Forbes v. Wells Fargo Bank, N.A., 420 F. Supp. 2d 1018 (D. Minnesota 2006). · Go Syfert
Forbes v. Wells Fargo Bank, N.A., 420 F. Supp. 2d 1018 (D. Minnesota 2006). Cases Citing This Book View Copy Cite
“plaintiffs contend that the time and money they have spent monitoring their credit suffices to establish damages. however, a plaintiff can only recover for loss of time in terms of earning capacity or wages.”
45 citation events (45 in the last 25 years) across 17 distinct courts.
Strongest positive: In re Gen. Motors LLC (ilsd, 2018-09-12)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
examined Cited as authority (quoted) In re Gen. Motors LLC
S.D. Ill. · 2018 · signal: see also · quote attribution · 1 verbatim quote · confidence low
plaintiffs contend that the time and money they have spent monitoring their credit suffices to establish damages. however, a plaintiff can only recover for loss of time in terms of earning capacity or wages.
cited Cited as authority (rule) OmegaGenesis Corp. v. Mayo Foundation for Medical Education & Research
D. Minnesota · 2015 · confidence medium
Forbes v. Wells Fargo Bank, N.A., 420 F.Supp.2d 1018, 1021 (D.Minn.2006) (citing Jensen v. Duluth Area YMCA, 688 N.W.2d 574, 579 (Minn.Ct.App.2004)).
discussed Cited as authority (rule) In re Sony Gaming Networks & Customer Data Security Breach Litigation
S.D. Cal. · 2014 · confidence medium
"Under the medical monitoring cases, individuals who have been exposed to potentially harmful substances but have no presently detectable illnesses may recover the costs of future medical surveillance by showing 'through reliable expert testimony,' (1) the 'significance and extent of exposure,’ (2) the 'toxicity of [the contaminant], [and] the seriousness of the [harm]_for which the individuals are at risk,' and (3) the 'relative increase in the chance of _ [the harm] in those exposed,’ such that (4) ‘monitor[ing] the effects of exposure_is reasonable and necessary.' " Stollenwerk, 254 F…
discussed Cited as authority (rule) Worix v. MedAssets, Inc.
N.D. Ill. · 2012 · confidence medium
Mar. 24, 2009); Caudle v. Towers, Perrin, Forster & Crosby, Inc., 580 F.Supp.2d 273, 281-82 (S.D.N.Y.2008); Hendricks v. DSW Shoe Warehouse, Inc., 444 F.Supp.2d 775, 783 (W.D.Mich.2006); Forbes v. Wells Fargo Bank, N.A., 420 F.Supp.2d 1018, 1020-21 (D.Minn.2006).
discussed Cited as authority (rule) Paul v. Providence Health System-Oregon
Or. · 2012 · confidence medium
See Reilly v. Ceridian Corp., 664 F3d 38, 46 (3d Cir 2011) (increased risk of identity theft did not establish injury-in-fact for purposes of seeking credit monitoring expenses or other relief); Forbes v. Wells Fargo Bank, N.A., 420 F Supp 2d 1018, 1021 (D Minn 2006) (credit monitoring expenses are “not the result of any present injury, but rather anticipation of future injury that has not yet materialized”); Ruiz v. Gap, Inc., 622 F Supp 2d 908, 918 (ND Cal 2009), aff'd, 380 Fed Appx 689 (9th Cir 2010) (no claim for credit monitoring expenses because plaintiff “has no actual damages to …
discussed Cited as authority (rule) Randolph v. ING LIFE INSURANCE AND ANNUITY CO.
D.C. · 2009 · confidence medium
Assistance, 567 F.Supp.2d 873 (E.D.La.2008) (mere possibility that personal student financial aid information may have been at increased risk did not constitute actual injury sufficient to maintain a claim for negligence); Stollenwerk v. Tri-West Health Care Alliance, 254 Fed.Appx. 664 (9th Cir.2007) (upholding grant of summary judgment for defendant where plaintiffs, whose personal information was on defendant's stolen computer hard drives, “produced evidence of neither significant exposure of their information nor a significantly increased risk that they will be harmed by its misuse”); K…
discussed Cited as authority (rule) In Re Hannaford Bros. Co. Customer Data Security Breach Litigation (2×) also: Cited "see, e.g."
D. Me. · 2009 · confidence medium
Feb. 7, 2006); Forbes v. Wells Fargo Bank, N.A., 420 F.Supp.2d 1018, 1020-21 (D.Minn.2006).
