OPINION
We must decide whether consumers can pursue claims against a company that allegedly deceived them into buying memberships in a discount club.
I
A
In response to a television advertisement, Patricia Sanford purchased Tae-Bo fitness tapes over the phone in February 1999. West Corporation (“West”) operated the call center that received Sanford’s call. Pursuant to West’s joint marketing agreements with MemberWorks, Inc. (“MWI”), 1 a West operator read Sanford the following sales script in an effort to “up-sell” a membership in the “Member-Works Essentials” program:
Mr(s). _, for purchasing Tae-Bo today, we’re sending you a risk-FREE *555 30-day membership to ESSENTIALS, a service designed to SAVE YOU 20% from leading stores such as EXPRESS and FLORSHEIM, plus reward savings at VICTORIA’S SECRET, TJ MAXX, PIER ONE and TARGET, PLUS additional savings on eyewear, beauty products, haircuts, and more! After 30 days, the service is extended to a full year for just $6 a month, billed annually in advance to the credit card you’re using today. If you want to cancel, just call the toll-free number that appears in your kit in the first 30 days and YOU WON’T BE BILLED. So look for that kit in the mail, OKAY?
Sanford had no recollection of hearing the script, agreeing to the free trial membership, or receiving the membership kit in the mail. Because she did not cancel her trial membership, her credit cаrd was charged a $72 annual membership fee in March 1999. In January 2000, her credit card was charged an $84 renewal fee.
Preston and Rita Smith had a similar experience after purchasing various so-called “bait products” over the phone, including Tae-Bo videos, Nad’s hair removal products, and Tai Vital Basics. The Smiths alleged that they were also read the sales script and, without their knowledge or consent, billed repeatedly for their membership in MemberWorks Essentials. They did not, however, allege whether it was Preston or Rita who placed each particular phone call.
B
On March 28, 2002, Sanford filed a putative class action against MWI
2
asserting a claim for violation of the federal Unordered Merchandise Statute, 39 U.S.G. § 3009, as well as state-law claims for conversion, unjust enrichment, and fraud. The district court grantеd MWI’s motion to compel arbitration of Sanford’s individual claims and dismissed the class claims as moot. After the arbitrator found for MWI on all claims except for Sanford’s claim for restitution under the Unordered Merchandise Statute, the district court granted MWI’s motion to confirm the arbitration award and denied the Smiths’ motion to intervene as alternative named plaintiffs. We vacated the district court’s orders and remandеd in
Sanford v. MemberWorks, Inc.,
On remand, MWI abandoned its efforts to go to arbitration. Sanford filed a First Amended Complaint, which added the Smiths as named plaintiffs and added a claim for violation of the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. § 1693 et seq. MWI filed a motion to dismiss, but before the district court ruled on the motion, Sanford and the Smiths (collectively, “Plaintiffs”) moved for leave to file a Second Amended Complaint on the ground that certain “ministerial” revisions were required to effectuate a settlement in a state-court action Sanford had filed against West. Although the district court granted leave to amend the complaint to avoid any impediment to the settlement, it dismissed the federal claims with prejudice and the state-law claims without prejudice but without leave to amend.
Plaintiffs then filed an ex parte application for leave to file a motion for reconsideration. For the first time, they asserted that “the facts alleged demonstrate that the fraudulent telemarketing practices at issue support a claim of RICO [Racketeer *556 Influenced and Corrupt Organizations Act] violations.” Although the district court expressed doubt as to whether the facts supported a RICO claim, it granted the motion in part, allowing Plaintiffs to file a motion for leave to amend them complaint that “should demonstrate on its face why amendment would not be futile.”
Plaintiffs filed a proposed Third Amended Complaint, which not only included new RICO claims, but also added two new plaintiffs and realleged claims that had been dismissed with prejudice. MWI moved ex parte to dismiss or, in the alternative, to strike the realleged claims and new plaintiffs. The district court granted the motion to strike and held that it would assess only the new RICO clаims in the proposed Third Amended Complaint. As to those claims, the district court denied leave to amend, holding that amendment would be futile and that Sanford no longer had standing because she had settled all of her claims in the state-court action. The district court entered judgment in favor of MWI, and this appeal timely followed.
