On Tuesday, P.F. Chang’s Chinese Bistro, Inc. (P.F. Chang’s) gave the public access to the brief it recently filed with the 7th Circuit Court of Appeals asking the Court to affirm the lower Court’s dismissal of a proposed class action against it for the massive data breach it experienced last year.

P.F. Chang’s argued that the dismissal should be upheld as the plaintiffs did not suffer any damages as their debit card numbers were not stolen and they never became victims of fraud. The lower Court declared that the plaintiffs hadn’t alleged actual harm and found that they did not have standing to sue the restaurant chain. In its appellate brief, P.F. Chang’s argued that the plaintiffs hadn’t even eaten at a P.F. Chang’s restaurant and therefore, the plaintiffs suffered no actual or impending damage. Further, the plaintiffs did not become victims of identity theft because their card information was not stolen and no fraudulent activity occurred on their cards.

It is anticipated that the 7th Circuit will follow well-established case law that holds that if the plaintiffs cannot establish actual harm, they have no Article III standing to sue the defendants for a data breach. However, we have recently seen this argument questioned by other Courts, so this decision will  be an important precedent going forward in light of the recent massive data breaches and onslaught of class action litigation within days of the breaches.