# D&B II Enterprises, LLC v. Universal Tax Systems, Inc.

> District Court, N.D. Illinois · March 31, 2018

URL: https://www.frixlaw.com/law-library/cases/10138282

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** March 31, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10138282

## How later opinions describe it (automated extraction)

- rejecting claim that additional license terms not in plaintiff’s possession at time of purchase were procedurally unconscionable, because plaintiff could have avoided “deactivation fee” by cancelling service upon receipt of the additional terms.
- affirming trial court’s finding of unfair surprise where contract’s arbitration provision “was so difficult to find and read that the plaintiffs cannot fairly be said to have been aware that they were agreeing to it”
- noting that the parties asserting substantive unconscionability “were ‘not vulnerable consumers or helpless workers,’ but rather ‘business people who bought a franchise’”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

D&B II ENTERPRISES LLC d/b/a BAIN )
ACCOUNTING/TAX, on behalf of itself )
and all other similarly situated, )
)
Plaintiff, )
)
v. ) No. 13 C 5702
)
UNIVERSAL TAX SYSTEMS, INC. d/b/a ) Judge Rebecca R. Pallmeyer
CCH SMALL FIRM SERVICES, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff D&B II Enterprises, LLC bought computer software from Defendant Universal
Tax Systems, Inc. for the purpose of preparing and filing customers’ tax returns. The software
suffered from numerous performance problems, and Plaintiff sued Defendant for fraud. After
Judge Zagel, to whom this case was assigned, dismissed the fraud counts, Plaintiff added
several contract and quasi-contract claims and moved to certify a class of persons who
purchased the relevant software for the 2012 tax year. Defendant has moved for summary
judgment. For the reasons explained below, Defendant’s motion is granted, Plaintiff’s motion to
reconsider the dismissal of the fraud claims is denied, and Plaintiff’s motion for class
certification is stricken as moot.
BACKGROUND
The facts of this case are largely undisputed. Plaintiff D&B II Enterprises, LLC, is a
Missouri limited liability company with its principal place of business in Florissant, Missouri. The
company provides tax and accounting services for individual and business clients. (Def.’s
Statement of Material Facts (hereafter “DSOF”) [233], at ¶¶ 1, 4.) D&B’s founder, Bradley Bain,
was the company’s owner and president from 1991 until December 2015, when “certain assets”
were sold to H&R Block. (Id. at ¶¶ 2-3.) Bradley Bain holds undergraduate and graduate
degrees in Business Administration from the Southern Illinois University, and in 2012 Bain was
certified by the Internal Revenue Service as a Registered Tax Return Preparer. (Id. at ¶ 5.) At
the time of the events relevant to this lawsuit, D&B employed two accountants (of whom Mr.
Bain was one), an office manager, and a receptionist. (Id. at ¶ 4.)
Defendant Universal Tax Systems, Inc. is a Virginia corporation “with offices in
Kennesaw, Georgia” (the court presumes this is Universal’s principal place of business). (Id. at
¶ 7.) From its Georgia offices, the company does business under the trade name “CCH Small
Firm Services” and develops “ATX” brand tax software, which it sells to tax preparers for use in
the preparation of tax returns for clients. (Id.)
Plaintiff is a long-term customer of Defendant; Plaintiff purchased ATX-brand software
every year from 1991 through 2012. (Id. at ¶ 11.) Prior to 2012, ATX software worked well on
D&B’s computer network and assisted D&B in preparing tax returns for clients. (Id. at ¶ 15.) At
his deposition, Bradley Bain testified that he could not recall using any other brand of tax
software at any point in D&B’s history, but that he did recall “enter[ing] into a lot of licensing
agreements” for software. (Id. at ¶ 12; Bain Dep. 71.) Bain was asked whether, prior to the
2012 tax season, he “would just sort of automatically re-up to buy the ATX software every year,”
and Bain answered “yes.” (Dep. of Bradley Bain (hereafter “Bain Dep.”) 26, Ex. 1 to DSOF.)
Prior to purchasing ATX 2012 software, D&B received “promotional materials” for “competing
software products.” (DSOF ¶ 16.) Bain testified that he “didn’t do any big analysis” of whether
