Deleted
Deleted Member
Posts: 0
|
Post by Deleted on May 29, 2019 18:49:57 GMT -5
Docket #144
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. Case No. 18-cv-1465 GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB Honorable Matthew F. Kennelly and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS
Defendants GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center (“GLV”), Rick Butler (“Rick”), and Cheryl Butler (“Cheryl”), through their attorney, Danielle D’Ambrose of D’Ambrose P.C., file this Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, and in support thereof, state as follows:
1. On February 27, 2018, Plaintiff filed her Complaint in this action. (Dkt. 1) 2. The Complaint filed against the Defendants, brought pursuant to the Illinois Physical Fitness Services Act, 815 ILCS 645/1 et seq. (Count I and Count II), the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (Count III), common law fraud (Count IV), common law fraudulent concealment (Count V), and unjust enrichment (Count VI), alleges that the Defendants have misrepresented or intentionally omitted allegations of sexual abuse made against Rick Butler from the 1980s. (Dkt. 1, ¶ 3) 3. Each and every cause of action advanced by the Plaintiff fails as a matter of law because Mullen and the Class suffered no injury-in-fact to establish Article III standing, and they have not suffered actual damages to satisfy the element necessary to each claim. Moreover, Plaintiff Mullen was not actually deceived by conduct of the Defendants, and no reasonable consumer would have been deceived by any act of the Defendants. 4. Plaintiff unsuccessfully attempts to establish that general, subjective statements, allegedly made by Defendants, regarding the program’s safety, quality of coaches, and superiority to its competitors, were material misrepresentations of fact and part of a coordinated systematic concealment of the allegations by Defendants. 5. As set forth more fully in Defendants’ their Local Rule 56.1(a)(3) Statement of Material Facts and supporting documents filed herewith, and in Defendants’ Memorandum in Support of Defendants’ Motion for Summary Judgment on All Claims, filed concurrently herewith as Exhibit 1 to Defendants’ Motion for Leave to File Memorandum in Support of Summary Judgment on All Claims in Excess of Fifteen Pages, summary judgment is appropriate on every cause of action set forth by Plaintiff.
WHEREFORE, Defendants respectfully request that this Court enter an Order granting Defendants’ Motion for Summary Judgment on All Claims and granting any other relief that this Court deems just and proper. Date: May 28, 2019 Respectfully Submitted, GLV, INC., RICK BUTLER, and CHERYL BUTLER By: /s/ Danielle D’Ambrose
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on May 29, 2019 18:56:12 GMT -5
Docket #144 - Supplement (I will effort getting the 23 exhibits referenced in this document available in the google drive from page one in the next few days. Ironically, VT is referenced numerous times!) 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. Case No. 18-cv-1465 GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB Honorable Matthew F. Kennelly and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants. DEFENDANTS’ LOCAL RULE 56.1(a)(3) STATEMENT OF UNDISPUTED MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE In support of their Motion for Summary Judgment filed this date, Defendants, GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center (“GLV”), Rick Butler (“Rick”), and Cheryl Butler (“Cheryl”) herewith submit their Local Rule 56.1(a)(3) Statement of Material Facts as to which there is no genuine issue and which entitle the Defendants to summary judgment as a matter of law. The Defendants’ Statement also includes a description of the parties and all facts supporting this Court’s venue and jurisdiction. LR 56.1(a)(3)(A) & (B). Jurisdiction 1. Plaintiff Laura Mullen, a natural person and a citizen of the State of Illinois, is the parent of two daughters who played club volleyball for the Sports Performance program between 2012-2017. (Dkt. 1, ¶ 6); Declaration of Laura Mullen (Exhibit A, ¶ ¶ 1-5, 9); Declaration of Danielle D’Ambrose (Exhibit M, ¶ 9) Case: 1:18-cv-01465 Document #: 144-1 Filed: 05/28/19 Page 1 of 19 PageID #:3802 2 2. Plaintiff alleges that, had she and class members “known the full truth and depth of Butler’s sexual, emotional, and physical abuse” of former players from the 1980s, they would not have allowed their children to attend Sports Performance and they would not have paid fees to Defendants. (Dkt. 1, ¶ ¶ 21-117, 176) 3. Defendant GLV, Inc., d/b/a Sports Performance Volleyball Club and Great Lakes Center, is a corporation organized and existing under the laws of the State of Illinois with its principal place of business located at 579 North Oakhurst Drive, Aurora, Illinois 60502. Declaration of Cheryl Butler (Exhibit O, ¶ 2) Sports Performance Volleyball Club is one of the most successful junior sports programs in the country. (Exhibit O, ¶ 17); (Exhibit N, ¶ 16) 4. Defendant Rick Butler, a natural person and citizen of the State of Illinois, is a “master coach” of the Sports Performance program, manages the business operations GLV, Inc., and was formerly a Director of the Sports Performance Volleyball Program. Declaration of Rick Butler (Exhibit N, ¶ ¶ 1-2) 5. Defendant Cheryl Butler, a natural person and citizen of the State of Illinois, manages the business operations of GLV Inc. and is a Director of the Sports Performance Volleyball Club and the Great Lakes Center Youth Academy. (Exhibit O, ¶ 2) 6. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2), because (i) at least one member of the putative Class is a citizen of a state different from the Defendants, namely, Wisconsin and Indiana, (ii) the amount in controversy exceeds $5,000,000, exclusive of interest and costs, and (iii) none of the exceptions under the subsection apply to this action. 28 U.S.C. § 1332(d)(2). (Dkt. 1, ¶ 10); (Exhibit O, ¶ 2) 3 7. Venue is proper in this District under 28 U.S.C. § 1391(b) because Plaintiff and Defendants reside in this District, and the unlawful conduct alleged by Plaintiff was directed to and emanated from this District. 28 U.S.C. § 1391(b). (Exhibit O, ¶ ¶ -2); (Exhibit N, ¶ ¶ 1-2) Mullen’s Allegations 8. Mullen’s oldest daughter, A.M., first began attending GLV camps and clinics in 2011, and she tried out and played for the Sports Performance Volleyball Club (“SPVB” or “SPRI”) for the 2012-2013 season, 2013-2014 season, 2015-2016 season, and 2016-2017 season. (Exhibit A, ¶ ¶ 2-3, 9); Email exchanges between GLV coaches and Mullen (Group Exhibit K, p. 2-4); (Exhibit N, ¶ 5); (Exhibit O, ¶ 5); Plaintiff’s First Supplemental Responses to Defendants’ First Set of Interrogatories (Exhibit C, No. 14); (Exhibit M, ¶ 5); (Dkt. 1, ¶ ¶ 167-68) 9. Mullen’s younger daughter, J.M., attended camps and clinics beginning in 2012, and played in GLV’s Great Lakes Center Youth Academy (“GLCYA”) for the 2012-2013 season, the 2013-2014 season, and the 2015-2016 season. (Exhibit A, ¶ ¶ 5, 9); (Group Exhibit K, p. 2-4); (Exhibit N, ¶ 6); (Exhibit O, ¶ 6); (Exhibit C, No. 14); (Exhibit M, ¶ 5, 9); (Dkt. 1, ¶ ¶ 167-68) J.M. tried out for the Sports Performance Volleyball Club in the fall of 2016 and played in the program for the 2016-2017 season. Id. 10. Mullen claims that GLV’s programs are not, and were not, safe because she alleges Rick Butler sexually abused players in the 1980s. (Dkt. 1, ¶ 164) 11. Plaintiff’s only claim of injury and actual damages are the fees she paid to Defendant GLV for volleyball instruction. Plaintiff’s Responses to Defendants’ First Set of Interrogatories (Exhibit B, No. 4); Plaintiff’s Rule 26(a) Initial Disclosures (Exhibit E, p. 12-13); (Exhibit M, ¶ ¶ 4, 7); (Dkt. 1, ¶ 238) 4 12. Mullen is not seeking to recover damages for any alleged abuse, she concedes that there has not been a single allegation of sexual abuse taking place after the 1980s, and she has no basis for her contention that, for over thirty years, Rick Butler has used his position to sexually abuse players in his program. Id; Plaintiff’s Responses to Defendants’ First Set of Requests for Admission (Exhibit D, No. 33-34); (Exhibit M, ¶ ¶ 3-4) 13. Plaintiff’s Complaint contains a list of allegedly deceptive statements which she claims to have relied upon in selecting the Defendants’ club. (Dkt. 1, ¶ ¶ 162-63) 14. Mullen is unable to state whether she heard or read any such statement prior to her daughter’s first year with Sports Performance program, in 2012, or if she heard them after the fact, in 2013. (Exhibit B, No. 5); (Exhibit C, No. 5); (Exhibit M, ¶ ¶ 4-5) 15. Plaintiff claims that she never read or heard Defendants’ alleged statements related to safety, which she lists in her Complaint, and that, rather, the statements were implied. Id. Background facts 16. The Sports Performance Volleyball Club requires all players to try out and be invited to participate in the club, regardless of whether they were accepted in the past, and only the most elite-level athletes are offered an invitation. (Exhibit O, ¶ 3); (Exhibit N, ¶ 3); Mullen/GLV email exchanges (Group Exhibit K, p. 1, 3, 9) Tryouts for the Girls program take place each year on Sundays in October and early November, and tryouts for the Boys program take place on the first Tuesday after Labor Day each year. Id. 17. If offered a spot in the program, parents such as Mullen attended a meeting where they signed and received a copy of the Sports Performance Parent/Player Contract, which outlined the rules of the club and expectations for the season. (Exhibit O, ¶ ¶ 3-4); (Exhibit N, ¶ ¶ 3-4); Sports Performance Parent/Player Contract (Exhibit F); (Exhibit M, ¶ 6) 5 18. Mullen signed the Sports Performance Parent/Player Contract during the enrollment process in 2012 and received a copy of the contract for each following year in which her daughters tried out and were accepted into Sports Performance Volleyball Club. (Exhibit A, ¶ 3-4); (Exhibit D, No. 29-31); (Exhibit M, ¶ ¶ 3, 9) The Sports Performance Contract 19. The Sports Performance Parent/Player Contract states that Sports Performance is “an excellence program” and outlines general rules and expectations of players and parents who are offered a spot in the club. (Exhibit F, p. 1); (Exhibit M, ¶ 6) 20. The Sports Performance Parent/Player Contract states that practices are closed to the public, including parents. (Exhibit F, p. 2 at #8); (Exhibit M, ¶ 6); (Exhibit O, ¶ 7); (Exhibit N, ¶ 7) 21. The Contract also states that all out of town travel will be done as a team, meaning that players do not travel to out of state tournaments with their families, and instead travel, dine, and reside with their teams under the supervision of GLV employees for the duration of the competition. (Exhibit F, p. 1 at #5); (Exhibit M, ¶ 6); (Exhibit O, ¶ 7); (Exhibit N, ¶ 7) Mullen’s communications with Sports Performance during participation in the program 22. For each year her daughters participated in GLV programs, Mullen received the training for which she paid. (Exhibit N, ¶ 10); (Exhibit O, ¶ 10) 23. Laura Mullen often emailed GLV employees, using her email address laura-mullen@sbcglobal.net (Exhibit D, No. 1) to praise the program for its excellent training, facilities, and overall value. (Exhibit K, p. 1-16); (Exhibit N, ¶ 9); (Exhibit O, ¶ 9); Declaration of Troy Gilb (Exhibit T, ¶ 3); Declaration of Erik Vogt (Exhibit U, ¶ 3). 6 24. For example, in September 2016, Mullen emailed GLV coach Erik Vogt, “…my money and [J.M.]’s time are both well spent!” (Group Exhibit K, p. 6); (Exhibit U, ¶ 3); (Exhibit D, No. 1) 25. After the 2014-2015 season when Mullen’s daughters played at Fusion (Exhibit C, No. 14), Plaintiff’s daughter, A.M., was unsure whether she would return to Sports Performance in the fall for the 2015-2016 season. On July 31, 2015, she emailed Rick Butler stating, in part, “I’m sorry my decision is taking so long, for me it’s a tough one.” (Exhibit L, p. 1); (Exhibit N, ¶ 9) Plaintiff’s oldest daughter’s email address is a[******]m[*****]@gmail.com. (Exhibit D, No. 40-41); (Exhibit M, ¶ ¶ 3, 5). 26. In response to A.M.’s email, Rick wrote: I very much appreciate your kind words. My gut feeling is that you should stay where you are. It seems like you have a lot going for you and I believe that Sports Performance is a place that you REALLY have to want to be a part of. If you’re not feeling that then you shouldn’t make the switch back. Ultimately, your happiness with your situation is the most important thing. I wish you all the best. (Exhibit L, p. 1); (Exhibit N, ¶ 9) Mullen’s knowledge or constructive knowledge of the allegations of misconduct in the 1980s 27. Mullen complains that she was defrauded by the Defendants because, during her enrollment process in GLV’s volleyball programs, Defendants and other GLV employees did not disclose to her “anything about” allegations made in 1994 against Rick Butler by former volleyball players claiming that he had sexually abused them in the 1980s. (Dkt. 1, ¶ ¶ 174, 190) 28. Mullen also complains that Defendants did not disclose the findings of USA Volleyball’s 1995 investigation and hearing on the allegations made against Rick Butler, or “anything related to” the 1995 USA Volleyball ban placed on Rick Butler as a result of the hearing, 7 which prohibited him from coaching in USAV-sponsored events and allowed him to re-apply for conditional membership after five years. (Dkt. 1, ¶ ¶ 174, 190); (Exhibit N, ¶ 16) 29. Further, Mullen complains that Defendants “did not disclose the findings of the Illinois DCFS,” which also investigated the allegations from the 1980s which were first made to the organization in 1994. (Dkt. 1, ¶ 174, 190) 30. Prior to 2011, when Plaintiff first allowed her daughters to participate in the Defendants’ volleyball camps and clinics, there were numerous articles publicly available on the internet which detailed the allegations of sexual abuse against Rick Butler during the 1980s, discussed the 1995 USA Volleyball hearing on the allegations of sexual abuse against Rick Butler and explained the findings and basis for the subsequent ban placed on Butler from coaching in USAV-sponsored events, provided information about Rick Butler’s appeal of USA Volleyball’s ban, set forth the DCFS investigation of the sexual abuse allegation and findings, among other things. (Group Exhibit P); (Group Exhibit G, p. 3-5, 7-12, 14-18, 20-27); (Group Exhibit H, p. 4-9); (Exhibit M, ¶ ¶ 10-11) 31. For example, an October 1995 article1 titled She Says She's Haunted by Coach's Misconduct: Volleyball: Julie Bremner Took Six Years to Come Forward With Her Story of Sexual Abuse, states: In 1994, Bremner registered a complaint with the Illinois Department of Children and Family Services, which found evidence to substantiate the charges of sexual misconduct. Then, Bremner and two other women went to USA Volleyball’s ethics and eligibility committee, charging Rick Butler…with having sex with them while they were 16 and 17 year old players. USAV ultimately expelled Butler for life…[h]e can apply for conditional membership in five years if there is no evidence of further relations with minors and if he agrees in writing not to coach junior girls. 