Federal Trade Commission v. Wyndham Worldwide Corporation et al

Filing 181

OPINION. Signed by Judge Esther Salas on 4/7/14. (jd, )

FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FEDERAL TRADE COMMISSION,
Plaintiff,
v.
WYNDHAM WORLDWIDE
CORPORATION, et al.,
Defendants.

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Civil Action No. 13-1887 (ES)
OPINION

SALAS, DISTRICT JUDGE
I.

INTRODUCTION
The Federal Trade Commission (the “FTC”) brought this action under Section 5(a) of the

Federal Trade Commission Act (the “FTC Act”), 15 U.S.C. § 45(a), against Wyndham
Worldwide Corporation (“Wyndham Worldwide”), Wyndham Hotel Group, LLC (“Hotel
Group”), Wyndham Hotels and Resorts, LLC (“Hotels and Resorts”), and Wyndham Hotel
Management, Inc. (“Hotel Management”) (collectively, “Wyndham” or “Defendants”). The
FTC alleges that Wyndham violated Section 5(a)’s prohibition of “acts or practices in or
affecting commerce” that are “unfair” or “deceptive.”
Specifically, the FTC alleges that Defendants violated both the deception and unfairness
prongs of Section 5(a) “in connection with Defendants’ failure to maintain reasonable and
appropriate data security for consumers’ sensitive personal information.” (D.E. No. 28, First
Amended Complaint for Injunctive and Other Equitable Relief (“Compl.”) ¶¶ 1, 44-49). Hotels
and Resorts moves to dismiss the FTC’s complaint under Federal Rule of Civil Procedure

1

12(b)(6). (D.E. No. 91-1, Motion to Dismiss by Defendant Wyndham Hotels & Resorts LLC
(“HR’s Mov. Br.”) at 6).1 Its motion to dismiss raises the following three issues.
First, Hotels and Resorts challenges the FTC’s authority to assert an unfairness claim in
the data-security context.

Citing recent data-security legislation and the FTC’s public

statements, Hotels and Resorts likens this action to FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000). It declares that, under Brown & Williamson, the FTC does not have the
authority to bring an unfairness claim involving data security. As explained below, however, the
Court rejects this challenge to the FTC’s authority because the circumstances here differ from
those in Brown & Williamson.
Second, Hotels and Resorts asserts that the FTC must formally promulgate regulations
before bringing its unfairness claim. It contends that, without promulgating such regulations, the
FTC violates fair notice principles. But precedent instructs that agencies like the FTC need not
formally issue regulations. The Court, therefore, rejects Hotels and Resorts’ contention that the
FTC must issue regulations before bringing its unfairness claim.
Third, Hotels and Resorts argues that the FTC’s allegations are pleaded insufficiently to
support either an unfairness or deception claim. Hotels and Resorts asserts that the FTC fails to
plead certain elements of each of these claims and fails to otherwise satisfy federal pleading
requirements.

As detailed below for both the unfairness and deception claims, the Court

disagrees.
Having resolved each of these issues in favor of the FTC, the Court DENIES Hotels and
Resorts’ motion to dismiss.

1

Wyndham Worldwide, Hotel Group and Hotel Management separately move to dismiss the FTC’s complaint,
(D.E. No. 92), which the Court will address in a separate opinion. On November 7, 2013, the Court heard oral
argument on both motions to dismiss. (See D.E. No. 139 (“11/7/13 Tr.”)).

2

II.

FACTUAL BACKGROUND2
Wyndham Worldwide is in the hospitality business. (Compl. ¶ 7). “At all relevant

times,” Wyndham Worldwide controlled the acts and practices of the following subsidiaries:
Hotel Group, Hotels and Resorts, and Hotel Management. (Id. ¶¶ 7-10). Through these three
subsidiaries, Wyndham Worldwide “franchises and manages hotels and sells timeshares.” (Id. ¶
13).
More specifically, “Hotel Group is a wholly-owned subsidiary of Wyndham Worldwide.”
(Id. ¶ 8).

Both Hotels and Resorts and Hotel Management, in turn, are wholly-owned

subsidiaries of Hotel Group. (Id. ¶¶ 9, 10). Hotels and Resorts licensed the “Wyndham” name
to approximately seventy-five independently-owned hotels under franchise agreements. (Id. ¶
9).

Similarly, Hotel Management licensed the “Wyndham” name to approximately fifteen

independently-owned hotels under management agreements. (Id. ¶ 10).
Under these agreements, Hotels and Resorts and Hotel Management require each
Wyndham-branded hotel to purchase—and “configure to their specifications”—a designated
computer system that, among other things, handles reservations and payment card transactions.
(Id. ¶ 15). This system, known as a “property management system,” stores consumers’ personal
information, “including names, addresses, email addresses, telephone numbers, payment card
account numbers, expiration dates, and security codes.” (Id.).
The property management systems for all Wyndham-branded hotels “are part of Hotels
and Resorts’ computer network” and “are linked to its corporate network.” (Id. ¶ 16). Indeed,
Hotels and Resorts’ computer network “includes its central reservation system” that “coordinates
reservations across the Wyndham brand” and, using Hotels and Resorts’ website, “consumers
2

The Court must accept the FTC’s factual allegations as true for purposes of resolving Hotels and Resorts’ motion
to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir.
2012) (“As such, we set out facts as they appear in the Complaint and its exhibits.”).
3

can make reservations at any Wyndham-branded hotel.” (Id. ¶¶ 16, 20). And, although certain
Wyndham-branded hotels have their own websites, customers making reservations for these
hotels “are directed back to Hotels and Resorts’ website to make reservations.” (Id. ¶ 20).
The FTC alleges that, since at least April 2008, Wyndham “failed to provide reasonable
and appropriate security for the personal information collected and maintained by Hotels and
Resorts, Hotel Management, and the Wyndham-branded hotels.” (Id. ¶ 24). The FTC alleges
that Wyndham did this “by engaging in a number of practices that, taken together, unreasonably
and unnecessarily exposed consumers’ personal data to unauthorized access and theft.” (Id.).
As a result of these failures, between April 2008 and January 2010, intruders gained
unauthorized access— on three separate occasions— to Hotels and Resorts’ computer network,
including the Wyndham-branded hotels’ property management systems. (Id. ¶ 25; see also id. ¶¶
26-39 (detailing the circumstances of the three breaches and impact of each breach)). The
intruders “used similar techniques on each occasion to access personal information stored on the
Wyndham-branded hotels’ property management system servers, including customers’ payment
card account numbers, expiration dates, and security codes.” (Id. ¶ 25). And, after discovering
the first two breaches, Wyndham “failed to take appropriate steps in a reasonable time frame to
prevent the further compromise of Hotels and Resorts’ network.” (Id.).
Wyndham’s “failure to implement reasonable and appropriate security measures exposed
consumers’ personal information to unauthorized access, collection, and use” that “has caused
and is likely to cause substantial consumer injury, including financial injury, to consumers and
businesses.” (Id. ¶ 40). Defendants’ failure “to implement reasonable and appropriate security
measures” caused, for example, the following:
[T]he three data breaches described above, the compromise of
more than 619,000 consumer payment card account numbers, the

4

exportation of many of those account numbers to a domain
registered in Russia, fraudulent charges on many consumers’
accounts, and more than $10.6 million in fraud loss. Consumers
and businesses suffered financial injury, including, but not limited
to, unreimbursed fraudulent charges, increased costs, and lost
access to funds or credit. Consumers and businesses also expended
time and money resolving fraudulent charges and mitigating
subsequent harm.
(Id. ¶ 40).
Given these allegations, the FTC brought this action, seeking a permanent injunction to
prevent future violations of the FTC Act, as well as certain other relief. (See id. at 20-21).
III.

LEGAL STANDARD
To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id.
“When reviewing a motion to dismiss, ‘[a]ll allegations in the complaint must be
accepted as true, and the plaintiff must be given the benefit of every favorable inference to be
drawn therefrom.’” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Kulwicki v.
Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). But the court is not required to accept as true
“legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Finally, “[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic

5

documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick,
605 F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260
(3d Cir. 2006) (“In evaluating a motion to dismiss, we may consider documents that are attached
to or submitted with the complaint, and any matters incorporated by reference or integral to the
claim, items subject to judicial notice, matters of public record, orders, and items appearing in
the record of the case.”) (internal quotation marks, textual modifications and citations omitted).
IV.

DISCUSSION
The Court notes that both the FTC and Hotels and Resorts seem to recognize the

importance of data security and the damage caused by data-security breaches. Both also seem to
acknowledge that we live in a digital age that is rapidly evolving—and one in which maintaining
privacy is, perhaps, an ongoing struggle. And, as evident from the instant action, this climate
undoubtedly raises a variety of thorny legal issues that Congress and the courts will continue to
grapple with for the foreseeable future.
Hotels and Resorts characterizes this case as the first instance where “the FTC is asking a
federal court to hold that Section 5 of the FTC Act—a 1914 statute that prohibits ‘unfair and
deceptive acts or practices’—authorizes the Commission to regulate the sophisticated
technologies that businesses use to protect sensitive consumer information.” (HR’s Mov. Br. at
1). Hotels and Resorts asserts that the FTC’s action “is the Internet equivalent of punishing the
local furniture store because it was robbed and its files raided.” (Id. at 21).
But Hotels and Resorts’ motion to dismiss demands that this Court carve out a datasecurity exception to the FTC’s authority and that the FTC publish regulations before filing an
unfairness claim in federal court. These demands are, in fact, what bring us into unchartered
territory.

