Case: 1:18-cv-01101 Document #: 22 Filed: 04/06/18 Page 1 of 15 PageID #:89

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VICTOR BONDI, on behalf of himself and
all others similar similarly situated,
Plaintiff,
vs.
L.L. BEAN, INC.,
Defendant.

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Case No.: 1:18-cv-1101
Honorable Robert W. Gettleman

L.L. BEAN, INC.’S MEMORANDUM IN SUPPORT OF ITS MOTION TO STRIKE THE
NATIONWIDE CLASS CLAIMS IN PLAINTIFF’S CLASS ACTION COMPLAINT

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I.

Introduction

Plaintiff Victor Bondi purports to bring a nationwide class action on behalf of himself
and all other “persons and entities that purchased goods from L.L. Bean prior to February 9,
2018.” Compl. ¶ 19. His Complaint seeks recovery on behalf of a “National Class” based on
breach of express warranty, breach of warranty under the Magnuson-Moss Warranty Act, unjust
enrichment, and declaratory judgment. Compl. ¶¶ 28-46, 55-66.
L.L. Bean has filed a Motion to Dismiss Plaintiff’s Class Action Complaint (the “Motion
to Dismiss”), pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(6)(6). Plaintiff has
no claim, because the Old Guarantee still applies, and he has neither experienced dissatisfaction
nor been denied a refund. In the event that some portion of Plaintiff’s claim escapes dismissal,
L.L. Bean respectfully requests that this Court strike Plaintiff’s nationwide class allegations
pursuant to Rule 12(f), 23(c)(1)(A), and 23(d)(1)(D).

This Court does not have personal

jurisdiction over the claims of absent class members who live outside of Illinois, and Plaintiff
lacks standing to assert claims based on transactions in jurisdictions where he does not reside and
did not make purchases. And even if this were not so, Plaintiff has not articulated any basis for
the uniform application of the law of any single state. It is axiomatic that where a court will have
to apply the laws of more than a few states, nationwide classes are unmanageable.
II.

The Allegations of Plaintiff’s Complaint

Plaintiff is a citizen of Illinois, who alleges that he purchased a pair of Bean boots from
an L.L. Bean store in Illinois in 2017. Compl. ¶¶ 7, 19-20. He is the only named plaintiff in this
action. The Complaint alleges that L.L. Bean is a corporation organized under the laws of
Maine, with its principal place of business in Freeport, Maine. Compl. ¶ 8. Plaintiff does not
purport to have made purchases from L.L. Bean anywhere other than in Illinois. The Complaint
defines the “National Class” as consisting of “[a]ll persons and entities who purchased goods

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from L.L. Bean prior to February 9, 2018.” Compl. ¶ 19. Plaintiff alleges that class certification
“is appropriate because Plaintiff can prove the elements of his claims on a class-wide basis using
the same evidence as would be used to prove those elements in individual actions alleging the
same claims.” Compl. ¶ 21. Plaintiff contends that “[a] class action is superior to any other
available means for the fair and efficient adjudication of this controversy, and no unusual
difficulties are likely to be encountered in the management of this class action.” Compl. ¶ 27.
The Complaint does not allege that the law of any single state applies to claims of absent class
members within the putative nationwide class. Indeed, the only state-specific law identified in
the Complaint is the Illinois Consumer Fraud Act. Tellingly, Plaintiff has only asserted the
ICFA claim on behalf of an Illinois subclass.
III.

Legal Standards Applicable to a Rule 12(f), 23(c)(1)(A), and 23(d)(1)(D) Motion to
Strike
L.L. Bean moves to strike any allegations by which Plaintiff seeks to represent a

nationwide class.

Procedural authority for this motion resides in Federal Rules of Civil
1

Procedure 12(f), 23(c)(1)(A), and 23(d)(1)(D).

