Case: 1:18-cv-01101 Document #: 18 Filed: 04/06/18 Page 1 of 17 PageID #:48

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.
)

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

L.L. BEAN, INC.’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS
PLAINTIFF’S CLASS ACTION COMPLAINT PURSUANT TO RULE 12(B)(1) AND
12(B)(6)

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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. ¶¶ 4, 19. Plaintiff alleges that L.L. Bean deprived him of the benefit of his
bargain when it announced on February 9, 2018 that it was ending its policy of providing a
satisfaction guarantee with no time limit (henceforth the “Old Guarantee”) on the products it
sells, and was replacing it with a satisfaction guarantee lasting one year from the date of
purchase (henceforth the “New Guarantee”). Id. ¶ 2. Plaintiff has attempted to assert claims
under generic state laws for breach of express warranty and unjust enrichment, as well as the
Magnuson-Moss Warranty Act, Illinois Consumer Fraud Act, and for Declaratory Judgment. Id.
¶¶ 28-66.
Plaintiff’s Complaint rests on a misunderstanding of L.L. Bean’s announcement. L.L.
Bean has NOT revoked or “rescinded” the Old Guarantee for purchases made before February 9,
2018. Plaintiff therefore has not suffered a cognizable injury, and lacks standing to pursue his
lawsuit. Further, even if he had standing, Plaintiff has failed to plead an adequate factual basis
for the theories of liability he has asserted. Plaintiff has never tried to return his L.L. Bean
products, and has not been refused a refund. Plaintiff has not alleged a deceptive or unfair act, or
any actual damage, as required by the Illinois Consumer Fraud Act. He has not adequately pled
a claim for unjust enrichment. Plaintiff’s count for declaratory judgment fails. There is no
controversy for this Court to resolve.
II.

The Allegations of Plaintiff’s Complaint

Plaintiff claims to be a loyal L.L. Bean customer who purchased a pair of Bean boots
from an L.L. Bean store in Illinois in 2017. Compl. ¶¶ 7, 19-20. Plaintiff expresses no
dissatisfaction with his boots. He does not claim to have tried to return them. He does not

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indicate any likelihood that he will do so in the future. He has never been denied a refund. He
does not allege that he gave L.L. Bean any pre-suit notification of his purported claims, or
notified L.L. Bean of his intent to bring a class action under the Magnuson-Moss Warranty Act.
Plaintiff’s discontent arises from L.L. Bean’s announcement on February 9, 2018 that it
would stop selling goods subject to its Old Guarantee, and would be limiting the guarantee to
one year from purchase (although it still allows the return of defective goods beyond a year). Id.
¶¶ 1, 2; see also Request for Judicial Notice (“RJN”), Exhibit A, “Letter to our customers”
(February 9, 2018). Plaintiff alleges that L.L. Bean broadly advertised its Old Guarantee, and
used it as a brand differentiator, enabling it to sell more products, for higher prices. Compl. ¶¶ 918. But Plaintiff does not claim to have seen any of these statements. He alleges that on
February 9, 2018 L.L. Bean rescinded the Old Guarantee for purchases made before that date,
and replaced it with the New Guarantee. Id. ¶ 2. He does not quote any statement by L.L. Bean
to this effect, and does not identify how, if at all, he learned about this purported rescinding.
Nonetheless, he contends that L.L. Bean deprived him of the benefit of his bargain. Id. ¶ 17.
Plaintiff’s interpretation of L.L. Bean’s February 9, 2018 announcement is incorrect. The
February 9, 2018 announcement, itself, does not indicate that the New Guarantee will apply
retroactively. Moreover, L.L. Bean was quick to dispel any such interpretation. On February 9,
2018 an L.L. Bean spokesperson clarified that, for products purchased before February 9, 2018,
“[i]f it’s been over a year and someone is able to provide a proof of purchase and if the product
does not fall within one of our Special Conditions, such as products damaged by misuse, abuse,
pet damage, personal reasons unrelated to product performance or satisfaction and more, we
would honor the return.” RJN, Exhibit B. And, in response to the filing of this lawsuit, L.L.
Bean told the Chicago Tribune on February 14, 2018: “L.L. Bean products bought prior to
February 9, 2018 will not be subject to the new one year guarantee.” RJN, Exhibit C. L.L. Bean’s
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website makes this point absolutely clear: “Please note that products purchased before February
9, 2018 are not subject to this one-year time limit.” RJN, Exhibit D.
The Old Guarantee thus still applies to all of Plaintiff’s purchases. Had Plaintiff provided
pre-suit notice of this action, or actually tried to return his items, the Court would not be reading
this motion now.
III.
A.

