# Moore v. Compass Group USA, Inc.

> District Court, E.D. Missouri · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10237726

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 30, 2022
- **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/10237726

## How later opinions describe it (automated extraction)

- concluding that the ICFA does not apply to fraudulent transactions that occur primarily and substantially outside Illinois
- affirming the district court’s decision to strike multi-state class claims based on various states’ consumer see also Loreto v. Procter & Gamble Co. protection statutes because those claims “would be measured by the legal requirements of different state laws”
- affirming dismissal of multi-state claims under the consumer protection laws of Coe v. Philips Oral Healthcare, Inc. 49 states because of the “material differences between the States’ consumer protection laws”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
on behalf of themselves and all
GotEhOeRrsG sEim MilOaOrlRy Esi taunadt eVdIRGINIA CARTER, )
et al., )
, )
)
Plaintiffs, )
v. ) Case No. 4:18-cv-01962-SEP
)
COMPASS GROUP USA, INC., d/b/a )
CANTEEN, )
)
MEMORANDUM AND ORDER
Defendant. )

Before the Court is Defendant Compass Group USA, Inc.’s Motion to Dismiss. Doc. 134.
The Motion is fully briefed and ready for disposition. For the reasons set forth below, the
Motion is granted in part and deniFeAdC iTnS pAaNrDt .B ACKGROUND1
Defendant Compass Group USA, Inc. owns, operates, and maintains vending machines
in Missouri, Illinois, California, Texas, and 29 other states. Doc. 126 ¶ 9. Defendant uses so-
called “two-tier pricing” on its machines; that is, it charges 10 cents more for purchases paid
Unlabeled machines
for with a card than it does for purchases paid for with cash. Defendant uses three different
types of machines, depending on the state: display only the cash price
Single-price labeled machines
and do not have any label or other signage informing consumers that card users will be
charged an additional 10 cents. display only the cash price but
Dual-price machines
have a label informing consumers that card purchasers will be charged an additional 10
cents. display both the cash price and the higher card price for each
item.
This putative class action is based on the primary allegation that named Plaintiffs and
putative class members were charged more money for card purchases than the cash prices
displayed on Defendant’s vending machines. Plaintiffs bring claims based on Defendant’s

1 See Neitzke v. Williams
For purposes of this Motion, the following facts from Plaintiffs’ Amended Consolidated Class Action
use of unlabeled and single-price labeled machines; they do not dispute the lawfulness of
Defendant’s dual-price machines.
Plaintiff George Moore is a Missouri citizen who used a prepaid card to purchase
items from Defendant’s unlabeled vending machines located in St. Louis and was allegedly
charged more than the displayed price. Doc. 126 ¶¶ 3, 34, 36, 38. Plaintiff Virginia Carter
was an Illinois citizen who used a debit card to purchase items from Defendant’s unlabeled
Id.
vending machines located in St. Louis and was also allegedly charged more than the
2
displayed price. ¶¶ 4, 10, 34, 36, 38, 45. Plaintiff James Jilek is a California citizen who
Id.
used a credit card to purchase items from Defendant’s unlabeled vending machines in El
Segundo, California, and was allegedly charged more than the displayed price. ¶¶ 5, 41,
44. Plaintiff Francis Jaye is a Texas citizen who used a debit card to purchase items from
Id.
Defendant’s unlabeled vending machines in Dallas, Texas, and was allegedly charged more
than the displayed price. ¶¶ 6, 51, 55. Plaintiff Sean Madelmayer is a Texas citizen who
Id.
used a debit card to purchase items from Defendant’s unlabeled vending machines in Dallas,
see
Texas, and was allegedly charged more than the displayed price. ¶¶ 7, 51, 55.
see
Moore originally filed his petition in Missouri state court, Doc. 4, and Defendant
removed the case to this Court in November 2018, Doc. 1. In December 2018, Moore filed
an amended complaint, in which Carter joined as a named plaintiff. Doc. 15. Jilek filed an
see
identical lawsuit in California state court, and Defendant removed it to the United States
see id.
District Court for the Central District of California, Doc. 48 ¶¶ 4, 7. Jilek’s case was
see
subsequently transferred to this District in December 2019, ¶ 8, and his case was
consolidated into Moore and Carter’s case in April 2020, Doc. 56. Jaye and Madelmayer
See .
filed an identical action in Texas state court, and in June 2019, Defendant removed it to the
See id.
United States District Court for the Northern District of Texas. Doc. 59 ¶ 4 The Northern

District of Texas transferred the case to this District in February 2020. ¶ 5. In June
See
2020, Defendant requested that this Court consolidate Jaye and Madelmayer’s case into
Moore, Carter, and Jilek’s case. Doc. 59. The Court granted Defendant’s request in August

2
Carter was an Illinois citizen at the time of the alleged purchase, but is now a citizen of Missouri.
see Moore v.
Compass Group, Inc
2020, Doc. 63, and all four cases were consolidated into the present case:
., No. 4:18-cv-01962-SEP.
3
In April 2021, Plaintiffs filed their 12-count Consolidated Class Action Complaint
(“Consolidated Complaint”), Doc. 91, alleging that Defendant’s vending machines provided
consumers with no information regarding the price difference between cash and card
purchases. Specifically, Plaintiffs alleged that they purchased items from machines that
displayed only the cash price for each of the machine’s goods and contained “no sign or other
indication on the vending machine signifying that the purchaser’s card would be charged
[ten cents] more than the displayed price,” if the purchaser used a card instead of cash. Doc.
91 ¶¶ 24-25, 31, 35-36, 43, 46-47. Apparently as evidence that “it would have been feasible”
for Defendant to have warned consumers of the difference between cash and card pricing,
the Consolidated Complaint alleged that, “after this lawsuit was filedT,h Dee pfernicdeasn td bisepgalany teedll ionng
tthhee trmuathc hoinn iet sa vreen d1i0n gc menactsh inloews”e bry tahdadnin tgh ae l arbeetla tihl apt rsitcaete dan: d“ are available on cash
purchases only
See
.” Doc. 91 at 11. The Consolidated Complaint expressly excluded anyone
who purchased items from Defendant’s labeled machines from the putative class. Doc.
91 ¶¶ 55-59. The Consolidated Complaint was thus predicated solely on the deceptiveness
See
and unfairness of unlabeled machines, and Plaintiffs expressly disclaimed any challenge to
Defendant’s “truth[ful]” use of single-price labeled machines. Doc. 91 at 11.
On October 14, 2021, Plaintiffs filed their Amended Consolidated Class Action
Complaint (Amended Complaint). Doc. 126. The Amended Complaint added allegations
See
about single-price labeled machines and revised the class definitions to include consumers
who purchased items from such machines. Doc. 126 ¶¶ 28, 56, 58-61. Plaintiffs now
seek to represent “[a]ll persons or entities who . . . purchased an item from [Defendant’s]
Id. id.
vending machines . . . and were charged an amount in excess of the price displayed for that
item,” ¶ 56, regardless of whether the machine had a label or not, ¶¶ 31, 42, 52, 56, 58-
61.

