Kathy Haywood, et al v. Massage Envy Franchising, LLC
Filed opinion of the court by Judge Bauer. The district court's order is AFFIRMED. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge, dissenting. [6916806-1]  [17-2402]--[Edited 04/10/2018 by MM to reflect dissent by Judge Sykes.]
United States Court of Appeals
For the Seventh Circuit
KATHY HAYWOOD and LIA HOLT, on
behalf of themselves and all others
MASSAGE ENVY FRANCHISING, LLC,
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:16‐cv‐01087‐DRH‐SCW — David R. Herndon, Judge.
ARGUED FEBRUARY 7, 2018 — DECIDED APRIL 10, 2018
Before BAUER, ROVNER, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Kathy Haywood and Lia Holt filed
this putative class action alleging that Massage Envy Franchis‐
ing, LLC (“Massage Envy”), committed unfair and deceptive
business practices by advertising and selling one‐hour mas‐
sages but providing massages that lasted only 50 minutes.
They now appeal from the district court’s order granting
Massage Envy’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. We affirm.
Massage Envy is a franchisor based in Scottsdale, Arizona,
that grants licenses to independently owned and operated
entities for use of its name, trademark, and standardized
business operations. Haywood is an Illinois resident and Holt
is a Missouri resident. Massage Envy has multiple franchise
locations in both states that offer massages and other related
On November 16, 2016, Haywood and Holt filed their first
amended complaint which is the subject of Massage Envy’s
motion to dismiss and this appeal. It alleges that Massage Envy
violated numerous provisions of the Illinois Consumer Fraud
and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1
et seq., and the Missouri Merchandising Practices Act
(“MMPA”), Mo. Rev. Stat. § 407.010 et seq., when it offered and
sold “what it stated were one‐hour massages or ‘massage
sessions’ that provided no more than 50 minutes of massage
Before detailing Haywood’s and Holt’s specific experiences,
the complaint explains how Massage Envy advertised massage
services on its website between May 2007 and September 2016.
It focuses primarily on the advertisement on the website’s
homepage for an “Introductory 1‐hour Massage Session*” at
the price of $50. Clicking the asterisk after the word “Session”
led the user to a separate web page that did not contain
information about the length of a massage. However, at the
bottom of the homepage there was a link that stated “*View
pricing and promotional details.” That link led to a separate
page with a number of disclaimers. One disclaimer titled
“Session”explained that a “[s]ession includes massage or facial
and time for consultation and dressing.” The complaint alleges
that the multiple asterisks confused the average consumer and
that Massage Envy deceptively hid the disclosures where they
were “nearly impossible” to find.
Haywood’s first encounter with Massage Envy came after
receiving an electronic gift card for $75 from her daughter via
email. The email provided instructions for downloading the
gift card and scheduling an appointment. The complaint notes
that “[a] line buried in fine print at the bottom of the email
stated, ‘Session includes massage or facial and time for
consultation and dressing.’” Haywood visited the Massage
Envy website and booked a one‐hour massage session at a
franchise location in O’Fallon, Illinois. She did not see a
disclaimer either on the website or at the O’Fallon location
stating that the massage time would be less than 60 minutes.
Haywood went for her massage on May 11, 2016. After
speaking briefly with the massage therapist, she was given
time to undress and then received a massage that lasted no
more than 50 minutes.
Haywood scheduled another appointment at the same
location on September 8, 2016, “to verify that Massage Envy
provided only 50 minutes’ massage time for a one‐hour
massage.” She booked a one‐hour massage session, this time
via phone, for $90. She did not see any sign or display at the
location noting that the massage time would be less than one
hour. She received another massage that lasted no more than
Holt’s allegations regarding her experience are less detailed
than Haywood’s. The complaint alleges that in April 2012,
Holt “accessed Massage Envy’s website to research the prices
for a one‐hour massage” and learned that the nearest franchise
location was in Oakville, Missouri. She telephoned that
location and made an appointment for a one‐hour massage.
