Preview
FILED
7/25/2022 4:25 PM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
COUNTY DEPARTMENT, CHANCERY DIVISION CIRCUIT CLERK
COOK COUNTY, IL
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
2020CH04183
CITY OF CHICAGO, a municipal ) Calendar, 3
corporation, ) 18811763
)
Plaintiff, )
Case No. 2020-CH-04183
)
v. )
Hon. Allen P. Walker
)
JUUL LABS, INC., et al., )
)
Defendants. )
DEFENDANT JUUL LABS, INC.’S OPPOSITION TO
THE CITY OF CHICAGO’S MOTION FOR PARTIAL SUMMARY JUDGMENT
The City of Chicago’s (“City”) Motion for Partial Summary Judgment (the “Motion”) is
premised on the demonstrably wrong—yet oft-repeated—assertion that “JUUL shipped its
products to an end user without performing any age verification” and fundamentally erroneous
legal analysis as to what constitutes “an unfair method of competition.” The Motion therefore
presents genuine issues of material fact that preclude summary judgment and fails as a matter of
law.
First, since the day it began selling products in the United States, JLI, with the assistance
of a leading provider of age-verification services, Veratad, has taken numerous steps to verify the
age of all of its online customers before shipping its products. As demonstrated by the very
depositions cited by the City, JLI adopted and implemented one of the most stringent age-
verification policies within the e-cigarette industry. Indeed, as a Veratad representative
recognized, “JUUL was the driving force behind adding more identity verification to their
processes, and our other clients followed them.” Among other things, JLI’s online customers
were first required to submit their name, date of birth, and address for age verification. Veratad
would then take that information and (i) match the data to an individual in Veratad’s public records
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database; (ii) determine whether that individual met the JLI-supplied age requirements for each
jurisdiction; and (iii) confirm that the individual was alive. If Veratad could not verify the
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
customer’s information, it gave the customer the option to provide further information to prove he
or she was of legal age. Thus, while the Motion is premised on the claim that JLI shipped its
products to online customers without performing any age verification, that is simply incorrect.
This evidence of JLI’s age-verification efforts alone requires denying the Motion because it shows
that genuine issues of material fact exist as to the City’s claim that JLI performed no age
verification.
Second, even if genuine issues of material fact did not exist, in pursuing the novel legal
theory underlying its claims, the City is attempting to expand a statute regulating “unfair method[s]
of competition” far beyond its intended scope. Indeed, the very cases the Motion relies upon
demonstrate that JLI’s practice of shipping products to individuals and/or addresses other than the
account name and/or address does not constitute an “unfair method of competition.” Nor does the
City cite any evidence that it has brought claims against other sellers of age-restricted items based
on this statute, further demonstrating that the facts here are inapplicable to the City’s theory.
Indeed, the three factors that courts consider when evaluating a claim such as the City’s—
specifically, whether the conduct was immoral, caused substantial injury to consumers, and
violated public policy—further establish that JLI’s purported actions do not constitute an “unfair
method of competition.” For each of these factors, the evidence is either undisputed in JLI’s favor
or otherwise disputed:
● Immoral Conduct: There are genuine issues of material fact regarding the morality of
JLI’s conduct. The Motion asserts that JLI’s conduct was immoral because “JUUL has
failed to conduct age verification.” But every JLI customer was age verified. The fact
that some customers had their orders shipped to non-account addresses (for example,
to their office) does not mean that JLI failed to age verify its customers or otherwise
support any inference that JLI’s conduct was somehow immoral.
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● Substantial Injury: The City provides no evidence that JLI’s conduct caused
substantial injury and instead claims that JLI “could have” exposed youth to JUUL
products. But there is no evidence that Chicago youth obtained JUUL products as a
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
result of JLI online shipments to non-account addresses or names. Further, the City’s
own position is that the “most common source” for youths obtaining e-cigarettes is
from brick-and-mortar stores, not online. Compl. ¶ 10.
● Against Public Policy: JLI’s conduct did not violate any local policy or law requiring
account and shipping addresses and names to match. There is no Chicago ordinance
regulating online sales of tobacco products even though several states enacted such
laws, and JLI continued to apply its industry-l eading age verification procedures to all
online sales. Further, if such a public policy truly existed, then there should be a long
track record of the City taking enforcement actions against various companies in age-
restricted industries. The City cites none.
Significantly, the data that the Motion exclusively relies on—namely, information the City
took from a spreadsheet of JLI’s online sales—does not conclusively establish the age of JLI’s
customers, and therefore cannot be used to establish that JLI made online sales to underage
consumers. Instead, as JLI informed the City before it filed its Motion, the spreadsheet did not
always record each customer’s age (given limitations and complexities in how the underlying data
was stored, as discussed below). Most importantly, and contrary to what the Motion suggests, this
spreadsheet certainly did not reflect all of the age-verification procedures that accompanied each
JLI sale.
Notwithstanding these fundamental flaws, the Motion seeks extraordinary relief.
Specifically, the Motion seeks declarations that (i) JLI violated the Municipal Code of Chicago
more than 37,000 times (which the City has asserted could subject JLI to a fine exceeding $370
million) and (ii) a permanent injunction against JLI making further online sales into Chicago until
it changes its online sales practices.
As discussed above and in greater detail below, JLI did not violate the Municipal Code of
Chicago. And, even if this Court reaches the question of remedies, the City’s request for an
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injunction is moot. JLI stopped making online sales to Chicago addresses over a year ago, as is
plainly stated on JLI’s webpage. 1
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
Accordingly, the Motion should be denied.
STATEMENT OF ADDITIONAL FACTS
A. JLI conducts extensive, industry-leading online age-verification.
The Motion rests on the false premise that “JUUL shipped its products to an end user
without performing any age verification.” Mot. 1.
Since the day JLI began selling its devices in the United States on June 1, 2015, JLI has
age-verified every online sale. Ex. 1, E. Jacobs Dep. (MDL) at 244:2-13; Ex. 2, D. Black Dep.
(CAAG) at 239:10-19. JLI is an industry-leader in age verification, with financial institutions and
companies in other industries “looking to potentially emulate” its practices. Ex. 3, T. Canfarotta
Dep. (NCAG) at 702:17-703:10. A leading provider of age-verification services recognized that
“JUUL was the driving force behind adding more identity verification to their processes, and our
other clients followed them.” Id. at 148:21-149:5. In fact, JLI has had one of the most stringent
age-verification policies within the e-cigarette industry. Id. at 170:4-19.
