UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

NICK PEARSON, On Behalf of Himself and All 

Others Similarly Situated, 

 Plaintiff, 

 vs. 

TARGET CORPORATION, a Minnesota 

Corporation, 

 Defendant. 

Case No. 11cv07972 

Honorable Robert W. Gettleman 

DEFENDANT’S MEMORANDUM IN SUPPORT OF IT’S 

MOTION TO DISMISS THE CLASS ACTION COMPLAINT 

Bradley J. Andreozzi 

Justin O. Kay 

DRINKER BIDDLE & REATH LLP 

191 North Wacker Drive, Suite 3700 

Chicago, IL 60606-1698 

Tel: (312) 569-1000 

Fax: (312) 569-3000 

Kara L. McCall 

Shelby Feuerbach 

SIDLEY AUSTIN LLP 

One South Dearborn Street 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

Counsel for Defendant Target Corporation

January 26, 2012 

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TABLE OF CONTENTS

Page

i 

PRELIMINARY STATEMENT ................................................................................................... 1 

SUMMARY OF THE COMPLAINT............................................................................................ 2 

ARGUMENT................................................................................................................................. 5 

I. PLAINTIFF FAILS TO ALLEGE SUFFICIENT FACTS TO STATE A CLAIM 

UNDER EITHER RULE 8 OR RULE 9(b) ...................................................................... 5 

A. Plaintiff’s Vague And Conclusory Allegations Fail To Satisfy Rule 8................. 6 

B. Plaintiff’s Vague And Conclusory Allegations Fail To Satisfy The 

Particularity Requirements Of Rule 9(b) ............................................................... 7 

II. PLAINTIFF FAILS TO ALLEGE FACTS ESTABLISHING HIS STANDING 

TO SUE.............................................................................................................................. 9 

III. PLAINTIFF FAILS TO STATE A CLAIM UNDER ICFA........................................... 10 

A. Plaintiff Has Not Alleged Sufficient Facts To Support An ICFA Claim As 

To Any Product.................................................................................................... 11 

1. Plaintiff Has Not Alleged “Actual Damage” Because He Does Not 

Allege That The Product Did Not Work For Him ................................... 11 

2. Lack Of Substantiation Does Not State A Cognizable Theory................ 12 

3. Plaintiff’s Conclusory Allegations Of Falsity Are Insufficient To 

State A Claim........................................................................................... 14 

CONCLUSION............................................................................................................................ 15

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TABLE OF AUHORITIES

Page

ii 

Cases

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009)............................................................ 6, 7 

BASF Corp. v. Old World Trading Co., 41 F.3d 1081 (7th Cir. 1994) .................................. 13, 14 

Bell Atlantic v. Twombly, 550 U.S. 544 (2007).............................................................................. 6

Bober v. Glaxo Wellcome PLC, 246 F.3d 934 (7th Cir. 2001)............................................... 13, 14 

Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009) .......................................................................... 7 

Cosmetique, Inc. v. Valuecheck, Inc., 753 F. Supp. 2d 716 (N.D. Ill. 2010) ................................. 8 

DeBouse v. Bayer, 235 Ill. 2d 544 (2009) ................................................................................ 9, 10 

Gredell v. Wyeth Labs., Inc., 367 Ill. App. 3d 287 (1st Dist. 2006)...................................... passim

Lewis v. Casey, 518 U.S. 343 (1996)............................................................................................ 10 

Menominee Indian Tribe v. Thompson, 161 F.3d 449 (7th Cir. 1998)........................................... 4 

Mintz v. Mathers Fund, Inc., 463 F.2d 495 (7th Cir. 1972) ......................................................... 10 

Oliveira v. Amoco Oil Co., 201 Ill. 2d 134 (2002) ................................................................... 9, 10 

Ong v. Sears, Roebuck & Co., 388 F. Supp. 2d 871 (N.D. Ill. 2004)........................................... 10 

Pacific Dunlop Holdings, Inc. v. Barosh, 91c0002, 1991 U.S. Dist. LEXIS 6662 

 (N.D. Ill. May 15, 1991) ..........................................................................................................8-9 

Scott v. GlaxoSmithKline Consumer Healthcare, L.P., 05cv3004, 

 2006 U.S. Dist. LEXIS 18630 (N.D. Ill. Apr. 12, 2006) ......................................................... 7, 8 

Steel Co. v. Citizens For A Better Env’t, 523 U.S. 83 (1998)......................................................... 9

