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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
MONIKA CHICHOWLAS and
JOHN BONELL, individually and
on behalf of a class of similarly
situated individuals,
JUDGE DAVID B. ATKINS
Plaintiffs, No. 2018-CH-03443
APR 24 2019
v. Calendar 16 Circuit Court-1879
MYLIFE.COM, INC., a Delaware Judge David B. Atkins
corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS CASE COMING TO BE HEARD on Defendant MyLife’s 735
ILCS § 5/2-619.1 Motion to Dismiss Plaintiffs’ Complaint, the court, having
considered the briefs submitted and being fully advised in the premises,
THE COURT HEREBY ORDERS that MyLife’s Motion is
GRANTED in part and otherwise DENIED.
Background
In February of 2018, Plaintiffs Monika Chichowlas and John Bonell
allege that they individually came across a website maintained by Defend-
ant MyLife.com. They claim that their respective pages displayed personal
identity information, including their names, locations, birthdates, a repu-
tation score generated by MyLife, as well as warning that criminal or civil
court records were found in their background reports. They maintain that
to access the records these general claims were based on they were required
to pay a monthly or annual subscription fee to MyLife. This subscription
would further enable other services related to their privacy, their back-
ground reports, and reputation scores. They now bring suit on behalf of
themselves and all others similarly situated, alleging violations of the Illi-
nois Right of Publicity Act and the Illinois Consumer Fraud and Deceptive
Business Practices Act. MyLife moved to dismiss the complaint under 735
ILCS 5/2-619.1, which the court now adjudicates.
Legal Standard
Pursuant to 735 ILCS 5/2-619.1, parties may file combined motions
under § 2-615, § 2-619, or § 2-1005. 735 ILCS 5/2-619.1; Edelman v. Hin-
shaw & Culbertson, 338 Ill. App. 3d 156, 164, (2003). “The better practice
is for a court to entertain the section 2-615 motion first, and then, only after
a legally sufficient cause of action has been found, entertain the section 2-
619 motion[.]’Johannesen v. Eddins, 2011 IL App (2d) 110108, { 29 (citing
Janes v. First Federal Savings & Loan Ass'n, 57 Ill. 2d 398, 406 (1974)).
Page 1 of 8
A 2-615 motion to dismiss challenges the complaint’s legal sufficiency
based on facial defects. Beacham v. Walker, 231 Ill. 2d 51, 57 (2008). The
court assumes all well-pleaded facts and their reasonable inferences in the
complaint are true, viewing the allegations in the light most favorable to
the plaintiff. Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 735
(2009). As Ilinois is a fact-pleading jurisdiction, “a plaintiff must allege
facts sufficient to bring a claim within a legally recognized cause of action.”
City of Chicago v. Beretta U.S.A. Corp., 218 Ill. 2d 351, 355, (2004). Mere
conclusions of law and unsupported conclusory factual allegations are in-
sufficient to survive a 2-615 motion to dismiss. Alpha School Bus, 391 Il.
App. 3d at 736. A 2-615 motion to dismiss does not raise affirmative factual
defenses. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382 (2004). “A
motion to dismiss should be granted only if the plaintiff can prove no set of
facts to support the cause of action asserted.” Kaiser v. Fleming, 315 Ill.
App. 3d 921, 925, (2000).
Motions to dismiss under 2-619 raise defects, defenses, or some other
affirmative matter that defeat a claim. Ball v. County of Cook, 385 Ill. App.
83d 103, 107 (2008). In doing so, the movant “admits the legal sufficiency of
the plaintiffs allegations.” Miner v. Fashion Enters, 342 Ill. App. 3d 405,
413 (2003). An “affirmative matter” either negates an alleged cause of ac-
tion completely or refutes crucial conclusions of law or conclusions of mate-
rial fact unsupported by allegations of specific fact contained in or inferred
from the complaint. See Smith v. Waukegan Park District, 231 Ill. 2d 111,
121 (2008). Affirmative matters must be apparent on the face of the com-
plaint or established by affidavits or other evidentiary materials. John Doe
v. Univ. of Chi. Med. Ctr., 2015 IL App (1st) 183735, { 37. The court must
deny a 2-619 motion to dismiss if a material and genuine disputed question
of fact exists. Brown v. ACMI Pop Div., 375 Ill. App. 3d 276, 286 (2007).
Discussion
735 ILCS 5/2-615
Right of Publicity Act
Aparty states a claim under the Illinois Right of Publicity Act (IRPA)
where they have pleaded: 1) an appropriation of their name or likeness, 2)
without prior written consent, and 3) for another's commercial benefit.
