Paintball Punks filed a class action suit against U.S. Bank  in Hennepin County, Minnesota. The case was subsequently removed on December 6, 2010, to the Minneapolis District Court. In the complaint, Paintball Punks alleges that between August and December 2009 it received 9 orders totaling approximately $11,000, which were fraudulently billed to U.S. Bank-issued cards. The amount was subsequently chargebacked (U.S. Bank tapped into Paintball Punks’ account to recoup the money after payment). 

The online retailer asserts that U.S. Bank failed to protect them and other merchants by failing to remedy a known data breach in the Bank’s system.   Despite knowledge of those breaches, U.S. Bank allegedly allowed compromised card accounts to remain active, which led to fraudulent credit card transactions with Paintball Punks and other merchants similarly situated, followed by chargebacks that U.S. Bank processed against the accounts of the merchants.

According to the complaint, the most likely explanation (allegedly consistent with statements obtained from two U.S Bank employees) is that the fraudulent activity resulted from a data breach at U.S. Bank. The complaint alleges that U.S. Bank could have corrected the data breach at several points before the losses were suffered by Paintball Punks and the rest of the class: when it learned of the breach it could have notified all of the affected cardholders at once and cancelled their cards. If that were the case, none of the information lost in the breach could have been used to defraud Paintball Punks.

The complaint alleges that concerns about fraud supersede that of terrorism, computer and health viruses and personal safety, and that the Banks “fear” of public repercussion motivated U.S. Bank’s decision to fail to remedy this breach.   Paintball Punks asserts that if U.S. Bank were to notify large numbers of its cardholders of a data breach in its facilities, then it would stroke the fears and concerns of credit card fraud among its cardholders, and they would associate that fear with U.S. Bank as an issuer.

This case is one of the first instances where a merchant has filed suit against a bank for a potential breach of information that did not directly implicate the merchant’s personal information, instead simply resulted in “damages” to the merchant.   Companies must be aware that the plaintiff’s bar is looking for new and creative ways to sue for damages based on data breaches.