Andrew Carufel, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0476

Andrew Carufel, et al.,
Appellants,

vs.

Minnesota Department of Public Safety, et al.,
Respondents,

Seven, Inc., d/b/a Smart Start, et al.,
Defendants,

Intoxalock,
Respondent.

Filed December 17, 2018
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Ramsey County District Court
File No. 62-CV-17-1030

Timothy J. Becker, Jennell K. Shannon, Johnson Becker, PLLC, St. Paul, Minnesota; and

Daniel J. Koewler, Ramsay Law Firm PLLC, Roseville, Minnesota (for appellants)

Lori Swanson, Attorney General, Jason Marisam, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Public Safety, et al.)

K. Jon Breyer, Kutak Rock LLP, Minneapolis, Minnesota; and

Stephen H. Locher, Belin McCormick, P.C., Des Moines, Iowa (for respondent Intoxalock)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Jesson,
Judge.
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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellants Andrew Carufel, Steven Demko, and Kristen Murray, on behalf of
themselves and all other similarly situated individuals (collectively, appellants), challenge
the district court’s dismissal of their claims under Minn. R. Civ. P. 12.02(e) against
respondents Minnesota Department of Public Safety (DPS), Driver and Vehicle Services
(DVS), the DPS commissioner, the DVS director (collectively, state respondents), and
ignition interlock device manufacturer, Consumer Safety Technology (Intoxalock). 1
Appellants have limited drivers’ licenses under the Minnesota Ignition Interlock
Program (the program), which requires participants to install an ignition interlock device
(device) on their motor vehicle. Appellants commenced a putative class action against the
state respondents and Intoxalock on two theories. Appellants’ primary theory is that the
device collects and stores location data that is made available to the state respondents via
a website maintained by Intoxalock. But appellants also assert a separate theory based on
the participation agreement that requires them to provide the state respondents with private
and confidential data, such as date of birth.
In a second amended complaint (second amended complaint or complaint),
appellants allege several causes of action, including violations of the Minnesota
Government Data Practices Act (MGDPA or Act) against the state respondents and

