Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 1 of 24

PageID #: 1

Benjamin K. Grant (ME Bar # 4328)
McTeague, Higbee, Case, Cohen, Whitney
& Toker, P.A
4 Union Park
P.O. Box 5000
Topsham, ME 04086
Phone: (800) 210-8740
Fax: (207) 725-1090
Email: bgrant@mcteaguehigbee.com
ATTORNEYS FOR PLAINTIFF
AND THE PROPOSED CLASS
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
PORTLAND DIVISION
BRIAN MASON, and all others similarly
situated,
Plaintiff,
vs.

CIV NO.
CLASS ACTION COMPLAINT
DEMAND FOR JURY TRIAL

ANTHEM, INC., ANTHEM HEALTH
PLANS OF MAINE, INC., D/B/A BLUE
CROSS AND BLUE SHIELD OF
MAINE, AND DOES 1-10.
Defendants.

Plaintiff Brian Mason (“Plaintiff”), by his attorneys, brings this class action on his own
behalf and on behalf of all others similarly situated against Defendants Anthem, Inc. (“Anthem,
Inc.”), Anthem Health Plans of Maine, Inc., doing business as Blue Cross and Blue Shield of
Maine (“Anthem ME”), and other unknown DOE defendants (collectively all defendants are
referred to as “Defendants”), and alleges as follows upon information and belief based on, inter
alia, the investigation of his counsel:

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 2 of 24

PageID #: 2

INTRODUCTION
1.

This is a consumer class action lawsuit brought by Plaintiff Brian Mason,

individually and on behalf of a National Class and a Maine Subclass, whose sensitive personally
identifiable information including names, birthdays, Social Security numbers, street addresses,
email addresses, and employment information, including income data (collectively referred to as
“PII”) was entrusted to Anthem, Inc. through its subsidiary Anthem ME and was stolen by
hackers from the servers on which Anthem, Inc. maintained it in a data breach that Anthem, Inc.
announced on February 4, 2015.1
2.

As insurers to whom Plaintiff and National Class and Maine Subclass Members

entrusted their most sensitive, confidential, and deeply personal information, including Social
Security Numbers, medical and financial information, Anthem, Inc. and Anthem ME both had a
duty to take reasonable measures to protect Plaintiff’s and National Class and Maine Subclass
Members’ PII. However, Anthem, Inc. and Anthem ME breached this duty.
3.

Anthem, Inc. breached this duty by failing to take the basic precautionary measure

of encrypting consumers’ PII.2 Had Anthem, Inc. encrypted its customers’ PII, Plaintiff and
National Class and Maine Subclass Members would not face the risks that they now face because
encrypted data cannot be read unless a user has the decryption key and, thus, would be useless to
the hackers who acquired it because encrypted data is not easily readable.3 In other words, had
1

See, e.g., Kurane and Finkle, At Least 300,000 Mainers at Risk in Anthem Cybersecurity
Breach,
Bangor
Daily
News,
February
5,
2015,
available
at
http://bangordailynews.com/2015/02/05/business/anthem-hit-by-massive-cybersecurity-breachpersonal-data-stolen/ (last visited February 10, 2015).
2

Yadron and Beck, Health Insurer Anthem Didn’t Encrypt Data in Theft, Wall Street Journal,
February 5, 2015, available at http://www.wsj.com/articles/investigators-eye-china-in-anthemhack-1423167560 (last visited February 10, 2015).
3

Id.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 3 of 24

PageID #: 3

Anthem, Inc. encrypted the PII that it possessed, hackers would now possess electronic gibberish
instead of Plaintiff’s and National Class and Maine Subclass Members Social Security numbers
and other PII. Unfortunately, Anthem, Inc.’s failure to encrypt its customers’ PII means that
these customers’ data is now freely readable by the hackers who acquired it and by whomever
these hackers choose to sell the PII to.
4.

In addition to failing to encrypt PII, Anthem, Inc. also failed to take other

reasonable security measures to protect customers’ PII, including by: (i) failing to exercise
reasonable care in safeguarding Plaintiff’s and National Class and Maine Subclass Members’ PII
and maintaining it in a computer system inadequate to prevent the PII from being stolen or
misused by unauthorized persons; (ii) failing to implement processes to detect a breach of its
security systems containing Plaintiff’s and National Class and Maine Subclass Members’ PII in a
timely manner, and to act upon any warnings or alerts that its security systems were breached;
(iii) failing to timely disclose to Plaintiff and National Class and Maine Subclass Members the
breach or breaches of its security systems; and (iv) failing to disclose that it could not adequately
secure from theft, intrusion, or misuse Plaintiff’s and National Class and Maine Subclass
Members’ PII.
5.

Furthermore, Anthem ME breached its duty to secure and protect the PII with

which it was entrusted by Plaintiff and Maine Subclass Members by providing this PII to
Anthem, Inc. when it knew or should have known of the above inadequacies in Anthem, Inc.’s
protection of the PII.
6.

