Sanchez v. Walmart, Inc.
Filing
53
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 5/13/2024: Defendant's motion to dismiss, 33 , is granted in part and denied in part. Plaintiff's claims related to products that she did not purchase, along with t he request for prospective injunctive relief, are dismissed for lack of standing. The claims under the Illinois Consumer Fraud Act (Count I), other state consumer protection statutes (Count III), and for unjust enrichment (Count IV) survive in part. The claim brought under the Uniform Deceptive Trade Practices Act (Count II) is dismissed. All dismissals are without prejudice. [For further detail see attached order.] Notices Mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARISSA SANCHEZ,
Plaintiff,
No. 23 CV 1297
v.
Judge Manish S. Shah
WALMART INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Walmart, Inc. manufactures and sells frozen seafood products that
are labeled as sustainably sourced. Plaintiff Marissa Sanchez purchased some of
these products at a Walmart store and alleges that Walmart’s “sustainable” message
is deceptive. She seeks to represent a class of consumers and brings claims against
Walmart for violations of the Illinois Consumer Fraud Act and eight other state
consumer protection statutes, the Uniform Deceptive Trade Practices Act, and for
unjust enrichment. Walmart moves to dismiss under Rule 12(b)(1) for lack of standing
and Rule 12(b)(6) for failure to state a claim. For the reasons discussed below, the
motion to dismiss for lack of standing is denied in part and granted in part. The
motion to dismiss for failure to state a claim is denied in part and granted in part.
I.
Legal Standards
A defendant may challenge a plaintiff’s standing to bring a claim in federal
court by moving to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction.
Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th
Cir. 2021). As the party invoking federal jurisdiction, a plaintiff bears the burden of
establishing standing. Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). Because
Walmart makes a facial challenge to Sanchez’s standing, I accept all well-pleaded
allegations as true and draw all reasonable inferences in plaintiff’s favor. See id.
A complaint must contain “a short and plain statement” showing that the
plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662,
677–78 (2009). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege
facts that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555 (citation omitted). At this stage, I accept all factual allegations in the complaint
as true and draw all reasonable inferences in the plaintiff’s favor, disregarding legal
conclusions or “[t]hreadbare recitals” supported by only “conclusory statements.”
Iqbal, 556 U.S. at 678.
A plaintiff alleging fraud or deceptive practices under the Illinois Consumer
Fraud Act must meet the heightened pleading standard of Rule 9(b). Vanzant v. Hill’s
Pet Nutrition, Inc., 934 F.3d 730, 738 (7th Cir. 2019). Under Rule 9(b), a plaintiff
“must plead with particularity the circumstances constituting fraud” and identify
“the who, what, when, where, and how” of the alleged fraud. Id.
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II.
Background
A.
Facts Considered
Walmart requests judicial notice of fifteen exhibits attached in support of its
motion to dismiss. [35]. 1 On a 12(b)(6) motion, I may only consider allegations in the
complaint, documents attached to the complaint, documents that are both referred to
in the complaint and central to its claims, and information that is subject to proper
judicial notice. Reed v. Palmer, 906 F.3d 540, 548 (7th Cir. 2018) (quoting Geinosky
v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). “The court is not bound to
accept the pleader’s allegations as to the effect of the exhibit, but can independently
examine the document and form its own conclusions as to the proper construction and
meaning to be given the material.” Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657,
661 (7th Cir. 2002) (citation omitted).
Exhibits 1–3 are images of the three products that Sanchez bought from a
Walmart store: Pink Salmon Fillets, [35-1], Frozen Pacific Cod, [35-2], and Breaded
Fish Sticks, [35-3]. Exhibits 1 and 2 provide front and back label images of the Pink
Salmon Fillets and Frozen Pacific Cod in an enlarged format. Because the products
are referred to in the amended complaint and the labels are central to plaintiff’s
claims, I take judicial notice of them. Exhibit 3 provides front and back label images
of the Breaded Fish Sticks, but the front-label image provided by the plaintiff in the
amended complaint contains the text “Sustainably Sourced – 100% – Sustainability”
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings. The facts are taken from
plaintiff’s amended complaint, [26], and any exhibits subject to judicial notice.
1
3
that is not visible on defendant’s front-label image of the same product. Compare [26]
¶ 34 and [35-3] at 2. I accept plaintiff’s images of the Breaded Fish Sticks packaging
as true and decline to consider Exhibit 3.
Exhibits 4–9 are pages taken from the Marine Stewardship Council’s website. 2
Plaintiff objects to the admission of Exhibit 4 (“What is the MSC”) as containing no
hyperlink or indicia of authenticity. [39] at 10. She also objects to any exhibits that
are not quoted within her amended complaint. As discussed below, the specific details
of MSC’s certification process are beyond the scope of the pending motion. I rely on
the allegations pertaining to the MSC that plaintiff states in the amended complaint
and look no further. I decline to take judicial notice of Exhibits 4, 6, 7, and 8.
Exhibit 10 is a webpage of Walmart’s profile on a third-party website, the
Ocean Disclosure Project, which provides information about a company’s seafood
sourcing practices. [35-10]. While it is cited in plaintiff’s amended complaint, see [26]
¶ 35 n.39, it is referenced in a limited way to support her assertion that Walmart
sources products from fisheries that use certain fishing methods. The website page is
otherwise not central to her amended complaint, and incorporation-by-reference of
the webpage is not warranted. I decline to consider Exhibit 10.