United States ex rel. Gross v. Aids Research Alliance-Chicago, 415 F.3d 601 (7th Cir 2005) ..... 8 

United States Constitution

Article III ........................................................................................................................................ 9 

Statutes

815 ILCS 505/10a (2011) .................................................................................................... 9,10, 12 

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TABLE OF AUHORITIES (continued)

Page

iii 

Rules

Fed. R. Civ. P. 8..................................................................................................................... passim 

Fed. R. Civ. P. 9(b) ................................................................................................................ passim 

Fed. R. Civ. P. 12(b)(6)............................................................................................................. 1, 11

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1 

Defendant Target Corporation (“Target”) submits this memorandum in support of its 

motion to dismiss Plaintiff’s Class Action Complaint (“the Complaint” or “Cmplt”) with 

prejudice pursuant to Federal Rules of Civil Procedure 8, 9(b), and 12(b)(6). 

PRELIMINARY STATEMENT

 The Complaint filed by plaintiff Nick Pearson (“Plaintiff”) challenges the effectiveness 

of a dietary supplement – glucosamine – that has been on the market for over twenty years. 

Plaintiff does not appear to be challenging any representation unique to Target’s glucosamine 

products. Rather his theory appears to be that joint supplements, in general – i.e., the ingredients 

glucosamine and chondroitin, among others – have not been shown to be effective. Plaintiff, 

however, makes no attempt to explain how or why Target’s statements about its products are 

false and the Complaint fails to allege the most basic facts required to state a claim. 

At the most fundamental level, Plaintiff fails to identify the particular product that he 

purchased, while acknowledging that Target sells two glucosamine products that contain 

different ingredients and make different packaging statements. It is crucial for Target and the 

Court to know the particular product Plaintiff purchased and the particular representations—

either on the packaging or in other advertising—to which he was exposed. Such fundamental 

facts must be pled to meet Rule 8’s plausibility requirement, Rule 9(b)’s particularity 

requirement, and also to establish Article III standing, for the law is clear that Plaintiff cannot 

challenge products he never purchased and representations he never saw. 

Moreover, although the Complaint contains a conclusory allegation that the glucosamine 

products are not “proven to work,” Plaintiff has not alleged that the (unidentified) product he 

purchased was actually ineffective for him, and therefore has not alleged “actual damage” 

resulting from his use of the product, a required element of his sole count—a violation of the 

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Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”). To the extent that 

Plaintiff is alleging “actual damage” based on the theory that he purchased a product with 

allegedly unsubstantiated statements, Illinois law is clear that a private plaintiff must plead 

sufficient facts—with the specificity required by Rule 9(b)—showing that the statements are 

actually false and misleading, and cannot shift that burden to the defendant by merely alleging 

that the statements are “unsubstantiated.” Plaintiff has not met this pleading standard. 

The Complaint alleges in purely conclusory fashion that “numerous” studies have shown 

that the products’ ingredients do not work as represented. See, e.g., Cmplt. ¶18. Yet the 

Complaint does not identify a single study, let alone describe such key facts as the ingredients or 

formulas tested, the methodologies used, the outcomes studied, or the conclusions reached by the 

researchers. If this case were to proceed to trial, Target would show that there is indeed strong 

scientific support for the claims made for Target’s glucosamine products, including studies that 

the Plaintiff has simply elected to ignore. But the suit should not survive beyond the pleading 

stage because Plaintiff cannot turn vague allegations about unidentified scientific studies and a 

conclusory assertion that product statements are unsubstantiated into a consumer fraud claim. 

SUMMARY OF THE COMPLAINT

Plaintiff Pearson is a Cook County resident who claims to have purchased one of two 

different Up & Up glucosamine products (each, a “Product,” and together, “the Products”)1

 at a 

Chicago-area Target store “in or around June 2011.” Cmplt. ¶ 9. Plaintiff alleges that he paid 

“approximately $20 or more for a bottle of the Product.” Id. Plaintiff does not identify which 

Product he purchased, the precise amount he paid, the actual date of the transaction, or the store 

 

1 The Products are Up & Up Triple Strength Glucosamine Chondroitin Plus MSM Dietary 

Supplement (“Up & Up Triple Strength”) and Up & Up Advanced Glucosamine Chondroitin Complex 

(Continued) 

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where he bought the Product. Plaintiff alleges that he “was exposed to and saw Defendant’s 

representations by reading one of the Up & Up glucosamine labels” at the store (id.) (emphasis 

added), but he does not identify which label or the content of the representations he allegedly 

read. 

