                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Aliano v. Ferriss, 2013 IL App (1st) 120242




Appellate Court            MARIO ALIANO, Individually and on Behalf of All Others Similarly
Caption                    Situated, Plaintiff-Appellant, v. TIMOTHY FERRISS and RANDOM
                           HOUSE, a New York Corporation, Defendants-Appellees.



District & No.             First District, First Division
                           Docket No. 1-12-0242


Filed                      March 29, 2013


Held                       An order dismissing with prejudice plaintiff’s amended complaint
(Note: This syllabus       alleging violations of the Consumer Fraud Act and the Deceptive Trade
constitutes no part of     Practices Act based on the marketing statements defendant made in
the opinion of the court   connection with a weight loss and exercise book it published was
but has been prepared      affirmed, since the statements were not false, they could not be construed
by the Reporter of         as misleading and plaintiff failed to sufficiently allege any unfair
Decisions for the          practices.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-CH-1939; the
Review                     Hon. Stuart Palmer, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Zimmerman Law Offices, P.C., of Chicago (Thomas A. Zimmerman, Jr.,
Appeal                     and Adam M. Tamburelli, of counsel), for appellant.

                           Holland & Knight, LLP, of Chicago (Martin G. Durkin, Jr., and Trisha M.
                           Rich, of counsel), for appellees.


Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                           opinion.
                           Justices Rochford and Delort concurred in the judgment and opinion.



                                            OPINION

¶1          This appeal arises from a December 21, 2011 order entered by the circuit court of Cook
        County which dismissed with prejudice the first amended complaint filed by plaintiff-
        appellant Mario Aliano (Aliano), individually and on behalf of all others similarly situated,
        against defendants-appellees Timothy Ferriss and Random House, a New York corporation
        (collectively, Random House). On appeal, Aliano argues that the trial court erred in ruling
        that he failed to state a cause of action under section 2 of the Illinois Consumer Fraud and
        Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 2010)) and
        section 2 of the Illinois Uniform Deceptive Trade Practices Act (Deceptive Trade Practices
        Act) (815 ILCS 510/2 (West 2010)). For the following reasons, we affirm the judgment of
        the circuit court of Cook County.

¶2                                       BACKGROUND
¶3          On December 14, 2010, Random House published the book The 4-Hour Body: An
        Uncommon Guide to Rapid Fat-Loss, Incredible Sex, and Becoming Superhuman (the book).
        The book consists of 13 chapters and 550 pages. Both the book and the Internet website
        www.fourhourbody.com contain the following marketing statements, which are at issue in
        this case:
            “YOU WILL LEARN (in less than 30 minutes each)
            *How to prevent fat gain while bingeing [sic] (X-mas, holidays, weekends)
            * How to increase fat-loss 300% with a few bags of ice
            * How Tim gained 34 pounds of muscle in 28 days, without steroids, and in four hours
            of total gym time
            * How to sleep 2 hours per day and feel fully rested
            * How to produce 15-minute female orgasms
            * How to triple testosterone and double sperm count


                                                 -2-
          * How to go from running 5 kilometers to 50 kilometers in 12 weeks
          * How to reverse ‘permanent’ injuries
          * How to add 150+ pounds to your lifts in 6 months
                                              ***
                                         Bonus Material
          This book isn’t just what you hold in your hands. Using passwords hidden in this book
          you can access some of the most entertaining material that didn’t make it in. Here are just
          a few samples:
          Spot Reduction Revisited: Removing Stubborn Thigh Fat
          Becoming Brad Pitt: Uses and Abuses of DNA
          The China Study: A Well-Intentioned Critique
          Heavy Metal: Your Personal Toxin Map
          The Top 10 Reasons Why BMI Is Bogus
          Hyperclocking [sic] and Related Mischief: How to Increase Strength 10% in One
          Workout
          Creativity on Demand: The Promises and Dangers of Smart Drugs
          An Alternative to Dieting: The Bodyfat [sic] Set Point and Tricking the Hypothalamus
              For this and much more, visit the free message boards (where I also post answers and
          suggestions) at www.fourhourbody.com.”
¶4        According to Aliano, he purchased the book1 in reliance on the marketing statements
     regarding the availability of the “bonus material.” On January 14, 2011, Aliano filed a class
     action complaint against Random House in the circuit court of Cook County. After Aliano
     filed his complaint, Random House made the bonus material available to the public free of
     charge on the website www.fourhourworkweek.com/blog/4-hour-body-bonus-material-and-
     bonus-chapters/. On or around March 1, 2011, Random House removed the case from the
     circuit court of Cook County to the United States District Court for the Northern District of
     Illinois, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. In response, Aliano filed a motion
     to remand the case to the circuit court of Cook County. On June 7, 2011, the district court
     granted Aliano’s motion and remanded the case to the circuit court.
¶5        On July 15, 2011, Aliano filed a four-count first amended class action complaint in the
     circuit court of Cook County. Count I alleged breach of warranty; count II alleged a violation
     of section 2 of the Consumer Fraud Act; count III alleged a violation of section 2 of the
     Deceptive Trade Practices Act; and count IV alleged unjust enrichment. Specifically, Aliano
     claimed that through the marketing statements in the book and on the Internet, Random
     House misrepresented that the bonus material would only be available to purchasers of the
     book. Aliano alleged that at the time Random House marketed, promoted, and published the
     book, there was no bonus material available. After Aliano filed his original complaint,
     Random House made the bonus material available to the public free of charge. The book

