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March 26, 2019

Motion to dismiss denied: 21st Century Oncology data breach plaintiffs found to have standing in 11th Circuit decision

U.S. District Judge Mary Scriven has denied a motion to dismiss litigation filed against 21st Century Oncology, allowing plaintiffs to move forward with allegations that the cancer care company jeopardized the private health information of millions of current and former patients by failing to prevent a data breach in October 2015.

Despite being alerted by the FBI within weeks of the breach, 21st Century waited five months to notify those who had been affected, plaintiffs allege in the multidistrict litigation filed in the Middle District of Florida, Tampa Division. Roughly 2.2 million people had their private information exposed, including names, social security numbers, medical records and insurance information. Motley Rice consumer fraud attorney Jodi Westbrook Flowers represents the victims as co-liaison counsel and a member of the Plaintiffs’ Steering Committee for the litigation.

Prior to the breach, 21st Century stated on its website that it was obligated to protect patients’ rights to privacy, including that it was “required by law to maintain the privacy of your protected health information, to provide you with notice of our legal duties and privacy practices with respect to that protected health information, and to notify any affected individuals following a breach of any unsecured protected health information,” according to the complaint. The company, however, failed to meet that obligation as it did not maintain reasonable and/or adequate security measures to protect the class by allowing private information to be exposed, plaintiffs’ claim.

In August 2018, 21st Century and its subsidiaries filed a motion to dismiss the multidistrict litigation, which alleges negligence, breach of contract and breach of implied duty among other claims.

The Court considered arguments from all parties, but ultimately allowed the plaintiffs’ case to proceed.

“The federal Court’s decision in this case is notable because it appears to be the first time that the Court allowed a case to proceed in the 11th Circuit based on a claim of increased risk of identity theft,” said attorney Jodi Westbrook Flowers. “This decision sets valuable precedent not only for our clients regarding 21st Century Oncology, but all potential victims of preventable data breaches.” 

This ruling follows a prolonged stay of the case that was issued while bankruptcy proceedings were underway for 21st Century. Plaintiffs recently reached a settlement with the company that allowed plaintiffs to move forward with pre-bankruptcy litigation. If successful, plaintiffs will recover compensation through three select insurance policies, according to the settlement terms.

Read the amended complaint.

Read the order denying motion to dismiss.

Motley Rice attorneys represent victims in a number of cybersecurity breaches and defects, including representing consumers and businesses impacted by security flaws that are believed to affect nearly all Intel Corp., computer processors, in addition to the litigation against 21st Century Oncology. For more information on the case or other data breach litigation, you may contact Jodi Westbrook Flowers by email or call 1.800.768.4026.