1 Group Exhibit G, p. 14-18, Elliot Almond, She Says She's Haunted by Coach's Misconduct: Volleyball: Julie Bremner Took Six Years to Come Forward With Her Story of Sexual Abuse, Los Angeles Times, October 19, 1995, articles.latimes.com/1995-10-19/sports/sp-58618_1_volleyball-officials (last visited May 22, 2019). C 8 (Group Exhibit G, p. 14-15); (Exhibit M, ¶ 10) 32. A 7-page February 1996 article2 titled Sex, Lies and Volleyball discusses explicit details of the allegations of sexual abuse from three women referenced in Plaintiff’s Complaint over several pages, stating that “[w]ithin a few months of [Bremner’s] revelation, two more former players came forward and made similar allegations before the Illinois Department of Children and Family Services (DCFS) and the volleyball association.” (Group Exhibit G, p. 22); (Exhibit M, ¶ 10) The article also reported the basis for the USAV ban and related proceedings, stating that in “July [of 1995], Rick Butler and his coaching program were at the center of a maelstrom, and by the end of the month the U.S. Volleyball Association had revoked Butler’s membership…Butler lost an administrative appeal but on January second, filed a lawsuit against the association…Butler had asked the Cook County Circuit Court for a temporary restraining order to nullify the expulsion until the case is settled. Butler is also under criminal investigation by the DuPage County state’s attorney’s office.” (Group Exhibit G, p. 24-26); (Exhibit M, ¶ 10) 33. For example, a February 1996 article3 titled Coach-Athlete Sex Morally Wrong, Rules Or No Rules states, “Rick Butler…was expelled in July from USA Volleyball for allegedly having sex with three underage athletes.” (Group Exhibit P, p. 1); (Exhibit M, ¶ 10) The article includes excerpts from Bremner’s testimony at the USA Volleyball hearing and also stated that that “Judge Michael Getty of the Cook County Circuit Court in Chicago did not deny that abuse had taken place…” (Group Exhibit P, p. 2); (Exhibit M, ¶ 10). 2 Group Exhibit G, p. 20-27, Cynthia Hanson, Sex, Lies and Volleyball, Chicago Magazine, February 1996, www.yumpu.com/en/document/view/8476527/sex-lies-and-volleyball-chicago-magazine-cynthia-hanson (last visited May 22, 2019). 3 Group Exhibit P, p. 1-3, Mariah Burton Nelson Knight-Ridder, Coach-Athlete Sex Morally Wrong, Rules Or No Rules, February 16, 1996, www.spokesman.com/stories/1996/feb/16/coach-athlete-sex-morally-wrong-rules-or-no-rules/ (last visited May 22, 2019). 9 34. An April 1997 article4 titled Women Get A New Spin On Sports discusses a Sports Illustrated Women/Sport Magazine article titled Betrayal of Trust stating, “ t’s a story of Rick Butler, a male volleyball coach in Chicago, who was accused by three women of forcing them to have sex with him when they were teens playing on his club team.” (Group Exhibit P, p. 6); (Exhibit M, ¶ 10). 35. A February 1999 article5 titled Olympian Is For League, Firmly Against Butler states “[Nancy] Reno has been publicly critical of Butler’s training and methods in the past…Reno said she believes [the women who accused Butler of sexual abuse] because the three women who later complained to authorities confided in her and other teammates at the time.” (Group Exhibit P, p. 8); (Exhibit M, ¶ 10) 36. A January 20106 article titled Local Ties To Butler Have Faith In Club Director states that in 1995, three women who played for Butler “stepped forward with allegations of rape and many other levels of abuse they say occurred in the 1980s. Those allegations led to a hearing with USAV’s national office, as well as an investigation by the DuPage County sheriff’s office. The hearing with USAV resulted in a five-year ban from membership and a lifetime ban from coaching. He was reinstated as a USAV member in 2000 and has maintained his membership since.” (Group Exhibit P, p. 10); (Exhibit M, ¶ 10) 4 Group Exhibit P, p. 4-7, Hilary Kraus, Women Get A New Spin On Sports, The Spokesman-Review, April 13, 1997 www.spokesman.com/stories/1997/apr/13/women-get-a-new-spin-on-sports/ (last visited May 16, 2019). 5 Group Exhibit P, p. 8, Bonnie DeSimone, Olympian Is For League, Firmly Against Butler, Chicago Tribune, Feb. 19, 1999, articles.chicagotribune.com/1999-02-19/sports/9902190022_1_volleyball-bad-taste-club-coach (last visited May 27, 2018). 6 Group Exhibit P, p. 9-10, Rob Laird, Local Ties To Butler Have Faith In Club Director, Daily Journal, January 2, 2010, www.daily-journal.com/sports/local-ties-to-butler-have-faith-in-club-director/article_7be2129d-97b7-5ad2-8e44-d20b82b391df.html (last visited May 16, 2019). Case: 1:18-cv-01465 Document #: 144-1 Filed: 05/28/19 Page 9 of 19 PageID #:3810 10 37. Another January 2010 article7 titled Director of local volleyball club has controversial past states that “[t]he allegations and the ramifications were aired in the pages of a Sports Illustrated magazine and on the ESPN television show, ‘Outside the Lines,’ about a decade ago. It was all very graphic.” (Group Exhibit P, p. 11); (Exhibit M, ¶ 10) The article also quoted Bremner’s statements about the alleged abuse, referring to the quote as “one of several disturbing descriptions from the 2001 ESPN show and an interview with Julie Bremner Romias.” Id. The article continued: The allegations levied by Romias and two other women were also chronicled in ‘Betrayal of Trust,’ a blistering 7,000 word article written by Lester Munson and Johnette Howard in the spring of 1997 for the inaugural edition of the Sports Illustrated publication Women/Sport. The article, which went on to be featured in the 1998 edition of ‘Best American Sports Writing,’ provided the accounts of former players alleging sexual coercion and varying levels of mental, verbal, physical, sexual, and psychological abuse at the hands of Butler…Butler was also investigated by the Illinois Department of Child and Family Services, and the DuPage County Sheriff’s Office. DCFS termed that Butler was ‘indicated for risk of harm,’ meaning it felt the evidence of sexual misconduct by Butler was ‘credible.’” (Group Exhibit P, p. 11-12); (Exhibit M, ¶ 10) 38. Another January 2010 article8 titled Rob Laird: It had to be done discussed the allegations and investigation conducted by journalist Rob Laird, stating that “[t]he allegations were several years old when they came to light nearly 15 years ago, but they were so damning, so convincing, so disturbing, I felt obligated to investigate them.” (Group Exhibit P, p. 13-14); (Exhibit M, ¶ 10) 7 Group Exhibit P, p. 11-12, Rob Laird, Director of local volleyball club has controversial past, Daily Journal, January 2, 2010, www.daily-journal.com/news/local/director-of-local-volleyball-club-has-controversial-past/article_48f78e5e-e8ff-53ac-98d9-a940d3ce69d6.html (last visited May 16, 2019). 8 Group Exhibit P, p. 13-14, Rob Laird, Rob Laird: It had to be done, January 2, 2010, www.dailyjournal.com/sports/rob-laird-it-had-to-be-done/article_123ecc42-4381-57dc-af03-4539e394b96d.html (last visited May 16, 2019).
11
39. Mullen claims that, sometime between 2015 and 2017, she became aware that allegations of sexual abuse had been made against Rick Butler relating to conduct in the 1980s and that, after learning of the allegations, she viewed articles relating to the alleged sexual abuse online. (Exhibit C, No. 7-8); (Exhibit M, ¶ 5) 40. Mullen is a member of volleytalk.proboards.com, the online volleyball forum called Volley Talk, and her username under which she posts public comments, likes public comments, and sends private messages is “swimrowvball”. (Exhibit D, No. 1); Document Bates-stamped MULLEN_000333 produced by Plaintiff (Exhibit R); Plaintiff’s Responses to Defendants’ Request for Production (Exhibit Q, No. 4); (Group Exhibit G); (Group Exhibit H); (Group Exhibit I); (Exhibit M, ¶ ¶ 3, 8, 11, 13). 41. In August of 2015, approximately two months before returning to Sports Performance for the 2015-2016 season (Exhibit N, ¶ 3); (Exhibit , ¶ 3) Mullen posted on volleytalk.proboards.com within a thread titled “Rick Butler on Outside The Lines.” (Exhibit R); (Exhibit Q, No. 4); (Group Exhibit G); (Exhibit M, ¶ ¶ 8, 13). 42. Within the first two pages of the thread9 titled “Rick Butler on Outside The Lines,” there are numerous links to articles posted on the internet with an abundance of details about the allegations of sexual abuse in the 1980s. (Group Exhibit G); (Exhibit M, ¶ 10-11). 43. The first post in the thread titled “Rick Butler on Outside The Lines” provides a link10 to an ESPN article discussing the July 2015 episode of Outside the Lines (the article contains 9 Group Exhibit G, Volley Talk, Rick Butler on Outside the Lines, July 24, 2015, .proboards.com/thread/59367/rick-butler-on-outside-lines (last visited May 23, 2019) (full thread containing 49 pages of posts from members discussing the allegations of sexual abuse against Rick Butler and related investigations and events). 10 Group Exhibit G, p. 3-5, Shaun Assael, Questions About Volleyball Coach's Past Prompt His Removal Amid Review, ESPN, July 28, 2015, espn.go.com/espn/otl/story/_/id/13311608/aau-launches-review-policies-volleyball-coach-rick-butler-steps-aside (last visited May 22, 2019).
12
additional links, highlighted in blue, to related articles) and stated, “Butler had been banned for life from coaching girls by a different national organization in 1995 after an ethics panel found he had had sexual relationships with three underage players several years prior.” (Group Exhibit G, p. 1-5); (Exhibit M, ¶ ¶ 10-11). 44. The July 2015 ESPN article also stated, “In its August 1995 decision banning Butler from coaching girls for life, a USA Volleyball ethics panel rejected Butler's denials and ruled that his conduct constituted ‘immorality, lack of judgment and unacceptable behavior.’ Butler sued, but an Illinois appellate court upheld the original decision in 1996.” Id. at p. 3. 45. The July 2015 ESPN article continued, “USA Volleyball allowed him to reapply for admittance after five years, and he did so in 2000, earning a conditional membership that let him work as an administrator but not a coach.” Id. at p. 4. 46. Further, the July 2015 ESPN article stated that “the Illinois Department of Children and Family Services investigated and found ‘credible evidence’ the allegations in 1995 were true…” Id. at p. 3. 47. The July 2015 ESPN article even mentioned the Rick Butler’s appeal of the USA Volleyball ban. Id. 48. Notably, July 2015 ESPN article states that “Various media reports over the past two decades have detailed the allegations, and even a simple Google query of Butler's name and ‘volleyball’ produces the allegations associated with him.” Id.
13
49. Later on the first page of the thread titled “Rick Butler on Outside The Lines,” there is a link11 to the 1996 appellate court decision on Rick Butler’s lawsuit against USA Volleyball regarding the 1995 ban. (Group Exhibit G, p. 6-12); (Exhibit M, ¶ ¶ 10-11) 50. Also on the first page of the thread titled “Rick Butler on Outside The Lines,” is a link12 to a 1995 L.A. Times article detailing the allegations from Julie Bremner against Rick Butler, discussing the DCFS investigation and findings, and the 1995 USA Volleyball ban. (Group Exhibit G, p. 13-18); (Exhibit M, ¶ ¶ 10-11) 51. On the second page of the thread titled “Rick Butler on Outside The Lines,” there is a link13 to the 1996 article Sex, Lies, and Volleyball (discussed supra ¶ 32) detailing the allegations from Julie Bremner, Sarah Powers, and Christine Brigman against Rick Butler, discussing the DCFS investigation and findings, and the 1995 USA Volleyball ban. (Group Exhibit G, p. 19-27); (Exhibit M, ¶ ¶ 10-11) 52. On July 31, 2015, days after ESPN’s Outside the Lines ran a story detailing the allegations via on-camera interviews with Rick Butler’s accusers, Plaintiff’s oldest daughter emailed Rick Butler stating, “It is unfortunate to hear about all of the bad press, but I support you and Cheryl.” (Exhibit L); (Exhibit N, ¶ 9); (Exhibit D, No. 40); (Exhibit M, ¶ 3) 11 Group Exhibit G, p. 7-12, Butler v. USA Volleyball, 673 N.E.2d 1063 (1996), www.illinoiscourts.gov/opinions/AppellateCourt/1996/1stDistrict/November/HTML/1960743.txt (last visited May 22, 2019). 12 Group Exhibit G, p. 14-18, Elliot Almond, She Says She's Haunted by Coach's Misconduct: Volleyball: Julie Bremner Took Six Years to Come Forward With Her Story of Sexual Abuse, Los Angeles Times, October 19, 1995, articles.latimes.com/1995-10-19/sports/sp-58618_1_volleyball-officials (last visited May 22, 2019). 13Group Exhibit G, p. 20-27, Cynthia Hanson, Sex, Lies and Volleyball, Chicago Magazine, February 1996, www.yumpu.com/en/document/view/8476527/sex-lies-and-volleyball-chicago-magazine-cynthia-hanson (last visited May 22, 2019).
14
53. In July of 2016, approximately three months before returning to Sports Performance for the 2016-2017 season (Exhibit N, ¶ 3), Mullen posted on volleytalk.proboards.com within a thread14 titled “Yet Another Alleged Abuse by Rick Butler (NEW).” (Exhibit R); (Exhibit Q, No. 4); (Exhibit M, ¶ ¶ 8, 13) 54. The first post (Group Exhibit H, p. 3) in the thread titled “Yet Another Alleged Abuse by Rick Butler (NEW)” provides a link15 to a July 16, 2016 New York Daily News article discussing, inter alia, (1) explicit details of Christine Brigman’s allegations, including her abortion, (2) details of the allegations from Sarah Powers against Rick Butler, (3) the lawsuit filed by Sarah Powers against the AAU for allowing Butler to remain a member of the organization, (4) the 1995 USA Volleyball ethics hearing testimony and subsequent ban, (5) the DCFS investigation and findings, (6) quotes from handwritten letters allegedly exchanged between Brigman and Butler, and (7) Butler’s intense coaching strategies. (Group Exhibit H, p. 4-9); (Exhibit M, ¶ ¶ 10-11) 55. Plaintiff admits to having knowledge of the aforementioned New York Daily News article as well as ESPN’s episode of Outside the Lines discussing the allegations made against Rick Butler prior to June of 2017. (Exhibit C, No. 18); (Exhibit M, ¶ 5) 56. On July 25, 2016, Mullen posted on the thread titled “Yet Another Alleged Abuse by Rick Butler (NEW)” in response to a Facebook post by Brenda Tracey, which was copied into 14 Volley Talk, Yet Another Alleged Abuse by Rick Butler (NEW), July 17, 2016, talk.proboards.com/thread/64745/another-alleged-abuse-rick-butler (last visited May 23, 2019) (full thread containing 20 pages of posts from members discussing the allegations of sexual abuse against Rick Butler and related investigations and events). 15 Group Exhibit H, p. 4-9, Michael O’Keeffe and Christian Red, A Victim's Courage: Former volleyball player breaks silence 3 decades after alleged abuse by coach who continues to lurk on courts, New York Daily News, July 5, 2016, www.nydailynews.com/sports/i-team/ex-volleyball-player-breaks-silence-abuse-3-decades-article-1.2714260?cid=bitly (last visited May 22, 2019).
