EFTA01358946.pdf

Page 12 889 F.3d 116, *; 2018 U.S. App. LEXIS 11909, ** Civil Procedure > Pleading & Practice > Pleadings > Heightened Pleading Requirements > Fraud Claims Criminal Law & Procedure > Criminal Offenses > Fraud > Mail Fraud > Elements Criminal Law & Procedure > Criminal Offenses > Fraud > Wire Fraud > Elements Antitrust & Trade Law > Private Actions > Racketeer Influenced & Corrupt Organizations > Claims > Fraud [HN10] A valid claim that does not rest on specific misrepresentations in the use of the mails or wires always identifies fraud with particularity at some level of the enterprise. Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation [HN11] The Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110, prohibits unfair or deceptive acts or practices in the conduct of any trade or commerce. Conn. Gen. Stat. § 42-110b(a). COUNSEL: For Plaintiffs-Appellants: JEFFREY A. LEON (with Jamie E. Weiss, Grant Lee, on the brief), Quantum Legal LLC, Highland Park, Illinois; Laurie Rubinow, Shepherd, Finkelman, Miller & Shah, LLP, Chester, Connecticut; Nathan C. Zipperian, Shepherd, Finkelman, Miller & Shah, LLP, Ft. Lauderdale, Florida. For Defendants-Appellees: KENNETH M. KLIEBARD [*.2] (with Gregory T. Fouts, on the brief), Morgan Lewis & Bockius LLP, Chicago, Illinois. JUDGES: Before: JACOBS and LYNCH, Circuit Judges, CROTTY, District Judge.' 1 Judge Paul A. Crotty. United States District Court for the Southern District of New York, sitting by designation. OPINION BY: DENNIS JACOBS OPINION r 119] DENNIS JACOBS, Circuit Judge: Seven former participants in online discount membership programs allege violation of federal privacy statutes and a racketeering conspiracy between online retailers and loyalty club businesses to defraud customers of "membership fees" for rewards programs they unwittingly joined. They allege that Trilegiant Corporation ("Trilegiant") conspired with e- merchant retailers such as Buy.com, Orbitz, and Priceline to enroll the retailers' customers in the membership programs via deceptive post-transaction marketing and datapass techniques. We conclude that, because the appellants fail to raise a material issue of fact as to whether they consented to enrollment in the membership programs, the prohibitions of the Electronic Communications Privacy Act do not apply; and because the appellants identify no actionable fraud, they cannot proceed on a theory of racketeering. The judgment of the district court is affirmed. For internal use only For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0046931 CONFIDENTIAL SDNY_GM_00193115 EFTA01358946