COLLINS v. ATHENS ORTHOPEDIC CLINIC, P.A

307 Ga. 555

FINAL COPY

 S19G0007. COLLINS et al. v. ATHENS ORTHOPEDIC CLINIC,
                             P.A.


     PETERSON, Justice.

     When a criminal steals consumers’ sensitive personal data,

what do those consumers have to plead against the allegedly

negligent business from whom the data was stolen to show a legally

cognizable injury under Georgia tort law? The Court of Appeals has

held in cases involving the exposure of personal information that the

failure to show that the information had actually fallen into criminal

hands, let alone that the information was used to the consumers’

detriment, meant that plaintiffs had failed to show a legally

cognizable injury. But this case, which was dismissed on the

pleadings despite allegations of large-scale criminal activity, falls

into a different category of data-exposure cases. The plaintiffs here,

current or former patients of the defendant medical clinic, brought

a putative class action after the clinic informed them that a hacker
had stolen their personal data from the clinic. We conclude that the

injury the plaintiffs allege that they have suffered is legally

cognizable. Because the Court of Appeals held otherwise in

affirming dismissal of the plaintiffs’ negligence claims, we reverse

that holding. Because that error may have affected the Court of

Appeals’s other holdings, we vacate those other holdings and

remand the case.

     1.   Background.

     The complaint, verified by each of the named plaintiffs, alleges

that in June 2016 an anonymous hacker stole the personally

identifiable   information,   including   social   security   numbers,

addresses, birth dates, and health insurance details, of at least

200,000 current or former patients of Athens Orthopedic Clinic (“the

Clinic”) from the Clinic’s computer databases. Those current or

former patients included named plaintiffs Christine Collins,

Paulette Moreland, and Kathryn Strickland. According to the

allegations contained in the complaint, the hacker demanded a

ransom, but the Clinic refused to pay. The hacker offered at least

                                  2
some of the stolen personal data for sale on the so-called “dark web,”

and some of the information was made available, at least

temporarily, on Pastebin, a data-storage website. The Clinic notified

the plaintiffs of the breach in August 2016.

     The plaintiffs allege that because their personal data has been

“compromised and made available to others on the dark web,

criminals are now able to assume Class Members’ identit[ies] and

fraudulently obtain credit cards, issue fraudulent checks, file tax

refund returns, liquidate bank accounts, and open new accounts, all

in Class Members’ names.” Each named plaintiff alleges that she

has “spent time calling a credit reporting agency and placing a fraud

or credit alert on her credit report to try to contain the impact of the

data breach and anticipates having to spend more time and money

in the future on similar activities.” Collins also alleges that

fraudulent charges to her credit card were made “[s]hortly” after the

data breach and that she spent time getting the charges reversed by

the card issuer. And the complaint alleges that “[e]ven Class

Members who have not yet experienced identity theft or are not yet

                                   3
aware of it nevertheless face the imminent and substantial risk of

future injury.”

     In their suit against the Clinic, the plaintiffs sought class

certification and asserted claims for negligence, breach of implied

contract, and unjust enrichment. They sought damages based on

costs related to credit monitoring and identity theft protection, as

well as attorneys’ fees. They also sought injunctive relief under the

Georgia Uniform Deceptive Trade Practices Act, OCGA § 10-1-370

et seq. (“UDTPA”), and a declaratory judgment to the effect that the

Clinic must take certain actions to ensure the security of class

members’ personal data in the future. The Clinic filed a motion to

dismiss based on both OCGA § 9-11-12 (b) (1) and OCGA § 9-11-12

(b) (6), which the trial court granted summarily.

     A divided panel of the Court of Appeals affirmed. See Collins

v. Athens Orthopedic Clinic, 

347 Ga. App. 13

 (

815 SE2d 639

) (2018).