15
the VolleyTalk thread, discussing the New York Daily News article and providing a link to the article. (Exhibit R); (Group Exhibit H, p. 1-2); (Exhibit M, ¶ ¶ 10-11, 13) 57. Three months after Mullen responded to the Tracey post, in October 2016, she registered her daughters to try out for the Sports Performance Volleyball Club for the 2016-2017 season. (Exhibit N, ¶ 3); (Exhibit A, ¶ ¶ 3, 5, 9); (Exhibit M, ¶ 9) 58. Throughout July of 2016, Mullen, under her username swimrowvball (Exhibit D, No. 1), actively “liked” several posts within the thread titled “Yet Another Alleged Abuse by Rick Butler (NEW)” which discuss, inter alia, explicit details of the allegations of sexual abuse made against Rick Butler and the USA Volleyball hearing and ban. (Group Exhibit I, p. 1-8); (Exhibit M, ¶ 10-11) 59. On June 23, 2016, Sarah Powers-Barnhard (Dkt. 1, ¶ ¶ 26-51), sent a public16 demand letter to AAU threatening to file suit against the organization for its failure to ban Butler, stating, “We remain baffled as to how this set of circumstances has come to be: a coach having been found through due process to have molested children is now competing against his victims in AAU sanctioned events. None of these facts were buried but rather broadly publicized in 1995 and again in 2015.” (Group Exhibit J, p. 1-4); (Exhibit M, ¶ 12) 60. Plaintiff states that she viewed certain Facebook posts on Emily Swanson’s Facebook page in June of 2017 that were related to the sexual abuse allegations against Rick Butler. (Exhibit C, No. 8); (Exhibit M, ¶ 5) 16 Group Exhibit J, p. 5, Press Release, Weil Quaranta, June 23, 2016 weilquaranta.com/ press-release/aau-lets-alleged-sexual-predator-coach-girls-volleyball-alongside-former-victim-lawsuit-says/ (last visited May 24, 2019) (press release from Barnhard’s attorneys quoting AAU demand letter with now-defunct link to a page which previously contained the demand letter).
16
61. On August 30, 2017, Plaintiff paid GLV to register her daughter J.M. for a lesson at the Great Lakes Center, and her daughter attended the lesson at the Great Lakes Center on September 3, 2017. (Exhibit D, No. 12-18); (Exhibit M, ¶ 3) 62. On September 15, 2017, Plaintiff paid GLV to register her daughter J.M. for a clinic at the Great Lakes Center, and her daughter attended the clinic at the Great Lakes Center on September 16, 2017. (Exhibit D, No. 15-18); (Exhibit M, ¶ 3) 63. In the summer of 2018, Plaintiff’s daughter, J.M., participated in GLV’s Summer League, which took place at the Great Lakes Center. (Exhibit D, No. 23-24); (Exhibit M, ¶ 3) 64. Plaintiff did not accompany or personally supervise her daughter in the Great Lakes Center (Id. at No. 25), which Plaintiff knew was operated by the Defendants (Dkt. 1, ¶ ¶ 14, 20) and houses Rick Butler’s office. (Exhibit D, No. 7); (Exhibit M, ¶ 3) 65. In connection with her daughter’s participation in the 2018 Summer League, Plaintiff signed a waiver on July 10, 2018, which expressly granted Defendant GLV, Inc. permission to treat her child or arrange for medical care or treatment for her child in any situation deemed reasonably necessary by GLV, Inc. (Exhibit D, No. 28 (also see waiver attached thereto at Ex. E)); (Exhibit M, ¶ 3) Prior communications regarding the allegations of misconduct in the 1980s 66. Rick and Cheryl Butler have always had an open-door policy regarding the allegations and have always encouraged families to speak with them when they have questions or concerns about anything related to their experience in the Sports Performance program. (Exhibit N, ¶ ¶ 11-15); (Exhibit O, ¶ ¶ 11-16); (Group Exhibit S, p. 1-3); (Exhibit V, ¶ 3); (Exhibit W, ¶ 3) 67. In the summer of 2016, Rick and Cheryl Butler held a meeting regarding the allegations with the parents and players in the Sports Performance upcoming senior class, where
17
they discussed the USAV ban, the DCFS investigation, and related issues. (Exhibit N, ¶ 12); (Exhibit O, ¶ 12) Parents were also invited to ask questions about any of the topics discussed at the meeting. Id. 68. The Butlers have also held several meetings with smaller groups of parents or with individual families regarding the allegations at various times over the last 25 years. (Exhibit N, ¶ 13); (Exhibit O, ¶ 13) 69. Around January 12, 2018, Cheryl and Rick Butler directed GLV employee Claudine Dale to send a mass email on their behalf to the parents of players in the Sports Performance Volleyball Club, as well as the parents of players in the Great Lakes Center Youth Academy. (Exhibit N, ¶ 14); (Exhibit O, ¶ 15); (Group Exhibit S, p. 2); (Exhibit W, ¶ 3) 70. Around March 1, 2018, Cheryl and Rick Butler directed GLV employee Luke Stapleton to send a mass email on their behalf to the parents of players in the Sports Performance Volleyball Club. (Exhibit N, ¶ 15); (Exhibit O, ¶ 16); (Group Exhibit S, p. 3); (Exhibit V, ¶ 3) At the time, they were not represented by counsel, and they were unaware that the email could be considered an improper communication with class members. (Exhibit N, ¶ 15); (Exhibit O, ¶ 16) Date: May 28, 2019 Respectfully Submitted, GLV, INC., RICK BUTLER, and CHERYL BUTLER By: /s/ Danielle D’Ambrose
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on May 29, 2019 18:58:22 GMT -5
Docket #144 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. Case No. 18-cv-1465 GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB Honorable Matthew F. Kennelly and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS Defendants GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center (“GLV”), Rick Butler (“Rick”), and Cheryl Butler (“Cheryl”), through their attorney, Danielle D’Ambrose of D’Ambrose P.C., file this Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, and in support thereof, state as follows: 1. On February 27, 2018, Plaintiff filed her Complaint in this action. (Dkt. 1) 2. The Complaint filed against the Defendants, brought pursuant to the Illinois Physical Fitness Services Act, 815 ILCS 645/1 et seq. (Count I and Count II), the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (Count III), common law fraud (Count IV), common law fraudulent concealment (Count V), and unjust enrichment (Count VI), alleges that the Defendants have misrepresented or intentionally omitted allegations of sexual abuse made against Rick Butler from the 1980s. (Dkt. 1, ¶ 3) 3. Each and every cause of action advanced by the Plaintiff fails as a matter of law because Mullen and the Class suffered no injury-in-fact to establish Article III standing, and they have not suffered actual damages to satisfy the element necessary to each claim. Moreover, Plaintiff Mullen was not actually deceived by conduct of the Defendants, and no reasonable consumer would have been deceived by any act of the Defendants. 4. Plaintiff unsuccessfully attempts to establish that general, subjective statements, allegedly made by Defendants, regarding the program’s safety, quality of coaches, and superiority to its competitors, were material misrepresentations of fact and part of a coordinated systematic concealment of the allegations by Defendants. 5. As set forth more fully in Defendants’ their Local Rule 56.1(a)(3) Statement of Material Facts and supporting documents filed herewith, and in Defendants’ Memorandum in Support of Defendants’ Motion for Summary Judgment on All Claims, filed concurrently herewith as Exhibit 1 to Defendants’ Motion for Leave to File Memorandum in Support of Summary Judgment on All Claims in Excess of Fifteen Pages, summary judgment is appropriate on every cause of action set forth by Plaintiff. WHEREFORE, Defendants respectfully request that this Court enter an Order granting Defendants’ Motion for Summary Judgment on All Claims and granting any other relief that this Court deems just and proper. Date: May 28, 2019 Respectfully Submitted, GLV, INC., RICK BUTLER, and CHERYL BUTLER By: /s/ Danielle D’Ambrose Near the end of 4th quarter; ball on their side of the field; getting desperate that their empire/string of victories is ending: they throw a Hail Mary (it won't work!).
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on May 29, 2019 19:04:46 GMT -5
Docket 146
Exhibit 1 Case: 1:18-cv-01465 Document #: 146-1 Filed: 05/28/19 Page 1 of 39 PageID #:4075 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. Case No. 18-cv-1465 GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB Honorable Matthew F. Kennelly and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants. MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS Dated: May 28, 2019 Danielle D’Ambrose D’AMBROSE P.C. 500 North Michigan Avenue, Suite 600 Chicago, IL 60611 (312) 396-4121 ARDC No. 6323782 Attorney for Defendants Rick Butler, Cheryl Butler, and GLV, Inc. d/b/a Sports Performance Volleyball Club Case: 1:18-cv-01465 Document #: 146-1 Filed: 05/28/19 Page 2 of 39 PageID #:4076 i TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................................................................iii PROCEDURAL BACKGROUND…...........................................................................................1 ANALYSIS.....................................................................................................................................2 I. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT.......................4 II. SUMMARY JUDGMENT IS PROPER ON ALL CLAIMS BECAUSE PLAINTIFF HAS NEITHER SUFFERED AN INJURY-IN-FACT NOR SUSTAINED ACTUAL DAMAGES...............................................................................5 A. Mullen Admits She Lacks Any Actual Damage .................................................6 B. Plaintiff’s Tort or Contract Theory of Damages Fails; She Has Not Incurred an Injury-In-Fact...................................................................................8 C. Plaintiff Does Not Have Standing Because Her Injury is Subjective..............10 III. SUMMARY JUDGMENT IS PROPER ON ALL CLAIMS BECAUSE PLAINTIFF AND THE CLASS HAVE NEITHER SUFFERED AN INJURY-IN-FACT NOR HAVE NOT SUSTAINED ACTUAL DAMAGES...........13 A. No Reasonable Consumer Would Have Been Deceived Because the Allegedly Withheld Information Was Publicly Available................................14 B. The Statements Set Forth in Plaintiff’s Complaint Are Not Deceptive..........15 C. Plaintiff Lacks Sufficient Evidence to Prove Deception and Proximate Cause.....................................................................................................................19 D. There is No Duty to Disclose Public Information ............................................21 E. Plaintiff Cannot Prove that Defendants Had Knowledge of the Falsity of a Statement or that Defendants Intended to Conceal Information ............22 IV. SUMMARY JUDGMENT IS PROPER ON PLAINTIFF’S UNFAIR PRACTICES CLAIM FAILS BECAUSE DEFENDANTS’ CONDUCT WAS NOT SO OPPRESSIVE AS TO LEAVE MULLEN WITHOUT ALTERNATIVES ...........................................................................................................23 Case: 1:18-cv-01465 Document #: 146-1 Filed: 05/28/19 Page 3 of 39 PageID #:4077 ii V. PLAINTIFF’S IPFSA CONTRACT CLAIM FAILS BECAUSE SPVB DOES NOT OFFER SERVICES TO THE PUBLIC AND BECAUSE SHE LACKS SUFFICIENT EVIDENCE TO PROVE CAUSATION AND ACTUAL DAMAGE ……................................................................................................................25 VI. SUMMARY JUDGMENT IS PROPER ON PLAINTIFF’S UNJUST ENRICHMENT CLAIM BECAUSE IT IS PREDICATED ON HER FRAUD CLAIMS WHICH FAIL AS A MATTER OF LAW...................................................27 VII. PLAINTIFF IS NOT ENTITLED TO THE INJUNCTIVE RELIEF SHE SEEKS.....................................................................................................................28 CONCLUSION............................................................................................................................29 Case: 1:18-cv-01465 Document #: 146-1 Filed: 05/28/19 Page 4 of 39 PageID #:4078 iii TABLE OF AUTHORITIES United States Supreme Court Cases: Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .....................................................................................................19, 20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................................................2 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .........................................................................................................4, 28 Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948) ...................................................................................................14 Laird v. Tatum, 408 U.S. 1 (1972) ...............................................................................................................10 Lewis v. Casey, 518 U.S. 343 (1996) .............................................................................................................5 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................2, 5, 11, 13 O’Shea v. Littleton, 414 U.S. 488 (1974) ...........................................................................................................28 Sierra Club v. Morton, 405 U.S. 727 (1972) ............................................................................................................5 United States Court of Appeals Cases: Association Ben. Services, Inc. v. Caremark RX, Inc, 493 F.3d 841 (7th Cir. 2007) ..............................................................................................28 Athey Products Corp. v. Harris Bank Roselle, 89 F.3d 430 (7th Cir.1996) .................................................................................................28 Beraha v. Baxter Health Care Corp., 956 F.2d 1436 (7th Cir. 1992) ......................................................................................17, 18 Bober v. Glaxo Wellcome PLC, 246 F.3d 934 (7th Cir. 2001) ..............................................................................................19 Case: 1:18-cv-01465 Document #: 146-1 Filed: 05/28/19 Page 5 of 39 PageID #:4079 iv Briehl v. General Motors Corp., 172 F.3d 623 (8th Cir.1999) ...............................................................................................10 Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (7th Cir. 2014) ................................................................................................5 Davis v. G.N. Mortg. Corp., 396 F.3d 869 (7th Cir. 2005) ..............................................................................................13 Fink v. Time Warner Cable, 714 F.3d 739 (2d Cir. 2013) .........................................................................................14, 20 Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099 (7th Cir. 2008) ..............................................................................................5 Johnson v. Cambridge Indus., Inc., 325 F.3d 892 (7th Cir. 2003) ................................................................................................4 Koronthaly v. L’Oreal USA, Inc., 374 Fed.Appx. 257 (3d Cir. 2010) ..............................................................................passim Nat’l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508 (7th Cir. 2008) ................................................................................................4 Nemmers v. U.S., 795 F.2d 628 (7th Cir. 1986) ..............................................................................................15 Newman v. Metro. Life Ins. Co., 885 F.3d 992, 1000 (7th Cir. 2018) ....................................................................................13 Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436 (7th Cir. 2011) ..............................................................................................22 Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315 (5th Cir. 2002) ...........................................................................................8, 9 Ryan v. Brookdale Intern. Systems, Inc., No. 06–20800, 2007 WL 1112622 (5th Cir. 2007) .............................................................10 Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012) ..............................................................................................22 United States District Court Cases: Anderson v. Abbott Laboratories, 140 F.Supp.2d 894 (N.D. Ill. 2001), aff’d, 269 F.3d 806 (7th Cir. 2001) …....................18 Case: 1:18-cv-01465 Document #: 146-1 Filed: 05/28/19 Page 6 of 39 PageID #:4080 v Carey v. Select Comfort Corp., No. 27CV 04–15451, 2006 WL 871619 (Minn.Dist.Ct. Jan. 30, 2006) ...........................10 City of Sterling Heights General Employees’ Retirement System v. Hospira, Inc., No. 11 C 8332, 2013 WL 566805 (N.D. Ill. Feb. 13, 2013) ................................................17 Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595 (S.D.N.Y. 1982) ......................................................................................10 Harrison v. Leviton Mfg. Co., No. 05–CV–0491, 2006 WL 2990524 (N.D. Okla. Oct. 19, 2006) ....................................10 Ibarrola v. Kind, LLC, 83 F.Supp.3d 751 (N.D. Ill. 2015) .....................................................................................19 