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Mario Aliano, Individually and On Behalf v. Timothy Ferriss

March 29, 2013

MARIO ALIANO, INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF-APPELLANT,
v.
TIMOTHY FERRISS, AND RANDOM HOUSE, A NEW YORK CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 11 CH 1939 Honorable Stuart Palmer, Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises from a December 21, 2011 order entered by the circuit court of Cook County which dismissed with prejudice the first amended complaint filed by plaintiff-appellant Mario Aliano (Aliano), individually and on behalf of all others similarly situated, against defendants-appellees Timothy Ferriss and Random House, a New York corporation (collectively, Random House). On appeal, Aliano argues that the trial court erred in ruling that he failed to state a cause of action under section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 2010)) and section 2 of the Illinois Uniform Deceptive Trade Practices Act (Deceptive Trade Practices Act) (815 ILCS 510/2 (West 2010)). For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On December 14, 2010, Random House published the book The 4-Hour Body: An Uncommon Guide to Rapid Fat-Loss, Incredible Sex, and Becoming Superhuman (the book). The book consists of 13 chapters and 550 pages. Both the book and the internet website www.fourhourbody.com contain the following marketing statements, which are at issue in this case:

"YOU WILL LEARN (in less than 30 minutes each) *How to prevent fat gain while bingeing [sic] (X-mas, holidays, weekends) * How to increase fat-loss 300% with a few bags of ice * How Tim gained 34 pounds of muscle in 28 days, without steroids, and in four hours of total gym time * How to sleep 2 hours per day and feel fully rested * How to produce 15-minute female orgasms * How to triple testosterone and double sperm count * How to go from running 5 kilometers to 50 kilometers in 12 weeks * How to reverse 'permanent' injuries * How to add 150 pounds to your lifts in 6 months

Bonus Material This book isn't just what you hold in your hands. Using passwords hidden in this book you can access some of the most entertaining material that didn't make it in. Here are just a few samples:

Spot Reduction Revisited: Removing Stubborn Thigh Fat Becoming Brad Pitt: Uses and Abuses of DNA The China Study: A Well-Intentioned Critique Heavy Metal: Your Personal Toxin Map The Top 10 Reasons Why BMI Is Bogus Hyperclocking [sic] and Related Mischief: How to Increase Strength 10% in One Workout Creativity on Demand: The Promises and Dangers of Smart Drugs An Alternative to Dieting: The Bodyfat [sic] Set Point and Tricking the Hypothalamus

For this and much more, visit the free message boards (where I also post answers and suggestions) at www.fourhourbody.com."

¶ 4 According to Aliano, he purchased the book*fn1 in reliance on the marketing statements regarding the availability of the "bonus material." On January 14, 2011, Aliano filed a class action complaint against Random House in the circuit court of Cook County. After Aliano filed his complaint, Random House made the bonus material available to the public free of charge on the website www.fourhourworkweek.com/blog/4-hour-body-bonus-material-and-bonus-chapters/. On or around March 1, 2011, Random House removed the case from the circuit court of Cook County to the United States District Court for the Northern District of Illinois, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. In response, Aliano filed a motion to remand the case back to the circuit court of Cook County. On June 7, 2011, the district court granted Aliano's motion and remanded the case to the circuit court.

¶ 5 On July 15, 2011, Aliano filed a four-count first amended class action complaint in the circuit court of Cook County. Count I alleged breach of warranty; count II alleged a violation of section 2 of the Illinois Consumer Fraud Act; count III alleged a violation of section 2 of the Illinois Deceptive Trade Practices Act; and count IV alleged unjust enrichment. Specifically, Aliano claimed that through the marketing statements in the book and on the internet, Random House misrepresented that the bonus material would only be available to purchasers of the book. Aliano alleged that at the time Random House marketed, promoted, and published the book, there was no bonus material available. After Aliano filed his original complaint, Random House made the bonus material available to the public free of charge. The book contains approximately 550 pages and the bonus material is approximately 56 pages. The retail price of the book is $27.00. Aliano claimed that the retail price of the book was expected to represent the value of all the pages in the book plus the bonus material, for a total of 606 pages. He alleged that when he purchased the book, he only received the 550 pages in the printed book and did not receive the bonus material which was supposedly to be found on the book's website. Aliano claimed that the 550 pages that he received were only 91% of the 606 pages for which he paid. Thus, he claimed that the actual value of the 550 page book was $24.57 (91% of $27.00). Aliano sought damages in the amount of $2.43, which is the difference between the retail price of the book and what he claims is the actual value of the book he received. Aliano also sought damages for the lack of exclusive access to the bonus material based on Random House's decision to post the bonus material on the website for any and all who cared to retrieve it.

¶ 6 On or around August 5, 2011, Random House filed a motion to dismiss Aliano's first amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)). Random House argued that counts II and III of Aliano's first amended complaint should be dismissed because: Aliano failed to allege any deceptive conduct; Aliano failed to allege any damages; Aliano's consumer fraud claims are improperly based on a breach of promise; and Aliano failed to allege any unfair conduct, precluding his deceptive trade practices claim. Random House also argued that count IV of Aliano's first amended complaint should be dismissed because count IV was derivative of counts II and III; and Aliano could not state a claim for unjust enrichment because he alleged that there was a contract between the parties.

ΒΆ 7 On September 2, 2011, Aliano filed a response to Random House's motion to dismiss in which he voluntarily withdrew count I of his first amended complaint and requested leave to amend his complaint. On December 21, 2011, the trial court granted Random House's motion to dismiss with prejudice. In making its ruling, the trial court examined the marketing statements made in the book, and focused on the following language: "[t]his book isn't just what you hold in your hands. Using passwords hidden in this book, you can access some of the most entertaining material that didn't make it in." The trial court concluded that the text of the marketing statements does not indicate that purchase of the book is required to access the bonus material. The trial court stated that nothing in the language of the marketing statements promises exclusive access to the bonus material, and there is nothing to suggest that purchasers of the book could reasonably expect to have exclusive access to the bonus material. Further, the trial court reasoned that because the book is widely available in bookstores across the country, any consumer could find the book in a store and write down the passwords in the book that were supposed to grant access to the bonus material. Thus, the trial court concluded that consumers were not required to purchase the book in order to access the bonus material. The trial court dismissed counts II and III of ...


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