1 Appellants also commenced suit against additional defendants, Seven, Inc. d/b/a Smart
Start, Alcolock MN, Inc. d/b/a Alcolock, and #1A LifeSafer of Minnesota, Inc. d/b/a
LifeSafer, all manufacturers of ignition interlock devices. Appellants’ claims against all
other defendants were resolved before the district court issued the decision on appeal.
3
Intoxalock, based on its performance of a government function; and, against Intoxalock
alone, appellants alleged fraudulent nondisclosure under the Minnesota Consumer Fraud
Act, breach of contract, and unjust enrichment. Appellants seek injunctive relief, damages,
and attorney fees.
We address each of the causes of action asserted in the complaint. First, we examine
the MGDPA claims against the state respondents and determine that the complaint fails to
state a violation of the Act because it does not allege that the location data is collected,
stored, or received by the state respondents. In other words, the complaint does not allege
that the location data is “government data,” as that term in defined under the MGDPA, and
the state’s duties under the Act are not triggered as to the location data. Regarding the
private and confidential data collected in the participation agreement, however, we
conclude that the complaint sufficiently alleges a violation of the Act’s requirement to
provide a Tennessen warning.
Second, we consider the MGDPA claim against Intoxalock for collecting location
data and conclude that the complaint does not sufficiently allege that Intoxalock entered
into a valid contract with the state respondents, as required to assert liability under the Act.
See Minn. Stat. § 13.05, subd. 11 (2018) (privatization of a government function).
Third, we consider appellants’ other causes of action against Intoxalock and find
them lacking for several distinct reasons: (a) the complaint fails to sufficiently allege a
special relationship giving rise to a duty to disclose under the Minnesota Consumer Fraud
Act (MCFA), Minn. Stat. § 325F.69, subds. 1, 4 (2018); (b) the complaint fails to
sufficiently allege a breach of the express terms of the contract between appella nts and
4
Intoxalock; and (c) the complaint fails to allege a claim for unjust enrichment because it
asserts that appellants’ relationship with Intoxalock is governed by a contract. Accordingly,
we affirm in part and reverse in part the decision of the district court and remand appellants’
Tennessen-warning claim for further proceedings in accordance with this opinion.
FACTS
According to the complaint, the program allows drivers “who have received
alcohol-related driving offenses—offenses which would normally result in the cancellation
or revocation of a driver’s license —to maintain possession and operation of their vehicle
and license.” Program participants must enter into an “Ignition In terlock Participation
Agreement” (agreement), which requires them to provide their name, address, telephone
number, date of birth, and driver’s license number. Upon executing the agreement with the
DPS, participants retain a limited license and separately contract with an ignition interlock
device manufacturer to lease and install a device that is attached “to a vehicle’s ignition
system” and will measure the alcohol concentration of a breath sample. A participant must
blow into the device before starting the car. If the device detects the presence of alcohol
above a specified level, the car will not start and the device records the failure.
Minnesota law directs the commissioner of public safety to “establish guidelines for
participation in the ignition interlock program.” Minn. S tat. § 171.306, subd. 3(a) (2018).
The commissioner also must establish “performance standards and a process for certifying
devices used in the [program].” Id., subd. 2(a). Before a manufacturer may lease devices
to program participants, the device must be certified by DPS, and a device manufacturer
5
must renew this certification annually. Id. Each year, DPS, through DVS, publishes
performance standards and “certification process” guidelines (DVS guidelines).
The DVS guidelines require that the device “collect and store personal information
on participants.” The guidelines state that “[t]he manufacturer is responsible for recording
information regarding the program participants’ usage of the device. . . . Records must be
electronically maintained on every participant including results of every monitoring
check.” The guidelines also require device manufacturers to make the information
available on a “website platform (‘Web Portal’) which allows DPS, DVS, and the
[manufacturers] to access participants’ information for the purposes of monitoring
compliance with the [program].”
Beginning in 2016, the DVS guidelines required that the devices be equipped with
“real-time reporting capabilities.” The 2016 guidelines define “real-time” as the “instant
transmission of ignition interlock data, including photos, to the manufacturer’s website for
viewing by DVS without delay as cellular reception permits.” Essentially, r eal-time
reporting capabilities facilitate swift notice to the DPS/DVS if a device records a failure or
a participant fails to comply with the ignition protocol.
The complaint alleges that, after the DVS guidelines added the real-time reporting
capabilities, the state respondents could “ collect and monitor participants’ real-time
locations through GPS tracking.” Also according to the complaint, Intoxalock began
collecting participants’ real-time data, including their location data, “as early as 2002.”
Appellants filed their second amended complaint in September 2017 and asserted
two counts against the state respondents related to the MGDPA. In count I, appellants claim
6
that the state respondents violated the MGDPA by requiring real-time location information
to be “recorded and stored” by the devices, and “then requiring ‘any and all’ data collected
by [the devices] be transmitted or released to the [ s]tate for the [s]tate’s review for use in
evaluating [p]rogram compliance.” In count II, appellants assert that the state respondents
failed to provide a “Tennessen warning” when it collected private and confidential data
from program participants, as required by Minn. Stat. § 13.04, subd. 2 (2018).
Appellants assert four counts against Intoxalock. In count III, appellants assert that
Intoxalock violated the MGDPA because it collected appellants’ real-time location
information and made this data available to the state. In count IV, appellants assert that
Intoxalock also failed to provide a “Tennessen warning” when it collected private and
confidential data from appellants. In count V, appellants claim that Intoxalock failed to
disclose to appellants that it had collected location data in violation of the Minnesota
Consumer Fraud Act (MCFA), Minn. Stat. § 325F.69, subds. 1, 4. In count VI, appellants
allege that Intoxalock breached its contract with them by failing to inform them that it
“actually collected and actually intended to collect” their real-time location data. Finally,
in count VII, appellants assert that they “paid extra for having illegal and improper
real-time GPS location data collected” by the device, therefore, Intoxalock was unjustly
enriched.
The state respondents and Intoxalock filed motions to dismiss. The district court
granted the motions, dismissing appellants’ entire complaint, and this appeal followed.
7
D E C I S I O N
The district court granted the state and Intoxalock’s motions to dismiss under Minn.
R. Civ. P. 12.02(e). We review de novo decisions on motions to dismiss for failure to state
a claim upon which relief can be granted; in doing so we consider only the facts alleged in
the complaint, accept those facts as true, and construe all reasonable inferences in the
non-moving party’s favor. In re Individual 35W Bridge Litigation, 806 N.W.2d 811, 815
(Minn. 2011).2
I. The MGDPA claims against the state