In Re: 100% Grated Parmesan Cheese Marketing and Sales Practices Litigation, F.Supp.3d 910 (N.D. Ill. 2017) .........................................................................................14 Pennington v. Travelex Currency Services, 114 F.Supp.3d 697 (N.D. Ill. 2015) ....................................................................................17 Stella v. LVMH Perfumes and Cosmetics, USA, Inc., 564 F.Supp.2d 833, 835 (N.D. Ill. 2007) ………................................................................7 Siegel v. Shell Oil Co., 656 F.Supp.2d 825 (N.D. Ill. 2009) .......................................................................................24, 28 Tylka v. Gerber Products Co., No. 96 C 1647, 1999 WL 495126 (N.D. Ill. 1999) .............................................................16 Zubrick v. Endo Pharmaceuticals, Inc., No. 11–cv–8543, 2012 WL 3717749 (N.D. Ill. Aug. 27, 2012) ........................................8 State Cases: Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100 (Ill. 2005), cert. denied, 547 U.S. 1003 (2006) .....................................passim Breckenridge v. Cambridge Homes, Inc., 246 Ill.App.3d 810 (2d Dist. 1993) ..............................................................................16, 18 Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482 (Ill. 1996) ................................................................................................5, 13 Davis v. Attic Club, 56 Ill.App.3d 58 (1st Dist. 1977) ........................................................................................25 Case: 1:18-cv-01465 Document #: 146-1 Filed: 05/28/19 Page 7 of 39 PageID #:4081 vi Evanston Hospital v. Crane, 254 Ill.App.3d 435 (1st Dist. 1993) ....................................................................................16 Galvan v. Northwestern Memorial Hosp., 382 Ill.App.3d 259 (1st Dist. 2008) ................................................................................3, 23 HPI Health Care Services, Inc. v. Mt. Vernon Hosp., 131 Ill.2d 145 (Ill. 1989) ................................................................................................6, 28 Kitzes v. Home Depot, USA, Inc., 374 Ill.App.3d 1053 (1st Dist. 2007) .................................................................................15 Mitchell v. Skubiak, 248 Ill.App.3d 1000 (1st Dist. 1993) ..................................................................................22 Mulligan v. QVC, Inc., 382 Ill.App.3d 620 (1st Dist. 2008) ......................................................................................5 Oliveira v. Amoco Oil Co., 201 Ill.2d 134 (Ill. 2002) ...................................................................................................12 Price v. Philip Morris, Inc., 219 Ill.2d 182 (Ill. 2005) ...................................................................................................21 Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403 (Ill. 2002) ....................................................................................................24 Schrager v. North Community Bank, 328 Ill.App.3d 696 (1st Dist. 2002) ....................................................................................22 Rules and Statutory Authorities: 815 ILCS 505..........................................................................................................................passim 815 ILCS 645..........................................................................................................................passim Fed. R. Civ. P. 56 ....................................................................................................................passim C 1
Defendants, GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center (“GLV”), Rick Butler (“Rick”), and Cheryl Butler (“Cheryl”) file this memorandum in support of their Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. The Court should enter judgment for the Defendants because Plaintiff lacks necessary proof of the elements of her claims. In support of this motion, Defendants submit a statement of material facts (“Def. SOF”) pursuant to Northern District of Illinois LR56.1. PROCEDURAL BACKGROUND Plaintiff brings this action pursuant to the Illinois Physical Fitness Services Act, 815 ILCS 645/1 et seq. (the “IPFSA”), the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (the “ICFA”), common law fraud, common law fraudulent concealment, and unjust enrichment for Defendants’ alleged failure to disclose claims of sexual abuse made against Rick Butler regarding conduct that allegedly occurred in the 1980s. (Dkt. 1, ¶ 181) Discovery commenced on April 17, 2018. (Dkt. 29). On May 14, 2018, Defendants filed their Motion to Dismiss for Failure to State a Claim on all counts of Plaintiff’s Complaint. (Dkt. 43) On July 2, 2018, this Honorable Court entered and Order denying Defendants’ Motion to Dismiss and directing Defendants to answer the Complaint. (Dkt. 68). On July 23, 2018 Defendants filed their Answer (Dkt. 76), and on August 3, 2018, Defendants filed their First Amended Answer to Plaintiff’s Complaint. (Dkt. 79) Plaintiff filed her Motion in Support of Class Certification on September 28, 2018. (Dkt. 83) On January 23, 2019, this Honorable Court entered a Corrected Memorandum Opinion and Order which certified a class of “all individuals who paid money to the defendants for youth volleyball instruction through the Sports Performance program provided by or through GLV Inc. in the State of Illinois between February 27, 2013 and January 10, 2018. (Dkt. 101, p. 20)
2
ANALYSIS There is no genuine dispute concerning the facts that are material to the resolution of each claim set forth by the Plaintiff, and summary judgment is warranted as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 318 (1986). The crux of Mullen’s claims is that the Sports Performance Volleyball Club is not, and was not, a safe program because she alleges Rick Butler sexually abused players in the 1980s. (Def. SOF ¶ 10) Notably, however, Mullen is not seeking to recover damages for any alleged abuse, as she concedes that there has not been a single allegation of sexual abuse taking place after the 1980s. (Def. SOF ¶ ¶ 11-12) Instead, Mullen claims that she was injured because she “subjected her daughters to their potentially dangerous volleyball programs and paid substantial money in the process” (Dkt. 57, p. 25), however, simply suing to receive her money back does not create an injury in fact where none exists. Koronthaly v. L’Oreal USA, Inc., 374 Fed.Appx. 257, 258 (3d Cir. 2010). Plaintiff has admitted that she is unaware of any allegations made against Rick Butler in the last three decades, Plaintiff has no basis for her contention that, for over thirty years, Rick Butler has used his position to sexually abuse players in his program, and Plaintiff has not alleged a sufficient injury to give rise to her request for relief. (Def. SOF ¶ ¶ 11-12) Summary judgment is appropriate on every cause of action advanced by the Plaintiff in this matter. Plaintiffs’ alleged injury fails to satisfy the injury-in-fact requirement of Article III and the actual damages element required for every cause of action in her Complaint. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Defendants are entitled to summary judgment because Laura Mullen paid for volleyball training, and she received the benefit of her bargain. (Def. SOF ¶ ¶ 22-24) Plaintiff’s erroneous theory that the mere purchase of Defendants’ volleyball training constitutes an economic injury is not grounded in fact or law. Id; Koronthaly, 374
3
Fed.Appx. at 258. That Mullen now claims she would not have paid Defendants for volleyball training does not create an injury in fact where she received the benefit of the services she bought. Mullen’s subjective allegations of injury lack the necessary factual support to survive summary judgment. Between 2015-2016, while her daughters were playing in the Sports Performance program, Mullen actively discussed the allegations made against Rick Butler from the 1980s. (Def. SOF ¶ 56, Group Exhibit H) These threads also discussed the 1995 USA Volleyball hearing testimony and ban, the DCFS investigation and findings, the handwritten letters sent by Rick Butler to an alleged victim in 1983, the allegations of harsh coaching by Rick, and the lawsuit filed against the AAU by an alleged victim of Rick Butler. (Def. SOF ¶ 54, Group Exhibit H) Therefore, it is clear that Plaintiff was not deceived, which is a critical element of every fraud claim. Moreover, because Plaintiff’s unjust enrichment claim is predicated on her claims of fraud, summary judgment should be granted on her unjust enrichment claim as well as her claims sounding in fraud. (Dkt. 1, ¶ 256) Plaintiff also alleged that GLV’s conduct violates public policy, that it is so oppressive as to leave her with little alternative except to submit to it, and that its conduct caused her to suffer an injury. (Dkt. 1, ¶ 221) The evidence is woefully insufficient because Plaintiff’s daughters played volleyball at Sports Performance Volleyball Club, Fusion Volleyball Club, and Sky High Volleyball Club (Def. SOF ¶ 25-26, Exhibit C, No. 14), undermining any notion that Plaintiff was left with little alternative to participation in the Sports Performance program. See Galvan v. Northwestern Memorial Hosp., 382 Ill.App.3d 259, 265 (1st Dist. 2008). Plaintiff claims that GLV violated certain provisions of the Illinois Physical Fitness Services Act (Dkt. 1, ¶ ¶ 185-201), which only applies to “physical fitness centers” defined by the Act as “any person or business entity offering physical fitness services to the public.” (emphasis
4
added) 815 ILCS 645/2. Plaintiff’s IPFSA claims cannot survive summary judgment because her class is limited to those who participated in Sports Performance Volleyball Club, a private club which does not offer services to the public. (Def. SOF ¶ 16) In fact, members must try out and meet stringent requirements to even be considered for selection. Id. Moreover, the IPFSA only allows recovery if Mullen can prove she suffered actual damage which was proximately caused by GLV’s conduct. 815 ILCS 645/11. Because her evidence insufficient to establish both injury and causation elements required under the statute, summary judgment is appropriate. Lastly, because Plaintiff has not and cannot allege that she is likely to suffer damages from the Defendants’ conduct in the future, her request for injunctive relief is improper and summary judgment should be entered in favor of Defendants for each and every cause of action set forth by the Plaintiff. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). I. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT Under Fed. R. Civ. P. 56(c), the judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. “In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Nat’l Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008) (citations and quotation marks omitted). Ultimately, summary judgment is the “put up or shut up” moment in a lawsuit. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). “Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials that ‘set forth specific facts showing that there is a genuine issue for trial.’” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008); see Fed. R. Civ. P. 56(e)(2).
5
II. SUMMARY JUDGMENT IS PROPER ON ALL CLAIMS BECAUSE PLAINTIFF HAS NEITHER SUFFERED AN INJURY-IN-FACT NOR SUSTAINED ACTUAL DAMAGES Plaintiff’s alleged injuries are insufficient to satisfy the injury in fact requirement of standing and the actual damages element required for every cause of action in her Complaint. In order to pursue her claims, Article III standing requires Plaintiff to establish: (1) an “injury in fact” that is “actual or imminent, not conjectural or hypothetical,” (2) a “causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court,” and (3) it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan, 504 U.S. at 560–61. Critically, “even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Lewis v. Casey, 518 U.S. 343, 357 (1996); see also Sierra Club v. Morton, 405 U.S. 727, 735 (1972) (“[Standing] requires that the party himself among the injured.”). Each and every cause of action in Plaintiff’s Complaint requires Plaintiff to have suffered actual damage. See, e.g., Mulligan v. QVC, Inc., 382 Ill.App.3d 620, 629 (1st Dist. 2008) (“If the plaintiff is not materially harmed by the defendant’s conduct, however flagrant it may have been, there may be no recovery.”); Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496 (Ill. 1996) (stating that an essential element of a fraud claim is “plaintiff’s damages resulting from reliance on the statement”); Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th Cir. 2014) (“In a private ICFA action, the element of actual damages requires that the plaintiff suffer actual pecuniary loss.”); Illinois Physical Fitness Services Act, 815 ILCS 645/11 (“Any customer injured by a violation of this Act may bring an action for the recovery of damages.”); and HPI Health
6
Care Services, Inc. v. Mt. Vernon Hosp., 131 Ill.2d 145, 160 (Ill. 1989). Because Plaintiff fails to meet the standing requirements of Article III and the Actual Damage requirement of every cause of action she alleges, summary judgment should be entered in favor of Defendants. A. Mullen Admits She Lacks Any Actual Damage Plaintiff incorrectly contends the mere purchase of Defendants’ volleyball training caused a “concrete and particularized” economic injury. (Dkt. 1. ¶ 176); (Def. SOF ¶ ¶ 11-12) Plaintiff’s daughter received the contracted-for training; Plaintiff suffered no economic harm or damage recognized by law. Id; (Def. SOF ¶ ¶ 22-24) That Mullen now claims she would not have paid Defendants for volleyball training does not create an injury in fact where she received the services she bought. See Koronthaly, 374 Fed.Appx. at 258. Mullen received the training she paid for, her daughter received a scholarship, and she admits to entering into multiple, successive contracts with Defendants. (Dkt.1, ¶ 169-70, 173); (Def. SOF ¶ ¶ 18, 22-24) In August of 2015, Mullen commended the Defendants’ program for providing costeffective training by expert coaches, stating: When factoring in costs for travel and the amount of training one receives, Sports Performance is NOT the most expensive club in the area. Sports Performance coaches are, in general, very “giving” with their time and expertise (it is an expectation that Elite team members go in on their days off, as well as girls from some of the other teams). Other clubs do charge for extra training and travel is not as cost effective. (Def. SOF ¶ 41, Exhibit R, p. 1) In addition, Mullen often emailed GLV employees to praise the program for its excellent training, facilities, and overall value. (Def. SOF ¶ ¶ 23-24, Group Exhibit K) For example, Mullen emailed Defendant Cheryl Butler stating that her daughter “has definitely benefited from the instruction that she has received at SPRI” and, on another occasion, said, “Thank you for all of the encouragement you and the other coaches give her.” (Def. SOF ¶ 23, Group Exhibit K, p. 3, 5)
7
Defendants are entitled to summary judgment because Laura Mullen paid for volleyball training, and she received just that—the benefit of her bargain. (Def. SOF ¶ 22-24) In Stella v. LVMH Perfumes and Cosmetics, USA, Inc., the court dismissed the plaintiff’s claims because she had received the product for which she had bargained. 564 F.Supp.2d 833, 835 (N.D. Ill. 2007) (Bucklo, J.) (finding facts upon which court would later dismiss case on Motion to Reconsider, dkt. 119 (granting Motion to Dismiss on April 3, 2009)). There, the plaintiff purchased a lipstick made by the defendants in June 2007, and on October 11, 2007, the Campaign for Safe Cosmetics made public a report revealing that the defendant’s lipstick products contained dangerous levels of lead. Id. As a result, the plaintiff claimed to have been exposed to lead and sued the defendant for, inter alia, violating the ICFA for “affirmatively and impliedly” assuring consumers that the product was safe for use. Id. Plaintiff claimed that, had she known about the lead, she would not have purchased the product. Id. The court dismissed the case, holding that the plaintiff could not prove an economic injury: “Plaintiff concedes that she did not bargain for ‘lead-free’ lipstick–only reasonably safe lipstick, and her allegations demonstrate that she received no less.” Id. at dkt. 119 (April 3, 2009 Order granting Motion to Dismiss) Laura Mullen bargained for quality volleyball training, and in September 2016, Mullen emailed GLV coach Erik Vogt stating that her “money and [J.M.]’s time are both well spent!” (Def. SOF ¶ 24, Group Exhibit K, p. 6) Mullen also emailed Rick Butler stating that “…SPRI has a beautiful facility, an excellent record with girls securing scholarships to D-1 schools, more Master Coaches, and a more established system that seems to work.” (Def. SOF ¶ 23, Group Exhibit K, p. 1) The evidence shows that Plaintiff received the benefit of the bargain, and therefore summary judgment should be granted.
