In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 14‐3122

HILARY REMIJAS, on behalf of herself and all others similarly

situated, et al.,

Plaintiffs‐Appellants,

v.

NEIMAN MARCUS GROUP, LLC,

Defendant‐Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 C 1735 — James B. Zagel, Judge.

____________________

ARGUED JANUARY 23, 2015 — DECIDED JULY 20, 2015

____________________

Before WOOD, Chief Judge, and KANNE and TINDER, Circuit

Judges.

WOOD, Chief Judge. Sometime in 2013, hackers attacked

Neiman Marcus, a luxury department store, and stole the

credit card numbers of its customers. In December 2013, the

company learned that some of its customers had found

fraudulent charges on their cards. On January 10, 2014, it

announced to the public that the cyberattack had occurred
2 No. 14‐3122

and that between July 16, 2013, and October 30, 2013, ap‐

proximately 350,000 cards had been exposed to the hackers’

malware. In the wake of those disclosures, several customers

brought this action under the Class Action Fairness Act, 28

U.S.C. § 1332(d), seeking various forms of relief. The district

court stopped the suit in its tracks, however, ruling that both

the individual plaintiffs and the class lacked standing under

Article III of the Constitution. This resulted in a dismissal of

the complaint without prejudice. See Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 102 (1998) (standing to sue is a

threshold jurisdictional question); Hernandez v. Conriv Realty

Assocs., 182 F.3d 121, 122 (2d Cir. 1999) (“[W]here federal

subject matter jurisdiction does not exist, federal courts do

not have the power to dismiss with prejudice ... .”). We con‐

clude that the district court erred. The plaintiffs satisfy Arti‐

cle III’s requirements based on at least some of the injuries

they have identified. We thus reverse and remand for fur‐

ther proceedings.  

I

In mid‐December 2013, Neiman Marcus learned that

fraudulent charges had shown up on the credit cards of

some of its customers. Keeping this information confidential

at first (according to plaintiffs, so that the breach would not

disrupt the lucrative holiday shopping season), it promptly

investigated the reports. It discovered potential malware in

its computer systems on January 1, 2014. Nine days later, it

publicly disclosed the data breach and sent individual notifi‐

cations to the customers who had incurred fraudulent

charges. The company also posted updates on its website.

Those messages confirmed several aspects of the attack:

some card numbers had been exposed to the malware, but
No. 14‐3122 3

other sensitive information such as social security numbers

and birth dates had not been compromised; the malware at‐

tempted to collect card data between July 16, 2013, and Oc‐

tober 30, 2013; 350,000 cards were potentially exposed; and

9,200 of those 350,000 cards were known to have been used

fraudulently. Notably, other companies had also suffered

cyberattacks during that holiday season.  

At that point, Neiman Marcus notified all customers who

had shopped at its stores between January 2013 and January

2014 and for whom the company had physical or email ad‐

dresses, offering them one year of free credit monitoring and

identity‐theft protection. On February 4, 2014, Michael King‐

ston, the Senior Vice President and Chief Information Officer

for the Neiman Marcus Group, testified before the United

States Senate Judiciary Committee. He represented that “the

customer information that was potentially exposed to the

malware was payment card account information” and that

“there is no indication that social security numbers or other

personal information were exposed in any way.”  

These disclosures prompted the filing of a number of

class‐action complaints. They were consolidated in a First

Amended Complaint filed on June 2, 2014, by Hilary Remi‐

jas, Melissa Frank, Debbie Farnoush, and Joanne Kao. They

sought to represent themselves and the approximately

350,000 other customers whose data may have been hacked.

The complaint relies on a number of theories for relief: neg‐

ligence, breach of implied contract, unjust enrichment, unfair

and deceptive business practices, invasion of privacy, and

violation of multiple state data breach laws. It raises claims

that exceed $5,000,000, and minimal diversity of citizenship

exists, because Remijas is a citizen of Illinois, Frank is a citi‐
4 No. 14‐3122

zen of New York, and Farnoush and Kao are citizens of Cali‐

fornia, while the Neiman Marcus Group LLC, once owner‐

ship is traced through several intermediary LLCs, is owned

by NM Mariposa Intermediate Holdings Inc., a Delaware

corporation with its principal place of business in Texas. The

district court’s jurisdiction (apart from the Article III issue to

which we will turn) was therefore proper under 28 U.S.C.

§ 1332(d)(2).  

