August 10, 2020

Volume X, Number 223

August 07, 2020

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No Class Conflict in Data Breach Settlement Involving Class Members With and Without Economic Injury

On remand from the Eighth Circuit,[1] the United States District Court for the District of Minnesota recently recertified a data breach settlement class over an objector’s assertion of an intraclass conflict.  Specifically, the objector asserted that a conflict existed between class members who purportedly had suffered loss and were guaranteed a payout under the proposed settlement, and those who had not suffered loss and were not guaranteed a payout.  See In re Target Customer Data Security Breach Litig., No. 14-2522 (PAM), 2017 WL 2178306 (D. Minn. May 17, 2017).  In rejecting the objector’s alleged conflict, the Court emphasized that “the question is not whether there is any potential or theoretical conflict among class members, it is whether class members’ different interests are antagonistic to each other.”  Id. at *3.

Importantly, in rejecting the objector’s theory, the District Court found that four years after the data breach, it was unlikely class members would face future injuries.  Because “as a practical matter there are no remaining future injuries in the class,” the District Court held that the interests of the two categories of class members were not “antagonistic” to each other.  Id. at *3, 5.  And the Court noted that the objector had offered “no evidence … regarding what recovery an individual who had sustained no quantifiable damages would be entitled to receive.”  Id. at *3.

The District Court did not address the issue of whether the plaintiffs and class members who had suffered no loss had Article III standing.  But the Court intimated that this could have been an issue if the settlement had sought to certify a “separate no-injury class” for which the objector seemed to be advocating.  Id. at *3, n.3.

We will continue to monitor this matter and report if the objector takes an appeal to the Eighth Circuit.

[1] For a summary of the Eighth Circuit’s decision, please see our prior alert, Eighth Circuit Requires Further Review of Data Brach Settlement Involving Class Members Who Have No Loss at‌2017/‌02/‌eighth-c....

Copyright 2020 K & L GatesNational Law Review, Volume VII, Number 152


About this Author

Andrew Glass, KL Gates Law Firm, Financial Litigation Attorney

Mr. Glass is a partner resident in K&L Gates’ Boston office, and a member of the firm's Consumer Financial Services Litigation and Class Action Litigation Defense groups, with extensive experience in complex commercial litigation. Mr. Glass's practice focuses on the defense of federal and state class action litigation brought against consumer financial services, mortgage lending, and consumer credit institutions. These class actions concern challenges under federal statutes, including the Fair Housing Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Real...

Matthew N. Lowe, KL Gates, financial services litigation attorney, class action lawyer

Mr. Lowe concentrates his practice in general civil and commercial litigation matters, with an emphasis in financial services litigation and class action litigation defense. He also has experience representing clients in the areas of product liability and toxic tort defense. 

Mr. Lowe represents a variety of corporate and individual clients in federal and state courts throughout the United States, including Massachusetts, California, Maryland, New York, Virginia, Illinois, New Jersey, and Missouri. He has experience representing mortgage lenders, banks, loan servicers, and other financial institutions in suits alleging violations of various federal and state statutes, including the Real Estate Settlement Procedures Act ("RESPA"), the Equal Credit Opportunity Act (“ECOA”), the Truth in Lending Act (“TILA”), and the Fair Debt Collection Practices Act (“FDCPA”). Mr. Lowe also has experience litigating class and individual actions arising from mortgage loan modification programs, including the federal government’s Home Affordable Modification Program (“HAMP”). In addition, he has litigated cases arising under state statutory law, including state unfair and deceptive acts and practices statutes, and state common law, including contract, tort, and product liability. 

Brandon R. Dillman, KL Gates, Civil Litigation Lawyer, Summer Associate

Brandon R. Dillman is an associate in the firm’s Boston office.

Professional Background

Prior to joining the firm, Mr. Dillman was a summer associate in the firm’s Boston office in 2015. In addition, he was a civil litigation paralegal at a Boston law firm.

Additional Information

In 2013, Mr. Dillman received the Best Brief Award in his first-year legal writing course. In 2016, he received the Best Brief Award and was a finalist in the Tom C. Clark...