This Court Lacks Subject Matter Jurisdiction and Should Dismiss This Action
Pursuant to Rule 12(b)(1)
Legal Standards Applicable to Rule 12(b)(1)

Federal courts may only adjudicate “cases” and “controversies.” U.S. Const. art. III, § 2.
To establish standing under Article III of the United States Constitution, a plaintiff must
demonstrate three things: (1) that he suffered an injury-in-fact; (2) the injury is fairly traceable
to the action of the defendant; and (3) the injury will likely be redressed with a favorable
decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiff bears the burden of
alleging facts sufficient to establish standing, and if he fails to do so, dismissal is mandatory
under Rule 12(b)(1). See Id. at 561. Moreover, where a defendant introduces evidence to prove
the absence of standing, Plaintiff must come forward with evidence to show that standing exists.
Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003) (stating that when confronted with a factual
challenge to standing, the “plaintiff must come forward with ‘competent proof’—that is a
showing by a preponderance of the evidence—that standing exists.” (internal citations omitted)).
Here, Plaintiff lacks standing for two reasons. First, the face of the Complaint, facts
judicially noticeable, and extrinsic evidence all demonstrate that Plaintiff has not suffered any
injury-in-fact. Plaintiff has not sought or been denied a refund, and the Old Guarantee still
applies to products he purchased before February 9, 2018.

Second, Plaintiff’s claim for

injunctive relief is not justiciable, as he does not face a reasonable likelihood of future injury.

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B.

Plaintiff Has Sustained No Injury-In-Fact

To satisfy Article III standing requirements, a plaintiff must allege facts demonstrating
that he suffered a “concrete and particularized” injury.

Lujan, 504 U.S. at 560 (internal

quotations omitted). Plaintiff fails to allege any such injury. Plaintiff does not allege that he
tried to return any product purchased from L.L. Bean and was denied. Plaintiff does not even
allege he was dissatisfied with his L.L. Bean boots, a necessary precondition for returning items
under the Old Guarantee. Plaintiff’s failure to allege these facts deprives him of standing.
Another court within this district recently found that a plaintiff lacked standing under
circumstances similar to those here. See Wiegel v. Stork Craft Mfg., Inc., 891 F. Supp. 2d 941
(N.D. Ill. 2012). In Wiegel, plaintiff asserted a putative class action based on a recall of a
product and a retailer’s policy of providing refunds for recalled products. Plaintiff never sought
a refund and did not allege that she was misled into believing that she could not obtain a refund
under the policy. Id. at 943-44. Accordingly, she lacked standing to pursue her claims. Id.; see
also, Central States, Southeast & Southwest Areas Health & Welfare Fund v. American Int’l
Grp., Inc., 840 F.3d 448, 449-51 (7th Cir. 2016) (dismissing declaratory judgment action because
it arose “from hypothetical benefits claims that have yet to be filed—indeed from injuries that
have not yet occurred—so the controversy between the plan and the insurers is not of ‘sufficient
immediacy’ to invoke a federal court’s jurisdiction.”); Foster v. Center Twp. of LaPorte Cnty.,
798 F.2d 237, 243-44 (7th Cir. 1986) (declaratory judgment claim dismissed for lack of standing
where plaintiff had no “direct personal injury”); Gilbert v. Ill. State Bd. of Educ., No. 05-cv4699, 2008 WL 4390150, at *6 (N.D. Ill. Sept. 24, 2008) (“Nor can a federal court issue a
declaratory judgment because someone may be affected by the provisions, if that someone is not
the current Plaintiff.”); Fatwallet v. Best Buy, No. 03-cv-50508, 2004 WL 793548, at *2 (N.D.
Ill. Apr. 12, 2004) (“Plaintiff has failed to identify any harm it has suffered . . . and has therefore
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not shown that it has standing under Article III . . . .”).
Here, Plaintiff has failed to allege that he tried to return any L.L. Bean product, and has
pled no facts to show that he was misled into believing that he could not. He has not expressed
any dissatisfaction with his boots, or any reasonable expectation that he will find them
unsatisfactory in the future. L.L. Bean’s public statements and website have made it clear that
the New Guarantee applies prospectively only.

