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Class Action Complaint — Chiquita Braggs v. Wright & Filippis, Inc. (Dkt. 1, E.D. Mich.)

Summary

Chiquita Braggs filed this class action complaint against Wright & Filippis, Inc. in the U.S. District Court for the Eastern District of Michigan on November 30, 2022 (Case 2:22-cv-12908). It alleges that cybercriminals reached the company's systems in or around January 26-28 of 2022 and took patients' names, Social Security numbers, dates of birth, health insurance information, financial account numbers and medical treatment information. The complaint says notice reached patients in or around November 2022, roughly ten months after the breach. It seeks to represent a Nationwide Class and a Michigan Subclass and pleads negligence, negligence per se and violation of Michigan's data breach notification law, among other counts. These are allegations.

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Full text

 Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.1 Filed 11/30/22 Page 1 of 73




                       UNITED STATES DISTRICT COURT
                       EASTERN DISTRICT OF MICHIGAN
                            SOUTHERN DIVISION

 CHIQUITA BRAGGS, individually and
 on behalf of all others similarly situated,
                                               Case No.:

              Plaintiff,                       Hon.:

 v.                                            CLASS ACTION COMPLAINT

 WRIGHT & FILIPPIS, INC.                       JURY TRIAL DEMANDED

                Defendant.



                         CLASS ACTION COMPLAINT
                        AND DEMAND FOR JURY TRIAL

      Plaintiff Chiquita Braggs (“Plaintiff”) individually and on behalf of all others

similarly situated, through her undersigned counsel, hereby alleges the following

against Defendant Wright and Filippis, Inc. (referred to herein as “W&F” or

“Defendant”). Facts pertaining to Plaintiff and her personal experiences and

circumstances are alleged based upon personal knowledge, and all other facts herein

are alleged based upon information and belief, inter alia, the investigation of

Plaintiff’s counsel.

                           NATURE OF THE ACTION

      1.     Healthcare providers that handle sensitive, personally identifying

information (“PII”) or protected health information (“PHI”) owe a duty to the
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individuals to whom that data relates. This duty arises based upon the parties’

relationship and because it is foreseeable that the exposure of PII or PHI to

unauthorized persons—and especially hackers with nefarious intentions—will result

in harm to the affected individuals, including, but not limited to, the invasion of their

private health matters.

      2.     This is a class action for damages against W&F for its failure to exercise

reasonable care in securing and safeguarding sensitive patient PII and/or PHI—

including first and last names, Social Security numbers, dates of birth, health

insurance information, financial account numbers, and sensitive patient medical

treatment information (collectively defined herein as “Private Information”).

      3.     Plaintiff brings this action on behalf of similarly situated patients whose

sensitive Private Information was stolen by cybercriminals in a cyber-attack on

W&F’s systems that took place in or around January 26-28 of 2022 and which

resulted in the access and exfiltration of Private Information (the “Data Breach” or

“Breach”).

      4.     W&F sent notice of the Data Breach to Plaintiff and members of the

putative “Class” (defined below) in or around November 2022, roughly ten months

after the occurrence of the Breach.

      5.     The exposure of a person’s PII or PHI through a data breach ensures

that such person will be at a substantially increased and certainly impending risk of


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identity theft crimes compared to the rest of the population, potentially for the rest

of their lives. As a result of the Data Breach, Plaintiff and Class members are at

imminent and substantial risk of experiencing various types of misuse of their

Private Information in the coming years, including but not limited to, unauthorized

access to email accounts, tax fraud, and identity theft—including medical identity

theft.

         6.   Mitigating that risk, to the extent it is even possible to do so, requires

individuals to devote significant time and money to closely monitor their credit,

financial accounts, health records, and email accounts, and take several additional

prophylactic measures.

         7.   There has been no assurance offered by W&F that all impacted Private

Information or copies thereof have been recovered or destroyed.

         8.   Accordingly, Plaintiff asserts claims for negligence, negligence per se,

violations of Michigan’s Data Breach Prompt Notification statute, unjust

enrichment, breach of fiduciary duty, breach of confidences, and declaratory and

injunctive relief.




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                                     PARTIES

A.    Plaintiff Chiquita Braggs

      9.     Plaintiff Chiquita Braggs is a resident and citizen of Kentwood,

Michigan, and brings this action in her individual capacity and on behalf of all others

similarly situated.

      10.    Approximately four years ago, Plaintiff Braggs was fitted for a hand

brace from Defendant. To be fitted for and receive the hand brace, she was required

to give her Private Information to M&F.

      11.    In maintaining her Private Information, Defendant expressly and

impliedly promised to safeguard it. Defendant, however, failed to implement proper,

industry-standard safeguards to protect Plaintiff’s Private Information, leading to its

exposure and exfiltration by cybercriminals, which cybercriminals stole the Private

Information at issue with the intent to sell it and/or fraudulently misuse it for their

own gain.

      12.    In November of 2022, Plaintiff received a notification letter from

Defendant stating that her Private Information was compromised by cybercriminals.

      13.    Plaintiff and Class members have faced and will continue to face a

certainly impending and substantial risk of future harms because of Defendant’s

ineffective data security measures, as further set forth herein. Some of these harms

will include fraudulent charges, medical procedures ordered in patients’ names


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without their permission, targeted advertising without patient consent, social

engineering efforts, and fraudulent applications for benefits in their names, leading

to Class members being denied necessary loans or benefits in the future.

       14.   In Plaintiff Braggs’s case, she has already been notified that her

information is for sale on the dark web.

       15.   Plaintiff greatly values her privacy especially while receiving medical

services. She would not have paid the amount that she did to receive medical services

had she known that W&F would negligently disclose her Private Information as it

did.

B.     Defendant Wright & Filippis

       16.   W&F is a healthcare corporation based in Michigan, specializing in

prosthetics and orthotic medical devices. It is incorporated in Michigan and has its

principal place of business at 2845 Crooks Road, Rochester Hills, Michigan, 48309.

Its corporate policies, including those on data privacy, are established in and emanate

from the State of Michigan.

                         JURISDICTION AND VENUE

       17.   The Court has jurisdiction over Plaintiff’s claims under 28 U.S.C. §

1332(d)(2), because (a) there are 100 or more Class members, (b) at least one Class

member is a citizen of a state that is diverse from Defendant’s Michigan citizenship,

and (c) the matter in controversy exceeds $5,000,000, exclusive of interest and costs.


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      18.    The Court has personal jurisdiction over Defendant because

Defendant’s primary place of business is located within this District.

      19.    Venue is proper in this district under 28 U.S.C. § 1391(b)(1) because

Defendant is incorporated in this District and therefore resides in this District

pursuant to 28 U.S.C. § 1391(c)(2).

                                      FACTS

      20.    In January of 2022, Defendant discovered unauthorized activity on its

computer systems, which contained patients’ Private Information, including names,

medical treatment records, and Social Security numbers (SSNs).

      21.    In November 2022, Plaintiff Braggs received a letter from W&F

explaining that her PHI had been leaked in the Data Breach.

      22.    Defendant offered no explanation for the delay between the initial

discovery of the Breach and the belated notification to affected patients – delay that

resulted in Plaintiff and Class members suffering harm they otherwise could have

avoided had a timely disclosure been made.

      23.    Defendant’s notice was not just untimely but woefully deficient, failing

to provide basic details of the Breach, including, but not limited to, how

unauthorized parties accessed its networks, whether the compromised Private

Information was encrypted or otherwise protected, how it learned of the Data




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Breach, whether the Breach occurred system-wide, and how many patients were

affected by the Data Breach.

      24.    Even worse, W&F’s offer to provide only twelve (12) months of credit

monitoring is woefully inadequate. Credit monitoring only alerts victims of the

misuse of their information after it happens, and such misuse might not take place

until years after the Data Breach.

      25.    In light of the types of Private Information at issue, and the fact that the

Private Information was specifically targeted by cybercriminals with the intent to

steal and misuse it, and in light of the dark web notifications already received by

Plaintiff, it can be determined that Plaintiff’s and Class members’ Private

Information has been and will continue to be offered for sale on the dark web.

      26.    The Data Breach occurred because W&F failed to take reasonable

measures to protect the Private Information it collected and stored. Among other

things, Defendant failed to implement data security measures designed to prevent

this attack, despite repeated warnings to the healthcare industry, insurance

companies, and associated entities about the risk of cyberattacks and the highly

publicized occurrence of many similar attacks in the recent past on other healthcare

providers.

      27.    Defendant disregarded the rights of Plaintiff and Class members by

intentionally, willfully, recklessly, or negligently failing to take and implement


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adequate and reasonable measures to ensure that Plaintiff and Class members’

Private Information was safeguarded, failing to take available steps to prevent

unauthorized disclosure of data, and failing to follow applicable, required and

appropriate protocols, policies and procedures regarding the encryption of data, even

for internal use. As a result, the Private Information of Plaintiff and Class members

was exfiltrated through unauthorized access by an unknown, malicious cyber hacker

with the intent to fraudulently misuse it. Plaintiff and Class members have a

continuing interest in ensuring that their compromised Private Information is and

remains safe.

A.    Defendant Failed to Maintain Reasonable and Adequate Security
      Measures to Safeguard its Patients’ Private Information

      28.    W&F acquires, collects, and stores a massive amount of its patients’

protected Private Information, including health information and other personally

identifiable data.

      29.    As a condition of engaging in health-related services, W&F requires

that its patients entrust it with their highly confidential Private Information.

      30.    By obtaining, collecting, using, and deriving a benefit from Plaintiff

and Class members’ Private Information, W&F assumed legal and equitable duties

and knew or should have known that it was responsible for protecting Plaintiff and

Class members’ Private Information from disclosure.



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      31.      Defendant had obligations created by the Health Insurance Portability

and Accountability Act (42 U.S.C. § 1320d et seq.) (“HIPAA”), industry standards,

common law, and representations made to Class members, to keep Class members’

Private Information confidential and to protect it from unauthorized access and

disclosure.

      32.      As evidenced by Defendant’s failure to comply with its legal

obligations established by HIPAA and Michigan law, Defendant failed to properly

safeguard Class members’ Private Information, allowing hackers to access their

Private Information.

      33.      Plaintiff and Class members provided their Private Information to

Defendant with the reasonable expectation and mutual understanding that Defendant

and any of its specialists would comply with their obligation to keep such

information confidential and secure from unauthorized access.

      34.      Prior to and during the Data Breach, Defendant implicitly and explicitly

promised patients that their Private Information would be kept confidential.

      35.      Defendant’s failure to provide adequate security measures to safeguard

Plaintiff’s and Class members’ Private Information is especially egregious because

Defendant operates in a field which has recently been a frequent target of scammers

attempting to fraudulently gain access to patients’ highly confidential Private

Information.


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      36.      In fact, Defendant has been on notice for years that the healthcare

industry and health insurance companies are a prime target for scammers because of

the amount of confidential customer information maintained.

