Alp Baysal v. American Family Life Insurance Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 25, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1510 Cir. Ct. No. 2023CV2942

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

ALP BAYSAL, SANDRA ITALIANO, THOMAS MAXIM,
AND ROBERT PARK,

PLAINTIFFS-APPELLANTS,

V.

AMERICAN FAMILY LIFE INSURANCE COMPANY,
MIDVALE INDEMNITY COMPANY, AND
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, S.I.,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County: NIA E.
TRAMMELL, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP1510

¶1 PER CURIAM. Alp Baysal, Sandra Italiano, Thomas Maxim, and
Robert Park (collectively, the appellants) brought a class action against American
Family Life Insurance Company, Midvale Indemnity Company, and American
Family Mutual Insurance Company, S.I. (collectively, the insurers), alleging that
the insurers disclosed the appellants’ driver’s license numbers to unauthorized
individuals. The circuit court dismissed the complaint on the basis that the
appellants lack standing, and the appellants challenge the dismissal on appeal. We
affirm.

BACKGROUND

¶2 The following facts are derived from the allegations in the
complaint.

¶3 The insurers provided instant rate quotes for insurance policies as
part of online application processes that shared the following feature. Once basic
identifying information—such as an individual’s name, date of birth and
address—was entered into the application, the insurers’ internet platforms would
automatically insert into the application that individual’s driver’s license number,
which became visible on the platform.

¶4 In 2021, the insurers were notified of activity suggesting that
unauthorized individuals, using an automated process, or “bot,” had used the
insurers’ instant quote feature to obtain the driver’s license numbers of numerous
individuals, including the appellants. The insurers notified the appellants that their
driver’s license numbers may have been obtained by unauthorized parties.

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No. 2024AP1510

¶5 The appellants, who are not Wisconsin residents,1 brought a class
action against the insurers, alleging violations of the Drivers’ Privacy Protection
Act, 18 U.S.C. § 2724; negligence and negligence per se; violations of the
California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq.; and
violations of California’s Unfair Competition Law, Cal. Bus. & Prof. Code
§ 17200, et seq., seeking declaratory and injunctive relief.2 Relevant here, the
appellants alleged that—as a result of the disclosure of the appellants’ driver’s
license numbers through third-party misuse of the insurers’ internet platforms—
attempts to open various financial accounts were made in Maxim’s and Park’s
names, that an attempt to make an unauthorized purchase was made in Maxim’s

1
Baysal and Maxim reside in New York, Italiano resides in North Carolina, and Park
resides in California.
2
Before filing this action, Baysal, Italiano, and Maxim originally filed suit against
Midvale Indemnity Company (“Midvale”) and American Family Mutual Insurance Company, S.I.
(“AmFam Mutual”) in federal court, alleging claims similar to the claims in this action based on
the disclosure of their driver’s license numbers to unauthorized individuals. See Baysal v.
Midvale Indem. Co., No. 21CV394, 2022 WL 1155295 (W.D. Wis. Apr. 19, 2022). The district
court dismissed that action because it concluded that Baysal, Italiano, and Maxim did not have
standing, id., and the Seventh Circuit Court of Appeals affirmed on the same basis, see Baysal v.
Midvale Indemnity Co., 78 F.4th 976 (7th Cir. 2023), reh’g denied, No. 22-1892, 2023 WL
6144390 (7th Cir. Sept. 20, 2023).

In a separate action filed in federal court, Park sued Midvale and AmFam Mutual, also
based on the unauthorized disclosure of his driver’s license number. See Park v. American Fam.
Life Ins. Co., 608 F. Supp. 3d 755 (W.D. Wis. 2022). After the Seventh Circuit’s decision in
Baysal, 78 F.4th 976, Midvale and AmFam Mutual moved to dismiss Park’s action, and Park
voluntarily dismissed it. Although this information regarding what occurred in Park’s federal
action against Midvale and AmFam Mutual is not in the record of this appeal, we take judicial
notice of records from PACER in the federal action (PACER is an acronym for Public Access to
Court Electronic Records, which is a service of the federal judiciary). See WIS. STAT.
§ 902.01(2)(a), (3) (stating that a court may take judicial notice of facts “capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned”); see
also Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d
522 (stating that we may take judicial notice of records from Wisconsin’s Consolidated Court
Automation Programs).

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No. 2024AP1510

name, and that fraudulent applications for unemployment insurance benefits in
New York were made in Maxim’s and Baysal’s names.

¶6 The insurers moved to dismiss the complaint, arguing that the
appellants lack standing. The circuit court granted the insurers’ motion, and this
appeal follows.3

DISCUSSION

¶7 “‘Whether a party has standing is a question of law that we review
independently.’” Reetz v. Advocate Aurora Health, Inc., 2022 WI App 59, ¶7,
405 Wis. 2d 298, 983 N.W.2d 669 (quoting Friends of Black River Forest v.
Kohler Co., 2022 WI 52, ¶10, 402 Wis. 2d 587, 977 N.W.2d 342). When
reviewing a motion to dismiss for lack of standing, we liberally construe the
pleadings, and we accept as true “‘[a]ll facts pleaded and all reasonable inferences
from those facts.’” Id., ¶6 (alteration in original) (quoting Scott v. Savers Prop. &
Cas. Ins. Co., 2003 WI 60, ¶5, 262 Wis. 2d 127, 663 N.W.2d 715).

