Lambert et al v. Dollar General Corporation
Filing
66
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/16/2017:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THERA LAMBERT and AMY CONNOR,
Individually and on Behalf of
All Others Similarly
Situated,
Case No. 16 C 11319
Plaintiffs,
Judge Harry D. Leinenweber
v.
DOLLAR GENERAL CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Dollar General Corporation’s
Motion to Dismiss Plaintiffs’ Amended Complaint for Failure to
State a Claim [ECF No. 45].
For the reasons stated herein, the
Court grants Defendant’s Motion in part.
Counts II and III are
dismissed without prejudice.
I.
The
Complaint
following
and
are,
facts
for
BACKGROUND
derive
purposes
of
from
this
Plaintiffs’
motion,
accepted
true, with all inferences drawn in their favor.
Adams
v.
City
of
Indianapolis,
742
F.3d
720,
Amended
728
as
See, e.g.,
(7th
Cir.
2015).
Defendant
Dollar
General
Corporation
(“Dollar
General”)
manufactures and sells DG Body Soothing Aloe Gel (the “Gel” or
“Aloe Gel”), a cosmetic product allegedly marketed to cool and
moisturize the skin.
(ECF No. 30 (“Am. Compl.”) ¶¶ 2, 30.)
The
front packaging of the Gel displays an aloe leaf and, in two
bullet points, states that it both “cools” and “moisturizes.”
According to packaging on the back, the Gel “lets you quickly
soak your skin in after-sun cooling relief” and is “made with
Aloe Vera, which cools and moisturizes the skin.”
fifth
ingredient
is
Compl. ¶¶ 19-20.)
“aloe
barbadensis
extract.”
(Am.
Aloe barbadensis is the scientific name for
one species of the aloe vera plant.
Plaintiffs
leaf
Listed as the
Thera
Lambert
(Id. ¶ 13.)
and
Amy
Connor
(“Plaintiffs”),
both Illinois residents, allege that they purchased the Gel at
brick-and-mortar Dollar General stores “[d]uring 2015 and 2016”
and “in June or July of 2016,” respectively.
8.)
(Am. Compl. ¶¶ 7-
Both did so after reading the product’s label and believing
that it contained aloe vera, which they valued for its commonly
understood
skin
healing
and
sunburn-relief
qualities.
(Ibid.)
Plaintiffs, through counsel, submitted the Gel for testing.
The
results indicate an absence of acemannan, glucose, malic acid,
and whole leaf markers, which Plaintiffs allege are key chemical
hallmarks
of
Pharmacopeia
aloe
(the
vera
“AHP”)
according
and
the
Council (the “IASC”). (Id. ¶¶ 20-21.)
- 2 -
to
the
American
International
Aloe
Herbal
Science
Based on the test results, Plaintiffs claim that Dollar
General’s marketing of the Gel as “Aloe Gel” containing “aloe
barbadensis leaf extract” and “made with aloe vera” (hereinafter
also referred to as “the challenged statements”) is thus false,
deceptive, and misleading cosmetic labeling under the Food Drug
and
Cosmetic
regulations,
Act,
21
21
U.S.C.
C.F.R.
§
§ 362,
701.
and
(Am.
its
implementing
Compl.
¶¶
31-34.)
Plaintiffs maintain that they would not have purchased the Gel
but for the challenged statements.
(Id. ¶¶ 23-24.)
Two weeks after sending a pre-suit demand notice to Dollar
General (Am. Compl. ¶¶ 55, 65), Plaintiffs filed their initial
Complaint.
(ECF No. 1 (“Compl.”).)
Their Amended Complaint now
recites counts for breach of express warranty, breach of the
implied
warranty
Illinois
(the
Consumer
“ICFA”).
class
of
of
merchantability,
Fraud
and
Plaintiffs
similarly
Deceptive
seek
situated
and
violation
Business
redress
individuals
for
of
the
Practices
Act
themselves
defined
to
and
a
include
“[a]ll persons in the State of Illinois who, within four (4)
years of the filing of this Complaint, purchased the Product
from Dollar General or dollargeneral.com for personal use and
not for resale.” (Am. Compl. ¶ 37.)
dismiss
all
counts
of
the
Dollar General now moves to
Amended
Complaint,
arguing
that
Plaintiffs fail to state claims on which relief can be granted.
