Pincus v. Starbucks Corporation
MEMORANDUM Opinion and Order: For the foregoing reasons, Starbucks's motion, 34 , is granted, and Galanis's complaint is dismissed in its entirety without prejudice. His motion for class certification 6 , is also denied. Should Galanis believe he can cure the deficiencies the Court has described, he may file a motion for leave to file an amended complaint by November 14, 2016. The motion should attach a proposed amended complaint, and be supported by a brief of no more than five pages explaining why the proposed amendments would cure the deficiencies cited by the Court. Should Galanis file such a motion, Starbucks should not respond unless the Court so orders. If Galanis fails to file a motion for leave to amend by November 14, 2016, the dismissal will be with prejudice. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 10/14/2016:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
STEVEN GALANIS, individually and on behalf
of all others similarly situated,
No. 16 C 4705
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
misrepresenting the volume of its cold drinks because much of the volume is taken
up by ice. Galanis alleges that this conduct constitutes: a breach of an express
warranty (Count I); a breach of an implied warranty of merchantability (Count II);
negligent misrepresentation (Count III); unjust enrichment (Count IV); fraud
(Count V); a violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act (Count VI); and, a violation of the Illinois Uniform Deceptive Trade
Practices Act (Count VII). See R. 1. Starbucks has moved to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. R. 34. For the
following reasons, Starbucks motion is granted.
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
Starbucks sells iced coffee, iced tea, and iced blended specialty drinks at its
many cafes across the country. R. 1 ¶ 1. Starbucks drinks are available in different
sizes. Starbucks’s menus describe the different sizes according to volume measured
in “fluid ounces.” Id. ¶¶ 18-19. On its website, Starbucks lists the drink container
sizes it offers in a menu that is separate from the menu listing the drinks’ contents.
Id. ¶ 18. In its stores, Starbucks lists the drink container sizes across the top of its
menu, whereas the contents of the drinks are separately listed down the side of the
menu. Id. ¶ 19.
Starbucks’s cold drinks that contain ice are described on the menu as “iced.”
Id. Galanis referenced the menus on Starbucks’s website in the complaint, so the
Court independently viewed the website. As can be seen in the red-highlighted
sections of the screen capture from the online menu included below, not only is the
word “iced” part of the name of the cold drinks at issue in this case, the drinks are
served “over ice” or “with ice,” and the ingredients list includes ice. See www.
starbucks.com/menu/drinks, for “Starbucks Refreshers Beverages,” “Iced Coffee,”
“Iced Tea” (last visited Oct. 14, 2016, and confirmed for earlier dates prior to the
The cups in which Starbucks serves its “iced” drinks are made of clear plastic.
The cups are also marked with black lines that delineate the amount of coffee, tea,
or other beverage a Starbucks employee is supposed to pour into the cup. Id. ¶ 22.
The employee then fills the rest of the cup with ice. Id. ¶¶ 22-23. Galanis alleges
that “in essence, Starbucks is advertising the size of its . . . cups on its menu, rather
than the amount of fluid a customer will receive when they purchase [an iced coffee,
iced tea, or iced blended specialty drink]—and deceiving its customers in the
process.” Id. ¶ 35.
Counts IV, V & VI: Unjust Enrichment, Common Law Fraud, and the
Illinois Consumer Fraud and Deceptive Business Practices Act (the
“Consumer Fraud Act”)
Galanis claims that Starbucks’s alleged misrepresentations constitute fraud
and a violation of the Consumer Fraud Act. In relevant part, the Consumer Fraud
Unfair methods of competition and unfair or deceptive
acts or practices, including but not limited to the use or
employment of any deception, fraud, false pretense, false
suppression or omission of any material fact, with intent
that others rely upon the concealment, suppression or
omission of such material fact, or the use or employment
of any practice described in Section 2 of the “Uniform
Deceptive Trade Practices Act”, approved August 5, 1965,
in the conduct of any trade or commerce are hereby
declared unlawful whether any person has in fact been
misled, deceived or damaged thereby.