            1
                Aliano did not specify the date on which he purchased the book.

                                                 -3-
     contains approximately 550 pages and the bonus material is approximately 56 pages. The
     retail price of the book is $27. Aliano claimed that the retail price of the book was expected
     to represent the value of all the pages in the book plus the bonus material, for a total of 606
     pages. He alleged that when he purchased the book, he only received the 550 pages in the
     printed book and did not receive the bonus material which was supposedly to be found on
     the book’s website. Aliano claimed that the 550 pages that he received were only 91% of the
     606 pages for which he paid. Thus, he claimed that the actual value of the 550 page book was
     $24.57 (91% of $27). Aliano sought damages in the amount of $2.43, which is the difference
     between the retail price of the book and what he claims is the actual value of the book he
     received. Aliano also sought damages for the lack of exclusive access to the bonus material
     based on Random House’s decision to post the bonus material on the website for any and all
     who cared to retrieve it.
¶6        On or around August 5, 2011, Random House filed a motion to dismiss Aliano’s first
     amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code)
     (735 ILCS 5/2-615 (West 2010)). Random House argued that counts II and III of Aliano’s
     first amended complaint should be dismissed because: Aliano failed to allege any deceptive
     conduct; Aliano failed to allege any damages; Aliano’s consumer fraud claims are improperly
     based on a breach of promise; and Aliano failed to allege any unfair conduct, precluding his
     deceptive trade practices claim. Random House also argued that count IV of Aliano’s first
     amended complaint should be dismissed because count IV was derivative of counts II and
     III and Aliano could not state a claim for unjust enrichment because he alleged that there was
     a contract between the parties.
¶7        On September 2, 2011, Aliano filed a response to Random House’s motion to dismiss
     in which he voluntarily withdrew count I of his first amended complaint and requested leave
     to amend his complaint. On December 21, 2011, the trial court granted Random House’s
     motion to dismiss with prejudice. In making its ruling, the trial court examined the marketing
     statements made in the book, and focused on the following language: “This book isn’t just
     what you hold in your hands. Using passwords hidden in this book, you can access some of
     the most entertaining material that didn’t make it in.” The trial court concluded that the text
     of the marketing statements does not indicate that purchase of the book is required to access
     the bonus material. The trial court stated that nothing in the language of the marketing
     statements promises exclusive access to the bonus material, and there is nothing to suggest
     that purchasers of the book could reasonably expect to have exclusive access to the bonus
     material. Further, the trial court reasoned that because the book is widely available in
     bookstores across the country, any consumer could find the book in a store and write down
     the passwords in the book that were supposed to grant access to the bonus material. Thus,
     the trial court concluded that consumers were not required to purchase the book in order to
     access the bonus material. The trial court dismissed counts II and III of Aliano’s first
     amended complaint because they failed to state a cause of action under the Consumer Fraud
     Act and Deceptive Trade Practices Act. Further, the trial court dismissed count IV of
     Aliano’s first amended complaint because it was predicated on counts II and III and claims
     for unjust enrichment cannot stand when a contract exists between the parties.
¶8        On January 19, 2012, Aliano filed a timely notice of appeal. Therefore, this court has

                                              -4-
       jurisdiction to consider Aliano’s arguments on appeal pursuant to Illinois Supreme Court
       Rule 303 (eff. May 30, 2008).

