Anderson v. Hannaford Bros. Co.

United States Court of Appeals
For the First Circuit

Nos. 10-2384; 10-2450

JOHN ANDERSON, JESSICA CHOATE, MICHAEL CYR,
ELIZABETH DOWD, STEVE EARLEY, CYNDI FEAR, THOMAS FEAR,
MARK FOLLANSBEE, CARLTON GREELY, ROBERT HANSON,
BRUCE HATCH, PAULINE HATCH, JOHN HUTCHINGS, NANCY HUTCHINGS,
ROBERT JENKINS, PAMELA LAMOTTE, PAMELA MERRILL, JEANNE SMITH,
EILEEN TURCOTTE, LORI VALBURN AND PAMELA WILLIAMS,

Plaintiffs, Appellants/Cross-Appellees,

v.

HANNAFORD BROTHERS CO.,

Defendant, Appellee/Cross-Appellant,

DELHAIZE AMERICA INC., and KASH N' KARRY FOOD STORES INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

Peter L. Murray, with whom Thomas C. Newman, Nicole L.
Bradick, Murray, Plumb & Murray, Lewis Saul, and Lewis Saul
Associates were on brief, for appellants/cross-appellees.
Clifford H. Ruprecht, with whom William J. Kayatta, Jr.,
Catherine R. Connors, Joshua D. Dunlap, and Pierce Atwood LLP were
on brief, for appellees/cross-appellant.
October 20, 2011
 LYNCH, Chief Judge. Plaintiffs appeal from the dismissal

of their Maine state law claims arising out of the unauthorized use

of their credit and debit card data after hackers breached the

electronic payment processing system of defendant Hannaford

Brothers Co., where plaintiffs had shopped for groceries and used

those cards.

The district court determined that plaintiffs failed to

state a claim under Maine law for breach of fiduciary duty, breach

of implied warranty, strict liability, and failure to notify

customers of the data breach. Although the district court

concluded that the plaintiffs adequately alleged breach of implied

contract, negligence, and violation of the unfair practices portion

of the Maine Unfair Trade Practices Act (UTPA), the district court

dismissed those claims because it determined the plaintiffs'

alleged injuries were too unforeseeable and speculative to be

cognizable under Maine law. In re Hannaford Bros. Co. Customer

Data Sec. Breach Litig., 613 F. Supp. 2d 108 (D. Me. 2009).

We affirm in part and reverse in part. We affirm the

district court's dismissal of all claims other than the plaintiffs'

negligence and implied contract claims. We reverse the district

court's dismissal of the plaintiffs' negligence and implied

contract claims as to certain categories of alleged damages because

plaintiffs' reasonably foreseeable mitigation costs constitute a

cognizable harm under Maine law.

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 I.

The facts as alleged by plaintiffs in their consolidated

putative class action complaint are as follows.

Hannaford is a national grocery chain whose electronic

payment processing system was breached by hackers as early as

December 7, 2007.1 The hackers stole up to 4.2 million credit and

debit card numbers, expiration dates, and security codes, but did

not steal customer names. On February 27, 2008, Visa Inc. notified

Hannaford that Hannaford's system had been breached. Hannaford

discovered the means of access on March 8, 2008, and contained the

breach on March 10, 2008. Hannaford gave notice to certain

financial institutions on March 10, 2008. On March 17, 2008,

"Hannaford publicly announced for the first time that between

December 7, 2007 and March 10, 2008, the security of its

information technology systems had been breached, leading to the

theft of as many as 4.2 million debit card and credit card numbers

belonging to individuals who had made purchases at more than 270 of

its stores." It also announced "that it had already received

1
Defendants Hannaford and Kash N' Karry Food Stores, Inc.
(Kash N' Karry) are wholly-owned subsidiaries of defendant Delhaize
America, Inc. At the time of the breach, Hannaford provided
electronic payment processing services to Kash N' Karry and to
several independently owned stores. As provider of these services,
Hannaford has agreed to assume the liability of Kash N' Karry,
Delhaize, and any such independently owned stores. We refer to all
of these entities as Hannaford.
The putative class period is from December 7, 2007 to
March 10, 2008.

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reports of approximately 1,800 cases of fraud resulting from the

theft of those numbers." The unauthorized charges originated in

locations across the globe, including New York, Spain, and France.

Following Hannaford's announcement, some financial

institutions immediately cancelled customers' debit and credit

cards and issued new cards, while others did not do so, telling the

cardholder they wished to wait for evidence of unauthorized

activity before taking action. Further, as alleged in the

complaint, "financial institutions who did not immediately cancel

customers' cards monitored customer accounts for unusual activity

and cancelled cards immediately upon being aware of apparent

fraudulent charges or attempts to make apparently fraudulent

charges, in many cases, without the knowledge of the customer."

Additional "customers suffered unauthorized charges to their debit

card and credit card accounts." Moreover, "customers who requested

that their cards be cancelled were required to pay fees to issuing

banks for replacement cards" and "customers purchased identity

theft insurance and credit monitoring services to protect

themselves against possible consequences of the breach."

The Judicial Panel on Multidistrict Litigation

consolidated twenty-six separate suits against Hannaford arising

out of the breach into one lawsuit in the District of Maine. The

consolidated complaint alleged that at least fourteen of the named

plaintiffs actually had unauthorized charges charged against their

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accounts. Seventeen of the named plaintiffs had their cards

cancelled by the bank, and two named plaintiffs requested that

their issuers give them replacement cards.

The plaintiffs alleged seven causes of action: (1) breach

of implied contract; (2) breach of implied warranty; (3) breach of

duty of a confidential relationship; (4) failure to advise

customers of the theft of their data; (5) strict liability; (6)

negligence; and (7) violation of the Maine UTPA. Plaintiffs sought

damages as well as injunctive relief in the form of credit

monitoring and notification of precisely what information was

stolen. Hannaford moved to dismiss all claims, and the parties

agreed that Maine law would govern the dispute.

