IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

PETER BONAHOOM, individually and )

on behalf of a class of similarly situated )

individuals, )

)

Plaintiff, ) No. 20-cv-01942

)

v. )

) Hon. Mary M. Rowland

)

STAPLES, INC., a Delaware Corporation, ) Magistrate Judge Jeffrey Cole

)

Defendant. )

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANT STAPLES, INC.’S MOTION TO DISMISS

Dated: August 25, 2020 Eugene Y. Turin 

MCGUIRE LAW, P.C. 

55 W. Wacker Dr., 9th Fl. 

Chicago, IL 60601 

Tel: (312) 893-7002 

eturin@mcgpc.com 

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TABLE OF CONTENTS

I. INTRODUCTION..............................................................................................................1

II. BACKGROUND ................................................................................................................2

III. ARGUMENT......................................................................................................................4

A. Legal Standard.......................................................................................................4

B. Defendant Misrepresented the Charging Capacity of its Power Bank 

Products in Violation of the ICFA........................................................................5

C. Plaintiff’s Allegations Satisfy The Particularity Requirements Under 

Rule 9(b)..................................................................................................................8

D. Defendant’s Alleged Deceptive Advertising Is An Unfair Practice.................10

E. Plaintiff Pleads That He Suffered Monetary Damages As A Result Of 

Defendant’s Deceptive Conduct..........................................................................11

F. Plaintiff’s Complaint Sufficiently Alleges That Defendant Breached Express 

Warranties Regarding Its Power Banks’ Charging Capacity .........................12

1. Defendant had actual knowledge that its Power Bank products did not 

have the same charging capacity as warranted ..........................................12

2. Whether Defendant’s product labeling constituted an express warranty 

as toits charging capacity is a question of fact and cannot be resolved on 

a motion to dismiss....................................................................................13

G. Plaintiff Should Be Allowed To Proceed With His Unjust Enrichment 

Claim .....................................................................................................................14

H. Any Issues Relating to Nonresident Claims Should be Resolved at the 

Class Certification Stage .....................................................................................15

I. Plaintiff has standing to pursue claims for substantially similar 

unpurchased products.........................................................................................15

IV. CONCLUSION ................................................................................................................16

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TABLE OF AUTHORITIES

Page(s)

Cases:

Abramov v. Home Depot, Inc.,

No. 17-cv-1860, 2018 WL 1252105 (N.D. Ill. 2018)................................................................12

Aliano v. Louisville Distilling Co., LLC,

115 F. Supp. 3d 921 (N.D. Ill. 2015)...............................................................................5, 11, 14

Azimi v. Ford Motor Co.,

977 F. Supp. 847 (N.D. Ill. 1996)................................................................................................4

Benson v. Fannie May Confections Brands, Inc.,

944 F.3d 639 (7th Cir. 2019) .....................................................................................................10

Biffar v. Pinnacle Foods Group, LLC,

No. 16-cv-0873, 2016 WL 7429130 (S.D. Ill. 2016).....................................7, 11, 12, 13, 14, 15

Brady et al. v. Anker Innovations Limited et al.,

No. 18-cv-11396, Dkt. 33 (S.D.N.Y., 2020)............................................................................6, 9

Burton v. Hodgson Mill, Inc.,

No. 16-cv-1081, 2017 WL 1282882 (S.D. Ill. 2017).................................................7, 12, 13, 15

Camasta v. Omaha Steaks Int'l, Inc.,

No. 12-cv-08285, 2013 WL 4495661 (N.D. Ill. 2013)................................................................4

Carrol v. S.C. Johnsons & Son, Inc.,

No. 17-cv-05828, 2018 WL 1695421 (N.D. Ill. 2018)..............................................................15

Gubala v. CVS Pharmacy, Inc.,

No. 14-cv-9039, 2016 WL 1019794 (N.D. Ill. 2016)..................................................................5

Hedges v. Earth, Inc.,

No. 14-cv-9858, 2015 WL 1843029 (N.D. Ill. 2015)..........................................................12, 13

McDonnell v. Nature's Way Prod., LLC,

No. 16-cv-5011, 2017 WL 1149336 (N.D. Ill. 2017)................................................................11

Midwest Grinding Co., Inc. v. Spitz,

976 F.2d 1016 (7th Cir. 1992))....................................................................................................8

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iv

Miles v. Am. Honda Motor Co.,

No. 17-cv-4423, 2017 WL 4742193 (N.D. Ill. 2017)..................................................................8

Muir v. NBTY, Inc.,

No. 15-cv-9835, 2016 WL 5234596 (N.D. Ill. 2016)..................................................................5

Muir v. Playtex Prod., LLC,

983 F. Supp. 2d 980 (N.D. Ill. 2013).....................................................................................5, 11

Preston v. Kruezer,

641 F. Supp. 1163 (N.D. Ill. 1986)................................................................................................