- 3 -
II.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a complaint
“must state a claim that is plausible on its face.”
Adams, 742
F.3d at 728 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570
(2007)).
plaintiff
A
pleads
claim
enjoys
sufficient
“facial
factual
plausibility
content
the
allows
that
when
the
court to draw the reasonable inference that the defendant is
liable for the alleged misconduct.”
(quoting
plaintiff
Ashcroft
must
v.
Adams, 742 F.3d at 728
Iqbal,
556
U.S.
that
all
elements
allege
662,
678
of
(2009)).
his
claim
A
are
satisfied, but cannot survive a Rule 12(b)(6) motion to dismiss
by alleging only legal conclusions.
Reynolds v. CB Sports Bar,
Inc., 623 F.3d 1143, 1147 (7th Cir. 2010).
of
the
elements
of
a
cause
of
action,
conclusory statements, do not suffice.”
III.
A.
Count I:
“Threadbare recitals
supported
by
mere
Iqbal, 556 U.S. at 678.
ANALYSIS
Breach of Express Warranty
An express warranty arises where (1) the seller makes an
affirmation of fact or promise (2) that relates to the goods and
(3)
becomes
parties.
part
of
the
basis
of
the
bargain
between
the
See, Royal Bus. Mach., Inc. v. Lorraine Corp., 633
F.2d 34, 41 (7th Cir. 1980).
The decisive test for whether “a
given representation is a warranty . . . is whether the seller
- 4 -
asserts a fact of which the buyer is ignorant or merely states
an opinion or judgment on a matter which the seller has no
special knowledge and on which the buyer may be expected also to
have an opinion and to exercise his judgment.” Id. at 41.
In
the first case there is a warranty, but in the second there is
not.
Weiss v. Rockwell Mfg. Co., 293 N.E.2d 375, 381 (Ill. App.
1973).
To state a claim for breach of an express warranty under
Illinois law, the complaint must allege (1) the terms of the
warranty; (2) a breach or failure of the warranty; (3) a demand
upon the defendant to perform under the terms of the warranty;
(4) a failure by the defendant to do so; (5) compliance with the
terms of the warranty by the plaintiff; and (6) damages measured
by the terms of the warranty.
See, e.g., Ibarrola v. Kind LLC,
No. 13 C 50377, 2015 WL 1188498, at *5 (N.D. Ill. Mar. 12, 2015)
(citing
Hasek
v.
DaimlerChrysler
Corp.,
745
N.E.2d
627,
638
(Ill. App. 2001)).
The Court finds, and Dollar General does not contest, that
the
challenged
statements
give
rise
to
an
express
warranty.
Plaintiffs aver that, upon purchasing the Gel, they entered into
a contract with Dollar General the terms of which included the
promises and affirmations of fact on the Gel’s packaging.
Compl.
¶
49.)
The
challenged
- 5 -
statements
-
that
Aloe
(Am.
Gel
contains “aloe barbadensis leaf extract” and is “made with aloe
vera” - are affirmations of fact relating to the Gel of which
the buyer is ignorant.
Plaintiffs also adequately allege that
this affirmation became part of the basis of the bargain between
themselves and Dollar General.
As such, Plaintiffs’ Amended
Complaint sufficiently pleads an express warranty and its terms.
Similarly, the Court finds, and Dollar General does not dispute,
that Plaintiffs satisfied the pleading requirements of alleging
a demand upon the defendant (i.e., Plaintiffs’ November 30, 2016
notice and demand), their own compliance with the warranty’s
terms (i.e., by purchasing the Gel), and damages measured by the
terms of the warranty (i.e., the retail price paid for a gel
conforming to the challenged statements).
Dollar General’s chief bone of contention, then, is that
Plaintiffs
have
not
plausibly
alleged
the
second
pleading
requirement, a breach or failure of the warranty (which in turn
implicates the remaining pleading requirement concerning Dollar
General’s failure to perform in response to Plaintiffs’ demand).
Dollar
General
urges
that
Plaintiffs
have
failed
to
plead
adequately the falsity of the challenged statements, as their
only cited authority linking the chemical hallmarks absent from
the
Gel
voluntary
with
aloe
(rather
vera
than
derives
from
authoritative
- 6 -
publications
or
legally
issued
by
binding)
industry
groups.