Plaintiffs allege that Hannaford customers, including

the plaintiffs, experienced more than the 1,800 unauthorized

charges to their accounts which were known to Hannaford when it

made its announcement on March 17. Plaintiffs also plead that they

experienced several categories of losses said to be compensable

damages for those plaintiffs who incurred them, including the cost

of replacement card fees when the issuing bank declined to issue a

replacement card to them, fees for accounts overdrawn by fraudulent

charges, fees for altering pre-authorized payment arrangements,

loss of accumulated reward points, inability to earn reward points

during the transition to a new card, emotional distress, and time

and effort spent reversing unauthorized charges and protecting

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against further fraud. In addition, they claim damages for the

purchase of identity theft/card protection insurance and credit

monitoring services.

In a carefully reasoned opinion, the district court

granted Hannaford's motion to dismiss as to twenty of the twenty-

one named plaintiffs.2 In re Hannaford, 613 F. Supp. 2d 108 (D.

Me. 2009). The district court dismissed four of the plaintiffs'

seven claims -- breach of warranty, breach of fiduciary duty,

failure to notify, and strict liability -- after concluding that

the plaintiffs had not alleged facts stating a basis for these

claims under Maine law. The district court allowed the implied

contract, negligence, and UTPA claims to proceed.

For these three surviving claims, the district court

concluded that dismissal depended on whether the plaintiffs'

alleged injuries as pled were cognizable under Maine law. Id. at

131. To make this determination, the district court divided the

plaintiffs into three categories. Id. at 131-35. The district

court determined that the first category, composed of plaintiffs

2
The district court held that plaintiff Pamela LaMotte
could proceed beyond the pleading stage because she was the only
plaintiff to allege unreimbursed fraudulent charges to her account.
In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 613 F.
Supp. 2d 108, 133 (D. Me. 2009). Shortly after the district
court's opinion, however, LaMotte notified the court that her bank
had reimbursed all unauthorized charges to her account. Because
she no longer suffered any direct financial loss, the district
court determined that her claim could no longer proceed. In re
Hannaford Bros. Co. Customer Data Sec. Breach Litig., 671 F. Supp.
2d 198, 199 (D. Me. 2009).

-6-
who did not have fraudulent charges posted to their accounts, could

not recover because their claims for emotional distress are not

cognizable under Maine law. Id. at 131-33. The district court

concluded that the second category, composed of the single

plaintiff whose fraudulent charges had not been reimbursed, could

recover for her actual financial losses. Id. at 133.

As to the third category, composed of plaintiffs whose

fraudulent charges had been reimbursed, the district court

determined that their alleged consequential losses were "too

remote, not reasonably foreseeable, and/or speculative (and under

the UTPA, not a 'substantial injury')." Id. at 134. In

particular, the district court explained, the claimed overdraft

fees, loss of accumulated reward points, and loss of opportunities

to earn reward points were not foreseeable at the time of sale.

Id. at 134-35. Further, the district court determined that there

was no way to value or compensate the time and effort that

consumers spent to reverse or protect against losses, and that

there was no allegation to justify the claim for identity theft

insurance since no personally identifying information was alleged

to have been stolen. Id. As a result, the district court

determined that this third category of plaintiffs could not

recover.

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 Finally, the district court denied the plaintiffs'

requested injunctive relief because the named plaintiffs had

already cancelled their compromised cards. Id. at 135.

After the district court ruling, the plaintiffs moved to

certify several questions3 to the Maine Supreme Judicial Court (the

"Law Court"). The district court certified two questions:

(1) In the absence of physical harm or
economic loss or identity theft, do time and
effort alone, spent in a reasonable effort to
avoid or remediate reasonably foreseeable
harm, constitute a cognizable injury for which
damages may be recovered under Maine law of
negligence and/or implied contract?

(2) If the answer to question # 1 is yes
under a negligence claim and no under an
implied contract claim, can a plaintiff suing
for negligence recover damages under Maine law
for purely economic harm absent personal
injury, physical harm to property, or
misrepresentation?

In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 671 F.

Supp. 2d 198, 201 (D. Me. 2009). The Law Court accepted the

certification and answered the first question in the negative,

3
The plaintiffs moved to certify four questions: (1)
whether an implied contractual term can be limited to reasonable
care; (2) whether the use of credit and debit cards in merchant
transactions creates a fiduciary duty; and whether time and effort
alone constitute (3) cognizable injury under the common law; or (4)
a substantial injury under the Maine UTPA. In re Hannaford Bros.
Co. Customer Data Sec. Breach Litig., 660 F. Supp. 2d 94, 98 (D.
Me. 2009). Hannaford asked the district court to certify a fifth
question regarding the scope of the economic loss doctrine. Id. at
99. The district court concluded that Maine law was clear as to
the first, second, and fourth questions, but not as to the third or
fifth questions. Id.

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agreeing with the district court that time and effort alone do not

constitute a cognizable harm under Maine Law. In re Hannaford

Bros. Co. Customer Data Sec. Breach Litig., 4 A.3d 492, 498 (Me.

2010). Observing that "[l]iability in negligence . . . ordinarily

requires proof of personal injury or property damage," the Law

Court declined to expand Maine negligence law by recognizing time

and effort alone as a harm. Id. at 496. Similarly, the Law Court

noted that "[n]ot every consequence of a breach of contract is a

cognizable injury" and that contract damages are generally more

restricted than compensatory damages for tort. Id. at 497.

Accordingly, the Law Court concluded that time and effort alone do

not represent a cognizable injury recoverable in implied contract.

Id. Having answered the first question in the negative, the Law

Court found it unnecessary to address the second question. Id. at

498.

In light of the Law Court's opinion, the district court

ordered the parties to show cause why judgment should not be

entered in favor of Hannaford on all claims. The parties offered

no response and the district court entered judgment in favor of

Hannaford.

Plaintiffs have appealed the district court's decision

regarding the fiduciary duty, breach of implied contract,

negligence, and Maine UTPA claims. Hannaford has cross-appealed

from the district court's determinations that the plaintiffs had

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adequately pled a basis for an implied contract of reasonable care

apart from any tort duty, and that a private remedy under the Maine

UTPA might lie even absent a loss resulting from the purchase of a

consumer good or service.