A. MGDPA claim related to location data
The MGDPA provides that the government’s collection of data on individuals must
be limited to only what is necessary to effectuate a government program. Minn. Stat.
§ 13.05, subd. 3 (2018). The complaint alleges that location data is “not necessary for the
administration and management of the Ignition Interlock Program,” therefore, the state
respondents violated the MGDPA when the device manufacturers collected and stored

2 When the state respondents and Intoxalock moved to dismiss appellants’ lawsuit, they
submitted exhibits not included in the second amended complaint. “If, on a motion
asserting t he defense that the pleading fails to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded by the court, the
motion shall be treate d as one for summary judgment.” Minn. R. Civ. P. 12.02. We
conclude, however, that the motions to dismiss were not converted to summary judgment
motions because the exhibits filed with the district court included the appellants’ contract
with Intoxalock and legislative history. When, as here, appellants did not attach the relevant
contract to the complaint, the court may nonetheless consider the contract in its entirety
without converting the motion to one for summary judgment. See In re Hennepin Cty. 1986
Recycling Bond Litig., 540 N.W.2d 494, 497 (Minn. 1995). Further, the district court can
consider legislative history and matters of public record, without converting the motion to
one for summary judgment. See, e.g ., Central Lakes Educ. Ass’n v. Indep. Sch. Dist. No.
743, 411 N.W.2d 875, 881 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).
8
location data on the Web Portal to which the state respondents had access. The district
court concluded that the location data on the manufacturers’ websites was not subject to
the MGDPA, because the state respondents did not “collect and store” the data. On appeal,
appellants argue that the district court’s interpretation of the MGDPA was too narrow and
the MGDPA applies to all data to which the state has “access.”
We review the district court’s interpretation of statutory language de novo. See
KSTP-TV v. Metro. Council, 884 N.W.2d 342, 345 (Minn. 2016). The goal of statutory
interpretation and construction “is to ascertain and effectuate the intention of the
legislature,” and each statute “shall be construed, if possible, to give effect to all its
provisions.” Minn. Stat. § 645.16 (2018). When the legislature’s intent is clearly
discernible from a statute’s plain and unambiguous language, an appellate court interprets
the language according to its plain meaning. State v. Kelbel, 648 N.W.2d 690, 701-02
(Minn. 2002). In the absence of statutory definitions, we interpret the words in a statute
“according to their common and approved usage.” Minn. Stat. 645.08(1) (2016); see also
Shire v. Rosemount, Inc., 875 N.W.2d 289, 297 (Minn. 2016) (“We have considered
dictionary definitions as a helpful tool in determining plain and ordinary meaning.”).
The MGDPA, Minn. Stat. §§ 13.01 -.90 (2018), “regulates the collection, creation,
storage, maintenance, dissemination, and access to government data in government
entities.” Minn. Stat. § 13.01, subd. 3. “Government data” is defined as “all data collected,
created, received, maintained or disseminated by any government entity regardless of its
physical form, storage media or conditions of use.” Minn. Stat. § 13.02, subd. 7. The
MGDPA imposes specific duties on government entities when they collect and store data
9
on individuals. One specific duty, as already mentioned, is found in section 13.05 of the
MGDPA, which provides that “[c]ollection and storage of all data on individuals and the
use and dissemination of private and confidential data on individuals shall be limited to
that necessary for the administration and management of programs specifically authorized
by the legislature.” Minn. Stat. § 13.05, subd. 3. In this case, the district court concluded
that the “presentation and storage of data by private manufacturers” on their websites is
not “collection and storage of data” by the government. Thus, the district court concluded
that the MGDPA did not apply to the location data on the device manufacturer’s website.
We agree with the district court. The complaint acknowledges that the device
“manufacturers collect and store the personal information of [program] participants” and
“[t]he manufacturer is the owner of the data.” Also, the 2016 DVS guidelines, which are
referenced in the complaint, provide that device manufacturers are “responsible for
recording information regarding the program participants’ usage of the device.” The
complaint does not allege that the state respondents collected or stored location data on
program participants. 3 Because the complaint alleges that the device manufacturers “are
collecting, creating, receiving, and maintaining the ignition interlock data,” the complaint
fails to state a claim under the MGDPA against the state respondents.
Appellants respond that, because the state had access to the location data stored on
the manufacturers’ websites, the data should be subject to the MGDPA. In support of their