815 ILCS 505/2. “To prove a succeed in a private cause of action under the
Consumer Fraud Act, a plaintiff must prove (1) a deceptive act or practice by the
defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the
occurrence of the deception in the course of conduct involving trade or commerce,
and (4) actual damage to the plaintiff (5) proximately caused by the deception.”
Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 856 (Ill. 2005). “[A]
statement is deceptive if it creates a likelihood of deception or has the capacity to
deceive.” Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2001). In other
words, the statements must “have misled a reasonable consumer,” Mullins v. Direct
Digital, LLC, 795 F.3d 654, 673 (7th Cir. 2015), “in light of the totality of the
information made available to the plaintiff.” Davis v. G.N. Mortg. Corp., 396 F.3d
869, 884 (7th Cir. 2005); see also Phillips v. DePaul Univ., 19 N.E.3d 1019, 1031 (Ill.
App. Ct. 1st Dist. 2014) (courts are to “consider whether the act was deceptive as
reasonably understood in light of all the information available to plaintiffs”).
“Although [Consumer Fraud Act] claims often involve disputed questions of fact not
suitable to a motion to dismiss, a court may dismiss the complaint if the challenged
statement was not misleading as a matter of law.” Gubala v. CVS Pharmacy, Inc.,
2015 WL 3777627, at *6 (N.D. Ill. June 16, 2015) (quoting Ibarrola v. Kind, LLC,
2015 WL 1188498, at *3 (N.D. Ill. Mar. 12, 2015)).
The heart of Galanis’s claims is that if Starbucks advertises an “iced” drink
as containing 24 fluid ounces, the drink “should have 24 ounces of fluid plus ice.” R.
48 at 2 (emphasis in original). But as Starbucks points out, “no reasonable
consumer ordering an iced tea expects to receive a cup of tea with a side of ice.
Rather, a reasonable consumer ordering an iced tea would expect to receive the
advertised amount of the beverage, which is, as its name plainly states, comprised
of both ice and tea.” R. 49 at 2-3 (emphasis in original). And in this case it is not just
the drinks’ names that convey to the consumer that ice will be included, but the
website menu directly states that the drinks are served “over ice” and include ice as
an ingredient. As a federal district court in California concluded in a similar case,
“If children have figured out that including ice in a cold beverage decreases the
amount of liquid they will receive, the Court has no difficulty concluding that a
reasonable consumer would not be deceived into thinking that when they order an
iced tea, that the drink they receive will include both ice and tea and that for a
given size cup, some portion of the drink will be ice rather than whatever liquid
beverage the consumer ordered.” See Forouzesh v. Starbucks Corp., 2016 WL
4443203, at *3 (C.D. Cal. Aug. 19, 2016).
Similarly here, Galanis’s claims ask the Court to interpret Starbucks’s menus
in an unreasonable fashion. A reasonable consumer would notice that the menus
separately list the contents of the drinks and the size of the containers the drinks
are served in. And because Starbucks uses the phrase “fluid ounces” in the section
of the menus that describes container sizes, a reasonable consumer would
understand that phrase to refer to volume, as opposed to a drink’s contents. The
reasonable consumer would also draw this conclusion from the mere fact that “fluid
ounces” is a measurement of a drink’s volume, not a description of a drink’s
contents. The common sense nature of this analysis is exemplified by imagining a
consumer who tried to order simply “24 fluid ounces.” That request would obviously
be met with the question, “Of what?”
Since the reasonable consumer would realize that the phrase “fluid ounces”
refers to a drink’s volume and a not its contents, the reasonable consumer would not
think that the drink would contain only “fluid.” Rather, if the consumer chooses an
“iced” drink, the reasonable consumer knows that the container (whatever its
volume) will be filled with both solid ice and a fluid beverage. The fact that the
volume of the container the drink is served in is measured using “fluid ounces”
would not cause the reasonable consumer to be surprised by the presence of ice in
the drink’s contents. Indeed, a reasonable consumer who purchases an “iced” drink,
expects there to be ice in the drink, and would be upset if there wasn’t. By contrast,
Galanis’s contention that the use of the phrase “24 fluid ounces” means that all 24
of those ounces must be “fluid” is simply not reasonable.