II.

We review de novo the grant of a motion to dismiss,

"accepting as true all well-pleaded facts, analyzing those facts in

the light most hospitable to the plaintiff's theory, and drawing

all reasonable inferences for the plaintiff." United States ex

rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st

Cir. 2011). To survive a motion to dismiss, a complaint must "set

forth 'factual allegations, either direct or inferential,

respecting each material element necessary to sustain recovery

under some actionable legal theory.'" Gagliardi v. Sullivan, 513

F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico del Turabo,

Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

A. Failure to State a Claim as to Theory of Cause of Action

1. Fiduciary/Confidential Relationship

Plaintiffs argue that Hannaford owed a fiduciary duty to

protect their credit and debit card data, which it breached.

Although plaintiffs concede that the basic grocery purchase

transaction does not give rise to a fiduciary relationship, they

argue that a fiduciary relationship arises in the context of credit

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and debit card use because the customer trusts the merchant to

safeguard her credit or debit card information.

We agree with the district court that the plaintiffs'

facts do not make out a confidential relationship4 with Hannaford

and so Hannaford did not owe a fiduciary duty. To state a claim

for fiduciary duty under Maine law, a plaintiff must: (1) allege

"the actual placing of trust and confidence" in the defendant; (2)

"show that there is some disparity in the bargaining positions of

the parties;" and (3) show "that the dominant party has abused its

position of trust." Leighton v. Fleet Bank of Me., 634 A.2d 453,

457-58 (Me. 1993). The plaintiffs' pleading fails to satisfy these

three elements.

First, the plaintiffs have not shown the "trust and

confidence" contemplated by Maine confidential relationship cases.

Under Maine law, a "fiduciary relationship has been described as

'something approximating business agency, professional

relationship, or family tie impelling or inducing the trusting

party to relax the care and vigilance ordinarily exercised.'"

Bryan R. v. Watchtower Bible & Tract Soc. of N.Y., Inc., 738 A.2d

839, 846 (Me. 1999) (quoting L.C. v. R.P., 563 N.W.2d 799, 801-02

(N.D. 1997)). Accordingly, Maine decisions typically find a

4
It is important to note for terminology purposes that
under Maine law, a "fiduciary relationship is the same as a
confidential relationship, which gives rise to the same duties."
Stewart v. Machias Sav. Bank, 762 A.2d 44, 46 n.1 (Me. 2000)
(citing Ruebsamen v. Maddocks, 340 A.2d 31, 36 (Me. 1975)).

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"placing of trust and confidence" in the context of family

relationships, joint ventures, or partnerships. See, e.g.,

Ruebsamen v. Maddocks, 340 A.2d 31 (Me. 1975) (family context);

Wood v. White, 122 A. 177 (Me. 1923) (joint venture context). The

Maine courts have extended the rule to lender/borrower

relationships, but only where one party has a relationship which

has permitted it to take advantage of the other in order to use or

acquire the other's assets. See Stewart v. Machias Sav. Bank, 762

A.2d 44 (Me. 2000). The plaintiffs do not allege such a

relationship here; there are no allegations that this relationship

was anything other than an ordinary arms-length commercial

transaction.

Second, the plaintiffs have not pled facts demonstrating

disparate bargaining power between the plaintiffs and Hannaford.

In the commercial context, the Maine Law Court has required an

especially heightened disparity of power. The plaintiffs must

allege "diminished emotional or physical capacity or . . . the

letting down of all guards and bars." Stewart, 762 A.2d at 46

(omission in original) (quoting Diversified Foods, Inc. v. First

Nat'l Bank of Bos., 605 A.2d 609, 615 (Me. 1992)) (internal

quotation marks omitted) (holding that a creditor-debtor

relationship is not a confidential relationship without a showing

of diminished capacity or special vulnerability). Here, the

customer is free to use cash or checks, as well as credit or debit

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cards, to buy groceries. The customer is free to purchase

groceries elsewhere. Indeed, plaintiffs fail to distinguish

themselves from any other credit or debit card user in any

commercial setting. See Bryan R., 738 A.2d at 847 (dismissing a

claim for breach of fiduciary duty where, inter alia, plaintiff did

not allege that his relationship with the defendant church was

"distinct from [the defendant church's] relationships with any

other members").

Third, the plaintiffs fail to allege facts demonstrating

that Hannaford abused a position of trust. Under Maine law, breach

of fiduciary duty claims typically require a showing that the

dominant party used its position of trust to obtain something from

the subordinate party, "acquiring rights in that [property]

antagonistic to the person with whose interests he has become

associated." Wood, 122 A. at 179 (quoting Trice v. Comstock, 121

F. 620, 627 (8th Cir. 1903)) (internal quotation mark omitted). As

the district court noted, there is no suggestion in the complaint

that Hannaford provided anything but a fair exchange in groceries

in return for the customers' payments or somehow took advantage of

the system of allowing customers to use cards. In re Hannaford,

613 F. Supp. 2d at 123.

2. Implied Contract

Hannaford cross-appeals from the district court's

determination that plaintiffs have made out a claim for an implied

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contract.5 Under Maine law, a "contract includes not only the