Exhibits 11–15 are pages from Walmart’s website. Exhibit 11 includes
Walmart’s “Price Match” and “Seafood” policies. [35-11]. Defendant provides a link to
its Price Match Policy (https://corporate.walmart.com/policies#price-match-policy)
Exhibit 5, [35-5], is a duplicate of Exhibit 8, [35-8]. Defendant withdraws its request for
judicial notice of Exhibit 5. [40] at 6 n.1.
2
4
but refers to Exhibit 11 as reflecting its Seafood Policy in its brief. Compare [35-11]
at 49–53 and [40] at 9. While plaintiff cites to the Seafood Policy in her amended
complaint multiple times, see [26] ¶¶ 32, 82, 99, the link provided by defendant
includes all of Walmart’s policies. I rely on the allegations that plaintiff includes in
her amended complaint about Walmart’s Seafood Policy but look no further.
Walmart’s “Price Match Policy” relates to its factual argument about plaintiff’s
damages and is not subject to the incorporation-by-reference doctrine. Walmart’s
request for judicial notice of Exhibit 11 is denied. Exhibit 12 is Walmart’s
“Sustainability” policy, which is the webpage linked on the back label of the relevant
products. 3 [35-12]. Because it is a part of the product packaging and relevant
information that a consumer receives, it is central to plaintiff’s claims. I take judicial
notice of Exhibit 12. Exhibits 13 (“Product Supply Chain Sustainability”) and 14
(“Regulation of Natural Resources”) are subpages of Walmart’s Environmental,
Social, Governance webpage. Portions are cited in the amended complaint, see, e.g.,
[26] ¶ 4 nn.5–6, and defendant asserts that plaintiff misquotes and mischaracterizes
the policy statements. Defendant also acknowledges that they are irrelevant in any
event because plaintiff does not allege that they informed her purchase of the
products. [40] at 9. Any factual disputes about the contents of the website at this
stage are resolved in favor of plaintiff. I deny defendant’s request for judicial notice
The product images direct customers to the webpage: walmartstores.com/sustainability.
[26] ¶ 35. This webpage does not exist (or no longer exists). Defendant says the webpage
linked at the back of its products is: https://corporate.walmart.com/purpose/sustainability.
[40] at 10.
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of these exhibits. Exhibit 15 is Walmart’s online Terms of Use, which defendant offers
for the class-waiver and arbitration provisions that some class members’ claims may
be subject to. Incorporation-by-reference is not a procedural tool for a defendant to
introduce extrinsic evidence related to its defense in a case. I decline to consider
Exhibit 15.
B.
Walmart’s Products
Defendant Walmart is the world’s largest seller of seafood—it manufactures,
markets, and sells frozen seafood products in stores under its “Great Value” and
“Sam’s Choice” store brands. 4 [26] ¶¶ 1–2, 31. Plaintiff Marissa Sanchez is a Chicago
resident who purchased three Great Value brand seafood products from a Walmart
store: Pink Salmon Fillets, Fish Fillets, and Breaded Fish Sticks. [26] ¶ 21. The front
labels of all three products include a “Blue Tick” certification from the Marine
Stewardship Council accompanied with the text, “Certified Sustainable Seafood
MSC” and a URL to the council’s website. [26] ¶ 33 n.34. The front label of the
Breaded Fish Sticks product contains the text in a circular arrangement,
“Sustainably Sourced – 100% – Sustainability” on the upper right corner, placed
separately from the Blue Tick:
Plaintiff brings claims based on eleven of defendant’s products across two of its store brands.
The Great Value products include: Pink Salmon Fillets, Fish Fillets, Fish Sticks, Wild Caught
Skinless Haddock Fillets, and Pacific Cod Skinless Fillets. [26] ¶ 1 n.1. The Sam’s Choice
products include: Alaska Cod Loins, North Atlantic Cold Water Lobsters, North Atlantic Cold
Water Lobster Tails with Butter, Snow Crab Legs, Sea Scallops, Wild Alaskan Sockeye
Salmon. [26] ¶ 1 n.1.
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offering sustainable products at affordable prices to [Walmart] customers.” [26] ¶ 77.
Plaintiff asserts that Walmart knew or should have known that MSC-certified
fisheries engage in unsustainable fishing practices. [26] ¶¶ 104–111, 113–14.
In addition to the representations made on the product packaging, Sanchez
points to a “multi-channel marketing campaign” that conveys Walmart’s
“Sustainability Promise.” [26] ¶ 4. The “multi-channel marketing campaign” includes
statements made by Walmart’s executives, in-store and in-club signage, authorized
retailer websites, press tours, interviews, and press releases. [26] ¶¶ 4–6, 23–24, 29–
30, 67. For example, Walmart’s Chief Sustainability Officer spoke in an interview
about the company’s sustainability efforts: “At Walmart we invest in sustainability
because our customers trust us not only to bring them affordable products anywhere,
anytime, anyplace, but they expect us to do so in a way that is good for the
environment.” [26] ¶ 29. Walmart’s Seafood Policy states: “We serve hundreds of
millions of customers every year, and we advocate for them among suppliers to
provide more sustainably produced products.” [26] ¶ 32. To meet the needs of its
customers, Walmart “work[s] with partners all along the supply chain to improve the
sustainability of products.” [26] ¶ 32.
