Higgins v. Men's Wearhouse, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATE HIGGINS, on behalf of himself
and all others similarly situated,
Plaintiff,
vs.
THE MEN’S WEARHOUSE, LLC,
Defendant.
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Case No. 3:25-cv-1390-DWD
MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court is Defendant Men’s Wearhouse, LLC’s (“Men’s Wearhouse”)
Motion to Dismiss Plaintiff’s Complaint. (Doc. 24). Plaintiff Nate Higgins (“Higgins”)
seeks relief on behalf of himself and all others similarly situated against Men’s Wearhouse
for the following claims: (1) violation of the Illinois Consumer Fraud and Deceptive
Business Practice Act (“ICFA”) by means of unfair business practices, (2) violation of
ICFA by means of deception, and (3) unjust enrichment. For the reasons detailed below,
Defendant’s motion is DENIED.
BACKGROUND
Plaintiff’s Complaint (Doc. 1-2) sets forth the following allegations. Higgins rented
a tuxedo from Defendant Men’s Wearhouse in November of 2024 at its location in
Edwardsville, Illinois. (Doc. 1-2, pg. 5). Included in Plaintiff’s final cost to rent the tuxedo
was a charge for $12.00 that was labeled as a “Damage and Handling Fee” (the “D&H
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Fee”). (Id., pgs. 3, 5). Higgins was presented a Rental Agreement that described the D&H
Fee as follows:
A $12.00 non-refundable and mandatory Damage and Handling Fee
is automatically added to your rental. This fee covers the cost of
minor repairs to the rental, and the costs associated with inspection,
quality control and processing of the rental. If we determine that a
rental is damaged beyond repair, or a rental is not returned, you will
also be charged the full replacement cost of the item(s).
(Id., pg. 23 (copy of rental receipt attached to Plaintiff’s Complaint as Exhibit A)).
Plaintiff alleges that by charging the D&H Fee, Defendant has engaged in a
deceptive and unfair business practice because (1) it constitutes the practice of insurance
without a license, (2) the D&H fee exceeds the stated costs as a mechanism for Defendant
to earn additional profit while presenting a lower price, (3) the fee’s description falsely
suggests that minor repairs must always be made upon return and that the fee covers
“the cost of” those repairs, and (4) the fee is an “obscured double-dipping” charge
because the purported costs covered by the D&H Fee are inherent to a tuxedo rental and
would be expected to be included in the rental price itself. (Doc. 1-2, pgs. 3-4). Plaintiff
alleges that Defendant intended that he rely on these alleged deceptive and unfair
practices and that such practices would result in collection of the D&H Fee. (Id., pgs. 11-
13, 15-16). Plaintiff alleges that he suffered ascertainable loss by overpaying for the tuxedo
rental due to Defendant’s alleged deceptive and/or unfair conduct. (Id., pgs. 13, 17).
Plaintiff initially filed his Complaint in Illinois state court on June 11, 2025. (Doc.
1). Defendant then timely removed the case to this Court. (Id.). Defendant has filed the
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instant motion arguing for Plaintiff’s Complaint (Doc. 1-2) to be dismissed for failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
LEGAL STANDARD
Rule 12(b)(6) allows challenges to a pleading based upon the failure to state a claim
for which relief may be granted. Fed. R. Civ. P. 12(b)(6); Firestone Fin. Corp. v. Meyer, 796
F.3d 822, 825 (7th Cir. 2015) (quoting Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732,
736 (7th Cir. 2014)). To survive a Rule 12(b)(6) motion, which tests the sufficiency of the
pleading but not its merits, the plaintiff must allege enough facts for the claim to be
facially plausible. Kloss v. Acuant, Inc., 462 F. Supp. 3d 873, 876 (7th Cir. 2020) (quoting
McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 878 (7th Cir. 2012)); Fosnight v. Jones,
41 F.4th 916, 921-22 (7th Cir. 2022) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). There must be enough facts pled to draw inferences as to liability. Fosnight,
41 F.4th at 922 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A pleading need not
allege “detailed factual allegations,” but it must lift the claim above the speculative level.
Kloss, 462 F. Supp. 3d at 876 (citing Twombly, 550 U.S. at 555). “Threadbare recitals,”
supported by conclusions, are insufficient. Trivedi v. Wells Fargo Bank, N.A., 609 F. Supp.
3d 628, 631 (N.D. Ill. 2022) (quoting Iqbal, 556 U.S. at 678).