JLI became a leader by adopting a rigorous baseline level of age-verification steps and then
continually enhancing those steps as it learned how certain customers might attempt to unlawfully
circumvent JLI’s online age-verification process. At launch in June 2015, JLI had the following
five-step age-verification process in place, among others:
1
Are there places in the US where you can’t ship?, Juul Support, https://support.juul.com/s/article/Are-there-
places-in-the-US-where-you-cant-ship-UnitedStates#:~:text=We%20currently%20can't%20ship,Delaware (last
visited July 24, 2022)
4
Step 1. A customer would visit www.juul.com. Juul.com was an age-gated website, which
meant that all customers were required to confirm they were of age to access the website. Ex. 4,
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
E. Jacobs Dep. (NCAG) at 67:18-24.
Step 2. When making a purchase, the customer would input his or her first and last name,
date of birth, and address. Id. at 67:18-68:9. All of this information would then be sent to JLI’s
age-verification vendor, Veratad. Id. Veratad was an industry-leading age-verification company
with thousands of clients, including in industries with age and other restrictions, such as financial
services, alcohol, e-cigarettes, cigars, and cigarettes (Veratad’s clients included two of the top three
cigarette brands). Id. at 55:17-56:14; Ex. 3, T. Canfarotta (NCAG) Dep. at 28:12-16, 351:4-7,
654:4-15.
Step 3. Veratad would then perform three checks on the customer-submitted information
utilizing Veratad’s Data Match 5.0 matching methodology. Veratad would seek to: (i) match the
data to an individual in trusted public records databases; (ii) determine whether that individual met
the JLI-supplied age requirements for each jurisdiction; and (iii) confirm that the individual was
alive. Ex. 3, T. Canfarotta Dep. (NCAG) at 30:2-8, 43:8-45:8. If Veratad could not verify the
customer’s information with a living adult at this stage, it gave the customer the option to provide
two additional pieces of personal information. Ex. 4, E. Jacobs Dep. (NCAG) at 138:10-140:4. In
the first submission, the customer could enter an alternative address for age-verification
purposes. Id. at 138:10-139:5. In the second submission, the user could enter the last four
digits of his or her social security number (or provide certain other information). Ex. 3, T.
Canfarotta Dep. (NCAG) at 100:17-101:4; Ex. 4, E. Jacobs Dep. (NCAG) at 139:17-140:9.
Veratad would then use those data inputs in conjunction with the previously-provided name,
date of birth, or address
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to attempt to locate a verified, living adult. Ex. 3, T. Canfarotta Dep. (NCAG) at 98:3-99:25,
710:23-712:18.
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
Step 4. If Veratad could not match the customer’s information with a verified, living adult
via Step 3, the customer could upload a form of government-issued identification, such as a
driver’s license, for review. Ex. 4, E. Jacobs Dep. (NCAG) at 67:18-70:5, 73:25-75:4; Ex. 3, T.
Canfarotta Dep. (NCAG) at 33:17-34:5.
Step 5. A customer service supervisor would review the ID to evaluate whether it was fake
and would compare the ID to the information the customer initially submitted. Ex. 4, E. Jacobs
Dep. (NCAG) at 73:24-75:22.
In addition to this multi-step age-verification process, since launch, JLI has also used a
third-party fraud detection platform that reviews orders for suspicious activity and blacklists
information to prevent future orders from using the same information. This additional step allows
JLI to block suspicious transactions. Ex. 1, E. Jacobs (MDL) at 479:1-480:10, 503:23-504:5; Ex.
4, E. Jacobs (NCAG) at 87:6-89:13. If, for example, JLI received complaints of minors purchasing
products with a parent’s information, JLI would blacklist the information from being used for
future purchases and block the account from being used again. Ex. 1, E. Jacobs (MDL) Dep. at
129:4-130:1, 502:22-504:5.
Only if a prospective customer passed these steps, among others, could the customer
complete his or her online purchase of JUUL products. Ex. 4, E. Jacobs Dep. (NCAG) at 67:18-
70:5. Then, an adult had to sign for the shipment upon delivery. 2 Id. at 67:18-70:5.
2
From launch in June 2015 until November 2016, an adult had to sign for all shipments. Ex. 4, E. Jacobs Dep.
(NCAG) at 67:18-70:5, 791:4-8. In August 2017, JLI required an adult signature for orders where the customer
shipped JUUL products to a different name. Ex. 5, JIRA Entries (JLI01018338 at JLI01018375-80). In October
2018, JLI prohibited customers from shipping to a name they did not use to complete age verification. Ex. 4, E.
Jacobs Dep. (NCAG) at 369:15-370:7. Therefore, out of the 1,408 sales where the account and shipping name
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Following launch, JLI continually upgraded its age verification process, see id. at 71:14-
22, including by taking the following additional measures:
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
● In 2017, JLI added Veratad’s DCAMS+ automated service for “ID document scanning
and validation” to its process for reviewing uploaded IDs at Step 5, above. Ex. 3, T.
Canfarotta Dep. (NCAG) at 35:7-36:6. The DCAMS+ service included extracting the
data from the customer-submitted ID, matching that extracted information to
information the customer already had submitted at earlier steps, and determining that
the ID was not expired. Id. at 35:7-24.
● In May 2018, JLI blocked email accounts originating from various high school domains
from registering on JLI’s website (a required step for placing an order). Ex. 1, E. Jacobs
Dep. (MDL) at 348:11-353:11.
● In June 2018, JLI modified Step 3, above, and required that customers submit the last
four digits of their social security number, and that those four digits exactly match those
associated with the verified individual found in a public record. Ex. 4, E. Jacobs Dep.
(NCAG) at 751:11-21; Ex. 3, T. Canfarotta Dep. (NCAG) at 721:9-721:14. JLI was
one of the first companies in the industry to adopt this requirement. Id. at 721:9-722:7.
● Around November 2018, JLI hired Jumio for identification and photo verification
services at Step 5, above, adding a real-time “selfie” as an additional age-verification
requirement at Step 4, above. Ex. 1, E. Jacobs Dep. (MDL) at 364:11-365:12; Ex. 4,
E. Jacobs (NCAG) Dep. at 99:16-23. Jumio was a leading ID verification company
that utilized algorithms, facial recognition technology, and a manual review to analyze
documents and determine whether an individual would pass or fail age verification.
Ex. 4, E. Jacobs (NCAG) Dep. at 763:13-765:6.
● In May 2020, JLI hired Berbix, which specialized in fake ID detection, to take over
identification and photo verification services at Step 5, above, and implemented an
enhanced real-time “selfie” to prove the photo submitted at Step 4, above, was a living
person. Ex. 4, E. Jacobs (NCAG) Dep. at 100:15-103:10, 774:23-779:10.
Given these extensive efforts, it should come as no surprise that, after two years of
litigation, the City has challenged a mere 175 of the more than 194,000 (<0.1%) online sales
shipped to Chicago addresses between June 2015 and December 2019 as having allegedly been
made to underage consumers. See City’s Ex. B; Ex. 6, D. Black Aff. ¶ 4.
do not match, only approximately 445 were made at a time when an adult signature was not required. See City
Ex. B.
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B. JLI’s spreadsheet of online sales to Illinois.
The City’s primary evidence in support of summary judgment is a JLI-produced
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
spreadsheet showing JLI’s historical online sales in Illinois.