3
TCoheu nAtm I:e nded bCroemapchla oinft c, oDnotcr. a1c2t6 (, Pinlacliundtiefsfs f oaunrdte neant icoonuwntisd:4e c lass);
Count II: violation of the MMPA, deception (Moore and Missouri subclass);
Count III: violation of the MMPA, unfair practices (Moore and Missouri
subclass);
Count IV: unjust enrichment (Moore and Missouri subclass);
Count V: money had and received (Moore and Missouri subclass);
Count VI: violation of the ICFA (Carter and Illinois subclass);
Count VIII: unjust enrichment (Carter and Illinois subclass);
Count IX: money had and received (Carter and Illinois subclass);
Count X: violation of the California UCL (Jilek and California subclass);
Count XI: violation of the California CLRA (Jilek and California subclass);
Count XII: violation of the Texas DTPA (Jaye, Madelmayer, and Texas
subclass);
Count XIII: unjust enrichment (Jaye, Madelmayer, and Texas subclass);
Count XIV: violation of multiple states’ commercial unfairness statutes
(Plaintiffs and multi-state unfairness class);
Count XV: violation of multiple states’ commercial deception statutes
(Plaintiffs and multi-state deception class)
.
Defendant filed the Motion to Dismiss pursuant to Federal Rules of Civil Procedure
see
12(b)(1), (2), and (6). Defendant argues that: Plaintiffs lack standing to assert any claims
see
based on the new allegations regarding single-price labeled machines, Doc. 135 at 6; that
id.
Plaintiffs lack standing to represent the multi-state class members in Counts XIV and XV,
seeid.
at 8; that the nationwide class and the non-Missouri sub-classes should be dismissed for
lack of personal jurisdiction, at 9; that the nationwide class and multi-state subclasses
see id.
are procedurally improper and Rule 23 is unsuitable to address the multi-state class
see id.
allegations in Counts XIV and XV, at 8, 9-13; that Counts XIV and XV fail to plead the
elements for the included states’ consumer protection statutes, at 13-15; that the
claims based on the theory that Defendant was required to post both the cash and credit
prices should be dismissed because its use of single-price labeling is neither false, deceptive,

4
see id.
see id.
nor unfair, at 15-18; and that Count VI fails because Missouri law, not Illinois law,
applies to Carter’s claim, at 19. DISCUSSION
I. Subject Matter Jurisdiction
A. Legal Standard
See Sheehan v. Gustafson
Federal courts are courts of limited jurisdiction and must dismiss all claims over
which they do not have subject matter jurisdiction. , 967 F.2d 1214,
McClain v. Am. Econ. Ins.
1215 (8th Cir. 1992). Whether a plaintiff has standing to sue is a threshold question in every
Co. Steger v. Franco, Inc.
federal case that determines the court’s power to entertain the suit.
, 424 F.3d 728, 731 (8th Cir. 2005) (quoting , 228 F.3d 889, 892 (8th
Chorosevic v. MetLife Choices
Cir. 2000)). “Individual Article III standing is a prerequisite for all actions, including class
O’Shea v. Littleton
actions.” , 2007 WL 2159475, at *3 (E.D. Mo. July 26, 2007)
(citing , 414 U.S. 488, 494 (1974)). “It must be established that the
Id. Wooden v. Bd. of Regents of Univ. Sys. of Ga.
proposed class representatives have Article III standing to pursue the claims as to which
see also McClain
classwide relief is sought.” (quoting , 247 F.3d
1262, 1287 (11th Cir. 2001) (cleaned up); , 424 F.3d at 731.
Federal Rule of Civil Procedure 12(b)(1) enables a defendant to challenge the Court’s
Titus v.
subject matter jurisdiction. To justify dismissal under Rule 12(b)(1), “the complaint must be
Sullivan Osborn v. United States
successfully challenged on its face or on the factual truthfulness of its averments.”
, 4 F.3d 590, 593 (8th Cir. 1993) (citing , 918 F.2d 724, 729 n.6
Osborn
(8th Cir. 1990)). In a factual challenge, the defendant challenges the factual truthfulness of
.
the plaintiff’s allegations, and the Court may consider matters outside the pleadings. ,
Titus Eaton
918 F.2d at 729-30 In a facial challenge, the defendant claims that the complaint “fails to
v. Dorchester Dev., Inc.
allege an element necessary for subject matter jurisdiction.” , 4 F.3d at 593 (citing
, 692 F.2d 727, 731-32 (11th Cir. 1982)). In that event, the Court
Id.
accepts as true “all of the factual allegations concerning jurisdiction,” and evaluates the
argumeBn.t sP olnaliyn toinff tsh leaicrk l esgtaaln mdienrgit sto. ass ert claims regarding purchases that were made
at single-price labeled machines.
In their Consolidated Complaint, Plaintiffs alleged that Defendant’s labeling practices
the machines did not contain any label or other signage alerting consumers to the fact that
See
the displayed price was a cash-only price and card transactions would cost ten cents more
Seeid.
per item. Doc. 91 ¶¶ 25, 27, 29, 31, 36, 47, 48, 51, 53. Moore, Jilek, Jaye, and Madelmayer
all alleged that they purchased items from unlabeled machines. ¶¶ 25, 27, 29, 36, 47,
48. Carter did not explicitly allege whether she purchased her items from unlabeled or
single-price labeled machines, but she alleged that Defendant “[took] more from her account
than the prices shown on [its] vending machines,” implying that her purchases were made
from unlabeled machines. Doc. 91 ¶ 34. That implication is further supported by the fact
including Carter’s proposed Illinois subclass See
that Plaintiffs expressly excluded those who purchased from single-price-labeled machines
from all of their proposed class definitions, .
Doc. 91 ¶¶ 55-59. Moreover, Plaintiffs alleged that Defendant’s single-price labeled
machines “t[old] the truth,” Doc. 91 at 11, and purchases from truthfully labeled machines
see
would have undercut their claims. Finally, Plaintiffs alleged that Carter purchased items
see id.
specifically from Defendant’s vending machines at 1010 Market Street in St. Louis, Doc.
id.
91 ¶ 31—the same vending machines from which Moore purchased items, ¶¶ 24, 26,
id.
28—on dates between October 2017 and May 2018, ¶ 32. And Plaintiffs alleged that the
Id.
machines at that location were unlabeled, ¶¶ 25, 27, 29, until after this lawsuit was filed
on October 23, 2018—months after the last of Carter’s alleged purchases. ¶ 51.
In the Amended Complaint, Plaintiffs allege that the single-price labeled machines
See
(described in the Consolidated Complaint as “telling the truth,” Doc. 91 at 11) are confusing,
misleading, deceptive, and illegal. Doc. 126 ¶¶ 28, 31, 42, 52, 56, 58-61. But Plaintiffs do
Id.
not allege that they purchased items from single-price labeled machines; they still allege
5
transactions from only unlabeled machines. ¶¶ 34, 36, 38, 41, 44, 45, 48, 51, 55.
Defendant argues that Plaintiffs lack standing to bring claims based on single-price-
See
labeled machines because none of them suffered any cognizable injury from those machines.
see
Doc. 135 at 7. Plaintiffs apparently concede that they suffered no injury from single-price
labeled machines, Doc. 139 at 3-4, but argue that they should be allowed to bring claims