Trannel v. Prairie Ridge Media, Inc., 2013 IL App (2d) 120725, { 16 (citing
Blair v. Nevada Landing Partnership, 369 Ill. App. 3d 318, 323 (2006)). Re-
lying predominantly on federal court interpretations of the IRPA,} MyLife
1 {Illinois courts] are not bound by a federal court's interpretation of an Illinois statute.” People
v. Wiggins, 2016 IL App (1st) 153163, J 37 (citing People v. Nance, 189 Ill. 2d 142, 146 (2000)).
Page 2 of 8
maintains that Plaintiffs have not alleged that it appropriated their identi-
ties for a commercial purpose and have thus failed to state a claim under
the Act.2 The statute defines a commercial purpose as:
“the public use or holding out of an individual's identity (i) on or in connec-
tion with the offering for sale or sale of a product, merchandise, goods, or
services; (ii) for purposes of advertising or promoting products, merchan-
dise, goods, or services; or (iii) for the purpose of fundraising.” 765 ILCS
1075/5 (Lexis Advance 2019).
As alleged in and incorporated into the Complaint, MyLife displays an in-
dividual’s name, general location, birthday, as well as a reputation score
that it generates through public records. Clearly present on that same page
is language detailing MyLife’s services, including improving an individual’s
background report and reputation score; editing, correcting, and enhancing
background reports to “look good for employers, clients, friends & others
searching for you on Google[;]” and “[removing] information from sites you
can’t control to protect your privacy.”
MyLife is not offering merely a more complete version of the infor-
mation displayed, but selling services related to that data. Purchasing a
plan allows the user to “correct, enhance & monitor Background Report and
Reputation Score[,]”3 to see and monitor who is searching for and viewing
this publicly available information, and to “[s]ee websites that sell your pri-
vate information that you can’t control” as well as “helping you remove rec-
ords from these sites with just one click.” Users are given the ability to di-
rectly impact how they are portrayed, how their information is displayed,
how that information impacts their reputation score, as well as who is look-
ing for and at that information. Plaintiffs have not alleged that the docu-
ments or their information are the product, but that their identities are
being used in connection with the offering for sale of MyLife’s services or
for the purposes of promoting or advertising those services, within the plain
meaning of the statute.
Defendant next argues that subsections (b)(1) and (2) of 765 ILCS
1075/35 exempt it from liability under the IRPA, being akin to describing
? Orders of the appellate court are “not precedential and may not be cited by any party except
to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case”
under Illinois Supreme Court Rule 23(e). People v. Matous, 381 Ill. App. 3d 918 (2008); Low-
enthal v. McDonald, 367 Ill. App. 3d 919 (2006); People v. Schambow, 305 Ill. App. 3d 763
(1999). It precludes parties from citing, arguing, or referencing decisions outside the express
purposes noted above—regardless of whether a party feels its inclusion might suggest an ap-
proach or be otherwise instructive. The court accordingly strikes and disregards all citations
to or arguments based on Abbs v. Lily’s Talent Agency, LLC, 2012 IL App (1st) 103726-U and
Gains v. Romkey, 2012 IL App (3d) 110594-U.
3 Which it emphasizes is “more important than your credit score” and “could affect your career,
who'll date you, where you live & more”
Page 3 of 8
Plaintiffs in a book as well as being a matter of public record and interest.4
The court finds neither argument persuasive. First, subsection (b)(1) only
provides an exemption where the work in question “does not constitute in
and of itself a commercial advertisement for a product, merchandise, goods,
or services[.]” 765 ILCS 1075/35 (Lexis Advance 2019). In Schivarelli v.
CBS, Inc., the court held that use of the plaintiffs likeness was for the non-
commercial purpose of promoting a reporter's televised news report. 333 Ill.
App. 3d 755, 764-65 (2002). By way of contrast, Plaintiffs are not alleging
that MyLife sells public record information or is engaged in a non-commer-
cial purpose, but uses their identities to sell other services, including mod-
ifying how MyLife portrays that data, monitoring who else is searching for
their data, and helping to protect privacy. For the same reason, subsection
(b)(2) does not apply as it explicitly limits the exemption to non-commercial
usage; the services offered by MyLife do not pertain to any of the excused
content. The court, accordingly, declines to dismiss Plaintiffs’ IRPA claim
under 615.
