UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 ) 

DOMINIQUE FREEMAN, individually ) 

And on behalf of all other similarly situated, ) 

 ) 

 Plaintiffs, ) No. 1:20-cv-01834 

 ) 

 v. ) 

 ) Judge Edmond E. Chang 

MAM USA CORPORATION, ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER

In an effort to do what parents do—provide comfort and care to their children—

Dominique Freeman bought “orthodontic” pacifiers made by child-products company 

MAM USA. R. 1, Compl. ¶¶ 17–19.1 Based on MAM’s representations, Freeman believed that the pacifiers would benefit her son’s dental and oral health. Id. ¶¶ 17, 20. 

Recently, however, Freeman learned that many studies allegedly show that extended 

pacifier use, including “orthodontic” pacifier use, is harmful to children’s health. Id. 

¶¶ 37–79. She brought this proposed class action against MAM, alleging that MAM’s 

false advertising of its orthodontic pacifiers—especially for children over 24 months 

of age—violates the Illinois Consumer Fraud and Deceptive Business Practices Act, 

815 ILCS 505/1, et seq., the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 

1Citations to the docket are denoted as “R.” followed by the docket entry number. 

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510/1, et seq., and many other states’ consumer protection laws. She also brings 

claims for breach of warranty and unjust enrichment.2 

MAM now moves to dismiss the claims under Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6). R. 21, Defendant’s Motion to Dismiss (Def.’s Mot.). MAM argues 

that Freeman lacks standing to sue for injunctive relief, and that she has failed to 

allege the fraud necessary to state a claim. As explained in this Opinion, the Court 

agrees that Freeman lacks standing to sue for injunctive relief. Aside from that problem with injunctive relief, however, Freeman has adequately pled the elements of 

each of her claims, even under the heightened-pleading standard demanded by Civil 

Rule 9(b). MAM’s challenges are largely fact-based and premature. 

MAM also argues that Freeman cannot bring claims on behalf of out-of-state 

class members. MAM frames this as a standing argument, though it is really a challenge to the Court’s personal jurisdiction over out-of-state plaintiffs (which means it 

is really a dismissal motion under Civil Rule 12(b)(2)). As detailed in the Opinion, the 

Court concludes that it may exercise jurisdiction over out-of-state class members in 

this proposed nationwide class action. It is true that Freeman’s eventual class2This Court has subject matter jurisdiction over this case under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), which grants federal jurisdiction over class actions in which 

any member of the proposed class is a citizen of a different state than the defendant and the 

matter in controversy exceeds $5,000,000. MAM is a citizen of Delaware, where it is incorporated, as well as New York, home to its corporate headquarters. Compl. ¶ 21. Freeman is a 

citizen of Illinois. Compl. ¶ 16. The amount in controversy could exceed $5,000,000, given the 

likely large size of the class and the pacifier buying habits alleged in the Complaint. Freeman 

purchased a two-pack of pacifiers, for $8.99, “every few weeks or months” for at least two 

years. Compl. ¶¶ 17–18. Extrapolating these spending habits to a large class, it is legally 

possible that the amount in controversy could exceed $5,000,000. 

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certification motion will require close scrutiny, but that is a different problem that 

does not bear on personal jurisdiction. 

I. Background 

In evaluating this motion to dismiss, the Court accepts as true the complaint’s 

factual allegations and draws reasonable inferences in Freeman’s favor. Ashcroft v. 

Al–Kidd, 563 U.S. 731, 734 (2011). MAM USA manufactures, distributes, and sells 

several different styles and colors of pacifiers, all of which are labeled “orthodontic” 

and purport to have an “orthodontic” nipple. Compl. ¶¶ 23–24. MAM sells its products 

online and through brick-and-mortar retailers such as Wal-Mart and Target. Id. ¶ 23. 

MAM pacifiers are labeled for different age groups, the last of which is “16+ months” 

with no upper age limit given. Id. ¶ 27. MAM’s packaging and advertising emphasize 

the “orthodontic” nature of its products and extol the following benefits: 

 “Specially sized for toddlers” 

 “Orthodontic nipple promotes proper oral development” 

 “Nipple adapts to baby’s mouth” 

 “Largest nipple to ensure maximum comfort and proper oral development as baby grows” 

 “16+ nipple ensures proper development of baby’s palate, teeth and 

gums as baby grows” 

 “Symmetrical nipple ideal for baby’s jaw development.” 

Id. ¶¶ 28–29. On its website, MAM also says it “collaborates with medical experts ... 

to help develop and design innovative, orthodontic soothers [pacifiers] that suit baby’s 

various developmental stages.” Id. ¶ 30. 

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Against the backdrop of that advertising, Freeman alleges that, in September 

2019—and many other times over the previous two years—she bought a two-pack of 

MAM orthodontic pacifiers. Compl. ¶¶ 16–18. She paid about $8.99 for the pacifiers. 

Id. ¶ 17. Freeman’s son was about 23 months old at the time, so she bought the pacifiers labeled for children ages “16+,” intending to let him use them beyond the age of 

24 months. Id. She had been buying MAM orthodontic pacifiers regularly for her son 

since birth. Id. ¶ 18. 

Freeman now asserts that MAM’s pacifiers in fact do not promote proper oral 

development or provide any other benefit to children. Compl. ¶¶ 17–20, 26, 35–79. 

She cites numerous studies allegedly showing that orthodontic pacifiers are no better 

than conventional pacifiers; extended use of any pacifier can harm children’s orofacial 

development; and pacifier use past the age of 24 months is particularly harmful. Id. 

¶¶ 35–79. According to Freeman, MAM knew of the risks that the pacifiers pose to 

children but failed to disclose those risks to her and other consumers. Id. ¶ 33. She 

also alleges that she paid a premium price for MAM pacifiers because of their purported orthodontic benefits. Id. ¶¶ 8, 86. If Freeman had known that these benefits 

did not exist, she says, then she would either not have bought MAM pacifiers or would 

not have paid a premium for them. Id. ¶¶ 86–87. 

As a result, Freeman filed this lawsuit against MAM, claiming that its pacifier 

advertisements are fraudulent, misleading, and deceptive in violation of the Illinois 

Consumer Fraud and Deceptive Businesses Act (the Fraud Act), 815 ILCS 505/1, et 

seq., the Illinois Uniform Deceptive Trade Practices Act (IDTPA), 815 ILCS 510/1, et 

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seq., and the consumer-protection laws of 30 other States. Compl. ¶¶ 110–146. She 

also brings claims for breach of warranty and unjust enrichment. Id. ¶¶ 147–162. 

