McDonnell v. Nature's Way Products LLC et al

Filing 58

OPINION AND ORDER. For the reasons stated in the accompanying Opinion and Order, the Court grants in part and denies in part Nature's Way's motion to dismiss 50 . The Court dismisses McDonnell's claims related to the products listed i n paragraphs 22 and 24 of the second amended complaint without prejudice. The Court dismisses Count 5 of the second amended complaint, which encompasses all claims on behalf of prospective class members in Florida, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington, without prejudice. The Court orders Nature's Way to answer the remaining allegations of the second amended complaint by November 27, 2017. Status hearing held on 10/26/2017 and continued to 11/2/2017 at 1:30 PM to set discovery schedule. Signed by the Honorable Sara L. Ellis on 10/26/2017. Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANGEL McDONNELL,
Plaintiff,
v.
NATURE’S WAY PRODUCTS, LLC,
Defendant.

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No. 16 C 5011
Judge Sara L. Ellis

OPINION AND ORDER
After learning that Alive! Women’s Energy Supplements (“Women’s Alive”) contain
substantial ingredients that are not “Made in the USA” as advertised, Plaintiff Angel McDonnell
filed this putative class action complaint against Defendant Nature’s Way Products, LLC
(“Nature’s Way”), Women’s Alive’s manufacturer. After the Court narrowed the claims on
which she could proceed, see Doc. 38, 1 McDonnell filed a second amended complaint, bringing
claims for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act
(“ICFA”), 815 Ill. Comp. Stat. 505/1 et seq., as well as seven states’ consumer fraud laws, 2 in
addition to an unjust enrichment claim. Nature’s Way has filed a motion to dismiss the second
amended complaint [42].

1

Specifically, in addressing McDonnell’s amended complaint, the Court dismissed her claim under the
Illinois Uniform Deceptive Trade Practices Act (“UDTPA”) but allowed her to proceed on her Illinois
Consumer Fraud and Deceptive Business Practices Act and unjust enrichment claims. The Court also
allowed McDonnell to pursue claims under other states’ consumer fraud laws, finding the standing issue
raised by Nature’s Way more appropriate for resolution at the class certification stage. Finally, the Court
dismissed her claims based on unnamed Nature’s Way products.
2

McDonnell seeks to represent class members not only in Illinois but also in Florida, Michigan,
Minnesota, Missouri, New Jersey, New York, and Washington, bringing claims under these states’
consumer fraud laws as well.

The Court grants in part and denies in part Nature’s Way’s motion to dismiss. The Court
allows McDonnell to proceed on her ICFA and unjust enrichment claims with respect to the
Women’s Alive product she purchased, finding that she has sufficiently pleaded the required
ICFA elements at this stage and that the unjust enrichment claim rises or falls alongside the
ICFA claim. But the Court dismisses McDonnell’s claims related to the products listed in
paragraph 22 and 24 of the second amended complaint that are alleged to contain unspecified
ingredients that are not “Made in USA” and her claims for violations of the seven other states’
consumer fraud laws, finding the Court does not have personal jurisdiction over Nature’s Way
with respect to those claims.
BACKGROUND 3
McDonnell, a resident of Plainfield, Illinois, purchased Women’s Alive on several
occasions in 2013 and 2014 at CVS and Walgreens stores in Joliet and Plainfield, Illinois.
Women’s Alive is one of a number of vitamin supplements manufactured and sold by Nature’s
Way. Women’s Alive includes vitamin C in the form of ascorbic acid as a significant ingredient.
Although the ascorbic acid is manufactured outside of the United States, the Women’s Alive
label states both on the bottom of the box and the bottle that it is “Made in USA.” 4 Doc. 42 ¶ 10.
But pursuant to the Federal Trade Commission’s guidelines concerning domestic source
representations, because the product contains foreign-sourced vitamin C, Nature’s Way should
qualifiy the “Made in USA” statement. McDonnell relied on the representation that Women’s

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The facts in the background section are taken from McDonnell’s second amended complaint and the
exhibits attached thereto and are presumed true for the purpose of resolving Nature’s Way’s motion to
dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011); Local 15, Int’l Bhd. of Elec.
Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 782 (7th Cir. 2007).
4

The second amended complaint includes a photograph of the label of the bottom of a Women’s Alive
box purchased in 2016. The label includes a 2014 copyright and McDonnell alleges that “it is either the
same as or very similar to the labels seen by Plaintiff.” Doc. 42 ¶ 10.