8
B. Plaintiff’s Tort or Contract Theory of Damages Fails; She Has Not Incurred an Injury-In-Fact Plaintiff’s demand for damages, by itself, does not establish injury in fact. In Zubrick v. Endo Pharmaceuticals, Inc., the court found that because the plaintiff had not purchased a defective product, she “failed to show that she suffered any injury – either the injury described in her complaint or any other injury for which she has alleged a factual predicate.” No. 11–cv–8543, 2012 WL 3717749, at *4 (N.D. Ill. Aug. 27, 2012) (Dow, J.), In reaching its decision, the Zubrick court relied on Rivera v. Wyeth-Ayerst Laboratories, where the Fifth Circuit held that a plaintiff cannot establish an injury by simply alleging that the purchase price paid for a product that caused no harm and otherwise performed as designated and intended constitutes an injury. 283 F.3d 315, 320 (5th Cir. 2002). The “purchase price” claims of economic loss asserted in Rivera are analogous to the circumstances here. In Rivera, the named plaintiff of a putative class action purchased and used a prescription painkiller but did not suffer any physical injury, just as Plaintiff in this matter did not suffer any physical injury. Id; (Def. SOF ¶ ¶ 11-12, Ex. B, No. 4) The Rivera class excluded patients who had been injured by the medication, much like the Class in this matter which does not include a single person claiming to have been abused by Rick Butler. Id; (Def. SOF ¶ 12) Moreover, the Rivera plaintiffs did not seek to recover for medication that was ineffective or for any future health consequences, much like Laura Mullen does not seek to recover for training that was ineffective or for any physical consequences. Id; (Def. SOF ¶ ¶ 11-12, Ex. B, No. 4) In fact, Mullen repeatedly praised the value of the program and the quality of the training she received. (Def. SOF ¶ 23, Group Exhibit K) Chiefly, Laura Mullen claims that the Defendants did not provide proper warnings and disclosures regarding Rick Butler, and, therefore, she would like her money back. (Dkt. 1, ¶ 192)
9
The Rivera plaintiff argued to the court that the defendant did not list enough warnings on the drug and/or the drug was defective and, therefore, the Rivera plaintiff claimed that she “would like her money back.” Rivera, 283 F.3d at 320. The Fifth Circuit determined that the plaintiff’s loss of cash could not constitute an economic injury, stating, that “[m]erely asking for money does not establish an injury in fact.” Id. The Rivera court further explained: By plaintiffs’ own admission, Rivera paid for an effective pain killer, and she received just that—the benefit of her bargain…. The confusion arises from the plaintiffs’ attempt to recast their product liability claim in the language of contract law. The wrongs they allege—failure to warn and sale of a defective product—are products liability claims. Yet, the damages they assert—benefit of the bargain, out of pocket expenditures—are contract law damages. The plaintiffs apparently believe that if they keep oscillating between tort and contract law claims, they can obscure the fact that they have asserted no concrete injury. Such artful pleading, however, is not enough to create an injury in fact. Id. The wrongs Mullen alleges—failure to warn and sale of a dangerous product/service—are rooted in products liability claims, yet the damages she asserts—benefit of the bargain, out of pocket expenditures—are contract law damages (Dkt. 1, ¶ 160, 192) For example, Plaintiff argues that “[c]ourts regularly find that a statement that a product is safe is actionable where the plaintiff alleges that the product is clearly unsafe.” (Dkt. 57, p. 16) Plaintiff oscillates between contract law and tort law to obscure the fact that she has not suffered any cognizable injury, and summary judgment should be granted in favor of Defendants on all counts. Mullen claims that the Sports Performance Volleyball Club is not, and was not, a safe program because she alleges Rick Butler sexually abused players in the 1980s. (Def. SOF ¶ 10) However, she is not seeking to recover damages for any abuse suffered by herself, her daughter, or any member of the class. (Def. SOF ¶ 12) In fact, Mullen concedes that there has not been a single allegation of sexual abuse taking place after the 1980s. (Def. SOF ¶ 12, Exhibit D, No. 33-
10
34) Instead, Mullen claims that she was injured because she “subjected her daughters to their potentially dangerous volleyball programs and paid substantial money in the process,” (Dkt. 57, p. 25) however, simply suing to receive her money back does not create an injury in fact where none exists. See Koronthaly, 374 Fed.Appx. at 258 (finding no injury where Plaintiff claimed that she, and all members of the class, were “exposed to a known hazardous substance” and, as a result, were at “an increased risk” of being harmed). Like unmanifested defect claims, Plaintiff’s unmanifested safety concerns also fail. See, e.g., Briehl v. General Motors Corp., 172 F.3d 623, 628 (8th Cir.1999) (“Where, as in this case, a product performs satisfactorily and never exhibits an alleged defect, no cause of action lies.”); Ryan v. Brookdale Intern. Systems, Inc., No. 06–20800, 2007 WL 1112622, at *2 (5th Cir. 2007) (finding that Plaintiff did not suffer an injury in fact when his only allegation of injury is the money he spent to purchase and ship the product); Harrison v. Leviton Mfg. Co., No. 05–CV–0491, 2006 WL 2990524, at *4–7 (N.D. Okla. Oct. 19, 2006) (“Courts do not allow consumers to bring claims against manufacturers for products that are perceived to be harmful, but that have not actually cause[d] an identifiable injury.”); Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595, 602– 03 (S.D.N.Y.1982) (“Liability does not exist in a vacuum; there must be a showing of some damage”); Carey v. Select Comfort Corp., No. 27CV 04–15451, 2006 WL 871619, at *2–5 (Minn.Dist.Ct. Jan. 30, 2006) (involving allegedly defective bed that trapped moisture and caused mold growth; court dismissed plaintiff’s claims because no mold had grown on the plaintiff’s bed). Mullen’s “injury” is nonexistent; summary judgment should be awarded in favor of Defendants. C. Plaintiff Does Not Have Standing Because Her Injury is Subjective An injury in fact may not be speculative in nature, remote, or subjective. See Laird v. Tatum, 408 U.S. 1, 13-14 (1972) (“Allegations of a subjective [harm] are not an adequate substitute
11
for a claim of specific present objective harm or a threat of specific future harm”). Article III standing also requires Plaintiff to establish a causal connection between the injury and the challenged action of the defendant. Lujan, 504 U.S. at 560–61. Mullen cannot meet the standing requirements of Article III, and judgment should be entered in favor of Defendants. Mullen’s subjective after-the-fact allegations of injury lack the necessary factual support to survive summary judgment. Between 2015-2016, Mullen actively posted comments and “liked” posts within threads discussing the allegations made against Rick Butler from the 1980s. (Def. SOF ¶ ¶ 40-58) In August of 2015, two months before returning to Sports Performance for the 2015-2016 season, Mullen posted on a VolleyTalk message board titled “Rick Butler on Outside The Lines,” which contained discussions of the allegations and several links to news articles discussing investigations, bans, and allegations made against Rick Butler. (Def. SOF ¶ ¶ 41-51, Group Exhibit G) On July 31, 2015, days after ESPN’s Outside the Lines ran a story detailing the allegations via on-camera interviews with Rick Butler’s accusers, Plaintiff’s oldest daughter emailed Rick Butler stating, “It is unfortunate to hear about all of the bad press, but I support you and Cheryl.” (Def. SOF ¶ 25, Ex. L) Mullen’s daughters returned to Defendants’ club for an additional two years. (Def. SOF ¶ 1, 8-9) On July 25, 2016, Mullen posted on VolleyTalk in response to a Facebook post by Brenda Tracey. (Def. SOF ¶ 56, Group Exhibit H) The Facebook post was about a New York Daily News article which, inter alia, (1) contains explicit details of the allegations by the women referenced in Mullen’s Complaint, (2) discusses the 1995 USA Volleyball proceedings and ban, (3) quotes the testimony from the alleged victims at the 1995 USA Volleyball hearing, (4) discusses the DCFS investigation and findings, (5) provides excerpts from handwritten letters sent by Rick Butler to an alleged victim in 1983, (6) discusses allegations of harsh coaching by Rick, and (6) references
12
a lawsuit filed against the AAU by an alleged victim of Rick Butler which also discusses the allegations. Id. Three months after Mullen responded to Tracey’s post, she brought her daughters back to Sports Performance for the 2016-2017 season. (Def. SOF ¶ 57) Mullen acknowledges that she read the information in Brenda Tracey’s post, as her response states, “I look at the information from Brenda Tracy with a bit of skepticism.” (Def. SOF ¶ 56, Group Exhibit H, p. 1) Therefore, in 2016, prior to returning for the 2016-2017 season, Mullen was aware of the allegations, investigations, and/or proceedings referenced in her Complaint (Dkt. 1, ¶ 174), which prohibits her from recovering under any fraud theory. See Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 155 (Ill. 2002) (finding no cause of action under the ICFA where plaintiff was not actually deceived). Mullen claims that she was injured because the Defendants failed to disclose to her the allegations of sexual abuse against Rick Butler, the findings of USA Volleyball and information related to the USA Volleyball ban, the findings of the Illinois DCFS, and the stories of the women in the Complaint. (Def. SOF ¶ ¶ 27-29) However, despite her claims in this litigation, it is clear that Mullen had actual knowledge of the information since, at the very least, 2015 and continued to send her daughters to the Defendants’ program and pay the program fees. (Def. SOF ¶ 41-52, Group Exhibit G) Plaintiff’s subjective belief that this same information—known to her since at least 2015— now causes her harm is meritless. Mullen willingly accepted the benefits of the training Defendants provided until after her daughter received a scholarship and left the program. (Dkt. 1, ¶ 173) After learning substantial details of the allegations, Plaintiff nevertheless allowed her daughters to play at least two more seasons with Defendants, throughout which (1) Mullen allowed her daughter to be coached by Rick Butler, (2) she allowed her daughter to travel under the supervision of Rick Butler, including a trip to China, (3) she allowed her daughters to attend multiple leagues, camps,
13
and clinics with Defendants. (Def. SOF ¶ ¶ 8-9, 39-52, Group Exhibit G) That she has now subjectively changed her position on the severity of the allegations is certainly not an injury sufficient to support her claims. Koronthaly, 374 Fed.Appx. at 258 (concluding that plaintiff did not suffer an injury when product was not unsafe and finding she had “asserted only a subjective allegation that” the alleged defect was “unacceptable to her”). Consequently, because her subjective harm was incurred well after she first became aware of the information she claims Defendants wrongfully concealed from her, there is no logical connection between her injury and any alleged misconduct of the Defendants to establish Article III standing. Lujan, 504 U.S. at 560– 61. Therefore, Mullen has failed to establish that she has suffered any injury-in-fact or actual damages, and judgment should be entered in favor of the Defendants. III. SUMMARY JUDGMENT IS PROPER BECAUSE PLAINTIFF WAS NOT DECEIVED Five of the six counts in the Complaint depend on allegations of fraud, and each of these claims requires Plaintiff to prove that the Defendants deceived Plaintiff. See 815 Ill. Comp. Stat. 645/10 (IPFSA); Newman v. Metro. Life Ins. Co., 885 F.3d 992, 1000 (7th Cir. 2018) (ICFA); Connick, Ltd., 174 Ill. 2d at 496 (common-law fraud). Fraud must be proved by clear and convincing evidence. Id.at 853-54 (finding that plaintiff’s contentions were insufficient to prevent summary judgment on an element of a claim, such as fraud, that ultimately must be proven by clear and convincing evidence); Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100 (2005), cert. denied, 547 U.S. 1003 (2006) (noting the legal presumption that transactions are fair and the resultant rule that common law fraud claims under Illinois law must be proved by clear and convincing evidence). The “allegedly deceptive act must be looked upon 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);
14
see also In Re: 100% Greated Parmesean Cheese Marketing and Sales Practices Litigation, 275 F.Supp.3d 910, 921 (N.D. Ill. 2017) (quoting Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013) (“n determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial.”)). However, this is an objective standard, and questions of judgment calling for the perspective of a reasonable consumer are “determined in the light of the effect [such a question] would most probably produce on ordinary minds.” Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948). A. No Reasonable Consumer Would Have Been Deceived Because the Allegedly Withheld Information Was Publicly Available Plaintiff repeatedly claims that, had she “known the full truth and depth of Butler’s sexual, emotional, and physical abuse, she would not have allowed her daughters to attend Sports Performance and she would not have paid fees to Defendants.” (Def. SOF ¶ 2) However, the amount of newspaper articles which were available to Plaintiff, and in information contained therein, was more than sufficient to inform her of the information she claims was withheld. (Def. SOF ¶ ¶ 30-39, Group Exhibit P) Plaintiff asserts that the information contained in news articles available to her would have been insufficient to put her on notice of a potential claim because the articles contain Rick Butler’s general denials and because the articles refer to the accusers’ claims as allegations, “rather than definitively stating that such allegations are true.” (Dkt. 57, p. 13) However, her arguments are without merit, as the Seventh Circuit has explicitly stated that “truth is not within human reach, and even after trial there may be much uncertainty.” Nemmers v. U.S., 795 F.2d 628, 631 (7th Cir. 1986) (emphasis added). Mullen cannot deny knowledge of the allegations against Rick Butler stemming from alleged conduct in the 1980s before she enrolled her daughter in the Sports Performance program. If Plaintiff had, at any point, performed a basic internet search, she would have discovered details
15
of the allegations. (Def. SOF ¶ ¶ 30-38, Group Exhibit P) Plaintiff has repeatedly referenced a 2015 ESPN article in her Complaint and subsequent filings, which states that “[v]arious media reports over the past two decades have detailed the allegations, and even a simple Google query of Butler’s name and ‘volleyball’ produces the allegations associated with him.” (Dkt. 1, ¶ 1; Dkt. 57, p. 3; Def. SOF ¶ ¶ 43-48) Since 1995, numerous articles written about Rick Butler have mentioned the (1) graphic details about the allegations, which aired in a 2001 ESPN Outside the Lines episode, (2) details about the 1995 USA Volleyball proceedings and ban, and (3) the DCFS investigation and findings of “credible” evidence. (Def. SOF ¶ ¶ 30-38, Group Exhibit P) The fact is that Mullen was aware of the allegations, and armed with that knowledge, she enrolled her daughter in the Sports Performance program for years. Plaintiff’s claims of concealment and deception fail. B. The Statements Set Forth in Plaintiff’s Complaint Are Not Deceptive The allegedly false statements contained in Plaintiff’s Complaint (Dkt. 1, ¶ ¶ 231-32) are subjective statements that Illinois courts have characterized as mere puffing and, therefore, cannot form a basis of a fraud claim. See Avery, 216 Ill. 2d at 174. In addition, to prevail on a fraud claim, the misrepresentation or omission must be material, which under Illinois law is determined by an objective standard common to the entire class. See Kitzes v. Home Depot, USA, Inc., 374 Ill.App.3d 1053, 1061 (1st Dist. 2007). Here, no reasonable jury would conclude that any deception occurred when the statements themselves are not actionable and when Mullen has acknowledged that truth of the alleged misstatements. To illustrate, Mullen claims that Defendants misrepresented to Plaintiff and members of the Class that their volleyball services: a) have “the highest quality coaches. See Evanston Hospital v. Crane, 254 Ill.App.3d 435, 439 (1st Dist. 1993) (holding that statement of “high-quality” is puffing and, hence, not actionable).