Along with the claims on her own behalf, Freeman also seeks certification of nationwide, multi-state, and Illinois subclasses. Id. ¶¶ 95–103. In seeking dismissal of the 

Complaint, MAM’s arguments present issues of standing, personal jurisdiction, and 

the adequacy of the pleading. Before evaluating the merits of each argument, the 

Court sets forth the governing standards of review. 

II. Standards of Review 

A. Standing / Rule 12(b)(1) 

“Standing is an essential component of Article III’s case-or-controversy requirement.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 

2009). The plaintiff bears the burden of establishing subject matter jurisdiction, 

which includes the requirement of standing. Id.; Ctr. for Dermatology & Skin Cancer, 

Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). Civil Rule 12(b)(1) is the vehicle 

by which a defendant can challenge subject matter jurisdiction in a motion to dismiss. 

When evaluating a dismissal motion under this Rule, the district court “must accept 

as true all well-pleaded factual allegations and draw reasonable inferences in favor 

of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). Having said that, 

when a key jurisdictional fact is disputed, the Court can also examine the record, 

beyond the allegations contained in the pleadings, to determine whether jurisdiction 

is proper. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). 

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B. Personal Jurisdiction / Rule 12(b)(2) 

The plaintiff bears the burden of establishing that personal jurisdiction is 

proper when jurisdiction is challenged by the defendant. Purdue Research Found v. 

Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). For personal-jurisdiction 

challenges, the operative rule is Federal Rule of Civil Procedure 12(b)(2). If material 

facts are disputed, then the Court must consider the need for discovery and perhaps 

an evidentiary hearing to resolve the disputes. Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 

713 (7th Cir. 2002). Then, “the plaintiff must establish jurisdiction by a preponderance of the evidence,” Purdue Research Found., 338 F.3d at 782, and “prove what it 

alleged,” Hyatt Int’l Corp., 302 F.3d at 713. This is in contrast to the normal rule for 

a motion to dismiss, under which “a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 

C. Adequacy of Claim: Rule 12(b)(6) and Rule 9(b) 

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to 

state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police 

Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson, 551 U.S. at 94. A “complaint must contain 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, 678 (2009) (quoting Bell Atl. v. Twombly, 

550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a right to relief 

above the speculative level.” Twombly, 550 U.S. at 555. And the allegations that are 

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entitled to the assumption of truth are those that are factual, rather than mere legal 

conclusions. Iqbal, 556 U.S. at 679. 

Ordinarily, under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include “a short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But claims alleging fraud must 

also satisfy the heightened pleading requirement of Federal Rule of Civil Procedure 

9(b), which requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b) (emphasis added). And Rule 9(b)’s heightened pleading standard applies to fraud claims 

brought under the Illinois Consumer Fraud and Deceptive Business Practices Act. 

Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 

436, 441 (7th Cir. 2011) (citation omitted). Thus, generally speaking, Rule 9(b) requires a complaint to “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 to the plaintiff.” Uni*Quality, Inc. v. Infotronx, 

Inc., 974 F.2d 918, 923 (7th Cir. 1992) (cleaned up).3 Put differently, a complaint 

“must describe the who, what, when, where, and how of the fraud.” Pirelli, 631 F.3d 

at 441–42 (internal quotation marks and citation omitted). Having said that, context—that is, the overall factual setting of a claim—is important in evaluating what 

level of detail is required under Rule 9(b). 

3This opinion uses (cleaned up) to indicate that internal quotation marks, alterations, 

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 

18 Journal of Appellate Practice and Process 143 (2017). 

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III. Analysis 

With the standards of review in place, it is time to turn to the merits of MAM’s 

dismissal motion. MAM first challenges Freeman’s standing to pursue injunctive relief. Next, MAM insists that the Court does not have personal jurisdiction over outof-state class members’ claims. Third, MAM argues that Freeman has failed to adequately state a claim for relief. The Court will address each argument in turn. 

A. Standing for Injunctive Relief 

No one doubts that Freeman has standing to pursue monetary damages. But 

she also seeks injunctive relief against MAM’s allegedly false advertising. The problem is that Article III standing for one does not automatically cover the other: “a 

plaintiff must demonstrate standing separately for each form of relief sought.” 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 

(2000) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and describing the 

holding of that case as “notwithstanding the fact that plaintiff had standing to pursue 

damages, he lacked standing to pursue injunctive relief”). To have standing to pursue 

injunctive relief, Freeman must show that she faces—going forward—a “real and immediate threat of future injury” from MAM’s actions. Simic v. City of Chicago, 851 

F.3d 734, 738 (7th Cir. 2017) (cleaned up) (citing Lyons, 461 U.S. at 102). The equitable remedy of injunctive relief “is unavailable absent a showing of irreparable injury, 

a requirement that cannot be met where there is no showing of any real or immediate 

threat that the plaintiff will be wronged again ....” Lyons, 461 U.S. at 111. Here, 

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Freeman seeks injunctive relief against MAM’s advertising practices under various 

state consumer-protection laws. Compl. ¶¶ 9, 12, 146. 

In challenging Freeman’s standing to pursue injunctive relief, MAM argues 

that Freeman has not adequately alleged a risk of future harm to her. MAM points 

out that Freeman now knows all about the allegedly deceptive advertising, so she 

cannot be harmed by them in the future. Def.’s Mot. at 6–7. This is true—Freeman 

does not suggest that she herself is at risk of future harm. Instead, she counters that 

other members of the proposed class remain unaware of MAM’s practices and they

are at risk of future harm. R. 23, Pl.’s Resp. at 4. Freeman offers this proposition: that 

the risk of future harm to proposed class members allows her to pursue the claim for 

injunctive relief.4 

To support this proposition, Freeman cites two district-court cases. First is Le 

v. Kohls Dep’t Stores, Inc., 160 F. Supp. 3d 1096, 1110 (E.D. Wisc. 2016). But Le is 

different from this case. In Le, the plaintiff alleged that department store Kohls engaged in “company-wide, pervasive, and continuous” false advertising via the publication of deceptive prices. Id. at 1110. The district court concluded that the plaintiff 

himself could again suffer harm from Kohls’ advertising, because the plaintiff did not 

know with precision—as to both product line or time of year—the extent of the deceptive pricing. Id. ( “Should Le be ‘aware’ that housewares are deceptively priced, while 

4In a footnote, Freeman makes a one-sentence argument relying on the standing doctrine that allows otherwise moot cases to satisfy the case-or-controversy requirement. Pl.’s 

Resp. at 5 n.2 (citing Roe v. Wade, 410 U.S. 113, 125 (1973)). But the “capable of repetition, 

yet evading review” avenue to keep moot cases alive applies only to cases in which the plaintiff is at risk of being repeatedly subjected to the defendant’s alleged misconduct. See id. That 

is not the case here, because Freeman already knows about the allegedly false advertising. 