      37.      Defendant was also on notice that the FBI has been concerned about

data security in the healthcare industry. In August 2014, after a cyberattack on

Community Health Systems, Inc., the FBI warned companies within the healthcare

industry that hackers were targeting them. The warning stated that “[t]he FBI has

observed malicious actors targeting healthcare related systems, perhaps for the

purpose of obtaining the [PHI] and/or [PII].” 1

      38.      The American Medical Association (“AMA”) has also warned

healthcare companies about the importance of protecting their patients’ confidential

information:

               Cybersecurity is not just a technical issue; it’s a patient
               safety issue. AMA research has revealed that 83% of
               physicians work in a practice that has experienced some
               kind of cyberattack. Unfortunately, practices are learning
               that cyberattacks not only threaten the privacy and security
               of patients’ health and financial information, but also
               patient access to care.2

1
  Jim Finkle, FBI Warns Healthcare Firms that they are Targeted by Hackers,
REUTERS (Aug. 2014), https://www.reuters.com/article/us-cybersecurity-
healthcare-fbi/fbi-warnshealthcare-firms-they-are-targeted-by-hackers-
idUSKBN0GK24U20140820 (last accessed November 30, 2022). Attached hereto
at Exhibit 1.
2
  Andis Robeznieks, Cybersecurity: Ransomware attacks shut down clinics,
hospitals, AM. MED. ASS’N (Oct. 4, 2019), https://www.ama-assn.org/practice-

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Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.11 Filed 11/30/22 Page 11 of 73




      39.    The number of US data breaches surpassed 1,000 in 2016, a record high

and a forty percent increase in the number of data breaches from the previous year.3

In 2017, a new record high of 1,579 breaches were reported—representing a 44.7

percent increase.4 That trend continues.

      40.    The healthcare sector reported the second-largest number of breaches

among all measured sectors in 2018, with the highest rate of exposure per breach.5

Indeed, when compromised, healthcare-related data is among the most sensitive and

personally consequential. A report focusing on healthcare breaches found that the

“average total cost to resolve an identity theft-related incident . . . came to about

$20,000,” and that the victims were often forced to pay out-of-pocket costs for




management/sustainability/cybersecurity-ransomware-attacks-shut-down-clinics-
hospitals (last accessed November 30, 2022). Attached hereto at Exhibit 2.
3
  Identity Theft Resource Center, Data Breaches Increase 40 Percent in 2016,
Finds New Report From
Identity Theft Resource Center and CyberScout (Jan. 19, 2017),
https://www.idtheftcenter.org/surveys-studys (last accessed November 30, 2022).
Attached hereto at Exhibit 3.
4
  Identity Theft Resource Center, 2017 Annual Data Breach Year-End Review,
https://www.idtheftcenter.org/wp-
content/uploads/images/breach/2017Breaches/2017AnnualDataBreachYearEndRe
view.pdf (last accessed November 30, 2022). Attached hereto at Exhibit 4.
5
  Identity Theft Resource Center, 2018 End -of-Year Data Breach Report,
https://www.idtheftcenter.org/wp-content/uploads/2019/02/ITRC_2018-End-of-
Year-Aftermath_FINAL_V2_combinedWEB.pdf (last accessed November 30,
2022). Attached hereto at Exhibit 5.
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Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.12 Filed 11/30/22 Page 12 of 73




healthcare they did not receive in order to restore coverage. 6 Almost 50 percent of

the victims lost their healthcare coverage as a result of the incident, while nearly 30

percent said their insurance premiums went up after the event. Forty percent of the

customers were never able to resolve their identity theft at all. Data breaches and

identity theft have a crippling effect on individuals and detrimentally impact the

economy as a whole. 7

      41.    A 2017 study conducted by HIMSS Analytics showed that email was

the most likely cause of a data breach, with 78 percent of providers stating that they

experienced a healthcare ransomware or malware attack in the past 12 months.

      42.    Healthcare related data breaches continued to rapidly increase into

2021. 8

      43.    In the healthcare industry, the number one threat vector from a cyber

security standpoint is phishing. Cybersecurity firm Proofpoint reports that “phishing

is the initial point of compromise in most significant [healthcare] security incidents,


6
  Elinor Mills, Study: Medical identity theft is costly for victims, CNET (March 3,
2010), https://www.cnet.com/news/privacy/study-medical-identity-theft-is-costly-
for-
victims/#:~:text=The%20average%20total%20cost%20to,own%20pocket%20to%
20restore%20coverage. (last accessed November 30, 2022). Attached hereto at
Exhibit 6.
7
  Id.
8
  2019 HIMSS Cybersecurity Survey,
https://www.himss.org/sites/hde/files/d7/u132196/2019_HIMSS_Cybersecurity_S
urvey_Final_Report.pdf (last accessed November 30, 2022). Attached hereto at
Exhibit 7.
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according to a recent report from the Healthcare Information and Management

Systems Society (HIMSS). And yet, 18% of healthcare organizations fail to conduct

phishing tests, a finding HIMSS describes as “incredible.”9

      44.    As explained by the Federal Bureau of Investigation, “[p]revention is

the most effective defense against ransomware and it is critical to take precaution

for protection.”10

      45.    To prevent and detect ransomware attacks, including the ransomware

attack that resulted in the Data Breach, Defendant could and should have

implemented, as recommended by the United States Government, the following

measures:

             • Implement an awareness and training program.
               Because end users are targets, employees and
               individuals should be aware of the threat of
               ransomware and how it is delivered.

             • Enable strong spam filters to prevent phishing emails
               from reaching the end users and authenticate inbound
               email using technologies like Sender Policy
               Framework (SPF), Domain Message Authentication
               Reporting and Conformance (DMARC), and
               DomainKeys Identified Mail (DKIM) to prevent email
               spoofing.

9
  Aaron Jensen, Healthcare Phishing Statistics: 2019 HIMSS Survey Results,
PROOFPOINT (Mar. 27, 2019), https://www.proofpoint.com/us/security-
awareness/post/healthcare-phishing-statistics-2019-himss-survey-results (last
accessed November 30, 2022). Attached hereto at Exhibit 8.
10
   See How to Protect Your Networks from RANSOMWARE, FBI (2016), https
://www. fbi.gov/file-repository/ransomware-prevention-and-response-for-
cisos.pdf/view (last accessed November 30, 2022). Attached hereto at Exhibit 9.
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Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.14 Filed 11/30/22 Page 14 of 73




           • Scan all incoming and outgoing emails to detect threats
             and filter executable files from reaching end users.

           • Configure firewalls to block access to known malicious
             IP addresses.

           • Patch operating systems, software, and firmware on
             devices.    Consider using a centralized patch
             management system.

           • Set anti-virus and anti-malware programs to conduct
             regular scans automatically.

           • Manage the use of privileged accounts based on the
             principle of least privilege; no users should be assigned
             administrative access unless absolutely needed; and
             those with a need for administrator accounts should
             only use them when necessary.
           • Configure access controls—including file, directory,
             and network share permissions—with least privilege in
             mind. If a user only needs to read specific files, the user
             should not have write access to those files, directories,
             or shares.

           • Disable macro scripts from office files transmitted via
             email. Consider using Office Viewer software to open
             Microsoft Office files transmitted via email instead of
             full office suite applications.

           • Implement Software Restriction Policies (SRP) or
             other controls to prevent programs from executing
             from common ransomware locations, such as
             temporary folders supporting popular Internet
             browsers or compression/decompression programs,
             including the AppData/LocalAppData folder.

           • Consider disabling Remote Desktop protocol (RDP) if
             it is not being used.

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             • Use application whitelisting, which only allows
               systems to execute programs known and permitted by
               security policy.

             • Execute operating system environments or specific
               programs in a virtualized environment.

             • Categorize data based on organizational value and
               implement physical and logical separation of networks
               and data for different organizational units. 11

      46.    The threat continues. In August 2022, the Consumer Finance Protection

Bureau (CFPB) published a circular on data security. The CFPB noted that

“[w]idespread data breaches and cyberattacks have resulted in significant harms to

consumers, including monetary loss, identity theft, significant time and money spent

dealing with the impacts of the breach, and other forms of financial distress,” and

the circular concluded that the provision of insufficient security for consumers’ data

can violate the prohibition on “unfair acts or practices” in the Consumer Finance

Protection Act (CFPA). 12

      47.    To prevent and detect ransomware attacks, including the ransomware

attack that resulted in the Data Breach, Defendant could and should have



11
  Id.
12
  CONSUMER FIN. PROT. BUREAU, Consumer Financial Protection Circular 2022-
04: Insufficient data protection or security for sensitive consumer information
(Aug. 11, 2022), https://files.consumerfinance.gov/f/documents/cfpb_2022-
04_circular_2022-08.pdf (last accessed November 30, 2022). Attached hereto at
Exhibit 10.
                                             15
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implemented, as recommended by the United States Government, the following

measures:

            • Update and patch your computer. Ensure your
              applications and operating systems (OSs) have been
              updated with the latest patches. Vulnerable
              applications and OSs are the target of most ransomware
              attacks . . .

            • Use caution with links and when entering website
              addresses. Be careful when clicking directly on links
              in emails, even if the sender appears to be someone you
              know. Attempt to independently verify website
              addresses (e.g., contact your organization's helpdesk,
              search the internet for the sender organization's website
              or the topic mentioned in the email). Pay attention to
              the website addresses you click on, as well as those you
              enter yourself. Malicious website addresses often
              appear almost identical to legitimate sites, often using
              a slight variation in spelling or a different domain (e.g.,
              .com instead of .net) . . .

            • Open email attachments with caution. Be wary of
              opening email attachments, even from senders you
              think you know, particularly when attachments are
              compressed files or ZIP files.

            • Keep your personal information safe. Check a
              website's security to ensure the information you submit
              is encrypted before you provide it . . .

            • Verify email senders. If you are unsure whether or not
              an email is legitimate, try to verify the email's
              legitimacy by contacting the sender directly. Do not
              click on any links in the email. If possible, use a
              previous (legitimate) email to ensure the contact
              information you have for the sender is authentic before
              you contact them.

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            • Inform yourself. Keep yourself informed about recent
              cybersecurity threats and up to date on ransomware
              techniques. You can find information about known
              phishing attacks on the Anti-Phishing Working Group
              website. You may also want to sign up for CISA
              product notifications, which will alert you when a new
              Alert, Analysis Report, Bulletin, Current Activity, or
              Tip has been published.