3 While not mentioned in the complaint, the parties agree that, in 2017, the legislature
specifically provided that DVS guidelines may not require device manufacturers to collect
location data. See Minn. Stat. § 171.306, subd. 2(a) (Supp. 2017).
10
argument, appellants point to Minn. Stat. § 13.01, subd. 3, which states that the MGDPA
“regulates the collection, creation, storage, maintenance, dissemination, and access to
government data in government entities.” Minn. Stat. § 13.01, subd. 3 (emphasis added).
The complaint asserts that the state respondents have the ability to access location data
through the device manufacturer’s Web Portal. Importantly, the complaint does not allege
that the state respondents have actually accessed any location data through the Web Portal.
Appellants’ claim fails because the MGDPA regulates the public’s access to
government data, and does not regulate the government’s ability to access data.
Government data is limited to “all data collected, created, received, maintained or
disseminated by any government entity.” Minn. Stat. § 13.02, subd. 7. Based on the
commonly understood meaning of these terms, government data does not include data to
which the government has access.4 Our view of the MGDPA is confirmed by examining
the duties imposed by the Act, which are not triggered unless the state collects and stores
the data, see Minn. Stat. § 13.05, subd. 3, or receives the data, see Minn. Stat. § 13.02,
subd. 7.

4 The MGDPA does not provide definitions for “collected, created, received, maintained,
or disseminated,” so we consider the common meaning of these terms. “Collect” is defined
as, “[t]o gather together; to bring scattered things (assets, accounts, articles of property)
into one mass or fund; to assemble.” Black’s Law Dictionary 238 (5th ed. 1979). “Create”
is defined as “bring[ing] (something) into existence . . . caus[ing] (something) to happen
as a result of one’s actions.” Oxford Dictionary of English 408 (3d ed. 2010). “Receive” is
defined as “tak[ing] (something offered, given, sent, etc.); to come into possession of or
get from some outside source.” Black’s Law Dictionary 1460 (10th ed. 2014). “Maintain”
is defined as “[t]o continue (something) . . . [t]o continue in possession of (property,
etc.) . . . [t]o care for (property).” Black’s La w Dictionary 1097 (10th ed. 2014). Finally,
“disseminate” is defined as “spread[ing] (something, especially information) widely.”
Oxford Dictionary, supra, at 507.
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We conclude the state respondents’ ability to access location data is not sufficient
to trigger the MGDPA for two additional reasons. First, appellants have not offered any
authority for us to expand the scope of the MGDPA to include data that the government
may access. See Frederick Farms, Inc. v. County of Olmsted, 801 N.W.2d 167, 172 (Minn.
2011) (refusing to interpret a statute in such a way that would in effect add words to the
statute). Second, our view that the ability to access data is not the same as collecting,
storing, or receiving data is consistent with previous caselaw construing government data.
We have held that government data must be recorded in some physical form other than the
human brain and does not include verbal statements by government employees unless those
statements disclose recorded government data. See Deli v. Hasselmo , 542 N.W.2d 649,
653-54 (Minn. App. 1996), review denied (Minn. Apr. 16, 1996); see also Keezer v.
Spickard, 493 N.W.2d 614, 617 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).
Because the location data maintained on Intoxalock’s website has not been recorded by the
government in some physical form, or received by the state respondents, it is not covered
by the MGDPA.5
Simply put, the complaint fails to allege that the location data is government data.
The district court correctly concluded that the complaint failed to state a claim under the

5 Additionally, we observe that appellants’ interpretation of the MGDPA would
dramatically broaden the scope of the Act, given the state’s ability to access data from a
wide variety of regulated services and industries. For example, the state may have the
ability to access health records in a licensing investigation. Under appellants’ view of the
Act, mere ability to access the health records would mean that the health records are
government data, even though the state did not actually access or receive the health records.
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MGDPA because it does not allege that location data was collected, stored, or received by
the state respondents. Thus, we affirm dismissal of count I of the complaint.
B. Tennessen-warning claim for private or confidential data
The MGDPA provides:
An individual asked to supply private or confidential data
concerning the individual shall be informed of: (a) the purpose
and intended use of the requested data within the collecting
government entity; (b) whether the individual may refuse or is
legally required to supply the requested data; (c) any known
consequence arising from supplying or refusing to supply
private or confidential data; and (d) the identity of other
persons or entities authorized by state or federal law to receive
the data.

