Webb v. Injured Workers Pharmacy, LLC

          United States Court of Appeals
                     For the First Circuit


No. 22-1896

   ALEXSIS WEBB, on behalf of herself and all others similarly
   situated; MARSCLETTE CHARLEY, on behalf of herself and all
                   others similarly situated,

                     Plaintiffs, Appellants,

                               v.

                 INJURED WORKERS PHARMACY, LLC,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                 Kayatta, Lynch, and Montecalvo,
                         Circuit Judges.


     David K. Lietz, with whom Milberg Coleman Bryson Phillips
Grossman, PLLC, Raina C. Borrelli, and Turke & Strauss, LLP were
on brief, for appellants.
     Claudia D. McCarron, with whom Jordan S. O'Donnell and Mullen
Coughlin LLC were on brief, for appellee.


                          June 30, 2023
            LYNCH, Circuit Judge.   Named plaintiffs Alexsis Webb and

Marsclette Charley brought this putative class action against

defendant Injured Workers Pharmacy, LLC ("IWP"), asserting various

state law claims in relation to a January 2021 data breach that

allegedly    exposed   their   personally   identifiable   information

("PII") and that of over 75,000 other IWP patients.        The district

court concluded that the plaintiffs' complaint did not plausibly

allege an injury in fact and dismissed the case for lack of Article

III standing.     See Webb v. Injured Workers Pharmacy, LLC, No.

22-cv-10797, 

2022 WL 10483751

, at *2 (D. Mass. Oct. 17, 2022).

            We hold that the complaint plausibly demonstrates the

plaintiffs' standing to seek damages.       The plaintiffs press five

causes of action seeking damages, each of which encompasses at

least one of the harms that we hold satisfy the requirements of

Article III standing.     The complaint plausibly alleges an injury

in fact as to Webb based on the allegations of actual misuse of

her PII to file a fraudulent tax return.       Further, the complaint

plausibly alleges an injury in fact as to both plaintiffs based on

an imminent and substantial risk of future harm as well as a

present and concrete harm resulting from the exposure to this risk.

We also hold that the plaintiffs lack standing to pursue injunctive

relief because their desired injunctions would not likely redress

their alleged injuries.    We affirm in part, reverse in part, and

remand for further proceedings.


                                 - 2 -
                                     I.

                                     A.

            We recount the facts as they appear in the plaintiffs'

complaint     and   in   documents   attached       to    the   complaint   or

incorporated therein.     Hochendoner v. Genzyme Corp., 

823 F.3d 724, 728

 (1st Cir. 2016).

            IWP is a home-delivery pharmacy service registered and

headquartered in Massachusetts.            It maintains records of its

patients' full names, Social Security numbers, and dates of birth,

as well as information concerning their financial accounts, credit

cards, health insurance, prescriptions, diagnoses, treatments,

healthcare providers, and Medicare/Medicaid IDs.                Much of this

information    constitutes    PII.        See,    e.g.,   United   States   v.

Cruz-Mercedes, 

945 F.3d 569, 572

            (1st Cir. 2019).         Patients

provided their PII in order to receive IWP's services, and IWP

kept that PII.      IWP represented to patients that it would keep

their PII secure.

            In January 2021, IWP suffered a data breach.              Hackers

infiltrated IWP's patient records systems, gaining access to the

PII of over 75,000 IWP patients, and stole PII including patient

names and Social Security numbers.1              IWP did not discover this


     1    IWP stated in a notice letter to potentially impacted
patients that "an unknown actor accessed a total of seven . . .
IWP e-mail accounts" over a four-month period.      The complaint
alleges that hackers "infiltrated IWP's patient records systems."


                                 - 3 -
breach until May 2021, almost four months later.          In the interim,

the hackers were able to continue accessing PII.              On learning of

the breach, IWP did not immediately alert its patients.              Instead,

it initiated a seven-month investigation and worked to implement

new data security safeguards.

          IWP did not begin notifying impacted patients until

February 2022, when it circulated a notice letter.              This notice

provided a high-level description of the breach                but, in the

plaintiffs' view, did not fully convey its size or scope.                 The

notice stated that IWP "currently ha[d] no evidence that any

information ha[d] been misused."       It also "encourage[d] [patients]

to . . . review[] [their] account statements and monitor[] [their]

credit reports for suspicious activity" and referred patients to

a guidance document on protecting their personal information.             IWP

has not offered to provide, at its own expense, credit monitoring

and identity protection services to all impacted patients.