discussed Cited as authority (rule) Ruiz v. Gap, Inc. (2×)
N.D. Cal. · 2009 · confidence medium
In Forbes v. Wells Fargo Bank, N.A., computers were stolen from a vendor of Wells Fargo Bank that contained unencrypted customer information. 420 F.Supp.2d 1018, 1019 (D.Minn.2006).
discussed Cited as authority (rule) Pinero v. Jackson Hewitt Tax Service Inc. (2×)
E.D. La. · 2009 · confidence medium
See Pisciotta v. Old Nat’l Bancorp., 499 F.3d 629, 639-40 (7th Cir.2007) (“without more than allegations of increased risk of future identity theft, the plaintiffs have not suffered a harm that the law is prepared to remedy”); Ponder v. Pfizer, Inc., 522 F.Supp.2d at 798 (plaintiff did not suffer damage since he did not allege “that someone actually used the disclosed information to his detriment”); Kahle v. Litton Loan Servicing LP, 486 F.Supp.2d 705, 712 (S.D.Ohio 2007) (plaintiff cannot recover when “no unauthorized use of her personal information has occurred”); Hendricks v. …
discussed Cited as authority (rule) Pisciotta, Luciano v. Old Nat'l Bancorp
7th Cir. · 2007 · confidence medium
Finding their reasoning persuasive, the district court concluded that “[t]he expenditure of money to monitor one’s credit is not the result of any present injury, but rather the anticipation of future injury that has not yet materialized.” Id. at 4 (citing Forbes v. Wells Fargo Bank, N.A., 420 F. Supp. 2d 1018, 1021 (D.
discussed Cited as authority (rule) Pisciotta v. Old National Bancorp
7th Cir. · 2007 · confidence medium
Finding their reasoning persuasive, the district court concluded that “[t]he expenditure of money to monitor one’s credit is not the result of any present injury, but rather the anticipation of future injury that has not yet materialized.” Id. at 4 (citing Forbes v. Wells Fargo Bank, N.A., 420 F.Supp.2d 1018, 1021 (D.Minn.2006)).
discussed Cited as authority (rule) Kahle v. Litton Loan Servicing, LP (2×)
S.D. Ohio · 2007 · confidence medium
Litton, relying on Forbes v. Wells Fargo Bank, N.A., 420 F.Supp.2d 1018, 1020 (D.Minn.2006), argues that the “threat of future harm, not yet realized, will not satisfy the damage requirement.” This type of “identity exposure” or “lost data” ease has not yet been considered by the Sixth Circuit; however, Judge Frost of this District Court has addressed a similar issue.
discussed Cited "see" In re: Netgain Technology, LLC Consumer Data Breach Litigation
D. Minnesota · 2022 · signal: see · confidence high
See Forbes v. Wells Fargo Bank, N.A., 420 F. Supp. 2d 1018 , 1019–20 (D.
discussed Cited "see" Caudle v. Towers, Perrin, Forster & Crosby, Inc.
S.D.N.Y. · 2008 · signal: see · confidence high
See Forbes v. Wells Fargo Bank, N.A., 420 F.Supp.2d 1018, 1021 (D.Minn.2006) (granting summary judgment in defendant’s favor on negligence and contract claims because time and money spent monitoring credit after computers containing sensitive information were stolen was not result of present injury); Kahle v. Litton Loan Servicing, LP, 486 F.Supp.2d 705, 712-13 (S.D.Ohio 2007) (granting defendant summary judgment because of plaintiffs failure to demonstrate injury as there was no evidence of identity fraud or that plaintiffs information was accessed); Guin v. Brazos Higher Educ.
cited Cited "see, e.g." In Re Hannaford Bros. Co. Customer Data Security Breach Litigation
D. Me. · 2009 · signal: see, e.g. · confidence low
See, e.g., Forbes v. Wells Fargo Bank, N.A., 420 F.Supp.2d 1018 (D.Minn.2006).
Retrieving the full opinion text from the archive…
Kristine FORBES (Lamke) and Morgan Koop, Plaintiffs,
v.
WELLS FARGO BANK, N.A., Defendant
Civ.052409(DSD/RLE).
District Court, D. Minnesota.
Mar 16, 2006.
420 F. Supp. 2d 1018
Thomas J. Lyons, and Lyons Law Firm, P.A., Little Canada, MN, for Plaintiffs., Charles F. Webber, Michael M. Krauss, and Faegre & Benson, LLP, Minneapolis, MN, for Defendant.
Doty.
Cited by 24 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 56%
Citer courts: S.D. Illinois (1)