Reid v. Unilever U.S., Inc.,

964 F. Supp. 2d 893 (N.D. Ill. 2013).................................................................................4, 7, 13

Spector v. Mondelez Int'l, Inc.,

178 F. Supp. 3d 657 (N.D. Ill. 2016).........................................................................................11

Wagner v. Gen. Nutrition Corp.,

No. 16-cv-10961, 2017 WL 3070772 (N.D. Ill. 2017)........................................................15, 16

Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc.,

536 F.3d 663 (7th Cir. 2008) .....................................................................................................10

York v. Andalou Nats., Inc.,

No. 16-cv-894, 2016 WL 7157555 (S.D. Ill. 2016).............................................................13, 14

Young v. Mophie, Inc.,

No. 19-cv-827 (C.D. Cal. 2019) ..............................................................................................6, 7, 14

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I. INTRODUCTION

Defendant Staples, Inc.’s (“Staples” or “Defendant”) Motion to Dismiss Plaintiff’s Class 

Action Complaint (Dkt. 18) (“Motion to Dismiss”) largely ignores the plain allegations in 

Plaintiff’s Complaint (Dkt. 1) that Defendant’s Power Bank portable charger products did not 

deliver the same amount of charging capacity as explicitly advertised on Defendant’s product 

packaging. Instead, Defendant makes the completely unsupported factual conclusion that its Power 

Bank product only represented the “internal” capacity of the product, rather than the actual 

capacity that an ordinary consumer like Plaintiff, would expect for it to deliver to their devices.

Not only are such arguments entirely inappropriate at the motion to dismiss stage, but they also fly

in the face of what a reasonable consumer such as Plaintiff would determine Defendant’s 

packaging advertised. Plaintiff, like any ordinary consumer, specifically purchased Defendant’s 

products to be able to charge his electronic devices—he did not purchase them to have a portable 

battery pack with some internal capacity regardless of how much battery charge they actually 

provided. While Defendant makes a point to note that this lawsuit is just one of many recently filed 

against portable battery manufacturers, as discussed further below, Defendant fails to note that

many of these suits have been upheld by other courts across the country and only further support 

Plaintiff’s claims. Nor can Defendant argue that Plaintiff fails to allege any deception that its 

product did not live up to its promise of charging his phone “2x” because he did not specify what 

brand and model of cell phone he was trying to charge. Ironically, Defendant’s argument on this 

point completely misses the fact that the actual charging capacity of Defendant’s Power Bank 

product alleged by Plaintiff is not even sufficient to provide the up to “2x” charges for the iPhone 

7 that Defendant claims was the intended reference device to its charging claims. 

Defendant’s other procedural arguments are similarly deficient, as Plaintiff has not actually

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alleged any claims under other states laws, nor has Plaintiff attempted to assert claims for products 

that he has not purchased. Rather, Plaintiff is simply seeking to represent a class of consumers 

who purchased Defendant’s deficient Power Bank products in other states, as well as consumers 

who purchased Power Bank products with different capacities than the one he purchased. As such, 

Defendant’s arguments are entirely misplaced. To the extent that Defendant has any challenges to 

Plaintiff’s standing to represent any proposed class of consumers, it can raise such challenges at 

the appropriate time when class certification is to be decided. In sum, Plaintiff’s clear, plain, 

allegations that Defendant misrepresented the charging capacity of its Power Banks products are 

more than sufficient to meet the pleading standards under Fed. R. Civ. P. 8 and 9.

II. BACKGROUND

Defendant is a major office supply retailer that operates stores all across North America, 

including in Illinois. (Complaint, Dkt. 1, at ¶ 8.) Seeking to capitalize on consumer demand for 

portable compact chargers that can be used to charge electronic devices on the go, Defendant 

created its “Power Bank” brand of portable charges. (Id. at ¶ 13.) Defendant’s Power Bank 

products advertise their battery capacity in mAh (milliamps per hour) to disclose to consumers the 

maximum amount of energy that any particular Power Bank can retain and deliver to their devices. 

(Id.) This advertised charging capacity is critical because almost all portable consumer electronic 

devices – i.e. cell phones, tablets, etc. – also have a disclosed battery capacity that is similarly 

measured in mAh. (Id. at ¶ 14.) Accordingly, when consumers shop for portable battery chargers 

such as Defendant’s Power Bank products, they specifically rely on the advertised mAh battery 

capacity so that they can determine whether any particular portable charger will be able to meet 

their charging needs. (Id. at ¶ 15.) Being well aware of this, Defendant prominently features the 

mAh capacity for its Power Bank portable chargers directly on its product labeling for products 

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sold in-stores, and on its website for consumers who purchase them through its online store. 

(Complaint at ¶ 16; Dkt. 18-1.) Indeed, the mAh capacity of Defendant’s Power Bank products is 

the main defining characteristic that differentiates the various Power Bank products Defendant 

sells. (Complaint at ¶ 16.) The mAh capacity is thus directly correlated to the price of its Power 

Bank products. (Id. at ¶ 17.)

