Brian Cleary, et al v. Philip Morris Incorporated, et al

Filing

Filed opinion of the court by Judge Manion. AFFIRMED. Richard D. Cudahy, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6332521-3] [6332521] [10-2960]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 10-2960
B RIAN C LEARY, et al.,
Plaintiffs-Appellants,
v.
P HILIP M ORRIS INCORPORATED , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 1596—Matthew F. Kennelly, Judge.

A RGUED A PRIL 7, 2011—D ECIDED A UGUST 25, 2011

Before C UDAHY, M ANION, and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. This is a class action suit brought
against Philip Morris, Inc., and several other tobacco
companies and tobacco-related entities. The plaintiffs
allege that for years the tobacco companies conspired to
conceal the facts about the addictive and dangerous
nature of cigarettes by intentionally using incomplete,
misleading, or untruthful marketing and advertising.
The plaintiffs’ putative class consists of Illinois residents

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who bought or smoked cigarettes, and they seek the
disgorgement of the tobacco companies’ cigarette
revenue under the theory of unjust enrichment. After
extensive proceedings, the district court dismissed the
case, ruling that the plaintiffs had failed to state a claim
upon which relief could be granted. The court entered
judgment for the defendants, and the plaintiffs now
appeal a variety of issues. We affirm.

I. Background
In 1998, the plaintiffs filed this class action case in Illinois
state court against a host of parties in the cigarette business. As amended in 2000, the complaint proposed three
different class action claims: (1) an “addiction” claim
with a class consisting of all Illinois residents who
bought cigarettes during the time period from 1953 to 1965
when the tobacco companies allegedly concealed facts
about the addictive nature of cigarettes; (2) a “youth
marketing” claim with a class consisting of all Illinois
residents who began smoking as minors; and (3) a “lights”
claim with a class consisting of all Illinois residents who
bought Philip Morris’s Marlboro Lights cigarettes. This
First Amended Complaint stated causes of action under
the Illinois Consumer Fraud and Deceptive Business
Practices Act (ICFA), 815 ILCS 505, and the commonlaw doctrine of unjust enrichment.
A year later, the plaintiffs withdrew their request to
certify the class in the “lights” claim because there was
another class action lawsuit with a similar claim progressing in another Illinois court. Accordingly, the plaintiffs

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later filed a Second Amended Complaint in 2005, which
set out only the “addiction” and “youth marketing”
claims. The “lights” claim in the parallel lawsuit ultimately proved unsuccessful before the Illinois Supreme
Court. See Price v. Philip Morris, Inc., 848 N.E.2d 1 (Ill. 2005).
But in 2008, a United States Supreme Court decision in
an unrelated case reopened the door to the possibility of
a successful “lights” claim. See Altria Group, Inc. v. Good,
555 U.S. 70 (2008). The plaintiffs then filed a Third
Amended Complaint in 2009, seeking to reinstate the
“lights” claim in this case, along with the still-pending
“addiction” and “youth marketing” claims. The new
“lights” claim was also expanded to encompass other
defendants who made light cigarettes besides Philip
Morris, with a larger plaintiff class including all Illinois
residents who had purchased and smoked any brand of
“low tar,” “light,” or “ultra light” cigarettes in addition
to Philip Morris’s Marlboro Lights. By this time, the
legal theory that the defendants had violated the ICFA
had been dropped—presumably because Illinois Supreme
Court case law had made class certification under that
statute difficult in a case where individual damages and
deception were not alleged. See, e.g., Avery v. State Farm
Mut. Auto. Ins. Co., 835 N.E.2d 801, 850 (Ill. 2005) (deception and actual damages are elements of a cause of
action under the ICFA). Thus, only a theory of unjust
enrichment remained.
One of the new “lights” defendants named in the case,
Lorillard Tobacco Company, removed the suit to federal
court under the Class Action Fairness Act of 2005
(CAFA), 28 U.S.C. § 1332(d). The plaintiffs moved to