The
IASC,
Dollar
General
contends,
is
a
certifier that promulgates standards for high-quality aloe vera
products, such that the Amended Complaint takes flawed recourse
to IASC literature requiring the asserted chemical hallmarks of
aloe vera that were absent from the Gel.
General
argues
pronouncements
that
do
the
AHP
not
bind
is
Dollar
Relatedly, Dollar
an
organization
General
and
that,
whose
in
any
event, the referenced monograph did not study finished products
containing processed aloe vera, only raw materials in the form
of whole “raw aloe leaf and two juices that can be expressed
from it.” (ECF No. 46 (“Def.’s Mem.”) at 5.)
Because Dollar
General does not represent that the Gel is certified by either
organization or claim to meet the monograph standards for raw
aloe
leaf
and
juices,
it
maintains
that
Plaintiffs
have
not
plausibly alleged the falsity of the challenged statements, and
thus that the express warranty failed them.
The
Court
plausibility
of
initially
Plaintiffs’
rejects
the
allegations
notion
turns
on
that
the
whether
the
IASC and AHP promulgate binding standards regarding manufacture
of aloe products.
That these industry groups commissioned the
cited third-party studies has no bearing on the plausibility of
Plaintiffs’ allegations of falsity.
Dollar General offers no
authority for disregarding allegations of falsity premised on
- 7 -
information from industry group publications, and there is case
law
suggesting
the
opposite.
See,
e.g.,
Castrol
Inc.
v.
Pennzoil Co., 987 F.2d 939, 945 (3d Cir. 1993) (recognizing that
even a test which is not an industry standard may yield accurate
results that bear on literal falsity in the false advertising
context, so long as the test correctly measures the product at
issue), cited with approval, BASF Corp. v. Old World Trading
Co.,
Inc.,
41
F.3d
1081,
1089
(7th
Cir.
1994).
Worth
emphasizing is that Plaintiffs do not invoke the IASC or AHP
studies as legal authority but instead to interpret test results
further to bringing their state-law claims.
Next, Dollar General cites Spector v. Modelēz Int’l, Inc.,
178 F.Supp.3d 657 (N.D. Ill. 2016), for the proposition that the
IASC and AHP standards for high-quality aloe products and raw
aloe leaf do not speak to the “different question” of whether
the Gel contains aloe barbadensis leaf extract.
In Spector, the
plaintiff sued a manufacturer of breakfast biscuits asserting,
inter alia, breach of express warranty and violation of the ICFA
based on the manufacturer’s statement that its products provide
“at least four hours all morning of ‘nutritious steady energy.’”
Id. at 663.
Spector alleged that the products provide four
hours of energy only when combined with a serving of low-fat
milk. Ibid.
The court granted the defendant’s motion to dismiss
- 8 -
because
the
plaintiff
“pleaded
no
facts,
such
as
personal
experience or third-party studies, showing that the Products do
not provide ‘nutritious steady energy’ as promised.” Id. at 665
(emphasis added).
by
linking
to
The complaint’s plausibility was not enhanced
a
video,
posted
on
one
of
the
defendant’s
websites, summarizing several studies showing that the biscuits
“provide four hours of continuous carbohydrate release when they
are consumed with a glass of low-fat milk.” Id. at 670.
Rather
than establishing that “one must consume the Products with lowfat
milk
in
order
to
achieve
four
hours
of
energy,”
these
statements “do no more than refer to the fact that milk was
consumed with the Products in the cited studies.” Ibid.
Spector,
however,
does
not
avail
Dollar
General
because
Plaintiffs are not committing “the classic error of inferring a
causal
connection
references
report
the
any
from
a
variable
in
conclusions
scientific
the
study
regarding
study
which
without
the
merely
purporting
cause
and
to
effect
relationship between the variables and the studies’ results.”
Spector, 178 F.Supp.3d at 670.
Rather, Plaintiffs use the AHP
monograph – which, for example, lists the “[t]ypical constituent
profile of aloe vera leaf juice” as containing more than five
percent acetylated mannan, glucose, and malic acid content by
weight
–
to
allege
that
testing
- 9 -
showing
the
lack
of
these
constituents
in
Aloe
Gel
challenged statements.