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men’s apparel is not? Should Le be ‘aware’ that Kohls’ holiday sales are more egregiously deceptive than their day-to-day offers?”). In contrast, here Freeman does not 

allege that sort of widespread false advertising across products or time, instead specifically targeting the “orthodontic” labelling on MAM’s pacifiers.

The second district-court case cited by Freeman is Leiner v. Johnson & Johnson Consumer Cos., Inc., 215 F. Supp. 3d 670, 673 (N.D. Ill. 2016). In Leiner, the 

plaintiff sought to represent a class of consumers, alleging that a baby-products 

maker falsely advertised its products as “clinically proven” to help babies sleep. Id.

at 672. Leiner held that, even though the plaintiff was unlikely to buy the products 

again, she had standing to pursue injunctive relief. Id. at 672–73. The district court 

relied on two grounds. First, Leiner pointed to Arreola v. Godinez, 546 F.3d 788, 791, 

795 (7th Cir. 2008), in which the Seventh Circuit held that a former jail detainee still 

maintained Article III standing to challenge the jail’s policy on crutches despite the 

fact that he had been released. But Arreola only warned that courts must preserve 

the dividing line between Article III standing and entitlement to relief, which are two 

separate concepts. Id. at 794–95. That is precisely the problem with Freeman’s standing argument here: as the Supreme Court emphasized in Lyons, Article III requires 

an actual “case or controversy,” and “standing to seek an injunction ... depend[s] on 

whether” Freeman is “likely to suffer future injury.” Lyons, 461 U.S. at 105. Absent 

the likelihood of future injury, there is no actual case or controversy between Freeman and MAM when it comes to injunctive relief. It is worth repeating here that the 

Supreme Court has declared that “a plaintiff must demonstrate standing separately 

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for each form of relief sought.” Friends of the Earth, 528 U.S. at 185.5 Freeman has 

not demonstrated standing to pursue injunctive relief. 

The second justification relied on by Leiner is a public-policy concern, specifically that injunctive-relief provisions for consumer-protection statutes “could never 

be invoked to enjoin deceptive practices if the complaining consumer’s standing dissipated” right when she discovered the deception. 215 F. Supp. 3d at 673. There is 

some force to this view, but it is probably overstated. Article III standing is a requirement for federal-court subject matter jurisdiction; it does not constrain state-court 

jurisdiction. Lyons, 461 U.S. at 113 (“the state courts need not impose the same standing or remedial requirements that govern federal court proceedings”). So a no-longerfooled consumer could seek injunctive relief in state court. On top of that, the Fraud 

Act explicitly authorizes the Illinois Attorney General to seek injunctive relief against 

deceptive practices, 815 ILCS 505/7(a), and Illinois could (and probably would) bring 

the suit in state court. See Mednick v. Precor, Inc., No. 14 C 3624, 2016 WL 5390955, 

at *9 (N.D. Ill. Sept. 27, 2016). Plus, if a company is harmed by the deceptive practices 

of a competitor, then the harmed company can seek injunctive relief under the Illinois 

Deceptive Trade Practices Act, 815 ILCS 510/3. Last but not least, as a practical matter, if a consumer-products maker like MAM is held liable on the merits for past harm 

5It might very well be that, at some later point, the Supreme Court will draw a sharper 

distinction between Article III standing requirements and the merits of the underlying claim 

for injunctive relief, see Lyons, 461 U.S. at 103 (explaining that, in O’Shea v. Littleton, 414 

U.S. 488, (1974), “we further observed that case or controversy considerations obviously 

shade into those determining whether the complaint states a sound basis for equitable relief’) 

(cleaned up), but for now a straightforward application of Article III standing requirements 

requires dismissal of the injunctive-relief claims. 

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(that is, via monetary damages), then almost surely the company would stop the challenged practice lest suit after suit be brought against it for more and more monetary 

damages. In any event, the bottom line is that public-policy concerns, no matter how 

compelling, cannot trump the Article III standing requirement. The claims for injunctive relief are dismissed for lack of subject matter jurisdiction. 

B. Personal Jurisdiction for Out-of-State Class Claims

Moving on from the claims for injunctive relief, Freeman proposes a nationwide 

class of plaintiffs, as well as nationwide, multi-state, and Illinois subclasses, who 

have been harmed by MAM’s allegedly false advertising. Compl. ¶¶ 95–103. MAM 

argues that Freeman cannot bring claims on behalf of out-of-state class members, 

framing this as a purported problem of Article III standing. Def.’s Mot. at 7–8. To 

MAM’s way of thinking, Freeman—as an Illinois resident who did not buy any MAM 

pacifiers out-of-state—has no “standing” to pursue the claims of non-Illinois residents. It is true that MAM cites a few cases that do seem to characterize the issue as 

one of Article III “standing.” Id. at 7–8 (citing In re Dairy Farmers of Am., Inc. Cheese 

Antitrust Litig., 2015 WL 3988488, at *25 (N.D. Ill. June 29, 2015); Smith-Brown v. 

Ulta Beauty, Inc., 2019 WL 932022, at *5-6 (N.D. Ill. Feb. 26, 2019)). But Freeman’s 

Article III standing on the damages claims is secure: she alleges that she suffered an 

injury in fact; the injury is fairly traceable to the allegedly false advertising; and the 

Court can redress the injury with money damages.6 For everyone else in the proposed 

6MAM’s challenge to Freeman’s standing on injunctive relief, discussed earlier in this 

Opinion, really is a standing-based objection because Freeman herself does not have Article 

III standing to bring the claims for injunctive relief. In contrast, she does have standing to 

bring the claims for money damages. 

