Patrick Camasta v. Jos. A. Bank Clothiers, Inc. , 761 F.3d 732 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2831
PATRICK E. CAMASTA,
Plaintiff-Appellant,
v.
JOS. A. BANK CLOTHIERS, INC., also
known as JOS. A. BANK,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 7782 — Amy J. St. Eve, Judge.
ARGUED JANUARY 8, 2014 — DECIDED AUGUST 1, 2014
Before BAUER, WILLIAMS, and TINDER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-Appellant Patrick E. Camasta
(“Camasta”) filed suit against Defendant-Appellee Jos. A. Bank
Clothiers, Inc. (“JAB”), alleging violations of the Illinois
Consumer Fraud and Deceptive Business Practices Act
(“ICFA”) in regard to certain JAB sale practices. JAB filed a
motion to dismiss Camasta’s First Amended Complaint on the
basis of a failure to state a claim under which relief could be
2 No. 13-2831
granted. The district court granted JAB’s motion and dismissed
the lawsuit in its entirety with prejudice. We find that the
district court did not abuse its discretion and affirm.
I. BACKGROUND
JAB is a company that designs, manufactures, and sells
men’s tailored and casual clothing and accessories. JAB has
thirty-one retail locations in Illinois. On July 27, 2012, Camasta
went to a JAB retail location in Deer Park, Illinois. Prior
to making his purchases, Camasta contends that he saw an
advertisement about “sale prices” for certain items. Camasta
did not specify when or where he saw the advertisements,
what exactly the advertisements said, what the “sale prices”
were, or what particular merchandise was eligible for the sale.
When Camasta visited JAB, customers were offered a
promotion: “buy one shirt, get two shirts free.” Camasta chose
to take advantage of the offer and purchased six shirts for $167
without tax. Specifically, Camasta paid $79.50 for one shirt
getting two similar shirts for free, and bought another shirt for
$87.50 allowing him to receive an additional two similar shirts
for free.
After this purchase, Camasta claims that he learned the JAB
“sale” was not actually a reduced price, but instead that it was
the JAB pattern and practice to advertise normal retail prices
as temporary price reductions. Camasta claims that this sales
technique was used in all of JAB’s Illinois retail locations. He
did not indicate when, where, or how he learned of the claimed
fraudulent sales technique. Camasta asserts that but for his
belief that the advertised sale was a limited time offer, he
would not have purchased the six shirts and could have
No. 13-2831 3
purchased the shirts for a lower price at another store, or could
have shopped around to obtain a better price elsewhere.
Camasta provided no factual support for these assertions.
Camasta did not claim that he was denied the terms or
pricing he saw advertised or that he did not receive the shirts
he selected. He does not claim that there was anything about
the shirts themselves that made them defective or caused him
to change his opinion about their value. Camasta simply
argues that his expectations for the discount he received were
unrealized when he learned that the sale was not a temporary
price reduction, but rather the normal retail price of JAB’s
merchandise.
On behalf of himself and a putative class, Camasta filed his
first complaint against JAB on August 29, 2012. Camasta’s two-
count complaint accused JAB of violating both the ICFA and
the Uniform Deceptive Trade Practices Act (“UDTPA”) based
on the company’s “sales practice of advertising the normal
retail price as a temporary price reduction.” The putative class
consisted of consumers who purchased any “on sale” item at
any JAB retail location in Illinois. In his complaint, Camasta
included a non-exhaustive list he compiled of JAB’s advertised
sales promotions and discounted prices between August 25,
2010, and August 24, 2012. The various purported sales were
promoted through print, radio, television, direct mailings,
e-mails, and in-store displays.
JAB removed the case to federal court and moved to
dismiss Camasta’s original complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). In the original complaint, Camasta
requested the court to apply the less-stringent pleading
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standard of Federal Rule of Civil Procedure 8(a) because he
claimed “unfair” conduct under the ICFA, not fraud. The
district court rejected Camasta’s request, granted JAB’s motion
to dismiss without prejudice, and gave Camasta leave to file
an amended complaint to adequately state a claim.