            • Use and maintain preventative software programs.
              Install antivirus software, firewalls, and email filters—
              and keep them updated—to reduce malicious network
              traffic . . . 13

      48.   To prevent and detect ransomware attacks, including the ransomware

attack that resulted in the Data Breach, Defendant could and should have

implemented, as recommended by the Microsoft Threat Protection Intelligence

Team, the following measures:

            - Secure internet-facing assets
                 • Apply the latest security updates
                 • Use threat and vulnerability management
                 • Perform regular audit; remove privilege
                   credentials;

            - Thoroughly investigate and remediate alerts
                • Prioritize and treat commodity malware
                   infections as potential full compromise

            - Include IT Pros in security discussions

13
  See Security Tip (ST19-001) Protecting Against Ransomware, CYBERSECURITY
& INFRASTRUCTURE SECURITY AGENCY (Apr. 11, 2019), https://us-
cert.cisa.gov/ncas/tips/ST19-001 (last accessed November 30, 2022). Attached
hereto at Exhibit 11.
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                   • Ensure collaboration among [security
                     operations], [security admins], and
                     [information technology] admins to
                     configure servers and other endpoints
                     securely;

            - Build credential hygiene
                • use [multifactor authentication] or
                    [network level authentication] and use
                    strong, randomized, just-in-time local
                    admin passwords

            - Apply principle of least-privilege
                • Monitor for adversarial activities
                • Hunt for brute force attempts
                • Monitor for cleanup of Event Logs
                • Analyze logon events

            - Harden infrastructure
                • Use Windows Defender Firewall
                • Enable tamper protection
                • Enable cloud-delivered protection
                • Turn on attack surface reduction rules and
                   [Antimalware Scan Interface] for Office
                   [Visual Basic for Applications].14

      49.   These are basic, common-sense email security measures that every

business, not only healthcare businesses, should be doing. W&F, with its heightened

standard of care should be doing even more. But by adequately taking these



14
  See Human-operated ransomware attacks: A preventable disaster, MICROSOFT
(Mar. 5, 2020),
https://www.microsoft.com/en-us/security/blog/2020/03/05/human-operated-
ransomware-attacks-a-preventable-disaster/ (last accessed November 30, 2022).
Attached hereto at Exhibit 12.
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common-sense measures, W&F could have prevented this Data Breach from

occurring.

      50.    Charged with handling sensitive Private Information, including

healthcare information, Defendant knew, or should have known, the importance of

safeguarding its patients’ Private Information that was entrusted to it and of the

foreseeable consequences if its data security systems were breached. This includes

the significant costs that would be imposed on its patients after a breach. W&F

failed, however, to take adequate cybersecurity measures to prevent the Data Breach

from occurring.

      51.    With respect to training, Defendant specifically failed to:

             • Implement a variety of anti-ransomware training tools,
               in combination, such as computer-based training,
               classroom training, monthly newsletters, posters, login
               alerts, email alerts, and team-based discussions;

             • Perform regular training at defined intervals such as bi-
               annual training and/or monthly security updates; and

             • Craft and tailor different approaches to different
               employees based on their base knowledge about
               technology and cybersecurity.

      52.    The Private Information was also maintained on W&F’s computer

system in a condition vulnerable to cyberattacks, such as through the infiltration of

Defendant’s systems through ransomware attacks. The mechanism of the

cyberattack and the potential for improper disclosure of Plaintiff and Class


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members’ Private Information was a known risk to W&F, and thus W&F was on

notice that failing to take reasonable steps necessary to secure the Private

Information from those risks left it in a vulnerable position.

B.    The Monetary Value of Privacy Protections and Private Information

      53.    The fact that Plaintiff and Class members’ Private Information was

stolen means that Class members’ information is likely for sale by cybercriminals

and will be misused in additional instances in the future. Indeed, Plaintiff Braggs’s

information is already on the dark web.

      54.    At all relevant times, Defendant was well aware that the Private

Information it collects from Plaintiff and Class members is highly sensitive and of

significant value to those who would use it for wrongful purposes.

      55.    Private Information is a valuable commodity to identity thieves. As the

FTC recognizes, identity thieves can use this information to commit an array of

crimes including identify theft, and medical and financial fraud.15 Indeed, a robust

“cyber black market” exists in which criminals openly post stolen Private

Information including sensitive health information on multiple underground Internet

websites, commonly referred to as the dark web.




15
  Federal Trade Commission, Warning Signs of Identity Theft (Sept. 2018),
https://www.consumer.ftc.gov/articles/0271-warning-signs-identity-theft (last
accessed November 30, 2022). Attached hereto at Exhibit 13.
                                              20
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.21 Filed 11/30/22 Page 21 of 73




      56.    At an FTC public workshop in 2001, then-Commissioner Orson

Swindle described the value of a consumer’s personal information:

             The use of third party information from public records,
             information aggregators and even competitors for
             marketing has become a major facilitator of our retail
             economy. Even [Federal Reserve] Chairman [Alan]
             Greenspan suggested here some time ago that it’s
             something on the order of the life blood, the free flow of
             information.16

      57.    Commissioner Swindle’s 2001 remarks are even more relevant today,

as consumers’ personal data functions as a “new form of currency” that supports a

$26 Billion per year online advertising industry in the United States. 17

      58.    The FTC has also recognized that consumer data is a new (and

valuable) form of currency. In an FTC roundtable presentation, another former

Commissioner, Pamela Jones Harbour, underscored this point:

             Most consumers cannot begin to comprehend the types
             and amount of information collected by businesses, or why
             their information may be commercially valuable. Data is




16 Public Workshop: The Information Marketplace: Merging and Exchanging
Consumer Data, FED. TRADE COMM’N Tr. at 8:2-8 (Mar. 13, 2001),
https://www.ftc.gov/sites/default/files/documents/public_events/information-
marketplace-merging-and-exchanging-consumer-data/transcript.pdf (last accessed
November 30, 2022). Attached hereto at Exhibit 14.
17
   See Julia Angwin & Emily Steel, Web’s Hot New Commodity: Privacy, The
Wall Street Journal (Feb. 28, 2011), https://allthingsd.com/20110228/webs-hot-
new-commodity-privacy/ [hereinafter Web’s New Hot Commodity] (last accessed
November 30, 2022). Attached hereto at Exhibit 15.
                                              21
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.22 Filed 11/30/22 Page 22 of 73




             currency. The larger the data set, the greater potential for
             analysis—and profit. 18


      59.    Recognizing the high value that consumers place on their Private

Information, many companies now offer consumers an opportunity to sell this

information.19 The idea is to give consumers more power and control over the type

of information that they share and who ultimately receives that information. And, by

making the transaction transparent, consumers will make a profit from their Private

Information. This business has created a new market for the sale and purchase of this

valuable data.

      60.    Consumers place a high value not only on their Private Information, but

also on the privacy of that data. Researchers have begun to shed light on how much

consumers value their data privacy, and the amount is considerable. Indeed, studies

confirm that the average direct financial loss for victims of identity theft in 2014 was

$1,349.20



18
   Statement of FTC Commissioner Pamela Jones Harbour—Remarks Before FTC
Exploring Privacy Roundtable, FED. TRADE COMM’N (Dec. 7, 2009),
https://www.ftc.gov/sites/default/files/documents/public_
statements/remarks-ftc-exploring-privacy-roundtable/091207privacyroundtable.pdf
(last accessed November 30, 2022). Attached hereto at Exhibit 16.
19
   Web’s Hot New Commodity, supra note 17.
20
   See U.S. Dep’t of Justice, Victims of Identity Theft, OFFICE OF JUSTICE
PROGRAMS: BUREAU OF JUSTICE STATISTICS 1 (Nov. 13, 2017),
https://www.bjs.gov/content/pub/pdf/vit14.pdf [hereinafter Victims of Identity
Theft] (last accessed November 30, 2022). Attached hereto at Exhibit 17.
                                              22
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.23 Filed 11/30/22 Page 23 of 73




      61.    The value of Plaintiff and Class members’ Private Information on the

black market is substantial. Sensitive health information can sell for as much as

$363. 21 This information is particularly valuable because criminals can use it to

target victims with frauds and scams that take advantage of the victim’s medical

conditions or victim settlements. It can be used to create fake insurance claims,

allowing for the purchase and resale of medical equipment, or gain access to

prescriptions for illegal use or resale.

      62.    Medical identity theft can result in inaccuracies in medical records and

costly false claims. It can also have life-threatening consequences. If a victim’s

health information is mixed with other records, it can lead to misdiagnosis or

mistreatment. “Medical identity theft is a growing and dangerous crime that leaves

its victims with little to no recourse for recovery,” reported Pam Dixon, executive

director of World Privacy Forum. “Victims often experience financial repercussions

and worse yet, they frequently discover erroneous information has been added to

their personal medical files due to the thief’s activities.”22




21
   Center for Internet Security, Data Breaches: In the Healthcare Sector,
https://www.cisecurity.org/blog/data-breaches-in-the-healthcare-sector/ (last
accessed November 30, 2022). Attached hereto at Exhibit 18.
22
   Michael Ollove, The Rise of Medical Identity Theft in Healthcare, KAISER (Feb.
7, 2014), https://khn.org/news/rise-of-indentity-theft/ (last accessed November 30,
2022). Attached hereto at Exhibit 19.
                                               23
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.24 Filed 11/30/22 Page 24 of 73




      63.    The ramifications of W&F’s failure to keep its patients’ Private

Information secure are long-lasting and severe. Once Private Information is stolen,

fraudulent use of that information and damage to victims may continue for years.

Fraudulent activity might not show up for six to twelve months or even longer.

      64.    Victims may not realize their identity has been compromised until long

after it has happened. 23 This gives thieves ample time to seek multiple treatments

under the victim’s name. Forty percent of consumers found out they were a victim

of medical identity theft only when they received collection letters from creditors

for expenses that were incurred in their names.24

      65.    Breaches are particularly serious in healthcare industries, with

healthcare related data among the most private and personally consequential, as set

forth above.25

      66.    At all relevant times, Defendant was well-aware, or reasonably should

have been aware, that the Private Information it maintains is highly sensitive and



23
   See, e.g., Survey on Medical Identity Theft, Ponemon Institute, June 2012,
https://www.ponemon.org/local/upload/file/Third_Annual_Survey_on_Medical_Id
entity_Theft_FINAL.pdf (last accessed November 30, 2022). Attached hereto at
Exhibit 20.
24
   The Potential Damages and Consequences of Medical Identify Theft and
Healthcare Data Breaches, EXPERIAN, (Apr. 2010),
https://www.experian.com/assets/data-breach/white-papers/consequences-medical-
id-theft-healthcare.pdf (last accessed November 30, 2022). Attached hereto at
Exhibit 21.
25
   See supra Facts, Section B.
                                            24
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.25 Filed 11/30/22 Page 25 of 73




could be used for wrongful purposes by third parties, such as identity theft and fraud.

Defendant should have particularly been aware of these risks, given the significant

number of data breaches affecting the health care industry and related industries.

      67.    Had Defendant remedied the deficiencies in its security systems,

followed industry guidelines, and adopted security measures recommended by

experts in the field, Defendant would have prevented the ransomware attack into its

systems and, ultimately, the theft of its patients’ Private Information.

      68.    The compromised Private Information in the Data Breach is of great

value to hackers and thieves and can be used in a variety of ways. Information about,

or related to, an individual for which there is a possibility of logical association with

other information is of great value to hackers and thieves. Indeed, “there is

significant evidence demonstrating that technological advances and the ability to

combine disparate pieces of data can lead to identification of a consumer, computer

or device even if the individual pieces of data do not constitute PII.” 26 For example,

different PII and PHI elements from various sources may be able to be linked in

order to identify an individual, or access additional information about or relating to



 26
   Protecting Consumer Privacy in an Era of Rapid Change: A Proposed
 Framework for Businesses and Policymakers, Preliminary FTC Staff Report,
 FED. TRADE COMM’N 35-38 (Dec. 2010),
 https://www.ftc.gov/reports/preliminary-ftc-staff-report-protecting-consumer-
 privacy-era-rapid-change-proposed-framework (last accessed November 30,
 2022). Attached hereto at Exhibit 22.
                                               25
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.26 Filed 11/30/22 Page 26 of 73




the individual.27 Based upon information and belief, the unauthorized parties utilized

the Private Information they obtained through the Data Breach to obtain additional

information from Plaintiff and Class members that was misused.

