Jacobs v. Whole Foods Market Group, Inc.

Filing 27

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 8/16/2022. Mailed notice (lxk, )

Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 1 of 10 PageID #:128

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Leroy Jacobs, individually and
on behalf of all others
similarly situated
Plaintiff,
v.
Whole Foods Market Group,
Inc.,
Defendant.

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No. 22 C 2

Memorandum Opinion & Order
In this action, plaintiff Leroy Jacobs alleges on behalf of
himself and putative Illinois and multistate classes that Whole
Foods Market (“WFM”) violates the consumer protection statutes and
common law of Illinois and fifteen other states by selling its
private label “Long Grain & Wild Rice – Rice Pilaf,” in boxes that
are larger than necessary for the amount of product they contain.
Plaintiff claims that notwithstanding WFM’s commitment to reducing
waste in food packaging, it intentionally misleads consumers about
the amount of product they are purchasing by sizing the boxes to
fit store shelves, rather than to fit the volume of product they
contain. This practice, plaintiff claims, is designed to deceive
consumers, as it “makes the shelves look full, which appeals to

Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 2 of 10 PageID #:129

consumers and makes them willing to spend more money.” Compl. at
¶ 50-51.
As plaintiff acknowledges, federal and state regulations
recognize that there may be legitimate reasons for food packaging
to contain empty space (known in the industry as “slack fill”).
Plaintiff alleges, however, that none of those reasons justify the
practice he challenges here. The images below illustrate the
disparity between the box size and the amount of product within:

Compl. at ¶¶ 19, 21.
Based on this disparity, plaintiff asserts violation of the
Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”) and
unidentified

consumer

protection

statutes

of

Pennsylvania,

Michigan, Iowa, Rhode Island, Minnesota, Ohio, Georgia, North
Dakota,

Texas,

New

Mexico,

North

Carolina,

Virginia,

New

Hampshire, South Dakota, and Oklahoma, which plaintiff claims are
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Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 3 of 10 PageID #:130

similar to the ICFA. He also asserts claims for breach of express
warranty, breach of the implied warranty of merchantability, and
violation of the Magnusson Moss Warranty Act, 15 U.S.C. §§ 2301.
Finally, plaintiff claims negligent misrepresentation, fraud, and
unjust enrichment under the common law of the foregoing states.
WFM moves to dismiss the complaint in its entirety, offering
a cascade of reasons plaintiff’s claims fail as a matter of law.
At the fore is its argument that because the front, back, and side
panels of each box contain conspicuous and accurate information
about the weight of the product; instructions for preparation; and
the serving size and approximate number of servings each box yields
when prepared, the packaging is not deceptive as a matter of law
under the statutes plaintiff asserts. Defendant emphasizes that
plaintiff does not challenge the accuracy or the conspicuousness
of this information—in fact, he alleges affirmatively that he
“relied on the words and images on the Product [and] on the
labeling” when purchasing the product, Compl. at ¶ 99—and that
this information dispels any uncertainty a reasonable consumer
might have about the amount of rice pilaf one box yields. Because,
as explained below, the law supports this argument, plaintiff’s
consumer deception claims do not withstand defendant’s motion. And
because plaintiff’s remaining claims either hinge on his flawed
theory

of

deception

or

suffer

3

from

separate

procedural

or

Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 4 of 10 PageID #:131

substantive

shortcomings,

I

grant

defendant’s

motion

in

its

entirety.
Defendant’s
claims

under

the

broadest
ICFA

arguments

and

other

target

states’

plaintiff’s
consumer

class

protection

statutes. Plaintiff does not identify the statutes he relies upon
for his multistate class claims, but he alleges that they are
“similar to the ICFA and prohibit the use of unfair or deceptive
business practices in the conduct of trade or commerce.” Compl. at
¶ 124. Accordingly, I assume that all of the statutes plaintiff
asserts require, as the ICFA does, that plaintiff plead and prove
“that

the

relevant

consumers,”

which

labels

“requires

are
a

likely

to

probability

deceive
that

a

reasonable
significant

portion of the general consuming public or of targeted consumers,
acting reasonably in the circumstances, could be misled.” Bell v.
Publix Super Markets, Inc., 982 F.3d 468, 474–75 (7th Cir. 2020).
Plaintiff does not dispute that the packaging he challenges
discloses accurate information about the weight and approximate
yield of the product as prepared. His theory of consumer deception
is