Remijas alleged that she made purchases using a Neiman

Marcus credit card at the department store in Oak Brook, Il‐

linois, in August and December 2013. Frank alleged that she

and her husband used a joint debit card account to make

purchases at a Neiman Marcus store on Long Island, New

York, in December 2013; that on January 9, 2014, fraudulent

charges appeared on her debit card account; that, several

weeks later, she was the target of a scam through her cell

phone; and that her husband received a notice letter from

Neiman Marcus about the breach. Farnoush alleged that she

also incurred fraudulent charges on her credit card after she

used it at Neiman Marcus in 2013. Finally, Kao made pur‐

chases on ten separate occasions at a Neiman Marcus store

in San Francisco in 2013 and received notifications in Janu‐

ary 2014 from her bank as well as Neiman Marcus that her

debit card had been compromised.  

Citing Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), Neiman Marcus moved to dismiss the complaint for

lack of standing and for failure to state a claim. On Septem‐

ber 16, 2014, the district judge granted the motion exclusive‐

ly on standing grounds, and the plaintiffs filed their notice of

appeal nine days later. This created a slight problem with

appellate jurisdiction, because the district judge never set
No. 14‐3122 5

out his judgment in a separate document as required by Rule

58(a). Nonetheless, we have confirmed that there is a final

judgment for purposes of 28 U.S.C. § 1291 and our jurisdic‐

tion is secure. (This step would not be necessary if the dis‐

trict court had taken the simple additional step described in

Rule 58(a); we once again urge the district courts to do so,

for the sake of both the parties and the appellate court.)

Here, the district court clearly evidenced its intent in its

opinion that this was the final decision in the case, and the

clerk recorded the dismissal in the docket. Bankers Trust Co.

v. Mallis, 435 U.S. 381, 387–88 (1978); see also Kaplan v. Shure

Bros., 153 F.3d 413, 417 (7th Cir. 1998). As neither party has

called to our attention anything that would defeat finality

nor do we see anything, we are free to proceed.

II

We review a district court’s dismissal for lack of Article

III standing de novo. Reid L. v. Ill. State Bd. of Educ., 358 F.3d

511, 515 (7th Cir. 2004). Under Rule 12(b)(1), “the district

court must accept as true all material allegations of the com‐

plaint, drawing all reasonable inferences therefrom in the

plaintiff’s favor, unless standing is challenged as a factual

matter.” Id. “The plaintiffs, as the parties invoking federal

jurisdiction, bear the burden of establishing the required el‐

ements of standing.” Id. (citation omitted); see Lujan v. De‐

fenders of Wildlife, 504 U.S. 555, 561 (1992). In order to have

standing, a litigant must “prove that he has suffered a con‐

crete and particularized injury that is fairly traceable to the

challenged conduct, and is likely to be redressed by a favor‐

able judicial decision.” Hollingsworth v. Perry, 133 S. Ct. 2652,

2661 (2013) (citing Lujan, 504 U.S. at 560–61).
6 No. 14‐3122

These plaintiffs must allege that the data breach inflicted

concrete, particularized injury on them; that Neiman Marcus

caused that injury; and that a judicial decision can provide

redress for them. We first address these requirements of Ar‐

ticle III standing, and then briefly comment on Neiman Mar‐

cus’s argument that, alternatively, the complaint should be

dismissed for failure to state a claim.

A

The plaintiffs point to several kinds of injury they have

suffered: 1) lost time and money resolving the fraudulent

charges, 2) lost time and money protecting themselves

against future identity theft, 3) the financial loss of buying

items at Neiman Marcus that they would not have pur‐

chased had they known of the store’s careless approach to

cybersecurity, and 4) lost control over the value of their per‐

sonal information. (We note that these allegations go far be‐

yond the complaint about a website’s publication of inaccu‐

rate information, in violation of the Fair Credit Reporting

Act, that is before the Supreme Court in Spokeo, Inc. v. Robins,

No. 13‐1339, cert. granted 135 S. Ct. 1892 (2015).) The plain‐

tiffs also allege that they have standing based on two immi‐

nent injuries: an increased risk of future fraudulent charges

and greater susceptibility to identity theft. We address the

two alleged imminent injuries first and then the four assert‐

ed actual injuries.

Allegations of future harm can establish Article III stand‐

ing if that harm is “certainly impending,” but “allegations of

possible future injury are not sufficient.” Clapper v. Amnesty

Intʹl USA, 133 S. Ct. 1138, 1147 (2013) (citation omitted).