Camasta filed his First Amended Complaint on behalf of
himself and the putative class, claiming that JAB violated
the ICFA based on unlawful sales practices and included the
same list of JAB’s advertised sales that he included in
his original complaint. He offered no additional facts to
support the heightened pleading requirement of Rule 9(b).
Again, JAB moved to dismiss Camasta’s complaint pursuant
to Rule 12(b)(6). Camasta did not request leave to amend.
The district court found that Camasta’s First Amended
Complaint lacked “any analysis or explanation of how [Cama-
sta] fulfilled Rule 9(b)’s requirements” and that he “failed to
provide any specific details” in support of his claim under the
ICFA. The district court identified five primary reasons for the
deficiency of Camasta’s claim: (1) Camasta did not provide any
additional details about the content of the advertisement he
saw the day he purchased shirts from JAB beyond the claim
that merchandise was being offered at “sale prices” and was
“on sale;” (2) he vaguely asserted that he learned that the sale
was not a temporary price reduction, but failed to give any
particulars as to how that knowledge was brought to his
attention; (3) he provided insufficient evidence to show that
the claimed sales technique employed by JAB was part of a
general sales practice utilized by JAB; (4) the claim that he
suffered “actual damage” was speculative and conclusory
because he did not allege that he paid more for the shirts than
No. 13-2831 5
their actual value; and (5) his request for injunctive relief failed
to allege future harm from JAB’s conduct.
The district court dismissed Camasta’s First Amended
Complaint with prejudice. Camasta timely appealed to this
court.
II. DISCUSSION
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the viability of a complaint by
arguing that it fails to state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease
Revolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A district
court’s decision to grant a motion to dismiss is reviewed de
novo. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010).
To survive a motion to dismiss under Rule 12(b)(6), the
complaint must provide enough factual information to “state
a claim to relief that is plausible on its face” and “raise a right
to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007). Even so, the complaint does not
need to state all possible legal theories. Dixon v. Page, 291 F.3d
485, 486–87 (7th Cir. 2002).
Determining whether a complaint states a claim upon
which relief may be granted is dependant upon the context of
the case and “requires the reviewing court to draw on its
judicial experience and common sense.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). While all well-pled facts are taken as true
and viewed in a light most favorable to the plaintiff, Hatmaker
v. Mem’l Med. Ctr., 619 F.3d 741, 742–43 (7th Cir. 2010),
“[t]hreadbare recitals of the elements of a cause of action,
6 No. 13-2831
supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
Since Camasta’s claim was of fraud under the ICFA, the
sufficiency of his complaint is analyzed under the heightened
pleading standard set forth in Federal Rule of Civil Procedure
9(b). See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust
v. Walgreen Co., 631 F.3d 436, 446–47 (7th Cir. 2011). Rule 9(b)
requires a pleading to “state with particularity the circum-
stances constituting fraud.” Fed. R. Civ. P. 9(b). While the
precise level of particularity required under Rule 9(b) depends
upon the facts of the case, the pleading “ordinarily requires
describing the who, what, when, where, and how of the
fraud.” Anchorbank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir.
2011) (internal quotations omitted). One of the purposes of the
particularity and specificity required under Rule 9(b) is “to
force the plaintiff to do more than the usual investigation
before filing his complaint.” Ackerman v. Northwestern Mutual
Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999).
Camasta argues that he should only have to meet the less-
stringent pleading standard of Rule 8(a). This less stringent
pleading standard provides that “[a] complaint need not
narrate all relevant facts or recite the law; all it has to do is set
out a claim for relief.” Hrubec v. Nat’l R.R. Passenger Corp., 981
F.2d 962, 963 (7th Cir. 1992); Fed. R. Civ. P. 8(a)(2). However,
in analogous cases we have required the heightened pleading
standard of Rule 9(b). In Pirelli, the plaintiff argued that the
pleading requirement of Rule 8(a) should apply to his claim
because he included an allegation of fraudulent conduct that
was “unfair” under the ICFA. 631 F.3d at 446. We upheld the
district court’s dismissal of the complaint for failing to comply
No. 13-2831 7
with the requirements of Rule 9(b) because “[a] claim that
‘sounds in fraud’—in other words, one that is premised upon
a course of fraudulent conduct—can implicate 9(b)’s height-
ened pleading requirements.” Id. at 446–47 (citing Borsellino v.
Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007).
Here, Camasta claims that he was induced to purchase
shirts from JAB by their “fraudulent sales practices” that
“mislead,” “misrepresent,” and “defraud.” While Camasta
adds language of unfairness, his allegations of “unfair prac-
tice” are clearly premised upon the primary claim that JAB
utilized a fraudulent sales technique. Simply adding language
of “unfairness” instead of “misrepresentation” does not alter
the fact that Camasta’s allegations are entirely grounded in
fraud under the ICFA. Based on our holding in Pirelli, we find
the heightened pleading requirement of Rule 9(b) applies.
A. Rule 9(b) Pleading Requirements
The district court identified multiple deficiencies in Cama-
sta’s complaint. In response, Camasta claims that the only
content at issue related to JAB’s advertisement was that it said
merchandise was being offered at “sale prices” and was “on
sale.” While Rule 9(b) “does not require a plaintiff to plead
facts that if true would show that the defendant’s alleged
misrepresentations were indeed false, it does require the
plaintiff to state ‘the identity of the person making the misrep-
resentation, the time, place, and content of the misrepresenta-
tion, and the method by which the misrepresentation was
communicated to the plaintiff.’” Uni*Quality, Inc. v. Infotronx,
Inc., 974 F.2d 918, 923 (7th Cir. 1992) (citing Bankers Trust Co. v.
Old Republic Ins. Co., 959 F.2d 677, 683 (7th Cir. 1992). We do
8 No. 13-2831
not require that Camasta provide the precise date, time, and
location that he saw the advertisement or every word that was
included on it, but something more than Camasta’s assertion
that “merchandise was offered at ‘sale prices’” is needed.
Camasta argues that the precise details of the sale are
“irrelevant” because his sales receipt is sufficient evidence of
the content of the advertisement. A sales receipt provided to a
consumer after a purchase cannot show what was supposedly
advertised; the representation must have been made to him
before the purchase of the merchandise. Verb v. Motorola, Inc.,
672 N.E.2d 1287 (Ill. App. Ct. 1996). Camasta’s statement and
sales receipt are insufficient to substantiate a finding of a
“deceptive or unfair act or promise” by JAB: a requisite
condition of an allegation of fraud under the ICFA.
Camasta also argues that he should not be required to
further detail how he subjectively learned that the sales were
not temporary price reductions. This argument fails for the
same reasons given above. While we allow Camasta some
flexibility in the factual support required for his claim, a
plaintiff alleging fraud “does not have unlimited leeway” in
satisfying the particularity requirement of Rule 9(b) when the
circumstances are pleaded solely on “information and belief.”
Pirelli, 631 F.3d at 442.
Camasta then points to the list he compiled of apparent
sales conducted by JAB between August 2010 and August 2012
to assert that he has proven “context” that supports an infer-
ence that JAB participates in the “pattern and practice of
advertising” sale prices that are simply regular prices since the
merchandise is always “on sale.”
No. 13-2831 9
Again, Camasta’s sparse allegations fail to satisfy the
particularity requirement of Rule 9(b). “By requiring the
plaintiff to allege the who, what, where, and when of the
alleged fraud, the rule requires the plaintiff to conduct a
precomplaint investigation in sufficient depth to assure that
the charge of fraud is responsible and supported, rather than
defamatory and extortionate.” Ackerman, 172 F.3d at 469–70.
Camasta’s admittedly non-exhaustive list illustrates that JAB
offered a number of sales promotions to its customers over a
two-year period, but it does not show a constant or perpetual
sale of any particular merchandise. We agree with the district
court that Camasta’s list actually reduces the effect of his
argument because it shows that there were a variety of sales
for different periods of time, under different terms, and that
included different types of merchandise. Moreover, the fact
that JAB has frequent sales of various items does not support
an inference that those sales were fraudulent or deceptive.
