Clark, Evelyn v. Experian Information , 256 F. App'x 818 ( 2007 )


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  •                       NONPRECEDENTIAL DISPOSITION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.