¶9                                            ANALYSIS
¶ 10        We determine the following issues on appeal: (1) whether the trial court erred in
       dismissing counts II and III of Aliano’s first amended complaint; and (2) whether the trial
       court erred in dismissing count IV of Aliano’s first amended complaint on the ground that
       it is predicated on counts II and III.
¶ 11        We first determine whether the trial court erred in dismissing counts II and III of Aliano’s
       first amended complaint.
¶ 12        Aliano argues that the trial court erred in dismissing his first amended complaint and
       holding that Random House’s conduct was not deceptive as a matter of law. Specifically,
       Aliano argues that the allegations in his first amended complaint contained all of the
       elements necessary in stating a claim under the Consumer Fraud Act and Deceptive Trade
       Practices Act. Aliano argues that in order to state a claim under the Consumer Fraud Act, the
       plaintiff must allege: (1) a deceptive act or practice; (2) intent on the defendant’s part that
       the plaintiff rely on the deception; and (3) that the deception occurred in the course of
       conduct involving trade or commerce. Siegel v. Levy Organization Development Co., 153 Ill.
       2d 534, 542, 607 N.E.2d 194, 198 (1992). Aliano asserts that the Consumer Fraud Act is
       supposed to be broadly applied and liberally construed (DOD Technologies v. Mesirow
       Insurance Services, Inc., 381 Ill. App. 3d 1042, 1051, 887 N.E.2d 1, 9 (2008)), and that the
       trial court construed the Consumer Fraud Act far more narrowly than it was intended. He
       contends that in stating a claim under the Consumer Fraud Act, the plaintiff does not need
       to show that a defendant intended to deceive, but only that it intended the plaintiff to rely on
       its act or information. Griffin v. Universal Casualty Co., 274 Ill. App. 3d 1056, 1065, 654
       N.E.2d 694, 700 (1995). Even a negligent or innocent misrepresentation may be actionable
       under the Consumer Fraud Act. Id., 654 N.E.2d at 700-01. Aliano asserts that to state a claim
       under the Deceptive Trade Practices Act, a plaintiff must only allege that the defendant’s
       conduct fell within one of the subsections of the statute. See 815 ILCS 510/2 (West 2010).
¶ 13        Aliano argues that he sufficiently alleged that Random House misrepresented that
       consumers needed to purchase the book in order to access the bonus material; that Random
       House intended that consumers rely on this misrepresentation; and that the misrepresentation
       occurred in the course of conduct involving trade or commerce. He asserts that he sought
       damages for the lack of exclusive access to the bonus material; and also because he paid
       what he terms an inflated price for the book that was expected to represent the value of the
       book and the bonus material, but did not. Aliano claims that he alleged that his damages
       were a direct result of the representations in Random House’s marketing statements. Aliano
       points out that he also alleged that Random House’s conduct was unfair because: it offended
       public policy; it was immoral, unethical, oppressive, or unscrupulous; and it caused
       substantial injury to consumers. Aliano contends that at the very least, Random House’s
       marketing statements about the bonus material were misleading and created the likelihood
       of deception. Also, Aliano argues that the trial court used the wrong standard in its analysis