Camasta argues that his claim is supported by the New
York Attorney General’s investigation of JAB’s sales practices
that occurred in 2003 and 2004. The investigation resulted in
JAB entering into an “Assurance of Discontinuance” and
paying a $475,000 fine in September 2004. In the Assurance of
Discontinuation, the New York Attorney General took the
position that JAB was not selling its merchandise at a regular
price and instead had items that were “perpetually ‘on sale.’”
The Attorney General stated that he believed those practices
had the ability to mislead customers into thinking they were
receiving a temporary price reduction when they in fact were
not. JAB entered into the agreement stating specifically that
10 No. 13-2831
“[JAB] is willing to enter into this Assurance without admitting
to the Attorney General’s finding or to any violation of law.”
The 2004 Assurance of Discontinuation that JAB entered
into does not affect the outcome of this case. We agree with the
district court that Camasta failed to explain how the New York
advertising practices that were the subject of the 2004 investi-
gation are the same or similar to practices employed by JAB
in Illinois between 2009 and 2012. Camasta argues that he
sufficiently proved this simply by stating in his complaint
that the practices were “the exact type of fraudulent sales
practices complained of here.” While the facts of Camasta’s
complaint are viewed in his favor, simply stating that the sales
practices are the same in two different states during two
different time periods without any factual support is insuffi-
cient to satisfy the pleading requirement. See Twombly, 550 U.S.
at 555 (“[A] plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclu-
sions.”) (internal citation omitted).
In short, the district court correctly concluded that Rule 9(b)
applied and that its requirements were not satisfied by Cama-
sta’s First Amended Complaint.
B. Actual Damages
The intent of the Illinois Consumer Fraud and Deceptive
Business Practices Act is “to protect consumers, borrowers, and
business persons against fraud, unfair methods of competition,
and other unfair and deceptive business practices.” Siegel v.
Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010) (citing Robinson v.
Toyota Motor Credit Corp., 201 Ill.2d 403, 416–17 (2002)). In order
to state a claim under the ICFA, a plaintiff must show: “(1) a
No. 13-2831 11
deceptive or unfair act or promise by the defendant; (2) the
defendant’s intent that the plaintiff rely on the deceptive or
unfair practice; and (3) that the unfair or deceptive practice
occurred during a course of conduct involving trade or
commerce.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574
(7th Cir. 2012).
When the plaintiff is a private party as Camasta is here, an
action brought under the ICFA requires the plaintiff to show
he suffered “actual damage” as a result of the defendant’s
violation of the act. 815 ILCS 505/10a; Kim v. Carter’s Inc., 598
F.3d 362, 365 (7th Cir. 2010); Mulligan v. QVC, Inc., 888 N.E.2d
1190, 1196 (Ill. App. Ct. 2008). In a private ICFA action, the
element of actual damages “requires that the plaintiff suffer
actual pecuniary loss.” Kim, 598 F.3d at 365 (internal citation
omitted). The district court correctly found that Camasta failed
to allege facts showing he suffered actual damage.
Central to Camasta’s argument is the claim that the
advertised “sale prices” were in fact just the normal or regular
retail prices being promoted as temporary price reductions.
Camasta claims that this sales technique encourages a sense of
urgency and makes customers feel “pressure” to make pur-
chases before an expected deadline. However, Camasta failed
to provide any evidence that he paid more than the actual
value of the merchandise he received.
Without factual support or justification, Camasta asserts
that he could have shopped around and found the same shirts
for a lower price. Yet, he fails to assert that he did, in fact, shop
around and find the same shirts for a lower price. The district
court found Camasta’s statement to be “speculative
12 No. 13-2831
and conclusory” and insufficient to prove actual damages. We
agree.
