Hillen v. Blistex, Inc.
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 7/5/2017. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
No. 17 C 2074
MEMORANDUM OPINION AND ORDER
On behalf of herself and a putative class, plaintiff sues
Blistex, the maker of various lip ointments and balms, alleging
that the company has defrauded consumers and unjustly enriched
itself by packaging one of its products—Medicated Lip Ointment—
in a dispenser that does not effectively dispense all of the
pursuant to Rules 12(b)(1) and 12(b)(6). I grant the motion for
the following reasons.
According to the complaint, whose allegations I take as
Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014), Medicated
Lip Ointment is a product designed “to heal chapped lips” and
“to smooth lip texture before applying color.” Cmplt. at ¶ 11.
Plaintiff’s claims focus on the “uniquely designed” shape of the
flexible tube, much like a miniature tube of toothpaste,” and is
dispensed through the tube’s hollow, opaque, hard plastic tip
whose slanted face “can then be used to spread the Lip Ointment
to the desired area.” Id. at ¶¶ 13-14 and Table 2 (photographs).
Plaintiff alleges that when used as intended, nearly a quarter
consumers unwittingly discard in the mistaken belief that they
have used the tube’s entire contents. Id. at ¶ 18. Moreover,
even consumers who know or suspect there is ointment trapped in
the tip and cut the tube open to remove it are unable to use all
of the remainder because, among other problems, opening the tube
in this fashion “ruins” the ointment by exposing it to air. Id.
uses in foreign markets are superior and do not suffer from the
defect she describes. Id. at ¶ 22. She asserts claims under the
Illinois Consumer Fraud and Deceptive Business Practices Act,
815 ILCS 505/1 et seq. (“ICFA”), the common law of fraud, and
the theory of unjust enrichment.
complaint and theories of liability: that she lacks standing
because she has suffered no injury-in-fact; that her ICFA claim
Blistex’s tube design is not deceptive or misleading as a matter
of law; that the omissions plaintiff alleges do not give rise to
liability absent a fiduciary relationship between the parties,
which plaintiff does not and cannot allege; and that plaintiff’s
unjust enrichment claim fails both because it is based on the
same deficient allegations of deceptive conduct as her fraudbased claims and because no claim for unjust enrichment lies
where a consumer receives “exactly what she paid for,” as is the
Standing to sue is a threshold jurisdictional question, so
I begin there. To establish Article III standing, plaintiff must
injury” that is both traceable to defendant’s conduct and likely
to be redressed by a favorable judicial decision. Remijas v.
Neiman Marcus Group, LLC, 794 F.3d 688, 691-92 (7th Cir. 2015)
(citation omitted). As I have observed in the past, “[t]here is
a subtle but important distinction between (1) whether an injury
gives a litigant standing and (2) whether the same injury gives
rise to a legal claim upon which relief may be granted.” Moyer
v. Michaels Stores, Inc., No. 17 C 561, 2014 WL 3511500, at *3
definitively establish that a right of his has been infringed,
Article III.” Id. (quoting Bond v. Utreras, 585 F.3d 1061, 1073
(7th Cir. 2009) (internal quotation marks and citation omitted)
(alteration in Moyer)).
Defendant’s standing argument likens this case to Eike v.
Seventh Circuit held that consumers of eye drops used to treat
defendants’ drops were “unnecessarily large,” causing consumers
to pay more than necessary for the products. Id. at 317. The
Eike plaintiffs alleged that the defendants’ needlessly large
drops caused them to “run out of medicine before they should,
and have to buy additional bottles at great expense,” increasing
the defendants’ “unfair and unethical profits.” Eike Cmplt., Exh
A to Def.’s Mot., at ¶ 10.1 This is indeed similar to plaintiff’s
allegation that defendant’s tube design caused her to “purchase
similarity in these allegations is superficially striking, the
court’s analysis in Eike reveals a distinct theory of injury
from the one asserted here.
As a matter of public record, I may take judicial notice of the
contents of the pleadings in Eike. U.S. v. Wood, 925 F.2d 1580,
1582 (7th Cir. 1991).
In Eike, the court considered and rejected the plaintiffs’
argument that “the price of the eye drops is excessive because a
package, could be sold at a lower price yet still cover the
producers’ costs, and therefore the only benefit of the larger
explained that this theory “assumes that profits would decline
if the defendants switched to selling the smaller, cheaper-toproduce eye drops. But that’s far from certain; lower prices
might result in greater sales and as a result higher rather than
lower profits.” Id. at 316-317. Noting that the complaint lacked
court construed the plaintiffs’ claim as resting solely on their
“dissatisfaction with a product made by multiple firms, or with
You cannot sue a company and argue only—“it could do
better by us”—which is all they are arguing. In fact,
such a suit fails at the threshold, because there is
no standing to sue. One cannot bring a suit in federal
court without pleading that one has been injured in
some way (physically, financially—whatever) by the
defendant. That’s what’s required for standing. The
fact that a seller does not sell the product that you
want, or at the price you’d like to pay, is not an
disappointment—which is all we have here, the class
having failed to allege “an invasion of a legally
Id. at 318.