to purchase ATX software in 2012, rather than the software of a competitor. (Bain Dep. 30.)
I. D&B’s Purchase of ATX 2012
On August 16, 2012, Universal sales representative Parul Patel invited Bain via e-mail to
take advantage of an “early renewal discount” on the purchase ATX software for the 2012 tax
season. (Patel E-Mail of Aug. 16, 2012, Ex. 7 to DSOF.) Bain called Patel the same day and
confirmed that D&B wished to purchase the 2012 ATX software. (Bain Dep. 36-37.) Someone
associated with Universal (the parties do not specify whom) then e-mailed Bain a document
titled Deferred Payment Agreement. (DSOF ¶ 20). Bain testified that he signed the agreement
even though he “didn’t read all the terms and conditions. I purchased [the ATX 2012 software]
because of my prior experience with ATX.” (Bain Dep. 41.)
The Deferred Payment Agreement provided, inter alia, that D&B agreed to purchase the
ATX 2012 software for $1318, with $69 due immediately on August 16 and the remaining
balance of $1249 due on December 5, 2012. (DSOF ¶ 22; Deferred Payment Agreement
(hereafter “DPA”) 2012 Invoice and Payment Plan, Ex. 8 to DSOF.) The Deferred Payment
Agreement also stated that it “in no way modifies or amends the CCH SFS Software License
Agreement or the CCH SFS Refund Policy (see www.cchsfs.com/legal) to which Customer
acknowledges it is subject to by purchasing and using the software.” (Id. at § 3(c).)
Neither Bain nor any other representative of D&B clicked on the link noted above, or
searched Universal’s website for a “CCH SFS Software License Agreement” or a “CCH SFS
Refund Policy,” before D&B entered into the Deferred Payment Agreement (Pl.’s Resp. to
DSOF [246], at ¶ 29.) If Bain had followed the link, he would have been presented with a
website that contained several additional links, titled “Standard Software License Agreement,”
“Client Accounting Suite License Agreement,” “Intelliforms Software License Agreement,” and
“PaperlessPLUS (Scan&Fill) Software License Agreement.” (Pl.’s Statement of Add’l Material
Facts (hereafter “PSAMF”) [247], at ¶ 36; Ex. 44 to PSAMF; Def.’s Resp. to PSAMF [257], at
¶ 36.) The website also contained a link titled “Software Refund Policy (current).” (Ex. 44 to
PSAMF.)
A user who clicked the link titled “CCH SFS Refund Policy” on August 16, 2012, would
have been presented with a document titled “CCH Small Firm Services Software Refund
Policy.” (Decl. of Dennis Brown (hereafter “Brown Decl.”), at ¶ 5, Ex. 19 to Def.’s Resp. to
PSAMF; CCH Refund Policy, Ex. 9 to DSOF.) This document states, inter alia, that CCH “will
provide a full refund for tax preparation software for tax year 2012 purchased directly from CCH
SFS,” so long as the software was not used to file more than one tax return and the refund was
requested by February 28, 2013. (CCH Refund Policy § I(A).) “If the software was used for
filing of returns,” the Refund Policy continues, “a service charge of $20.00 per filed return,
starting with the 2nd return filed, will be deducted from the refund amount.” (Id.)
A user who clicked the link “Standard Software License Agreement” on August 16, 2012,
would have been presented with a document titled “CCH Small Firm Services Standard
Software License Agreement.” (Brown Decl. ¶ 6.) Section 8.3 of this document, titled “Limited
Warranty,” reads as follows:
EXCEPT AS STATED IN SUBSECTION 8.1,1 THE SOFTWARE, THE
DELIVERABLES AND ANY THIRD PARTY SOFTWARE ARE PROVIDED “AS
IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
CCH SFS DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTIES
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE,
CUSTOM OR USAGE OF TRADE. CUSTOMER BEARS THE ENTIRE RISK AS
TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND THE
DELIVERABLES. CCH SFS DOES NOT WARRANT THAT THE SOFTWARE
OR DELIVERABLES WILL BE UNINTERRUPTED, THAT THEIR USE OR
OPERATION WILL BE ERROR OR DEFECT FREE, THAT ALL APPLICATION
DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE WILL
PROPERLY OPERATE ON ANY SPECIFIC OPERATING SYSTEM OR
COMPUTER HARDWARE OR CONFIGURATIONS OR BEFORE/AFTER ANY
SPECIFIC DATE OR TIME PERIOD . . . . NO EMPLOYEE OR AGENT OF CCH
SFS OR ANY OF ITS SUBSIDIARIES OR AFFILIATES IS AUTHORIZED TO
MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE
WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT.