Here, the complaint alleges that everyone’s personal data

has already been stolen; it alleges that the 9,200 who already
No. 14‐3122 7

have incurred fraudulent charges have experienced harm.

Those victims have suffered the aggravation and loss of val‐

ue of the time needed to set things straight, to reset payment

associations after credit card numbers are changed, and to

pursue relief for unauthorized charges. The complaint also

alleges a concrete risk of harm for the rest. The question is

whether these allegations satisfy Clapper’s requirement that

injury either already have occurred or be “certainly impend‐

ing.”

As for the 9,200 (including Frank and Farnoush), the

plaintiffs concede that they were later reimbursed and that

the evidence does not yet indicate that their identities (as

opposed to the data) have been stolen. But as we already

have noted, there are identifiable costs associated with the

process of sorting things out. Neiman Marcus challenges the

standing of these class members, but we see no merit in that

point. What about the class members who contend that un‐

reimbursed fraudulent charges and identity theft may hap‐

pen in the future, and that these injuries are likely enough

that immediate preventive measures are necessary? Neiman

Marcus contends that this is too speculative to serve as inju‐

ry‐in‐fact. It argues that all of the plaintiffs would be reim‐

bursed for fraudulent charges because (it asserts) that is the

common practice of major credit card companies. The plain‐

tiffs disagree with the latter proposition; they contend that

they, like all consumers subject to fraudulent charges, must

spend time and money replacing cards and monitoring their

credit score, and that full reimbursement is not guaranteed.

(It would not be enough to review one’s credit card state‐

ments carefully every month, because the thieves might—

and often do—acquire new credit cards unbeknownst to the

victim.) This reveals a material factual dispute on such mat‐
8 No. 14‐3122

ters as the class members’ experiences and both the content

of, and the universality of, bank reimbursement policies.  

Clapper does not, as the district court thought, foreclose

any use whatsoever of future injuries to support Article III

standing. In Clapper, the Supreme Court decided that human

rights organizations did not have standing to challenge the

Foreign Intelligence Surveillance Act (FISA) because they

could not show that their communications with suspected

terrorists were intercepted by the government. The plaintiffs

only suspected that such interceptions might have occurred.

This, the Court held, was too speculative to support stand‐

ing. In so ruling, however, it did not jettison the “substantial

risk” standard. To the contrary, it stated that “[o]ur cases do

not uniformly require plaintiffs to demonstrate that it is lit‐

erally certain that the harms they identify will come about.

In some instances, we have found standing based on a ‘sub‐

stantial risk’ that the harm will occur, which may prompt

plaintiffs to reasonably incur costs to mitigate or avoid that

harm.” 133 S. Ct. at 1150 n.5 (2013) (citation omitted).

In a data breach case similar to ours, a district court per‐

suasively applied these principles, including Clapper’s

recognition that a substantial risk will sometimes suffice to

support Article III standing. “Unlike in Clapper, where re‐

spondents’ claim that they would suffer future harm rested

on a chain of events that was both ‘highly attenuated’ and

‘highly speculative,’ the risk that Plaintiffs’ personal data

will be misused by the hackers who breached Adobe’s net‐

work is immediate and very real.” In re Adobe Sys., Inc. Priva‐

cy Litig., No. 13–CV–05226–LHK, 2014 WL 4379916, at *8

(N.D. Cal. Sept. 4, 2014) (citing Clapper, 133 S. Ct. at 1148).

Our case is much the same. The plaintiffs allege that the
No. 14‐3122 9

hackers deliberately targeted Neiman Marcus in order to ob‐

tain their credit‐card information. Whereas in Clapper, “there

was no evidence that any of respondents’ communications

either had been or would be monitored,” in our case there is

“no need to speculate as to whether [the Neiman Marcus

customers’] information has been stolen and what infor‐

mation was taken.” Id. (citing Clapper, 133 S. Ct. at 1148).

Like the Adobe plaintiffs, the Neiman Marcus customers

should not have to wait until hackers commit identity theft

or credit‐card fraud in order to give the class standing, be‐

cause there is an “objectively reasonable likelihood” that

such an injury will occur. Clapper, 133 S. Ct. at 1147.

Requiring the plaintiffs “to wait for the threatened harm

to materialize in order to sue” would create a different prob‐

lem: “the more time that passes between a data breach and

an instance of identity theft, the more latitude a defendant

has to argue that the identity theft is not ‘fairly traceable’ to

the defendant’s data breach.” In re Adobe Sys., 2014 WL

4379916, at *8 n.5. Neiman Marcus has made just that argu‐

ment here. The point is best understood as a challenge to the

causation requirement of standing, to which we turn shortly.  

