Jill H. Fertel, Esq. and Conor Hafertepe, Esq., attorneys in Cipriani & Werner, P.C.’s Cybersecurity Litigation Practice, won a valuable dismissal in the case of Danny Roll v. Upper Peninsula Power Company, in Michigan state court in Marquette County.

Plaintiff Danny Roll had previously filed a class action complaint in the Western District of Michigan, Case No. 2:22-cv-224 against Upper Peninsula Power Company (“UPPCO”), a utility company servicing customers in Michigan’s Upper Peninsula, after it was victimized by a sophisticated cyberattack.  In February of 2022, after UPPCO filed a motion to dismiss, the United States District Court for the Western District of Michigan dismissed Mr. Roll’s case for lack of diversity jurisdiction.

Plaintiff Roll filed a new class action complaint in Michigan state court, alleging claims of negligence and breach of express and implied contract against UPPCO.  Plaintiff Roll’s complaint alleged that due to the data breach, he had suffered an increase in the likelihood of identity theft and fraud, loss of time associated with the prevention and detection of identity theft and fraud, and future time effort and money that he predicted he would spend preventing, detecting and repairing the impact of future identity theft or fraud.

Cipriani & Werner, on behalf of Defendant UPPCO, filed a motion to dismiss Plaintiff Roll’s Class Action Complaint.  Among other arguments, UPPCO argued that under Michigan law, a present injury, not merely a risk of future injury, was necessary to state a claim for negligence and breach of contract.  Cipriani & Werner also advised the court that Plaintiff Roll had filed an identical complaint in another data breach in July of 2021.  Because Plaintiff Roll had not alleged that he had suffered any identity theft or fraud at the time of his Complaint, but only alleged an increased risk of future identity theft or fraud that could not be distinguished from his prior lawsuit, Plaintiff Roll had failed to state a claim for negligence or breach of contract.

Plaintiff Roll disagreed, arguing that the possibility of future injury was sufficient to state a claim.  At oral argument, Plaintiff Roll asked the trial court to ignore Michigan law and apply rulings from other jurisdictions.  Nevertheless, the judge agreed with UPPCO and found that under Michigan law, Plaintiff Roll had not suffered a cognizable injury and therefore had not adequately stated any of his claims.  Accordingly, the judge dismissed the case in its entirety, marking a significant victory for Defendant UPPCO.

If you have any questions about this case or any other cybersecurity matter, please contact Jill Fertel, Esq. at JFertel@c-wlaw.com or (610) 567-0700.