(Standard Software License Agreement (hereafter “2011 SSLA”) § 8.3, Ex. C to Decl. of Dennis
Brown, Ex. 19 to Def.’s Resp. to PSAMF.) Section 8.4, in turn, disclaims liability “FOR ANY
LOSS OF PROFITS, SALES, BUSINESS, DATA OR OTHER INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE,” and states that CCH SFS’s “total

1 Section 8.1 is titled “CCH SFS’ General Warranties,” and reads as follows: “CCH
SFS represents and warrants that: (i) it has title to the Software and the right to grant Customer
the rights granted hereunder; (ii) the Software and Deliverables do not violate any third party’s
United States intellectual property rights; and (iii) CCH SFS has not knowingly inserted any
virus, worm, trap door, back door, timer, clock, counter, or other limiting routine, instruction or
design that would erase data or programming or otherwise cause any system to become
inoperable or incapable of being used in the full manner for which it was designed and created.”
(Standard Software License Agreement § 8.3, Ex. C to Decl. of Dennis Brown, Ex. 19 to Def.’s
Resp. to PSAMF.)
liability” in any dispute arising out of the agreement “WILL NOT EXCEED THE TOTAL FEES
PAID OR PAYABLE FOR THE SOFTWARE HEREUNDER BY CUSTOMER.” (Id. at § 8.4.)
Section 11.1 states that “[t]his agreement, along with the Order Confirmation and any
other terms referenced by this Agreement but otherwise published by CCH SFS outside of this
Agreement, constitutes the entire and exclusive agreement . . . between Customer and CCH
SFS with respect to the Software and Deliverables to be furnished hereunder.” (Id. at § 11.1.) It
also states that “[o]ral statements made about the Software and/or Deliverables do not
constitute warranties, will not be relied on by Customer, and will not be binding or enforceable,”
and that “[n]o supplement or amendment of this Agreement will be binding unless executed in
writing by CCH SFS and Customer after reasonable opportunity to accept or reject such
supplement, modification or amendment.” (Id.)
On September 4, 2012, Defendant’s Digital Marketing Manager published an updated
version of the Standard Software License Agreement at the URL that previously hosted the
document quoted above. (Brown Decl. ¶¶ 7-8.) The portions of the two documents that are
relevant to this case are materially identical, except that the language located in sections 8.1,
8.3, 8.4, and 11.1 of the 2011 version appeared at sections 7.1, 7.3, and 7.4, and 10.1 of the
2012 version. (Id.; 2011 SSLA §§ 8.1, 8.3, 8.4, 11.1; 2012 SSLA §§ 7.1, 7.3, 7.4, 10.1, Ex. 11
to DSOF.)
D&B received the ATX 2012 software in the mail in either November or December of
2012. (DSOF ¶ 36; Pl.’s Resp. to DSOF ¶ 36.) In December 2012, Bain directed the
company’s third-party technology consultant to install the software on D&B’s server at its office
in Florissant, Missouri. (Id.) During the installation process, a pop-up box appeared on the
computer screen used by the consultant. (Id. at ¶ 37.) The pop-up box presented the
consultant with the opening paragraph of the 2012 SSLA, which stated that “[b]y installing
and/or using the Software or by otherwise indicating acceptance (electronically or otherwise) of
this Agreement, Customer acknowledges agreement to the terms set forth below.” (Id. at ¶ 38.)
The pop-up box directed, but did not require, the consultant to “Press the PAGE DOWN key to
see the rest of the agreement.” (Id.) A scroll bar, which allowed users to scroll down and view
the entire 2012 SSLA, also appeared to the right of the text on the pop-up screen. (Id.) At the
bottom of the pop-up screen, the following text appeared: “Do you accept the terms of the
preceding License Agreement? If you select No, the setup will close. To install ATX 2012, you
must accept this agreement.” (Id.)
Bain admitted at his deposition that the technology consultant “consulted with” Bain
before clicking the “Yes” button, thereby accepting the agreement and beginning the installation.
(Bain Dep. 57-58.) Bain did not scroll down to read the full text of the agreement before he
directed the consultant to click “Yes.” (Id.) “I trusted CCH,” Bain testified. “I mean, I didn’t need
to read the information. I had used them for years and I trusted CCH.” (Id. at 59.)
II. Problems with ATX 2012 Emerge
D&B first tried to use the ATX 2012 software on or shortly after the day it was installed
on D&B’s server. (Bain Dep. 159, Ex. 42 to PSAMF.) The ATX 2012 software “crashed”
immediately. (Id. at 69.) It “crashed” the following day as well, and on numerous occasions
thereafter. (Id. at 160.) Even when the software did not crash, it did not perform according to
D&B’s expectations. It processed data slowly, failed to “roll over” customers’ returns from
previous years, and was unable to “complete complex business returns.” (PSAMF ¶ 47; Def.’s
Resp. to PSAMF ¶ 47; First Am. Compl. [32], at ¶ 38(a).) Sometimes, the software presented
“calculations” on printed forms that were different from those “actually included in returns
electronically filed with the IRS.” (Id.) Bain and/or D&B’s technology consultant communicated
with Defendant’s technical service representatives 20 to 25 times between January 2013 and
April 2013. (Bain Dep. 75-76, 125-26.) Defendant’s representatives initially told Bain that the
issues he reported were caused by D&B’s computer systems, rather than the ATX 2012
software. (Id. at 77.)2 At some point, however—Bain does not specify when—unidentified
individuals from Defendant’s “support line” began saying “[t]here’s a new release coming out.
There’s a new release coming out. We’re going to fix that problem. We’re going to fix that
problem.” (Id. at 90-91.)
D&B was not alone in experiencing problems with ATX 2012. On January 15, 2013,
Defendant’s Vice President of Customer Experience, Rusty Tillman, wrote an e-mail titled “SFS
Weekly Update” that reported, among other things, “serious concerns on the floor regarding
ATX performance.” (Ex. 22 to PSAMF.) According to Tillman, “[s]preadsheet functionality,
splitting out payroll forms and speed/performance are the three main issues we are dealing with
multiple times a day.” (Id.) On February 19, 2013, Product Support Supervisor Douglas R.
Brown wrote an e-mail to CCH SFS’s new President, Jason Marx, outlining possible strategies
to “stem the tide of calls” about ATX’s “performance.” (Ex. 10 to PSAMF.) This e-mail noted
that “[a] large number of calls are from customers who are unable to rollover returns from the
prior year software, or are unable to open rolled over returns. This is the first thing most
customers do and is a key feature that is widely failing in the field.” (Id.) The e-mail also noted
that “[a] number of the issues we have encountered were identified by Tech Support reps as
weaknesses well before the release of the software.” (Id.)
Between January and April 2013, Defendant released 15 separate updates intended to
resolve problems such as “returns incorrectly generating the ‘Cannot Open Rolled Over Return’
message” and “an issue where the program closed when attempting to open a return.”
(Release Notes, Versions 12.4, 12.9, Ex. 35.) Bain testified that the updates never resolved
some or all of the problems D&B experienced with ATX 2012. (Bain Dep. 116.) Describing