However, the battery capacity advertised by Defendant was false and misleading because 

its Power Bank products fail to actually deliver the amount of charging power claimed. (Id. at ¶

18.) Indeed, repeated testing of Defendant’s Power Bank products has revealed that they are only 

capable of delivering 70% of the charging power advertised. (Id. at ¶¶ 18, 30.) Thus, a consumer 

who purchased one of Defendant’s Power Bank products that claimed a capacity of 10,000 mAh, 

would only be able to obtain just 7,000 mAh of the claimed 10,000 mAh to charge their device. 

(Id. at ¶ 19.) Plaintiff’s experience is exemplary of that of other consumers across the country in 

this regard. 

In August 2018 Plaintiff visited one of Defendant’s retail store locations in Chicago, 

Illinois looking to purchase a portable battery charger that had sufficient battery capacity to keep 

his cell phone charged for a full day and was sold at a reasonable price. (Id. at ¶ 24.) At the store 

Plaintiff saw one of Defendant’s 5,000 mAh Power Bank products that was on sale for $9.99 and 

that specifically advertised that it had “Up to 2x Charges.” (Id. at ¶ 25; Dkt. 18-1.) Based on 

Defendant’s representations regarding the charging capacity of its Power Bank product, and 

finding that the price was reasonable, Plaintiff purchased the Power Bank. (Id. at ¶ 26.) However, 

despite following Defendant’s instructions for using the Power Bank, Plaintiff found that it was 

insufficient for charging his cell phone. (Id. at ¶ 28.) In fact, testing of Plaintiff’s Power Bank 

revealed that it on average only delivered 3,400 mAh of its claimed 5,000 mAh battery charge 

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capacity—just 70% of what Defendant advertised its Power Bank would be able to deliver. 

(Complaint at ¶ 29.) Plaintiff was thus deceived, like the other purchasers of Defendant’s Power 

Bank products, into purchasing a product that he believed would be capable of delivering the 

specific amount of energy claimed on the packaging when it in fact was not. (Id. at ¶ 32.) Had 

Plaintiff known that Defendant’s representations about the charging capacity of its Power Bank 

products were misleading he would not have purchased his Power Bank. (Id. at ¶ 31.)

III. ARGUMENT

A. Legal Standard

Defendant challenges Plaintiff’s ICFA, breach of warranty, and unjust enrichment claims 

pursuant to Fed. R. Civ. P. 12(b)(6). (Mot. to Dismiss at 6–12.) As such, “the Court must construe[] 

the complaint ‘in the light most favorable to the nonmoving party, accept[ing] well-pleaded facts 

as true, and draw[ing] all inferences in [his] favor.” Reid v. Unilever U.S., Inc., 964 F. Supp. 2d 

893, 904 (N.D. Ill. 2013). While a plaintiff “must establish that the requested relief is plausible on 

its face,” Camasta v. Omaha Steaks Int'l, Inc., No. 12-cv-08285, 2013 WL 4495661, at *7 (N.D. 

Ill. Aug. 21, 2013), “[p]lausibility . . . does not imply that a court should decide whose version to 

believe, or which version is more likely than not.” Reid, 964 F. Supp. 2d at 904.

Where a complaint raises allegations of misrepresentation the heightened pleading standard 

under Fed. R. Civ. P. 9(b) applies. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th 

Cir. 2014). However, Rule 9(b) simply requires that the plaintiff “state the identity of the person 

making the misrepresentation, the time, place, and content of the misrepresentation, and the 

method by which the misrepresentation was communicated.” Azimi v. Ford Motor Co., 977 F. 

Supp. 847, 852 (N.D. Ill. 1996) (internal citations omitted).

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B. Defendant Misrepresented the Charging Capacity of its Power Bank Products 

in Violation of the ICFA. 

Under the ICFA “a statement is deceptive if it creates a likelihood of deception or has the 

capacity to deceive” a “reasonable consumer.” Muir v. Playtex Prod., LLC, 983 F. Supp. 2d 980, 

987, 89 (N.D. Ill. 2013). Here, Plaintiff plainly alleges that consumers rely on the battery capacity 

disclosed on portable charging products to determine whether the amount of charging power delivered

will be sufficient to meet their charging needs. (Complaint at ¶¶ 14, 16, 18–19, 25, 29–30.) Indeed, 

contrary to Defendant’s arguments, the only relevant factor for consumers when buying a portable 

battery is how much charge it can deliver—what possible use is any charge capacity that cannot 

be delivered? Taking Defendant’s argument that it could not have possibly engaged in any 

deceptive conduct because it accurately disclosed the internal battery capacity to its logical 

conclusion, Defendant could have sold Power Bank battery packs that delivered just 1 mAh of

charging power and its purchasers would have no recourse. (Mot. to Dismiss at 6.) Such a result 

is clearly absurd for the exact reasons pled in Plaintiff’s Complaint that the only information 

relevant to purchasers of Defendant’s Power Bank products is how much useable charge they can 

actually deliver. (Complaint at ¶¶ 14–16, 22.) As found by numerous other courts in this district, 

such conduct is plainly deceptive. See, e.g., Muir v. NBTY, Inc., No. 15-cv-9835, 2016 WL 