Under Rule 12(f), this Court may strike any

“insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). Rule 23 authorizes the court to eliminate defective class allegations at the outset of
the action. See Fed. R. Civ. P. 23(c)(1)(A) (the court should determine “at any early practicable
time” whether to “certify the action as a class action”); Fed. R. 23(d)(1)(D) (the court may order
that pleadings be amended to remove class allegations). Where it is clear from the face of the

1

See Miles v. Am. Honda Motor Co., Inc., No. 17 C4423, 2017 WL 4742193, at *5 (N.D. Ill. Oct. 19,
2017) (striking plaintiffs’ nationwide class claims and citing Rule 23(c)(1)(A) for the proposition that
“[a]t an early practicable time” the court is required to determine whether to certify a class); Kasalo v.
Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) (“a court may deny class certification even
before the plaintiff files a motion requesting certification”).

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2

complaint that class claims are irretrievably defective, courts have not hesitated to strike them.

Here, there are three reasons why this Court should strike the nationwide class
allegations. First, this Court does not have personal jurisdiction over the claims of out-of-state
putative class members. L.L. Bean is not subject to general jurisdiction in Illinois, and cannot be
sued in Illinois by non-residents who purchased goods outside the state. Second, Plaintiff—as a
resident of Illinois who only purchased his L.L. Bean products in Illinois—lacks standing to sue
under the laws of states where he does not reside and did not purchase L.L. Bean products.
Third, with regard to Plaintiff’s claims for breach of express warranty and unjust enrichment,
courts routinely strike nationwide class allegations because significant variations in state law
render a nationwide class unmanageable under Rule 23(b)(3), and destroy commonality under
Rule 23(a)(2).
IV.

This Court Lacks Personal Jurisdiction Over Any Claims Made By Putative Class
Members who bought L.L. bean goods Outside of Illinois
A.

This Court Lacks General Jurisdiction over L.L. Bean

L.L Bean does not dispute that this court has specific jurisdiction over it with respect to
Plaintiff’s individual claim. Plaintiff resides in Illinois and bought a product from L.L Bean in
Illinois. It is a different story, however, when Plaintiff is attempting to bring claims on behalf of
absent class members who reside outside of Illinois, and who did not buy goods from L.L. Bean
in Illinois. This Court should join the growing number of district courts within Illinois that have
rejected efforts to bring claims in Illinois on behalf of non-resident class members, where the

2

Wright v. Family Dollar, Inc., No. 10 C 4410, 2010 WL 4962838, at *1 (N.D. Ill. Nov. 30, 2010)
(“courts may—and should—address the plaintiff’s class allegations when the pleadings are facially
defective and definitively establish that a class action cannot be maintained”) (citing Rule 23(d)(1)(D));
Hill v. Wells Fargo Bank, N.A., 946 F. Supp. 2d 817, 829 (N.D. Ill. 2013) (granting defendants’ motion to
strike and holding that “ruling on class certification is appropriate at the pleading stage where [] the
pleadings make clear that the suit cannot satisfy Rule 23”); Brunner v. Liautaud, No. 14-C-5509, 2015
WL 1598106, at *5 (N.D. Ill. Apr. 8, 2015).

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defendant is not subject to general jurisdiction in Illinois.
The U.S. Supreme Court has recently made clear that a district court must refuse to
exercise personal jurisdiction over a defendant where an out-of-state plaintiff brings an action
against the defendant in a state where it is not subject to general jurisdiction. Bristol-Myers
Squib Co. v. Superior Court, 137 S. Ct. 1773, 1780-81 (2017). A court with general jurisdiction
may hear any claim against that defendant, even if all the incidents underlying the claim occurred
in a different state. Id. at 1780. “But ‘only a limited set of affiliations with a forum will render a
defendant amenable to’ general jurisdiction in that state.” Id. (quoting Daimler AG v. Bauman,
134 S. Ct. 746, 760 (2014)).

In Daimler AG, the Supreme Court expressly rejected the

contention that a court should approve general jurisdiction in every state in which a corporation
“engages in a substantial, continuous, and systematic course of business.”