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remand the case, arguing that the “lights” claim related
back to the First Amended Complaint filed nine years
earlier, and so a new window for a removal was not
opened. The district court denied the motion, finding that
the claim against Lorillard did not relate back and the
removal was proper. Then, after ruling that any claim
against Lorillard was time-barred, the district court
dismissed it from the case. The plaintiffs subsequently
argued that since Lorillard was the reason for the
case’s removal to federal court and since it was now no
longer a party to the suit, the case should be returned
to state court. The district court denied the request.
After Lorillard was dismissed, the other defendants
in the “lights” claim moved for dismissal, arguing
that the claims against them were also time-barred. The
plaintiffs conceded that all of the “lights” defendants
besides Philip Morris should be dismissed; they argued,
however, that their claim against Philip Morris was still
viable for every brand of “light” or “low tar” cigarette
manufactured by Philip Morris. Philip Morris disagreed,
contending that since Marlboro Lights was the only
brand of cigarettes mentioned in the First Amended
Complaint, only that claim should go forward. Ultimately,
the district court restricted the “lights” claim only to
the Marlboro Lights brand. Later, the district court also
dismissed the “youth marketing” claim as time-barred.
In 2010, the plaintiffs filed a Fourth Amended Complaint reflecting the prior changes in the case. This final
version of the complaint alleged only the “addiction” claim
and the “lights” claim: the “addiction” claim proposed a
class consisting of all Illinois residents who purchased

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or consumed the defendants’ tobacco products during
the time when the defendants had deceptive marketing,
and the “lights” claim proposed a class of all Illinois
residents who purchased or consumed Philip Morris’s
Marlboro Lights cigarettes. Both classes’ claims were
based solely on the theory of unjust enrichment. Essentially, the plaintiffs’ argument was that the defendant
tobacco companies knowingly and intentionally concealed the truth from consumers about cigarettes’ addictiveness and health problems (the “addiction” claim),
and about the tar and nicotine found in Marlboro Lights
(the “lights” claim)—and that it was through this
wrongful behavior that the defendants were unjustly
enriched. The plaintiffs explicitly disavowed any need
to allege that they were deceived or injured by the defendants’ actions. Instead, they argued that the violation
of their right as consumers to know the truth about cigarettes and the egregious behavior of the tobacco companies were sufficient to support their cause of action.
And they claimed that the principles of justice, equity,
and good conscience would be violated if the defendants
kept their earnings. Thus all the revenue from cigarette
sales should be disgorged.1
The defendants filed a motion to dismiss the Fourth
Amended Complaint, arguing that the unjust enrichment

1

At oral argument, there was a question regarding whether
the plaintiffs are seeking to disgorge all cigarette revenue
or merely profits. In their complaint, the plaintiffs specifically
request all revenue from the cigarette sales. We will thus
assume that they are seeking revenue.

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theory failed as a matter of law. The district court granted
the defendants’ motion and dismissed the case with
prejudice. The plaintiffs then filed a motion for reconsideration, but the district court denied the motion.
This appeal followed.

II. Analysis
In its brief on appeal, the plaintiffs contest several
decisions made by the district court. We will first
briefly address two minor decisions: (1) the court’s decision not to remand the case to state court once the defendant Lorillard was dismissed; and (2) the court’s decision not to expand the “lights” claim to other brands
manufactured by Philip Morris besides Marlboro Lights.
Then we will address the main issue on appeal: the
district court’s holding that the plaintiffs’ unjust enrichment claim failed to state a claim upon which relief
could be granted.