5234596, at *1, *8 (N.D. Ill. Sept. 22, 2016) (allegations that defendant’s product did not contain 

the same amount of active ingredient as stated on the label sufficient to plead a claim under the 

ICFA); Gubala v. CVS Pharmacy, Inc., No. 14-cv-9039, 2016 WL 1019794, at *17 (N.D. Ill. Mar. 

15, 2016) (allegations that defendant’s product did not contain the amount of protein as promised 

on the label sufficient to establish that plaintiff was misled); Aliano v. Louisville Distilling Co., 

LLC, 115 F. Supp. 3d 921, 931 (N.D. Ill. 2015) (plaintiff sufficiently alleged a deceptive act where 

the defendant advertised its liquor product was “hand crafted” when in fact it was mass-produced).

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Critically, numerous courts looking at the exact allegations at issue here, involving deceptively 

advertised portable chargers, have also come to the same conclusion.

In Brady et al. v. Anker Innovations Limited et al., No. 18-cv-11396, Dkt. 33 (S.D.N.Y. 

Jan. 13, 2020)1the plaintiffs, as Plaintiff does here, pled that they “believed that the Power Banks 

they purchased could deliver a charge to their PEDs [personal electronic devices] that was 

reflective of the advertised capacity.” (Brady, No. 18-cv-11396, Ex. A, at 3.) However, “[d]espite 

their expectations . . . Plaintiffs came to realize that the Power Banks they had purchased were 

incapable of delivering the capacity that had been represented to them.” (Id.) Specifically, “testing 

showed that Brady’s Power Bank, which had been advertised as having a ‘5200 mAh’ capacity, 

had an ‘Actual Capacity’ of 3285 mAh.” (Id.) The court in Brady found that such allegations were 

sufficient to state causes of action under California consumer protection statutes for fraudulent 

conduct. (Id. at 15–16.)2

Similarly, in Young v. Mophie, Inc., No. 19-cv-827 (C.D. Cal. Oct. 9, 2019)3the plaintiffs 

similarly pled that “‘the most important factor for consumers’ in choosing a charger ‘is its 

capacity,’ as measured by mAh . . . Consumers . . . have a strong preference for, and pay more for, 

Power Banks with a higher mAh.” (Young, No. 19-cv-827, Ex. B, at 3.) Accordingly, the 

defendant’s products in Young were deceptively advertised because they could never “actually 

deliver [as] much power” as stated on their product labeling. (Id. at 2–3.) The court in Young also 

found that the plaintiffs’ allegations were sufficient to state causes of action under California and 

Florida consumer protection laws, stating that the allegations raise questions of fact as to what a 

1 Attached hereto as Exhibit A.

2 The Court even found that such allegations satisfied Rule 9(b) requirements other than requiring 

Plaintiffs to clarify exactly which of the named defendants made the representations. (Brady, No. 

18-cv-11396, Ex. A at 16.)

3 Attached hereto as Exhibit B.

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reasonable consumer “would understand regarding the meaning of ‘capacity[.]’” (Young, No. 19-

cv-827, Ex. B, at 12–13.)

Plaintiff’s allegations here are identical in every manner to those in Brady and Young. 

Critically, as the court in Young found, Defendant’s arguments that its labeling could not be 

deceptive because it accurately depicted “the internal capacity of the battery “(Mot. to Dismiss at 

6) (emphasis in original) should be rejected as an improper attempt to argue an issue of fact at the 

pleading stage. (See Young, No. 19-cv-827, Ex. B, at 11–12.) Indeed, Defendant’s product labeling 

does not feature any disclosures that in any way suggest that the featured battery capacity refers 

solely to the internal battery capacity rather than the amount of charging power that it would 

deliver. (See Dkt. 18-1.) As such not only are Plaintiff’s allegations in his Complaint unchallenged, 

but so are his allegations regarding “what a typical consumer would understand” Defendant’s 

packaging to represent. (See Young, No. 19-cv-827, Ex. B, at 12.) It is axiomatic that at the motion 

to dismiss stage the court should not “decide whose version to believe, or which version is more 

likely than not” (Reid, 964 F. Supp. 2d at 904) and “the determination of whether or not a 

reasonable consumer could be misled is an intricate question of fact that is best informed by a pool 

of members of the community[.]” Burton v. Hodgson Mill, Inc., No. 16-cv-1081, 2017 WL 

1282882, at *6 (S.D. Ill. April 6, 2017); see also Biffar v. Pinnacle Foods Group, LLC, No. 16-

cv-0873, 2016 WL 7429130, at *3 (S.D. Ill. Dec. 22, 2016).