          Alexsis   Webb   is   a    former   IWP   patient    who   received

services from IWP between 2017 and 2020.            She is a resident of

Ohio.   In February 2022, IWP notified her that her PII had been

compromised in the data breach. As a result, Webb allegedly "fears

for her personal financial security and [for] what information was



The plaintiffs appear to agree that the "initial attack vector"
was into IWP employee email accounts but contend that this allowed
the hackers to access additional system information.


                                    - 4 -
revealed in the [d]ata [b]reach," "has spent considerable time and

effort monitoring her accounts to protect herself from . . .

identity theft," and "is experiencing feelings of anxiety, sleep

disruption, stress, and fear" because of the breach.                    Webb's PII

was used to file a fraudulent 2021 tax return, and she has

"expended   considerable     time"    communicating       with    the     Internal

Revenue Service ("IRS") to resolve issues associated with this

false return.

            Marsclette Charley is a current IWP patient who has

received services from IWP since 2016.               She is a resident of

Georgia.    Like Webb, she became aware in February 2022 that her

PII had been compromised in the breach.          She called IWP to confirm

that her information was stolen, but IWP's representatives would

not   provide   her   with   specific      details   as   to     what    types   of

information were accessed.        As a result of the breach, Charley

allegedly "fears for her personal financial security," "expends

considerable time and effort monitoring her accounts to protect

herself from . . . identity theft," and "is experiencing feelings

of rage and anger, anxiety, sleep disruption, stress, fear, and

physical pain."

                                      B.

            On May 24, 2022, Webb and Charley filed a class action

complaint against IWP in the U.S. District Court for the District

of Massachusetts, invoking the court's jurisdiction under the


                                     - 5 -
Class Action Fairness Act of 2005 ("CAFA"), 

28 U.S.C. § 1332

(d).

The complaint asserts state law claims for negligence, breach of

implied contract, unjust enrichment, invasion of privacy, and

breach    of    fiduciary   duty.2     The   complaint   seeks    damages,   an

injunction "[e]njoining [IWP] from further deceptive and unfair

practices and making untrue statements about the [d]ata [b]reach

and the stolen PII," other injunctive and declaratory relief "as

is necessary to protect the interests of [the] [p]laintiffs and

the [c]lass," and attorneys' fees.           It seeks to certify a class of

U.S. residents whose PII was compromised in the data breach.

               On August 9, 2022, IWP moved to dismiss the complaint on

two bases: under Federal Rule of Civil Procedure ("Rule") 12(b)(1),

for lack of Article III standing, and under Rule 12(b)(6), for

failure to state a claim as to each of the complaint's asserted

claims.    The plaintiffs opposed the motion.

               On October 17, 2022, the district court granted IWP's

motion and dismissed the case under Rule 12(b)(1).               Webb, 

2022 WL 10483751

, at *2.       The court concluded that the plaintiffs lacked

Article III standing because their complaint did not plausibly

allege an injury in fact.        

Id.

    As to the complaint's allegation

that a fraudulent tax return was filed in Webb's name, the court



     2    The complaint also asserts a state law claim for
negligence per se. The plaintiffs agreed to voluntarily dismiss
this claim in their district court briefing.


                                     - 6 -
reasoned   that    the   complaint    did    not   sufficiently   allege    a

connection between the data breach and this false return.            See 

id.

at *2 n.4.       As to the complaint's other allegations, the court

reasoned that the potential future misuse of the plaintiffs' PII

was not sufficiently imminent to establish an injury in fact and

that actions to safeguard against this risk could not confer

standing either.      See id. at *2.        Because it dismissed the case

under Rule 12(b)(1), the court did not reach IWP's Rule 12(b)(6)

arguments.   Id. at *1 n.2.

           This timely appeal followed.

                                     II.

           The      plaintiffs'      complaint      must   meet    standing

requirements based on Article III of the Constitution, which limits

"[t]he judicial Power" to "Cases" and "Controversies." U.S. Const.

art. III, § 2, cl. 1; see In re: Evenflo Co., Inc., Mktg., Sales

Pracs. & Prods. Liab. Litig., 

54 F.4th 28

, 34 (1st Cir. 2022).

"The existence of standing is a legal question, which we review de

novo."   Evenflo, 54 F.4th at 34 (quoting Kerin v. Titeflex Corp.,

770 F.3d 978, 981

 (1st Cir. 2014)).                "When reviewing a pre-

discovery grant of a motion to dismiss for lack of standing, we

accept as true all well-pleaded fact[s] . . . and indulge all

reasonable   inferences     in    the      plaintiff[s']   favor."         