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class, she is proposing to serve as a class representative, not seeking to redress an 

injury specific to her—of course she herself did not pay for the pacifiers bought by 

each proposed class member. That is the whole point of a class action: to represent 

the interests of class members, not just the representative’s own interests. If MAM is 

right about how Article III standing applies to proposed class actions—that is, that a 

plaintiff can only raise claims under her own State’s laws—then no multi-state or 

nationwide class can ever be certified without a representative from each and every 

State in the proposed class. That ban would apply even against a products-liability 

class action based on common-law negligence or strict liability principles, and even if 

the case involved applying the same legal principles uniformly throughout the Nation. 

What MAM is really challenging is whether Freeman (or, actually, any Illinois 

resident who bought pacifiers only in Illinois) can satisfy the Civil Rule 23 class-certification requirements as applied to a nationwide and multi-state class. See Halperin 

v. Int’l Web Servs., 123 F. Supp. 3d 999, 1009 (N.D. Ill. June 5, 2015) (holding that 

the defense’s challenge to non-Illinois class claims is really based on Rule 23, not 

Article III); cf. Liston v. King.com, 254 F. Supp. 3d 989, 1000–01 (N.D. Ill. May 23, 

2017) (questioning whether the issue is properly characterized as Article III standing). Indeed, when this case reaches the class-certification decisional stage, it might 

very well be that MAM will have solid arguments against certifying nationwide or 

multi-state classes, especially if the state laws have different substantive legal standards. Adequacy, commonality, and predominance can be tough questions in deciding 

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whether to certify a multi-state class. So close scrutiny is warranted. See Pella Corp. 

v. Saltzman, 606 F.3d 391, 396 (7th Cir. 2010) (per curiam) (approvingly noting that 

the district court “carefully considered how the case would proceed, explicitly finding 

that the consumer protection acts of these six states have nearly identical elements 

and declining to certify a seventh state subclass that would have required a subjective 

analysis”). But that is a question to be answered after discovery on the propriety of 

class certification—not right out of the box by an overbroad application of Article III 

standing to proposed class actions. 

MAM presents another version of its challenge against out-of-state claims, this 

one premised on personal jurisdiction. Def.’s Mot. at 9. On this score, MAM argues 

that a relatively recent Supreme Court decision on personal jurisdiction prevents 

Freeman from representing out-of-state class members. Id. (citing Bristol-Myers 

Squibb Co. v. Superior Court of Cal., San Francisco Cty., 137 S. Ct. 1773, 1783 

(2017)). In Bristol-Myers, over 600 plaintiffs joined together into a single productsliability lawsuit in California state court against a pharmaceutical company that was 

not based in California. Id. at 1778. But most of the plaintiffs did not live in California. Id. The Supreme Court held that the California state court lacked specific personal jurisdiction over the out-of-state plaintiffs’ claims. Id. at 1781–82. The Fourteenth Amendment’s Due Process Clause demanded some “connection” between the 

forum state and the underlying controversy. Id. at 1781. Given the lack of a connection, the California state court could not exercise personal jurisdiction over the 

claims. Id. at 1781–82. 

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Bristol-Myers does not thwart the exercise of personal jurisdiction over the proposed out-of-state claims in this case. The first difference is that Bristol-Myers addressed the Due Process standard that applies to state courts. Given that the case 

arose in a state court, the Supreme Court naturally applied the Due Process Clause 

of the Fourteenth Amendment as “an instrument of interstate federalism” and expressed concern over requiring defendants to “submit[] to the coercive power of a 

State that may have little legitimate interest in the claims in question.” Bristol-Myers, 137 S. Ct. at 1780–81. Not surprisingly, the Supreme Court explicitly announced 

that it was not addressing “the question whether the Fifth Amendment imposes the 

same restrictions on the exercise of personal jurisdiction by a federal court.” Id. at 

1784. So Bristol-Myers does not apply here in federal court. 

Beyond that, at least in a proposed class action premised on a federal statute, 

the Seventh Circuit recently held that “the principles announced in Bristol-Myers do 

not apply to the case of a nationwide class action filed in federal court under a federal 

statute.” Mussat v. IQVIA, Inc., 953 F.3d 441, 443 (7th Cir. 2020). It is true that Mussat involved a proposed class’s claims under a federal statute, but the underlying 

reasoning applies just as well to state law claims. To start, Mussat reasoned that, 

before Bristol-Myers, “there was a general consensus that due process principles did 

not prohibit a plaintiff from seeking to represent a nationwide class in federal court, 

even if the federal court did not have general jurisdiction over the defendant.” Mussat, 

953 F.3d at 445 (cleaned up). As part of that consensus, federal courts routinely limited the personal-jurisdiction requirement only to the claims of the named plaintiffs. 

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Id. The Supreme Court too considered class-action cases without commenting on personal-jurisdiction concerns of non-class-members. Id. This focus on the named plaintiffs would just as readily justify limiting the personal-jurisdiction requirement to 

named plaintiffs in state-law-based class actions too, like the one that Freeman proposes. 

Mussat also reasoned that Bristol-Myers did nothing to upend the long line of 

precedent in which no personal-jurisdiction requirement was applied to the claims of 

the entire class. The Seventh Circuit explained that Bristol-Myers was actually a socalled “mass” action, a California-specific litigation device that allowed the consolidation of multiple cases filed by many plaintiffs raising similar claims into one mass 

case—but each plaintiff was indeed a named party in the suit, not just a mere absent 

class member. Mussat, 953 F.3d at 445–46. So it made sense that the state trial court 

should have to satisfy the personal-jurisdiction requirement over each of the claims 

of each of the named plaintiffs in the mass action. In contrast, the Seventh Circuit 

observed, “Class actions ... are different from many other types of aggregate litigation, and that difference matters in numerous ways for the unnamed members of the 

class.” Id. at 446–47. First and foremost, “absent class members are not full parties 

to the case for many purposes.” Id. at 447. Instead, the lead plaintiffs “earn the right” 

to represent the class members by satisfying the requirements of Civil Rule 23. Id.