Anthem Inc.’s and Anthem ME’s collective failure to adequately protect

customers’ PII has caused, and will continue to cause, substantial customer harm and injuries to
persons in Maine and across the United States. As a result, the PII of Plaintiff and approximately

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 4 of 24

PageID #: 4

80 million consumers is now at risk of whatever unlawful ends the hackers who stole it choose to
put it.
7.

Plaintiff and National Class and Maine Subclass Members now face a “lifelong

battle” against identity theft.4 Social Security Numbers and other PII Anthem, Inc. and Anthem
ME left vulnerable constitute “a treasure trove for cybercriminals” that can “easily be sold on
underground markets within hours and used for a wide variety of identity fraud schemes.”5 For
instance, this stolen PII is “exactly” what criminals need to file fraudulent tax returns and thereby
steal refunds from taxpayers.6 Thus, Plaintiff and National Class and Maine Subclass Members
are now at risk of further instances of identity theft and resulting losses, in at least one or more of
the following ways: (i) having their personal and financial information stolen; (ii) the time and
costs associated with detection and prevention of identity theft and unauthorized use of their
financial accounts; (iii) the time and costs associated with preventing, mitigating, or dealing with
changes to financial accounts; (iv) the time, costs, and future consequence of being the victim of
fraudulent charges; and (v) damage to their credit.
8.

Plaintiff brings this action seeking damages, restitution, injunctive relief, and any

other appropriate relief on behalf of himself and millions of Anthem’s customers in Maine and
4

Shary Rudavsky, Anthem Data Breach Could Be “Lifelong Battle” for Customers, IndyStar
(Feb. 7, 2015), http://www.indystar.com/story/news/2015/02/05/anthem-data-breach-lifelongbattle-customers/22953623/.
5

Kurane and Finkle, At Least 300,000 Mainers at Risk in Anthem Cybersecurity Breach, Bangor
Daily
News,
February
5,
2015,
available
at
http://bangordailynews.com/2015/02/05/business/anthem-hit-by-massive-cybersecurity-breachpersonal-data-stolen/ (last visited February 10, 2015).
6

Erb, Connecticut Taxpayers Warned to File Early After Anthem Data Breach, Forbes, February
10, 2015, available at http://www.forbes.com/sites/kellyphillipserb/2015/02/10/connecticuttaxpayers-warned-to-file-early-after-anthem-data-breach/ (last visited February 12, 2015).

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 5 of 24

PageID #: 5

throughout the United States who had their PII stolen due to Anthem, Inc.’s and Anthem ME’s
violation of their duty to adequately protect their PII.
PARTIES
9.

Plaintiff Brian Mason is a citizen of the State of Maine, residing in Brunswick,

Cumberland County, Maine. Mr. Mason pays for health insurance through Anthem Health Plans
of Maine, Inc., doing business as Blue Cross and Blue Shield of Maine. Mr. Mason’s PII was
provided to or collected by Anthem ME and Anthem, Inc. prior to the data breach reported by
Anthem on February 4, 2015. Mr. Mason’s PII was exposed to hackers as part of the data breach
Anthem, Inc. reported on February 4, 2015.
10.

Defendant Anthem, Inc., previously known as WellPoint, Inc., is incorporated and

headquartered in Indianapolis, Indiana. Anthem, Inc. is the second-largest health insurer in the
United States. Anthem, Inc. is licensed to conduct insurance operations in all 50 states, and
conducts business in Maine through the business operations of its wholly owned subsidiary,
Anthem ME. One in every nine Americans receives coverage through Anthem, Inc. or one of its
affiliated plans.7 Anthem, Inc. maintains its Maine offices at 2 Gannett Drive, South Portland,
ME 04106.
11.

Defendant Anthem Health Plans Of Maine, Inc. is a Maine corporation and

wholly owned subsidiary of Defendant Anthem, Inc. Anthem Health Plans of Maine, Inc.
provides individual and group-based health insurance plans, and serves as a fiscal intermediary
providing administrative services for the Medicare program, which generally provides coverage

7

Barbash and Phillip, Massive Data Hack of Health Insurer Anthem Potentially Exposes
Millions,
Washington
Post,
February
5,
2015,
available
at
http://www.washingtonpost.com/news/morning-mix/wp/2015/02/05/massive-data-hack-ofhealth-insurer-anthem-exposes-millions/ (last visited February 9, 2015).

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 6 of 24

PageID #: 6

for persons who are 65 or older. Anthem ME maintains its offices at 2 Gannett Drive, South
Portland, ME 04106.
12.

Defendants DOES 1-10 are as yet unknown officers, directors, employees,

agents, or affiliated companies of Anthem Inc. or Anthem ME who participated in the conduct
alleged in this Complaint and/or are otherwise responsible for the breach of Anthem, Inc.’s
computer system and resulting theft of Plaintiff’s and National Class and Maine Subclass
Members’ PII.
JURISDICTION AND VENUE
13.

Jurisdiction of this Court is proper under 28 U.S.C. § 1332(d)(2). The matter in

controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a
class action in which members of the class of plaintiffs are citizens of states different from
Defendants.
14.

