Rick Butler, Cheryl Butler, and GLV's Motion For Summary Judgment

Case: 1:18-cv-01465 Document #: 153 Filed: 06/07/19 Page 1 of 38 PageID #:4134
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
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
i
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
ii
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
iii
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
iv
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
v
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
vi
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)
1
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
2
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
3
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).
4
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
5
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 cost-
effective 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)
6
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.
7
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)
8
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-
9
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
10
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
11
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,
12
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);
13
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) (“[I]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
14
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).
15
• 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 ¶
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
“redoubling its commitment to quality”).
16
• 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).
17
• 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 ¶
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.
18
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
19
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
20
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
21
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,
22
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)
23
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.
24
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.
25
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
26
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
27
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
28
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

One of Their Attorneys
29
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
30
CERTIFICATE OF DELIVERY
The undersigned, an attorney, certifies that pursuant to Section X (E) of the General Order on
Electronic Case Filing for the Northern District of Illinois, service of the above and foregoing
document on all attorneys of record was accomplished through the Court’s Electronic Notice for
Registrants on May 28, 2019.
/s/ Danielle D’Ambrose
31

Rick Butler, Cheryl Butler, and GLV's Motion For Summary Judgment

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Rick Butler, Cheryl Butler, and GLV's Motion For Summary Judgment

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Case: 1:18-cv-01465 Document #: 153 Filed: 06/07/19 Page 1 of 38 PageID #:4134

IN THE UNITED STATES DISTRICT COURT

LAURA MULLEN, individually and on

MEMORANDUM IN SUPPORT OF DEFENDANTS’

Dated: May 28, 2019

Attorney for Defendants

I. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT.......................4

II. SUMMARY JUDGMENT IS PROPER ON ALL CLAIMS BECAUSE

A. Mullen Admits She Lacks Any Actual Damage .................................................6

C. Plaintiff Does Not Have Standing Because Her Injury is Subjective..............10

III. SUMMARY JUDGMENT IS PROPER ON ALL CLAIMS BECAUSE

A. No Reasonable Consumer Would Have Been Deceived Because the

B. The Statements Set Forth in Plaintiff’s Complaint Are Not Deceptive..........15

C. Plaintiff Lacks Sufficient Evidence to Prove Deception and Proximate

D. There is No Duty to Disclose Public Information ............................................21

E. Plaintiff Cannot Prove that Defendants Had Knowledge of the Falsity

IV. SUMMARY JUDGMENT IS PROPER ON PLAINTIFF’S UNFAIR

V. PLAINTIFF’S IPFSA CONTRACT CLAIM FAILS BECAUSE SPVB DOES

VI. SUMMARY JUDGMENT IS PROPER ON PLAINTIFF’S UNJUST

VII. PLAINTIFF IS NOT ENTITLED TO THE INJUNCTIVE RELIEF

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