In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2960

BRIAN CLEARY, et al.,

Plaintiffs-Appellants,

v.

PHILIP MORRIS INCORPORATED, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 09 CV 1596—Matthew F. Kennelly, Judge.

ARGUED APRIL 7, 2011—DECIDED AUGUST 25, 2011

Before CUDAHY, MANION, and HAMILTON, Circuit Judges.

MANION, Circuit Judge. This is a class action suit brought

against Philip Morris, Inc., and several other tobacco

companies and tobacco-related entities. The plaintiffs

allege that for years the tobacco companies conspired to

conceal the facts about the addictive and dangerous

nature of cigarettes by intentionally using incomplete,

misleading, or untruthful marketing and advertising.

The plaintiffs’ putative class consists of Illinois residents
2 No. 10-2960

who bought or smoked cigarettes, and they seek the

disgorgement of the tobacco companies’ cigarette

revenue under the theory of unjust enrichment. After

extensive proceedings, the district court dismissed the

case, ruling that the plaintiffs had failed to state a claim

upon which relief could be granted. The court entered

judgment for the defendants, and the plaintiffs now

appeal a variety of issues. We affirm.

I. Background

In 1998, the plaintiffs filed this class action case in Illinois

state court against a host of parties in the cigarette business. As amended in 2000, the complaint proposed three

different class action claims: (1) an “addiction” claim

with a class consisting of all Illinois residents who

bought cigarettes during the time period from 1953 to 1965

when the tobacco companies allegedly concealed facts

about the addictive nature of cigarettes; (2) a “youth

marketing” claim with a class consisting of all Illinois

residents who began smoking as minors; and (3) a “lights”

claim with a class consisting of all Illinois residents who

bought Philip Morris’s Marlboro Lights cigarettes. This

First Amended Complaint stated causes of action under

the Illinois Consumer Fraud and Deceptive Business

Practices Act (ICFA), 815 ILCS 505, and the commonlaw doctrine of unjust enrichment.

A year later, the plaintiffs withdrew their request to

certify the class in the “lights” claim because there was

another class action lawsuit with a similar claim progressing in another Illinois court. Accordingly, the plaintiffs
No. 10-2960 3

later filed a Second Amended Complaint in 2005, which

set out only the “addiction” and “youth marketing”

claims. The “lights” claim in the parallel lawsuit ultimately proved unsuccessful before the Illinois Supreme

Court. See Price v. Philip Morris, Inc., 848 N.E.2d 1 (Ill. 2005).

But in 2008, a United States Supreme Court decision in

an unrelated case reopened the door to the possibility of

a successful “lights” claim. See Altria Group, Inc. v. Good,

555 U.S. 70 (2008). The plaintiffs then filed a Third

Amended Complaint in 2009, seeking to reinstate the

“lights” claim in this case, along with the still-pending

“addiction” and “youth marketing” claims. The new

“lights” claim was also expanded to encompass other

defendants who made light cigarettes besides Philip

Morris, with a larger plaintiff class including all Illinois

residents who had purchased and smoked any brand of

“low tar,” “light,” or “ultra light” cigarettes in addition

to Philip Morris’s Marlboro Lights. By this time, the

legal theory that the defendants had violated the ICFA

had been dropped—presumably because Illinois Supreme

Court case law had made class certification under that

statute difficult in a case where individual damages and

deception were not alleged. See, e.g., Avery v. State Farm

Mut. Auto. Ins. Co., 835 N.E.2d 801, 850 (Ill. 2005) (deception and actual damages are elements of a cause of

action under the ICFA). Thus, only a theory of unjust

enrichment remained.