Minn. Stat. § 13.04, subd. 2. A notice given in compliance with this subdivision is
commonly called a Tennessen warning. See generally Kobluk v. Univ. of Minnesota, 613
N.W.2d 425, 426 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000) (considering
use of data collected without Tennessen warning).
The district court, after determining that the MGDPA did not apply to the location
data stored on the manufacturers’ websites, dismissed appellants’ claim against the state
respondents for failing to provide a Tennessen warning. We agree with the district court
that the complaint fails to state a Tennessen claim regarding the location data on the device
manufacturer’s websites because it is not government data.
But the complaint’s Tennessen-warning claim was not limited to the location data
on the manufacturers’ websites. According to the complaint, and reiterated in appellants’
written arguments to the district court and to this court on appeal, the state respondents
required appellants to complete an a greement with DPS in order to participate in the
13
program. Also according to the complaint, the agreement requested appellants’ names,
addresses, telephone numbers, dates of birth, and driver’s license numbers. The complaint
also asserts that, before 2014, the participation agreement did not include any Tennessen
warning whatsoever, and during and after 2014, the agreement did not satisfy the warning
requirements in section 13.04, subdivision 2.
The state respondents do not deny that they collected private or confidential data in
the participation agreement, but instead rely on Edina Educ. Ass’n v. Bd. of Educ. of Indep.
Sch. Dist. No. 273, to argue that they were not required to give a Tennessen warning. 562
N.W.2d 306, 311 (Minn. App. 1997), review denied (Minn. June 11, 1997). But Edina
Education is not applicable here. That case involved a school psychologist’s claim that a
school board had violated the MGDPA in requesting and obtaining information about her
interactions with a student and parent. Id. at 311. We reversed the district court’s decision
that the Act applied, reasoning that the school board did not ask the school psychologist to
provide private or confidential data about herself, therefore, a Tennessen warning was not
required. Id. at 311- 12. Instead, we described the school board’s investigation as
“attempting to gather factual information about an incident within the course and scope of
[the psychologist’s] employment.” Id. at 311.
In contrast, according to the complaint, the state respondents requested private or
confidential information from appellants in the agreement that they were required to
execute before participating in the program. Additionally, appellants have alleged facts to
support their claim that the state respondents either did not provide a Tennessen warning,
or that the warnings they received were not sufficient. Thus, without deciding the merits of
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the claim, we conclude that appellants’ Tennessen-warning claim against the state
respondents is sufficient to withstand a motion to dismiss under Minn. R. Civ. P. 12.02(e).
While the district court correctly determined that the complaint fails to state a
Tennessen-warning claim for location data, the district court incorrectly dismissed the
Tennessen-warning claim for private or confidential information in the participation
agreement required by the state respondents. Thus, we reverse and remand the dismissal of
count II of the complaint.
II. MGDPA claims against Intoxalock.