At this stage in the litigation, it is plausible to infer that

the plaintiffs have shown a substantial risk of harm from the

Neiman Marcus data breach. Why else would hackers break

into a store’s database and steal consumers’ private infor‐

mation? Presumably, the purpose of the hack is, sooner or

later, to make fraudulent charges or assume those consum‐

ers’ identities. The plaintiffs are also careful to say that only

9,200 cards have experienced fraudulent charges so far; the

complaint asserts that fraudulent charges and identity theft

can occur long after a data breach. It cites a Government Ac‐
10 No. 14‐3122

countability Office Report that finds that “stolen data may

be held for up to a year or more before being used to commit

identity theft. Further, once stolen data have been sold or

posted on the Web, fraudulent use of that information may

continue for years.” U.S. GOV’T ACCOUNTABILITY OFFICE,

GAO‐07‐737, REPORT TO CONGRESSIONAL REQUESTERS:

PERSONAL INFORMATION 29 (2007). (This suggests that on re‐

mand the district court may wish to look into length of time

that a victim is truly at risk; the GAO suggests at least one

year, but more data may shed light on this question.) We

recognize that the plaintiffs may eventually not be able to

provide an adequate factual basis for the inference, but they

had no such burden at the pleading stage. Their allegations

of future injury are sufficient to survive a 12(b)(1) motion.

In addition to the alleged future injuries, the plaintiffs as‐

sert that they have already lost time and money protecting

themselves against future identity theft and fraudulent

charges. Mitigation expenses do not qualify as actual injuries

where the harm is not imminent. Clapper, 133 S. Ct. at 1152

(concluding that “costs that they have incurred to avoid [in‐

jury]” are insufficient to confer standing). Plaintiffs “cannot

manufacture standing by incurring costs in anticipation of

non‐imminent harm.” Id. at 1155. “If the law were otherwise,

an enterprising plaintiff would be able to secure a lower

standard for Article III standing simply by making an ex‐

penditure based on a nonparanoid fear.” Id. at 1151.

Once again, however, it is important not to overread

Clapper. Clapper was addressing speculative harm based on

something that may not even have happened to some or all

of the plaintiffs. In our case, Neiman Marcus does not con‐

test the fact that the initial breach took place. An affected
No. 14‐3122 11

customer, having been notified by Neiman Marcus that her

card is at risk, might think it necessary to subscribe to a ser‐

vice that offers monthly credit monitoring. It is telling in this

connection that Neiman Marcus offered one year of credit

monitoring and identity‐theft protection to all customers for

whom it had contact information and who had shopped at

their stores between January 2013 and January 2014. It is un‐

likely that it did so because the risk is so ephemeral that it

can safely be disregarded. These credit‐monitoring services

come at a price that is more than de minimis. For instance,

Experian offers credit monitoring for $4.95 a month for the

first month, and then $19.95 per month thereafter. See

http://www.experian.com/consumer‐products/credit‐monito

ring.html. That easily qualifies as a concrete injury. It is also

worth noting that our analysis is consistent with that in An‐

derson v. Hannaford Bros. Co., where the First Circuit held be‐

fore Clapper that the plaintiffs sufficiently alleged mitigation

expenses—namely, the fees for replacement cards and moni‐

toring expenses—because under Maine law, a plaintiff may

“recover for costs and harms incurred during a reasonable

effort to mitigate, regardless of whether the harm is non‐

physical.” 659 F.3d 151, 162 (1st Cir. 2011).  

For the sake of completeness, we comment briefly on the

other asserted injuries. They are more problematic. We need

not decide whether they would have sufficed for standing

on their own, but we are dubious. The plaintiffs argue, for

example, that they overpaid for the products at Neiman

Marcus because the store failed to invest in an adequate se‐

curity system. In some situations, we have held that financial

injury in the form of an overcharge can support Article III

standing. See In re Aqua Dots Products Liab. Litig., 654 F.3d

748, 751 (7th Cir. 2011) (“The plaintiffs’ loss is financial: they
12 No. 14‐3122

paid more for the toys than they would have, had they

known of the risks the beads posed to children. A financial

injury creates standing.”) (citations omitted). District courts

have applied this approach to comparable situations. See,

e.g., Chicago Faucet Shoppe, Inc. v. Nestle Waters N. Am. Inc.,

No. 12 C 08119, 2014 WL 541644, at *3 (N.D. Ill. Feb. 11, 2014)

(citing Aqua Dots); Muir v. Playtex Products, LLC, 983 F. Supp.

