In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3451
M ICHAEL SIEGEL,
Plaintiff-Appellant,
v.
S HELL O IL C OMPANY,
a Delaware corporation, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-00035—Amy J. St. Eve, Judge.
A RGUED A PRIL 19, 2010—D ECIDED JULY 30, 2010
Before B AUER and S YKES, Circuit Judges, and G RIESBACH,
District Judge.
B AUER, Circuit Judge. Michael Siegel, like many Ameri-
cans, didn’t like the price he was paying for gasoline.
So he sued five of the eight largest oil companies. Siegel
Hon. William C. Griesbach, District Judge for the Eastern
District of Wisconsin, is sitting by designation.
2 No. 09-3451
moved for class certification, seeking relief under both
the Illinois Consumer Fraud and Deceptive Business
Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505/2, and the
common law doctrine of unjust enrichment. The district
court denied class certification and entered summary
judgment for the defendants. We affirm.
I. BACKGROUND
Siegel initiated this consumer class action on behalf
of himself and all others similarly situated, asserting
that the defendants acted in concert by manipulating
refinery margins and capacity to reduce the nation’s
supply of gasoline, and that this manipulation caused
him to purchase the defendants’ branded gasoline at
artificially inflated prices. Siegel testified at his deposi-
tion that he purchased gasoline out of necessity, and that
when he needed to make his purchase, he looked to
pricing, location, quality, and convenience as factors
to consider in deciding where to go, with convenience
being the number one factor in his determination. He
also testified that he continued to purchase the defen-
dants’ gasoline after he believed the defendants were
engaging in unfair conduct and that he could (and did)
purchase gasoline from non-defendants.
Instead of bringing suit under antitrust law, Siegel
brought suit under ICFA, contending the defendants’
purported manipulation of the nation’s supply of
gasoline constituted an unfair practice that resulted in
artificially inflated prices at the pump. Siegel also sought
recovery under the common law theory of unjust enrich-
No. 09-3451 3
ment, arguing that the defendants’ intentional restriction
of the nation’s supply of gasoline unjustly inflated the
price of gasoline throughout Illinois.
After first moving for certification of a nationwide
class and multi-state classes or subclasses of retail gaso-
line purchasers (which the district court denied), Siegel
moved for certification of a class comprising only Illinois
retail purchasers of gasoline, which the district court
also denied. In denying class certification, the district
court concluded that Siegel could not establish through
common proof that the allegations against the defen-
dants proximately caused harm to each member of the
putative class. This court then denied Siegel’s Fed. R. Civ.
P. 23(f) Petition for Leave to Appeal.
Then, the district court granted the defendants’ motion
for summary judgment.
Specifically, the district court held that Siegel could
not prevail under his unfair practices claim because he
failed to set forth sufficient evidence that but for the de-
fendants’ purportedly unfair conduct, he would not
have purchased their gasoline. The district court reached
its conclusion based on Siegel’s deposition testimony,
where he testified that many factors affected his gaso-
line purchases, including necessity, price, location,
quality of gasoline, convenience, and environmental
concerns, and that during the relevant time period, he
purchased gasoline from non-defendants. Further, Siegel
testified that he did not change his gasoline purchasing
habits but continued to purchase the defendants’ gasoline
even after he believed they were engaging in unfair
conduct.
4 No. 09-3451
The district court also ruled that Siegel could not
prevail on his unjust enrichment claim based on the defen-
dants’ conduct under ICFA, reasoning that because
he could not establish a private cause of action under
ICFA, unjust enrichment could not serve as the basis
for liability.
Finally, the district court entered judgment in favor of
the defendants on Siegel’s deceptive practices claim under
ICFA, his unjust enrichment claim sounding in quasi-
contract, and his civil conspiracy claim. Siegel does not
appeal these rulings.
II. DISCUSSION
ICFA “is a regulatory and remedial statute intended
to protect consumers, borrowers, and business persons
against fraud, unfair methods of competition, and other
unfair and deceptive business practices.” Robinson v.
Toyota Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002).
The elements of a claim under ICFA are: (1) a deceptive
or unfair act or practice by the defendant; (2) the defen-
dant’s intent that the plaintiff rely on the deceptive or
unfair practice; and (3) the unfair or deceptive practice
occurred during a course of conduct involving trade or
commerce. See id. at 960; see also Rickher v. Home Depot,
Inc., 535 F.3d 661, 665 (7th Cir. 2008).
A plaintiff is entitled to recovery under ICFA when
there is unfair or deceptive conduct. Robinson, 775
N.E.2d at 960. A plaintiff may allege that conduct is
unfair under ICFA without alleging that the conduct
No. 09-3451 5
is deceptive. Saunders v. Mich. Ave. Nat’l Bank, 662
N.E.2d 602, 608 (Ill. App. Ct. 1996). While charging an
unconscionably high price generally is insufficient to
establish a claim for unfairness, whether a practice is
unfair depends on a case-by-case analysis. Id. Robinson
adopted the three-prong test used by the Connecticut
Supreme Court in Cheshire Mortgage Service, Inc. v.