                                                 -5-
       because it concluded that nothing in the marketing statements promises that purchasers of
       the book would have exclusive access to the bonus material. He claims that the marketing
       statements were misleading, even though Random House did not explicitly promise that
       purchasers would have exclusive access to the bonus material. Aliano argues that although
       the trial court may have disagreed with his interpretation of the marketing statements, his
       interpretation was reasonable and was therefore sufficient to defeat a motion to dismiss
       pursuant to section 2-615 of the Code.
¶ 14       Further, Aliano argues that the trial court improperly considered the effect the marketing
       statements had on consumers, rather than the intent of Random House. He contends that the
       effect a misrepresentation has on consumers is normally a question of fact which is not
       susceptible to a motion to dismiss. People ex rel. Daley v. Datacom Systems Corp., 146 Ill.
       2d 1, 34-35, 585 N.E.2d 51, 66 (1991). Aliano claims that it is clear that the trial court
       focused on the effect of the marketing statements because it concluded that any consumer
       could find the book in a store and write down the passwords that are supposed to grant access
       to the bonus material. Aliano argues that the trial court’s conclusion focuses on whether
       Random House’s marketing statements promised purchasers exclusive access to the bonus
       material, instead of the proper inquiry which was Random House’s intent to deceive
       consumers with its marketing statements. He contends that in ruling on the motion to
       dismiss, the trial court should not have speculated about whether consumers could
       circumvent the process of purchasing the book in order to access the bonus material. Aliano
       argues that such determinations are more appropriate for the trier of fact. See Kedziora v.
       Citicorp National Services, Inc., 780 F. Supp. 516, 534 (N.D. Ill. 1991); Daley,146 Ill. 2d
       at 34-35, 585 N.E.2d at 66. Aliano claims that if Random House did not intend for
       consumers to believe that purchase of the book was required to access the bonus material,
       then it could have advertised the bonus material as free material. Rather, Aliano argues that
       Random House represented that the bonus material would be revealed through passwords
       that consumers would find after they purchased the book. Aliano asserts that although the
       marketing statements can be construed as being true, they can also be construed as deceptive
       and misleading. See Williams v. Bruno Appliance & Furniture Mart, Inc., 62 Ill. App. 3d
       219, 222, 379 N.E.2d 52, 54 (1978).
¶ 15       In response, Random House argues that the trial court correctly held that the allegations
       in Aliano’s first amended complaint were insufficient to state a cause of action under the
       Consumer Fraud Act and Deceptive Trade Practices Act. Random House asserts that the core
       of Aliano’s claims was that Random House represented that purchase of the book was
       required to access the bonus material. Random House argues that the trial court correctly
       found that nothing in Random House’s marketing statements said that purchase of the book
       was required to access the bonus material. Random House contends that the trial court was
       correct in stating that if purchase of the book was required to access the bonus material, then
       Random House would have used some method to restrict the public access to the bonus
       material.
¶ 16       Random House next argues that Aliano’s first amended complaint was properly
       dismissed because he received the benefit of his bargain, and thus suffered no damages.
       Random House points out that Aliano alleged that he only received 550 pages of material,

                                                -6-
       instead of the 606 pages of material for which he paid. However, Random House argues that
       Aliano did in fact receive the 606 pages of material for which he paid once the bonus
       material was posted on the Internet free of charge. Random House contends that it promised
       to post the bonus material on the Internet and fulfilled its promise. Random House argues
       that although others had access to the bonus material as well, Aliano received exactly what
       he paid for. Random House points out that Aliano did not allege that he was unable to access
       the bonus material or that any bonus material was missing. Thus, Random House argues that
       Aliano was not harmed by the marketing statements in the book.
¶ 17        Additionally, Random House argues that the consumer fraud allegations in Aliano’s first
       amended complaint are deficient because they are based solely on an alleged breach of
       promise. Random House contends that despite the way a plaintiff presents his allegations,
       breach of a contractual promise, without more, is not actionable under the Consumer Fraud
       Act. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 169, 835 N.E.2d
       801, 844 (2005). Random House asserts that Aliano’s consumer fraud claims are based on
       the alleged promise that purchase of the book is required to obtain access to the bonus
       material. Random House claims that Aliano did not allege any deceptive conduct beyond
       breach of this alleged promise. Thus, Random House argues that Aliano’s consumer fraud
       allegations are deficient.
¶ 18        Further, Random House argues that the consumer fraud allegations in Aliano’s first
       amended complaint are deficient because he did not allege facts supporting a claim of unfair
       practice and did not allege that Random House’s acts proximately caused his damages.
       Random House argues that to allege that a practice is unfair, a plaintiff must plead that the
       practice: (1) offends public policy; (2) is immoral, unethical, oppressive, or unscrupulous;
       and (3) causes substantial injury to consumers. Robinson v. Toyota Motor Credit Corp., 201
       Ill. 2d 403, 417-18, 775 N.E.2d 951, 960-61 (2002). Random House claims that Aliano
       simply recited the criteria for an unfair practice without presenting any facts to support the
       recited allegations. Random House also argues that in alleging a claim for consumer fraud,
       a plaintiff must show that a wrongful act by the defendant proximately caused his loss.
       Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 149, 776 N.E.2d 151, 160 (2002). Random House
       claims that Aliano simply alleged that Random House’s representations proximately caused
       his loss, without presenting any facts to support the allegation. Random House argues that
       Aliano cannot demonstrate proximate cause because there is no immediate and direct
       relationship between Random House’s representations and Aliano’s loss. Random House
       contends that the book states that it contains passwords that will allow access to the bonus
       material, but it does not state that consumers would have to purchase the book in order to
       access the bonus material. Thus, Random House asserts that there is no causal nexus between
       Random House’s representations and Aliano’s alleged loss. Also, Random House argues that
       Aliano cannot demonstrate that he was actually deceived because he received exactly what
       he paid for. Therefore, Random House argues that the consumer fraud allegations in Aliano’s
       first amended complaint are deficient.
¶ 19        Lastly, Random House argues that the trial court correctly dismissed count IV in Aliano’s
       first amended complaint, which alleged unjust enrichment. Random House argues that
       Aliano forfeited review of this issue because he failed to raise it in his brief on appeal.