Id. at 760-61.

Instead, general jurisdiction exists only where the defendant is “at home,” meaning the
defendant’s singular places of incorporation and principal place of business. Id. at 760 (“With
respect to a corporation, the place of incorporation and principal place of business are paradigm .
. . bases for general jurisdiction.” (internal quotations omitted)). Here, the face of the Complaint
demonstrates that L.L. Bean is not at home in Illinois, so general jurisdiction does not exist.
Plaintiff cannot bootstrap specific jurisdiction for out of state class members through his
own individual claims. For this Court to exercise “specific jurisdiction over a claim, there must
be an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or
an occurrence that takes place in the forum State.’” Bristol-Myers Squibb Co., 137 S. Ct. at 1780
(internal citations omitted). This means that each plaintiff’s claim must arise from L.L. Bean’s
forum-related activities regardless of whether specific jurisdiction was established for another
claimant. Id. at 1783.

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Courts within the Northern District of Illinois have construed Bristol-Myers to prohibit an
exercise of personal jurisdiction over a defendant as to non-resident class members - the exact
practice which Plaintiff has attempted here. See, e.g., McDonnell, 2017 WL 4864910, at *4
(dismissing claims brought on behalf non-resident class members); DeBernardis v. NBTY, Inc.,
No. 17 C 6125, 2018 WL 461228, at * 1-2 (N.D. Ill. Jan. 18, 2018) (same); Anderson v.
Logitech, No. 17 C 6104, 2018 WL 1184729, at *1-2 (N.D. Ill. Mar. 7, 2018) (striking putative
nationwide class action claims because the court lacked specific jurisdiction over the non-Illinois
class members); Practice Mgm’t Support Servs., Inc. v. Cirque Du Soleil, Inc., No. 14 C 2032,
2018 WL 1255021, at *18-19 (N.D. Ill. Mar. 12, 2018) (denying class certification for class
outside of Illinois because of lack of specific jurisdiction over out-of-state putative class
members). This Court should do likewise.
V.

Plaintiff Lacks Standing To Sue On Behalf Of A Nationwide Class

This Court should also strike the nationwide class allegations because Plaintiff lacks
standing to sue under the laws of states in which he does not reside and where he did not
purchase goods from L.L. Bean. “Standing cannot be acquired through the back door of a class
action.” Payton v. Cnty. of Kane, 308 F.3d 673, 682 (7th Cir. 2002) (internal quotation omitted).
It is well accepted that “named plaintiffs lack standing to assert claims under the laws of states in
which they do not reside or in which they suffered no injury.” In re Ductile Iron Pipe Fittings
(“DIPF”) Indirect Purchaser Antitrust Litig., No. 12-169, 2013 WL 5503308, at *11 (D.N.J.
Oct. 2, 2013).3 Similarly, a plaintiff in a class action “cannot predicate standing on injury which

3

See also Baldwin v. Star Sci., Inc., 78 F. Supp. 3d 724, 734-35 (N.D. Ill. 2015) (finding that plaintiffs
needed a named representative from each state to proceed on claims under each state’s laws); Xi Chen
Lauren v. PNC Bank, N.A., No. 2:13-cv-762, 2014 WL 123099, at *2 (W.D. Pa. Jan. 14, 2014)
(dismissing for lack of standing plaintiff’s unjust enrichment claims that arose under the laws of states
where plaintiff suffered no injury); In re Dairy Farmers of Am. Inc. Cheese Antitrust Litig., No. 09 CR
3690, 2013 WL 4506000, at *5-6 (N.D. Ill. Aug. 23, 2013) (dismissing claims arising under the laws of

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he does not share.” Conrad v. Nutramax Labs., Inc., No. 13-cv-3780, 2013 WL 5288152, at *2
(N.D. Ill. Sept. 18, 2013). A plaintiff cannot use Rule 23 as a means of asserting claims that he
could not pursue in his own right. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612-13
(1997); Fed. R. Civ. P. 82.
Here, Plaintiff lives in only one state, and only purchased L.L. Bean goods in one state.
He cannot assert claims under the laws of forty nine other states.
VI.