5
Like the Consolidated Complaint, the Amended Cosmepe laint does not explicitly allege that Carter
purchased items from unlabeled machines, but it alleges that she purchased itemss efer oidm. Defendant’s
id. Goldman v. Tapestry, Inc.
on behalf of a class of plaintiffs who suffered injury from single-price labeled machines
Barclay v. ICON Health & Fitness, Inc.
because their claims are “substantially similar,” (citing , 501 F.
Supp. 3d 662, 667 (E.D. Mo. 2020); and , 2020 WL
6083704, at *6 (D. Minn. Oct. 15, 2020)). Defendant responds that the cases Plaintiffs rely
on are neither binding on this Court nor unanimously applied throughout the Eastern
District of Missouri or the Eighth Circuit. Doc. 142 at 4. Further, Defendant argues, even if
Plaintiffs’ cases are controlling, they have failed to allege sufficient facts to show that their
unlabeled-machine claims are substantially similar to single-price labeled machine claims.
The Court agrees with Defendant.
Meuir v. Green Cnty. Jail Emps.
“Article III of the United States Constitution confines the jurisdiction of federal courts
to justiciable cases and controversies.” , 487 F.3d 1115, 1119
(8th Cir. 2007). To have Article III standing, a plaintiff must demonstrate that she suffered
Monsanto Co. v. Geertson Seed Farms Horne v. Flores
an actual or imminent injury that is concrete, particularized, and traceable to the challenged
action. , 561 U.S. 139, 149 (2010) (citing ,
Kelly O’Shea
557 U.S. 433, 445 (2009)). If a named plaintiff cannot bring an action on her own behalf, she
cannot seek relief on behalf of the class. , 81 F. Supp. 3d at 763 (citing , 414 U.S.
at 494).
In this case, none of the named Plaintiffs claims to have purchased an item from one
See Early v. Henry Thayer Co., Inc.
of Defendant’s single-price labeled machines. They therefore cannot claim to have been
injured by such machines. , 2021 WL 3089025, at *12 (E.D.
Mo. July 22, 2021) (holding that a plaintiff cannot be injured by allegedly misleading
statements that the plaintiff never saw). Thus, on the facts as alleged, none of the named
Plaintiffs could bring a lawsuit complaining that he or she was misled by a single-price
labeled machine. Consequently, it would seem, none of them may bring such a claim on
behalf of others. But Plaintiffs reject that straightforward conclusion, arguing that the claims
of those who purchased products from the single-price labeled machines are similar enough
to their own claims that they should be permitted to represent them. Doc. 139 at 3-5. The
Court does not think the caselaw supports stretching standing doctrine that far.
In re Vizio,
In the context of class actions, there is a split among district courts over how closely
Inc., Consumer Priv. Litig.
related the claims of the named plaintiff and the putative class members must be.
Id.
Kisting v. Gregg Appliances, Inc. see
the named plaintiff can represent only those who purchased the exact same product.”
also Kelly v. Cape Cod Potato Chip Co.
(citing , 2016 WL 5875007, at *5, (E.D. Wis. Oct. 7, 2016));
, 81 F. Supp. 3d 754, 763 (W.D. Mo. 2015) (plaintiff lacked
standing to bring claims for the 12 varieties of chips that she did not purchase). “Other courts
hold that the relatedness of the putative class representative’s and proposed class members’
In re Vizio
claims implicates only Rule 23’s adequacy and typicality requirements—not Article III
Weisblum v. Prophase Labs, Inc.
standing—and accordingly reserve judgment until a class certification motion.” ,
238 F. Supp. 3d at 1218 (citing , 88 F. Supp. 3d 283, 291
(S.D.N.Y. 2015)). And yet a third set of courts, including at least one in this district, have
concluded that a named plaintiff may assert claims on behalf of the putative class members
Goldman Quinn v. Walgreen Co.
“as long as ‘the products and alleged misrepresentations are substantially similar.’”
ee alsoIn re Vizio
, 501 F. Supp. 3d at 667 (quoting , 958 F. Supp. 2d 533, 541
(S.D.N.Y. 2013)) (agreeing with the “substantially similar” approach); s , 238
Browning v. Anheuser-Busch, LLC
F. Supp. 3d at 1219 (finding the substantially similar approach to be most consistent with
Barclay
Supreme Court precedent); , 539 F. Supp. 3d 965, 977 (W.D.
Brown v. Hain Celestial Grp., Inc.
Mo. 2021) (“[f]inding the ‘substantially similar’ approach most persuasive”); , 2020
WL 6083704, at *6 (citing , 913 F. Supp. 2d 881, 890 (N.D.
Cal. 2012)) (dubbing the “substantially similar” approach the “majority” approach).
Plaintiffs urge the Court to adopt the third approach and find that they should get to
bring claims on behalf of the individuals who purchased products from single-price label
machines because “all claims at issue are based on Defendant’s alleged failure to properly
communicate to consumers the higher price for purchases made with a card as opposed to
cash,” and that regardless of the type of machine, all putative class members were all injured
by the same “failure to communicate in a non-misleading way the higher prices for card
Kelly
purchases.” Doc. 139 at 3-5. The Court is inclined to agree with Plaintiff that the third
Vizio
approach is more appropriate than either narrow approach represented in , 81 F. Supp.
3d at 763, or the broad approach represented in , 238 F. Supp. 3d at 1218. But the Court
disagrees with Plaintiffs’ proposed application of that approach in this case.
See Goldman
Plaintiffs rely on three cases where plaintiffs sought to bring claims related to
Browning Barclay
products that they did not purchase. Doc. 139 at 4-5 (citing , 501 F. Supp. 3d at
andthe alleged misrepresentations
See Browning
cases, the court found standing where both the products
In re Vizio
were relevantly similar to those alleged by the plaintiffs. , 539 F. Supp. 3d at
978 (quoting , 238 F. Supp. 3d at 1219 n.3) (finding standing where all the putative
class claims were “predicated on substantially similar facts, mainly how these malt
Goldman
beverages were packaged, including AB’s use of cocktail names and associated imagery”);
Barclay
, 501 F. Supp. 3d at 667 (finding standing where harm was based on the “alleged
pricing scheme itself”); , 2020 WL 6083704, at *6 (rejecting a standing challenge
where plaintiff alleged that defendant had made “similar horsepower misrepresentations”
as to 24 different treadmill models). None of those cases held that individuals who were
allegedly misled in one way (e.g., by a total lack of information) could bring claims on behalf
of individuals who were misled in a different way (e.g., by the provision of misleading
information), provided the products were similar enough and the same defendant was
responsible for both harms.
As applied here, Plaintiffs’ cases might justify their asserting claims on behalf of class
members who purchased different products than named Plaintiffs did from Defendant’s
unlabeled machines. For example, Plaintiff Moore might represent a class of persons who
see
purchased bottled water from Defendant’s unlabeled machines, even though he purchased
only soft drinks, Doc. 126 ¶¶ 33, 35, 37; and Plaintiff Jilek might represent a class of
see id.
persons who purchased Kit-Kats from Defendant’s unlabeled machines, even though he
purchased Skittles, ¶ 44. In each of those scenarios, the products purchased were
similar, and the purchasers were injured by a similar alleged misrepresentation—i.e., the
absence of any information indicating that they would be charged something different than
the listed price. But the cases do not support Plaintiffs bringing claims on behalf of
individuals who bought similar products but were misled by the provision of pricing
information that was arguably confusing.
Claims based on unlabeled machines and those based on single-price-labeled
machines will involve different questions of both law and fact, and success on one will not
be dispositive of the other. The evidentiary difference between showing that no label was
see
present and showing that a label was misleading is obvious. In addition, while there appears
to be no dispute that unlabeled machines are unlawful in all 50 states, Doc. 126 ¶ 15—
id.
see id.
called “regulatory state,” ¶¶ 28—there is a dispute over whether Defendant’s single-price
labeling practices were legally sufficient in so-called “non-regulatory states,” ¶¶ 15,
19, 20, 22-25, 28. Accordingly, plaintiffs who purchased from machines with no label will
have a significantly different legal and factual burden than those who purchased from
machines whose labels were allegedly misleading. Were Plaintiffs to prevail on behalf of
their fellow purchasers from unlabeled machines, their success will by no means entail
success for purchasers from single-price labeled machines.
Because Plaintiffs do not allege that they were injured by single-price labeled
Goldman
machines, and because those claims do not involve “products and alleged
misrepresentations [that] are substantially similar” to Plaintiff’s claims, , 501 F.
Supp. 3d at 667, Plaintiffs lack standing to bring claims based on Defendant’s single-price
labeledC m. aPchlaininetsi.f6f s may bring claims under the laws of other states at this stage.
Defendant also argues that Plaintiffs lack standing to assert claims under, or
See
represent class members whose claims are governed by, the laws of other states. Doc. 135
Buchta v. Air Evac EMS, Inc.
at 8. Defendant raised this same argument in its first motion to dismiss. Doc. 26 at 4.
Relying on the Honorable Stephen R. Clark’s analysis in , 2019 WL
4468943, at *3-*4 (E.D. Mo. Sept. 18, 2019), this Court rejected Defendant’s argument and
Thomas v. U.S. Bank N.A., N.D.
“defer[red] ruling on this issue until the class certification stage.” Doc. 43 at 12 (citing
, 2012 WL 12897284, at *9 (W.D. Mo. Sept. 27, 2012)). The
ICIo. urt fiPnedrss noon arel aJusornis tdoi crteicoonn sider that ruling at this stage.
Defendant also argues, again for the second time, that the Amended Complaint should
be dismissed to the extent that it purports to state claims on behalf of putative class members
Bristol-Myers SquibbCo. v. Superior Court of California, San Francisco County
with no connection to Missouri, because the Court lacks personal jurisdiction in light of
see
, 137 S. Ct. 1773
Swinter Grp., Inc. v. Serv. of Process Agents, Inc.
(2017). This Court previously rejected that argument as well, Doc. 43 at 13-14 (citing
, 2019 WL 266299, at *2 (E.D. Mo. Jan. 18, 2019)
6 See
Because Plaintiffs lack standing to assert claims based on Defendant’s single-price labeled machines,
Bristol-Myers Squibb
(declining to extend , a mass tort case, to class actions)), and Defendant
aIIgIa. in pCrolavsids eCse nroti friecaastoionn fo r the Court to reconsider that ruling at this stage.