16
• Mullen confirmed that GLV employs high quality coaches when she emailed GLV coach Troy Gilb stating, “It is an important year for [A.M.] as she is going to be looked at by college coaches (like you stated to me) land she did improve so much with a lot of help from Don Joe, experienced setters, and hard work.” (Def. SOF ¶ 23, Group Exhibit K, p. 9) b) will “give you the finest coaching, teaching and training.” See Avery, 216 Ill.2d at 174 (holding that puffing typically consists of “subjective descriptions relating to quality,” such as “high quality,” “perfect,” and “best.”). • Mullen confirmed that she received the finest coaching, teaching, and training when she emailed GLV Mullen similarly emailed coach Eric Vogt stating, “Thanks so much for taking the time with [A.M.] this week. She really enjoys and benefits from the lessons with you.” (Def. SOF ¶ 23, Group Exhibit K, p.1) • c) have “extremely qualified staff.” See Avery, 216 Ill.2d at 174; Breckenridge v. Cambridge Homes, Inc., 246 Ill.App.3d 810, 823 (2d Dist. 1993) (finding statements to be inactionable puffing where plaintiffs were told their home would be built with “expert workmanship”). • Mullen confirmed that GLV has extremely qualified staff when she emailed GLV coach Troy Gilb stating, “[A.M.] has mentioned that she will miss being coached by you as she feels like she grew as a player under your and Don-Joe’s instruction.” (Def. SOF ¶ 23, Group Exhibit K, p. 11) d) are a safe environment for underage girls to play volleyball. Tylka v. Gerber Products Co., No. 96 C 1647, 1999 WL 495126 at *8 (N.D. Ill. 1999) (finding statements claiming to sell “most wholesome nutritious safe foods you can buy anywhere in the world” add little to the daily informational barrage to which consumers are exposed and cannot be the basis for liability). Moreover, Mullen admits that this statement was never made to her by any GLV employee. (Def. SOF ¶ 15) e) are superior to their competitors. See Avery, 216 Ill.2d at 174 (“A general statement that one’s products are best is not actionable as a misrepresentation of fact.”); August Storck K.G. v. Nabisco, Inc., 59 F.3d 616, 618 (7th Cir. 1995) (“A comparison to a mystery rival is just puffery; it is not falsifiable and therefore is not informative.”). • Mullen confirmed that GLV is superior to its competitors on several occasions, including when she emailed Rick Butler stating, “I know Sports Performance provides the best skills training when the two clubs are compared.” (Def. SOF ¶ 23, Group Exhibit K, p. 10) f) have a “commitment to Excellence” See City of Sterling Heights General Employees’ Retirement System v. Hospira, Inc., No. 11 C 8332, 2013 WL 566805, at *25 (N.D. Ill. Feb. 13, 2013) (finding statements inactionable where defendant said it was “r
17
• Mullen confirmed that GLV was committed to providing excellent training when she emailed Rick Butler stating, “I know what a stellar reputation your club has with college coaches.” (Def. SOF ¶ 23, Group Exhibit K, p. 1) g) include camps that are “head and shoulders above the competition.” See Avery, 216 Ill.2d at 174 (“Puffing denotes the exaggerations reasonably expected of a seller as to the degree of quality of his or her product, the truth or falsity of which cannot be precisely determined.”). Notably, camps are not part of the Sports Performance program. (Dkt. 101, p. 17) h) include camps that “provide elite, high quality training.” See Avery, 216 Ill.2d at 174 (holding that puffing typically consists of “subjective descriptions relating to quality,” such as “high quality,” “perfect,” “Quality Replacement Part,” and “best.”). As mentioned in (g) above, camps are not part of the Sports Performance program. (Dkt. 101, p. 17). i) will give its “best effort to make sure that you feel that the experience was well worth the time, efforts and expense.” See Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1441 (7th Cir. 1992) (finding statement that defendant would “do [its] very best to make this project a success” was merely a vague expression of goodwill). • In addition to the VolleyTalk post discussed supra Part II(A), where Mullen was praising GLV’s cost-effective, quality training, Mullen confirmed that GLV employees gave their best efforts when she emailed coach Erik Vogt stating, “[J.M.]’s made comments to me that ‘the coaches really care about how and what I’m doing.’” (Def. SOF ¶ 23, Group Exhibit K, p. 6) j) “will continue to strive for excellence.” See Beraha, 956 F.2d at 1441; Pennington v. Travelex Currency Services, 114 F.Supp.3d 697, 702 (N.D. Ill. 2015) (holding an offer of an “excellent rate” is promise belonging to the realm of puffery rather than misrepresentation); See Hospira, Inc., 2013 WL 566805, at *25 (finding statements inactionable where defendant said it was “raising the bar internally”). • Mullen confirmed that she, too, anticipated that GLV would continue its practice of providing excellent training when she emailed Rick Butler stating that “[A.M.]’s goal is to play at a D1 school and Sports Performance is probably the best place to help her achieve that.” (Def. SOF ¶ 23, Group Exhibit K, p. 10) k) have had “37 years of excellence.” See Anderson v. Abbott Laboratories, 140 F.Supp.2d 894, 902-08 (N.D. Ill. 2001), affirmed, 269 F.3d 806 (7th Cir. 2001). (finding statements to be “incredibly vague puffery,” where defendant stated he had a goal of reaching a “higher level of performance,” and that the company was “building on the strength established over the decades”); Breckenridge, Ill.App.3d at 823 (home described as “perfect” is puffing and, hence, not actionable).
18
• By Plaintiff’s own admission, Sports Performance “is a widely known training program that fields numerous youth volleyball teams for national competitions.” (Dkt. 1, ¶ 14) The club’s accomplishments include: 95 AAU / JVA / USAV National Championships, 8 USAV 18 Open National Championships, 21 USAV 18 Open division medals, 52 USAV Age Group Medals, 156 AAU Age Group Medals, 145 USAV All-Tournament Team Selections, and 530 AAU All- Americans. (Def. SOF ¶ 3, Exhibit O, ¶ 17, Exhibit N, ¶ 16) l) are “specialists in training youth and junior volleyball athletes.” Breckenridge, 246 Ill.App.3d at 823 (finding statements to be inactionable puffing where plaintiffs were told their home would be built with “expert workmanship”). • Mullen confirmed GLV’s specialty when she emailed Mullen emailed Defendant Cheryl Butler stating that her daughter “has definitely benefited from the instruction that she has received at SPRI.” (Def. SOF ¶ 23, Group Exhibit K, p. 3) m) “Only by having ‘Elite Level’ Master Coaches can any program guarantee that all athletes regardless of the team they are playing on will receive the same high quality instruction. Otherwise, each player is at the mercy of the level of their individual team coach who may or may not have the ability to teach at the highest levels and bring out the best in each athlete.” See Avery, 216 Ill.2d at 174 (“Puffing denotes the exaggerations reasonably expected of a seller as to the degree of quality of his or her product, the truth or falsity of which cannot be precisely determined.”). • Mullen confirmed that GLV’s Master Coaches contributed to the quality of the program when she emailed Rick Butler stating that “…SPRI has a beautiful facility, an excellent record with girls securing scholarships to D-1 schools, more Master Coaches, and a more established system that seems to work.” (Def. SOF ¶ 23, Group Exhibit K, p. 1) n) “The #1 priority is the safety of the athletes, coaches, officials and our staff. We ask that you help us keep our facility a safe and a fun environment for all of us to enjoy the game of volleyball.” See Beraha, 956 F.2d at 1441 (finding vague expressions of goodwill to be inactionable). Moreover, Mullen admits that this statement was never actually made to her by any GLV employee, but that it was implied. (Def. SOF ¶ 15) (Dkt. 1, ¶ ¶ 231-32) The Illinois Supreme Court has addressed the types of statements Plaintiff includes in her Complaint regarding the quality of services, holding, as a matter of law, that statements describing a product as ‘quality’ or as having ‘high performance criteria’ are the types of subjective characterizations that Illinois courts have repeatedly held to be puffing. Avery, 216 Ill.2d at 174.
19
The opinions of GLV employees, even if they were relied upon by Plaintiff, were merely expressions of opinion of the quality of GLV’s training and coaching. (Dkt. 1, ¶ ¶ 167-68) Thus, they will not support an action for fraud. No statement contained in Plaintiff’s Complaint establishes a claim of fraud, and Plaintiff’s admissions show that she is not entitled to recover on any fraud theory she alleges. While fraud claims often involve disputed questions of fact, a court may determine that a challenged statement was not misleading as a matter of law. Ibarrola v. Kind, LLC, 83 F.Supp.3d 751, 756 (N.D. Ill. 2015); Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001). The mere existence of a scintilla of evidence in support of the nonmoving party’s position is insufficient to survive a summary judgment motion; there must be evidence on which the jury could reasonably find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Here, no such evidence exists, and summary judgment should be awarded in favor of Defendants. C. Plaintiff Lacks Sufficient Evidence to Prove Deception and Proximate Cause There is no genuine issue of material fact as to whether the statements of which Plaintiff complains (Dkt. 1, ¶¶ 161, 231-32) are deceptive, because Plaintiff is unable to set forth any nonspeculative evidence which would allow a reasonable jury to return a verdict for the Plaintiff. (Def. SOF ¶ ¶ 13-15); see Anderson, 477 U.S. at 248. Notably, the only two statements referenced in Plaintiff’s Complaint which relate to the safety of the program were never actually made to her by any Defendant. Rather, she asserts that the truth of the safety statements was implied. (Def. SOF ¶ 15, Exhibit B, No. 5(d), Exhibit C, No. 5(m)) Absent any context to establish how Plaintiff concluded that those safety statements were implied, it is impossible to determine whether a reasonable consumer would have been misled by the particular statements. See Fink, 714 F.3d at 742. But, more to the point, there is no claim for recovery based upon a theory that Plaintiff’s
20
daughter was physically or emotionally harmed at any time during her enrollment in the Sports Performance program. (Def. SOF ¶ 12) No deception regarding safety occurred. As to the remaining statements of which Plaintiff complains regarding the quality of the coaches and training at Sports Performance Volleyball Club, Plaintiff is unable to state whether she heard or read any such statement prior to her daughter’s first year with the Sports Performance program, in 2012, or if she heard them after the fact, in 2013. (Def. SOF ¶ ¶ 14-15) Moreover, Plaintiff admits that she initially registered her daughter for clinics at GLV not based on Defendants’ alleged statements, but, rather, based on “positive reviews of the clinics at GLV”. (Dkt. 1, ¶ 167) Plaintiff first began participating in GLV’s clinics and lessons in March of 2011, well before she claims to have been misled by Defendants’ statements in 2012 or 2013. (Def. SOF ¶ 8, Group Exhibit K, p. 2) Therefore, if Mullen is unable to state when she first heard the misleading information, and she admitted to registering her daughter based upon positive reviews of other parents, no reasonable jury could conclude that Defendants’ statements proximately caused her to enroll in the Sports Performance program and subsequent suffer harm. See Anderson, 477 U.S. at 248. Even more, after Plaintiff claims she “found links in June of 2017 on the internet that lead her to substantial details of Butler’s sexual abuse” (Dkt. 1, ¶ 175), she still allowed her daughter to return to the Great Lakes Center for GLV events. (Def. SOF ¶ ¶ 61-65) On August 30, 2017, Plaintiff paid GLV to register her daughter J.M. for a lesson at the Great Lakes Center, and her daughter attended the lesson on September 3, 2017. (Def. SOF ¶ 61) On September 15, 2017, Plaintiff paid GLV to register her daughter J.M. for a clinic at the Great Lakes Center, and her daughter attended the clinic on September 16, 2017. (Def. SOF ¶ 62) Finally, in the summer of 2018, after the filing of this litigation, Plaintiff’s daughter, J.M., participated in GLV’s Summer
21
League, which took place at the Great Lakes Center. (Def. SOF ¶ 63) Plaintiff did not accompany or personally supervise her daughter in the Great Lakes Center, which Plaintiff knows is operated by the Defendants and is home to Rick Butler’s office. (Def. SOF ¶ 64) Further, when Mullen’s daughter played in Summer League after she filed this litigation, Mullen signed a waiver on July 10, 2018, expressly granting Defendant GLV, Inc. permission to treat her child or arrange for medical care or treatment for her child in any situation deemed reasonably necessary by GLV, Inc. (Def. SOF ¶ 65) Plaintiff’s actions are in direct conflict with the claims she advances before this Court. In the context of a fraud claim, cause-in-fact is “but for” cause. Price v. Philip Morris, Inc., 219 Ill. 2d 182, 269 (Ill. 2005). “That is, the relevant inquiry is whether the harm would have occurred absent the defendant’s conduct.” Id. Considering all the information publicly available to her in 2011, Plaintiff should have been aware of the allegations against Rick Butler regardless of the alleged attempt to conceal them. (Def. SOF ¶ ¶ 30-38) At bottom, there was no concealment – the information was publicly available. Id. Therefore, as a matter of law, Plaintiff is unable meet her burden to prove that Defendants proximately caused her injury. As such, summary judgment should be awarded to Defendants on all fraud claims. D. There is No Duty to Disclose Public Information A fundamental flaw dooming Plaintiff’s claims is that she cannot claim that Defendants had a duty to disclose information already readily available in numerous public forums, particularly since she admits she was aware of at least some of the information. (Def. SOF ¶ 39); see Mitchell v. Skubiak, 248 Ill.App.3d 1000, 1006 (1st Dist. 1993) (dismissing claim when purchasers failed to use “a little old-fashioned common sense”). This is not a case involving a fiduciary duty governing disclosures. In Illinois, for a plaintiff to prove that the concealment of a
22
fact was a fraudulent misrepresentation, a plaintiff must prove the existence of “a special or fiduciary relationship” giving rise to a duty to convey accurate information. Schrager v. North Community Bank, 328 Ill.App.3d 696, 706-07 (1st Dist. 2002). The burden of proving the existence of a fiduciary relationship lies with the party seeking relief, and facts from which a fiduciary relationship arises must be pleaded and proved by clear and convincing evidence. Id. Here, the Defendants are volleyball coaches. (Def. SOF ¶ ¶ 3-5) Nothing Plaintiff has alleged supports the existence of a fiduciary duty between youth volleyball coaches and the parents of the players they coach. In Wigod v. Wells Fargo Bank, N.A., the Seventh Circuit examined a number of Illinois cases and concluded that “the defendant accused of fraudulent concealment must exercise overwhelming influence over the plaintiff ... and asymmetric information alone does not show the degree of dominance needed to establish a special trust relationship.” 673 F.3d 547, 572–73 (7th Cir. 2012). Plaintiff cannot meet her burden to show that Defendants had an overwhelming influence over her such that there was a fiduciary relationship. E. Plaintiff Cannot Prove that Defendants Had Knowledge of the Falsity of a Statement or that Defendants Intended to Conceal Information Because Plaintiff is unable to provide the context of each alleged misstatement, the date of each alleged misstatement, and the speaker of the alleged misstatement (Def. SOF ¶ ¶ 14-15), she cannot demonstrate with clear and convincing evidence that any speaker of the alleged misrepresentations had knowledge of the falsity of any statement she claims to have misled her. See Avery, 216 Ill.2d 100; Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreen Co., 631 F.3d 436, 441-42 (7th Cir. 2011) (stating “we have often incanted that a plaintiff ordinarily must describe the “who, what, when, where, and how” of the fraud”). Without identifying who spoke each alleged misstatement and the context in which the statement was made,
23
Plaintiff cannot, as a matter of law, meet her burden to prove that such person had knowledge of the falsity of a statement. See id. Moreover, Plaintiff cannot prove that Defendants, when they promoted the quality of their volleyball training without also disclosing publicly available allegations against Rick Butler of sexual abuse from the 1980s, intended to conceal that information from Plaintiff. (Def. SOF ¶ ¶ 66-70) This is not a case of concealment. (Dkt. 1, ¶ 219) Quite the contrary. Defendants did not intend to conceal the past investigations and bans inflicted upon Rick Butler. (Def. SOF ¶ ¶ 66-70, Group Exhibit S) In fact, Rick and Cheryl Butler have held meetings and sent several emails to the Sports Performance parents throughout the class period, where they discussed the allegations and related events. Id. It would be impossible for Defendants, at that same time, to conceal information which they were publicly acknowledging to those whom Plaintiff claims were unaware. IV. SUMMARY JUDGMENT IS PROPER ON PLAINTIFF’S UNFAIR PRACTICES CLAIM FAILS BECAUSE DEFENDANTS’ CONDUCT WAS NOT SO OPPRESSIVE AS TO LEAVE MULLEN WITHOUT ALTERNATIVES To succeed on an ICFA unfair practices claim, a defendant’s conduct must violate public policy, be so oppressive as to leave the consumer with little alternative except to submit to it, and injure the consumer. See Galvan, 382 Ill.App.3d at 265. The evidence is woefully insufficient for Plaintiff’s unfair practices claim to survive summary judgment. Throughout the class period, Plaintiff’s daughters played volleyball at Sports Performance Volleyball Club, Fusion Volleyball Club, and Sky High Volleyball Club. (Def. SOF ¶ 25, Exhibit C, No. 14) In 2013, she emailed GLV coach Troy Gilb to inform him that A.M. would be switching clubs to GLV’s competitor and said, “I have confidence that [A.M.] would receive excellent training at both clubs,” undermining any notion that Defendants’ conduct was so oppressive as to leave Plaintiff with little alternative to participation in the Sports Performance program. (Def. SOF ¶ 25, Group Exhibit K, p. 11)
24
Remarkably, on July 31, 2015, when Mullen’s daughter was unsure of whether she would return to Sports Performance or remain at Fusion Volleyball Club, she emailed Rick Butler (days after ESPN’s Outside the Lines discussed the allegations), stating, “I’m sorry my decision is taking so long, for me it’s a tough one…It is unfortunate to hear about all of the bad press, but I support you and Cheryl” (emphasis added). (Def. SOF ¶ 25, Exhibit L) In response, Rick wrote: I very much appreciate your kind words. My gut feeling is that you should stay where you are. It seems like you have a lot going for you and I believe that Sports Performance is a place that you REALLY have to want to be a part of. If you’re not feeling that then you shouldn’t make the switch back. Ultimately, your happiness with your situation is the most important thing. I wish you all the best. (emphasis added). (Def. SOF ¶ 25, Ex. L) Rick Butler’s communication to Mullen’s daughter directly negates Mullen’s claims that Defendants’ conduct was unfair or oppressive. No reasonable jury could conclude that Defendants’ conduct was unfair and oppressive when the Defendants were advising that her daughter play volleyball elsewhere. Siegel v. Shell Oil Co., 656 F.Supp.2d 825, 833 (N.D. Ill. 2009). “Illinois courts have declined to find an ICFA violation in the total absence of the type of oppressiveness and lack of meaningful choice necessary to establish unfairness.” Siegel, 656 F.Supp.2d at 833 (finding that plaintiff’s own testimony that he could-and did-purchase gasoline from non-defendants undermined his claim that he “had no meaningful opportunity to avoid paying the higher retail price”); Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 420 (2002) (oppression not proved because plaintiffs could have “gone elsewhere” to lease a car and avoid defendant’s penalty provisions). As such, Defendants are entitled to summary judgment as a matter of law on Plaintiff’s ICFA unfair practices claim.