Sanchez alleges that Walmart’s sustainability representations are deceptive
and misleading because the fisheries supplying Walmart with seafood use
unsustainable practices. [26] ¶ 34. According to plaintiff, Walmart’s seafood products
are sourced by fisheries that use large-scale fishing methods such as pots and traps,
purse seines, gillnets, pelagic trawls, bottom trawls, and longlines. [26] ¶ 35. These
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methods harm marine life and ecosystems through bycatch, overfishing, and ghost
gear. [26] ¶ 35. Bycatch is the unintentional hooking or ensnaring of marine life. [26]
¶ 36. Pollock trawl fisheries, for example, have contributed to the decline in the
population of snow crabs in the Bering Sea because they utilize pelagic trawls (large
conical nets that drag through the ocean to capture fish) and frequently catch snow
crabs as bycatch. [26] ¶ 40. Snow crabs caught as bycatch are discarded and have a
higher mortality rate. [26] ¶ 40. Because of the declining population, the snow crab
harvest for 2022 was canceled. [26] ¶ 40. Overfishing is the removal of a species of
fish from a body of water at a rate greater than the species can replenish its
population. [26] ¶ 41. In Alaska, where much of Walmart’s supply of wild-caught
salmon comes from, overfishing has caused certain salmon populations to become
depleted. [26] ¶ 43. Ghost gear is abandoned, lost, or discarded fishing gear. [26] ¶ 45.
When ghost gear goes unmitigated, plastic remains in the ocean and impacts marine
life populations. [26] ¶ 45. Lobsters and snow crabs are caught by fisheries that use
pots and traps (cylindrical or rectangular cages typically made of plastic). [26] ¶ 48.
Entanglement with the equipment can cause injury to and kill endangered species
like the right whale. [26] ¶ 48.
Sanchez also alleges that Walmart’s suppliers lack the transparency and
traceability necessary to support its claim of sustainability. [26] ¶ 64. Traceability is
“the ability to identify the origin of the product and sources of input materials” and
“the ability to conduct backward and forward tracking using recorded information to
determine the specific location and history of the product.” [26] ¶ 66. Traceability
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depends on third-party observers reporting unsustainable fishing practices. [26] ¶ 68.
But observers used by Walmart’s suppliers (who are MSC certified) fail to adequately
report and record bycatch and other dangers or harms to marine wildlife. [26] ¶ 68.
Plaintiff says that the underreporting of harmful practices and its impact on marine
life leads to a lack of transparency that permits Walmart to “reap the benefits” while
promising customers sustainably sourced products. [26] ¶ 71.
Sanchez brings state-law claims under the Illinois Consumer Fraud and
Deceptive Business Practices Act, eight other state consumer protection statutes, 6
and the Illinois Uniform Deceptive Trade Practices Act. [26] ¶¶ 140 n.149, 151–186.
She also brings a claim for unjust enrichment. 7 [26] ¶¶ 187–194.
III.
Analysis
A.
Article III Standing
Plaintiffs in federal court must have “(1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Flynn v. FCA US LLC, 39 F.4th 946, 952
(7th Cir. 2022) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). A plaintiff
Plaintiff brings claims under the following consumer protection statutes: California,
Florida, Massachusetts, Michigan, Minnesota, New Jersey, New York, and Washington. [26]
¶ 140 n.149.
6
The court has subject matter jurisdiction over the state-law claims under the Class Action
Fairness Act, 28 U.S.C. § 1332(d)(2), which creates federal jurisdiction if “(1) a class has 100
or more class members; (2) at least one class member is diverse from at least one defendant;
and (3) there is more than $5 million, exclusive of interest and costs, in controversy in the
aggregate.” Roppo v. Travelers Com. Ins. Co., 869 F.3d 568, 578 (7th Cir. 2017). CAFA
jurisdiction is satisfied because plaintiff alleges that the class includes more than 100 class
members; minimal diversity is met because plaintiff is a citizen of Illinois and defendant is a
citizen of Delaware and Arkansas; and the amount in controversy alleged exceeds $5,000,000.
[26] ¶¶ 18, 21–22.
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must demonstrate standing for each form of relief requested. Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
1.
Products Not Purchased
Sanchez’s claims relate to eleven Walmart products, but she only alleges
purchasing three of them: Pink Salmon Fillets, Pacific Cod Skinless Fillets, and
Breaded Fish Sticks. [26] ¶¶ 2 n.1, 21. Plaintiff has no injury-in-fact caused by
products that she did not buy, so she lacks standing with respect to those products.
See Weaver v. Champion Petfoods USA Inc., 3 F.4th 927, 936 (7th Cir. 2021); see also
Payton v. Cnty. of Kane, 308 F.3d 673, 682 (7th Cir. 2002) (“[A] person cannot
predicate standing on injury which he does not share.”) (quoting Allee v. Medrano,
416 U.S. 802, 828–29 (1974)) (Burger, C.J., dissenting). Plaintiff points to a growing
split within this district addressing the standing of a named plaintiff in a class-action
suit based on products that they did not purchase that are substantially similar to
the purchased products. See Willard v. Tropicana Mfg. Co., Inc., 577 F.Supp.3d 814,
824 (N.D. Ill. 2021) (collecting cases). I have rejected the application of the substantial
similarity test as a way for a named plaintiff to acquire standing. See Bakopoulos v.
Mars Petcare US, Inc., No. 20 CV 6841, 2021 WL 2915215, at *3 (N.D. Ill. July 12,
2021). Others have found standing satisfied if there exists substantial similarity
between the purchased and unpurchased products. See, e.g., Acosta-Aguayo v.