When ruling on motions to dismiss, courts accept all well-pleaded factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s
favor. Fortres Grand Corp. v. Warner Bros. Ent. Inc., 763 F.3d 696, 700 (7th Cir. 2014). The
Court must also consider “documents attached to the complaint, documents that are
critical to the complaint and referred to in it, and information that is subject to proper
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judicial notice,” along with additional facts set forth in the plaintiff’s briefing, “so long as
those facts are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d
1017, 1020 (7th Cir. 2013) (internal quotation marks omitted).
ANALYSIS
The ICFA is “intended to protect consumers … against fraud, unfair methods of
competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor
Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002). “Deceptive or unfair practices include any
‘misrepresentation or the concealment, suppression or omission of any material fact.”
Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019) (quoting 815 ILL. C OMP .
S TAT. § 505/2). To state a claim under the act, a plaintiff must plead that “(1) the defendant
committed a deceptive or unfair act, (2) with the intent that others rely on the deception,
(3) that the act occurred in the course of trade or commerce, and (4) it caused actual
damages.” Wertymer v. Walmart, Inc., 142 F.4th 491, 495 (7th Cir. 2025); see also Benson v.
Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019) (quoting Vanzant, 934
F.3d at 736). Defendant contends in its motion that Plaintiff’s Complaint fails to meet the
first, second and fourth elements. (Doc. 25, pg. 9).
The initial question presented by Defendant’s motion is whether Plaintiff’s
Complaint adequately alleges that Defendant committed a deceptive or unfair practice.
Claims under the statute may be premised on either or, as is the case here, both. Vanzant,
934 F.3d at 736. “If the claim rests on allegations of deceptive conduct, then Rule 9(b)
applies and the plaintiff must plead with particularity the circumstances constituting
fraud. Specifically, the complaint must identify the ‘who, what, when, where, and how’
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of the alleged fraud.” Id. (citing Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th
Cir. 2014)); see also Wertymer, 142 F.4th at 495. “On the other hand, Rule 9(b)’s heightened
pleading standard does not apply to an allegation of unfair conduct, because fraud is not
a required element under that branch of the statute.” Benson, 944 F.3d at 646; see also
Vanzant, 934 F.3d at 738-39.
Plaintiff’s Complaint on its face makes plausible claims. It alleges that Defendant’s
charging of the D&H Fee is both deceptive and unfair. Starting with the former, “a
practice is deceptive ‘if it creates a likelihood of deception or has the capacity to deceive.’”
Benson, 944 F.3d at 646 (quoting Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir.
2001)). Courts analyze the likelihood of deception from the perspective of a reasonable
consumer “in light of the totality of the information made available to the plaintiff.” Davis
v. G.N. Mortg. Corp., 396 F.3d 869, 884 (7th Cir. 2005); see also Kraft, Inc. v. Fed. Trade
Comm’n, 970 F.2d 311, 314 (7th Cir. 1992) (“[T]he determination of whether an [act] has a
tendency to deceive is an impressionistic one more closely akin to a finding of fact than a
conclusion of law.”).
As mentioned above, Plaintiff’s Complaint provides that Defendant’s charging of
the D&H Fee is a deceptive and unfair practice because (1) it constitutes the practice of
insurance without a license of certification, (2) the D&H Fee exceeds the stated costs of
“minor repairs to the rental and the costs associated with the inspection, quality control,
and processing of this rental” and provides a mechanism to earn additional profit while
presenting a lower sales price, (3) the description of the D&H Fee falsely suggests that
minor repairs must always be made upon return and that the fee covers “the cost of” such
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repairs, and (4) the D&H Fee is an “obscured double dipping” charge to the consumer
who would otherwise expect such costs to be inherent to rental of a tuxedo and therefore
included in the rental price. (Doc. 1-2, pgs. 3-5, 14-16). Defendant argues that these
allegations are not sufficient to state a claim for deceptive conduct under the ICFA. (Doc.
25, pgs. 5-12).
First, Defendant argues that it is not practicing insurance by charging the D&H
Fee. (Id., pgs. 5-9). Defendant relies on the state appellate court case Griffin Sys., Inc. v.
Washburn to provide its definition of “insurance,” which is provided as follows:
(1) a contract or agreement between an insurer and an insured which
exists for a specific period of time; (2) an insurable interest (usually
property) possessed by the insured; (3) consideration in the form of
a premium paid by the insured to the insurer; and (4) the assumption
of risk by the insurer whereby the insurer agrees to indemnify the
insured 	for 	potential pecuniary 	loss 	to the 	insured's 	property
resulting from certain specified perils.
505 N.E.2d 1121, 1123-24 (Ill. App. Ct. 1987). Defendant argues that Plaintiff has failed to
allege the fourth element of this definition. (Doc. 25, pg. 6). Specifically, Defendant posits
that “the assumption of risk required for insurance to exist only happens when there is a
third party involved in that risk transfer.” (Id.) (emphasis added). In support, Defendant
cites to Griffin Systems, providing that “[i]nsurance policies […] are generally issued by
third parties and are based on a theory of distributing a particular risk among many
customers.” 505 N.E.2d at 1124.