Id.

(alterations and omission in original) (internal quotation marks

omitted) (quoting Kerin, 

770 F.3d at 981

).            "[W]e apply the same


                                  - 7 -
plausibility    standard     used   to   evaluate    a    motion   under    Rule

12(b)(6)."     Gustavsen v. Alcon Lab'ys, Inc., 

903 F.3d 1, 7

 (1st

Cir. 2018). At this stage in the proceedings, our analysis focuses

on whether the two named plaintiffs have standing.                   See id.;

Hochendoner, 

823 F.3d at 730, 733-34

; 1 W. Rubenstein, Newberg and

Rubenstein on Class Actions §§ 2:1, 2:3 (6th ed. June 2023 update).

          "[P]laintiffs bear the burden of demonstrating that they

have standing," TransUnion LLC v. Ramirez, 

141 S. Ct. 2190, 2207

(2021), and must do so "with the manner and degree of evidence

required at the successive stages of the litigation," 

id.

 at 2208

(quoting Lujan v. Defs. of Wildlife, 

504 U.S. 555, 561

 (1992)).

Plaintiffs "must demonstrate standing for each claim that they

press and for each form of relief that they seek."                   

Id.

    "To

establish standing, a plaintiff must show an injury in fact caused

by the defendant and redressable by a court order."            United States

v. Texas, No. 22-58, slip op. at 4 (U.S. June 23, 2023); see

Evenflo, 54 F.4th at 34.

          At    issue   in   this   appeal   is     the   "injury    in    fact"

requirement -- and, in particular, the requirement that this injury

be "concrete."     "[T]raditional tangible harms, such as physical

harms and monetary harms" are "obvious[ly]" concrete.              TransUnion,

141 S. Ct. at 2204

.          Intangible harms can also be concrete,

including when they "are injuries with a close relationship to

harms traditionally recognized as providing a basis for lawsuits


                                    - 8 -
in American courts," such as "reputational harms, disclosure of

private information, and intrusion upon seclusion."     Id.; see also

Spokeo, Inc. v. Robins, 

578 U.S. 330, 340-41

 (2016). This "inquiry

asks whether plaintiffs have identified a close historical or

common-law analogue for their asserted injury," but "does not

require an exact duplicate."    TransUnion, 

141 S. Ct. at 2204

.

           "[A] material risk of future harm can [also] satisfy the

concrete-harm requirement," but only as to injunctive relief, not

damages.   

Id. at 2210

; see 

id. at 2210-11

.      To have standing to

pursue damages based on a risk of future harm, plaintiffs must

demonstrate a separate concrete harm caused "by their exposure to

the risk itself."    

Id. at 2211

.

           Applying these principles in TransUnion, the Supreme

Court concluded that only a portion of the certified class in that

case had standing to pursue the claim that TransUnion, a credit

reporting agency, had failed to use reasonable procedures in

maintaining its credit files.       See 

id. at 2200, 2208

.   The class

comprised individuals whose TransUnion credit reports bore alerts

erroneously suggesting that they might be terrorists or other

serious criminals.   

Id. at 2201-02

.    The Court held that the 1,853

class members whose credit reports TransUnion disseminated to

third parties had standing, because this injury bore a sufficiently

close relationship to "the reputational harm associated with the

tort of defamation."   

Id. at 2208

.     That the credit reports "were


                                - 9 -
only misleading and not literally false" did not defeat standing,

because "an exact duplicate" of a traditionally recognized harm is

not required.    

Id. at 2209

.

          However, the remaining 6,332 class members whose credit

reports were not disseminated to third parties lacked standing.

Id. at 2212

. The Court first considered whether the mere existence

of misleading alerts in these plaintiffs' internal TransUnion

credit files (absent dissemination) was a concrete injury and

concluded that it was not.      See 

id. at 2209-10

.      The Court then

rejected the plaintiffs' effort to establish standing for damages

on a risk of future harm theory, reasoning that they had not

demonstrated    that   they   "were    independently   harmed   by   their

exposure to the risk itself -- that is, that they suffered some

other injury . . . from the mere risk that their credit reports

would be provided to third-party businesses."          

Id. at 2211

; see

id. at 2210-11

.    The Court noted that emotional harm might supply

the requisite concrete, present injury but did not reach this

question because the plaintiffs had not claimed any such injury.

See 

id.

 at 2211 & n.7.

                                  III.

                                      A.

