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Update: Neiman Marcus Asks for En Banc Review of Recent Seventh Circuit Data-Breach Ruling



We recently wrote a post on this blog analyzing the Seventh Circuit’s ruling that the victims of a Neiman Marcus data breach could proceed with their claims against the retailer. We noted the significance of the decision because it allowed the plaintiffs to proceed with their claims against Neiman Marcus while many other courts had dismissed similar claims against other retailers:  having the Seventh Circuit declare that such claims could proceed would undoubtedly embolden similarly-situated class-action plaintiffs and counsel.

Recognizing the significance of the decision, Neiman Marcus has now filed a petition for anen banc rehearing before the Seventh Circuit. Among other arguments in support of its petition, Neiman Marcus argues that the

“errors [of the Seventh Circuit panel] are certain to have immediate and broad impact. As the first appellate ruling squarely to address standing in the context of payment-card data breaches, the panel’s ruling threatens to erode standing requirements in such cases well beyond the generally applicable limits declared by the Supreme Court… Despite substantial efforts by retailers and the credit card industry to prevent harm to consumers from payment-card breaches, this opinion all but declares that such breaches automatically confer standing …The ruling, if allowed to stand, will impose wasteful litigation burdens on retailers and the federal courts.”

En banc rehearings are rarely granted. But given the significance of the issues presented in this case, there is a fair chance of Neiman Marcus’s petition being granted.  Stay tuned for future updates on this case!

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