Men’s Wearhouse store
EAST ST. LOUIS — A federal judge refused to end a class action accusing Men’s Wearhouse of improperly adding “damage fees” to tuxedo rental bills.
Nate Higgins rented a suit from the Edwardsville Men’s Wearhouse in November 2024 and found his bill included a $12 Damage and Handling Fee, which he said the rental agreement describes as “nonrefundable and mandatory” to cover “the cost of minor repairs to the rental, and the costs associated with inspection, quality control and processing of the rental.”
In his putative class action, under the Illinois Consumer Fraud and Deceptive Business Practice Act, Higgins said the fee constitutes selling insurance without a license, is an attempt to exceed stated costs to boost profit and accused Men’s Wearhouse of falsely suggesting minor repairs are always needed and engaging in “obscured double-dipping” because consumers would expect the standard rental fee to cover the kind of expenses the damage fee purportedly addresses.
After Higgins sued in Madison County Circuit Court, Men’s Wearhouse removed the complaint to federal court and then asked U.S. District Judge David Dugan to dismiss the lawsuit. In an opinion filed March 16, Dugan denied that request.
In arguing for dismissal, Men’s Wearhouse challenged the allegation it provides insurance by claiming the required assumption of risk can only exist if there is a third party involved in the transfer of said risk. Dugan said that position relies on an overly broad reading of Griffin Systems v. Washburn, a 1987 Illinois Appellate Court decision, as it would negate “the entire concept of self-insurance.”
Dugan further noted the Griffin opinion predates the 1992 Illinois Supreme Court ruling in Outboard Marine v. Liberty Mutual, which defined insurance as a “contract whereby one undertakes to indemnify another against loss, damage or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in (the) future.“
Because the rental agreement’s fee description provides customers won’t be liable for costs due to “minor repairs to the rental and the costs associated with the inspection, quality control, and processing of the rental” while also warning renters that if “a rental is damaged beyond repair, or a rental is not returned, you will also be charged the full replacement cost of the item(s),” Dugan said it’s plausible to infer Men’s Wearhouse assumes risk for suits returned with repairable damage that still exceeds the “minor” level covered by $12.
Men’s Wearhouse further argued Higgins’ allegations were insufficiently based on groundless “information and belief,” but Dugan said Higgins provided “an adequate basis for the suspicion” Men’s Wearhouse isn’t using the fee for its stated purpose. He then said the other allegations plausibly allege deception, even with heightened pleading standards, and rejected the argument the ICFA claim of unfair practices is duplicative of the deception complaint.
As to whether Higgins alleged Men’s Wearhouse intended for customers to rely on the acts he alleged are deceptive and unfair, Dugan said the complaint survives because Higgins specifically noted customers don’t see the rental agreement and its damage fee description until they are
“at or near the end of the rental transaction,” while the fact a description is presented shows clear intent for customers to rely on the company’s basis for the additional fee.
Finally, Dugan said Higgins adequately pleaded he suffered damages because he claimed he either would’ve paid less to rent a tuxedo had he known the truth about the fee, and that if the description were accurate Men’s Wearhouse “would have charged less for the D&H Fee to only cover its actual costs.”
Higgins’ unjust enrichment claim also survives as tied to the fate of the ICFA allegations.
Higgins is represented by Byron Carlson Petri & Kalb; and Goldenberg Heller & Antognoli, both of Edwardsville; and Butsch Roberts & Associates, of Clayton, Missouri.
Men's Wearhouse is represented by attorney Patrick D. Cloud, of the firm of Heyl Royster Voelker & Allen, of Edwardsville.