JLI created spreadsheets of e-commerce data in response to discovery requests in other
litigation. See Ex. 7, E. Schwartz Dep. (CAAG) 74:6-75:12, 141:11-142:4. Creating the
spreadsheets was complex and required the efforts of at least ten individuals, weeks of work, and
the writing of over a thousand lines of code. Ex. 7, E. Schwartz Dep. (CAAG) at 256:15-258:16,
259:7-13. All of this work was largely required because the spreadsheets draw from over four
years of historical sales data pulled from multiple databases with thousands of data fields. City’s
Ex. B; Ex. 2, D. Black Dep. (CAAG) at 57:2-10, 100:25-101:15, 184:10-24. These efforts were
further complicated because JLI required different information at different times in order to
complete an online sale, and even the same (or similar) information was sometimes stored in
different formats and locations over time. For example, a JLI customer was not always required
to open an account to make an online purchase. Ex. 4, E. Jacobs Dep. (NCAG) at 417:22-419:13.
And sometimes age-verification fields are blank in the spreadsheet, even though the customer was
age-verified, because JLI age-verified the customer before the creation of the specific data field
that was later migrated to JLI’s spreadsheet. Ex. 2, D. Black Dep. (CAAG) at 238:19-239:19.
On top of these complexities, there were also bugs in how the systems recorded the data or
imported it into the spreadsheet. For example, the spreadsheet contains instances where the date
in a field labeled “date of birth” appears in the future. See, e.g., City’s Ex. B, Rows 561, 2467,
2838, 4820, 5580, 8707, 11265, 14218, 14582, 17758, 18149, 18306, 19767, 23609, 24253, 25408,
27361, 28615, 30346, 30350, 31386, 33150, 35966, 36379.
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Due to the complexity of the data, it was difficult for JLI engineers to fully reconstruct how
each field was used, the role of each field relative to age-verification, and the relationship of the
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fields to each other. Ex. 7, E. Schwartz Dep. (CAAG) at 166:22-167:16. As a result, JLI’s
spreadsheet has limitations. See Ex. 6, D. Black Aff. ¶ 5. Most importantly, the spreadsheet does
not comprehensively record the full suite of age-verification steps contemporaneously taken for a
sale. Id. ¶¶5. And when the data was populated onto the spreadsheet, it sometimes did not reflect
the actual data that JLI had captured at the time of sale. Id. ¶ 5.
Ultimately, the spreadsheet cannot be used for the purpose that the City seeks to use it
here—to establish that underage consumers received JUUL products through JLI’s online system.
In order to do that, the City had to actually identify such individuals and obtain relevant
information from them (as it did when it brought claims against JLI’s former co-defendants,
various brick-and-mortar retailers who subsequently settled out of the case, Compl. ¶¶ 91-96). But
the City has failed to do so with respect to JLI.
LEGAL STANDARD
Summary judgment is only warranted if “there is no genuine issue as to any material fact.”
Gatlin v. Ruder, 137 Ill.2d 284, 293 (1990). At this stage, the Court must construe the evidence
strictly against the movant. Gillespie v. Edmier, 2020 IL 125262, ¶ 9. Because
“[s]ummary judgment is a drastic means of disposing of litigation,” it “should be allowed only
when the right of the moving party is clear and free from doubt.” Gatlin, 137 Ill.2d at 293. That
is not the case here.
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ARGUMENT
I. Summary judgment on the City’s unfair practices claim is improper because the
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
evidence in support of each factor is either undisputed in JLI’s favor or disputed.
The Motion contends that permitting age-verified customers to ship to a different name
(1,408 instances) or address (36,415 instances) is an “unfair method of competition” under M.C.C.
§ 2-25-090. Mot. 7-8. That is wrong for two reasons. As a matter of law, seeking to hold JLI
liable for shipping its products to names and addresses different than the adult purchaser’s goes
well beyond the intended scope of the City’s “unfair method of competition” ordinance. In
addition, there are numerous disputed issues of fact that preclude summary judgment.
A. JLI’s alleged sales to names and addresses that differ from the adult
purchaser’s do not legally constitute “unfair method[s] of competition.”
M.C.C. § 2-25-090 is a consumer protection statute. It protects consumers from businesses
that “engage in any act of consumer fraud, unfair method of competition, or deceptive practice
while conducting any trade or business in the city.” M.C.C. § 2-25-090(a) (emphasis added).
Here, the fact that JLI’s e-commerce data shows JLI shipped certain products to names and
addresses different than the adult purchaser’s does not demonstrate a violation of M.C.C. § 2-25-
090. To the contrary, the City’s attempt to invoke the statute in the context of underage sales of
age-restricted products sweeps far beyond the scope of M.C.C. § 2-25-090. The City does not
identify any case in which the City (let alone any other government entity in Illinois) has applied
an unfair practices statute to underage online sales, such as to enjoin online sales of alcohol, CBD-
derived products, fireworks, or even other vaping products. Thus, the City fails to cite any instance
in which it, or anyone else, has successfully invoked the statute to hold a manufacturer employing
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online verification procedures to age-restricted products liable or to effectively regulate their
online sales. 3
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If the City wanted to regulate the online sale of tobacco products, it should have enacted a
specific ordinance to that effect, as the Illinois legislature later did. See 720 ILCS 678/1 et seq.
The fact that the Illinois Legislature concluded it was necessary to pass a new law to impose such
standards in 2021 demonstrates there is no basis for liability under the statute the City invokes
here. Had the Legislature believed that the statute the City invokes—which, like the Illinois
statute, 815 ILCS 505/2, makes unlawful “unfair methods of competition”—prohibited such
procedures, there would have been no need for the enactment of new legislation specifically doing
so. The City’s Motion therefore represents an attempt to circumvent the express law that governs
the transactions at issue here.
In addition, the practical effect of the City’s interpretation of its unfair practices ordinance
would open numerous businesses in a variety of industries (many of which employed less stringent
procedures than JLI, see Ex. 3, T. Canfarotta Dep. (NCAG) at 148:21-149:5, 170:4-19, 702:17-
703:10) to liability simply because the City alleges that, based on hindsight, the businesses could
3
The City’s own cases confirm that M.C.C. § 2-25-090 was not intended to address the type of conduct alleged
here. All of those cases involve consumers who either were allegedly misled or had an unreasonable burden
placed on them. For example, in City of Chicago v. Purdue Pharma L.P., the City alleged that defendants used
“misleading messages about the use of opioids.” 211 F. Supp. 3d 1058, 1062 (N.D. Ill. 2016). In U.S. v. Philip
Morris USA, Inc., the government alleged that defendants had conspired “to deceive the American public about
the health effects of smoking.” 449 F. Supp. 2d 1, 26 (D.D.C. 2006). And in Ekl v. Knecht, a plumber had coerced
the plaintiff into paying oppressive rates. 223 Ill. App. 3d 234, 238-39, 242 (2d Dist. 1991). The City’s remaining
cases are no different. See Perona v. Volkswagen of Am., Inc., 292 Ill.App. 3d 59, 65 (1st Dist. 1997) (alleging
“defendants knowingly concealed … defects from the public”); In re Smith, 866 F.2d 576, 581-82 (3d Cir. 1989)
(alleging “invalid service of process” or failing to provide adequate pre-foreclosure notice); People ex rel.
