United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JORGE ALONSO UNITED STATES DISTRICT JUDGE.
using defendant's website to purchase a ticket for air
travel, plaintiff Patricia Flores (“Flores”) was
offered the option to purchase travel insurance, and she
accepted. When plaintiff learned defendant United Airlines
(“United”) would receive a cut of the money she
paid for insurance, Flores brought this suit, asserting
claims for violation of the Illinois Consumer Fraud and
Deceptive Trade Practices Act and the RICO (“Racketeer
Influenced and Corrupt Practices Act”) statute, as well
as a claim for unjust enrichment. United moves to dismiss. For
the reasons set forth below, the Court grants the motion.
following facts are from plaintiff's complaint, and the
Court takes them as true.
website, United sells tickets for the air transportation it
provides. After a customer such as plaintiff has chosen a
flight but before she has purchased it, United offers the
customer the option to purchase travel insurance.
customers are not required to purchase travel insurance in
order to purchase a ticket to fly, but they are required
either to accept or reject the option of travel insurance.
Under the heading “United Travel
Options, ” the website says, “Cover your
trip with Travel Guard ® insurance[.]” (Am. Complt.
¶¶ 24-25). Below that, the website reads:
miss out! Plan includes:
--Flight refund if you can't travel for covered illness
-- Coverage for lost baggage including laptops, phones and
(Am. Complt. ¶ 27). A customer then has two options from
which to choose: (1) “Yes, insure my trip for only
$[price;]” or (2) “No, I will travel without
insurance for my [ticket price] trip.” Below the two
options, the website says, “Coverage is offered by
Travel Guard Group, Inc.” (Am. Complt. ¶ 33).
for her part, purchased a travel insurance policy from
United's website on February 23, 2018. She does not say
how much she paid. She later “received an email from
the insurance provider attaching her policy, which did not
reference United.” (Am. Complt. ¶ 51).
alleges that “[w]hen United sends a receipt, it states
that the cost of the trip insurance is remitted to Travel
Guard Group, Inc.” (Am. Complt. ¶ 33).
Specifically, plaintiff alleges the receipt “lists the
specific amount charged for ‘Trip insurance' and
states it will be ‘Billed separately by Travel Guard
Group, Inc.” (Am. Complt. ¶ 36). Plaintiff does
not allege that she received such a receipt.
point during plaintiff's transaction to purchase travel
insurance did United disclose to her that it had a financial
interest in her purchase of travel insurance, but it did.
Plaintiff alleges “United retains or ultimately
receives for itself a portion of the funds for every trip
insurance policy its customers purchase on its
website.” The portion United receives is described by
plaintiff variously as: a kickback, a commission, an illegal
commission and a hidden profit center. (Am. Complt.
¶¶ 41, 43 & 44). According to plaintiff's
complaint, “United has also concealed and/or failed to
disclose to state regulators the fact that it receives a
commission or kickback every time a customer elects to
purchase a travel insurance product through its
website.” (Am. Complt. ¶ 41).
alleges that the price of the travel insurance “is set
by the insurer, not United.” (Am. Complt. ¶ 48).
Plaintiff alleges that neither the dates of travel nor the
route affects the insurance price. She alleges the price for
each travel insurance policy purchased on United's
website is “based solely on the overall ticket
price.” (Am. Complt. ¶ 45). Plaintiff also alleges
that “[b]ecause the price of travel insurance . . .
incorporates an illegal commission paid to United, ”
customers pay an inflated price. (Am. Complt. ¶ 46).
STANDARD ON A MOTION TO DISMISS
Court may dismiss a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure if the plaintiff fails
“to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Under the
notice-pleading requirements of the Federal Rules of Civil
Procedure, a complaint must “give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). A complaint need not provide detailed
factual allegations, but mere conclusions and a
“formulaic recitation of the elements of a cause of
action” will not suffice. Twombly, 550 U.S. at
555. To survive a motion to dismiss, a claim must be
plausible. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Allegations that are as consistent with lawful conduct as
they are with unlawful conduct are not sufficient; rather,
plaintiffs must include allegations that “nudg[e] their
claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
considering a motion to dismiss, the Court accepts as true
the factual allegations in the complaint and draws
permissible inferences in favor of the plaintiff. Boucher
v. Finance Syst. of Green Bay, Inc., 880 F.3d 362, 365
(7th Cir. 2018). Conclusory allegations “are not
entitled to be assumed true, ” nor are legal
conclusions. Iqbal, 556 U.S. at 680 & 681
(noting that a “legal conclusion” was “not
entitled to the assumption of truth[;]” and rejecting,
as conclusory, allegations that “‘petitioners
‘knew of, condoned, and willfully and maliciously
agreed to subject [him]' to harsh conditions of
confinement”). The notice-pleading rule “does not
unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Iqbal, 556
U.S. at 678-679.
to Rule 9(b) of the Federal Rules of Civil Procedure, the
“circumstances constituting fraud” must be
alleged with particularity. Fed.R.Civ.P. 9(b).