The Court of Appeals concluded that the plaintiffs’ negligence claim

was properly dismissed because the plaintiffs “seek only to recover

for an increased risk of harm.” Id. at 18 (2) (a). The majority

                                 4
concluded     that    although     the       credit   monitoring    and    other

precautionary measures alleged by the plaintiffs were “undoubtedly

prudent,” they were “designed to ward off exposure to future,

speculative harm” and thus “insufficient to state a cognizable claim

under Georgia law.” Id.1

      Then-Presiding Judge McFadden dissented from that holding,

concluding that the plaintiffs had standing to bring their claims

given that their allegations of future injury show a substantial risk

that harm will occur. Collins, 347 Ga. App. at 22-25 (1)-(2)

(McFadden, P. J., concurring in part and dissenting in part). We

granted the plaintiffs’ petition for certiorari to consider whether the




      1 The Court of Appeals majority explicitly held that the plaintiffs’ claim

for breach of implied contract failed for the same reason that their negligence
claim failed — they had not sufficiently alleged a cognizable injury. See Collins,
347 Ga. App. at 18-19 (2) (b). The majority’s incorrect resolution of the question
of whether the plaintiffs had sufficiently pleaded a cognizable injury for
negligence purposes may have affected its consideration of other claims, as
well. The majority held that the declaratory judgment claim failed because the
pleadings do not show any uncertainty that a court declaration would resolve;
that the UDTPA claim was properly dismissed because the plaintiffs did not
allege any future, nonspeculative harm that an injunction would remedy; and
that the unjust enrichment claim failed because it was not pleaded as an
alternate theory of recovery based on a failed contract. Collins, 347 Ga. App.
at 19-22 (2) (c) - (e). These holdings should be revisited on remand.
                                         5
Court of Appeals erred in holding that the plaintiffs failed to allege

a legally cognizable injury. We conclude that the plaintiffs did allege

a cognizable injury.

     2. The Georgia case law relied on by the Court of Appeals is
inapplicable for two reasons.

     “It is well established that to recover for injuries caused by

another’s negligence, a plaintiff must show four elements: a duty, a

breach of that duty, causation[,] and damages.” Goldstein, Garber &

Salama, LLC v. J. B., 

300 Ga. 840, 841

 (1) (

797 SE2d 87

) (2017)

(citation and punctuation omitted). In other words, “before an action

for a tort will lie, the plaintiff must show he sustained injury or

damage as a result of the negligent act or omission to act in some

duty owed to him.” Whitehead v. Cuffie, 

185 Ga. App. 351, 353

 (2)

(

364 SE2d 87

) (1987); see also OCGA § 51-1-6 (“When the law

requires a person to perform an act for the benefit of another or to

refrain from doing an act which may injure another, although no

cause of action is given in express terms, the injured party may

recover for the breach of such legal duty if he suffers damage

thereby.” (emphasis added)); OCGA § 51-1-8 (“The violation of a
                                  6
private duty, accompanied by damage, shall give a right of action.”

(emphasis added)); OCGA § 51-12-4 (“Damages are given as

compensation for injury; generally, such compensation is the

measure of damages where an injury is of a character capable of

being estimated in money.”).

     [A] wrongdoer is not responsible for a consequence which
     is merely possible, according to occasional experience, but
     only for a consequence which is probable, according to
     ordinary and usual experience. . . . A fear of future
     damages is too speculative to form the basis for recovery.

Finnerty v. State Bank & Trust Co., 

301 Ga. App. 569, 572

 (4) (

687 SE2d 842

) (2009) (citation and punctuation omitted), disapproved of

on other grounds by Cumberland Contractors, Inc. v. State Bank &

Trust Co., 

327 Ga. App. 121, 125

 (2) n.4 (

755 SE2d 511

) (2014); see

also OCGA § 51-12-8 (“If the damage incurred by the plaintiff is only

the imaginary or possible result of a tortious act or if other and

contingent circumstances preponderate in causing the injury, such

damage is too remote to be the basis of recovery against the

wrongdoer.”).

     Concluding that the plaintiffs had not sufficiently pleaded

                                 7
injury here, the Court of Appeals relied on two of its opinions

addressing the exposure of sensitive personal information, Finnerty

and Rite Aid of Georgia v. Peacock, 

315 Ga. App. 573

 (

726 SE2d 577

)

(2012). In Finnerty, the matter came before the Court of Appeals on

the grant of summary judgment against a civil case defendant who

complained that the plaintiff bank had included his social security

number in an exhibit to the civil complaint. 