                                                -7-
       Sklodowski v. Countrywide Home Loans, Inc., 358 Ill. App. 3d 696, 698 n.2, 832 N.E.2d 189,
       193 n.2 (2005). Notwithstanding the forfeiture argument, Random House argues that the trial
       court correctly dismissed count IV because it was based on Aliano’s deficient consumer
       fraud and deceptive trade practices claims, and it is not a separate cause of action that can
       stand alone. Martis v. Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017, 1024, 905
       N.E.2d 920, 928 (2009). When an underlying claim of fraud is deficient, the unjust
       enrichment claim should also be dismissed. Id. at 1025, 905 N.E.2d at 928. Random House
       argues that because the trial court properly held that Aliano’s consumer fraud and deceptive
       trade practices allegations were deficient, it properly dismissed count IV which alleged unjust
       enrichment. Also, Random House argues that a plaintiff cannot allege unjust enrichment
       while also alleging that there is a contractual relationship between the parties. Guinn v.
       Hoskins Chevrolet, 361 Ill. App. 3d 575, 604, 836 N.E.2d 681, 704 (2005). Random House
       contends that the trial court correctly held that the purchase and sale of a book is a
       contractual relationship, precluding Aliano from alleging unjust enrichment. Thus, Random
       House argues that the trial court correctly dismissed count IV of Aliano’s first amended
       complaint.
¶ 20       “A motion to dismiss pursuant to section 2-615 of the Code [citation] attacks the legal
       sufficiency of a complaint by alleging defects on the face of a complaint.” Vitro v. Mihelcic,
       209 Ill. 2d 76, 81, 806 N.E.2d 632, 634 (2004). In order to survive a motion to dismiss, the
       plaintiff’s complaint must allege facts that set forth the essential elements of the cause of
       action. Visvardis v. Ferleger, 375 Ill. App. 3d 719, 724, 873 N.E.2d 436, 441 (2007). In
       ruling on a motion to dismiss pursuant to section 2-615 of the Code, a court must accept as
       true all well-pleaded allegations of fact in the complaint and all reasonable inferences
       therefrom. Vitro, 209 Ill. 2d at 81, 806 N.E.2d at 634. “The critical inquiry is whether the
       allegations of the complaint, when construed in the light most favorable to the plaintiff, are
       sufficient to establish a cause of action upon which relief may be granted.” Id. The court
       must construe pleadings liberally when ruling on a motion to dismiss. Visvardis, 375 Ill.
       App. 3d at 724, 873 N.E.2d at 441. “However, the court will not admit conclusions of law
       and conclusory allegations not supported by specific facts.” Id. The reviewing court applies
       the de novo standard of review to a trial court’s dismissal pursuant to section 2-615 of the
       Code. Id.
¶ 21       Count II of Aliano’s first amended complaint alleged a violation of section 2 of the
       Consumer Fraud Act. Section 2 of the Consumer Fraud Act states:
           “Unfair methods of competition and unfair or deceptive acts or practices, including but
           not limited to the use or employment of any deception, fraud, false pretense, false
           promise, misrepresentation or the concealment, suppression or omission of any material
           fact, with intent that others rely upon the concealment, suppression or omission of such
           material fact, or the use or employment of any practice described in Section 2 of the
           [Deceptive Trade Practices Act], approved August 5, 1965, in the conduct of any trade
           or commerce are hereby declared unlawful whether any person has in fact been misled,
           deceived or damaged thereby. In construing this section consideration shall be given to
           the interpretations of the Federal Trade Commission and the federal courts relating to
           Section 5(a) of the Federal Trade Commission Act.” 815 ILCS 505/2 (West 2010).

