Clark v. Experian Information Solutions, Inc.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 1, 2007
Decided November 30, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3330 Appeal from the United States
District Court for the Northern
Evelyn Clark and Bradley Eldred, District of Illinois, Eastern Division
Plaintiffs-Appellants,
No. 03 C 7882
v.
James F. Holderman, Chief Judge.
Experian Information Solutions, Inc.
and ConsumerInfo.com, Inc.,
Defendants-Appellees.
ORDER
Evelyn Clark and Bradley Eldred pursue this putative class action lawsuit
against ConsumerInfo.com and its owner, Experian Information Solutions, Inc.,
asserting claims for deceptive trade practices, negligent misrepresentation, and
unjust enrichment under Illinois law. The district court denied class certification
and granted summary judgment to the corporations on Clark and Eldred’s
individual claims. Clark and Eldred appeal both the denial of class certification and
the judgments against them. We affirm.
No. 06-3330 Page 2
I.
Evelyn Clark and Bradley Eldred each filled out a form on a website,
ConsumerInfo.com (CIC), requesting a free credit report which was offered in
conjunction with a free one-month trial subscription for a credit monitoring service.
They input their personal information, including credit card numbers, and agreed to
the terms on the website. They claim they did not realize, however, that if they did
not cancel the trial subscription with the credit monitoring service within thirty
days, CIC would bill them $79.95 for an annual subscription. Both failed to cancel
the subscription within the allotted time, and a charge appeared for the annual fee
on each of their credit card statements the following month. Clark, after noticing
the charge on her credit card statement, contacted both CIC and her credit card
company. She received a pro-rata refund of $70.99 from CIC, and the credit card
company reimbursed her an additional $8.95. Eldred paid the fee for three years
before disputing the charge in the fourth year, claiming that he had not authorized
any of the annual charges.
The CIC website visited by Clark and Eldred was not very clear. In
particular, the website emphasized that the credit report was “free” and involved
“no obligation.” The disclosure for the need to cancel the accompanying credit
monitoring service was obscurely placed in a section of the application inaptly
labeled “Privacy Policy Notice.” The Federal Trade Commission filed a complaint
alleging that the marketing for the credit reporting service was deceptive and in
violation of the Federal Trade Commission Act. CIC settled the dispute without
admitting the allegations, but agreed to refund consumers’ charges and pay
$950,000 to the Commission. The Better Business Bureau also reacted to the
website by suspending CIC’s membership based on a pattern of complaints and
giving CIC an “F” rating for its “questionable marketing method.” Additionally,
VISA met with CIC to discuss the high number of chargebacks, in which VISA
would refund to complaining customers the purchase price, incurred as a result of
CIC’s free credit report marketing. Clark and Eldred were among the consumers
allegedly deceived by this website.
Claiming that the website had misled her into enrolling in a credit
monitoring service that she did not want, Clark filed suit in Illinois state court as
an individual and on behalf of a class, and the defendants removed the case to the
Northern District of Illinois based on diversity of citizenship. The second amended
complaint added plaintiff Eldred and alleged claims under the Illinois Consumer
Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/2 (“ICFA”),
negligent misrepresentation, and unjust enrichment. Plaintiffs proposed certifying
No. 06-3330 Page 3
a class of all Illinois residents who were charged for the credit monitoring service
after August 29, 2000, but never accessed the service. (Plaintiffs limited the
proposed class to those who never accessed the service since they were most likely
deceived by the marketing.) The district court denied class certification, finding
that class issues did not predominate. Following cross-motions for summary
judgment on the individual claims, the district court granted summary judgment to
CIC. Plaintiffs appeal.
II.
We review the district court’s decision to deny class certification for abuse of
discretion. Payton v. County of Carroll, 473 F.3d 845, 847 (7th Cir. 2007) (citation
omitted). Federal Rule of Civil Procedure 23(a) outlines the requirements for
pursing a class action, stating:
One or more members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so numerous that joinder
of all members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a). Thus, as we have explained, “[t]he district court may certify a
class of plaintiffs if the putative class satisfies all four requirements of Federal Rule
of Civil Procedure 23(a) — numerosity, commonality, typicality, and adequacy of
representation — and any one of the conditions of Rule 23(b).” Oshana v. Coca-Cola
Co., 472 F.3d 506, 513 (7th Cir. 2006) (citations omitted). In this case, plaintiffs
sought certification under section 23(b)(3), which requires that “the questions of law
or fact common to the members of the class predominate over any questions
affecting only individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the controversy.” Fed. R.