301 Ga. App. at 569

. As

one of several alternative bases for affirming the summary judgment

order, the Court of Appeals concluded that the defendant’s state law

counterclaims alleging that the bank’s action caused him injuries

were “wholly speculative.” 

Id. at 572

 (4). The court noted that the

defendant had “failed to demonstrate that the Bank’s purported

unlawful disclosure made it ‘probable’ that he would suffer any

identity theft or that any specific persons actually have accessed his

confidential personal information as a result of the purported

unlawful disclosure.” 

Id.

 And in Rite Aid, the Court of Appeals

reversed a grant of class certification in a case arising from the

defendant pharmacy’s sale of its customers’ medication information

                                  8
to another pharmacy, concluding the trial court erred in finding that

the named plaintiff and the proposed class of customers shared

common questions of law and fact and that the named plaintiff was

a sufficiently typical class representative. In particular, the Court of

Appeals noted that the named plaintiff could only speculate that a

criminal might associate with an employee of the new pharmacy who

had access to his prescription information. 

315 Ga. App. at 576-577

(1) (a) (i).

      The Court of Appeals in this case also relied on its prior opinion

in Boyd v. Orkin Exterminating Co., 

191 Ga. App. 38

 (

381 SE2d 295

)

(1989), overruled on other grounds by Hanna v. McWilliams, 

213 Ga. App. 648, 651

 (2) (b) (

446 SE2d 741

) (1994), in which the Court of

Appeals affirmed a grant of partial summary judgment to the

defendant pest control company on the plaintiffs’ suit alleging that

the negligent application of pesticide in their home subjected their

children to an increased risk of cancer. In particular, the Boyd court

rejected the notion that the plaintiffs could recover for an alleged

increased risk of cancer as a result of the pest treatments, because,

                                   9
although the plaintiffs produced testimony that their children would

require monitoring in the future to determine whether they

developed health problems due to their exposure, they had fallen

“far short” of establishing to a “reasonable medical certainty” that

such consequences would occur. 

191 Ga. App. at 40-41

 (2) (citation

and punctuation omitted). Although the plaintiffs in Boyd pointed

to the presence of elevated levels of a certain metabolite in the

children’s bloodstream, the record in that case provided no

“indication that the presence of these metabolites had caused or

would eventually cause actual disease, pain, or impairment of some

kind[.]” 

Id. at 40

 (1).

     The Court of Appeals here relied on Finnerty and Rite Aid to

conclude that “the fact of compromised data is not a compensable

injury by itself in the absence of some loss or damage flowing to the

plaintiff’s legally protected interest as a result of the alleged breach

of the legal duty[,]” and therefore the plaintiffs here do not allege a

legally cognizable injury. Collins, 347 Ga. App. at 15-16 (2) (citation

and punctuation omitted). And the court said that Boyd was a

                                  10
“fitting analogue” to this case, given that in both this case and Boyd,

“the defendant’s alleged negligence exposed Plaintiffs to a risk of

harm which may or may not occur.” Id. at 16 (2).2 But there are two

fundamental differences between those cases and this one.

     (a) The key Georgia decisions relied on by the Court of Appeals
were not issued in the context of a motion to dismiss.

      First, neither Finnerty, nor Rite Aid, nor Boyd was decided in

the context of a motion to dismiss. Finnerty and Boyd were summary

judgment cases, and Rite Aid involved a question of class

certification. To avoid dismissal on summary judgment, a plaintiff

must present evidence that raises a genuine issue of material fact.

See Nguyen v. Southwestern Emergency Physicians, P.C., 

298 Ga. 75, 82

 (3) (

779 SE2d 334

) (2015). And to prevail on a request for class




      2 The Court of Appeals also cited two other cases we need not address at

length. First, it cited an unpublished Eleventh Circuit opinion surmising that
Boyd “suggests that Georgia would not recognize” a claim for “recovery of
medical monitoring costs in the absence of a current physical injury.” Parker
v. Brush Wellman, Inc., 

230 Fed. Appx. 878, 883

 (III) (A) (11th Cir. 2007). That
type of claim is not before us, and we express no opinion on the viability of such
a claim. And second, it cited its own decision in Crawford Long Mem. Hosp. v.
Hardeman, 