The Products identified in the Complaint are two different dietary supplements, which are 

sold in different amounts at different prices. Id. ¶ 12. The primary active ingredient in both 

Products is glucosamine,2 but each Product contains different ingredients in different amounts: 

while Up & Up Triple Strength and Up & Up Advanced both contain chondroitin sulfate (a 

complex carbohydrate in connective tissue) and methylsulfonylmethane (“MSM”) (an organic 

sulfur compound in fruits, vegetables, tea, and milk), only Up & Up Triple Strength contains 

Boswellia Seratta (a gum resin extracted from an herb), and only Up & Up Advanced contains 

hyaluronic acid (a component of synovial fluid in the eyes and joints) and an “antioxidant 

proprietary extract” comprised of Chinese skullcap and black catechu. Id. ¶¶ 14-17. 

Taking liberties with the Products’ packaging, the Complaint alleges that “[t]hrough 

uniform nationwide representations made on the packaging of the Products, Defendant states that 

its Up & Up Glucosamine products will help promote mobility, renew cartilage, and maintain 

healthy connective tissue for all joints in the human body, for adults of all ages and for all 

manner and stages of joint related ailments.” Id. ¶ 1. In fact, however, the packaging for the 

Products does not contain language asserting that the Products are effective “for all manner and 

stages of joint related ailments,” for “all joints in the human body,” or “for adults of all ages.” 

 

(Continued) 

Dietary Supplement (“Up & Up Advanced”). Cmplt. ¶¶ 1 n.1, 12.

2 Glucosamine is an amino sugar that the body produces and distributes in cartilage and other 

connective tissue. Id. ¶ 14. 

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On the contrary, the packaging states that “This product is not intended to diagnose, treat, cure, 

or prevent any disease.”3

 Exs. 1 & 2. 

Because the two Products contain different ingredients, the statements on the packaging 

are not the same. For example, the packaging for Up & Up Triple Strength states that 

“[g]lucosamine is a major building block of joint cartilage, which helps to maintain the structural 

integrity of joints and connective tissue.” See Ex. 1. The packaging for Up & Up Advanced 

does not contain those statements. See Ex. 2. Only Up & Up Advanced includes the 

representation that MSM “provides sulfur which is important for the structural integrity of joint 

cartilage and connective tissue.” See id. The packaging for Up & Up Triple Strength states that 

the Product “supports the renewal of cartilage, [h]elps maintain the structural integrity of joints, 

[and] [s]upports mobility and flexibility.” See Ex. 1. Those statements are not on the packaging 

for Up & Up Advanced, which instead makes the statement “help[s] rebuild cartilage and 

lubricate joints.” See Ex. 2. The Up & Up Advanced label also contains descriptions of 

hyaluronic acid, antioxidant extract, and MSM, none of which are found on the Up & Up Triple 

Strength package. See Exs. 1 & 2. As a final example, Up & Up Triple Strength’s packaging 

contains a picture of a leg, knee, and running shoe, while no such photo appears on the Up & Up 

Advanced product. See id.

Plaintiff alleges that he was deceived into purchasing the (unidentified) Product because 

he believed that the Product was “proven to be and was effective for the representations made on 

 

3 Because the statements on the Product packaging are central to the Complaint (which alleges that 

Plaintiff was deceived by “the representations made on the packaging” (Cmplt. ¶ 9), quotes some of the 

language, and includes pictures of some of the packaging), the Court can consider the actual contents of 

the packaging in ruling on this motion to dismiss. Menominee Indian Tribe v. Thompson, 161 F.3d 449, 

456 (7th Cir. 1998) (“Documents attached to a motion to dismiss are considered part of the pleadings if 

they are referred to in the plaintiff’s complaint and are central to his claim.”). Color copies of the 

Products’ packaging are submitted as Exhibits 1 & 2. 