In addition to bringing state law claims on behalf of Missouri-, Illinois-, California-,
and Texas-specific subclasses, Plaintiffs also seek to bring statutory consumer protection
claims in Counts XIV and XV on behalf of multi-state subclasses under the laws of 30 different
7
jurisdictions. Doc. 126 ¶¶ 62-63, 187-219, 220-261. Defendant argues that the multi-state
subclasses cannot be certified because the “state-by-state variations in law trump the
In re Prempro Prods. Liab. Litig.
common issues of law or fact, and preclude a finding that common issues predominate.” Doc.
Pilgrim v. Universal Health Card, LLC
135 at 11 (quoting , 230 F.R.D. 555, 562 (E.D. Ark. 2005)
(citing , 660 F.3d 943, 950 (6th Cir. 2011) (affirming the
district court’s decision to strike multi-state class claims based on various states’ consumer
see also Loreto v. Procter & Gamble Co.
protection statutes because those claims “would be measured by the legal requirements of
different state laws”))); , 515 F. App’x 576, 582 (6th
Cir. 2013) (affirming dismissal of multi-state claims under the consumer protection laws of
Coe v. Philips Oral Healthcare, Inc.
49 states because of the “material differences between the States’ consumer protection
laws”); , 2014 WL 5162912, at *4 (W.D. Wash. Oct. 14,
2012) (class certification denied where “[m]aterial differences between the various
consumer protection laws prevent[ed] Plaintiffs from demonstrating Rule 23(b)(3)
predominance and manageability for a nationwide class”)). Defendant contends that,
because denial of certification for the multi-state class is inevitable, the Court should dismiss
Counts XIV and XV now. Doc. 135 at 9-10.
Plaintiffs argue that Defendant’s argument for the dismissal of Counts XIV and XV is a
premature attempt to strike the multi-state class allegations, which Plaintiffs contend should
be resolved at the class-certification stage. Doc. 139 at 8. Plaintiffs argue that the Court
should wait to rule on the issue because discovery might yield more information that might

