Evan Schuman's StorefrontBacktalk

The Supreme Court said a clear no. “The plaintiffs contend that because their time and effort represented reasonable efforts to avoid reasonably foreseeable harm, it is compensable. However, we do not attach such significance to mitigation efforts. An individual’s time, alone, is not legally protected from the negligence of others,” the ruling said.

“The doctrine of mitigation of damages, or avoidable consequences, encourages plaintiffs to take reasonable steps to minimize losses caused by a defendant’s negligence by prohibiting recovery for any damages that the plaintiff could reasonably have avoided. Unless the plaintiffs’ loss of time reflects a corresponding loss of earnings or earning opportunities, it is not a cognizable injury under Maine law of negligence. Contrary to the plaintiffs’ contention, our case law does not recognize time and effort as a compensable injury in the context of the plaintiffs’ negligence claim. We decline to expand recovery in negligence in these circumstances.”

If the consumers’ attorneys want to appeal, they could ask for a ruling from a federal appellate court or even the U.S. Supreme Court. Given the unanimity of the rulings of several federal judges in these data breach cases—plus the unanimous Maine Supreme Court ruling—it’s unlikely a federal panel would agree to hear the case, let alone rule in the consumers’ favor.

This decision is clearly favorable for retailers, but its applicability is limited to credit card losses. In debit card cases, the zero-liability protections do not currently exist, which means the potential for material consumer losses there is much greater. Even if the banks reimburse debit card consumers for fraudulent losses, they could sustain serious financial injury in the meantime, in the form of bounced checks and the fees and headaches associated with bouncing checks. Credit card temporary credits avoid almost all of those bounced check issues.

This is one of the key issues behind mobile payments. If some retailers embrace a mobile payment setup that sits atop debit cards—or other forms of direct bank account access—to minimize interchange fee costs, they might be opening up huge liability holes if a breach happens.