The Home Depot Inc. Seeks to Have Data Breach Lawsuit Dismissed

Atlanta, GAAs data breaches prove a continuing threat in an increasingly fluid online world where everyone has a presence, previous data breaches having resulted in lawsuits are duking it out in the nation’s courts. To that end, a sizable putative class of banks currently embroiled in a lawsuit with Home Depot over a massive data breach from 2014 is unhappy with a stance the defendant has taken as the Home Depot data breach lawsuit continues to percolate.

The MDL is In Re: The Home Depot Inc., Customer Data Security Breach Litigation, Case Number 1:14-md-02583, in the US District Court for the Northern District of Georgia.

The latest development has Home Depot pursuing an identified need (identified by the defendant) to communicate directly with absent class members about potential settlements Home Depot may enter into with Visa and MasterCard. In a motion filed with the court October 23, Home Depot put forward a framework for such communication over issues concerning lawsuit details and disclosures, together with explanations with regard to the possibility of a larger recovery within the confines of a lawsuit than what may be gleaned under a proposed settlement.

The putative class, comprised of no fewer than 50 banks and 17 associations representing credit unions, is objecting strongly to the Home Depot’s motion.

“Coupling receipt of the benefits of the [credit brand] recovery processes with a general release that prohibits class members from participating in this case is inherently misleading and ripe for abuse, particularly when class counsel are completely shut out of the process,” the plaintiffs wrote. “To the extent that Home Depot is not attempting to issue coercive or misleading statements, it should have no problem presenting them first to class counsel and allowing the court to decide any disputes.”

The plaintiffs went further: “Home Depot’s proposed mechanism - providing copies of its communications after the communications have been distributed to class members - will be too little, too late,” the motion said. “If the communications are in fact inaccurate or misleading, the damage will have already occurred, and an effective cure will be difficult to achieve.”

The disagreements between the two parties surrounding direct communication with absent class members comes as Home Depot is attempting to have the data breach lawsuit dismissed. Plaintiffs claim various injuries as the result of the 2014 Home Depot data breach, whereas Home Depot argues the plaintiffs have failed to back their allegations of injury with any degree of factual heft.

The dispute continues.

Data breaches have become a scourge in recent years as more and more commerce (and other services) is conducted online. Part of this online activity involves the storage and archive of records, documents, personal information and other sensitive documents that hackers find attractive. Some of the more well-known hacks have involved retailers Home Depot and Target, but in recent years hackers have penetrated hospitals and HMOs, and even government institutions thought to have the most up-to-date, hack-proof firewalls and protocols.

Data breach lawsuits occur when plaintiffs are negatively impacted either financially or after having suffered identity theft. Consumers and any individual seeking to conduct commerce or access a service online does so with the assumption that a retailer or service provider has the necessary encryptions and protections in place.

As various lawsuits have suggested, this may not necessarily be the case…