                                                 -8-
¶ 22       Count III of Aliano’s first amended complaint alleged a violation of section 2 of the
       Deceptive Trade Practices Act. Specifically, count III was based on the following provisions
       within section 2 of the Deceptive Trade Practices Act:
                “(a) A person engages in a deceptive trade practice when, in the course of his or her
           business, vocation, or occupation, the person:
                                                  ***
                     (5) represents that goods or services have sponsorship, approval, characteristics,
                ingredients, uses, benefits, or quantities that they do not have or that a person has a
                sponsorship, approval, status, affiliation, or connection that he or she does not have;
                                                  ***
                     (9) advertises goods or services with intent not to sell them as advertised;
                                                  ***
                     (12) engages in any other conduct which similarly creates a likelihood of
                confusion or misunderstanding.
                (b) In order to prevail in an action under this Act, a plaintiff need not prove
           competition between the parties or actual confusion or misunderstanding.” 815 ILCS
           510/2(a), (a)(5), (a)(9), (a)(12), (b) (West 2010).
¶ 23       Under the Consumer Fraud Act, deceptive practices include advertising goods with the
       intent not to sell them as advertised, and engaging in conduct that creates the likelihood of
       confusion or misunderstanding. Smith v. Prime Cable of Chicago, 276 Ill. App. 3d 843, 857,
       658 N.E.2d 1325, 1335 (1995). Courts have held that an advertisement is deceptive on its
       face if it creates the likelihood of deception or has the capacity to deceive. Id., 658 N.E.2d
       at 1335-36. “Where the deception is based on a misrepresentation, that misrepresentation
       must be material and must relate to a matter upon which the plaintiff could be expected to
       rely in determining whether to engage in the conduct in question.” Id., 658 N.E.2d at 1336.
¶ 24       In order to adequately plead a cause of action under the Consumer Fraud Act, a plaintiff
       must allege: (1) a deceptive act or practice by the defendant; (2) the defendant’s intent that
       the plaintiff rely on the deception; (3) that the deception occurred in the course of conduct
       involving trade or commerce; and (4) actual damage to the plaintiff (5) proximately caused
       by the deception. Oliveira, 201 Ill. 2d at 149, 776 N.E.2d at 160. “[T]he required allegation
       of proximate cause is minimal since that determination is best left to the trier of fact.”
       Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 504, 675 N.E.2d 584, 595 (1996). In analyzing
       deceptive conduct, the Consumer Fraud Act allows courts to refer to interpretations of the
       Federal Trade Commission and federal decisions under the Federal Trade Commission Act
       (15 U.S.C. § 45). See 815 ILCS 505/2 (West 2010). The Federal Trade Commission has
       explained the standard for analyzing deceptive conduct as follows:
                “ ‘It is well established that the test to be used in interpreting advertising is the net
           impression that it is likely to make on the general populace. [Citations.] It is immaterial
           that a given phrase considered technically may be construed so as not to constitute a
           misrepresentation or that a deception is accomplished by innuendo rather than by
           affirmative misstatement. [Citations.] Where an advertisement is subject to two