7
Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Iowa, Illinois, Indiana, Kansas,
Kentucky, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North
Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Washington, West Virginia,
Id. Legacy Gymnastics, LLC v. Arch Ins. Co.
alter the analysis. at 8-9 (citing , 2021 WL 2371503,
at *3 (W.D. Mo. June 9, 2021)).
Lindsay Transmission, LLC
“Where it is facially apparent from the pleadings that there is no ascertainable class,
v. Off. Depot, Inc. John v. Nat’l Sec. Fire
a district court may dismiss the class allegation on the pleadings.”
& Cas. Co. see also McCrary v. Stifel, Nicolaus & Co., Inc.
, 2013 WL 275568, at *4 (E.D. Mo. Jan. 24, 2013) (citing

, 501 F.3d 443, 445 (5th Cir. 2007)); ,
687 F.3d 1052, 1059 (8th Cir. 2012) (“[C]lass claims that fail to meet the requirements of
Rule 23 may be properly dismissed by granting a Rule 12(b)(6) motion.”). But Defendant
has not shown that it is facially apparent that class certification will be denied.
“Particularly in the context of a class action suit, striking class allegations prior to
Legacy
discovery and the class certification stage is a rare remedy because it is seldom, if ever,
Gymnastics
possible to resolve class representation questions from the pleadings alone.”
, 2021 WL 2371503, at *2 (internal quotation marks and citation omitted).
Id. Doyel v.
“Striking class action allegations is appropriate ‘where the complaint itself demonstrates
McDonald’s Corp.
that the requirements for maintaining a class action cannot be met.’” (quoting
, 2009 WL 350627, at *5 (E.D. Mo. Feb. 10, 2009)). “To obtain class
In re Prempro
certification, Plaintiffs must meet all four requirements of Rule 23(a) and the requirements
of at least one of the subdivisions of Rule 23(b).” , 230 F.R.D. at 565.
One requirement of Rule 23(a) is to show that questions of law are common to the
see
class. Fed. R. Civ. P. 23(a)(2). To satisfy Rule 23(b)(3)—under which Plaintiffs have elected
to proceed, Doc. 126 ¶¶ 69-70—Plaintiffs must show that common questions of law
“predominate over any questions affecting only individual members” of the class. Fed. R. Civ.
Legacy Gymnastics
P. 23(b)(3). “Rule 23(b)(3)’s predominance requirement instructs courts to consider ‘the
likely difficulties in managing a class action.’” , 2021 WL 2371503, at *3.
Where a multi-state class claim is brought under the laws of various states, the “[p]laintiffs
In re Prempro In re Paxil Litig.
must show prior to class certification, that the differences in state laws within each of their
groupings are nonmaterial,” , 230 F.R.D. at 562 (citing , 212 F.R.
D. 539, 545 (C.D. Cal. 2003)) (cleaned up), and that the laws can “reasonably be grouped in a
id.
comprehensive manner that does not seriously impinge on the integrity of the law of each
see id
state,” at 563. It is the plaintiff’s burden to show that Rule 23 is satisfied on a motion for
Legacy Gymnastics
allegations on a motion to dismiss, “[a]ny doubt as to whether the class action requirements
will be met must be construed in favor of the plaintiff.” , 2021 WL
2371503, at *2.
Defendant claims in conclusory fashion that “a multi-state consumer protection class
asserting dozens of different state protection statutes can never be certified,” Doc. 135 at 11,
id. In re
and that material differences in the state laws under which Plaintiffs’ multi-state class claims
Prempro
are asserted “cannot reasonably be grouped in a comprehensive manner,” (quoting
, 230 F.R.D. at 563). But Defendant provides no analysis of the state statutes at issue,
how the statutes are materially different from each other, or why they cannot be grouped in
Prempro
a reasonable manner.
In , which Defendant heavily relies upon, the court denied class
certification—at the certification stage—only after the parties fully briefed and the court
held a hearing on the issue. 230 F.R.D. at 563. The plaintiffs provided the court with a
comprehensive survey of the relevant state laws and, after the court itself engaged in a
Id.
thorough analysis of that survey, it concluded that the statutes were too incongruous for it
Prempro
to manage the class. at 563, 565. Here, Defendant similarly asserts that the relevant
statutes are too dissimilar for the court to certify a class, but unlike in , Defendant
8
does not even attempt to explain why.
It may be true that the multi-state claims require the application of statutes that are
See In re Prempro
materially different and cannot be grouped in a manner that would not seriously impinge
the integrity of the laws of each state. , 230 F.R.D. at 563. But Defendant
has not provided sufficient information for the Court to make that determination at this
8 not
Defendant argues in a separate section that proof of reliance is required in some states, but
Defendant does not show that reliance is required iind .the other states. Doc. 135 at 14. Defendant
also argues that “many sntoattes’ consumer protection statutes require a plaintiff to show both injury
and a causal link between the practice and the injury,” at 14-15, but Defendant again fails to show
that the other states do require a plaintiff to prove those elements. Even if some statesS eree qidu.ire
that plaintiffs prove reliance and/or causation and other states do not, that would demonstrate only
that the states might fall into two different categories based on the elements they require. at
13-14. “To mIene rte tPhreeimr bpruorden of . . . establishing that there are not ‘in Psruepmepraroble obstacnleosn eto class
certification, the plaintiffs must provide the court with . . . a grouping of state laws by their relevant
differences.” , 230 F.R.D at 562 (citation omitted). Unlike , where “ of the[
] states could properly be grouped together,” the fact that states fall into two large groups would not
Legacy Gymnastics
stage. On a motion to dismiss, the Court must resolve any doubt as to whether the Rule 23
requirements will be met in favor of Plaintiffs, , 2021 WL 2371503, at *2.
Without a more thorough analysis of the state statutes at issue and briefing from both parties
as to whether those statutes materially differ, the Court cannot justify denying certification.
IDVe.f endSaunbt mstaayn,t oivf ceo Pulresaed, minogr De ethfeocrotsu ghly brief the issue on a motion for class certification.
A. Legal Standard
The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
Neitzke
to test the legal sufficiency of a complaint. When considering a Rule 12(b)(6) motion, a court
Braden v. Wal-Mart Stores, Inc.
assumes the factual allegations of a complaint are true, ,490 U.S. at 326-27, and
draws all reasonable inferences in the non-movant’s favor. ,
588 F.3d 585, 595 (8th Cir. 2009) (citation omitted).
While the sufficiency of a complaint is ordinarily analyzed under the general pleading
Streambend Props. II,
standard of Federal Rule of Civil Procedure 8, all claims “grounded in fraud” must meet the
LLC v. Ivy Tower Minneapolis, LLC
heightened pleading standard of Federal Rule of Civil Procedure 9(b).
, 781 F.3d 1003, 1010 (8th Cir. 2015) (citations omitted).
Here, Plaintiffs’ claims are grounded in fraud, as they are all based on the primary allegation
id. id.
that Defendant’s labeling practices are “misleading,” Doc. 126 ¶¶ 28, 164, 173, 174, and
id. id.
“deceptive,” ¶¶ 28, 92, 171, 176, 214, 223, 257, 260; and that they constitute “fraud,”
id.
¶¶ 82, “false pretense,” ¶¶ 82, 149, 152, 154, a “false promise,” ¶¶ 82, and
“misrepresentation,” ¶¶ 2, 82, 89. Although many of Plaintiffs’ claims are brought under
See e.g. Goldman
various state consumer protection statutes, rather than common law actions for fraud,