promises set forth in express words, but, in addition, all such

implied provisions as are indispensable to effectuate the intention

of the parties and as arise from the language of the contract and

the circumstances under which it was made." Seashore Performing

Arts Ctr., Inc. v. Town of Old Orchard Beach, 676 A.2d 482, 484

(Me. 1996) (quoting Top of the Track Assocs. v. Lewiston Raceways,

Inc., 654 A.2d 1293, 1295 (Me. 1995)). The existence of such an

implied contract term is determined by the jury, which considers

5
Hannaford also argues that the implied contract claim must
fail because it is redundant with the plaintiffs' claim for
negligence. Hannaford did not make this argument to the district
court, so it is waived. See Lamex Foods, Inc. v. Audeliz Lebrón
Corp., 646 F.3d 100, 112 n.15 (1st Cir. 2011). Even so, the
argument fails on its own terms. Hannaford's argument depends on
an analogy to the medical malpractice context, in which Maine
courts have held implied contract claims to be redundant with
claims for negligence. See Johnson v. Carleton, 765 A.2d 571 (Me.
2001); Woolley v. Henderson, 418 A.2d 1123 (Me. 1980). In so
holding, however, these courts have explained that the rule is
particular to the medical malpractice context, where "[r]ecognizing
the continued vitality of implied contract as an independent cause
of action would be fundamentally inconsistent with the modern view
that malpractice actions should be predicated on a single basis of
liability -- deviation from the professional standard of care."
Johnson, 765 A.2d at 573 n.3 (quoting Woolley, 418 A.2d at 1135)
(internal quotation mark omitted). These courts have reasoned that
implied contract is "inadequa[te] . . . as a comprehensive
liability base in malpractice actions," Woolley, 418 A.2d at 1135,
because a duty "exists though there is clearly no contractual
relationship between the patient and the physician," id. at 1134
(quoting Kozan v. Comstock, 270 F.2d 839, 845 (5th Cir. 1959)). In
this case, by contrast, the relationship between Hannaford and its
customers was born of a commercial transaction, which imposed
contractual obligations separate and apart from the ordinary duty
of reasonable care.

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whether the term is indispensable to effectuate the intention of

the parties.

The district court correctly concluded that a jury could

reasonably find an implied contract between Hannaford and its

customers that Hannaford would not use the credit card data for

other people's purchases, would not sell the data to others, and

would take reasonable measures to protect the information. In re

Hannaford, 613 F. Supp. 2d at 119. When a customer uses a credit

card in a commercial transaction, she intends to provide that data

to the merchant only. Ordinarily, a customer does not expect --

and certainly does not intend -- the merchant to allow unauthorized

third-parties to access that data. A jury could reasonably

conclude, therefore, that an implicit agreement to safeguard the

data is necessary to effectuate the contract.

3. Maine Unfair Trade Practices Act, Me. Rev. Stat.
tit. 5, §§ 205-A to 214

The district court held that the plaintiffs' allegations

stated a claim under the Maine UTPA that Hannaford's failure to

disclose the data theft promptly, and possibly its failure to

maintain reasonable security systems, was unfair and deceptive.

Id. at 128-31. Nonetheless, the district court concluded that the

claim failed because the plaintiffs did not allege substantial

loss. Id. at 134. We agree that the plaintiffs' claim fails, but

for different reasons.

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 Section 207 of the Maine UTPA, entitled "Unlawful Acts

and Conduct," provides that "[u]nfair methods of competition and

unfair or deceptive acts or practices in the conduct of any trade

or commerce are declared unlawful." Me. Rev. Stat. tit. 5, § 207.

Under the statute, in defining whether a practice is unlawful, the

Maine legislature directed that guidance be sought from the

interpretations of the Federal Trade Commission Act (FTCA). Id.

§ 207(1) ("It is the intent of the Legislature that in construing

this section the courts will be guided by the interpretations given

by the Federal Trade Commission and the Federal Courts to Section

45(a)(1) of the Federal Trade Commission Act (15 U.S.C.

§ 45(a)(1)), as from time to time amended.").

The Maine courts have looked generally to the FTCA to

determine whether "the act or practice causes or is likely to cause

substantial injury to consumers which is not reasonably avoidable

by consumers themselves and not outweighed by countervailing

benefits to consumers or to competition." Searles v. Fleetwood

Homes of Pa., Inc., 878 A.2d 509, 519 n.10 (Me. 2005) (quoting 15

U.S.C. § 45(n)) (internal quotation marks omitted).

Further, "[i]n determining whether an act or practice is

unfair," Maine courts "consider established public policies as

evidence to be considered with all other evidence. Such public

policy considerations may not serve as a primary basis for such

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determination." Id. (quoting 15 U.S.C. § 45(n)) (internal

quotation marks omitted).

The Maine UTPA provides for two different enforcement

mechanisms: enforcement by the state's Attorney General, Me. Rev.

Stat. tit. 5, § 209, and a private cause of action, id. § 213. The

Attorney General may seek injunctive relief and may also seek civil

penalties for violation of the injunction, including restoration to

private individuals of any ascertainable loss. Id. § 209. The

issue here concerns the limits for private causes of action.

Section 213, entitled "Private Remedies," as amended in

1991, provides a private cause of action under the statute:

Any person who purchases or leases goods,
services or property, real or personal,
primarily for personal, family or household
purposes and thereby suffers any loss of money
or property, real or personal, as a result of
the use or employment by another person of a
method, act or practice declared unlawful by
section 207 or by any rule or regulation
issued under section 207, subsection 2 may
bring an action either in the Superior Court
or District Court for actual damages,
restitution and for such other equitable
relief, including an injunction, as the court
determines to be necessary and proper.

Id. § 213(1).

The text requires that the plaintiff suffer a loss of

money or property as a result of the unlawful act.6 By virtue of

6
Given our disposition, we do not reach Hannaford's
argument on cross-appeal that there is an absence of loss resulting
from the purchase of goods or services.

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a 1991 amendment, damages may be awarded, as well as restitutionary

relief. By its literal terms, section 213 does not itself impose

a substantial loss requirement, but the Maine Law Court has so

interpreted the statute when considering section 207 in conjunction

with section 213. See McKinnon v. Honeywell Int'l, Inc., 977 A.2d

420, 427 (Me. 2009) ("[A] plaintiff [must] suffer 'loss of money or

property' before bringing a private action to recover . . . [and]

the injury suffered must be substantial.").

The parties actively dispute whether plaintiffs' claims,

viewed individually, make out substantial injury, or whether, given

the nature of the event, plaintiffs' claims of harm may be viewed

as a collective whole as to substantial injury. In Tungate v.

MacLean-Stevens Studios, Inc., the Law Court said that "[t]he

substantial injury requirement is designed to weed out 'trivial or

merely speculative harms.'" 714 A.2d 792, 797 (Me. 1998) (quoting

Legg v. Castruccio, 642 A.2d 906, 917 (Md. Ct. Spec. App. 1994))

(holding that a $1.25 commission on a $7.00 product did not rise to

the level of substantial injury for purposes of establishing a

violation under section 207). We do not view the subject matter of

this suit as "trivial" or "merely speculative." We see no case in

Maine sufficiently like this one to give us clear guidance on this

question and are reluctant to venture where the Maine courts have

not.