One of the new “lights” defendants named in the case,

Lorillard Tobacco Company, removed the suit to federal

court under the Class Action Fairness Act of 2005

(CAFA), 28 U.S.C. § 1332(d). The plaintiffs moved to
4 No. 10-2960

remand the case, arguing that the “lights” claim related

back to the First Amended Complaint filed nine years

earlier, and so a new window for a removal was not

opened. The district court denied the motion, finding that

the claim against Lorillard did not relate back and the

removal was proper. Then, after ruling that any claim

against Lorillard was time-barred, the district court

dismissed it from the case. The plaintiffs subsequently

argued that since Lorillard was the reason for the

case’s removal to federal court and since it was now no

longer a party to the suit, the case should be returned

to state court. The district court denied the request.

After Lorillard was dismissed, the other defendants

in the “lights” claim moved for dismissal, arguing

that the claims against them were also time-barred. The

plaintiffs conceded that all of the “lights” defendants

besides Philip Morris should be dismissed; they argued,

however, that their claim against Philip Morris was still

viable for every brand of “light” or “low tar” cigarette

manufactured by Philip Morris. Philip Morris disagreed,

contending that since Marlboro Lights was the only

brand of cigarettes mentioned in the First Amended

Complaint, only that claim should go forward. Ultimately,

the district court restricted the “lights” claim only to

the Marlboro Lights brand. Later, the district court also

dismissed the “youth marketing” claim as time-barred.

In 2010, the plaintiffs filed a Fourth Amended Complaint reflecting the prior changes in the case. This final

version of the complaint alleged only the “addiction” claim

and the “lights” claim: the “addiction” claim proposed a

class consisting of all Illinois residents who purchased
No. 10-2960 5

At oral argument, there was a question regarding whether 1

the plaintiffs are seeking to disgorge all cigarette revenue

or merely profits. In their complaint, the plaintiffs specifically

request all revenue from the cigarette sales. We will thus

assume that they are seeking revenue.

or consumed the defendants’ tobacco products during

the time when the defendants had deceptive marketing,

and the “lights” claim proposed a class of all Illinois

residents who purchased or consumed Philip Morris’s

Marlboro Lights cigarettes. Both classes’ claims were

based solely on the theory of unjust enrichment. Essentially, the plaintiffs’ argument was that the defendant

tobacco companies knowingly and intentionally concealed the truth from consumers about cigarettes’ addictiveness and health problems (the “addiction” claim),

and about the tar and nicotine found in Marlboro Lights

(the “lights” claim)—and that it was through this

wrongful behavior that the defendants were unjustly

enriched. The plaintiffs explicitly disavowed any need

to allege that they were deceived or injured by the defendants’ actions. Instead, they argued that the violation

of their right as consumers to know the truth about cigarettes and the egregious behavior of the tobacco companies were sufficient to support their cause of action.

And they claimed that the principles of justice, equity,

and good conscience would be violated if the defendants

kept their earnings. Thus all the revenue from cigarette

sales should be disgorged.1

The defendants filed a motion to dismiss the Fourth

Amended Complaint, arguing that the unjust enrichment
6 No. 10-2960

theory failed as a matter of law. The district court granted

the defendants’ motion and dismissed the case with

prejudice. The plaintiffs then filed a motion for reconsideration, but the district court denied the motion.

This appeal followed.

II. Analysis

In its brief on appeal, the plaintiffs contest several

decisions made by the district court. We will first

briefly address two minor decisions: (1) the court’s decision not to remand the case to state court once the defendant Lorillard was dismissed; and (2) the court’s decision not to expand the “lights” claim to other brands

manufactured by Philip Morris besides Marlboro Lights.

Then we will address the main issue on appeal: the

district court’s holding that the plaintiffs’ unjust enrichment claim failed to state a claim upon which relief

could be granted.

A. Remand to State Court

The first issue raised by the plaintiffs in their appellate

brief is whether the district court erred in not

remanding the case to state court once the defendant

Lorillard—the diverse party whose presence in the suit

was the reason for removal to federal court—was dismissed from the case. At oral argument, counsel for

plaintiffs conceded that the district court properly had

jurisdiction over the case. Counsel then stated that the

district court could have exercised its discretion and
No. 10-2960 7

remanded the case to state court, but that it did not do

so—and counsel seemed to indicate that it was abandoning this issue on appeal.