                                                  -9-
            interpretations, one of which is false, the Commission is not bound to assume that the
            truthful interpretation is the only one which will be left impressed on the mind of every
            reader. [Citations.]’ ” Williams, 62 Ill. App. 3d at 222, 379 N.E.2d at 54 (quoting In re
            Rodale Press, Inc., 71 F.T.C. 1184 (1967)).
¶ 25        Alternatively, under the Consumer Fraud Act, a plaintiff may recover against a defendant
       for an unfair practice as opposed to deceptive conduct. Robinson, 201 Ill. 2d at 417, 775
       N.E.2d at 960. In order to allege that a practice is unfair, a plaintiff must plead that the
       practice: (1) offends public policy; (2) is immoral, unethical, oppressive, or unscrupulous;
       and (3) causes substantial injury to consumers. Id. at 417-18, 775 N.E.2d at 960-61.
¶ 26        We are not persuaded by Aliano’s arguments. Although the threshold for withstanding
       a motion to dismiss pursuant to section 2-615 of the Code is relatively low, the allegations
       in Aliano’s first amended complaint did not amount to deceptive conduct. In order for a
       defendant’s conduct to be considered deceptive under the Consumer Fraud Act, it must, at
       the very least, create the likelihood of confusion or misunderstanding. See Smith, 276 Ill.
       App. 3d at 857, 658 N.E.2d at 1335. In his first amended complaint, Aliano alleged that
       Random House misrepresented that purchase of the book was required to access the bonus
       material, and that purchasers of the book would have exclusive access to the bonus material.
       However, as the trial court correctly concluded, there was nothing in the marketing
       statements that supported Aliano’s allegations. The operative language in the marketing
       statements is as follows: “This book isn’t just what you hold in your hands. Using passwords
       hidden in this book, you can access some of the most entertaining material that didn’t make
       it in.” This language does not state or suggest that purchase of the book is required to access
       the bonus material. Likewise, this language does not suggest that book purchasers would
       have exclusive access to the bonus material. In fact, the language states that the bonus
       material is material that “didn’t make it in,” suggesting that the bonus material is separate
       and distinct from the book.
¶ 27        Moreover, neither party addresses the language in the bonus material marketing
       statements which says “[f]or this and much more, visit the free message boards (where I also
       post answers and suggestions) at www.fourhourbody.com.” The fact that Random House
       stated that the bonus material would be available on “free message boards” further suggests
       that Random House did not misrepresent the exclusivity of the bonus material and that
       Random House did not misrepresent that purchase of the book was required to access the
       bonus material. Based on all the language in the marketing statements, we find that the
       marketing statements do not create the likelihood of confusion or misunderstanding, despite
       Aliano’s contrary interpretation.
¶ 28        Although the language of the marketing statements is clever and is clearly designed to
       pique the interest of consumers, we cannot say that the marketing statements misrepresented
       material facts. We note that Aliano points out that the Federal Trade Commission has held
       that deceptive conduct can be analyzed based on the net impression an advertisement makes
       on the general public; and that where an advertisement is subject to two interpretations, one
       of which is false, the court is not bound to assume that the truthful interpretation is the only
       one which will be left impressed on the mind of every reader. See Williams, 62 Ill. App. 3d
       at 222, 379 N.E.2d at 54 (quoting In re Rodale Press, Inc., 71 F.T.C. 1184 (1967)). However,

                                                -10-
       in this case, the net impression that the marketing statements make on the general public is
       that the bonus material is accessible with or without purchasing the book. The marketing
       statements do not contain any false statements and cannot reasonably be construed as
       misleading. Thus, Aliano was unable to sufficiently allege deceptive conduct in his first
       amended complaint. Likewise, Aliano was unable to sufficiently allege unfair practice as
       Random House’s conduct did not offend public policy; the conduct was not immoral,
       unethical, oppressive, or unscrupulous; and the conduct did not cause substantial injury to
       consumers. We hold that the trial court did not err in dismissing counts II and III of Aliano’s
       first amended complaint.
¶ 29        We note that Aliano requested leave to amend his first amended complaint before the
       trial court in his response to Random House’s motion to dismiss. A trial court’s ruling
       regarding the right to file an amended complaint will not be reversed absent an abuse of
       discretion. Orr v. Shepard, 171 Ill. App. 3d 104, 109, 524 N.E.2d 1105, 1109 (1988).
       However, as Random House points out, Aliano never formally moved for leave to file a
       second amended complaint and never specified what amendments he would make to his
       complaint. Thus, the trial court did not abuse its discretion in dismissing Aliano’s first
       amended complaint with prejudice. See Cooper v. United Development Co., 122 Ill. App. 3d
       850, 859-60, 462 N.E.2d 629, 636 (1984) (trial court did not abuse its discretion in refusing
       to grant plaintiff leave to file an amended complaint where no amendment was presented,
       and no specific indication was given as to the contents of the proposed amendatory
       document). Moreover, Aliano did not present an argument regarding this issue in his brief
       on appeal. Therefore, we hold that the trial court properly dismissed Aliano’s first amended
       complaint with prejudice, thereby precluding further amendment of the first amended
       complaint.
¶ 30        Finally, we determine whether the trial court erred in dismissing count IV of Aliano’s
       first amended complaint, which alleged unjust enrichment. As Random House points out,
       Aliano did not present any arguments regarding this issue in his brief on appeal.2 Thus,
       Random House argues that Aliano has forfeited review of this issue on appeal. See
       Sklodowski, 358 Ill. App. 3d at 698 n.2, 832 N.E.2d at 193 n.2. We agree. Therefore, we need
       not address this issue.
¶ 31        For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 32       Affirmed.




                2
                    We note that Aliano also did not present any arguments regarding this issue in his reply
       brief.

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