In Kim, this court affirmed the district court’s dismissal of
a claim for a violation of the ICFA when the plaintiffs failed to
prove actual damages. 598 F.3d at 365. The defendant clothing
retailer used price tags displaying “suggested prices,” fre-
quently accompanied by an advertised percentage discount off
of that amount. Id. at 363. The plaintiffs argued that these
advertisements gave consumers the impression that they
were receiving a “deal” on the merchandise when, in fact, the
“suggested prices” were inflated in order to sell products at a
regular price without actual savings. Id. This court, however,
denied plaintiffs’ claim because it found that they “got the
benefit of their bargain.” In other words, the plaintiffs agreed
to pay a certain price for the defendant’s merchandise, did not
allege the merchandise was defective or worth less than what
they actually paid, and did not allege that they could have
shopped around and found a better price in the marketplace.
Id. at 365–66.
Camasta argues that he proved actual damage by stating
that he could have “shopped around and obtained a better
price in the marketplace.” This statement alone cannot support
a claim of actual damage. As this court found in Ackerman,
Camasta is required to at least conduct a minimal “pre-
complaint investigation” to gather sufficient factual informa-
tion to support his fraud claim. 172 F.3d at 469. While Camasta
claims that he had an “impractical ability to comparison shop,”
there is no reason why he could not have gone to other stores
after his purchase from JAB to discover whether he could have
found a better price for similar shirts elsewhere.
No. 13-2831 13
Camasta then claims he paid more than the shirts were
worth because, when all reasonable inferences are viewed in
his favor, he essentially paid $167 plus tax for two shirts: one
for $87.50 and one for $79.50. Since he actually received six
shirts for that price, Camasta claims that a reasonable inference
is to divide the price of each shirt by three to get the true value
of the shirts: that is, the first type of shirt is valued at $29.16
and the second at $26.50. Camasta claims, without any factual
support, that he paid more than the value of the shirts when he
spent $87.50 on a shirt worth $29.16 and spent $79.50 on a shirt
worth $26.50. The prices Camasta contends are the true values
of the shirts are mere guesses void of any substantial analysis.
Even under Rule 8(a), “naked assertions devoid of further
factual enhancement” are insufficient to support a claim. Iqbal,
556 U.S. at 678 (internal citations omitted). Without any facts
to support his conclusory assertions of actual damage, Camasta
has not sufficiently pleaded that he paid more than the actual
value of the merchandise he received.
C. Injunctive Relief
Finally, Camasta makes a claim for injunctive relief.
Camasta argues that the district court improperly dismissed
his claim for injunctive relief under the ICFA because he
sufficiently alleged in another case that the conduct in question
was deceptive. Camasta v. Omaha Steaks Intern., No. 12 CV
08285, 2013 WL 4495661, at *8 (N.D. Ill. Aug. 21, 2013). While
Camasta successfully alleged a deceptive sales practice in that
case, he failed to do so here. Absent a showing of a violation of
the ICFA, a plaintiff is not entitled to injunctive relief. See, e.g.,
B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 76 F. Supp. 2d 868,
873 (N.D. Ill. 1999).
14 No. 13-2831
Likewise, Camasta cannot obtain injunctive relief under the
UDTPA because he failed to sufficiently allege that JAB’s
conduct will likely cause him harm in the future. See
Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine
Wine, Ltd., 909 N.E.2d 848, 857 (Ill. App. Ct. 2009) (“To be
eligible for injunctive relief under the Deceptive Practices Act,
a plaintiff must show that the defendant’s conduct will likely
cause it to suffer damages in the future.”). Camasta’s claim is
based solely on the conjecture that because JAB harmed him in
the past, they are likely to harm him in the future. However,
“[p]ast exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief.” O’Shea
v. Littleton, 414 U.S. 488, 495 (1974). Since Camasta is now
aware of JAB’s sales practices, he is not likely to be harmed by
the practices in the future. Without more than the speculative
claim that he will again be harmed by JAB, Camasta is not
entitled to injunctive relief.
III. CONCLUSION
The district court’s dismissal of Camasta’s First Amended
Complaint is AFFIRMED.