Sometime during that same month, she went to the Oakville
location and received a massage that lasted no more than 50
On behalf of Haywood and all other similarly situated
Illinois residents, the complaint alleges counts of Affirmative
Deception, Material Omissions of Fact, and Unfair Practices in
violation of the IFCA. It alleges the same three counts in
violation of the MMPA on behalf of Holt and all other similarly
situated Missouri residents. Massage Envy moved to dismiss
the complaint arguing both a lack of subject matter jurisdiction
and failure to state a claim on which relief may be granted.
On June 9, 2017, the district court granted Massage Envy’s
motion and dismissed the complaint with prejudice. The court
first held that Haywood and Holt had standing, rejecting
Massage Envy’s argument that they had not pleaded a cogniza‐
ble injury that was fairly traceable to Massage Envy. However,
when analyzing the requirements for pleading damages under
the IFCA and the MMPA, the court held that both Haywood
and Holt’s allegations failed to meet the standards set forth by
those statutes and the corresponding case law. The court also
found that Holt’s claims did not meet the heightened pleading
standard required under Federal Rule of Civil Procedure 9(b),
as she did not allege a time or a place for the fraudulent
conduct, nor did she state particularly how she was deceived.
Haywood and Holt timely appealed.
We review de novo a district court’s ruling that a complaint
fails to state a claim upon which relief may be granted under
Rule 12(b)(6). Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732,
736 (7th Cir. 2014). We “may affirm the district court’s dis‐
missal on any ground supported by the record, even if differ‐
ent from the grounds relied upon by the district court.” Slaney
v. The Intern. Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir.
2001). “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.” Camasta, 761 F.3d at 736
(internal quotation marks and citation omitted). Because
Haywood and Holt bring their claims under different statutes,
we will analyze the sufficiency of their allegations separately.
A. Haywood’s ICFA Claims
We analyze ICFA claims of deception under the heightened
pleading standard of Federal Rule of Civil Procedure 9(b). Id.
Although Haywood brings one ICFA claim alleging unfair
practices, that claim still sounds in fraud because it relies upon
the same baseline allegation that Massage Envy intentionally
misled consumers by hiding information on the length of
massage time. Therefore, it too is subject to Rule 9(b)’s require‐
ments. See id. at 737 (holding that an unfairness claim that
“sounds in fraud” can implicate Rule 9(b)). Rule 9(b) requires
the complaint to “state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). That means that it
must specifically allege the “who, what, when, where, and how
of the fraud.” Camasta, 761 F.3d at 737 (internal quotation
marks and citation omitted).
To state a claim under the ICFA as a private party,
Haywood must plausibly allege: (1) a deceptive act or promise
by Massage Envy; (2) Massage Envy’s intent that she rely on
the deceptive act; (3) the deceptive act occurred during a
course of conduct involving trade or commerce; and (4) actual
damage as a result of the deceptive act. Camasta, 761 F.3d at
739; see also 815 ILCS 505/10a (providing individual cause of
action for violation resulting in “actual damages”). “Actual
damage” in this context means that Haywood must have
suffered actual pecuniary loss. Camasta, 716 F.3d at 739.
Additionally, the deceptive act must have been the “but‐for”
cause of the damage. Mulligan v. QVC, Inc., 888 N.E.2d 1190,
1199 (Ill. App. Ct. 2008).
As an initial matter, Haywood cannot obtain relief based on
her second visit to Massage Envy because after her first visit,
she cannot plausibly allege that she was deceived regarding
the length of the massage. In fact, she states in the complaint
that she booked the second massage “to verify that Massage
Envy provided only 50‐minutes’ massage time.” Because she
knew how long the massage would last, she cannot maintain
a claim based on the second visit. Oliviera v. Amoco Oil Co., 776
N.E.2d 151, 164 (Ill. 2002) (holding that those who “know the
truth” do not have a valid ICFA claim). Therefore, we need
only focus on the allegations regarding Haywood’s first visit.