federal courts routinely apply Rule 9(b) to such statutory claims. , , , 501 F.
Camasta v. Jos. A. Bank Clothiers, Inc.
Supp. 3d at 666(“The Eastern and Western Districts of Missouri have consistently held that
Kearns v. Ford Motor Co.
Rule 9(b) applies to MMPA cases.”); , 761 F.3d 732, 736-
37 (7th Cir. 2014) (analyzing ICFA claim under Rule 9(b)); , 567 F.3d
Pierce v. N. Dallas Honey Co.
1120, 1125 (9th Cir. 2009) (applying Rule 9(b) to CLRA and UCL claims based on “unfair or
deceptive acts”); , 2020 WL 1047903, at *4 (N.D. Tex. Mar. 3,
2020) (applying Rule 9(b) to a Texas DTPA claim based on alleged misrepresentations and
fraudulent concealment). And “[i]t is well-settled that the Federal Rules of Civil Procedure
Kearns
Vess v. Ciba-Geigy Corp. USA Hanna
irrespective of whether the substantive law at issue is state or federal.” , 567 F.3d at
v. Plumer
1125 (quoting , 317 F.3d 1097, 1102 (9th Cir. 2003) (citing
, 380 U.S. 460 (1965))). “While a federal court will examine state law to determine
whether the elements of fraud have been pled sufficiently to state a cause of action, the Rule
Kearns Vess
9(b) requirement that the circumstances of the fraud must be stated with particularity is a
Hayduk v. Lanna
federally imposed rule.” , 567 F.3d at 1125 (quoting , 317 F.3d at 1103 (quoting
, 775 F.2d 441, 443 (1st Cir. 1985))) (cleaned up).
To satisfy Rule 9(b), “the complaint must plead such facts as the time, place, and
content of the defendant’s false representations, as well as the details of the defendant’s
U.S. ex rel. Joshi v. St. Luke’s Hosp., Inc.
fraudulent acts, including when the acts occurred, who engaged in them, and what was
obtained as a result.” , 441 F.3d 552, 556 (8th Cir. 2006).
Ascente Bus. Consulting, LLC v. DR myCommerce
In essence, a plaintiff must plead the “who, what, where, when, and how” of the
circu mstances constituting fraud. , 9 F.4th
839,845 (8th Cir. 2021) (citations omitted).
Even when Rule 9(b) applies, “it does not render the general principles set forth in
Federal Practice
[Rule 8] entirely inapplicable to pleadings alleging fraud; rather, the two rules must be read
and Procedure
in conjunction with each other.” Charles Alan Wright & Arthur R. Miller, 5A
, § 1298 (4th ed.). Rule 8(a)(2) provides that a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief,” but it
Ashcroft v. Iqbal,
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
556 U.S. 662, 678 (2009). To survive a motion to dismiss, the complaint
Iqbal Bell Atl. Corp. v. Twombly,
must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” , 556 U.S. at 678 (quoting 550 U.S. 544,
Id. Twombly
570 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” (quoting , 550 U.S. at 555). Nor does
Id. Twombly
a complaint suffice if it tenders “‘naked assertions’ devoid of ‘further factual enhancement.’”
(quoting , 550 U.S. at 557). The issue in considering a motion to dismiss is not
See Twombly,
whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present
evidence in support of the claim. 550 U.S. at 556.
B. The allegations in Counts XIV and XV are insufficiently vague.
1. Counts XIV and XV contain “shotgun” pleading.

