Panitch et al v. The Quaker Oats Company
MOTION by Defendant The Quaker Oats Company for judgment (Ives, Erik)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
OREN PANITCH, GINA DAVIS, AND
MARGIE RIZIKA, on behalf of themselves
and all others similarly situated,
THE QUAKER OATS COMPANY,
) Civil Action No. 17-cv-03460
) Honorable Judge Charles R. Norgle, Sr.
) Honorable Magistrate Sidney I. Schenkier
DEFENDANT QUAKER OATS COMPANY’S
MOTION FOR ENTRY OF JUDGMENT
Pursuant to Federal Rule of Civil Procedure 58(d), Defendant Quaker Oats Co. (“Quaker”)
hereby requests that the Court direct the Clerk to enter judgment in this case. The Court has already
closed this case, ECF No. 26, but has not formally entered judgment in favor of Quaker. See Fed.
R. Civ. P. 58(a).
This case is one of a number of cases asserting identical claims based on Quaker’s use of
terms like “natural” and “heart healthy” on its product labeling. Those actions have all been transferred to this district. Five cases were consolidated into a single action and two others, including
this action, were stayed pending resolution of the consolidated action because they are substantially identical to the consolidated action. The Court granted Quaker’s motion to dismiss the consolidated action with prejudice because the plaintiffs’ claims were preempted and failed as a matter
of law. As other courts found in ordering transfer to this district, and as this Court found in its
order on relatedness, this action is substantially identical to the now-dismissed consolidated action.
Accordingly, one week after dismissing the consolidated action, the Court entered minute orders
closing this case and the other stayed case. Quaker now requests that the Court complete the
clerical task of entering judgment in this case.
Between April 29, 2016, and May 3, 2016, five plaintiffs filed nearly identical complaints
proposing nationwide classes based on the alleged presence of trace amounts of glyphosate in
Quaker Oats products. Those actions were transferred to this Court and consolidated in Gibson v.
Quaker Oats Co., No. 16-cv-4853. See Daly v. Quaker Oats Co., No. 16-cv-7383, ECF Nos. 1,
12 (N.D. Ill.) (Daly complaint and order granting transfer); Cooper v. Quaker Oats Co., No 16-cv7217, ECF Nos. 1, 16 (N.D. Ill.) (Cooper complaint and order granting transfer); Jaffee v. Quaker
Oats Co., No 16-cv-7134, ECF Nos. 1, 12 (N.D. Ill.) (Jaffee complaint and order granting transfer);
Gibson, No. 16-cv-4853, ECF No. 1 (N.D. Ill.) (Gibson complaint); see also Wheeler v. Quaker
Oats Co., No 16-cv-5776, ECF No. 1, 19 (N.D. Ill.) (Wheeler complaint and voluntary dismissal).
Another plaintiff filed a substantially identical suit in Washington state court—Quaker removed
the case to federal court and successfully moved to transfer. Kinn v. Quaker Oats Co., No 16-cv1262, ECF Nos. 1-1, 10, 22 (W.D. Wash.) (Kinn complaint, mot. to transfer and order granting
Plaintiffs filed this action as the seventh lawsuit asserting claims identical to those first
raised months earlier. Panitch v. Quaker Oats Co., No. 16-cv-4586, ECF No. 1 (E.D. Pa. Aug.
22, 2016) (“Panitch Compl.”). Because the claims alleged in this case are “substantially identical
to the consolidated amended complaint in Gibson,” id., ECF No. 21, at 7 (opinion), that court
ordered the case transferred to this district, id., ECF No. 22 at 1 (order).
After this case was transferred, Quaker moved for a finding of relatedness and to stay proceedings pending resolution of Quaker’s motion to dismiss in Gibson. Quaker argued that this
action satisfied all of the conditions required for a finding of relatedness under Rule 40.4(b) because this case and the consolidated cases were “pending in this Court,” the factual and legal overlap described above demonstrated that “the handling of [these] cases” as related was “likely to
result in a substantial saving of judicial time and effort,” and the cases were “susceptible of disposition in a single proceeding.” Gibson, No. 16-cv-4853, ECF No. 50 at 2-3 (N.D. Ill. May 12,
2017) (quoting LCvR. 40.4(b)(3)). The Court granted the motion, relating the cases and staying
proceedings in this case pending the Court’s consideration of the Quaker’s motion to dismiss in
the consolidated Gibson action. Gibson, No. 16-cv-4853, ECF No. 52 (N.D. Ill. May 18, 2017).1
As this Court acknowledged in its ruling on relatedness, this case is materially identical to
Gibson. Plaintiffs assert the same purported injury resulting from the same labels on Quaker’s
products as the Gibson plaintiffs. See Mem. Supp. Mot. to Transfer or Stay, Panitch, No. 16-cv4586, ECF No. 5, at 3-4 (E.D. Pa. Oct. 11, 2016) (describing similarities in complaints); Compare
Panitch Compl., with Gibson, No. 16-cv-4853, ECF No. 28 (N.D. Ill. Aug. 11, 2016) (“Consol.
