Killeen v. McDonald's Corporation et al

Filing 46

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 4/6/2018. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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Kelly Killeen
Plaintiff,

v.

McDonald’s Corporation and
Salabad, LLC,
Defendants.

No. 17 CV 874

Memorandum Opinion and Order
In this putative class action, plaintiff sues McDonald’s
Corporation
violated

and

the

one

of

Illinois

its

franchisees

Consumer

Fraud

claiming

and

that

Deceptive

they

Business

Practices Act, 815 ISCS 505/2 (“ICFA”), and unlawfully enriched
themselves,

by

deceptively

advertising

and

marketing

certain

“Extra Value Meals” for sale in their restaurants. Defendants
have moved to dismiss the complaint on various grounds, but I
confine my analysis to a single, dispositive issue.
According

to

the

complaint,

defendants

market

and

sell

Extra Value Meals that bundle together several menu items that
can

also

“Sausage
sausage

be

purchased

Burrito

Extra

burritos,

hash

a

la

carte.

Value
browns,

Meal”
and

For

example,

allegedly
a

medium

defendants’

contains
coffee,

two
which

consumers

can

also

order

individually.

According

to

the

complaint, defendants marketed Extra Value Meals as “a value,”
meaning that the marketing suggested that the cost of an Extra
Value Meals was less than the aggregate cost of its individual
components purchased separately, when that was not always the
case.

For

example,

plaintiff

claims

that

after

seeing

defendants’ advertising, she purchased a Sausage Burrito Extra
Value Meal at a Chicago McDonald’s for $5.08 when she would have
paid only $4.97 had she ordered the individual items in the
Extra Value Meal a la carte. Plaintiff claims that defendants’
advertising and marketing was intended to dupe consumers (two
classes of whom she seeks to represent) into paying more for
items they could have bought at a lower cost.
Plaintiff’s

theory

has

superficial

appeal:

common

experience favors her assertion that consumers expect to pay
less for items bundled together and billed as a “value” package
than they would pay if they purchased the items separately. But
even assuming defendants’ marketing of the Extra Value Meal had
a tendency to mislead consumers in this respect, Illinois law is
clear that where other information is available to dispel that
tendency, there is no possibility for deception. Bober v. Glaxo
Wellcome

PLC,

(pharmaceutical
substitution

of

246

F.3d

934,

manufacturer’s
two

products
2

939-40

(7th

statements
containing

the

Cir.

2001)

discouraging
same

active

ingredient and stating that they were “different medications”
did not violate ICFA because “all of the information available”
indicated

that

ingredient);

the

Fuchs

medications

v.

Menard,

contained

Inc.,

No.

the

same

17-cv-1752,

active
2018

WL

4339821, at *5 (N.D. Ill. Sept. 29, 2017) (consumers’ “direct
and

complete

accuracy

of

access
the

to

the

information

defendant’s

needed”

to

determine

statements

defeats

ICFA

claim);

Tudor v. Jewel Food Stores, Inc., 681 N.E. 2d 6, 8 (Ill. App.
Ct. 1997) (no ICFA claim against grocery store that charged a
higher price at the register than the price stated in ads and on
the shelf because the receipt accurately reflected the price
charged); Saunders v. Michigan Ave. Nat. Bank, 662 N.E. 2d 602,
608

(Ill.

App.

Ct.

1996)

(no

ICFA

claim

against

bank

for

allegedly “hiding” an overdraft fee that was disclosed in a
pamphlet the plaintiff received).
Plaintiff does not claim that the prices defendants charged
for their menu items were unavailable to her at the time she
made

her

restaurants
typically

purchase.
such

as

displayed

Indeed,

anyone

familiar

McDonald’s

surely

on

located

menus

knows
near

with
that
the

fast-food
prices

are

registers.

Understandably, plaintiff may not have wished to take the time
to compare prices, but there is no question that doing so would
have dispelled the deception on which her claims are based.
Accordingly, this is not a case in which consumers would have to
3

consult an ingredients list or other fine print to determine
whether

prominent

connection

with

images

its

or

product

labels

a

accurately

defendant

reflect

the

uses

in

product’s

true nature or quality. Cf. Williams v. Gerber Products Co., 552
F.3d 934 (9th Cir. 2008) (words “fruit juice” alongside images
of specific fruits on packaging of a toddler food product could
constitute false advertising, even though ingredients list in
small print on side of box disclosed corn syrup and sugar as the
most

prominent

ingredients,

with

no

juice

from

the

depicted

fruits); Korte v. Pinnacle Foods Group, LLC., No. (S.D. Ill.
Mar. 27, 2018) (defendant’s labelling of its salad dressing as
“E.V.O.O.

Dressing—Made

With

Extra

Virgin

Olive

Oil,”

could

mislead consumers about the product’s quality, despite presence
of and ingredients list that included other, inferior oils).
Here,

a

straightforward,

information

available

unequivocally

dispel

price-to-price

at

any

the

point

misleading

comparison
of

based

purchase

inference

that

on

would

could

be

drawn from the name “Extra Value Meal.” See In re 100% Grated
Parmesan Cheese Marketing and Sales Practices Litigation, 275 F.
Supp.

3d

statements

910,
that

922-23

(N.D.

Ill.

are

ambiguous

in

2017)

(no

isolation

ICFA
are

claim

where

clarified

in

context by other available information).
Plaintiff argues that Tudor, Trujillo, and a third case
defendant cites, Batson v. Live Nation Entertainment, Inc., 746
4

F.3d

827

parking

(7th
fee

Cir.

2014)

included

distinguishable

on

(no

in

their

ICFA

price
facts.

claim

of
But

based

concert
she

offers

on

“hidden”

ticket),
no

are

reasoned

analysis for why the factual distinctions she observes warrant a
different outcome here. Kraft, Inc. v. F.T.C., 970 F.2d 311 (7th
Cir.

1992),

challenged

an

which
order

did
by

not

involve

ICFA

the

Federal

Trade

claims

but

instead

Commission

finding

violations of the FTC Act, likewise does not support her cause.
For

the

foregoing

reasons,

plaintiff’s

complaint

dismissed.
ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: April 6, 2018

5

is