          We begin with Webb's standing to pursue damages.              We

conclude that the complaint plausibly alleges a concrete injury in

fact as to Webb based on the plausible pleading that the data


                                 - 10 -
breach resulted in the misuse of her PII by an unauthorized third

party (or third parties) to file a fraudulent tax return.3

           Our data security precedents support the conclusion that

actual misuse of PII may constitute an injury in fact.    In Katz v.

Pershing, LLC, 

672 F.3d 64

 (1st Cir. 2012), we concluded that the

named plaintiff lacked standing to sue as to her state law consumer

protection claims that the defendant had employed inadequate data

security   practices.    See   

id. at 69-70

.   We   stated   that

"[c]ritically, the complaint [did] not contain an allegation that

[her] nonpublic personal information ha[d] actually been accessed

by any unauthorized user" -- let alone subsequently misused -- but

rather "rest[ed] entirely on the hypothesis that at some point an

unauthorized, as-yet unidentified, third party might access her

data and then attempt to purloin her identity."    

Id. at 79

.     The

alleged harm in that case was not "impending" because it was

"unanchored to any actual incident of data breach."      

Id. at 80

.

And the plaintiff could not manufacture standing by incurring

mitigation costs in the absence of an impending harm.     See 

id.

 at



     3    The claims asserted in the plaintiffs' complaint all
arise from the IWP data breach, and neither party argues that the
standing inquiry differs with respect to any claim. Accordingly,
we treat the claims together throughout our analysis.          See
TransUnion, 

141 S. Ct. at 2213-14

 (assessing standing for
"intertwined" claims together); Evenflo, 54 F.4th at 35 (similar);
Clemens v. ExecuPharm Inc., 

48 F.4th 146, 156-59

 (3d Cir. 2022)
(employing same underlying standing analysis for contract, tort,
and "secondary contract" claims in data breach case).


                               - 11 -
79.   We distinguished the case from those "in which confidential

data actually has been accessed through a security breach and

persons involved in that breach have acted on the ill-gotten

information."      Id. at 80 (emphasis added).4

            We hold that the complaint's plausible allegations of

actual misuse of Webb's stolen PII to file a fraudulent tax return

suffice to state a concrete injury under Article III.                 This

conclusion accords with the law of other circuits.          See, e.g., In

re Equifax Inc. Customer Data Sec. Breach Litig., 

999 F.3d 1247, 1262

 (11th Cir. 2021) (identifying both "identity theft and damages

resulting   from    such   theft"   as   concrete   injuries);   Attias   v.

CareFirst, Inc., 

865 F.3d 620, 627

 (D.C. Cir. 2017) ("Nobody doubts

that identity theft, should it befall one of these plaintiffs,

would constitute a concrete and particularized injury.").




      4   Our decision in Anderson v. Hannaford Brothers Co., 

659 F.3d 151

 (1st Cir. 2011), is also instructive.       To be clear,
Anderson did not concern Article III standing. It did, however,
discuss the types of harms that can arise out of data misuse
following a data breach. 

Id. at 162-67

. In that case, we reversed
the district court's dismissal of certain state law claims because
the plaintiffs' alleged mitigation costs were incurred in response
to a serious data breach and actual misuse of PII and were thus
"reasonable" and "constitute[d] a cognizable harm under Maine
law." 

Id. at 154, 164

; see 

id. at 162-67

. The data breach involved
"the deliberate taking of credit and debit card information by
sophisticated thieves" and the "actual misuse" of this information
to "run up thousands of improper charges across the globe." 

Id. at 164

; see 

id. at 154

.    We concluded that "[t]he [plaintiffs]
were not merely exposed to a hypothetical risk, but to a real risk
of misuse." 

Id. at 164

.


                                    - 12 -
               The district court concluded that the complaint did not

plausibly allege a connection between the data breach and the

filing of the false tax return.           See Webb, 

2022 WL 10483751

, at *2

n.4.     We disagree.      In our view, the complaint plausibly alleges

a connection between the actual misuse of Webb's PII and the data

breach.     In applying the plausibility standard required at the

motion    to    dismiss    stage,   we    "[must]     draw   on   [our]   judicial

experience and common sense . . . [and] read [the complaint] as a

whole."        Evenflo, 54 F.4th at 39 (alterations and omission in

original)        (internal     quotation        marks        omitted)     (quoting

García-Catalán v. United States, 

734 F.3d 100, 103

 (1st Cir.

2013)).     We must also "indulge all reasonable inferences in the

plaintiff[s'] favor." Id. at 34 (alteration in original) (internal

quotation marks omitted) (quoting Kerin, 

770 F.3d at 981

).