       69.    In addition, as technology advances, computer programs may scan the

Internet with wider scope to create a mosaic of information that may be used to link

information to an individual in ways that were not previously possible. This is known

as the “mosaic effect.”

       70.    Names and dates of birth, combined with contact information like

telephone numbers and email addresses, are very valuable to hackers and identity

thieves as it allows them to access users’ other accounts. Thus, even if payment card

information was not involved in the Data Breach, the unauthorized parties could use

Plaintiff and Class members’ Private Information to access accounts, including, but

not limited to email accounts and financial accounts, to engage in the fraudulent

activity identified by Plaintiff.

       71.    Given these facts, any healthcare or other type of entity that transacts

business with patients or customers and then compromises the privacy of its patients’

or customers’ Private Information has thus deprived them of the full monetary value

of the transaction with the entity.


 27
   See id. (evaluating privacy framework for entities collecting or using
 consumer data with can be “reasonably linked to a specific consumer, computer,
 or other device”).
                                             26
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.27 Filed 11/30/22 Page 27 of 73




      72.    Acknowledging the damage to Plaintiff and Class members, Defendant

instructed patients like Plaintiff to “review the statements you receive from your

health insurer” and call the insurer “immediately” if fraudulent charges appear.

Plaintiff and Class members now face an impending, substantial risk of identity theft

and medical insurance fraud.

      73.    In short, the Private Information exposed is of great value to hackers

and cyber criminals and the data compromised in the Data Breach can be used in a

variety of unlawful manners, including opening new credit and financial accounts in

users’ names.

C.    W&F’s Conduct violated HIPAA

      74.    HIPAA requires covered entities like W&F to protect against

reasonably anticipated threats to the security of PHI. Covered entities must

implement safeguards to ensure the confidentiality, integrity, and availability of PHI.

Safeguards must include physical, technical, and administrative components.28

      75.    Title II of HIPAA contains what are known as the Administrative

Simplification provisions. 42 U.S.C. §§ 1301, et seq. These provisions require,

among other things, that the Department of Health and Human Services (“HHS”)



28
  What is Considered Protected Health Information Under HIPAA?, HIPPA
JOURNAL, https://www.hipaajournal.com/what-is-considered-protected-health-
information-under-hipaa/ (last accessed November 30, 2022). Attached hereto at
Exhibit 23.
                                             27
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.28 Filed 11/30/22 Page 28 of 73




create rules to streamline the standards for handling Private Information like the data

Defendant left unguarded. The HHS has subsequently promulgated five rules under

authority of the Administrative Simplification provisions of HIPAA.

      76.    The HIPAA Breach Notification Rule, 45 CFR §§ 164.400-414, also

required Defendant to provide notice of the breach to each affected individual

“without unreasonable delay and in no case later than 60 days following discovery

of the breach.”29

      77.    Defendant’s     Data   Breach    resulted   from    a   combination    of

insufficiencies that demonstrate Defendant failed to comply with safeguards

mandated by HIPAA regulations. W&F’s security failures include, but are not

limited to, the following:

             • Failing to ensure the confidentiality and integrity of
               electronic protected health information that Defendant
               creates, receives, maintains, and transmits in violation
               of 45 C.F.R. §164.306(a)(1);

             • Failing to implement technical policies and procedures
               for electronic information systems that maintain
               electronic protected health information to allow access
               only to those persons or software programs that have
               been granted access rights in violation of 45 C.F.R.
               §164.312(a)(1);




29
  Breach Notification Rule, U.S. DEP’T HEALTH & HUMAN SERVS.,
https://www.hhs.gov/hipaa/for-professionals/breach-notification/index.html (last
accessed November 30, 2022). Attached hereto at Exhibit 24.
                                             28
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.29 Filed 11/30/22 Page 29 of 73




           • Failing to implement policies and procedures to
             prevent, detect, contain, and correct security violations
             in violation of 45 C.F.R. §164.308(a)(1);

           • Failing to identify and respond to suspected or known
             security incidents; mitigate, to the extent practicable,
             harmful effects of security incidents that are known to
             the covered entity in violation of 45 C.F.R.
             §164.308(a)(6)(ii);

           • Failing to protect against any reasonably-anticipated
             threats or hazards to the security or integrity of
             electronic protected health information in violation of
             45 C.F.R. §164.306(a)(2);

           • Failing to protect against any reasonably anticipated
             uses or disclosures of electronically protected health
             information that are not permitted under the privacy
             rules regarding individually identifiable health
             information in violation of 45 C.F.R. §164.306(a)(3);

           • Failing to ensure compliance with HIPAA security
             standard rules by its workforce in violation of 45
             C.F.R. §164.306(a)(94);

           • Impermissibly and improperly using and disclosing
             protected health information that is and remains
             accessible to unauthorized persons in violation of 45
             C.F.R. §164.502, et seq.;

           • Failing to effectively train all members of its workforce
             (including agents and independent contractors) on the
             policies and procedures with respect to protected health
             information as necessary and appropriate for the
             members of its workforce to carry out their functions
             and to maintain security of protected health
             information in violation of 45 C.F.R. §164.530(b) and
             45 C.F.R. §164.308(a)(5); and


                                          29
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.30 Filed 11/30/22 Page 30 of 73




             • Failing to design, implement, and enforce policies and
               procedures establishing physical and administrative
               safeguards to reasonably safeguard protected health
               information, in compliance with 45 C.F.R.
               §164.530(c).

D.    W&F Failed to Comply with FTC Guidelines

      78.    W&F was also prohibited by the Federal Trade Commission Act (“FTC

Act”) (15 U.S.C. §45) from engaging in “unfair or deceptive acts or practices in or

affecting commerce.” The Federal Trade Commission (“FTC”) has concluded that a

company’s failure to maintain reasonable and appropriate data security for

consumers’ sensitive personal information is an “unfair practice” in violation of the

FTC Act. See, e.g., FTC v. Wyndham Worldwide Corp., 799 F.3d 236 (3d Cir. 2015).

      79.    The FTC has promulgated numerous guides for businesses that

highlight the importance of implementing reasonable data security practices.

According to the FTC, the need for data security should be factored into all business

decision-making.30

      80.    In 2016, the FTC updated its publication, Protecting Personal

Information: A Guide for Business, which established cybersecurity guidelines for




30
   Start With Security: A Guide for Business, FED. TRADE. COMM’N (June 2015),
https://www.ftc.gov/system/files/documents/plain-language/pdf0205-
startwithsecurity.pdf [hereinafter Start with Security] (last accessed November 30,
2022). Attached hereto at Exhibit 25.
                                            30
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.31 Filed 11/30/22 Page 31 of 73




businesses.31 The guidelines note that businesses should protect the personal

customer information that they keep; properly dispose of personal information that

is no longer needed; encrypt information stored on computer networks; understand

their network’s vulnerabilities; and implement policies to correct any security

problems.

      81.    The FTC further recommends that companies not maintain Private

Information longer than is needed for authorization of a transaction; limit access to

private data; require complex passwords to be used on networks; use industry-tested

methods for security; monitor for suspicious activity on the network; and verify that

third-party service providers have implemented reasonable security measures. 32

      82.    The FTC has brought enforcement actions against businesses for failing

to adequately and reasonably protect customer data, treating the failure to employ

reasonable and appropriate measures to protect against unauthorized access to

confidential consumer data as an unfair act or practice prohibited by Section 5 of the

FTC Act, 15 U.S.C. § 45. Orders resulting from these actions further clarify the

measures businesses must take to meet their data security obligations.




31
   Protecting Personal Information: A Guide for Business, FED. TRADE. COMM’M
(Oct. 2016), https://www.ftc.gov/system/files/documents/plain-language/pdf-
0136_proteting-personal-information.pdf (last accessed November 30, 2022).
Attached hereto at Exhibit 26.
32
   See Exhibit 25.
                                             31
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.32 Filed 11/30/22 Page 32 of 73




      83.    W&F was at all times fully aware of its obligation to protect the Private

Information of its patients. W&F was also aware of the significant repercussions

that would result from its failure to do so.

      84.    As evidenced by Defendant’s failure to comply with its legal

obligations established by the FTC Act, Defendant failed to properly safeguard Class

members’ Private Information, allowing hackers to access their Private Information

E.    W&F Failed to Comply with Healthcare Industry Standards

      85.    HHS’s Office for Civil Rights has stated:

             While all organizations need to implement policies, procedures, and
             technical solutions to make it harder for hackers to gain access to their
             systems and data, this is especially important in the healthcare
             industry.

             Hackers are actively targeting healthcare organizations, as they store
             large quantities of highly Private and valuable data.33

      86.    HHS highlights several basic cybersecurity safeguards that can be

implemented to improve cyber resilience that require a relatively small financial

investment yet can have a major impact on an organization’s cybersecurity posture

including: (a) the proper encryption of Private Information; (b) educating and




33
  Cybersecurity Best Practices for Healthcare Organizations, HIPAA JOURNAL
(Nov. 1, 2018), https://www.hipaajournal.com/important-cybersecurity-best-
practices-for-healthcare-organizations/ (last accessed November 30, 2022).
Attached hereto at Exhibit 27.
                                               32
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.33 Filed 11/30/22 Page 33 of 73




training healthcare employees on how to protect Private Information; and (c)

correcting the configuration of software and network devices.

      87.   Private cybersecurity firms have also identified the healthcare sector as

being particularly vulnerable to cyber-attacks, both because the of the value of the

Private Information which they maintain and because as an industry they have been

slow to adapt and respond to cybersecurity threats. 34 They too have promulgated

similar best practices for bolstering cybersecurity and protecting against the

unauthorized disclosure of Private Information.

      88.   Despite the abundance and availability of information regarding

cybersecurity best practices for the healthcare industry, W&F chose to ignore them.

These best practices were known, or should have been known by W&F, whose

failure to heed and properly implement them directly led to the Data Breach and the

unlawful exposure of Private Information.

F.    Damages to Plaintiff and the Class

      89.   Plaintiff and the Class have been damaged by the compromise of their

Private Information in the Data Breach.

      90.   The ramifications of W&F’s failure to keep its patients’ Private

Information secure are long-lasting and severe. Once Private Information is stolen,


34
   See, e.g., 10 Best Practices For Healthcare Security, INFOSEC,
https://resources.infosecinstitute.com/topics/healthcare-information-security/#gref
(last accessed November 30, 2022). Attached hereto at Exhibit 28.
                                            33
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.34 Filed 11/30/22 Page 34 of 73




fraudulent use of that information and damage to the victims may continue for years.

Consumer victims of data breaches are more likely to become victims of identity

fraud. 35

       91.   In addition to its obligations under state and federal laws and

regulations, Defendant owed a common law duty to Plaintiff and Class members to

protect the Private Information they entrusted to it, including to exercise reasonable

care in obtaining, retaining, securing, safeguarding, deleting, and protecting the

Private Information in its possession from being compromised, lost, stolen, accessed,

and misused by unauthorized parties.