Venue is proper within this judicial district pursuant to 28 U.S.C. §1391(b) and

(c). Anthem, Inc. and Anthem ME transact business and are found within this District, a
substantial portion of the underlying transactions and events complained of herein occurred in
this district and affected persons, including Plaintiff, reside or resided in this judicial district at
the material times. Defendants have received substantial compensation from such transactions
and business activity in this District, including as the result of premiums paid for Anthem’s
insurance within this District.
FACTUAL ALLEGATIONS
15.

Plaintiff Brian Mason is an Anthem customer who provided payment to Anthem

for health insurance and related services, part of which payments were attributable to Anthem’s
administrative costs to secure his PII.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 7 of 24

16.

PageID #: 7

Plaintiff and National Class and Maine Subclass Members contracted for

Anthem’s services including a promise by Anthem to safeguard, protect, and not disclose their
PII beyond any applicable permissions—and most certainly not to unauthorized hackers.
Instead, Plaintiff and National Class and Maine Subclass Members received services from
Anthem devoid of these important protections.
17.

As a direct and proximate result of Anthem’s conduct, Plaintiff and National

Class and Maine Subclass Members have suffered injury, harm, and damages, including, but not
limited to, loss of monies paid to Anthem, Inc. and Anthem ME for services to protect and not
disclose PII, and expenditure of significant time and money to protect themselves through
measures such as: responding to the data breach, conducting a damages assessment, obtaining
credit reports, obtaining credit monitoring, obtaining insurance and/or indemnification against
future misuse of their identities, rehabilitating their PII, and other losses.
18.

Anthem, Inc. and Anthem ME, like other health insurers, are obligated to keep

customers’ PII private and secured. In particular, Anthem, Inc. and Anthem ME are subject to
the Gramm-Leach-Biley Act, 15 U.S.C. §§ 6801 et seq., which obligates Anthem, Inc. and
Anthem ME to maintain and protect their customers’ PII.
19.

Anthem, Inc. and Anthem ME knew or should have known of the risks that their

customers’ PII would be stolen and of the need to carefully safeguard this information, in part
because the health care industry is more often attacked by hackers than any other sector of the
economy.8 In 2014, the Federal Bureau of Investigation’s (“FBI”) cyber division warned that

8

Greisiger, Cyber Liability & Data Breach Insurance Claims, NetDiligence 2013, at p. 2,
available at http://www.netdiligence.com/files/CyberClaimsStudy-2013.pdf (last visited
February 9, 2015).

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 8 of 24

healthcare companies were susceptible to cyber attacks.

9

PageID #: 8

The FBI’s report was also highly

publicized.10 It was also publicized that other entities in the health care field, including other
insurance companies, had been attacked by hackers and/or were vulnerable to future attacks.11
20.

Anthem, Inc. admitted they were on notice of these risks in Securities and

Exchange Commission (“SEC”) Form 10-K filings dated February 20, 2014, where Anthem, Inc.
acknowledged the need to maintain adequate systems to protect their customers’ data. 12
21.

Consumers such as Plaintiff and Class and Subclass Members’ rely on health

insurers such as Anthem, Inc. and Anthem ME to maintain their PII private and secure. Indeed,
Anthem, Inc. itself represents to consumers:
Anthem Blue Cross and Blue Shield maintains policies that protect the confidentiality
of personal information, including Social Security numbers, obtained from its
members and associates in the course of its regular business functions. Anthem Blue
Cross and Blue Shield is committed to protecting information about its customers and
associates, especially the confidential nature of their personal information. 13

9

FBI Cyber Division Private Industry Notification, April 8, 2014, available at
https://info.publicintelligence.net/FBI-HealthCareCyberIntrusions.pdf (last visited February 9,
2015).
10

Finkle, Exclusive: FBI Warns Healthcare Sector Vulnerable to Cyber Attacks, Reuters, April
23, 2014, available at http://www.reuters.com/article/2014/04/23/us-cybersecurity-healthcarefbi-exclusiv-idUSBREA3M1Q920140423 (last visited February 9, 2014).
11

Filkins, Health Care Cyberthreat Report, SANS, February 2014, available at
http://pages.norse-corp.com/rs/norse/images/Norse-SANS-Healthcare-CyberthreatReport2014.pdf (last visited February 9, 2015).
12

SEC Form 10-k Annual Report for the Year Ending December 31, 2013, available at
http://www.sec.gov/Archives/edgar/data/1156039/000115603914000003/wlp20131231x10k.htm.
13

Anthem’s HIPPA Notice of Privacy Practices, available at https://www.anthem.com/healthinsurance/about-us/privacy#hipaa (last visited February 9, 2015).

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 9 of 24

22.

PageID #: 9

Anthem, Inc. also claims to maintain “state-of-the-art” information security

systems to protect their customers’ personal health and financial data. 14
23.

Furthermore, Anthem, Inc. knew the need for it to implement stronger measures

to ensure the confidentiality of consumers’ PII, including Social Security numbers, because its
wholly owned subsidiaries have been involved in litigation over data breaches in the past. For
instance, Blue Cross of California doing business as Anthem Blue Cross reached a settlement
with the California Attorney General in 2012 involving the improper disclosure of the Social
Security numbers of 33,000 of its Medicare Supplement and Medicare Part D subscribers.15
24.

