# O'Keefe v. Walgreens Boots Alliance, Inc.

> Appellate Court of Illinois · August 31, 2020 · 2020 IL App (5th) 190448

URL: https://www.frixlaw.com/law-library/cases/10488549

## Case

- **Court:** Appellate Court of Illinois
- **Decided:** August 31, 2020
- **Citations:** 2020 IL App (5th) 190448
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2021.09.07
11:07:34 -05'00'

O’Keefe v. Walgreens Boots Alliance, Inc., 2020 IL App (5th) 190448

Appellate Court BRIAN O’KEEFE, Individually and on Behalf of All Others Similarly
Caption Situated, Plaintiff-Appellant, v. WALGREENS BOOTS ALLIANCE,
INC., Defendant-Appellee.

District & No. Fifth District
No. 5-19-0448

Rule 23 order filed May 4, 2020
Rehearing denied August 31, 2020
Motion to
publish allowed August 31, 2020
Opinion filed August 31, 2020

Decision Under Appeal from the Circuit Court of St. Clair County, No. 19-L-209; the
Review Hon. Stephen P. McGlynn, Judge, presiding.

Judgment Affirmed.

Counsel on James J. Rosemergy, of Carey, Danis & Lowe, of St. Louis, Missouri,
Appeal and Tiffany M. Yiatras, of Consumer Protection Legal, LLC, of
Ellisville, Missouri, for appellant.

David B. Sudzus, of Faegre Drinker Biddle & Reath LLP, of Chicago,
and Anthony J. Weibell, of Wilson Sonsini Goodrich & Rosati, of
Palo Alto, California, for appellee.
Panel JUSTICE MOORE delivered the judgment of the court, with opinion.
Justices Overstreet and Wharton concurred in the judgment and
opinion.

OPINION

¶1 The plaintiff, Brian O’Keefe, individually and on behalf of all others similarly situated,
appeals the September 26, 2019, order of the circuit court of St. Clair County, which granted
the motion of the defendant, Walgreens Boots Alliance, Inc., to dismiss his complaint. For the
following reasons, we affirm.

¶2 I. BACKGROUND
¶3 The plaintiff filed a class action complaint against the defendant on March 13, 2019. The
complaint alleges that the defendant intentionally misrepresented and/or made material
omissions regarding the storage capacity of USB flash drives in its method of advertising,
marketing, and/or packaging them. The complaint alleges the following facts by way of
background. The average consumer understands digital storage capacity and file size to be
measured using the “base-2” or “binary” counting system. In the “binary” counting system,
1 gigabyte (GB) is equivalent to 1024 megabytes, which is equivalent to 1,073,741,824 bytes.
In accord with the binary system, several dictionaries define the term gigabyte as equaling
1024 megabytes. Furthermore, all computers and digital processors, including Microsoft
Windows, Linux, and Apple (except Mac OS X version 10.6 and later) and all other operating
systems, as well as PDAs, digital cameras, cell phones, and gaming systems, use the binary
system to display file sizes and data storage capacity.
¶4 The complaint alleges that, in the “base-10” or “decimal” counting system, 1 GB is
equivalent to 1000 megabytes, which is equivalent to 1 billion bytes. So, 1 GB in the decimal
system contains fewer bytes than 1 GB in the binary system. The defendant calculates the GBs
in its products using the decimal system. The plaintiff purchased a Walgreens Infinitive brand
USB flash drive that was advertised and packaged to represent that its storage capacity was 32
GB. The complaint alleges that, in purchasing the drive, the plaintiff believed that he was
receiving 32 binary GBs, but instead he received 32 decimal GBs, which is 6.7% less storage
capacity than he was expecting to receive.
¶5 The complaint alleges that the defendant does not disclose to the consumer the discrepancy
between the defendant’s decimal-GB offering and the expected binary-GB offering. On the
front of the defendant’s packaging, the defendant represents in font that is larger and in a
different color than surrounding text and separate and apart from other words, the number of
GBs the USB flash drive contains. The complaint alleges that the defendant does not
meaningfully, adequately, or conspicuously disclose that the defendant’s product contains less
storage than it represents on the front of the packaging. According to the complaint, “[a]ll
Defendant does is place an asterisk on the number of GBs advertised and extremely fine print
on the back of its packaging that arbitrarily defines GB as one billion bytes.”
¶6 Count I of the complaint alleges a cause of action for breach of contract. Count II alleges
a breach of the covenant of good faith and fair dealing. Count III alleges the defendant violated
the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS

-2-
505/1 et seq. (West 2018)). Count IV alleges the defendant violated the Uniform Deceptive
Trade Practices Act (815 ILCS 510/1 et seq. (West 2018)). Count V requests a “declaration
that Defendant’s acts and practices are deceptive and misleading, and preliminary and
permanent injunctive relief to enjoin Defendants from continuing to engage in these deceptive,
false and misleading acts and practices.”
¶7 On June 10, 2019, the defendant filed a motion to dismiss the complaint. The defendant
attached several exhibits to its motion to dismiss. First, the defendant attached actual size
photographs of the packaging for the USB flash drive at issue. The back of the package
contains the following words, in small print: “1 GIGABYTE (GB) = 1 BILLION BYTES.
SOME CAPACITY NOT AVAILABLE FOR DATA STORAGE.”
¶8 Second, the defendant attached a copy of volume 63, No. 144, of the Federal Register,
dated July 28, 1998, which contains a notice from the United States Department of
Commerce’s National Institute of Standards and Technology (NIST) entitled “Metric System
of Measurement: Interpretation of the International System of Units for the United States.” 63
Fed. Reg. 40334 (July 28, 1998). In the notice, NIST declares that the International System of
Units (SI) is the preferred system of weights and measures for the United States trade and
commerce. Id. The notice lists “giga” or “G” as an SI prefix and states that these prefixes
“strictly represent powers of 10” and that it is “inappropriate to use them to represent powers
of 2.” Id. at 40338. The notice states, as an example, that one kilobit equals 1000 bit, and not
1024 bits. Id.
¶9 Third, the defendant attached NIST Special Publication 811, 2008 Edition, titled “Guide
for the Use of International System of Units (SI)” to its motion to dismiss. The publication
reiterates that SI prefixes, such as “giga” or “kilo,” refer strictly to powers of 10 and should
not be used to indicate powers of 2. Ambler Thompson & Barry N. Taylor, Nat’l Inst. of
Standards & Tech., Guide for the Use of the International System of Units (SI) 74 (2008),
https://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublications811e2008.pdf [https://perma.
cc/Y92D-T8UL]. The publication explains that the prefixes for binary powers that were
adopted by the International Electrotechnical Commission (IEC) should be used in the field of
information technology to indicate binary powers to “avoid the incorrect usage of the SI
prefixes.” Thus, according to this publication, instead of “giga,” the prefix “gibi” should be
used to denote 1,073,741,824 bytes. The defendant asked that the circuit court take judicial
notice of the NIST standards.
¶ 10 After further briefing and oral argument, the circuit court entered an order on September
26, 2019, granting the motion to dismiss. On October 25, 2019, the plaintiff filed a notice of
appeal. On May 4, 2020, this court issued an order that affirmed the circuit court’s order
dismissing the plaintiff’s complaint. On May 26, 2020, the plaintiff filed a petition for
rehearing in this court. On June 5, 2020, this court entered an order requiring that the defendant
file a response to the petition for rehearing and establishing a deadline for the plaintiff’s reply.
On June 26, 2020, the defendant filed an answer to the petition for rehearing. The plaintiff did
not file a reply. After reviewing the arguments on rehearing, we now issue this modified
opinion upon denial of rehearing. 1