Indeed,
the
AHP
establishes
the
falsity
of
the
(Def.’s Mem. at Ex. B, 29 (Tbl. 2).)
monograph
makes
further
pronouncements
that
might support application of its conclusions to the Gel.
For
example, it states:
“Cosmetic Product:
inner
included
leaf
juice
is
in
many
Aloe vera leaf and
aloe
vera
skin
care
products.” (Id. at 27.)
Relatedly,
that
the
AHP
monograph
was
“developed
to
establish guidelines for determining the identity, purity, and
quality of the crude leaves of Aloe vera, as well as aloe vera
leaf juice (made from entire leaf) and aloe vera inner leaf
juice (made from the colorless inner parenchyma) raw materials
and products” (Def.’s Mem. at Ex B, 2), does not mean that the
Court can determine on Dollar General’s Motion – while drawing
all inferences in Plaintiffs’ favor – that it has no plausible
application to finished goods purporting to be made with aloe
vera
and
contain
aloe
barbadensis
leaf
extract.
Whether
manufacturing a product with aloe vera or incorporating aloe
barbadensis
leaf
extract
into
it
necessitates
the
chemical
markers of whole aloe vera leaf or aloe vera leaf juice – such
that reading the test results in light of the AHP’s conclusions
indicates falsity – is a matter beyond this Court’s competence
to evaluate absent a fully developed factual record.
- 10 -
At this
preliminary stage, it suffices to note that the link between the
study’s conclusions and the Gel’s affirmative statements of fact
is plausible.
Objections such as Dollar General’s go to weight,
not the plausibility of Plaintiffs’ allegations, and are thus
better evaluated after discovery.
The
Court
draws
the
reasonable
inference
in
Plaintiffs’
favor that the IASC and AHP studies sufficiently implicate the
Gel’s claimed aloe barbadensis leaf extract.
As such, the Court
heeds the authority counseling against dismissing allegations of
false statements regarding a finished product that are grounded
in studies of one of its active ingredients.
See, e.g., Conrad
v. Nutramax Labs., Inc., No. 13 C 3780, 2013 WL 5288152, at *3-4
(N.D. Ill. Sept. 18, 2013) (“Nutramax attacks this finding on
the ground that the study only addresses glucosamine; however,
glucosamine
is
a
primary
active
ingredient
of
[the
accused
product], and the impact of other ingredients is a question that
requires further exploration not suited for this stage of the
pleadings. . . . Whether
or
not
these
studies
apply
to
[the
accused product] is a question of fact that this Court cannot
now decide.”); Pearson v. Target Corp., No. 11 C 7972, 2012 WL
7761986, at *2 (N.D. Ill. Nov. 9, 2012) (“The fact that these
studies
looked
at
products
that
- 11 -
shared
the
same
active
ingredients
–
Glucosamine,
Chondroitin,
and
MSM
–
makes
Plaintiff’s claim facially plausible.”).
Therefore,
warranty
on
Plaintiffs
the
Gel’s
adequately
packaging
plead
failed
that
them
the
express
because
affirmative statements on which they relied were not true.
its
As
such, Plaintiffs state a cognizable claim under Illinois law for
breach of express warranty.
B.
Count II: Breach of Implied Warranty
of Merchantability
A warranty that goods “shall be merchantable is implied in
a contract for their sale if the seller is a merchant with
respect to goods of that kind.”
810 Ill. Comp. Stat. 5/2-314.
To
of
state
a
claim
for
breach
the
implied
warranty
of
merchantability under Illinois law, a plaintiff must allege that
(1) the defendant sold goods that were not merchantable at the
time of sale; (2) the plaintiff suffered damages as a result of
the defective goods; and (3) the plaintiff gave the defendant
notice of the defect.
810 Ill. Comp. Stat. 5/2-314.
To be
merchantable, “the goods must be, among other things, fit for
the ordinary purpose for which the goods are used.” 810 Ill.
Comp. Stat. 5/2-314.
Dollar General does not dispute that an implied warranty of
merchantability inheres in sales of the Gel, that Plaintiffs
- 12 -
have adequately alleged damages, or that Plaintiffs gave notice
of the Gel’s alleged defect.