Civ. P. 23(b)(3). Plaintiffs bear the burden of proving that a class should be
certified. Oshana, 472 F.3d at 513 (citation omitted).
The district court denied class certification because the plaintiffs failed to
demonstrate that common issues predominate under Rule 23(b)(3). Specifically, the
district court focused on the elements of a claim under ICFA, holding that
establishing such a claim required individualized proof. Because of the need for
individualized proof, the district court found that common class issues did not
No. 06-3330 Page 4
predominate. Plaintiffs argue that the website was deceptive per se, and therefore
no individualized finding of proximate cause would be required.
We agree with the district court and our prior case law confirms that a claim
under ICFA requires individualized proof. A claim for consumer fraud under the
ICFA contains five elements: “(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., 835 N.E. 2d 801, 856 (Ill. 2005) (citation omitted).
Furthermore, “in a case alleging deception under the [Consumer Fraud] Act, it is
not possible for a plaintiff to establish proximate causation unless the plaintiff can
show that he or she was, ‘in some manner, deceived’ by the misrepresentation.” Id.
at 861 (citation omitted). Satisfaction of this element requires individualized proof.
We previously considered and rejected the argument that per se
deceptiveness absolves a plaintiff from making individualized proofs of proximate
cause under the ICFA. See Oshana, 472 F.3d at 513-15. We concluded that “a
private cause of action under the ICFA requires a showing of proximate causation.”
Id. at 514-15 (citing 815 Ill. Comp. Stat. 505/10a; Oliveira v. Amoco Oil Co., 776
N.E.2d 151, 160 (Ill. 2002) (“Unlike an action brought by the Attorney General
under [815 Ill. Comp. Stat. 505/2], which does not require that ‘any person has in
fact been misled, deceived or damaged[,]’. . . a private cause of action brought under
[815 Ill. Comp. Stat. 505/10a] requires proof of ‘actual damage.’ . . . [and] proof that
the damage occurred ‘as a result of’ the deceptive act or practice.” (citations
omitted))). Accordingly, to demonstrate proximate cause each member of the class
would have to prove that the deceptive nature of the website caused each of them to
enroll in the credit monitoring service and incur unwanted charges. Such causation
cannot necessarily be inferred from the fact that the class is defined as members
who did not access the service; individuals could have enrolled in the service
knowingly and chosen not to access it. Furthermore, even though the Federal
Trade Commission and the Better Business Bureau found the website to be
deceptive, this does not mean that all class members were deceived. Although not
prominently displayed, the website did contain notice of the need to cancel, which
individuals could have seen. Illinois law requires a finding of proximate causation
under ICFA, and does not provide for such causation to be inferred. Oliveira, 776
N.E.2d at 164 (“[T]o properly plead the element of proximate causation in a private
cause of action for deceptive advertising brought under the Act, a plaintiff must
allege that he was, in some manner, deceived.” (citing Zekman v. Direct Am.
Marketers, 695 N.E.2d 853, 862 (Ill. 1998)). Based on this interpretation of ICFA,
and the additional need to assess individual damages depending on the length of
No. 06-3330 Page 5
enrollment and any refunds procured, the district court concluded that class issues
did not predominate. 1 Such a determination follows rationally from the need for
individualized proof and is not an abuse of discretion. See Keele v. Wexler, 149 F.3d
589, 592 (7th Cir. 1998).
Plaintiffs further argue that even if class certification was not granted
entirely, it should have been granted in part under Federal Rule of Civil Procedure
23(c)(4)(A). The district court is not obligated to grant partial certification if
particular issues are common to a class. Fed. R. Civ. P. 23(c)(4)(A) (“an action may
be brought or maintained as a class action with respect to particular issues”
(emphasis added)). Again, we review the district court’s decision to deny partial
certification for an abuse of discretion. Payton, 473 F.3d at 847 (citation omitted).
Although the district court did not explicitly address partial certification, we find
the rationale for denying class certification generally to be applicable. Because of
the need for individualized findings in such a large class, little efficiency would be
gained by certifying a class for only particular issues. We find no basis for
concluding that the district court abused its discretion, which as previously noted is
a difficult standard to meet. Keele, 149 F.3d at 592. Accordingly, we affirm the
district court’s decision denying class certification and partial certification.
