Nootens v. Molson Coors Beverage Company

Filing 24

MEMORANDUM Opinion and Order: Defendant's Motion to Dismiss 13 is granted. While dismissal with prejudice is proper, in an abundance of caution, the Court will allow Plaintiff an opportunity to replead if he believes that he can do so as to a ny claim dismissed in the opinion. Plaintiff is given leave to file an amended complaint by April 30, 2024, if Plaintiff has a good faith basis for doing so. Otherwise, the dismissal of this complaint will convert to dismissal with prejudice. Signed by the Honorable Sharon Johnson Coleman on 3/26/2024. Mailed notice. (ym)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JONATHAN NOOTENS,
individually, and on behalf of all others
similarly situated,

)
)
) Case No. 22-cv-07010
) Judge Sharon Johnson Coleman
)
)
)
)
)
)
)

Plaintiffs,
v.
MOLSON COORS BEVERAGE
COMPANY,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Jonathan Nootens (“Plaintiff”) filed a class action complaint [1] against Defendant
Molson Coors Beverage Company (“Defendant”) for violations of the Illinois Consumer Fraud and
Deceptive Trade Practices Act, violations of state consumer fraud acts, breaches of express
warranty, negligent misrepresentation, fraud, and unjust enrichment, alleging that Defendant
manufactures, distributes, and sells “Ranch Water Hard Seltzer” containing “100% Agave & Real
Lime Juice” containing “Spiked Sparkling Water” under the Topo Chico brand (“Product”) that
does not contain tequila. Defendant moves to dismiss the complaint [13] pursuant to Federal Rule
of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons below, the motion is to dismiss is granted.
Background
Plaintiff is a citizen of Oswego, Kendall County, Illinois. Defendant is a Delaware
corporation with a principal place of business in Chicago, Cook County, Illinois. Defendant
manufactures, labels, markets, distributes, and sells “Ranch Water Hard Seltzer” containing “100%