Rather, Dollar General argues that
Plaintiffs fail to plead adequately that the Gel flunked its
ordinary purpose.
See, e.g., Industrial Hard Chrome, Ltd. v.
Hetran, Inc., 64 F.Supp.2d 741, 748 (N.D. Ill. 1999) (holding
that a plaintiff suing for breach of the implied warranty of
merchantability must allege what the product’s ordinary purpose
was and how it was unfit for that purpose when it left the
seller’s control).
Because this argument really implicates two
distinct possible shortcomings of the operative complaint, the
Court analyzes it in two parts.
The
closest
Plaintiffs
come
to
alleging
the
“ordinary
purpose” of the Gel is when they claim that “‘[a]fter-sun’ aloe
products like Defendant’s Product are marketed and sold for burn
and sunburn relief and similar conditions requiring the healing
properties of aloe.”
(Id. ¶ 62.)
Although this allegation of
purpose may not be specific to the Gel (as opposed to a class of
similar
products),
the
Court
finds
that,
in
tandem
with
the
statements on the Gel’s packaging that it “cools” and can be
used
for
“after-sun
cooling
relief,”
Plaintiffs
sufficiently
identify an ordinary purpose of the Gel as cooling skin after
sun exposure.
- 13 -
The
problem,
however,
lies
in
the
lack
of
allegations
concerning how the Gel failed this purpose or, in other words,
was defective or otherwise not merchantable at the time of sale.
See, e.g., Corwin v. Connecticut Valley Arms, Inc., 74 F.Supp.3d
883, 891 (N.D. Ill. 2014) (granting motion to dismiss breach of
implied warranty claim based on failure to “provide facts that
detail how the bullet was defective” as to its “ordinary and
intended uses”).
Plaintiffs make only two allegations directed
to how the Gel was unfit for its ordinary purpose.
First,
Plaintiffs aver that the Gel “was not merchantable at the time
of
sale,
because
it
did
not
conform
–
nor
could
it
have
conformed – to Defendant’s representations as alleged herein.
Specifically, Defendant’s Product does not contain aloe vera,
aloe gel, or Aloe Barbadensis leaf extract as claimed.”
Compl. ¶ 60.)
(Am.
Second, Plaintiffs make the conclusory statement
that, “[b]ecause Defendant’s Product does not contain Aloe Vera,
it
is
unfit
for
these
ordinary
purposes.”
(Id.
¶
62.)
Plaintiffs fatally neglect to plead that the Gel failed to cool
(or moisturize) their skin; this is no surprise, because neither
Plaintiff alleges actual use of the Gel.
Such a lacuna evokes Baldwin v. Star Scientific, Inc., 78
F.Supp.3d
claim
for
724
(N.D.
breach
of
Ill.
the
2015),
implied
- 14 -
where
the
warranty
court
of
dismissed
a
merchantability
because the plaintiff did “not allege in what way the product
was ineffective” in performing its ordinary purpose.
741.
Id. at
What is more, unlike the situation here, the plaintiff in
Baldwin at least alleged that the product “did not work” and did
not provide the claimed “health benefits.” Ibid.
Plaintiffs in
this case hang their hat on the Gel’s alleged lack of aloe vera
not conforming to Dollar General’s representations.
But that is
no more and no less than their express warranty theory.
And
nothing in the Amended Complaint supports the inference that
only aloe vera can moisturize or cool skin – such that the very
allegation
of
its
absence
from
the
Gel
plausibly
states
a
failure of ordinary purpose.
Therefore, there is no plausible claim that the Gel failed
its ordinary and intended purpose.
The Court grants Defendant’s
Motion as to Count II.
C.
To
allege
state
(1)
a
Count III:
an
ICFA
Violation of the ICFA
claim,
deceptive
or
a
private-party
unfair
act
or
plaintiff
practice
by
must
the
defendant; (2) the defendant’s intent that the plaintiff rely on
the
deceptive
or
unfair
practice;
(3)
that
the
unfair
or
deceptive practice occurred during a course of conduct involving
trade or commerce; and (4) that the plaintiff suffered actual
damages proximately caused by the deception.
- 15 -
See, Oliveira v.
Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002); accord, Wigod v.