Finally, it is worth noting that while Defendant attempts to scramble the egg by arguing 

that Plaintiff failed to sufficiently allege that he did not receive the same amount of “2x” charges 

as represented on Defendant’s packaging, Defendant’s arguments actually cut against it. 

Specifically, Defendant makes a show of noting that Plaintiff did not disclose what brand and 

model of cell phone he was trying to charge using his Power Bank and that the “2x Charges” 

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advertisement on its product packaging was only in reference to an iPhone 7. (Mot. to Dismiss at 

6–7.) However, publicly available information shows that an iPhone 7 takes 1960 mAh to fully 

charge.4 Accordingly, Plaintiff’s Complaint does in fact allege that Defendant’s Power Bank, 

which was only able to provide 3,400 mAh of charging power, “could not charge an iPhone 7 ‘up 

to 2x,’ as would be necessary to demonstrate that his product’s label was inaccurate or misleading”

(Complaint at ¶ 29; Mot. to Dismiss at 6–7.)

In short, Plaintiff plainly alleges that Defendant’s product labeling for its Power Bank 

products would have deceived a reasonable consumer because such products are specifically 

purchased for their charging capacity—which was far less than the capacity explicitly advertised 

by Defendant. Given that Defendant’s product labeling does not present any additional information

to the contrary, that Plaintiff’s allegations should be viewed in the light most favorable to him, and 

that generally the arguments raised by Defendant as to what a reasonable consumer would 

determine do not lend themselves to resolution on a Motion to Dismiss, as in Brady and Young

Plaintiff’s consumer fraud claims sufficiently allege deceptive conduct.

C. Plaintiff’s Allegations Satisfy The Particularity Requirements Under Rule 

9(b).

Plaintiff does not dispute that his claims under the ICFA have to “meet the heightened 

pleading standard of Rule 9(b). See Miles v. Am. Honda Motor Co., No. 17-cv-4423, 2017 WL 

4742193, at *2 (N.D. Ill. Oct. 19, 2017). However, in effect Rule 9(b) simply requires that Plaintiff 

“describe[] ‘the who, what, when, where, and how of the fraud’” such that the allegations 

“provide[] a ‘general outline of the fraud scheme’ sufficient to ‘reasonably notify the defendants 

of their purported role[.]’” Id. (citing Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1020 

4

See www.gsmarena.com/iphone_7_has_a_1960_mah_battery_iphone_7_plus_reaches_2900_

mah-news-20469.php.

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(7th Cir. 1992)). Here, just as the court found in Brady when considering nearly identical 

allegations, Plaintiff’s Complaint plainly meets this requirement. While Defendant argues that 

Plaintiff fails to explain “how” Defendant’s Power Bank labeling was deceptive (Mot. to Dismiss 

at 7), Defendant ignores Plaintiff’s allegations that Defendant’s Power Bank products “advertise 

their battery capacity [in mAh] so as to inform consumers about the maximum amount of energy 

any particular Power Bank portable battery can retain and deliver to their device.” (Complaint at 

¶ 14) (emphasis added). Further, Plaintiff alleges that consumers shop for such portable battery 

products based on the battery capacity of their own electronic devices—making it clear that 

consumers only consider the charging power that can actually be delivered to their devices when

deciding to make their purchase. (Id. at ¶ 15.) Finally, putting the pieces together, Plaintiff alleges 

that “[w]hile Defendant advertises that its Power Bank products are able to provide a specific 

amount of charge . . . testing . . . has revealed that the battery capacity of the Power Bank products 

was significantly less than advertised, and only capable of delivering . . . 30% less charge than 

advertised.” (Id. at ¶¶ 18, 45.) While Defendant may disagree about whether a reasonable 

consumer would find that the advertised charging capacity on its Power Bank products represented 

the amount of energy that the product can actually deliver, Defendant cannot legitimately argue 

that Plaintiff fails to sufficiently explain “how” Defendant’s labeling was deceptive. Indeed, these 

were the same exact allegations the court in Brady found sufficient to satisfy Rule 9(b) and which 

should be found to be sufficient here. (Brady, No. 18-cv-11396, Ex. A, at 16 (finding that the 

plaintiffs “have explained why the statements made were . . . fraudulent” where they “provid[ed] 

a table comparing the Power Banks’ ‘Capacity Represented’ and their ‘Actual Capacity’ and (2) 

maintaining that they would not have purchased the product . . . had they been aware ‘that the 

Product’s mAh was really less’ than represented”).

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D. Defendant’s Alleged Deceptive Advertising Is An Unfair Practice.

