SUMMARY ORDER

Lavell S. Pratt, as Personal Representative of the Estate of Sherry Pratt, appeals the district court's judgment dismissing his cross claim and counter claim alleging that MetLife Investors USA Insurance Company and Daniel Zeidman, as Trustee of the Esther Zeidman Trust, violated Illinois statutory and common law, including the Illinois Right of Publicity Act ("IRPA"). We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review de novo a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in favor of the pleader. See ECA & Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009). "To survive a motion to dismiss, a complaint must plead enough facts to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). "[A]lthough `a court must accept as true all of the allegations contained in a complaint,' that `tenet' `is inapplicable to legal conclusions,' and `[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (second alteration in original) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)).

[1] Appellant first argues that appellees' use of Sherry Pratt's identity as the measuring life under a since-rescinded annuity contract without her consent violated Ms. Pratt's right of publicity under the IRPA. The IRPA for commercial purposes during the individual's lifetime without having obtained previous written consent...." 765 Ill. Comp. Stat. 1075/30(a). The statute defines "commercial purpose" to mean "the public use or holding out offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising." Id. 1075/5. The statute does not Third New International Dictionary, which defines "public" to mean "accessible to or shared by all members of the community," of "exposed to general view." Metlife Investors USA Ins. Co. v. Zeidman, 734 F.Supp.2d 304, 311 (E.D.N.Y. 2010). Under Illinois law, "[w]hen [a] statute contains undefined terms, it is entirely appropriate to employ a dictionary to ascertain the plain and ordinary meaning of those terms." People v. Davison, 906 N.E.2d 545, 551 (Ill. 2009). Appellant has failed to allege that appellees' use therefore has not stated a plausible claim for relief under the IRPA.

[2] Appellant has also failed to state a claim for common that the IRPA superseded the common law tort of appropriation. Blair v. Nev. Landing P'ship, RBG, LP, 859 N.E.2d 1188, 1192 (Ill. App. Ct. 2006) ("After December 31, ceased to exist. The Right of Publicity Act, effective January 1, 1999, completely replaced the common-law tort of appropriation of likeness...."). "This Court is bound to apply the law as interpreted by a state's intermediate appellate courts unless there is persuasive evidence that the state's highest court would reach a different conclusion." V.S. v. Muhammad, 595 F.3d 426, 432 (2d Cir. 2010). Appellant has provided no such evidence, and cites no post-IRPA Illinois case recognizing the continuing vitality of a separate appropriation tort distinct from the right to publicity under the IRPA that would cover the conduct alleged in appellant's cross claim and counter claim. Appellant has therefore failed to state a claim for relief under Illinois common law.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.