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the packaging.” Cmplt. ¶ 9. Neither Products’ packaging, however, contains any representation 

that the Products are “proven” to work, nor did Target claim to have any particular type of 

scientific or clinical evidence for the Products’ efficacy (although it does have such evidence). 

Moreover, Plaintiff does not allege that the Product he purchased did not work for him. Rather, 

he cryptically alleges that the Product was not “proven” to work, and therefore “could not” work. 

Id. (emphasis added). 

Plaintiff claims the Product was not proven to work and could not work because 

“numerous clinical cause and effect studies” have shown that the Products do not work, either to 

provide joint renewal or maintenance, improve joint mobility, or prevent or improve joint 

degeneration or other joint ailments. Id. ¶¶ 14-19. Nowhere in the Complaint, however, does 

Plaintiff identify a single study, let alone describe the ingredients or formulas tested, the 

outcomes studied, the methodologies used, or the actual conclusions reached by the researchers. 

Based on the foregoing, Plaintiff asserts a claim under ICFA on behalf of himself and a 

putative multi-state class from states with Consumer Fraud Laws similar to that of Illinois, or, 

alternatively, an Illinois-only class of consumers who purchased either of the Products during the 

applicable (but unspecified) limitations periods. Cmplt. at ¶¶ 5 n.2, 26-27. 

ARGUMENT

I. PLAINTIFF FAILS TO ALLEGE SUFFICIENT FACTS TO STATE A CLAIM 

UNDER EITHER RULE 8 OR RULE 9(b). 

Plaintiff’s Complaint is fundamentally defective because it fails to meet the threshold 

pleading requirements of both Rule 8 and Rule 9(b). While Rule 8 requires only a “short and 

plain statement of the claim,” Plaintiff has failed to meet this most basic requirement by filing a 

complaint comprised entirely of unadorned, conclusory assertions unsupported by facts. This 

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failure is all the more stark when the Complaint is evaluated against Rule 9(b)’s stringent 

requirement that “the circumstances constituting fraud” be pled with “particularity.” 

A. Plaintiff’s Vague And Conclusory Allegations Fail To Satisfy Rule 8. 

Under Rule 8, a plaintiff must plead “sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 

1949 (2009). This standard requires a plaintiff to plead “factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

(emphasis added). That is, a complaint must contain sufficient factual allegations to “show that 

the pleader is entitled to relief,” lest a plaintiff “with a largely groundless claim be allowed to 

take up the time of a number of other people, with the right to do so representing an in terrorem

increment of the settlement value.” Bell Atlantic v. Twombly, 550 U.S. 544, 557-58 (2007) 

(alteration and internal quotations omitted). What will not suffice are “unadorned, the 

defendant-unlawfully-harmed-me accusation[s],” “labels and conclusions,” “formulaic 

recitation[s] of the elements of a cause of action,” and “naked assertions devoid of further factual 

enhancement.” Iqbal, 129 S. Ct. at 1949 (internal quotations omitted). 

The core of Plaintiff’s claim is that the statements on the Products’ packaging are 

deceptive because “[n]umerous clinical cause and effect studies have shown that the ingredients 

in the [Products] do not work as represented,” and that “Defendant does not have competent and 

reliable scientific evidence to support its representations.” Cmplt. ¶ 2. These allegations are the 

basis of both his affirmative misrepresentation and his non-disclosure allegations. Cmplt ¶¶ 19, 

20, 22. Nowhere in the Complaint, however, does Plaintiff ever plead a single fact to support 

these bald assertions. He does not, for example, identify even one scientific study; specify the 

ingredients or formulas tested; describe the design, purpose, or methodology of any study; or 

describe the findings and conclusions actually reached by any researchers. These conclusory 

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allegations are precisely the “unadorned, the defendant-unlawfully-harmed-me accusation[s],” 

“labels and conclusions,” and “naked assertions devoid of further factual enhancement” that will 

not satisfy Rule 8, let alone Rule 9(b). Iqbal, 129 S. Ct. at 1949 (internal quotations omitted). 

Here, the Complaint is “bereft of any suggestion, beyond a bare conclusion,” that the claims 

made for the Products are unsupported (let alone fraudulent), and consequently the Complaint 

fails to satisfy Rule 8. Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009). 

B. Plaintiff’s Vague And Conclusory Allegations Fail To Satisfy The 

Particularity Requirements Of Rule 9(b). 

