISMISS [Docs. ##55, 56] This case arises out of the loss of electronic banking data that was managed by The Bank of New York Mellon Corporation, Inc. ("BNY Mellon"), sued herein as Bank of New York Mellon, Incorporated. The lost electronic information included banking data about customers of People's United Bank Incorporated. ("PUB"). The named Plaintiffs consist of individuals who have or had accounts with PUB. The Plaintiffs bring this putative class action on their own behalf and on behalf of persons similarly situated: individuals with compromised banking information as a result of the Defendants’ loss of personal banking data. The Plaintiffs initially brought this action in Connecticut Superior Court, alleging negligence, breach of fiduciary duty, and violations of the Connecticut Unfair Trade Practices Act (CUTPA). The defendant banks removed the action to this Court pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d) on June 24, 2008 [Doc. #1]. On January 2, 2009, the Plaintiffs filed an amended class 1 action complaint [Doc. #53], whereupon the Defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted, and, in the alternative for lack of standing. [Docs. ## 55, 56]. For the reasons hereinafter set forth, the Court GRANTS the Defendants’ motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Facts The following facts are alleged in the amended complaint. PUB is a large, federally-chartered, New England regional bank, and has its principal place of business in Bridgeport, Connecticut. BNY Mellon is the world’s largest custodial bank and has its principal place of business in New York, New York. The named Plaintiffs are or were customers and depositors of PUB residing in Connecticut. To obtain financial services with PUB, the Plaintiffs were required to provide PUB with various items of personal financial information that included their names, addresses, and Social Security Numbers, and bank account information (“Personal Information”). PUB had a contract with BNY Mellon to handle the Plaintiff’s Personal Information in electronic form. In February of 2008 a third-party company, selected by BNY Mellon, transported computer back-up tapes that contained the Plaintiffs’ and putative class members’ Personal Information. Despite BNY Mellon’s Online Privacy Policy statement that it protects the confidentiality of Social Security Numbers through “physical, electronic, and procedural 2 safeguards that are designed to comply with applicable legal standards,” BNY Mellon maintained the computer back-up tapes in an unencrypted format. On, or about February 27, 2008, a metal box that contained six to ten of the unencrypted back-up tapes was either lost or stolen from the truck used to courier the information. The truck had a broken lock and was left unattended during the period of transport. Approximately two months following this breach, the Defendants began to alert the customers to the loss of the unencrypted back-up tapes. BNY Mellon first offered individuals whose information had been compromised a year of credit monitoring and subsequently offered two years of credit monitoring, $25,000 in identity theft insurance, and free credit freezes. The Defendants have yet to inform some members of the Class about the loss of their Personal Information. On May 23, 2008, the named Plaintiffs brought this putative class action in Connecticut Superior Court. On June 24, 2008, the Defendants removed the action to this Court pursuant to CAFA. On July 24, 2008, the Plaintiffs moved to remand this action. On November 12, 2008, the Defendants moved to dismiss the Plaintiffs’ claims. [Docs. ##41, 42]. On November 18, 2008, the Court granted the Plaintiffs’ motion to stay the case until the Court ruled on their motion to remand [Doc. #44], and on November 19, 2008, the Court denied the Plaintiffs’ motion to remand. McLoughlin v. People’s United Bank, Inc., 586 F.Supp.2d 70 (D. Conn., 2008). On November 20, 2009, the Defendants renewed their motions to dismiss. [Docs.##46, 47]. On January 2, 2009, the Plaintiffs filed an amended complaint. 3 [Doc. #53]. On January 20, 2009, the Defendants filed the instant motions to dismiss the plaintiffs’ amended complaint. [Docs. ## 55, 56]. As the Plaintiffs have been aware of the alleged deficiencies in their pleadings since November 12, 2008, and have already amended their complaint once with knowledge of those deficiencies, the Court grants the Defendants’ motion to dismiss pursuant to Rule 12(b)(6). Fed. R. Civ. P. 12(b)(1) Standard The Defendants argue that the Plaintiffs lack constitutional standing to sue, and that the Court therefore lacks subject matter jurisdiction. A party may by motion challenge the Court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “When considering a motion to dismiss for lack of subject matter jurisdiction or for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint.” Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). “But, when the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Id., citing Norton v. Larney, 266 U.S. 511, 515 (1925). 4 Article III Standing While PUB asks the Court to dismiss the case for lack of subject matter jurisdiction only in the alternative to relief under 12(b)(6), this court is a court of limited subject matter jurisdiction and has a duty to consider any defect in jurisdiction in the first instance. See Correspondent Services Corp. v. First Equities Corp. of Florida, 338 F.3d 119, 123 (2d Cir. 2003). The Defendants argue that the Plaintiffs lack constitutional standing because they fail to plead any injury in fact. “The Constitution's case-or-controversy limitation on federal judicial authority, Art. III, § 2, underpins both our standing and our mootness jurisprudence . .” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs, 528 U.S. 167, 180 (2000). “[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 180-81, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The Second Circuit reiterated that rule, stating that, “[t]o qualify as a constitutionally sufficient injury-in-fact, the asserted injury must be ‘concrete and particularized’ as well as ‘actual or imminent, not conjectural or hypothetical.’” Baur v. Veneman, 352 F.3d 625, 632 (2d Cir. 2003) quoting Lujan, 504 U.S. at 560. “[T]he courts of appeals have generally recognized that threatened harm in the form of an increased risk of future injury may serve as injury-in-fact for Article III 5 standing purposes.” Id. at 633. In Baur, the Second Circuit noted a series of decisions where it found standing where plaintiffs pleaded only an increased risk of harm, and concluded “that such injuries are cognizable for standing purposes, where the plaintiff alleges exposure to potentially harmful products.” Id. at 634. Defendants would limit that holding to cases where plaintiffs allege some known and quantifiable risk of physical injury from environmental harms. However, in Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006), the Second Circuit found standing for certain members of a class of plaintiffs who received faulty tax advice. In that case, undeserved tax benefits were received and a quantifiable risk of a tax audit and attendant tax liabilities and penalties were ascertainable statistically. The plaintiffs alleged that they had paid excessive fees for the faulty advice, ran the risk of being audited, and had forgone legitimate tax benefits. The Second Circuit noted that those plaintiffs had suffered actual harm as they had “also taken costly and time-consuming steps to rectify errors in their past or future tax filings, and paid fees for the advice.” Therefore, the court concluded that although those plaintiffs had not and might not ever pay any tax penalty, they had suffered an injury-in-fact sufficient to confer constitutional standing. While recognizing that an “injury-in-fact must be ‘distinct and palpable,’ as opposed to ‘abstract,’and the harm must be ‘actual and imminent,’ not ‘conjectural or hypothetical,’” the Second Circuit explained that “an injury-in-fact differs from a ‘legal interest’; an injury-in-fact need not be capable of sustaining a valid cause of action under applicable tort law. An injury- 6 in-fact may simply be the fear or anxiety of future harm.” Id. (internal citations omitted). The Plaintiffs argue that notwithstanding the absence of any actual or quantifiable risk of loss, their claims are similar to those of the Denney plaintiffs; in their opposition brief, they do not theorize their harm as the actual or increased risk of identity theft but rather the supposed excessive fees they paid to the Defendants for protection from misuse of their confidential information.
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