Anthem, Inc. and Anthem ME knew or should have known of the need to

safeguard consumers’ PII because they were on notice of the risks described above. Anthem ME
knew or should have known that Plaintiff and National Class and Maine Subclass Members
entrusted their PII to Anthem ME with the understanding Anthem ME would secure and protect
it. Similarly, Anthem, Inc. knew or should have known that Anthem ME provided it Plaintiff’s
and National Class and Maine Subclass Members’ PII with which Anthem ME had been
entrusted to Anthem, Inc. subject to this understanding.
25.

Despite being on notice of the need to have adequate security over customers’ PII,

and acknowledging its responsibility to adequately protect customers’ PII, Anthem, Inc. did not

14

Brandeisky, Anthem Health Insurance Was Hacked, Here’s What Customers Need to Know,
Time, February 5, 2015, available at http://time.com/money/3697026/anthem-data-breachsocial-security/ (last visited February 9, 2015).
15

Office of the Attorney General, Cal. Dep’t of Justice, “Attorney General Kamala D. Harris
Announces Settlement with Anthem Blue Cross over Data Breach” (Oct. 1, 2012), available at
http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-settlementanthem-blue-cross-over.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 10 of 24

PageID #: 10

maintain adequate security and failed to take even the basic step of encrypting customers’ PII,
even though encryption is widely regarded as a safe and prudent way to secure PII. 16
26.

Similarly, despite being on notice of the need to have adequate security over

customers’ PII, Anthem ME transferred Plaintiff’s and National Class and Maine Subclass
Members’ PII to Anthem, Inc. despite the fact it knew or should have known that Anthem, Inc.’s
security was inadequate.
27.

Nor did Anthem, Inc. or Anthem ME ever disclose to Plaintiff or National Class

and Maine Subclass Members that Anthem, Inc.’s security was inadequate as described herein.
28.

Unfortunately, despite Anthem, Inc.’s promises and despite being on notice of the

threat hackers would seek to obtain customers’ PII, between December 10, 2014 and January 27,
2015, hackers were able to access Anthem, Inc.’s customers’ PII, including Social Security
Numbers, names, dates of birth, medical IDs, street addresses, email addresses and employment
information, including income data.17 The hackers who breached Anthem, Inc.’s records were
able to access a database containing approximately 80 million current and former customers’
PII.18 Although Anthem detected the initial attack on December 10, 2014, Anthem’s security

16

Jaspen, Hackers Stole Data on 80 Million Anthem Customers. Why Wasn’t It Encrypted?,
Forbes,
February
6,
2015,
available
at
<
http://www.forbes.com/sites/brucejapsen/2015/02/06/anthem-didnt-encrypt-personal-data-andprivacy-laws-dont-require-it/> (last visited February 9, 2015).
17

Anthem CEO Joseph R. Swedish’s statement to Anthem consumers, available at
http://www.anthemfacts.com/ (last visited February 9, 2015).
18

Brandeisky, Anthem Health Insurance Was Hacked, Here’s What Customers Need to Know,
Time, February 5, 2015, available at http://time.com/money/3697026/anthem-data-breachsocial-security/ (last visited February 9, 2015).

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 11 of 24

PageID #: 11

was unable to prevent the further intrusions that lead up to the full disclosure of its customers’
PII.19
29.

Despite detecting the initial attack on December 10, 2014, Anthem, Inc. and

Anthem ME waited to announce the breach until February 4, 2015. Moreover, Anthem, Inc. and
Anthem ME are still delaying notifying individual consumers affected by the breach.20 The
Maine Attorney General has joined attorneys general from other affected states in criticizing
Anthem, Inc.’s delay in notifying affected customers.21
30.

Since Anthem, Inc. failed to take the basic protective measure of encrypting its

customers’ PII, Plaintiff’s and National Class and Maine Subclass Members’ PII is now freely
accessible to the hackers who stole it from Anthem, Inc., and anyone the hackers sell or give the
information to, and can be easily used for a variety of illegal identity fraud schemes.
31.

Anthem, Inc. could have encrypted customers’ PII and implemented other

security measures prior to the cyber attack to analyze and identify solutions for their systems’
vulnerabilities, and this could have prevented the cyber attack from occurring, or at least
minimized the risk to consumers since encrypted PII is far more difficult to use to carry out
identity fraud and other criminal schemes.
19

Bailey, Anthem: Hackers Tried to Breach System as Early as Dec. 10, Associated Press,
Available at http://abcnews.go.com/Technology/wireStory/anthem-hacker-breach-system-earlydec-10-28789740 (last visited February 10, 2015)
20

Tracer, After Hack, Anthem to Notify Affected Customers Within Two Weeks, Bloomberg,
February 5, 2015, available at http://www.bloomberg.com/news/articles/2015-02-05/anthem-totell-hacked-customers-in-two-weeks-no-earnings-impact> (last visited February 9, 2015).
21

Ahmed, US States Say Anthem Too Slow to Inform Customers of Breach, Business Recorder,
February 11, 2015, available at http://www.brecorder.com/business-a-finance/industries-asectors/223748-us-states-say-anthem-too-slow-to-inform-customers-of-breach.html (last visited
February 12, 2015).