Madigan v. United Const. of Am., Inc., 2012 IL App (1st) 120308, ¶¶ 9, 16 (alleging defendants made
misrepresentations to potential consumers); City of Chicago v. DoorDash, Inc., 2022 U.S. Dist. LEXIS 41635, at
*1 (N.D. Ill. Mar. 9, 2022) (alleging undisclosed inflated prices and concealing “the true cost of delivery fees”);
Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d. 403, 410 (2002) (alleging defendant failed “to allow early
termination or disclose penalties for early termination” and failed to disclose applicable taxes).
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have used some different procedures or a small percentage of online sales somehow “slipped
through the cracks.”
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In short, M.C.C. § 2-25-090 is simply not applicable here.
B. There are disputed issues of fact on each of the three unfair practices factors.
Even if the City’s ordinance applied here (and it does not), the facts either refute the State’s
theory or, at a minimum, are in dispute, rendering summary judgment inappropriate. When
evaluating whether a business practice constitutes an “unfair method of competition,” courts assess
whether the practice (1) is immoral, unethical, oppressive, or unscrupulous; (2) causes substantial
injury to consumers; and (3) offends public policy. Robinson v. Toyota Motor Credit Corp., 201
Ill.2d 403, 417-18 (2002). This is necessarily a fact-intensive inquiry that requires “a case-by-case
analysis.” Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010). As such, courts can rarely
resolve these case-specific questions on summary judgment. See Adams v. N. Illinois Gas Co.,
211 Ill. 2d 32, 42-43 (2004) (“[t]he purpose of summary judgment is not to try a question of fact”).
This case is no exception, and the Motion’s evidence on the three factors is far from “clear and
free from doubt.” Gatlin, 137 Ill.2d at 293. To the contrary, the evidence on each of the three
unfair practices factors is either undisputed in JLI’s favor or disputed, either of which preclude
summary judgment at this early stage of the case.
1. JLI’s conduct did not limit consumer options or burden them, and thus
cannot be immoral, unethical, oppressive, or unscrupulous.
The Motion takes issue with JLI having allowed its age-verified customers to choose where
to ship the JUUL products they purchased, even though other sellers of age-restricted products
similarly provide customers with this choice. Mot. 9. Such conduct cannot be characterized as
“immoral, unethical, oppressive, or unscrupulous” as is required under the City’s ordinance. A
practice is considered immoral, unethical, oppressive, or unscrupulous only when it “imposes a
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lack of meaningful choice or an unreasonable burden on the consumer.” Garrett v. RentGrow,
Inc., 2005 U.S. Dist. LEXIS 13210, at *3 (N.D. Ill. July 1, 2005) (citing Robinson, 201 Ill. 2d at
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
419-20); see also Saunders v. Michigan Ave. Nat. Bank, 278 Ill. App. 3d 307, 313 (Ill. App. 1st
1996) (conduct must be “so oppressive as to leave the consumer with little alternative but to
submit”); Toulon v. Continental Cas. Co., 877 F.3d 725, 741 (7th Cir. 2017) (because the claimant
was not required to buy an insurance policy, the court found “a total absence of the type of
oppressiveness and lack of meaningful choice necessary to establish unfairness”).
Here, the fact that JLI completed online sales in Chicago where the account address or
account name purportedly did not match the shipping address or shipping name did not burden
consumers or impose lack of meaningful choice. Rather, JLI offered its customers more choices,
and “[o]ffering a choice to a potential customer is not immoral, unethical, oppressive or
unscrupulous.” Flores v. United Airlines, 426 F. Supp. 3d 520, 531 (N.D. Ill. 2019). Specifically,
after verifying a customer’s age, JLI allowed that customer to select what address to ship the JUUL
products to in Chicago.
The reasonable inference from the evidence at summary judgment, which must be drawn
in JLI’s favor, shows that JLI’s customers preferred having these checkout options for shipments
to Chicago. And, as most relevant here, the fact that JLI allowed its age-verified customers to ship
their purchases to non-account addresses clearly does not burden customers or impose a lack of
meaningful choice.
Looking at just a few of the sales records identified by the City shows JLI customers often
sent JUUL products to their offices. For example, at least 22 shipments were made to 300 N.
LaSalle, where the undersigned counsel works. City’s Ex. B, Rows 2786, 3805, 4627, 7127,
10228, 10229, 11408, 12448, 17645, 19092, 19283, 19679, 20641, 22665, 25878, 27203, 28927,
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29929, 31169, 31449, 31478, 32702. Another 14 shipments were made to the Sears Tower. Id.,
Rows 1123, 5186, 5422, 6437, 9179, 10686, 12758, 15028, 15892, 18474, 22293, 27923, 28759,
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29370.
Indeed, such features have been, and still are, used with many age-restricted products sold
online, including to Chicago consumers. Consumers visiting Wine.com (www.wine.com) can
send a bottle of Dom Perignon to their house or office, or send a gift to a friend. The same is true
for consumers who visit Cocktail Courier (www.cocktailcourier.com) or Corona Cigar
(www.coronacigar.com). Despite the fact that these common procedures were openly employed
by JLI and popular online sellers of other age-restricted products, the City gives no instance in
which it complained of such procedures until now, much less brought a lawsuit that successfully
enjoined them.
But the Motion never attempts to grapple with these practical realities—or even, for that
matter, the appropriate legal standard. Instead, the Motion misapplies the morality factor and
argues that JLI’s conduct was immoral because it purportedly enabled underage use of e-cigarettes.
Mot. 9. But even if the Motion was correct on the law (and it is not), the evidentiary record
demonstrates that JLI’s conduct was far from “immoral,” as it hired industry-leading vendors to
implement its state-of-the-art age-verification policy and procedures.
As described above, JLI always age-verified its customers, and always complied with—
and often went beyond—local requirements. In particular, JLI typically required that an adult sign
for the delivery of any JUUL products sent to someone other than the individual ordering. Ex. 4,
E. Jacobs Dep. (NCAG) at 67:18-70:5, 791:4-8; Ex. 5, JIRA Entries (JLI01018338 at
JLI01018375-80). The City simply has no evidence that any underage user actually received and
used JUUL products from an online sale.
14
In short, JLI’s customer-driven practices simply were not immoral or oppressive, as
confirmed by the fact that the City does not cite a single case holding that such practices employed
FILED DATE: 7/25/2022 4:25 PM 2020CH04183
by any other company in an age-restricted industry were immoral or oppressive. The Motion
ignores the relevant legal test and relies on evidence that is clearly in dispute.