Defendant’s position is untenable as its reading of Griffin Systems is too broad. If
Defendant’s position were to be the law, the entire concept of self-insurance would not
exist. Additionally, Griffin Systems was decided prior to the Illinois Supreme Court’s
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decision in Outboard Marine Corp., v. Liberty Mutual Ins. Co., which provided the definition
for insurance as “[a] contract whereby one undertakes to indemnify another against loss,
damage, or liability arising from an unknown or contingent event and is applicable only
to some contingency or act to occur in [the] future.“ 607 N.E.2d 1204, 1210 (Ill. 1992).
Plaintiff’s allegations, which the Court must accept as true in consideration of the
instant motion, clearly demonstrate a plausible agreement for insurance. The D&H Fee
description in the Rental Agreement provides that Plaintiff will not be liable for any costs
for “minor repairs to the rental and the costs associated with the inspection, quality
control, and processing of the rental” in exchange for $12.00. It further provides that if “a
rental is damaged beyond repair, or a rental is not returned, you will also be charged the
full replacement cost of the item(s).” (Doc. 1-2, pg. 23). As such, it is plausible that
Defendant is effectively assuming the risk for the contingency that Plaintiff would return
a rental that is not damaged beyond repair but still requires costs for “minor repairs[,]
the inspection, quality control, and processing of the rental” that exceed $12.00.
Accordingly, Defendant’s argument that Plaintiff failed to plead that it entered an
insurance contract or assumed risk falls flat.
Plaintiff’s remaining allegations also demonstrate a plausible case that Defendant
committed a deceptive act. They provide that Defendant’s (who) description of the D&H
Fee on the Rental Agreement (what) made factually inaccurate statements about the fee
that did not reflect the alleged true purpose of the charge (how) in November of 2024
(when) at its location in Edwardsville, Illinois (where). (Doc. 1-2, pgs. 5-6); see Cooks v.
Hertz Corp., Case No. 3:15-CV-0652-NJR-PMF, 2016 WL 3022403, *5-6 (S.D. Ill. Apr. 29,
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2016) (finding allegations of deception sufficient where plaintiff alleged that defendant
misrepresented the fee it was charging “because the fees were not used for the stated
purpose, but instead were used to gain additional profit”). Plaintiff’s Complaint provides
the allegations necessary to satisfy the heightened pleading standard of Rule 9(b): in
particular, that the D&H Fee exceeded the stated costs as a mechanism to earn additional
profit while presenting a lower price. (Doc. 1-2, pg. 15).
Defendant insists that this allegation is insufficient because it is based on
“information and belief” and that Plaintiff’s Complaint lacks “the grounds for its
suspicions.” (Doc. 25, pg. 11 (citing Pirelli, 631 F.3d at 442)). But Plaintiff’s allegations that
the Rental Agreement’s description of the D&H Fee suggests “that minor repairs must
always be made by [Defendant] upon the return of the Item of Formal Wear and that the
D&H Fee covers in part ‘the cost of’ those repairs, when in fact that is not the case[]”
provides an adequate basis for the suspicion that Defendant’s D&H Fee is not being used
for its stated purpose. (Doc. 1-2, pg. 15). Accordingly, Plaintiff’s allegations are sufficient
to demonstrate that Defendant committed a deceptive act under the statute.
Plaintiff also raises a claim under the ICFA pursuant to an unfair practices theory.
As Defendant concedes in its Reply brief, Plaintiff’s claim of unfair business practices
“duplicates his ICFA deception claim” because it “merely interchanges the word ‘unfair’
for ‘deceptive’ throughout his Complaint.” (Doc. 29, pgs. 1-2). Defendant raises this point
to suggest that Plaintiff’s ICFA unfair practices claim is subject to the heightened pleading
standard of Rule 9(b), as well. (Id.; Doc. 25, pgs. 4-5 (citing Pirelli Armstrong Tire Corp.
Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436 (7th Cir. 2011); Camasta, 761 F.3d
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at 737 (“Simply adding the language of unfairness instead of misrepresentation does not
alter the fact that [plaintiff’s] allegations are entirely grounded in fraud under the
ICFA.”)). Plaintiff disagrees and argues that the general rule described above should
apply. (Doc. 28, pg. 4); see Benson, 944 F.3d at 646 (“Rule 9(b)’s heightened pleading
standard does not apply to an allegation of unfair conduct, because fraud is not a required
element under that branch of the statute.”).