84 Ga. App. 306

 (

66 SE2d 67

) (1951). But that summary opinion
cited no authority for its conclusory analysis, and had never been cited until
the decision below. We decline to extend that decision beyond its facts.
                                       11
certification, a plaintiff must show with evidence that the

requirements for certification are satisfied. See Georgia-Pacific

Consumer Products v. Ratner, 

295 Ga. 524, 526

 (1) (

762 SE2d 419

)

(2014). Therefore, it was not enough for the claimants in Finnerty

and Rite Aid merely to allege that identity theft was a possible, or

even likely, result of the opposing party’s actions. And it was not

enough for the plaintiffs in Boyd merely to allege that it was

possible, or even likely, that their children would develop cancer as

a result of the pesticide application. Given the stages in which those

cases presented themselves to the Court of Appeals, evidence beyond

mere allegations was required in order for the claimants to prevail.

     Not so here. This case comes before us as an appeal from the

grant of a motion to dismiss for failure to state a claim under OCGA

§ 9-11-12 (b) (6). Such a motion is properly granted when the

plaintiff “would not be entitled to relief under any state of provable

facts asserted in support” of the allegations in the complaint and

“could not possibly introduce evidence within the framework of the

complaint sufficient to warrant a grant of the relief sought.” Austin

                                 12
v. Clark, 

294 Ga. 773, 774-775

 (

755 SE2d 796

) (2014) (citation and

punctuation omitted). In deciding such a motion, any doubts

regarding the complaint must be construed in favor of the plaintiff.

Id. at 775

.3

      Here, the plaintiffs allege that criminals are now able to

assume their identities fraudulently and that the risk of such

identity theft is “imminent and substantial.” This amounts to a

factual allegation about the likelihood that any given class member

will have her identity stolen as a result of the data breach. As this



      3  We note, as did then-Presiding Judge McFadden, that the Clinic’s
motion also sought dismissal for lack of subject matter jurisdiction under
OCGA § 9-11-12 (b) (1), on the basis that the plaintiffs lacked standing to bring
any claim against it, and the trial court’s order did not specify under which
basis it granted the Clinic’s motion. See Collins, 347 Ga. App. at 23 (1) n.11
(McFadden, P. J., concurring in part and dissenting in part). A motion to
dismiss for lack of subject matter jurisdiction may entail a “factual challenge”
that requires consideration of evidence beyond the face of the complaint. See
Douglas County v. Hamilton State Bank, 

340 Ga. App. 801, 801

 (

798 SE2d 509

)
(2017). Although the Clinic’s motion included a link to a news article about the
data breach, no evidence was introduced at the trial court’s hearing on the
motion. Of course, a court cannot skip past a jurisdictional issue to resolve
simpler merits questions, but has the duty to “raise the question of jurisdiction
on its own motion whenever there may be any doubt as to its existence.”
Scroggins v. Edmondson, 

250 Ga. 430, 430

 (1) (

297 SE2d 469

) (1982). But we
conclude that the allegations that we determine are enough here to plead a
legally cognizable injury are also sufficient in this procedural posture to satisfy
the injury-in-fact element of standing.
                                        13
case comes before us on a motion to dismiss, we must accept this

factual allegation as true.

      (b) The Court of Appeals’s prior cases involved a sort of exposure
of data fundamentally different than the actual data theft in this
case.

      In addition to the differences in procedural posture, the facts

of Finnerty and Rite Aid put them in a category different from that

of this case. In neither Finnerty nor Rite Aid was there any reason

to believe that the data in question had in fact fallen into a criminal’s

hands; here, plaintiffs allege that their data was stolen by a criminal

whose alleged purpose was to sell the data to other criminals. To

conclude that the claimants in Finnerty and Rite Aid would likely

suffer identity theft as a result of the opposing parties’ actions would

have required a long series of speculative inferences, including that

someone with malicious intent would obtain the data in the first

place, that this person would attempt to use the data to steal the

claimant’s identity or make the data available to someone who

would attempt to do so, and that the would-be identity thief would

succeed in fraudulent usage of the claimant’s identity. See also

                                   14
McLoughlin v. People’s United Bank, Inc., 

2009 WL 2843269

, at *7-

*8 (Case No. 3:08-cv-00944 (VLB), D. Conn., decided Aug. 31, 2009)

(where box containing backup tapes of electronic banking data was

lost or stolen from truck with broken lock — with no indication that

box was stolen for the data it contained — no injury under

Connecticut tort law, as tapes “could have been inadvertently

discarded or destroyed,” or “collecting dust in some forgotten

warehouse,” and it “is only through speculation that one concludes

that they are in possession of an individual who is driven to

maliciously mine the tapes for the personal data that they contain”).