25
V. PLAINTIFF’S IPFSA CONTRACT CLAIM FAILS BECAUSE SPVB DOES NOT OFFER SERVICES TO THE PUBLIC AND BECAUSE SHE LACKS SUFFICIENT EVIDENCE TO PROVE CAUSATION AND ACTUAL DAMAGE As discussed in Part II and Part III above, Plaintiff’s fraud claims, including that which falls under the IPFSA, fail as a matter of law. The Class has been limited to those individuals that paid fees as a member of the Sports Performance Volleyball Club, which is a private club which requires a tryout to be considered for membership. (Def. SOF ¶ ¶ 16-20) The IPFSA only applies to physical fitness centers, which is defined by the Act as “any person or business entity offering physical fitness services to the public.” (emphasis added) 815 ILCS 645/2. Sports Performance Volleyball Club is not open to the public, as memberships cannot be purchased without meeting certain criteria and being accepted into the program. (Def. SOF ¶ ¶ 16-20); See Davis v. Attic Club, 56 Ill.App.3d 58, 62 (1st Dist. 1977) (differentiating between restaurants and hotels, which are recognized as premises held out to the public, as opposed to clubs, which serve club members rather than the public: “for a private club, by definition, is not in the public domain”). In fact, each member of Sports Performance must attend a tryout and be accepted to the club. (Def. SOF ¶ ¶ 16-20) Plaintiff acknowledges that “GLV offers several types of volleyball instruction, including training camps, youth programs, and a high-level club program called Sports Performance Volleyball.” (Dkt. 83, p. 1) Memberships for the Sports Performance Volleyball Club are highly exclusive and not available for public purchase, and non-members are not permitted to use the facility. (Def. SOF ¶ ¶ 16-20, Exhibit F) Only those players who show an elite athletic ability and the drive to learn the skills required to become a collegiate athlete are accepted into the program. (Def. SOF ¶ 16, Exhibit O, ¶ 3, Exhibit N, ¶ 3) Therefore, the Sports Performance Volleyball Club contracts are not subject to the requirements of the IPFSA.
26
Plaintiff claims GLV violated the IPFSA contract requirements, stating, “On information and belief, Defendant GLV violated the following provisions of the IPFSA: (a) 815 ILCS 645/4; and (b) 815 ILCS 645/6.” (Dkt. 1, ¶ 199) Section 4 of the IPFSA requires contracts for physical fitness services to be in writing with a copy given to the customer at the time the customer signs the contract, and requires physical fitness centers to maintain original copies of all contracts for services for as long as such contracts are in effect and for a period of 3 years thereafter. 815 ILCS 645/4. Section 6 of the IPFSA governs provisions requiring the contract to set forth, inter alia, (1) the customer’s rights to cancel the contract within three business days for a full refund, (2) the customer’s rights to cancel upon relocation, and (3) the customer’s right to cancel upon death or disability. 815 ILCS 645/6. Plaintiff admits she received a copy of the Sports Performance Parent/Player contract for each year between 2013-2016. (Def. SOF ¶ 18) However, certain provisions required by the IPFSA are not conducive to the characteristics of the Sports Performance Program, likely because it is not the type of service the legislatures anticipated would be encompassed by the IPFSA. For example, the IPFSA requires that the contract set forth the customer’s total payment obligation for services to be received under the contract, however, travel is required for participation in the program and tournament locations vary from team to team. (Def. SOF ¶ 21, Exhibit F, p. 1-2) Moreover, travel costs are dependent on the price at the time of the tournament, so it would be impossible to accurately set forth the customer’s total payment obligation in the Sports Performance contract. Id. There is nothing to indicate that any of the requirements of Section 4 and/or Section 6, or GLV’s alleged failure to abide by them, have impacted class members in any way. (Def. SOF ¶ 11) Plaintiff claims no harm flowing from Defendants’ alleged failure to include provisions she claims were required by the IPFSA. Id. Therefore, because it is clear GLV is not a physical fitness center
27
and that Plaintiff has not suffered an injury proximately caused by Defendant’s failure to include the contract provisions required by the IPFSA, Defendants are entitled to summary judgment on Plaintiff’s IPFSA contract claim. Assuming, arguendo, that GLV is a “physical fitness center” as defined by the IPFSA, Plaintiff’s contract claim also fails as a matter of law because, in order to bring a claim to enforce the provisions of the Act, Mullen must establish that she suffered actual damage which was proximately caused by GLV’s alleged failure to include the provisions required by the IPFSA. 815 ILCS 645/11 (“A customer injured by a violation of the IPFSA may bring an action to recover damages, which may be entered in for three times the amount of actual damages, plus costs and reasonable attorneys’ fees.”) (emphasis added). Plaintiff has yet to even allege how she was injured as a result of GLV’s alleged failure to comply with the IPFSA’s contract provisions, let alone produce any evidence in support of such a claim. Plaintiff’s only claim of harm in this matter is that, had she known about Rick Butler’s alleged abuse of players in the 1980s, she would not have allowed her daughters to play for Sports Performance and would not have paid fees to GLV. (Dkt. 1, ¶ 176); (Def. SOF ¶ 11) Plaintiff never mentions any injury caused as a result of GLV’s alleged failure to include contract provisions, let alone set forth any evidence in support of such a claim, summary judgment is proper. VI. SUMMARY JUDGMENT IS PROPER ON PLAINTIFF’S UNJUST ENRICHMENT CLAIM BECAUSE IT IS PREDICATED ON HER FRAUD CLAIMS WHICH FAIL AS A MATTER OF LAW To succeed on a cause of action based on a theory of unjust enrichment, a plaintiff must prove that the defendant has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience. See HPI Health Care Services, Inc., 131 Ill. 2d at 160. In her Complaint, Plaintiff has
28
incorporated all other causes of action into her Unjust Enrichment claim by reference. (Dkt. 1, ¶ 256) Therefore, her unjust enrichment claim is predicated on her claims of fraud. (Dkt. 1, ¶ 263) For the reasons set forth supra, Plaintiff’s common law fraud and statutory fraud claims fail, therefore the unjust enrichment claim must fail as well. See Siegel, 656 F.Supp.2d at 833; see also Athey Products Corp. v. Harris Bank Roselle, 89 F.3d 430 (7th Cir.1996) (affirming dismissal of unjust enrichment claim); Association Ben. Services, Inc. v. Caremark RX, Inc, 493 F.3d 841, 853 (7th Cir. 2007) (unjust enrichment claim failed when the predicated claim of fraud failed). Plaintiff’s unjust enrichment claim necessarily fails because it is predicated on the same fraudulent conduct as the claims discussed above. Therefore, summary judgment should be entered in favor of Defendants on Plaintiff’s Sixth Cause of Action. VII. PLAINTIFF IS NOT ENTITLED TO THE INJUNCTIVE RELIEF SHE SEEKS To establish standing to seek injunctive relief, she must allege not only “past exposure to illegal conduct” but also that it is accompanied either by “continuing, present adverse effects,” O’Shea v. Littleton, 414 U.S. 488, 494 (1974), or, more relevant to this case, “a sufficient likelihood that [plaintiff] will again be wronged in a similar way,” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Plaintiff has knowledge of the information she claims was fraudulently concealed by Defendants, and she is not likely to return to a GLV program for volleyball training. Therefore, she is not eligible for injunctive relief under the Deceptive Practices Act, which requires a plaintiff to show that the defendant’s conduct will likely cause it to suffer damages in the future. Tarin v. Pellonari, 253 Ill.App.3d 542, 553 (1st Dist. 1993). Moreover, Plaintiff’s requested relief violates public policy and established societal norms. Throughout her Complaint, Plaintiff continuously states that the “true” state of facts regarding the alleged sexual abuse were misrepresented or omitted, and, therefore, requests that the Court order
29
an injunction “requiring Defendant GLV to prevent Defendants Rick and Cheryl Butler from having further involvement in any of its youth volleyball programs” and requiring Defendants to “fully disclose the true nature of Butler’s sexual abuse of underage girls” as a standard prerequisite to all of their business transactions. (Dkt. 1, ¶ ¶ 3, 226) As noted supra Part III(A), the Seventh Circuit has explicitly stated that “truth is not within human reach, and even after trial there may be much uncertainty.” Nemmers, 795 F.2d at 631. It is because of that uncertainty that the relief Plaintiff seeks is improper, as it would deprive the Defendants from the ability to defend themselves and force Rick Butler to admit to a crime he has fervently denied for nearly three decades. Further, it would strip both the Defendants and their customers from the freedom to choose with whom they do business. Therefore, Plaintiff’s request for injunctive relief is improper and summary judgment should be entered in favor of Defendants for each and every cause of action set forth by the Plaintiff. CONCLUSION For all of the foregoing reasons, Defendants respectfully request that this Court enter an Order granting Defendants’ Motion for Summary Judgment on All Claims and granting any other relief that this Court deems just and proper. Date: May 28, 2019 Respectfully Submitted, GLV, INC., RICK BUTLER, and CHERYL BUTLER By: /s/ Danielle D’Ambrose
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on May 29, 2019 19:07:18 GMT -5
Docket #148
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. Case No. 18-cv-1465 GLV, INC., d/b/a SPORTS PERFORMANCE VOLLEYBALL CLUB Honorable Matthew F. Kennelly and GREAT LAKES CENTER, an Illinois corporation, RICKY BUTLER, an individual, and CHERYL BUTLER, an individual, Defendants.
DEFENDANTS’ MOTION TO STAY DISCOVERY PENDING RESOLUTION OF OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON ALL COUNTS
Defendants, GLV, Inc. d/b/a Sports Performance Volleyball Club and Great Lakes Center (“GLV”), Rick Butler (“Rick”), and Cheryl Butler (“Cheryl”), pursuant to Local Rule 7.1, respectfully move this Court to stay all outstanding discovery pending the resolution of Defendants’ Motion for Summary Judgment on All Counts. In support of this Motion, Defendants state as follows: 1. On May 28, 2019, Defendants filed a Motion for Summary Judgment on all claims set forth by Plaintiff. 2. Defendants’ Motion for Summary Judgment concerns matters which are within the personal knowledge of Laura Mullen, such as whether she suffered an injury, actual damages, and whether she was deceived. Every cause of action Mullen sets forth requires an injury-in-fact and actual damages. Moreover, five of the six counts in the Complaint depend on allegations of fraud, and each of these claims requires Plaintiff to prove that the Defendants deceived Plaintiff. See 815
2
Ill. Comp. Stat. 645/10 (IPFSA); Newman v. Metro. Life Ins. Co., 885 F.3d 992, 1000 (7th Cir. 2018) (ICFA); Connick, Ltd., 174 Ill. 2d at 496 (common-law fraud). 3. The Motion for Summary Judgment does not address the class allegations, and instead focuses on the claims of Laura Mullen. No additional discovery is required for Plaintiff to respond to the Motion for Summary Judgment. A stay of discovery is often appropriate in situations where a pending dispositive motion can resolve the case and where “the requested discovery is unlikely to produce facts necessary to defeat the motion.” Sprague v. Brook, 149 F.R.D. 575, 577 (N.D.Ill.1993). 4. A court has the inherent authority to stay proceedings in a case to conserve its own time and that of the parties. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In considering whether to grant a stay, a court exercises its judgment by “weigh[ing] [the] competing interests and maintain[ing] an even balance.” Id. Generally speaking, a court considers whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving party; whether a stay will simplify the issues and the trial; and how far the proceedings in the case have advanced. Courts also may consider whether a stay or denial of a stay would reduce the burden of litigation on the parties and the court. See, e.g., Ignite USA, LLC v. Pacific Market Int'l, LLC, No. 14 C 856, 2014 WL 2505166, at *2 (N.D. Ill. May 29, 2014). 5. On March 14, 2019, Defendants produced their supplemental discovery responses to Plaintiff’s First Set of Interrogatories to Rick Butler, First Set of Interrogatories to Rick Butler, First Set of Requests to Produce Documents and Things Directed to All Defendants. 6. Investigation related to Defendants’ Supplemental production in response to Plaintiff’s First Set of Requests to Produce Documents and Things Directed to All Defendants is still ongoing.
3
7. Defendants’ investigation involves the review of dozens of files dating back to the 1980s. The allegations of sexual abuse against Rick Butler have been the subject of multiple investigations and proceedings such as, for example, (1) the 1995 D.C.F.S. investigation, findings, and subsequent hearing on appeal, (2) the 1995 USA Volleyball investigation, hearing, and ban; (3) the appeal filed by Rick Butler concerning the 1995 USA Volleyball ban; (4) the 2017 lawsuit filed by Rick Butler against USA Volleyball and each motion, order, and correspondence related to the suit; (5) the 2016 USAV complaint, and four amended complaints with material modifications, and investigation of Rick Butler and the near year long process to attempt to get it to hearing; (6) the 2017 USAV ban which was related to the lawsuit filed by Rick Butler against USAV; (7) the 2018 USAV hearing and ban; (8) the AAU investigation and subsequent ban; (9) the investigation done by the DuPage County Probation Department in 1994-1995 related to the adoption of Rick and Cheryl’s son; (10) the DuPage County Adoption Court proceedings, which included, inter alia, a full review of the USAV hearing and findings; (11) the investigation and findings of the Guardian ad Litem appointed in the 1994-1995 Adoption proceedings; (12) the correspondence, gifts, and photographs related to Rick Butler’s relationships with the alleged victims; (13) the 2016 lawsuit filed by Sarah Powers-Barnhard against AAU for its failure to ban Rick Butler. This is merely an overview of the type of information to be reviewed by Defense counsel, as Rick Butler has been subject to scrutiny for 25 years. 8. None of the information sought by Plaintiff in discovery is relevant to the determination of Defendants’ Motion for Summary Judgment. To conduct discovery based on alleged acts from approximately 40 years ago is time-consuming, financially burdensome, and irrelevant to the arguments set forth in Defendants’ Motion for Summary Judgment.