Defendant baldly argues that Plaintiff fails to plead any allegations of unfair conduct under 

the ICFA. Specifically, Defendant claims that Plaintiff “does not allege any facts as to what Illinois 

public policy the alleged conduct offends, how consumers have suffered “substantial injury,” or 

how this conduct was immoral, unethical, or oppressive.” (Mot. to Dismiss at 8.) Defendant’s 

argument, however, simply outright ignores Plaintiff’s plain allegations that Defendant 

deceptively advertised its Power Bank portable battery chargers as being capable of delivering a 

greater charge than they actually could. (Complaint at ¶¶ 18–19, 45.) In fact Plaintiff specifically 

spells out Defendant’s unfair conduct when he alleges that Defendant “affirmatively represent[ed]

that its Power Bank products can provide a specific charge amount when the products sold were in fact 

only capable of delivering a significantly lower charge amount[.]” (Id. at ¶ 45.) Numerous courts 

in this District, including most importantly the Seventh Circuit, have found that such allegations 

of deceptive advertising are more than sufficient to plead a claim for unfair conduct under the 

ICFA.

In Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 

663 (7th Cir. 2008) the Seventh Circuit found that the plaintiffs’ allegations that the defendant 

“disseminat[ed] . . . false advertisements” and that the “plaintiffs suffered a loss as a result of” the 

false advertisements, “support t[he] statutory definition of unfairness under the Consumer Fraud 

Act.” Windy City, 536 F.3d at 672. In Benson v. Fannie May Confections Brands, Inc., 944 F.3d 

639 (7th Cir. 2019) the Seventh Circuit similarly found that the plaintiff’s allegations that the 

defendant “misrepresent[ed] . . . the quantity of chocolate within” and made consumers “believe 

that they are receiving more chocolate than the actual amount within each box” was sufficient to

satisfy “federal notice-pleading standards” of unfair practices.” Benson, 944 F.3d at 647. Here too, 

Plaintiff sufficiently alleges that Defendant engaged in unfair practices by falsely advertising the 

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charging capacity of its Power Bank products and making Plaintiff and other consumers reasonably 

believe that they would receive a different product than they actually purchased.

E. Plaintiff Pleads That He Suffered Monetary Damages As A Result Of 

Defendant’s Deceptive Conduct.

In arguing that Plaintiff has failed to allege that he suffered any actual damages Defendant

once again disregards the relevant legal standard and is asking the Court to simply ignore the 

allegations pled by Plaintiff. Plaintiff’s Complaint specifically states that: “[a]s a direct and 

proximate cause of Defendant’s deceptive practices Plaintiff . . . suffered actual damages, 

including monetary losses for the purchase price of Defendant’s Power Bank products which did 

not have the same charging capacity as advertised” (Complaint at ¶ 49) (emphasis added); and that 

“Plaintiff . . . would not have purchased them or would have paid materially less for them had they 

known that the advertised battery capacities were not accurate[.]” (Id. at ¶ 23.) Numerous courts 

have found these same allegations sufficient to plead actual injury. See Aliano, 115 F. Supp. 3d at

931 (finding allegations that the plaintiff “paid more than [he] would have for the [product] 

because of the deception” “adequately allege an actual injury” and dismissing the defendant’s 

arguments that such allegations “are too conclusory”); see also McDonnell v. Nature's Way Prod., 

LLC, No. 16-cv-5011, 2017 WL 1149336, at *3 (N.D. Ill. Mar. 28, 2017) (collecting authorities); 

Muir, 983 F. Supp. 2d 980, 990; Biffar, 2016 WL 7429130, at *4.

Defendant’s reliance on Spector v. Mondelez Int'l, Inc., 178 F. Supp. 3d 657 (N.D. Ill. 

2016) to argue that Plaintiff fails to allege injury is unfounded. Unlike Plaintiff’s allegations, in 

Spector the plaintiff never alleged that the nutritional product was not “effective” or that she did 

not experience the “four hours of ‘nutritious steady energy’” that was supposedly deceptively 

advertised. Spector, 178 F. Supp. 3d at 673. Here, Plaintiff does allege that Defendant’s Power 

Bank product did not provide the stated amount of charging capacity that was advertised and which 

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he paid for. (Complaint at ¶¶ 28, 29, 31, 32.) Nor does Defendant provide any support for its

attempt to impugn Plaintiff’s motives for bringing this suit and effectively impose a statute of 

limitations based on when he was first dissatisfied with his Power Bank product. Indeed, adopting 

Defendant’s argument would effectively eliminate the statute of limitations for ICFA claims and

only allow consumers recourse where the product they purchased was completely useless—an 

extreme outcome that is clearly not in line with the purpose of the ICFA or the relevant caselaw. 

(See Mot. to Dismiss at 10) (arguing that “Plaintiff does not allege that his charger failed to charge 

his phone” altogether). 

F. Plaintiff’s Complaint Sufficiently Alleges That Defendant Breached Express 

Warranties Regarding Its Power Banks’ Charging Capacity. 

1. Defendant had actual knowledge that its Power Bank products did not have 

the same charging capacity as warranted.