II
We consider first whether the district court properly dismissed Sanford from the action for lаck of standing. 3
“Mootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”
U.S. Parole Comm’n v. Geraghty,
In the state-court action against West, Sanford entered into a settlement agreement in which she agreed to rеlinquish “any claims arising out of or that could have arisen out of the allegations set forth” in her state-court case.
4
Because her claims against MWI in this action arise out of the same allegations in her state-court case against West,
see West Corp. v. Sup. Ct.,
Sanford nevertheless contends that she retains a personal stake in this action in the form of shifting litigation costs and fees to putative class members. We disagree. Included within the scope of the claims expressly released by the settlement agreement are “all claims, ... whether class, individual, or otherwise, including any claim for costs, expenses, pre or post judgment interest, penalties, fees (including attorneys’ fees, expert fees and consulting fees) ... for any kind of relief whatsoever (including injunctive relief, monetary relief, damages, punitive damages, restitution, reimbursеment, disgorgement, and economic injury).” Based on this broad language, we conclude that Sanford has bargained away not only her individual claims against MWI, but also any claim for fees or costs in this action. Sanford “ha[s] retained no interest in shifting the costs of litigation, and thus, [her] case is plainly moot.”
Pettrey v. Enter. Title Agency, Inc.,
There is no cоntention that the claims of the other named plaintiffs, the Smiths, have been satisfied. Therefore, we conclude that the Smiths may continue in this suit, and we proceed to the merits of the Smiths’ claims only.
Ill
We next consider whether the district court erred in denying the Smiths’ motion for leave to amend the complaint to add claims alleging violations of RICO, 18 U.S.C. § 1962(c) and (d). Where, as here, the district court denies leave to amend on futility grоunds, we will uphold such denial if “it is clear, upon
de novo
review, that the complaint would not be saved by any amendment.”
Leadsinger, Inc. v. BMC Music Publ’g,
A
Under RICO, it is “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of rackеteering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). “To state a claim under § 1962(c), a plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”
Odom v. Microsoft Corp.,
In the proposed Third Amended Complaint, the Smiths alleged the predicate acts of wire and mail fraud, including the reading of deceptive sales scripts over the telephone and the mailing of deceptive membership kits. Wire or mail fraud consists of the following elements: (1) formation of a scheme or artifice to defraud; (2) use of the United States mails or wires, or causing such a use, in furtherance of the scheme; and (3) specific intent to deceive or defraud.
Schreiber Distrib. Co. v. Serv-Well Furniture Co.,
' “Rule 9(b) demands that the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.”
Kearns v. Ford Motor Co.,
The Smiths failed to allege which of them made any of the telephone calls to purchase the variоus bait products and, thus, who was a party to the alleged misrepresentations. At oral argument, their counsel conceded that the Smiths had no recollection of who made the calls. While we have occasionally relaxed the particularity requirement where “plaintiffs cannot be expected to have personal knowledge of the relevant facts,”
Neubronner v. Milken,
As to mail fraud, the proposed Third Amended Complaint generally alleges that MWI mailed membership kits to consumers after they called to purchase the bait products, and that such kits were designed to look like junk mail so that consumers would unwittingly throw them away without canceling their memberships. However, because the Smiths failed to allege any specific mailings, they once again failed to satisfy Rule 9(b)’s particularity requirеment.
See Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist.,
The Smiths cannot make any additional factual allegations to supplement their deficient RICO claims without conducting discovery. Although in some cases, discovery may be appropriate where evidence of fraud is exclusively in the defendant’s possession,
see United States ex rel. Lee v. SmithKline Beecham, Inc.,
B
Section 1962(d) of RICO provides that “[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” 18 U.S.C. § 1962(d). “Plаintiffs cannot claim that a conspiracy to violate RICO existed if they do not adequately plead a substantive violation of RICO.”
Howard v. Am. Online Inc.,
IV
We next consider whеther the district court erred in dismissing the claims under the Unordered Merchandise Statute on the ground that the membership kits were not “merchandise.”