Walgreen Co., No. 22-CV-00177, 2023 WL 2333300, at *3 (N.D. Ill. Mar. 2, 2023). I
remain unpersuaded by the latter line of cases. Whether Sanchez may be an adequate
class representative for absent class members injured by similar products is a
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different question than the issue here. At this stage of the case, there is no class and
plaintiff cannot bypass the “irreducible constitutional minimum” of Article III
standing for her individual claim. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 338 n.6 (2016) (“That a suit may
be a class action adds nothing to the question of standing, for even named plaintiffs
who represent a class must allege and show that they personally have been injured,
not that injury has been suffered by other, unidentified members of the class to which
they belong.”) (cleaned up). Plaintiff’s claims relating to products that she did not
purchase are dismissed without prejudice for lack of standing. 8
2.
Economic Injury in Fact
An injury in fact is “an invasion of a legally protected interest” that is “concrete
and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan,
504 U.S. at 560 (internal quotation marks omitted). Walmart argues that Sanchez’s
injury is not cognizable. [34] at 17. Sanchez alleges that she relied on the
sustainability representations on Walmart’s product packaging and that she would
not have purchased the products or would have paid less for the products had she
known the representations were untrue or misleading. [26] ¶ 21. Financial or
economic injury is a basis for standing. See In re Aqua Dots Prod. Liab. Litig., 654
Plaintiff provides images of the Sam’s Choice Wild Alaskan Sockeye Salmon product. [26]
¶ 33 nn.37–38. The back label contains text that is not present in the other product label
images: “This premium Sockeye Salmon you are about to enjoy was sustainably harvested by
independent fishing vessels from the pristine waters of Alaska’s Bristol Bay, Cook Inlet, and
Prince Williams Sound.” [26] ¶ 33 n.38. Because Sanchez lacks standing for products that
she did not purchase, I do not reach the question of whether this product (and others not
included in the amended complaint) are substantially similar to the purchased products or
whether the packaging is deceptive.
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F.3d 748, 751 (7th Cir. 2011) (“The plaintiffs’ loss is financial: they paid more for the
toys than they would have, had they known of the risks the beads posed to children.
A financial injury creates standing.”). Sanchez alleges concrete economic harm
because she paid more for defendant’s products than she otherwise would have paid
(a “premium” price). This is sufficient to establish financial injury. She does not need
to plead, as defendant argues, how much money she spent on the products, the
availability and price of alternative products, or the premium amount she paid. See
Lujan, 504 U.S. at 561 (“At the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice.”); Muir v. Playtex Prod., LLC, 983
F.Supp.2d 980, 987 (N.D. Ill. 2013) (finding plaintiff’s standing in a deceptive
marketing case was established at the time of purchasing defendant’s products
“regardless of whether he later was dissatisfied with the [product] and regardless of
whether he would have purchased a substitute product”). Walmart also argues that
plaintiff’s price premium allegation cannot be squared with its “low-price, pricematch policy” and that its private-brand items are generally priced lower than
comparable national-brand items. [34] at 17. While these facts may be relevant to the
calculation of actual damages, they are not necessary to establish standing. Cf.
Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 648 (7th Cir. 2019)
(suggesting that a plausible theory of actual damages under the ICFA could be based
14
on an allegation that a product is worth less than plaintiffs paid for it or that a better
price could be obtained elsewhere).
Sanchez’s
alleged
economic
injury
is
sufficiently
particularized.
A
particularized injury “affect[s] the plaintiff in a personal and individual way.” Spokeo,
578 U.S. at 339. Walmart contends that plaintiff fails to allege that she perceived
“sustainable” as representing that certain fishing techniques were not used in
sourcing the products she purchased. [34] at 16. Plaintiff states in her amended
complaint that she believed the seafood products were sustainably sourced, meaning
“they were sourced in a manner that would not harm the marine ecosystem and
promote marine health.” [26] ¶ 21. Sanchez sufficiently alleges how she was misled
by defendant’s product representations based on her understanding of sustainability,
which includes sourcing from fisheries that do not engage in practices that are
harmful to marine life. [26] ¶ 34. Defendant also contends that plaintiff lacks
standing because she fails to allege that the three items she purchased were in fact
sourced using objectional fishing methods. [34] at 16–17. Defendant cites to cases in
which courts found a consumer’s injury to be too speculative, but those cases involved
allegations based on an uncertain number of products being defective. See Wallace v.
ConAgra Foods, Inc., 747 F.3d 1025, 1030 (8th Cir. 2014) (no injury in fact where
plaintiff did not allege that the particular packages sold to consumers were “tainted
by non-kosher beef” and it was unclear “whether even a bare majority of [the
products] were not kosher”); Renfro v. Champion Petfoods USA, Inc, 25 F.4th 1293,
1305 (10th Cir. 2022) (no injury in fact where plaintiff only alleged that dog food was
15
at risk of contamination without alleging that purchased dog food was contaminated).
Here, plaintiff alleges the harm is caused by defendant’s labeling of the products, and
the three purchased products all contain the allegedly deceptive labels. Her allegation
is that the supplying fisheries for these products employ methods that are harmful to
marine life and are therefore unsustainable, making the label (not the product inside)
an injurious lie. Plaintiff adequately alleges a particularized injury in fact.
3.
Prospective Injunctive Relief
To establish standing for injunctive relief, Sanchez must allege a “real and
immediate” threat of future violations. See Scherr v. Marriott Int’l, Inc., 703 F.3d
1069, 1074 (7th Cir. 2013). “Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief ... if unaccompanied by any
continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974).