This Court Should Strike The Nationwide Class As Unmanageable

Plaintiff asserts nationwide claims based on multiple states’ express warranty and unjust
enrichment laws. By failing to identify the specifics of his claims in accordance with the law of
any specific state, Plaintiff appears to concede that the Court will have to apply the law of
multiple states. But, no class action is proper unless all litigants are governed by the same legal
rules. In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002). When, as here,
state laws vary and diverge, the class cannot satisfy the predominance and manageability
requirements of Rule 23(b)(3), or the commonality requirement of Rule 23(a)(2). For this
reason, the Seventh Circuit has held, numerous times, that nationwide classes are inappropriate.
See, e.g., Isaacs v. Sprint Corp., 261 F.3d 679, 682 (7th Cir. 2001) (describing national class as a
“nightmare of a class action” because it involved the law of 48 states and decertifying the class
under Rule 23); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1302 (7th Cir. 1995)
(decertifying a class because the district court’s plan amalgamated the nonidentical negligence
laws of 51 jurisdictions); In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 752 (7th Cir. 2011)
(upholding the district court’s denial of class certification because the nationwide consumer class
was not manageable under Rule 23(b)(3)(D) since it depended on multiple states’ laws).
states where plaintiffs did not live or purchase products); In re Wellbutrin XL Antitrust Litig., 260 F.R.D.
143, 157-5 (E.D. Pa. 2009); In re Potash Antitrust Litig., 667 F. Supp. 2d 907, 924 (N.D. Ill. 2009), rev’d
on other grounds sub. nom. Minn-Chem, Inc. v. Agrium Inc., 657 F.3d 650 (7th Cir. 2011).

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Here, there can be no doubt that under Illinois choice of law rules, the claims of nonresident class members will be governed by the laws of their states of residence and/or the law of
the states where they made their purchases. Federal courts sitting in Illinois follow Illinois’
choice-of-law rules. DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th
Cir. 1987). Illinois has adopted the most significant relationship test for resolving conflict of law
issues. Ingersol v. Klein, 262 N.E. 2d 593, 595 (Ill. 1970). Under this test, the law of the place
of injury controls unless Illinois has a more significant relationship with the occurrence of the
parties. Id. That means for the nationwide warranty and unjust enrichment claims, the place of
“injury” is the putative class members’ home states or where the putative class members
purchased L.L. Bean products. See In re Rust-Oleum Restore Mktg., Sales Practices and Prods.
Liab. Litig., 155 F. Supp. 3d 772, 786 (N.D. Ill. 2016); In re Gen. Motors. Corp. Dex-Cool
Prods. Liab. Litig., 241 F.R.D. at 316-18 (finding that the claims of the proposed class for breach
of express warranties are governed by the laws of the states where the class members reside);
Miles, 2017 WL 4742193, at *2 (stating that, under Illinois choice-of-law rules, the place of
purchase and injury governs breach of warranty claims); In re Sears, Roebuck, & Co. Tools
Mktg. & Sales Practices Litig., No. 05 C 2623, 2006 WL 3754823, *2 (N.D. Ill. Dec. 18, 2006)
(finding that, under Illinois’ choice-of-law, the place of injury for an unjust enrichment claim is
the putative class members’ home state or where the putative class members purchased the goods
subject to the lawsuit).
For each of the theories advanced by Plaintiff, many judicial decisions confirm the
existence of serious conflicts between the laws of the fifty states.

These differences are

discussed below, and further set forth in the charts attached hereto as Exhibits A and B.4
4

Exhibit A is a chart summarizing state breach of express warranty laws. Exhibit B is a chart
summarizing state unjust enrichment laws.