               There is an obvious temporal connection between the

filing of the false tax return and the timing of the data breach.

Further, the complaint's allegation that Webb's PII was "used by

an unauthorized individual" to file a false tax return is made in

the context of allegations relating to harms Webb has suffered

because of the data breach.           The complaint also alleges that Webb

is "very careful about sharing her PII," "has never knowingly

transmitted      unencrypted    PII      over   the   internet     or   any   other

unsecured source," and stores documents containing her PII in a

secure location.          The obvious inference to be drawn from these


                                      - 13 -
allegations is that the criminal or criminals who filed the false

tax return obtained Webb's PII from the IWP data breach, not from

some other source.   And the complaint alleges that, as a result of

the data breach and IWP's conduct, the plaintiffs "have suffered

or are at an increased risk of suffering . . . [d]elay in receipt

of tax refund monies . . . [and the] [u]nauthorized use of stolen

PII."   These general allegations provide further support for a

plausible connection.    See In re: SuperValu, Inc., Customer Data

Sec. Breach Litig., 

870 F.3d 763, 772

 (8th Cir. 2017) (holding

that, at the motion to dismiss stage, a complaint's "'general

allegations embrace[d] those specific facts . . . necessary to

support' a link between [a plaintiff's] fraudulent charge and the

data breaches" (quoting     Bennett v.   Spear, 

520 U.S. 154, 168

(1997))).

            We reject IWP's argument that the alleged actual misuse

is not itself a concrete injury absent even more resulting harm to

Webb. As described above, we agree with those courts that consider

actual misuse of a plaintiff's PII resulting from a data breach to

itself be a concrete injury.   See, e.g., Equifax, 

999 F.3d at 1262

;

Attias, 

865 F.3d at 627

.    And beyond that, applying a TransUnion

analysis, this alleged actual misuse is closely related to the

tort of invasion of privacy based on appropriation of another's

name or likeness, which "protect[s] . . . the interest of the

individual in the exclusive use of his own identity, in so far as


                               - 14 -
it is represented by his name or likeness, and in so far as the

use may be of benefit to him or to others."          Restatement (Second)

of Torts § 652C cmt. a (Am. L. Inst. 1977); see id. § 652C cmt. b

(noting that while some states have "limited . . . liability [by

statute] to commercial uses of the name or likeness," the general

rule is "not limited to commercial appropriation"); see also 

141 S. Ct. at 2204

.

                                  B.

          Charley's standing to pursue damages is more difficult.

The complaint does not allege actual misuse of Charley's PII.

Nonetheless,   we   conclude   that,    in   light    of   the   plausible

allegations of some actual misuse, the complaint plausibly alleges

a concrete injury in fact based on the material risk of future

misuse of Charley's PII and a concrete harm caused by exposure to

this risk.5    This analysis is equally applicable to Webb and

provides an independent basis for our conclusion that the complaint

plausibly demonstrates standing as to Webb.


     5    The plaintiffs do not argue that the exposure of their
PII in the breach was itself an intangible harm sufficient to
confer standing -- for example, by analogy to the torts of breach
of confidence or invasion of privacy based on public disclosure of
private information. Cf. TransUnion, 

141 S. Ct. at 2209

 (analyzing
similar "initial question" before turning to the plaintiffs' risk
of future harm theory).    Accordingly, we do not consider this
question.   And to the extent the plaintiffs seek to establish
standing based on an alleged "diminution [in] value" of their PII,
they have waived this argument by raising it for the first time in
their reply brief.    See, e.g., United States v. Abdelaziz, No.
22-1129, 

2023 WL 3335870

, at *41 n.36 (1st Cir. May 10, 2023).


                               - 15 -
                                        1.

             "[A]    material   risk    of    future     harm   can    satisfy     the

concrete-harm requirement," at least as to injunctive relief, when

"the risk of harm is sufficiently imminent and substantial."

TransUnion, 

141 S. Ct. at 2210

; see also Susan B. Anthony List v.

Driehaus, 

573 U.S. 149

, 158 (2014); Clapper v. Amnesty Int'l USA,

568 U.S. 398

, 414 n.5 (2013).

             Many of the same factors we have considered in other

data breach cases inform our conclusion as to standing in this

case.   Plaintiffs face a real risk of misuse of their information

following a data breach when their information is deliberately

taken   by   thieves     intending     to    use   the   information         to   their

financial advantage -- i.e., exposed in a targeted attack rather

than inadvertently.          And the actual misuse of a portion of the

stolen information increases the risk that other information will

be misused in the future.