Montes, 612 A.2d 1130, 1143 (Conn. 1992), to determine
unfairness and held a defendant’s conduct must: (1) vio-
late public policy; (2) be so oppressive that the consumer
has little choice but to submit; and (3) cause consumers
substantial injury. 775 N.E.2d at 961. A court may find
unfairness even if the claim does not satisfy all three
criteria. Id. Robinson did not discuss Montes’ analysis
regarding what constitutes a substantial injury, but we
find it instructive: the injury must: (1) be substantial;
(2) not be outweighed by any countervailing benefits
to consumers or competition that the practice produces;
and (3) be an injury that consumers themselves could not
reasonably have avoided. Montes, 612 A.2d at 1147.
In addition, to prevail under ICFA, a plaintiff must
demonstrate that the defendant’s conduct is the proxi-
mate cause of the injury. Oliveira v. Amoco Oil Co., 776
N.E.2d 151, 160 (Ill. 2002) (“Unlike an action brought by
the Attorney General under [ICFA], which does not
require that ‘any person has in fact been misled,
deceived or damaged[,]’ . . . a private cause of action
brought under [ICFA] requires proof of ‘actual dam-
age.’ . . . [and] proof that the damage occurred ‘as a result
of’ the deceptive act or practice.” (citations omitted));
Oshana v. Coca-Cola Co., 472 F.3d 506, 514-15 (7th Cir.
6 No. 09-3451
2006); Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d
801, 861 (Ill. 2005) (“Proximate causation is an element
of all private causes of action under the Act.”). So Siegel
must set forth sufficient evidence creating a genuine
issue of material fact that “but for” the defendants’
unfair conduct, he would not have been damaged, i.e.,
he would not have purchased the defendants’ gasoline
at artificially inflated prices.
A. Class Certification
Siegel appeals the district court’s ruling denying his
motion for certification of an Illinois consumer class (and
its ruling denying his motion for reconsideration). We
review the district court’s decision to deny class certi-
fication for abuse of discretion. Payton v. County of
Carroll, 473 F.3d 845, 847 (7th Cir. 2007).
A district court may certify a class of plaintiffs if the
putative class satisfies all four requirements of Federal
Rule of Civil Procedure 23(a)—numerosity, commonality,
typicality, and adequacy of representation—and any one
of the conditions of Rule 23(b). Oshana, 472 F.3d at 513.
Under Rule 23(b)(3), a district court must determine
whether “the questions or fact common to class mem-
bers predominate over any questions affecting only
individual members, and that a class action is superior
to other available methods for fairly and efficiently ad-
judicating the controversy.”
Here, Siegel sought certification of “[a]ll purchasers
who made retail purchases of any Defendants’ branded
No. 09-3451 7
gasoline in Illinois during the period from and including
December 2, 2000, through and including September 5,
2008.” Without needing to address the Rule 23(a) re-
quirements, the district court denied class certification
finding that Siegel failed to demonstrate that common
class issues predominated over individual issues under
Rule 23(b)(3). In reaching this decision, the district court
focused on the elements of an ICFA claim and con-
cluded that it would be required to make individual
determinations concerning why a plaintiff bought gaso-
line from a particular supplier (e.g., price, necessity,
convenience, location, or quality of gasoline) to discern
whether the defendants’ conduct proximately caused
each plaintiff’s injuries. Because of the need for individ-
ualized proof of causation, the district court held that
common class issues did not predominate.
On appeal, Siegel argues that the defendants’ unfair
conduct can readily be proven on a class-wide basis
without the need for individual determinations. He
asserts that inquiry into the circumstances surrounding
each individual class member’s gasoline purchases is not
necessary because he can establish proximate cause
through the following: “(1) Defendants conspired to
artificially raise the retail price of gasoline; (2) Plaintiff
and Class members purchased Defendants’ branded
gasoline; (3) Plaintiff and Class members had no mean-
ingful opportunity to avoid paying the higher retail price;
and (4) Plaintiff and Class members were damaged by
way of paying the higher retail gasoline prices
than they would have paid absent Defendants’ conduct.”
Pl. Br. at 18. He cites Windy City Metal Fabricators &
8 No. 09-3451
Supply, Inc. v. CIT Technical Fin., 536 F.3d 663, 672 (7th Cir.
2008), to support his argument that proximate cause is
established merely by asserting plaintiffs suffered a loss
as a result of a defendant’s conduct.