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 12 of 24

32.

PageID #: 12

Anthem, Inc. violated the law and breached its duties to Plaintiff and National

Class and Maine Subclass Members by failing to maintain the privacy and security of Plaintiff’s
and National Class and Maine Subclass Members’ PII. Similarly, Anthem ME violated the law
and breached its duties to Plaintiff and National Class and Maine Subclass Members by
providing Plaintiff’s and National Class and Maine Subclass Members’ PII with which it had
been entrusted to Anthem, Inc. without ensuring Anthem, Inc’s security was adequate to protect
the PII.
CLASS ACTION ALLEGATIONS
33.

This action asserts claims on behalf of a nationwide Class and a Maine Subclass

pursuant to Federal Rules of Civil Procedure 23(a), (b)(1), (b)(2), (b)(3), and (c)(4), defined as
follows:
The National Class:
All persons in the United States whose personal or financial information was
compromised by the data breach disclosed by Anthem, Inc. on February 4, 2015 (the
“National Class”).
The Maine Subclass:
All persons residing in Maine who acquired health insurance through Anthem Health
Plans of Maine, Inc., d/b/a Blue Cross and Blue Shield of Maine, and whose personal
or financial information was compromised by the data breach disclosed by Anthem,
Inc. on February 4, 2015 (the “Maine Subclass”).22
34.

Excluded from the National Class and Maine Subclass are: (i) Anthem Inc., and

its employees, principals, affiliated entities, legal representatives, successors, and assigns; (ii)
Anthem Health Plans of Maine, Inc., and its employees, principals, affiliated entities, legal

22

Plaintiff reserves the right to amend or modify the National Class and Maine Subclass
definitions, including adding one or more multistate classes or subclasses.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 13 of 24

PageID #: 13

representatives, successors and assigns; (iii) the DOE Defendants; and (iv) the judges to whom
this action is assigned and any members of their immediate families.
35.

There are millions of individual National Class Members who are geographically

dispersed throughout the United States. Furthermore, there are thousands of individual Maine
Subclass Members who are geographically dispersed throughout the State of Maine. Therefore,
individual joinder of the members of the National Class and Maine Subclass defined above
would be impracticable.
36.

Common questions of law or fact exist as to all National Class and Maine

Subclass Members. These common legal or factual questions include:
a. Whether Anthem Inc. and/or Anthem ME engaged in the conduct alleged
herein;
b. Whether Anthem Inc. and/or Anthem ME owed a duty to Plaintiff and
National Class and Maine Subclass Members to protect their PII;
c. Whether Anthem Inc. and/or Anthem ME breached their duty owed to
Plaintiff and National Class and Maine Subclass Members to protect their PII;
d. Whether Anthem Inc. and/or Anthem ME owed a duty to Plaintiff and
National Class and Maine Subclass Members to timely and accurately provide
notice of Anthem’s data breach;
e. Whether Anthem Inc. and/or Anthem ME breached their duty owed to
Plaintiff and National Class and Maine Subclass Members to timely or
accurately provide notice of Anthem’s data breach;
f. Whether Anthem Inc. and/or Anthem ME knew or should have known that
their computer systems were vulnerable to attack;
g. Whether Anthem Inc. and/or Anthem ME had a duty to encrypt Plaintiff’s and
National Class and Maine Subclass Members’ PII;
h. Whether Anthem Inc. and/or Anthem ME breached their duties to encrypt
Plaintiff’s and Class Members’ PII;
i. Whether Plaintiff and National Class and Maine Subclass Members were
injured as a result of Defendants’ conduct or failure to act; and

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 14 of 24

PageID #: 14

j. Whether Plaintiff and National Class and Maine Subclass Members are
entitled to damages, restitution, and/or equitable relief.
37.

Plaintiff’s claims are typical of the claims of the National Class and Maine

Subclass. Plaintiff is an Anthem, Inc. customer who acquired health insurance through Anthem
ME whose PII was compromised by the data breach announced by Anthem, Inc. on February 4,
2015. Therefore, Plaintiff is no different in any material respect from any other members of the
National Class and Maine Subclass. The relief sought by Plaintiff is common to the relief sought
by the National Class and Maine Subclass.
38.

Plaintiff is an adequate representative of the National Class and Maine Subclass

because his interests do not conflict with the interests of National Class and Maine Subclass
Members that he seeks to represent, and he has retained counsel competent and experienced in
conducting complex class action litigation. Plaintiff and his counsel will adequately protect the
interests of the National Class and Maine Subclass.
39.

A class action is superior to other available means for the fair and efficient

adjudication of this dispute. The damages suffered by each individual member of the National
Class and Maine Subclass are relatively small, while the burden and monetary expense needed to
individually prosecute this case against Defendants is substantial. Thus, it would be virtually
impossible for National Class and Maine Subclass Members individually to redress effectively
the wrongs done to them. Moreover, even if National Class and Maine Subclass Members could
afford individual actions, a multitude of such individual actions still would not be preferable to
class wide litigation.

