I thought that I would break this cyberattack case down into understandable concepts but I hit a wall. (No pun intended.)
Instead I ran into the reality of what has been called "Mr. Roberts' Rule of Order," or "Lots of orders, very few rules."
I refer to the so-called "plausibility" standard of jurisprudence under which trial judges in Federal courts can look at exhibits to decide motions to dismiss, unlike the previous standard under which a motion to dismiss would be denied so long as basically the complaint alleged "ultimate facts."
To many if not all District Judges, "plausibility" goes beyond mere plausibility to deciding motions to dismiss based on the exhibits. It also means dismissing claims with prejudice based on the exhibits. So really, the test is not whether the complaint states claims that are plausible but whether the exhibits submitted by the plaintiffs and the defendants are plausible.
Sometimes it even means that a complaint will be dismissed if the plaintiffs have not submitted exhibits on any given claim.
Such was the case in the cyber-risk decision under discussion, In re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2016 WL 589760 (N.D. Cal. February 14, 2016). The District Judge dismissed California breach-of-contract claims, New Jersey breach-of-contract claims, and New York unjust enrichment claims because of the exhibits submitted by the plaintiffs, because of the evidence submitted as exhibits by the defendants, and because the plaintiffs did not submit "any relevant exhibits" on one claim. In re Anthem, Inc. Data Breach Litigation, No. 15-MD-02617-LHK, 2016 WL 589760, at *14-*17 (N.D. Cal. February 14, 2016).
Never mind that the "exhibits" might never have been admitted into evidence. The question of admissibility was never even asked before the rulings were made.
Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of "Insurance Claims and Issues" (forthcoming Thomson Reuters 2016). All rights reserved.
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