And, after having wrestled with arguments in the parties’ initial briefing, oral

6

argument, supplemental briefing, as well as in several amici submissions, the Court now
endeavors to explain why Hotels and Resorts’ demands are inconsistent with governing and
persuasive authority.3
To be sure, the Court does not render a decision on liability today. Instead, it resolves a
motion to dismiss a complaint. A liability determination is for another day. And this decision
does not give the FTC a blank check to sustain a lawsuit against every business that has been
hacked. Instead, the Court denies a motion to dismiss given the allegations in this complaint—
which must be taken as true at this stage—in view of binding and persuasive precedent.
A. The FTC’s Unfairness Claim (Count Two)
Hotels and Resorts first challenges the FTC’s unfairness claim. (HR’s Mov. Br. at 7).
Under this claim, the FTC alleges that “Defendants have failed to employ reasonable and
appropriate measures to protect personal information against unauthorized access.” (Compl. ¶
47). The FTC alleges that “Defendants’ actions caused or are likely to cause substantial injury to
consumers that consumers cannot reasonably avoid themselves and that is not outweighed by
countervailing benefits to consumers or competition” and, therefore, “Defendants’ acts and
practices . . . constitute unfair acts or practices” under Section 5 of the FTC Act. (Id. ¶¶ 48-49).
1. Whether Brown & Williamson preempts the FTC’s authority over
data security
a. The parties’ contentions
Hotels and Resorts analogizes this action to Brown & Williamson, arguing that the FTC’s
unfairness authority does not cover data security. (HR’s Mov. Br. at 7-8, 14). Hotels and
3

The Court previously granted leave for the following entities to file brief amici curiae: the International Franchise
Association, (D.E. No. 119); the Chamber of Commerce of the United States of America, Retail Litigation Center,
American Hotel & Lodging Association, and National Federation of Independent Business, (D.E. No. 120);
TechFreedom, International Center for Law & Economics, and Consumer Protection Scholars Justin Hurwitz, Todd
J. Zywicki, and Paul Rubin, (D.E. No. 121); and Public Citizen, Inc. and Chris Jay Hoofnagle, (D.E. No. 122). The
Court has considered these submissions and appreciates these entities’ assistance in resolving Hotels and Resorts’
motion.
7

Resorts argues that Congress has, in fact, settled on “a less extensive regulatory scheme” and
passed narrowly tailored data-security legislation, indicating that these later-enacted laws “shape
or focus” the meaning of Section 5. (Id. at 10, 14 (quoting Brown & Williamson, 529 U.S. at
143, 148)).

Hotels and Resorts contends that this “overall statutory landscape” does not

authorize the FTC to generally establish data-security standards for the private sector under
Section 5. (Id. at 7-8).
Specifically, Hotels and Resorts identifies several statutes that purportedly authorize
“particular federal agencies to establish minimum data-security standards in narrow sectors of
the economy,” including: the Fair Credit Reporting Act (“FCRA”); the Gramm-Leach-Bliley Act
(“GLBA”); the Children’s Online Privacy Protection Act (“COPPA”); and the Health Insurance
Portability and Accountability Act of 1996 (“HIPPA”). (Id. at 9, 9 n.1 (discussing statutes and
citing respective statutory codifications)).4
Hotels and Resorts also references pending legislation, namely the Cyber Intelligence
Sharing and Protection Act (“CISPA”), arguing that this would “abandon[] any attempt to create
comprehensive cybersecurity performance requirements” and is “irreconcilable” with the FTC’s
data-security regulation since this legislation would exempt liability in certain circumstances.
(Id. at 12-13).
Hotels and Resorts further argues that, like the FDA’s disclaimers over tobacco
regulation in Brown & Williamson, the FTC has disclaimed authority to regulate data security
under Section 5’s unfairness prong and, in fact, has asked Congress to give it the very authority it
“purports to wield in this case.” (Id. at 10-11, 14). And Hotels and Resorts contends that, in
view of the economic and political considerations associated with data security, “it defies
4

Hotels and Resorts asserts that Congress’s “targeted grants of authority would make no sense if Section 5 already
gave the FTC authority to regulate data security in all circumstances.” (D.E. No. 152-1, Joint Supplemental Letter
Brief (“Jnt. Supp. Br.”) at 1 (citing the FCRA, GLBA, and COPPA)).
8

common sense to think that Congress would have delegated [this] responsibility to the FTC.”
(Id. at 12-13 (citing Brown & Williamson, 529 U.S. at 133, 160)). In sum, Hotels and Resorts
declares that “[t]here is no stronger basis for the FTC to claim authority to regulate data-security
in this case than there was for the FDA to claim authority to regulate tobacco in Brown &
Williamson.” (Id. at 14).
In opposition, the FTC argues that Brown & Williamson is distinguishable. (D.E. No.
110, Plaintiff’s Response in Opposition to the Motion to Dismiss by Defendant Wyndham Hotels
& Resorts LLC (“FTC’s Opp. Br.”) at 10). The FTC insists that, unlike Brown & Williamson, its
own assertion of authority here would not result in any statutory inconsistencies. (Id.).
The FTC argues that, in actuality, Hotels and Resorts cites statutes that supplement the
FTC’s Section 5 authority for three reasons: (1) those statutes do not have the “consumer injury”
requirement that Section 5 has; (2) they grant the FTC additional powers that it otherwise lacks;
and (3) they “affirmatively compel (rather than merely authorize) the FTC to use its consumerprotection authority in specified ways.” (Jnt. Supp. Br at 6; see also FTC’s Opp. Br. at 16 n.4
(“The liability exemption provision [in CISPA] is expressly limited to potential liability from
complying with that Act.”)).5 Indeed, the FTC avers that Congress purposely gave it broad
power under Section 5 of the FTC Act and that its decision to enforce the FTC Act in the datasecurity context is entitled to deference. (FTC’s Opp. Br. at 11).
Moreover, the FTC argues that, unlike the FDA’s repeated denials of authority over
tobacco in Brown & Williamson, the FTC has never disavowed authority over unfair practices
5

In its opposition brief, the FTC argued that the subsequent data-security laws “enhance FTC authority with new
legal tools” such as “rulemaking and/or civil penalty authority.” (FTC’s Opp. Br. at 12). At oral argument,
however, the FTC seemed to reconcile these data-security laws by arguing that Section 5 requires “substantial
injury,” whereas these other laws do not. (See 11/7/13 Tr. at 44:17-45:22). To provide the parties a full and fair
opportunity to present their arguments, as well as provide any updates on recent developments, the Court invited
supplemental briefing. (See D.E. Nos. 146, 152, 153, 156 and 158). The Court has considered all of these
submissions in resolving Hotels and Resorts’ motion to dismiss.

9

related to data security. (Id. at 10, 13). Lastly, the FTC proclaims that “any question about the
FTC’s authority in the data security area is put to rest by the LabMD decision”—a recent
decision by the FTC in an administrative action that the FTC contends deserves deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). (Jnt.
Supp. Br. at 6, 8-9).
b. Analysis
The Court rejects Hotels and Resorts’ invitation to carve out a data-security exception to
the FTC’s unfairness authority because this case is different from Brown & Williamson. In
Brown & Williamson, the Supreme Court determined that, “[c]onsidering the [Food, Drug, and
Cosmetic Act (“FDCA”)] as a whole, it is clear that Congress intended to exclude tobacco
products from the FDA’s jurisdiction.” 529 U.S. at 142. It reasoned that “if tobacco products
were within the FDA’s jurisdiction, the Act would require the FDA to remove them from the
market entirely.” Id. at 142. But, the Court determined that this “would contradict Congress’[s]
clear intent as expressed in its more recent, tobacco-specific legislation” in which it “foreclosed
the removal of tobacco products from the market.” Id. at 137, 143 (emphasis added). The
Supreme Court explained that “Congress, for better or for worse, has created a distinct regulatory
scheme for tobacco products, squarely rejected proposals to give the FDA jurisdiction over
tobacco, and repeatedly acted to preclude any agency from exercising significant policymaking
authority in the area.” Id. at 159-60 (emphasis added).
But no such dilemma exists here. Hotels and Resorts fails to explain how the FTC’s
unfairness authority over data security would lead to a result that is incompatible with more
recent legislation and thus would “plainly contradict congressional policy.” See Brown &
Williamson, 529 U.S. at 139 (emphasis added); see also Massachusetts v. EPA, 549 U.S. 497,

10

531 (2007) (distinguishing Brown & Williamson, finding that the “EPA has not identified any
congressional action that conflicts in any way with the regulation of greenhouse gases from new
motor vehicles”) (emphasis added). Instead, Hotels and Resorts unequivocally recognizes that
“the FCRA, GLBA, and COPPA all contain detailed provisions granting the FTC substantive
authority over data-security practices.” (Jnt. Supp. Br at 2-3).
To be sure, Hotels and Resorts contends that these statutes are “entirely superfluous” if
the FTC “already possess[ed] generalized data-security authority under Section 5.” (D.E. No.
156, HR’s Reply to the Parties’ Joint Supplemental Letter Brief (“HR’s Reply to Jnt. Supp. Br.”)
at 2). In fact, Hotels and Resorts posits that “the FTC must prove substantial, unavoidable
consumer injury as part of enforcing those statutes” and that “no provision of the FCRA, GLBA,
or COPPA purports to relieve the FTC of its duty to prove substantial consumer injury.” (Jnt.
Supp. Br at 3). In Hotels and Resorts’ view, if “both sets of statutes require substantial consumer
injury,” then “the FTC’s understanding of Section 5 cannot be sustained without rendering the
terms of the FCRA, GLBA, and COPPA entirely superfluous.” (Id.).
But this ignores the critical premise of Brown & Williamson. See, e.g., 529 U.S. at 133
(“[W]e find that Congress has directly spoken to the issue here and precluded the FDA’s
jurisdiction to regulate tobacco products.”) (emphasis added). Here, subsequent data-security
legislation seems to complement—not preclude—the FTC’s authority.
Specifically, the FTC Act defines “unfair acts or practices” as those that “cause[] or [are]
likely to cause substantial injury to consumers which [are] not reasonably avoidable by
consumers themselves and not outweighed by countervailing benefits to consumers or to
competition.” 15 U.S.C. § 45(n). And Hotels and Resorts identifies statutes, such as the FCRA,

11

GLBA, and COPPA, that each set forth different standards for injury in certain delineated
circumstances, granting the FTC additional enforcement tools.6
Thus, unlike the FDA’s regulation over tobacco, the FTC’s unfairness authority over data
security can coexist with the existing data-security regulatory scheme. See Brown & Williamson,
529 U.S. at 143 (“[I]f tobacco products were within the FDA’s jurisdiction, the Act would
require the FDA to remove them from the market entirely.

