Defective Dental Crown and Consumer Fraud

Complaint of defect or fraud are sometimes dismissed on procedural grounds.  In this case, the plaintiff alleged that crown were defective and fraudulently marketed.  Because they failed to identify the specific misrepresentation to the court's satisfaction, the case was dismissed. 
Rather than reveal the true defective nature of the Nano crown, the websites falsely represented that: (1) the technology enabled the creation of long-lasting crowns and (4) 'years of research and patient satisfaction had proven that Captek crowns [were] durable, accurate, attractive high-purity gold, without sacrificing the strength.  In 2008, the plaintiff viewed and read the information, statements and representations posted on the website  which he relied upon in purchasing  Crowns for his patients starting in September, 2008.

In their amended class complaint, plaintiffs allege claims for breach of the implied warranty of merchantability (Count I), fraudulent misrepresentation (Count II), and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Count III). Id. at 12-19.

In Illinois, the elements of a claim for fraudulent misrepresentation are: (1) a false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from that reliance. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 569 (7th Cir. 2012). Under Federal Rule of Civil Procedure 9(b), "a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). This means that "a plaintiff ordinarily must describe the 'who, what, when, where, and how' of the [8]  fraud—'the first paragraph of any newspaper story.'" Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436, 441-42 (7th Cir. 2011).

Plaintiffs have not satisfied Rule 9(b) as to Count II because they do not plead reliance with sufficient particularity. The complaint contains several vague references to "Plaintiffs" relying on "advertising materials" and "representations.   These advertising materials were directly distributed to, viewed by and relied upon by Plaintiffs and the class. These allegations, however, omit the particular circumstances of either Prescott or Tambornini's reliance—e.g., the approximate date of their reliance, the specific documents on which they relied, the specific misstatements within the documents on which they relied, or how any misstatements caused plaintiffs to rely on them. Lacking such detail, these types of allegations fail to satisfy Rule 9(b).
Prescott v. Argen Corp., 2015 U.S. Dist. LEXIS 1008, 5-11 (N.D. Ill. Jan. 6, 2015)