Individual actions also present the potential for inconsistent or

contradictory judgments, which would be dispositive of at least some of the issues and hence
interests of the other members not party to the individual actions, would substantially impair or

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 15 of 24

PageID #: 15

impede their ability to protect their interests, and would establish incompatible standards of
conduct for the party opposing the National Class and Maine Subclass.
40.

By contrast, a class action presents far fewer litigation management difficulties,

and provides the benefits of single adjudication, economies of scale, and comprehensive
supervision by a single court. Also, or in the alternative, the National Class and Maine Subclass
may be certified because Defendants have acted or refused to act on grounds generally applicable
to National Class and Maine Subclass Members, thereby making preliminary and final
declaratory relief appropriate; and the National Class and Maine Subclass may alternatively be
certified with respect to particular issues pursuant to Fed. R. Civ. P. 23(c)(4).
41.

All records concerning Anthem, Inc.’s data breach, including records sufficient to

identify members of the National Class and Maine Subclass, are in the possession and control of
Anthem, Inc., Anthem ME, and their agents and are available through discovery.
CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION
Negligence (on Behalf of Plaintiff and the National Class Against Anthem, Inc. and the
DOE Defendants and on Behalf of Plaintiff and the Maine Subclass Against Anthem ME
and the DOE Defendants)
42.

Plaintiff incorporates by reference all preceding paragraphs as if fully set forth

43.

Defendants owed a duty to Plaintiff and National Class and Maine Subclass

herein.

Members to exercise reasonable care in protecting and securing the Anthem consumers’ PII in
their possession from being accessed or compromised in any way by unauthorized persons,
including by implementing adequate computer security systems and using encryption methods.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 16 of 24

44.

PageID #: 16

Defendants owed a duty to Plaintiff and National Class and Maine Subclass

Members to exercise reasonable care in implementing safeguard to recognize a breach of their
cyber security systems in a timely manner.
45.

Defendants owed a duty to Plaintiff and National Class and Maine Subclass

Members to exercise reasonable care in acting in a timely manner upon any warnings or alerts
that their cyber security systems had been breached.
46.
6801 et seq.

In addition, Defendants are subject to the Gramm-Leach-Bliley Act, 15 U.S.C. §§
Under the Gramm-Leach-Bliley Act, Defendants have an affirmative and

continuing obligation to respect the privacy of its customers and to protect the security and
confidentiality of those customers’ nonpublic personal information.
47.

Thus, Defendants owed an additional duty to Plaintiff and National Class and

Maine Subclass Members to protect the security and confidentiality of their PII as required by
the Gramm-Leach-Bliley Act.

Defendants breached this duty as described throughout this

Complaint.
48.

Defendants owed a duty to Plaintiff and National Class and Maine Subclass

Members to exercise reasonable care in timely disclosing any breach of their cyber security
systems.
49.

In the case that they did had not implemented adequate data security measures,

Defendants owed a duty to Plaintiff and National Class and Maine Subclass Members to exercise
reasonable care in disclosing that they could not adequately maintain the security and privacy of
Plaintiff’s and National Class and Maine Subclass Members’ PII.
50.

Defendants breached these duties owed to Plaintiff and National Class and Maine

Subclass Members by their conduct alleged herein.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 17 of 24

51.

PageID #: 17

As a direct and proximate result of Defendants’ breach of these duties, Plaintiff

and National Class and Maine Subclass Members have been or will be harmed. Such reasonably
foreseeable harm includes, at least, (i) actual and certain future injuries from fraud and/or
identity theft due to hackers’ theft of Plaintiff’s and National Class and Maine Subclass
Members’ PII, including credit freeze, credit monitoring and identity theft insurance; and (ii)
other consequential damages.
SECOND CAUSE OF ACTION
Breach of Fiduciary Duty/Constructive Fraud (on Behalf of Plaintiff and the National Class
Against Anthem, Inc. and on Behalf of Plaintiff and the Maine Subclass Against Anthem
ME)
52.

Plaintiff incorporates by reference all preceding paragraphs as if fully set forth

53.

Plaintiff and National Class Members shared their PII with Anthem, Inc., and

herein.

Plaintiff and Maine Subclass Members shared their PII with Anthem ME, to obtain health
insurance.
54.

Anthem ME and Anthem, Inc.’s other subsidiary insurance companies had a

confidential and/or fiduciary relationship with their customer-insureds for the purpose of
maintaining the security, protection and confidentiality of their customers’ PII.
55.

Anthem, Inc. acted as Anthem ME and Anthem, Inc.’s other subsidiary insurance

companies’ agent for the purpose of maintaining the security, protection and confidentiality of
their customers’ PII. Anthem, Inc. therefore stands in the same fiduciary and/or confidential
relation to Plaintiff and National Class Members, and as Anthem ME for Plaintiff and Maine
Subclass Members.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 18 of 24

56.