Mussat also pointed out that absent class members are not considered formal parties 

for purposes of subject matter jurisdiction or venue, so the same should hold true for 

personal jurisdiction. Id. In other words, “the named representatives must be able to 

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demonstrate either general or specific personal jurisdiction, but the unnamed class 

members are not required to do so.” Id.7 That reasoning too applies just as well to 

Freeman’s proposed multi-state class: the absent class members of other States would 

not be part of the personal-jurisdiction requirement. (Again, it is worth emphasizing 

that the multi-state nature of the proposed class would warrant scrutiny under Rule 

23.) 

One more point supports Freeman’s position that personal-jurisdiction is not 

necessarily a barrier to multi-state class actions invoking multiple States’ laws: prior 

Seventh Circuit cases have approved that type of class action without requiring that 

personal jurisdiction applies to the out-of-state claims. See Pella Corp., 606 F.3d at 

393; Martin v. Reid, 818 F.3d 302, 307–08 (7th Cir. 2016) (upholding a class settlement in a products-liability case and discussing the general availability of nationwide 

classes and settlements); Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 

2014) (reversing a denial of certification of a multi-state class of consumers, because 

the “same legal standards govern every class member’s claim”). It is true that the 

holdings of these cases address the propriety of class certification, rather than directly rejecting a personal-jurisdiction argument. But the very fact that they review 

7After the date of Bristol-Myers’s issuance, only one other federal appellate case has 

addressed a proposed multi-state class with multi-state law claims. Molock v. Whole Foods 

Market Group, Inc., 952 F.3d 293 (D.C. Cir. 2020). There, the defendant filed a motion to 

dismiss nonresident proposed class members for lack of personal jurisdiction. Id. at 295. In 

response, the plaintiffs argued that class actions are an exception to the general rule that a 

federal district court sitting in diversity exercises jurisdiction over the same geographic area 

as the state courts in its jurisdiction; the plaintiffs also argued, in the alternative, that the 

dismissal motion was premature because class certification had not yet been decided. Id. at 

296. The D.C. Circuit agreed that the dismissal motion was premature, “because prior to 

class certification putative class members are not parties to the action.” Id. 

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the class-certification propriety yet do not scrutinize personal jurisdiction is telling.

Indeed, in Pella, the Seventh Circuit granted interlocutory review of the class-certification decision specifically “in order to address the contention that consumer fraud 

claims are inappropriate for class treatment.” Pella Corp., 606 F.3d at 393. The proposed class members in Pella had bought defective windows from the company; the 

windows had been sold nationwide. Id. at 392. The Seventh Circuit affirmed two certified classes: one nationwide class of consumers who had bought the windows but 

had not yet suffered harm; and one multi-state class of consumers who had already 

replaced the windows. Id. at 392. In affirming the classes, Pella rejected the broad 

proposition that consumer-fraud cases are not suitable for class certification: “While 

consumer fraud class actions present problems that courts must carefully consider 

before granting certification, there is not and should not be a rule that they never can 

be certified.” Id. at 393. The Seventh Circuit went on to approve the multi-state class 

certification even though the claims invoked the consumer-protection laws of six different States. Id. at 392-93. So Pella is a perfect example of the absence of a personaljurisdiction requirement for out-of-state claims in a proposed multi-state class action 

that invokes the laws of multiple states. There is no basis in law or past practice to 

extend Bristol-Myers to class actions in federal court, even those based on state law. 

MAM’s request to dismiss the out-of-state claims is denied. 

C. Adequacy of the Claims 

MAM next argues that the Complaint fails to state a valid claim. The Court 

examines each claim in turn. 

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1. The Fraud Act 

As pertinent here, the Illinois Consumer Fraud and Deceptive Business Practices Act forbids companies from deceiving consumers, specifically by engaging in: 

unfair or deceptive acts or practices ... with intent that others rely upon the 

concealment, suppression or omission of such material fact ... in the conduct of 

any trade or commerce .... 

815 ILCS 505/2. Freeman alleges that MAM fraudulently misrepresented its pacifiers 

as promoting children’s healthy orofacial development, in violation of the Fraud Act. 

For the Fraud Act claim to survive the dismissal motion, Freeman must allege—with 

particularity under Civil Rule 9(b)—the following: (1) an unfair or deceptive act or 

practice by MAM; (2) committed with the intent that she and other consumers rely 

on it; (3) in trade or commerce; and (4) actual damage to her (5) proximately caused 

by the deception. Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 

2019); Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010); Connick v. Suzuki 

Motor Co., 675 N.E.2d 584, 593 (Ill. 1996). MAM argues that Freeman has failed to 

adequately allege any of these elements (except the trade-or-commerce element). 

a. Unfair or Deceptive 

Under the Fraud Act, “a statement is deceptive if it creates a likelihood of deception or has the capacity to deceive.” Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 

938 (7th Cir. 2001) (citing People ex rel. Hartigan v. Knecht Servs., Inc., 575 N.E.2d 

1378, 1387 (Ill. App. Ct. 1991)). Courts should look at the context of the “information 

made available to the plaintiff” in deciding whether a statement is deceptive. Muir v. 

Playtex Prod., LLC, 983 F. Supp. 2d 980, 987 (N.D. Ill. Nov. 6, 2013). “Courts apply a 

‘reasonable consumer’ standard in evaluating the likelihood of deception.” Stemm v. 

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Tootsie Roll Indus., Inc., 374 F. Supp. 3d 734, 740 (N.D. Ill. Mar. 19, 2019) (citing 

Mullins v. Direct Digital, LLC, 795 F.3d 654, 673 (7th Cir. 2015)). 

Freeman accuses MAM of false and deceptive advertising across its packaging 

and its website, with special emphasis on two labels that appear on the packaging of 

the pacifiers that she bought. First is the term “orthodontic.” Freeman says that the 

term “conveys to reasonable consumers that the Orthodontic Pacifiers improve dental 

health outcomes by positioning teeth and jaws for proper development.” Compl. ¶ 26. 

Second is the age-based-label “16+,” printed on MAM’s largest pacifiers, which 

“falsely convey[s] to consumers that the Orthodontic Pacifiers are safe for use by children 24 months and older.” Id. ¶ 27. Other descriptions of the pacifiers on MAM’s 

product packaging and website expand on the supposed benefits of MAM products for 

children’s dental health. Id. ¶¶ 28-30. Freeman cites studies to support her contention that, in reality, so-called orthodontic pacifiers are no better than regular pacifiers, and indeed are worse for dental health than avoiding pacifiers altogether. Id. 