Defendant argues that Counts XIV and XV should be dismissed because Plaintiffs have
engaged in improper “shotgun” pleading. Doc. 135 at 11-13. Count XIV brings a claim for
“unfair or unconscionable acts or practices in commerce” under the laws of 21 states and the
Id.
District of Columbia. Doc. 126 ¶ 188. Count XV brings a claim for “deceptive acts or practices
in commerce” under the laws of 29 states and the District of Columbia. ¶ 221. In Count
Id.
XIV, Plaintiffs allege generally that “[e]ach of the states . . . imposes a duty not to engage in
unfair acts or practices.” ¶ 191. Plaintiffs then allege in consecutive paragraphs that
Id.
“Defendant has breached its duty not to engage in unfair acts or practices in [each of the 22
See id.
jurisdictions].” ¶¶ 192-213. Plaintiffs provide similarly vague allegations in Count XV.
¶¶ 224, 227-256.
Defendant argues that Plaintiffs have failed to identify “any specific subsections of
id.
those statutes that purportedly were violated,” Doc. 135 at 11; that the pleadings “provide
no insight into . . . whether each element of each statute has been purportedly violated,”
id.
at 12; that “[e]ach ‘claim’ presented in Counts XIV and XV provides the same one-line
conclusory allegation,” at 12; and that “[t]he conclusory assertion of a laundry list of 30
id.
different state law claims into one single cause of action is improper pleading that should be
dismissed,” at 11-12. Defendant urges the Court to dismiss Counts XIV and XV or,
alternatively, to order Plaintiffs to provide a more definite statement pursuant to Federal
Rule of Civil Procedure 12(e).
Plaintiffs argue that the allegations in Counts XIV and XV are not shotgun pleadings,
id.
Doc. 139 at 11, and that the allegations are more than sufficient to put Defendant on notice
of the claims asserted against it, at 12.
So-called shotgun pleading describes more than one type of pleading practice. “The
typical shotgun complaint contains several counts, each one incorporating by reference the
Sagez v. Glob. Agric.
allegations of its predecessors, leading to a situation where most of the counts (i.e., all but
Invs., LLC
the first) contain irrelevant factual allegations and legal conclusions.”
, 2015 WL 1647921, at *4 (N.D. Iowa Apr. 14, 2015). In suits involving multiple
defendants, a complaint engages in shotgun pleading if it “brings every conceivable claim
Chole v. Bos. Sci. Corp.
accord Boggs v. Am. Optical Co.
put the various defendants on notice of the allegations against them.” ,
2020 WL 1853266, at *2 (E.D. Mo. Apr. 13, 2020); , 2015 WL
300509, at *2 (E.D. Mo. Jan. 22, 2015). A “third type of shotgun pleading is one that commits
Weiland v. Palm Beach Cnty. Sheriff’s Off.
the sin of not separating into a different count each cause of action or claim for relief.”
, 792 F.3d 1313, 1322-23 (11th Cir. 2015). “Shotgun
Sagez Young v. Wells Fargo
pleading is especially problematic when pleading numerous causes of action[ ] with
& Co.
substantially different elements,” , 2015 WL 1647921, at *4 (citing
, 671 F. Supp. 2d 1006, 1016 (S. D. Iowa 2009)) (cleaned up), because such complaints
id. Gurman
“shift onto the defendant and the court the burden of identifying the plaintiff’s genuine
v. Metro. Hous. & Redev. Auth.
claims and determining which of those claims might have legal support,” (citing
, 842 F. Supp. 2d 1151, 1153 (D. Minn. 2011)).
Plaintiffs’ Amended Complaint does not present the typical shotgun pleading where
numerous claims are alleged against multiple defendants and none of the allegations is
sufficiently clear for any defendant to discern what it is alleged to have done wrong. But
Counts XIV and XV do assert numerous causes of action under separate state statutes, none
of which is set forth in any detail. Plaintiffs do not claim that each individual statute under
which they purport to bring claims has identical elements to the others; nor do Plaintiffs
provide the individual statutes’ particularized elements or point out which of the facts
alleged in the Amended Complaint satisfy those elements. Plaintiffs’ failure to set forth those
differences places an inordinate burden on Defendant and the Court to locate the statutes’
elements and to sift through the Amended Complaint in search of facts that correspond to
those elem2e.n tPs.l a intiffs have failed to allege the requisite elements for any of the various
state causes of action.
Related to its shotgun pleading argument, Defendant also argues that Counts XIV and
XV should be dismissed because Plaintiffs have failed to allege the elements required to state
a claim under many of the statutes at issue. Doc. 135 at 13-14. Defendant claims, for
example, that a plaintiff is required to prove reliance as an element under the consumer
protection statutes in Indiana, Maryland, West Virginia, Oregon, Pennsylvania, and Texas;
and that a plaintiff is required to prove injury and a causal link between the unfair or
Id.
Kansas, Maryland, New Jersey, North Carolina, Oklahoma, Pennsylvania, and Washington.
Id.
at 14-15. Defendant contends that Plaintiffs have not alleged reliance at all, and that they
have pled causation in only conclusory fashion. at 15. Defendant thus argues that Counts
XIV and XV should be dismissed for failure to meet the heightened pleading standard of Rule
9(b).
BBL, Inc. v. City of
Plaintiffs claim that a Rule 12(b)(6) motion applies only to the dismissal of an entire
Angola
claim, not legal theories supporting that claim. Doc. 139 at 17 (citing
, 809 F.3d 317, 325 (7th Cir. 2015)). They argue that, as long as one of several legal
Id. BBL
theories supports a claim, the entire claim must survive, and so too must all of the legal
theories alleged in support of that claim. (citing , 809 F.3d at 325).
Plaintiffs are mistaken. They believe that Count XIV, for example, brings a single claim
predicated on multiple “legal theories,” any one of which could lead to success for the entire
9
multi-state class. They thus argue that as long as one “legal theory”—i.e., one statute—
states a plausible claim upon which relief may be granted, the entire “claim”—i.e., Count
XIV—may proceed, even if all of the other “legal theories” do not support a claim. Not so.
Plaintiffs are elevating form over substance in an apparent attempt to subvert federal
pleading requirements. Count XIV brings individual causes of action under the laws of 22
substantively
distinct jurisdictions. Regardless of whether, as a matter of form, Count XIV merges those 22
10
causes of action into a single count, , Count XIV brings not one claim but 22. If
the law of one jurisdiction were sufficient to sustain Count XIV on behalf of all class members,
Plaintiffs presumably would have alleged a single claim under the law of the most favorable
jurisdiction, rather than dozens. But that would not do, because success under the law of
one jurisdiction does not necessarily mean success for all class members.
In re St. Jude Med., Inc.
As a general rule, “an individualized choice-of-law analysis must be applied to each
Phillips Petroleum Co. v. Shutts
plaintiff’s claim in a class action.” , 425 F.3d 1116, 1120 (8th Cir. 2005)
(citing , 472 U.S. 797, 822-23 (1985)). For common law
claims—i.e., breach of contract, unjust enrichment, and money had and received—Missouri’s