What is clear is that the Maine courts have consistently

read the private right of action provision of the UTPA narrowly.

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See, e.g., McKinnon, 977 A.2d at 427 (interpreting the provision's

requirement that plaintiffs suffer "loss of money or property" to

mean "substantial" loss); Bartner v. Carter, 405 A.2d 194, 202-03

(Me. 1979) (rejecting a "broad" definition of "restitution" in

favor of a narrower "technical" definition); see also Hoglund ex

rel. Johnson v. DiamlerChrysler Corp., 102 F. Supp. 2d 30, 31 (D.

Me. 2000) ("Historically, however, the Law Court has interpreted

the UTPA's private remedial provision narrowly."). This is one

purpose of the substantial injury requirement. See McKinnon, 977

A.2d at 427 ("The substantial injury requirement is a limitation on

the use of the UTPA for a private cause of action."). This narrow

application of the private right of action section is consistent

with the Maine legislature's choice of statutory language, which is

narrower than that of other states. E.g., compare Me. Rev. Stat.

tit. 5, § 213(1) (restricting the private right of action to a

"person who purchases or leases goods, services or property"), with

Mass. Gen. Laws ch. 93A, § 9(1) (allowing "[a]ny person . . . who

has been injured" to bring a private action even if that person is

not a consumer and not otherwise in privity with the purchaser).

In the seminal case interpreting the private right of

action provision of the Maine UTPA, the Law Court in Bartner v.

Carter pointed out that "[i]n a private suit, the requirement of

loss to the plaintiff consumer resulting from defendant's wrongful

act unavoidably limits" both the scope of section 207 and the use

of the FTCA and its interpretation. 405 A.2d at 201. The court

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commented that the Maine legislature was concerned about the

possible coercive and improper use of the private cause of action,

and that was one rationale for the narrowing. Id. at 201-02.

Pertinently, the court also pointed out, in discussing

the restrictions on recovery in private actions under section 213,

that "[c]ommon law actions for negligence and breach of warranty

are available in appropriate cases for non-restitutionary damages

in situations where personal injuries or damages to property have

occurred." Id. at 203.

It seems unlikely to us that Maine would permit

plaintiffs, in cases also pleading that the same acts constitute

negligence and breach of implied contract, to use the private

action provision of the UTPA to recover types of damages which

Maine has decided are not reasonably foreseeable or barred for

policy reasons when asserted under implied contract, negligence, or

other theories. In Searles, the Law Court was explicit that public

policy considerations factor into interpretation of the UTPA. See

878 A.2d at 519 n.10. As this opinion holds elsewhere, most of

plaintiffs' damages claims fail for those reasons. As to the

recoverable amounts for mitigation of damages under negligence and

implied contract, we see no reason why Maine law would not consider

those recoveries under those theories sufficient.7

7
We recognize that attorney's fees are available under the
Maine UTPA "[i]f the court finds, in any action commenced under
[section 213] that there has been a violation of [section] 207."
Me. Rev. Stat. tit. 5, § 213(2); see also Beaulieu v. Dorsey, 562

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B. Failure to Allege Cognizable Injury

To summarize, plaintiffs' claims under the Maine UTPA and

for a breach of fiduciary relationship fail, but plaintiffs have

adequately alleged at least theories of negligence and breach of

implied contract. That a general theory of recovery has been

adequately pled does not, though, resolve the next question of

whether the particular types of damages alleged are recoverable

under those theories. We draw a distinction for our analysis among

plaintiffs' various claims of damages between those which are best

characterized as mitigation costs and those which are not.

1. Mitigation Damages: Card Replacement Costs and
Credit Insurance

Under Maine negligence law, damages must be both

reasonably foreseeable, and, even if reasonably foreseeable, of the

type which Maine has not barred for policy reasons. Generally,

under Maine law, "the fundamental test [for both tort and contract

recovery] is one of reasonable foreseeability: if the loss or

injury for which damages are claimed was not reasonably foreseeable

under the circumstances, there is no liability." Horton & McGehee,

Maine Civil Remedies § 4-3(b)(3) (4th ed. 2004). But liability in

A.2d 678 (Me. 1989). But we are doubtful the Maine courts would
extend these provisions of the UTPA on these facts simply to allow
recovery of attorney's fees for mitigation costs. Even the
attorney's fees provisions have been recognized as having limits.
See Dudley v. Wyler, 647 A.2d 90, 92 (Me. 1994) (denying attorney's
fees where plaintiff established a violation of section 207 but
failed to show the loss of money or property required to recover
under section 213).

-21-
negligence also "ordinarily requires proof of personal injury or

property damage." In re Hannaford, 4 A.3d at 496. The Maine Law

Court has explained that although reasonable foreseeability "may

set tolerable limits for most types of physical harm, it provides

virtually no limit on liability for nonphysical harm." Cameron v.

Pepin, 610 A.2d 279, 283 (Me. 1992) (emphasis omitted) (quoting

Thing v. La Chusa, 771 P.2d 814, 826 (Cal. 1989)) (internal

quotation mark omitted). In cases of nonphysical harm, Maine

courts limit recovery by considering not only reasonable

foreseeability, but also relevant policy considerations such as

"societal expectations regarding behavior and individual

responsibility in allocating risks and costs." Alexander v.

Mitchell, 930 A.2d 1016, 1020 (Me. 2007).