Sanchez states that she would not have purchased Walmart’s seafood products if she
had known the truth about them. [26] ¶ 21. She is now aware of the true nature of
Walmart’s products and its marketing and is therefore unlikely to be harmed by
defendant’s practices in the future. See Camasta v. Jos. A. Bank Clothiers, Inc., 761
F.3d 732, 741 (7th Cir. 2014) (“Since [plaintiff] is now aware of [defendant’s] sales
practices, he is not likely to be harmed by the practices in the future. Without more
than the speculative claim that he will again be harmed by [defendant], [plaintiff] is
not entitled to injunctive relief.”). She also asserts that she seeks injunctive relief
based on Walmart’s “company-wide, pervasive, and continuous false advertising
campaign.” [38] at 18 (quoting Le v. Kohls Department Stores, Inc., 160 F.Supp.3d
16
1096, 1110 (E.D. Wis. 2016)). Even if she knows the true nature of the products, she
says other class members have a right to rely on Walmart’s representations in the
future. But plaintiff does not allege that she relied on anything other than Walmart’s
packaging labels when she made the decision to purchase the products. [26] ¶ 21.
Here too, plaintiff fails to allege individual standing. Because her allegation of future
harm is not real or immediate, plaintiff lacks standing to pursue injunctive relief.
B.
Illinois Uniform Deceptive Trade Practices Act
Sanchez brings a claim under the Illinois Uniform Deceptive Trade Practices
Act. [26] ¶¶ 165–176. The Act “enjoin[s]… trade practices which confuse or deceive
the consumer.” Popp v. Cash Station, Inc., 244 Ill.App.3d 87, 98 (1st Dist. 1992). While
it is generally invoked “to prohibit unfair competition and was not intended to be a
consumer protection statute,” a plaintiff may bring a consumer action suit under the
statute. Id. The statute does not provide a cause of action for monetary damages, so
a plaintiff is limited to seeking injunctive relief. Greenberg v. United Airlines, 206
Ill.App.3d 40, 46 (1st Dist. 1990). Claims for injunctive relief under the statute
require an allegation of ongoing or future harm. See Kensington’s Wine Auctioneers
& Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill.App.3d 1, 9 (1st Dist. 2009) (“To
be eligible for injunctive relief under the Deceptive Practices Act, a plaintiff must
show that the defendant’s conduct will likely cause it to suffer damages in the
future.”). “The problem in most consumer actions under the DTPA is the inability to
allege facts indicating the likelihood of damage in the future.” Popp, 244 Ill.App.3d
at 99. Here too, plaintiff does not allege likelihood to be deceived or confused in the
17
future by defendant’s products. Because plaintiff fails to state a claim upon which
relief can be granted, the UDTPA claim is dismissed.
C.
Illinois Consumer Fraud Act
The Illinois Consumer Fraud Act protects consumers “against fraud, unfair
methods of competition, and other unfair and deceptive business practices.” Robinson
v. Toyota Motor Credit Corp., 201 Ill.2d 403, 416–17. To state a claim under a
deception theory, Sanchez must plausibly allege: “(1) a deceptive act or practice by
the defendant; (2) the defendant’s intent that the plaintiff rely on the deception; and
(3) the occurrence of the deception during a course of conduct involving trade or
commerce.” Id. at 417. When evaluating a claim under an unfairness theory, a court
considers: “(1) whether the practice offends public policy; (2) whether it is immoral,
unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to
consumers.” Id. at 417–18. Not all three criteria must be met to support a finding of
unfairness. Id. at 418. While Sanchez alleges Walmart’s conduct to be both deceptive
and unfair, her amended complaint and response brief only address how defendant’s
conduct is deceptive or misleading. See [38] at 19–29. Defendant notes that “[plaintiff]
does not parse which of her claims allege fraudulent versus non-fraudulent conduct”
and “her allegations suggest that each claim is based on allegedly deceptive conduct.”
See [41] at 16 n.1. Because neither party substantively addresses the unfair conduct
claim and plaintiff’s claims sound in deception rather than unfairness, I consider only
whether Walmart’s conduct was deceptive. See G & S Holdings LLC v. Cont’l Cas.
Co., 697 F.3d 534, 538 (7th Cir. 2012) (“[A] party waives an argument by failing to
18
make it before the district court. That is true whether it is an affirmative argument
in support of a motion to dismiss or an argument establishing that dismissal is
inappropriate.”) (internal citations omitted).
Plaintiff brings claims under the ICFA and various state consumer protection
statutes, 9 all of which apply a reasonable consumer standard to deceptive marketing
claims. See Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 972 (7th Cir. 2020); Bell
v. Publix Super Markets, Inc., 982 F.3d 468, 475 (7th Cir. 2020). “A label is deceptive
if it is likely to mislead a reasonable consumer in a material respect, even if it is not
literally false.” Beardsall, 953 F.3d at 973. A deceptive act “must be looked upon in
light of the totality of the information made available to the plaintiff.” Davis v. G.N.
Mortg. Corp., 396 F.3d 869, 884 (7th Cir. 2005). “Consumer-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, especially in the seconds usually spent
picking a low-cost product.” Bell, 982 F.3d at 476.
Plaintiff takes issue with Walmart’s “Sustainability Promise” to consumers,
which includes a “multi-channel marketing campaign” in addition to the productlabel representations. [26] ¶ 2. The “multi-channel marketing campaign” refers to
statements made by Walmart’s executives, in-store and in-club signage, authorized
Plaintiff brings claims under the consumer protection statutes of eight other states:
California, Florida, Massachusetts, Michigan, Minnesota, New Jersey, New York, and
Washington. [26] ¶ 140 n.149. Defendant argues that plaintiff may not take a “laundry” list
approach to stating a claim under other state statutes. [34] at 25. State consumer protection
statutes, known as “Little-FTC Acts,” require a plaintiff to show likelihood of deception to a
reasonable consumer—“[t]he core prohibitions of these laws are interpreted for the most part
interchangeably.” Bell, 982 F.3d at 475.