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Alive was made in the USA when buying the supplement because she prefers to purchase goods
made in the United States instead of imported goods and she believed that the vitamins contained
in the supplement did not originate from foreign sources. Nature’s Way produces an additional
sixty-nine other products, listed in the second amended complaint, which use ascorbic acid or
other unspecified ingredients not made in the United States but are nonetheless marketed as
“Made in USA.” See id. ¶¶ 22, 24. Nature’s Way offered a refund for these products in
California in 2016, but it did not offer a similar program to purchasers of these products in other
states.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “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.” Iqbal, 556 U.S. at 678.
Rule 9(b) requires a party alleging fraud to “state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b). This “ordinarily requires describing the ‘who, what,
when, where, and how’ of the fraud, although the exact level of particularity that is required will

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necessarily differ based on the facts of the case.” AnchorBank, 649 F.3d at 615 (citation
omitted). Rule 9(b) applies to “all averments of fraud, not claims of fraud.” Borsellino v.
Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007). “A claim that ‘sounds in fraud’—
in other words, one that is premised upon a course of fraudulent conduct—can implicate Rule
9(b)’s heightened pleading requirements.” Id.
ANALYSIS
I.

Sufficiency of McDonnell’s Pecuniary Injury Allegations
First, Nature’s Way renews its argument that McDonnell’s claims fail because she has

not sufficiently alleged a pecuniary injury. The Court, however, already addressed this issue and
after considering Nature’s Way’s renewed arguments, finds no reason to depart from its prior
conclusion that McDonnell has stated enough of a pecuniary injury to proceed to discovery. See
Doc. 38 at 6–7. To state an ICFA claim, McDonnell must allege (1) a deceptive or unfair act or
practice by Nature’s Way, (2) Nature’s Way’s intent that McDonnell rely on the deceptive or
unfair practice, (3) the deceptive or unfair practice occurred in the course of conduct involving
trade or commerce, and (4) Nature’s Way’s deceptive or unfair practice caused McDonnell
actual damage. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir. 2012); Kim v.
Carter’s Inc., 598 F.3d 362, 365 (7th Cir. 2010). Because McDonnell proceeds on a deceptive
practices claim, she must meet Rule 9(b)’s heightened pleading standard. Camasta v. Jos. A.
Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014).
Nature’s Way again focuses on the fourth element of an ICFA claim, actual damages,
which “requires that the plaintiff suffer actual pecuniary loss.” Kim, 598 F.3d at 365 (citation
omitted) (internal quotation marks omitted). As the Court previously explained, “actual loss may
occur if the seller’s deception deprives the plaintiff of ‘the benefit of her bargain’ by causing her