Consumer Fraud and Deceptive Business Practices Act
815 ILCS 505/10a creates a private right of action for individuals
harmed under the provisions of the Consumer Fraud and Deceptive Busi-
ness Practices Act. (Lexis Advance 2019). One of section 505/10a’s require-
ments is that the party must have suffered actual damages from that vio-
lation. Id. Actual damages “must arise from ‘purely economic injuries[,]’”
Cooney v. Chicago Public Schools, 407 Ill. App. 3d 358, 365 (2010) (quoting
Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009)),
and “must be calculable and ‘measured by the plaintiff's loss[,]’ ” Burkhart
v. Wolf Motors of Naperville, Inc., 2016 IL App (2d) 151053, 4 22 (citing
Morris, 392 Ill. App. 3d at 402). “The failure to allege specific, actual dam-
ages precludes a claim brought under the Act. [Citation.] The purpose of
awarding damages to a consumer-fraud victim is not to punish the defend-
ant or bestow a windfall upon the plaintiff, but rather to make the plaintiff
whole. [Citation.]” Id.
In their Complaint, Plaintiffs allege that they “have suffered actual
damages at least in the amount of the subscription service offered by My-
Life to remove and/or correct such information.” Compl. { 56. They have
4 Defendant incorrectly asserts its argument as being brought under 735 ILCS 5/2-619 when
it does not seek to negate an alleged cause of action completely or attempt to refute crucial
conclusions of law or conclusions of material fact (i.e. yes, plaintiff has stated a cause of action,
but it fails for these reasons). See Smith v. Waukegan Park District, 231 I. 2d 111, 121 (2008).
Rather, it is asserting that the Complaint on its face fails to meet all the elements of an IRPA
claim as contemplated by 615. Beacham v. Walker, 231 Ill. 2d 51, 57 (2008). Mislabeling the
basis for a motion to dismiss is inappropriate, but not always fatal as the motion’s substance
determines the code section under which it is analyzed. Loman v. Freeman, 375 Ill. App. 3d
445, 448 (2006). The court will conduct its analysis under 615.
Page 4 of 8
not, however, alleged that they have paid the subscription fee, incurred
some other calculable loss, or pleaded facts underlying the same—they have
failed to plead a cause of action under the Act. Alpha School Bus, 391 Il.
App. 3d at 736. Like Defendant’s cited cases, the court is in no way bound
by the holding in Gabiola v. Sarid, No. 16-cv-02076, 2017 U.S. Dist. LEXIS
157699 (N.D. Ill. Sep. 26, 2017), and it does not find the analysis persuasive.
Section 505/2QQQ is nested within the larger Consumer Fraud Act. While
the plain language of this section creates a statutory right to not be charged
for the conduct described, it is a fundamental principle of statutory con-
struction that we construe individual provisions in light of the whole enact-
ment. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill.
2d 390, 415 (2006) (citing Michigan Avenue National Bank v. County of
Cook, 191 Ill. 2d 493, 504 (2000)). Section 505/10a and its interpreting case
law are clear that a private right of action exists only where a party has
suffered actual damages. All other violations fall within the purview of the
Attorney General. Nothing in 2QQQ serves to derogate from this structure.
The court DISMISSES Count II, Violation of the Illinois Consumer Fraud
and Deceptive Business Practices Act without prejudice as there are poten-
tially still facts Plaintiffs can allege and prove that would entitle them to
relief.
735 ILCS 5/2-619
First Amendment
Emphasizing that it is more akin to a directory of public information,
MyLife maintains that it is entitled to the full protection of the First
Amendment for its content. Its argument, however, relies on the rejected
premise that all it provides is access to more comprehensive versions of the
data initially displayed. Our free speech jurisprudence recognizes the dis-
tinction between commercial and non-commercial speech, according differ-
ent levels of protection depending on its classification. “Although commer-
cial-speech cases generally rely on the distinction between speech that pro-
poses a commercial transaction and other varieties of speech, [citation], it’s
a mistake to assume that the boundaries of the commercial-speech category
are marked exclusively by this ‘core’ definition. [Citation.] To the contrary,
there is a ‘commonsense distinction’ between commercial speech and other
varieties of speech, and we are to give effect to that distinction.” Jordan v.
Jewel Food Stores, Inc., 743 F.3d 509, 516-17 (7th Cir. 2014). The Seventh
Circuit in Jordan reaffirmed its test for classifying speech containing both
commercial and non-commercial elements, including “ ‘whether: (1) the
speech is an advertisement; (2) the speech refers to a specific product; and
(3) the speaker has an economic motivation for the speech.’ ” Id. (quoting
United States v. Benson, 561 F.3d 718, 725 (7th Cir. 2009)). No one factor
Page 5 of 8
in this analysis is overriding nor, indeed, must all necessarily be met. Id.
(citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 67 n.14 (1983)).