The Old Guarantee still applies to items

purchased before February 9, 2018.1 Plaintiff has suffered no injury, and dismissal is required.
C.

Plaintiff Lacks Standing to Pursue Injunctive Relief

In addition to seeking monetary relief, Plaintiff also seeks injunctive relief requiring L.L.
Bean to comply with the Old Guarantee (Compl., Request for Relief, ¶ F). Again, he lacks
standing. Article III standing requires that it be “likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Serv. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Here, Plaintiff is asking for something he
already has: a satisfaction guarantee with no time limit. Since the Old Guarantee still applies to
his purchases, he has no basis on which to seek injunctive relief. Spencer v. Kemra, 523 U.S. 1,
7 (1998) (a plaintiff must “have suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision”).
IV.
A.

The Complaint Should Be Dismissed for Failure to State A Claim
Legal Standard Applicable to Rule 12(b)(6)

This Court should also dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6), as
Plaintiff has not pled facts plausibly showing entitlement to relief. In resolving a Rule 12(b)(6)
motion, the Court follows a two-pronged approach. First, although courts accept well-pleaded

1

L.L. Bean’s public statements and website are appropriate to consider because Courts “may consider evidence
outside the pleadings to ensure jurisdiction is proper” in deciding whether to grant a Rule 12(b)(1) motion to dismiss
for lack of jurisdiction. Priddle v. Malanis, No. 12-cv-5831, 2015 WL 507538 at *2 (N.D. Ill. Feb. 4, 2015).

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factual allegations as true, they are not bound to accept as true legal conclusions couched as
factual allegations or formulaic recitations of the elements of a cause of action. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Second, assuming the veracity of the well-pleaded factual allegations, the Court must “determine
whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 664. This
determination is context-specific, requiring the Court to draw on its experience and common
sense. Id. The Court may consider matters beyond the face of the Complaint where such matters
include documents referred to in the complaint, and matters that are judicially noticeable. Wright
v. Assoc. Inc. Cos. Ins., 29 F.3d 1244, 1248 (7th Cir. 1994) (“documents attached to a motion to
dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and
are central to his claim”); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (when
determining the “adequacy of a claim under Rule 12(b)(6)” the court may consider “matters to
which judicial notice may be taken”).
A plaintiff alleging fraudulent conduct must further satisfy Rule 9(b), which requires him
to plead “with particularity the circumstances constituting fraud.”

Fed. R. 9(b); Pirelli

Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436, 441-42 (7th
Cir. 2011). Allegations of fraud must be accompanied by the “who, what, where, and how” of
the misconduct alleged. Id.
B.

Plaintiff Fails To State a Claim for Breach of Express Warranty
i.

Plaintiff’s Claim for Breach of Warranty Fails to Identify a
Governing Law

Plaintiff’s count for breach of express warranty cursorily alleges that L.L. Bean breached
its express written warranty, Compl. ¶¶ 38-46, stating that L.L. Bean “unilaterally and
immediately repudiate[ed] the warranty.” Id. ¶ 45. Plaintiff does not identify the law of any

