A federal judge wrapping up the case against the Hannaford Brothers supermarket chain over its 2007-2008 card breach has asked the Maine Law Court for a ruling that might open the door for card issuers to recover more of the costs of card breaches.
Judge D. Brock Hornby had previously limited cardholder damages from such breaches, reasoning that since individual cardholders had been covered by their issuers protection policies against card fraud, they didn't have any claims against the retailer.
But when plaintiffs asked the court to reconsider its opinion, Hornby reversed part of his previous decision on Oct.5 and asked the Maine Law Court to answer one question before he could issue a final ruling: "Do time and effort alone, spent in a reasonable effort to avert reasonably foreseeable harm, constitute a cognizable injury under Maine common law?"
Legal analysts speculate that an affirmative answer could have impacts beyond Maine for both cardholders and issuers damaged in card data breaches since it could introduce the idea that time and expense taken by both cardholders and their card issuers to avoid card fraud from compromised card data could qualify for monetary damages.
"So far, plaintiffs in the United States have generally been unsuccessful in pursuing claims against merchants based on fear of identity theft and incidental expenses to protect against it, following a security breach incident," wrote attorneys from the Information Law Group, a law firm specializing in information security law. "'Lost time and effort' may not be worth a great deal in damages to any single cardholder, but if Maine allows such claims to proceed, a class action with millions of class members could make 'time and effort' claims daunting, as well as allowing plaintiffs to sustain an action in which emotional distress can also be asserted as grounds for damages," the firm added.