Unlike the plaintiffs in Eike, plaintiff does not argue
production costs and pass its savings on to consumers through a
lower sale price. In fact, her complaint is not that the price
of Medicated Lip Ointment is too high, but rather that it is
“artificially low because the amount of Lip Ointment listed on
the label includes the portion of unusable Lip Ointment.” Cmplt.
at ¶ 30. Accordingly, the injury she asserts results not from
more of the product—and thus to spend more of her money—than she
would if another tube design were used. That financial injury is
distinct from the one the court found wanting in Eike and is
sufficient to establish standing. See In re Aqua Dots Products
(allegation that consumers paid more for product than they would
Where plaintiff’s claims fall short, however, is in their
allege “(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
plaintiff (5) proximately caused by the deception.” Avery v.
State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 850 (Ill. 2005)
(citation omitted). Common law fraud requires, in addition, that
plaintiff allege that she relied on defendant’s deception, and
that defendant acted with scienter. Ibarrola v. Kind, LLC, 83 F.
Supp. 3d 751, 756 (N.D. Ill. 2015).
Plaintiff’s fraud claims fail for at least the reason that
does not contend that the tubes of Medicated Lip Ointment she
purchased contained less of the product than the net weight
stated on the label. Nor does she claim to have been surprised
packaging. The alleged deception, in plaintiff’s view, is that
the dispenser’s hard plastic tip “appears to be solid, even
though it is hollow.” Cmplt. at ¶ 17. See also id. at ¶¶ 13, 15.
This allegation defies common sense. If the tip of the tube were
solid, how would the product travel through it to reach the
user’s lips? No reasonable consumer would expect a completely
Even, however, if plaintiff’s allegations about the solid
tip are construed as alleging a deceptively cavernous tip, they
come no closer to stating an ICFA or a common law fraud claim.
Plaintiff tacitly concedes that consumers expect some amount of
product to remain in the tube. See Resp. at 2, 3, 7, 10, and 11
extract every bit of common products such as “toothpaste, peanut
butter, shampoo, and many other products” from their packaging.
Hawkins v. UGI Corp., No. CV 14-08461, 2016 WL 2595990, at *3
(C.D. Cal. May 4, 2016). Put simply, plaintiff’s disappointment
in defendant’s tube design does not establish deception, nor
does it transform defendant’s accurate labeling of the product’s
net weight into fraud by omission. See Ebner v. Fresh, Inc., 838
F.3d 958, 966 (9th Cir. 2016) (no deception where net weight of
lip balm in dispensing tube was accurately stated on label, even
though a “plastic stop device” prevented 25% of the product from
“advancing past the tube opening”); Hawkins, 2016 WL 2595990, at
*3 (C.D. Cal. May 4, 2016) (dismissing claims alleging propane
cylinders were deceptively labeled because the “usable quantity”
of propane in the cylinders was less than the stated fifteen
their facts are unpersuasive. For example, plaintiff argues that
“cosmetic” rather than medicinal, and because the shape of the
remaining product stuck in the tube, while the dispenser here
allegedly “conceals the trapped product, preventing consumers
from discovering it.” Resp. at 12; Cmplt. at ¶ 17. But plaintiff
cosmetic products and medicinal ones, and, as noted above, she
concedes that reasonable consumers expect some product to remain
in the dispenser and could extract the remains by cutting open
the tube. Accordingly, just as in Ebner, consumers of Medicated
Lip Ointment can “decide whether it [is] worth the effort to
extract any remaining product with a finger or a small tool.”
838 F.3d at 966. That plaintiff views that solution as “messy,”
defendant’s tube design unfair or deceptive.
In short, like the
courts in Ebner and Hawkins, I conclude that plaintiff has not
deceptive or misleading.
None of plaintiff’s cited cases, which she cites for the
Verwaltungsgesellschaft MBH v. Arbor, 692 N.E. 2d 812, 817 (Ill.
App. Ct. 1998) (affirming dismissal of fraudulent concealment
disclose truth); St. Joseph Hospital v. Corbetta Constr. Co.,
Inc., 316 N.E. 2d 51, 70 (Ill. App. 1974) (affirming judgment
knowledge that the product was “utterly unfit for use in such an
institution”); In re McCormick & Co., Inc. Pepper Prod. Mktg.
and Sales Practice Litig., No. MC 15-8825, 2016 WL 6078250 at *6
containers with empty space violated Lanham Act). These cases
simply do not support plaintiff’s claims on the facts alleged.
eviscerates not only her fraud claims but her unjust enrichment
claim as well. See Ibarrola, 83 F. Supp. 3d at 760-61 (“Absent a
enrichment must fail”) (citing Oshana v. Coca–Cola Co., 472 F.3d
506, 515 (7th Cir. 2006), and Bober v. Glaxo Wellcome PLC, 246
F.3d 934, 943 (7th Cir. 2001)). At all events, I agree with
defendant that because it sells “all of the ointment it claims
to be,” it was not unjustly enriched by plaintiff’s purchases of
9760035, at *8 (C.D. Cal Sept. 11, 2013) (“this is not a case
where the manufacturer short weights the amount of product, and
product stated, and whatever difficulty there is in extracting
100 percent of the product, it does not redound to the benefit
of the manufacturer.”).
plaintiff’s complaint under Fed. R. 12(b)(6), I need not reach
defendant’s remaining arguments. The complaint is dismissed in
Elaine E. Bucklo
United States District Judge
Dated: July 5, 2017
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