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specific state as applying to this claim. For example, although this case arises out of the sale of
goods, Plaintiff has not identified any section of the Illinois Commercial Code as the legal basis
for his Complaint. This omission matters, and by itself constitutes a basis for dismissal.
Breach of express warranty is not a catch-all existing within the scope of federal common
law, but is instead a creature of state law. See In re McDonald’s French Fry Litig., 257 F.R.D.
669, 673 (N.D. Ill. 2009) (noting the substantial differences in the breach of warranty laws of the
fifty states); see also L.L. Bean’s Motion to Strike, filed concurrently herewith. Although most
states have adopted the Uniform Commercial Code (“UCC”), the UCC has not been uniformly
adopted and is subject to critical variations from state to state.2 For instance, states vary on
whether privity or pre-suit notice is required.3
Courts in other putative nationwide class actions have rejected attempts by plaintiffs to
plead the law generically. See, e.g., In re Wellbrutin XL Antistrust Litigl, 260 F.R.D. 143, 167
(E.D. Pa. 2009) (dismissing unjust enrichment claim for failure to identify governing state law);
Cole v. Nibco, Inc., No. 3:13-cv-07871 (FLW)(TJB), 2015 WL 2414740, at *11 (D. N.J. May 20,
2015) (dismissing negligence claims for failure to identify governing state law); Young v. Wells
Fargo & Co., 671 F. Supp. 2d 1006, 1016-17 (S.D. Iowa 2009) (dismissing fraud and unjust
enrichment claims for failure to identify the law of a particular state). This Court should
similarly reject Plaintiff’s attempt to avoid pleading the elements of a breach of express warranty
under the state law that applies to his claim.

2

Gen. Motors Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. 305, 318 (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)).
3
See, e.g., Flory v. Silvercrest Indus., Inc., 633 P.2d 383, 387-88 (Ariz. 1981) (requiring vertical privity); Smith v.
Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1342-43 (S.D. Fl. 2009) (stating that privity is not required for express
warranty claims); Hearn v. R.J. Reynolds Tobacco Co., 279 F. Supp. 2d 1096, 1115-16 (D. Ariz. 2003) (stating
notice of a breach must be conveyed to the manufacturer under Arizona law).

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ii.

Plaintiff Fails To State a Claim under Illinois Law for Breach of
Express Warranty

Although Plaintiff has not pled the application of Illinois law, under Illinois’ choice of
law rules, Article 2 of the Illinois’ Commercial Code should control Plaintiffs’ claim. See In re
Gen. Motors. Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. at 316-18 (claims of the proposed
class for breach of express warranties are governed by the laws of the states where the class
member resides). Under Illinois law, “to state a breach of express warranty claim, a plaintiff
‘must allege the terms of the warranty, the failure of some warranted part, a demand upon the
defendant to perform under the warranty’s terms, a failure by defendant to do so, compliance
with the terms of the warranty by the plaintiff, and damages measured by the terms of the
warranty.’” Disher v. Tanko Bldg. Prods, Inc., 14-cv-740-SMY-SCW, 2015 WL 4609980, at *3
(S.D. Ill. July 31, 2015) (quoting Evitts v. DaimlerChrysler Motors Corp., 834 N.E. 2d 942, 949
(Ill. App. Ct. 2005)); see also 810 ILCS 5/2-313; 810 ILCS 5/2-607(3)(a).
Here, Plaintiff’s Complaint does not set forth a plausible basis for a claim for breach of
warranty. Facts judicially noticeable demonstrate that L.L. Bean has not rescinded its Old
Guarantee for goods sold before February 9, 2018. Plaintiff has also failed to plead that he tried
to return his boots, or that he is dissatisfied. Thus, no breach has occurred. This case is
strikingly similar to Rose v. Vanity Fair Brands, LP, where the plaintiff sued a manufacturer of
women’s clothing for breach of a “satisfaction guarantee.” 13-cv-167, 2013 WL 1752705, at *12 (N.D. Ill. Apr. 23, 2013). The plaintiff failed to allege that she sought a refund or replacement
of the garments. Id. at *2. Because of this failure, the court concluded that “there can be no
breach of that guarantee.” Id.; see also Belfour v. Schaumburg Auto, 713 N.E. 2d 1233, 1238,
306 Ill. App. 3d 234 (1999) (“[A] breach of the promise to repair or replace cannot occur until
Audi refuses or fails to repair the defect.”).
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Moreover, Plaintiff has failed to allege the simple, necessary element of having given
pre-suit notice as required by Section 2-607(3). To state an express warranty claim, “the buyer
must within a reasonable time after he discovers or should have discovered any breach notify the
seller of breach or be barred from any remedy.” 810 ILCS 5/2-607(3)(a); Baldwin v. Star
Scientific, No. 14-cv-588, 2016 WL 397290, at *9 (N.D. Ill. Feb. 2, 2016) (“[F]ailure to provide
pre-litigation notice bars [a plaintiff’s] breach of express . . . warranty claim[].”). Having made
no such allegation, Plaintiff cannot pursue this claim.
C.