Not only does the Complaint flunk the basic requirements of Rule 8, it also fails to state 

sufficient facts to satisfy the heightened requirements of Rule 9(b). “A claim under the ICFA is 

a fraud claim that must be pled with particularity under Fed. R. Civ. P. 9(b).” Scott v. 

GlaxoSmithKline Consumer Healthcare, L.P., 05cv3004, 2006 U.S. Dist. LEXIS 18630, at *11 

(N.D. Ill. Apr. 12, 2006). As such, a plaintiff must plead “all the circumstances of the fraud in 

detail,” including “the who, what, when, where, and how: the first paragraph of any newspaper 

story.” Id. The purpose is to “force the plaintiff to do more than the usual investigation before 

filing his complaint” to ensure that the claim is “responsible and supported, rather than 

defamatory and extortionate.” Id. at *12 (internal quotations omitted). Rather than allege “the 

circumstances of the fraud in detail,” the Complaint offers plenty of broad-brush opinions and 

conclusions, but omits the most basic facts, such as which Product Plaintiff purchased, which 

statements he read, why and how those statements were fraudulent, or even whether the Product 

provided relief to him. 

Rather than identify which Product he purchased or which statements he read, Plaintiff 

summarizes some of the statements on the packaging for Up & Up Triple Strength, adds other 

statements that were never contained on the packaging for either Product, dubs this stew the 

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“joint renewal, maintenance and mobility representations,” (Cmplt. ¶ 1) and ascribes the same 

representations to both Products as if the ingredients and statements were identical.

Not only does Plaintiff allege that the Product packaging includes language it 

indisputably does not (none of the packaging contains language asserting that the Products are 

effective “for all manner and stages of joint related ailments,” for “all joints in the human body,” 

or “for adults of all ages” (see supra at pp. 3-4)), but it cannot be determined from the Complaint 

whether other statements, such as that the antioxidant extract in Up & Up Advanced provides 

“free radical protection,” (see Cmplt. ¶ 18) constitute part of Plaintiff’s self-styled “joint renewal, 

maintenance and mobility representations.” A plaintiff’s failure to specify which representations 

he saw is the most fundamental violation of Rule 9(b), and this failure is fatal to the Complaint. 

United States ex rel. Gross v. Aids Research Alliance-Chicago, 415 F.3d 601, 604-05 (7th Cir. 

2005) (affirming dismissal under Rule 9(b) for failure to specify the “nature or content” of the 

allegedly false statements contained in “various ‘forms, written reports, and study results’”); 

Cosmetique, Inc. v. Valuecheck, Inc., 753 F. Supp. 2d 716, 721 (N.D. Ill. 2010) (“Rule 9(b) does 

not require plaintiffs to give some examples of fraud to give the defendant a flavor of what the 

case is about. Rule 9(b) requires a plaintiff to specifically identify the alleged fraudulent or 

deceptive statements . . . .”) (emphasis added). 

Furthermore, Plaintiff has failed adequately to plead why the statements on the Products’ 

packaging are false or misleading. As noted above, Plaintiff does not discuss—or even 

identify—any of the allegedly “numerous” studies he contends exist, or plead how or why they 

refute the statements on the Products’ packaging. Instead Plaintiff simply makes the naked 

assertion that they do, which is no different than pleading that the statements are misleading 

because they are untrue, which plainly would be insufficient to satisfy Rule 9(b). Pacific Dunlop 

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9 

Holdings, Inc. v. Barosh, 91c0002, 1991 U.S. Dist. LEXIS 6662, at * 5 (N.D. Ill. May 15, 1991) 

(“To suggest that words are false merely begs the question, How are they false? This leads us to 

the point of Rule 9(b), which is to require the plaintiffs to state how the words are false or 

misleading . . . .”). Pleading a fraud claim is not a game of hide and seek, and neither the Court 

nor Target should be forced to speculate about the most fundamental circumstances of the 

alleged fraud, such as the Product Plaintiff purchased; the statements he saw; and, most 

importantly, the basis for his contention that those statements were false. 

II. PLAINTIFF FAILS TO ALLEGE FACTS ESTABLISHING HIS STANDING TO 

SUE. 