that

he

nevertheless

“could

not

and

did

not

reasonably

understand or expect any of the net weight or serving disclosures
to translate to an amount of rice meaningfully different from his
expectation of an amount which would fill up the box.” Resp., ECF
20, at 2. In plaintiff’s view, Benson v. Fannie May Confections
Brands, Inc., 944 F.3d 639 (7th Cir. 2019), supports this theory
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of deception because in that case, the court observed that “the
presence of an accurate net weight statement does not eliminate
the misbranding that occurs when a container is made, formed, or
filled so as to be misleading.” Id. at 647 (quoting Misleading
Containers; Nonfunctional Slack-Fill, 58 Fed. Reg. 64123-01, 64128
(Dec. 6, 1993) (codified at 21 C.F.R. pt. 100)). But Benson does
not support plaintiff’s claims on the facts alleged here.
Benson involved boxed, ready-to-eat chocolates. As the court
explained, a consumer might reasonably expect to be able to
estimate the approximate number of chocolates in a particular box
based on the box size. See id. at 646. But any reasonable consumer
surely knows that rice pilaf sold in a box must be cooked in water
or another liquid prior to consumption, and understands further
that the cooking process will cause the rice to expand in volume.
In other words, a reasonable consumer expects the size of the box
to bear only a loose relationship to the amount of cooked product
its contents will yield. Accordingly, a shopper uncertain about
how many boxes of rice pilaf to buy for the family dinner would
know not to rely on the size of the box and would look for
additional information of precisely the kind plaintiff admits
defendant’s rice pilaf box contains: the number of servings each
box will produce based on a specified serving size. Because that
information dispels any tendency to mislead that the box size alone
might create, there is no deception as a matter of law. See Killeen
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v. McDonald's Corp., 317 F. Supp. 3d 1012, 1013 (N.D. Ill. 2018)
(“Illinois law is clear that where other information is available
to

dispel

that

tendency,

there

is

no

possibility

for

deception.”)(citing Bober v. Glaxo Wellcome PLC, 246 F.3d 934,
939-40 (7th Cir. 2001).
Bell v. Publix Super Markets, Inc., 982 F.3d 468, 476 (7th
Cir. 2020), is not to the contrary. In Bell, the Seventh Circuit
observed that “[c]onsumer-protection laws do not impose on average
consumers an obligation to question the labels they see and to
parse them as lawyers might for ambiguities.” Id. at 476. The court
went on to hold that courts cannot presume, as a matter of law,
that “reasonable consumers will test prominent front-label claims
by examining the fine print on the back label.” Id. at 477. But
the instant case does not involve ambiguous labeling whose meaning
is

discernable

“labeling”

only

plaintiff

by

reading

claims

to

the

have

“fine-print.”
read

was

the

The

only

admittedly

conspicuous and accurate information disclosing instructions for
preparation, serving size, and number of servings per box.
The point is not, as plaintiff suggests, that defendant is
“‘immune from suit’ just because ‘the package accurately lists the
product’s net weight and quantity.’” Resp., ECF 20 at 4 (quoting
Izquierdo v. Mondelēz Int’l Inc., No. 16-cv-04697, 2016 WL 6459832,
at *7 (S.D.N.Y. Oct. 26, 2016)). The point is that the unambiguous,
conspicuous, and accurate information specific to the question of
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product

yield,

disclosures

coupled

printed

on

with
the

the

“net

box,

weight

conclusively

and

quantity”

dispels

any

reasonable misunderstanding a consumer might have based on box
size (either alone or in conjunction with defendant’s general
statements

elsewhere

about

its

commitment

to

environmental

stewardship and reducing packaging waste, see Compl. at ¶ 8) about
the amount of rice pilaf she can make with a box of uncooked
product. On these facts, plaintiff’s theory finds no footing in
either Benson or Bell.1 Instead, his case more closely resembles
Buso v. ACH Food Companies, Inc., 445 F. Supp. 3d 1033 (S.D. Cal.
2020), which asserted consumer fraud claims based on allegedly
unnecessary slack-fill in boxes of cornbread mix. The court held
that there was no deception as a matter of law, since “consumers
are clearly put on notice as to the rough estimate of cornbread
that can be made from the product contained within the box.” Id.
at 1038.
Plaintiff’s common law fraud claim fails for similar reasons.
To prevail on such a claim, plaintiff must establish, among other

Plaintiff muddies the waters with the argument that the fact the
product “‘required preparation by combining the rice with the
seasoning packet, water and olive oil’ does not change whether a
reasonable consumer would expect ‘over 50% of the box [to be] empty
space.’” Resp., ECF 20 at 3. What plaintiff fails to explain is
why a reasonable consumer would care about the ratio of uncooked
product to empty space, when what he really wants to know is how
many boxes he needs to buy to end up with a given amount of cooked
rice pilaf on his serving platter or plate.
1

7

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things,

his

reliance”

own
on

and
the

the

putative

defendant’s

class

members’

alleged

“reasonable

misrepresentation.