A. Remand to State Court
The first issue raised by the plaintiffs in their appellate
brief is whether the district court erred in not
remanding the case to state court once the defendant
Lorillard—the diverse party whose presence in the suit
was the reason for removal to federal court—was dismissed from the case. At oral argument, counsel for
plaintiffs conceded that the district court properly had
jurisdiction over the case. Counsel then stated that the
district court could have exercised its discretion and

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remanded the case to state court, but that it did not do
so—and counsel seemed to indicate that it was abandoning this issue on appeal.
Counsel is correct to abandon this issue, as the district
court committed no error. A federal court’s jurisdiction
under CAFA is determined at the time of removal. In re
Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 380 (7th Cir.
2010). Here, there was no question that the case was
properly removed under CAFA. And “nothing filed after
removal affects jurisdiction. . . . [L]ater changes that
compromise diversity do not destroy jurisdiction.” Id. at
380-81; see also Braud v. Transp. Serv. Co., 445 F.3d 801, 808
(5th Cir. 2006) (“[I]t is the ‘action,’ not claims against
particular defendants, that is removable, so the subsequent dismissal of the removing defendant cannot
render the entire lawsuit improperly removed.”). Therefore, the district court properly retained jurisdiction of
the case after Lorillard was dismissed, and it is not erroneous for the district court to decline to remand the
case to state court.

B. Expanding the “Lights” Claim to Other Brands
A second issue presented by the plaintiffs on appeal is
whether the district court erred when it refused to
expand the “lights” claim to other “low tar,” “light,” and
“ultralight” brands besides Marlboro Lights. The district
court premised its ruling on a finding that this expanded claim (asserted in the Third Amended Complaint) did not relate back to the original pleading (for
our purposes, the First Amended Complaint). “Under

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Illinois law as under federal law, an amendment relates
back when it arises out of the same transaction or occurrence set up in the original pleading.” Phillips v. Ford
Motor Co., 435 F.3d 785, 788 (7th Cir. 2006) (internal quotation omitted); see also Porter v. Decatur Mem’l Hosp., 882
N.E.2d 583, 590 (Ill. 2008); Fed. R. Civ. P. 15(c). Here, the
plaintiffs’ original pleading did not mention other
brands of cigarette products but only made allegations
regarding Marlboro Lights. Expanding the class to
include other “light” and “low tar” products would
extend the potential liability to new class members
(those who purchased or smoked brands other than
Marlboro Lights), and it would involve new conduct
and transactions (Philip Morris’s marketing and sale of
brands other than Marlboro Lights). The plaintiffs chose
not to make allegations related to other cigarette brands
in the original pleading. And based on this pleading,
Philip Morris did not have notice that the case might
encompass claims against other brands. The district
court correctly found that the expanded claim did not
arise out of the same transaction or occurrence, and it
properly denied the plaintiffs’ request to amend their
claim.

C. Unjust Enrichment
We now come to the main issue on appeal: whether
the district court properly dismissed the plaintiffs’ claim
for unjust enrichment for failure to state a claim under
Illinois law. In Illinois, “[t]o state a cause of action based
on a theory of unjust enrichment, a plaintiff must allege

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that the defendant has unjustly retained a benefit to
the plaintiff’s detriment, and that defendant’s retention
of the benefit violates the fundamental principles of
justice, equity, and good conscience.” HPI Health Care
Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill.
1989). A preliminary matter argued by the parties is
whether Illinois law recognizes an independent cause
of action for unjust enrichment, or whether unjust enrichment must always be tied to another underlying
claim found in tort, contract, or statute.
The Illinois Supreme Court appears to recognize
unjust enrichment as an independent cause of action. In
Raintree Homes, Inc. v. Vill. of Long Grove, 807 N.E.2d 439,
445 (Ill. 2004), the plaintiffs were seeking the refund of
overpaid fees under an unjust enrichment theory. No
other underlying cause of action was alleged. The Court
noted: “Here, plaintiffs have no substantive claim
grounded in tort, contract, or statute; therefore the only
substantive basis for the claim is restitution to prevent
unjust enrichment.” Id. Similarly, in another case before
the Illinois Supreme Court, Indep. Voters v. Ill. Commerce
Comm’n, 510 N.E.2d 850, 852-58 (Ill. 1987), the plaintiffs
had filed suit to recover refunds for excessive utility
charges and their claim for restitution of the charges
was not tied to another cause of action. Finally, the
Illinois Supreme Court has articulated the elements of
unjust enrichment without reference to a separate underlying claim in tort, contract, or statute. See HPI Health
Care Servs., 545 N.E.2d at 679; see also Peddinghaus v.
Peddinghaus, 692 N.E.2d 1221, 1225 (Ill. App. Ct. 1998)
(ruling that Illinois recognizes an independent cause of