Those cases are far different from this one.

     Here, the plaintiffs alleged that (1) a thief stole a large amount

of personal data by hacking into a business’s computer databases

and demanded a ransom for the data’s return, (2) the thief offered

at least some of the data for sale, and (3) all class members now face

the “imminent and substantial risk” of identity theft given criminals’

ability to use the stolen data to assume the class members’ identities

and fraudulently obtain credit cards, issue fraudulent checks, file

                                  15
tax refund returns, liquidate bank accounts, and open new accounts

in their names. Assuming the truth of these allegations, as we must

at this stage, we must presume that a criminal actor has maliciously

accessed the plaintiffs’ data and has at least attempted to sell at

least some of the data to other wrongdoers. Moreover, an important

part of the value of that data to anyone who would buy it in that

fashion is its utility in committing identity theft. See Remijas v.

Neiman Marcus Group, LLC, 

794 F3d 688, 693

 (7th Cir. 2015) (“[I]t

is plausible to infer that the plaintiffs have shown a substantial risk

of harm from the . . . data breach. Why else would hackers break

into a store’s database and steal consumers’ private information?

Presumably, the purpose of the hack is, sooner or later, to make

fraudulent charges or assume those consumers’ identities.”).4 Thus,

we are much further along in the chain of inferences that one must




      4 Some of the federal authorities we cite in this opinion address whether

there is injury in fact for purposes of standing under Article III of the United
States Constitution. That analysis may well be different than whether a legally
cognizable injury has been pled as a matter of Georgia tort law, but the
question here is similar enough that these federal cases are still useful.

                                      16
draw in order to conclude that the plaintiffs here likely will suffer

identity theft.5

      As explained above, showing injury as a result of the exposure

of data is easier in a case like this, where the data exposure occurs

as a result of an act by a criminal whose likely motivation is to sell

the data to others. But that easier showing of injury may well be

offset by a more difficult showing of breach of duty.6 Cf. Dept. of

Labor v. McConnell, 

305 Ga. 812, 815-816

 (3) (a) (

828 SE2d 352

)

(2019) (plaintiff failed to show that state agency owed him duty —



      5 As the case proceeds beyond the motion to dismiss stage, the plaintiffs

will need to support their claim of injury with evidence about the extent to
which they face an imminent and substantial risk of identity theft. Moreover,
that risk may become either easier or more difficult to prove as time goes on
and the plaintiffs do or do not experience actual identity theft.
      6 Proving that the plaintiff’s injuries were proximately caused by the

breach may also be more difficult. See Goldstein, Garber & Salama, 

300 Ga. at 842-843

 (1) (trial court should have granted dental practice’s motion for
directed verdict, as practice could not have foreseen that independent
contractor nurse anesthetist would molest plaintiff patient, and thus
proximate causation could not be shown); see also Resnick v. AvMed, Inc., 

693 F3d 1317, 1330-1332

 (11th Cir. 2012) (William Pryor, J., dissenting) (arguing
that Florida law claims filed in federal court should have been dismissed under
applicable federal pleading standard, as plaintiffs failed to plead facts
rendering plausible their allegation that identity thieves obtained sensitive
information as a result of theft of defendant’s computers, as opposed to from a
third party).