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to pay ‘more than the actual value of the property.’” Id. (quoting Mulligan v. QVC, Inc., 888
N.E.2d 1190, 1197–98, 382 Ill. App. 3d 620, 321 Ill. Dec. 257 (2008)). McDonnell again alleges
that “she paid more for the products than they were actually worth” and “would not have
purchased the vitamins at the price she paid if she had known that they contained foreignsourced vitamins.” Doc. 42 ¶ 21. The Court previously found that these allegations sufficed to
allege actual damages, rejecting Nature’s Way’s insistence that McDonnell include comparisons
to other vitamins or the price she paid for Women’s Alive. See Doc. 38 at 6–7 (collecting cases
findings allegations similar to McDonnell’s sufficient to allege pecuniary injury); see also Block
v. Lifeway Foods, Inc., No. 17 C 1717, 2017 WL 3895565, at *5 (N.D. Ill. Sept. 6, 2017)
(finding plaintiff adequately alleged actual damage where he claimed he would not have bought
product if he had known it was not in fact 99% lactose free and alleged that defendant charged
more for the product because of the misrepresentation).
The Court does not find the cases Nature’s Way cites in support of its renewed argument
to compel a different result. The Court already distinguished Demedicis v. CVS Health Corp. in
its prior opinion, finding that although McDonnell’s allegations are relatively bare-boned, they
cure the issue identified in Demedicis, where the plaintiff did not even allege “that, but for the
alleged deception, he would not have purchased the Supplements,” or that “the supplements were
more expensive because they were marked ‘Made in U.S.A.’” No. 16-cv-5973, 2017 WL
569157, at *3 (N.D. Ill. Feb. 13, 2017). The Court respectfully disagrees with the Sabo v.
Wellpet, LLC court, which imposed a more stringent pleading standard on the plaintiff, noting he
did not plead that he actually paid more for the purchased products because he believed them to
be American-made and requiring a factual foundation for his estimation of their worth at the
pleading stage. --- F. Supp. 3d ----, 2017 WL 1427057, at *3 (N.D. Ill. Apr. 21, 2017). Finally,

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In re Barnes & Noble Pin Pad Litigation involved a different factual situation and the question
of standing, not whether a plaintiff sufficiently stated a claim. No. 12-cv-8617, 2013 WL
4759588, at *5 (N.D. Ill. Sept. 3, 2013). Therefore, the Court stands by its prior Opinion finding
McDonnell has adequately pleaded pecuniary injury and turns to Nature’s Way’s remaining
arguments. 5
II.

Claims for Purchase of Women’s Alive Outside of Illinois and Other Nature’s Way
Products
Nature’s Way argues that the Court does not have personal jurisdiction over it for

McDonnell’s claims related to sales of Women’s Alive outside of Illinois and the sale of other
Nature’s Way products referenced in paragraphs 22 and 24 of the second amended complaint
both within and outside of Illinois because McDonnell never bought these products, having only
bought Women’s Alive in Illinois. 6 McDonnell responds that specific personal jurisdiction
exists in Illinois because Nature’s Way has purposely chosen to market mislabeled products in
Illinois.
In diversity cases, the Court may exercise personal jurisdiction over a defendant only if
personal jurisdiction would be proper in an Illinois court. Hyatt Int’l Corp. v. Coco, 302 F.3d
707, 713 (7th Cir. 2002). Illinois allows for personal jurisdiction to the full extent authorized by
the Illinois and United States Constitutions. KM Enters., Inc. v. Global Traffic Techs., Inc., 725
5

Although the Court has discussed the issue of pecuniary injury in the context of an ICFA claim, its
conclusion applies equally to McDonnell’s unjust enrichment claim, which stands or falls with the ICFA
claim. See Doc. 38 at 7 (citing Cleary v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011)). To the
extent Nature’s Way challenges McDonnell’s ability to establish pecuniary injury with respect to products
she did not purchase, the Court addresses those claims separately.
6

In its decision addressing Nature’s Way’s motion to dismiss McDonnell’s amended complaint, the Court
deferred deciding whether McDonnell had standing to represent individuals from other states, finding
class certification issues to be “logically antecedent” to standing concerns. See Doc. 38 at 9–11. (quoting
In re Aftermarket Filters Antitrust Litig., No. 08 C 4883, 2009 WL 3754041, at *5 (N.D. Ill. Nov. 5,
2009). There, the Court noted that Nature’s Way did not raise a personal jurisdiction argument, as it had
in Demedicis, and so the Court similarly did not address personal jurisdiction. Id. at 9 n.4.