ORDER

DOTY, District Judge.

This matter is before the court upon defendant’s motion for summary judgment. Based upon a review of the file, record and proceedings herein, and for the reasons stated, the court grants defendant’s motion.

BACKGROUND

The dispute in this matter arises from the allegedly negligent protection of personal data. Defendant Wells Fargo Bank (“Wells Fargo”) is a financial institution. Subsidiaries of Wells Fargo hired a service provider, Regulus Integrated Solutions (“Regulus”), to print monthly statements for certain home equity mortgage and student loan customers. On October 3, 2004, computers were stolen from Regulus that contained unencrypted customer information including names, addresses, Social Security numbers and account numbers. Plaintiffs Kristine Forbes and Morgan Koop were among the customers whose information was on one of the stolen computers.

On or about October 30, 2004, Wells Fargo mailed letters to plaintiffs and other potentially affected customers, notifying them of the computer theft and offering informational and identity protection' services. For purposes of this summary judgment motion, it is undisputed that plaintiffs have expended time and money to monitor their credit for any fraudulent use of their personal information. [1] To[*1020] date, there has been no indication that the information on the stolen computers has been accessed or misused.

On December 7, 2004, plaintiffs filed suit in Minnesota state court, alleging breach of contract, breach of fiduciary duty and negligence. Plaintiffs also requested certification of this matter as a class action. On October 13, 2005, Wells Fargo removed the case to this court. Wells Fargo now moves for summary judgment on all claims, [2] asserting that plaintiffs have failed to show damages.

DISCUSSION

1. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In order for the moving party to prevail, it must demonstrate to the court that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R.Civ.P. 56(c)). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. See id. at 252, 106 S.Ct. 2505.

On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the non-moving party. See id. at 255, 106 S.Ct. 2505. The non-moving party, however, may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Moreover, if a plaintiff cannot support each essential element of her claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. 2548.

II. Negligence Claim

Plaintiffs allege that Wells Fargo negligently allowed Regulus to keep customers’ private information without adequate security. To establish a negligence claim, a plaintiff must prove that (1) the defendant owed plaintiff a duty of care, (2) the defendant breached that duty, (3) the plaintiff sustained damage and (4) the breach of the duty proximately caused the damage. Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn.2005). A plaintiff may recover damages for an increased risk of harm in the future if such risk results from a present injury and indicates a reasonably certain future harm. See Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn.1977); Bryson v. Pillsbury Co., 573 N.W.2d 718, 721 (Minn.App.1998). Alone, however, “the threat of future harm, not yet realized, will not satisfy the damage requirement.” Reliance Ins. Co. v. Ameson, 322 N.W.2d 604, 607 (Minn.1982).

Plaintiffs contend that the time and money they have spent monitoring their credit suffices to establish damages. However, a plaintiff can only recover for loss of time in terms of earning capacity or[*1021] wages. See Cox v. Chicago Great W. R. Co., 176 Minn. 437, 223 N.W. 675, 677 (1929). Plaintiffs have failed to cite any Minnesota authority to the contrary. Moreover, they overlook the fact that their expenditure of time and money was not the result of any present injury, but rather the anticipation of future injury that has not materialized. In other words, the plaintiffs’ injuries are solely the result of a perceived risk of future harm. Plaintiffs have shown no present injury or reasonably certain future injury to support damages for any alleged increased risk of harm. For these reasons, plaintiffs have failed to establish the essential element of damages. [3] Therefore, summary judgment in favor of defendant on plaintiffs’ negligence claim is warranted.

III. Breach of Contract Claim

Plaintiffs also bring a claim for breach of contract against Wells Fargo. To establish their claim, plaintiffs must show that they were damaged by the alleged breach. See Jensen v. Duluth Area YMCA, 688 N.W.2d 574, 578-79 (Minn. App.2004). For all of the reasons discussed above, plaintiffs have failed to establish damages. Therefore, summary judgment in favor of defendant on plaintiffs’ breach of contract claim is warranted.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that defendant’s motion for summary judgment [Docket No. 2] is granted. LET JUDGMENT BE ENTERED ACCORDINGLY.

1

. In their complaint, plaintiffs also claim they suffered emotional distress, fear, anxiety and worry. (See Compl. ¶¶ 26, 34.) However, they have indicated that they no longer seek damages for emotional distress. (See Pis.’ Mem. Opp’n Def.’s Mot. Summ. J. at 2 n. 1.)

2

. Plaintiffs have indicated that they are not pursuing their claim for breach of fiduciary duty. (See Pis.' Mem. Opp'n Def.'s Mot. Summ. J. at 2 n. 1.) Therefore, the court will only address plaintiffs’ negligence and breach of contract claims.

3

. Plaintiffs also argue that statutory definitions of the crime of "identity theft” demonstrate that they have suffered damages. However, their argument fails for two reasons. First, plaintiffs have provided no legal basis for using criminal statutes to define damages in this negligence action. Second, even if the court could refer to such statutes, plaintiffs have failed to show that they are victims of identity theft. The crime of identity theft requires intent to use the identity information of another to commit, aid or abet any unlawful activity. See 18 U.S.C. § 1028(a)(7); Minn. Stat. § 609.527, subd. 2. Here, plaintiffs have not shown such intent or that anyone even accessed their identity information. See Guin v. Brazos Higher Educ. Serv. Corp., No. 05-668, 2006 WL 288483, at *5 (D.Minn. Feb. 7, 2006) (involving similar facts and finding no instance of identity theft). For these same reasons, the court also rejects plaintiffs' reliance on the definition of a victim's "loss” in identity theft criminal statutes and relevant sentencing guidelines.