But a ban would contradict

Congress’[s] clear intent as expressed in its more recent, tobacco-specific legislation. The
inescapable conclusion is that there is no room for tobacco products within the FDCA’s
regulatory scheme.”) (emphasis added). No such “inescapable conclusion” exists here. See id.
Moreover, in Brown & Williamson, Congress’s tobacco-specific legislation “creat[ed] a
distinct regulatory scheme” that was enacted “against the background of the FDA repeatedly and
consistently asserting that it lacks jurisdiction under the FDCA to regulate tobacco products as
customarily marketed.” Id. at 155-56. In fact, the FDA’s assertion to regulate tobacco was
“[c]ontrary to its representations to Congress since 1914.” Id. at 159. Thus, Congress ratified
the “FDA’s plain and resolute position that the FDCA gives the agency no authority to regulate
tobacco products as customarily marketed.” Id. (emphasis added).
Here, however, the FTC representations identified by Hotels and Resorts do not amount
to an analogous position that would, as a matter of law, support precluding the FTC from
bringing any enforcement action in the data-security context. Specifically, Hotels and Resorts
seems to rely on the following three representations that purportedly show the FTC disclaiming
authority over data security:
6
Notably, the FTC contends that “Section 45(n) places limitations on the Commission’s authority to declare
particular actions unfair under Section 5[] either in litigation or rulemaking” and that “[i]t has no application where
Congress itself has statutorily defined categories of actions to be unlawful and authorized the FTC to enforce those
statutes.” (Jnt. Supp. Br. at 7 n.1). Although it had an opportunity do so, Hotels and Resorts revealingly leaves this
contention unrebutted. (See generally HR’s Reply to Jnt. Supp. Br. at 3).

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

“Currently, the Commission has limited authority to prevent abusive practices in this
area. The Federal Trade Commission Act (the ‘FTC Act’), 15 U.S.C. §§ 41 et seq., grants
the Commission authority to seek relief for violations of the Act’s prohibitions on unfair
and deceptive practices in and affecting commerce, an authority limited in this context to
ensuring that Web sites follow their stated information practices.” Consumer Privacy on
the World Wide Web, Hearing before H. Comm. on Commerce, Subcomm. on
Telecomm., 105th Cong., at n.23 (July 21, 1998) (Chairman Robert Pitofsky proposing
that, under new legislation, “[w]eb sites would be required to take reasonable steps to
protect the security and integrity” of “personal identifying information from or about
consumers” collected “online”);



“The Commission’s authority over the collection and dissemination of personal data
collected online stems from Section 5 of the Federal Trade Commission Act (the ‘FTC
Act’ or ‘Act’), and the Children’s Online Privacy Protection Act (‘COPPA’) . . . . As a
general matter, however, the Commission lacks authority to require firms to adopt
information practice policies or to abide by the fair information practice principles on
their Web sites, or portions of their Web sites, not directed to children.” FTC, Privacy
Online: Fair Information Practices in the Electronic Marketplace, at 33-34 (2000);



“The agency’s jurisdiction is (over) deception . . . If a practice isn’t deceptive, we can’t
prohibit them from collecting information. The agency doesn’t have the jurisdiction to
enforce privacy. It has the authority to challenge deceptive practices.” Jeffrey Benner,
FTC Powerless to Protect Privacy, Wired, May 31, 2001 (quoting Lee Peeler, former
Associate Director of Advertising Practices at the FTC).

(11/7/13 Tr. at 19:22-21:5, 24:5-26:4; HR’s Mov. Br. at 10-11).7
But the Court is not convinced that these statements, made within a three-year period,
equate to a resolute, unequivocal position under Brown & Williamson that the FTC has no
authority to bring any unfairness claim involving data security. See 529 U.S. at 156-59. In fact,
as Hotels and Resorts must concede, the FTC brought unfairness claims in the data-security
context shortly after these representations. (See 11/7/13 Tr. at 25:20-24, 74:9-12 (presenting
timeline of events showing the FTC bringing unfairness claims in the data-security context in
2005)). And the FTC’s subsequent representations confirm its authority in this arena, not deny
it. See, e.g., Identity Theft: Innovative Solutions for an Evolving Problem: Hearing before the

7

For the reader’s convenience and simplicity’s sake, the Court reproduces portions of the FTC’s representations and
the related citations from Hotels and Resorts’ briefing and presentation at oral argument.
13

Subcomm. on Terrorism, Tech. & Homeland Sec. of the S. Comm. on the Judiciary, 110th Cong.
at 5-6 (Mar. 21, 2007).
Although Hotels and Resorts reasonably contends that the “digital age is moving much
more quickly [such that] the timeframe here is compressed,” the public record here is unlike the
lengthy, forceful history of repeated and consistent disavowals in Brown & Williamson. Thus,
even accepting that the FTC shifted its stance on data security, this cannot limit its authority
without more. See Brown & Williamson, 529 U.S. at 156-57 (“Certainly, an agency’s initial
interpretation of a statute that it is charged with administering is not ‘carved in stone.’”).
Notably, Hotels and Resorts avers that the FTC never indicated that it did have unfairness
authority over data security in the three-year period that Hotels and Resorts relies upon:
Where is there any where from 1998 to 2001 where the FTC is
telling Congress or even the Executive Branch, that [it has] this
authority, so there is no need to do anything? There is nowhere. . . .
I would submit the FTC actually doesn’t have anything where they
go to Congress and in 2000 say we have this authority. There is
nothing you need to do.
(11/7/13 Tr. at 26:9-17).
Tellingly, however, Hotels and Resorts fails to explain how this is a relevant
consideration under Brown & Williamson. Said differently, Hotels and Resorts analogizes this
case to Brown & Williamson—but fails to explain how Brown & Williamson requires a federal
agency to affirm its authority before asserting it.
Thus, although “subsequent acts can shape or focus” a range of “plausible meanings” that
a statute may have, the data-security legislation and the FTC’s representations cited by Hotels
and Resorts do not call for a data-security exception to the FTC’s unfairness authority. See
Brown & Williamson, 529 U.S. at 143. After all, Brown & Williamson was “hardly an ordinary
case” because, “[t]o find that the FDA has the authority to regulate tobacco products, one must

14

not only adopt an extremely strained understanding of ‘safety’ as it is used throughout the Act—
a concept central to the FDCA’s regulatory scheme—but also ignore the plain implication of
Congress’[s] subsequent tobacco-specific legislation.” 529 U.S. at 159-60.
To be sure, the Court’s analysis herein does not simply rest on how “important,
conspicuous, and controversial” data security is. See Brown & Williamson, 529 U.S. at 161.
Undoubtedly, “an administrative agency’s power to regulate in the public interest must always be
grounded in a valid grant of authority from Congress.” Id.
And, to that end, the Court is guided by precedent that compels rejecting Hotels and
Resorts’ request to carve out a data-security exception to the FTC’s authority. See, e.g., FTC v.
Sperry & Hutchinson Co., 405 U.S. 233, 239-40 (1972) (“When Congress created the Federal
Trade Commission in 1914 and charted its power and responsibility under [Section] 5, it
explicitly considered, and rejected, the notion that it reduce the ambiguity of the phrase ‘unfair
methods of competition’ by tying the concept of unfairness to a common-law or statutory
standard or by enumerating the particular practices to which it was intended to apply.” (citing S.
Rep. No. 597, at 13 (1914))); Am. Fin. Servs. Ass’n v. FTC, 767 F.2d 957, 967 (D.C. Cir. 1985)
(“Congress has not at any time withdrawn the broad discretionary authority originally granted
the Commission in 1914 to define unfair practices on a flexible, incremental basis.”).8
2. Whether the FTC must promulgate rules and regulations to satisfy
fair notice principles
a. The parties’ contentions
Hotels and Resorts argues that, even if Section 5 gives the FTC sufficient authority, “it
would violate basic principles of fair notice and due process to hold [Hotels and Resorts] liable
8

The parties vigorously dispute whether a recent FTC administrative adjudication—LabMD, Inc., 2014 WL 253518
(2014) (unanimous commission review)—is entitled to Chevron deference. (See Jnt. Supp. Br. at 6; HR’s Reply to
Jnt. Supp. Br. at 1-2). But, even without deferring to the agency’s interpretation of Section 5 in LabMD, the Court
finds that Brown & Williamson is distinguishable and thus need not resolve this deference issue.
15

in this case” without “rules, regulations, or other guidelines explaining what data-security
practices the Commission believes Section 5 to forbid or require.” (HR’s Mov. Br. at 15).
Hotels and Resorts contends that the FTC’s “failure to publish any interpretive guidance
whatsoever” violates fair notice principles and “bedrock principles of administrative law.” (Jnt.
Supp. Br. at 4 (citing FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) and
Sec’y of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193, 202 (3d Cir. 2008))).
Hotels and Resorts further asserts that, generally, agencies cannot rely on enforcement
actions to make new rules and concurrently hold a party liable for violating the new rule. (HR’s
Mov. Br. at 15).