¶¶ 26, 35–79. 

Against these allegations, MAM first argues that Freeman has failed to adequately allege that MAM’s advertising makes false statements about either the “orthodontic” nature of its products or the propriety of their use for children over 24 

months of age. Def.’s Mot. at 12. In support, MAM points to its own research, which 

suggests that the pacifiers are beneficial to dental health; MAM also challenges Freeman’s characterization of the studies that she cites. Def.’s Mot. at 13–16. But this 

kind of factual argument on the merits of the studies is premature. In the Complaint, 

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Freeman has pled her claim with particularity—indeed, arguably even excessive particularity. She cites studies, dating back to the 19th century, linking pacifier use to 

problems with children’s jaws and teeth. Compl. ¶¶ 37–40. She cites three clinical 

studies and one literature review that concluded orthodontic pacifiers are no better 

than conventional pacifiers for children’s development. Compl. ¶¶ 41–49. She presents scientific literature linking pacifier use, especially continued use past early infancy, to various serious “dental malocclusions”8 and psychosocial challenges. Compl. 

¶¶ 50–79. All of this is more than enough to adequately allege that the advertisements were false or deceptive. 

MAM also contends that the label “orthodontic” is not deceptive or misleading 

because it simply describes the shape of the pacifier, which is allegedly a widely accepted definition of “orthodontic” across the dental industry. Def.’s Mot. at 15. Maybe 

that is the widely used meaning of the term among dentists, but that is a fact to be 

proven later in the litigation, not at the pleading stage. And just because a term is 

widely used in the dental industry does not refute the probability that a reasonable 

consumer would be deceived by it—especially in context. Indeed, Freeman’s interpretation of the term tracks the detailed representations on MAM’s own packaging. Freeman asserts that MAM wants consumers to believe that its products “promote 

healthy oral and orofacial development in children” and “would improve dental health 

8A dental malocclusion is a “malposition and contact of the maxillary and mandibular 

teeth as to interfere with the highest efficiency during the excursive movements of the jaw 

that are essential for mastication.” Malocclusion, Dorland’s Medical Dictionary Online 

(2020), available at www.dorlands.com (last visited Mar. 17, 2021). Or as Freeman puts it: 

“deviations from the ideal occlusion (the relation between the upper jaw and teeth and lower 

jaw and teeth).” Compl. ¶ 2. 

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outcomes, including oral and orofacial health and development.” Compl. ¶¶ 8, 20. She 

goes on to quote language from MAM’s advertising: “Orthodontic nipple promotes 

proper oral development” and “only orthodontic soothers support baby’s healthy jaw 

and tooth development.” Id. ¶¶ 28, 30. Given this context, Freeman has adequately 

alleged that a reasonable consumer could interpret the term “orthodontic” as promoting dental health, and that is allegedly a false representation.9 

MAM’s challenge to the age-based-label “16+” fares no better. MAM contends 

that this is simply a size label. Def.’s Mot. at 16. According to MAM, when the package 

is opened, the consumer then sees a “graphic” that shows the three available sizes of 

pacifiers, each tied to an age range. Id. There are a couple of problems with MAM’s 

argument, starting with the fact that it refers to facts (that is, the size-chart graphic) 

outside the Complaint. Also, if a consumer must actually buy and open a package to 

learn that 16+ months is allegedly meant only as a measure of size, then MAM’s prepurchase advertising has not conveyed that intention. Indeed, MAM’s advertising 

links the purported size indicator to beneficial dental outcomes: “16+ nipple ensures 

proper development of baby’s palate, teeth and gums as baby grows.” Compl. ¶ 29. 

Most obvious of all, the unit for the 16+ label is months—a measurement of age, not 

size. At the pleading stage, the Complaint readily alleges that the “16+” label refers 

to age, not merely size. 

9It is also plausible that the term “orthodontic” is understood by reasonable consumers 

as the same label applied to the use of dental braces, which are used by orthodontists to 

correct children’s teeth and jaw misalignment in later childhood and adolescence. This common understanding of the term strengthens Freeman’s proposed interpretation, that is, that 

the term “orthodontic” as applied to a pacifier is a representation that the pacifier will improve the child’s dental development. 

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Along the same line as MAM’s challenge to the studies on the term “orthodontic,” MAM similarly attacks the studies that Freeman cites in support of her assertion 

that pacifier use above the age of 24 months is harmful. Def.’s Mot. at 17–18. Again, 

however, the attack is premature when presented at the pleading stage. Perhaps fact 

or expert discovery will undermine Freeman’s allegation about the harm to children 

over 24 months, but that is not a pleading-stage debate. 

MAM also likens this case to another consumer-fraud case decided by this 

Court, Greifenstein v. Estee Lauder Corp., 2013 WL 387407 (N.D. Ill. July 26, 2013), 

but the two cases are different in important ways. In Greifenstein, the consumer alleged that cosmetics company Estee Lauder had misrepresented the wrinkle-repairing power of a facial cream, which the company advertised was “clinically proven” to 

repair wrinkles. Id. at *4. The plaintiff alleged that there was no clinical evidence to 

support the company’s claims—but the complaint itself referred to a clinical study 

that did support the claims. Id. She further argued that another clinical study disproved the efficacy of the cream at issue, but the study—issued by the advertising 

industry’s self-regulatory body—was overturned in large part in an appeal to the National Advertising Board. Id. at *6. And the only remaining concern of falsity expressed by the Advertising Board did not match what the plaintiff had alleged. Id. So 

the complaint in Greifenstein did not adequately plead deception. Id. at *7. 

In contrast, Freeman’s allegations of falsity are right on target. The studies 

that she cites directly evaluate orthodontic pacifiers—including MAM’s—and they 

have not been undermined like the linchpin study in the Greifenstein complaint. 

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MAM tries to downplay their importance in various ways, but none are dispositive at 

the pleading stage. For example, MAM relies on one study’s statement that more 

study is needed to determine if orthodontic pacifiers convey any dental-health benefit. 