Siegel’s arguments are not persuasive. According to
Siegel, proof that plaintiffs purchased gasoline during
a specified time period is sufficient to prove that they
suffered harm based on the defendants’ conduct. How-
ever, Siegel cannot establish that the plaintiffs pur-
chased gasoline for the same reason. Indeed, Siegel
himself has named a number of factors he considers in
determining where to purchase his gasoline. And absent
proof as to why a particular plaintiff purchased a par-
ticular brand of gasoline, Siegel cannot establish that the
defendants’ conduct caused him or her to make that
purchase. See Robinson, 775 N.E.2d at 962 (oppression
not proved because plaintiffs could have “gone else-
where” to lease a car and avoid defendant’s penalty
provisions). Siegel’s own testimony that he could—and
did—purchase gasoline from non-defendants under-
mines his claim that he “had no meaningful opportunity
to avoid paying the higher retail price,” and thus,
whether or not a class member could have avoided the
defendants’ conduct is an individualized question of
fact. Windy City is distinguishable because there we
reversed the district court after it had erroneously dis-
missed an ICFA claim under a heightened pleading
standard.
We conclude that the district court did not abuse
its discretion in determining that questions of fact com-
No. 09-3451 9
mon to class members did not predominate over any
questions affecting only individual members.
B. Unfair Practices and Unjust Enrichment
We now proceed to analyze the district court’s entry
of summary judgment against Siegel on his individual
ICFA unfair practices claim and unjust enrichment
claim sounding in tort. On appeal, Siegel does not con-
tend that the defendants’ conduct was deceptive,
does not dispute that the price he paid was clearly ad-
vertised at the gasoline station, and does not argue that
he had to purchase the defendants’ branded gasoline.
But, Siegel maintains that the defendants engaged in
unfair practices by manipulating gasoline prices and
that, as a result of the defendants’ conduct, he paid
too much for their gasoline.
Summary judgment is the “put up or shut up” moment
in a lawsuit. Johnson v. Cambridge Indus., Inc., 325 F.3d 892,
901 (7th Cir. 2003), reh’g denied. Once a party has made
a properly-supported motion for summary judgment,
the nonmoving party may not simply rest upon the
pleadings but must instead submit evidentiary mate-
rials that “set forth specific facts showing that there is
a genuine issue for trial.” Fed. R. Civ. P. 56(e). The non-
moving party must do more than simply show that there
is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). The mere existence of a scintilla of
evidence in support of the nonmoving party’s position
will be insufficient to survive a summary judgment
10 No. 09-3451
motion; there must be evidence on which the jury
could reasonably find in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We
review the grant of summary judgment de novo. Priebe
v. Autobarn, Ltd., 240 F.3d 584, 587 (7th Cir. 2001).
We can sympathize with Siegel’s contention that gaso-
line is expensive. No one likes to pay high prices for
gasoline. Or for any commodity. But absent proof that
but for the defendants’ conduct, he would not have pur-
chased the defendants’ gasoline, he is not entitled to
relief under ICFA. While it is true that Siegel need not
establish all three criteria of unfairness under Robinson
to establish his ICFA claim, he must prove causation, i.e.,
that he was harmed and that the defendants’ conduct
caused his harm.
We conclude that Siegel does not satisfy either prong
of proximate causation: he fails to show that he was
harmed and he fails to demonstrate that the defendants’
conduct caused him harm. Even if Siegel could establish
that the defendants’ conduct was unfair, in order to
establish harm under Montes, Siegel must still show that
he suffered substantial injury, and that he could not
avoid this injury. 612 A.2d at 1147. Siegel cannot estab-
lish harm because he testified that he could (and
did) purchase gasoline from stations owned by non-
defendants, and that he continued to purchase gasoline
from the defendants even after he brought this lawsuit.
And Siegel cannot show that the defendants’ conduct
caused him to purchase their gasoline, because many
factors contributed to Siegel’s gasoline purchasing deci-
No. 09-3451 11
sion; his claim that the defendants’ conduct caused him
to purchase their gasoline at “artificially inflated prices”
is therefore undermined.
His unjust enrichment claim carries similar short-
comings. To state a cause of action based on a theory of
unjust enrichment, a plaintiff must allege that the defen-
dant 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 claim of
unjust enrichment “is not a separate cause of action that,
standing alone, will justify an action for recovery.”
Martis v. Grinnell Mut. Reinsurance Co., 905 N.E.2d 920, 928
(Ill. App. Ct. 2009). Here, Siegel’s theory of unjust enrich-
ment is based on the defendants’ conduct which he
deemed unfair under ICFA. We rejected his ICFA claim.
And absent that the defendants engaged in an unfair
practice, Siegel’s unjust enrichment claim is not viable.
See Ass’n Ben. Servs., Inc. v. Caremark RX, Inc., 493 F.3d
841, 855 (7th Cir. 2007).
III. CONCLUSION
For the reasons stated above, the denial of class cer-
tification and judgment in favor of the defendants are
A FFIRMED.
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