Markoff v. Athena Cosmetics, Inc.

Filing 46

MEMORANDUM Opinion and Order. Signed by the Honorable Andrea R. Wood on 1/28/2025. Mailed notice (lma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CORRINE MARKOFF, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
ATHENA COSMETICS, INC.,
Defendant.

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No. 23-cv-16401
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Defendant Athena Cosmetics, Inc. (“Athena”) manufactures and sells beauty products,
including four serums advertised as naturally enhancing the appearance of eyelashes or
eyebrows. Plaintiff Corrine Markoff alleges that she purchased and used one of Athena’s eyelash
serums, after which she experienced pain and eye inflammation. According to Markoff, although
Athena markets its serums as over-the-counter cosmetics without warning of any adverse side
effects, the serums contain dechloro dihdroxy difluoro ethylcloprostenolamide (“DDDE”), an
ingredient purportedly associated with adverse reactions affecting the eye. Because of Athena’s
alleged failure to disclose the risks associated with DDDE, Markoff has brought the present
putative class action asserting claims under state consumer protection law, as well as common
law claims for fraud, breach of warranty, negligence, and unjust enrichment. Before the Court is
Athena’s motion to dismiss the First Amended Class Action Complaint (“FAC”) pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 23.) For the reasons that follow, Athena’s
motion is granted in part and denied in part.

BACKGROUND
For purposes of the motion to dismiss, the Court accepts as true all well-pleaded facts in
the FAC and views those facts in the light most favorable to Markoff as the non-moving party.
Hardimon v. Am. River Transp. Co., LLC, N.A., 95 F.4th 1130, 1133 (7th Cir. 2024). The FAC
alleges as follows.
Athena manufactures and sells RevitaLash Advanced, RevitaBrow Advanced,
RevitaLash Advanced Pro, and RevitaLash Advanced Sensitive (collectively, the “Products”),
which are advertised as serums that naturally improve the appearance of the user’s eyelashes or
eyebrows. (FAC ¶¶ 2, 7, 38, Dkt. No. 22.) Each of the Products is sold over the counter
nationwide1 as a natural beauty product that enhances appearance. (Id. ¶¶ 6, 11.) In marketing the
Products, Athena suggests that the Products do not contain any harmful substances and implies
that natural ingredients like green tea, ginseng, and vitamins are what help enhance the
appearance of eyelashes and eyebrows. (Id. ¶¶ 7, 33–34.) And, until recently, Athena represented
that no Product contained any ingredient that could be considered a “drug.” (Id. ¶ 36.)
Notwithstanding Athena’s implicit representations that the Products are safe and natural,
Markoff claims that each Product actually contains DDDE. (Id. ¶¶ 2–3, 43.) DDDE is a
prostaglandin analog (“PGA”), a class of compounds found in prescription drugs used to aid the
growth, lengthening, and thickening of eyelashes and eyebrows. (Id. ¶¶ 3–4, 28.) Due to the risk
of side effects, the Food and Drug Administration (“FDA”) has approved PGAs for use only
under the supervision of a physician. (Id. ¶¶ 3, 5.) Other PGAs have been associated with a risk
of adverse effects impacting the eye and its surrounding area, such as blepharitis, Meibomian

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Athena has been enjoined from selling the Products over the counter in California. (See FAC ¶ 9);
Allergan, Inc. v. Athena Cosmetics, Inc., 738 F.3d 1350 (9th Cir. 2013).

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Gland Dysfunction, chronic dry eye, redness, discoloration, pain, and irritation. (Id. ¶ 4.) A
product similar to Athena’s Products and containing another PGA that promotes eyelash growth
received FDA approval as an ophthalmic drug and is available only by prescription. (Id. ¶ 32.)
Yet Athena long represented that the Products were safe and free of any side effects, even though
it knew them to contain DDDE. (Id. ¶¶ 22, 44–46, 53.) Similarly, no Product’s packaging or
labeling disclosed any side effects associated with its use. (Id. ¶ 23.) Only recently did Athena
update its website to include a disclaimer about potential side effects associated with the
Products. (Id. ¶ 48.) But even that disclaimer still asserts “that the cause of any effect is not
known, or is simply some unspecified allergic reaction.” (Id.)
Markoff, an Illinois resident, purchased one of the products, specifically, RevitaLash
Advanced. (Id. ¶¶ 15–16.) After reviewing Athena’s marketing materials and the product’s
packaging, Markoff believed it to be safe and free from side effects. (Id. ¶ 16.) After using
RevitaLash Advanced, however, Markoff experienced pain and inflammation in her eye area.
(Id. ¶ 17. ) Her experience was similar to that reported by other people who bought and used the
Products. Multiple reviews posted on websites that sell the Products reveal that several users
experienced various adverse effects to their eyes and surrounding areas, such as itching, burning,
and redness. (Id. ¶ 47.)
According to Markoff, had she known of the side effects associated with the Products,
she would not have bought RevitaLash Advanced or at least she would have paid less for it. (Id.
¶ 16.) For that reason, she filed the present lawsuit on behalf of herself and a putative class of
similarly situated persons, seeking to recover economic damages sustained as a result of
Athena’s alleged misrepresentations regarding the Products’ safety and side effects. Markoff