       92.   Defendant further owed and breached its duty to Plaintiff and Class

members to implement processes and specifications that would detect a breach of its

security systems in a timely manner and to timely act upon warnings and alerts,

including those generated by its own security systems.

       93.   Defendant also failed to maintain Plaintiff’s and Class members’

confidences by improperly disclosing their Private Information without consent.

       94.   As a direct result of Defendant’s intentional, willful, reckless, and

negligent conduct which resulted in the Data Breach, unauthorized parties were able

to access, acquire, view, publicize, and/or otherwise commit the identity theft and


35
  2014 LexisNexis True Cost of Fraud Study, LEXISNEXIS (Aug. 2014),
https://www.lexisnexis.com/risk/downloads/assets/true-cost-fraud-2014.pdf (last
accessed November 30, 2022). Attached hereto at Exhibit 29.
                                             34
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.35 Filed 11/30/22 Page 35 of 73




misuse of Plaintiff and Class members’ Private Information as detailed above, and

Plaintiff and members of the Class are at a heightened and increased substantial risk

of suffering identity theft and fraud.

      95.    The risks associated with identity theft are serious. While some identity

theft victims can resolve their problems quickly, others spend hundreds to thousands

of dollars and many days repairing damage to their good name and credit record.

Some consumers victimized by identity theft may lose out on job opportunities, or

be denied loans for education, housing or cars because of negative information on

their credit reports. In rare cases, they may even be arrested for crimes they did not

commit.

      96.    Some of the injuries and risks associated with the loss of Private

Information have already manifested themselves in Plaintiff and other Class

members’ lives. Each Class member received a cryptically written notice letter from

Defendant stating that their Private Information was released, and that they should

remain vigilant for fraudulent activity, with no other explanation of where this

Private Information could have gone, or who might have access to it.

      97.    As advised by the letter, Plaintiff Braggs signed up for the offered IDX

single-bureau credit monitoring on November 22, 2022.




                                             35
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.36 Filed 11/30/22 Page 36 of 73




      98.    However, this credit monitoring was not enough to prevent harm:

Shortly after signing up, Plaintiff received an email from the service notifying her

that her information was already for sale on the dark web.

      99.    Plaintiff and the Class face a substantial risk of suffering out-of-pocket

fraud losses such as fraudulent charges on online accounts, credit card fraud,

applications for benefits made fraudulent in their names, loans opened in their

names, medical services billed in their names, government benefits fraudulently

drawn in their name, and identity theft. Many Class members may already be victims

of identity theft and fraud without realizing it.

      100. Plaintiff and Class members have, may have, and/or will have incurred

out of pocket costs for protective measures such as credit monitoring fees, credit

report fees, credit freeze fees, and similar costs directly or indirectly related to the

Data Breach.

      101. Plaintiff and Class members have lost confidence in their medical

provider, W&F, as a result of the Data Breach.

      102. Plaintiff and Class members did not receive the full benefit of their

bargain when paying for medical services, and instead received services that were

of a diminished value to those described in their agreements with their respective

healthcare institutions that had made agreements with W&F for the benefit and

protection of Plaintiff and Class members and their respective Private Information.


                                               36
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.37 Filed 11/30/22 Page 37 of 73




Plaintiff and Class members were damaged in an amount at least equal to the

difference in the value between the services they thought they paid for (which would

have included adequate data security protection) and the services they actually

received.

      103. Plaintiff and Class members would not have obtained services from

their medical providers had they known that Defendant failed to properly train its

employees, lacked safety controls over its computer network, and did not have

proper data security practices to safeguard their Private Information from criminal

theft and misuse.

      104. Plaintiff and the Class will continue to spend significant amounts of

time to monitor their financial and medical accounts for misuse.

      105. The theft of Social Security numbers, which were purloined as part of

this Data Breach, is particularly detrimental to victims. The U.S. Social Security

Administration (“SSA”) warns that “[i]dentity theft is one of the fastest growing

crimes in America.”36 The SSA has stated that “[i]dentity thieves can use your

number and your good credit to apply for more credit in your name. Then, they use

the credit cards and don’t pay the bills, it damages your credit. You may not find

out that someone is using your number until you’re turned down for credit, or you


36 Identity Theft And Your Social Security Number, SOCIAL SECURITY ADMIN.
(Dec. 2013), http://www.ssa.gov/pubs/EN-05-10064.pdf (last accessed November
30, 2022). Attached hereto at Exhibit 30.
                                            37
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.38 Filed 11/30/22 Page 38 of 73




begin to get calls from unknown creditors demanding payment for items you never

bought.”37 In short, “[s]omeone illegally using your Social Security number and

assuming your identity can cause a lot of problems.”38

         106. In fact, a new Social Security number is substantially less effective

where “other personal information, such as [the victim’s] name and address, remains

the same” and for some victims, “a new number actually creates new problems. If

the old credit information is not associated with your new number, the absence of

any credit history under your new number may make it more difficult for you to get

credit.”39

         107. Identity thieves can use the victim’s Private Information to commit any

number of frauds, such as obtaining a job, procuring housing, or even giving false

information to police during an arrest. In the healthcare industry context, Private

Information can be used to submit false insurance claims. As a result, Plaintiff and

Class members now face a real and continuing immediate risk of identity theft and

other problems associated with the disclosure of their Social Security numbers and

will need to monitor their credit for an indefinite duration. For Plaintiff and Class

members, this risk creates unending feelings of fear and annoyance. Private

Information is especially valuable to identity thieves. Defendant knew or should


37
   Id.
38
   Id.
39
   Id.
                                              38
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.39 Filed 11/30/22 Page 39 of 73




have known this and strengthened its data systems accordingly. Defendant was put

on notice of the substantial and foreseeable risk of harm from a data breach, yet it

failed to properly prepare for that risk.

      108. As a result of the Data Breach, Plaintiff and Class members’ Private

Information has diminished in value.

      109. The Private Information belonging to Plaintiff and Class members is

private and was left inadequately protected by Defendant who did not obtain Plaintiff

or Class members’ consent to disclose such Private Information to any other person

as required by applicable law and industry standards. Defendant disclosed Plaintiff

and Class members’ Private Information as a direct result of its inadequate security

measures.

      110.    The Data Breach was a direct and proximate result of Defendant’s

failure to: (a) properly safeguard and protect Plaintiff and Class members’ Private

Information from unauthorized access, use, and disclosure, as required by various

state and federal regulations, industry practices, and common law; (b) establish and

implement appropriate administrative, technical, and physical safeguards to ensure

the security and confidentiality of Plaintiff and Class members’ Private Information;

and (c) protect against reasonably foreseeable threats to the security or integrity of

such information.




                                             39
Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.40 Filed 11/30/22 Page 40 of 73




      111. Defendant had the resources necessary to prevent the Data Breach, but

neglected to adequately implement data security measures, despite its obligation to

protect customer data.

      112. Defendant did not properly train its employees, particularly its

information technology department, to timely identify and/or avoid ransomware

attacks.

      113. Had Defendant remedied the deficiencies in its data security systems

and adopted security measures recommended by experts in the field, it would have

prevented the intrusions into its systems and, ultimately, the theft of Plaintiff and

Class members’ Private Information.

      114. As a direct and proximate result of Defendant’s wrongful actions and

inactions, Plaintiff and Class members have been placed at an imminent, immediate,

and continuing increased risk of harm from identity theft and fraud, requiring them

to take the time which they otherwise would have dedicated to other life demands

such as work and family in an effort to mitigate the actual and potential impact of

the Data Breach on their lives.

      115. The U.S. Department of Justice’s Bureau of Justice Statistics found that

“among victims who had personal information used for fraudulent purposes, twenty-




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nine percent spent a month or more resolving problems” and that “resolving the

problems caused by identity theft [could] take more than a year for some victims.”40

         116. Other than offering 12 months of credit monitoring, Defendant did not

take any measures to assist Plaintiff and Class members.

         117. Defendant’s failure to adequately protect Plaintiff and Class members’

Private Information has resulted in Plaintiff and Class members having to undertake

these tasks, which require extensive amounts of time, calls, and, for many of the

credit and fraud protection services, payment of money–while Defendant sits by and

does nothing to assist those affected by the incident. Instead, as Keystone’s notice

confirms, the burden is on Plaintiff and Class members to discover possible

fraudulent activity and identity theft and mitigate the negative impacts arising from

such fraudulent activity on their own.

         118. While Defendant offered one year of credit monitoring to Class

members, the credit monitoring offered does not guarantee privacy or data security

for Plaintiff. Thus, to mitigate harm, Plaintiff and Class members are now burdened

with indefinite monitoring and vigilance of their accounts.

         119. Worse still, the limited offer of credit monitoring is woefully

inadequate. While Plaintiff has already been alerted that her Private Information is



40
     See Exhibit 17.

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now for sale on the dark web, the worst is yet to come. There may be a time lag

between when fraudulent misuse of the compromised Private Information occurs

versus when it is discovered, and between when such Private Information is acquired

and when it is used. Furthermore, identity theft monitoring only alerts someone to

the fact that they have already been the victim of identity theft (i.e., fraudulent

acquisition and use of another person’s Private Information) – it does not prevent

identity theft.41 This is especially true for many kinds of medical identity theft, for

which most credit monitoring plans provide little or no monitoring or protection.

      120. Plaintiff and Class members have been damaged in several other ways

as well. Plaintiff and Class members have been exposed to an impending, imminent,

and ongoing increased risk of fraud, identity theft, and other misuse of their Private

Information. Plaintiff and Class members must now and indefinitely closely monitor

their financial and other accounts to guard against fraud. This is a burdensome and

time-consuming task. Class members have also been forced to purchase adequate

credit reports, credit monitoring and other identity protection services, and have

placed credit freezes and fraud alerts on their credit reports, while also spending

significant time investigating and disputing fraudulent or suspicious activity on their


41
  See, e.g., Kayleigh Kulp, Credit Monitoring Services May Not Be Worth the
Cost, CNBC (Nov. 30, 2017), https://www.cnbc.com/2017/11/29/credit-
monitoring-services-may-not-be-worth-the-cost.html (last accessed November 30,
2022). Attached hereto at Exhibit 31.

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accounts. Plaintiff and Class members also suffered a loss of the inherent value of

their Private Information.

      121. The Private Information stolen in the Data Breach can be misused on

its own or can be combined with personal information from other sources such as

publicly available information, social media, etc. to create a package of information

capable of being used to commit further identity theft. Thieves can also use the stolen

Private Information to send spear-phishing emails to Class members to trick them

into revealing sensitive information. Lulled by a false sense of trust and familiarity

from a seemingly valid sender (for example Wells Fargo, Amazon, or a government

entity), the individual agrees to provide sensitive information requested in the email,

such as login credentials, account numbers, and the like.