Appellants allege in their complaint that Intoxalock “is liable as a government entity
for violations of the MGDPA under Minn. Stat. § 13.05, subd. 11(a) because [Intoxalock]
entered into a contract with [the state]” to perform its duties under the “[c]ertification
[p]rograms and the Ignition Interlock Program.” In other words, appellants contend that
their MGDPA claims against Intoxalock are valid because they have properly alleged that
government functions were privatized under the program.
A. Absence of a contractual relationship between the state and Intoxalock
Under Minn. Stat. § 13.05, subd. 11, the MGDPA allows a political subdivision,
responsible authority, statewide system, or state agency to “contract with a private person
to perform any of its functions.” When such a contract exists, the government entity must
ensure that: “all of the data created, collected, received, stored, used, maintained, or
disseminated by the private person in performing those functions is subject to the
requirements of this chapter and the private person must comply with those requirements
as if it were a government entity.” Minn. Stat. § 13.05, subd. 11(a). In other words, a private
15
person is subject to the MGDPA only if it enters into a contract with a government entity
to perform a government function. See WDSI, Inc. v. County of Steele, 672 N.W.2d 617,
621 (Minn. App. 2003).
In granting Intoxalock’s motion to dismiss, the district court determined that the
complaint alleged an “implied contract” existed because the state offered the manufacturers
“the opportunity to participate in the program” and the manufacturers “accepted when they
agreed to be bound by the certification process.” The district court, however, found that the
certification process was not an express or implied contract; the guidelines were
“performance standards” and state “agencies hold private companies to . . . similar
certification processes in a variety of industries,” but this does not “mean that the [s]tate
has a contractual relationship with all of them.” Because it found that there was no contract
between the state and Intoxalock, the district court determined that the MGDPA did not
apply and dismissed the claim.
On appeal, appellants first argue that the district court erred in dismissing their
MGDPA claim against Intoxalock because, “[i]rrespective of whether or not [they] will
ultimately prove a contractual relationship existed, . . . at this stage the [complaint]
sufficiently pled Intoxalock contracted with the government.” Appellants contend that the
complaint makes “no less than three do zen” references to a contract, which satisfies
Minnesota’s notice pleading rules, and they should be allowed to proceed because the
existence of a contract is generally a question of fact to be determined by the factfinder.
Appellants are correct that the complaint does make several references to “express
or implied contracts” between the state and Intoxalock. Appellants are also correct that
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Minnesota does not require specificity in pleading, and it is enough to set forth “a sufficient
basis of facts to notify the opposing party of the claims raised against it.” Meyer v. Best W.
Seville Plaza Hotel, 562 N.W .2d 690, 692 (Minn. App. 1997), review denied (Minn.
June 26, 1997). But “whether a particular entity is . . . subject to the MGDPA is a question
of law.” Minnesota Joint Underwriting Ass’n v. Star Tribune Media Co., 862 N.W.2d 62,
65 (Minn. 2015). Additionally, when a complaint refers to a document as a contract, the
court may consider the document to determine whether, as a matter of law, the document
supports the allegation of a contractual relationship. See In re Hennepin Cty., 540 N.W.2d
at 497. The district court determined that, after considering the DVS guidelines, which the
complaint alleges is the basis for an implied contract, Intoxalock was not subject to the
MGDPA, as a matter of law. Thus, the district court appropriately dismissed the claim once
it determined that appellants had failed to sufficiently state a privatization claim under
Minn. Stat. § 13.05, subd. 11(a).
Second, appellants argue that the complaint sufficiently alleges that the “Affidavit
of Certification,” the document that certified Intoxalock to participate in the program, was
an express contract between the parties. Appellants also assert that, even if the Affidavit of
Certification is not an express contract, it supports the inference of an implied contract
because the state “offered the Device Manufacturers the opportunity to participate in [the
program]” and the manufacturers accepted when they agreed “to be bound by the [ s]tate
certification process.” Intoxalock and the state respond that the complaint does not allege
an express contract because the Affidavit of Certification and DVS guidelines included no
“bargained-for promises, manifestation of mutual consent, or consideration.” And,
17
Intoxalock and the state contend that there could not have been an implied contract because
“a contract with a state agency must be in writing” to be valid. See Minn. Stat. § 16C.02,
subd. 6 (2018); Minn. Stat. § 16C.05, subd. 2 (2018).
A complaint must allege offer, acceptance, and consideration to sufficiently plead
the existence of either an express or implied contract. See Commercial Assocs., Inc. v. Work
Connection, Inc., 712 N.W .2d 772, 782 (Minn. App. 2006). We begin by considering
whether appellants’ complaint alleges that any consideration was exchanged.
“Consideration may consist of either a benefit accruing to a party or a detriment suffered
by another party.” Kielley v. Kielley, 674 N.W.2d 770, 777 (Minn. App. 2004) (quoting
C & D Invs. v. Beaudoin, 364 N.W.2d 850, 853 (Minn. App. 1985), review denied (Minn.
June 14, 1985)). Consideration must be the result of a bargain, and is “es sential evidence
of the parties’ intent to create a legal obligation.” Baehr v. Penn- O-Tex Oil Corp., 104
N.W.2d 661, 665 (Minn. 1960).
Here, no consideration is alleged to support either an express or implied contract.
The DVS guidelines provide that if a manufacturer’s device meets performance standards,
the state may issue a certificate. But the guidelines do not legall y obligate the
manufacturers to participate in the program. There is also no bargain; the manufacturers
either choose to comply with the standards or choose not to participate in the program.
Finally, Minn. Stat. § 171.306, subds. 2, 3, mandates that the commissioner establish
performance standards and a process for certifying devices for the program. In other words,
the state is already legally obligated to implement the program and certify device
manufacturers. A promise to do something that “one is already legally obligated to do
18
provides no benefit” and does not constitute consideration. Med. Staff of Avera Marshall
Reg’l Med. Ctr. v. Avera Marshall, 857 N.W.2d 695, 701-02 (Minn. 2014).
Appellants suggest that the state enters into a contract every time that it issues a
certificate pursuant to state law. As the district court aptly stated, “State agencies hold
private companies to performance standards through similar certification process in a
variety of industries; this doesn’t mean that the state has a contractual relationship with all
of them.” While the legislature expressly contemplated that the MGDPA will apply when
the government has contracted to privatize a government function, there is nothing in
section 13.05, subdivision 11, which suggests that every private party that holds a state
certificate is subject to the MGDPA. In fact, were we to hold otherwise, we would greatly
expand the reach of the Act.
Because the complaint did not allege any facts establishing that consideration was
exchanged when the state certified Intoxalock’s device, we conclude that Intoxalock did
not enter into a contract with the state respondents; therefore, Intoxalock is not subject to
the MGDPA. We decline to address whether Intoxalock performed a government function.
Thus, the district court correctly dismissed the MGDPA claim against Intoxalock.
B. Tennessen-warning claim
The complaint alleges that Intoxalock failed to provide a Tennessen warning before
collecting private or confidential data. After determining that the MGDPA did not apply to
Intoxalock, the district court dismissed appellants’ Tennessen-warning claim against
Intoxalock. We agree. As discussed above, any private or confidential information that
19
Intoxalock requested and received from program participants was not subject to the
MGDPA, and appellants were not entitled to a Tennessen warning from Intoxalock.
C. Standing
In its brief to this court, Intoxalock argues that appellants lack standing because they
have not alleged that the state or Intoxalock disclosed their location data, and thus, they
have suffered no harm. The district court did not consider or decide whether appellants
have standing.
“Standing is a prerequisite to a court’s exercise of jurisdiction.” Petition for
Improvement of County Ditch No. 86 v. Phillips, 625 N.W.2d 813, 817 (Minn. 2001). A
plaintiff has standing because either (1) she “has suffered some ‘injury-in-fact’” or (2) she
is “the beneficiary of some legislative enactment granting standing.” Id. While many
claims brought under the MGDPA involve the disclosure of government data and the
statute provides injunctive relief for improper disclosure, the statute also provides an action
for damages against “a responsible authority or government entity which violates any
provision of this chapter.” Minn. Stat. § 13.08, subd. 1 (emphasis added). And the statute
prohibits the “use and dissemination of private data” beyond what is “necessary for the
administration” of government programs. Minn. Stat. § 13.05, subd. 3. Accordingly, a party
has standing to bring a claim under the MGDPA if they can plead damages and a violation
of any of the chapter’s provisions, even if they do not plead improper disclosure of their
data. We conclude that appellants have standing under the MGDPA.
In sum, although appellants have standing to bring their MGDPA claims against
Intoxalock, the district court correctly concluded that there was no contract between the
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state and Intoxalock. Thus, we affirm the district court’s dismissal of the MGDPA and
Tennessen-warning claims against Intoxalock as stated in counts III and IV of the
complaint.
III. Other statutory and common law claims against Intoxalock.

