Cowen et al v. Lenny & Larry's, Inc.

Filing 50

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 10/12/2017: Motion to dismiss 35 is granted in part and denied in part. A second amended complaint is due by 11/3/2017. Defendant's answer is due by 11/30/2017. A joint status report is due by 12/1/2017. Status hearing set for 12/7/2017 at 9:00 a.m. Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LORI COWEN, ROCHELLE IBARROLA, )
and AVA ADAMES, individually and on )
behalf of all others similarly situated ,
)
)
Plaintiffs,
)
)
v.
)
)
LENNY & LARRY’S, INC.,
)
)
Defendant.
)

No. 17 CV 1530
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Plaintiffs Lori Cowen, Rochelle Ibarrola, and Ava Adames filed a seven-count amended
complaint against defendant Lenny & Larry’s based on plaintiffs’ purchases of several of
defendant’s products, the Complete Cookie. Plaintiffs’ amended complaint alleges the
following: violation of several states’ consumer protection statutes (Count I); violation of the
Illinois Consumer Fraud Act (“ICFA”), 815 ILCS 505/1, et seq., (Count II); violation of the
Pennsylvania Consumer Protection Law (“PCPL”), 73 Pa. Stat. § 201, et seq. (Count III);1
breach of express warranty (Count IV); breach of implied warranty (Count V); negligent
misrepresentation (Count VI); intentional misrepresentation (Count VII); and unjust enrichment
(Count VIII). Defendant has moved to dismiss the amended complaint under Rules 12(b)(1) and
12(b)(6), and to strike claims in the amended complaint. For the reasons discussed below,
defendant’s motion is granted in part and denied in part.

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Count I is pled on behalf of a putative consumer fraud multi-state class. Counts II and III are pled in the
alternative to Count I, and on behalf of Illinois and Pennsylvania subclasses. All other counts are pled on behalf of a
national class and the subclasses.

BACKGROUND2
Defendant manufactures and sells the Complete Cookie online and in retail outlets,
allegedly targeting the “protein and health foods marketplace.” The Complete Cookie is sold in
two sizes and eleven different varieties. The one product label plaintiffs provided to the court
describes the Snickerdoodle variety of the Complete Cookie as “baked nutrition” with sixteen
grams of protein and eight grams of fiber. Additionally, the label states that the Snickerdoodle
Complete Cookie is vegan, contains no eggs, dairy, or soy, and is non-gmo. Plaintiff Lori
Cowen is a Michigan resident who allegedly purchased the chocolate chip, double chocolate
chip, and birthday cake varieties of the Complete Cookie “numerous times over the past few
years” in her home state. Plaintiff Rochelle Ibarrola is an Illinois resident who allegedly
purchased the snickerdoodle, chocolate chip, and peanut butter varieties of the Complete Cookie
“numerous times” in her home state. Plaintiff Ava Adames is a Pennsylvania resident who
allegedly purchased the chocolate chip, snickerdoodle, and birthday cake varieties of the
Complete Cookie “numerous times” in her home state and from Amazon.com.
Plaintiffs allege that the Complete Cookies’ labels are false and deceptive for a number of
reasons. Plaintiffs first allege that the labels overstate the Complete Cookies’ protein content.
Next, plaintiffs allege that the labels understate the content of other nutrients, specifically
calories, carbohydrates, fats, and sugars. Additionally, plaintiffs allege that the labels
miscalculate, and therefore overstate, the percent daily value of protein in the Complete Cookie.
According to plaintiffs, these misrepresentations violate the Food, Drug, and Cosmetic Act
(AFDCA@), 21 U.S.C. ' 301, et seq., and similar state laws. Plaintiffs bring their claims on behalf
of five classes: (1) a national class of all people who purchased the Complete Cookie in the

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The following facts are taken from plaintiff’s complaint and are assumed to be true for purposes of this motion to
dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

United States; (2) a consumer fraud multi-state class of all people who purchased the Complete
Cookie in California, Illinois, Missouri, New Jersey, and New York; (3) a subclass of people
who purchased the Complete Cookie in Illinois; (4) a subclass of people who purchased the
Complete Cookie in Michigan; and (5) a subclass of people who purchased the Complete Cookie
in Pennsylvania.
Defendant moved to dismiss the amended complaint on a number of grounds. First,
defendant argues that plaintiffs lack standing for any variety of the Complete Cookie that they
did not purchase. Second, defendants assert that plaintiffs cannot maintain a national or multistate class, and those claims should be denied or stricken. Finally, defendants argue that
plaintiffs’ claims fail to satisfy the particularity requirements of Fed. R. Civ. P. 9(b).
DISCUSSION
I.