      122. As a result of Defendant’s failures to prevent the Data Breach, Plaintiff

and Class members have suffered, will suffer, and are at increased risk of suffering:

             • The compromise, publication, theft and/or
               unauthorized use of their Private Information;

             • Out-of-pocket costs associated with the prevention,
               detection, recovery and remediation from identity
               theft or fraud;

             • Lost opportunity costs and lost wages associated with
               efforts expended and the loss of productivity from
               addressing and attempting to mitigate the actual and
               future consequences of the Data Breach, including but
               not limited to efforts spent researching how to
               prevent, detect, contest and recover from identity theft
               and fraud;
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             • The continued risk to their Private Information, which
               remains in the possession of Defendant and is subject
               to further breaches so long as Defendant fails to
               undertake appropriate measures to protect the Private
               Information in its possession;

             • Current and future costs in terms of time, effort and
               money that will be expended to prevent, detect,
               contest, remediate and repair the impact of the Data
               Breach for the remainder of the lives of Plaintiff and
               Class members; and

             • Anxiety and distress resulting fear of misuse of their
               Private Information.

      123. In addition to a remedy for the economic harm, Plaintiff and Class

members maintain an undeniable interest in ensuring that their Private Information

remains secure and is not subject to further misappropriation and theft.

                       CLASS ACTION ALLEGATIONS

      124. Plaintiff brings this action individually and on behalf of all other

persons similarly situated, pursuant to Federal Rule of Civil Procedure 23(a),

23(b)(1), 23(b)(2), 23(b)(3), and/or 23(c)(4).

      125. Specifically, Plaintiff proposes the following Nationwide Class and

Michigan Subclass (collectively, the “Class”) definitions:

             Nationwide Class
             All persons residing in the United States whose Private
             Information was compromised as a result of the Data
             Breach discovered on or about January of 2022.

             Michigan Subclass
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             All persons residing in Michigan whose Private
             Information was compromised as a result of the Data
             Breach discovered on or about January of 2022.

Excluded from the Class are Defendant and Defendant’s affiliates, parents,

subsidiaries, employees, officers, agents, and directors. Also excluded are any

judicial officers presiding over this matter and the members of their immediate

families and judicial staff.

      126. Plaintiff reserves the right to modify, change, amend, or expand the

definitions of the Nationwide Class and Michigan Subclass based upon discovery

and further investigation.

      127. Certification of Plaintiff’s claims for class-wide treatment is

appropriate because Plaintiff can prove the elements of the claims on a class-wide

basis using the same evidence as would be used to prove those elements in individual

actions alleging the same claims.

      128. Numerosity—Federal Rule of Civil Procedure 23(a)(1). The

members of the Class are so numerous that joinder of all Class members would be

impracticable. Upon information and belief, the Class numbers number in the

hundreds of thousands. Moreover, the Class is composed of an easily ascertainable

set of individuals and entities who were patients of Defendant and who were

impacted by the Data Breach of Defendant’s systems. The precise number of Class

members can be further confirmed through discovery, which includes Defendant’s


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records. The disposition of Plaintiff’s and Class members’ claims through a class

action will benefit the parties and this Court.

      129. Commonality         and    Predominance—Federal       Rule    of   Civil

Procedure 23(a)(2) and 23(b)(3). Common questions of law and fact exist as to all

members of the Class and predominate over questions affecting only individual

members of the Class. Such common questions of law or fact include, inter alia:

             • Whether Defendant’s data security systems prior to and
               during the Data Breach complied with applicable data
               security laws and regulations;

             • Whether Defendant’s data security systems prior to and
               during the Data Breach were consistent with industry
               standards;

             • Whether Defendant properly implemented its
               purported security measures to protect Plaintiff’s and
               the Class’s Private Information from unauthorized
               capture, dissemination, and misuse;

             • Whether Defendant took reasonable measures to
               determine the extent of the Data Breach after it first
               learned of same;

             • Whether Defendant disclosed Plaintiff’s and the
               Class’s Private Information in violation of the
               understanding that the Private Information was being
               disclosed in confidence and should be maintained;

             • Whether Defendant willfully, recklessly, or negligently
               failed to maintain and execute reasonable procedures
               designed to prevent unauthorized access to Plaintiff’s
               and the Class’s Private Information;


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              • Whether Defendant was negligent in failing to properly
                secure and protect Plaintiff’s and the Class’s Private
                Information;

              • Whether Defendant was unjustly enriched by its
                actions; and

              • Whether Plaintiff and the other members of the Class
                are entitled to damages, injunctive relief, or other
                equitable relief, and the measure of such damages and
                relief.

       130.   Defendant engaged in a common course of conduct giving rise to the

legal rights sought to be enforced by Plaintiff, on behalf of herself and other

members of the Class. Similar or identical common law violations, business

practices, and injuries are involved. Individual questions, if any, pale by comparison,

in both quality and quantity, to the numerous common questions that predominate

in this action.

       131. Typicality—Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s

claims are typical of the claims of the other members of the Class because, among

other things, all Class members were similarly injured and sustained similar

monetary and economic injuries as a result of Defendant’s uniform misconduct

described above and were thus all subject to the Data Breach alleged herein. Further,

there are no defenses available to Defendant that are unique to Plaintiff.

       132. Adequacy of Representation—Federal Rule of Civil Procedure

23(a)(4). Plaintiff is an adequate representative of the Class because her interests do

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not conflict with the interests of the Class she seeks to represent, she has retained

counsel competent and experienced in complex class action litigation, and Plaintiff

will prosecute this action vigorously. The Class’s interests will be fairly and

adequately protected by Plaintiff and her counsel.

      133. Injunctive Relief—Federal Rule of Civil Procedure 23(b)(2).

Defendant has acted and/or refused to act on grounds that apply generally to the

Class, making injunctive and/or declaratory relief appropriate with respect to the

Class under Fed. Civ. P. 23 (b)(2).

      134. Superiority—Federal Rule of Civil Procedure 23(b)(3). A class

action is superior to any other available means for the fair and efficient adjudication

of this controversy, and no unusual difficulties are likely to be encountered in the

management of this class action. The damages or other financial detriment suffered

by Plaintiff and the other members of the Class are relatively small compared to the

burden and expense that would be required to individually litigate their claims

against Defendant, so it would be impracticable for members of the Class to

individually seek redress for Defendant’s wrongful conduct. Even if members of

the Class could afford individual litigation, the court system could not.

Individualized litigation creates a potential for inconsistent or contradictory

judgments and increases the delay and expense to all parties and the court system.

By contrast, the class action device presents far fewer management difficulties and


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provides the benefits of a single adjudication, economy of scale, and comprehensive

supervision by a single court.

      135. Class certification is also appropriate under Rules 23(b)(1) and/or

(b)(2) because:

          a. The prosecution of separate actions by the individual members of the

             Class would create a risk of inconsistent or varying adjudications

             establishing incompatible standards of conduct for Defendant;

          b. The prosecution of separate actions by individual Class members would

             create a risk of adjudication that would, as a practical matter, be

             dispositive of the interests of other Class members not parties to the

             adjudications, or would substantially impair or impede their ability to

             protect their interests; and

          c. Defendant has acted and refused to act on grounds generally applicable

             to the Class, thereby making appropriate final injunctive relief with

             respect to the members of the Class as a whole.

      136. Class certification is also appropriate because this Court can designate

particular claims or issues for class-wide treatment and may designate multiple

subclasses pursuant to Fed. R. Civ. P. 23(c)(4).

      137. No unusual difficulties are likely to be encountered in the management

of this action as a class action.


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                                   COUNT I
                               NEGLIGENCE
    (On Behalf of Plaintiff and the Nationwide Class or, Alternatively, the
                              Michigan Subclass)

      138. Plaintiff fully incorporates by reference all of the above paragraphs, as

though fully set forth herein.

      139. Upon Defendant’s acceptance and storage of the Private Information of

Plaintiff and the Class in its computer systems and on its networks, Defendant

undertook and owed a duty to Plaintiff and the Class to exercise reasonable care to

secure and safeguard that Information and to use commercially reasonable methods

to do so. Defendant knew that the Private Information was private and confidential

and was to be protected and maintained as such.

      140. Defendant owed a duty of care not to subject Plaintiff and the Class’s

Private Information to an unreasonable risk of exposure and theft because Plaintiff

and the Class were foreseeable and probable victims of any inadequate data security

practices.

      141. Defendant owed numerous duties to Plaintiff and the Class, including

the following:

             • to exercise reasonable care in obtaining, retaining,
               securing, safeguarding, deleting and protecting Private
               Information in its possession;

             • to protect Private Information using reasonable and
               adequate security procedures and systems that are
               compliant with industry-standard practices; and
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               • to implement processes to quickly detect a data breach
                 and to timely act on warnings about data breaches.

      142. Defendant also breached its duty to Plaintiff and Class members to

adequately protect and safeguard Private Information by disregarding standard

information security principles, despite obvious risks, and by allowing unmonitored

and unrestricted access to unsecured Private Information. Furthering its dilatory

practices, Defendant failed to provide adequate supervision and oversight of the

Private Information with which it was and is entrusted, in spite of the known risk

and foreseeable likelihood of breach and misuse, which permitted a malicious third

party to gather Plaintiff and Class members’ Private Information for the purpose of

misusing and intentionally disclosing it to others without consent.

      143. Defendant knew, or should have known, of the risks inherent in

collecting and storing Private Information and the importance of adequate security.

Defendant knew or should have known about numerous well-publicized data

breaches within the medical industry.

      144. Defendant knew, or should have known, that its data systems and

networks did not adequately safeguard Plaintiff and Class members’ Private

Information.




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      145. Defendant breached its duties to Plaintiff and Class members by failing

to provide fair, reasonable, or adequate computer systems and data security practices

to safeguard Plaintiff and Class members’ Private Information.

      146. Because Defendant knew that a breach of its systems would damage

hundreds of thousands of its patients, including Plaintiff and Class members,

Defendant had a duty to adequately protect its data systems and the Private

Information contained thereon.

      147. Defendant’s duty of care to use reasonable security measures arose as

a result of the special relationship that existed between Defendant and Plaintiff and

Class members, which is recognized by laws and regulations including but not

limited to common law. Defendant was in a position to ensure that its systems were

sufficient to protect against the foreseeable risk of harm to Class members from a

data breach.

      148. In addition, Defendant had a duty to employ reasonable security

measures under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45,

which prohibits “unfair . . . practices in or affecting commerce,” including, as

interpreted and enforced by the FTC, the unfair practice of failing to use reasonable

measures to protect confidential data.

      149. Defendant also had a duty under HIPAA privacy laws, which were

enacted with the objective of protecting the confidentiality of clients’ healthcare


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information and set forth the conditions under which such information can be used,

and to whom it can be disclosed. HIPAA privacy laws not only apply to healthcare

providers and the organizations they work for, but to any entity that may have access

to healthcare information about a patient that—if it were to fall into the wrong

hands—could present a risk of harm to the patient’s finances or reputation.

      150. Defendant’s duty to use reasonable care in protecting confidential data

arose not only as a result of the statutes and regulations described above, but also

because Defendant is bound by industry standards to protect confidential Private

Information.

      151. Defendant’s own conduct also created a foreseeable risk of harm to

Plaintiff and Class members and their Private Information. Defendant’s misconduct

included failing to: (1) secure Plaintiff and Class member’s Private Information; (2)

comply with industry standard security practices; (3) implement adequate system

and event monitoring; and (4) implement the systems, policies, and procedures

necessary to prevent this type of data breach.