A. Minnesota Consumer Fraud Act
In count V, the complaint asserts that Intoxalock violated the Minnesota Consumer
Fraud Act (MCFA) because it failed to disclose that the device collected appellants’
location information. The complaint further alleges that Intoxalock’s failure to disclose that
“it intended to collect, store and use” appellants’ location data was “false, deceptive or
misleading” and Intoxalock caused appellants to enroll in the program under “false
pretenses.” In its motion to dismiss, Intoxalock argued that the MCFA does not permit
claims for failure to disclose in the absence of a special relationship, which has not been
alleged. The district court agreed with Intoxalock. Appellants argue on appeal that their
complaint sufficiently alleges special circumstances under the MCFA.
Under the MCFA:
The act, use, or employment by any person of any fraud, false
pretense, false promise, misrepresentation, misleading
statement or deceptive practice, with the intent that others rely
thereon in connection with the sale of any merchandise,
whether or not any person has in fact been misled, deceived, or
damaged thereby, is enjoinable as provided in section 325F.70.

Minn. Stat. § 325F.69, subd. 1. To adequately assert a claim under the MCFA, a plaintiff
“must plead and prove not only an omission of material fact, but also special circumstances
that trigger a duty to disclose. It is not enough that the plaintiff simply alleges that the
21
defendant om itted material information in a transaction.” Graphic Commc’ns Local 1B
Health & Welfare Fund A v. CVS Caremark Corp., 850 N.W.2d 682, 696 (Minn. 2014). In
other words, if a plaintiff fails to plead special circumstances creating a duty to disclose,
the MCFA claim must be dismissed. Id. Minnesota case law has recognized the following
circumstances are sufficiently special to give rise to a duty to disclose in omission-based
consumer fraud claims:
(a) One who speaks must say enough to prevent his words from
misleading the other party.
(b) One who has special knowledge of material facts to which
the other party does not have access may have a duty to
disclose these facts to the other party.
(c) One who stands in a confidential or fiduciary relation to the
other party to a transaction must disclose material facts.

