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Plaintiffs’ lawyers are testing new theories and venues for class actions over personal data breaches involving consumers worried about identity theft � even as courts throw out cases that don’t involve actual damages. A current proposed class action against management consulting firm Towers Perrin involves plaintiffs whose personal information was stored on laptops stolen from the company. When the Stamford, Conn.-based company notified the plaintiffs of the data breach, it offered to foot the bill for one year of credit-monitoring services. The lawsuit’s claims include breach of contract, negligence, breach of fiduciary duty and breach of the duty of privacy. Terrell Caudle v. Towers, Perrin, Forster & Crosby Inc., No. 07-2480 (S.D.N.Y.). Attorney John Michael Dillon of Mamaroneck, N.Y., who represents the Towers Perrin plaintiffs, did not return a call for comment. Towers Perrin defense lawyer Christopher Wolf, a Washington partner at New York-based Proskauer Rose, declined to talk about the pending Towers case. But Wolf said lawsuits based on the fear of identity theft following a data breach are springing from 38 state laws requiring notification of data breaches, starting with California in 2003. “Absent a uniform national law, you’ll see plaintiff lawyers trying out permutations of their theory in various jurisdictions,” Wolf said. A critical case One of the most visible data-breach cases � filed by customers of Framingham, Mass., discount retailer The TJX Cos. Inc. � is at a critical juncture following a July 25 hearing on dismissal motions. The case involves class plaintiffs whose data was stolen, or in some cases compromised, by a data breach involving 45.7 million credit and debit card numbers. The claims include negligence, breach of contracts between TJX and the banks and credit card associations that benefited consumers, breach of implied contracts with customers and unfair trade practices under the Massachusetts Consumer Protection law. In re TJX Cos. Retail Security Breach Litigation, No. 07-10162 (D. Mass.). Jonathan Shapiro of Boston’s Stern, Shapiro, Weissberg & Garin and a plaintiffs’ lawyer on the case, said Massachusetts law and common law are broad enough to cover class members who had fraudulent claims on their credit accounts and those who didn’t following the TJX credit breach. Through a firm spokesman, lawyers at Boston-based Ropes & Gray representing TJX declined to comment on the litigation. Wolf noted that several federal court decisions � including a May order from the Southern District of Ohio granting summary judgment to the defendants � have rejected cases based on exposure to identity theft. Patricia A. Kahle v. Litton Loan Servicing, No. 05-756 (S.D. Ohio). “If a claim like the one in Ohio were allowed to proceed, floodgates would be open and damages would be posed in cases with no injury,” Wolf said. Bruce Allensworth, a Boston litigation partner at Kirkpatrick & Lockhart Preston Gates Ellis who defended Litton, expects similar litigation in other jurisdictions because identity theft is a major public issue. “It doesn’t mean there aren’t going to be other lawsuits trying to test that decision,” Allensworth said. Some plaintiffs’ lawyers are testing their luck with state laws, including an Illinois state court case against the Chicago Public Schools and a printing company for sending a list of employees’ Social Security numbers with a health care mailing. Cohen v. Chicago Public Schools, No. 06CH25694 (Cook Co., Ill., Cir. Ct.). Claims in the case, which has a dismissal hearing scheduled for Aug. 15, include violation of Illinois’ Personal Information Protection Act and Consumer Fraud and Deceptive Business Practices Act and violation of the common law of privacy. Marc N. Blumenthal, a plaintiffs’ lawyer on the Chicago schools case and a Chicago solo practitioner, said he has several other Illinois state cases involving Social Security number breaches. “The reason we may have a better shot [in state court is] there was a statute enacted in 2006 that specifically stated that Social Security numbers were protected,” Blumenthal said. Officials at Chicago Public Schools, which is handling the case in-house, did not return calls for comment.

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