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TMS Attorneys Successfully Achieve Dismissal of Claims in Class Action Data Breach Lawsuit

Dec 22nd, 2017

On December 1, 2017, Judge Thomas Russell, of the Western District of Kentucky issued an Opinion and Order dismissing several claims alleging TMS’s client, Pharm-Save, Inc. and Neil Medical Group, Inc. In Savidge v. Pharm-Save, Inc., 2017 WL 5986972, U.S.Dist. LEXIS 197635 (W.D.Ky. Dec. 1, 2017), the Plaintiffs alleged that they were former employees of the Defendant and that cyber-criminals stole Plaintiffs’ W-2s from the Defendant through a phishing scheme.  They alleged several causes of action against the Defendants including negligence, negligence per se, breach of implied contract, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.  They claimed numerous types of damages including certain out of pocket expenses, risk of future harm, diminished value of their personal information, mental anguish.

TMS, on behalf of its clients, asked the court to dismiss these claims.  The Court agreed that nearly all of the alleged "injuries” were insufficient to meet the pleading standards.  The Court only let the Plaintiffs proceed past the pleadings stage with injuries associated with any "reasonable and necessary” out-of-pocket expenses. Citing numerous federal courts, Judge Russell found the other alleged injuries to speculative to be a legally cognizable injury. 

In addition, the Court dismissed all the Plaintiffs’ causes of action but two.  The Court dismissed the negligence per se, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress claim, finding that they did not meet the pleading standards outlined by Fed. Rule Civ. Pro. 12(b)(6).  The Court found the Plaintiffs could move forward through discovery, for now, with the negligence and breach of implied contract causes of action, but only with the alleged out-of-pocket injuries left.

TMS will continue to vigorously defend its clients in this matter and other clients alleged to have been victims of a phishing scheme in data breach cases.

Byron Miller, Mitchel T. Denham, Michael Bender, and Joey Wright are handling the case for TMS.