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action for unjust enrichment based on HPI Health Care
Services). From these cases, it appears that the Illinois
Supreme Court recognizes unjust enrichment as an independent cause of action.
In contrast to this case law, there is a recent Illinois
appellate court that suggests the opposite, namely, that
an unjust enrichment claim cannot stand untethered
from an underlying claim. See Martis v. Grinnell Mut.
Reinsurance Co., 905 N.E.2d 920 (Ill. App. Ct. 2009). The
Martis court stated the following:
The doctrine of unjust enrichment underlies a
number of legal and equitable actions and remedies.
Unjust enrichment is not a separate cause of action that,
standing alone, will justify an action for recovery.
Rather, it is a condition that may be brought about
by unlawful or improper conduct as defined by law,
such as fraud, duress, or undue influence, and may
be redressed by a cause of action based upon that
improper conduct. When an underlying claim of
fraud, duress or undue influence is deficient, a claim
for unjust enrichment should also be dismissed.
Id. at 928 (internal quotation and citations omitted) (emphasis added). Without setting out a comprehensive
treatise on Illinois unjust enrichment law in an attempt to
resolve the apparently conflicting language of the
Raintree Homes and Martis cases, we suggest one way to
make sense of it. Unjust enrichment is a common-law
theory of recovery or restitution that arises when the
defendant is retaining a benefit to the plaintiff’s detriment, and this retention is unjust. What makes the reten-

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tion of the benefit unjust is often due to some
improper conduct by the defendant. And usually this
improper conduct will form the basis of another claim
against the defendant in tort, contract, or statute.2 So, if an
unjust enrichment claim rests on the same improper
conduct alleged in another claim, then the unjust enrichment claim will be tied to this related claim—and, of
course, unjust enrichment will stand or fall with the
related claim. See, e.g., Ass’n Benefit Servs. v. Caremark Rx,
Inc., 493 F.3d 841, 855 (7th Cir. 2007) (“[W]here the plaintiff’s claim of unjust enrichment is predicated on the
same allegations of fraudulent conduct that support an
independent claim of fraud, resolution of the fraud
claim against the plaintiff is dispositive of the unjust
enrichment claim as well.”).
This is what happened in two class action suits, similar
to the one before us now, where we affirmed the

2

See, e.g., Lewis v. Lead Indus. Ass’n, 793 N.E.2d 869, 877 (Ill.
App. Ct. 2003) (“In order for a cause of action for unjust enrichment to exist, there must be some independent basis
which establishes a duty on the part of the defendant to act
and the defendant must have failed to abide by that duty.”);
Alliance Acceptance Co. v. Yale Ins. Agency, 648 N.E.2d 971, 977
(Ill. App. Ct. 1995) (“The term ‘unjust enrichment’ is not
descriptive of conduct that, standing alone, will justify an
action for recovery. Rather, it is a condition that may be
brought about by unlawful or improper conduct as defined
by law, such as fraud, duress, or undue influence, and may be
redressed by a cause of action based upon that improper
conduct.”) (quoting Charles Hester Enters., Inc. v. Ill. Founders
Ins. Co., 484 N.E.2d 349, 354 (Ill. App. Ct. 1985)).