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retailer websites, press tours, interviews, and press releases. [26] ¶ 4. Plaintiff’s
amended complaint includes many references to statements by Walmart
representatives about its commitment to sustainability. See, e.g., [26] ¶¶ 29–30, 67.
She also refers to in-store and in-club signage for its marketing campaign on fresh
and frozen seafood. [26] ¶ 78. Statements made by Walmart’s executives, in-store/inclub signage, webpages, and the like that plaintiff alleges are a part of defendant’s
broader marketing campaign fall outside of the scope of actionable conduct. Plaintiff
does not allege that she relied on these representations when purchasing defendant’s
seafood products. See [26] ¶ 21. Nor is there a plausible allegation that the reasonable
consumer would rely on these outside statements or representations. The reasonable
consumer standard looks at the totality of information available to the plaintiff. See
Davis, 396 F.3d at 884. A reasonable consumer would not be familiar with or rely
upon Walmart’s press statements or interviews with company executives. A
reasonable consumer could plausibly rely on in-store signage while perusing the
shopping aisle and purchasing defendant’s products, but plaintiff does not allege with
the requisite specificity what these representations conveyed. See [26] ¶ 78.
But there are other representations on the product labels that a reasonable
consumer might consider: the MSC Blue Tick certification, the “Sustainably Sourced
– 100% – Sustainability” label, and the back-label text about Walmart’s seafood
sustainability commitment. Plaintiff contends that “sustainable” or “sustainably
sourced” means the products “were sourced in a manner that would not harm the
20
marine ecosystem and promote marine health.” 10 [26] ¶¶ 14, 21. Defendant argues
that the ordinary meaning of “sustainable” refers to continuity of supply, and no
reasonable consumer would understand it to be a guarantee about avoiding the use
of certain fishing methods that may be harmful to marine life. [34] at 7–8. The
Federal Trade Commission’s Green Guides provide guidance on how reasonable
consumers are likely to interpret certain environmental claims in marketing. See 16
C.F.R. § 260.1(c)–(d). But the FTC determined in 2012 that it lacked a basis to give
specific guidance on how consumers interpret “sustainable” claims and declined to
include it in the final guides. 11 See Guides for the Use of Environmental Marketing
Claims, 77 Fed. Reg. 62122, 62124 (Oct. 11, 2012) (explaining areas not addressed by
the final guides). Merriam-Webster’s online dictionary provides three definitions,
including “of, relating to, or being a method of harvesting or using a resource so that
the
resource
is
not
depleted
or
permanently
damaged.”
Sustainable,
https://perma.cc/D8JE-3F4M (last visited May 13, 2024). The Oxford English
Plaintiff also alleges that Walmart’s sustainability representations are deceptive because
its suppliers lack transparency and traceability to support a claim of sustainability. [26]
¶¶ 64–71, 80–91. She defines traceability as “the ability to identify the origin of the product
and sources of input materials, as well as the ability to conduct backward and forward
tracking using recorded information to determine the specific location and history of the
product.” [26] ¶ 66. But plaintiff does not allege that a reasonable consumer understands
“sustainability” as meaning a commitment to transparency and traceability of seafood
products. While transparency about a product’s inputs and traceability of a product’s supply
chain help to monitor harmful fishing practices and therefore relate to sustainability efforts,
Walmart makes no representations about a product’s traceability and transparency on its
packaging. But see Wright v. Costco Wholesale Corp., 651 F.Supp.3d 1099, 1109 (N.D. Cal.
2023) (finding the statement “100% Traceable from Sea to Shelf” was actionable in the
context of defendant’s “dolphin-safe” representations on canned tuna product).
10
In 2022, the FTC requested public comment on whether the Commission should revisit the
determination and provide guidance on “sustainable” claims. See 87 Fed. Reg. 77766, 77769
(Dec. 20, 2022).
11
21
Dictionary lists three definitions, including “[c]apable of being maintained or
continued at a certain rate or level.” Sustainable, https://perma.cc/JMA5-WPBM (last
visited May 13, 2024). The OED provides another definition: “Designating forms of
human activity (esp. of an economic nature) in which environmental degradation is
minimized, esp. by avoiding the long-term depletion of natural resources; of or
relating to activity of this type. Also: designating a natural resource which is
exploited in such a way as to avoid its long-term depletion.” Id. The American
Heritage Dictionary provides two definitions of sustainability: (1) “[c]apable of being
sustained” and (2) “[c]apable of being continued with minimal long-term effect on the
environment.” Sustainable, https://perma.cc/5TBH-J9PV (last visited May 13, 2024).
Consistent with defendant’s interpretation, all of these definitions contain an element
of continuity of supply. But plaintiff’s interpretation of “sustainable” to include some
minimization of harm to the resource or environment is also tenable. At least by some
definitions (including the MSC’s own definition of “sustainable seafood”), the concepts
of continuity of supply and utilization of a resource in a way that avoids permanent
or long-term damage go hand-in-hand. It would be unreasonable for a consumer to
believe that harvesting results in no harm to the environment. After all, harvesting
fish for consumption inevitably results in harm to the fish. But harm to a species or
its environment can lead to depletion of a species’ population that makes long-term
exploitation unattainable. For example, plaintiff says fishing practices like pelagic
trawls that are used by Walmart’s suppliers result in discarded bycatch that lead to
high mortality rates of fish. [26] ¶ 40. This fishing method is harmful to the fish, but
22
that harm is also tied to the ability of the species to replenish its population at a rate
greater than consumption. [26] ¶ 41. Plaintiff also cites to a consumer perception
study of the phrase “ecologically sustainable” that found a majority consumers
“expect eco-labelled seafood to be harvested in a way that reduces impact on the fish
population or the marine environment.” [26] ¶ 28. While a reasonable consumer may
not understand the granular details of various fishing practices, plaintiff sufficiently
alleges that a reasonable consumer would expect seafood labeled as sustainable to be
sourced from fisheries that use practices that avoid long-term depletion. See Benson,
944 F.3d at 647 (“[Plaintiff’s] assertion that she and others attach importance to the
size of a package is enough for now to indicate that a ‘reasonable consumer’ does so
too.”).