Much of the district court’s decision, as well as the briefing
before this court, was dedicated to a discussion of the require‐
ments for pleading damages under the ICFA. The district court
held that Haywood could not establish that she suffered an
actual pecuniary loss because she did not spend any money on
the massage, but instead used the gift card her daughter gave
her. Additionally, the court found that Haywood’s allegations
failed to establish that the value of the massage she received
was “worth less than what [she] actually paid,” citing Kim v.
Carter’s Inc., 598 F.3d 362, 365 (7th Cir. 2010). Haywood argues
that the court erred by failing to evaluate her alleged injury
under the benefit‐of‐the‐bargain rule, which only requires an
allegation that she received something less than what she was
promised. However, we need not settle that debate here
because Haywood’s claims fail for a different reason alto‐
Even had Haywood adequately pleaded actual damages,
her allegations fail to establish the requisite causation. Al‐
though proximate cause in an IFCA claim is typically an issue
of fact, a court may determine it as a matter of law where “only
one conclusion is clearly evident.” Mulligan, 888 N.E.2d at
1199. Here, the only reasonable conclusion is that Massage
Envy’s representations regarding the one‐hour massage
session were not the but‐for cause of any alleged injury. See id.
There is no allegation in the complaint that her belief about the
length of the massage caused Haywood to make the appoint‐
ment. To the contrary, the only reasonable and plausible
inference is that only the receipt of a gift card caused her to
book a massage; the alleged deceptive representations did not
influence that decision. Her failure to cite a specific deceptive
representation that caused her to pay for something she did
not receive is particularly problematic in light of Rule 9(b)’s
heightened standard. See Camasta, 761 F.3d at 737 (plaintiff
must plead the “how of the fraud”). She cannot, based on these
allegations, establish that Massage Envy’s alleged deception
was the but‐for cause of her injury, and her claims fail as a
result. See Mulligan, 888 N.E.2d at 1199; see also Oshana v. Coca‐
Cola Co., 472 F.3d 506, 513–14 (7th Cir. 2006) (“[A] damages
claim under the ICFA requires that the plaintiff was deceived
in some manner and damaged by the deception.”).
B. Holt’s MMPA Claims
Just as with Haywood’s claims, Holt’s are based on the
allegation that Massage Envy intentionally misrepresented the
length of their massages. Holt concedes, and we agree, that
Rule 9(b)’s heightened pleading standards apply to her
MMPA claims. Though the parties do not cite, and we have not
found, direct authority on this point from our cases or those of
our sister circuits, we note that district courts in Missouri
routinely apply Rule 9(b) to MMPA claims. See, e.g., Pfitzer v.
Smith & Wesson Corp., No. 4:13‐CV‐676‐JAR, 2014 WL 636381
at *3 (E.D. Mo. Feb. 18, 2014); Khaliki v. Helzberg Diamond Shops,
Inc., No. 4:11‐CV‐00010‐NKL, 2011 WL 1326660 at *2 (W.D. Mo.
April 6, 2011); Blake v. Career Educ. Corp., No. 4:08‐CV‐00821‐
ERW, 2009 WL 140742 at *2 (E.D. Mo. Jan. 20, 2009).
To state a claim for a deceptive practice under the MMPA,
Holt must allege that (1) she purchased merchandise from
Massage Envy; (2) the merchandise was for personal, family,
or household purposes; (3) she suffered an ascertainable loss
of money; and (4) the loss was the result of a deceptive act, as
defined by the statute. Ward v. West Cty. Motor Co., 403 S.W.3d
82, 84 (Mo. 2013) (en banc); Mo. Rev. Stat. §§ 407.020, 407.025.
The entirety of the allegations regarding Holt’s experience
with Massage Envy are contained in six sentences over four
paragraphs of the 76‐page complaint. She states that she called
the Oakville, Missouri, franchise location to make an appoint‐
ment for a one‐hour massage after she “accessed Massage
Envy’s website to research the prices for a one‐hour massage.”
