United States: Kentucky Federal Court Brushes Aside Pre-Emptive Attack On Class Allegations In Phishing Case, Rejects Out-Of-The-Box Defense Strategy

Brushing aside apparent flaws in a proposed class definition, a federal court in Kentucky declined to dismiss class allegations against North Carolina-based pharmacy services provider Pharm-Save Inc. (Pharm-Save) stemming from a W-2 phishing scam.

In its Dec. 1, 2017, decision denying in part Pharm-Save's motion to dismiss, U.S. District Judge Thomas B. Russell declined to consider Pharm-Save's comprehensive challenge to the plaintiffs' proposed class definition – and the legal sufficiency of the class allegations in general – and reserved determination of those issues until the plaintiffs move to certify the class. Savidge, et al. v. Pharm-Save, Inc., 3:17-CV-00186-TBR (W.D. Ky. Dec. 1, 2017) [ECF 26].

The lawsuit, originally filed in Kentucky state court in March 2016, arose from a phishing scam in which hackers tricked a company employee into unwittingly sending W-2 forms to a fake email address the hackers had hijacked to pose as a Pharm-Save executive. These types of scams have become increasingly widespread, with more than 175 reports of W-2 phishing attacks in 2016 alone. As the complaint notes, the IRS issued an alert before the Pharm-Save attack warning payroll and HR professionals about the emerging scheme

Plaintiffs Andrea Savidge and Beth Lynch filed suit on behalf of a putative class consisting of "all persons . . . who were the victims of a data security breach that occurred on or about March 3, 2016, wherein their sensitive and personal data was compromised." Pharm-Save promptly moved to dismiss all claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and – taking a strategic tact not often employed by class defendants – asked the court to also dismiss the class allegations.

Courts often decide whether or not to certify a class after the plaintiffs move for certification under Rule 23, and usually after some discovery has taken place. The plaintiffs bear the burden of proving that the elements of Rule 23(a) and (b) have been met.

Nothing in Rule 23, however, prevents a defendant from pre-emptively seeking dismissal of class claims before the plaintiffs move for certification. In fact, Rule 23(c)(1)(A) explicitly directs courts to consider class certification "at an early practicable time after a person sues or is sued as a class representative[.]" This means that a defendant who perceives deficiencies in class allegations can request dismissal of those allegations based on the pleadings alone, without waiting for discovery or plaintiffs' motion to certify. An increasingly common tactic among defense counsel is to move to strike class allegations under Rule 23(d)(1)(D). On a motion to strike, the standard is whether the complaint itself demonstrates that class certification is improper. Pharm-Save took a different route, however, basing its challenge to the class claims on its Rule 12(b)(6) motion to dismiss, where the complaint's "well pleaded" allegations are accepted as true and all reasonable inferences are drawn in the plaintiffs' favor.

Arguably, by affirmatively moving to dismiss the class claims rather than waiting to oppose the plaintiffs' motion for certification, Pharm-Save shifted the burden onto itself to show that Rule 23's requirements cannot be met as a matter of law. Indeed, at least one Kentucky federal court has adopted this view. Schilling v. Kenton Cty., Ky., No. CIV.A. 10-143-DLB, 2011 WL 293759, at *4 (E.D. Ky. Jan. 27, 2011) ("The moving party has the burden of demonstrating from the face of the plaintiffs' complaint that it will be impossible to certify the class as alleged, regardless of the facts plaintiffs may be able to prove."). But most authorities adhere to the sounder view that the named plaintiff has the burden of showing the propriety of certification regardless of the vehicle through which the defendant chooses to challenge the class allegations.

In Pharm-Save's case, the court held that it was "premature" to decide the certification issue, and reserved its determination until the plaintiffs move for certification and Pharm-Save opposes it. The court did so notwithstanding Pharm-Save's comprehensive attack on the facial sufficiency of the class allegations, which centered largely on the widely discussed issue of standing. Specifically, Pharm-Save argued that the class definition, as proposed, would include large numbers of individuals who suffered no real harm from the data breach and therefore lacked standing to participate in the lawsuit. The class must be redefined, the company argued, to include only individuals who actually suffered monetary damage from the phishing scam. But even this redefined class was unascertainable because it would be impossible to identify every individual who suffered monetary damage from the breach without making extensive factual findings, negating the purpose of a class action altogether. For example, Pharm-Save pointed out that Ms. Savidge was the only plaintiff on whose behalf the hackers allegedly filed a fraudulent tax return – a unique experience that renders her claim of damages atypical of the class and exemplifies the type individualized inquiry that would overwhelm the case.

While Pharm-Save's motion did not pan out, the company may have notched some strategic points that could strengthen its position later. For one thing, its argument likely helped educate the court as to what Pharm-Save sees as fatal flaws in the proposed class, and this view will persist through discovery and an eventual motion for certification by the plaintiffs. Further, the court's rejection of Pharm-Save's challenge to class certification does not curtail its right to reassert those attacks when the plaintiff moves for certification. And since Pharm-Save was filing a motion to dismiss the other claims, there was no downside in arguing to redefine or even strike the class allegations. In short, win or lose, a pre-emptive challenge to class allegations merits serious consideration from defense counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions