Liston v. King.com, Inc. et al

Filing 60

MEMORANDUM Opinion and Order: For the reasons set forth in the Memorandum Opinion, the defendant's motion to dismiss 31 is granted in part and denied in part. A status hearing is set for 6/7/17 at 9:00 a.m. Signed by the Honorable John J. Tharp, Jr on 5/23/2017. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ZACHERY LISTON, individually and on behalf )
of all others similarly situated,
)
)
Plaintiff,
)
)
v.
)
)
)
KING.COM, LTD.,
)
)
Defendant.

No. 15 CV 01853
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiff Zachery Liston brings this proposed class action against defendant King.com,
Ltd., the operator of the popular mobile game Candy Crush Saga, alleging that King improperly
and unilaterally removed so-called Donated Lives from Liston’s and other players’ game
accounts. King has moved to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(1) for lack of standing, and under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. For the reasons stated below, the defendant’s motion to dismiss [31] is granted in
part and denied in part.
BACKGROUND
In deciding a motion to dismiss under Rule 12(b)(1) or Rule 12(b)(6), the Court takes as
true all well-pleaded facts alleged in the complaint and draws reasonable inferences in the
plaintiff’s favor. Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003) (Rule 12(b)(1); Mann v.
Vogel, 707 F.3d 872, 877 (7th Cir. 2012) (Rule 12(b)(6)). The following facts are, therefore,
accepted as true for the purposes of deciding this motion.
Candy Crush, played on mobile devices including iPhones, iPads, and Androids, is
essentially a match-making puzzle game in which players aim to line up three or more of the

same icon in various configurations so as to clear them from the board and earn points. First Am.
Compl. ¶¶ 30-34, ECF No. 15. Players advance to subsequent levels of the game as they clear the
requisite number of icons from the board, and have only a limited number of turns, or moves,
they may take to try to clear those icons. Id. ¶ 34. If a player fails to remove the requisite icons
within a certain number of moves, they lose one of their in-game “lives”—chances to line up the
requisite number of icons—and have to repeat that level. Id. ¶ 35.
Candy Crush players start the game with five lives, and also gain an additional free life
every thirty minutes, up to a limit of five (the “Free Life Option”). Id. ¶¶ 37-38. Players using
this method for obtaining additional lives have to wait thirty minutes to resume the game once
they have lost all of their lives. Id. ¶ 38. Because the game is “addictive,” as described by news
outlets, players often do not want to wait thirty minutes for additional lives, and instead can rely
on the two other avenues that King has provided for obtaining more lives. Id. ¶¶ 39-40. The first
method is for players to buy additional lives while they are in the game through so-called In-App
purchases (the “Purchase Option”). Id. ¶ 42. A player can buy five additional lives for $.99. Id.
¶ 3. The second method is for players to link their Candy Crush accounts to their Facebook
accounts, which then enables them to request and receive more lives (which the plaintiff refers to
as “Donated Lives”) from their friends on Facebook who also have Candy Crush installed on
their mobile devices (the “Facebook Option”). Id. ¶¶ 43-46. If a player’s Facebook friends have
not yet installed Candy Crush, they are prompted to do so, meaning that the Facebook Option
allows King to receive a benefit from players marketing Candy Crush to their friends, according
to Liston. Id. ¶ 45. This option thus enables King to pass on marketing costs to consumers. Id.
Under either the Purchase Option or the Facebook Option, “lives have an economic and
ascertainable value equal to approximately $0.20.” Id. ¶ 47.

2

Candy Crush has enjoyed enormous popularity among mobile gamers, bringing in an
average of 93 million daily active users in December 2013 and grossing an estimated $1.9 billion
in revenue that year. Id. ¶¶ 3, 28. Overall, the game has counted roughly 250 million people as
players. Id. ¶ 9. Plaintiff Zachery Liston began playing Candy Crush on his iPhone in early 2012,
and connected his Candy Crush account to his Facebook account around that same time. Id. at
¶¶ 49-50. When he ran out of lives, Liston used the Facebook Option, “periodically asking his
Facebook friends for Donated Lives.” Id. ¶ 51. Some of those Facebook friends installed Candy
Crush because of that request, and Liston received his Donated Lives and exited the game. Id.
¶¶ 52-53. When he returned to the game, however, he discovered that the Donated Lives had
disappeared; other Candy Crush players reported the same problem on various online message
boards.1 Id. ¶¶ 54, 56-57. King had allegedly designed or changed Candy Crush in order to
remove the Donated Lives, and did not inform players beforehand. Id. ¶ 58.
Based on these vanishing Donated Lives, Liston, an Illinois citizen, brings this proposed
class action against the game’s operator, King.com, Ltd. (“King”). Liston filed the first amended
complaint in this case on March 27, 2015, asserting claims for violation of the Computer Fraud
and Abuse Act (“CFAA”), 18 U.S.C. § 1030 (Count I), breach of implied contract (Count III),
and unjust enrichment (Count IV) as an alternative to the breach of implied contract claim,
seeking to represent himself and a national class of all individuals in the United Sates whose
Donated Lives were removed from their Candy Crush accounts by King. Id. at 11-22. Liston also
brings a claim for violation of the consumer protection statutes of all 50 states and the District of
Columbia (Count II), and seeks to represent a multi-state class of all individuals in those states
whose Donated Lives were similarly removed. Id. He brings a separate count for violation of

1

The complaint does not allege that Purchased Lives also disappeared.

3

Illinois’ Consumer Fraud and Deceptive Business Practices Act, 815 ILL. COMP. STAT. 505/1 et
seq., (Count V), on which he seeks to represent an Illinois subclass of all individuals residing in
Illinois who experienced the same removal of their Donated Lives. Id. King has moved to
dismiss Liston’s complaint under Rule 12(b)(1) for lack of Article III standing, and under Rule
12(b)(6) for failure to state a claim.
ANALYSIS
I. Jurisdiction
Liston asserted both federal question and diversity jurisdiction in his complaint, but he
has voluntarily withdrawn his claim under the CFAA, see Pl.’s Resp. at 2 n.1, ECF No. 41,
which was the only federal claim he alleged and thus his only basis for federal question
jurisdiction. He alleges diversity jurisdiction, meanwhile, under the Class Action Fairness Act
(“CAFA”). King does not dispute the existence of diversity jurisdiction, but contends that Liston
lacks Article III standing to pursue the claims he has asserted, both individually and on behalf of
the putative class.
A. Diversity Jurisdiction under CAFA
The diversity jurisdiction statute, 28 U.S.C. § 1332, ordinarily requires complete diversity
of citizenship before a federal court may exercise jurisdiction on that basis. CAFA alters the
complete diversity requirement, however, vesting federal courts with subject matter jurisdiction
over cases in which any member of the proposed class is a citizen of a state and, as relevant here,
“any defendant is a foreign state or a citizen or subject of a foreign state.” 28 U.S.C.
§ 1332(d)(2). For CAFA diversity jurisdiction to be available, the amount in controversy must
also exceed the sum or value of $5,000,000, exclusive of interest and costs, and the proposed
classes must encompass at least 100 members in the aggregate. Id. § 1332(d)(2), (5).

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CAFA’s diversity criteria are satisfied here. King is organized in and has its principal
place of business in the Republic of Malta. First Am. Compl.¶ 21. Liston is an Illinois citizen. Id.
¶ 17. Liston’s complaint satisfies CAFA’s other jurisdictional requirements as well. Here, Liston
alleges that Candy Crush has brought in roughly 250 million players—with an average of 93
million daily active users at one point—and that at least 25 million individuals have been injured
by King’s removal of the lives allegedly worth $.20 each. These allegations are sufficient to
support the exercise of CAFA diversity jurisdiction given that CAFA authorizes the aggregation
of class members’ claims to meet the amount of controversy threshold. 28 U.S.C. § 1332(d)(6);
see also, e.g., Baldwin v. Star Scientific, Inc., 78 F. Supp. 3d 724, 736 (N.D. Ill. 2015) (“The
court assumes that it has jurisdiction because Plaintiff’s expectation (however realistic it may be)
that he could litigate a nationwide class action against Defendants justified the conclusion that
the class could recover economic damages in excess of CAFA’s $5 million amount-incontroversy threshold.”); cf. Back Doctors Ltd. v. Metro. Prop. & Cas. Co., Inc., 637 F.3d 827,
830 (7th Cir. 2011) (“[T]he estimate of the dispute’s stakes advanced by the proponent of federal
jurisdiction controls unless a recovery that large is legally impossible.”). Given Liston’s
allegations regarding the number of Candy Crush players overall, his claim of at least 25 million
class members is not legally impossible. With a minimum alleged loss per person of just 20 cents
(the alleged value of the loss of just one Donated Life), Liston’s claim on behalf of the putative
class provides an adequate basis for jurisdiction under CAFA.
B.

Standing

King asserts that Liston lacks Article III standing and that the First Amended Complaint
must therefore be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. Def.’s
Mem. at 7, ECF No. 33. The issue of standing concerns whether Liston “is entitled to have the

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court decide the merits of the dispute or particular issues.” See Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (citations and quotations omitted). It is the
plaintiff’s burden to show that he meets the requirements of standing. See Kathrein v. City of
Evanston, 636 F.3d 906, 914 (7th Cir. 2011) (citation omitted). To establish Article III standing,
Liston must show “an ‘injury in fact’ that is ‘fairly traceable’ to the defendant’s conduct and
‘that is likely to be redressed by a favorable judicial decision.’” Bank of Am. Corp. v. City of
Miami, –––– U.S. ––––, ––––, 137 S. Ct. 1296, 1302 (2017) (quoting Spokeo, Inc. v. Robins, 578
U.S. ––––, ––––, 136 S. Ct. 1540, 1547 (2016)). To establish an injury in fact, Liston must allege
that he “suffered an invasion of a legally protected interest that is concrete and particularized and
actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548 (citation and
quotation marks omitted). An injury must “actually exist,” but does not need to be tangible, to
satisfy the concreteness requirement. Id. But a plaintiff cannot “allege a bare procedural
violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article
III.” Id. at 1549.
King argues that Liston has not alleged an injury-in-fact because he played Candy Crush
for free, received the additional Donated Lives for free, and never purchased anything from
King. Def.’s Mem. at 4-5. King analogizes this scenario to data breach cases in which plaintiffs’
personally identifiable information (“PII”) is accessed, but never actually used improperly, in a
breach. Id. at 5. Data breach plaintiffs have alleged that they lost the monetary value of their PII
when that information was stolen and potentially sold, but King points to cases that found those
plaintiffs lacked standing. Some courts have held that PII does not have “an inherent monetary
value for which plaintiffs can expect compensation,” King notes. Id. at 5. King also draws
parallels to other decisions that have reasoned that even if PII did have such a value, plaintiffs

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cannot allege an injury-in-fact unless they would have sold their PII but for its theft. Id. at 6.
King argues that Liston has not alleged that he would have sold his Donated Lives, or that a
market even existed in which he could have sold those lives. Id. at 6. Separately, King argues
that Liston lacks Article III standing for his non-Illinois state claims in Count II because he does
not live in, nor allege he was injured in, those states. Id. at 7.
In response, Liston maintains that he has adequately alleged that he suffered injuries-infact because he asserts that he was deprived of lives he had earned in Candy Crush and was not
otherwise compensated for his “social marketing of King’s product.” Pl.’s Resp. at 3. Liston
asserts that both he and King believed that the lives and those marketing services had value, as
shown by the fact that they had agreed to exchange them, and further argues that the Donated
Lives have an ascertainable value of $.20 per life because that is the cost of lives that players
could otherwise acquire using the Purchase Option. Id. at 4. Liston argues that Donated Lives are
more valuable than the free lives a Candy Crush player can receive by waiting for thirty minutes
to pass because the Donated Lives acquired through the Facebook Option can be used
immediately or stored for future use (though Liston alleges in this case, of course, that King
removed the lives rather than leaving them in storage). Id. Liston asserts that this is “a valuable
difference to players, whose addiction to Candy Crush drives King’s entire enterprise,” and
further argues that when King deleted the Donated Lives from his account, he lost the economic
benefit he had derived from his exchange with King. Id. at 4-5. Liston rejects King’s analogy to
PII theft, arguing that such cases do not involve any contractual exchange and that even after a
theft of PII, people still retain and may use their PII, whereas Liston has lost all access to the
deleted lives. Id. at 7. Finally, Liston argues that any standing challenge to his multi-state claims
is premature, and that while there is a split in this District over whether a court should address

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the standing issue on multi-state claims before the class certification stage, this Court should side
with the judges who have deferred the question until after resolving a class certification motion.
Id. at 8.
King’s injury-in-fact argument misses the mark. The game operator focuses on Liston’s
alleged failure to assert an immediate economic loss, but an injury need not be economic in
nature to support Article III standing. See, e.g., United States v. Students Challenging Regulatory
Agency Procedures (SCRAP), 412 U.S. 669, 686 (1973) (“In interpreting ‘injury in fact’ we
made it clear that standing was not confined to those who could show ‘economic harm’ . . . .”).
The Supreme Court recently noted in Spokeo, for example, that “the law has long permitted
recovery by certain tort victims even if their harms may be difficult to prove or measure,” and
that the Supreme Court has previously recognized Article III standing based on alleged
deprivations of rights such as free speech and free exercise. Spokeo, 136 S. Ct. at 1549. The
Seventh Circuit has similarly noted that “[i]njury-in-fact for standing purposes is not the same
thing as the ultimate measure of recovery. The fact that a plaintiff may have difficulty proving
damages does not mean that he cannot have been harmed.” Abbott v. Lockheed Martin Corp.,
725 F.3d 803, 808 (7th Cir. 2013).
Further, even were immediate economic injury a requirement of standing, King’s analogy
to data breach cases to demonstrate Liston’s lack of standing would be unpersuasive. First, even
in the context of PII theft, the premise that PII has no inherent economic value is debatable. It is
true, as King argues, that some courts hearing data breach or data privacy cases have suggested
that PII lacks a monetary value for which plaintiffs could be compensated. See, e.g., Willingham
v. Global Payments, Inc., No. 1:12–CV–01157, 2013 WL 440702, *7 (N.D. Ga. Feb. 5, 2013)
(PII “does not have an inherent monetary value”); In re Jetblue Airways Corp. Privacy Litig.,

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379 F. Supp. 2d 299, 327 (E.D. N.Y. 2005) (dismissing a breach of contract claim because
plaintiffs “had no reason to expect that they would be compensated for the ‘value’ of their
personal information”). But several of the cases King cites have since been reversed or partly
vacated on appeal. See In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d
125, 134, 149 (3d Cir. 2015) (finding plaintiffs did have Article III standing, but had failed to
state a claim under the CFAA where they plausibly alleged a market for the internet history data
the defendants had compiled but had not alleged any facts showing that they intended to
participate in that market or that the defendants had prevented them from recovering that
information’s full value), cert. denied, 137 S. Ct. 36 (2016); Galaria v. Nationwide Mutual Ins.
Co., 663 Fed. App’x 384, 388-89 (6th Cir. Sept. 12, 2016) (finding plaintiffs did have Article III
standing where they alleged that the theft of their personal data put them at an increased and
continuing risk of fraud and that they had expended costs to mitigate that risk). The Seventh
Circuit has also recently found Article III standing to be present in cases where the plaintiffs
plausibly alleged a substantial risk of identity theft and fraudulent credit card charges in the
future and further alleged that they had already spent time and money to mitigate that risk. See
Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 693-94 (7th Cir. 2015); Lewert v. P.F.
Chang’s China Bistro, Inc., 819 F.3d 963, 966-68 (7th Cir. 2016).
Regardless, the analogy also fails because it is inapt; the factual circumstances of the PII
cases on which King relies are simply not analogous to the facts Liston sets out in his complaint.
The complaint alleges, plausibly enough, that Candy Crush lives have actual economic value;
they are available for purchase at a particular price and King compensates players for marketing
the game by facilitating the receipt of Donated Lives. King’s argument that an asset that it is able
to sell for 20 cents has no inherent value is untenable; that the game provides a mechanism by

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which players may also receive such assets for free in exchange for activities that King values
does not change that basic fact. The complaint alleges that there is a market price for additional
lives, and that claim is corroborated by the fact that King itself sells additional lives in the open
market. Accepting that allegation as true for purposes of this motion, as required, Liston plainly
has standing to complain of the loss of those assets by means of King’s conduct—whether that
conduct is labeled as fraud, theft, conversion, or is described by some other legal theory. Liston’s
complaint does not require a determination of whether some future risk is a sufficiently concrete
and particularized injury to support Article III standing—as was the issue in several of the
above-cited data breach cases—but instead alleges a harm that has already occurred: the removal
of Donated Lives from his game account. At this stage of the litigation, Liston has sufficiently
alleged an injury in fact to satisfy Article III’s standing requirements and defeat King’s Rule
12(b)(1) as to the majority of his claims.2

2

After the parties had completed briefing on the motion to dismiss, King cited as
supplemental authority an order granting a motion to dismiss in Mason v. Machine Zone, Inc.,
140 F. Supp. 3d 457 (D. Md. 2015), as well as the Fourth Circuit’s decision affirming the
dismissal of the only claim the plaintiff appealed, Mason v. Machine Zone, Inc., 851 F.3d 315
(4th Cir. 2017) (hereinafter Mason Appeal). In Mason, a Maryland district court granted a Rule
12(b)(6) motion to dismiss a case in which an individual alleged that a free-to-play mobile video
game violated various state consumer laws. Mason, 140 F. Supp. 3d at 459. The game included
an option for players to purchase, using real-world money, digital “gold,” which they could then
choose to spend in the game’s virtual Casino. Id. at 460. The Casino offered a chance to bet on a
spinning wheel, which in turn could produce a virtual prize. Id. Under the theory that was the
subject of her appeal, the plaintiff alleged that the Casino was an unlawful gaming device under
Maryland’s gambling loss recovery statute and that she suffered damages when she lost more
than $100 betting in the game’s Casino. Mason Appeal, 851 F.3d at 318. In granting the motion
to dismiss, that district court had considered it crucial that “there is no real-dollar value attached”
to the virtual gold in the game. Mason, 140 F. Supp. 3d at 460. The Fourth Circuit affirmed,
noting that the virtual chips she had “purchased” with digital “gold”—which she previously paid
for with real-world funds—were “not redeemable for money,” and that as a result, there “was no
money at stake” when she spun the Casino wheel. Mason Appeal, 851 F.3d at 319. The Fourth
Circuit found that, based on how the game operated, the plaintiff “could not have lost or won
money as a result of her participation in that virtual activity.” Id.
As an initial matter, Mason was not a standing case (at least the issue of standing was not
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King’s argument that Liston lacks standing to bring claims under the laws of states where
he does not allege he resides or was injured is more complicated, as it presents the conceptual
question of whether Liston’s ability to assert such claims is a question of standing, or one of
whether he is an appropriate representative of the putative class, or both. King contends that
because Liston claims no injuries in any state other than Illinois, he has no standing to pursue
statutory causes of action under the laws of any other state; accordingly, King submits that
Liston’s claims under any state laws other than those of Illinois must be dismissed. Liston argues
that King’s standing challenge to these claims is premature, and that this Court should defer
consideration of the issue until this case reaches the class certification stage. In support of his
argument, Liston points to the Supreme Court’s recognition of the class action as “‘an exception
to the usual rule that litigation is conducted by and on behalf of the individual named parties
only.’” Pl.’s Resp. at 9 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011)).
Liston is correct that the Supreme Court has indicated that where class certification issues
are dispositive and the resolution of those issues is “logically antecedent to the existence of any
Article III issues,” a court may resolve the class certification issues first. Amchem Products, Inc.
v. Windsor, 521 U.S. 591, 612 (1997); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 831
(1999) (finding class certification issues should be addressed first where they were logically
antecedent to Article III issues and “themselves pertain[e]d to statutory standing, which may

raised in this context); the district and appellate courts held that the complaint failed to state a
cause of action, not that the plaintiff lacked standing. In any event, the case is also completely
distinguishable. There, the plaintiff complained that she received nothing of value for the digital
gold she purchased, but she got exactly what she bargained for, namely the right to access
additional resources to play the game. Here, Liston’s complaint is that King took assets he had
effectively paid for by providing marketing services. Mason would only be analogous if, having
purchased $100 in digital gold, the game operator had removed the digital gold from Mason’s
account altogether. Nothing in Mason suggests that a conversion of funds in that manner would
not constitute a “real world” economic injury.

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properly be treated before Article III standing”). Both Amchem and Ortiz concerned certification
of settlement classes in asbestos litigation, and in both cases the Supreme Court reached its
decisions based on class certification issues and so did not go on to squarely address the standing
issues that objectors to the settlements had also raised. Amchem, 521 U.S. at 628-29; Ortiz, 527
U.S. at 864-65. And the Seventh Circuit relied on Ortiz in Payton v. County of Kane, 308 F.3d
673, 675 (7th Cir. 2002), where six former arrestees had brought a proposed class action against
Illinois’ DuPage and Kane counties—the counties that charged the named plaintiffs the bond
fees at issue in the case—as well as 17 additional counties that had not charged any of the named
plaintiffs the contested bond fee. Id. The counties all imposed the alleged bond fees pursuant to a
single state statute, and the appellate court found that it was “reasonable for the putative plaintiff
class to try to hold all counties accountable within one suit” and that “[t]he constitutionality of a
bond fee . . . should not differ from one county to the next, when such a fee is imposed pursuant
to the same statute.” Id. at 680. The Seventh Circuit understood Ortiz “to rest on the longstanding rule that, once a class is properly certified, statutory and Article III standing
requirements must be assessed with reference to the class as a whole, not simply with reference
to the individual named plaintiffs.” Id. Accordingly, the court held that before the district court
could decide whether the suit could proceed against the other 17 counties the plaintiffs had
named, it had to resolve the question of class certification. Id.
Payton, however, is distinguishable from this case in a significant way: there, the named
plaintiffs sought to represent a class against counties which had all acted pursuant to a common
state statute. Liston, in contrast, is seeking to represent a class on claims he brings not just under
the consumer protection statute of Illinois, but under the consumer protection statutes of the 49
other states as well as the District of Columbia, without any allegation that he lived or was

12

injured in those states. Courts in this District that have considered the situation Liston’s case now
presents have split on whether consideration of standing issues may be postponed until after class
certification in such circumstances. See Baldwin, 78 F. Supp. 3d at 733-35 (discussing split and
collecting cases). Some have taken Amchem and Ortiz to create an exception to the default rule
that standing is to be considered as a threshold matter, and applied that exception in such cases.
See, e.g., Bietsch v. Sergeant’s Pet Care Prods., Inc., No. 15 C 5432, 2016 WL 1011512, at *9
(N.D. Ill. Mar. 15, 2016) (deferring the standing issue until the class certification stage and
agreeing with district court cases that have reached a similar conclusion); In re Aftermarket
Filters Antitrust Litig., No. 08 C 4883, 2009 WL 3754041, at *5 (N.D. Ill. Nov. 5, 2009)
(denying motion to dismiss antitrust and consumer protection claims brought under the statutes
of states in which named plaintiffs did not live or allege injury, finding that the “name plaintiffs’
capacity to represent individuals from other states depends upon obtaining class certification, and
the standing issue would not exist but for their assertion of state law claims on behalf of class
members in those states.”).
Other courts in this District have interpreted Ortiz and Amchem more narrowly. See, e.g.,
In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., No. 09 CV 3690, 2013 WL 4506000, at
* 6 (N.D. Ill. Aug. 23, 2013) (declining to delay consideration of standing issues); Tillman v.
U.S. Energy Sav. Corp., No. 08 C 1641, 2008 WL 2754813, at *2 (N.D. Ill. July 14, 2008) (after
declining to defer the standing issue, finding the named plaintiff lacked standing because she
could never represent a class of Illinois citizens in connection with claims under the Illinois
Consumer Fraud Act, as she was an Indiana citizen and the transaction at issue occurred in
Indiana); see also In re Potash Antitrust Litig., 667 F. Supp. 2d 907, 923 (N.D. Ill. 2009),
vacated and remanded on other grounds sub. nom., Minn–Chem, Inc. v. Agrium Inc., 657 F.3d

13

650 (7th Cir. 2011) (dismissing antitrust and unfair competition claims brought under the laws of
states where no named plaintiff resided or allegedly suffered an injury, and finding that Ortiz
“does not compel a district court to delay reviewing Article III standing issues until after class
certification” but instead requires an “appellate court simultaneously facing both class
certification and Article III standing issues [to] deal with Rule 23 issues first when they are
dispositive”).
If this really is a standing question, this Court agrees that any exception created by Ortiz
and Amchem does not apply to cases like the one Liston presents here. Rather, Ortiz requires “a
court simultaneously facing both class certification and Article III standing to deal with Rule 23
issues first when they are dispositive, but [does] not direct[] district courts to postpone an inquiry
into the threshold issue of justiciability outside of that context.” In re Dairy Farmers of Am., Inc.
Cheese Antitrust Litig., 2013 WL 4506000, at *6. That the Seventh Circuit has addressed Article
III standing prior to class certification post-Ortiz confirms that Ortiz does not require a ruling on
class certification before standing. See, e.g., Meyers v. Nicolet Restaurant of De Pere, LLC, 843
F.3d 724, 726 (7th Cir. 2016) (finding that the plaintiff lacked standing, such that the Seventh
Circuit need not reach the question of class certification); Arreola v. Godinez, 546 F.3d 788,
794–95 (7th Cir. 2008) (deciding individual standing to pursue injunctive relief prior to
evaluating class certification issues). The plaintiff has not yet affirmatively sought the
certification of a class,3 so here there is no logically antecedent certification matter to address.
Conceptually, however, this Court questions whether Liston’s claims under state
consumer protection statutes present a question of constitutional standing at all. Liston claims
3

The plaintiff filed a class certification motion at the outset of the case, see Am. Mot. for
Class Certification, ECF No. 16, but that was done for purely prophylactic purposes. This Court
denied the motion without prejudice to its reassertion at whatever point the plaintiff was prepared
to brief his motion. See ECF No. 51.

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injury based on King’s conduct; if he suffered a concrete and particularized injury, he has
constitutional standing to pursue his claim. As discussed above, Liston has adequately alleged
that he has standing. The question of what legal theories Liston may advance as bases for
recovering damages for his injury does not implicate Article III standing; the availability of any
particular legal theory presents a question of substantive law. The Supreme Court has observed
that “a statute ordinarily provides a cause of action ‘only to plaintiffs whose interests fall within
the zone of interests protected by the law invoked.’” Bank of Am. Corp., 2017 WL 1540509, at
*6 (quoting Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388
(2014). This zone-of-interests inquiry requires courts to determine, “‘using traditional tools of
statutory interpretation, whether a legislatively conferred cause of action encompasses a
particular plaintiff’s claim.’” Id. (quoting Lexmark, 134 S. Ct. at 11). Liston’s allegations in
Count II also call to mind the “general prohibition on a litigant’s raising another person’s legal
rights,” a concept that courts have historically categorized as a principle of prudential standing.
See Lexmark, 134 S. Ct. at 1386 (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,
12 (2004)); Bank of Am. Corp., 2017 WL 1540509, at *6 (concluding that the plaintiff’s claims
“satisfy the ‘cause-of-action’ (or ‘prudential standing’) requirement”); but see Lexmark, 134 S.
Ct. at 1387 n.4 (stating that “prudential” and “statutory” are both misleading labels for this
cause-of-action inquiry).
It is true, as Liston notes, that the class action is “‘an exception to the usual rule that
litigation is conducted by and on behalf of the individual named parties only,’” see Wal-Mart,
564 U.S. at 348, but qualifying for that exception depends on the ability of any named plaintiffs
to satisfy the numerosity, commonality, typicality, and adequacy of representation requirements
of Federal Rule of Civil Procedure 23(a). See id.; Fed. R. Civ. Pro. 23(a); see also Halperin v.

15

Int’l Web Servs., LLC, 123 F. Supp. 3d 999, 1009 (N.D. Ill. 2015) (finding Illinois plaintiff’s
ability to raise claims under the consumer protection laws of other states was “more accurately
characterized as an attack not on [the plaintiff’s] Article III standing per se” but rather “on his
ability under Rule 23 to represent the multi-state class”). Even apart from the question of
whether Liston can personally sue under the law of a state where he did not reside and in which
he was not injured, therefore, Rule 23 imposes additional restrictions on his ability to assert
claims on behalf of people who were.
All of this implies that, although King’s challenge may be mischaracterized, the concerns
that have informed the views of courts holding that “standing” to pursue claims based on various
state laws should be resolved up front are valid. In the words of another district court:
The alternative proposed by the plaintiffs would allow named
plaintiffs in a proposed class action, with no injuries in relation to
the laws of certain states referenced in their complaint, to embark
on lengthy class discovery with respect to injuries in potentially
every state in the Union. At the conclusion of that discovery, the
plaintiffs would apply for class certification, proposing to represent
the claims of parties whose injuries and modes of redress they
would not share. That would present the precise problem that the
limitations of standing seek to avoid.
In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 155 (E.D. Pa. 2009).
Whether one views the question of Liston’s legal authority to pursue a claim under the
law of a state where he did not reside and was not injured as a question of standing, or
substantive law, or typicality and adequacy under Rule 23, there is plainly ample reason at this
juncture to question whether Liston will be able to pursue claims based on statutory causes of
action created by states where Liston neither lived nor was injured. While it is not, in this Court’s
view, appropriate to hold that Liston has no standing to assert his own state law consumer
protection claim, it would also be inappropriate to engage in wide-ranging discovery premised on

16

a prospect as to which there is substantial doubt—namely, Liston’s ability to assert causes of
action created by other states for the benefit of other individuals injured in those other states.
Accordingly, the Court anticipates that it will stay discovery on such claims until such time as
the question of class certification is squarely before the Court, or some additional class
representative(s) whose entitlement to pursue such claim(s) has been identified, or some other
ground has been advanced to provide reasonable assurance that there will be a valid basis to
pursue such discovery in this case.
II. Failure to State a Claim
King also argues that the complaint should be dismissed under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule
12(b)(6), “a complaint must ‘state a claim to relief that is plausible on its face.’” Adams v. City of
Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is facially plausible “‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Adams, 742 F.3d at 728 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A court
must accept all of the plaintiff’s factual allegations as true when reviewing the complaint, but
conclusory allegations that merely restate the elements of a cause of action do not receive this
presumption. See Iqbal, 556 U.S. at 679.
In its Rule 12(b)(6) arguments, King attacks each of Liston’s counts separately. Def.’s
Mem. at 6-15. As this Court has noted before, this sort of parsing disregards the difference
between “claims” and “counts.” “Complaints plead claims, which is to say grievances.” ACF
2006 Corp. v. Mark C. Ladendorf, Attorney at Law, P.C., 826 F.3d 976, 981 (7th Cir. 2016).
“Counts,” by contrast, typically describe different legal theories by which those facts purportedly

17

give rise to liability and damages. Lucas v. Vee Pak, Inc., 68 F. Supp. 3d 870, 876–77 (N.D. Ill.
2014); see also Mannes v. Ford Motor Co., Inc., No. 13 C 07381, 2014 WL 7332616, at *2
(N.D. Ill. Dec. 22, 2014); Volling v. Antioch Rescue Squad, 999 F. Supp. 2d 991, 996–97, 2013
WL 6254254, at *2 (N.D. Ill. 2013); see generally NAACP v. Am. Family Mut. Ins. Co., 978 F.2d
287, 292 (7th Cir. 1992). Pleading in counts, although often helpful and permitted by Rule 10(b),
is not required; as noted already, it is axiomatic that a plaintiff is not required to plead legal
theories at all. See Jajeh v. Cnty. of Cook, 678 F.3d 560, 567 (7th Cir. 2012) (hostile work
environment claim pleaded where complaint never used that term); Alioto v. Town of Lisbon, 651
F.3d 715, 721 (7th Cir. 2011) (“[W]e have stated repeatedly (and frequently) that a complaint
need not plead legal theories, which can be learned during discovery.”).
King’s motion elides this distinction and its import. Regardless of whether facts sufficient
to establish the viability of a particular legal theory have been pleaded, Liston’s complaint
survives if the facts alleged plausibly entitle him to legal relief under some theory, even if not
one expressly identified in the complaint. To prevail on his motion to dismiss, King must
establish that none of the legal theories Liston has advanced, or any other, plausibly establishes a
right to recover damages from King for the injuries Liston (and the members of the putative
class) have allegedly suffered.
To begin, King challenges Liston’s right to recover under the CFAA. Rather than
responding to King’s substantive challenges to the CFAA claim, Liston seeks leave to withdraw
that “claim” without prejudice. Pl.’s Resp. at 2 n.2. King seeks dismissal of the CFAA claim
with prejudice, see Def.’s Reply, ECF No. 44, at 6, but that would not be appropriate at this
juncture because the CFAA count is not a legal “claim,” but a legal cause of action—a legal
theory as to why Liston is entitled to recover from King based on his legal claim that King’s

18

conduct injured him. Multiple legal theories in support of a claim differ from multiple claims that
must be separately pleaded; “complaints need not cite authority or set out a line of legal
argument.” ACF 2006 Corp., 826 F.3d at 981. Liston did not need to plead entitlement to
recovery under the CFAA to begin with, so he is not now barred from withdrawing that assertion
at this preliminary juncture. Further, Liston has the right, pursuant to Federal Rule of Civil
Procedure 41(a)(1)(a)(i) to unilaterally dismiss without prejudice this entire action, as the
defendants have not filed an answer or motion for summary judgment, so permanently revoking
his right to assert a particular legal theory would substantially undermine that right.
Apart from his “standing” challenge, King has also moved to dismiss the claims under
state consumer law under Rule 12(b)(6), asserting that Liston has pleaded those claims “without
identifying the statutory sections allegedly violated or providing factual allegations supporting
each element of each claim.” Mem. at 18. This argument, like the standing challenge, is
premature. Because a complaint is not required to set forth all (or any) of the legal theories on
which recovery may ultimately be asserted, it remains to be seen whether Liston and the putative
class will actually move forward on all, or any, of the non-Illinois causes of action. Accordingly,
the Court will not evaluate the legal sufficiency of those theories unless and until there is a class
representative who may properly assert them.
As to Count III, King argues that Liston has “failed to state a claim” for breach of an
implied-in-fact contract because he has “not identified a promise by King that he could retain
Donated Lives indefinitely in exchange for soliciting Donated Lives,” and has further failed to
allege that King intended to be bound by any such promise. Def.’s Mem. at 19. It is not clear to
this Court, based on the allegations in the First Amended Complaint, that a breach of contract

19

theory is available here. Liston has not pled many facts to suggest that a contract existed,4 and
instead simply alleges in Count III that when he and the proposed class members used the
Facebook Option to obtain Donated Lives, they “entered into a contract with King, wherein
Plaintiff and members of a National Class agreed to play Candy Crush; connect their Game
account to Facebook; and ask their Facebook friends for Donated Lives, thereby marketing the
game.” First Am. Compl. at 20. Liston asserts that “[i]n exchange, King agreed that Plaintiff and
the other National Class members would be able to receive and retain Donated Lives” until they
used them. Id. The Donated Lives apparently flowed from Liston’s Facebook friends to Liston,
not from King to Liston, and Liston provides no factual allegations regarding how King
communicated this agreement to him, or even how he learned about the Facebook Option. So,
perhaps, the assertion of a breach of contract theory will fail.
No matter. Again, Liston is not required to plead a legal theory at this stage of the
litigation. See, e.g., Rabe v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011) (“A
complaint need not identify legal theories, and specifying an incorrect theory is not a fatal

4

King filed a separate request for judicial notice in support of its motion to dismiss,
asking this Court to take judicial notice of King’s license agreement, which was last updated on
February 10, 2015, and which King said is “applicable to players who access King’s Candy
Crush Saga game via their mobile devices” and is “publicly available online.” Req. for Judicial
Notice, ECF No. 34, at 1. King argues in its memorandum in support of its motion to dismiss that
the Candy Crush Terms of Service “advise players that in-game lives have no financial value and
can be removed by King at any time.” Def.’s Mem. at 5 n.4. Liston opposes the request to take
judicial notice. Pl.’s Resp. to Judicial Notice, ECF No. 42. Federal Rule of Evidence 201 does
state that a court “may judicially notice a fact that is not subject to reasonable dispute” because it
“can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Civ. Pro. 201(b)(2). The same rule states that a court “must take judicial
notice if a party requests it and the court is supplied with the necessary information.” Rule
201(c)(2). Here, however, there is a critical problem: the license agreement King presents was
last updated in 2015, while Liston asserts that King began removing Donated Lives at some point
in 2012. Because King has failed to demonstrate that the submitted version of the license
agreement was in place and applied to Liston at the relevant time period—the only apparent
relevance it could have at this juncture—the request for judicial notice [34] is denied.

20

error.”); Jogi v. Voges, 480 F.3d 822, 826 (7th Cir. 2007) (“It is established . . . that complaints
need not plead legal theories.). As discussed above, Liston has plausibly alleged that lives in
Candy Crush—whether donated or otherwise acquired—have some monetary value. Liston
alleges that King plucked those lives out of his account, without ever indicating that the lives
were valid only for a limited time. The facts alleged in Count III therefore give rise to a plausible
legal claim, whether under a theory of breach of contract, theft, conversion, fraud, or something
else. Liston’s complaint is sufficient to put King on notice of the essential nature of his claim:
King injured Liston by preventing him from using an asset in which he had a property interest.
The precise legal theory, or theories, on which such a claim may be premised, will be determined
not at this stage, but during discovery, in advance of summary judgment and/or trial.
Accordingly, the motion to dismiss is denied as to Count III.
For the same reasons, the Court declines to dismiss the unjust enrichment claim in Count
IV. “To prevail on a claim for unjust enrichment, a plaintiff must prove that the defendant
‘retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit
violates fundamental principles of justice, equity, and good conscience.’” Nat’l Union Fire Ins.
Co. of Pittsburgh v. DiMucci, 34 N.E.3d 1023, 1043 (Ill. App. Ct. 2015) (quoting HPI Health
Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672 (1989)).5 Here, Liston alleges that
King retained a benefit when Liston marketed Candy Crush to his friends, and that this was to
Liston’s detriment in that King removed—without warning—the Donated Lives that Liston had
5

King argues that an unjust enrichment claim also requires that the defendant have had
an independent duty to act, but for this point cites only to Martis v. Grinnell Mut. Reinsurance
Co., 905 N.E.2d 920, 1025 (Ill. App. Ct. 2009). Yet a more recent Illinois Appellate Court
decision from 2015 disagreed with the notion that alleging such a duty is required, saying that
“Martis is not an accurate statement of the law on the equitable claim for unjust enrichment.”
DiMucci, 34 N.E.3d at 1042. As there is no requirement at this juncture to definitively resolve
questions of entitlement to relief under particular legal theories, the Court need not presently
predict how the Illinois Supreme Court would resolve this question.

21

received in exchange for his marketing. As noted above, Liston may yet refine the legal theory or
theories he pursues, but at this point his factual allegations are sufficient to defeat King’s motion
to dismiss Count IV.6
Finally, King asserts that Liston’s claim for violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act (“ICFA”) in Count V must be dismissed because Liston has
not alleged actual damages, does not meet the ICFA’s “consumer” requirements, has failed to
allege proximate cause, and has failed to plead this claim with the particularity required by Rule
9(b). Def.’s Mem. at 22-24.
The ICFA prohibits “[u]nfair methods of competition and unfair or deceptive acts or
practices . . . in the conduct of any trade or commerce,” 815 ILL. COMP. STAT. 505/2. To state a
claim under ICFA, a plaintiff must allege “(1) a deceptive act or unfair practice occurred, (2) the
defendant intended for plaintiff to rely on the deception, (3) the deception occurred in the course
of conduct involving trade or commerce, (4) the plaintiff sustained actual damages, and (5) such
damages were proximately caused by the defendant’s deception.” Dubey v. Public Storage, Inc.,
918 N.E.2d 265, 277 (Ill. App. Ct. 2009). The actual damage component requires that a private
party plaintiff allege an “actual pecuniary loss.” Kim v. Carter’s Inc., 598 F.3d 362, 365 (7th Cir.
2010) (quoting Mulligan v. QVC, Inc., 888 N.E.2d 1190, 1197 (Ill. App. Ct. 2008)). In Count V,
Liston alleges that he and the proposed Illinois Subclass “have suffered injuries in fact and actual
damages, including: (1) the lost value of the Donated Lives; and (2) the cost of purchasing
Replacement Lives.” First Am. Compl. ¶ 115. King argues that Liston has not alleged actual
6

In view of the fact that the unjust enrichment count is pled in the alternative, and that
Liston has asserted a breach of contract claim as well as a fraud claim, the dismissal of the fraud
claim without prejudice (see infra) does not mandate dismissal of the unjust enrichment theory.
Compare Pirelli Armstrong Tire Corp., Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d
436, 447-448 (7th Cir. 2011) (dismissing unjust enrichment count that was dependent on fraud
allegations and was not pleaded in the alternative).

22

damage because he did not pay for the Donated Lives. Def.’s Mem. at 22. As discussed above,
however, the Donated Lives clearly have some economic value (accepting the truth of Liston’s
allegations), and King removed those items of value from Liston’s Candy Crush account. Liston
has therefore sufficiently pled the actual damage required by the ICFA. Actual damages under
the ICFA must be “calculable and ‘measurable by the plaintiff’s loss,’” as opposed to the
defendant’s gain. Morris v. Harvey Cycle and Camper, Inc., 911 N.E.2d 1049, 1053 (Ill. App.
Ct. 2009) (quoting City of Chi. v. Mich. Beach Housing Co-op., 696 N.E.2d 804, 811 (Ill. App.
Ct. 1998)). Here, although Liston does not seem to allege specifically how or when he purchased
so-called Replacement Lives, he needn’t have done so: he has alleged that the Donated Lives
have a calculable value of $.20 each, based on the ability to purchase five lives for $.99, and
further alleges that he lost these lives. King’s actual damage argument therefore fails.
King also argues that Liston cannot recover under ICFA because he is not a consumer
and his claim lacks a consumer nexus. A plaintiff generally must allege that he or she is a
“consumer” in order to state an ICFA claim. See Roppo v. Travelers Cos., 100 F. Supp. 3d 636,
650 (N.D. Ill. 2015) (citing Bank One Milwaukee v. Sanchez, 783 N.E.2d 217, 220 (2003)). The
ICFA defines a consumer as “any person who purchases or contracts for the purchase of
merchandise not for resale in the ordinary course of his trade or business but for his use or that of
a member of his household.” 815 ILL. COMP. STAT. 505/1(e). But courts have also allowed nonconsumers—both business and nonbusiness plaintiffs alike—to go forward with ICFA claims
where they satisfy the “consumer nexus” test. See Bank One Milwaukee, 783 N.E.2d at 221;
Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F. Supp. 2d 898, 911-12 (N.D. Ill. 2012). To satisfy
that test, a plaintiff must show “(1) that their actions were akin to a consumer’s actions to
establish a link between them and consumers; (2) how defendant’s representations . . . concerned

23

consumers other than [plaintiff]; (3) how defendant’s particular [activity] involved consumer
protection concerns; and (4) how the requested relief would serve the interests of consumers.”
Roppo, 100 F. Supp. 3d at 651 (quoting Brody v. Finch Univ. of Health Sci./The Chi. Med. Sch.,
698 N.E.2d 257, 269 (Ill. App. Ct. 1998)).
The Court need not evaluate whether Liston has satisfied the consumer nexus test
because he has adequately alleged that he is a “consumer” under ICFA. Under that statute, the
definition of “merchandise” is not a particularly narrow one; it includes “any objects, wares,
goods, commodities, intangibles, real estate situated outside the State of Illinois, or services.”
815 ILL. COMP. STAT. § 505/1(b). Liston alleges that he marketed Candy Crush to his friends in
exchange for Donated Lives. While the Donated Lives did not flow directly from King, but
rather from King to Liston’s friends to Liston, the plaintiff here does allege that it was King who
made the Facebook Option available to consumers and thereby represented to him and other
players that they would “be able to receive and retain Donated Lives for later use.” See Compl.
¶ 108. Liston has thus alleged that he agreed to exchange his marketing services for valuable
Donated Lives, and meets the definition of “consumer” for ICFA purposes.
Nevertheless, there is a shortcoming in Liston’s complaint that does preclude him, on the
basis of these allegations, from pursuing a recovery under ICFA. Liston has not satisfied Rule
9(b)’s particularity requirement, and his ICFA claim is therefore dismissed on that basis.7 Rule

7

While Liston does not dispute that Rule 9(b) applies to the “deceptive” prong of that
claim, he argues in his brief that King waived any argument that Rule 9(b) applies to his claim’s
“unfair” prong. Pl.’s Resp. at 23 & n.6. The Court rejects that argument. King argued in its
memorandum in support of its motion to dismiss that Liston had not alleged “fraud or deception
with Rule 9(b) particularity.” Def.’s Mem. at 24. King did not address a separate “unfair” prong
of the claim in its brief, but did argue for dismissal of the entire ICFA claim on Rule 9(b)
grounds. Id. In addition, the Seventh Circuit has previously rejected an argument that the
pleading standard of Federal Rule of Civil Procedure 8(a) should instead apply to an allegation
of fraudulent conduct that was unfair under the ICFA. Pirelli631 F.3d at 446-47. In Pirelli, the
24

9(b) requires that a pleading “state with particularity the circumstances constituting fraud or
mistake.” Fed. R. Civ. Pro. 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.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d
732, 737 (7th Cir. 2014) (internal quotations omitted). Liston alleges in Count V that “[b]y
offering the Facebook Option, King represented to Plaintiff and the Illinois Subclass members
that they would be able to receive and retain Donated Lives for later use,” and that this conduct
constituted “unfair and deceptive practices under the ICFA.” First Am. Compl. ¶¶ 108, 113. King
“lulled” Liston and other Illinois users “into a false sense of security about the number of
Donated Lives” they had, and intended for them “to rely on these deceptions and unfair
practices” when they used the Facebook Option, Liston asserts. Id. ¶¶ 110, 114. But Liston fails
to allege with any particularity how or when King communicated the alleged misrepresentations.
Were they part of a terms of use agreement players had to accept before beginning the game?
Were they delivered contemporaneously with instructions and prompts relating to obtaining
Donated Lives? The complaint does not say; it does not identify any specific message formats or
timeframes, nor does it allege the substance of any such message with particularity. Liston thus
has failed to satisfy Rule 9(b)’s particularity requirement, and Count V is dismissed without
Seventh Circuit noted that “[w]hen a claim alleges an unfair practice, the relaxed pleading
standards of Rule 8 do indeed govern.” Id. at 446. The Seventh Circuit clarified, however, that
Rule 9(b)’s requirements apply to “allegations of fraud, not claims of fraud,” and found that
because the conduct alleged in the complaint constituted “fraud predicated on either a
misrepresentation or an omission,” Rule 9(b) applied to the entire ICFA claim. Id. at 447. Like
the allegations in Pirelli, Liston’s allegations in Count V “sound in fraud”—e.g., “King
misrepresented;” “King lulled;” “King intended for Plaintiff . . . to rely”—and Rule 9(b) applies
to Count V in its entirety. See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th
Cir. 2007) (“A claim that sounds in fraud—in other words, one that is premised upon a course of
fraudulent conduct—can implicate Rule 9(b)’s heightened pleading requirements.”) (internal
quotations omitted).

25

prejudice. Absent an adequate amendment to the complaint that pleads allegations of fraud with
requisite specificity, Liston may not recover based on ICFA.
*

*

*

For the foregoing reasons, the defendant’s motion to dismiss [31] is granted in part and
denied in part. Counts I and V are dismissed without prejudice. The motion to dismiss is denied
as to Counts II, III and IV, but proceedings with respect to Count II will be dependent upon and
tailored to the identification of a plaintiff or plaintiffs—whether Liston or others—who may
permissibly assert causes of action premised on consumer fraud statutes other than that of
Illinois.

John J. Tharp, Jr.
United States District Judge

Date: May 23, 2017

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