      152. Defendant breached its duties, and thus was negligent, by failing to use

reasonable measures to protect Class members’ Private Information, and by failing

to provide timely notice of the Data Breach. The specific negligent acts and

omissions committed by Defendant include, but are not limited to, the following:




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             a. Failing to adopt, implement, and maintain adequate
                security measures to safeguard Class members’ Private
                Information;

             b. Failing to adequately monitor the security of
                Defendant’s networks and systems;

             c. Allowing unauthorized access to Class members’
                Private Information;

             d. Failing to detect in a timely manner that Class
                members’ Private Information had been compromised;
                and

             e. Failing to timely notify Class members about the Data
                Breach so that they could take appropriate steps to
                mitigate the potential for identity theft and other
                damages

      153. Through Defendant’s acts and omissions described in this Complaint,

including its failure to provide adequate security and failure to protect Plaintiff and

Class members’ Private Information from being foreseeably captured, accessed,

disseminated, stolen and misused, Defendant unlawfully breached its duty to use

reasonable care to adequately protect and secure Plaintiff and Class members’

Private Information during the time it was within Defendant’s possession or control.

      154. Defendant’s conduct was grossly negligent and departed from

reasonable standards of care, including but not limited to, failing to adequately

protect the Private Information and failing to provide Plaintiff and Class members

with timely notice that their sensitive Private Information had been compromised.



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      155. Neither Plaintiff nor Class members contributed to the Data Breach and

subsequent misuse of their Private Information as described in this Complaint.

      156. As a direct and proximate result of Defendant’s conduct, Plaintiff and

Class members suffered damages as alleged above.

      157. Plaintiff and Class members are also entitled to injunctive relief, as set

forth further below, requiring Defendant to, e.g., (i) strengthen data security systems

and monitoring procedures; (ii) submit to future annual audits of those systems and

monitoring procedures; and (iii) immediately provide at least five (5) years of free

credit monitoring to all Class members.

                                  COUNT II
                           NEGLIGENCE PER SE
    (On Behalf of Plaintiff and the Nationwide Class or, Alternatively, the
                              Michigan Subclass)

      158. Plaintiff incorporates the above allegations by reference.

      159. Pursuant to the Federal Trade Commission Act (15 U.S.C. §45),

Defendant had a duty to provide fair and adequate data security practices to

safeguard Plaintiff’s and Class members’ PII.

      160. Pursuant to HIPAA (42 U.S.C. §1302d et. seq.), Defendant had a duty

to implement reasonable safeguards to protect Plaintiff’s and Class members’ PII

and timely notify Plaintiff and Class members of the Data Breach.

      161. Defendant breached its duties to Plaintiff and Class members under the

Federal Trade Commission Act (15 U.S.C. § 45) and HIPAA (42 U.S.C. § 1302d et.

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seq.) by failing to provide (a) fair, reasonable, or adequate data security practices to

safeguard Plaintiff’s and Class members’ PII, and (b) timely notice of the Breach.

      162. Defendant’s failures to comply with applicable laws and regulations

constitute negligence per se.

      163. But for Defendant’s wrongful and negligent breach of its duties owed

to Plaintiff and Class members, Plaintiff and Class members would not have been

injured.

      164. The injury and harm suffered by Plaintiff and Class members was the

reasonably foreseeable result of Defendant’s breach of its duties. Defendant knew

or should have known that it was failing to meet its duties, and that Defendant’s Data

Breach would cause Plaintiff and Class members to experience the foreseeable

harms associated with the exposure of their PII.

      165. As a direct and proximate result of Defendant’s negligent conduct,

Plaintiff and Class members have suffered injury and are entitled to damages in an

amount to be proven at trial.

                                  COUNT III
           VIOLATIONS OF MICHIGAN’S DATA BREACH
                     PROMPT NOTIFICATION LAW
             (MICH. COMP. LAWS ANN. § 445.72(1), et seq.)
    (On Behalf of Plaintiff and the Nationwide Class or, Alternatively, the
                              Michigan Subclass)

      166. Plaintiff incorporates the above allegations by reference.



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      167. Defendant is required to accurately and notify Plaintiff and Class

Members if it discovers a security breach, or receives notice of a security breach

(where unencrypted and unredacted Personal Information was accessed or acquired

by unauthorized persons), without unreasonable delay under Mich. Comp. Laws

Ann. § 445.72(1).

      168. Defendant is a business that owns or licenses computerized data that

includes personal information as defined by Mich. Comp. Laws Ann. § 445.72(1).

      169. Plaintiff and Class Members’ personal information (e.g., Social

Security numbers) includes personal information as covered under Mich. Comp.

Laws Ann. § 445.72(1).

      170. Because Defendant discovered a security breach and had notice of a

security breach (where unencrypted and unredacted personal information was

accessed or acquired by unauthorized persons), Defendant had an obligation to

disclose such in a timely and accurate fashion as mandated by Mich. Comp. Laws

Ann. § 445.72(4).

      171. Defendant has stated it was aware of the Data Breach in January 2022.

Defendant has also stated that it only became aware that the Data Breach

compromised protected PII and PHI in May 2022. However, Defendant did not

notify Plaintiff and the Class until November 2022, approximately ten months after




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it first learned of the Data Breach, and six months after its investigation had

confirmed that the Private Information was compromised.

      172. As a direct and proximate result of Defendant’s violations of Mich.

Comp. Laws Ann. § 445.72(4), Plaintiff and Class Members suffered damages as set

forth herein.

      173. Plaintiff and Class Members seek relief under Mich. Comp. Laws Ann.

§ 445.72(13), including, but not limited to, a civil fine of up to $250 for each

violation.

                                  COUNT IV
                          UNJUST ENRICHMENT
    (On Behalf of Plaintiff and the Nationwide Class or, Alternatively, the
                              Michigan Subclass

      174. Plaintiff incorporates the above allegations by reference.

      175. Plaintiff and Class members conferred a monetary benefit on Defendant

in the form of monies paid for the purchase of health services and products from

Defendant prior to and during the period of the Data Breach.

      176. Defendant appreciates or has knowledge of the benefits conferred

directly upon it by Plaintiff and the Class members.

      177. The monies paid for the purchase of health services and products by

Plaintiff and the Class members to Defendant during and/or prior to the period of the

Data Breach were supposed to be used by Defendant, in part, to pay for the


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administrative and other costs of providing reasonable data security and protection

to Plaintiff and the Class members.

      178. Defendant failed to provide reasonable security, safeguards, and

protection for the Private Information of Plaintiff and Class members and, as a result,

Plaintiff and Class members overpaid Defendant for the products and services

purchased.

      179. Had Plaintiff and the Class known that Defendant would not adequately

protect their Private Information, they would not have elected to purchase health

care products or services from Defendant, or would have paid less for the same

services.

      180. Under principles of equity and good conscience, Defendant should not

be permitted to retain the money belonging to Plaintiff and the Class members

because Plaintiff and Class members paid for adequate safeguards and security

measures to protect their Private Information, which measures Defendant did not

provide.

      181. Plaintiff and the Class have conferred directly upon Defendant an

economic benefit in the nature of monies received and profits resulting from sales

and unlawful overcharges to the economic detriment of Plaintiff and the Class

members.




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      182. The economic benefit, including the monies paid and the overcharges

and profits derived by Defendant and paid by Plaintiff and the Class members, is a

direct and proximate result of Defendant’s unlawful practices as set forth in this

Complaint.

      183. The financial benefits derived by Defendant rightfully belong to

Plaintiff and the Class members.

      184. A constructive trust should be imposed upon all unlawful or inequitable

sums received by Defendant traceable to Plaintiff and the Class.

      185. Plaintiff and the Class have no adequate remedy at law.

                                  COUNT V
                     BREACH OF FIDUCIARY DUTY
    (On Behalf of Plaintiff and the Nationwide Class or, Alternatively, the
                              Michigan Subclass)

      193. Plaintiff fully incorporates by reference all of the above paragraphs, as

though fully set forth herein.

      194. In providing their Private Information to Defendant as patients seeking

medical care, Plaintiff and Class members justifiably placed a special confidence in

Defendant to act in good faith and with due regard for the interests of Plaintiff and

Class members to safeguard and keep confidential that Private Information.

      195. Defendant accepted the special confidence Plaintiff and Class members

placed in it, as evidenced by its assertion that it “endeavors to protect the privacy



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and security of sensitive information” (as included in the form Data Breach

notification letters distributed to Class members).

      196. In light of the special relationship between Defendant and Plaintiff and

Class members, whereby Defendant became a guardian of Plaintiff and Class

members’ Private Information, Defendant became a fiduciary by its undertaking and

guardianship of the Private Information, to act primarily for the benefit of its

patients, including Plaintiff and Class members, for the safeguarding of their Private

Information.

      197. Additionally, the special relationship of patient and health care provider

gives rise to a fiduciary duty on the part of Defendant to protect its patients’ Private

Information.

      198. Defendant has a fiduciary duty to act for the benefit of Plaintiff and

Class members upon matters within the scope of its patient relationships, in

particular, to keep secure the Private Information of its patients.

      199. Defendant breached its fiduciary duties to Plaintiff and Class members

by failing to protect the integrity of the systems containing Plaintiff and Class

members’ Private Information.

      200. Defendant breached its fiduciary duties to Plaintiff and Class members

by otherwise failing to safeguard Plaintiff and Class members’ Private Information.




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      201. As a direct and proximate result of Defendant’s breaches of its

fiduciary duties, Plaintiff and Class members have suffered and/or will suffer

injury, including but not limited to: (i) actual identity theft; (ii) the compromise,

publication, and/or theft of their Private Information; (iii) out-of-pocket expenses

associated with the prevention, detection, and recovery from identity theft and/or

unauthorized use of their Private Information; (iv) lost opportunity costs associated

with effort expended and the loss of productivity addressing and attempting to

mitigate the actual and future consequences of the Data Breach, including but not

limited to efforts spent researching how to prevent, detect, contest, and recover from

identity theft; (v) the continued risk to their Private Information, which remains in

Defendant’s possession and is subject to further unauthorized disclosures so long

as Defendant fails to undertake appropriate and adequate measures to protect

the Private Information in its continued possession; (vi) future costs in terms of time,

effort, and money that will be expended as a result of the Data Breach for the

remainder of the lives of Plaintiff and Class Members; and (vii) the diminished

value of the services they paid for and received.

      202. As a direct and proximate result of Defendant’s breaches of its fiduciary

duties, Plaintiff and Class members have suffered and will continue to suffer other

forms of injury and/or harm, and other economic and non-economic losses.




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                                  COUNT VI
                        BREACH OF CONFIDENCE
    (On Behalf of Plaintiff and the Nationwide Class or, Alternatively, the
                              Michigan Subclass)

      203. Plaintiff fully incorporates by reference all of the above paragraphs, as

though fully set forth herein.

      204. Plaintiff and Class members have an interest, both equitable and legal,

in the Private Information that was conveyed to, collected by, and maintained by

Defendant and that was ultimately accessed or compromised in the Data Breach.