Standard of Review

A motion brought under Rule 12(b)(6) challenges the sufficiency of the complaint.
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).
Under Rule 8(a)(2), a complaint must include a short and plain statement of the claim showing
that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). Though short and plain, the pleading
must describe the claim in sufficient detail to give the defendant fair notice of what the claim is
and the grounds on which the claim rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). The allegations must plausibly suggest that the plaintiff has a right to relief, raising the
possibility above the Aspeculative level.@ Id.
This standard demands that a complaint contain sufficient factual matter to state a claim
that is plausible on its face and allege more than legal conclusions or A[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.@ Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009). AA 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.@ Id. When ruling on a Rule 12(b)(6) motion to dismiss, the court accepts
the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the
plaintiff's favor. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th
Cir. 2004).
Under Rule 12(b)(1), a court must dismiss any action for which it lacks subject matter
jurisdiction. As with a motion to dismiss pursuant to Rule 12(b)(6), the court accepts all wellpleaded factual allegations as true and construes all reasonable inferences in plaintiff=s favor.
Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012); see also Mutter v. Madigan, 2014 WL
562017, at *2 (N.D. Ill. Feb. 13, 2014). However, plaintiff bears the burden of establishing that
the elements necessary for jurisdiction, including standing, have been met. Scanlan, 669 F.3d at
841—42. AIn ruling on a 12(b)(1) motion, the court may look outside of the complaint=s
allegations and consider whatever evidence has been submitted on the issue of jurisdiction.@
Mutter, 2014 WL 562017, at *2; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).
Under Rule 9(b), when “alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This requirement is met
when the complaint alleges “the who, what, when, where, and how: the first paragraph of a
newspaper story.” DiLeo v. Earnst & Young, 901 F.2d 624, 627 (7th Cir. 1990). A complaint
that provides a “general outline of the fraud scheme” sufficient to “reasonably notify the
defendants of their purported role” in the fraud satisfies Rule 9(b). Midwest Grinding Co. v.
Spitz, 976 F.2d 1016, 1020 (7th Cir. 1992). Rule 9(b)’s specificity requirements are less

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stringent where the details of the fraud “are within the defendant’s exclusive knowledge.”
Jepson, Inc. v. Makita Corp., 34 F.3d 1321, 1328 (7th Cir. 1994).
II.

Analysis
A.

Standing

Defendant argues that plaintiffs lack Article III standing to bring claims for varieties of
the Complete Cookie they did not purchase. According to plaintiffs, this argument is premature
prior to the class certification stage, and plaintiffs may bring claims for products that are
substantially similar to those they did purchase. The court disagrees. Both parties acknowledge
that “[t]he law on whether an individual has standing to represent putative class members for
products he or she did not purchase is unsettled across the country.” Kisting v. Gregg
Appliances, 2016 WL 5875007, at *3 (E.D. Wis. Oct. 7, 2016). Indeed, the law in this district is
unsettled with regard to this issue. Id. at *3—4 (citing cases that adopt and reject the substantial
similarity test). Each party cites the cases that support their position and, having reviewed those
cases and the underlying rationales supporting both positions, the court declines to adopt the
substantial similarity test.
To establish Article III standing, plaintiffs must establish that they have: “(1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that it
is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (citation omitted). Plaintiffs cannot satisfy the first prong with respect to
products they did not purchase, and they do not argue that they can. Instead, they urge the court
to find that they have standing due to the substantial similarity of the Complete Cookie varieties,
relying heavily on Wagner v. Gen. Nutrition Corp., 2017 WL 3070772 (N.D. Ill. July 19, 2017).
In Wagner, however, the court did not engage in an Article III analysis because the parties

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agreed that the plaintiff’s claims should be analyzed under the substantial similarity test. See id.
There is no such agreement in the instant case. Although it has not spoken directly on the
substantial similarity test, the Seventh Circuit’s position that plaintiffs cannot “piggy-back on the
injuries of the unnamed class members” in order to acquire standing “through the back door of a
class action” is clear. Payton v. County of Kane, 308 F.3d 673, 682 (7th Cir. 2002) (internal
quotations and citations omitted). Consequently, this court is convinced that “a named plaintiff
cannot acquire standing to sue by bringing his action on behalf of others who suffered injury
which would have afforded them standing had they been named plaintiffs,” because “a person
cannot predicate standing on injury which he does not share.” Id. Plaintiffs’ claims as to the
products they did not purchase are therefore dismissed.
B.