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As to Plaintiff’s breach of express warranty claims, courts have repeatedly held that the
UCC is not applied uniformly across states, and that material differences exist among each
states’ laws. See, e.g., In re Gen. Motors Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. 305,
318-319 (S.D. Ill. 2007) (“That is to say, as enacted by the several states and as judicially
interpreted by the courts of those states, the UCC is subject to important variations from state to
state. Quite simply, ‘[t]he Uniform Commercial Code is not uniform.’” (quoting Walsh v. Ford
Motor Co., 807 F.2d 1000, 106 (internal citations omitted)); see also Tasion Comm’ns, Inc. v.
Ubiquiti Networks, Inc., 308 F.R.D. 630, 638 (N.D. Cal. 2015) (stating that state express
warranty law does not uniformly apply across an entire class but rather is based on where the
purchaser of the product resided). Most notably, courts in numerous states—including Alaska,
California, Florida, Maine, Massachusetts, Minnesota, Nebraska, North Carolina, Ohio, Rhode
Island, Tennessee, Texas, and Wyoming to name a few—have held that a plaintiff must show
reliance on a statement or representation for it to be considered part of the “basis of the bargain.”
See Ex. A; In re Rust-Oleum Restore Mktg., Sales Practices and Prods. Liab. Litig., 155 F. Supp.
3d 772, 786 (N.D. Ill. 2016) (quoting Cole v. Gen. Motors Corp., 484 F.3d 717, 726 (5th Cir.
2007)).5 Other states, by contrast, do not require reliance. See, e.g. Samuel–Bassett v. Kia

See e.g., Tasion Commc’ns, Inc. v. Ubiquiti Networks, Inc., No. C–13–1803 EMC, 2014 WL 1048710,
at *4–5, 2014 U.S. Dist. LEXIS 35455, at *14–15 (N.D. Cal. Mar. 14, 2014); DiIenno v. Libbey Glass
Div., Owens-Illinois, Inc., 668 F. Supp. 373, 376 (D. Del. 1987); Thursby v. Reynolds Metals Co., 466 So.
2d 245, 250 (Fla. Dist. Ct. App. 1984); Phillips v. Ripley & Fletcher Co., 541 A.2d 946, 950 (Me. 1988);
Reed v. Sears & Roebuck & Co., 934 F. Supp. 713, 720 n.7 (D. Md. 1996); Stuto v. Corning Glass Works,
No. 88-1150-WF, 1990 WL 105615, at *5 (D. Mass. July 23, 1990); Hendricks v. Callahan, 972 F.2d
190, 193 (8th Cir. 1992) (Minnesota); Hillcrest Country Club v. N.D. Judds Co., 461 N.W.2d 55, 61
(Neb. 1990); Avola v. La.-Pac. Corp., 991 F. Supp. 2d 381, 391 (E.D.N.Y. 2013); Prichard Enters., Inc.
v. Adkins, 858 F. Supp. 2d 576, 585 (E.D.N.C. 2012); McKinney, 744 F. Supp. 2d at 754 (Ohio);
Oppenheimer v. York Int’l, No. 4348 MARCHTERM 2002, 2002 WL 31409949, at *3 (Pa. Ct. Comm.
Pleas 2002); Ralston Dry-Wall Co. v. U.S. Gypsum Co., 740 F. Supp. 926, 929 (D.R.I. 1990), aff’d, 926
F.2d 99 (1st Cir. 1991); Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 973 (M.D. Tenn. 2002), aff’d,
89 F. App’x 927 (6th Cir. 2003); Omni USA, Inc. v. ParkerHannifin Corp., 964 F. Supp. 2d 805, 814
(S.D. Tex. 2013); Compaq Comp. Corp. v. Lapray, 135 S.W.3d 657, 676 (Tex. 2004); Reece v. Good
Samaritan Hosp., 953 P.2d 117, 123 (Wash. Ct. App. 1998).
5