Indeed, Hotels and Resorts avers that, to do so, the agency must have

previously set forth with ascertainable certainty the standards it expects private parties to
obey—but that the FTC’s mere reasonableness standard provides no such guidance “in the
highly complex and sophisticated world of data security.” (D.E. No. 115, Reply in Support of
Motion to Dismiss by Defendant Wyndham Hotels & Resorts LLC (“HR’s Reply Br.”) at 5-6
(citing Dravo Corp. v. Occupational Safety & Health Review Comm’n, 613 F.2d 1227, 1233 (3d
Cir. 1980))). Hotels and Resorts adds that the FTC’s prior consent decrees and its business
guidance brochure provide no such guidance. (Id. at 6-7; Jnt. Supp. Br. at 5 (“[C]onsent decrees
do not constrain FTC discretion and thus cannot provide any meaningful notice to third parties. .
. . And the informal brochure on which the FTC so heavily relies . . . is far too vague to provide
meaningful guidance, particularly in the complex world of data security.”) (citations omitted)).
Hotels and Resorts argues that, moreover, the FTC “can proceed by adjudication only if it
has already provided the baseline level of fair notice that the Constitution requires”—and that the
FTC has not done so here. (HR’s Reply to Jnt. Supp. Br. at 3). Hotels and Resorts accordingly
argues that, since neither the FTC nor Section 5 itself provides “fair notice,” the Court should

16

dismiss the instant action. (HR’s Mov. Br. at 17; see also HR’s Reply Br. at 4 (“Section 5 also
does not permit the FTC to bring data-security enforcement actions without first publishing rules
or regulations explaining in advance what parties must do to comply with the law.” (citing
Gerard M. Stegmaier & Wendell Bartnick, Psychics, Russian Roulette, and Data Security: The
FTC’s Hidden Data-Security Requirements, 20 Geo. Mason L. Rev. 673 (2013)))).
In response, the FTC argues that, in the data-security context, “reasonableness is the
touchstone” and that “unreasonable data security practices are unfair.” (FTC’s Opp. Br. at 17).
The FTC contends that the Court can evaluate the reasonableness of Hotels and Resorts’ datasecurity program in view of the following guidance: (1) industry guidance sources that Hotels
and Resorts itself seems to measure its own data-security practices against; and (2) the FTC’s
business guidance brochure and consent orders from previous FTC enforcement actions. (Id. at
17-20).
The FTC also asserts that data-security standards can be enforced in an industry-specific,
case-by-case manner and, further, that it has the discretion to enforce the FTC Act’s prohibition
of unfair practices through individual enforcement action rather than rulemaking. (Id. at 20, 22).
And it argues that the “ascertainable certainty” standard does not apply—but that even if it did,
reasonableness provides ascertainable certainty to companies. (11/7/13 Tr. at 74:7-19, 153:1-6;
Jnt. Supp. Br. at 9 n.2).
Indeed, the FTC analogizes its enforcement action here to other circumstances where
agencies bring actions without “particularized prohibitions,” such as those involving the National
Labor Relations Board (“NLRB”) and the Occupational Safety and Health Act (“OSHA”).
(FTC’s Opp. Br. at 23). In short, the FTC argues that fair notice does not necessarily require
issuing regulations—and that accepting Hotels and Resorts’ argument “would undermine 100

17

years of FTC precedent” because “the FTC could never protect consumers from unfair practices
without first issuing a regulation governing the specific practice at issue.” (Jnt. Supp. Br. at 9).
b. Analysis
“A fundamental principle in our legal system is that laws which regulate persons or
entities must give fair notice of conduct that is forbidden or required.” Fox Television Stations,
Inc., 132 S. Ct. at 2317. At times, Hotels and Resorts seems to improperly characterizes the
issue as being whether the FTC must provide any fair notice at all. (See HR’s Reply to Jnt.
Supp. Br. at 3 (“The FTC’s primary response is that it is not obligated to provide any fair notice
at all . . . .”)). But this is not the issue. Instead, the issue is whether fair notice requires the FTC
to formally issue rules and regulations before it can file an unfairness claim in federal district
court. And, to that extent, the Court is not so persuaded.
“[W]here an agency . . . is given an option to proceed by rulemaking or by individual
adjudication the choice is one that lies in the informed discretion of the administrative agency.”
PBW Stock Exch., Inc. v. SEC, 485 F.2d 718, 732 (3d Cir. 1973) (citing NLRB v. Wyman-Gordon
Co., 394 U.S. 759, 772 (1969) (Black, J., concurring); SEC v. Chenery Corp., 332 U.S. 194, 203
(1947)). After all, “problems may arise in a case which the administrat[ive] agency could not
reasonably foresee” or “the agency may not have had sufficient experience with a particular
problem to warrant rigidifying its tentative judgment into a hard and fast rule” or “the problem
may be so specialized and varying in nature as to be impossible of capture within the boundaries
of a general rule.” Chenery, 332 U.S. at 202-03; see also Am. Gas Ass’n v. FERC, 912 F.2d
1496, 1519 (D.C. Cir. 1990) (“[A]gency discretion is at its peak in deciding such matters as
whether to address an issue by rulemaking or adjudication. The Commission seems on especially

18

solid ground in choosing an individualized process where important factors may vary radically
from case to case.”) (citations omitted).9
Indeed, “the proscriptions in [Section] 5 are flexible, to be defined with particularity by
the myriad of cases from the field of business.” FTC v. Colgate-Palmolive Co., 380 U.S. 374,
385 (1965) (internal quotation marks omitted) (explaining that “[t]his statutory scheme
necessarily gives the Commission an influential role in interpreting [Section] 5 and in applying it
to the facts of particular cases arising out of unprecedented situations”); see also Sperry &
Hutchinson, 405 U.S. at 239-40.
Accordingly, Circuit Courts of Appeal have affirmed FTC unfairness actions in a variety
of contexts without preexisting rules or regulations specifically addressing the conduct-at-issue.
See, e.g., FTC v. Neovi, Inc., 604 F.3d 1150, 1153, 1155-59 (9th Cir. 2010) (affirming summary
judgment in favor of the FTC for violation of Section 5’s unfairness prong where website
“created and delivered unverified checks at the direction of registered users” and “fraudsters and
con artists extensively abused the website”); FTC v. Accusearch Inc., 570 F.3d 1187, 1191,
1193-95 (10th Cir. 2009) (affirming summary judgment in favor of the FTC for violation of
Section 5’s unfairness prong where website sold personal data, explaining that “conduct may
constitute an unfair practice under § 5(a) of the FTCA even if it is not otherwise unlawful”).
Hotels and Resorts insists that an agency “has the responsibility to state with
ascertainable certainty what is meant by the standards [it] has promulgated.” Dravo Corp., 613
F.2d at 1232-33 (quoting Diamond Roofing Co. v. Occupational Safety & Health Review
9

See also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 520 (2009) (“[T]he agency’s decision to consider the
patent offensiveness of isolated expletives on a case-by-case basis is not arbitrary or capricious.”); NLRB v. Bell
Aerospace Co., 416 U.S. 267, 294 (1974) (“It is doubtful whether any generalized standard could be framed which
would have more than marginal utility. The Board thus has reason to proceed with caution, developing its standards
in a case-by-case manner with attention to the specific character of the buyers’ authority and duties in each
company.”).

19

Comm’n, 528 F.2d 645, 649-50 (5th Cir. 1976)).

Indeed, “ascertainable certainty” is the

“applicable standard for fair notice.” Sec’y of Labor v. Beverly Healthcare-Hillview, 541 F.3d
193, 202 (3d Cir. 2008).
Correspondingly, Hotels and Resorts asserts that “Beverly holds that the ‘ascertainable
certainty’ standard applies,” but that “Section 5 contains nothing but generalized, vague
language, and the FTC has failed to remedy that vagueness by ‘provid[ing] a sufficient, publicly
accessible statement’ of what the statute requires.” (HR’s Reply to Jnt. Supp. Br. at 4 (quoting
Beverly Healthcare-Hillview, 541 F.3d at 202)).
But this does not mean that any ambiguity in a regulation prevents punishment. Beverly
Healthcare-Hillview, 541 F.3d at 202. Instead, the “ascertainable certainty” standard applies
when:
(1) the agency had given conflicting public interpretations of the
regulation, or, (2) the regulation is so vague that the ambiguity can
only be resolved by deferring to the agency’s own interpretation of
the regulation (i.e., a situation in which the ambiguity is resolved
by something comparable to a step-two analysis under Chevron),
and the agency has failed to provide a sufficient, publicly
accessible statement of that interpretation before the conduct in
question.
Id. (quoting United States v. Lachman, 387 F.3d 42, 57 (1st Cir. 2004)).
The parties strongly contest whether the ascertainable certainty standard applies. (See
Jnt. Supp. Br. at 4, 9 n.2; HR’s Reply to Jnt. Supp. Br. at 4). Notwithstanding this dispute,
however, Hotels and Resorts’ arguments boil down to one proposition: the FTC cannot bring an
enforcement action under Section 5’s unfairness prong without first formally publishing rules
and regulations. And Hotels and Resorts does not limit this to the data-security context.10 But

10

At oral argument, for instance, the FTC argued that Hotels and Resorts demands that, “for every unfairness case
that the FTC brings, there must first be a rule” and that the FTC did not “think the argument was just on datasecurity cases,” but “all unfairness cases.” (11/7/13 Tr. at 99:3-7). Hotels and Resorts did not contest this argument.
20

accepting Hotels and Resorts’ proposition would necessarily require the Court to sidestep longstanding precedent, detailed above, that suggests precisely the opposite—i.e., that the FTC does
not necessarily need to formally publish rules and regulations since the proscriptions in Section 5
are necessarily flexible.
To be sure, the Court finds that neither Dravo nor Beverly requires the FTC to formally
publish a regulation before bringing an enforcement action under Section 5’s unfairness prong.
Indeed, the Third Circuit has affirmed that “it is within the [agency’s] discretion whether to
proceed between ad hoc litigation or regulation.” Voegele Co. v. Occupational Safety & Health
Review Comm’n, 625 F.2d 1075, 1079 (3d Cir. 1980); see also PBW Stock Exch., 485 F.2d at
732 (“The courts have consistently held that where an agency, as in this case, is given an option
to proceed by rulemaking or by individual adjudication the choice is one that lies in the informed
discretion of the administrative agency.”).
Undoubtedly, “laws which regulate persons or entities must give fair notice of conduct
that is forbidden or required.” Fox Television Stations, 132 S. Ct. at 2317; see also Christopher
v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 (2012) (“It is one thing to expect regulated
parties to conform their conduct to an agency’s interpretations once the agency announces them;
it is quite another to require regulated parties to divine the agency’s interpretations in advance or
else be held liable when the agency announces its interpretations for the first time in an
enforcement proceeding and demands deference.”); Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d
1077, 1088 (D.C. Cir. 2007) (“Even if the Secretary’s interpretation were reasonable,
announcing it for the first time in the context of this adjudication deprives Petitioners of fair
notice. Where, as here, a party first receives actual notice of a proscribed activity through a
Indeed, Hotels and Resorts predicts that the Third Circuit will order the FTC to “go back and publish a regulation”
since it is “an agency with rule[-]making authority.” (Id. at 91:23-92:8).