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Agave & Real Lime Juice” containing “Spiked Sparkling Water” under the Topo Chico brand
(“Product”). The Product contains the following ingredients:
INGREDIENTS: FILTERED CARBONATED WATER, ALCOHOL, LIME JUICE
FROM CONCENTRATE, NATURAL FLAVORS, AGAVE SYRUP, SODIUM
CITRATE, CITRIC ACID, MAGNESIUM CHLORIDE*, SALT*, POTASSIUM
CHLORIDE*. (MINERALS FOR TASTE)
Plaintiff alleges that the label includes pictures of the agave plant, the source crop for tequila
and states “4.7% Alc. Vol.” (“ABV” or alcohol by volume). Plaintiff alleges that consumers will
expect the Product contains ingredients associated with ranch water because that is what the
packaging and label tells them. Specifically, Plaintiff alleges that “Hard Seltzer” beneath “Ranch
Water” contributes to the expectation the Product will contain tequila because “hard” in the context
of alcohol refers to distilled spirits or “hard liquor.” He further alleges that the description of the
Product as “Spiked Sparkling Water” exploits consumers’ understanding of “spiked” referring to the
addition of hard liquor to a non-alcoholic drink.
Plaintiff alleges that the representations are misleading because it fails to list tequila and adds
a sweetener in the form of “agave syrup,” from the source crop of tequila. Even if purchasers read
the ingredient list, they will only be told the Product contains “alcohol,” with no description of
tequila. Plaintiff complains that as a result of the false and misleading representations, the Product is
sold at a premium price, approximately no less than $18.99 for a twelve-pack of 12 oz cans,
excluding tax and sales.
Plaintiff read “Ranch Water,” “Hard Seltzer,” “Spiked,” and “100% Agave & Real Lime
Juice,” and expected the Product contained alcohol from tequila. Plaintiff bought the Product at or
exceeding the above-referenced price. Plaintiff paid more for the Product than he would have had
he known the above-referenced facts or would not have purchased it. Plaintiff intends to, seeks to,
and will purchase the Product again when he can assure the Product’s representations are consistent
with his expectations.
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Legal Standard
A Rule 12(b)(1) motion challenges federal jurisdiction, including Article III standing, and the
party invoking jurisdiction bears the burden of establishing the elements necessary for subject matter
jurisdiction, including standing. Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1244 (7th Cir. 2021);
Int'l Union of Operating Eng'rs Loc. 139, AFL-CIO v. Daley, 983 F.3d 287, 294 (7th Cir. 2020). Under
Rule 12(b)(1), the Court accepts all well-pleaded factual allegations as true and construes all
reasonable inferences in the plaintiff's favor when a defendant has facially attacked standing. Prairie
Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021).
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency
of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S. Ct. 1289, 179 L. Ed. 2d
233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551
U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam). To survive a motion to
dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A complaint is facially plausible when
the plaintiff alleges enough “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009).
Discussion
A. Standing
Defendant first argues that Plaintiffs lack standing to seek injunctive relief. To
establish an injury-in-fact for injunctive relief, “a plaintiff must show that the defendant's
conduct will likely cause it to suffer damages in the future.” Camasta v. Jos. A. Bank Clothiers,
Inc., 761 F.3d 732, 741 (7th Cir. 2014) (quoting Kensington's Wine Auctioneers & Brokers, Inc. v.
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John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 9, 909 N.E.2d 848 (1st Dist. 2009)). Past
exposure to unlawful conduct is insufficient. Id.; Hamidani v. Bimbo Bakehouse LLC, No. 22CV-01026, 2023 WL 167513, at *2 (N.D. Ill. Jan. 12, 2023) (Coleman, J.). Here, Plaintiff is
now aware that the Products does not contain tequila and lacks risk of future deception by
Defendant. Hamidani, 2023 WL 167513, at *2 (“[O]nce a plaintiff knows that a product is
deficient, he or she is unlikely to purchase it again, and therefore unlikely to sustain future
harm.”) Plaintiff therefore lacks standing to pursue injunctive relief.
B. Failure to State a Claim
Next, Defendant alleges that Plaintiff fails to state the following claims: (1) violation
of the Illinois Consumer Fraud Act and other state consumer fraud acts; (2) common law
claims, including breaches of express warranty, negligent misrepresentation, fraud, and
unjust enrichment.
1. Consumer Fraud Claims
ICFA is “a regulatory and remedial statute intended to protect consumers against
fraud, unfair methods of competition, and other unfair and deceptive business practices.”
Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019) (cleaned up).
To state a claim under the ICFA, Plaintiff must allege “(1) a deceptive or unfair act or
practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or
unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct
involving trade or commerce.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir.
2012). “[T]he facts alleged in a complaint attempting to show fraud under the ICFA must
show not just the mere possibility of a fraud, but that fraud is a ‘necessary or probable inference
from the facts alleged.” See Spector v. Mondelēz Int'l, Inc., 178 F. Supp. 3d 657, 672 (N.D. Ill.
2016) (Durkin, J.) (quoting People ex rel. Hartigan v. E & E Hauling, Inc., 153 Ill.2d 473, 180
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Ill.Dec. 271, 607 N.E.2d 165, 174 (1992)). Plaintiff must plead that “the relevant labels are
likely to deceive reasonable consumers,” which “requires a probability that a 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) (quoting Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 972–73 (7th Cir. 2020)); see
also DeMaso v. Walmart Inc., 655 F. Supp. 3d 696, 702 (N.D. Ill. 2023) (Rowland, J.).
Plaintiff alleges that the Product’s labeling is deceptive because the terms “Hard
Seltzer” beneath “Ranch Water” contributes to the expectation the Product will contain
tequila as “hard” in the context of alcohol refers to distilled spirits or “hard liquor.”
Defendant disagrees, claiming that Plaintiff’s interpretation of the label is unreasonable as a
matter of law. 1
Here, the Court agrees with Defendant. Plaintiff has failed to plead any facts
showing that reasonable consumers could plausibly conclude that the Product contains
tequila. Even if the agave is the source plant for tequila, the label and ingredient list make no
claim that the Product contains tequila. See Zahora v. Orgain LLC, No. 21 C 705, 2021 WL
5140504, at *4 (N.D. Ill. Nov. 4, 2021) (Kendall, J.) (“A reasonable consumer would not
read into the label what is simply not there.”); Bell, 982 F.3d at 476 (“What matters most is
how real consumers understand and react to the advertising.”); see also Chiappetta v. Kellogg
Sales Co., No. 21-CV-3545, 2022 WL 602505, at *5 (N.D. Ill. Mar. 1, 2022) (Aspen, J.)

Plaintiff claims that because a ranch water cocktail is commonly understood to contain tequila, sparkling
water, and lime, a reasonable consumer would expect that a “Ranch Water Hard Seltzer” would include the
exact same ingredients. (Compl. ¶¶ 4-5, 16.) This assertion is inherently flawed. Plaintiff’s own allegations
contradict the notion that the ingredients in a ranch water cocktail are widely known, such that a significant
portion of the general consuming public would associate certain ingredients with ranch water: Plaintiff
explicitly pleads that consumers have a “lack of knowledge about …‘ranch water.’” Id. ¶ 25. Plaintiff must
replead or plead additional facts, if possible, to demonstrate a reasonable consumer’s expectations when
purchasing ranch water.