                                      17
under either OCGA § 10-1-393.8, OCGA § 10-1-910, or purported

common law duty “to all the world not to subject others to an

unreasonable risk of harm” — to protect his personal information

from inadvertent, negligent disclosure (citation and punctuation

omitted)). This case is at the motion to dismiss stage, and the Court

of Appeals’s decision did not turn on this issue, so we leave it for

another day.7

    3. The plaintiffs’ negligence claim should not have been
dismissed for failure to allege a cognizable injury.

      Construing the plaintiffs’ allegations — particularly that

criminals are able to assume their identities fraudulently as a result

of the data breach and that the risk of such identity theft is

“imminent and substantial” — in the light most favorable to the

plaintiffs, we cannot say that the plaintiffs will not be able to

introduce sufficient evidence of injury within the framework of the




      7 We recognize that this case involves a fairly new kind of injury. As a

court, we discharge our duty to apply traditional tort law to that injury. But
that traditional tort law is a rather blunt instrument for resolving all of the
complex tradeoffs at issue in a case such as this, tradeoffs that may well be
better resolved by the legislative process.
                                      18
complaint. The plaintiffs allege that their personal data has been

stolen on a mass scale by a criminal, who in turn has offered it for

sale to other criminals. They also allege that, as a result, criminals

are able to assume their identities and fraudulently obtain credit

cards, issue fraudulent checks, file tax refund returns, liquidate

bank accounts, and open new accounts in their names. These

allegations raise more than a mere specter of harm. See Attias v.

CareFirst, Inc., 

865 F3d 620, 629

 (D.C. Cir. 2017) (“No long sequence

of uncertain contingencies involving multiple independent actors

has to occur before the plaintiffs in this case will suffer any harm; a

substantial risk of harm exists already, simply by virtue of the hack

and the nature of the data that the plaintiffs allege was taken.”).

These allegations are sufficient to survive a motion to dismiss the

plaintiffs’ negligence claims.

     Our conclusion that dismissal of the negligence claims for lack

of injury is not warranted at this stage does not depend on the

plaintiffs’ allegations that the breach has caused them to spend

money attempting to mitigate the consequences of the breach by

                                  19
avoiding actual identity theft. Although this may represent all or

some measure of the plaintiffs’ damages to date, their allegation

that the criminal theft of their personal data has left them at an

imminent and substantial risk of identity theft is sufficient at this

stage of the litigation.8

     4. Our conclusion is consistent with recent federal decisions
applying Georgia law.

      Recent persuasive federal district court decisions applying

Georgia law in similar cases are consistent with our conclusion that

the plaintiffs have pleaded a legally cognizable injury here. In

litigation arising from hackers’ theft of the credit cardholder

information of Arby’s customers, a district court rejected the

defendant’s argument that the consumer plaintiffs’ negligence




      8 Our conclusion also does not depend on the allegation that one named

plaintiff already has experienced identity theft. The Court of Appeals implicitly
rejected a negligence claim based on this allegation, citing a failure to allege
that the fraudulent charges were related to or caused by the data breach.
Collins, 347 Ga. App. at 18 (2) (a) n.5. And although the plaintiffs sought
review of this aspect of the Court of Appeals decision, we did not grant
certiorari on issues of causation, and we express no opinion on those issues.
We note, however, that the Clinic’s counsel acknowledged at oral argument
before this Court that “a general allegation of causation is usually sufficient to
carry the plaintiff’s burden” at the motion to dismiss stage.
                                       20
claims should be dismissed because they had not suffered “any out-

of-pocket loss.” See In re Arby’s Restaurant Group Inc. Litigation,

2018 WL 2128441

, at *11 (Civil Action No. 1:17-cv-0514-AT, N.D.

Ga., decided March 5, 2018). Although the plaintiffs had alleged

unauthorized charges on their credit card accounts — i.e., actual

identity theft — the court also pointed to alleged costs associated

with detection and prevention of identity theft in concluding that the

allegations of injury were sufficient. 

Id.

 (“While Arby’s is correct that

a plaintiff may not recover for injuries that are purely speculative,

such as the potential risk of future identity theft, Plaintiffs’

Complaint alleges costs associated with actual data theft.”

(emphasis added)).9

      In another federal case over theft of consumers’ personal data



      9 The district court   noted that the plaintiffs’ alleged monetary losses
meant that it did not need to consider whether the plaintiffs’ other alleged
injuries — for loss of use of funds and accounts, loss of productivity, time and
effort in remediating the breach, and inability to receive card rewards — were
cognizable under Georgia law. In re Arby’s, 

2018 WL 2128441

, at *11 n.12. But,
noting a lack of authority cited by the parties on that question, the court added
its view that “a consumer’s time and effort to remediate the effects of a breach
is not an abstract notion of actual damage and one that is susceptible to proof
and valuation by a jury.” 