When she arrived for her appointment, she received a massage
that lasted no more than 50 minutes. These bare bones allega‐
tions fall woefully short of satisfying the MMPA’s pleading
requirements, particularly when they are subjected to the
heightened standards of Rule 9(b).
Specifically, Holt completely fails to allege that a deceptive
representation from Massage Envy caused her to suffer an
ascertainable loss of money. She does not state what, if
anything, she saw or did not see on the Massage Envy website
that led her to believe she was paying for one hour of massage
time. In fact, the allegation that she “researched” one‐hour
massage sessions might infer that she saw the disclaimer
regarding massage‐session time allocation that the complaint
freely admits was present. Regardless, stating that she visited
the website is not sufficient to claim that she saw something
that deceived her. It does not provide the what or how of the
fraud, as Rule 9(b) requires.
It is also notable that she does not state how much, if
anything, she paid for her massage. For that reason, she has
failed to plead that she suffered an ascertainable loss of money.
Moreover, as was the case for Haywood, she fails to plead any
causation. There is no indication that it was Massage Envy’s
deceptive advertisement that led her to book a massage at one
of its locations. Accordingly, the allegations do not support the
conclusion that Massage Envy caused her to suffer an ascer‐
tainable loss of money.
In sum, Holt’s allegations fail to state a claim under the
MMPA with the particularity required under Rule 9(b). For
that reason, the district court did not err in dismissing her
C. Dismissal with Prejudice
As we have explained, the district court was correct to
grant Massage Envy’s motion to dismiss. Still, we must
determine whether it was error to dismiss the complaint with
prejudice. We review that decision for an abuse of discretion.
Gonzalez‐Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015).
Haywood and Holt argue that they can cure any infirmities
in their complaint by amending and fleshing out the details of
their claims. Crucially, however, they did not request leave to
amend their complaint from the district court. They contend
that their lack of an explicit request is of no consequence, citing
the generally liberal approach to granting leave to amend
under Federal Rule of Civil Procedure 15(a)(2). See, e.g.,
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. and Nw.
Ind., 786 F.3d 510, 519 (7th Cir. 2015).
We disagree. Nothing in Rule 15, nor in any of our cases,
suggests that a district court must give leave to amend a
complaint where a party does not request it or suggest to the
court the ways in which it might cure the defects. To the
contrary, we have held that courts are within their discretion
to dismiss with prejudice where a party does not make such a
request or showing. See Indep. Tr. Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 943 (7th Cir. 2012); see also James Cape &
Sons Co. v. PCC Constr. Co., 453 F.3d 396, 400–01 (7th Cir. 2006).
Here, in light of our analysis above, it is reasonable to
conclude that the district court believed Haywood and Holt
would not be able to cure the problems in their complaint. See
James Cape & Sons Co., 453 F.3d at 401 (holding that dismissal
with prejudice was not an abuse of discretion where district
court “could have quite reasonably believed that an amended
complaint would suffer the same fatal flaws as the one before
it”). Without a request for leave to do so, nor any indication to
the court how they might accomplish that goal, the district
court did not abuse its discretion in dismissing the complaint
For the foregoing reasons, the district court’s order is
SYKES, Circuit Judge, dissenting. The plaintiﬀs in this proposed class action are two disappointed Massage Envy
customers who booked one-hour massages but received only
50 minutes of actual massage time. Kathy Haywood and Lia
Holt visited Massage Envy’s website before making their
appointments—Haywood at an Illinois franchise in May
2016 and Holt at a Missouri franchise in April 2012. The
website advertised a one-hour massage for $50 but concealed
the fact that the customer would receive something less than
a full hour of massage time (or so the complaint alleges). By
clicking through a complex series of ﬁne-print links, a visitor
to the website would discover that a one-hour massage
“session” actually included time for consultation, undressing, and dressing. The complaint alleges that the disclaimer
was obscure, misleading, and diﬃcult to access.