On a 619 motion to dismiss, the defendant admits the legal suffi-
ciency of the allegations against them, Miner, 342 Ill. App. 3d at 413; it is
only where they have satisfied the initial burden of outlining the affirma-
tive matter that the burden “shifts to the plaintiff to establish that the de-
fense is ‘unfounded or requires the resolution of an essential element of ma-
terial fact before it is proven|[,]’” Van Meter v. Darien Park District, 207 Tl.
2d 359, 377 (2003) (quoting Epstein v. Chicago Board of Education, 178 Ill.
2d 370, 383 (1997)). Plaintiffs’ allegations meet all three factors in the Ben-
son analysis and MyLife has failed to establish that the speech in question
was non-commercial. The court declines to dismiss the Complaint based on
the First Amendment.
Communications Decency Act
Section 230 of the Communications Decency Act (CDA) provides that
“no provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another infor-
mation content provider.” 47 U.S.C.S. § 230 (Lexis Advance 2019). The IIli-
nois Appellate Court has followed the Seventh Circuit in recognizing that
“section 230(c) ‘as a whole cannot be understood’ as granting blanket im-
munity to an [interactive computer service] user or provider from any civil
cause of action that involves content posted on or transmitted over the In-
ternet by a third party. Lansing v. Southwest Airlines Co., 2012 IL App (1st)
101164, { 40 (quoting Chicago Lawyers’ Committee for Civil Rights Under
Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008)). Rather, sub-
section (c)(1) is interpreted in accordance with its plain language, “that an
[interactive computer service] user or provider like defendant must not ‘be
treated as the publisher or speaker of any information provided by’ someone
else.” (Emphasis added.) Id. at { 41.
Subsection (f)(3) classifies “any person or entity that is responsible,
in whole or in part, for the creation or development of information provided
through the Internet or any other interactive computer service” as an infor-
mation content provider. To the extent that MyLife is actively engaged in
creating or developing unlawful content, on its own or in part with infor-
mation provided by third parties, liability is not preempted by the CDA.
See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162
(9th Circ. 2008) (en banc). Here, Plaintiffs’ allegations do not treat MyLife
as the speaker or publisher of third-party content, but as the purported
generator of material violative of the IRPA. Furthermore, a genuine issue
of material fact is present regarding the extent of MyLife’s involvement in
producing the allegedly unlawful content. The court must, therefore, DENY
Page 6 of 8
MyLife’s 619 request to dismiss under the Communications Decency Act at
this time.
Dormant Commerce Clause
As previously recognized, it is only where a movant has satisfactorily
outlined their affirmative defense that the burden “shifts to the plaintiff to
establish that the defense is ‘unfounded or requires the resolution of an es-
sential element of material fact before it is proven.’” Van Meter, 207 Il. 2d
at 377. In arguing a lack of personal jurisdiction and extraterritorial appli-
cation in violation of the dormant commerce clause, merely asserting that
MyLife is incorporated in Delaware and based in California or that appli-
cation here would control conduct beyond Illinois does not serve to satisfy
its initial burden. Here, Plaintiffs allege that they are Illinois residents who
encountered their identities used to advertise MyLife’s services to them
while in Illinois. Plaintiffs claim that MyLife utilized Illinois public records
in generating its content, making it reasonable to infer that it was directing
its advertising efforts to individuals in this state. MyLife has not affirma-
tively shown that it did not attempt to contract with Illinois residents in
Illinois. See, e.g. Innovative Garage Door Co. v. High Ranking Domains,
LLC, 2012 IL App (2d) 120117 (finding that a high level of location-oriented
internet activity involving the exchange of commercial information and on-
going contractual commitments established sufficient minimum contacts
with Illinois for the exercise of personal jurisdiction over a nonresident com-
pany); Zazove v. Pelikan, Inc., 326 Ill. App. 3d 798 (2001) (holding that al-
legedly unlawful advertising directed to Illinois and Illinois residents was
a sufficient basis to exercise personal jurisdiction over a nonresident de-
fendant where the content at issue formed part of the core of plaintiffs
claim). Moreover, it has failed to do more than make general claims that
liability under the IRPA here would control conduct beyond Illinois’s bound-
aries. MyLife has not pointed to how such a finding could or would lead to
a patchwork of regulations across the states, how enforcement of the IRPA
for Illinois residents would impact its out-of-state business, or how it would
be unduly burdened, here or abroad, by adjudicating statutory privacy
claims. On a 619 motion, the court is required to make all reasonable infer-
ences in Plaintiffs’ favor from the facts alleged. MyLife has admitted the
legal sufficiency of Plaintiffs’ claim and failed to affirmatively defeat the
same, the court must deny its 619 motion based on the dormant commerce
clause at this time.
