P.F. Chang’s Customers Fight to Keep Data Breach Class Action Alive

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The plaintiffs in two data breach class action lawsuits against P.F. Chang’s China Bistro are fighting to keep their consolidated case alive.

Plaintiffs John Lewert and Lucas Kosner are the lead plaintiffs in two P.F. Chang’s data breach class action lawsuits currently pending in Illinois federal court.

The class action lawsuits were filed after P.F. Chang’s disclosed a data breach on June 12, 2014 which allegedly compromised 7 million customers’ credit and debit card information.

Lewert initially filed his data breach class action lawsuit in June 2014, alleging P.F. Chang’s failed to take adequate measures to safeguard customers’ credit and debit card data. His P.F. Chang’s class action lawsuit was dismissed in December 2014 after a judge found Lewert lacked standing.

However, in April 2016, the 7th U.S. Circuit Court of Appeals revived the P.F. Chang’s class action lawsuit, determining that it was plausible for a plaintiff to infer a substantial risk of harm due to a data breach because a primary goal of data thieves is to make fraudulent charges or perpetrate identity theft.

On Wednesday, 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.

“It is now two-and-a-half years since this case was filed and Plaintiffs are seeking to take discovery to, finally, move this case forward,” they state in their reply brief. They have asked the court to grant their motion to compel discovery.

The restaurant chain reportedly sought to dismiss the data breach class action lawsuit because the plaintiffs failed to state a claim. P.F. Chang’s argued that the plaintiffs’ breach of implied contract claims must fail because the plaintiffs had an express contract with the restaurant to receive food in exchange for payment.

Lewert and Kosner claim P.F. Chang’s arguments are meritless and do not warrant dismissal of the data breach class action lawsuit.

“There is no express contract here because the parties never entered into a written or oral agreement,” the plaintiffs argue. “By accepting the class members’ non-public debit and credit card information (including their magnetic strip data and PINs), defendant undertook the obligation to reasonably safeguard that information. Its failure to do so gives rise to a breach of implied contract claim.”

Lewert and Kosner also accuse P.F. Chang’s of attempting to relitigate the issue of whether they suffered “cognizable economic losses.” They argue that this is the very same issue that was addressed by the 7th Circuit and which was resolved in the plaintiffs’ favor.

“In fact, Plaintiffs have suffered quantifiable economic damages in the form of: (a) overpayment for their purchases at Defendant’s restaurants; (b) unauthorized charges, loss of rewards points, and costs of obtaining new credit and debit cards; and (c) costs incurred to mitigate the substantial risk of identity theft, including the purchase of credit monitoring services,” the plaintiffs state.

The plaintiffs are represented by Joseph J. Siprut of Siprut PC, Katrina Carroll and Kyle A. Shamberg of Lite DePalma Greenberg LLC, and Richard R. Gordon of Gordon Law Offices Ltd.

The PF Chang’s Data Breach Class Action Lawsuits are John Lewert v. P.F. Chang’s China Bistro Inc., Case No. 1:14-cv-04787, and Lucas Kosner v. P.F. Chang’s China Bistro Inc., Case No. 1:14-cv-04923, in the U.S. District Court for the Northern District of Illinois.