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F.3d 718, 732 (7th Cir. 2013). To the extent the federal constitutional and Illinois statutory
inquiries diverge, “the Illinois constitutional standard is likely more restrictive than its federal
counterpart,” but both essentially focus on whether exercising jurisdiction over a defendant is
fair and reasonable and thus a single inquiry will do. Id.; C.H. Johnson Consulting, Inc. v.
Roosevelt Rds. Naval Station Lands & Facilities Redevelopment Auth., No. 1:12-cv-08759, 2013
WL 5926062, at *2 (N.D. Ill. Nov. 5, 2013) (“In light of the Seventh Circuit’s assessment in
Hyatt and the absence of post-Rollins [v. Elwood, 565 N.E.2d 1302, 1315 (Ill. 1990)] guidance
from the Illinois courts as to how Illinois and federal law may differ as a practical matter in
regard to personal jurisdiction, a single due process inquiry will suffice.”). In order to satisfy the
Due Process Clause, the defendant must have “certain minimum contacts with [the forum state]
such that the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed.
95 (1945) (quoting Millikin v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 (1940)).
Minimum contacts exist where “the defendant’s conduct and connection with the forum State are
such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1984).
Personal jurisdiction comes in two forms: general and specific. The Court need not
address general jurisdiction, because McDonnell only contends that the Court has specific
jurisdiction over Nature’s Way for her multi-state and non-Women’s Alive claims. Specific
jurisdiction exists “when the defendant purposefully directs its activities at the forum state and
the alleged injury arises out of those activities.” Mobile Anesthesiologists Chicago, LLC v.
Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 444 (7th Cir. 2010). The Court
looks to the “defendant’s suit-related conduct” and its connection to the forum state; “a

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defendant’s relationship with a plaintiff or third party, standing alone, is an insufficient basis for
jurisdiction.” Walden v. Fiore, --- U.S. ----, 134 S. Ct. 1115, 1121, 1123, 188 L. Ed. 2d 12
(2014); Philos Techs., Inc. v. Philos & D, Inc., 802 F.3d 905, 915–16 (7th Cir. 2015).
Additionally, a state may not assert specific jurisdiction over a nonresident’s claim where the
connection to the state is based on the defendant’s conduct in relation to a resident plaintiff, and
not the nonresident plaintiff. See Bristol-Myers Squibb Co. v. Super. Ct. of Cal., --- U.S. ----,
137 S. Ct. 1773, 1781, 198 L. Ed. 2d 395 (2017) (the “mere fact that other [resident] plaintiffs”
took defendant’s drugs in the state and sustained the same injuries as nonresident plaintiffs did
not provide the required “connection between the forum and the specific claims at issue” for the
Court to exercise jurisdiction over the nonresidents’ claims against defendant). 7
In addition to claims for purchasing Women’s Alive in Illinois, McDonnell seeks to bring
claims on behalf of residents of Illinois and seven other states under these states’ consumer fraud
laws for products that McDonnell does not allege she purchased. Although these individuals are
not named plaintiffs, the analysis used in Bristol-Myers Squibb Co. is instructive in considering
whether the Court has personal jurisdiction over the claims McDonnell asserts on their behalf
against Nature’s Way. The second amended complaint does not include allegations connecting
Nature’s Way activities in Illinois to any of these non-Women’s Alive products or to purchasers
7

Bristol-Myers Squibb Co. expressly applies to state courts and “leave[s] open the question of whether
the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal
court.” 137 S. Ct. at 1784. Because the Court is exercising diversity jurisdiction and looking to Illinois
law, however, Bristol-Myers Squibb Co. applies here. See Fitzhenry-Russell v. Dr. Pepper Snapple Grp.,
Inc., No. 17-cv-00564 NC, 2017 WL 4224723, at *4 (N.D. Cal. Sept. 22, 2017) (extending Bristol-Myers
Squibb Co.’s reasoning to cases in federal courts). The Court in Bristol-Myers Squibb Co. also addressed
mass actions, where numerous plaintiffs were joined together in one action, as opposed to the situation
here, where a single plaintiff injured in the forum state seeks to represent a multi-state class, with only the
named plaintiff injured in the forum state. See Bristol-Myers Squibb Co., 137 S. Ct. at 1789 n.4
(Sotomayor, J., dissenting). At least one court has found this a reason not to extend the Supreme Court’s
reasoning to the class action context. See Fitzhenry-Russell, 2017 WL 4224723, at *5 (refusing to extend
Bristol-Myers Squibb Co. to class action context, taking into account only the named plaintiffs and not the
putative class members).

