On October 20, 2011, the United States Court of Appeals for the First Circuit issued an opinion reversing a Maine District Court’s dismissal of negligence and implied contract claims against grocer Hannaford Brothers. The underlying data breach publicly announced on March 17, 2008 by Hannaford led to a consolidated class action that was ultimately rejected in its entirety by the Maine District Court. After receiving guidance from the Maine Supreme Court regarding whether time and effort alone could represent a cognizable injury — it did not — the District Court ultimately ruled that even though claims for implied contract and negligence could be alleged by the plaintiffs, because the associated damages were not cognizable in law, the action had to be dismissed.
In reversing, the First Circuit recognized that “[t]here is not a great deal of Maine law on the subject [of damages recoverable under § 919 of the Restatement (Second) of Torts].” Accordingly, it reviewed a good deal of caselaw outside of Maine before applying § 919’s rule that “[o]ne whose legally protected interests have been endangered by the tortious conduct of another is entitled to recover for expenditures reasonably made or harm suffered in a reasonable effort to avert the harm threatened” to the specifics of this case. Several cited cases found such mitigation damages valid even if they exceed the potential savings and are purely financial in nature.
Recognizing the Hannaford breach involved a large-scale criminal operation that already led to over 1,800 identified fraudulent charges and many banks issuing new cards, the First Circuit ruled that mitigation damages in the form of ID theft insurance and credit card reissuance fees were financial losses recoverable under the negligence and implied contract claims so long as they are considered reasonable mitigation damages. There was no remand for further factual findings on the issue. The First Circuit simply made a determination that such damages were both foreseeable and reasonable and reversed on that basis. Now that the consolidated complaint lives another day, the District Court may certify a class but if it does it remains to be seen how far the lower court will go in sizing the class and allowing for such mitigation damages.