All three representations on the product labels invoke sustainability, but not
all of them make the same promise. I evaluate the whole context of the packaging
and the totality of information available to the consumer.
The “Blue Tick” representing third-party certification by the Marine
Stewardship Council is prominent on the front and back labels of the products. The
back label provides more information: “This product comes from a fishery that has
been independently certified to the MSC’s standard for a well-managed and
sustainable fishery.” [26] ¶ 33 n.35. Defendant argues that plaintiff’s issues with the
MSC standards, fisheries deviating from the standard, and MSC’s certification
process are not based on representations made by Walmart. [34] at 14. The Blue Tick
conveys that the products were sourced from fisheries certified under the MSC
23
standard. [34] at 21. The FTC’s Green Guides state that a “[t]hird-party certification
does not eliminate a marketer’s obligation to ensure that it has substantiation for all
claims reasonably communicated by the certification.” 16 C.F.R. § 260.6(c). And “[a]
marketer’s use of a name, logo, or seal of approval of a third-party certifier or
organization may be an endorsement” subject to the Endorsement Guides. 16 C.F.R.
§ 260.6(b). The FTC’s Endorsement Guides provide that endorsements “may not
convey any express or implied representation that would be deceptive if made directly
by the advertiser.” 16 C.F.R. § 255.1. Here, though, the certification communicates
only that the product meets MSC’s standards for sustainability.
That statement is factually true, so it is not actionable as a deceptive or
misleading statement by Walmart. See Bohen v. ConAgra Brands, Inc., No. 23 C 1298,
2024 WL 1254128, at *7 (N.D. Ill. Mar. 25, 2024) (“The Blue Tick does exactly its
purpose—the product is MSC-certified. That label is not a lie.”); see also Dwyer v.
Allbirds, Inc., 598 F.Supp.3d 137, 150–51 (S.D.N.Y. 2022) (finding that defendant’s
use of a third party’s environmental impact rating was not misleading where
plaintiff’s argument was “simply a critique of [the third party organization’s]
methodology”); but see Dorris v. Danone Waters of Am., 2024 WL 112843, at *7
(S.D.N.Y. Jan. 10, 2024) (finding third-party certification was not clearly attributed
to the third party, and even if it had that clear attribution, it still conveyed the
independent and misleading term “carbon neutral”). Plaintiff takes issue with MSC’s
sustainability representation because it certifies fisheries that engage in
unsustainable practices, but Walmart’s representation remains true—the product
24
meets the Council’s standards. Plaintiff fails to state a claim for deceptive conduct
against Walmart based on the MSC certification label.
The back label contains text proclaiming Walmart’s commitment to sourcing
sustainable seafood, with a webpage link to its sustainability policy. Defendant says
that this statement cannot be read independently of the MSC certification: Walmart’s
commitment to seafood sustainability means a commitment to third-party
accreditation. [34] at 20. While each statement must be viewed in the context of the
packaging as a whole, a reasonable consumer could view Walmart’s seafood
sustainability commitment as separate from the MSC certification. The statement
about Walmart’s “full seafood sustainability” commitment is bolded in all-caps text
and directs the consumer to visit Walmart’s (not MSC’s) website. The MSC Blue Tick
is below and slightly to the right of this statement and directs the consumer to MSC’s
website. It is plausible that a reasonable consumer would interpret Walmart’s
statement on sustainability as independent of the MSC certification. See, e.g.,
Rawson v. ALDI, Inc., No. 21-CV-2811, 2022 WL 1556395, at *2 (N.D. Ill. May 17,
2022) (finding that a reasonable consumer could fail to connect defendant’s
sustainability representation with a third-party certification where the labels were
separated by color design, space on the package, and lacked other clarification of how
the third-party certification related to defendant’s sustainability representation). The
link directs a consumer to Walmart’s “Sustainability” webpage, which does not dispel
an assumption that it is separate from MSC certification. See Walmart,
Sustainability, https://perma.cc/3DCX-7CUJ (last visited May 13, 2024). Without
25
further context or clarification available, a reasonable consumer could view
Walmart’s statement as a separate representation.