Compl.”). Both Plaintiffs proposed nationwide class certification. Mot. to Transfer or Stay, Panitch, No. 16-cv-4586, ECF No. 5 (E.D. Pa. Oct. 11, 2016). The complaint in this case is, in many
places, copied word-for-word from the complaints of the cases consolidated in Gibson. Mem.
Supp. Mot. to Transfer or Stay, Panitch, No. 16-cv-4586, ECF No. 5 at 1 (E.D. Pa. Oct. 11, 2016).
Like the plaintiffs in the consolidated action, Plaintiffs here allege that: (1) the same products—
Quaker Oats Old-Fashioned, Quaker Oats Quick 1-Minute, and Quaker Steel Cut Oats; (2) contain
the same labels, including the term “natural”; (3) which purportedly were “likely to deceive” con-
Quaker also moved for reassignment and a stay in Kinn, which the Court granted. See Gibson, No. 16-cv-4853,
ECF Nos. 39, 41 (N.D. Ill. Nov. 30, Dec. 1, 2016) (mot. for reassignment under Rule 40.4 and stay, order granting
sumers; (4) because “quantitative testing” purportedly “revealed that Quaker Oats contain glyphosate.” Compare Panitch Compl. ¶¶ 1, 3, 6, 73, 99, 151, 173, 193, with Consol. Compl. ¶¶ 4, 5, 72,
85. Plaintiffs assert that Quaker is liable under the same theories asserted in the Gibson complaint,
including unjust enrichment, breach of warranty, negligent misrepresentation, and violation of
state consumer protection laws. Compare Panitch Compl. ¶¶ 120-207, with Consol. Compl.
¶¶ 140-254. Plaintiffs here seek the same relief—injunctive relief, restitution, disgorgement, damages, and attorneys’ fees—as the Gibson plaintiffs. Compare Panitch Compl. 41, with Consol.
On August 14, 2017, the Court dismissed the consolidated complaint in Gibson with prejudice. Gibson, No. 16-cv-4853, ECF Nos. 58, 59, 60 (N.D. Ill. Aug. 14, 2017) (order granting
Mot. to Dismiss, Mem. Op. on Mot. to Dismiss, and Judgment). The Court held that the consolidated plaintiffs lacked standing to assert claims based on products that they did not purchase. It
further held that the remaining claims were preempted by the comprehensive federal regulatory
scheme established by the Food, Drug, and Cosmetic Act, and by the actions of the Food and Drug
Administration in defining use of the term “natural.” The Court also held that, because preemption
by Congress meant that “Plaintiffs cannot challenge Quaker Oats labeling under state or common
law,” dismissal with prejudice was warranted because the Plaintiffs could not cure the fatal defects
in their complaint. Gibson, No. 16-cv-4853, ECF No. 59 at 8 (N.D. Ill. Aug. 14, 2017) (Mem. Op.
on Mot. to Dismiss). Plaintiffs’ claims also failed for other reasons, including that Plaintiffs’
claims were implausible as a matter of law. See Mot. to Dismiss, Gibson, No. 16-cv-4853, ECF
No. 35 at 3 (N.D. Ill. Sept. 26, 2016) (“Gibson Mot. to Dismiss”).
Eight days later, the Court closed this case (and the related Kinn action), referencing the
Court’s opinion and order dismissing the complaint in Gibson. Closure was appropriate because
Plaintiffs’ claims are meritless for the reasons described in Quaker’s motion to dismiss and in this
Court’s opinion and order dismissing the related action. Gibson v. Quaker Oats Co., No. 16-cv4853, 2017 WL 3508724 (N.D. Ill. Aug. 14, 2017); Gibson Mot. to Dismiss; Mem. Supp. Mot. to
Dismiss, Gibson, No. 16-cv-4853, ECF No. 36 (N.D. Ill. Sept. 26, 2016) (“Gibson Mem. Supp.
Mot. to Dismiss”).
The dismissal in Gibson, standing alone, is sufficient to warrant entry of judgment in this
action because the claims in this action are identical to those in Gibson. In addition to the grounds
for dismissal discussed in this Court’s opinion in Gibson, Plaintiffs fail to state a claim for the
following additional reasons.