2. JLI’s online sales did not cause injury, much less substantial injury
Preview
FILED 7/25/2022 4:25 PM IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ COUNTY DEPARTMENT, CHANCERY DIVISION CIRCUIT CLERK COOK COUNTY, IL FILED DATE: 7/25/2022 4:25 PM 2020CH04183 2020CH04183 CITY OF CHICAGO, a municipal ) Calendar, 3 corporation, ) 18811763 ) Plaintiff, ) Case No. 2020-CH-04183 ) v. ) Hon. Allen P. Walker ) JUUL LABS, INC., et al., ) ) Defendants. ) DEFENDANT JUUL LABS, INC.’S OPPOSITION TO THE CITY OF CHICAGO’S MOTION FOR PARTIAL SUMMARY JUDGMENT The City of Chicago’s (“City”) Motion for Partial Summary Judgment (the “Motion”) is premised on the demonstrably wrong—yet oft-repeated—assertion that “JUUL shipped its products to an end user without performing any age verification” and fundamentally erroneous legal analysis as to what constitutes “an unfair method of competition.” The Motion therefore presents genuine issues of material fact that preclude summary judgment and fails as a matter of law. First, since the day it began selling products in the United States, JLI, with the assistance of a leading provider of age-verification services, Veratad, has taken numerous steps to verify the age of all of its online customers before shipping its products. As demonstrated by the very depositions cited by the City, JLI adopted and implemented one of the most stringent age- verification policies within the e-cigarette industry. Indeed, as a Veratad representative recognized, “JUUL was the driving force behind adding more identity verification to their processes, and our other clients followed them.” Among other things, JLI’s online customers were first required to submit their name, date of birth, and address for age verification. Veratad would then take that information and (i) match the data to an individual in Veratad’s public records 1 database; (ii) determine whether that individual met the JLI-supplied age requirements for each jurisdiction; and (iii) confirm that the individual was alive. If Veratad could not verify the FILED DATE: 7/25/2022 4:25 PM 2020CH04183 customer’s information, it gave the customer the option to provide further information to prove he or she was of legal age. Thus, while the Motion is premised on the claim that JLI shipped its products to online customers without performing any age verification, that is simply incorrect. This evidence of JLI’s age-verification efforts alone requires denying the Motion because it shows that genuine issues of material fact exist as to the City’s claim that JLI performed no age verification. Second, even if genuine issues of material fact did not exist, in pursuing the novel legal theory underlying its claims, the City is attempting to expand a statute regulating “unfair method[s] of competition” far beyond its intended scope. Indeed, the very cases the Motion relies upon demonstrate that JLI’s practice of shipping products to individuals and/or addresses other than the account name and/or address does not constitute an “unfair method of competition.” Nor does the City cite any evidence that it has brought claims against other sellers of age-restricted items based on this statute, further demonstrating that the facts here are inapplicable to the City’s theory. Indeed, the three factors that courts consider when evaluating a claim such as the City’s— specifically, whether the conduct was immoral, caused substantial injury to consumers, and violated public policy—further establish that JLI’s purported actions do not constitute an “unfair method of competition.” For each of these factors, the evidence is either undisputed in JLI’s favor or otherwise disputed: ● Immoral Conduct: There are genuine issues of material fact regarding the morality of JLI’s conduct. The Motion asserts that JLI’s conduct was immoral because “JUUL has failed to conduct age verification.” But every JLI customer was age verified. The fact that some customers had their orders shipped to non-account addresses (for example, to their office) does not mean that JLI failed to age verify its customers or otherwise support any inference that JLI’s conduct was somehow immoral. 2 ● Substantial Injury: The City provides no evidence that JLI’s conduct caused substantial injury and instead claims that JLI “could have” exposed youth to JUUL products. But there is no evidence that Chicago youth obtained JUUL products as a FILED DATE: 7/25/2022 4:25 PM 2020CH04183 result of JLI online shipments to non-account addresses or names. Further, the City’s own position is that the “most common source” for youths obtaining e-cigarettes is from brick-and-mortar stores, not online. Compl. ¶ 10. ● Against Public Policy: JLI’s conduct did not violate any local policy or law requiring account and shipping addresses and names to match. There is no Chicago ordinance regulating online sales of tobacco products even though several states enacted such laws, and JLI continued to apply its industry-l eading age verification procedures to all online sales. Further, if such a public policy truly existed, then there should be a long track record of the City taking enforcement actions against various companies in age- restricted industries. The City cites none. Significantly, the data that the Motion exclusively relies on—namely, information the City took from a spreadsheet of JLI’s online sales—does not conclusively establish the age of JLI’s customers, and therefore cannot be used to establish that JLI made online sales to underage consumers. Instead, as JLI informed the City before it filed its Motion, the spreadsheet did not always record each customer’s age (given limitations and complexities in how the underlying data was stored, as discussed below). Most importantly, and contrary to what the Motion suggests, this spreadsheet certainly did not reflect all of the age-verification procedures that accompanied each JLI sale. Notwithstanding these fundamental flaws, the Motion seeks extraordinary relief. Specifically, the Motion seeks declarations that (i) JLI violated the Municipal Code of Chicago more than 37,000 times (which the City has asserted could subject JLI to a fine exceeding $370 million) and (ii) a permanent injunction against JLI making further online sales into Chicago until it changes its online sales practices. As discussed above and in greater detail below, JLI did not violate the Municipal Code of Chicago. And, even if this Court reaches the question of remedies, the City’s request for an 3 injunction is moot. JLI stopped making online sales to Chicago addresses over a year ago, as is plainly stated on JLI’s webpage. 