2 Bain testified that one of Defendant’s representatives eventually conceded to
D&B’s technology consultant that “it wasn’t [D&B’s] problem.” (Bain Dep. 124.) The statement
from D&B’s own technology consultant to Bain regarding what Defendant’s representative told
him is hearsay.
update 12.10, which Defendant released in February 2013, Bain stated “[i]t was just maybe a
Band-Aid on a surgical wound.” (Id. at 189-90.)
Defendant made several public statements regarding its efforts to resolve the problems
with ATX 2012. On January 21, Tillman sent an e-mail addressed to “valued ATX customers,”
stating, among other things, that “[y]ou can be confident that our most recent update and those
to come will improve ATX performance.” (Ex. 26 to PSAMF.) On February 4, 2013, the
company posted a video interview with then-President Jeff Gramlich on “the ATX TV website.”
(PSAMF ¶ 17.) In this video, Gramlich stated that “we have numerous forms coming out with
this late start season, we have software updates. I would encourage our customers to stay
current with the updates.” (Id.) On March 7, 2013, the Defendant’s new President, Jason
Marx, e-mailed the company’s customers, acknowledging that “there have been challenges this
year” and apologizing for “the frustration this has caused.” (Ex. 28 to PSAMF.) “From now,
through tax season and beyond,” Marx wrote, “we will be singularly focused on making sure that
we are doing everything we can to provide you with a software solution that delivers on our
promise to you.” (Id.)
In spite of D&B’s problems with ATX 2012, the company succeeded in filing
approximately 1,300 tax returns using the software. (Pl.’s Resp. to DSOF ¶ 53.) Bain testified
that ATX 2012 caused “errors” on some of the forms D&B filed with the IRS, but Plaintiff hasn’t
provided any further information about what those errors were or how many errors occurred.
(Bain Dep. of Sept. 2016 (hereafter “Bain Dep. II”), at 160-61, Ex. 2 to DSOF; Pl.’s Resp. to
DSOF ¶ 54.) Bain also testified that he reimbursed $500 to a customer at some point (he did
not specify when), and that he believes this reimbursement was related to a penalty assessed
by the IRS. (Bain Dep. II 164-66.) Plaintiff offers no further details about this incident or any
documentation substantiating it. (Pl.’s Resp. to DSOF ¶ 55.)
D&B filed a Class Action Complaint in the Circuit Court of Cook County, Illinois, on
May 29, 2013, alleging violations of the Illinois Consumer Fraud and Deceptive Business
Practices Act (ICFA). (See Compl. [1-1].) Defendant removed the case to federal court on
August 9, 2013, and Judge James Zagel presided over the proceedings until he took senior
status in October 2016. (See Executive Committee Order [153].) Defendant filed a motion to
dismiss [28] on December 12, 2013. In lieu of responding to Defendant’s motion, Plaintiff filed a
First Amended Class Action Complaint [32] on January 15, 2014, alleging fraudulent omission,
fraudulent concealment, and breach of the implied warranty of merchantability, as well its
original ICFA claim. Defendant subsequently filed a motion for summary judgment [85], which
Judge Zagel granted as to all Plaintiff’s claims except breach of the implied warranty of
merchantability. (See Mem. Opinion and Order, June 26, 2015 [108].) “Even a finding that the
[SSLA], rather than the Payment Agreement, was the operative contract that governs the
purchase of the ATX 2012 cannot protect Universal from liability for failure to fulfill the new
promise it made to D&B that Universal would fix the ATX 2012 software,” Judge Zagel wrote.
(Id. at 4-5.) “Universal cannot now disclaim warranties and limit damages to the purchase price
when, rather than refunding D&B at the outset of its difficulties, it went outside the scope of the
original agreement for the purchase of ATX 2012 to salvage its business relationships by
attempting to fix its defective software.” (Id. at 5.)
Following this lead, Plaintiff filed a Second Amended Class Action Complaint [113] the
following month, adding claims for breach of an implied-in-fact contract to repair the ATX 2012
software, unjust enrichment, and promissory estoppel. On May 5, 2017, Plaintiff asked this
court to reconsider Judge Zagel’s summary judgment order with regard to Plaintiff’s ICFA claim.
The same day, Plaintiff moved to certify a class consisting of “[a]ll persons that purchased CCH
SFS’s ATX 2012 professional tax software for use in preparing individual and business tax
returns for the 2012 tax year.” (Pl.’s Mem. in Supp. of Mot. for Class Cert. [216], at 2.) On May
10, 2017, this court stayed class-certification proceedings [230] pending resolution of
Defendant’s Motion for Summary Judgment [231]. That motion and Plaintiff’s Motion for
Reconsideration [209] are now before the court.
DISCUSSION
To prevail on a motion for summary judgment, the moving party must show that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). A fact is material if it “might affect the outcome of the suit under the
governing law.” Burton v. Downey, 805 F.3d 776, 783 (7th Cir. 2015) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is genuine where “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248. The moving party’s burden “may be discharged by ‘showing’ – that is, pointing out to the
district court – that there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
I. Implied warranty of merchantability
The Illinois Uniform Commercial Code allows merchants to disclaim the implied warranty
of merchantability, provided they do so using “conspicuous” language that “mention[s]”
merchantability. 810 ILCS 5/2-316(2). The parties may disclaim all implied warranties “by
expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls
the buyer’s attention to the exclusion of warranties and makes plain that there is no implied
warranty.” Id. at § 5/2-316(3)(a).
Defendant contends it made such a disclaimer in this case, and Plaintiff does not argue
that the disclaimer of warranties in the 2012 SSLA is insufficient as written. Rather, Plaintiff
argues that the 2012 SSLA is unenforceable for one or more of the following reasons: (1)
Plaintiff never agreed to the 2012 SSLA, and the Deferred Payment Agreement (to which
Plaintiff did agree) did not incorporate the 2012 SSLA by reference; (2) enforcement of the 2012
SSLA would be procedurally unconscionable; and (3) enforcement of the 2012 SSLA would be
substantively unconscionable. The court considers these arguments in turn.
a. Incorporation by reference
“For a contract to incorporate all or part of another document by reference, the reference
must show an intention to incorporate the document and make it part of the contract.” 188 LLC
v. Trinity Industries, Inc., 300 F.3d 730, 736 (7th Cir. 2002) (quoting Wilson v. Wilson, 217 Ill.
App. 3d 844, 577 N.E.2d 1323, 1329 (1st Dist. 1991)). Under Illinois law, evidence of this
intention to incorporate must be “clear and specific.” Id. (citing Kirschenbaum v. Northwestern
Univ., 312 Ill. App. 3d 1017, 728 N.E.2d 752, 762 (1st Dist. 2000)).
Plaintiff first claims that the Deferred Payment Agreement (DPA) does not incorporate
the 2012 SSLA by reference because the language in the DPA is insufficiently “clear and
specific.” Plaintiff does not dispute that section 3(c) of the DPA states that the agreement “in no
way modifies or amends the CCH SFS Software License Agreement or the CCH SFS Refund
Policy (see www.cchsfs.com/legal) to which Customer acknowledges it is subject to by
