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IN RE TJX COMPANIES RETAIL SEC. BREACH LITIGATION

Nos. 07-2828, 08-1075, 08-1076.

564 F.3d 489 (2009)

In re TJX COMPANIES RETAIL SECURITY BREACH LITIGATION. AmeriFirst Bank and Selco Community Credit Union, Plaintiffs, Appellees/Cross-Appellants, v. TJX Companies, Inc., Fifth Third Bank and Fifth Third Bancorp, Defendants, Appellants/Cross-Appellees.

United States Court of Appeals, First Circuit.

Decided March 30, 2009.

As Amended on Rehearing in Part May 5, 2009.

Attorney(s) appearing for the Case

Douglas H. Meal with whom Richard D. Batchelder, Jr. and Ropes & Gray LLP were on brief for TJX Companies, Inc.

W. Breck Weigel with whom Robert N. Webner, Vorys, Sater, Seymour and Pease LLP, James R. Carroll, Nicholas I. Leitzes and Skadden, Arps, Slate, Meagher & Flom LLP were on brief for Fifth Third Bank and Fifth Third Bancorp.

Joe R. Whatley, Jr. with whom Patrick J. Sheehan, Whatley Drake & Kallas, LLC, Archie C. Lamb, Jr., F. Inge Johnstone and The Lamb Firm, LLC were on brief for AmeriFirst Bank and SELCO Community Credit Union.

Before BOUDIN, LIPEZ and HOWARD, Circuit Judges.

BOUDIN, Circuit Judge.

Before us are cross-appeals stemming from a well known incident: the theft from TJX computers of customer credit and debit card information and the subsequent fraudulent use of the information. See generally In re TJX Cos. Retail Sec. Breach Litig., 493 F.Supp.2d 1382 (D.Mass.2007); McMorris v. TJX, 493 F.Supp.2d 158 (D.Mass.2007). Law suits ensued...

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