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Motors Am., Inc., 613 Pa. 371, 411-12, 34 A.3d 1 (2011) (stating that the class not was required
to prove reliance in order to recover on express warranty claim; “[a] written express warranty
that is part of the sales contract is the seller's promise which relates to goods, and it is part of the
basis of the bargain . . . . This statement of law is not qualified by whether the buyer has read the
warranty clause and relied on its in seeking its application”).
The MMWA incorporates the state-law requirements for reliance, In re Rust-Oleum, 155
F. Supp. 3d at 786 (citations omitted), and, thus, also cannot be applied on a nationwide basis.
See Mednick v. Precor, Inc., No. 14 C 3624, 2016 WL 3213400, at *8 (N.D. Ill. June 10, 2016)
(rejecting class certification because the plaintiffs’ sought to certify a nationwide class action
under the Magnuson-Moss Warranty Act, which required the application of multiple state
warranty laws).
“[U]njust enrichment is a tricky type of claim that can have varying interpretations even
by courts within the same state, let alone amongst the fifty states.” In re Sears, Roebuck & Co.
Tools Mktg. & Sales Practices Litig., Nos. 05 C 4742 & 05 C 2623, 2006 WL 3754823, at *1 n.
3 (N.D. Ill. Dec.18, 2006). Courts routinely find that the elements necessary to establish a claim
for unjust enrichment also vary materially from state to state. As the court explained in Clay v.
American Tobacco Co., 188 F.R.D. 483, 501 (S.D. Ill. 1999):
[V]ariances exist in state common laws of unjust enrichment. The actual
definition of “unjust enrichment’ varies from state to state. Some states do not
specify the misconduct necessary to proceed, while others require that the
misconduct include dishonesty or fraud. Other states only allow a claim for
unjust enrichment when no adequate legal remedy exists. Many states, but not all,
permit an equitable defense of unclean hands. (Internal citations omitted).
As the Clay court observed, there are numerous material differences between each states’
treatment of unjust enrichment:

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

Definition of “Unjust Enrichment”: Unjust enrichment is a standalone equitable claim
in some states, and a remedy in others. In re Baycol Prods. Litig., 218 F.R.D. 197, 214
(D. Minn. 2003) (noting that unjust enrichment is a remedy at law in Illinois but an
equitable claim in Minnesota).



Benefit of the bargain: Twenty states and the District of Columbia do not allow claims
for unjust enrichment where the plaintiff has received the benefit of the bargain. See Ex.
B; Andren v. Alere, Inc., No. 16CV1255-GPC (AGS), 2017 WL 6509550, at *17 (S.D.
Cal. Dec. 20, 2017).



Lack of adequate remedy: Arizona, Hawaii, Louisiana, Massachusetts, Minnesota, New
York, North Carolina, North Dakota, Tennessee and Utah require that a plaintiff
demonstrate that there is not an adequate remedy at law.6



Defendant’s knowledge of the benefit received: Florida, Kansas, Maine, Maryland,
Nevada, New Mexico, Ohio, Utah, Washington, and Wisconsin require that a plaintiff
establish that the defendant appreciates or has knowledge of the benefit conferred.7