9
The same analysis applies to Count XV. For simplicity’s sake, the Court refers only to Count XIV.
10
choice of law rules would be determinative of which state’s law applied to each plaintiff’s
claim. But where a plaintiff alleges a statutory claim, as Plaintiffs here do in Counts XIV and
XV, each governing statute has its own limitations. For example, there is a “longstanding
Tuttle v. Dobbs Tire & Auto
presumption that Missouri statutes, absent express text to the contrary, apply only within
Centers, Inc.
the boundaries of [Missouri] and have no extraterritorial effect.”
, 590 S.W.3d 307, 311 (Mo. banc 2019) (holding that the plaintiff was precluded
from bringing a claim under the Missouri Human Rights Act, because he was aggrieved in
Illinois).
The MMPA states that:
[t]he act, use or employment by any person of any deception, fraud, false
pretense, false promise, misrepresentation, unfair practice or the
concealment, suppression, or omission of any material fact in connection with
the sale oirn a odrv efrrtoismem tehnet sotfa taen yo fm Mericshsoaundriise in trade or commerce or the
solicitation of any funds for any charitable purpose, as defined in section
407.453, , is declared to be an unlawful
practice.
See Neeley v. Wolters Kluwer Health, Inc.
Mo. Rev. Stat. § 407.020.1 (emphasis added). The longstanding presumption against
extraterritorial effect thus applies to the MMPA. ,
2013 WL 3929059, at *16 (E.D. Mo. July 29, 2013) (dismissing MMPA claim because none of
See Avery v. State Farm Mut. Auto. Ins. Co.
the alleged activity or fraud had any connection to Missouri). The same is true of the ICFA.
, 835 N.E.2d 801, 853 (Ill. 2005) (concluding that
the ICFA does not apply to fraudulent transactions that occur primarily and substantially
outside Illinois). As a general rule, a class member who resides and is injured in Illinois
cannot bring a claim under the MMPA; nor could a class member who resides and is injured
in Missouri bring a claim under the ICFA. Plaintiffs have not briefed the Court on the
territorial limitations of the statutes listed in Counts XIV and XV, and the Court declines to
sift through the other 28, but it has no reason to assume that they are free of territorial
restrictions similar to those in the ICFA and MMPA.
In
“State consumer-protection laws vary considerably, and courts must respect [those]
re St. Jude
differences rather than apply one state’s law to sales in other states with different rules.”
In re Gen. Motors Corp. Anti-Lock
, 425 F.3d at 1120 (citation omitted). “Each state’s statute is unique and plaintiffs
are required to plead the essential elements of each one.”
Brake Prods. Liab. Litig.
, 966 F. Supp. 1525, 1536 (E.D. Mo. 1997) (dismissing claims brought
under various state consumer fraud statutes for failure to satisfy Rule 9(b)). Plaintiffs must
therefore plead the elements and allege facts that support a claim for each and every statute
under which they purport to bring a claim. The Amended Complaint does neither. Plaintiffs
neither allege the elements of an unfair practice in, for example, Alabama, nor state which
facts in the Amended Complaint establish that Defendant engaged in an unfair practice under
See et seq.
Alabama law. Plaintiffs do not even allege a specific provision of Alabama law they intend to
proceed under. Doc. 126 ¶ 192, 227 (citing generally to “Alabama Code § 8-19-1 ,”
Alabama’s Deceptive Trade Practices Act). And the same is true with respect to the other
jurisdictions listed in Counts XIV and XV.
Although Plaintiffs fail to specifically plead the elements of the alleged violations of
any of the statutes listed in Counts XIV or XV, they do allege facts elsewhere in the Amended
Complaint that could potentially establish a claim under those statutes. Without the
elements or territorial limits for each individual claim, though, it is impossible for the Court
to determine whether, and under which states’ laws, Plaintiffs state a cognizable claim for
relief. Therefore, the Court will grant Defendant’s alternative relief. While Counts XIV and
XV will not be dismissed, Plaintiffs will be required to amend the Amended Complaint to
provide more definite statements as to both Counts XIV and XV. Specifically, for each
separate statute under which Plaintiffs purport to assert a cause of action, Plaintiffs shall (1)
cite the specific provision under which the claims are brought, (2) provide the territorial
limits of that provision, (3) provide the elements for the private right of action created by
that provision, and (4) restate or cite any facts that are currently alleged in thneo tAmended
Complaint that establish a claim under that provision. The Court is specifically granting
PlaintifCfs. leCaovuen tot VaIll estgaet neesw a pfalcatus.s i b l e claim for a violation of the ICFA.
Finally, Defendant contends that Plaintiff Carter cannot bring her claim in Count VI
Id.
under the ICFA. Doc. 135 at 19-20. Defendant argues that Missouri law applies to Carter’s
claims based on a Missouri choice-of-law analysis for tort claims. Defendant also argues
that, even if Missouri’s choice-of-law rules supported the application of Illinois law, Carter’s
Id.
claim could not be brought under the ICFA because her alleged transactions did not occur in
Id.
its choice-of-law analysis suggests, Defendant argues that Carter’s claim must be dismissed.
at 20.
Plaintiffs argue that the only relevant question is whether Carter has stated a
plausible claim under the ICFA, and they point out that the Court already decided that
question in their favor more than two years ago. Doc. 139 at 18. Plaintiffs further argue that
Id.
Defendant’s choice-of-law analysis is irrelevant, but that even if it were not, Missouri’s
choice-of-law rules require the Court to apply Illinois law to Carter’s claim. at 18-19.
In Count VI, Carter alleges a statutory claim under Illinois’s consumer protection laws.
See supra
She does not allege a common law tort claim. Therefore, Defendant’s choice-of-law analysis
for tort claims does not apply. Section IV.B.2. The only relevant question is
whether Carter’s ICFA claim is viable under the jurisdictional and territorial limitations of
the ICFA.
See
Plaintiffs correctly note that this Court already answered that question in its
September 2019 Order, which denied Defendant’s motion to dismiss Carter’s ICFA claim.
Doc. 43 at 18-19. There, this Court observed that “a plaintiff may pursue a private cause of
primarily and substantially in Illinois" id. Avery
action under the ICFA if the circumstances that relate to the disputed transaction occur
, (quoting , 835 N.E.2d at 853-54) (emphasis
added), and that "[c]ourts consider several factors to determine whether a transaction
occurred 'primarily and substantially' in Illinois . . . , including: (1) the plaintiff’s residence,
id.
(2) where the misrepresentation was made, (3) where the damage to the plaintiff occurred,
Specht v. Google, Inc., Avery,
and (4) whether the plaintiff communicated with the defendant in Illinois,” (quoting
660 F. Supp. 2d 858, 866 (N.D. Ill. 2009) (citing 835 N.E.2d at
853-54)).
see
This Court found that the first and most predominant factor weighed in Carter’s favor
11
because she was an Illinois resident at the time of the alleged transactions, Doc. 43 at
18-19, and the third factor weighed in her favor because the bank account from which

11 Avery
Although Carter is currently a Mseises Aouverri yresident, at the time of the transaction, she was an Illinois
resident. Because the factors are used to determine whether the “transaction” primarily and
substantially occurred in Illinois, , 835 N.E.2d at 853, this Court looks to Carter’s residence
at the time of the transaction. Defendant does not argue that the Court should consider only Carter’s
Defendant withdrew the allegedly excessive amount was also in Illinois, see id. at 18. The
second factor favors Defendant, because the alleged misrepresentations occurred via
Defendant’s vending machines in St. Louis. The fourth factor also weighs in Defendant's
favor, because the only alleged communications, or lack thereof, between Carter and
Defendant also occurred via Defendant’s vending machines in St. Louis. Although two factors
favor each party, the fourth factor is redundant of the second in this case, and the first and
most important factor weighs in Carter’s favor. For that reason, the Court again concludes
that the ICFA permits Carter’s claim to proceed.
CONCLUSION
In sum, Plaintiffs lack standing to assert any claims based on alleged purchases from
single-price labeled machines; Plaintiffs may continue to represent the multi-state class
defined in Counts XIV and XV, with respect to claims predicated on unlabeled machines, at
this stage; the nationwide class and the non-Missouri sub-classes will not be dismissed for
lack of personal jurisdiction; the manageability of the nationwide class and multi-state
subclasses will be addressed on a fully briefed motion for class certification; Counts XIV and
XV fail to adequately plead the elements for the included states’ consumer protection
statutes; Plaintiffs shall amend their Amended Complaint as instructed above, see supra
Section IV.B; and Carter’s claim in Count VI may proceed under the ICFA.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, Doc. 134, is GRANTED
in part and DENIED in part. The Motion is GRANTED with respect to I.B of this Order. All
claims predicated on Defendant’s single-price labeled machines are DISMISSED.
IT IS FURTHER ORDERED that the alternative relief requested in the Motion is
GRANTED with respect to IV.B of this Order. Plaintiffs shall file a second amended
complaint, in accordance with the instructions provided above, see supra Section IV.B, no
later than twenty-one (21) days from the date of this Order. In all other respects, the
Motion is DENIED.
Dated this 30% day of September, 2022. ir □□ >}
SARAHE.PITLYK ~~
UNITED STATES DISTRICT JUDGE
22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10237726. Public record. Not legal advice.