SAN FRANCISCO (April 8, 2009) – Morrison & Foerster LLP secured a victory for Gap Inc. in an identity theft case filed by a former job applicant who made claims against the retailer after a third-party vendor’s laptop containing his personal data, along with that of other prospective employees, was stolen.
The U.S. District Court for the Northern District of California held the clothing retailer was not negligent in its handling of the data, and granted summary judgment to Gap, as well as to third-party vendor Vangent Inc., dismissing negligence claims. Additionally, the court refused the defendant, former job applicant Joel Ruiz, a request for class certification in Ruiz v. Gap Inc., N.D. Cal., No. 07-5739 SC.
In his ruling, Judge Samuel Conti said Mr. Ruiz’s claims, including his admission that his identity had not been misused despite the stolen data, did “not rise to the level of appreciable harm necessary to assert a negligence claim under California law …Ruiz presents no evidence showing there was an actual exposure of his personal information, much less that it was significant and extensive.”
The court also rejected claims that money Mr. Ruiz spent on monitoring his credit after hearing of the theft of the laptops in 2007 constituted compensable damages. The judge ruled citing a commensurate ruling by the Seventh Circuit Court of Appeals in Picotta v. Old National Bancorp, 499 F. 3d 629 (167 PRA, Aug. 29, 2007). Judge Conti disagreed with Mr. Ruiz’s claims that monitoring credit is analogous to monitoring medical issues after an individual has been exposed to toxic substances, saying the argument was “misplaced.”
The judge also rejected claims by Mr. Ruiz that Gap violated California law relating to the use of social security numbers to access Internet websites. Judge Conti held that Gap acted within California Civil Code Section 1798.85 because a social security number was not required to access Gap’s website.
Mr. Ruiz also failed in his claims against Vangent relating to the fact that encryption of data was not done, as was required by an agreement between Gap Inc. and the vendor, because he and a putative class were nor found to be third-party beneficiaries of the agreement.
Representing Gap Inc. was William Stern, a litigation partner based in Morrison & Foerster’s San Francisco office, with significant experience in privacy and data security litigation. Mr. Stern also serves as co-chair of the firm’s Consumer Litigation and Class Action practice group.