purchasing and using the software.” But Plaintiff claims that “[t]he phrase ‘subject to’ is
insufficient.” (Pl.’s Resp. Br. [246], at 8 n.5.)
Neither of the cases Plaintiff cites for this contention supports it. In 188 LLC, the
Seventh Circuit considered whether a contract for the lease of railroad tanker cars incorporated
a limitation of remedies provision located in a separate document titled “Trinity Railcar Repair
General Terms and Conditions Form 4.” 300 F.3d at 733. The only purported reference to
Form 4 in the parties’ contract was the following statement: “Sales of all services and materials
are subject to the general terms and conditions on the reverse side [of the contract].” Id. The
parties disputed whether anything at all was printed on the reverse side of the contract, but
Defendant argued that because the contract expressly included certain terms and conditions
that also appeared on Form 4, the parties had agreed to incorporate the entirety of Form 4 into
the contract regardless of whether it was printed on the back of the contract. Id. The district
court held that the language “[s]ales of all services and materials are subject to the general
terms and conditions on the reverse side” was sufficient to incorporate Form 4 into the contract,
even if Form 4 did not actually appear on the reverse side of the contract. Id. at 736. The
Seventh Circuit reversed, explaining only that the contract “does not specifically refer to Form 4
or any specific set of terms and conditions.” Id. at 737.
Plaintiff appears to believe that because the Seventh Circuit found that a sentence that
contained the phrase “subject to” did not incorporate another document by reference, any
sentence containing the phrase “subject to” is, as a matter of law, insufficient evidence of the
parties’ intent to incorporate another document by reference. That is not what 188 LLC held.
Although the court did not explain its reasoning in detail, its conclusion that the sentence was
insufficient was clearly based on the complete absence of any reference to the supposedly
incorporated document (that is, Form 4), and not the supposed ambiguity of the phrase “subject
to.” The court’s one-sentence explanation of its reasoning states that “[t]he incorporation clause
on the face of the [contract] does not specifically refer to Form 4 or any specific set of terms and
conditions.” Id. at 737 (emphasis added). The court did not discuss the sufficiency of the
phrase “subject to” at all. Id.
Plaintiff’s other case offers no more support for the supposed insufficiency of the phrase
“subject to.” In that case, the parties disputed whether an arbitration clause in one contract
between the parties extended to disputes arising from another contract between the same
parties. Bd. of Managers of Chestnut Hills Condominium Ass’n v. Pasquinelli, Inc., 354 Ill. App.
3d 749, 822 N.E.2d 12 (1st Dist. 2004). Defendant argued that the contract without the
arbitration clause incorporated by reference the contract that contained one, because the
contract without an arbitration clause included the following language: “[p]urchaser has read and
understood the terms of the sample copy of the [contract containing an arbitration clause],
including any provision that may require all disputes that arise under the [contract with an
arbitration clause] to be submitted to arbitration.” Id. at 735 (emphasis removed). The court
concluded that a mere reference “to the existence” of the other contract did not show an intent
to incorporate that other contract by reference. Id.
Here, unlike the referring contract in Pasquinelli, the Deferred Payment Agreement does
more than simply mention the existence of the “CCH SFS Software License Agreement.” It
states that the parties are “subject to” that agreement. Since neither of the parties contends that
Plaintiff had already entered into the SSLA at the time Plaintiff executed the Deferred Payment
Agreement, the only way Plaintiff could be “subject to” the SSLA is if the DPA incorporates the
SSLA by reference.
Plaintiff next argues that the DPA’s description of the SSLA as an “other” agreement, in
the title of DPA Section 3(c), along with references to “this” agreement in other sections of the
DPA, “makes clear” that the DPA does not incorporate any “other” agreements by reference.
(Pl.’s Resp. Br. 8-9.) This argument is not persuasive. Language distinguishing one document
from another does not automatically preclude incorporation by reference. If anything, such
language may be a prerequisite for incorporation by reference, as the concept of incorporation
by reference implies the existence of an incorporating document that is distinguishable from the
document being incorporated. In the absence of an “other” document, there would be nothing
for “this” document to incorporate.
As Defendant notes in its Reply Brief, the parties’ dispute about whether the DPA
incorporated the SSLA by reference is arguably superfluous, because even if the court were to
conclude that the DPA does not incorporate the SSLA by reference, Plaintiff agreed to be bound
by the SSLA when it clicked “Yes” on the pop-up box containing the SSLA and began
installation of the ATX 2012 software. (Def.’s Reply Br. 3.) Plaintiff responds that there cannot
have been any manifestation of mutual intent to be bound by additional terms that were not
included in the DPA, either because the DPA “is not conditioned on later acceptance of a
license agreement,” or else because “neither the Payment Agreement nor the [SSLA] indicates
that an ATX 2012 purchaser could avoid the unacceptable license terms by returning ATX 2012
for a full refund.” (Pl.’s Resp. Br. 10.) It is true, as Plaintiff notes, that “shrinkwrap” contracts—
that is, contracts for the sale of tangible goods that do not inform the purchaser of the specific
terms governing his use of the goods until after the purchase is complete—are, as a general
rule, enforceable only if the purchaser was provided notice of the existence of additional terms
before the purchase, and if the purchaser subsequently had an opportunity to reject additional
terms he found unacceptable by returning the purchased goods for a full refund. See, e.g.,
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (“Notice on the outside, terms on the
inside, and a right to return the software for a refund if the terms are unacceptable . . . may be a
means of doing business valuable to buyers and sellers alike.”). But Plaintiff did, in fact, receive
the requisite notice and opportunity to return the ATX 2012 software. The Deferred Purchase
Agreement referred to an additional agreement to which Plaintiff’s purchase and use of the
software was “subject,” and Defendant’s Refund Policy expressly provided Plaintiff with a
contractual right to return the software for a full refund, so long as Plaintiff requested such a
refund before February 28, 2013, and did not use the software to file more than one tax return.
In sum, this court rejects Plaintiff’s arguments that it cannot be bound by SSLA’s
disclaimer of the implied warranty of merchantability because it never agreed to be bound by the
SSLA in the first place. The DPA incorporated the SSLA by reference, but even if it didn’t,
Plaintiff subsequently agreed to be bound by the additional terms in the SSLA when Plaintiff
directed its agent to click “Yes” on the pop-up box, thereby beginning installation of the ATX
2012 software.3