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dismissal of unjust enrichment claims. In Oshana v. CocaCola Co., 472 F.3d 506, 509 (7th Cir. 2006), the plaintiff
brought a class action suit against the Coca-Cola Company
on behalf of all purchasers of fountain Diet Coke, claiming
that the company engaged in deceptive marketing regarding the presence of saccharin in its product. The
plaintiff alleged a claim under the ICFA and a claim for
unjust enrichment. Id. at 514. We first affirmed the dismissal of the ICFA claim because the plaintiff could not
show either that the class members suffered harm or
that the harm was caused by the company’s allegedly
deceptive conduct. Id. at 514-15. We then addressed
the plaintiff’s unjust enrichment claim and ruled that it
was not viable because the plaintiff could not show that
the company was unjustly enriched “without proof of
deception.” Id. at 515.
A few years later, in the case of Siegel v. Shell Oil Co., 612
F.3d 932, 933 (7th Cir. 2010), the plaintiff brought a class
action suit representing all gasoline purchasers and
alleging that the defendant gasoline companies were
unfairly manipulating and artificially inflating gas
prices. Again, the plaintiff alleged a claim under the
ICFA and an unjust enrichment claim. Id. After affirming
the dismissal of the ICFA claim because the plaintiff
had failed to prove that he was harmed and that the
defendants’ conduct caused the harm, we then considered the unjust enrichment claim. Id. at 937. Although
we cited the Martis case for the proposition that unjust
enrichment is not a separate cause of action that can
stand on its own, we noted that the unjust enrichment
claim was based on the same conduct underlying the

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ICFA claim, and that without this claim, the unjust enrichment claim was not viable. Id. (citing Martis, 905 N.E.2d
at 928).
Thus, in both Oshana and Siegel, the unjust enrichment
claim was premised on improper conduct—deception
in Oshana and unfair practices in Siegel—and this same
alleged conduct also supported the ICFA claim. And
when we found that the improper conduct was insufficient
to support an ICFA claim, we likewise found that it
was insufficient to establish unjust enrichment. The
Martis case presented a comparable situation: the
unjust enrichment claim was premised on the same
fraud underlying the ICFA claim, and because there
was no valid underlying fraud, both the ICFA claim
and the unjust enrichment claim failed. Martis, 905
N.E.2d at 928. Based on these considerations, Martis’s
articulation of unjust enrichment law might be viewed
as language limited to its particular facts and not a
true variance from how the Illinois Supreme Court considers unjust enrichment claims as illustrated by Raintree
Homes.
Despite these reflections, it is not necessary to resolve
definitively whether Illinois law recognizes unjust enrichment as an independent cause of action: the plaintiffs’
case fails because their allegations are insufficient to
support a cause of action for unjust enrichment.
The plaintiffs’ unjust enrichment theory rests on the
allegation that they had a legal right to know about the
true nature and hazards of cigarettes. The plaintiffs
assert that the defendants violated this right by failing

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to disclose the full truth about cigarettes and that this
failure to disclose was to the plaintiffs’ detriment; and
that defendants’ retention of the benefit—the cigarette
revenue—violates the fundamental principles of justice,
equity, and good conscience. It is crucial to note that the
plaintiffs do not allege that they suffered any harm, that
they relied on the defendants’ marketing, or that they
would have acted differently had the defendants been
truthful about the cigarettes they were selling. In fact, not
only do the plaintiffs not make these allegations, but
the plaintiffs also explicitly disavow any such allegations, claiming that they are entirely unnecessary to
support their theory of unjust enrichment. In other
words, the plaintiffs assert that their unjust enrichment
claim does not require proof of deception, causation, or
actual harm with regard to individual members of the
plaintiff class.
As we stated above, for unjust enrichment, “a plaintiff
must allege that the defendant has unjustly retained a
benefit to the plaintiff’s detriment, and that defendant’s
retention of the benefit violates the fundamental
principles of justice, equity, and good conscience.” HPI
Health Care Servs., 545 N.E.2d at 678. The plaintiffs
contend that in order to show detriment, they do not
need to show that they suffered some loss or damages.
See Raintree Homes, Inc., 807 N.E.2d at 445. This is true
in some unjust enrichment cases, like Raintree Homes,
because unjust enrichment does not seek to compensate
a plaintiff for loss or damages suffered but seeks to dis-