Since the district court did not abuse its discretion in denying certification of
the class claims, we proceed to analyze the claims of the individual plaintiffs on
which the district court granted summary judgment to CIC. We review the district
court’s grant of summary judgment de novo. Clark v. State Farm Mut. Auto. Ins.
Co., 473 F.3d 708, 712 (7th Cir. 2007) (citation omitted). Regarding Clark’s claims,
1
We need not discuss the certification of the negligent misrepresentation or unjust
enrichment claims because plaintiffs have not sufficiently addressed those claims in their
opening brief on appeal, and those claims are therefore forfeited. Steen v. Myers, 486 F.3d 1017,
1020-21 (7th Cir. 2007) (citing Luellen v. City of E. Chicago, 350 F.3d 604, 612 (7th Cir. 2003),
for the proposition that “arguments not made in the appellant’s brief are forfeited”).
Specifically, plaintiffs address the claims in two sentences near the conclusion of their briefs
with a citation only to the district court opinion and only in relation to Eldred’s claims. Plaintiffs
purport to preserve those claims in their reply brief because the district court used the same
analysis for each of the three claims. Plaintiffs, however, do not discuss the elements of these
causes of action or provide substantive analysis, resulting in forfeiture. See J.S. Sweet Co., Inc. v.
Sika Chem. Corp., 400 F.3d 1028, 1035 n.2 (7th Cir. 2005) (citation omitted). Even if the court
were to reach these claims, they would similarly fail because negligent misrepresentation
requires a showing of reliance and unjust enrichment requires a showing of damages for each
plaintiff. See Clark v. Experian Info., Inc., 233 F.R.D. 508, 511 (N.D. Ill. 2005) (collecting
cases).
No. 06-3330 Page 6
the opening brief refers to the factual basis for her claims in only one paragraph
and mentions her name in the conclusion; the brief provides no analysis or citations
regarding her claims. All we know for sure is that as soon as she complained, she
got all of her money back. This is insufficient argumentation to preserve the issue
on appeal and is forfeited. Ross Bros. Constr. Co. v. Int’l Steel Servs., Inc., 283 F.3d
867, 875 (7th Cir. 2002) (noting forfeiture of “arguments raised in a conclusory or
underdeveloped manner on appeal”). The only remaining claims are therefore
those of Eldred.
The district court determined that Eldred failed to demonstrate proximate
cause. Eldred argues that the he satisfied the element of proximate cause because
the website deceived him. Eldred’s own deposition testimony, however, fails to
demonstrate his deception. Specifically, Eldred’s memory is insufficient to make his
case, which is understandable given that Eldred enrolled in the credit monitoring
service in 2001 and paid bills for the service for three years before canceling the
service in 2005. He testified that he did not remember what he read on the website.
(“Q. . . . when you were on the website, did you read the language? A. Well, I can’t
remember whether I did or not . . . I’m not even sure if this is the same [web] page I
was looking at when I ordered the credit report, so I don’t know.”) He
acknowledged, however, after counsel read to him the language on the website, that
he could have understood from that language in the terms that he needed to cancel
his trial membership to avoid a charge. (“Q. If you had read this language at the
time you visited the website, you would have understood that you were going to be
charged $79.95 after the [free trial] membership expired? A. That’s what it says
here.”) This is insufficient to prove that the website deceived Eldred into enrolling
in the credit monitoring service. Eldred even speculated at his deposition that he
could have returned to the website the following day to cancel his enrollment,
suggesting that he could have read and known about the need to cancel the
subscription (“maybe I went in for the free [credit report] and the next day I went in
and cancelled”). In sum, Eldred has failed to show that the website proximately
caused his alleged deception and enrollment in the credit monitoring service.
Accordingly, CIC is entitled to summary judgment.
III.
Because the ICFA requires individualized proof of proximate cause, the district
court did not abuse its discretion in finding that class issues did not predominate and
denying class certification or partial certification for particular issues. Regarding
summary judgment on the individual claims, plaintiffs forfeited Clark’s claims by
failing to pursue them on appeal. Eldred’s claims fail because his testimony does not
No. 06-3330 Page 7
demonstrate that the website deceived him into enrolling in the credit monitoring
service. Accordingly, we AFFIRM the judgment of the district court in all respects.