Def.’s Mot. at 13. But the first sentence of the same paragraph in which that statement appears outright concludes, “There is not sufficient evidence to support [the] 

concept that there are differences in occurrence of malocclusion traits between children that used orthodontic or conventional pacifiers.” Exh. G, Medeiros et al., “Malocclusion prevention through the usage of an orthodontic pacifier compared to a conventional pacifier: a systematic review,” 19 European Archives of Paediatric Dentistry

287, 294 (2018). The other studies cited by Freeman similarly stand for the proposition for which she cites them. To repeat, the debate over the merits of the studies 

must await summary judgment or trial; deception is adequately pleaded. 

b. Intent 

Next, MAM argues that Freeman has not adequately alleged MAM’s intent to 

deceive. Def.’s Mot. at 19. This argument echoes the one over merits of the studies, so 

it too is prematurely raised at the pleading stage. Freeman has alleged more than 

enough to give rise to a plausible inference of intent: first, MAM is an industry leader 

in pacifiers, a proposition which MAM does not dispute. Compl. ¶ 81. So it is reasonable to expect that MAM would know the state of the science, including the studies 

that are critical of orthodontic pacifiers. Next, Freeman has cited significant scientific 

literature concluding that orthodontic pacifiers are not beneficial to dental health. Id. 

¶¶ 35–79. Again, MAM plausibly is alleged to know about the studies. Also, Freeman 

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has alleged that MAM seeks to convince consumers to buy its products based on its 

advertising campaign around their safety and benefits for children. Id. ¶¶ 26–31. 

With reasonable inferences drawn in Freeman’s favor, intent to deceive is adequately 

alleged.10

c. Damages 

To plead damages under the Fraud Act, Freeman must allege that she “suffer[ed] actual pecuniary loss.” Kim v. Carter’s Inc., 598 F.3d 362, 365 (7th Cir. 2010) 

(cleaned up); see also Camasta v. Jos. A. Bank Clothiers, 761 F.3d 731 at 739 (2014) 

(citing Mulligan v. QVC, Inc., 888 N.E.2d 1190, 1196 (Ill. App. Ct. 2008)). As a consumer who actually bought the product, Freeman can (and has) simply allege that 

she suffered actual pecuniary loss because she allegedly paid more than the product 

was worth and thus did not receive the “benefit of her bargain.” Kim, 598 F.3d at 365 

(cleaned up); see also Mulligan, 888 N.E.2d at 1196–97; Biffar v. Pinnacle Foods Grp., 

LLC, 2016 WL 7429130, at *4 (S.D. Ill. Dec. 22, 2016); Burton v. Hodgson Mill, Inc., 

2017 WL 1282882, at *6 (S.D. Ill. Apr. 6, 2017) (both of the latter cases holding that 

plaintiffs adequately alleged damages because they paid premium prices for muffin 

10 It is worth noting too that, under the Fraud Act, Freeman need not allege that MAM 

intended to deceive consumers (though she has adequately alleged that too), only that MAM 

intended that she rely on the allegedly false statements. Wigod v. Wells Fargo Bank, N.A., 

673 F.3d 547, 574–75 (7th Cir. 2012); Capiccioni v. Brennan Naperville, Inc., 791 N.E.2d 553, 

558 (Ill. App. Ct. 2003) (“A defendant need not have intended to deceive the plaintiff; innocent 

misrepresentations or omissions intended to induce the plaintiff’s reliance are actionable under the statute.”). 

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and pancake mixes, respectively, labeled “all natural” that in fact contained synthetic 

ingredients). 

More specifically, Freeman alleges that “she would not have paid a premium 

price or purchased the Orthodontic Pacifiers marketed for use by children over the 

age of 24 months had Defendant made truthful advertising statements and disclosed 

material information concerning risks associated with prolonged pacifier use.” 

Compl. ¶ 86. Freeman also alleges that she specifically chose MAM products “because 

she believed, based on the representations made by Defendant, that the ‘orthodontic 

nipple’ would improve dental health outcomes, including oral and orofacial health 

and development.” Compl. ¶ 20. Given that the products allegedly do not provide 

these benefits, Freeman has adequately alleged that she did not receive the benefit 

of the bargain when she bought the pacifiers. This is enough to allege actual pecuniary loss. 

d. Proximate Cause 

Under the Fraud Act, combined with Civil Rule 9(b), Freeman must plead proximate cause with particularity. De Bouse v. Bayer AG, 922 N.E.2d 309, 313 (Ill. 2009). 

Most importantly here, she must adequately allege that she was actually deceived by 

a representation of the defendant. Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 164 (Ill. 

2002) (“to properly plead the element of proximate causation in a private cause of 

action for deceptive advertising brought under the Act, a plaintiff must allege that he 

was, in some manner, deceived”). To adequately state a fraud claim, Freeman “must 

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describe the who, what, when, where, and how of the fraud.” Pirelli, 631 F.3d at 441–

42 (cleaned up). 

MAM argues that because Freeman did not specify exactly which pacifier she 

bought, and what exactly its packaging said, her claims should be dismissed. Def.’s 

Mot. at 18. In the Complaint, Freeman alleged that, on a specific date in 2019 and at 

a specific Target store near her home, she bought a two-pack of pacifiers labeled “16+” 

and that labelled the pacifiers as “orthodontic.” Compl. ¶ 17. Those two labels—“orthodontic” and “16+”—are the heart of Freeman’s misrepresentation claim. She alleges that she bought the pacifiers because she believed those labels meant they 

would be beneficial to her child. Id. That is enough to adequately allege proximate 

cause. It appears to be true that MAM sells several lines of pacifiers, but the differences between these product lines do not appear to make any difference on the “orthodontic” or “16+” labels.11 Indeed, MAM’s own exhibits show identical advertising 

text on the packages for different styles of pacifier. Whether Freeman bought an “original” or a “camo”-model pacifier, the package would have included the text “Orthodontic nipple promotes proper oral development” and “designed with dentists for 

healthy dental development.” Exh. B to Def.’s Mot. at 27 (“Camo” model); id. at 31 

11This distinguishes Freeman’s case from one cited by MAM, in which the plaintiff 

could not identify which of six different dietary supplements she had purchased, leading the 

court to dismiss her claims. Ibarolla v. Nutrex Research, Inc., 2012 WL 5381236, at *3 (N.D. 

Ill. Oct. 31, 2012). Freeman says that she bought “orthodontic” pacifiers labeled for use by 

children aged 16+ months, and her inability to remember their color or whether they were 

for nighttime use does not render the allegations speculative. In another case cited by MAM, 

In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., No. 05 C 2623, 2009 WL 

937256, at *6 (N.D. Ill. Apr. 6, 2009), the plaintiffs failed to allege that they even saw any 

advertisements about the products at issue. In contrast, Freeman specifically alleged that 

she saw and relied on the labels. 