6

See Ex. B; see also Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 Ariz. 535, 48 P.3d 485, 491 (Ariz.
Ct. App. 2002) (to establish unjust enrichment a party must show “the absence of a legal remedy”); La.
Civ. Code Ann. art. 2298 (unjust enrichment “shall not be available if the law provides another remedy
for the impoverishment or declares a contrary rule”); Santagate v. Tower, 64 Mass. App. Ct. 324, 833
N.E.2d 171, 176 (Mass. App. Ct. 2005) (“equitable remedy for unjust enrichment is not available to a
party with an adequate remedy at law”); Samiento v. World Yacht Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83,
883 N.E.2d 990, 996 (N.Y.2008) (cause of action for unjust enrichment “does not lie as plaintiffs have an
adequate remedy”); Jones Cooling & Heating, Inc. v. Booth, 99 N.C. App. 757, 394 S.E.2d 292, 294
(N.C. App. 1990) (plaintiff may not recover under a theory of unjust enrichment where an adequate
remedy at law exists); Lochthowe v. C.F. Peterson Estate, 692 N.W.2d 120, 124 (N.D. 2005) (to establish
unjust enrichment a party must demonstrate “an absence of a remedy provided by law”); Thorpe v.
Washington City, 243 P.3d 500, 507 (Utah App. 2010) (plaintiff must show absence of an adequate
remedy at law); Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005) (a
plaintiff must demonstrate the absence of a legal remedy); Porter v. Hu, 116 Haw. 42, 169 P.3d 994,
1007–08 (Haw. Ct. App. 2007) (unjust enrichment is only appropriate in the absence of an adequate
remedy at aw); Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 842 (Minn.
2012) (citing ServiceMaster of St. Cloud v. GAB Bus. Servs. Inc., 544 N.W.2d 302, 305 (Minn. 1996) (“A
party may not have equitable relief where there is an adequate remedy at law available”)). Pennsylvania
does as well. Meehan v. Cheltenham Twp., 410 Pa. 446, 189 A.2d 593, 595 (1963) (holding that unjust
enrichment is not available where an adequate remedy at law exists).

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

Degree of wrongful conduct required: States also vary in the degree of wrongful
conduct required for liability. For example, Arkansas does not require any bad faith or
wrongful conduct; Alabama, by contrast, requires the defendant to have engaged in
unconscionable conduct. Compare Smith v. Whitener, 42 Ark. App. 225, 228, 856
S.W.2d 328 (1993) (en banc) with Wyeth, Inc. v. Blue Cross and Blue Shield of
Alabama, 42 So. 3d 1216, 1225 (Ala. 2010) (noting that Alabama courts require
defendants to have engaged in unconscionable conduct for a claim of unjust enrichment).
In Minnesota, “it must be shown that a party was unjustly enriched in the sense that the
term ‘unjustly’ could mean illegally or unlawfully.” ServiceMaster of St. Cloud v. GAB
Bus. Servs., Inc., 544 N.W.2d 302, 306 (Minn. 1996).



Privity: States also differ as to whether a benefit must have been directly conferred, both
in terms of the relationship between the parties, and the connection between the conduct
and the alleged injury. Compare Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th
Cir.2012) (affirming dismissal of unjust enrichment claim under Florida law where
benefit was indirect) with State Dept. of Human Servs. ex rel. Palmer v. Unisys
Corp., 637 N.W.2d 142, 155 (Iowa 2001) (allowing recovery where benefit is indirect).

7

See Ex. B; Hillman Const. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th Dist. App.1994) (must
establish that the “plaintiff has conferred a benefit on the defendant, who has knowledge thereof”); J.W.
Thompson Co. v. Welles Prods. Corp., 243 Kan. 503, 758 P.2d 738, 745 (Kan. 1988) (plaintiff must
establish “an appreciation or knowledge of the benefit by the defendant”); Jackson v. Brandywine, 952
A.2d 304, 327 (Md. App. 2008) (plaintiff must establish that receiving party “had appreciation or
knowledge of the benefit”); Ontiveros Insulation Co., Inc. v. Sanchez, 129 N.M. 200, 3 P.3d 695, 698
(N.M. App. 2000) (plaintiff must establish that “another has been knowingly benefitted at one's
expense”); Struna v. Convenient Food Mart, 160 Ohio App. 3d 655, 662 (2005); Freeman Indus., LLC, 172
S.W.3d at 525 (plaintiff must establish “appreciation by the defendant of such benefit”); Rawlings v.
Rawlings, 240 P.3d 754, 763 (Utah 2010) (plaintiff must establish “an appreciation or knowledge by the
conferee of the benefit”); Ballie Communications, Ltd. v. Trend Business Sys., Inc., 810 P.2d 12, 18 (Wash.
App. 1991); Puttkammer v. Minth, 83 Wis. 2d 686, 266 N.W.2d 361, 363 (Wis. 1978) (plaintiff must
establish “an appreciation or knowledge by the defendant of the benefit”).