Maine courts have weighed these considerations in the

context of mitigation costs and determined that a plaintiff may

"recover for costs and harms incurred during a reasonable effort to

mitigate," regardless of whether the harm is nonphysical. In re

Hannaford, 4 A.3d at 496. The Maine Law Court has expressly said

so both in its response to the certified questions and in its

decision to apply the Restatement (Second) of Torts § 919. The

Restatement (Second) of Torts § 919 provides that "[o]ne whose

legally protected interests have been endangered by the tortious

conduct of another is entitled to recover for expenditures

reasonably made or harm suffered in a reasonable effort to avert

the harm threatened." Id. § 919(1). It is clear that, as a matter

-22-
of policy, Maine law "encourages plaintiffs to take reasonable

steps to minimize losses caused by a defendant's negligence." In

re Hannaford, 4 A.3d at 496. To recover mitigation damages,

plaintiffs need only show that the efforts to mitigate were

reasonable, and that those efforts constitute a legal injury, such

as actual money lost, rather than time or effort expended. Id. at

496-97.

Maine has interpreted this "reasonableness" requirement

for mitigation, judging whether the decision to mitigate was

reasonable "at the time it was made." Marchesseault v. Jackson,

611 A.2d 95, 99 (Me. 1992). In Marchesseault, the plaintiff

brought a claim for breach of contract after the defendant built a

faulty foundation for the plaintiff's house. The court allowed as

mitigation costs expenditures made in an unsuccessful effort to

remedy the major defects in the foundation rather than destroy the

foundation and have it rebuilt. Plaintiff recovered those damages

because his efforts to mitigate, while unsuccessful, were a

reasonable attempt to avoid further loss. Id.

There is not a great deal of Maine law on the subject.

And the Law Court's decision on the certified question appears to

be the first time the Maine courts have applied § 919 of the

Restatement. So we turn to the decisions of other courts under the

Restatement, which provide guidance for Maine. See, e.g.,

Marchesseault, 611 A.2d 95 at 99 (turning to other jurisdictions

for guidance in deciding whether to allow recovery of unsuccessful

-23-
repair costs as mitigation damages under the Restatement (Second)

of Contracts); Marois v. Paper Converting Mach. Co., 539 A.2d 621,

623-24 (Me. 1988) ("Decisions of other courts, however, do

interpret the Restatement [(Second) of Torts] and are helpful in

the development of our own law."). Other courts' decisions

applying § 919 are helpful to plaintiffs' claims. These courts

award mitigation costs even when it is not certain at the time that

these costs are needed, when mitigation costs are sought but other

damages are unavailable, and when mitigation costs exceed the

amount of actual damages.

The Seventh Circuit, for example, has held that under

Restatement § 919 incidental costs expended in good faith to

mitigate harm are recoverable -- even if the costs turn out to

exceed the savings. See Toledo Peoria & W. Ry. v. Metro Waste

Sys., Inc., 59 F.3d 637 (7th Cir. 1995) (applying Illinois law).

In Toledo, the plaintiff sued to recover for damages sustained to

several of its locomotive engines. As to one of the engines, the

plaintiff sought to recover both the replacement value of the

engine and the cost of attempted repairs, which later turned out to

be unsuccessful. The court held it was error to have excluded

evidence of the cost of the attempted repairs and allowed the

plaintiff full recovery because "[a]ny other result would

effectively penalize [the plaintiff] for fulfilling its obligation

under Illinois law to minimize its damages." Id. at 641.

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 In Kelleher v. Marvin Lumber & Cedar Co., 891 A.2d 477

(N.H. 2005), the New Hampshire Supreme Court, applying Restatement

§ 919, held that a plaintiff who found rot damage in a number of

his property's windows could recover for the cost of replacing

those windows in order to prevent water leakage and other damage to

the property. The court allowed the plaintiff to recover the cost

of the new windows as reasonable mitigation damages notwithstanding

the court's determination that recovery for the rotting windows

themselves was barred by the economic loss doctrine. Id. at 496-

97.

The Fourth Circuit has noted, applying Restatement § 919,

that plaintiffs should not face "a Hobson's choice" between

allowing further damage to occur or mitigating the damage at their

own expense. Toll Bros., Inc. v. Dryvit Sys., Inc., 432 F.3d 564,

570 (4th Cir. 2005) (applying Connecticut law). In Toll, a real

estate developer removed and replaced defective stucco from homes

that it built, and sued the stucco manufacturer in negligence to

recover its costs. The court concluded that, as a matter of

policy, a plaintiff may recover the cost of its reasonable attempts

to mitigate, even if the injury is "wholly financial" in nature.

Id.

In Fogel v. Zell, 221 F.3d 955 (7th Cir. 2000), the

court, applying Illinois law, determined that under Restatement

§ 919 a city which had installed a defectively manufactured sewer

pipe "would have been entitled by the doctrine of mitigation of

-25-
damages to remove the pipe or take other prophylactic or reparative

measures, and to seek restitution of the expense of doing so from

[the manufacturer], provided the expense was prudent in the

circumstances." Id. at 960-61.

In a Massachusetts case, Automated Donut Systems, Inc. v.

Consolidated Rail Corp., 424 N.E.2d 265 (Mass. App. Ct. 1981), the

court applied Restatement § 919 to hold that a shipper could

recover the cost of reasonable, but unsuccessful, efforts to repair

goods damaged by a railway carrier because allowing recovery would

effectuate a policy of encouraging injured parties to avoid loss.

Id. at 270-71.

The question then becomes whether plaintiffs' mitigation

steps were reasonable. This is a contextual question, depending on

the facts. Like the district court, we will view all facts in the

light most favorable to the plaintiffs.

This case involves a large-scale criminal operation

conducted over three months and the deliberate taking of credit and

debit card information by sophisticated thieves intending to use

the information to their financial advantage. Unlike the cases

cited by Hannaford, this case does not involve inadvertently

misplaced or lost data which has not been accessed or misused by

third parties. Here, there was actual misuse, and it was

apparently global in reach. The thieves appeared to have expertise

in accomplishing their theft, and to be sophisticated in how to

take advantage of the stolen numbers. The data was used to run up

-26-
thousands of improper charges across the globe to the customers'

accounts. The card owners were not merely exposed to a

hypothetical risk, but to a real risk of misuse.

Further, there is no suggestion there was any way to sort

through to predict whose accounts would be used to ring up improper

charges. By the time Hannaford acknowledged the breach, over 1,800

fraudulent charges had been identified and the plaintiffs could

reasonably expect that many more fraudulent charges would follow.