Plaintiff’s Magnuson-Moss Claim Must Also Be Dismissed

The Magnuson-Moss Warranty Act (“MMWA”) does not expand Plaintiff’s state law
express warranty claim, and dismissal of that claim requires dismissal of his MMWA claim. The
MMWA’s jurisdictional clause allows a party to sue in federal court based on state-law warranty
claims, but it does not permit an MMWA breach of warranty claim without an underlying state
cause of action. Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir. 2004) (the MMWA
“allows consumers to enforce written and implied warranties in federal court, borrowing state
law causes of action”). Further, the MMWA provides that the defendant must be given “a
reasonable opportunity to cure” and incorporates relevant state law requirements on pre-suit
notice. 15 U.S.C. § 2310(2); Perona v. Volkswagen of Am., Inc., 684 N.E. 2d 859, 864 (Ill. App.
Ct. 1997). Here, as Plaintiff has failed to state a claim for breach of express warranty and has not
alleged the required pre-suit notice, his MMWA claim must also be dismissed.
D.

Plaintiff Fails To State A Claim Under of the Illinois Consumer Fraud Act
i.

Legal Standard to State a Breach of the IFCA

The Illinois Consumer Fraud Act (“IFCA”) proscribes deceptive and unfair practices. To
state a claim under the IFCA for deceptive practices, Plaintiff must allege: “(1) a deceptive act or
practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3)
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the occurrence of the deception in the course of conduct involving trade or commence, and (4)
actual damage to the plaintiff (5) proximately caused by the deception.” Avery v. State Farm
Mut. Auto. Ins. Co., 835 N.E.2d 801, 850 (Ill. 2005).
In determining whether a complaint adequately alleges an unfair practice, the Court
considers the following factors: (1) whether practice offends public policy, (2) whether it is
immoral, unethical, oppressive, or unscrupulous, and (3) whether it causes a substantial injury to
consumers. Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002).
To state a claim based on either a deceptive action or an unfair practice, plaintiff must
plead intent and actual damages. See 815 ILCS 505/10a; Oliveira v. Amoco Oil Co., 776 N.E.2d
151, 160 (Ill. 2002) (“[A] private cause of action brought under [IFCA] requires proof of ‘actual
damage’ . . . [and] proof that the damage occurred ‘as a result of’ the deceptive act or practice.”
(citations omitted)); Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010) (a plaintiff must
allege “the defendant’s intent that the plaintiff rely on the deceptive or unfair practice”).
Here, Plaintiff has not pled facts sufficient to establish a claim under the ICFA.
ii.

The Complaint Fails To Plead a Deceptive Act with Particularity

Plaintiff has not pled any deception or omission except the conclusory allegation that
L.L. Bean’s “deceptive acts or practices were the foreseeable and actual cause of Plaintiff . . .
suffering actual damage on account of receiving products that are worth less than as
represented.” Compl. ¶ 53. For example, he has not identified a single representation by L.L.
Bean that he saw or heard, either as to the existence of the Old Guarantee, or as to its supposed
revocation. He has not set forth the “who, what, when, where, and how” required when pleading
a deceptive act under the IFCA. Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust,
631 F.3d at 441-42 (describing the “who, what, when, where, and how” of the fraud required
when pleading a deceptive act under the IFCA); see also Camasta v. Jos. A. Bank Clothiers, Inc.,
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761 F.3d 732, 737-38 (7th Cir. 2014) (a representation must have been made to a plaintiff before
the purchase of the merchandise to be actionable under ICFA); Oliveira, 776 N.E. 2d at 155-56
(finding that a plaintiff cannot state a claim under the ICFA without alleging that he was exposed
to the deceptive act or practice.)
iii.