21

citation, it implicates the Due Process Clause of the Fifth Amendment.”); Gen. Elec. Co. v. EPA,
53 F.3d 1324, 1328-29 (D.C. Cir. 1995) (“In the absence of notice—for example, where the
regulation is not sufficiently clear to warn a party about what is expected of it—an agency may
not deprive a party of property by imposing civil or criminal liability.”). Hotels and Resorts uses
these precepts to argue that the FTC must issue regulations—or else an FTC unfairness claim
must be dismissed.
But the Court is unpersuaded that regulations are the only means of providing sufficient
fair notice. Indeed, Section 5 codifies a three-part test that proscribes whether an act is “unfair.”
See 15 U.S.C. § 45(n). And, notably, Hotels and Resorts’ only response to the FTC’s analogy to
tort liability—where liability is routinely found for unreasonable conduct without the need for
particularized prohibitions—is the following: “While the negligence standard has long been a
cornerstone of tort law, no Article III court has ever—not once—articulated the data-security
standards that Section 5 of the FTC Act supposedly imposes on regulated parties.” (HR’s Reply
to Jnt. Supp. Br. at 5). The Court is not persuaded by this argument that essentially amounts to:
since no court has, no court can—especially since Hotels and Resorts itself recognizes how
“quickly” the digital age and data-security world is moving. (See 11/7/13 Tr. at 25:12-14).
Furthermore, agencies in other circumstances can bring enforcement actions without
issuing the particularized prohibitions that Hotels and Resorts demands here. See 29 U.S.C. §
158(d) (proscribing the NLRB’s requirement that “to bargain collectively is the performance of
the mutual obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith with respect to wages, hours, and other terms and
conditions of employment”) (emphasis added); 29 U.S.C. § 654 (requiring, under OSHA, that
each employer must “furnish to each of his employees employment and a place of employment

22

which are free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees”).
Again, given the rapidly-evolving nature of data security, the Court is not persuaded by
Hotels and Resorts’ attempt to undermine the FTC’s analogies involving the National Labor
Relations Act and OSHA on the grounds that precedent is lacking. (See HR’s Reply Br. at 7
(“Unlike data-security regulation under Section 5, the duty to negotiate in good faith has a longestablished meaning in contract law. . . . Similarly, there are over 30 years of concrete, specific
agency guidelines specifying the obligations imposed by the General Duty Clause.”) (citation
omitted)).
And, that the Department of Homeland Security and the National Institute of Standards
and Technology have purportedly “managed” to “craft generalized data-security rules” is
inapposite to the issue here. (See Jnt. Supp. Br. at 4). Hotels and Resorts argues that, since these
agencies have issued such rules, the FTC “can certainly do the same.” (Id. at 5). In other words,
Hotels and Resorts argues that, because the FTC has the power to issue particularized regulations
and that it is plausible to do so, it must. (See id.; 11/7/13 Tr. at 87:20-88:1 (“I think it is black
letter law that an agency with rule-making authority, which they have, they have rule-making
authority, Congress has given it to them, that when they are going to take action, enforcement
actions, they have to publish rules in order to give companies fair notice of what is prohibited by
their actions.”)).
But the contour of an unfairness claim in the data-security context, like any other, is
necessarily “flexible” such that the FTC can apply Section 5 “to the facts of particular cases
arising out of unprecedented situations.” See Colgate-Palmolive Co., 380 U.S. at 384-85. And,
Hotels and Resorts invites this Court to dismiss the FTC’s complaint on fair notice grounds

23

despite the FTC’s many public complaints and consent agreements, as well as its public
statements and business guidance brochure—and despite Hotels and Resorts’ own references to
“industry standard practices” and “commercially reasonable efforts” in its privacy policy. (See
Compl. ¶ 21).11
The Court declines to do so. See FTC v. R.F. Keppel & Bro., 291 U.S. 304, 310 n.1
(1934) (“It is believed that the term ‘unfair competition’ has a legal significance which can be
enforced by the commission and the courts, and that it is no more difficult to determine what is
unfair competition than it is to determine what is a reasonable rate or what is an unjust
discrimination.”); Voegele, 625 F.2d at 1077-78 (affirming that the disputed language in an
OSHA regulation implied “an objective standard[,] the reasonably prudent person test,” which is
not unconstitutionally vague).
Indeed, “the rulings, interpretations and opinions of the Administrator under this Act,
while not controlling upon the courts by reason of their authority, do constitute a body of
experience and informed judgment to which courts and litigants may properly resort for
guidance.” Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976) (emphasis added) (internal
quotation marks omitted), superseded by statute on other grounds, Pregnancy Discrimination
Act, 42 U.S.C. § 2000e-(k). Hotels and Resorts’ argument that consent orders do not carry the
force of law, therefore, misses the mark.12
11

See,
e.g.,
Protecting
Personal
Information:
A
Guide
for
Business
(2007),
http://business.ftc.gov/sites/default/files/pdf/bus69-protecting-personal-information-guide-business_0.pdf. The FTC
also cites its various administrative complaints and consent orders—the public accessibility of which are not
contested by Hotels and Resorts. (See FTC’s Opp. Br. at 19; HR’s Reply Br. at 6).

12

Hotels and Resorts asserts that “[s]tatements that do not constrain governmental authority do not provide the fair
notice that due process requires.” (HR’s Reply Br. at 7 (citing City of Chicago v. Morales, 527 U.S. 41, 63-64
(1999)). The Court finds Hotels and Resorts’ reliance on Morales unconvincing. See 527 U.S. at 63-64 (“That the
police have adopted internal rules limiting their enforcement to certain designated areas in the city would not
provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a
well-known gang member anywhere in the city safely assume that they would not be ordered to disperse no matter
how innocent and harmless their loitering might be.”) (emphasis added).
24

Finally, the Court is not convinced that this outcome affirms Section 5’s vagueness such
that “FTC data-security actions . . . would be exempted from Rule 12(b)(6) scrutiny,” as Hotels
and Resorts contends. (See HR’s Reply Br. at 8). This position ignores that, in addition to
various sources of guidance for measuring reasonableness, a statutorily-defined standard exists
for asserting an unfairness claim. See 15 U.S.C. § 45(n). Moreover, the Court must consider the
untenable consequence of accepting Hotels and Resorts’ proposal: the FTC would have to cease
bringing all unfairness actions without first proscribing particularized prohibitions—a result that
is in direct contradiction with the flexibility necessarily inherent in Section 5 of the FTC Act.
3. Whether the FTC alleges substantial, unavoidable consumer injury
and otherwise satisfies federal pleadings requirements
a. The parties’ contentions
Hotels and Resorts proclaims that an unfair practice must, by statute, cause or be likely to
cause “substantial injury to consumers which is not reasonably avoidable by consumers
themselves”—but that consumer injury from theft of payment card data is never substantial and
always avoidable. (HR’s Mov. Br. at 19 (quoting 15 U.S.C. § 45(a))).
More specifically, Hotels and Resorts contends that federal law places a $50 limit on
consumer liability for unauthorized use of a payment card and that all major credit card brands
waive liability for even this small amount.

(Id.).

And Hotels and Resorts contends that

consumers can have their issuer rescind any unauthorized charges. (Id.). Hotels and Resorts
argues that consumers, therefore, cannot suffer any “substantial injury” from the breaches that
were not reasonably avoidable. (Id. at 19-20). Hotels and Resorts adds that any “incidental
injuries that consumers suffered,” such as monitoring financial information, is insufficient. (Id.
at 20-21 (citing Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011))).

25

Finally, Hotels and Resorts asserts that the FTC’s complaint fails “basic pleading
requirements” because the FTC alleges “legal conclusions couched as factual allegations” and
fails to adequately plead causation. (Id. at 22-23). As to causation specifically, Hotels and
Resorts argues that the FTC does not allege “how the alleged data-security failures caused the
intrusions, or how the intrusions resulted in any particular consumer harm.” (Id. at 23).
In opposition, the FTC argues that its complaint pleads sufficient facts to support an
unfairness claim involving data-security practices as follows: (1) that substantial injury resulted
from Hotels and Resorts’ unreasonable data-security practices; (2) this injury was not reasonably
avoidable by consumers; (3) Hotels and Resorts’ practices caused this injury; and (4) Hotels and
Resorts’ practices were unreasonable and there were no countervailing benefits to Hotels and
Resorts’ failure to address its data-security flaws. (FTC’s Opp. Br. at 3-4).
b. Analysis
The Court finds that the FTC’s complaint sufficiently pleads an unfairness claim under
the FTC Act and satisfies Federal Rule of Civil Procedure 8(a). An act or practice is unfair if it
(1) “causes or is likely to cause substantial injury to consumers,” (2) “which is not reasonably
avoidable by consumers themselves,” and (3) is “not outweighed by countervailing benefits to
consumers or to competition.” 15 U.S.C. § 45(n). Hotels and Resorts challenges the FTC’s
allegations as to the first two elements of this standard, as well as the FTC’s purported use of
“conclusory standards.” (See HR’s Mov. Br. at 19, 22; 11/7/13 Tr. at 129:7-13). The Court
accordingly addresses each of Hotels and Resorts’ three contentions.
i. “Substantial injury” and causation allegations
First, the FTC adequately pleads “substantial injury to consumers” and that Hotels and
Resorts’ practices caused this injury. It pleads, in relevant part, that:

26

[E]xposure of consumers’ personal information has caused and is
likely to cause substantial consumer injury, including financial
injury, to consumers and businesses. For example, Defendants’
failure to implement reasonable and appropriate security measures
resulted in the three data breaches . . . the compromise of more
than 619,000 consumer payment card account numbers, the
exportation of many of those account numbers to a domain
registered in Russia, fraudulent charges on many consumers’
accounts, and more than $10.6 million in fraud loss. Consumers
and businesses suffered financial injury, including, but not limited
to, unreimbursed fraudulent charges, increased costs, and lost
access to funds or credit. Consumers and businesses also
expended time and money resolving fraudulent charges and
mitigating subsequent harm.
(Compl. ¶ 40 (emphasis added)). For purposes of resolving Hotels and Resorts’ motion, these
allegations must be “accepted as true.” See Iqbal, 556 U.S. at 678.
Although the FTC alleges that both consumers and businesses suffered financial injury,
Hotels and Resorts fails to cite any authority that necessarily preempts an unfairness action
where the FTC alleges injury by both groups. Indeed, the FTC here alleges that at least some
consumers suffered financial injury that included “unreimbursed financial injury” and, drawing
inferences in favor of the FTC, the alleged injury to consumers is substantial. See Am. Fin.
Servs. Ass’n, 767 F.2d at 972 (“An injury may be sufficiently substantial . . . if it does a small
harm to a large number of people, or if it raises a significant risk of concrete harm.”) (internal
quotation marks and citations omitted).13
And the Court is not persuaded by Hotels and Resorts’ argument that, since federal law
places a $50 limit on the amount of consumer liability for any unauthorized use of a payment
card, any alleged injury cannot be substantial. (HR’s Mov. Br. at 19 (citing 15 U.S.C. §
1643(a)(1))). The FTC alleges facts to the contrary that the Court must accept as true, drawing

13

Notably, Hotels and Resorts did not dispute the FTC’s additional contention at oral argument that the FTC “can
protect small businesses,” (see 11/7/13 Tr. at 125:4-11), at oral argument or in supplemental briefing thereafter.