Id.

 We express no opinion on that issue.
                                       21
by hackers, a district court also rejected the defendants’ argument

that the plaintiffs’ Georgia tort claims failed because they had not

pleaded a legally cognizable injury. See In re Equifax, Inc., Customer

Data Security Breach Litigation, 362 FSupp.3d 1295, 1314-1317

(N.D. Ga. 2019). Again, although the plaintiffs’ allegations in that

case included allegations that some members of the class had

suffered actual identity theft, the district court also pointed to the

allegations about a risk of identity theft, as well as measures to

mitigate that risk, in concluding that the allegation of injury was

sufficient:

            Plaintiffs here have alleged that they have been
      harmed by having to take measures to combat the risk of
      identity theft, by identity theft that has already occurred
      to some members of the class, by expending time and
      effort to monitor their credit and identity, and that they
      all face a serious and imminent risk of fraud and identity
      theft due to the Data Breach. These allegations of actual
      injury are sufficient to support a claim for relief.

Id. at 1315.10



      10 The district court in Equifax attempted to distinguish the Court of

Appeals’s decision here on the basis that here “the plaintiffs alleged only an
‘increased risk of harm’ associated with taking precautionary measures,”

                                     22
      Although ultimately this Court is the final arbiter of the

meaning of Georgia law, the district courts’ conclusions in these

cases are somewhat more persuasive because, although those cases

also came before district courts on motions to dismiss, they were

subject to the more stringent pleading standards governing federal

cases. Compare Ashcroft v. Iqbal, 

556 U. S. 662, 679

 (

129 SCt 1937

,

173 LE2d 868) (2009) (under federal law, legal conclusions recited

in complaint “must be supported by factual allegations” that

“plausibly give rise to an entitlement to relief”), with Dillingham v.

Doctors Clinic, P.A., 

236 Ga. 302, 303

 (

223 SE2d 625

) (1976) (under




whereas the Equifax plaintiffs “alleged a substantial and imminent risk of
impending identity fraud due to the vast amount of information that was
obtained in the Data Breach.” 362 FSupp.3d at 1317 (citing Collins, 347 Ga.
App. at 18). The district court noted that the Equifax plaintiffs also had
“alleged that they have already incurred significant costs in response to the
Data Breach” and many had “also already suffered forms of identity theft.” Id.
This attempt to distinguish the Court of Appeals’s decision here is perplexing
and ultimately unconvincing, however. Although the Court of Appeals used the
phrase “increased risk of harm” to describe the plaintiffs’ allegations, Collins,
347 Ga. App. at 18 (2) (a), the plaintiffs here, like the Equifax plaintiffs, in fact
have pleaded an “imminent and substantial risk” of identity theft. And the
district court in Equifax specifically relied on the sort of allegations of credit
monitoring made here in concluding that the plaintiffs had adequately pleaded
both that they had suffered an injury, 362 FSupp.3d at 1315, and that the
injury was proximately caused by the data breach, id. at 1318-1319.
                                         23
Georgia law, complaint need only “give the defendant fair notice of

what the claim is and a general indication of the type of litigation

involved; the discovery process bears the burden of filling in

details”).

     Because the Court of Appeals erred in concluding that the trial

court properly dismissed the plaintiffs’ negligence claims due to

failure to plead a legally cognizable injury, we reverse that holding.

Because that error may have affected the Court of Appeals’s other

holdings, we vacate those other holdings and remand the case.

    Judgment reversed in part and vacated in part, and case
remanded. All the Justices concur.




                                 24
                    DECIDED DECEMBER 23, 2019.
      Certiorari to the Court of Appeals of Georgia — 

347 Ga. App. 13

.
     David A. Bain; Goldman Scarlato & Penny, Mark S. Goldman,
Douglas J. Bench, for appellants.
     Chilivis, Cochran, Larkins & Bever, John D. Dalbey, for
appellee.




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