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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ROBERT HARTIGAN, on behalf of themselves and all others similarly situated, Plaintiff, vs. MACY’S, INC., Defendant.

) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 20-10551 NOTICE OF REMOVAL

PLEASE TAKE NOTICE that Defendant Macy’s, Inc. (“Defendant”) hereby removes this

case from the Superior Court of the Commonwealth of Massachusetts to the United States District

Court for the District of Massachusetts. In support of removal, Defendant states as follows.

STATEMENT OF JURISDICTION

On November 26, 2019, Plaintiff Robert Hartigan (“Plaintiff”) filed a Class Action

Complaint (“Complaint”) against Defendant in Suffolk County Superior Court of the

Commonwealth of Massachusetts, Case No. 2019-CV-03718-BLS1 (the “State Court Action”). A

First Amended Complaint was then filed on or about February 14, 2020. Copies of the pleadings

and papers Defendant is aware of having been filed in the State Court Action are collected and

attached as Exhibit A.

This case is removable under 28 U.S.C. § 1453(b) because it meets the requirements of the

Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of

28 U.S.C.) (hereinafter “CAFA”). A defendant’s notice of removal under CAFA need only contain

Case 1:20-cv-10551-PBS Document 1 Filed 03/19/20 of 7

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a short and plain statement of the grounds for removal. Dart Cherokee Basin Operating Co., LLC

v. Owens, 135 S. Ct. 547, 551-53, 190 L. Ed. 2d 495 (2014).

THIS CASE IS REMOVABLE UNDER 28 U.S.C. § 1453(b) BECAUSE IT QUALIFIES AS A “CLASS ACTION” THAT MEETS THE

REQUIREMENTS OF 28 U.S.C. § 1332(d)(2)

This case qualifies as a “class action” in which the putative class includes at least 100

members, the amount Plaintiffs have put into controversy exceeds $5,000,000, exclusive of interest

and costs, and one or more members of the putative class and Defendant are citizens of different

states. See 28 U.S.C. § 1332(d). Consequently, this action is removable pursuant to 28 U.S.C. §

1453, which provides that a “class action” may be removed to federal court in accordance with 28

U.S.C. § 1446(b). Defendant denies, however, that this case could be certified as a class action,

and expressly reserves its right to oppose any motion for class certification filed in this action.

A. The Putative Class Includes At Least 100 Members

Plaintiff purports to bring this action “on behalf of himself and similarly situated

individuals.” See Ex. A, First Amended Complaint ¶ 93. Plaintiff defines the putative class as

follows: “All Massachusetts individuals whose Class Information was stolen, distributed, or

accessed by unauthorized third-parties as a result of The Breach.” Id. ¶ 94. The First Amended

Complaint defines “Class Information” as “Class Member’s personal information, including: first

and last names, addresses, phone numbers, and credit card information.” Id. ¶ 23. The data incident

that is the subject of the complaint potentially impacted 4,951 consumers in the Commonwealth

of Massachusetts. Declaration of Michael McCullough, ¶ 5. Thus, the putative class easily exceeds

the 100-member requirement imposed by CAFA.

B. The Amount in Controversy Exceeds $5,000,000

“The amount in controversy is simply an estimate of the total amount in dispute, not a


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prospective assessment of defendant’s liability.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395,

400 (9th Cir. 2010). “When the plaintiff’s complaint does not state the amount in controversy, the

defendant’s notice of removal may do so.” Dart Cherokee Basin Operating Co., 135 S. Ct. at 551.

Plaintiffs allege, inter alia, a violation of M.G.L. c. 214, § 1B, a common law claim for

negligence for allegedly breaching a duty of care owed to its card holders by failing to prevent the

criminal acts of an unknown third party. Ex. A, First Amended Complaint ¶¶ 102-120; 121-142.

Plaintiff also alleges a claim for breach of contract and M.G.L. c. 93A, § 2, M.G.L. c. 93H and for

declaratory judgment all based on the same operative set of facts. Id. ¶¶ 143-197. Although

Defendant denies the material allegations in the Complaint, denies any wrongdoing, and denies

that Plaintiff would be entitled to recovery in any amount, the amount placed in controversy by

Plaintiff’s class-based claims exceeds $5,000,000.

Plaintiff alleges damages for the costs the putative class will incur to pay for credit

monitoring to avoid identity theft, damages for breach of their privacy and public disclosure of

private facts, and damages for loss of time. The putative class also seeks recovery of attorneys’

fees. Of import, Plaintiff’s counsel sent Macy’s a settlement demand letter dated December 31,

2019, in which he demanded compensation in the amount of 10 years of identity monitoring (or

the cash equivalent) and $10,000 for each member of the putative class. As there were 4,951

Massachusetts consumers potentially affected by the data incident, at $10,000 each, the

settlement demand was over $49 million. In order for the amount in controversy to be less than

$5,000,000, each class member could not recover more than $1,010 on average. In light of the

six counts for which damages are sought, the number of potential putative class members (4,951)

and the damages sought due to the potential for identity theft, the risk of “financial detriment”

and the payment of “costly identity monitoring”, in additional to attorneys’ fees and costs, there


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is no doubt that the amount in controversy clearly exceeds the $5,000,000 jurisdictional

threshold. McCullough Decl. at ¶¶ 4-5.

