## Facts

- Massage Envy Franchising, LLC licensed independently owned Massage Envy locations and marketed massage services on its website.
- The website advertised an “Introductory 1-hour Massage Session*” at a stated price.
- The asterisk disclosure (reachable only through multiple clicks) stated that a “session includes massage or facial and time for consultation and dressing.”
- Plaintiffs Kathy Haywood (Illinois) and Lia Holt (Missouri) alleged the “1-hour” advertising was deceptive because customers received about 50 minutes of hands-on massage, with the remainder consumed by non-massage activities.
- Plaintiffs alleged the disclosure placement and hyperlink structure made the limitation hard to find and confusing to consumers.
- Haywood alleged she booked an appointment after receiving a gift card.

## Issues

1. Whether Haywood stated an Illinois Consumer Fraud and Deceptive Business Practices Act claim by pleading, with Rule 9(b) particularity, that the “1-hour” representation was the but-for cause of her damages.
2. Whether Holt stated a Missouri Merchandising Practices Act claim by pleading, with Rule 9(b) particularity, that a deceptive representation caused an ascertainable loss.
3. Whether the district court abused its discretion by dismissing the complaint with prejudice.

## Decision

- The Seventh Circuit affirmed dismissal under Rule 12(b)(6) with prejudice.
- For Haywood’s ICFA claim, the court held the complaint did not plausibly allege but-for causation and did not plead causation with the specificity required by Rule 9(b).
- For Holt’s MMPA claim, the court held the complaint failed to plead with particularity that a specific deceptive representation caused an ascertainable loss.
- The court held the district court did not abuse its discretion in dismissing with prejudice.

## Legal Principles

- Under Rule 12(b)(6), a complaint must plead sufficient factual matter to state a plausible claim for relief.
- When a consumer-protection claim sounds in fraud, Rule 9(b) requires pleading the “who, what, when, where, and how” of the alleged deception, including facts supporting causation.
- A private ICFA plaintiff must allege actual damages as a result of the deception, including that the misrepresentation was the but-for cause of the plaintiff’s injury.
- An MMPA plaintiff must allege that an unlawful practice caused an ascertainable loss of money or property connected to a consumer purchase.

## Conclusion

The Seventh Circuit affirmed dismissal of the putative class action because the plaintiffs’ fraud-based consumer claims did not plead, with Rule 9(b) particularity, that the challenged “1-hour” marketing caused their purchasing decisions or an ascertainable loss, and the district court acted within its discretion in dismissing with prejudice.


Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329 (7th Cir. 2018)