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of Women’s Alive products outside of Illinois so as to provide the Court with specific
jurisdiction over these claims. Purchasers of Women’s Alive and the other sixty-nine products
described in paragraphs 22 and 24 who live in Florida, Michigan, Minnesota, Missouri, New
Jersey, New York, or Washington have no injury arising from Nature’s Way’s forum-related
activities in Illinois. Instead, any injury they suffered occurred in the state where they purchased
the products. Because the only connection to Illinois is that provided by McDonnell’s purchase
of Women’s Alive, which cannot provide a basis for the Court to exercise personal jurisdiction
over the claims of nonresidents where Nature’s Way has no other connection to this forum, the
Court dismisses all claims pertaining to Women’s Alive and the products mentioned in
paragraphs 22 and 24 brought on behalf of non-Illinois residents or for violations of Florida,
Michigan, Minnesota, Missouri, New Jersey, New York, and Washington law without prejudice.
See Bristol-Myers Squibb Co., 137 S. Ct. at 1781–83; Wenokur v. AXA Equitable Life Ins. Co.,
No. CV-17-00165-PHX-DLR, 2017 WL 4357916, at *4 n.4 (D. Ariz. Oct. 2, 2017) (noting that
the court lacked personal jurisdiction over claims of putative class members with no connection
to Arizona, citing to Bristol-Myers Squibb Co.); Demedicis, 2017 WL 569157, at *4–5
(dismissing plaintiff’s claims for violations of non-Illinois consumer fraud statutes where
plaintiff was the sole connection between defendants and Illinois); DeMaria v. Nissan N. Am.,
Inc., No. 15 C 3321, 2016 WL 374145, at *8 (N.D. Ill. Feb. 1, 2016) (dismissing claims brought
by out-of-state plaintiffs, noting that “each plaintiff’s claim is predicated on the law of the
particular state where he or she purchased a car and the claims of the other plaintiffs as alleged
remain unrelated to anything that transpired in Illinois, [meaning that] imposing personal
jurisdiction for all of the claims . . . would run afoul of the traditional notions of fair play and
substantial justice”). Additionally, because the second amended complaint includes no

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allegations of an Illinois resident purchasing any of the non-Women’s Alive products in Illinois,
meaning nothing in the second amended complaint ties the claims against Nature’s Way arising
out of the purchase of these products to Illinois so as to establish personal jurisdiction over
Nature’s Way, the Court dismisses all claims based on the non-Women’s Alive products brought
on behalf of Illinois residents without prejudice. 8
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Nature’s Way’s
motion to dismiss [50]. The Court dismisses McDonnell’s claims related to the products listed in
paragraphs 22 and 24 of the second amended complaint without prejudice. The Court dismisses
Count 5 of the second amended complaint, which encompasses all claims on behalf of
prospective class members in Florida, Michigan, Minnesota, Missouri, New Jersey, New York,
and Washington, without prejudice. The Court orders Nature’s Way to answer the remaining
allegations of the second amended complaint by November 27, 2017.

Dated: October 26, 2017

______________________
SARA L. ELLIS
United States District Judge

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Because the Court finds it does not have personal jurisdiction over all claims relating to non-Women’s
Alive products under Illinois law and over Women’s Alive and non-Women’s Alive products under other
states’ consumer fraud laws, it need not address Nature’s Way’s other arguments as to why dismissal of
these claims is appropriate.

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