1
The defendant filed a motion to publish this court’s original order, which was filed pursuant to
Illinois Supreme Court Rule 23(b) (eff. Apr. 1, 2018). This court entered an order holding the motion

-3-
¶ 11 II. ANALYSIS
¶ 12 At the outset, we note that the plaintiff’s brief on appeal only presents argument as to why
the circuit court erred in dismissing count III of the complaint, which alleges the defendant
violated the Consumer Fraud Act. As such, the plaintiff has forfeited any issues as to the
propriety of the circuit court’s dismissal of all other counts of the complaint. See Reynolds v.
Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 55 (citing Ill. S. Ct. R. 341(h)
(eff. July 1, 2008)). Accordingly, we limit our analysis to count III of the plaintiff’s complaint.
¶ 13 The defendant’s motion to dismiss does not specify which section of the Code of Civil
Procedure (Code) the motion is based upon. However, in the briefs, both parties state that the
circuit court dismissed the complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615
(West 2018)). A motion to dismiss pursuant to section 2-615 of the Code presents the question
of whether the facts alleged in the complaint, viewed in the light most favorable to the plaintiff,
are sufficient to state a cause of action upon which relief may be granted. Doe-3 v. McLean
County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 16. In ruling on a section 2-
615 motion, the court only considers (1) those facts apparent from the face of the pleadings,
(2) matters subject to judicial notice, and (3) judicial admissions on record. Gillen v. State
Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385 (2005). Our standard of review
is de novo. Doe-3, 2012 IL 112479, ¶ 15.
¶ 14 To state a claim under the Consumer Fraud Act, a plaintiff must show (1) a deceptive act
or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception,
(3) the deception occurred in the course of trade or commerce, and (4) the consumer fraud
proximately caused the plaintiff’s injury. Avon Hardware Co. v. Ace Hardware Corp., 2013
IL App (1st) 130750, ¶ 23. However, notwithstanding the existence of these elements, the “safe
harbor” provision of the Consumer Fraud Act provides that the Consumer Fraud Act shall not
apply to actions “specifically authorized by laws administered by any regulatory body or
officer acting under statutory authority of this State or the United States.” 815 ILCS 505/10b(1)
(West 2018). 2 Accordingly, if a regulatory body acting under specific statutory authority
authorizes the use of a term in labeling and advertising, a defendant may not be held liable
under the Consumer Fraud Act even if the term might be deemed false, deceptive, or
misleading. Price v. Philip Morris, Inc., 219 Ill. 2d 182, 244 (2005).
¶ 15 Here, the complaint alleges that the defendant violated the Consumer Fraud Act in its
labeling and advertising by representing the storage capacity of its flash drives in terms of the
decimal definition of “gigabyte” rather than the binary definition. However, even if this
practice might be deemed false, deceptive, or misleading, it falls within the “safe harbor”
provision of the Consumer Fraud Act if a regulatory body acting under specific statutory
authority authorized the use of the decimal definition of “gigabyte” in labeling and advertising.

to publish in abeyance pending disposition of the plaintiff’s petition for rehearing. This court has
entered a separate order granting the motion to publish.
2
On rehearing, the plaintiff argues that to come under the safe harbor provision, an agency with
regulatory authority must require that the defendant use the binary definition of gigabyte. This is
incorrect. Section 10b(1) of the Consumer Fraud Act clearly states that there can be no claim under the
Consumer Fraud Act for an act that is “specifically authorized” by an agency with regulatory authority.
815 ILCS 505/10b(1) (West 2018).