Hannaford did not notify its customers of exactly what data, or

whose data, was stolen. It reasonably appeared that all Hannaford

customers to have used credit or debit cards during the class

period were at risk of unauthorized charges.

That many banks or issuers immediately issued new cards

is evidence of the reasonableness of replacement of cards as

mitigation. Those banks thought the cards would be subject to

unauthorized use, and cancelled those cards to mitigate their own

losses in what was a commercially reasonable judgment. That other

financial institutions did not replace cards immediately does not

make it unreasonable for cardholders to take steps to protect

themselves.

It was foreseeable, on these facts, that a customer,

knowing that her credit or debit card data had been compromised and

that thousands of fraudulent charges had resulted from the same

security breach, would replace the card to mitigate against misuse

-27-
of the card data.8 It is true that the only plaintiffs to allege

having to pay a replacement card fee, Cyndi Fear and Thomas Fear,

do not allege that they experienced any unauthorized charges to

their account, but the test for mitigation is not hindsight.

Similarly, it was foreseeable that a customer who had experienced

unauthorized charges to her account, such as plaintiff Lori

Valburn, would reasonably purchase insurance to protect against the

consequences of data misuse.9

Hannaford opposes this conclusion and cites several cases

from other jurisdictions holding, on the facts before them, that

8
Under the Truth in Lending Act, 15 U.S.C. § 1643, and the
Electronic Fund Transfer Act, 15 U.S.C. § 1693g, cardholders are
liable for up to $50 in unauthorized charges, with the exception
that under the Electronic Fund Transfer Act, a cardholder can be
liable for up to $500 if the holder fails to report the fraud
within two days.
It may be, as Hannaford suggests, that major card brands
have instituted contractual zero-liability protection, with the
result that customers are not liable for any amount of a fraudulent
charge. But at the motion to dismiss stage, we cannot say that
customers face no risk of even a $50 liability from unauthorized
use. Nor is Hannaford's argument directly relevant: it does not
change the fact that in these circumstances it is entirely
reasonable for customers to attempt to mitigate harm to themselves.
9
Hannaford argues that because the plaintiffs allege no
loss of personally identifying information, plaintiff Lori Valburn
had no reasonable basis for purchasing "identity theft" insurance.
The plaintiffs explain that "[a]lthough it was labeled 'identity
theft insurance,' the product purchased by Ms. Valburn from
Discover Card protected her against the consequences of misuse of
the data that had been stolen including the losses and disruptions
documented in the Complaint." At the motion to dismiss stage, we
draw all reasonable inferences in favor of the plaintiff, including
the inference that the product purchased by plaintiff Valburn
protected her against misuse of her stolen debit and credit card
data.

-28-
the costs of credit monitoring services and identity theft

insurance are not cognizable injuries in negligence claims.10 All

of these cases are distinguishable on their facts.

Most of the cases involved theft of expensive computer

equipment, rather than a sophisticated breach of electronic data.

See Ruiz v. Gap, Inc., 622 F. Supp. 2d 908 (N.D. Cal. 2009); Caudle

v. Towers, Perrin, Forster & Crosby, Inc., 580 F. Supp. 2d 273

(S.D.N.Y. 2008); Kahle v. Litton Loan Servicing LP, 486 F. Supp. 2d

705 (S.D. Ohio 2007); Randolph v. ING Life Ins. & Annuity Co., 486

F. Supp. 2d 1 (D.D.C. 2007). In contrast with the facts here, the

plaintiffs in those cases not only failed to allege "that

plaintiff[s] or any member[s] of the putative class [had] been the

victim[s] of identity fraud or theft," Caudle, 580 F. Supp. 2d at

277, but also failed to allege "that the person stealing the

[computer or] hard drive was motivated by a desire to access the

data and had the capabilities to do so," id. at 282. These courts

reasoned that because "there [was] no evidence that the thieves or

10
Hannaford also argues that allowing recovery for
prophylactic measures such as identity theft insurance would
provide incentives for the unnecessary purchase of such products.
As we have discussed, however, such recovery is bounded by the
principle of reasonableness; recovery is allowable only if the
decision to purchase such a product was a reasonable effort to
mitigate under the circumstances. See Marchesseault v. Jackson,
611 A.2d 95, 99 (Me. 1992). For example, where neither the
plaintiff nor those similarly situated have experienced fraudulent
charges resulting from a theft or loss of data, the purchase of
credit monitoring services may be unreasonable and not recoverable.
Cf. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 639-40 (7th Cir.
2007). By contrast, such insurance may be reasonable in
circumstances like those here.

-29-
other unauthorized individuals were able to access that information

or if accessed that it [was] used for unlawful purposes[,] . . .

any injury of Plaintiff[s] [was] purely speculative." Kahle, 486

F. Supp. 2d at 712-13. Here, by contrast, the thieves were

sophisticated; they targeted Hannaford's data directly; and they

used that data to ring up thousands of charges to customer

accounts, including the accounts of many of the plaintiffs.

Another of the cases involved a computer hard drive that

was inadvertently lost. See Melancon v. La. Office of Student Fin.

Assistance, 567 F. Supp. 2d 873 (E.D. La. 2008). In Melancon,

unlike the present case, it was "undisputed that no personal data

[had] been compromised and Plaintiffs [had] failed to offer

evidence that any third party [had] gained access to the data."

Id. at 877. Because the case did not involve actual theft or

misuse, the court held that the plaintiffs did not have a

reasonable basis for purchasing credit monitoring services and

could not claim those costs as cognizable damages.11

11
Several other courts, in cases not cited by Hannaford,
have likewise concluded that where data is simply lost or misplaced
rather than stolen, and no known misuse has occurred, plaintiffs
may not recover damages including credit monitoring costs. See
McLoughlin v. People's United Bank, Inc., No. 3:08-cv-00944(VLB),
2009 WL 2843269 (D. Conn. Aug. 31, 2009); Willey v. J.P. Morgan
Chase, N.A., No. 09 Civ. 1397(CM), 2009 WL 1938987 (S.D.N.Y. July
7, 2009); Shafran v. Harley-Davidson, Inc., No. 07 Civ. 01365(GBD),
2008 WL 763177 (S.D.N.Y. Mar. 20, 2008). In McLoughlin, for
example, "there [was] no allegation as to the fate of the missing
box of tapes. They could have been inadvertently discarded or
destroyed, or they could be collecting dust in some forgotten
warehouse." 2009 WL 2843269 at *7. "It is only through
speculation," the court explained, "that one concludes that [the

-30-
 Only two of Hannaford's cited cases involve a breach in

which thieves accessed the plaintiffs' data held by defendants.

See Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629 (7th Cir. 2007)

(hackers breached a bank website and stole the personal and

financial data of tens of thousands of the bank's customers);

Hendricks v. DSW Shoe Warehouse Inc., 444 F. Supp. 2d 775, 777

(W.D. Mich. 2006) (hackers accessed "the numbers and names

associated with approximately 1,438,281 credit and debit cards and

96,385 checking account numbers and drivers' license numbers" that

were on file with a national shoe retailer). But even in those

cases, the plaintiffs failed to allege "that they or any other

member of the putative class already had been the victim of

identity theft as a result of the breach." Pisciotta, 499 F.3d at

632; see also Hendricks, 444 F. Supp. 2d at 779. These courts

reasoned that in the absence of unauthorized charges as to the

plaintiffs or those similarly situated, the plaintiffs there lacked

a reasonable basis for fearing there would be unauthorized charges

to their accounts as a result of the theft. That very reasoning

suggests that these courts would reach a different result if the

lost tapes] are in possession of an individual who is driven to
maliciously mine the tapes for the personal data that they contain.
Accordingly, this is not a 'risk of injury' case but rather a
speculation as to a possible risk of injury." Id. The court
concluded that because the plaintiffs' "claim [was] founded solely
on the fear, unsupported by any allegation of malfeasance, of
identity theft," the plaintiffs could not recover. Id. at *8.
Here, by contrast, thieves accessed and misused the data, resulting
in thousands of fraudulent charges to Hannaford customers,
including plaintiffs.

-31-
plaintiffs alleged that they had suffered fraudulent charges to

their accounts. Here, plaintiff Valburn purchased theft insurance

only after learning of an unauthorized $500 cash withdrawal from

her account and speaking with the fraud unit at Discover Card.

Knowing her personal data had been breached and misused, and

knowing the thieves were sophisticated and had rung up thousands of

unauthorized charges, plaintiff Valburn had a reasonable basis for

purchasing identity theft insurance to avoid further damage.

Hannaford also argues that even if these damages are

cognizable in negligence, they are not cognizable in contract. In

support of this argument, Hannaford cites the Maine Law Court's

statement, in its answer to the certified questions, that "contract

damages are more restricted than compensatory damages for a tort."

In re Hannaford, 4 A.3d at 497. While true, that statement is

inapplicable here. As explained by the Law Court and the body of

precedent on which it relied, contract damages are more restricted

in that they disallow "recovery of damages for mental or emotional

distress suffered solely as the result of a breach of contract,"

even if foreseeable. Rubin v. Matthews Int'l Corp., 503 A.2d 694,

696 (Me. 1986); see also Stull v. First Am. Title Ins. Co., 745

A.2d 975, 981 (Me. 2000); Marquis v. Farm Family Mut. Ins. Co., 628

A.2d 644, 651 (Me. 1993). Plaintiffs' claims for identity theft

insurance and replacement card fees involve actual financial losses

from credit and debit card misuse. Under Maine contract law, these

financial losses are recoverable as mitigation damages so long as

-32-
they are reasonable. See, e.g., Marchesseault, 611 A.2d at 99;

Restatement (Second) of Contracts § 350 & cmt. h ("[C]osts incurred

in a reasonable but unsuccessful effort to avoid loss are

recoverable.").

2. Remaining Damages Claims

General principles of recovery in both contract and tort,

which are not applicable to the mitigation damages we have

discussed, do bar the plaintiffs' remaining claims. The district

court correctly concluded that the plaintiffs' claims for loss of

reward points, loss of reward point earning opportunities, and fees

for pre-authorization changes were not recoverable.12 These

injuries were too attenuated from the data breach because they were

incurred as a result of third parties' unpredictable responses to

the cancellation of plaintiffs' credit or debit cards. See Stubbs

v. Bartlett, 478 A.2d 690 (Me. 1984) (concluding that a wife's loss

of medical insurance was too attenuated an injury where it arose

from a car accident that caused her husband to lose his job and his

12
We reject the plaintiffs' argument that the question of
foreseeability vel non should have gone to the jury and the
district court had no role to play. The district court was correct
to consider initially foreseeability as a question of law. In
addressing the certified questions, the Law Court indicated that
some harms are too far attenuated as a matter of law to constitute
cognizable injury in Maine. See In re Hannaford Bros. Co. Customer
Data Sec. Breach Litig., 4 A.3d 492, 496-97 (Me. 2010). Indeed,
the plaintiffs later acknowledge as much when they argue that
"[o]nly if it is clear that no reasonable jury could find that the
specific element of consequential damages was or should have been
foreseeable . . . can the court step in and rule out a particular
element of loss as unforeseeable as a matter of law."

-33-
employer-provided medical insurance). We doubt that under Maine

law it is reasonably foreseeable that an issuing bank would deny a

cardholder's entitlement to accumulated points when the card has

merely been replaced with a new one. Nor, under Maine law, is it

reasonably foreseeable that pre-authorization arrangements, which

are usually in the merchant's interest and are accordingly

free-of-charge to set up, would involve change fees in the event of

a credit or debit card replacement. Moreover, we do not think

Maine, as a policy matter, would find such damages compensable.

III.

We conclude that the two forms of mitigation damages we

have discussed are cognizable under Maine law and we reverse the

district court's dismissal of the plaintiffs' negligence and

implied contract claims as to those damages. We affirm the

district court's dismissal of the remaining claims. So ordered.

No costs are awarded.

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