WHEREFORE, Defendant MyLife.com’s 735 ILCS 5/2-619.1 Motion to
Dismiss Plaintiffs Amended Complaint is GRANTED in that Count II is
dismissed without prejudice and is otherwise DENIED. Plaintiffs are given
Page 7 of 8
leave to amend their Complaint on or before May 28, 2019, provided that
any attempt to replead a claim under the Consumer Fraud and Deceptive
Business Practices Act is supported by sufficient allegations of ultimate fact
outlining actual damages as understood by Illinois law. MyLife is to answer
or otherwise plead to any amended complaint on or before June 25, 2019
This case is set for management and status on July 8, 2019 at 10:30 a.m. in
courtroom 2102.
NS
JUDGE DAVID B. ATKI
DR 24 2019
ENTEBRD
rt-1879
L )
Judge David Atkins
The court.
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION MONIKA CHICHOWLAS and JOHN BONELL, individually and on behalf of a class of similarly situated individuals, JUDGE DAVID B. ATKINS Plaintiffs, No. 2018-CH-03443 APR 24 2019 v. Calendar 16 Circuit Court-1879 MYLIFE.COM, INC., a Delaware Judge David B. Atkins corporation, Defendant. MEMORANDUM OPINION AND ORDER THIS CASE COMING TO BE HEARD on Defendant MyLife’s 735 ILCS § 5/2-619.1 Motion to Dismiss Plaintiffs’ Complaint, the court, having considered the briefs submitted and being fully advised in the premises, THE COURT HEREBY ORDERS that MyLife’s Motion is GRANTED in part and otherwise DENIED. Background In February of 2018, Plaintiffs Monika Chichowlas and John Bonell allege that they individually came across a website maintained by Defend- ant MyLife.com. They claim that their respective pages displayed personal identity information, including their names, locations, birthdates, a repu- tation score generated by MyLife, as well as warning that criminal or civil court records were found in their background reports. They maintain that to access the records these general claims were based on they were required to pay a monthly or annual subscription fee to MyLife. This subscription would further enable other services related to their privacy, their back- ground reports, and reputation scores. They now bring suit on behalf of themselves and all others similarly situated, alleging violations of the Illi- nois Right of Publicity Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. MyLife moved to dismiss the complaint under 735 ILCS 5/2-619.1, which the court now adjudicates. Legal Standard Pursuant to 735 ILCS 5/2-619.1, parties may file combined motions under § 2-615, § 2-619, or § 2-1005. 735 ILCS 5/2-619.1; Edelman v. Hin- shaw & Culbertson, 338 Ill. App. 3d 156, 164, (2003). “The better practice is for a court to entertain the section 2-615 motion first, and then, only after a legally sufficient cause of action has been found, entertain the section 2- 619 motion[.]’Johannesen v. Eddins, 2011 IL App (2d) 110108, { 29 (citing Janes v. First Federal Savings & Loan Ass'n, 57 Ill. 2d 398, 406 (1974)). Page 1 of 8 A 2-615 motion to dismiss challenges the complaint’s legal sufficiency based on facial defects. Beacham v. Walker, 231 Ill. 2d 51, 57 (2008). The court assumes all well-pleaded facts and their reasonable inferences in the complaint are true, viewing the allegations in the light most favorable to the plaintiff. Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 735 (2009). As Ilinois is a fact-pleading jurisdiction, “a plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action.” City of Chicago v. Beretta U.S.A. Corp., 218 Ill. 2d 351, 355, (2004). Mere conclusions of law and unsupported conclusory factual allegations are in- sufficient to survive a 2-615 motion to dismiss. Alpha School Bus, 391 Il. App. 3d at 736. A 2-615 motion to dismiss does not raise affirmative factual defenses. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382 (2004). “A motion to dismiss should be granted only if the plaintiff can prove no set of facts to support the cause of action asserted.” Kaiser v. Fleming, 315 Ill. App. 3d 921, 925, (2000). Motions to dismiss under 2-619 raise defects, defenses, or some other affirmative matter that defeat a claim. Ball v. County of Cook, 385 Ill. App. 83d 103, 107 (2008). In doing so, the movant “admits the legal sufficiency of the plaintiffs allegations.” Miner v. Fashion Enters, 342 Ill. App. 3d 405, 413 (2003). An “affirmative matter” either negates an alleged cause of ac- tion completely or refutes crucial conclusions of law or conclusions of mate- rial fact unsupported by allegations of specific fact contained in or inferred from the complaint. See Smith v. Waukegan Park District, 231 Ill. 2d 111, 121 (2008). Affirmative matters must be apparent on the face of the com- plaint or established by affidavits or other evidentiary materials. John Doe v. Univ. of Chi. Med. Ctr., 2015 IL App (1st) 183735, { 37. The court must deny a 2-619 motion to dismiss if a material and genuine disputed question of fact exists. Brown v. ACMI Pop Div., 375 Ill. App. 3d 276, 286 (2007). Discussion 735 ILCS 5/2-615 Right of Publicity Act Aparty states a claim under the Illinois Right of Publicity Act (IRPA) where they have pleaded: 1) an appropriation of their name or