Counsel is correct to abandon this issue, as the district

court committed no error. A federal court’s jurisdiction

under CAFA is determined at the time of removal. In re

Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 380 (7th Cir.

2010). Here, there was no question that the case was

properly removed under CAFA. And “nothing filed after

removal affects jurisdiction. . . . [L]ater changes that

compromise diversity do not destroy jurisdiction.” Id. at

380-81; see also Braud v. Transp. Serv. Co., 445 F.3d 801, 808

(5th Cir. 2006) (“[I]t is the ‘action,’ not claims against

particular defendants, that is removable, so the subsequent dismissal of the removing defendant cannot

render the entire lawsuit improperly removed.”). Therefore, the district court properly retained jurisdiction of

the case after Lorillard was dismissed, and it is not erroneous for the district court to decline to remand the

case to state court.

B. Expanding the “Lights” Claim to Other Brands

A second issue presented by the plaintiffs on appeal is

whether the district court erred when it refused to

expand the “lights” claim to other “low tar,” “light,” and

“ultralight” brands besides Marlboro Lights. The district

court premised its ruling on a finding that this expanded claim (asserted in the Third Amended Complaint) did not relate back to the original pleading (for

our purposes, the First Amended Complaint). “Under
8 No. 10-2960

Illinois law as under federal law, an amendment relates

back when it arises out of the same transaction or occurrence set up in the original pleading.” Phillips v. Ford

Motor Co., 435 F.3d 785, 788 (7th Cir. 2006) (internal quotation omitted); see also Porter v. Decatur Mem’l Hosp., 882

N.E.2d 583, 590 (Ill. 2008); Fed. R. Civ. P. 15(c). Here, the

plaintiffs’ original pleading did not mention other

brands of cigarette products but only made allegations

regarding Marlboro Lights. Expanding the class to

include other “light” and “low tar” products would

extend the potential liability to new class members

(those who purchased or smoked brands other than

Marlboro Lights), and it would involve new conduct

and transactions (Philip Morris’s marketing and sale of

brands other than Marlboro Lights). The plaintiffs chose

not to make allegations related to other cigarette brands

in the original pleading. And based on this pleading,

Philip Morris did not have notice that the case might

encompass claims against other brands. The district

court correctly found that the expanded claim did not

arise out of the same transaction or occurrence, and it

properly denied the plaintiffs’ request to amend their

claim.

C. Unjust Enrichment

We now come to the main issue on appeal: whether

the district court properly dismissed the plaintiffs’ claim

for unjust enrichment for failure to state a claim under

Illinois law. In Illinois, “[t]o state a cause of action based

on a theory of unjust enrichment, a plaintiff must allege
No. 10-2960 9

that the defendant has unjustly retained a benefit to

the plaintiff’s detriment, and that defendant’s retention

of the benefit violates the fundamental principles of

justice, equity, and good conscience.” HPI Health Care

Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill.

1989). A preliminary matter argued by the parties is

whether Illinois law recognizes an independent cause

of action for unjust enrichment, or whether unjust enrichment must always be tied to another underlying

claim found in tort, contract, or statute.

The Illinois Supreme Court appears to recognize

unjust enrichment as an independent cause of action. In

Raintree Homes, Inc. v. Vill. of Long Grove, 807 N.E.2d 439,

445 (Ill. 2004), the plaintiffs were seeking the refund of

overpaid fees under an unjust enrichment theory. No

other underlying cause of action was alleged. The Court

noted: “Here, plaintiffs have no substantive claim

grounded in tort, contract, or statute; therefore the only

substantive basis for the claim is restitution to prevent

unjust enrichment.” Id. Similarly, in another case before

the Illinois Supreme Court, Indep. Voters v. Ill. Commerce

Comm’n, 510 N.E.2d 850, 852-58 (Ill. 1987), the plaintiffs

had filed suit to recover refunds for excessive utility

charges and their claim for restitution of the charges

was not tied to another cause of action. Finally, the

Illinois Supreme Court has articulated the elements of

unjust enrichment without reference to a separate underlying claim in tort, contract, or statute. See HPI Health

Care Servs., 545 N.E.2d at 679; see also Peddinghaus v.