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gorge a benefit that the defendant unjustly retains.3 But
while a plaintiff need not show loss or damages, he
must show a detriment—and, significantly, a connection between the detriment and the defendant’s retention of the benefit. HPI Health Care Services, 545 N.E.2d
678 (“a plaintiff must allege that the defendant has
unjustly retained a benefit to the plaintiff’s detriment”)
(emphasis added). In some unjust enrichment cases, the
loss or damages suffered by a plaintiff might be relevant
to establishing that there is a detriment.
Here, the benefit that the plaintiffs seek to recover is
the revenue from the cigarette sales, while the detriment alleged by the plaintiffs is the violation of their
legal right as consumers to be informed of the true
nature and risks of the defendants’ products. But since
the plaintiffs disclaim any need to allege either personal
damages, deception, or reliance with regard to any
member of the class, it is difficult to see how the defendants’ retention of the revenue paid by a consumer is
to that consumer’s detriment. According to the plain-

3

The facts of the Raintree Homes case illustrate this distinction.
There, the plaintiffs were seeking the refund of impact fees
for building permits unfairly retained by the defendant
village. Raintree Homes, Inc., 807 N.E.2d at 442. The plaintiffs
were not seeking compensation for any loss they personally
suffered by not having the fees, such as the missed opportunities to use the fee money for other investments—they only
wanted disgorgement of the fees. Id. at 445. In other words,
the amount of the award sought by the plaintiffs was the
defendant’s “unjust gain, rather than the plaintiffs’ loss.” Id.

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tiffs, the class of people with a valid unjust enrichment
claim would include the consumer who bought cigarettes
and was never injured in any manner by his purchase.
It would include the consumer who was satisfied by
his cigarette purchase and planned to continue purchasing cigarettes. It would include the consumer who
would not have acted any differently had he been fully
informed about cigarettes, but bought them anyway
regardless of the defendants’ marketing. It would include
the consumer who was not deceived by the marketing
because he was personally aware of the true nature of
cigarettes, but still bought cigarettes despite their addictive and harmful nature—or even because of it. Under
the plaintiffs’ expansive theory, all of these consumers
would have a cause of action for unjust enrichment
because their legal right to be informed of the risks of
cigarettes was violated.
But for many of these consumers, the defendants’
retention of the cigarette revenue is not a detriment to
them—it is possible that many of the consumers have
no regrets about their purchases and would willingly
repeat the same transaction, despite the violation of
their legal right to be informed about the nature of cigarettes. Since these consumers would have acted no differently had the defendants properly informed them
about the true nature of cigarettes, their transfer of
money to the defendants in exchange for cigarettes was
not to their detriment—and, accordingly, the defendants’ continued retention of the money cannot be to
their detriment either.

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This would be a different case if there was a greater
connection between the defendants’ retention of the
cigarette revenue and a detriment to the plaintiffs. For
example, if the revenue was obtained in a manner that
caused injury to the plaintiffs, or if the revenue was
obtained by deceiving the plaintiffs, or even if the
revenue was obtained by an inadvertent misrepresentation relied upon by the plaintiffs, the defendants’
retention of the revenue might conceivably be to the
plaintiffs’ detriment. But these allegations have been
explicitly disclaimed by the plaintiffs. Under these circumstances, it would not be unjust for a manufacturer
to retain the money paid by a consumer for a product
when this consumer was not deceived, would not have
acted any differently had he known the truth about the
product, was not hurt by the product, and was satisfied
with the product and planned to continue purchasing
the same product in the future. In short, the retention
of this consumer’s money is not detrimental to him.
The behavior alleged by the plaintiffs, namely, their
claim that the defendants had a concerted plan to intentionally mislead consumers and conceal the truth about
their cigarettes, is insufficient to support a cause of
action for unjust enrichment. Unjust enrichment is not a
mode of imposing punitive damages; it is a means of
recovering something that the defendant is not entitled
to but is unfairly possessing to the plaintiff’s detriment.4

4

“Actions for restitution have for their primary purpose
taking from the defendant and restoring to the plaintiff some(continued...)

