P.F. Chang’s Data Breach Class Action Lawsuit Dismissed

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A federal judge dismissed a P.F. Chang’s data breach class action lawsuit, deciding that the plaintiff had failed to describe a cognizable injury for which relief could be granted.

U.S. District Judge John W. Darrah did not deny that there was a breach and subsequent theft of customers’ credit card information in June 2014, nor did he dispute the allegations in the class action lawsuit that the P.F. Chang’s data breach affected up to 7 million customers. However, citing a decision regarding Director of National Intelligence James Clapper that stated that future injury regarding the release of data is not a current injury in fact, he ruled that the plaintiffs have had suffered no injury.

Judge Darrah’s decision focused on the issues of overpayment, fraudulent charges, opportunity cost, identity theft as well as mitigation damages. The judge found it unconvincing that the plaintiffs had been overcharged, because there was no indication P.F. Chang’s charged more for people who paid via credit or debit card compared to those that have paid via cash.

Moreover, the judge found that John Lewert did not actually allege that any fraudulent charges had occurred. Even though there were four separate instances of people trying to use his credit card information fraudulently, the company that handled his financial accounts red flagged them so that there was no issue. In addition, the plaintiffs had not alleged a direct link between the P.F. Chang’s data breach and these instances of potential fraud.

In addition, in regards to both opportunity costs as well as damages related to mitigating the potential issues regarding identity theft, the judge decided that there is no economic injury involved with the hassle of needing to replace a new credit card. Further, he wrote that mitigation expenses do not qualify as actual injuries under Clapper when the threat is not imminent.

Judge Darrah went on to further state that a plaintiff cannot manufacture standing unless they can show that the harm of identity theft is imminent. The judge found that the potential threat of identity theft was eliminated after the customers cancelled the debit card that was included in the P.F. Chang’s data breach.

One of the plaintiffs in the P.F. Chang’s class action lawsuit has already filed an appeal to the 7th U.S. Circuit Court of Appeals.

Lewert is represented by Joseph J. Siprut, Gregg M. Barbakoff and Gregory W. Jones of Siprut PC.

The P.F. Chang’s Data Breach Class Action Lawsuit is John Lewert v. P.F. Chang’s China Bistro Inc., Case No. 1:14-cv-04787, in the U.S. District Court for the Northern District of Illinois.

UPDATE: On Apr. 14, 2016, the Seventh Circuit Court revived a previously-dismissed proposed class action lawsuit against P.F. Chang’s China Bistro Inc. that was filed over the restaurant’s data breach.

UPDATE 2: On Jan. 25, 2017, Lewert and Kosner asked the court to deny P.F. Chang’s motion to dismiss the data breach class action lawsuit. The plaintiffs allege P.F. Chang’s failed to respond to its requests for discovery.