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(“Original” model). The online listing for a night-time pacifier uses similar language. 

Def.’s Mot., Exh. C at 37 (MAM Perfect Night 16+ Dream Traveler, stating “Designed 

to reduce the risk of misaligned teeth” and “Clinically proven: supports healthy tooth 

and jaw development”). Given the limited number of lines of MAM pacifiers and the 

shared advertising language, Freeman has provided enough specificity on what she 

purchased and what the labels were. 

e. Relationship to Breach of Warranty 

One final point on the Fraud Act claim: MAM argues that the claim for breach 

of warranty is duplicative of the Fraud Act claim, so the Fraud Act claim should be 

dismissed. Def.’s Mot. at 24. But this contention is readily rejected, because Freeman 

is simply (and appropriately) pleading another cause of action based on overlapping 

facts. And pleading in the alternative is authorized by Federal Rule of Civil Procedure 

8(a)(3). The assertion of the claim for breach of warranty does not preclude the Fraud 

Act claim. (This Opinion discusses the claim for breach of warranty in more detail 

below.) 

2. Deceptive Trade Practices Act 

 MAM argues that the claim under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1, et seq., must be dismissed because the only relief available 

to Freeman under that Act is injunctive relief, 815 ILCS 510/3, and she has no standing to bring a claim for injunctive relief. Freeman does not contend that she seeks 

any relief under the Act other than injunctive relief, so the lack of standing (as 

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discussed earlier) dooms any claim under the Act. The claim under the Deceptive 

Trade Practices Act is dismissed.

3. Breach of Warranty 

MAM’s attack on the claim for breach of warranty is reminiscent of the arguments targeting the Fraud Act claim. Under Illinois law, a description of goods can 

create an express warranty: “Any description of the goods which is made part of the 

basis of the bargain creates an express warranty that the goods shall conform to the 

description.” 810 ILCS 5/2-313. With this statutory overlay, the express warranty is 

a “creature of contract.” Collins Co. v. Carboline Co., 532 N.E.2d 834, 838 (Ill. 1988). 

To adequately plead a breach of express warranty, a plaintiff must allege: “(1) the 

terms of the warranty; (2) a breach or failure of the warranty; (3) a demand upon the 

defendant to perform under the terms of the warranty; (4) a failure by the defendant 

to do so; (5) compliance with the terms of the warranty by the plaintiff; and (6) damages measured by the terms of the warranty.” Lambert v. Dollar Gen. Corp., 2017 WL 

2619142, at *2 (N.D. Ill. June 16, 2017). MAM contends that its product descriptions 

did not set sufficient terms for a warranty (the first element), thus making it impossible to breach a warranty (the second element), and that Freeman has not adequately alleged damages (the sixth element). 

In response, Freeman argues that MAM’s description of its pacifiers as “orthodontic” created an express warranty based on that term. Compl. ¶ 148. She says that 

MAM breached the warranty because the pacifiers are not in fact “orthodontic,” and 

indeed actually harm children’s development, as evidenced by the cited studies. Id.

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¶ 151. According to MAM, Freeman cannot build the warranty claim around the term 

“orthodontic,” because there is no accepted definition of that word in the context of 

pacifiers; MAM says it only guaranteed the size and shape of the nipple on their pacifiers, and MAM delivered on that guarantee. Def.’s Mot. at 21-23. But the pacifiers 

were not just labeled with a certain size or shape—they are labeled as “orthodontic.” 

As discussed earlier, it is (at the least) plausible that reasonable consumers interpreted the label as promising certain dental-health outcomes, so the term is definite 

enough, at this stage of the litigation, to form the basis of a warranty—and that MAM 

breached it. 

On damages, MAM argues that, because Freeman has not alleged that her 

child suffered adverse health consequences, she has not adequately alleged damages 

arising from the breach of warranty. Def.’s Mot. at 23. This is wrong, because Freeman has alleged monetary damages based on what she paid for the pacifiers, which 

is enough to adequately allege damages. As the Seventh Circuit has noted, just because “members of the class did not suffer physical injury ... does not mean that they 

were uninjured.” In re Aqua Dots Prod. Liab. Litig., 654 F.3d 748, 751 (7th Cir. 2011) 

(holding that the financial injury from paying for dangerous toys can support a claim 

even though no physical injury happened). 

4. Unjust Enrichment 

Last (and probably least), Freeman also brings a claim for unjust enrichment. 

“To state a claim for unjust enrichment, a plaintiff must allege that the defendant 

has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s 

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retention of the benefit violates the fundamental principles of justice, equity, and 

good conscience.” Stefanski v. City of Chicago, 28 N.E.3d 967, 980 (Ill. App. Ct. 2015) 

(cleaned up). Freeman has adequately pleaded that MAM took and kept her purchase 

money (to her obvious detriment), because of course she paid for MAM pacifiers. 

Compl. ¶ 17. The allegations based on false advertising serve as the basis for asserting that fundamental principles of justice, equity, and good conscience would be violated, just as the allegations serve as the basis for the Fraud Act claim. The claim for 

unjust enrichment survives.12 

IV. Conclusion 

 Freeman’s claims for injunctive relief (under the Fraud Act and the Deceptive 

Trade Practices Act) are dismissed for lack of Article III standing. But the claims for 

money damages under the Fraud Act and other states’ consumer-protection statutes, 

as well as the claims for breach of warranty and unjust enrichment, all survive the 

motion to dismiss. 

The parties shall confer and file a joint initial status report, R. 9, setting forth 

a proposed discovery schedule, by April 1, 2021. The tracking status hearing of March 

26 is reset to April 9, 2021, at 8:30 a.m., but to track the case only (no appearance is 

12MAM also argues that Freeman has not identified which State’s law applies to the 

unjust enrichment claim. Def.’s Mot. at 25. On her individual claim, there is no great mystery 

given that she is an Illinois citizen who made the purchases at an Illinois store. 

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required, the case will not be called). Instead, the Court will review the joint status 

report and set the discovery schedule based on it. 

 ENTERED: 

 s/Edmond E. Chang 

 Honorable Edmond E. Chang 

 United States District Judge 

DATE: March 23, 2021 

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