PageID #: 18

Plaintiff and National Class and Maine Subclass Members placed their trust in

Anthem, Inc. and Anthem ME. Specifically, Plaintiff and National Class and Maine Subclass
Members entrusted their PII to Anthem, Inc. and Anthem ME. Except for disclosures that they
have authorized, including to Anthem, Inc. and Anthem ME for the purpose of obtaining health
insurance, Plaintiff and National Class and Maine Subclass Members want to keep their
otherwise private PII private.
57.

Plaintiff and National Class and Maine Subclass Members entrusted their PII to

Anthem, Inc. and Anthem ME partly based on Anthem, Inc.’s and Anthem ME’s promises to
keep their PII private. Based on these representations, Plaintiff and National Class and Maine
Subclass Members justifiably believed that Anthem, Inc. and Anthem ME would protect the
privacy of their PII.
58.

There is a great disparity of position and influence between Anthem, Inc. and

Anthem ME, and Plaintiff and National Class and Maine Subclass Members. Anthem, Inc. and
Anthem ME are large insurance companies whose economic power greatly outweighs any held
by Plaintiff and National Class and Maine Subclass Members.

Further, Anthem, Inc. and

Anthem ME are in superior positions to protect the security and privacy of Plaintiff’s and
National Class and Maine Subclass Members’ PII, and to chose the means of doing so, because
Plaintiff and National Class and Maine Subclass Members were not able to bargain over such
terms when they obtained their insurance policies, which are take-it-or-leave-it form contracts.
Indeed, Anthem, Inc. and Anthem ME have superior knowledge of the security measures
necessary to protect PII because Plaintiff and National Class and Maine Subclass Members, as
typical consumers not involved in the IT industry, do not have specific knowledge of this
subject.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 19 of 24

59.

PageID #: 19

As a result of the great disparity of position and influence, Plaintiff and National

Class and Maine Subclass Members let down all guards and bars to Anthem, Inc. and Anthem
ME regarding the security of their PII.

Plaintiff and National Class and Maine Subclass

Members held no power to require Anthem, Inc. and Anthem ME to implement any additional
security measures. Plaintiff and National Class and Maine Subclass Members therefore had to
rely entirely upon the means that Anthem, Inc. and Anthem ME promised they would take to
safeguard their PII.
60.

Anthem, Inc. and Anthem ME abused Plaintiff’s and National Class and Maine

Subclass Members’ trust by failing to fulfill their duty to keep Plaintiff’s and National Class and
Maine Subclass Members’ private.
61.

Anthem, Inc. and Anthem ME obtained an advantage Plaintiff’s and National

Class and Maine Subclass Members’ trust because Anthem, Inc. and Anthem ME profited from
insurance policies sold to Plaintiff and National Class and Maine Subclass Members, who
purchased them, in part, based on Anthem, Inc.’s and Anthem ME’s promises to protect the
privacy of their PII.
62.

Based on Plaintiff’s and National Class and Maine Subclass Members’ trust

placed in Anthem, Inc. and Anthem ME and the great disparity of position and influence
between the parties, a fiduciary and/or confidential relationship existed between Anthem, Inc.
and Anthem ME, and Plaintiff and National Class and Maine Subclass Members.
63.

Anthem, Inc. and Anthem ME breached their fiduciary duty to Plaintiff and

National Class and Maine Subclass Members by their conduct described herein.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 20 of 24

64.

PageID #: 20

As a direct and proximate result of Anthem, Inc’s and Anthem ME’s breach,

Plaintiff and National Class and Maine Subclass Members suffered the damages and injuries
described herein.
THIRD CAUSE OF ACTION
Breach of Contract (on Behalf of Plaintiff and the National Class Against Anthem, Inc. and
on Behalf of Plaintiff and the Maine Subclass Against Anthem ME)
65.

Plaintiff incorporates by reference all preceding paragraphs as if fully set forth

66.

Anthem Inc. had contractual obligations to maintain the security of Plaintiff’s and

herein.

National Class Members’ PII.
67.

Anthem ME had contractual obligations to maintain the security of Plaintiff’s and

Maine Subclass Members’ PII.
68.

Specifically, Anthem Inc. and Anthem ME promised to keep Plaintiff’s and

National Class and Maine Subclass Members’ PII safe using physical, electronic, and procedural
means, and to protect the confidentiality of Plaintiff’s and Anthem’s customers’ PII.
69.

Plaintiff and National Class and Maine Subclass Members bargained and

performed their obligations when they paid (or when others paid on their behalf) for Anthem
Inc.’s and Anthem ME’s promises to protect the privacy of the PII given to it when Plaintiff and
National Class and Maine Subclass Members’ (or others acting on their behalf) paid for health
insurance from Anthem.
70.

Plaintiff and National Class and Maine Subclass Members (or others acting on

their behalf) paid for the security of their PII promised by Anthem Inc. and Anthem ME, the
price of which was part of the premiums paid, but Plaintiff and National Class and Maine
Subclass Members did not receive this security.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 21 of 24

71.

PageID #: 21

Anthem Inc. and Anthem ME breached their contractual obligations to Plaintiff

and National Class and Maine Subclass Members by failing to safeguard and protect their PII.
72.