As factual support for this claim, the complaint describes
Massage Envy’s website and its representations and omissions in great detail, and even includes various screenshots
to illustrate the narrative account. The plaintiﬀs seek damages for deceptive advertising under the consumer-fraud
statutes in Illinois and Missouri.
The district court dismissed the complaint under
Rule 12(b)(6) for failure to state a claim under either state’s
law. My colleagues aﬃrm that judgment, holding that
neither plaintiﬀ adequately alleged causation and that the
allegations speciﬁc to Holt do not satisfy the heightened
pleading standard for fraud claims under Rule 9(b). I disagree. The majority’s decision misunderstands the causation
requirement for a damages claim under the Illinois and
Missouri consumer-fraud statutes. And Holt’s speciﬁc
allegations must be read not in isolation but together with
the rest of the complaint. So read, her claim easily satisﬁes
Rule 9(b)’s particularity requirement.
* * *
The consumer-fraud statutes in Illinois and Missouri are
materially similar. As relevant here, both statutes prohibit
false, misleading, and deceptive advertising, including “the
concealment, suppression, or omission of any material fact”
in connection with the sale or advertisement of goods or
services in trade or commerce. 815 ILL. COMP. STAT. 505/2;
MO. REV. STAT. § 407.020.1. Both statutes provide a private
remedy for damages. 815 ILL. COMP. STAT. 505/10a(a); MO.
REV. STAT. § 407.025.
Recovery under the Illinois statute requires proof of the
following elements: (1) the defendant committed a deceptive
or unfair act; (2) in the course of trade or commerce; (3) with
intent that others rely on the deception; and (4) the plaintiﬀ
suﬀered actual damages as a result of (i.e., proximately
caused by) the deception. Siegel v. Shell Oil Co., 612 F.3d 932,
935 (7th Cir. 2010); Mulligan v. QVC, Inc., 888 N.E.2d 1190,
1195 (Ill. App. Ct. 2008). Likewise, a Missouri plaintiﬀ must
prove that he (1) purchased a good or service in trade or
commerce; “(2) for personal, family or household purposes;
and (3) suﬀered an ascertainable loss of money or property;
(4) as a result of an act declared unlawful [by the statute].”
Hope v. Nissan N. Am., Inc., 353 S.W.3d 68, 82 (Mo. Ct. App.
The district judge found the complaint deﬁcient on the
elements of causation and damages. Taking the damages
question ﬁrst, a fraud injury (whether at common law or
under a statute) can be measured in two ways: (1) as a loss of
the beneﬁt of the bargain or (2) as an out-of-pocket loss.
Under the beneﬁt-of-the-bargain rule, damages are assessed
by asking whether the value of what was promised (here, a
60-minute massage) is greater than the value of what was
actually received (a 50-minute massage). Under the out-ofpocket rule, the fact ﬁnder asks whether the price paid (here,
$50) is greater than the market value of the good or service
received (a 50-minute massage).
This case is a bit unusual because the ﬁrst method shows
an injury but the second does not. Haywood and Holt did
not receive the beneﬁt of their bargain (the promised onehour massage), but they do not contend that they overpaid
for a 50-minute massage.
The district judge applied an out-of-pocket method and
dismissed the complaint for failing to adequately allege
actual damages. That was a mistake. Both Illinois and
Missouri apply the beneﬁt-of-the-bargain rule to assess
damages in statutory consumer-fraud cases. See, e.g.,
Mulligan, 888 N.E.2d at 1196 (explaining that in statutory
consumer-fraud cases, “Illinois courts have adopted the
beneﬁt-of-the-bargain rule as applied to common law fraudulent misrepresentation”); Giammanco v. Giammanco,
625 N.E.2d 990, 998 (Ill. App. Ct. 1993) (explaining the
beneﬁt-of-the-bargain rule applicable in common-law fraud
cases); Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 313
(Mo. Ct. App. 2016) (explaining that “ascertainable loss”
under the Missouri consumer-fraud statute is assessed
“under the beneﬁt-of-the-bargain rule, which compares the
actual value of the item to the value of the item if it had been
as represented at the time of the transaction”).
