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Friday, August 24, 2007

Ind. Decisions - One from 7th Circuit Thursday

In Pisciotta et al v. Old National Bancorp (SD Ind., Judge McKinney), a 21-page opinion, Judge Ripple writes:

Plaintiffs Luciano Pisciotta and Daniel Mills brought this action on behalf of a putative class of customers and potential customers of Old National Bancorp (“ONB”). They alleged that, through its website, ONB had solicited personal information from applicants for banking services, but had failed to secure it adequately. As a result, a third-party computer “hacker” was able to obtain access to the confidential information of tens of thousands of ONB site users. The plaintiffs sought damages for the harm that they claim to have suffered because of the security breach; specifically, they requested compensation for past and future credit monitoring services that they have obtained in response to the compromise of their personal data through ONB’s website. ONB answered the allegations and then moved for judgment on the pleadings under Rule 12(c). The district court granted ONB’s motion and dismissed the case. The plaintiffs timely appeal. For the reasons set forth in this opinion, we affirm the judgment of the district court. * * *

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. Plaintiffs have not come forward with a single case or statute, from any jurisdiction, authorizing the kind of action they now ask this federal court, sitting in diversity, to recognize as a valid theory of recovery under Indiana law. We decline to adopt a “substantive innovation” in state law, Combs v. Int’l Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004), or “to invent what would be a truly novel tort claim” on behalf of the state, Insolia, 216 F.3d at 607, absent some authority to suggest that the approval of the Supreme Court of Indiana is forthcoming. See Todd, 21 F.3d at 1412 (noting that federal courts should be wary of broadening untested theories of liability under state law); see also Insolia, 216 F.3d at 607 (noting that we would neither recognize independently nor certify a question to the state regarding “every creative but unlikely state cause of action that litigants devise from a blank slate”); Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir. 1996) (favoring narrow interpretation of undecided issues of liability under state law); Ry. Express Agency, Inc. v. Super Scale Models, Ltd., 934 F.2d 135, 138 (7th Cir. 1991) (noting that “recent opinions of this court have strongly encouraged district courts to dismiss actions based on novel state law claims”).

In sum, all of the interpretive tools of which we routinely make use in our attempt to determine the content of state law point us to the conclusion that the Supreme Court of Indiana would not allow the plaintiffs’ claim to proceed.

Conclusion Because we conclude that the damages that the plaintiffs seek are not compensable as a matter of Indiana law, we affirm the judgment of the district court.

Posted by Marcia Oddi on August 24, 2007 11:21 AM
Posted to Ind. (7th Cir.) Decisions