Petrakopoulou v. DHR Int’l, Inc., 626 F. Supp. 2d 866, 870 (N.D.
Ill. 2009). As explained above, even unsophisticated consumers
understand that rice must be cooked prior to serving and that it
expands during cooking. Accordingly, they cannot reasonably rely
on the size of the box to estimate product yield when specific
information

on

that

question

is

printed

conspicuously

and

unambiguously on the box. See Daniel v. Mondelez Int’l, Inc., 287
F.

Supp.

3d

177,

199–200

(E.D.N.Y.

2018)

(“Since

a

simple

‘investigation’ would have dispelled any misrepresentation as to
the amount of food arising from the size of the box, Plaintiff’s
common law fraud claim is foreclosed as a matter of law.”).
Plaintiff’s

claims

for

breach

of

express

or

implied

warranties and violation of the Magnuson-Moss Act require only
brief discussion. As defendant correctly observes, Illinois law
requires a plaintiff to provide defendant pre-suit notice of any
breach warranty claims—a requirement plaintiff acknowledges he did
not satisfy. See Anthony v. Country Life Mfg., LLC., 70 F. App’x
379, 384 (7th Cir. 2003) (observing that the Supreme Court of
Illinois

interprets

810

ILCS

5/2–607(3)(a)

to

“require[]

a

plaintiff to notify the defendant of the claimed deficiency in its
product prior to filing suit.”) (citing Connick v. Suzuki Motor
Co., Ltd., 675 N.E.2d 584, 590 (Ill. 1996)). Although that is
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reason enough to dismiss plaintiff’s warranty claims under both
state law and the Magnuson-Moss Act, see Bakopoulos v. Mars Petcare
US, Inc., No. 20 CV 6841, 2022 WL 846603, at *2 (N.D. Ill. Mar.
22,

2022)

(Magnuson-Moss

Act

“incorporates

state-law

notice

requirements”), there is more: Plaintiff fails to allege that the
rice pilaf sold in the boxes he challenges were not “fit for the
ordinary purposes for which such goods are used” as required for
implied warranty claims. Solvay USA v. Cutting Edge Fabrication,
Inc., 521 F. Supp. 3d 718, 725 (N.D. Ill. 2021). If there is any
support

for

plaintiff’s

“alternative”

theory

that

defendant

breached an implied warranty because the product was “not fit to
pass in the trade” because of its excessive box size, he has not
cited it. For at least these reasons, plaintiff’s warranty claims
fail as a matter of law.
This

leaves

misrepresentation

only
and

plaintiff’s
unjust

claims

enrichment.

for

negligent

Defendant

argues

correctly that the first of these claims is barred by the general
rule that “a negligence cause of action cannot be sustained for
the recovery of economic loss alone.” Clay Fin. LLC v. Mandell,
No. 16-cv-11571, 2017 WL 3581142, at *4 (N.D. Ill. Aug. 18, 2017),
citing Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill.2d 69 (1982)).
Plaintiff’s
exception

vague

to

the

suggestion
economic

that

loss

his

rule

claim
for

falls

allegedly

within

an

negligent

breaches of non-contractual duties arising out of the parties’
9

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“special relationship” (such as the attorney-client or accountantclient relationship) finds no support in either the law or the
facts he alleges.
Finally, plaintiff concedes that his unjust enrichment claim
“will stand or fall with his other claims[.]” Resp., ECF 20 at 10.
Because

none

of

his

other

claims

is

viable

for

the

reasons

explained above, his unjust enrichment claim, too, is subject to
dismissal.
For the foregoing reasons, defendant’s motion to dismiss is
granted.

ENTER ORDER:

_____________________________
Elaine E. Bucklo
United States District Judge
Dated: August 16, 2022

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