It is well-settled in this jurisdiction that settlement demands are relevant to establish that

the jurisdictional threshold has been met. Garick v. Mercedes-Benz USA, 2018 U.S. Dist. LEXIS

53980, *5 (rationale for finding the amount in controversy was met included: 1) the complaint

sought double or treble damages, 2) plaintiff made a pre-litigation demand of $50 million and 3)

the amount would be satisfied if every class member only received $13). Other federal

jurisdictions likewise have relied on settlement letters as relevant evidence of the amount in

controversy. See Chase v. Shop ' N Save Warehouse Foods, Inc., 110 F.3d 424, 428-30 (7th Cir.

1997) (plaintiff's settlement offer is properly consulted in determining "plaintiff's assessment of

the value of her case"); Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994) ("Because the

record contains a letter, which plaintiff's counsel sent to defendants stating that the amount in

controversy exceeded $ 50,000, it is 'apparent' that removal was proper."); Cohn v. Petsmart, Inc.

(9th Cir. 2002) 281 F.3d 837, 840 (demand letter sufficient to establish amount in controversy).

In this case, even a conservative estimate of the penalties Plaintiff seeks for Defendant’s

purported failure to prevent the data incident – at 4,951 consumers – quickly surpasses the

$5,000,000 threshold, and removal under the CAFA is appropriate.

C. Plaintiff and Defendant Are Citizens of Different States

Plaintiff is a citizen of the State of Massachusetts as alleged in the Complaint. Ex. A, First

Amended Complaint ¶ 5.

For diversity jurisdiction purposes, a corporation is deemed to be a citizen of the state in

which it is incorporated as well as the state where it has its principal place of business. 28 U.S.C.

§ 1332(c)(1); Hertz Corp. v. Friend, 559 U.S. 77, 92-93, 130 S. Ct. 1181, 175 L. Ed. 2d 1029


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(2010) (holding “‘principal place of business’ is best read as referring to the place where a

corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that

Courts of Appeals have called the corporation’s ‘nerve center.’”).

At the time Plaintiff filed the State Court Action, Defendant was incorporated under the

laws of the State of Delaware. Defendant is still incorporated under the laws of the state of

Delaware. Declaration of Steven R. Watts (“Watts Decl.”), ¶ 3. At the time Plaintiff filed the State

Court Action, Defendant’s principal place of business was in New York, New York. Defendant’s

principal place of business is still in New York, New York. Id. ¶ 4. This is demonstrated by the

fact that Macy's, Inc.'s corporate offices are located in New York. Defendant is also only qualified

to do business in Ohio, New York and Oregon (not Massachusetts). Also important to the analysis

of Defendant’s principal place of business is that its board of directors meets in New York; the

members of its executive management team are located in New York; and its other principal

corporate officers are also located in New York. Accordingly, as the decisions of the board of

directors, executive management team and corporate officers (the individuals responsible for

directing, controlling and coordinating the activities of Macy's, Inc.) are rendered from New York,

under Hertz, Defendant’s principal place of business is New York. Id.

In accordance with 28 U.S.C. § 1332, there is complete diversity of citizenship because

Plaintiff (Massachusetts) and Defendant (Delaware/New York) are citizens of different States. See

28 U.S.C. § 1332(a)(1),(c)(1).

REMOVAL IS TIMELY

This Notice of Removal is timely filed pursuant to 28 U.S.C. § 1446(b) in that it is being

filed within 30 days of the service of the Summons and Complaint by Defendant. The Summons

and Complaint were served on Defendant on February 19, 2020.


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VENUE

Venue is proper in this district because the Suffolk County Superior Court of the

Commonwealth of Massachusetts is located within the federal District of Massachusetts and this

is the “district and division embracing the place where such action is pending.” 28 U.S.C. §

1441(a).

NOTICE TO PLAINTIFF

As required by 28 U.S.C. § 1446(d), Defendant will provide prompt written notice of the

filing of this Notice of Removal to Plaintiff.

NOTICE TO THE MASSACHUSETTS SUPERIOR COURT

As required by 28 U.S.C. § 1446(d), Defendant will promptly file this Notice of Removal

with the Clerk of the Suffolk County Superior Court for the Commonwealth of Massachusetts.

WHEREFORE, pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453, Defendant removes

this case from the Suffolk County Superior Court of the Commonwealth of Massachusetts to the

United States District Court for the District of Massachusetts.

Respectfully submitted, Dated: March 19, 2020 By: _/s/ Brenda R. Sharton

Brenda R. Sharton (BBO No. 556909) David S. Kantrowitz (BBO No. 676231) GOODWIN PROCTER LLP 100 Northern Avenue Boston, Massachusetts 02210 Tel.: 617.570.1000 Fax: 617.523.1231 [email protected] [email protected]

Attorneys for Defendant Macy’s, Inc.