Plaintiffs’ failure-to-warn claims are duplicative of those asserted in Gibson and are meritless for the same reasons: (1) Plaintiffs lack standing, not having suffered any concrete injury
from the trace amounts of glyphosate alleged to be present in Quaker products, (2) Plaintiffs’
claims are preempted by federal legislation and regulations expressly deeming safe and permitting
trace levels of glyphosate, and (3) Plaintiffs have not alleged the omission of any material fact in
Quaker’s public representations. The Gibson plaintiffs failed to state a claim for the same reasons.
See Gibson Mot. to Dismiss at 2; Gibson Mem. Supp. Mot. to Dismiss at 10-18.
Similarly, just as in Gibson, Plaintiffs’ claims relating to Quaker’s use of “heart healthy”
are preempted by federal regulations. See 21 C.F.R. § 101.81; Food Labeling: Health Claims;
Soluble Fiber From Whole Oats & Risk of Coronary Heart Disease, 62 Fed. Reg. 15,343 (Mar. 31,
1997); see also Gibson Mot. to Dismiss at 2; Gibson Mem. Supp. Mot. to Dismiss at 19-20. Plaintiffs also fail to state a claim relating to Quaker’s use of “natural.” These claims seek to impose
retroactive punishment on Quaker for its reliance on long-standing federal policy regarding the
use of “natural” in food labeling. See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,
2167 (2012); Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1147 (N.D. Cal. 2013). Nor
have Plaintiffs plausibly alleged that reasonable consumers share their interpretation of “natural”
as indicating a product is free of trace amounts of any pesticide down to the molecular level. See
Gibson Mem. Supp. Mot. to Dismiss at 20-23; In re: Gen. Mills Glyphosate Litig., No. 16-2869,
2017 WL 2983877 at *5 (D. Minn. July 12, 2017) (“It is implausible that a reasonable consumer
would believe that a product labelled as having one ingredient—oats—that is ‘100% Natural’
could not contain a trace amount of glyphosate that is far below the amount permitted for organic
products.”); Organic Consumers Ass’n v. Sioux Honey Ass’n, No. 2016-ca-8012 (D.C. Super. Ct.
Mar. 31, 2017) (granting motion to dismiss); Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751, 756-59
(N.D. Ill. 2015); Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 978-79 (C.D. Cal. 2013).
Plaintiffs’ remaining allegations also fail to state a claim. Although Plaintiffs point to different state laws than the state laws identified in Gibson, this Court’s ruling in Gibson did not turn
on details of state law; rather, this Court found that any state consumer protection law claims are
precluded by federal law. In addition, Plaintiffs’ state consumer protection law allegations fail to
state a claim because those state laws expressly incorporate federal standards. See Tex. Health &
Safety Code § 431.244; N.J.A.C. § 8:59-5.5; 34 Pa. Admin. Code § 309.1. Plaintiffs have also
failed to allege that any particular plaintiff purchased any specific Quaker products, relying merely
on generic assertions that the named plaintiffs purchased “Quaker Oats.” Panitch Compl. ¶¶ 29,
32, 34. This lack of specificity deprives Plaintiffs of standing to pursue their claims. See Gibson,
2017 WL 3508724 at *4; Gibson, Mem. Supp. Mot. to Dismiss at 24-25. Plaintiffs’ claims for
injunctive relief also fail for lack of standing—now that Plaintiffs are aware of Quaker’s alleged
misrepresentations, Plaintiffs cannot claim to be misled by Quaker’s advertising in the future. See
Gibson Mem. Supp. Mot. to Dismiss at 23. Finally, Plaintiffs’ claim premised on unjust enrichment claim fails alongside the “related claim[s]” as it “rests on the same improper conduct.”
Cleary v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011).
For the reasons identified in the Court’s order and opinion dismissing the Gibson plaintiffs’
complaint with prejudice, and Quaker’s motion to dismiss in Gibson, Quaker respectfully requests
that this Court direct the entry of judgment in favor of Quaker. See Fed. R. Civ. P. 58.
Dated: September 6, 2017
Erik J. Ives
FOX, SWIBEL, LEVIN & CARROLL
200 West Madison Street, Suite 3000
Chicago, Illinois 60606
Tel: (312) 224-1200
Fax: (312) 224-1201
Andrew S. Tulumello (pro hac vice)
Jason R. Meltzer (pro hac vice)
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Tel: (202) 955-8500
Fax: (202) 467-0539
Attorneys for Defendant Quaker Oats Company
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on September 6, 2017, he caused the foregoing document to be electronically filed with the Clerk of the United States District Court for the
Northern District of Illinois, Eastern Division, using the Court’s CM/ECF system, which shall send
notification of such filing to all counsel of record.
/s/ Erik J. Ives
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