The underlying litigation consolidates claims arising from the MOVEit customer data security breach. An earlier order, MDL Order No. 32, had dismissed cases whose original complaints were filed before August 15, 2023, on the ground that those complaints could not allege the increased risk of future harm necessary to establish Article III standing — because, as the court had previously found, allegations of actual misuse made before that date are not fairly traceable to the MOVEit breach.
The dispute resolved in MDL Order No. 33 concerned fifteen so-called "yellow" cases: each had an original complaint filed before August 15, 2023, but an operative amended complaint filed on or after that date. Defendants argued that Order No. 32 swept those cases out as well, and that the amended pleadings warranted dismissal anyway because they largely repeated facts the court had already found inadequate for standing purposes. Plaintiffs disagreed.
Judge Allison D. Burroughs, writing for the District of Massachusetts, held that Order No. 32 did not address — much less dismiss — the yellow cases. The order's reasoning, she explained, was expressly tied to complaints filed before August 15, 2023, and by its own terms does not pertain to complaints filed on or after that date.
On the defendants' fallback argument, the court held that the First Circuit has established that Rule 15(d) "is available to cure most kinds of defects in subject matter jurisdiction," including standing defects, citing U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1 (1st Cir. 2015). The court rejected defendants' effort to confine Gadbois to situations involving newly arising facts, reasoning that where the standing defect was based solely on the date of filing, it is unsurprising — rather than per se problematic — that supplemental pleadings curing that defect would repeat similar facts and would not allege substantially different damages theories.
The court also held that whether any individual amended pleading is adequate for standing purposes requires an individualized determination supported by proper Rule 12(b)(1) briefing, citing the First Circuit's instruction that "[t]he standing inquiry is both plaintiff-specific and claim-specific." Defendants retain the right to challenge jurisdiction over any of the yellow cases pursuant to Rule 12(b)(1), but must do so on an individualized basis and consistent with the court's reading of Rule 15(d).
The fifteen yellow cases remain consolidated in the MDL.