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New York, for example, requires a plaintiff to demonstrate a relationship or connection
between the parties that is not too attenuated. Sperry v. Crompton Corp., 810 N.Y.S.2d
498, 499–500 (N.Y. App. Div. 2006). North Dakota, Arizona, and Louisiana courts have
required that a plaintiff demonstrate a “connection between the enrichment and the
impoverishment.” Zuger v. N. Dakota Ins. Guar. Ass'n, 494 N.W.2d 135, 138
(N.D.1992); City of Sierra Vista v. Cochise Enters., Inc., 144 Ariz. 375, 697 P.2d 1125,
1131 (Ariz. Ct. App. 1984); USA Disaster Recovery, Inc. v. St. Tammany Parish
Govt., 145 So.3d 235, 236 n. 1 (La. 2013).
In light of these many material differences, courts across the country have repeatedly
rejected attempts to bring nationwide unjust enrichment claims. In re Aqua Dots Products Liab.
Litig., 270 F.R.D. 377, 386 (N.D. Ill. 2010) (the law of unjust enrichment “varies too much”
from state to state and poses “insurmountable choice-of-law problems”); Lilly v. Ford Motor
Co., No 00 C 7372, 2002 WL 507126, at *2 (N.D.Ill. Apr.3, 2002); Mazza v. Am. Honda Motor
Co., 666 F.3d 581, 591 (9th Cir. 2012) (same); Thompson v. Jiffy Lube Int’l, Inc., 250 F.R.D.
607, 627 (D. Kan. 2008) (same); Thompson v. Bayer Corp., 2009 WL 362982, at *4 (E.D. Ark.
Feb.12, 2009) (same); Kunzelmann v. Wells Fargo Bank, N.A., No. 9:11-CV-81373-DMM, 2013
WL 139913, at *10 (S.D. Fla. Jan. 10, 2013) (same); Thompson, 250 F.R.D. at 626 (D. Kan.
2008) (noting that because of “variations” between state unjust enrichment laws, “federal courts
have generally refused to certify a nationwide class based upon a theory of unjust enrichment”).
V.

Conclusion

For the foregoing reasons, L.L. Bean respectfully requests that the Court grant its motion
and strike all allegations and claims in which Plaintiff seeks to represent a nationwide class.

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 Case: 1:18-cv-01101 Document #: 22 Filed: 04/06/18 Page 14 of 15 PageID #:102

Dated: April 6, 2018

Respectfully submitted,

L.L. BEAN, INC.
By:
Anthony J. Anscombe
aanscombe@Steptoe.com
STEPTOE & JOHNSON, LLP
115 S. LaSalle Street, Suite 3100
Chicago, Illinois 60603
(312) 577-1300
Counsel for Defendant L.L. Bean, Inc.

13

/s/ Anthony J. Anscombe
One of its attorneys

 Case: 1:18-cv-01101 Document #: 22 Filed: 04/06/18 Page 15 of 15 PageID #:103

CERTIFICATE OF SERVICE
I, Anthony Anscombe, an attorney, hereby certify that on April 6, 2018, I caused a true
and correct copy of the foregoing L.L. BEAN, INC.’S MEMORANDUM IN SUPPORT OF
ITS MOTION TO STRIKE THE NATIONWIDE CLASS CLAIMS IN PLAINTIFF’S
CLASS ACTION COMPLAINT to be electronically filed with the Clerk of Court using
CM/ECF, which will send electronic notification to the parties and registered attorneys of record
that the document has been filed and is available for viewing and downloading.

/s/ Anthony J. Anscombe
Anthony J. Anscombe