      205. As a healthcare provider, Defendant has a special relationship to its

patients, like Plaintiff and the Class members.

      206. Because of that special relationship, Defendant was provided with and

stored private and valuable PII and PHI belonging to Plaintiff and the Class, which

it was required to maintain in confidence.

      207. Plaintiff and the Class provided Defendant with their Private

Information under both the express and/or implied agreement of Defendant to limit

the use and disclosure of such Private Information.

      208. Defendant had a common law duty to maintain the confidentiality of

Plaintiff’s and Class members’ Private Information.

      209. Defendant owed a duty to Plaintiff and Class members to exercise the

utmost care in obtaining, retaining, securing, safeguarding, deleting, and protecting



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their Private Information in its possession from being compromised, lost, stolen,

accessed by, misused by, or disclosed to unauthorized persons.

      210. Plaintiff and Class members have a privacy interest in their personal

and medical matters, and Defendant had a duty not to disclose confidential personal

and medical information and records concerning its patients.

      211. As a result of the parties’ relationship of trust, Defendant had

possession and knowledge of the confidential Private Information of Plaintiff and

Class members.

      212. Plaintiff’s and the Class’s Private Information is not generally known

to the public and is confidential by nature.

      213. Plaintiff and Class members did not consent to nor authorize Defendant

to release or disclose their Private Information to an unknown criminal actor.

      214. Defendant breached the duty of confidence it owed to Plaintiff and

Class members when Plaintiff’s and Class’s Private Information was disclosed to

unknown criminal hackers by way of Defendant’s own acts and omissions, as

alleged herein.

      215. Defendant breached its duties of confidence by failing to safeguard

Plaintiff’s and Class members’ Private Information, including by, among other

things: (a) mismanaging its system and failing to identify reasonably foreseeable

internal and external risks to the security, confidentiality, and integrity of customer


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information that resulted in the unauthorized access and compromise of the Private

Information; (b) mishandling its data security by failing to assess the sufficiency of

its safeguards in place to control these risks; (c) failing to design and implement

information safeguards to control these risks; (d) failing to adequately test and

monitor the effectiveness of the safeguards’ key controls, systems, and procedures;

(e) failing to evaluate and adjust its information security program in light of the

circumstances alleged herein; (f) failing to detect the Breach at the time it began or

within a reasonable time thereafter; (g) failing to follow its own privacy policies and

practices published to its patients; (h) storing PII, PHI and medical

records/information in an unencrypted and vulnerable manner, allowing its

disclosure to hackers; and (i) making an unauthorized and unjustified disclosure and

release of Plaintiff and the Class members’ Private Information to a criminal third

party.

         216. But for Defendant’s wrongful breach of its duty of confidences owed

to Plaintiff and Class members, their privacy, confidences, and Private Information

would not have been compromised.

         217. As a direct and proximate result of Defendant’s breach of Plaintiff’s

and the Class’s confidences, Plaintiff and Class members have suffered or will suffer

injuries, including: the erosion of the essential and confidential relationship between

Defendant—as a health care services provider—and Plaintiff and Class members as


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Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.66 Filed 11/30/22 Page 66 of 73




patients; loss of their privacy and confidentiality in their Private Information; theft

of their Private Information; costs associated with the detection and prevention of

identity theft and unauthorized use of the financial accounts; costs associated with

purchasing credit monitoring and identity theft protection services; lowered credit

scores resulting from credit inquiries following fraudulent activities; costs associated

with time spent and the loss of productivity from taking time to address and attempt

to ameliorate, mitigate, and deal with the actual and future consequences of the

Defendant’s Data Breach – including finding fraudulent charges, cancelling and

reissuing cards, enrolling in credit monitoring and identity theft protection services,

freezing and unfreezing accounts, and imposing withdrawal and purchase limits on

compromised accounts; the imminent and certainly impending injury flowing from

the increased risk of potential fraud and identity theft posed by their Private

Information being placed in the hands of criminals; damages to and diminution in

value of their Private Information entrusted, directly or indirectly, to Defendant with

the mutual understanding that Defendant would safeguard Plaintiff’s and Class

members’ data against theft and not allow access and misuse of their data by others;

continued risk of exposure to hackers and thieves of their Private Information, which

remains in Defendant’s possession and is subject to further breaches so long as

Defendant fails to undertake appropriate and adequate measures to protect Plaintiff’s

and Class members’ data; loss of personal time spent carefully reviewing statements


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from health insurers and providers to check for charges for services not received, as

directed to do by Defendant; and/or mental anguish accompanying the loss of

confidences and disclosure of their confidential Private Information.

      218. Additionally, Defendant received payments from Plaintiff and Class

members for services with the understanding that Defendant would uphold its

responsibilities to maintain the confidences of Plaintiff and Class members’ Private

Information.

      219. Defendant breached the confidence of Plaintiff and Class members

when it made an unauthorized release and disclosure of their confidential Private

Information and, accordingly, it would be inequitable for Defendant to retain the

benefit at Plaintiff and Class members’ expense.

      220. As a direct and proximate result of Defendant’s breach of confidences,

Plaintiff and Class members are entitled to damages, including compensatory,

punitive, and/or nominal damages, and/or disgorgement or restitution, in an amount

to be proven at trial.

                                 COUNT VII
                         DECLARATORY RELIEF
    (On Behalf of Plaintiff and the Nationwide Class or, Alternatively, the
                              Michigan Subclass)

      221. Plaintiff fully incorporates by reference all of the above paragraphs, as

though fully set forth herein.



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         222. Under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq., this

Court is authorized to enter a judgment declaring the rights and legal relations of the

parties and granting further necessary relief. Furthermore, the Court has broad

authority to restrain acts, such as here, that are tortious and violate the terms of the

federal statutes described in this Complaint.

         223. An actual controversy has arisen in the wake of the Data Breach

regarding Defendant’s present and prospective common law and other duties to

reasonably safeguard Plaintiff and Class members’ Private Information, and whether

Defendant is currently maintaining data security measures adequate to protect

Plaintiff and Class members from future data breaches that compromise their Private

Information. Plaintiff and the Class remain at imminent risk that additional

compromises of their Private Information will occur in the future.

         224. The Court should also issue prospective injunctive relief requiring

Defendant to employ adequate security practices consistent with law and industry

standards to protect consumers’ PII and PHI.

         225. Defendant still possesses the Private Information of Plaintiff and the

Class.

         226. Defendant has made no announcement that it has changed its data

storage or security practices relating to the storage of Plaintiff’s and Class members’

Private Information.


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      227. To Plaintiff’s knowledge, Defendant has made no announcement or

notification that it has remedied the vulnerabilities and negligent data security

practices that led to the Data Breach.

      228. If an injunction is not issued, Plaintiff and the Class will suffer

irreparable injury and lack an adequate legal remedy in the event of another data

breach at W&F. The risk of another such breach is real, immediate, and substantial.

      229. The hardship to Plaintiff and Class members if an injunction does not

issue exceeds the hardship to Defendant if an injunction is issued. Among other

things, if another data breach occurs at W&F, Plaintiff and Class members will likely

continue to be subjected to a heightened, substantial, imminent risk of fraud, identify

theft, and other harms described herein. On the other hand, the cost to Defendant of

complying with an injunction by employing reasonable prospective data security

measures is relatively minimal, and Defendant has a pre-existing legal obligation to

employ such measures.

      230. Issuance of the requested injunction will not disserve the public interest.

To the contrary, such an injunction would benefit the public by preventing another

data breach at W&F, thus eliminating the additional injuries that would result to

Plaintiff and Class members, along with other consumers whose Private Information

would be further compromised.




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      231. Pursuant to its authority under the Declaratory Judgment Act, this Court

should enter a judgment declaring that W&F implement and maintain reasonable

security measures, including but not limited to the following:

         a. Engaging third-party security auditors/penetration testers, as well as

             internal security personnel, to conduct testing that includes simulated

             attacks, penetration tests, and audits on W&F’s systems on a periodic

             basis, and ordering W&F to promptly correct any problems or issues

             detected by such third-party security auditors;

         b. engaging third-party security auditors and internal personnel to run

             automated security monitoring;

         c. auditing, testing, and training its security personnel regarding any new

             or modified procedures;

         d. purging, deleting, and destroying Private Information not necessary for

             its provisions of services in a reasonably secure manner;

         e. conducting regular database scans and security checks; and

         f. routinely and continually conducting internal training and education to

             inform internal security personnel how to identify and contain a breach

             when it occurs and what to do in response to a breach.




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                            PRAYER FOR RELIEF

      WHEREFORE, Plaintiff, individually and on behalf of the other members of

the Class proposed in this Complaint, respectfully requests that the Court enter

judgment in favor of Plaintiff and the Class and against Defendant, as follows:

      A.    For an Order certifying this action as a class action and appointing

            Plaintiff and her counsel to represent the Class;

      B.    For equitable relief enjoining Defendant from engaging in the

            wrongful conduct complained of herein pertaining to the misuse

            and/or disclosure of Plaintiff and Class members’ Private Information,

            and from failing to issue prompt, complete and accurate disclosures to

            Plaintiff and Class members;

      C.    For equitable relief compelling Defendant to utilize appropriate

            methods and policies with respect to consumer data collection,

            storage, and safety, and to disclose with specificity the type of PII and

            PHI compromised during the Data Breach;

      D.    For equitable relief requiring restitution and disgorgement of

            the revenues wrongfully retained as a result of Defendant’s wrongful

            conduct;

      E.    Ordering Defendant to pay for no less than five (5) years of credit

            monitoring services for Plaintiff and the Class;


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     F.    For an award of actual damages, compensatory damages, statutory

           damages, and statutory penalties, in an amount to be determined, as

           allowable by law;

     G.    For an award of punitive damages, as allowable by law;

     H.    For an award of attorneys’ fees and costs, and any other expense,

           including expert witness fees;

     I.    Pre- and post-judgment interest on any amounts awarded; and

     J.    Such other and further relief as this court may deem just and proper.

                               JURY DEMAND

           Plaintiff demands a trial by jury on all issues so triable.



Dated: November 30, 2022                  Respectfully submitted,

                                            /s/ E. Powell Miller
                                            E. Powell Miller (P39487)
                                            Sharon S. Almonrode (P33938)
                                            THE MILLER LAW FIRM, P.C.
                                            950 W. University Drive, Suite 300
                                            Rochester, MI 48307
                                            Tel: (248) 841-2200
                                            Fax: (248) 652-2852
                                            epm@millerlawpc.com
                                            ssa@millerlawpc.com

                                            Nicholas A. Migliaccio
                                            Jason S. Rathod
                                            Tyler J. Bean (admission to be sought)
                                            MIGLIACCIO & RATHOD, LLP
                                            412 H Street, NE, Suite 302
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Case 2:22-cv-12908-SFC-EAS ECF No. 1, PageID.73 Filed 11/30/22 Page 73 of 73




                                      Washington, DC 20002
                                      Phone: 202-470-520
                                      Fax: 202-800-2730
                                      Email: nmigliaccio@classlawdc.com

                                      Attorneys for Plaintiff and the Putative
                                      Class




                                        73


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