Customarily, drink sellers do not inform their customers regarding the
specific volume measurements of the drink containers they offer. Instead, sellers
create displays using examples of the available cups—which (until Starbucks
entered our lives) were simply described as “small, medium, and large.” Not only
has Starbucks shunned these traditional descriptors in favor of more fanciful
language (i.e., “short, tall, grande, venti,” and—heart be still—“trenta”),1 Starbucks
has also decided to specifically identify the volume of each container. But none of
this changes the fact that Starbucks’s container size menu serves the same purpose
1 “Venti” and “Trenta” apparently being registered trademarks!
as the customary method of displaying examples of each cup size (which you might
still see at a stadium or movie theater or many other similar establishments).
Despite the reference to “fluid ounces” on Starbucks’s menus, a reasonable
consumer still understands Starbucks’s container size menu to convey information
regarding the volume of the cups its drinks come in, as opposed to the contents of
the various drinks. Therefore, including ice, which of course is not a fluid (as the
parties “helpfully” point out, see R. 48 at 5; R. 49 at 9), in an iced drink does not
make a menu listing the size of the drink in terms of “fluid ounces” a deceptive
Counts I, II, III & VII: Breach of Express Warranty, Breach of Implied
Warranty, Negligent Misrepresentation, and the Illinois Uniform
Deceptive Trade Practices Act (the “IUDTPA”)
All of the remaining counts in Galanis’s complaint also require a misleading
statement of some kind. See Mydlach v. DaimlerChrysler Corp., 875 N.E.2d 1047,
1057 (Ill. 2007) (claim for breach of express warranty requires allegation of an
“affirmation of fact or promise”); S. Side Trust & Sav. Bank of Peoria v. Mitsubishi
Heavy Indus., Ltd., 927 N.E.2d 179, 191 (Ill. App. Ct. 1st Dist. 2010) (claim for
implied warranty requires allegation that the plaintiff “was relying upon seller’s
skills or judgment”); Jane Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd. of Dirs., 973
N.E.2d 880, 889 (Ill. 2012) (to state a claim for negligent misrepresentation a
“plaintiff need only allege that the defendant was careless or negligent in
2 This analysis also shows that Galanis has failed to allege that Starbucks made a
false statement, so his common law fraud claim must be dismissed. Furthermore,
the failure of Galanis’s fraud claims also dooms his unjust enrichment claim. See
Bober, 246 F.3d a 943.
ascertaining the truth of the statement, and that the defendant had a duty to
convey accurate information to the plaintiff”); 815 ILCS 510/2(a)(9) (the IUDTPA
makes it unlawful to “advertise goods or services with intent not to sell them as
advertised”); 815 ILCS 510/2(a)(12) (the IUDTPA makes it unlawful to “engage in
any other conduct which similarly creates a likelihood of confusion or
misunderstanding”). The foregoing discussion demonstrates that Galanis has failed
to allege a misleading statement. Thus, Counts I, II, III, and VII are dismissed.
For the foregoing reasons, Starbucks’s motion, R. 34, is granted, and
Galanis’s complaint is dismissed in its entirety without prejudice. His motion for
class certification, R. 6, is also denied. Should Galanis believe he can cure the
deficiencies the Court has described, he may file a motion for leave to file an
amended complaint by November 14, 2016. The motion should attach a proposed
amended complaint, and be supported by a brief of no more than five pages
explaining why the proposed amendments would cure the deficiencies cited by the
Court. Should Galanis file such a motion, Starbucks should not respond unless the
Court so orders. If Galanis fails to file a motion for leave to amend by November 14,
2016, the dismissal will be with prejudice.
Honorable Thomas M. Durkin
United States District Judge
Dated: October 14, 2016
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