The two-judge panel opinion thus agreed that the claims were subject to dismissal, albeit for failure to state a claim under rule 12(b)(6). One justice concurred in the result, but dissented with the reasoning; that justice agreed with the district court that dismissal should have been under Rule 12(b)(1) – obviating any need to address the merits of the claims. This case illustrates that even if privacy and data breach class plaintiffs clear the standing hurdle, they may still be vulnerable to 12(b)(6) motions.
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