In Attias v. CareFirst, Inc., 15-cv-00882-CRC (D.D.C. Mar. 28, 2023), the court’s application of TransUnion v. Ramirez, 141 S. Ct. 2190 (2021), reinforced that inclusion of uninjured class members in the class definition can defeat certification.  In CareFirst, Plaintiffs alleged that the data breach that CareFirst, Inc. (“CareFirst”), a health insurance company, suffered in 2014 exposed the plaintiffs to increased risk of fraud and identity theft.  Plaintiffs claimed they had to spend time and money on services such as credit and identity theft monitoring programs.  They sought to represent classes that included all CareFirst customers in certain states whose personal information was impacted by the breach, regardless of whether those customers incurred additional expenses as a result of the breach. 

            The court declined to certify the class, concluding that doing so would be inconsistent with TransUnion.  In applying TransUnion, the court explained that although the named plaintiffs had standing, the class, presently defined, would include a significant number of people who did not spend any time or money on mitigating services and thus did not suffer any Article III injury under TransUnion.  While recognizing that a modification to the class definition to limit its membership to “customers who spent time on protective measures because of the CareFirst breach” may be of some benefit in achieving certification, the court expressed skepticism over how such edification could overcome the practical difficulties associated with identifying class members who meet the definition.

              The CareFirst decision’s application of TransUnion emphasizes that including uninjured members in a class definition, or excluding them without a practical method of parsing them out, presents challenges for class certification.

Photo of Gawon Go Gawon Go

Gawon Go is a litigation associate who represents a wide variety of clients in complex commercial litigation, including antitrust, contract, and intellectual property.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.