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(finding “no reasonable consumer could conclude,” based merely on the use of the term
“Strawberry” and the picture on the package, that a Strawberry Pop-Tart contained only
strawberries, not other fruits, and food dye). Thus, a reasonable consumer could not
plausibly conclude that the Product contains tequila under these circumstances.
Accordingly, Plaintiff’s ICFA claim is based on an unreasonable interpretation of the
Product's label. See Bell, 982 F.3d at 477 (“[D]eceptive advertising claims should take into
account all the information available to consumers and the context in which that
information is provided and used.”) As a result, Plaintiff has not stated a plausible claim for
relief under the ICFA and his claim is dismissed. Id. at 477 (“[W]here plaintiffs base
deceptive advertising claims on unreasonable or fanciful interpretations of labels or other
advertising, dismissal on the pleadings may well be justified.”). Plaintiff's state consumer
fraud acts claims and the stand-alone common law fraud claim are similarly based on a legally
unreasonable interpretation of the product's front label and do not survive the dismissal
motion. 2
2. Breach of Express and Implied Warranties and the Magnuson Moss Warranty Act
Defendant asserts that Plaintiff cannot proceed on his breach of warranty claims as
he cannot establish that the advertising was likely to mislead a reasonable consumer; and that
he failed to provide pre-suit notice as required by statute. To proceed on an Illinois claim
for breach of express warranty, Plaintiff must sufficiently plead that the defendant: “(1)
made an affirmation of fact or promise; (2) relating to the goods; (3) which was part of the

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Plaintiff states that the laws of other states prohibit the use of unfair or deceptive business practices in the
conduct of trade or commerce. Accordingly, the Court finds these acts are substantially the same as the
ICFA for the purposes of determining whether a reasonable consumer would be deceived by the product's
label. DeMaso, 655 F. Supp. 3d at 704 (citing Jacobs v. Whole Foods Mkt. Grp., Inc., No. 22-cv-2, 621 F.Supp.3d
894, 897–98 (N.D. Ill. Aug. 16, 2022) (Bucklo, J.).

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basis for the bargain; and (4) guaranteed that the goods would conform to the affirmation or
promise.” O'Connor v. Ford Motor Co., 477 F. Supp. 3d 705, 714 (N.D. Ill. 2020) (Dow, Jr., J.).
In a claim for breach of an implied warranty, Plaintiff must allege that “ ‘(1) the defendant
sold goods that were not merchantable at the time of sale; (2) the plaintiff suffered damages
as a result of the defective goods; and (3) the plaintiff gave the defendant notice of the
defect... To be merchantable, the goods must be, among other things, fit for the ordinary
purpose for which the goods are used.” Baldwin v. Star Scientific, Inc., 78 F. Supp. 3d 724, 741
(N.D. Ill. 2015) (Pallmeyer, J.). Here, this Court found that the label would not mislead a
reasonable consumer. Thus, Plaintiff’s state law warranty claims fail. Chiappetta, 2022 WL
602505, at *5 (dismissal of ICFA claim that product packaging was misleading, was “fatal to
[plaintiff's] claims for breach of express and implied warranties.”) Plaintiff’s MMWA claim
fails as well for the same reasons.
3. Negligent Misrepresentation and Unjust Enrichment
The negligent misrepresentation and unjust enrichment claims are based on the same
theory. Negligent misrepresentation requires a false statement of material fact. Tricontinental
Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007). This Court
determined that no such false statements were made. Accordingly, this claim fails as a matter
of law. DeMaso, 655 F. Supp. 3d at 705. Similarly, the unjust enrichment claim fails.
Plaintiff’s unjust enrichment claim rests on the same improper conduct alleged in his failed
consumer fraud claims. Thus, the unjust enrichment claim cannot stand. See Cleary v. Philip
Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011); see also Lederman v. Hershey Co., No. 21-CV-4528,
2022 WL 3573034, at *6-7 (N.D. Ill. Aug. 19, 2022) (Dow, Jr., J.) (where ICFA claim failed,
negligent misrepresentation and unjust enrichment claims failed as well). Accordingly,
negligent misrepresentation and unjust enrichment claims are dismissed.
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Conclusion
For the stated reasons, Defendant's Motion to Dismiss [13] is granted. While dismissal with
prejudice is proper, in an abundance of caution, the Court will allow Plaintiff an opportunity to
replead if he believes that he can do so as to any claim dismissed in the opinion above. Plaintiff is
given leave to file an amended complaint by April 30, 2024, if Plaintiff has a good faith basis for
doing so. Otherwise, the dismissal of this complaint will convert to dismissal with prejudice.
IT IS SO ORDERED.
Date: 3/26/2024
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Court Judge

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