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seeks to represent a nationwide class defined to include “all individuals in the United States and
its territories and possession who, from the beginning of the statutory period through the present,
paid any money for [the Products] for personal, family, or household purposes.” (Id. ¶ 57.) She
also seeks to represent a subclass consisting of “individuals in Illinois who, from the beginning
of the statutory period through the present, paid any money for [the Products] for personal,
family, or household purposes.” (Id.) The FAC asserts the following claims: violation of state
consumer protection laws, including the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505/1 et seq. (Count I)2; fraud (Count II); negligent misrepresentation
(Count III); breach of express warranty (Count IV); breach of implied warranty (Count V);
negligence (Count VI); and unjust enrichment (Count VII). Athena now seeks dismissal of all
Markoff’s claims.
DISCUSSION
To survive a motion under Rule 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
pleading standard does not necessarily require a complaint to contain detailed factual
allegations. Twombly, 550 U.S. at 555. Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728

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The FAC states that Markoff asserts this claim “on behalf of herself and all similarly situated class
members under Illinois law and all states’ laws that do not conflict with Illinois law.” (FAC ¶ 67.) It then
lists consumer protection statutes for 50 individual states, the District of Columbia, and the
Commonwealth of Puerto Rico. (Id.) Similarly, each of the common law counts states that the claim
alleged therein is brought “on behalf of herself and all similarly situated class members under Illinois law
and all states’ laws that do not conflict with Illinois law.” (See id. ¶¶ 80, 94, 110, 124, 138, 147.)

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(7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Here, Athena first contends the FAC should be
dismissed in its entirety because all Markoff’s claims are preempted by the Food, Drug, and
Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq. Alternatively, even if not preempted, Athena
contends that none of Markoff’s claims are adequately pleaded.
I.

Implied Preemption

Under the FDCA, a cosmetic is regulated differently, and more leniently, than a drug.
See, e.g., Estee Lauder, Inc. v. FDA, 727 F. Supp. 1, 2 (D.D.C. 1989) (discussing how cosmetics
and drugs are regulated under the FDCA). Athena argues that Markoff’s lawsuit essentially seeks
to establish that the Products are mislabeled as cosmetics when they are, in fact, drugs and
should be regulated as such. This is improper, according to Athena, because the determination of
how the Products should be labeled is a task the FDCA assigns exclusively to the FDA. Indeed,
the FDCA contains no private right of action, Turek v. General Mills, Inc., 662 F.3d 423, 426
(7th Cir. 2011), and makes clear that, generally, “all . . . proceedings for the enforcement, or to
restrain violations, of [the FDCA] shall be by and in the name of the United States,” 21 U.S.C.
§ 337(a). Thus, Athena contends that Markoff’s claims are preempted as an improper attempt to
privately enforce the FDCA.
The doctrine of preemption stems from the U.S. Constitution’s Supremacy Clause, which
provides that “[t]his Constitution, and the Laws of the United States which shall be made in
Pursuance thereof . . . shall be the supreme Law of the Land.” U.S. Const. art. VI; McHenry
County v. Raoul, 44 F.4th 581, 587 (7th Cir. 2022). “The underlying rationale of the pre-emption
doctrine . . . is that the Supremacy Clause invalidates state laws that interfere with or are contrary
to, the laws of congress.” Chi. & N. W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317
(1981) (internal quotation marks omitted). Preemption can be express where Congress “define[s]
explicitly the extent to which its enactments pre-empt state law.” English v. Gen. Elec. Co., 496
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U.S. 72, 79 (1990). Here, however, Athena invokes implied or conflict preemption, which occurs
“where ‘state law is pre-empted to the extent that it actually conflicts with federal law.’” Stacel v.
Teva Pharms., USA, 620 F. Supp. 2d 899, 903 (N.D. Ill. 2009) (quoting English, 496 U.S. at 79).
State or local law is impliedly preempted “if it would be impossible for a party to comply with
both local and federal requirements or where local law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” Aux Sable
Liquid Prods. v. Murphy, 526 F.3d 1028, 1033 (7th Cir. 2008) (internal quotation marks
omitted).3
When preemption has been raised as a defense, the Court begins “with the assumption
that the historic powers of the States were not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress,” particularly when “Congress has legislated in a
field which the States have traditionally occupied.” Wyeth v. Levine, 555 U.S. 555, 565 (2009)
(internal quotation marks omitted). Matters of public health and safety have “primarily, and
historically, [been] matters of local concern.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)
(internal quotation marks omitted). Accordingly, with respect to the FDCA, the Supreme Court
has observed that, “[a]s it enlarged the FDA’s powers to protect the public health and assure the
safety, effectiveness, and reliability of drugs, Congress took care to preserve state law.” Wyeth,
555 U.S. at 567 (internal quotation marks omitted). In Wyeth, the Supreme Court further
observed that the FDCA’s lack of “a federal remedy for consumers harmed by unsafe or