Article III of the U.S. Constitution limits federal jurisdiction to cases and controversies in 

which the plaintiff has standing, and the “irreducible constitutional minimum of standing” 

consists of: (1) a concrete and actual or imminent injury-in-fact, (2) that is “fairly traceable” to 

the challenged conduct, and (3) a likelihood that the requested relief will redress the alleged 

injury. Steel Co. v. Citizens For A Better Env’t, 523 U.S. 83, 102-03 (1998) (citations omitted). 

In addition, ICFA contains its own standing requirement: The plaintiff must show an injury that 

was caused by the challenged practice. 815 ILCS 505/10a (“Any person who suffers actual 

damages as a result of a violation of this Act committed by another person may bring an action 

against such person.”); Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 140 (2002) (plaintiff under 

ICFA must “demonstrate that the fraud complained of proximately caused” actual damages). 

Where a plaintiff does not allege that he purchased the product or saw the alleged 

misrepresentations, ICFA does not afford the plaintiff standing to pursue a claim for deceptive 

advertising. See, e.g., 815 ILCS 505/10a(a); Gredell v. Wyeth Labs., Inc., 367 Ill. App. 3d 287, 

290 (1st Dist. 2006) (rejecting plaintiff’s claim of deceptive advertising where he did not allege 

that he ever saw the advertisements for defendant’s products); DeBouse v. Bayer, 235 Ill. 2d 544, 

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554 (2009); Oliveira, 201 Ill. 2d at 154-55.4 And just because other members of the proposed 

class may have standing does not entitle a named plaintiff to sue on their behalf: “That a suit 

may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who 

represent a class ‘must allege and show that they personally have been injured, not that injury 

has been suffered by other, unidentified members of the class . . . .’” Lewis v. Casey, 518 U.S. 

343, 357 (1996) (emphasis added); see also Mintz v. Mathers Fund, Inc., 463 F.2d 495, 499 (7th 

Cir. 1972) (“What [a plaintiff] may not achieve himself, he may not accomplish as a 

representative of a class.”); Ong, 388 F. Supp. 2d at 891. 

Plaintiff challenges two distinct Products with different ingredients and different 

representations, but concedes in the Complaint that he only purchased one (which one, he does 

not say) and reviewed the packaging for only that (unidentified) Product. Cmplt. ¶ 9. Because 

Plaintiff does not have standing to pursue claims in connection with a product he never 

purchased and representations he never saw, and because he has failed to allege which Product 

he purchased and which representations he saw, the Complaint should be dismissed.

III. PLAINTIFF FAILS TO STATE A CLAIM UNDER ICFA. 

The Complaint contains a single count—violation of ICFA—which requires Plaintiff to 

plead (1) a deceptive act by Target, (2) Target’s intent that the Plaintiff rely on that deceptive 

act, (3) that the deceptive act occurred in trade or commerce, and (4) that he suffered “actual 

 

4 Shareholder cases like Ong v. Sears, Roebuck & Co., 388 F. Supp. 2d 871 (N.D. Ill. 2004) are 

likewise instructive. In Ong, plaintiffs claimed that Sears had engaged in deceptive advertising to entice 

individuals to purchase stock during three public stock offerings. Id. at 890-91. Plaintiffs only purchased 

stock during one of the offerings. Id. The Court held that plaintiffs lacked standing to sue individually or 

as representatives of a putative class for claims regarding the two stock offerings in which they did not 

participate. Id. at 891-92. The Court found that “[t]he fact that they have filed a class action lawsuit that 

includes putative class members who did purchase the relevant securities does not confer the necessary 

standing in this case because none of those putative class members is a named plaintiff.” Id. at 892 

(citing references omitted). 

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damage” (5) proximately caused by the deceptive act. Gredell, 367 Ill. App. 3d at 290. The 

Complaint fails to allege adequately any of these elements, except that the alleged deception 

occurred in trade or commerce. 

A. Plaintiff Has Not Alleged Sufficient Facts To Support An ICFA Claim As To 

Any Product. 

To state a claim for false advertising or marketing under ICFA, a plaintiff must plead 

facts that show that the representations are actually deceptive and that this deception proximately 

caused the plaintiff actual injury. Id. at 290-91. A plaintiff cannot shift the burden to the 

defendant by merely demanding substantiation for representations, but must affirmatively plead 

and establish the falsity of the representations about which he complains. Id. 