Peddinghaus, 692 N.E.2d 1221, 1225 (Ill. App. Ct. 1998)

(ruling that Illinois recognizes an independent cause of
10 No. 10-2960

action for unjust enrichment based on HPI Health Care

Services). From these cases, it appears that the Illinois

Supreme Court recognizes unjust enrichment as an independent cause of action.

In contrast to this case law, there is a recent Illinois

appellate court that suggests the opposite, namely, that

an unjust enrichment claim cannot stand untethered

from an underlying claim. See Martis v. Grinnell Mut.

Reinsurance Co., 905 N.E.2d 920 (Ill. App. Ct. 2009). The

Martis court stated the following:

The doctrine of unjust enrichment underlies a

number of legal and equitable actions and remedies.

Unjust enrichment is not a separate cause of action that,

standing alone, will justify an action for recovery.

Rather, it is a condition that may be brought about

by unlawful or improper conduct as defined by law,

such as fraud, duress, or undue influence, and may

be redressed by a cause of action based upon that

improper conduct. When an underlying claim of

fraud, duress or undue influence is deficient, a claim

for unjust enrichment should also be dismissed.

Id. at 928 (internal quotation and citations omitted) (emphasis added). Without setting out a comprehensive

treatise on Illinois unjust enrichment law in an attempt to

resolve the apparently conflicting language of the

Raintree Homes and Martis cases, we suggest one way to

make sense of it. Unjust enrichment is a common-law

theory of recovery or restitution that arises when the

defendant is retaining a benefit to the plaintiff’s detriment, and this retention is unjust. What makes the reten-
No. 10-2960 11

See, e.g., Lewis v. Lead Indus. Ass’n, 793 N.E.2d 869, 877 (Ill. 2

App. Ct. 2003) (“In order for a cause of action for unjust enrichment to exist, there must be some independent basis

which establishes a duty on the part of the defendant to act

and the defendant must have failed to abide by that duty.”);

Alliance Acceptance Co. v. Yale Ins. Agency, 648 N.E.2d 971, 977

(Ill. App. Ct. 1995) (“The term ‘unjust enrichment’ is not

descriptive of conduct that, standing alone, will justify an

action for recovery. Rather, it is a condition that may be

brought about by unlawful or improper conduct as defined

by law, such as fraud, duress, or undue influence, and may be

redressed by a cause of action based upon that improper

conduct.”) (quoting Charles Hester Enters., Inc. v. Ill. Founders

Ins. Co., 484 N.E.2d 349, 354 (Ill. App. Ct. 1985)).

tion of the benefit unjust is often due to some

improper conduct by the defendant. And usually this

improper conduct will form the basis of another claim

against the defendant in tort, contract, or statute. So, if an 2

unjust enrichment claim rests on the same improper

conduct alleged in another claim, then the unjust enrichment claim will be tied to this related claim—and, of

course, unjust enrichment will stand or fall with the

related claim. See, e.g., Ass’n Benefit Servs. v. Caremark Rx,

Inc., 493 F.3d 841, 855 (7th Cir. 2007) (“[W]here the plaintiff’s claim of unjust enrichment is predicated on the

same allegations of fraudulent conduct that support an

independent claim of fraud, resolution of the fraud

claim against the plaintiff is dispositive of the unjust

enrichment claim as well.”).