4
9. Notably, most of the documents related to these proceedings are in boxes of hard copies, including at least a dozen deposition and hearing transcripts, which Defense counsel has been diligently trying to review, organize, and make sense of the nearly 40-year-old documents. 10. Moreover, due to the recent publicity of the allegations since the filing of this lawsuit, the alleged victims have appeared to testify in front of the Illinois State Senate, appeared on television programs, and have given countless interviews which would require review in order to prepare for a deposition of one of the accusers. 11. On March 29, 2019, Plaintiff's issued (1) a Fourth Set of Requests to Produce directed to all Defendants, (2) a Fourth Set of Interrogatories directed to Defendant GLV, (3) a Third Set of Interrogatories directed to Rick Butler, and (4) a Second Set of Interrogatories directed to Cheryl Butler. None of the information sought is pertinent to the determination of Defendants’ Motion for Summary Judgment. 12. On April 2, 2019 Plaintiff's issued a First Set of Requests to Admit directed to Defendant Rick Butler. and another set directed to Defendant GLV, Inc. There are 117 Requests to Admit directed to Rick Butler and an additional 17 to GLV. This discovery again focuses on the underlying allegations of abuse, which are immaterial to Defendants’ Motion for Summary Judgment. 13. On April 23, 2019, this Court granted Defendants’ Motion for an extension of time to respond to discovery, and the due date was extended to May 30, 2019. 14. On May 23, 2019, Plaintiff issued Notices for the depositions of Rick Butler, Cheryl Butler, GLV (pursuant to Rule 30(b)(6)), and GLV employee Troy Gilb. On May 28, 2019, Plaintiff issued an additional Notice for the deposition of GLV coach Erik Vogt. None of these depositions are necessary for Plaintiff to respond to Defendants’ Motion for Summary Judgment.
5
Moreover, if discovery were to proceed, the cost of additional depositions of witnesses will be particularly high, because, on information and belief, almost all of the women discussed in Plaintiff’s Complaint live outside the State of Illinois. However, neither their depositions nor those which were already noticed are necessary to the determination of the Defendants’ Motion for Summary Judgment. 15. Defendants have already incurred substantial discovery costs thus far in the form of legal fees and payments to third party e-discovery vendors which, due to the email system of GLV, are required to produce emails in their native format. 16. Defendants would bear a severe and unnecessary burden if they were required to undertake the remaining outstanding discovery, and, because Defendants seek to dispose of the entire matter on summary judgment, there is a legitimate chance that their efforts will result in nothing more than wasted time and legal fees. 17. On the other hand, Plaintiff suffers no unfair prejudice if this Motion to Stay is granted. Delay alone is not enough to tip the balance or to constitute unfair prejudice, as it is present in any case in which a stay is sought. See, e.g., Ignite USA, LLC v. Pacific Market Int'l, LLC, No. 14 C 856, 2014 WL 2505166, at *2 (N.D. Ill. May 29, 2014). If the Motion for Summary Judgment is denied in whole or in part, discovery will resume and Plaintiff will receive the discovery to which she is entitled. Therefore, Plaintiff does not face any unfair prejudice if the Court grants Defendants’ Motion. 18. The Federal Rules of Civil Procedure should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed.R.Civ.P. 1. A court has the inherent authority to stay proceedings in a case to conserve its own time and that of the parties. Landis v. N. Am. Co., 299 U.S. 248, 254
6
(1936). Therefore, this Court should grant Defendants’ Motion to Stay in order to promote a just, speedy, and inexpensive determination of this action. 19. In accordance with Local Rule 37.2, counsel for Defendants emailed Plaintiff’s attorneys prior to the filing of this Motion. However, Plaintiff’s attorneys refused to consent. WHEREFORE, Defendants request that this Honorable Court enter an Order granting Defendants’ Motion to Stay Discovery Pending the Resolution of Defendants’ Motion for Summary Judgment on All Counts and for any other relief this Court deems reasonable and just. Dated: May 28, 2019 Respectfully Submitted, GLV, INC., RICK BUTLER, and CHERYL BUTLER By: /s/ Danielle D’Ambrose One of Their Attorneys Danielle D’Ambrose D’AMBROSE P.C. 500 North Michigan Avenue, Suite 600 Chicago, IL 60611 P: (312) 396-4121 | F: (312) 574-0924 Danielle@DambrosePC.com ARDC No. 6323782 Attorney for Defendants
|
|
|
Post by midwestvball1 on May 29, 2019 20:36:50 GMT -5
Docket #144 - Supplement (I will effort getting the 23 exhibits referenced in this document available in the google drive from page one in the next few days. Ironically, VT is referenced numerous times!) 39. Mullen claims that, sometime between 2015 and 2017, she became aware that allegations of sexual abuse had been made against Rick Butler relating to conduct in the 1980s and that, after learning of the allegations, she viewed articles relating to the alleged sexual abuse online. (Exhibit C, No. 7-8); (Exhibit M, ¶ 5) 40. Mullen is a member of volleytalk.proboards.com, the online volleyball forum called Volley Talk, and her username under which she posts public comments, likes public comments, and sends private messages is “swimrowvball”. (Exhibit D, No. 1); Document Bates-stamped MULLEN_000333 produced by Plaintiff (Exhibit R); Plaintiff’s Responses to Defendants’ Request for Production (Exhibit Q, No. 4); (Group Exhibit G); (Group Exhibit H); (Group Exhibit I); (Exhibit M, ¶ ¶ 3, 8, 11, 13). 41. In August of 2015, approximately two months before returning to Sports Performance for the 2015-2016 season (Exhibit N, ¶ 3); (Exhibit , ¶ 3) Mullen posted on volleytalk.proboards.com within a thread titled “Rick Butler on Outside The Lines.” (Exhibit R); (Exhibit Q, No. 4); (Group Exhibit G); (Exhibit M, ¶ ¶ 8, 13). 42. Within the first two pages of the thread9 titled “Rick Butler on Outside The Lines,” there are numerous links to articles posted on the internet with an abundance of details about the allegations of sexual abuse in the 1980s. (Group Exhibit G); (Exhibit M, ¶ 10-11). 43. The first post in the thread titled “Rick Butler on Outside The Lines” provides a link10 to an ESPN article discussing the July 2015 episode of Outside the Lines (the article contains 9 Group Exhibit G, Volley Talk, Rick Butler on Outside the Lines, July 24, 2015, .proboards.com/thread/59367/rick-butler-on-outside-lines (last visited May 23, 2019) (full thread containing 49 pages of posts from members discussing the allegations of sexual abuse against Rick Butler and related investigations and events). 10 Group Exhibit G, p. 3-5, Shaun Assael, Questions About Volleyball Coach's Past Prompt His Removal Amid Review, ESPN, July 28, 2015, espn.go.com/espn/otl/story/_/id/13311608/aau-launches-review-policies-volleyball-coach-rick-butler-steps-aside (last visited May 22, 2019).
Interesting. So she knew about the allegations and still went back to the club. Big Brother is watching. They probably have a list of everyone that has been in these threads. No one is safe in the volleytalk world. Haha. Funny how you can actually go back and search a member's post history. She has 9 pages of posts under 'swimrowvball'. You can see the first post in 2015 on that thread.
|
|
|
Post by why on May 30, 2019 11:24:51 GMT -5
Docket #148 8. None of the information sought by Plaintiff in discovery is relevant to the determination of Defendants’ Motion for Summary Judgment. To conduct discovery based on alleged acts from approximately 40 years ago is time-consuming, financially burdensome, and irrelevant to the arguments set forth in Defendants’ Motion for Summary Judgment. 4 9. Notably, most of the documents related to these proceedings are in boxes of hard copies, including at least a dozen deposition and hearing transcripts, which Defense counsel has been diligently trying to review, organize, and make sense of the nearly 40-year-old documents.Once again if the information above is correct it would confirm that some of the victims were 9-13 years old when this happened. I am not saying they were but if we take the statements in this document at face value some of the players were 9-13 years old at the time. I understand that making these statements makes Rick look younger than he was but it also makes the age of the players much younger than they were. Maybe we can agree they were 15-17 years old. Saying the acts from approximately 40 years ago does not work when one victim is not yet 50 years old.
|
|
|
Post by Phaedrus on May 30, 2019 11:39:43 GMT -5
Docket #144 - Supplement (I will effort getting the 23 exhibits referenced in this document available in the google drive from page one in the next few days. Ironically, VT is referenced numerous times!) 39. Mullen claims that, sometime between 2015 and 2017, she became aware that allegations of sexual abuse had been made against Rick Butler relating to conduct in the 1980s and that, after learning of the allegations, she viewed articles relating to the alleged sexual abuse online. (Exhibit C, No. 7-8); (Exhibit M, ¶ 5) 40. Mullen is a member of volleytalk.proboards.com, the online volleyball forum called Volley Talk, and her username under which she posts public comments, likes public comments, and sends private messages is “swimrowvball”. (Exhibit D, No. 1); Document Bates-stamped MULLEN_000333 produced by Plaintiff (Exhibit R); Plaintiff’s Responses to Defendants’ Request for Production (Exhibit Q, No. 4); (Group Exhibit G); (Group Exhibit H); (Group Exhibit I); (Exhibit M, ¶ ¶ 3, 8, 11, 13). 41. In August of 2015, approximately two months before returning to Sports Performance for the 2015-2016 season (Exhibit N, ¶ 3); (Exhibit , ¶ 3) Mullen posted on volleytalk.proboards.com within a thread titled “Rick Butler on Outside The Lines.” (Exhibit R); (Exhibit Q, No. 4); (Group Exhibit G); (Exhibit M, ¶ ¶ 8, 13). 42. Within the first two pages of the thread9 titled “Rick Butler on Outside The Lines,” there are numerous links to articles posted on the internet with an abundance of details about the allegations of sexual abuse in the 1980s. (Group Exhibit G); (Exhibit M, ¶ 10-11). 43. The first post in the thread titled “Rick Butler on Outside The Lines” provides a link10 to an ESPN article discussing the July 2015 episode of Outside the Lines (the article contains 9 Group Exhibit G, Volley Talk, Rick Butler on Outside the Lines, July 24, 2015, .proboards.com/thread/59367/rick-butler-on-outside-lines (last visited May 23, 2019) (full thread containing 49 pages of posts from members discussing the allegations of sexual abuse against Rick Butler and related investigations and events). 10 Group Exhibit G, p. 3-5, Shaun Assael, Questions About Volleyball Coach's Past Prompt His Removal Amid Review, ESPN, July 28, 2015, espn.go.com/espn/otl/story/_/id/13311608/aau-launches-review-policies-volleyball-coach-rick-butler-steps-aside (last visited May 22, 2019).
Interesting. So she knew about the allegations and still went back to the club. Big Brother is watching. They probably have a list of everyone that has been in these threads. No one is safe in the volleytalk world. Haha. Funny how you can actually go back and search a member's post history. She has 9 pages of posts under 'swimrowvball'. You can see the first post in 2015 on that thread. VT moderators also know the IP addresses of everyone who posts and know who has multiple aliases and identify who they are. Just saying.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on May 30, 2019 11:56:14 GMT -5
|
|
|
Post by ineedajob on May 30, 2019 13:46:53 GMT -5
Docket #148 8. None of the information sought by Plaintiff in discovery is relevant to the determination of Defendants’ Motion for Summary Judgment. To conduct discovery based on alleged acts from approximately 40 years ago is time-consuming, financially burdensome, and irrelevant to the arguments set forth in Defendants’ Motion for Summary Judgment. 4 9. Notably, most of the documents related to these proceedings are in boxes of hard copies, including at least a dozen deposition and hearing transcripts, which Defense counsel has been diligently trying to review, organize, and make sense of the nearly 40-year-old documents.Once again if the information above is correct it would confirm that some of the victims were 9-13 years old when this happened. I am not saying they were but if we take the statements in this document at face value some of the players were 9-13 years old at the time. I understand that making these statements makes Rick look younger than he was but it also makes the age of the players much younger than they were. Maybe we can agree they were 15-17 years old. Saying the acts from approximately 40 years ago does not work when one victim is not yet 50 years old. I'm a little confused and just trying to make sense of what you're trying to say. It feels like you're stretching the math irresponsibly (or maybe I'm just not understanding what you're saying). I believe 5 accusers have come forward, alleging abuses that took place over a number of years. I might be fudging the numbers a little bit because some of the links to articles aren't working for me and I don't remember details perfectly. I believe the first woman said her abuse started in 1980 while another woman said hers began in 1987. It sounds to me like you're trying to connect the dots that the later victims were 9-13 years old in 1980, which doesn't really matter because they weren't victims then. I'm not sure if that's what you were trying to allege, but I read it as if you're trying to say that Butler raped girls as young as 9-13 years old, which none of the women have alleged.
|
|
|
Post by reader on May 30, 2019 13:58:05 GMT -5
I think the point is that stretching the dates to make this all seem sooo long ago also has the unfortunate side effect of making the victims appear much younger and probably was a dumb idea.
|
|
|
Post by Phaedrus on May 30, 2019 14:01:31 GMT -5
I think the point is that stretching the dates to make this all seem sooo long ago also has the unfortunate side effect of making the victims appear much younger and probably was a dumb idea. I am sure their lawyer is anything but incompetent, but this is making her look stupid.
|
|
|
Post by ineedajob on May 30, 2019 14:03:30 GMT -5
I think the point is that stretching the dates to make this all seem sooo long ago also has the unfortunate side effect of making the victims appear much younger and probably was a dumb idea. I am sure their lawyer is anything but incompetent, but this is making her look stupid. I think she's probably incompetent
|
|
|
Post by pepperbrooks on May 30, 2019 14:09:25 GMT -5
So how did they find out who Mullen was on volleytalk?
|
|
|
Post by why on May 30, 2019 14:48:29 GMT -5
Once again if the information above is correct it would confirm that some of the victims were 9-13 years old when this happened. I am not saying they were but if we take the statements in this document at face value some of the players were 9-13 years old at the time. I understand that making these statements makes Rick look younger than he was but it also makes the age of the players much younger than they were. Maybe we can agree they were 15-17 years old. Saying the acts from approximately 40 years ago does not work when one victim is not yet 50 years old. I'm a little confused and just trying to make sense of what you're trying to say. It feels like you're stretching the math irresponsibly (or maybe I'm just not understanding what you're saying). I believe 5 accusers have come forward, alleging abuses that took place over a number of years. I might be fudging the numbers a little bit because some of the links to articles aren't working for me and I don't remember details perfectly. I believe the first woman said her abuse started in 1980 while another woman said hers began in 1987. It sounds to me like you're trying to connect the dots that the later victims were 9-13 years old in 1980, which doesn't really matter because they weren't victims then. I'm not sure if that's what you were trying to allege, but I read it as if you're trying to say that Butler raped girls as young as 9-13 years old, which none of the women have alleged. I was simply pointing out that the written document implying that the acts took place approximately 40 years ago was misleading. Maybe it started 40 years ago but by no means were all the acts 40 years ago.
|
|