As explained below, the Complaint fails to state any claim because (1) Plaintiff has not 

alleged that the Product at issue (whichever Product is at issue) was not effective for him; (2) 

Plaintiff’s attempt to allege an injury resulting from a lack of substantiation does not state a 

cognizable claim under Illinois law; and (3) Plaintiff’s conclusory allegation that unspecified 

“clinical studies” purportedly show that joint supplements are ineffective is insufficient under 

Rule 9(b) or even Rule 8, and therefore cannot satisfy Plaintiff’s obligation to state a claim under 

Rule 12(b)(6). 

1. Plaintiff Has Not Alleged “Actual Damage” Because He Does Not 

Allege That The Product Did Not Work For Him. 

To sustain a cause of action under ICFA, a plaintiff must show that he suffered actual 

damage caused by defendant’s violation of the Act. 815 ILCS 505/10a(a). The court dealt 

squarely with this “actual damage” requirement in Gredell. There, the plaintiff alleged that the 

defendants had falsely represented the effectiveness of certain expectorant products without valid 

scientific evidence for the claims. 367 Ill. App. 3d at 290-91. However, “Plaintiff believed the 

drugs were effective and never complained to anyone that the drugs did not work.” Id. As the 

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court recognized in finding that he had not proved the damages element of an ICFA claim, “if 

plaintiff got relief from taking the [products at issue], what is his damage?” Id. As discussed 

above, Plaintiff has not asserted that whichever Product he bought did not work for him. 

Accordingly, he has not alleged any “actual damage.” 

2. Lack Of Substantiation Does Not State A Cognizable Theory. 

Rather than alleging that the Product was ineffective for him, Plaintiff instead alleges that 

the marketing was deceptive because it was not based on “competent and reliable scientific 

evidence,” (see, e.g., Cmplt. ¶ 2) and therefore, the purchase of the Product—in and of itself—

caused actual damage. Id. ¶ 9. The Complaint is replete with allegations that Target’s marketing 

of the Products is deceptive because Target supposedly lacks substantiation for the statements on 

the Products’ packaging. See, e.g., Cmplt. ¶¶ 2, 14, 15, 16, 17, 19, 22. But “lack of 

substantiation” is not a cognizable legal theory on the facts that Plaintiff has alleged in the 

Complaint. 

The decision in Gredell is, again, instructive. The plaintiff there—like here—did not 

claim that the product was ineffective, but rather focused on a theory that the product 

representations were not supported by scientific evidence. 367 Ill. App. 3d at 290-91. The 

representations at issue were that the products were “effective expectorant[s]” and “effective sore 

throat anesthetic[s].” Id. at 289. The plaintiff alleged both that the affirmative representations 

were false and that the defendant had failed to disclose certain facts related to the substantiation 

for the product claims. Id. The court rejected the plaintiff’s “lack of substantiation” theory, 

holding that “[l]ack of substantiation is deceptive only when the claim at issue implies that there 

is substantiation for [the] claim.” Id. at 291. Importantly, the court held that “merely because a 

fact is unsupported by clinical tests does not make it untrue.” Id. (emphasis added). Because the 

product representations did not express or imply that clinical tests supported the claims of 

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13 

effectiveness, the court held that plaintiff could not state a claim under ICFA—either based on 

misrepresentations or omissions—by alleging lack of substantiation. Id.

Similarly, in Bober v. Glaxo Wellcome PLC, the plaintiff asserted false advertising claims 

under ICFA, alleging that there was no substantiation for the representation that Zantac 150 was 

more effective than the less-expensive Zantac 75. 246 F.3d 934, 939 n.2 (7th Cir. 2001). The 

Seventh Circuit ruled that such allegations did not plead a cognizable legal theory, because “lack 

of substantiation is only deceptive when the comparative claim at issue implies that there is 

substantiation for the claim made,” id. (citing BASF Corp. v. Old World Trading Co., 41 F.3d 

1081, 1088-91 (7th Cir. 1994)), and “[h]ere, the statements do not imply that there is 

substantiation for a claim about the relative effectiveness of Zantac 75 and Zantac 150.” 