27

reasonable inferences in favor of the FTC, not Hotels and Resorts. See Phillips v. Cnty. Of
Allegheny, 515 F.3d 224, 233-34 (3d Cir. 2008).14
Hotels and Resorts argues that the instant action is analogous to Reilly, where the Third
Circuit affirmed dismissal of claims against a payroll-processing firm that was hacked because
the plaintiffs had not suffered an “injury-in-fact.” (HR’s Mov. Br. at 20 (citing 664 F.3d at 4041)). In Reilly, the Third Circuit set forth that
Appellants have alleged no misuse, and therefore, no injury.
....
In data breach cases where no misuse is alleged, however,
there has been no injury—indeed, no change in the status quo.
Here, Appellants’ credit card statements are exactly the same today
as they would have been had Ceridian’s database never been
hacked. Moreover, there is no quantifiable risk of damage in the
future.
....
Although Appellants have incurred expenses to monitor
their accounts and to protect their personal and financial
information from imminent misuse and/or identity theft . . . they
have not done so as a result of any actual injury (e.g. because their
private information was misused or their identities stolen). Rather,
they prophylactically spent money to ease fears of future thirdparty criminality. Such misuse is only speculative—not imminent.
Reilly, 664 F.3d at 44, 45-46 (internal quotation marks and citations omitted).15
But here, as noted above, the FTC has alleged misuse. (See, e.g., Compl. ¶ 40). Thus,
the Court finds that Reilly does not compel a finding that the FTC’s allegations regarding
substantial injury are insufficient as a matter of law. See 664 F.3d at 45-46; see also Anderson v.
14

The FTC and Hotels and Resorts dispute whether federal law provides liability protection for debit cards. (FTC’s
Opp. Br. at 8; HR’s Reply Br. at 9). For the reasons discussed above, however, this issue is not material to the
Court’s resolution of Hotels and Resorts’ motion to dismiss.

15

The parties contest whether non-monetary injuries are cognizable under Section 5 of the FTC Act. (HR’s Mov.
Br. at 20 (citing Reilly, 664 F.3d at 46); FTC’s Opp. Br. at 8-9 (citing Neovi, 604 F.3d at 1158; Accusearch, 570
F.3d at 1194); HR’s Reply Br. at 9 (citing Am. Fin. Servs. Ass’n, 767 F.2d at 973 n.18; Randolph v. ING Life Ins. &
Annuity Co., 486 F. Supp. 2d 1, 8 (D.D.C. 2007))). Although the Court is not convinced that non-monetary harm is,
as a matter of law, unsustainable under Section 5 of the FTC Act, the Court need not reach this issue given the
analysis of the substantial harm element above.

28

Hannaford Bros. Co., 659 F.3d 151, 164-65 (1st Cir. 2011) (explaining that courts have reasoned
that, “in the absence of unauthorized charges,” plaintiffs “lacked a reasonable basis for fearing
there would be unauthorized charges to their accounts as a result of the theft” and that this “very
reasoning suggests that these courts would reach a different result if the plaintiffs alleged that
they had suffered fraudulent charges to their accounts”) (emphasis added).16
The FTC’s allegations also permit the Court to reasonably infer that Hotels and Resorts’
data-security practices caused theft of personal data, which ultimately caused substantial injury
to consumers. The FTC alleges “a number of practices that, taken together, unreasonably and
unnecessarily exposed consumers’ personal data to unauthorized access and theft.” (Compl. ¶
24). And, making reasonable inferences in favor of the FTC, these practices correspond to the
allegations involving how intruders perpetrated three data breaches, (see id. ¶¶ 25-39)—which
ultimately resulted in the alleged substantial injury, (id. ¶ 40).
For instance, the FTC alleges that Defendants “failed to employ commonly-used methods
to require user IDs and passwords that are difficult for hackers to guess” and “did not require the
use of complex passwords for access to the Wyndham-branded hotels’ property management
systems and allowed the use of easily guessed passwords.” (Id. ¶ 24(f)). Correspondingly, the
FTC alleges that “intruders attempted to compromise an administrator account on the Hotels and
Resorts’ network by guessing multiple user IDs and passwords—known as a brute force attack.”
(Id. ¶ 26).

16

Hotels and Resorts attempts to discredit Anderson because that case “arose solely under Maine law . . . so the
court had no opportunity to address whether such minor injury-avoidance costs constitute unavoidable ‘substantial
injury’ under the FTC Act.” (HR’s Reply Br. at 10). But much of the precedent cited by the parties involves
analogous circumstances. In fact, Hotels and Resorts itself relies on a case involving analysis under state law.
(HR’s Mov. Br. at 22 (“[C]ourts examining data-security issues under state unfair-trade-practices statutes have held
that such practices are unfair only when they are egregious or ‘reckless’ in nature.” (citing Worix v. MedAssets, Inc.,
869 F. Supp. 2d 893, 900 (N.D. Ill. 2012)))).
29

Similarly, the FTC alleges that Defendants “failed to adequately inventory computers
connected to Hotels and Resorts’ network so that Defendants could appropriately manage the
devices on its network.”

(Id. ¶ 24(g)).

And the FTC correspondingly alleges that, since

“Defendants did not have an adequate inventory of the Wyndham-branded hotels’ computers
connected to its network . . . they were unable to physically locate those computers” and,
therefore, “Defendants did not determine that Hotels and Resorts’ network had been
compromised until almost four months later.” (Id. ¶ 27).
Likewise, the FTC alleges that Defendants failed to “use readily available security
measures to limit access between and among the Wyndham-branded hotels’ property
management systems,” such as firewalls.

(Id. ¶ 24(a)).

And this aligns with the FTC’s

allegation that intruders “were able to gain unfettered access to the property management
systems servers of a number of hotels” because “Defendants did not appropriately limit access
between and among the Wyndham-branded hotels’ property management systems, Hotels and
Resorts’ own corporate network, and the Internet—such as through the use of firewalls.” (Id. ¶
28).
Finally, the FTC alleges that this “failure to implement reasonable and appropriate
security measures exposed consumers’ personal information to unauthorized access, collection,
and use” and “has caused and is likely to cause substantial consumer injury, including financial
injury, to consumers and businesses.” (Id. ¶ 40). Drawing inferences in favor of the FTC, the
identified failures caused the breaches, resulting in the alleged substantial injury. See Phillips,
515 F.3d at 231.
At its root, Hotels and Resorts’ challenge to the FTC’s injury and causation allegations is
essentially an appeal for a heightened pleading standard. Hotels and Resorts seems to ask this

30

Court to read a “recklessness or egregiousness” requirement into the statutorily-defined
unfairness standard. (See HR’s Mov Br. at 22). Similarly, it argues that the FTC should have to
plead the precise consumer harm, the “exact alleged deficiencies” that caused the “theft of the
information,” and how the breaches caused the alleged harm—because, as a government agency,
the FTC conducted a pre-suit investigation. (Id. at 23; 11/7/13 Tr. at 101:13-102:14, 104:19-23,
108:3-7).
But the Court declines to impose such a heightened standard because Hotels and Resorts
cites no authority to this effect. (See, e.g., HR’s Mov. Br. at 23 (stating that, “[a]fter a two-year
investigation into [Hotels and Resorts’] data-security practices, surely the FTC should be
required to say more about how the alleged vulnerabilities ‘result[ed]’ in consumer harm,” but
citing no authority)).
ii. “Reasonably avoidable” allegations
Second, the FTC adequately pleads that the alleged substantial injury was not reasonably
avoidable. Hotels and Resorts argues that “[c]onsumers can . . . always ‘reasonably avoid’ any
financial injury stemming from the theft of payment card data simply by having their issuer
rescind any unauthorized charges.” (HR’s Mov. Br. at 19 (citing 15 U.S.C. § 1643(a)(1)); see
also HR’s Reply Br. at 9 (“Even accepting as true the FTC’s unsubstantiated allegation that some
consumers might not have been reimbursed . . . federal law and card-brand zero-liability policies
make clear that any such charges were nonetheless ‘reasonably avoidable’ by consumers.”)).
Hotels and Resorts thus effectively asks the Court to hold that, as a matter of law, any financial
injury from payment card theft data is reasonably avoidable and that the FTC’s allegation to the
contrary, (Compl. ¶¶ 40, 43, 48), could not be true under any factual scenario.

