On December 11, 2014, the U.S. District Court for the Northern District of Illinois dismissed a proposed class action over a June 2014 data breach at P.F. Chang’s China Bistro, finding that no actual harm had been alleged. The court tossed a pair of consolidated complaints claiming that the restaurant chain failed to properly safeguard customer credit card data that was compromised during the breach.

The plaintiffs alleged several types of damages from the security breach, including overpayment for services, fraudulent charges on their accounts, and the increased risk of identity theft. In their opposition to a motion to dismiss, the plaintiffs argued, inter alia, that they had been harmed because they had overpaid for the products and services purchased from the company, which they claimed included the cost of sufficient data security that they did not receive. The court rejected those arguments in concluding that the plaintiffs had failed to allege any out-of-pocket losses or actual damages that would have allowed them to proceed with their claims.

According to the court, the plaintiffs had “not pled that P.F. Chang’s charged a higher price for goods whether a customer pays with credit, and therefore, that additional value is expected in the use of a credit card.” The court also stated that “speculation of future harm does not constitute actual injury. While plaintiffs allege that security breaches can lead to identity theft, they do not allege that it has occurred in this case.”

The plaintiffs filed an immediate notice of appeal to the Seventh Circuit.

The cases are Lewert v. P.F. Chang’s China Bistro Inc., No. 1:14-cv-04787, and Kosner v. P.F. Chang’s China Bistro Inc., No. 1:14-cv-04923, both in the U.S. District Court for the Northern District of Illinois.

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Photo of H. Scott Kelly H. Scott Kelly

Scott is a consumer data and privacy specialist. He regularly defends against data breach lawsuits and class action claims asserted under federal and state consumer-protection statutes (FCRA, FDCPA, TCPA, UCC, UDAAP, RICO). Scott represents companies on an array of data privacy issues, including

Scott is a consumer data and privacy specialist. He regularly defends against data breach lawsuits and class action claims asserted under federal and state consumer-protection statutes (FCRA, FDCPA, TCPA, UCC, UDAAP, RICO). Scott represents companies on an array of data privacy issues, including background screening, consumer reporting, data breaches, ransomware attacks, and related regulatory investigations by the Consumer Financial Protection Bureau (CFPB), Federal Trade Commission (FTC), and state attorneys general.

Photo of Michael E. Lacy Michael E. Lacy

Michael heads the firm’s Consumer Financial Services practice, and handles class actions and high-stakes consumer litigation on a nationwide basis. He represents banks, mortgage servicers, debt buyers and collectors, and lenders against claims under consumer protection statutes, including the FCRA, TCPA, RESPA, RICO,

Michael heads the firm’s Consumer Financial Services practice, and handles class actions and high-stakes consumer litigation on a nationwide basis. He represents banks, mortgage servicers, debt buyers and collectors, and lenders against claims under consumer protection statutes, including the FCRA, TCPA, RESPA, RICO, and state UDAP laws. He has significant experience litigating and trying corporate governance disputes, including shareholder derivative claims, corporate dissolution cases, and corporate divorce matters. Michael also represents public utility companies in litigation and regulatory matters, including condemnation and land use cases.