The Complaint Fails to Allege an Unfair Practice

The Complaint also fails to plead facts showing the existence of an unfair practice.
Plaintiff has alleged in conclusory terms that L.L. Bean’s “practices offended public policy.”
Compl. ¶ 52. As set forth above, L.L. Bean has not rescinded the Old Guarantee, but even if it
had, Plaintiff’s allegation would not state a claim. A practice offends public policy if “it violates
a standard of conduct set out by an existing statute or common law doctrine that typically
governs such situations.” W. Ry. Devices Corp. v. Lusida Rubber Prods. Inc., No. 06-cv-0052,
2006 WL 1697119, at *4 (N.D. Ill. June 13, 2006). Plaintiff has not adequately pled a statutory
or common law violation separate from the purported IFCA claim. Therefore, Plaintiff has not
adequately pled an unfair practice based on a purported violation of public policy.
Similarly, Plaintiff has failed to allege facts showing that L.L. Bean’s actions were
“immoral, unethical, oppressive, or unscrupulous.” Robinson, 775 N.E.2d at 961. “Conduct is
oppressive only if it imposes a lack of meaningful choice or an unreasonable burden on its
target.” Toney v. Kinsch, 10-cv-06375, 2012 WL 567729, at *7 (N.D. Ill. Feb. 21, 2012); see
also Robinson, 775 N.E.2d at 962. Plaintiff has pled no facts beyond a formulaic recitation of
the elements of this claim—that L.L. Bean’s policy change was “immoral, unethical, oppressive,
and unscrupulous.” Compl. ¶ 52. This boilerplate is insufficient. Gonnella v. Delbert Servs.
Corp., No. 14-cv-4921, 2015 WL 1299364, at *2 (N.D. Ill. Mar. 19, 2015). L.L. Bean has
instead shown that the Old Guarantee still applies to items purchased before February 9, 2018.
L.L. Bean has not deprived Plaintiff of a meaningful choice or placed an unreasonable burden on
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him. See Maxwell v. Sanofi-Aventis U.S. LLC, 15-cv-10095, 2016 WL 3633321, at *3 (N.D. Ill.
July 6, 2016) (defendant’s actions were not oppressive because the recall provided the consumer
with reimbursement). Moreover, L.L. Bean’s actions in implementing the New Guarantee were
not immoral, unethical or unscrupulous. Rather, the actions were pro-actively explained to
customers in the February 9, 2018 announcement, and were based on legitimate business
grounds.
iv.

Plaintiff’s Complaint Fails To Allege Intent

Plaintiff has failed to include any allegation that L.L. Bean intended the Plaintiff rely on
an act or practice, or that L.L. Bean intended to deceive, defraud, or be unfair to the Plaintiff.
Nor could he. The Old Guarantee still applies to his purchases. This is fatal to Plaintiff’s IFCA
claim. See Siegel, 612 F.3d at 934 (stating that a plaintiff is required under the IFCA to allege
“the defendant’s intent that the plaintiff rely on the deceptive act or unfair practice”); Maxwell,
2016 WL 363321, at *4 (same).
v.

Plaintiff Has Not Suffered Actual Damage

Plaintiff’s Complaint does not set forth facts plausibly establishing that he has sustained
any actual injury. It is axiomatic that “[t]o bring an action pursuant to the IFCA, a plaintiff must
allege ‘actual damages’ and the ‘actual damages must arise from purely economic injuries.’”
Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F. Supp. 2d 898, 912 (N.D. Ill. 2012) (“Actual
damages must be calculable and measured by plaintiff’s loss.”); Frye v. L’Oreal USA, Inc., 583
F. Supp. 2d 954, 957 (N.D. Ill. 2008) (“Because actual damages is an element of the claim,
plaintiff must allege that she has been harmed in a concrete, ascertainable way . . . . Theoretical
harm is insufficient.

Damages may not be predicated on mere speculation, hypothesis,

conjecture or whim.”); 815 ILCS 505/10a.
Plaintiff is neither dissatisfied with an L.L. Bean purchase nor has he tried to return any
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L.L. Bean product. The Complaint does not allege facts showing L.L. Bean rescinded its Old
Guarantee, and other matters properly considered show the opposite is true.
But even if the Court were to credit Plaintiff’s theory that he paid a premium for his Bean
boots, he has not pled sufficient facts to support the existence of actual damage. In Camasta v.
Jos. A. Bank Clothiers, Inc., the 7th Circuit held that a Plaintiff must conduct a minimal
“precomplaint investigation” to gather sufficient factual information to support that he “paid
more than the actual value of the merchandise he received.” 761 F.3d at 739-40. This means
Plaintiff cannot rest on “naked assertions” and, instead, must plead the price of goods in the
market place to demonstrate that he actually paid a “premium” for his Bean boots.