Klein v. First Edina Nat’l Bank, 196 N.W.2d 619, 622 (Minn. 1972) (citations omitted).
Appellants argue that Intoxalock had special knowledge of material facts “which it
does not disclose to consumers . . . namely , the fact it collects real-time GPS data.” In
Graphic Communications, the supreme court held that special knowledge of material facts
must be accompanied by “actual knowledge of fraudulent conduct” to trigger a duty to
disclose under the MCFA. 850 N.W.2d at 697-98. Here, the complaint does not
demonstrate or allege that Intoxalock had actual knowledge of any fraudulent activity .
Rather, the complaint only alleges that Int oxalock, “as a national supplier of [devices]
knew, or should have known, that collection of GPS data amounted to a violation of the
Minnesota Constitution.” Because the complaint does not allege that Intoxalock had actual
knowledge of fraudulent activity , we affirm the district court’s dismissal of appellants’
MCFA claim against Intoxalock as stated in count V.
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B. Breach of contract
In count VI, the complaint asserts that Intoxalock breached its contract with
appellants by failing to inform them that it “actually collected and actually intended to
collect” their real-time location data. The district court concluded that appellants failed to
“point to a specific provision that was broken in the lease agreement” between Intoxalock
and appellants, and dismissed the claim.
“In order to state a claim for breach of contract, the plaintiff must show
(1) formation of a contract, (2) performance by plaintiff of any conditions precedent to his
right to demand performance by the defendant, and (3) breach of the contract by
defendant.” Park Nicollet Clinic v. Hamann, 808 N.W.2d 828, 833 (Minn. 2011). Under
Minn. R. Civ. P. 12.02(e), it is appropriate for the district court to dismiss a breach-of -
contract claim if the complaint does not provide any basis for concluding that a breach
occurred. See, e.g., Reed v. Univ. of N.D., 543 N.W.2d 106, 110 (Minn. App. 1996)
(concluding appellants’ failure to identify “a breach of a specific contractual provision,” in
part, supported the district court’s conclusion that the contract claim f ailed as a matter of
law), review denied (Minn. Mar. 28, 1996).
Here, the complaint alleges that appellants entered into a contract with Intoxalock
when they leased a device to participate in the program. Intoxalock produced a copy of the
written agreement between the appellants and Intoxalock. But the complaint does not claim
that Intoxalock breached a term in the written agreement. Instead, the appellants claim
Intoxalock failed to disclose that its device would collect location data. Because the
complaint does not allege that the written agreement between appellants and Intoxalock
23
was breached, we affirm the district court’s dismissal of appellants’ breach of contract
claim as stated in count VI.
C. Unjust enrichment
In count VII, the complaint asserts an unjust-enrichment claim against Intoxalock,
alleging that appellants had “paid extra for having illegal and improper real-time GPS
location data collected” and by collecting this data, “while failing to disclose its collection
to [appellants,]” Intoxalock was “unjustly enriched.” In its motion to dismiss, Intoxalock
argued that the parties had a valid contract and there was nothing “illegal or inequitable . . .
about Intoxalock charging [ appellant] the precise amount [she] a greed to pay for her
[device.]” The district court found that appellants failed to state a claim for unjust
enrichment because appellants alleged they entered into a valid contract with Intoxalock.
An unjust-enrichment claim “cannot be granted where the rights of the parties are
governed by a valid contract.” U.S. Fire Ins. Co. v. Minnesota State Zoological Bd., 307
N.W.2d 490, 497 (Minn. 1981). Here, there is no dispute that the relationship between
appellants and Intoxalock was governed by a valid contract. Southtown Plumbing, Inc. v.
Har-Ned Lumber Co., 493 N.W.2d 137, 140 (Minn. App. 1992) (“It is well settled in
Minnesota that one may not seek a remedy in equity when there is an adequate remedy at
law. . . . Relief under the theory of unjust enrichment is not available where there is an
adequate legal remedy or where statutory standards for recovery are set by the
legislature.”). Accordingly, we affirm the district court’s dismissal of appellants’
unjust-enrichment claim as stated in count VII.
Affirmed in part, reversed in part, and remanded.