One of the products, the Breaded Fish Sticks, contains the text “Sustainably
Sourced – 100% – Sustainability” on the upper right corner. [26] ¶ 33 n.34. Product
labels including a “100%” representation are commonplace in grocery store aisles, but
these labels can be ambiguous depending on the context. See, e.g., Bell, 982 F.3d at
481 (“The problem lies in the ‘100%,’ especially since the pleadings provide reason to
think that consumers understand “100% grated cheese” to mean that the cheese does
not have… additives.”); Moore v. Trader Joe’s Co., 4 F.4th 874, 882 (9th Cir. 2021)
(noting that the phrase “100% New Zealand Manuka Honey” could be interpreted as
“a claim that the product was 100% Manuka honey, that its contents were 100%
derived from the Manuka flower, or even that 100% of the honey was from New
Zealand”). A reasonable consumer could interpret defendant’s “Sustainably Sourced
– 100% – Sustainability” representation as an affirmative promise that the seafood
products were sourced exclusively from fisheries that passed MSC’s certification
standard. A reasonable consumer could also read the promise as independent of the
MSC certification to mean that 100% of the practices used in harvesting the seafood
was sustainable. The front-label stamp is placed on the top right of the packaging
whereas the Blue Tick is on the bottom right corner. [26] ¶ 33 n.34. The two
representations are separated by space, and no text otherwise suggests that the Blue
Tick clarifies the 100% label. Given this context, a reasonable consumer could view
the 100% label as an independent statement attributable to Walmart. At this stage
26
of the case, “[w]hat matters here is how consumers actually behave…[t]hese are
matters of fact, subject to proof that can be tested at trial.” Bell, 982 F.3d at 481.
Plaintiff plausibly alleges that the “Sustainably Sourced – 100% – Sustainability” is
deceptive, because the Breaded Fish Sticks were sourced by methods that did not
avoid long-term depletion of or harm to marine life.
Defendant argues that any sustainability representations attributable to
Walmart constitute puffery. Puffery encompasses “vague, highly subjective, or
exaggerated commercial statements or advertisements” that are nonactionable.
Evolve Biosystems, Inc. v. Abbott Lab’ys, No. 19 C 5859, 2022 WL 846900, at *5 (N.D.
Ill. Mar. 22, 2022). Statements are not puffery if they make “objective” and verifiable
claims and are “specific enough to induce consumer reliance.” Id. (citation omitted).
Walmart’s “Sustainably Sourced – 100% – Sustainability” is specific and objective to
the extent that it suggests some level of purity or perfection. See Rawson, 2022 WL
1556395 at *3 (“[Defendant’s] sustainable label… attempts to connect its product to
at least some environmental benefit. As a result, a reasonable inference can be made
that [defendant’s] label suggests, at a minimum, that its product is made in such a
way that minimizes negative impact to the environment, which can be actionable as
something beyond puffery”). But Walmart’s back-label statement about its “seafood
sustainability commitment” is cloaked in the type of vague and aspirational language
that amounts to mere puffery. See, e.g., Myers v. Starbucks Corp., No.
EDCV2000335CJCSHKX, 2020 WL 13302437, at *4 (C.D. Cal. July 29, 2020) (finding
the claim, “[s]upports sustainably sourced cocoa through Cocoa Horizons,” to be mere
27
puffery because of “aspirational language” on the product label like “promotes,”
“aims,” and “supports”). The linked webpage offers nothing more specific and
verifiable than what appears on the back label. It is littered with statements like,
“[b]uilding on more than 15 years of sustainability leadership, we’re on a path to
becoming a regenerative company” or “[u]nderlining the ways our sustainability
efforts prioritize people, we aim to source responsibly and promote human dignity.”
See Walmart, Sustainability, https://perma.cc/3DCX-7CUJ (last visited May 13,
2024). Walmart’s back-label statement about its “sustainability commitment” is
corporate blather about Walmart’s aspirations. Perhaps it is Orwellian doublespeak
obscuring the company’s complicity in a looming environmental disaster, but it is not
actionable under the Act.
Plaintiff does not sufficiently plead that the MSC Blue Tick or Walmart’s
“sustainability commitment” constitute deceptive conduct. But the “Sustainably
Sourced – 100% – Sustainability” label is actionable as a deceptive statement.
D.
Unjust Enrichment
Sanchez also seeks restitution for unjust enrichment. [26] ¶¶ 187–94. Under
Illinois law, unjust enrichment does not constitute an independent cause of action.
Flores v. Aon Corp., 2023 IL App (1st) 230140, ¶ 37. Instead, it is a “condition that
may be brought about by unlawful or improper conduct… such as fraud.” Charles
Hester Enterprises, Inc. v. Illinois Founders Ins. Co., 137 Ill.App.3d 84, 90–91 (5th
Dist. 1986). Plaintiff’s request for relief based on unjust enrichment stands or falls
with her ICFA claim. See Cleary v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir.
28
2011). Because plaintiff’s ICFA claim survives, the request for restitution based on
unjust enrichment survives as well.
IV.
Conclusion
Defendant’s motion to dismiss, [33], is granted in part and denied in part.
Plaintiff’s claims related to products that she did not purchase, along with the request
for prospective injunctive relief, are dismissed for lack of standing. The claims under
the Illinois Consumer Fraud Act (Count I), other state consumer protection statutes
(Count III), and for unjust enrichment (Count IV) survive in part. The claim brought
under the Uniform Deceptive Trade Practices Act (Count II) is dismissed. All
dismissals are without prejudice. 12
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: May 13, 2024
A dismissal for lack of standing precludes a dismissal with prejudice. See Flynn v. FCA US
LLC, 39 F.4th 946, 954 (7th Cir. 2022) (“When a district court concludes that the plaintiff
lacks standing—and thus that the court lacks jurisdiction—the judge may either dismiss
without leave to amend or dismiss without prejudice.”). A dismissal for failure to state a claim
is without prejudice to provide plaintiff with an opportunity to amend her complaint. See
Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 519
(7th Cir. 2015) (“Ordinarily… a plaintiff whose original complaint has been dismissed under
Rule 12(b)(6) should be given at least one opportunity to try to amend her complaint before
the entire action is dismissed.”).
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