31

But the Court cannot make such a far-reaching conclusion regarding an issue that seems
fact-dependent. See FTC v. Inc21.com, 745 F. Supp. 2d 975, 1004 (N.D. Cal. 2010) (granting
summary judgment in favor of the FTC and finding that the “unrebutted evidence supports a
finding that the harm suffered by consumers was not reasonably avoidable”).
iii. Other purportedly “conclusory” allegations
Third, the Court is not persuaded that the FTC’s complaint otherwise fails federal
pleading standards. Hotels and Resorts criticizes the FTC’s use of terms such as “readily
available,” “adequate,” “commonly-used,” and “proper.” (HR’s Mov. Br. at 22 (quoting Compl.
¶ 24)). Hotels and Resorts argues that the “FTC does not give any factual detail as to what
procedures, or combination of procedures, would have met those conclusory standards” and that
the FTC “does not explain what measures would be ‘reasonable.’” (Id.).
But the FTC does not merely allege that Hotels and Resorts’ practices were unreasonable.
Cf. Willey v. J.P. Morgan Chase, N.A., No. 09-1397, 2009 WL 1938987, at *4 (S.D.N.Y. July 7,
2009) (finding that plaintiff did “not support [his] formulaic recitations with factual allegations
that describe any insufficiency in [defendant’s] security procedures, or with allegations that
[defendant] lacked such procedures” or “how the procedures [defendant] adopted failed to
comply with the [relevant] [g]uidelines”).
Instead, the FTC describes several data-security insufficiencies, including: failing to
employ firewalls; permitting “storage of payment card information in clear readable text”; failing
to make sure Wyndham-branded hotels “implemented adequate information security policies and
procedures prior to connecting their local computer networks to Hotels and Resorts’ computer
network”; permitting Wyndham-branded hotels “to connect insecure servers to Hotels and
Resorts’ networks, including servers using outdated operating systems that could not receive

32

security updates or patches to address known security vulnerabilities”; permitting servers on
Hotels and Resorts’ networks with commonly-known default user IDs and passwords; failing to
“employ commonly-used methods to require user IDs and passwords that are difficult for
hackers to guess”; failing to “adequately inventory computers connected to Hotels and Resorts’
network” to manage devices on its network; failing to “monitor Hotels and Resorts’ computer
network for malware used in a previous intrusion”; and failing to restrict third-party access “such
as by restricting connections to specified IP addresses or granting temporary, limited access, as
necessary.” (Compl. ¶¶ 24(a)-(j)).
The FTC therefore does more than simply assert “that a violation . . . must have occurred
simply because the data loss incident occurred.” Cf. Willey, 2009 WL 1938987, at *4. It alleges
insufficiencies that, drawing reasonable inferences in favor of the FTC, led to data-security
breaches. (See Compl. ¶¶ 24-39).
And, although the FTC does not plead the particularized data-security rules or regulations
that Hotels and Resorts’ procedures allegedly failed to comply with, this cannot preclude the
FTC’s enforcement action.

See Sperry & Hutchinson Co., 405 U.S. at 239-40; Colgate-

Palmolive Co., 380 U.S. at 384-85; PBW Stock Exch., 485 F.2d at 732 (citing Chenery Corp.,
332 U.S. at 203). Indeed, Hotels and Resorts’ challenge to this effect seems to be a repackaging
of its fair notice argument—which this Court has considered and rejected.
B. The FTC’s Deception Claim (Count One)
Hotels and Resorts also challenges the FTC’s deception claim. (HR’s Mov. Br. at 23). In
this claim, the FTC cites the Defendants’ privacy policy disseminated on Hotels and Resorts’
website and alleges that, “in connection with the advertising, marketing, promotion, offering for
sale, or sale of hotel services, Defendants have represented, directly or indirectly, expressly or by

33

implication, that they had implemented reasonable and appropriate measures to protect personal
information against unauthorized access”—but that “Defendants did not implement reasonable
and appropriate measures to protect personal information against unauthorized access.” (Compl.
¶¶ 21, 44-45). Accordingly, the FTC alleges that Defendants’ representations “are false or
misleading and constitute deceptive acts or practices” under Section 5(a) of the FTC Act. (Id. ¶
46).
1. The parties’ contentions
Hotels and Resorts argues that the FTC’s deception claim is insufficiently pleaded under
either a heightened pleading requirement pursuant to Federal Rule of Civil Procedure 9(b) or the
general pleading standard. (HR’s Mov. Br. at 23-24). Hotels and Resorts contends that—
although its online privacy policy was allegedly deceptive—the FTC “relies primarily on
allegations concerning the state of data-security at the Wyndham-branded hotels.” (Id. at 24).
To that extent, Hotels and Resorts asserts that the Wyndham-branded hotels are “legally
separate entities that each maintain their own computer networks and engage in their own datacollection practices.” (Id. at 24-25). Indeed, Hotels and Resorts avers that its privacy policy
specifically

excludes

the

Wyndham-branded

hotels

from

the

policy’s

data-security

representations and that such exclusion of responsibility over franchisees’ actions is consistent
with franchise law. (Id. at 25-27).
Further, Hotels and Resorts argues that the FTC’s allegations concerning Hotels and
Resorts’ own data-security practices “amount to nothing more than conclusory statements of
wrongdoing that fall well short of establishing a ‘plausible’ claim to relief.” (Id. at 27 (citing
Iqbal, 556 U.S. at 678)). Hotels and Resorts argues that the FTC fails to allege what data-

34

security practices were “standard” in the hospitality industry or how Hotels and Resorts’
practices fell short. (Id.).
Finally, Hotels and Resorts asserts that the FTC “does nothing to explain how the alleged
deficiencies it identifies placed personal information collected by [Hotels and Resorts] at risk”
and, therefore, there is “no basis in law or logic for pointing to the data breaches as evidence of
‘deceptive’ practices by [Hotels and Resorts].” (Id. at 28).
In opposition, the FTC asserts that, although a Section 5 claim of deceptive practices
need not meet the Rule 9(b) heightened pleading standard, its complaint does so. (FTC’s Opp.
Br. at 26-27). The FTC argues that Hotels and Resorts, in fact, concedes certain allegations “are
relevant to the data security measures of the Wyndham entities” and, therefore, that it has
sufficiently pleaded a claim for deceptive data-security practices. (Id. at 28 (citing Compl. ¶¶
24(g)-(i))).
The FTC also argues that it alleges that Hotels and Resorts was responsible for datasecurity failures by “permit[ing] computers with unreasonable data security measures on its
network.” (Id. at 27 (citing Compl. ¶ 24)). The FTC avers that, since the alleged data-security
failures are “attributable” to Hotels and Resorts, the FTC need not plead “actual control” over the
Wyndham-branded hotels’ activities. (Id. at 28). The FTC adds, however, that the complaint
nevertheless pleads such control “over the relevant aspects of the franchisees’ data security
practices.” (Id. (citing Compl. ¶¶ 15, 17-19)).
2. Analysis
As an initial matter, the parties dispute whether the FTC must meet a heightened pleading
standard under Federal Rule of Civil Rule 9(b) when alleging unlawful deception. District courts

35

have reached different conclusions as to whether claims under the FTC Act must satisfy Rule
9(b)’s heightened pleading standard.17 This is an issue of first impression in this District.
Rule 9(b) provides that, “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” To establish liability for the
deception prong of Section 5(a), “the FTC must establish: ‘(1) there was a representation; (2) the
representation was likely to mislead customers acting reasonably under the circumstances, and
(3) the representation was material.’” FTC v. Millennium Telecard, Inc., No. 11-2479, 2011 WL
2745963, at *3 (D.N.J. July 12, 2011) (quoting FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir.
2003)).18
This Court is not convinced that the FTC’s deception claim requires Rule 9(b) treatment.
See FTC v. Freecom Commc’ns, Inc., 401 F.3d 1192, 1203 n.7 (10th Cir. 2005) (“A § 5 claim
simply is not a claim of fraud as that term is commonly understood or as contemplated by Rule
9(b), and the district[] court’s inclination to treat it as such unduly hindered the FTC’s ability to
present its case.”). Indeed, Hotels and Resorts summarily asserts that the FTC’s claim “‘sounds
in fraud,’” without any reasoning or analysis. (See HR’s Mov. Br. at 24 (quoting Lights of Am.,
760 F. Supp. 2d at 853; Ivy Capital, 2011 WL 2118626, at *3)); see also Med. Billers Network,

17

Some courts have explicitly ruled that Rule 9(b)’s heightened pleading standard does not apply. See, e.g., FTC v.
Sterling Precious Metals, LLC, No. 12-80597, 2013 WL 595713, at *3 (S.D. Fla. Feb. 15, 2013); FTC v. Consumer
Health Benefits Ass’n, No. 10-3551, 2012 WL 1890242, at *6-7 (E.D.N.Y. May 23, 2012); FTC v. Innovative Mktg.,
Inc., 654 F. Supp. 2d 378, 388 (D. Md. 2009); FTC v. Med. Billers Network, 543 F. Supp. 2d 283, 314-15 (S.D.N.Y.
2008). Others have found that it does apply. See, e.g., FTC v. Ivy Capital, Inc., No. 11-283, 2011 WL 2118626, at
*3 (D. Nev. May 25, 2011); FTC v. Lights of Am., Inc., 760 F. Supp. 2d 848, 852-54 (C.D. Cal. 2010).
18

Hotels and Resorts does not dispute the materiality element of this standard. See also In re Nat’l Credit Mgmt.
Grp., L.L.C., 21 F. Supp. 2d 424, 441 (D.N.J. 1998) (“Explicit claims or deliberately-made implicit claims utilized
to induce the purchase of a service or product are presumed to be material.”).

36

543 F. Supp. 2d at 314 (explaining that Defendants do not “explain why the pleading
requirements of Rule 9(b) should apply to this action”).19
Nevertheless, the Court finds that, even under a Rule 9(b) heightened standard, the
allegations here suffice. See FTC v. Cantkier, 767 F. Supp. 2d 147, 154-55 (D.D.C. 2011) (“[A]
claim for deceptive acts or practices under Section 5 is not a fraud claim. . . . [T]he Court does
not need to rule on the applicability of Rule 9(b) to Section 5 actions here because, even
assuming arguendo that Rule 9(b) applies, the FTC’s allegations have been pled with sufficient
particularity.”).
Here, the FTC alleges that Defendants “disseminated[] or caused to be disseminated”
privacy policies or statements, including statements “regarding the privacy and confidentiality of
personal information [] disseminated on the Hotels and Resorts’ website.”