3 Plaintiff also argues that the SSLA cannot have been a valid modification of the
DPA because Defendant did not provide any consideration for the modification. (See Pl.’s
Resp. Br. 17-18.) But Plaintiff itself concedes that the validity of this argument depends on the
agreements in question being governed by the common law of contracts, rather than the
relevant sections of the Illinois Uniform Commercial Code. Under Illinois law, the UCC applies
to the sale of software so long the services provided along with the sale are “not substantially
different from those generally accompanying package sales of computer systems consisting of
hardware and software.” Dealer Mgmt. Systems, Inc. v. Design Automotive Group, Inc., 355 Ill.
App. 3d 416, 421, 822 N.E.2d 556, 561 (2d Dist. 2005). “Such ancillary services include
installation, training, and technical support.” Id. Here, there is no evidence that Plaintiff
b. Procedural Unconscionability
Even if Plaintiff did agree to be bound by the disclaimer of implied warranties, it would
not be enforceable if “some impropriety during the process of forming the contract depriv[ed
Plaintiff] of a meaningful choice.” Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 23, 857 N.E.2d
250, 264 (2006). “Procedural unconscionability refers to a situation where a term is so difficult
to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was
agreeing to it.” Id. (citation omitted). “Factors to be considered in determining whether an
agreement is procedurally unconscionable include whether each party had the opportunity to
understand the terms of the contract, whether important terms were ‘hidden in a maze of fine
print,’ and all of the circumstances surrounding the formation of the contract.” Phoenix Ins. Co.
v. Rosen, 242 Ill. 2d 48, 60, 949 N.E.2d 639, 647 (2011).
Plaintiff’s argument about procedural unconscionability centers on Defendant’s
substitution of the 2012 SSLA on Defendant’s website for the 2011 SSLA on September 4,
2012. Because Plaintiff only had access to the 2011 SSLA when Plaintiff entered into the
Deferred Purchase Agreement on August 16, 2012, Plaintiff argues, it “cannot fairly be said to
have been aware [it] was agreeing to” the terms of the 2012 SSLA, Kinkel, 223 Ill. 2d at 23, 857
N.E.2d at 264.
Plaintiff analogizes his case to Trujillo v. Apple Computer, Inc., 578 F. Supp. 2d 979
(N.D. Ill. 2008) (Kennelly, J.), but Trujillo is distinguishable from this case. In Trujillo, another
court in this district concluded that the purchaser of an Apple iPhone could not be bound by an
arbitration clause located in terms of service to which the plaintiff-customer purportedly
accepted, because those terms of service were not realistically available to the plaintiff at the
time of his acceptance. As in this case, the defendant argued that the agreement was not