The judge was thrown oﬀ by our decision in Kim v.
Carter’s, Inc., 598 F.3d 362, 365 (7th Cir. 2010), apparently
reading that case as authority to depart from the beneﬁt-ofthe-bargain rule. Perhaps Kim could use some clariﬁcation.
The case concerned a “false discount” claim and must be
understood in that factual context.
To be more speciﬁc, in Kim a clothing store advertised
steep discounts on its merchandise, but the markdowns
were illusory because the higher retail prices were ﬁctitious.
The plaintiﬀs sued under the Illinois consumer-fraud statute
and proposed to measure their damages by subtracting the
advertised sale prices from the advertised (but imaginary)
retail prices. The panel rejected that approach, noting that
the plaintiﬀs had not alleged that the defendant’s clothing
was “defective or worth less than what they actually paid.”
The reference to what the plaintiﬀs actually paid should
not be seen as a green light for using an out-of-pocket approach to damages in a statutory consumer-fraud case.
Rather, the opinion simply used the price the plaintiﬀs paid
as a proxy for promised value. That is, the panel construed
the price paid as the objective value of the promised good
instead of the fanciful retail price the clothing store invented.
The panel ultimately concluded that the plaintiﬀs failed to
plead actual damages because they “got the beneﬁt of their
bargain and suﬀered no actual pecuniary harm.” Id. at 366.
Properly understood, our decision in Kim rests on the beneﬁt-of-the-bargain approach and should not be read as authority to depart from that rule.
Clariﬁcation aside, Kim has little relevance here. This is
not a “false discount” case. No one disputes that a 60-minute
massage is more valuable than its 50-minute variant. The
complaint adequately alleged actual damages under the
The judge also accepted Massage Envy’s argument that
because Haywood paid for her massage with a gift card
from her daughter, she hadn’t actually lost anything. That
too was a mistake. Gifts eﬀect a transfer in title, see, e.g., Hall
v. Country Cas. Ins. Co., 562 N.E.2d 640, 648–49 (Ill. App. Ct.
1990), so Haywood spent her own money when she charged
her massage to the gift card. The complaint is not deﬁcient
on this ground either.
* * *
My colleagues skip the damages question and instead
adopt the judge’s second conclusion that the causation
allegations do not measure up. That holding misconstrues
the causation element in a statutory consumer-fraud claim
under Illinois and Missouri law.
The majority begins in the right place: To prevail under
either state’s law, a plaintiﬀ must prove but-for causation.
But in testing the complaint under that standard, my colleagues impose a reliance requirement that does not exist
under either state’s law.
More speciﬁcally, the majority ﬁnds the complaint fatally
deﬁcient because it fails to allege that Massage Envy’s
promise of a one-hour massage actually induced Haywood
and Holt to make their appointments. Majority Op. at 7
(“There is no allegation in the complaint that her belief about
the length of the massage caused Haywood to make the
appointment.”); see id. at 10 (“There is no indication that it
was Massage Envy’s deceptive advertisement that led [Holt]
to book a massage at one of its locations.”). But an allegation
of that sort is entirely unnecessary: fraudulent inducement is
not a required element under either state’s law.
To the contrary, Illinois courts have unequivocally held
that “reliance is not an element of statutory consumer
fraud.” Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill.
1996). It’s the plaintiﬀ’s “damage,” not his purchase, that
must occur “‘as a result of’ the deceptive act or practice.”
Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002).
Indeed, in Connick it was enough that the plaintiﬀs’ purchases “occurred after the allegedly fraudulent statements.”
675 N.E.2d at 595.
Missouri law is the same. The state courts have held that
“the consumer’s reliance on an unlawful practice is not
required” for a statutory consumer-fraud claim. Plubell v.