             We     stress   that    these     considerations          are    neither

exclusive    nor     necessarily    determinative,        but   they    do    provide

guidance.    See, e.g., McMorris v. Carlos Lopez & Assocs., LLC, 

995 F.3d 295, 302

        (2d Cir. 2021)         ("[D]etermining standing is an

inherently fact-specific inquiry . . . .").                These considerations

accord with other circuits' approach to determining when the risk

of future misuse of PII following a data breach is imminent and

substantial.        The Second Circuit considers:


                                     - 16 -
          (1) whether the plaintiffs' data has been
          exposed as the result of a targeted attempt to
          obtain that data; (2) whether any portion of
          the dataset has already been misused, even if
          the plaintiffs themselves have not yet
          experienced identity theft or fraud; and (3)
          whether the type of data that has been exposed
          is sensitive such that there is a high risk of
          identity theft or fraud.

Id. at 303

; see also 

id. at 300-03

 (explaining the relevance of

these factors).6   The Third Circuit also considers these factors.

See Clemens v. ExecuPharm Inc., 

48 F.4th 146, 153-54, 157

 (3d Cir.

2022).   Both circuits emphasize that these factors are "non-

exhaustive."   McMorris, 

995 F.3d at 303

; Clemens, 

48 F.4th at 153

.

Other circuits look to similar considerations.   See McMorris, 

995 F.3d at 300-03

 (collecting cases and synthesizing principles).

          It stands to reason that data compromised in a targeted

attack is more likely to be misused.    See Anderson, 

659 F.3d at 164

; see also, e.g., McMorris, 

995 F.3d at 301

; Clemens, 

48 F.4th at 153

; Galaria v. Nationwide Mut. Ins. Co., 

663 F. App'x 384, 388

(6th Cir. 2016); Remijas v. Neiman Marcus Grp., LLC, 

794 F.3d 688, 693

 (7th Cir. 2015); In re Zappos.com, Inc., Customer Data Sec.

Breach Litig., 

888 F.3d 1020

, 1029 n.13 (9th Cir. 2018); In re:




     6    McMorris and many of the other circuit cases discussed
below were decided before TransUnion. Nevertheless, we think the
factors the Second Circuit listed remain relevant to assessing the
risk of future PII misuse.     See Clemens v. ExecuPharm Inc., 

48 F.4th 146, 153-54, 157

 (3d Cir. 2022) (citing McMorris and applying
similar factors post-TransUnion).


                              - 17 -
U.S. Off. of Pers. Mgmt. Data Sec. Breach Litig., 

928 F.3d 42

, 58-

59 (D.C. Cir. 2019) ("OPM").

            That at least some information stolen in a data breach

has already been misused also makes it likely that other portions

of the stolen data will be similarly misused.                See Anderson, 

659 F.3d at 164

;    see   also,   e.g.,   McMorris,    

995 F.3d at 301-02

;

Remijas, 

794 F.3d at 693-94

; Zappos.com, 

888 F.3d at 1027

 n.7;

OPM, 

928 F.3d at 58-59

.

            And the risk of future misuse may be heightened where

the compromised data is particularly sensitive.                "Naturally, the

dissemination of high-risk information such as Social Security

numbers and dates of birth -- especially when accompanied by

victims' names -- makes it more likely that those victims will be

subject to future identity theft or fraud."            McMorris, 

995 F.3d at 302

; see also Clemens, 

48 F.4th at 154

; OPM, 

928 F.3d at 49, 59

;

Attias, 

865 F.3d at 628

.          In contrast, the risk of future misuse

may be lower where the stolen data is "less sensitive, . . . such

as basic publicly available information, or data that can be

rendered useless to cybercriminals."            McMorris, 

995 F.3d at 302

;

see also Tsao v. Captiva MVP Rest. Partners, LLC, 

986 F.3d 1332, 1343

 (11th Cir. 2021) (emphasizing fact that plaintiff did not

allege that his Social Security number or date of birth were

compromised    in    data   breach);      SuperValu,   

870 F.3d at 770-71

(similar).


                                    - 18 -
          We hold that the totality of the complaint plausibly

alleges an imminent and substantial risk of future misuse of the

plaintiffs' PII.   The complaint alleges that the data breach was

the result of an attack by "cybercriminals" who "infiltrated IWP's

patient records systems" and "stole[] PII."     These hackers were,

by IWP's own admission, able to compromise multiple employee email

accounts and to remain undetected for almost four months.       The

complaint further alleges that at least some of the stolen PII has

already been misused to file a fraudulent tax return in Webb's

name.   And the complaint alleges that the stolen PII "include[s]

. . . patients' names and [S]ocial [S]ecurity numbers."   We do not

hold that individuals face an imminent and substantial future risk

in every case in which their information is compromised in a data

breach. But on the facts alleged here, the complaint has plausibly

demonstrated such a risk.