In BASF Corp., the court made clear that, for statements that do not reference tests or 

surveys (what the court called “non-establishment claims”), “proof that the advertiser has no 

support for its statement would not necessarily prove falsity.” 41 F.3d at 1090. “General . . . 

claims can only be proven false by affirmative evidence of falsity.” Id. (emphasis added). In 

other words, if the challenged statement is “this product works,” without reference to tests or 

surveys providing scientific support, the statement can be proven false only by affirmative 

evidence that the product does not work. Id. at 1091. The statements about which Plaintiff 

complains are “non-establishment claims” in the nature of “this product works.” Compare id.

(“Vicks cough syrup starts to work the instant you swallow”), with Cmplt. ¶ 16 (MSM 

“‘provides sulfar [sic] which is important for the structural integrity of joint cartilage and 

connective tissue.’”). Plaintiff can therefore only establish a violation of ICFA by presenting 

affirmative evidence that the Products do not provide the stated benefits. BASF Corp., 41 F.3d at 

1091. Here, Plaintiff does not make any proper allegations of actual falsity, and his claims 

Case: 1:11-cv-07972 Document #: 17 Filed: 01/26/12 Page 17 of 19 PageID #:68
14 

therefore fail as a matter of law. Bober, 246 F.3d at 939 n.2; BASF Corp., 41 F.3d at 1088-91; 

Gredell, 367 Ill. App. 3d at 290-91.

3. Plaintiff’s Conclusory Allegations Of Falsity Are Insufficient To State 

A Claim. 

Finally, Plaintiff cannot save the Complaint by pairing conclusory allegations of a lack of 

substantiation with the equally vague and conclusory assertion that “numerous clinical cause and 

effect studies” have shown that the ingredients in the Up & Up glucosamine Products do not 

work as represented by Target, and in particular they do not “provide joint renewal” or 

“maintenance,” or “improve joint mobility and flexibility.” See, e.g., Cmplt. ¶¶ 2, 14-19. As 

noted above, Plaintiff fails to provide any facts whatsoever about the unspecified “clinical cause 

and effect studies” that the Complaint is supposedly referencing, and consequently fails to satisfy 

Rule 8, much less Rule 9(b). 

Plaintiff’s references to unspecified “clinical cause and effect studies,” without providing 

any facts identifying the studies or scientific literature or explaining what was studied and what 

conclusions the researchers reached, fails to provide the level of specificity required by Rule 

9(b), let alone establish the factual plausibility required by Rule 8. Target cannot possibly 

respond to these allegations because it does not know to which studies (if they exist) Plaintiff is 

referring. 

The Complaint’s conclusory allegations are substantively no different from what was 

rejected in Gredell and Bober—allegations that the representations are not substantiated. 

Plaintiff does not allege that there are any clinical studies specific to the Up & Up glucosamine 

Products; rather, he has only generally alleged that there have been unspecified studies relating 

to ingredients that are in the Products. Without further information about what was studied and 

found, there is no way for the Court to consider what inferences those unspecified studies would 

Case: 1:11-cv-07972 Document #: 17 Filed: 01/26/12 Page 18 of 19 PageID #:69
15 

support, including how those studies can be applied to the specific formulations in the Products 

and whether those studies show that the representations on the Products’ packaging are actually 

false and misleading, as opposed to there simply being a lack of complete scientific agreement or 

a question of the level of substantiation or confirmation. Thus, the conclusory allegations in the 

Complaint do not state anything beyond a “lack of substantiation” theory, and are insufficient to 

state a claim. 

CONCLUSION

For all of the foregoing reasons, the Class Action Complaint should be dismissed with 

prejudice in its entirety. 

Dated: January 26, 2012 Respectfully submitted, 

 /s/ Bradley J. Andreozzi 

Bradley J. Andreozzi (ARDC No. 6257334) 

bradley.andreozzi@dbr.com

Justin O. Kay (ARDC No.6286557) 

justin.kay@dbr.com

DRINKER BIDDLE & REATH LLP 

191 North Wacker Drive, Suite 3700 

Chicago, IL 60606-1698 

Tel: (312) 569-1000 

Fax: (312) 569-3000 

Kara L. McCall (ARDC No. 6272681) 

kmccall@sidley.com

Shelby Feuerbach (ARDC No. 6296364) 

sfeuerbach@sidley.com

SIDLEY AUSTIN LLP 

One South Dearborn Street 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

Counsel for Defendant Target Corporation

Case: 1:11-cv-07972 Document #: 17 Filed: 01/26/12 Page 19 of 19 PageID #:70