likeness, 2) without prior written consent, and 3) for another's commercial benefit. Trannel v. Prairie Ridge Media, Inc., 2013 IL App (2d) 120725, { 16 (citing Blair v. Nevada Landing Partnership, 369 Ill. App. 3d 318, 323 (2006)). Re- lying predominantly on federal court interpretations of the IRPA,} MyLife 1 {Illinois courts] are not bound by a federal court's interpretation of an Illinois statute.” People v. Wiggins, 2016 IL App (1st) 153163, J 37 (citing People v. Nance, 189 Ill. 2d 142, 146 (2000)). Page 2 of 8 maintains that Plaintiffs have not alleged that it appropriated their identi- ties for a commercial purpose and have thus failed to state a claim under the Act.2 The statute defines a commercial purpose as: “the public use or holding out of an individual's identity (i) on or in connec- tion with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchan- dise, goods, or services; or (iii) for the purpose of fundraising.” 765 ILCS 1075/5 (Lexis Advance 2019). As alleged in and incorporated into the Complaint, MyLife displays an in- dividual’s name, general location, birthday, as well as a reputation score that it generates through public records. Clearly present on that same page is language detailing MyLife’s services, including improving an individual’s background report and reputation score; editing, correcting, and enhancing background reports to “look good for employers, clients, friends & others searching for you on Google[;]” and “[removing] information from sites you can’t control to protect your privacy.” MyLife is not offering merely a more complete version of the infor- mation displayed, but selling services related to that data. Purchasing a plan allows the user to “correct, enhance & monitor Background Report and Reputation Score[,]”3 to see and monitor who is searching for and viewing this publicly available information, and to “[s]ee websites that sell your pri- vate information that you can’t control” as well as “helping you remove rec- ords from these sites with just one click.” Users are given the ability to di- rectly impact how they are portrayed, how their information is displayed, how that information impacts their reputation score, as well as who is look- ing for and at that information. Plaintiffs have not alleged that the docu- ments or their information are the product, but that their identities are being used in connection with the offering for sale of MyLife’s services or for the purposes of promoting or advertising those services, within the plain meaning of the statute. Defendant next argues that subsections (b)(1) and (2) of 765 ILCS 1075/35 exempt it from liability under the IRPA, being akin to describing ? Orders of the appellate court are “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case” under Illinois Supreme Court Rule 23(e). People v. Matous, 381 Ill. App. 3d 918 (2008); Low- enthal v. McDonald, 367 Ill. App. 3d 919 (2006); People v. Schambow, 305 Ill. App. 3d 763 (1999). It precludes parties from citing, arguing, or referencing decisions outside the express purposes noted above—regardless of whether a party feels its inclusion might suggest an ap- proach or be otherwise instructive. The court accordingly strikes and disregards all citations to or arguments based on Abbs v. Lily’s Talent Agency, LLC, 2012 IL App (1st) 103726-U and Gains v. Romkey, 2012 IL App (3d) 110594-U. 3 Which it emphasizes is “more important than your credit score” and “could affect your career, who'll date you, where you live & more” Page 3 of 8 Plaintiffs in a book as well as being a matter of public record and interest.4 The court finds neither argument persuasive. First, subsection (b)(1) only provides an exemption where the work in question “does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services[.]” 765 ILCS 1075/35 (Lexis Advance 2019). In Schivarelli v. CBS, Inc., the court held that use of the plaintiffs likeness was for the non- commercial purpose of promoting a reporter's televised news report. 333 Ill. App. 3d 755, 764-65 (2002). By way of contrast, Plaintiffs are not alleging that MyLife sells public record information or is engaged in a non-commer- cial purpose, but uses their identities to sell other services, including mod- ifying how MyLife portrays that data, monitoring who else is searching for their data, and helping to protect privacy. For the same reason, subsection (b)(2) does not apply as it explicitly limits the exemption to non-commercial usage; the services offered by MyLife do not pertain to any of the excused content. The court, accordingly, declines to dismiss Plaintiffs’ IRPA claim under 615. Consumer Fraud and Deceptive Business Practices Act 815 ILCS 505/10a creates a private right of action for individuals harmed under the provisions of the Consumer Fraud and Deceptive Busi- ness Practices Act. (Lexis Advance 2019). One of section 505/10a’s require- ments is that the party must have suffered actual damages from that vio- lation. Id. Actual damages “must arise from ‘purely economic injuries[,]’” Cooney v. Chicago Public Schools, 407 Ill. App. 3d 358, 365 (2010) (quoting Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009)), and “must be calculable and ‘measured by the plaintiff's loss[,]’ ” Burkhart v. Wolf Motors of Naperville, Inc., 2016 IL App (2d) 151053, 4 22 (citing Morris, 392 Ill. App. 3d at 402). “The failure to allege specific, actual dam- ages precludes a claim brought under the Act. [Citation.] The purpose of awarding damages to a consumer-fraud victim is not to punish the defend- ant or bestow a windfall upon the plaintiff, but rather to make the plaintiff whole. [Citation.]” Id. In their Complaint, Plaintiffs allege that they “have suffered actual damages at least in the amount of the subscription service offered by My- Life to remove and/or correct such information.” Compl. { 56. They have 4 Defendant incorrectly asserts its argument as being brought under 735 ILCS 5/2-619 when it does not seek to negate an alleged cause of action completely or attempt to refute crucial conclusions of law or conclusions of material fact (i.e. yes, plaintiff has stated a cause of action, but it fails for these reasons). See Smith v. Waukegan Park District, 231 I. 2d 111, 121 (2008). Rather, it is asserting that the Complaint on its face fails to meet all the elements of an IRPA claim as contemplated by 615. Beacham v. Walker, 231 Ill. 2d 51, 57 (2008). Mislabeling the basis for a motion to dismiss is inappropriate, but not always fatal as the motion’s substance determines the code section under which it is analyzed. Loman v. Freeman, 375 Ill. App. 3d 445, 448 (2006). The court will conduct its analysis under 615. Page 4 of 8 not, however, alleged that they have paid the subscription fee, incurred some other calculable loss, or pleaded facts underlying the same—they have failed to plead a cause of action under the Act. Alpha School Bus, 391 Il. App. 3d at 736. Like Defendant’s cited cases, the court is in no way bound by the holding in Gabiola v. Sarid, No. 16-cv-02076, 2017 U.S. Dist. LEXIS 157699 (N.D. Ill. Sep. 26, 2017), and it does not find the analysis persuasive. Section 505/2QQQ is nested within the larger Consumer Fraud Act. While the plain language of this section creates a statutory right to not be charged for the conduct described, it is a fundamental principle of statutory con- struction that we construe individual provisions in light of the whole enact- ment. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006) (citing Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000)). Section 505/10a and its interpreting case law are clear that a private right of action exists only where a party has suffered actual damages. All other violations fall within the purview of the Attorney General. Nothing in 2QQQ serves to derogate from this structure. The court DISMISSES Count II, Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act without prejudice as there are poten- tially still facts Plaintiffs can allege and prove that would entitle them to relief. 735 ILCS 5/2-619 First Amendment Emphasizing that it is more akin to a directory of public information, MyLife maintains that it is entitled to the full protection of the First Amendment for its content. Its argument, however, relies on the rejected premise that all it provides is access to more comprehensive versions of the data initially displayed. Our free speech jurisprudence recognizes the dis- tinction between commercial and non-commercial speech, according differ- ent levels of protection depending on its classification. “Although commer- cial-speech cases generally rely on the distinction between speech that pro- poses a commercial transaction and other varieties of speech, [citation], it’s a mistake to assume that the boundaries of the commercial-speech category are marked exclusively by this ‘core’ definition. [Citation.] To the contrary, there is a ‘commonsense distinction’ between commercial speech and other varieties of speech, and we are to give effect to that distinction.” Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 516-17 (7th Cir. 2014). The Seventh Circuit in Jordan reaffirmed its test for classifying speech containing both commercial and non-commercial elements, including “ ‘whether: (1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech.’ ” Id. (quoting United States v. Benson, 561 F.3d 718, 725 (7th Cir. 2009)). No one factor Page 5 of 8 in this analysis is overriding nor, indeed, must all necessarily be met. Id. (citing Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 67 n.14 (1983)). On a 619 motion to dismiss, the defendant admits the legal suffi- ciency of the allegations against them, Miner, 342 Ill. App. 3d at 413; it is only where they have satisfied the initial burden of outlining the affirma- tive matter that the burden “shifts to the plaintiff to establish that the de- fense is ‘unfounded or requires the resolution of an essential element of ma- terial fact before it is proven|[,]’” Van Meter v. Darien Park District, 207 Tl. 2d 359, 377 (2003) (quoting Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997)). Plaintiffs’ allegations meet all three factors in the Ben- son analysis and MyLife has failed to establish that the speech in question was non-commercial. The court declines to dismiss the Complaint based on the First Amendment. Communications Decency Act Section 230 of the Communications Decency Act (CDA) provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another infor- mation content provider.” 