2d 980, 986 (N.D. Ill. 2013) (holding that a claim that con‐

sumer would not have purchased product or not have paid a

premium price for the product is sufficient injury to estab‐

lish standing).  

Importantly, many of those cases involve products liabil‐

ity claims against defective or dangerous products. See, e.g.,

Lipton v. Chattem, Inc. No. 11 C 2952, 2012 WL 1192083, at *3–

4 (N.D. Ill. Apr. 10, 2012). Our case would extend that idea

from a particular product to the operation of the entire store:

plaintiffs allege that they would have shunned Neiman Mar‐

cus had they known that it did not take the necessary pre‐

cautions to secure their personal and financial data. They

appear to be alleging some form of unjust enrichment as

well: Neiman Marcus sold its products at premium prices,

but instead of taking a portion of the proceeds and devoting

it to cybersecurity, the company pocketed too much. This is

a step that we need not, and do not, take in this case. Plain‐

tiffs do not allege any defect in any product they purchased;

they assert instead that patronizing Neiman Marcus inflicted

injury on them. Compare Resnick v. AvMed, Inc., 693 F.3d

1317, 1328 (11th Cir. 2012) (reasoning that the plaintiff had

financial injury from paying higher premiums in light of de‐

fendant’s failure to implement security policies). That allega‐

tion takes nothing away from plaintiffs’ more concrete alle‐
No. 14‐3122 13

gations of injury, but it is not necessary to support their

standing.

The plaintiffs also allege that they have a concrete injury

in the loss of their private information, which they character‐

ize as an intangible commodity. Under this theory, persons

who had unauthorized credit charges would have standing

even if they were automatically reimbursed, their identities

were not stolen, and they could not show that there was a

substantial risk of lack of reimbursement or further use of

their information. This assumes that federal law recognizes

such a property right. Plaintiffs refer us to no authority that

would support such a finding. We thus refrain from sup‐

porting standing on such an abstract injury, particularly

since the complaint does not suggest that the plaintiffs could

sell their personal information for value.

The plaintiffs counter that recently‐enacted state statutes

make this right to personal information concrete enough for

standing. They are correct to the extent they suggest that

“the actual or threatened injury required under Article III

can be satisfied solely by virtue of an invasion of a recog‐

nized state‐law right.” Scanlan v. Eisenberg, 669 F.3d 838, 845

(7th Cir. 2012) (citation omitted). The plaintiffs argue that

Neiman Marcus violated California and Illinois’s Data

Breach Acts by impermissibly delaying the notifications of

the data breach. That may be (we express no opinion on the

point), but even if it is, the violation does not help the plain‐

tiffs. Neither of those statutes provides the basis for finding

an injury for Article III standing. As for California law, a de‐

lay in notification is not a cognizable injury, Price v. Starbucks

Corp., 192 Cal. App. 4th 1136, 1143 (Cal. Ct. App. 2011), and

the Illinois Consumer Fraud Act requires “actual damages.”
14 No. 14‐3122

People ex rel. Madigan v. United Constr. of Am., Inc., 981 N.E.2d

404, 411 (Ill. App. Ct. 2012). None of the other state‐law

claims has been discussed by the parties, and so we too do

not address them.

To sum up, we refrain from deciding whether the over‐

payment for Neiman Marcus products and the right to one’s

personal information might suffice as injuries under Article

III. The injuries associated with resolving fraudulent charges

and protecting oneself against future identity theft do. These

injuries are sufficient to satisfy the first requirement of Arti‐

cle III standing.

B

Injury‐in‐fact is only one of the three requirements for

Article III standing. Plaintiffs must also allege enough in

their complaint to support the other two prerequisites: cau‐

sation and redressability. As the Supreme Court put it in

Clapper, plaintiffs must “show[ ] that the defendant’s actual

action has caused the substantial risk of harm.” 133 S. Ct. at

1150, n.5. Neiman Marcus argues that these plaintiffs cannot

show that their injuries are traceable to the data incursion at

the company rather than to one of several other large‐scale

breaches that took place around the same time. This argu‐

ment is reminiscent of Summers v. Tice, 199 P.2d 1, 5 (Cal.