The Multi-State and National Classes

Defendant also argues that plaintiffs’ multi-state and national class claims should be
dismissed or stricken because the amended complaint does not, and plaintiffs cannot, satisfy
Rule 23 class elements such as typicality and predominance. This is so, according to defendant,
because Illinois choice-of-law principles require the application of the law of the state in which
the injured party resides or purchased the Complete Cookie, and applying conflicting laws of
various states to plaintiffs’ claims will be unmanageable on a multi-state or national basis.
Defendant points to a number of material conflicts between the laws of the states that comprise
plaintiffs’ proposed multi-state class to support its position. Plaintiffs contend that differences in
state laws do not preclude class certification and, much like defendant’s standing argument, this
argument is premature at the motion to dismiss stage.3 Plaintiffs note that Achoice-of-law issues

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Plaintiffs also argue that defendant cannot challenge the multi-state and national class claims on standing grounds
because plaintiffs have standing to pursue claims in their home states, and their ability to represent individuals in
other states is a class certification issue. Indeed, this court has recognized that standing issues may be postponed
until after class certification. See In re Aftermarket Filters Antitrust Litig., 2009 WL 3754041 (N.D. Ill. Nov. 5,

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in nationwide class actions are rarely so uncomplicated that one can delineate clear winning and
losing arguments at an early stage in the litigation.@ Mirfasihi v. Fleet Mortg. Corp., 450 F.3d
745, 750 (7th Cir.2006). Plaintiffs misinterpret Mirfasihi, however, because A[n]owhere in the
case does the Seventh Circuit address the timing of choice-of-law determinations relative to
motions to dismiss.@ Lantz v. Am. Honda Motor Co., Inc., 2007 WL 1424614 (N.D. Ill. 2007)
(citing Mirfasihi, 450 F.3d at 750).
In fact, “courts may strike class allegations at the pleading stage when they are facially
and inherently deficient,” particularly when the dispute is not factual and discovery is
unnecessary to resolve it. Cholly v. Uptain Group, Inc., 2015 WL 9315557, at *3 (N.D. Ill. Dec.
22, 2015). Rule 23(c)(1)(A) requires the court to determine whether to certify an action as a
class action A[a]t an early practicable time.@ Rule 23(d)(1)(D) provides: AIn conducting an action
under this Rule, the court may issue orders that: . . . require that the pleadings be amended to
eliminate allegations about representation of absent persons and that the action proceed
accordingly . . . .@ District courts, both within this district and others, have held that a motion to
strike class allegations, made pursuant to these provisions, is an appropriate devise to determine
whether the case will proceed as a class action. Wright v. Family Dollar, Inc., 2010 WL
4962838 (N.D. Ill. Nov. 30, 2010).
As an initial matter, federal courts sitting in Illinois follow Illinois= choice-of-law rule in
determining which state=s law governs a plaintiff=s state law claims. Illinois has adopted the
most significant relationship test for deciding among conflicting laws. Ingersoll v. Klein, 262
N.E.2d 593, 595 (Ill. 1970). Under this test, the law of the place of the injury controls unless
Illinois has a more significant relationship with the occurrence and with the parties. Id. When

2009). Because the court resolves this issue on class certification grounds, it need not address plaintiffs’ standing
argument.

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applying the most significant relationship test, the court considers four factors: (1) where the
injury occurred; (2) where the injury-causing conduct occurred; (3) the domicile of the parties;
and (4) where the relationship of the parties is centered. Id. at 596. The court must look at the
contacts of each jurisdiction under these factors and then evaluate those contacts in light of the
policies underlying the laws of those jurisdictions.
In the instant case, two of the three plaintiffs allege that they reside in states other than
Illinois and that they purchased the Complete Cookie in their home states. With the exception of
the one plaintiff who resides in Illinois, the complaint alleges no other facts tying any of
defendant’s alleged misconduct or the plaintiffs= alleged injuries to Illinois. Thus, under Illinois
choice of law, the laws of the states where each of the plaintiffs reside (whether they be named
plaintiffs or class members) govern the claims alleged in the complaint.
Defendant argues persuasively that applying the warranty, unjust enrichment, and
misrepresentation laws of fifty different states, or even the five states that comprise the multistate class, is unmanageable on a class-wide basis because those states’ laws conflict in material
ways; that is, the “essential requirements to establish a claim and the types of relief or remedies
available” vary significantly. In re Fluidmaster, Inc., Water Connector Components Products
Liab. Litig., 2017 WL 1196990, at *39 (N.D. Ill. Mar. 31, 2017). “Because these claims must be
adjudicated under the law of so many jurisdictions, a single nationwide class is not manageable.”
In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir. 2002). Similarly, plaintiffs’
multi-state class “cannot satisfy the commonality and superiority requirements of Rule 23(a) and
23(b)(3)” because “[n]o class action is proper unless all litigants are governed by the same legal
rules.” Id. at 1015.