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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on March 19, 2020 via email on all counsel or parties of record listed below and will be sent via first class mail upon request:

David J. Relethford Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC

2 Salem Green, Suite 2 Salem, MA 01970

Email: [email protected]

Michael C. Forrest Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC



Robert E. Mazow Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC



/s/ Brenda R. Sharton Brenda R. Sharton


EXHIBIT A

Case 1:20-cv-10551-PBS Document 1-1 Filed 03/19/20 Page 1 of 43

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, s.s. SUPERIOR COURT DEPARTMENT ROBERT HARTIGAN, on behalf of themselves and all others similarly situated, Plaintiff, vs. MACY’S, INC., Defendant.

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Case No. 1984CV03718-BLS1

DEFENDANT’S NOTICE TO STATE COURT OF REMOVAL OF ACTION TO FEDERAL COURT

TO THE CLERK OF THE SUPERIOR COURT OF THE COMMONWEALTH OF

MASSACHUSETTS, COUNTY OF SUFFOLK, AND PLAINTIFF’S COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on March 19, 2020, Defendant MACY’S, INC. (hereinafter

“Defendant”) filed a Notice of Removal removing the above-captioned action from Massachusetts

Superior Court, County of Suffolk, to the United States District Court for the District of

Massachusetts, Case No. 20-10551.

A true and correct copy of Defendant’s Notice of Removal, including all exhibits thereto,

is attached as Exhibit “1” and incorporated herein by reference.


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Respectfully submitted, Dated: March 19, 2020 By: /s/ Brenda R. Sharton ________________

Brenda R. Sharton (BBO No. 556909) David S. Kantrowitz (BBO No. 676231) GOODWIN PROCTER LLP 100 Northern Avenue Boston, Massachusetts 02210 Tel.: 617.570.1000 Fax: 617.523.1231 [email protected] [email protected]

Attorneys for Defendant Macy’s, Inc.


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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on March 19, 2020 via email on all counsel or parties of record listed below and will be sent via first class mail upon request:

David J. Relethford Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC



Michael C. Forrest Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC



Robert E. Mazow Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi PC



/s/ Brenda R. Sharton Brenda R. Sharton


EXHIBIT 1

(Ommitted)


JS 44 (Rev. 06/17) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

1 U.S. Government 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation

Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations

153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts

362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters Medical Malpractice Leave Act 895 Freedom of Information

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party Act/Review or Appeal of240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision245 Tort Product Liability Accommodations 530 General 950 Constitutionality of290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes

Employment Other: 462 Naturalization Application446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions448 Education 555 Prison Condition

560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)1 Original

Proceeding2 Removed from

State Court 3 Remanded from

Appellate Court4 Reinstated or

Reopened 5 Transferred from

Another District(specify)

6 MultidistrictLitigation -Transfer

8 Multidistrict Litigation - Direct File

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Robert Hartigan

Suffolk County

Michael Forrest, Robert Mazow, David RelethfordForrest, LaMothe, Mazo, Mccullough, Yasi & Yasi2 Salem Street Green, Suite 2, Salem, MA 01970

Macy's Inc.

Brenda R. Sharton and David S. KantrowitzGoodwin Procter LLP100 Northern Avenue, Boston, MA 02210

28 U.S.C. § 1332(d); 28 U.S.C. § 1453

Plaintiff alleges damages for the costs the putative class will incur for credit monitoring to avoid identity theft, etc.

03/19/2020 /s/ Brenda R. Sharton


UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS

1. Title of case (name of first party on each side only)

2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See localrule 40.1(a)(1)).

I. 4 0, 41 , 4 , 535, 830*, 8 , 893, R.23, REGARDLESS OF NATURE OF SUIT.

II. 110, 130, 190, 196, 370, 37 , 440, 442, 443, 445, 446, 448, 820*, 840*, 8 .

III.120, 150, 151, 152, 153, 195, 210, 220, 24 , 310, 315, 330, 340, 345, 350, 355, 360, 36 ,

367, 368, 37 , 38 , 422, 423, 4 0, 460, 462, 463, 465, 510, 530, 540, 550, 555, 625,690, 7 , 791, 861-865, 8 0, 8 , 950.

*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.

3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in thisdistrict please indicate the title and number of the first filed case in this court.

4. Has a prior action between the same parties and based on the same claim ever been filed in this court?

YES NO

5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC§2403)

YES NOIf so, is the U.S.A. or an officer, agent or employee of the U.S. a party?

YES NO

6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?

YES NO

7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth ofMassachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).

YES NO

A. If yes, in which division do all of the non-governmental parties reside?

Eastern Division Central Division Western Division

B. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies, residing in Massachusetts reside?

Eastern Division Central Division Western Division

8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,submit a separate sheet identifying the motions)

YES NO

(PLEASE TYPE OR PRINT)ATTORNEY'S NAME

ADDRESS

TELEPHONE NO.

(CategoryForm -201 .wpd )

Robert Hartigan v. Macy's Inc.

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None.

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Brenda R. Sharton

Goodwin Procter LLP, 100 Northern Avenue, Boston, MA 02210

617-570-1000


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