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And we hold that the mere violation of a consumer’s legal
right to know about a product’s risks, without anything
more, cannot support a claim that the manufacturer
unjustly retained the revenue from the product’s sale to
the consumer’s detriment.5
Finally, the plaintiffs have asked us to certify to the
Illinois Supreme Court the question of whether unjust
enrichment can be an independent cause of action
separate from an underlying tort, contract, or statutory

4

(...continued)
thing to which the plaintiff is entitled. . . . [A]ctions of restitutionare not punitive.” Restatement (Third) of Restitution and
Unjust Enrichment § 49, reporter’s note to cmt. a (2011).
“Disgorgement of wrongful gain is not a punitive remedy. . . .
The rationale of punitive or exemplary damages is independent of the law of unjust enrichment.” Restatement (Third)
of Restitution and Unjust Enrichment § 51, cmt. k (2011).
5

As discussed at oral argument, were we to accept the plaintiffs’ theory of the case, it would have significant implications
for our current legal system. All the revenue obtained by a
malfeasant company from selling a dangerous product would
be disgorged and distributed among all purchasers of the
product according to the expenses incurred by each purchaser.
The “deep pockets” of the malfeasant company would be
emptied, with little left to compensate those who were
actually injured by the product. This course appears to us
unwise, to say the least. At oral argument, counsel for the
plaintiffs suggested that a court in equity could hold back
sufficient funds to take care of those with personal-injury
claims; we suspect this would be difficult to successfully
implement in practice.

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claim. The most important consideration guiding our
decision to certify a question to the Illinois Supreme
Court “is whether the reviewing court finds itself genuinely uncertain about a question of state law that is vital
to a correct disposition of the case.” State Farm Mut.
Auto. Ins. Co. v. Pate, 275 F.3d 666, 671 (7th Cir. 2001)
(internal quotation omitted). Since the question about
unjust enrichment being an independent cause of action
is not vital to the disposition of the case, there is no
need for certification—regardless of the answer, we
conclude that the plaintiffs have not sufficiently alleged
a cause of action for unjust enrichment. In their reply,
the plaintiffs suggest the certification of a second question: what is needed to establish the “detriment” element
of an unjust enrichment claim. In the context of this
case, Illinois law on unjust enrichment is sufficiently
clear. Certification is not necessary. See id. at 672 (“At
some level there is uncertainty in every application of
state law. There is always a chance that a state
supreme court, if it had the same case before it, might
decide the case differently. This ever-present possibility
is not sufficient to warrant certification.”).
In sum, we conclude that the plaintiffs’ allegations of
unjust enrichment are insufficient to state a claim for
which relief can be granted. The district court correctly
dismissed the plaintiffs’ Fourth Amended Complaint
and entered judgment for the defendants.6

6

The plaintiffs also appeal two other related issues, but they
are resolved in light of our ruling. In particular, our ruling
(continued...)

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III. Conclusion

The district court did not err by not remanding the
case to state court. Nor did the district court err by
refusing to extend the “lights” class to additional brands
besides Marlboro Lights. But most importantly, we agree
with the district court that the unjust enrichment claim,
as alleged by the plaintiffs, is not viable: a violation of
the consumer’s legal right to know about a product’s
risks, without anything more, cannot support an unjust
enrichment claim against the product’s manufacturer.
We A FFIRM .

6

(...continued)
gives us reason to affirm the district court’s grant of summary
judgment on the individual claims of Rita Burke in the
Third Amended Complaint and the district court’s denial of
class certification on the “lights” claim.
8-25-11