6
The statute prohibits “the mailing of unordered merchandise,” which is defined as “merchandise mailed without the prior expressed request or consent of the recipient.” 39 U.S.C. § 3009(a), (d). But it does not define “merchandise.” When interpreting a statute, we must give its terms “their ordinary and plain meaning,” and mаy follow the common practice of consulting dictionaries to determine how the terms were defined at the time the statute was adopted.
Johnson v. Aljian,
But MWI did not sell membership kits; it sold memberships. The membership kits were merely incidental to the sale of the memberships, providing prospective *560 members with instructions on how to use their free trial memberships (ie., by “contacting] defendant MWI either by telephone or via the Internet, and obtaining] certificates through MWI”). The membership kits were therefore informational materials, not valuable objects of trade. The Smiths conceded as much when they alleged in the proposed Third Amended Complaint that the membership kits “are mailed out bulk rate indicating the lack of value of the material.” (emphasis added).
Nor are the memberships themselves merchandise. While they provided members with an opportunity to buy merchandise at a discount, such intangible opportunities are not in themselves merchandise.
See Weinberg v. City of Chicago,
Because nothing MWI allеgedly mailed to the Smiths fits within the definition of “merchandise,” we conclude that the district court properly dismissed their claims under the Unordered Merchandise Statute.
V
The Smiths next argue that the district court erred in dismissing the EFTA claims.
The EFTA creates a “framework[of| rights, liabilities, and responsibilities of participants in electronic fund transfer systems.” 15 U.S.C. § 1693(b). The Act applies to electronic fund transfers from a “consumer account,” which is defined as a “demand deposit, savings deposit, or other asset account.”
Id.
§ 1693a(2). Consequently, it does not apply to credit-based transactions.
Cf. Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C.,
When a named plaintiff has no cognizable claim for relief, “she cannot represent others who may have such a claim, and her bid to serve as a class representative must fail.”
Lierboe v. State Farm Mut. Auto. Ins. Co.,
The Smiths contend that even if they cannot represent an EFTA class, the district court should havе permitted a debit purchaser to intervene to represent the class.
7
However, where, as here, the origi
*561
nal named plaintiffs fail to state a cognizable claim from the outset, intervention is not required.
See Lierboe,
VI
Finally, the Smiths argue that the district court erred in declining to exercise supplemental jurisdiction over their state-law claims. A district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.”
Carnegie-Mellon Univ. v. Cohill,
VII
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Notes
. MWI has since changed its name to Vertrue, Inc.
. Sanford also named West as a defendant, but the district court dismissed all of her claims against West, and we affirmed the dismissal in a prior appeal.
See Sanford v. MemberWorks, Inc.,
. Sanford contends that we need not consider whether she continues tо have standing because the Smiths have standing, and "[i]n a class action, standing is satisfied if at least one named plaintiff meets the requirements” of Article III.
Lowden v. T-Mobile USA, Inc.,
. The оnly claims expressly excluded from the release are claims “against any non-West entity (specifically including MWI) relating to enrollment in one or more upsells that are outside of" the joint marketing agreements at issue in Sanford’s state-court action. Notably, the settlement agreement does not purport to release claims against MWI arising out of the same joint marketing agreements, and indeed required Sanford to seek dismissal in this action of "any allegations and claims against any party, including MWI, relating to or seeking recovery for” such claims.
. Because we conclude that the failure to plead who placed the telephone calls was insufficient under Rule 9(b), we need not decide whether the failure to allege the identity of the telemarketing entity that took the calls or the bait products purchased in each transaction was also insufficient.
.
MWI argues that we should affirm the district court on the alternative ground that there is no private right of action under the Unordered Merchandise Statute. Although we recognized such a private right of action in
Kipperman v. Academy Life Insurance Co.,
We decline the invitation. "The question whether a [private] cause of action exists is not a question of jurisdiction, and therefore may be assumed without being decided.”
Buries v. Lasker,
. Although no motion to intervene was ever filed, the district court noted that it "would not grant a motion to intervene at this point even if the proceedings were stayed to allow such a motion to be filed.”
. Indeed, these state-law claims have already been re-filed by the Smiths and numerous putative class members in various states, making any exercise of supplemental jurisdiction at this point a waste of judicial resources.
See In re Vertrue Mktg. & Sales Practices Litig.,