                                2.

          To establish standing to pursue damages, the complaint

must also plausibly allege a separate concrete, present harm caused

"by [the plaintiffs'] exposure to [this] risk [of future harm]."

TransUnion, 

141 S. Ct. at 2211

.      We conclude that the complaint

has done so based on the allegations of the plaintiffs' lost time

spent taking protective measures that would otherwise have been




                              - 19 -
put to some productive use.7           See Compl. ¶¶ 13, 56 (alleging

"opportunity costs" and "lost wages" associated with "the time and

effort expended addressing . . . future consequences of the [d]ata

[b]reach").

           The    complaint    alleges      that    both   plaintiffs    spent

"considerable    time   and   effort   monitoring      [their]    accounts   to

protect [themselves] from . . . identity theft."                 The complaint

elsewhere identifies the harms of lost time as "[l]ost opportunity

costs and lost wages."        The loss of this time is equivalent to a

monetary injury, which is indisputably a concrete injury.               See 

id. at 2204

; see also Dieffenbach v. Barnes & Noble, Inc., 

887 F.3d 826, 828

 (7th Cir. 2018) (Easterbrook, J.) (recognizing that the

opportunity cost of "one's own time needed to set things straight"

following a data breach "can justify money damages, just as [it]

support[s] standing"); In re: Gen. Motors LLC Ignition Switch

Litig.,   

339 F. Supp. 3d 262, 307

      (S.D.N.Y.   2018)    ("[T]he

overwhelming majority of states adhere to the view that lost-time

damages are the equivalent of lost earnings or income.").8              We join


     7    The complaint does not allege that Webb or Charley
purchased identity theft insurance or credit monitoring services
or incurred similar mitigation costs. See TransUnion, 

141 S. Ct. at 2204

; see also, e.g., Clemens, 

48 F.4th at 156

; Hutton v. Nat'l
Bd. of Exam'rs in Optometry, Inc., 

892 F.3d 613, 622

 (4th Cir.
2018).
     8    Because we conclude that the complaint plausibly alleges
the loss of time that would otherwise have been put to profitable
use, we do not consider whether the loss of personal time is either
a tangible injury or an intangible injury with a "close historical


                                   - 20 -
other circuits in concluding that time spent responding to a data

breach can constitute a concrete injury sufficient to confer

standing, at least when that time would otherwise have been put to

profitable use.       See, e.g., Clemens, 

48 F.4th at 158

; Hutton v.

Nat'l Bd. of Exam'rs in Optometry, Inc., 

892 F.3d 613, 622

 (4th

Cir. 2018); Galaria, 

663 F. App'x at 388-89

; Lewert v. P.F. Chang's

China Bistro, Inc., 

819 F.3d 963, 967

 (7th Cir. 2016); Equifax,

999 F.3d at 1262

.

          Because      this   alleged    injury   was   a   response   to   a

substantial and imminent risk of harm, this is not a case where

the plaintiffs seek to "manufacture standing by incurring costs in

anticipation of non-imminent harm."        Clapper, 

568 U.S. at 422

; see

also, e.g., McMorris, 

995 F.3d at 303

; Hutton, 

892 F.3d at 622

.

                                    C.

          The     complaint's      allegations      also     satisfy    the

traceability    and    redressability    standing   requirements.       The

complaint alleges that IWP's actions led to the exposure and actual

or potential misuse of the plaintiffs' PII, making their injuries

fairly traceable to IWP's conduct.         See Evenflo, 54 F.4th at 41;

Lexmark Int'l, Inc. v. Static Control Components, Inc., 

572 U.S. 118

, 134 n.6 (2014) ("Proximate causation is not a requirement of



or common-law analogue." TransUnion, 

141 S. Ct. at 2204

; cf. Gen.
Motors LLC, 

339 F. Supp. 3d at 307

 ("[M]ost states do not treat
lost personal time as a compensable form of injury.").


                                  - 21 -
Article III standing, which requires only that the plaintiff's

injury be fairly traceable to the defendant's conduct.").                "And

monetary    relief    would   compensate    [the    plaintiffs]    for   their

injur[ies], rendering the injur[ies] redressable."                Evenflo, 54

F.4th at 41.

                                     D.