As a direct and proximate result of Anthem, Inc’s and Anthem ME’s breach,

Plaintiff and National Class and Maine Subclass Members suffered the damages and injuries
described herein.
FOURTH CAUSE OF ACTION
Breach of Implied Contract/Quantum Meruit (on Behalf of Plaintiff and the National Class
Against Anthem Inc. and on Behalf of Plaintiff and the Maine Subclass Against Anthem
ME)
73.

Plaintiff incorporates by reference all preceding paragraphs as if fully set forth

74.

Anthem Inc. provided an implied contract to Plaintiff and National Class

herein.

Members to protect their PII when they (or others on their behalf) purchased health insurance
from Anthem.
75.

Anthem ME provided an implied contract to Plaintiff and Maine Subclass

Members to protect their PII when they (or others on their behalf) purchased health insurance
from Anthem.
76.

Plaintiff and National Class and Maine Subclass Members would not have

provided their PII to Anthem Inc. or Anthem ME absent their implied promise to protect
consumers’ PII.
77.

Plaintiff, National Class and Maine Subclass Members, and Anthem Inc. and

Anthem ME had a contemporaneous understanding that Anthem would safeguard and protect
Plaintiff’s and Anthem Inc. or Anthem ME Members’ PII in exchange for premium payments.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 22 of 24

78.

PageID #: 22

Plaintiff and Anthem Inc. or Anthem ME Members performed all the obligations

required by them under the implied contract when they purchased health insurance from Anthem
Inc. and Anthem ME.
79.

Anthem Inc. and Anthem ME breached the implied contracts with Plaintiff and

Anthem Inc. or Anthem ME Members by failing to safeguard and protect their PII.
80.

As a direct and proximate result of Anthem, Inc’s and Anthem ME’s breach of

their implied contracts, Plaintiff and National Class and Maine Subclass Members suffered the
damages and injuries described herein.
FIFTH CAUSE OF ACTION
Unjust Enrichment (on Behalf of Plaintiff and the National Class Against Anthem, Inc. and
DOE Defendants and on Behalf of Plaintiff and the Maine Subclass Against Anthem ME
and DOE Defendants)
81.

Plaintiff incorporates by reference all preceding paragraphs as if fully set forth

82.

Defendants took money from (or on behalf of) Plaintiff and National Class and

herein.

Maine Subclass Members based upon assurances that it would maintain the security of the PII
provided to it as described here.
83.

Defendants appreciated or knew that Plaintiff and National Class and Maine

Subclass Members paid premiums (or premiums were paid on their behalf) subject to the
understanding Defendants would adequately safeguard Plaintiff’s and National Class and Maine
Subclass Members’ PII as described herein.
84.

As described herein, Defendants failed to adequately safeguard Plaintiff’s and

National Class and Maine Subclass Members’ PII by failing: (i) to exercise reasonable care in
safeguarding Plaintiff’s and National Class and Maine Subclass Members’ PII; (ii) to encrypt

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 23 of 24

PageID #: 23

Plaintiff’s and National Class and Maine Subclass Members’ PII; and (iii) to implement
processes to detect a breach of its security systems containing Plaintiff’s and National Class and
Maine Subclass Members’ PII in a timely manner, including acting upon any warnings or alerts
that Anthem, Inc.’s or Anthem ME’s security systems were breached.
85.

On the grounds of justice and fairness, Plaintiff and National Class and Maine

Subclass Members are entitled to recover from Defendants the portion of the premiums they paid
attributable to Defendants’ promise to safeguard their PII.
VII.

PRAYER
WHEREFORE, Plaintiff, on behalf of himself all National Class and Maine Subclass

Members requests award and relief as follows:
A.

An order certifying that this action is properly brought and may be maintained as

a class action, that Plaintiff Brian Mason be appointed Class Representative for the National
Class and Maine Subclass, and that Plaintiff’s counsel be appointed Class Counsel.
B.

Awarding compensatory damages in an amount determined at trial for each Cause

of Action asserted herein for which these damages are available.
C.

Awarding equitable restitution in an amount determined at trial for each Cause of

Action asserted herein for which this relief is available.
D.

An order enjoining Defendants from continuing the unlawful practices as set forth

herein, and directing Defendants to identify, with Court supervision, victims of their conduct and
pay them restitution.
E.

An order awarding Plaintiff his costs of suit, including reasonable attorneys’ fees

and pre and post-judgment interest, as provided by law, or equity, or as otherwise available.

 Case 2:15-cv-00086-JAW Document 1 Filed 03/05/15 Page 24 of 24

H.

PageID #: 24

Such other and further relief as may be deemed necessary or appropriate for any

of the claims asserted.
VIII. DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury on all claims and/or issues so triable.

DATED: March 5, 2015

Respectfully Submitted,

/s/
Benjamin K. Grant (ME Bar # 4328)
McTeague, Higbee, Case, Cohen, Whitney
& Toker, P.A
4 Union Park
P.O. Box 5000
Topsham, ME 04086
Phone: (800) 210-8740
Fax: (207) 725-1090
Email: bgrant@mcteaguehigbee.com
ATTORNEYS FOR PLAINTIFF
AND THE PROPOSED CLASS