Defendant is correct that Plaintiff did not provide pre-suit notice to Defendant. (Mot to 

Dismiss at 10.) However, Illinois law is clear that pre-suit notice is not required to state a claim 

for breach of warranty when “the defendant had actual knowledge of the product’s defect.” Biffar, 

2016 WL 7429130, at *5; Burton, 2017 WL 1282882, at *6 (rejecting argument regarding pre-suit 

notice and stating, “Plaintiff . . . claims that the seller had actual knowledge of the breach of the 

warranty. Her theory is essentially that the Defendant had knowledge of the falsity of the ‘all 

natural’ label in light of the ingredients in the product. A reasonable jury could reach this 

conclusion”); Hedges v. Earth, Inc., No. 14-cv-9858, 2015 WL 1843029, at *3 (N.D. Ill. Apr. 21, 

2015); see also Abramov v. Home Depot, Inc., No. 17-cv-1860, 2018 WL 1252105, at *4 (N.D. 

Ill. Mar. 12, 2018) (finding that because the defendant “actively argues that its four-by-fours were 

not 4”x4” in cross-section” and thus “admits knowledge of the alleged defect” the plaintiff “was 

not required to provide pre-litigation notice of his warranty claims”). Here, as in the cases cited 

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above, Plaintiff alleges that “Defendant knew or should have known at all relevant times that its 

Power Bank products were not capable of delivering the amount of energy represented and 

advertised[.]” (Complaint at ¶¶ 20, 46, 63.) In fact Defendant’s defense is largely based on its own 

admittance that it only intended to represent the “internal capacity” of its Power Banks’ batteries

rather than the “amount of energy the charger can provide”—thus implicitly acknowledging that 

it knew that its Power Bank products could not deliver the amount of charging power stated on the 

packaging. These are the same circumstances that other courts have found sufficient to satisfy the 

pre-suit notice requirements under 810 ILCS 5/2-607(3)(a). See Burton, 2017 WL 1282882, at *6; 

Hedges, 2015 WL 1843029, at *3. 

2. Whether Defendant’s product labeling constituted an express warranty as to 

its charging capacity is a question of fact and cannot be resolved on a motion 

to dismiss.

Defendant’s argument that the labeling on its Power Bank packaging did not warrant that 

they were capable of delivering a specific charge amount is premature and inappropriate for 

decision on a motion to dismiss. Whether a given statement constitutes an “affirmation of fact or 

promise” is usually “a question of fact that cannot be resolved on a motion to dismiss.” See Reid, 

964 F. Supp. 2d at 908–909; Biffar, 2016 WL 7429130, at *5. Defendant cannot seek dismissal 

based on its own unilateral interpretation that the product labeling at issue only disclosed the 

amount of charge that its Power Bank batteries could hold rather than advertising how much 

charging power they could deliver. See York v. Andalou Nats., Inc., No. 16-cv-894, 2016 WL 

7157555, at *4 (S.D. Ill. Dec. 8, 2016) (“Defendant’s intentions in branding its products with the 

phrase ‘natural’ are not a proper inquiry at this stage in the litigation”). Just as Defendant argues 

that its labeling did not make any representation that the mAh listed related to the amount of 

charging power its products could deliver, neither did they make any representation that it related 

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solely to the internal battery capacity. Most importantly, and as previously argued, it is difficult to 

understand how the mAh labeling in question did not make any affirmation of fact or promise 

regarding the charging capacity of Defendant’s Power Bank products when that was the sole factor 

that consumers consider when deciding to purchase a portable charging product. (Complaint at ¶¶ 

15, 16, 22.) In short, Defendant’s arguments are at best attacks on the merits of Plaintiff’s express 

warranty claim, and should be rejected here at the motion to dismiss stage. (See Young, No. 19-

cv-827, Ex. B, at 13–14) (finding that the plaintiffs stated a claim for breach of express warranty 

and under the Magnus-Moss Warranty Act where the plaintiffs alleged that they “purchased the 

Power Banks after reading and relying on [the defendant’s] misrepresentations regarding the 

Power Banks’ capacities” and the defendant “breached its express warranties by selling Power 

Banks which did not have the ability to deliver the stated capacity”).5

G. Plaintiff Should Be Allowed To Proceed With His Unjust Enrichment Claim. 

Defendant is correct that Plaintiff’s unjust enrichment claim is based on the same 

allegations of deceptive and unfair conduct as his ICFA claim. (Mot. to Dismiss at 12.) As such,

where a plaintiff sufficiently alleges “claims under the ICFA and for breach of warranty,” as 

Plaintiff has done here, the plaintiff should be allowed to proceed in the alternative with an unjust 

enrichment claim that is brought on the basis of the same underlying conduct. Biffar, 2016 WL 

7429130, at *6; Burton, 2017 WL 1282882, at *3 (when a plaintiff’s ICFA and breach of warranty 

claims survive dismissal, “[his] unjust enrichment claim may also survive” dismissal); York, 2016 

WL 7157555, at *3; Aliano, 115 F. Supp. 3d at 934. As explained above, and as supported by two 

other courts that have considered the same exact issue as before the Court here, Plaintiff has 

5 Because Plaintiff’s Magnuson-Moss warranty claim is premised on his claim for breach of 

express warranty under Illinois law, for the reasons argued above, and as found by the court in 

Young, Plaintiff has also stated a valid claim under the Magnuson-Moss Warranty Act.

