The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiff in this case, Association Benefit Services, Inc.
("ABS"), arranges contracts between companies and prescription
benefit managers to administer prescription benefit plans. In
return, ABS earns commissions based on the number of
prescriptions filled. The defendants, AdvancePCS Holding
Corporation and AdvancePCS Mail Services of Birmingham, Inc., are
prescription benefit managers. According to ABS, the defendants
promised to pay ABS commissions in the amount of $0.25 per retail
claim and $1.50 per mail order claim if it could arrange a
contract between AdvancePCS and the American Automobile
Association ("AAA"). Am. Comp., Count 1, ¶ 5; Pl. Ex. A. In
reliance on this promise, ABS claims that from May through August
2003, it provided AdvancePCS with information necessary to adjust
its prescription management proposal to meet the AAA's needs.
Id. ¶ 9. ABS also alleges that in reliance on this promise, it
refrained from working with competitor prescription benefits managers, including Merck and Caremark, during that time period.
Id. ¶ 10.
In late August 2003, AdvancePCS signed the desired contract
with AAA. On September 1, ABS received a draft contract from
AdvancePCS providing that ABS would receive commissions of only
$.025 per retail claim and $.025 per mail order claim from the
AAA deal far less than ABS says was originally promised. Am.
Comp., Count 1, ¶ 12. ABS alleges that AdvancePCS breached its
agreement to pay ABS $0.25 and $1.50 per claim, id., Count 2, ¶
3, and that AdvancePCS committed fraud in making that promise
because it never had any intention of paying ABS the higher
commissions. Id., Count 1, ¶ 14.
In its second amended complaint, ABS has added allegations of
unjust enrichment to its original claims of fraud and breach of
contract. First, ABS claims that AdvancePCS has been unjustly
enriched because it obtained the AAA contract through fraud
against ABS. 2d Am. Comp., Count 3, ¶ 18. Second, ABS claims that
because AdvancePCS secured a contract with AAA, it was able to
make billions of dollars in a later merger with Caremark. Id. ¶
19. ABS alleges this merger would not have occurred absent the
contract with AAA. Id. ¶ 20.
The defendants have moved to dismiss all of ABS' claims, except
for its breach of contract claim against AdvancePCS Holding. For
the reasons stated below, the Court grants the motion to dismiss
in part and denies it in part.
Dismissal of a claim under Rule 12(b)(6) is appropriate only if
it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim. Kennedy v. Nat'l Juvenile Det.
Ass'n, 187 F.3d 690, 695 (7th Cir. 1999). For purposes of a
motion to dismiss, the Court accepts the plaintiff's allegations
as true and draws reasonable inferences in the plaintiff's favor.
Zemke v. City of Chicago, 100 F.3d 511 (7th Cir. 1999).
Federal Rule of Civil Procedure 9(b) requires that "in all
averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity." What this
means is that a claim for fraud must specifically describe "the
identity of the person who made the representation, the time,
place, and content of the misrepresentation, and the method by
which the misrepresentation was communicated to the plaintiff."
General Electric Capital Corp. v. Lease Resolution Corp.,
128 F.3d 1074, 1078 (7th Cir. 1997). ABS' fraud claim is a claim of
promissory fraud, that is, a "fraud based on a false
representation of intent to perform a promise or some future
conduct." Sa'Buttar Health & Medical, P.C. v. TAP
Pharmaceuticals, Inc., No. 03 C 4074, 2004 WL 1510023, *4 (N.D.
Ill. July 2, 2004) (citing Doherty v. Kahn,
289 Ill. App. 3d 544, 562, 682 N.E.2d 163, 176,
224 Ill. Dec. 602 (1997).*fn1
Claims of promissory fraud are disfavored because they are "easy
to allege and difficult to prove or disprove." Id. at *11,
citing Bower v. Jones, 978 F.2d 1004, 1012 (N.D. Ill. 1992);
see also, Marchionna v. Ford Motor Co., No. 94 C 275, 1995 WL
476591, *6 (N.D. Ill. Aug. 10, 1995) ("The Seventh Circuit has
cautioned against allowing a plaintiff to turn a simple suit for
breach of contract into a claim for fraud."), citing Desnick,
M.D., Eye Services v. American Broadcasting Companies,
44 F.3d 1345, 1354 (7th Cir. 1995).
Illinois provides a remedy for promissory fraud only if it is
part of a "scheme" to defraud. Desnick, 44 F.3d at 1354. What
constitutes a "scheme" is not entirely clear; as the Seventh
Circuit has pointed out, "[s]ome cases suggest that the exception
has swallowed the rule" against tort claims based on fraudulent promises. Id. But the "scheme"
requirement must have some meaning, and the Seventh Circuit has
interpreted it to permit a claim for promissory fraud only if it
is "particularly egregious" or if the fraud is "embedded in a
large pattern of deceptions or enticements." Id. Put another
way, the fraudulent promise must be "one element of a pattern of
fraudulent acts." Speakers of Sport, Inc. v. ProServ, Inc.,
178 F. 3d 862, 866 (7th Cir. 1999).
This requirement has been met in this case. Though ABS alleges
that the defendants made a number of false promises, they all
amount to repetition of a single promise the commitment to pay
commissions at a particular level if ABS got the AAA contract for
the defendants. See Am. Comp., Count 1, ¶¶ 5-8. But, "a series
of unfulfilled promises" may be sufficient to satisfy the
"scheme" requirement. See Speakers of Sport, Inc,
178 F.3d at 866. And the Illinois Supreme Court has allowed a promissory
fraud claim to proceed based on repeated false promises of future
payment. HPI Healthcare Serv., Inc., v. Mt. Vernon Hosp., Inc.,
131 Ill. 2d 145, 545 N.E.2d 672 (1989); see also, e.g., Zic v.
Italian Government Travel Office, 140 F. Supp. 2d 991, 995-96
(N.D. Ill. 2001). Though it is by no means clear that ABS will be
able to prove the requisite scheme, the allegations it has made
are sufficient to satisfy the scheme requirement.
ABS has also sufficiently alleged that the defendants' promises
were false when made, see Am. Comp., Count 1, ¶ 8, and that it
was damaged as a result. Id. ¶ 17. Allegations of intent and
damages need not be alleged with particularity. See
Fed.R.Civ. P. 9(b); Linc Finance Corp. v. Onwuteaka, 129 F.3d 917, 922
(7th Cir. 1999).
As currently alleged, however, ABS' fraud claim fails because
it lumps two defendants together without making any effort to
distinguish or state what misrepresentations were made by what defendant. See Sears v. Liken, 912 F.2d 889, 893 (7th Cir.
1990). Though an exception exists where the information needed to
plead the circumstances of fraud with particularity is
unavailable to the plaintiff, see, e.g., Corley v. Rosewood ...