Id.

(dismissing plaintiff’s ICFA claim for failure to substantiate with a comparison in the actual
marketplace his conclusion that he overpaid for goods based on a purported misrepresentation).
Here, Plaintiff has provided no such factual allegations. Nor could he. The Old Guarantee still
applies to his purchase. Consequently, even assuming arguendo that Plaintiff paid a premium
for his Bean boots, he continues to retain their enhanced value because they are still covered by
the Old Guarantee.
E.

Plaintiff Fails To State a Claim for Unjust Enrichment

As with Plaintiff’s claim for breach of express warranty, Plaintiff has not identified any
specific state law that controls his unjust enrichment claim.

Such generic pleading is

inappropriate, given that states have different requirements for stating such claims.

See

Avenarious v. Eaton Corp., 898 F. Supp. 2d 729, 740 (D. Del. 2012). Plaintiff’s claim for unjust
enrichment, therefore, fails to state a cause of action. See Wellbutrin, 260 F.R.D. at 167
(“Plaintiffs fail to link their [unjust enrichment] claim to the law of any particular state. As a
result of this deficiency, the plaintiffs fail to state a cause of action . . . .”); Avenarious, 898 F.
Supp. 2d at 740 (same); In re Flonase Antitrust Litig., 610 F. Supp. 2d 409, 419 (E.D. Pa. 2009)
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(same); In re Static Random Access Memory (SRAM) Antitrust Litig., 580 F. Supp. 2d 896, 910
(N.D. Cal. 2008) (holding “until Plaintiffs indicate which States’ laws support their [unjust
enrichment] claim, the court cannot assess whether the claim has been adequately pled.”).
And, to the extent that Plaintiff relies on Illinois law, he has not stated a claim. To state a
claim for unjust enrichment, the plaintiff must allege that the defendant retained a benefit to the
plaintiff’s detriment, and that the retention of that benefit violates fundamental principles of
justice, equity, and good conscience. HPI Health Care Serv., Inc. v. Mt. Vernon Hosp., Inc., 545
N.E. 2d 672, 679 (Ill. 1989). Further, as explained by the Seventh Circuit, “if an unjust
enrichment claim rests on the same improper conduct alleged in another claim, then the unjust
enrichment claim will be tied to this related claim—and, of course, unjust enrichment will stand
or fall with the related claim.” Clearly v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011).
Here, L.L. Bean has not unjustly retained any benefit since the Old Guarantee still applies
to Plaintiff. Plaintiff’s claim for unjust enrichment also fails because it is based on the same
allegations as his claims for breach of express warranty and consumer fraud. See Compl. ¶ 55
(citing to paragraphs 1-27, which are the paragraphs supporting his breach of warranty and fraud
claims). As Plaintiff’s substantive claims fail, Plaintiff’s unjust enrichment claim arising out of
the same conduct must also be dismissed. See Clearly, 656 F.3d at 517.
F.

Plaintiff’s Declaratory Judgment Count Should Be Dismissed

To establish jurisdiction under the Declaratory Judgment Act, Plaintiff must show that
“there is a substantial controversy, between the parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
MedImmune Inc. v. Genetech, Inc., 549 U.S. 118, 127 (2007). This means that a court cannot
adjudicate a dispute that is academic or moot. Cat Tech LLC v. TubeMaster, Inc., 528 F.3d 871,
879 (Fed. Cir. 2008). L.L. Bean’s Old Guarantee applies to purchases made prior to February 9,
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2018. Compl. ¶ 66. There is no controversy, and the Court should dismiss Plaintiff’s claim for a
declaratory judgment accordingly.
V.

Conclusion

For the foregoing reasons, L.L. Bean respectfully requests that the Court grant its motion
in its entirety and dismiss Plaintiff’s Complaint with prejudice.

Dated: April 6, 2018

Respectfully submitted,

L.L. BEAN, INC.

By:

/s/ Anthony J. Anscombe
One of its attorneys

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.

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 Case: 1:18-cv-01101 Document #: 18 Filed: 04/06/18 Page 17 of 17 PageID #:64

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 DISMISS 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

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