3
The appellants frequently cite to the appendix that was submitted with their appellants’
brief without including parallel citations to the appellate record that was compiled by the clerk of
the circuit court. We remind counsel that the appendix is not the record and that the rules of
appellate procedure require parties to include appropriate citations to the record. See United
Rentals, Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322;
WIS. STAT. RULE 809.19(1)(d)-(e). Failure to follow this rule unnecessarily adds to the work of
this high-volume court.

Separately, the insurers’ brief does not comply with WIS. STAT. RULE 809.19(8)(bm),
which addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that,
when paginating briefs, parties should use “Arabic numerals with sequential numbering starting
at ‘1’ on the cover”). As our supreme court explained when it amended the rule, the pagination
requirement ensures that the numbers on each page of the brief “will match … the page header
applied by the eFiling system, avoiding the confusion of having two different page numbers” on
every page of a brief. S. CT. ORDER 20-07 cmt. at x1.

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No. 2024AP1510

¶8 “[T]he standing of a party whose interest is challenged is determined
by: (1) personal interest in the controversy; (2) injury or adverse effect; and
(3) judicial policy that ‘calls for protecting the interest of the party whose standing
has been challenged.’” Id., ¶7 (quoting Foley-Ciccantelli v. Bishop’s Grove
Condo. Ass’n, Inc., 2011 WI 36, ¶5, 333 Wis. 2d 402, 797 N.W.2d 789). In
applying these standards, we “consider[] federal case law as persuasive authority
… because Wisconsin’s standing analysis is conceptually similar to the federal
analysis.” Id., ¶8 n.1; see also Friends of Black River Forest, 402 Wis. 2d 587,
¶17 (“Wisconsin has largely embraced federal standing requirements[.]”).

¶9 “To establish standing in a data breach identity theft case, allegations
of ‘time spent dealing with fraud attempts, the threat of future identity theft, and
money spent mitigating that threat … [are] sufficient to establish standing[.]’”
Reetz, 405 Wis. 2d 298, ¶8 (alterations in original) (quoting Fox v. Iowa Health
Sys., 399 F. Supp. 3d 780, 790 (W.D. Wis. 2019)). Relying on this language, the
appellants argue that they have standing based on two different types of alleged
harm.

¶10 The insurers argue to the contrary, relying primarily on Baysal v.
Midvale Indemnity Co., 78 F.4th 976 (7th Cir. 2023), reh’g denied, No. 22-1892,
2023 WL 6144390 (7th Cir. Sept. 20, 2023), a case addressing similar arguments
from three of the four appellants here. The appellants have failed to file a reply
brief responding to the insurers’ arguments and do not sufficiently rebut the

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No. 2024AP1510

insurers’ arguments in their brief-in-chief.4 Accordingly, the appellants have
conceded these arguments. See Apple Hill Farms Dev., LLP v. Price, 2012 WI
App 69, ¶14, 342 Wis. 2d 162, 816 N.W.2d 914 (treating the failure of an
appellant to file a reply brief as a concession to a respondent’s argument that was
not rebutted by the appellant’s opening brief).

¶11 We now briefly address the two types of alleged harm that the
appellants argue confer standing and summarize the insurers’ unrefuted arguments
to the contrary.

¶12 First, the appellants argue that they have standing because they
allege that fraudulent applications for unemployment benefits were filed in
Baysal’s and Maxim’s names, which the appellants allege required Baysal and
Maxim to spend time and money to deal with and to mitigate the attempted fraud,
and which posed the risk of future fraud. In response, the insurers point out that,

4
In their brief-in-chief, the appellants argue that this court should not follow the Seventh
Circuit’s decision in Baysal. Specifically, the appellants contend that Wisconsin’s requirements
for standing, as articulated in Reetz, are meaningfully different from the federal requirements.
But the insurers provide a supported argument that Reetz does not purport to offer a lower hurdle
for standing in Wisconsin than is established in federal case law, and the appellants do not
adequately refute that point. Indeed, as previously noted, in Reetz we stated that we “consider[]
federal case law as persuasive authority regarding standing questions because Wisconsin’s
standing analysis is conceptually similar to the federal analysis.” Reetz, 405 Wis. 2d 298, ¶8 n.1.
And consistent with this, we observe that the particular language from Reetz on which the
appellants rely comes from federal case law. See id., ¶8 (“To establish standing in a data breach
identity theft case, allegations of ‘time spent dealing with fraud attempts, the threat of future
identity theft, and money spent mitigating that threat ... [are] sufficient to establish standing[.]’”
(alterations in original) (quoting Fox v. Iowa Health Sys., 399 F. Supp. 3d 780, 790 (W.D. Wis.
2019)).