Wells
Fargo
Bank,
N.A.,
673
F.3d
547,
574
(7th
Cir.
2012)
(quoting Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.
2010)); Camasta v. Jos. A Bank Clothiers, Inc., 761 F.3d 732,
739
(7th
Cir.
requirements
2012).
In
Rule
9(b)
of
addition,
apply
the
to
heightened
ICFA
pleading
claims.
Pirelli
Armstrong Retiree Med. Corp. Benefits Trust v. Walgreen Co., 631
F.3d 436, 441 (7th Cir. 2011).
Dollar
General
does
not
dispute
that
Plaintiffs
allege
sufficient facts to satisfy the reliance, trade-or-commerce, and
actual
damages
General
ICFA
challenge
on
pleading
Rule
requirements.
9(b)
grounds
the
Nor
does
Dollar
specificity
which Plaintiffs plead the circumstances of fraud.
with
Instead,
Dollar General’s arguments for dismissal of the ICFA claim are
twofold.
First, it contends that Plaintiffs’ consumer fraud
claim is barred based on the ICFA’s safe harbor for compliance
with
federal
law.
Second,
Dollar
General
maintains
that
Plaintiffs’ ICFA claim duplicates their express warranty claim,
such that the former is not cognizable.
The Court rejects the
first of these arguments but agrees with the second.
The ICFA does “not impose higher disclosure requirements on
parties
than
regulations.”
those
that
are
sufficient
to
satisfy
federal
Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 941
- 16 -
(7th
Cir.
2001).
Under
the
FDA’s
scheme
for
regulating
cosmetics, if any ingredient (other than the eight described in
21
C.F.R.
§
701.30)
is
given
a
name
by
the
Personal
Care
Products Council (the “PCPC”), that particular name must be used
in the ingredient list.
21 C.F.R. § 701.3(c)(2)(i).
Because
the PCPC has said that the ingredient Dollar General uses in the
Gel
must
be
referred
to
as
“aloe
barbadensis
leaf
extract,”
Dollar General claims that it does not have discretion to take
out the word and that the ICFA’s safe harbor provision immunizes
it
from
liability
for
this
argument
seems
to
representation
on
the
Gel’s
packaging.
This
miss
the
point.
The
federal
framework only requires the use of the term “aloe barbadensis
leaf extract” if indeed the product at issue contains such an
ingredient.
Plaintiffs allege that it does not, and so they
adequately plead around the safe harbor exemption (to the extent
they are required to do so in the first place, given that courts
generally regard the ICFA safe harbor as an affirmative defense.
See, e.g., Keith v. Ferring Pharms., Inc., No. 15 C 10381, 2016
WL 5391224, at *11 (N.D. Ill. Sept. 27, 2016).).
Similar to the
situation in Nichols v. Naturmed, Inc., No. 16 C 7356, 2017 WL
1333146
(N.D.
Ill.
Apr.
11,
2017),
Plaintiffs
claim
that
a
representation on the label is not truthful because the product
- 17 -
lacks the ingredient at issue, and on that basis does not comply
with FDA regulations. Id. at *3.
Plaintiffs’ ICFA claim is
therefore not implausible on the basis of the statute’s safe
harbor provision.
However, the Court agrees that Plaintiffs’ ICFA claim is
merely its breach of express warranty claim clothed in different
garb.
It is settled that the ICFA “should not apply to simple
breach of contract claims.”
U.S.
219,
233
(1995)
Am. Airlines, Inc. v. Wolens, 513
(quoting
Golembiewski
v.
Hallberg
Agency, Inc., 635 N.E.2d 452, 460 (Ill. App. 1994)).
Ins.
Other than
Plaintiffs’ addition of boilerplate language concerning Dollar
General’s
truth”
“malice,
(Am.
motive,
Compl.
¶¶
and
73,
a
78),
reckless
there
is
disregard
no
of
the
“allegation
of
misrepresentation that Plaintiffs allege in Count III that they
do not also identify as an express warranty in Count I.”
Reid
v. Unilever U.S., Inc., 964 F.Supp.2d 893, 913-14 (N.D. Ill.
2013);
see,
Sklodowski
v.
