005); see also IPOX Schuster, LLC v. Nikko Asset Mgmt. Co., 191 F. Supp. 3d 790, 807 (N.D. Ill. 2016) ("Although the [U]DTPA does not contain text expressly confining its application to events or circumstances arising in Illinois, there is a 'long-standing rule of construction in Illinois which holds that a 'statute is without extraterritorial effect unless a clear intent in this respect appears from the express provisions of the statute.'" (quoting Avery, 216 Ill. 2d at 184, 835 N.E.2d at 854)); Underground Sols., Inc. v. Palermo, No. 13 C 8407, 2014 WL 4703925, at *10 (N.D. Ill. Sept. 22, 2014) (collecting cases applying the reasoning in Avery to UDTPA claims); LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 809 F. Supp. 2d 857, 859 (N.D. Ill. 2011) (holding the rule stated in Avery applies to the UDTPA as well as to the CFA). There is "no single formula or bright-line test" for determining whether a transaction occurs within Illinois. Avery, 216 Ill. 2d at 187, 835 N.E.2d at 854; accord Phillips v. Bally Total Fitness Holding Corp., 372 Ill. App. 3d 53, 58, 865 N.E.2d 310, 315 (1st Dist. 2007). Several factors, however, are relevant to determining whether a transaction occurred "primarily and substantially" in Illinois: "(1) the plaintiff's residence, (2) where the misrepresentation was made, (3) where the damage to the plaintiff occurred, and (4) whether the plaintiff communicated with the defendant in Illinois." Specht v. Google, Inc., 660 F. Supp. 2d 858, 866 (N.D. Ill. 2009); see also In re Sears Roebuck & Co. Tools Mktg. & Sales Practices Litig., No. 05 C 2623, 2005 WL 3077606, at *1 (N.D. Ill. Nov. 14, 2005).
; accordPhillips v. Bally Total Fitness Holding Corp. , 372 Ill. App. 3d 53, 58, 309 Ill.Dec. 947, 865 N.E.2d 310, 315 (1st Dist. 2007).
Id. at 854, 296 Ill. Dec. at 501.Crichton v. Golden Rule Ins. Co., 576 F.3d 392, 396 (7th Cir. 2009); see Avery, 835 N.E.2d at 854-55 (holding that out-of-state plaintiffs alleging that insurer had violated the ICFA by using substitute parts in car repairs could not pursue the claim, even though insurer was located in Illinois, because plaintiffs lived, interacted with the insurer's agents, received estimates, and had the repairs performed in states other than Illinois); Phillips v. Bally Total Fitness Holding Corp., 865 N.E.2d 310, 316 (Ill. App. Ct. 2007) (nonresident plaintiffs alleging that fitness center company told them they could cancel their memberships and later refused to do so could not maintain an ICFA claim against the Illinois-based fitness center company because plaintiffs "resided, bought memberships, signed contracts, used fitness facilities and were subject to the disputed billing and collection practices in states other than Illinois").
ORS is also headquartered in Illinois. "The fact that a scheme to defraud was disseminated from a company's headquarters in Illinois is insufficient" without more. Phillips v. Bally Total Fitness Holding Corp., 372 Ill. App. 3d 53, 58, 865 N.E.2d 310, 315 (2007). In this case, however, both the plaintiff and one of the defendants are headquartered in Illinois.
Id. Phillips v. Bally Total Fitness Holding Corp., 372 Ill.App.3d 53, 309 Ill.Dec. 947, 865 N.E.2d 310 (2007), provides another example of how the Avery test operates. There, two nonresident plaintiffs alleged that a health-club chain headquartered in Illinois had violated the Act by refusing to cancel their memberships.
Nor is it enough to allege “that a scheme to defraud was ‘disseminated' from [a defendant's] headquarters.” Id. at 189; see also Phillips v. Bally Total Fitness Holding Corp., 372 Ill.App.3d 53, 865 N.E.2d 310, 316 (Ill. App. 2007) (“Under Avery, plaintiffs' claim that the deceptive policies were devised in and promulgated from Illinois is not sufficient to establish a nexus with Illinois.”).
While Avery dealt with nonresident claimants, subsequent decisions have clarified that the test of a viable ICFA claim is whether the disputed transaction takes place “primarily and substantially in Illinois.” See Barbara's Sales, Inc. v. Intel Corp., 879 N.E.2d 910, 919 (Ill. 2007) (internal quotations omitted); Gridley v. State Farm Mut. Auto. Ins. Co., 840 N.E.2d 269, 275 (Ill. 2005); Phillips v. Bally Total Fitness Holding Corp., 865 N.E.2d 310, 316 (Ill.App.Ct. 2007). Thus, while Avery set out a nexus test for non-resident plaintiffs, the law is nevertheless clear that even an Illinois resident must show that the disputed transaction occurred “primarily and substantially in Illinois.
In Haught v. Motorola Mobility, Inc., for example, a court in this district dismissed an ICFA claim even though "the alleged misrepresentations were designed in Illinois" and "emanated from servers located in Illinois." No. 12-CV-2515, 2012 WL 3643831, at *4 (N.D. Ill. Aug. 23, 2012); see Phillips v. Bally Total Fitness HoldingCorp., 865 N.E.2d 310, 316 (Ill. App. Ct. 2007); Sheeley v. Wilson Sporting Goods Co., No. 17-CV-3076, 2017 WL 5517352, at *2 (N.D. Ill. Nov. 17, 2017). Similarly, here, Plaintiffs emphasize that Inteliquent has its headquarters in Illinois and may have inserted fake ring tones from a Chicago-area data center.
Defendants' authorities regarding the California, Colorado, and Illinois statutes discuss only a presumption against extraterritorial application, the application of which appears to be a fact-intensive process. See O'Connor v. Uber Techs., Inc., 58 F. Supp. 3d 989, 1004 (N.D. Cal. 2014); Phillips v. Bally Total Fitness Holding Corp., 865 N.E.2d 310, 315 (Ill. App. Ct. 2007); Peerless Ins. Co. v. Clark, 487 P.2d 574, 575 (Colo. App. 1971). Defendants fail to present any arguments regarding how the presumption applies to Plaintiffs' factual allegations.
In Phillips v. Bally Total Fitness Holding Corp., nonresident plaintiffs did not have standing to bring an ICFA claim against Illinois-headquartered Bally because they bought health-club memberships and used Bally's health clubs in Colorado and Missouri. 372 Ill.App.3d 53, 309 Ill.Dec. 947, 865 N.E.2d 310, 315–16 (2007).