received services along with its contract to purchase and license ATX 2012 beyond the single
“ancillary” service of technical support. The court concludes that the UCC governs Plaintiff’s
purchase and license, and therefore rejects Plaintiff’s argument with regard to the absence of
consideration to support modification.
procedurally unconscionable because the terms were posted on defendant’s website at the time
of the plaintiff’s acceptance. Also as in this case, the defendant subsequently conceded that the
version of these terms that was posted on its website at the time of the plaintiff’s agreement was
“out-of-date.” Id. at 989. It is unclear, however, whether the relevant terms of the contracts in
Trujillo were materially identical, as they are here. And there was “no evidence—none—
regarding how Trujillo would have known, before or when he purchased the iPhone, that the
service terms were available on the Internet, let alone how to find them.” Id. In this case, the
Deferred Service Agreement expressly notified Plaintiff that an agreement to which it was
agreeing to be “subjected” was available for review at a specific URL. At the least, this provided
Plaintiff with advance notice that it would be required to agree to additional terms, not spelled
out in the DPA, in order to use the ATX 2012 software. It also put Plaintiff on notice that it would
be eligible for a full refund of the purchase price if Plaintiff returned the software, without using it
to file more than one tax return, before February 28, 2013. Trujillo, by contrast, had already
purchased the iPhone when he first “saw or had access to” the additional terms. Id. at 993.
Trujillo also would not have been eligible for a full refund had he known about, and rejected, the
additional terms. Id.
In sum, the fact that it was the 2011 version of the SSLA, rather than the 2012 version,
that was available to Plaintiff at the time it agreed to purchase ATX 2012 software was not
obviously prejudicial to Plaintiff’s ability to “find, read, or understand” the terms of the contract to
which he agreed, or to reject those terms without material penalty if they were unacceptable.
See Bess v. DirecTV, Inc., 381 Ill. App. 3d 229, 238-39, 885 N.E.2d 488, 496-97 (5th Dist. 2008)
(rejecting claim that additional license terms not in plaintiff’s possession at time of purchase
were procedurally unconscionable, because plaintiff could have avoided “deactivation fee” by
cancelling service upon receipt of the additional terms.)
c. Substantive Unconscionability
“Substantive unconscionability concerns the actual terms of the contract and examines
‘the relative fairness of the obligations assumed,’ asking whether the terms are ‘so one-sided as
to oppress or unfairly surprise an innocent part.’” Phoenix Ins. Co., 242 Ill. 2d at 60, 949 N.E.2d
at 647. Although “[s]ubstantive unconscionability concerns the actual terms of the contract,”
Kinkel, 223 Ill. 2d at 28, 857 N.E.2d at 267 (citation omitted), rather than the fairness of the
process by which the contract was formed, “considerations like [a party’s] being a sophisticated
actor which accepted the same terms repeatedly over several years remain relevant.”
ChampionsWorld, LLC v. U.S. Soccer Federation, Inc., 890 F. Supp. 2d 912, 945 (N.D. Ill. 2012)
(Leinenweber, J.) See also We Care Hair Development, Inc. v. Engen, 180 F.3d 838, 843 (7th
Cir. 1999) (noting that the parties asserting substantive unconscionability “were ‘not vulnerable
consumers or helpless workers,’ but rather ‘business people who bought a franchise’”) (quoting
Original Great American Chocolate Chip Cookie Co., Inc. v. River Valley Cookies, Inc., 970 F.2d
273, 281 (7th Cir. 1992)).
Plaintiff first suggests that Defendant subjected it to “unfair surprise” by providing an
inferior product when Plaintiff “believed the software would function as before.” (Pl.’s Resp. Br.
15.) But this is not the type of surprise that is relevant to unconscionability. It is surprise as to
the terms of a contract, not the quality of the product that plaintiff agreed to buy, that can be a
warning sign of unconscionability. See, e.g., Timmerman v. Grain Exchange, LLC, 394 Ill. App.
3d 189, 197, 915 N.E.2d 113, 121 (5th Dist. 2009) (affirming trial court’s finding of unfair
surprise where contract’s arbitration provision “was so difficult to find and read that the plaintiffs
cannot fairly be said to have been aware that they were agreeing to it”).
Plaintiff next argues that the SSLA’s disclaimer of liability for lost profits, incidental
damages, and consequential damages deprived Plaintiff of “minimum adequate remedies.”
(Pl.’s Resp. Br. 16.) But the contract permits Plaintiff to recover “the total fees paid or payable”
by Plaintiff for the ATX 2012 software (2012 SSLA § 7.4), and Illinois courts have rejected
unconscionability challenges to similar limitations on damages in the past. See Halloran &
Yauch, Inc. v. Roughneck Concrete Drilling & Sawing Co., 2013 IL App. (1st) 131059-U ¶¶ 52-
53 (1st Dist. 2013) (citing cases). Plaintiff cites no reason for this court to believe that such a
limitation is more problematic here, or in the context of software licensing agreements generally,
than in Halloran & Yauch or the cases cited therein. Nor has Plaintiff presented evidence to
support its contention that the limitation on liability and/or the disclaimer on implied warranties
undermined the core purpose of the bargain between the parties, by permitting Defendant to
deliver, free from any consequences, the equivalent of “an automobile without an engine,”
Blankenship v. Northtown Ford, Inc., 95 Ill. App. 3d 303, 307, 420 N.E.2d 167, 171 (4th Dist.
1981).
Plaintiff does suggest that Defendant’s purported failure to “disclose known defects”
about the ATX 2012 software “is relevant.” (Pl.’s Resp. Br. 16.) Plaintiff analogizes this case to
Skeen v. BMW of North America, LLC, where a New Jersey court concluded that a group of
plaintiffs “adequately alleged substantive unconscionability by claiming that Defendants knew”
about certain latent defects in their products “and manipulated the warranty terms to avoid
paying for it.” No. 2:13-cv-1531-WHW-CLW, 2014 WL 283628, at *14 (D.N.J. Jan. 24, 2014).
But D&B has not alleged that Defendant “manipulated the warranty terms to avoid paying for”
the problems D&B and other customers experienced when using ATX 2012, much less
presented actual evidence of knowing manipulation. It appears that Defendant began including
the warranty disclaimers in its licensing agreements months, if not years, before Defendant first
became aware of ATX 2012’s flaws. (See 2011 SSLA §§ 8.3, 8.4.)
The agreement in this case was entered into by two experienced business entities.
Although it limited Defendant’s potential liability for breaches of the agreement, it did not
insulate Defendant from all liability under the contract or permit Defendant to entirely avoid
performance of its core contractual obligation. Defendant did not obtain Plaintiff’s consent to the
agreement’s terms through unfair surprise, and Plaintiff has presented no evidence that
Defendant “manipulated” the warranty terms based on insider knowledge of flaws in its
products. This court therefore rejects Plaintiff’s argument that the 2012 SSLA is substantively
unconscionable.
II. Implied-in-fact contract to repair
Even if the SSLA precludes Defendant’s liability for breach of the implied warranty of
merchantability, Plaintiff contends that the parties entered into a new, implied-in-fact contract to
repair the defects in the ATX 2012 software. (Pl.’s Resp. Br. 21-23.) “Contracts implied in fact
arise from a promissory expression that is inferred from circumstantial evidence of an intent to
be bound.” Zadrozny v. City Colleges of Chicago, 220 Ill. App. 3d 290, 295, 581 N.E.2d 44, 47
(1st Dist. 1991). The elements of both implied and express contracts are the same under Illinois
law: “offer, acceptance, and consideration.” Nissan N. Am., Inc. v. Jim M’Lady Oldsmobile, Inc.,
486 F.3d 989, 996 (7th Cir. 2007).4 “The parties’ minds must meet through offer and
acceptance, and the contract must be definite in its terms.” Lirtzman v. Fuqua Industries, Inc.,
677 F.2d 548, 551 (7th Cir. 1982).
Plaintiff claims that Defendant’s “numerous post-sale and delivery assurances that it
could and would fix the defects in the ATX 2012 software” constitute “promissory expressions”
that demonstrate Defendant’s intent enter into a new contract to repair. (Pl.’s Resp. Br. 22.)
Defendant, however, points to language in section 10.1 of the 2012 SSLA (and section 11.1 of
the 2011 SSLA), which Defendant says prohibits any claim that Defendant’s (or its agents’)
“assurances” constitute evidence of Defendant’s intent to enter into a new contract. These
sections read as follows: “Oral statements made about the Software and/or Deliverables do not
constitute warranties, will not be relied on by Customer, and will not be binding or enforceable.”
They go on to state that “[n]o supplement or amendment of this Agreement will be binding