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For the following reasons, we find this to be the case with the defendant’s use of the term
“gigabyte.”
¶ 16 The general objective of the Weights and Measures Act (Weights Act) is to promote
accuracy in the determination and representation of quantity in commercial transactions. 225
ILCS 470/11 (West 2018). Section 3 of the Weights Act provides that “[t]he definitions of
basic units of weight and measure, the tables of weight and measure, and weights and measures
equivalents, as published by the National Institute of Standards and Technology, are
recognized and shall govern weighing and measuring equipment and transactions in this State.”
Id. § 3. NIST is a division of the United States Department of Commerce, which clearly
qualifies as a “regulatory body.” Accordingly, if the United States Department of Commerce,
through NIST, authorizes the use of the decimal representation of “gigabyte” when describing
the storage capacity of flash drives, then the plaintiff’s Consumer Fraud Act claim is barred by
section 10b of the Consumer Fraud Act.
¶ 17 The circuit court properly took judicial notice of information published in the Federal
Register. See People v. Pollution Control Board, 103 Ill. 2d 441, 447 (1984) (materials
published in the Federal Register are matters of public record of which courts may take judicial
notice). These materials make clear that NIST recognizes the SI system as the preferred system
of weights and measures for United States trade and commerce. Metric System of
Measurement: Interpretation of the International System of Units for the United States, 63 Fed.
Reg. at 40338. In addition, the SI system uses “powers of 10” (i.e., decimal) (id.) and “one
kilobit represents 1000 bits” (Ambler Thompson & Barry N. Taylor, Nat’l Inst. of Standards
& Tech., Guide for the Use of the International System of Units (SI) 74 (2008), https://
nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublications811e2008.pdf [https://perma.cc/
Y92D-T8UL]). NIST also states that it is inappropriate to use SI prefixes to represent powers
of 2 (i.e., binary). Metric System of Measurement: Interpretation of the International System
of Units for the United States, 63 Fed. Reg. at 40338. 3
¶ 18 We agree with the circuit court that the NIST guidelines include an authorization by a
regulatory agency with specific statutory authority for the use of the term “gigabyte” to denote
a billion bytes. Accordingly, even if the defendant’s use of the term “gigabyte” to represent a
billion bytes were deceptive, it falls within the “safe harbor” provision of the Consumer Fraud
Act and is not actionable. See 815 ILCS 505/10b(1) (West 2018). As such, the circuit court did

3
The plaintiff, for the first time on rehearing, argues that the 1998 Federal Register publication by
NIST was superseded by a subsequent 2008 NIST publication in the Federal Register and that this
publication changed NIST’s position as to the authorization of using the term “byte” to represent a
power of 10. This is incorrect. The 2008 NIST publication, entitled Interpretation of the International
System of Units (the Metric System of Measurement) for the United States, 73 Fed. Reg. 28432 (May
16, 2008), consists of a notice describing modifications to the SI that are enumerated therein and do not
include any modification to the use of the SI prefixes to the term “byte.” In addition, the notice
announces the publication of the Guide for the Use of the International System of Units (SI) by NIST,
which clearly notes, on page 74, that SI prefixes, when used in electrical technology as in all other
applications, strictly refer to powers of 10 and repeats the example that a kilobit denotes 1000 bits and
not 1024 bits. Ambler Thompson & Barry N. Taylor, Nat’l Inst. of Standards & Tech., Guide for the
Use of the International System of Units (SI) 74 (2008), https://nvlpubs.nist.gov/nistpubs/Legacy/SP/
nistspecialpublications811e2008.pdf [https://perma.cc/Y92D-T8UL].

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not err in dismissing count III of the plaintiff’s complaint. 4

¶ 19 III. CONCLUSION
¶ 20 For the foregoing reasons, we affirm the circuit court’s September 26, 2019, order
dismissing the plaintiff’s complaint.

¶ 21 Affirmed.

4
As explained above, the plaintiff has forfeited any argument that the circuit court erred in
dismissing the other counts of the complaint by not presenting argument in his appellant’s brief on
those counts. However, forfeiture aside, we note that the Uniform Deceptive Trade Practices Act also
contains a “safe harbor” provision that would preclude the plaintiff’s action for the same reasons. See
815 ILCS 510/4(1) (West 2018).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10488549. Public record. Not legal advice.