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sufficiently alleged that Defendant’s advertising was deceptive such that it would be unjust for it 

retain the benefit conferred by Plaintiff and the other Class members by their purchases of its

Power Bank products.

H. Any Issues Relating to Nonresident Claims Should be Resolved at the Class 

Certification Stage. 

Defendant’s arguments that Plaintiff cannot allege claims under other states’ consumer 

protection laws are at bottom a premature attempt to challenge Plaintiff’s class allegations. (Mot. 

to Dismiss at 13–14.) The fact of the matter is that Plaintiff is not alleging claims under other 

states’ laws, and has not yet moved for class certification seeking to represent nonresident class 

members. Numerous courts have held that in identical circumstances any arguments about whether 

Plaintiff is allowed to represent nonresident class members should be properly addressed at the 

class certification stage and not on a motion to dismiss. Biffar, 2016 WL 7429130, at *6 (“[the 

defendant] argues that [the plaintiff] cannot establish general or specific jurisdiction . . . as to the 

non-Illinois putative class . . . . The Court . . . finds that this issue must be addressed later in the 

litigation [at the class certification stage]”); see also Burton, 2017 WL 1282882, at *7.

I. Plaintiff has standing to pursue claims for substantially similar unpurchased 

products.

While Defendant asserts that plaintiff does not have standing to bring claims for other 

Power Bank products that he did not purchase (Mot. to Dismiss at 14–15), “the majority of the 

courts that have carefully analyzed the question hold that a plaintiff may have standing to assert 

claims for unnamed class members based on products he or she did not purchase so long as the 

products and alleged misrepresentations are substantially similar.” Carrol v. S.C. Johnsons & Son, 

Inc., No. 17-cv-05828, 2018 WL 1695421, at *4 (N.D. Ill. Mar. 29, 2018); see also Wagner v. 

Gen. Nutrition Corp., No. 16-cv-10961, 2017 WL 3070772, at *5 (N.D. Ill. July 19, 2017) 

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(collecting authorities). Indeed, in Wagner the court found that the plaintiff had standing to bring 

claims for dietary supplements that he never purchased even though they came in different doses 

(1,500 mg versus the 5,000 mg the plaintiff purchased), and even entirely different forms 

(chewable tablets versus the dissolvable powder the plaintiff purchased). 2017 WL 3070772, at 

*5. Critical to the court’s decision in Wagner was that ultimately all of the products at issue stated 

that they contained a specific chemical ingredient and made the same claims regarding their 

efficacy that the plaintiff alleged were false. Id. (stating “[a]ccordingly, based on Plaintiff’s 

allegations, the Products have the same key ingredient of glutamine and all of the Products contain 

misrepresentations for the same reason”). Here, Plaintiff’s allegations are similarly based on the 

same claims featured on all of Defendant’s products that they are able to deliver the stated amount 

of charging power. (Complaint at ¶¶ 16–17.) Accordingly, “nothing in the complaint or the parties’ 

briefs suggests that these differences” – which are the same as different “doses” of the same 

vitamin product – “are material.” Id. As such, Plaintiff has sufficient standing to bring claims on 

behalf of unnamed class members for any of Defendant’s Power Bank products that they 

purchased.

IV. CONCLUSION

For the reasons set forth above, Plaintiff Peter Bonahoom respectfully requests that this 

Court deny Defendant’s Motion to Dismiss in its entirety.6

6 To the extent that the Court finds that Plaintiff has not sufficiently pled any of his claims, Plaintiff 

respectfully requests that he be granted leave to amend to allege additional facts in further support.

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Dated: August 25, 2020 Respectfully Submitted, 

PETER BONAHOOM, individually and on 

behalf of a class of similarly situated 

individuals, 

By: /s/ Eugene Y. Turin

One of Plaintiff’s Attorneys 

Eugene Y. Turin 

MCGUIRE LAW, P.C. 

55 W. Wacker Drive, 9th Floor 

Chicago, IL 60601 

Tel: (312) 893-7002 

Fax: (312) 275-7895 

eturin@mcgpc.com 

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CERTIFICATE OF SERVICE

I hereby certify that on August 25, 2020, I electronically filed the foregoing Memorandum 

of Law in Opposition to Defendant Staples, Inc.’s Motion to Dismiss with the Clerk of the Court 

using the CM/ECF system. A copy of said document will be electronically transmitted to all 

counsel of record.

/s/ Eugene Y. Turin

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