4 So too for Georgia and Missouri law. See Lockett v. Allstate Ins. Co., 364 F.
Supp. 2d 1368, 1380 (M.D. Ga. 2005); Follman Prop. Co. v. Henty Const. Co., Inc., 664 S.W.2d
248, 250 (Mo. Ct. App. 1983).
unless executed in writing by CCH SFS and Customer after reasonable opportunity to accept or
reject such supplement, modification or amendment.”
The language in these provisions appears to prohibit exactly the kind of implied-in-fact
contract Plaintiff claims was formed as a result of Defendant’s representations. Bradley Bain
testified that unidentified individuals from Defendant’s “support line” told him “[t]here’s a new
release coming out. There’s a new release coming out. We’re going to fix that problem. We’re
going to fix that problem.” (Bain Dep. at 90-91.) These are “oral statements made about the
Software,” and the SSLA to which D&B agreed expressly provided that they “do not constitute
warranties, will not be relied on by Customer, and will not be binding or enforceable.” So too
with then-President Gramlich’s assertions, in an online video interview on February 4, 2013, that
“we have software updates,” and “I would encourage our customers to stay current with the
updates.” (PSAMF ¶ 17.) These oral representations about ATX 2012 cannot be binding or
enforceable because of the SSLA.
Vice President Tillman’s January 21 e-mail to ATX customers—which stated “[y]ou can
be confident that our most recent update and those to come will improve ATX performance” (Ex.
26 to PSAMF)—is somewhat more complicated. This was a written communication, not an oral
representation. So, too, was President Marx’s March 7 avowal, in another e-mail to ATX
customers, that Defendant would “be singularly focused on making sure that we are doing
everything we can to provide you with a software solution that delivers on our promise to you.”
(Ex. 28 to PSAMF.) These representations are not prohibited by the language relating to “oral
statements.” But they nevertheless fit within the next disclaimer in the SSLA on “supplement[s]”
to the SSLA that were not “executed in writing by CCH SFS and Customer.” (emphasis added)
Even if one or both of Tillman and Marx’s e-mails are construed as written offers from
Defendant, “Customer”—that is, D&B—never accepted that offer in writing. Any contractual
obligation that might otherwise have been formed by the parties’ conduct here was expressly
disclaimed in the SSLA.
Plaintiff argues that, as a matter of law, “[a] disclaimer of extra-contractual
representations applies only to previous or contemporaneous representations, not subsequent
representations.” (Pl.’s Resp. Br. 20.) It cites the Seventh Circuit’s decision in Williams v. Jader
Fuel Co. to support this assertion, but Plaintiff has overstated the holding in that case. Jader
Fuel Company entered into an agreement in late 1981 with Lovilia Coal Company and its owner,
Billie Williams, granting Lovilia the exclusive right to exercise Jader’s rights to mine two seams
of coal. 944 F.2d 1388, 1391 (7th Cir. 1991). Lovilia agreed to mine these seams continuously
until they were depleted; Jader agreed to market the coal Lovilia extracted and pay Lovilia 70%
of the sale price. Id. The agreement also contained terms relating to a second, adjacent tract of
land, where Jader had not yet acquired mining rights but expected to in the future. Id. The
parties agreed that Lovilia would obtain permission from Jader before it mined coal on the
second parcel; though the agreement did not expressly require that Jader provide this
permission in writing, it did include a provision stating that “[a]ny and all notices provided for
herein shall be in writing,” as well as a merger clause and a provision requiring that any
modifications to be in writing. Id. Later, Lovilia began mining seams under the second parcel
without Jader’s permission, only to suffer significant damage to one of Lovilia’s underground
tunnels caused by Jader’s activities in strip mining that parcel itself. Id. at 1392.
Williams sued Jader in federal district court, alleging, inter alia, breach of the parties’
implied covenant of good faith and fair dealing. Jader argued that any such implied duty would
contradict the explicit terms of the parties’ agreement—namely, the provisions requiring Lovilia
to obtain Jader’s permission before mining on the second parcel, and the provision prohibiting
oral modifications to the contract and requiring that notices under the contract be made in
writing. Id. at 1394. Williams argued that Jader had given Lovilia oral permission to mine under
the second tract, but the district court concluded that evidence of a supplemental oral
agreement was barred by the parol evidence rule. Id. The Seventh Circuit reversed. The court
observed that Williams was not offering evidence of additional terms entered into prior to or
contemporaneously with the parties’ written agreement, but rather evidence suggesting that the
parties agreed to modify their agreement after it had expired. Id. “Neither the parties’ inclusion
of a merger clause nor the parol evidence rule bars the introduction of evidence of modifications
occurring after the formation of a contract,” the court explained. Id.
Williams does not establish, as D&B suggests, a general rule that “[a] disclaimer of
extra-contractual representations applies only to previous or contemporaneous representations,
not subsequent representations.” (Pl.’s Resp. Br. 20.) Rather, Williams held that neither the
parol evidence rule nor the specific merger clause at issue barred the court from considering
extrinsic evidence relating to oral representations purporting to modify the contract after it was
formed. The court did not consider the question of whether a contracting party may disclaim
implied-in-fact contractual liabilities that are premised on oral representations made subsequent
to the parties’ written contract.
This court does not belief such a disclaimer is unenforceable as a matter of law.
Plaintiff’s claim for breach of an implied-in-fact contract to repair ATX 2012 is barred by section
10.1 of the 2012 SSLA.
III. Unjust Enrichment
Defendant argues that Plaintiff’s quasi-contractual claim for unjust enrichment is barred
because “no quasi-contractual claims exist when there is an enforceable contract.” (Def.’s Mot.
for Summ. J. [232], at 9.) A more accurate characterization of the rule is that “when two parties’
relationship is governed by contract, they may not bring a claim of unjust enrichment unless the
claim falls outside the contract.” Duffy v. TicketReserve, Inc., 722 F. Supp. 2d 977, 993 (N.D. Ill.
2010) (emphasis added) (citing Utility Audit, Inc. v. Horace Mann Service Corp., 383 F.3d 683,
688-89 (7th Cir. 2004)). Plaintiff’s claim in this case, that Defendant was unjustly enriched by
its representations regarding updates to the 2012 ATX software, does not fall outside the
parties’ contract. As the court explained in the previous section of this opinion, section 10.1 of
the 2012 SSLA bars a claim for breach of an implied-in-fact agreement premised on these
representations.
IV. Illinois Consumer Fraud and Deceptive Business Practices Act
Finally, Plaintiff has asked the court to reconsider Judge Zagel’s decision to grant
summary judgment for Defendant on Plaintiff's claim under the Illinois Consumer Fraud and
Deceptive Business Practices Act (ICFA), 815 ILCS 505/1, et seg. (See Mot. for
Reconsideration [209].) Plaintiffs motion is denied, because D&B has not presented any
evidence that any of the circumstances relating to its allegations of fraud took place “primarily
and substantially in Illinois.” See Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100, 187,
835 N.E.2d 801, 854 (2005) (“[A] plaintiff may pursue a private cause of action under [ICFA] if
the circumstances that related to the disputed transaction occur primarily and substantially in
Illinois.”); Morrison v. YTB Intern., Inc., 649 F.3d 533, 537 (7th Cir. 2011) (dismissal of ICFA
claim on grounds of insufficient connection to Illinois was improper, where complaint alleged
that defendant was headquartered in Illinois, relevant “deals” were either “executed” or were
“accepted” in Illinois, and relevant payments “were sent to [defendant] in Illinois”); Shaw v. Hyatt
Int'l Corp., No. 05 5022, 2005 WL 3088438 (N.D. Ill. Nov. 15, 2005) (allegations that defendant
has headquarters in Illinois and that choice-of-law provision designated Illinois law to govern the
dispute were insufficient to state ICFA claim), aff'd 461 F.3d 899 (7th Cir. 2006).
CONCLUSION
Plaintiffs Motion to Reconsider [209] is denied. Defendant’s Motion for Summary
Judgment [231] is granted. Plaintiff's Motion for Class Certification [212] is terminated as moot.

ENTER:

Dated: March 31, 2018
REBECCA R. PALLMEYER
United States District Judge
23

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10138282. Public record. Not legal advice.