1 FILED DATE: 7/25/2022 4:25 PM 2020CH04183 Accordingly, the Motion should be denied. STATEMENT OF ADDITIONAL FACTS A. JLI conducts extensive, industry-leading online age-verification. The Motion rests on the false premise that “JUUL shipped its products to an end user without performing any age verification.” Mot. 1. Since the day JLI began selling its devices in the United States on June 1, 2015, JLI has age-verified every online sale. Ex. 1, E. Jacobs Dep. (MDL) at 244:2-13; Ex. 2, D. Black Dep. (CAAG) at 239:10-19. JLI is an industry-leader in age verification, with financial institutions and companies in other industries “looking to potentially emulate” its practices. Ex. 3, T. Canfarotta Dep. (NCAG) at 702:17-703:10. A leading provider of age-verification services recognized that “JUUL was the driving force behind adding more identity verification to their processes, and our other clients followed them.” Id. at 148:21-149:5. In fact, JLI has had one of the most stringent age-verification policies within the e-cigarette industry. Id. at 170:4-19. JLI became a leader by adopting a rigorous baseline level of age-verification steps and then continually enhancing those steps as it learned how certain customers might attempt to unlawfully circumvent JLI’s online age-verification process. At launch in June 2015, JLI had the following five-step age-verification process in place, among others: 1 Are there places in the US where you can’t ship?, Juul Support, https://support.juul.com/s/article/Are-there- places-in-the-US-where-you-cant-ship-UnitedStates#:~:text=We%20currently%20can't%20ship,Delaware (last visited July 24, 2022) 4 Step 1. A customer would visit www.juul.com. Juul.com was an age-gated website, which meant that all customers were required to confirm they were of age to access the website. Ex. 4, FILED DATE: 7/25/2022 4:25 PM 2020CH04183 E. Jacobs Dep. (NCAG) at 67:18-24. Step 2. When making a purchase, the customer would input his or her first and last name, date of birth, and address. Id. at 67:18-68:9. All of this information would then be sent to JLI’s age-verification vendor, Veratad. Id. Veratad was an industry-leading age-verification company with thousands of clients, including in industries with age and other restrictions, such as financial services, alcohol, e-cigarettes, cigars, and cigarettes (Veratad’s clients included two of the top three cigarette brands). Id. at 55:17-56:14; Ex. 3, T. Canfarotta (NCAG) Dep. at 28:12-16, 351:4-7, 654:4-15. Step 3. Veratad would then perform three checks on the customer-submitted information utilizing Veratad’s Data Match 5.0 matching methodology. Veratad would seek to: (i) match the data to an individual in trusted public records databases; (ii) determine whether that individual met the JLI-supplied age requirements for each jurisdiction; and (iii) confirm that the individual was alive. Ex. 3, T. Canfarotta Dep. (NCAG) at 30:2-8, 43:8-45:8. If Veratad could not verify the customer’s information with a living adult at this stage, it gave the customer the option to provide two additional pieces of personal information. Ex. 4, E. Jacobs Dep. (NCAG) at 138:10-140:4. In the first submission, the customer could enter an alternative address for age-verification purposes. Id. at 138:10-139:5. In the second submission, the user could enter the last four digits of his or her social security number (or provide certain other information). Ex. 3, T. Canfarotta Dep. (NCAG) at 100:17-101:4; Ex. 4, E. Jacobs Dep. (NCAG) at 139:17-140:9. Veratad would then use those data inputs in conjunction with the previously-provided name, date of birth, or address 5 to attempt to locate a verified, living adult. Ex. 3, T. Canfarotta Dep. (NCAG) at 98:3-99:25, 710:23-712:18. FILED DATE: 7/25/2022 4:25 PM 2020CH04183 Step 4. If Veratad could not match the customer’s information with a verified, living adult via Step 3, the customer could upload a form of government-issued identification, such as a driver’s license, for review. Ex. 4, E. Jacobs Dep. (NCAG) at 67:18-70:5, 73:25-75:4; Ex. 3, T. Canfarotta Dep. (NCAG) at 33:17-34:5. Step 5. A customer service supervisor would review the ID to evaluate whether it was fake and would compare the ID to the information the customer initially submitted. Ex. 4, E. Jacobs Dep. (NCAG) at 73:24-75:22. In addition to this multi-step age-verification process, since launch, JLI has also used a third-party fraud detection platform that reviews orders for suspicious activity and blacklists information to prevent future orders from using the same information. This additional step allows JLI to block suspicious transactions. Ex. 1, E. Jacobs (MDL) at 479:1-480:10, 503:23-504:5; Ex. 4, E. Jacobs (NCAG) at 87:6-89:13. If, for example, JLI received complaints of minors purchasing products with a parent’s information, JLI would blacklist the information from being used for future purchases and block the account from being used again. Ex. 1, E. Jacobs (MDL) Dep. at 129:4-130:1, 502:22-504:5. Only if a prospective customer passed these steps, among others, could the customer complete his or her online purchase of JUUL products. Ex. 4, E. Jacobs Dep. (NCAG) at 67:18- 70:5. Then, an adult had to sign for the shipment upon delivery. 2 Id. at 67:18-70:5. 2 From launch in June 2015 until November 2016, an adult had to sign for all shipments. Ex. 4, E. Jacobs Dep. (NCAG) at 67:18-70:5, 791:4-8. In August 2017, JLI required an adult signature for orders where the customer shipped JUUL products to a different name. Ex. 5, JIRA Entries (JLI01018338 at JLI01018375-80). In October 2018, JLI prohibited customers from shipping to a name they did not use to complete age verification. Ex. 4, E. Jacobs Dep. (NCAG) at 369:15-370:7. Therefore, out of the 1,408 sales where the account and shipping name 6 Following launch, JLI continually upgraded its age verification process, see id. at 71:14- 22, including by taking the following additional measures: FILED DATE: 7/25/2022 4:25 PM 2020CH04183 ● In 2017, JLI added Veratad’s DCAMS+ automated service for “ID document scanning and validation” to its process for reviewing uploaded IDs at Step 5, above. Ex. 3, T. Canfarotta Dep. (NCAG) at 35:7-36:6. The DCAMS+ service included extracting the data from the customer-submitted ID, matching that extracted information to information the customer already had submitted at earlier steps, and determining that the ID was not expired. Id. at 35:7-24. ● In May 2018, JLI blocked email accounts originating from various high school domains from registering on JLI’s website (a required step for placing an order). Ex. 1, E. Jacobs Dep. (MDL) at 348:11-353:11. ● In June 2018, JLI modified Step 3, above, and required that customers submit the last four digits of their social security number, and that those four digits exactly match those associated with the verified individual found in a public record. Ex. 4, E. Jacobs Dep. (NCAG) at 751:11-21; Ex. 3, T. Canfarotta Dep. (NCAG) at 721:9-721:14. JLI was one of the first companies in the industry to adopt this requirement. Id. at 721:9-722:7. ● Around November 2018, JLI hired Jumio for identification and photo verification services at Step 5, above, adding a real-time “selfie” as an additional age-verification requirement at Step 4, above. Ex. 1, E. Jacobs Dep. (MDL) at 364:11-365:12; Ex. 4, E. Jacobs (NCAG) Dep. at 99:16-23. Jumio was a leading ID verification company that utilized algorithms, facial recognition technology, and a manual review to analyze documents and determine whether an individual would pass or fail age verification. Ex. 4, E. Jacobs (NCAG) Dep. at 763:13-765:6. ● In May 2020, JLI hired Berbix, which specialized in fake ID detection, to take over identification and photo verification services at Step 5, above, and implemented an enhanced real-time “selfie” to prove the photo submitted at Step 4, above, was a living person. Ex. 4, E. Jacobs (NCAG) Dep. at 100:15-103:10, 774:23-779:10. Given these extensive efforts, it should come as no surprise that, after two years of litigation, the City has challenged a mere 175 of the more than 194,000 (<0.1%) online sales shipped to Chicago addresses between June 2015 and December 2019 as having allegedly been made to underage consumers. See City’s Ex. B; Ex. 6, D. Black Aff. ¶ 4. do not match, only approximately 445 were made at a time when an adult signature was not required. See City Ex. B. 7 B. JLI’s spreadsheet of online sales to Illinois. The City’s