Plaintiff's claim for consumer fraud
Count I, plaintiff asserts that defendant violated the
Illinois Consumer Fraud and Deceptive Trade Practices Act
(“ICFA”), 815 ILCS 505/1 et seq. To state a
claim, plaintiff must allege: “(1) a deceptive act or
practice by the defendant; (2) the defendant's intent
that the plaintiff rely on the deception; (3) the occurrence
of the deception in the course of conduct involving trade or
commerce, and (4) actual damage to the plaintiff (5)
proximately caused by the deception.” Avery v.
State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 180
(Ill. 2005). “Recovery may be had for unfair as well as
deceptive conduct.” Robinson v. Toyota Motor Credit
Corp., 201 Ill.2d 403, 417 (Ill. 2002).
Transactions outside Illinois
argues that plaintiff cannot pursue her claim under the ICFA,
because the ICFA does not apply “to fraudulent
transactions which take place outside Illinois.”
Avery v. State Farm Auto. Ins. Co., 216 Ill.2d 100,
185 (Ill. 2005). In Avery, the Illinois Supreme
Court explained that “a fraudulent transaction may be
said to take place within a state if the circumstances
relating to the transaction occur primarily and substantially
within that state.” Avery, 216 Ill.2d at 186.
There, the Illinois Supreme Court concluded “the
out-of-state plaintiffs in this case have no cognizable cause
of action under the Consumer Fraud Act.”
Avery, 216 Ill.2d at 188.
plaintiff alleges that she is a resident of Texas. She does
not say whether she was in Texas or elsewhere when she used
United's website to purchase travel insurance. She does
not say whether she ever made a claim under the
travel-insurance policy or, if so, where she was when she
made a claim. She does not say what travel itinerary the
travel insurance was meant to protect.
in her complaint, plaintiff alleges that United is
headquartered in Illinois and that the “United
employees responsible for the presentation and operation of
the ticketing process on United.com work in Illinois.”
(Am Complt. ¶ 16). The facts that a defendant is
headquartered in Illinois, that the fraudulent scheme
emanated from Illinois and/or that a website was designed in
Illinois, however, do not suffice to establish that a
transaction occurred primarily and substantially in Illinois.
Avery, 216 Ill.2d at 189 (“The appellate
court's conclusion that a scheme to defraud was
‘disseminated' from [defendant's Illinois]
headquarters is insufficient.”); Robinson v. DeVry
Education Group, Inc., Case No. 16 CV 7447, 2018 WL
828050 at *4 (N.D. Ill. Feb. 12, 2018) (dismissing ICFA claim
where defendant was headquartered in Illinois and
“operate[d] its website in Illinois, where it published
misrepresentations, ” because “the administration
of defendant's business in Illinois is insufficient to
give a nonresident plaintiff a claim under Illinois
statutes.”); Sgouros v. Transunion Corp., Case
No. 14 C 1850, 2016 WL 4398032 at *5 (N.D. Ill. Aug. 18,
2016) (rejecting claim that website transaction with company
headquartered in Illinois occurred primarily and
substantially in Illinois, because that was “outweighed
by Plaintiff's residence in Missouri, his search for and
purchase of Defendants' product in Missouri and his
attempt to benefit from that product to acquire an auto loan
in Missouri”); Bagg v. HighBeam Research,
Inc., Case No. No. 12 C 9756, 2013 WL 3466846 at *5
(N.D. Ill. July 10, 2013) (“[E]ven if the Court assumes
[defendant's] website is designed in Illinois and the
alleged deceptive conduct was disseminated to Plaintiffs from
Illinois, this is insufficient for the purposes of
ICFA.”); Haught v. Motorola Mobility, Inc.,
Case No. 12 C 2515, 2012 WL 3643831 at *4 (N.D. Ill. Aug. 23,
2012) (rejecting plaintiff's attempt “to
distinguish the instant case by emphasizing that the alleged
misrepresentations were designed in Illinois and disseminated
on a website registered and hosted in Illinois”). Thus,
plaintiff has not plausibly alleged the transaction occurred
primarily and substantially in Illinois.
brief, plaintiff argues that the terms of service on
United's website state that disputes arising out of the
use of the website are governed by Illinois law. Plaintiff
does not include any such allegations in her complaint, so
the Court will not consider this argument. Plaintiff invites
the Court to take judicial notice of the contents of
United's website, but the contents of a website, which
can be changed in mere minutes, are not an appropriate
subject for judicial notice. Fed.R.Civ.P. 201(b) (“The
Court may judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within
the trial court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”).
has not alleged that the transaction occurred primarily and
substantially in Illinois. Accordingly, she has not stated a
claim under the Illinois Consumer Fraud and Deceptive Trade
Practices Act. That is not her claim's only deficiency.
defendant argues that plaintiff has not plausibly alleged an
unfair practice within the meaning of the ICFA. In
“determining whether a given course of conduct or act
is unfair, ” courts must consider three factors:
“(1) whether the practice offends public policy; (2)
whether it is immoral, unethical, oppressive, or
unscrupulous; [and] (3) whether it causes substantial injury
to consumers.” Robinson, 201 Ill.2d at 417-18.
The Illinois Supreme Court has concluded that a plaintiff
need not establish all three. Rather, “[a] practice may
be unfair because of the degree to which it meets one of the
criteria or ...