This is what happened in two class action suits, similar

to the one before us now, where we affirmed the
12 No. 10-2960

dismissal of unjust enrichment claims. In Oshana v. CocaCola Co., 472 F.3d 506, 509 (7th Cir. 2006), the plaintiff

brought a class action suit against the Coca-Cola Company

on behalf of all purchasers of fountain Diet Coke, claiming

that the company engaged in deceptive marketing regarding the presence of saccharin in its product. The

plaintiff alleged a claim under the ICFA and a claim for

unjust enrichment. Id. at 514. We first affirmed the dismissal of the ICFA claim because the plaintiff could not

show either that the class members suffered harm or

that the harm was caused by the company’s allegedly

deceptive conduct. Id. at 514-15. We then addressed

the plaintiff’s unjust enrichment claim and ruled that it

was not viable because the plaintiff could not show that

the company was unjustly enriched “without proof of

deception.” Id. at 515.

A few years later, in the case of Siegel v. Shell Oil Co., 612

F.3d 932, 933 (7th Cir. 2010), the plaintiff brought a class

action suit representing all gasoline purchasers and

alleging that the defendant gasoline companies were

unfairly manipulating and artificially inflating gas

prices. Again, the plaintiff alleged a claim under the

ICFA and an unjust enrichment claim. Id. After affirming

the dismissal of the ICFA claim because the plaintiff

had failed to prove that he was harmed and that the

defendants’ conduct caused the harm, we then considered the unjust enrichment claim. Id. at 937. Although

we cited the Martis case for the proposition that unjust

enrichment is not a separate cause of action that can

stand on its own, we noted that the unjust enrichment

claim was based on the same conduct underlying the
No. 10-2960 13

ICFA claim, and that without this claim, the unjust enrichment claim was not viable. Id. (citing Martis, 905 N.E.2d

at 928).

Thus, in both Oshana and Siegel, the unjust enrichment

claim was premised on improper conduct—deception

in Oshana and unfair practices in Siegel—and this same

alleged conduct also supported the ICFA claim. And

when we found that the improper conduct was insufficient

to support an ICFA claim, we likewise found that it

was insufficient to establish unjust enrichment. The

Martis case presented a comparable situation: the

unjust enrichment claim was premised on the same

fraud underlying the ICFA claim, and because there

was no valid underlying fraud, both the ICFA claim

and the unjust enrichment claim failed. Martis, 905

N.E.2d at 928. Based on these considerations, Martis’s

articulation of unjust enrichment law might be viewed

as language limited to its particular facts and not a

true variance from how the Illinois Supreme Court considers unjust enrichment claims as illustrated by Raintree

Homes.

Despite these reflections, it is not necessary to resolve

definitively whether Illinois law recognizes unjust enrichment as an independent cause of action: the plaintiffs’

case fails because their allegations are insufficient to

support a cause of action for unjust enrichment.

The plaintiffs’ unjust enrichment theory rests on the

allegation that they had a legal right to know about the

true nature and hazards of cigarettes. The plaintiffs

assert that the defendants violated this right by failing
14 No. 10-2960

to disclose the full truth about cigarettes and that this

failure to disclose was to the plaintiffs’ detriment; and

that defendants’ retention of the benefit—the cigarette

revenue—violates the fundamental principles of justice,

equity, and good conscience. It is crucial to note that the

plaintiffs do not allege that they suffered any harm, that

they relied on the defendants’ marketing, or that they

would have acted differently had the defendants been

truthful about the cigarettes they were selling. In fact, not

only do the plaintiffs not make these allegations, but

the plaintiffs also explicitly disavow any such allegations, claiming that they are entirely unnecessary to

support their theory of unjust enrichment. In other

words, the plaintiffs assert that their unjust enrichment

claim does not require proof of deception, causation, or

actual harm with regard to individual members of the

plaintiff class.

As we stated above, for unjust enrichment, “a plaintiff

must allege that the defendant has unjustly retained a

benefit to the plaintiff’s detriment, and that defendant’s

retention of the benefit violates the fundamental

principles of justice, equity, and good conscience.” HPI

Health Care Servs., 545 N.E.2d at 678. The plaintiffs

contend that in order to show detriment, they do not

need to show that they suffered some loss or damages.