primary evidence in support of summary judgment is a JLI-produced FILED DATE: 7/25/2022 4:25 PM 2020CH04183 spreadsheet showing JLI’s historical online sales in Illinois. JLI created spreadsheets of e-commerce data in response to discovery requests in other litigation. See Ex. 7, E. Schwartz Dep. (CAAG) 74:6-75:12, 141:11-142:4. Creating the spreadsheets was complex and required the efforts of at least ten individuals, weeks of work, and the writing of over a thousand lines of code. Ex. 7, E. Schwartz Dep. (CAAG) at 256:15-258:16, 259:7-13. All of this work was largely required because the spreadsheets draw from over four years of historical sales data pulled from multiple databases with thousands of data fields. City’s Ex. B; Ex. 2, D. Black Dep. (CAAG) at 57:2-10, 100:25-101:15, 184:10-24. These efforts were further complicated because JLI required different information at different times in order to complete an online sale, and even the same (or similar) information was sometimes stored in different formats and locations over time. For example, a JLI customer was not always required to open an account to make an online purchase. Ex. 4, E. Jacobs Dep. (NCAG) at 417:22-419:13. And sometimes age-verification fields are blank in the spreadsheet, even though the customer was age-verified, because JLI age-verified the customer before the creation of the specific data field that was later migrated to JLI’s spreadsheet. Ex. 2, D. Black Dep. (CAAG) at 238:19-239:19. On top of these complexities, there were also bugs in how the systems recorded the data or imported it into the spreadsheet. For example, the spreadsheet contains instances where the date in a field labeled “date of birth” appears in the future. See, e.g., City’s Ex. B, Rows 561, 2467, 2838, 4820, 5580, 8707, 11265, 14218, 14582, 17758, 18149, 18306, 19767, 23609, 24253, 25408, 27361, 28615, 30346, 30350, 31386, 33150, 35966, 36379. 8 Due to the complexity of the data, it was difficult for JLI engineers to fully reconstruct how each field was used, the role of each field relative to age-verification, and the relationship of the FILED DATE: 7/25/2022 4:25 PM 2020CH04183 fields to each other. Ex. 7, E. Schwartz Dep. (CAAG) at 166:22-167:16. As a result, JLI’s spreadsheet has limitations. See Ex. 6, D. Black Aff. ¶ 5. Most importantly, the spreadsheet does not comprehensively record the full suite of age-verification steps contemporaneously taken for a sale. Id. ¶¶5. And when the data was populated onto the spreadsheet, it sometimes did not reflect the actual data that JLI had captured at the time of sale. Id. ¶ 5. Ultimately, the spreadsheet cannot be used for the purpose that the City seeks to use it here—to establish that underage consumers received JUUL products through JLI’s online system. In order to do that, the City had to actually identify such individuals and obtain relevant information from them (as it did when it brought claims against JLI’s former co-defendants, various brick-and-mortar retailers who subsequently settled out of the case, Compl. ¶¶ 91-96). But the City has failed to do so with respect to JLI. LEGAL STANDARD Summary judgment is only warranted if “there is no genuine issue as to any material fact.” Gatlin v. Ruder, 137 Ill.2d 284, 293 (1990). At this stage, the Court must construe the evidence strictly against the movant. Gillespie v. Edmier, 2020 IL 125262, ¶ 9. Because “[s]ummary judgment is a drastic means of disposing of litigation,” it “should be allowed only when the right of the moving party is clear and free from doubt.” Gatlin, 137 Ill.2d at 293. That is not the case here. 9 ARGUMENT I. Summary judgment on the City’s unfair practices claim is improper because the FILED DATE: 7/25/2022 4:25 PM 2020CH04183 evidence in support of each factor is either undisputed in JLI’s favor or disputed. The Motion contends that permitting age-verified customers to ship to a different name (1,408 instances) or address (36,415 instances) is an “unfair method of competition” under M.C.C. § 2-25-090. Mot. 7-8. That is wrong for two reasons. As a matter of law, seeking to hold JLI liable for shipping its products to names and addresses different than the adult purchaser’s goes well beyond the intended scope of the City’s “unfair method of competition” ordinance. In addition, there are numerous disputed issues of fact that preclude summary judgment. A. JLI’s alleged sales to names and addresses that differ from the adult purchaser’s do not legally constitute “unfair method[s] of competition.” M.C.C. § 2-25-090 is a consumer protection statute. It protects consumers from businesses that “engage in any act of consumer fraud, unfair method of competition, or deceptive practice while conducting any trade or business in the city.” M.C.C. § 2-25-090(a) (emphasis added). Here, the fact that JLI’s e-commerce data shows JLI shipped certain products to names and addresses different than the adult purchaser’s does not demonstrate a violation of M.C.C. § 2-25- 090. To the contrary, the City’s attempt to invoke the statute in the context of underage sales of age-restricted products sweeps far beyond the scope of M.C.C. § 2-25-090. The City does not identify any case in which the City (let alone any other government entity in Illinois) has applied an unfair practices statute to underage online sales, such as to enjoin online sales of alcohol, CBD- derived products, fireworks, or even other vaping products. Thus, the City fails to cite any instance in which it, or anyone else, has successfully invoked the statute to hold a manufacturer employing 10 online verification procedures to age-restricted products liable or to effectively regulate their online sales. 3 FILED DATE: 7/25/2022 4:25 PM 2020CH04183 If the City wanted to regulate the online sale of tobacco products, it should have enacted a specific ordinance to that effect, as the Illinois legislature later did. See 720 ILCS 678/1 et seq. The fact that the Illinois Legislature concluded it was necessary to pass a new law to impose such standards in 2021 demonstrates there is no basis for liability under the statute the City invokes here. Had the Legislature believed that the statute the City invokes—which, like the Illinois statute, 815 ILCS 505/2, makes unlawful “unfair methods of competition”—prohibited such procedures, there would have been no need for the enactment of new legislation specifically doing so. The City’s Motion therefore represents an attempt to circumvent the express law that governs the transactions at issue here. In addition, the practical effect of the City’s interpretation of its unfair practices ordinance would open numerous businesses in a variety of industries (many of which employed less stringent procedures than JLI, see Ex. 3, T. Canfarotta Dep. (NCAG) at 148:21-149:5, 170:4-19, 702:17- 703:10) to liability simply because the City alleges that, based on hindsight, the businesses could 3 The City’s own cases confirm that M.C.C. § 2-25-090 was not intended to address the type of conduct alleged here. All of those cases involve consumers who either were allegedly misled or had an unreasonable burden placed on them. For example, in City of Chicago v. Purdue Pharma L.P., the City alleged that defendants used “misleading messages about the use of opioids.” 211 F. Supp. 3d 1058, 1062 (N.D. Ill. 2016). In U.S. v. Philip Morris USA, Inc., the government alleged that defendants had conspired “to deceive the American public about the health effects of smoking.” 