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Randolph v. ING Life Insurance and Annuity Co.

June 18, 2009


Appeal from the Superior Court of the District of Columbia (C-4932-06) (Hon. Frederick H. Weisberg, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued December 4, 2008

Before KRAMER and THOMPSON, Associate Judges and FARRELL, Senior Judge.*fn1

Appellants in this case are seven current or retired District of Columbia employees whose personal information related to their participation in an employee deferred compensation plan administered by ING Life Insurance and Annuity Company ("ING") was stored on a laptop computer that was stolen from an ING employee's home. Citing a "substantial risk" of identity theft and other dangers from the possible unauthorized use of their personal information, appellants sued ING for damages and other relief.*fn2 The Superior Court dismissed the suit for lack of standing. We affirm the order of dismissal.


On June 11, 2006, an ING agent's home was burglarized. Among the items stolen during the burglary was the agent's personal laptop computer, onto which he had downloaded, allegedly without encryption or password protection, personal information (including Social Security numbers) of participants in the "District of Columbia 457 Deferred Compensation Plan."*fn3 ING provides investment advice, administrative services and recordkeeping with respect to the deferred compensation plan.

On or about June 19, 2006, ING notified the District about the computer theft. ING also began alerting affected participants individually, communicating to them instructions about how to enroll in a complimentary credit-monitoring service for which ING would pay. Not satisfied with ING's response to the situation, appellants filed suit in the Superior Court on June 27, 2006. They claimed, inter alia, that ING failed "to establish and enforce appropriate... safeguards to ensure the security and confidentiality of records." The counts of the complaint advanced several common-law theories of recovery, including negligence, gross negligence, and invasion of privacy.

ING removed the case to the United States District Court for the District of Columbia on the basis of diversity and thereafter filed a motion to dismiss on the grounds of lack of standing, failure to state a claim, and mootness. The District Court (the Honorable Colleen Kollar-Kotelly) concluded that appellants had failed to establish Article III standing and therefore remanded the case to the Superior Court pursuant to 28 U.S.C. § 1447 (c). Appellants then amended their complaint, adding both common-law and statutory causes of action. As amended, the complaint alleges negligence, gross negligence, breach of fiduciary duty, willful violation of appellants' right of privacy, and violations of D.C. Code §§ 1-626.13 and 1-741 (describing the responsibilities of trustees and other fiduciaries of certain District employee retirement plans). ING moved to dismiss the amended complaint for lack of standing, failure to state a claim, and mootness. (App. 15-18.) Reaching only the first of those issues and reasoning that appellants "cannot allege an injury in fact," the Superior Court (the Honorable Frederick Weisberg) dismissed the amended complaint for lack of standing in an order dated June 13, 2007.*fn4 This appeal followed.


"Whether appellants have standing is a question of law which we consider on appeal de novo." Board of Dirs., Wash. City Orphans Asylum v. Board of Trs., Wash. City Orphans Asylum, 798 A.2d 1068, 1074 (D.C. 2002). Because our review is de novo, "we are not limited to reviewing the legal adequacy of the grounds the trial court relied on for its ruling; if there is an alternative basis that dictates the same result, a correct judgment must be affirmed on appeal." Nicola v. Washington Times Corp., 947 A.2d 1164, 1176 n.9 (D.C. 2008) (quoting Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997)).


"[S]tanding requirements are met when a party demonstrates (1) an injury in fact, (2) a causal connection between the injury and the conduct of which the party complains, and (3) redressability, i.e., that it is likely that a favorable decision will redress the injury." Riverside Hosp. v. District of Columbia Dep't of Health, 944 A.2d 1098, 1104 (2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and ellipses omitted)).*fn5 Injury-in-fact involves the "invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Miller v. Bd. of Zoning Adjustment, 948 A.2d 571, 574 (D.C. 2008) (citations omitted).

Judge Weisberg reasoned that appellants' complaint failed to allege the type of concrete injury that was necessary for them to have standing to pursue their common-law claims. He summarized the deficiencies in the amended complaint as follows:

Plaintiffs allege, in the light most favorable to them, that they are more vulnerable to identity theft now that their personal data [have] fallen into the hands of the thief of the computer or one who receives it from the thief, and the Plaintiffs who are police officers allege that their home addresses may be compromised, subjecting them to possible threats or violence. No Plaintiff alleges that his or her identity has in fact been stolen or used, and no police officer Plaintiff alleges that his or her residence has been revealed or threatened in any way. The most Plaintiffs can claim is that they are worried ...

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