See Raintree Homes, Inc., 807 N.E.2d at 445. This is true

in some unjust enrichment cases, like Raintree Homes,

because unjust enrichment does not seek to compensate

a plaintiff for loss or damages suffered but seeks to dis-
No. 10-2960 15

The facts of the Raintree Homes case illustrate this distinction. 3

There, the plaintiffs were seeking the refund of impact fees

for building permits unfairly retained by the defendant

village. Raintree Homes, Inc., 807 N.E.2d at 442. The plaintiffs

were not seeking compensation for any loss they personally

suffered by not having the fees, such as the missed opportunities to use the fee money for other investments—they only

wanted disgorgement of the fees. Id. at 445. In other words,

the amount of the award sought by the plaintiffs was the

defendant’s “unjust gain, rather than the plaintiffs’ loss.” Id.

gorge a benefit that the defendant unjustly retains. But 3

while a plaintiff need not show loss or damages, he

must show a detriment—and, significantly, a connection between the detriment and the defendant’s retention of the benefit. HPI Health Care Services, 545 N.E.2d

678 (“a plaintiff must allege that the defendant has

unjustly retained a benefit to the plaintiff’s detriment”)

(emphasis added). In some unjust enrichment cases, the

loss or damages suffered by a plaintiff might be relevant

to establishing that there is a detriment.

Here, the benefit that the plaintiffs seek to recover is

the revenue from the cigarette sales, while the detriment alleged by the plaintiffs is the violation of their

legal right as consumers to be informed of the true

nature and risks of the defendants’ products. But since

the plaintiffs disclaim any need to allege either personal

damages, deception, or reliance with regard to any

member of the class, it is difficult to see how the defendants’ retention of the revenue paid by a consumer is

to that consumer’s detriment. According to the plain-
16 No. 10-2960

tiffs, the class of people with a valid unjust enrichment

claim would include the consumer who bought cigarettes

and was never injured in any manner by his purchase.

It would include the consumer who was satisfied by

his cigarette purchase and planned to continue purchasing cigarettes. It would include the consumer who

would not have acted any differently had he been fully

informed about cigarettes, but bought them anyway

regardless of the defendants’ marketing. It would include

the consumer who was not deceived by the marketing

because he was personally aware of the true nature of

cigarettes, but still bought cigarettes despite their addictive and harmful nature—or even because of it. Under

the plaintiffs’ expansive theory, all of these consumers

would have a cause of action for unjust enrichment

because their legal right to be informed of the risks of

cigarettes was violated.

But for many of these consumers, the defendants’

retention of the cigarette revenue is not a detriment to

them—it is possible that many of the consumers have

no regrets about their purchases and would willingly

repeat the same transaction, despite the violation of

their legal right to be informed about the nature of cigarettes. Since these consumers would have acted no differently had the defendants properly informed them

about the true nature of cigarettes, their transfer of

money to the defendants in exchange for cigarettes was

not to their detriment—and, accordingly, the defendants’ continued retention of the money cannot be to

their detriment either.
No. 10-2960 17

“Actions for restitution have for their primary purpose 4

taking from the defendant and restoring to the plaintiff some-

(continued...)

This would be a different case if there was a greater

connection between the defendants’ retention of the

cigarette revenue and a detriment to the plaintiffs. For

example, if the revenue was obtained in a manner that

caused injury to the plaintiffs, or if the revenue was

obtained by deceiving the plaintiffs, or even if the

revenue was obtained by an inadvertent misrepresentation relied upon by the plaintiffs, the defendants’

retention of the revenue might conceivably be to the

plaintiffs’ detriment. But these allegations have been

explicitly disclaimed by the plaintiffs. Under these circumstances, it would not be unjust for a manufacturer

to retain the money paid by a consumer for a product

when this consumer was not deceived, would not have

acted any differently had he known the truth about the

product, was not hurt by the product, and was satisfied

with the product and planned to continue purchasing

the same product in the future. In short, the retention

of this consumer’s money is not detrimental to him.