The appellants further argue that Baysal should not be followed because it conflicts with
some federal district court decisions. However, as the insurers argue and the appellants do not
refute, other federal district court decisions are consistent with Baysal, and in any event, the only
federal appellate courts to address the issue—Baysal and Greenstein v. Noblr Reciprocal Exch.,
No. 22-17023, 2024 WL 3886977 (9th Cir. Aug. 21, 2024)—reject the appellants’ position.

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No. 2024AP1510

although the appellants allege that fraudulent applications for unemployment
benefits were filed in Baysal’s and Maxim’s names in New York, New York law
requires an applicant to provide a social security number to apply for these
benefits. See N.Y. Comp. Codes R. & Regs. Tit. 12, § 473.1(f) (“Each claimant
shall furnish his/her Social Security account number as a condition of eligibility
for benefits.”). Accordingly, the insurers argue, because the appellants allege only
that their driver’s license numbers were disclosed and do not allege facts
explaining how a driver’s license number alone could facilitate the filing of a
fraudulent claim for unemployment benefits in New York, the appellants fail to
connect the disclosure of their driver’s license numbers to the fraudulent
applications. See Baysal, 78 F.4th at 978 (concluding that the alleged fraudulent
applications for unemployment benefits did not confer standing in federal court
because the appellants did not “contend that knowledge of a driver’s-license
number could facilitate such a bogus claim, or indeed that New York State asked
for a claimant’s driving information”); see also Greenstein v. Noblr Reciprocal
Exch., No. 22-17023, 2024 WL 3886977, at *3 (9th Cir. Aug. 21, 2024) (relying
on the reasoning that we rely on here under substantively identical facts).

¶13 The insurers also argue that, because the appellants do not allege that
the fraudulent applications for unemployment benefits made in Baysal’s and
Maxim’s names were successful, they do not allege any injury resulting from the
fraudulent applications. As the Seventh Circuit observed:

A phony [unemployment insurance] claim could cause
injury—having a fraud attributed to one’s name could
affect a credit rating or make it harder to obtain
unemployment compensation following the real loss of a
job. Plaintiffs do not contend, however, that either of these
things happened to them.

….

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No. 2024AP1510

… New York State may have suffered a concrete
injury when it had to devote resources to finding and
denying false claims …, but New York’s loss does not
supply a footing for plaintiffs’ standing.

Baysal, 78 F.4th at 978.

¶14 Second, the appellants argue that fraudulent financial activity in
Maxim’s and Park’s names is sufficient to establish standing. Specifically, the
complaint alleges that a brokerage account was opened, and an unauthorized
purchase made, in Maxim’s name, and that unsuccessful applications were made
to open a bank account and credit card in Park’s name. The insurers respond that
these allegations do not suffice to establish standing because the complaint does
not allege that driver’s license numbers were required for the opening of any of
these financial accounts or for the unauthorized purchase. As the Seventh Circuit
noted, “Social Security numbers can be used to open brokerage accounts, but
drivers’-license numbers cannot. Likewise with credit cards[.]” Id. at 977.

¶15 The appellants argue in their brief-in-chief that their allegations
connect the disclosure of their driver’s license numbers to the fraudulent financial
activity because they allege that hackers cross-referenced the data from the
breaches and combined it with data from other sources to create so-called “fullz
packages,” which the appellants describe as “complete identity profile[s] or set[s]
of information on an[] entity or individual.” The insurers make two points that
defeat this argument. First, the insurers note that the appellants provide no record
citation for their assertion that they in fact allege that hackers combined the
appellants’ driver’s license numbers with data from other sources to create “fullz

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No. 2024AP1510

packages,” and we do not discern this allegation anywhere in the complaint.5 See
Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572,
786 N.W.2d 177 (explaining that issues not raised in the circuit court are forfeited,
and supporting the proposition that appellate courts generally do not address
forfeited issues); see also Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158
(Ct. App. 1990) (we need not address arguments that are not supported by
citations to the record). Second, the insurers note that if a driver’s license number
is not required for any of the alleged fraudulent financial activity, then the addition
of an individual’s driver’s license number to a fullz package cannot be said to have
resulted in any of the alleged harms.

¶16 In sum, we reject the appellants’ arguments that they have standing
based on their concession that the insurers’ arguments to the contrary, which are
supported by federal case law, are correct.6

CONCLUSION

¶17 For the reasons stated above, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

5
Instead, in their complaint, the appellants only generally allege that hackers often
combine data from multiple sources to create fullz packages.
6
As stated, the appellants argue that they have standing based on allegations specific to
Baysal, Maxim, and Park. In their appellants’ brief, the appellants make no argument regarding
standing that is specific to Italiano. And in their response brief, the insurers argue that the
complaint fails to plead any harm suffered by Italiano that is sufficient to confer standing, a
contention that the appellants do not refute.

9