Gilbert v. AFTRA Retirement Fund

Background

AFTRA Retirement Fund announced a data breach that potentially implicated the personally identifiable information of more than 494,069 individuals. The plaintiffs—A.A., a minor represented by a parent, Sean Boozer, Paul Bright, Billy Choi, Ron Gilbert, Linnette Harrigan, and Maurice Tyson—filed a consolidated putative class action against AFTRA.

The amended complaint asserted claims for negligence, breach of implied contract, unjust enrichment or quasi-contract, and breach of confidence. It also asserted statutory claims under New York, California, and Oregon law for specified plaintiffs and proposed subclasses. The plaintiffs agreed to withdraw a claim under New York General Business Law § 899-aa and a claim under the California Consumer Privacy Act.

Motion and Analysis

AFTRA moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction based on Article III standing, and under Rule 12(b)(6) for failure to state a claim. AFTRA argued that the plaintiffs had not adequately alleged an injury in fact fairly traceable to the data breach.

The plaintiffs responded that they had alleged several injuries, including monetary losses from actual fraud, an increased risk of identity theft or fraud, time and money spent on mitigation, loss of the benefit of their bargain with AFTRA, and a reduction in the value of their personal information.

The court discussed the Supreme Court’s intervening decision in TransUnion LLC v. Ramirez and the Second Circuit’s decision in Maddox v. Bank of New York Mellon Trust Co. The court explained that those decisions affected the requirements for showing a concrete injury, particularly when claims seek damages based on a statutory violation or the risk of future harm. The court also noted that the plaintiffs had not had a meaningful opportunity to address those decisions during briefing.

Disposition

The court denied AFTRA’s motion to dismiss without prejudice to filing a renewed motion. The parties were ordered to submit a joint status letter by April 4, 2022 explaining how they wished to proceed. The court stated that any renewed motion should address TransUnion and Maddox and should consider their possible effect on McMorris v. Carlos Lopez & Associates, LLC. The Clerk was directed to terminate the motion at ECF No. 37. The order did not resolve whether the plaintiffs’ claims ultimately succeeded.