The behavior alleged by the plaintiffs, namely, their

claim that the defendants had a concerted plan to intentionally mislead consumers and conceal the truth about

their cigarettes, is insufficient to support a cause of

action for unjust enrichment. Unjust enrichment is not a

mode of imposing punitive damages; it is a means of

recovering something that the defendant is not entitled

to but is unfairly possessing to the plaintiff’s detriment.4
18 No. 10-2960

(...continued) 4

thing to which the plaintiff is entitled. . . . [A]ctions of restitutionare not punitive.” Restatement (Third) of Restitution and

Unjust Enrichment § 49, reporter’s note to cmt. a (2011).

“Disgorgement of wrongful gain is not a punitive remedy. . . .

The rationale of punitive or exemplary damages is independent of the law of unjust enrichment.” Restatement (Third)

of Restitution and Unjust Enrichment § 51, cmt. k (2011).

As discussed at oral argument, were we to accept the plain- 5

tiffs’ theory of the case, it would have significant implications

for our current legal system. All the revenue obtained by a

malfeasant company from selling a dangerous product would

be disgorged and distributed among all purchasers of the

product according to the expenses incurred by each purchaser.

The “deep pockets” of the malfeasant company would be

emptied, with little left to compensate those who were

actually injured by the product. This course appears to us

unwise, to say the least. At oral argument, counsel for the

plaintiffs suggested that a court in equity could hold back

sufficient funds to take care of those with personal-injury

claims; we suspect this would be difficult to successfully

implement in practice. 

And we hold that the mere violation of a consumer’s legal

right to know about a product’s risks, without anything

more, cannot support a claim that the manufacturer

unjustly retained the revenue from the product’s sale to

the consumer’s detriment.5

Finally, the plaintiffs have asked us to certify to the

Illinois Supreme Court the question of whether unjust

enrichment can be an independent cause of action

separate from an underlying tort, contract, or statutory
No. 10-2960 19

The plaintiffs also appeal two other related issues, but they 6

are resolved in light of our ruling. In particular, our ruling

(continued...)

claim. The most important consideration guiding our

decision to certify a question to the Illinois Supreme

Court “is whether the reviewing court finds itself genuinely uncertain about a question of state law that is vital

to a correct disposition of the case.” State Farm Mut.

Auto. Ins. Co. v. Pate, 275 F.3d 666, 671 (7th Cir. 2001)

(internal quotation omitted). Since the question about

unjust enrichment being an independent cause of action

is not vital to the disposition of the case, there is no

need for certification—regardless of the answer, we

conclude that the plaintiffs have not sufficiently alleged

a cause of action for unjust enrichment. In their reply,

the plaintiffs suggest the certification of a second question: what is needed to establish the “detriment” element

of an unjust enrichment claim. In the context of this

case, Illinois law on unjust enrichment is sufficiently

clear. Certification is not necessary. See id. at 672 (“At

some level there is uncertainty in every application of

state law. There is always a chance that a state

supreme court, if it had the same case before it, might

decide the case differently. This ever-present possibility

is not sufficient to warrant certification.”).

In sum, we conclude that the plaintiffs’ allegations of

unjust enrichment are insufficient to state a claim for

which relief can be granted. The district court correctly

dismissed the plaintiffs’ Fourth Amended Complaint

and entered judgment for the defendants.6
20 No. 10-2960

(...continued) 6

gives us reason to affirm the district court’s grant of summary

judgment on the individual claims of Rita Burke in the

Third Amended Complaint and the district court’s denial of

class certification on the “lights” claim.

8-25-11

III. Conclusion

The district court did not err by not remanding the

case to state court. Nor did the district court err by

refusing to extend the “lights” class to additional brands

besides Marlboro Lights. But most importantly, we agree

with the district court that the unjust enrichment claim,

as alleged by the plaintiffs, is not viable: a violation of

the consumer’s legal right to know about a product’s

risks, without anything more, cannot support an unjust

enrichment claim against the product’s manufacturer.

 We AFFIRM.