47 U.S.C.S. § 230 (Lexis Advance 2019). The IIli- nois Appellate Court has followed the Seventh Circuit in recognizing that “section 230(c) ‘as a whole cannot be understood’ as granting blanket im- munity to an [interactive computer service] user or provider from any civil cause of action that involves content posted on or transmitted over the In- ternet by a third party. Lansing v. Southwest Airlines Co., 2012 IL App (1st) 101164, { 40 (quoting Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008)). Rather, sub- section (c)(1) is interpreted in accordance with its plain language, “that an [interactive computer service] user or provider like defendant must not ‘be treated as the publisher or speaker of any information provided by’ someone else.” (Emphasis added.) Id. at { 41. Subsection (f)(3) classifies “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service” as an infor- mation content provider. To the extent that MyLife is actively engaged in creating or developing unlawful content, on its own or in part with infor- mation provided by third parties, liability is not preempted by the CDA. See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Circ. 2008) (en banc). Here, Plaintiffs’ allegations do not treat MyLife as the speaker or publisher of third-party content, but as the purported generator of material violative of the IRPA. Furthermore, a genuine issue of material fact is present regarding the extent of MyLife’s involvement in producing the allegedly unlawful content. The court must, therefore, DENY Page 6 of 8 MyLife’s 619 request to dismiss under the Communications Decency Act at this time. Dormant Commerce Clause As previously recognized, it is only where a movant has satisfactorily outlined their affirmative defense that the burden “shifts to the plaintiff to establish that the defense is ‘unfounded or requires the resolution of an es- sential element of material fact before it is proven.’” Van Meter, 207 Il. 2d at 377. In arguing a lack of personal jurisdiction and extraterritorial appli- cation in violation of the dormant commerce clause, merely asserting that MyLife is incorporated in Delaware and based in California or that appli- cation here would control conduct beyond Illinois does not serve to satisfy its initial burden. Here, Plaintiffs allege that they are Illinois residents who encountered their identities used to advertise MyLife’s services to them while in Illinois. Plaintiffs claim that MyLife utilized Illinois public records in generating its content, making it reasonable to infer that it was directing its advertising efforts to individuals in this state. MyLife has not affirma- tively shown that it did not attempt to contract with Illinois residents in Illinois. See, e.g. Innovative Garage Door Co. v. High Ranking Domains, LLC, 2012 IL App (2d) 120117 (finding that a high level of location-oriented internet activity involving the exchange of commercial information and on- going contractual commitments established sufficient minimum contacts with Illinois for the exercise of personal jurisdiction over a nonresident com- pany); Zazove v. Pelikan, Inc., 326 Ill. App. 3d 798 (2001) (holding that al- legedly unlawful advertising directed to Illinois and Illinois residents was a sufficient basis to exercise personal jurisdiction over a nonresident de- fendant where the content at issue formed part of the core of plaintiffs claim). Moreover, it has failed to do more than make general claims that liability under the IRPA here would control conduct beyond Illinois’s bound- aries. MyLife has not pointed to how such a finding could or would lead to a patchwork of regulations across the states, how enforcement of the IRPA for Illinois residents would impact its out-of-state business, or how it would be unduly burdened, here or abroad, by adjudicating statutory privacy claims. On a 619 motion, the court is required to make all reasonable infer- ences in Plaintiffs’ favor from the facts alleged. MyLife has admitted the legal sufficiency of Plaintiffs’ claim and failed to affirmatively defeat the same, the court must deny its 619 motion based on the dormant commerce clause at this time. WHEREFORE, Defendant MyLife.com’s 735 ILCS 5/2-619.1 Motion to Dismiss Plaintiffs Amended Complaint is GRANTED in that Count II is dismissed without prejudice and is otherwise DENIED. Plaintiffs are given Page 7 of 8 leave to amend their Complaint on or before May 28, 2019, provided that any attempt to replead a claim under the Consumer Fraud and Deceptive Business Practices Act is supported by sufficient allegations of ultimate fact outlining actual damages as understood by Illinois law. MyLife is to answer or otherwise plead to any amended complaint on or before June 25, 2019 This case is set for management and status on July 8, 2019 at 10:30 a.m. in courtroom 2102. NS JUDGE DAVID B. ATKI DR 24 2019 ENTEBRD rt-1879 L ) Judge David Atkins The court. Page 8 of 8