Merck & Co., Inc., 289 S.W.3d 707, 714 (Mo. Ct. App. 2009).
Causation under the Missouri statute requires only that “a
plaintiﬀ’s loss should be a result of the defendant’s unlawful
practice,” not his “purchase.” Id.
So it’s irrelevant whether the plaintiﬀs actually relied on
Massage Envy’s deceptive promise when they booked their
massages. To put the point slightly diﬀerently, it’s not
necessary that the deceptive promise induced them to purchase a massage. It’s enough to allege, as the complaint
plainly does, that (1) Massage Envy’s website was deceptive
(because it advertised a one-hour massage but buried in ﬁne
print that a one-hour massage session included less than
60 minutes of massage time); (2) Haywood and Holt viewed
the website containing the deceptive one-hour massage
advertisement before booking their appointments; and
(3) Massage Envy gave them something less than what they
expected (only 50 minutes of massage time).
These allegations explain the “who,” “what,” and “how”
of this fraud claim to the degree of particularity required by
Rule 9(b). Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732,
737 (7th Cir. 2014). Indeed, the “how” allegations are abundant and quite speciﬁc: The complaint describes the website—its layout, representations, omissions, and navigation
system—in great detail, and includes multiple screenshots
showing what the site looked like at the relevant time. This
description covers 108 numbered paragraphs and fully 45 of
the complaint’s 69 pages.
The complaint also alleges the “when” and “where” of
the fraud with particularity: The allegedly deceptive advertisements appeared on Massage Envy’s website from April
2007 until at least September 2016 when the lawsuit was
ﬁled; Holt viewed the website in April 2012 before booking
her one-hour massage at a Missouri franchise; and Haywood
viewed the website in May 2016 before booking her onehour massage at an Illinois franchise. Nothing more is
My colleagues also conclude that the allegations speciﬁc
to Holt fall short under Rule 9(b) for two additional reasons.
First, they point out that Holt “does not state what, if anything, she saw or did not see on the Massage Envy website
that led her to believe she was paying for one hour of massage time.” Majority Op. at 9. Not so. The complaint speciﬁcally alleges that Holt visited Massage Envy’s website “to
research the prices for a one-hour massage.” The robust
allegations earlier in the complaint explain the content of the
website in great detail. Reading the Holt-speciﬁc allegations
against that backdrop, it’s reasonable to infer that when she
visited the site, she saw what is described elsewhere in the
complaint, including the allegedly deceptive advertisement.
Nothing in Rule 9(b) requires that she repeat the facts recited
earlier in the complaint.
Second, the majority ﬁnds it “notable that [Holt] does not
state how much, if anything, she paid for her massage.” Id.
That’s an immaterial omission. What she paid would be an
important detail under an out-of-pocket measure of damages, but it’s irrelevant under the beneﬁt-of-the-bargain rule,
which (to repeat) applies in statutory consumer-fraud claims
under Missouri law.
And we can be conﬁdent that Holt paid something for her
massage. The context makes it wholly unreasonable to infer
that she received the service free of charge. Indeed, as I’ve
just noted, the complaint alleges that Holt visited Massage
Envy’s website “to research the prices for a one-hour massage.” (Emphasis added.) The only reasonable inference here
is that she paid the advertised rate for a one-hour massage.
And we know from the complaint’s earlier narrative that the
website advertised a one-hour massage for $50. Again, Holt
was not required to repeat the voluminous allegations
appearing elsewhere in the complaint. Read reasonably, and
together with the rest of the complaint, the allegations
speciﬁc to Holt satisfy Rule 9(b)’s particularity requirement.
* * *
In short, the complaint survives scrutiny under Rules 9(b)
and 12(b)(6), and the case should have been allowed to move
forward. The plaintiﬀ’s claims aren’t worth much, and I’m
skeptical that the case is appropriate for class certiﬁcation.
But the complaint states claims for relief under Illinois and
Missouri law and should not have been dismissed. I respectfully dissent.
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