Regardless of the pleading standard applied, Plaintiff’s allegations of unfair
practices are sufficient to state a claim under an unfair practices theory. Given that the
Court has already found above that the allegations provided in support of Plaintiff’s
ICFA deception claim meet Rule 9(b)’s heightened pleading standard, and that those
substantively identical allegations are provided in support of his unfair practices claim,
it follows that Plaintiff’s ICFA unfair practices claim is adequately pleaded under the
statute. See Vanzant, 934 F.3d at 739 (finding it “not necessary to address the adequacy of
the allegations under the unfair-practices theory of the case” where the same allegations
were found to support “a deceptive-practices claim to the degree of particularity required
by Rule 9(b).”). Accordingly, Plaintiff’s claim under the ICFA for unfair practices
survives.
The Court now directs its attention to the second and fourth elements of an ICFA
claim. Defendant argues that Plaintiff has failed to allege facts demonstrating that
Defendant intended for Plaintiff to rely on its deceptive and unfair acts and only alleged
“bare assertions.” (Doc. 25, pgs. 15-16). But Rule 9(b) states that “intent, knowledge, and
other conditions of a person’s mind may be alleged generally.”
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Here, Plaintiff provides a clear allegation that Defendant “intended that Plaintiff
and the Class rely on the aforesaid [unfair/deceptive] advertising, acts and practices.”
(Doc. 1-2, pgs. 13, 16). These allegations are supported by the facts alleged earlier in
Plaintiff’s Complaint, which provide that Defendant presents the Rental Agreement
containing the allegedly false description of the D&H Fee to Plaintiff and those similarly
situated at or near the end of the rental transaction. (Id., pgs. 2-3); see Shannon v. Boise
Cascade Corp., 805 N.E.2d 213, 218 (Ill. 2004) (“It is enough that the statements by the
defendant be made with the intention that it reach the plaintiff and influence his action
and that it does reach him and that he does rely upon it, to his damage.”) (quoting St.
Joseph Hosp. v. Corbetta Const. Co., Inc., 316 N.E.2d 51, 72 (Ill. App. Ct. 1972)). By providing
Plaintiff with the rental agreement containing the alleged false description of the fee at
issue, it is clear Defendant intended for Plaintiff to rely on the language therein.
Therefore, Plaintiff’s Complaint adequately pleads the intent requirement of his ICFA
claims.
Finally, as noted above as the fourth element of a claim under the ICFA, Plaintiff
must plead that he suffered actual damages. Wertymer, 142 F.4th at 495. “To satisfy the
actual damages element, a plaintiff must allege ‘actual pecuniary loss.’” Muir v. Playtex
Products, LLC, 983 F.Supp.2d 980, 990 (N.D. Ill. Nov. 6, 2013) (quoting Kim’s v. Carter’s
Inc., 598 F.3d 362, 365 (7th Cir. 2010)). Here, Plaintiff has met that requirement. Plaintiff’s
Complaint provides that Plaintiff would have paid less to rent a tuxedo had he “known
the truth about the D&H Fee” and its description in the rental agreement been accurate,
as Defendant “would have charged less for the D&H Fee to only cover its actual costs.”
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(Doc. 1-2, pgs. 6, 13, 17); see In re Folgers Coffee, 2021 WL 7004991, *12 (W.D. Mo. Dec. 28,
2021) (finding ICFA adequately pleaded where plaintiff alleged that she paid “more than
the actual value” of the purchase due to defendant’s misrepresentations) (citing Muir, 983
F.Supp.2d at 990). As such, Plaintiff has adequately pleaded all elements of her claims
under the ICFA. Accordingly, Defendant’s Motion to Dismiss is denied with respect to
Counts I and II of Plaintiff’s Complaint.
Plaintiff’s claim for unjust enrichment also survives Defendant’s motion. In
Illinois, “unjust enrichment is not a separate cause of action” and “is tied to the fate of the
claim under the” ICFA. Vanzant, 934 F.3d at 739-40 (citing Pirelli, 631 F.3d at 447; Cleary
v. Philip Morris Inc., 656 F.3d 511, 518 (7th Cir. 2011)); see also Mashallah, Inc. v. West Bend
Mutual Ins. Co., 20 F.4th 311, 324 (7th Cir. 2021). Because Plaintiff’s statutory claims may
proceed, so too may his claim for unjust enrichment. See id. (reviving unjust enrichment
claim where appellate court reversed lower court’s dismissal of plaintiff’s ICFA claims).
CONCLUSION
For the reasons provided herein, Defendant’s Motion to Dismiss Pursuant to
Federal Rule of Civil Procedure 9(b) (Doc. 24) is DENIED.
SO ORDERED.
Dated: March 16, 2026
______________________________
DAVID W. DUGAN
United States District Judge
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