449 F. Supp. 2d 1, 26 (D.D.C. 2006). And in Ekl v. Knecht, a plumber had coerced the plaintiff into paying oppressive rates. 223 Ill. App. 3d 234, 238-39, 242 (2d Dist. 1991). The City’s remaining cases are no different. See Perona v. Volkswagen of Am., Inc., 292 Ill.App. 3d 59, 65 (1st Dist. 1997) (alleging “defendants knowingly concealed … defects from the public”); In re Smith, 866 F.2d 576, 581-82 (3d Cir. 1989) (alleging “invalid service of process” or failing to provide adequate pre-foreclosure notice); People ex rel. Madigan v. United Const. of Am., Inc., 2012 IL App (1st) 120308, ¶¶ 9, 16 (alleging defendants made misrepresentations to potential consumers); City of Chicago v. DoorDash, Inc., 2022 U.S. Dist. LEXIS 41635, at *1 (N.D. Ill. Mar. 9, 2022) (alleging undisclosed inflated prices and concealing “the true cost of delivery fees”); Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d. 403, 410 (2002) (alleging defendant failed “to allow early termination or disclose penalties for early termination” and failed to disclose applicable taxes). 11 have used some different procedures or a small percentage of online sales somehow “slipped through the cracks.” FILED DATE: 7/25/2022 4:25 PM 2020CH04183 In short, M.C.C. § 2-25-090 is simply not applicable here. B. There are disputed issues of fact on each of the three unfair practices factors. Even if the City’s ordinance applied here (and it does not), the facts either refute the State’s theory or, at a minimum, are in dispute, rendering summary judgment inappropriate. When evaluating whether a business practice constitutes an “unfair method of competition,” courts assess whether the practice (1) is immoral, unethical, oppressive, or unscrupulous; (2) causes substantial injury to consumers; and (3) offends public policy. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 417-18 (2002). This is necessarily a fact-intensive inquiry that requires “a case-by-case analysis.” Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010). As such, courts can rarely resolve these case-specific questions on summary judgment. See Adams v. N. Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004) (“[t]he purpose of summary judgment is not to try a question of fact”). This case is no exception, and the Motion’s evidence on the three factors is far from “clear and free from doubt.” Gatlin, 137 Ill.2d at 293. To the contrary, the evidence on each of the three unfair practices factors is either undisputed in JLI’s favor or disputed, either of which preclude summary judgment at this early stage of the case. 1. JLI’s conduct did not limit consumer options or burden them, and thus cannot be immoral, unethical, oppressive, or unscrupulous. The Motion takes issue with JLI having allowed its age-verified customers to choose where to ship the JUUL products they purchased, even though other sellers of age-restricted products similarly provide customers with this choice. Mot. 9. Such conduct cannot be characterized as “immoral, unethical, oppressive, or unscrupulous” as is required under the City’s ordinance. A practice is considered immoral, unethical, oppressive, or unscrupulous only when it “imposes a 12 lack of meaningful choice or an unreasonable burden on the consumer.” Garrett v. RentGrow, Inc., 2005 U.S. Dist. LEXIS 13210, at *3 (N.D. Ill. July 1, 2005) (citing Robinson, 201 Ill. 2d at FILED DATE: 7/25/2022 4:25 PM 2020CH04183 419-20); see also Saunders v. Michigan Ave. Nat. Bank, 278 Ill. App. 3d 307, 313 (Ill. App. 1st 1996) (conduct must be “so oppressive as to leave the consumer with little alternative but to submit”); Toulon v. Continental Cas. Co., 877 F.3d 725, 741 (7th Cir. 2017) (because the claimant was not required to buy an insurance policy, the court found “a total absence of the type of oppressiveness and lack of meaningful choice necessary to establish unfairness”). Here, the fact that JLI completed online sales in Chicago where the account address or account name purportedly did not match the shipping address or shipping name did not burden consumers or impose lack of meaningful choice. Rather, JLI offered its customers more choices, and “[o]ffering a choice to a potential customer is not immoral, unethical, oppressive or unscrupulous.” Flores v. United Airlines, 426 F. Supp. 3d 520, 531 (N.D. Ill. 2019). Specifically, after verifying a customer’s age, JLI allowed that customer to select what address to ship the JUUL products to in Chicago. The reasonable inference from the evidence at summary judgment, which must be drawn in JLI’s favor, shows that JLI’s customers preferred having these checkout options for shipments to Chicago. And, as most relevant here, the fact that JLI allowed its age-verified customers to ship their purchases to non-account addresses clearly does not burden customers or impose a lack of meaningful choice. Looking at just a few of the sales records identified by the City shows JLI customers often sent JUUL products to their offices. For example, at least 22 shipments were made to 300 N. LaSalle, where the undersigned counsel works. City’s Ex. B, Rows 2786, 3805, 4627, 7127, 10228, 10229, 11408, 12448, 17645, 19092, 19283, 19679, 20641, 22665, 25878, 27203, 28927, 13 29929, 31169, 31449, 31478, 32702. Another 14 shipments were made to the Sears Tower. Id., Rows 1123, 5186, 5422, 6437, 9179, 10686, 12758, 15028, 15892, 18474, 22293, 27923, 28759, FILED DATE: 7/25/2022 4:25 PM 2020CH04183 29370. Indeed, such features have been, and still are, used with many age-restricted products sold online, including to Chicago consumers. Consumers visiting Wine.com (www.wine.com) can send a bottle of Dom Perignon to their house or office, or send a gift to a friend. The same is true for consumers who visit Cocktail Courier (www.cocktailcourier.com) or Corona Cigar (www.coronacigar.com). Despite the fact that these common procedures were openly employed by JLI and popular online sellers of other age-restricted products, the City gives no instance in which it complained of such procedures until now, much less brought a lawsuit that successfully enjoined them. But the Motion never attempts to grapple with these practical realities—or even, for that matter, the appropriate legal standard. Instead, the Motion misapplies the morality factor and argues that JLI’s conduct was immoral because it purportedly enabled underage use of e-cigarettes. Mot. 9. But even if the Motion was correct on the law (and it is not), the evidentiary record demonstrates that JLI’s conduct was far from “immoral,” as it hired industry-leading vendors to implement its state-of-the-art age-verification policy and procedures. As described above, JLI always age-verified its customers, and always complied with— and often went beyond—local requirements. In particular, JLI typically required that an adult sign for the delivery of any JUUL products sent to someone other than the individual ordering. Ex. 4, E. Jacobs Dep. (NCAG) at 67:18-70:5, 791:4-8; Ex. 5, JIRA Entries (JLI01018338 at JLI01018375-80). The City simply has no evidence that any underage user actually received and used JUUL products from an online sale. 14 In short, JLI’s customer-driven practices simply were not immoral or oppressive, as confirmed by the fact that the City does not cite a single case holding that such practices employed FILED DATE: 7/25/2022 4:25 PM 2020CH04183 by any other company in an age-restricted industry were immoral or oppressive. The Motion ignores the relevant legal test and relies on evidence that is clearly in dispute. 2. JLI’s online sales did not cause injury, much less substantial injury