U.S. District Judge Jon Tigar, Northern District of California (S. Todd Rogers / The Recorder)
SAN FRANCISCO — In a win for Symantec Corp. and its lawyers at Fenwick & West, a federal judge has dismissed a putative class action accusing the company of promoting and selling antivirus software executives knew had been rendered unreliable by a data breach.
U.S. District Judge Jon Tigar ruled plaintiffs did not provide enough specific information to back up their claims that the Mountain View software company engaged in fraudulent business practices and deceptive advertising. Tigar, who had dismissed two prior complaints, denied plaintiffs leave to amend the complaint earlier this month and granted final judgment in Symantec’s favor Monday.
“Plaintiff responded to each dismissal by advancing essentially the same legal arguments and alleged no new facts necessary to state a claim,” Tigar wrote. “Plaintiff has given the court no reason to believe additional facts not heretofore alleged might be forthcoming in any fifth complaint.”
Plaintiffs alleged Symantec was hacked in 2006, potentially rendering Norton Antivirus and other related software ineffective and putting customers’ personal information at risk. Symantec executives suspected hackers had stolen their source code soon after the attack, according to the complaint, but they did not publicly announce the breach until 2012. An India-based hacking group, known as the Lords of Dharmaraja, forced executives’ hands by posting the confidential information on Pastebin.com, according to plaintiffs attorneys with Blood Hurst & O’Reardon in San Diego, The Coffman Law Firm in Texas and Barnow and Associates in Chicago. The data pertains to 2006 versions of the software, but elements remain relevant today, they wrote.
“Significant potential exists for the hackers to use the stolen source code to discern how to defeat the computer data security protections built into the now compromised Symantec products,” plaintiffs attorneys wrote.
Instead of coming clean to consumers about the potential dangers, Symantec continued its advertising campaigns, making claims such as, “Symantec and Norton have created the most trusted global brand for protecting information and identities online,” according to the complaint.
But Tigar handed a win to the Fenwick litigation team, led by partners Laurence Pulgram and Tyler Newby. The judge faulted the complaint because it failed to specify which advertisements, if any, named plaintiff Kathleen Haskins relied on when making her purchases.
“It is plain from the numerous iterations of the complaint in this action that plaintiff cannot allege that she saw any specific representation,” Tigar wrote.
Attorneys with Fenwick, as well as Blood Hurst, did not immediately return calls requesting comment.
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