(Compl. ¶ 21

(reproducing a portion of the privacy policy statement disseminated on the Hotels and Resorts’
website)). The statement from Hotels and Resorts’ website represents, in part, that “[w]e
safeguard our Customers’ personally identifiable information by using industry standard
practices” and make “commercially reasonable efforts” to collect personally identifiable
information “consistent with all applicable laws and regulations” and, among other things, that
“[w]e take commercially reasonable efforts to create and maintain ‘fire walls’ and other
appropriate safeguards to ensure that to the extent we control the Information, the Information is
used only as authorized by us and consistent with this Policy.” (Id.).
The FTC also alleges that Defendants “failed to adequately inventory computers
connected to the Hotels and Resorts’ network so that Defendants could appropriately manage the

19

At most, Hotels and Resorts’ contention seems to be premised on a nefarious, intent-like element that is
purportedly inherent in a deception claim. (See 11/7/13 Tr. at 137:20-138:6, 146:22-147:3). But, “[u]nlike the
elements of common law fraud, the FTC need not prove scienter, reliance, or injury to establish a § 5 violation.”
Freecom Commc’ns, 401 F.3d at 1203 n.7.
37

devices on its network,” “failed to employ reasonable measures to detect and prevent
unauthorized access to Defendants’ computer network or to conduct security investigations,” and
“failed to follow proper incident response procedures, including failing to monitor Hotels and
Resorts’ computer network for malware used in a previous intrusion.”

(Id. ¶¶ 24(g)-(i)

(identifying various practices that allegedly exposed consumers’ personal data)).
Hotels and Resorts dismisses these allegations as “conclusory statements of
wrongdoing.” (HR’s Mov. Br. at 27 (asserting that “the FTC makes a half-hearted attempt to
allege that [Hotels and Resorts] made deceptive statements about its own data-security
practices”)). But the Court is not so persuaded. Indeed, Hotels and Resorts’ argument again
seems to be a repackaging of its fair-notice challenge. (See 11/7/13 Tr. at 141:9-16). The Court
has, however, already rejected this challenge.
Moreover, accepting Hotels and Resorts’ position leads to the following incongruous
result: Hotels and Resorts can explicitly represent to the public that it “safeguard[s] . . .
personally identifiable information by using industry standard practices” and makes
“commercially reasonable efforts” to make collection of data “consistent with all applicable laws
and regulations”—but that, as a matter of law, the FTC cannot even file a complaint in federal
court challenging such representations without first issuing regulations. See Voegele, 625 F.2d at
1078-79; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.”).
Furthermore, the Court is not convinced that the FTC’s other allegations mandate
dismissal of its deception claim because, according to Hotels and Resorts, they “concern[] the
state of data-security at the Wyndham-branded hotels” and that the three breaches involved

38

cybercriminals accessing “payment-card data collected and controlled by the Wyndham-branded
hotels.” (HR’s Mov. Br. at 24). The Court is not so convinced for the following two reasons.
First, the Court cannot accept Hotels and Resorts’ contention, that, as a matter of law, it
is necessarily a separate entity from Wyndham-branded hotels such “that each maintain their
own computer networks and engage in their own data-collection practices.” (Id. at 24-25). After
all, the FTC alleges that “Defendants failed to provide reasonable and appropriate security for
the personal information collected and maintained by Hotels and Resorts, Hotel Management,
and the Wyndham-branded hotels, by engaging in a number of practices that, taken together,
unreasonably and unnecessarily exposed consumers’ personal data to unauthorized access and
theft,” including Defendants’ failure “to ensure the Wyndham-branded hotels implemented
adequate information security policies and procedures prior to connecting their local networks to
Hotels and Resorts’ computer network.” (Compl. ¶¶ 24, 24(c)). And, accepting the FTC’s
factual allegations as true and drawing reasonable inferences in favor of the FTC, the Court finds
that these allegations support the FTC’s deception claim against Hotels and Resorts.20
Second, the Court is not persuaded by Hotels and Resorts’ arguments involving
disclaimer. (See HR’s Mov. Br. at 25). Hotels and Resorts contends that the policy defines
“we,” “us,” and “our” in a certain way that excludes Wyndham-branded hotels, applies to “our

20

Alternatively, the Court finds that the FTC’s complaint sufficiently pleads Hotels and Resorts’ control over the
Wyndham-branded hotels. (See Compl. ¶¶ 15, 17-19); Cf. Chen v. Domino’s Pizza, Inc., No. 09-107, 2009 WL
3379946, at *4 (D.N.J. Oct. 16, 2009) (“Plaintiffs’ complaint does not contain a single factual allegation indicating
that Domino’s had any authority or control over their employment conditions.”).
Tellingly, Hotels and Resorts’ responds that “the allegations in the complaint do not establish that [Hotels
and Resorts] exercised the kind of ‘day-to-day’ control that is necessary to assign vicarious liability to a
franchisor”—but cites a case resolved at summary judgment. (HR’s Reply Br. at 11 (citing Capriglione v. Radisson
Hotels Int’l, Inc., No. 10-2845, 2011 WL 4736310, at *3 (D.N.J. Oct. 5, 2011))); see also Drexel v. Union
Prescription Ctrs., Inc., 582 F.2d 781, 786, 789-90 (3d Cir. 1978) (finding that, “on the present record genuine
issues of material fact exist regarding the nature of the relationship between appellee and its franchisee which
preclude the entry of summary judgment” and explaining that “[w]hether the control retained by the franchisor is
also sufficient to establish a master-servant relationship depends in each case upon the nature and extent of such
control as defined in the franchise agreement or by the actual practice of the parties”).
39

collection” of data, and only applies “to the extent we control the Information.” (Id. at 25
(quoting D.E. No. 91-3, Ex. A to Declaration of Jennifer A. Hradil (“Hradil Decl.”) at 1)).
Hotels and Resorts also cites language in the policy that purportedly “expressly disclaims making
any representations about the security of payment-card data collected by the Wyndham-branded
hotels.” (Id. at 25 (citing Ex. A to Hradil Decl. at 4)).
Hotels and Resorts thus asserts that “any reasonable consumer, after reading the privacy
policy ‘as a whole, without emphasizing isolated words or phrases apart from their context’ . . .
would have understood that the policy made statements only about data-security practices at
[Hotels and Resorts] and made no representations about data-security practices at the Wyndhambranded hotels.”

(Id. at 25-26 (citation omitted) (quoting Millennium Telecard, 2011 WL

2745963, at *5)).
But the policy also recognizes “the importance of protecting the privacy of individualspecific (personally identifiable) information collected about guests” and states that it “applies to
residents of the United States, hotels of our Brands located in the United States, and Loyalty
Program activities in the United States only.” (Ex. A to Hradil Decl. at 1 (emphasis added)).
And it also states that “[w]e take commercially reasonable efforts to create and maintain ‘fire
walls’ and other appropriate safeguards to ensure that to the extent we control the Information,
the Information is used only as authorized by us and consistent with this Policy.” (Ex. A at 1
(emphasis added)).
Thus, it is reasonable to infer the exact opposite of what Hotels and Resorts posits: that a
reasonable customer would have understood that the policy makes statements about data-security
practices at Hotels and Resorts and Wyndham-branded hotels, to the extent that Hotels and
Resorts controls personally identifiable information.

40

And, for this reason, the Court finds

unpersuasive Hotels and Resorts’ argument that the FTC “does nothing to explain how the
alleged deficiencies it identifies placed personal information collected by [Hotels and Resorts] at
risk.” (See HR’s Mov. Br. at 28).
The Court is not persuaded otherwise by Hotels and Resorts’ reliance on case law
purportedly involving “similar disclaimers to dismiss deception or fraud-based claims.” (HR’s
Reply Br. at 11 (citing Pathfinder Mgmt., Inc. v. Mayne Pharma PTY, No. 06-2204, 2008 WL
3192563, at *16 (D.N.J. Aug. 5, 2008); Eckler v. Wal-Mart Stores, Inc., No. 12-727, 2012 WL
5382218, at *7 (S.D. Cal. Nov. 1, 2012))).

As such, Pathfinder Management involved a

disclaimer that “explicitly states that [p]laintiff is aware that no representations are being made to
them outside those contained within the Purchase Agreement and specified schedules and
instruments.” 2008 WL 3192563, at *16. Notwithstanding this disclaimer, the plaintiff sought
to bring certain allegations “based upon representations made outside of the Purchase
Agreement,” which the Court determined could not “be the basis for alleging fraudulent
misrepresentation or fraud in the inducement.” Id.
Here, however, the allegations regarding the privacy policy do not relate to extrinsic
evidence, and Hotels and Resorts does not explain how the FTC’s allegations are otherwise
analogous to those in Pathfinder Management. For similar reasons, the Court is not persuaded
by Eckler. See 2012 WL 5382218, at *7 (dismissing claims where extrinsic evidence in the form
of studies allegedly supported plaintiff’s claims that a dietary supplement’s representations were
false or misleading).
Again, at this stage, the Court must draw reasonable inferences in favor of the FTC, not
Hotels and Resorts—even if the FTC’s deception claim warrants Rule 9(b) treatment. See Flood
v. Makowski, No. 03-1803, 2004 WL 1908221, at *14 (M.D. Pa. Aug. 24, 2004) (“While Rule

41

9(b) requires pleading with specificity, it does not erase the general standard that the Court
should draw reasonable inferences in favor of Plaintiffs.” (citing Lum v. Bank of Am., 361 F.3d
217 (3d Cir. 2004))).
Moreover, the impression that a reasonable consumer would have had after reading the
privacy policy seems to involve fact issues that the Court cannot resolve at this juncture. See
FTC v. Nat’l Urological Grp., Inc., 645 F. Supp. 2d 1167, 1189 (N.D. Ga. 2008) (“The meaning
of an advertisement, the claims or net impressions communicated to reasonable consumers, is
fundamentally a question of fact.”); see also Am. Home Prods. Corp. v. FTC, 695 F.2d 681, 687
(3d Cir. 1982) (“The impression created by the advertising, not its literal truth or falsity, is the
desideratum.”).
For these reasons, the Court cannot dismiss the FTC’s deception claim at this juncture.
V.

CONCLUSION
As set forth above, the Court hereby DENIES Hotels and Resorts’ motion to dismiss. An

appropriate Order accompanies this Opinion.
/s/ Esther Salas
Esther Salas, U.S.D.J.

42