1948), in which joint liability was properly pleaded when,

during a quail hunt on the open range, the plaintiff was shot,

but he did not know which defendant had shot him. Under

those circumstances, the Supreme Court of California held,

the burden shifted to the defendants to show who was re‐

sponsible. Neiman Marcus apparently rejects such a rule, but

we think that this debate has no bearing on standing to sue;
No. 14‐3122 15

at most, it is a legal theory that Neiman Marcus might later

raise as a defense.

The fact that Target or some other store might have

caused the plaintiffs’ private information to be exposed does

nothing to negate the plaintiffs’ standing to sue. It is certain‐

ly plausible for pleading purposes that their injuries are

“fairly traceable” to the data breach at Neiman Marcus. See

In re Target Corp. Data Sec. Breach Litig., MDL No. 14–2522

(PAM/JJK), 2014 WL 7192478, at *2 (D. Minn. Dec. 18, 2014)

(“Plaintiffs’ allegations plausibly allege that they suffered

injuries that are ‘fairly traceable’ to Targetʹs conduct. This is

sufficient at this stage to plead standing. Should discovery

fail to bear out Plaintiffs’ allegations, Target may move for

summary judgment on the issue.”). If there are multiple

companies that could have exposed the plaintiffs’ private

information to the hackers, then “the common law of torts

has long shifted the burden of proof to defendants to prove

that their negligent actions were not the ‘but‐for’ cause of the

plaintiff’s injury.” Price Waterhouse v. Hopkins, 490 U.S. 228,

263 (1989) (O’Connor, J. concurring) (citing Summers, 199

P.2d at 3–4). It is enough at this stage of the litigation that

Neiman Marcus admitted that 350,000 cards might have

been exposed and that it contacted members of the class to

tell them they were at risk. Those admissions and actions by

the store adequately raise the plaintiffs’ right to relief above

the speculative level. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).

With respect to standing, Neiman Marcus finally argues

that the plaintiffs’ injuries cannot be redressed by a judicial

decision because they already have been reimbursed for the

fraudulent charges. That may be true for the fraudulent
16 No. 14‐3122

charges (the plaintiffs do not allege that any of those charges

went unreimbursed), but it is not true for the mitigation ex‐

penses or the future injuries. Although some credit card

companies offer some customers “zero liability” policies,

under which the customer is not held responsible for any

fraudulent charges, that practice defeats neither injury‐in‐

fact nor redressability. The “zero liability” feature is a busi‐

ness practice, not a federal requirement. Under 15 U.S.C.

§ 1643, a consumer’s liability for the unauthorized use of her

credit card may not exceed $50 if she does not report the loss

before the credit card is used. If she notifies the card issuer

before any use, she is not responsible for any charges she did

not authorize. Debit cards (used by several of the named

plaintiffs) receive less protection than credit cards; the for‐

mer are covered under the Electronic Funds Transfer Act, 15

U.S.C. § 1693 et seq., and the latter under the Truth in Lend‐

ing Act as amended by the Fair Credit Billing Act, 15 U.S.C.

§ 1601 et seq. If a person fails to report to her bank that mon‐

ey has been taken from her debit card account more than 60

days after she receives the statement, there is no limit to her

liability and she could lose all the money in her account. In

any event, as we have noted, reimbursement policies vary.

For the plaintiffs, a favorable judicial decision could redress

any injuries caused by less than full reimbursement of unau‐

thorized charges.  

C

Neiman Marcus attempts to argue in the alternative that

the plaintiffs failed to state a claim upon which relief can be

granted. FED. R. CIV. P. 12(b)(6). Their problem is that the dis‐

trict court did not reach this ground, and that the ground on

which it resolved the case (Article III standing) necessarily
No. 14‐3122 17

resulted in a dismissal without prejudice. A dismissal under

Rule 12(b)(6), in contrast, is a dismissal with prejudice. If

Neiman Marcus had wanted this additional relief, it needed

to file a cross‐appeal. See Jennings v. Stephens, 135 S. Ct. 793,

798 (2015) (“[A]n appellee who does not cross‐appeal may

not attack the decree with a view either to enlarging his own

rights thereunder or of lessening the rights of his adver‐

sary.”) (citation and quotation marks omitted). Since it did

not, the question whether this complaint states a claim on

which relief can be granted is not properly before us.  

We therefore conclude that the plaintiffs have adequately

alleged standing under Article III. The district court’s judg‐

ment is REVERSED and the case is REMANDED for further pro‐

ceedings consistent with this opinion.