Countrywide
Home
Loans,
Inc.,
832
N.E.2d 189, 196-97 (Ill. App. 2005) (characterizing the same
facts underlying the plaintiff’s contract claim with the added
words “deceptive” and “unfair” did not make the claim actionable
under the ICFA).
By crying consumer fraud based only on the
same
statements
affirmative
that
backstop
their
breach-of-
express-warranty claim, Plaintiffs fail to bring an actionable
- 18 -
ICFA claim.
See, e.g., Shaw v. Hyatt Int’l Corp., 461 F.3d 899,
902 (7th Cir. 2006) (reasoning that customer’s ICFA claim relied
“exclusively on the express promises made by the Hyatt website,
which he accepted by booking on its site, and therefore is based
entirely on that breach of contract”); Duffy v. Ticketreserve,
Inc., 722 F.Supp.2d 977, 992 (N.D. Ill. 2010) (dismissing ICFA
claim because “[w]hat Plaintiffs call consumer fraud is really
an allegation that the Defendant failed to properly fulfill its
contractual obligations”); cf. Pappas v. Pella Corp., 844 N.E.2d
995, 999 (Ill. App. 2006) (allowing an ICFA claim to proceed
because there was “no evidence that the claims in plaintiffs’
Third
Amended
warranty”).
Complaint
Moreover,
are
based
Plaintiffs
on
a
have
simple
not
breach
alleged
of
facts
sufficient to support characterizing this case as one involving
ICFA
consumer
protection
concerns,
such
as
“sharp
practices
designed to mislead consumers about a competitor” or “public
health, safety, or welfare issues.”
1759,
2001
WL
1035719,
at
*8
Simon v. Oltmann, No. 98 C
(N.D.
Ill.
Aug.
31,
2001)
(Leinenweber, J.) (citations omitted).
Therefore, the Court grants Defendant’s Motion in relevant
part
and
dismisses
Plaintiffs’
ICFA
claim
their claim for breach of express warranty.
- 19 -
as
duplicative
of
D.
Carbomer
In one paragraph of the Amended Complaint’s facts section,
Plaintiffs allege that Dollar General violates 21 C.F.R. § 701
by merely listing “carbomer” as the sixth ingredient in the Gel
without specifying the particular type of carbomer.
¶ 35.)
(Am. Compl.
There is no other mention of carbomers, and Plaintiffs
do not allege what carbomers are or that they have any bearing
on aloe vera content.
carbomer
labeling
None of Plaintiffs’ counts allege that
formed
part
of
the
basis
of
Plaintiffs’
bargain, that the Gel was not merchantable because of the way in
which it listed carbomer as an ingredient, or that Plaintiffs
relied
or
the
reasonable
carbomer designation.
that
the
Gel’s
consumer
relies
on
a
more
specific
To the extent Plaintiffs plausibly allege
carbomer
labeling
did
not
comply
with
FDA
regulations – something the Court takes no position on at this
time - neither their warranty nor ICFA claims have anything to
do with such non-compliance.
As a result, the Court finds the
carbomer allegations irrelevant to the balance of the Amended
Complaint.
E.
Dollar
General
Without Prejudice
urges
dismissal
with
prejudice,
reminding
the Court that Plaintiffs took the opportunity to read Dollar
General’s
motion
to
dismiss
their
- 20 -
original
complaint
before
filing the Amended Complaint.
Citing Pugh v. Tribune Co., 521
F.3d 686 (7th Cir. 2008), Dollar General argues that, because it
pointed out deficiencies before Plaintiffs amended, they are not
“entitled to wait and see what the district court said before
making any changes to the complaint.”
Id. at 698.
However, unlike in Pugh, Plaintiffs have only amended once.
Moreover, this opinion marks the Court’s first evaluation of
Plaintiffs’
allegations.
Rather
than
issue
dismissals
with
prejudice, the Court feels that the more prudent alternative is
futility testing any amendments Plaintiffs may propose against
the legal framework and analysis set forth in this opinion.
As
such, Counts II and III are dismissed without prejudice.
IV.
CONCLUSION
For the reasons stated herein, the Court grants in part
Defendant
Dollar
General’s
Complaint [ECF No. 45].
Motion
to
Dismiss
the
Amended
Counts II and III are dismissed without
prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: June 16, 2017
- 21 -
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