            Defendants do not contend that the plaintiffs' ability

to pursue emotional distress as a specific category of damages

presents an independent Article III standing issue even after

plaintiffs have shown an actual injury supporting their claim for

damages generally under each cause of action, and for good reason.

"It is firmly established in our cases that the absence of a valid

.   .   .   cause    of   action   does    not    implicate   subject-matter

jurisdiction, i.e., the courts' statutory or constitutional power

to adjudicate the case."           Steel Co. v. Citizens for a Better

Environment, 

523 U.S. 83, 89

 (1998).             On the appeal before us we

consider only whether the plaintiffs have "demonstrate[d] standing

for each claim that they press and for each form of relief that

they seek."    TransUnion, 

141 S.Ct. at 2208

.         Having concluded that

plaintiffs have supported each of their five causes of action for

damages with at least one injury in fact caused by the defendant

and redressable by a court order, we venture no further.                   Cf.

Attias, 

865 F.3d at 626

 n.2 (declining to address standing based

on past identity theft because the risk of future identity theft,


                                   - 22 -
along with associated mitigation expenses, sufficed to confer

standing); Linman v. Marten Transp., Ltd., No. 22-CV-204-JDP, 

2023 WL 2562712

, at *3 (W.D. Wis. Mar. 17, 2023) (finding time spent

mitigating the risk of identity theft sufficient for standing and

declining    to       decide   whether    other   alleged    injuries   such   as

emotional distress are sufficient); TransUnion, 

141 S. Ct. at 2211

& n.7.    Whether the plaintiffs have stated a claim for damages

specifically arising out of their emotional distress is a question

for IWP's 12(b)(6) motion which, as discussed below, we do not

reach.

                                         IV.

            We    next    consider   the       plaintiffs'   standing   to   seek

injunctive relief.         We conclude that the plaintiffs lack standing

to pursue such relief because their requested injunctions are not

likely to redress their alleged injuries.              See Lujan, 

504 U.S. at 568-71

.

            The only allegation in the complaint that injunctive

relief is necessary is that plaintiffs' "PII [is] still maintained

by [IWP] with [its] inadequate cybersecurity system and policies."

Naturally,       an     injunction       requiring    IWP    to   improve      its

cybersecurity systems cannot protect the plaintiffs from future

misuse of their PII by the individuals they allege now possess it.

Any such relief would safeguard only against a future breach.




                                     - 23 -
               But the plaintiffs do not allege that any such future

breach will occur.            "Standing for injunctive relief depends on

'whether [the plaintiffs are] likely to suffer future injury.'"

Laufer v. Acheson Hotels, LLC, 

50 F.4th 259, 276

 (1st Cir. 2022)

(quoting City of Los Angeles v. Lyons, 

461 U.S. 95, 105

 (1983)).

Here, any available inference that IWP's prior data breach might

make    a    future    data    breach    more    likely    is    undercut    by    the

plaintiffs' own allegation that "[f]ollowing the [d]ata [b]reach,

IWP implemented new security safeguards to prevent and mitigate

data breaches -- measures that should have been in place before

the data breach."          Instead, IWP faces much the same risk of future

cyberhacking as virtually every holder of private data.                      If that

risk    were      deemed   sufficiently    imminent       to   justify    injunctive

relief, virtually every company and government agency might be

exposed      to    requests   for   injunctive     relief       like   the   one   the

plaintiffs seek here.           We decline to hold as much.              Because the

plaintiffs have not shown that their requested injunction would

likely redress their alleged injuries, they lack standing to pursue

that form of relief.          Cf. Lujan, 

504 U.S. at 568-71

.

               The plaintiffs also request that the district court

"[e]njoin[] [IWP] from further deceptive and unfair practices and

making untrue statements about the [d]ata [b]reach and the stolen

PII."       But nowhere do the plaintiffs allege that IWP is likely to

make deceptive statements about that past breach in the future or


                                        - 24 -
that any such statements would harm the plaintiffs, particularly

now that they know about the breach.    Here, too, the plaintiffs'

requested injunction would have no chance of redressing any alleged

injury, and they lack standing to pursue it.

                                   V.

           We do not reach IWP's Rule 12(b)(6) arguments.       The

district court did not rule on these arguments, see Webb, 

2022 WL 10483751

, at *1 n.2, and will have the opportunity to do so in the

first instance on remand, see, e.g., Evenflo, 54 F.4th at 41.

                                VI.

           For the foregoing reasons, we affirm in part, reverse in

part, and remand for further proceedings consistent with this

opinion.   No costs are awarded.




                              - 25 -