JOHN LEWERT, on behalf of himself and all others similarly situated, et al., Plaintiffs-Appellants,
P.F. CHANG'S CHINA BISTRO, INC., Defendant-Appellee
January 13, 2016.
from the United States District Court for the Northern
District of Illinois, Eastern Division. Nos. 14 C 4787, 14 C
4923 -- John W. Darrah, Judge.
JOHN LEWERT, individually and on behalf of all others
similarly situated, LUCAS KOSNER, individually and on behalf
of all others similarly situated, Plaintiffs - Appellants:
Joseph Siprut, Attorney, SIPRUT PC, Chicago, IL.
P.F. CHANG'S CHINA BISTRO, INC., a Delaware corporation,
Defendant - Appellee: Jon P. Kardassakis, Attorney, LEWIS
BRISBOIS BISGAARD & SMITH LLP, Los Angeles, CA; Thomas
Alexander Lidbury, Attorney, LEWIS BRISBOIS BISGAARD & SMITH
LLP, Chicago, IL.
WOOD, Chief Judge, and BAUER and HAMILTON, Cir-cuit Judges.
two months after they dined at P.F. Chang's China Bistro,
in Northbrook, Illinois, John Lew-ert and Lucas Kosner
received the unwelcome news that the restaurant's
computer system had been hacked and debit-and credit--card
data had been stolen. Lewert and Kosner brought separate
suits, which were later consolidated, seek-ing damages
resulting from the theft on behalf of themselves and a class.
Concluding that they had not suffered the requi-site personal
injury, the district court dismissed for lack of standing.
Fed.R.Civ.P. 12(b)(1). In light of Remijas v. Neiman
Marcus Grp., LLC, 794 F.3d 688 (7th Cir. 2015), we
reverse and remand for further proceedings.
Chang's operates a chain of restaurants throughout the
United States. On June 12, 2014, the company announced that
its computer system had been breached and some con-sumer
credit-and debit--card data had been stolen. At the time, it
did not know how many consumers were affected, whether the
breach was general or limited to specific loca-tions, or how
long the breach lasted. As a precaution, it switched to a
manual card--processing system at all locations in the
continental United States and encouraged its custom-ers to
monitor their card statements. News articles indicated that
the breach might have begun as far back as September 2013.
Later that summer, on August 4, 2014, P.F. Chang's
an-nounced that it had determined that data was stolen from
just 33 restaurants. The only affected restaurant in
Illinois, it reported, was at the Woodfield Mall in
Schaumburg (a sub-urb of Chicago).
dined at a different P.F. Chang's, located in Northbrook,
on April 21, 2014, and paid with his debit card. On June 8,
2014, four fraudulent transactions were made with the card he
had used, and so he cancelled it immediate-ly. Later in June,
Kosner learned about the breach at P.F. Chang's. Putting
two and two together, he noted that the fraudulent charges on
his card had appeared shortly after he dined at P.F.
Chang's, and he drew the conclusion that his debit-card
data were among those compromised by the breach. Based on
that concern, he purchased a credit moni-toring service to
protect against identity theft, including against criminals
using the stolen card's data to open new credit or debit
cards in his name. He spent $106.89 on the service.
April 3, 2014, Lewert dined at the same P.F. Chang's in
Northbrook as Kosner later patronized. Lewert, too, paid with
his debit card. The consequences for Lewert were less
troubling: he did not spot any fraudulent charges on his
card, nor did he cancel his card and suffer the associated
in-convenience or costs. Lewert did allege, however, that
after P.F. Chang's initially announced the breach in June
2014, he spent time and effort monitoring his card statements
and his credit report to ensure that no fraudulent charges
had been made on that card and that no fraudulent accounts
had been opened in his name.
and Kosner seek to represent a class of all similar-ly
situated customers whose payment data may have been
compromised. Their actions were consolidated on June 24,
2014. In the aggregate, the claims they assert on behalf of
the class exceed $5,000,000 in value. Minimal diversity
exists: Lewert and Kosner are citizens of Illinois, while
P.F. Chang's is a Delaware corporation with its principal
place of business in Arizona. Putting to one side the central
issue of Article III standing, to which we return, the
district court therefore had jurisdiction under the Class
Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2). As
we said, the district court dismissed the consolidated action
for lack of standing.
consider de novo the question whether a plaintiff
sat-isfies the standing criteria imposed by Article III of
the Constitution. Reid L. v. Ill. State Bd. of
Educ., 358 F.3d 511, 515 (7th Cir. 2004). The district
court " must accept as true all material allegations of
the complaint, drawing all reasonable infer-ences therefrom
in the plaintiff's favor, unless standing is challenged
as a factual matter." Id. The plaintiffs, as
the " part[ies] invoking federal jurisdiction,"
bear the burden of establishing Article III standing.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). They must demonstrate
that they have " suffered a concrete and particularized
injury that is fairly traceable to the challenged ...