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Plaintiffs offer little response to defendant’s in-depth analysis of the many ways in which
the laws of the states that comprise the proposed classes conflict. Instead, plaintiffs urge the
court to ignore conflicts in state law until plaintiffs move for class certification, as the court did
in Rysewyk v. Sears Holdings Corp., 2015 WL 9259886 (N.D. Ill. Dec. 18, 2015). That
decision, however, is inapposite. In Rysewyk, Judge Shah noted that the defendant, in moving to
strike class allegations, carried the burden of demonstrating “that specific variations of laws
between specific states preclude class treatment,” and that the defendant “did not make such a
showing.” Id. at *8. In the instant case, however, defendant used five pages of its motion, in
which it cited dozens of cases, to demonstrate “specific impediments” to class certification in the
way of conflicting state laws.4 Defendant’s showing is a far cry from Rysewyk, where the
defendants failed “to explain in any detail…how the relevant laws of the different states differ in
material ways.” Id. at *7. Instead, defendant’s analysis “make[s] it apparent at this stage that
individual questions will predominate over common ones” rather than “repeat[ing] in generic
ways that the laws of different states are different.” Id.
Accordingly, the court grants defendant’s motion on these grounds and strikes all claims
pled on behalf of the multi-state and national classes.

C.

Rule 9(b)

Defendant’s final argument is that the complaint should be dismissed in its entirety for
failure to comply with Rule 9(b). According to defendant, the complaint is deficient for
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Two examples are illustrative. First, the statutes of limitations vary widely in the states that comprise the proposed
multi-state class: the consumer protection statutes in California, Illinois, and New York all have a three-year statute
of limitations; Missouri’s consumer protection statute has a five-year statute of limitations; and New Jersey’s
consumer protection statute has a six-year statute of limitations. See Doc. 35 at 13-14. Second, notice requirements
vary significantly. The consumer protection statutes in California and Missouri require notice before a suit can be
initiated, but the consumer protection statutes in Illinois, New York, and New Jersey have no such requirement. Id.

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supplying the court with the label of only one variation of the Complete Cookie (Snickerdoodle)
and not explicitly alleging that the labels for the other variations are the same or sufficiently
similar. Additionally, defendant faults plaintiffs for failing to allege which size product they
purchased (some variations of the Complete Cookie come in two sizes) and exactly when. The
court declines to adopt defendant’s hyper-technical interpretation of Rule 9(b). As explained
above, Rule 9(b)’s heightened pleading standards are met when the complaint alleges “the who,
what, when, where, and how,” DiLeo, 901 F.2d at 627, and provides a “general outline of the
fraud scheme” sufficient to “reasonably notify the defendants of their purported role” in the
fraud. Midwest Grinding Co., 976 F.2d at 1020. Additionally, these specificity requirements are
less stringent where the details of the fraud “are within the defendant’s exclusive knowledge.”
Jepson, Inc., 34 F.3d at 1328.
Although the complaint could be more specific in some respects (such as when plaintiffs
purchased the products), plaintiffs have minimally satisfied Rule 9(b) by alleging the following:
(1) defendant (who); (2) made fraudulent representations (what); (3) on their website and the
packaging of the Complete Cookies, which were purchased in plaintiffs’ home states (where and
how); (4) during the class period, or over the past few years (when). Because the complaint
provides defendant with an outline of the alleged scheme that is sufficient to notify defendant of
the alleged fraud, defendant’s motion is denied on these grounds.

CONCLUSION
For the reasons discussed above, the court grants in part and denies in part defendant’s
motion to dismiss and to strike class claims (doc. 35). Count I is dismissed and all claims pled

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on behalf of the national class and multi-state subclass are stricken. Counts II-VIII remain, but
with respect only to the Illinois, Michigan, and Pennsylvania classes. Plaintiff is directed to file
a second amended complaint conforming to this opinion on or before November 3, 2017.
Defendant is ordered to answer on or before November 30, 2017. The parties are directed to file
a joint status report using this court’s form on or before December 1, 2017. This case is set for a
report on status on December 7, 2017, at 9:00 a.m.
ENTER:

October 12, 2017

__________________________________________
________
Robert W. Gettleman
United States District Judge

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