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In considering preemption at the motion to dismiss stage, the Court is mindful that “[p]reemption is an
affirmative defense and pleadings need not anticipate or attempt to circumvent affirmative defenses.”
Bausch v. Stryker Corp., 630 F.3d 546, 561 (7th Cir. 2010) (citation omitted). Thus, dismissal under Rule
12(b) is proper only “where the allegations of the complaint itself set forth everything necessary to satisfy
the affirmative defense.” Novotney v. Walgreen Co., 683 F. Supp. 3d 785, 788 (N.D. Ill. 2023) (quoting
Sidney Hillman Health Ctr. of Rochester v. Abbott Lab’ys, Inc., 782 F.3d 922, 928 (7th Cir. 2015)).

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ineffective drugs” demonstrates that Congress “determined that widely available state rights of
actions provided appropriate relief for injured consumers.” Id. at 574. Further evidencing “that
Congress did not regard state tort litigation as an obstacle to achieving its purposes” is the
absence of a provision in the FDCA expressly preempting all such claims. Id. at 574–75.4
To support its contention that any state law tort claim that, in essence, seeks to enforce
the FDCA is impliedly preempted, Athena largely relies on Buckman Co. v. Plaintiffs’ Legal
Committee, 531 U.S. 341 (2001). There, the Supreme Court held that the FDCA impliedly
preempted state law tort claims arising from the defendant’s fraudulent representations to the
FDA in applying for approval to market certain medical devices. Id. at 343–44. The Supreme
Court explained that the plaintiffs’ state law fraud-on-the-FDA claims conflicted with the FDCA
because the statute “empowers the FDA to punish and deter fraud against the Administration,
and that . . . authority is used by the Administration to achieve a somewhat delicate balance of
statutory objectives. The balance sought by the Administration can be skewed by allowing fraudon-the-FDA claims under state tort law.” Id. at 348. Yet the Supreme Court made clear in
Buckman that its holding was predicated on the fact that “[p]olicing fraud against federal
agencies is hardly ‘a field which the States have traditionally occupied,’” contrasting the case
before it with “situations implicating ‘federalism concerns and the historic primacy of state
regulation of matters of health and safety.’” Id. at 347–48 (first quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947); and then quoting Medtronic, 518 U.S. at 485).

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The Supreme Court did note that Congress enacted “an express pre-emption provision for medical
devices,” but it went on to conclude that Congress’s decision to confine preemption narrowly to medical
devices “coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence
that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and
effectiveness.” Wyeth, 555 U.S. at 574.

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The fraud-on-the-FDA claims in Buckman were not impliedly preempted because those
state law claims paralleled federal safety requirements but rather because the claims “exist[ed]
solely by virtue of the FDCA disclosure requirements.” Id. at 352–53. Put differently, “were the
plaintiffs to maintain their fraud-on-the-agency claims [in Buckman], they would not be relying
on traditional state tort law which had predated the federal enactments in question [because] the
existence of th[o]se federal enactments [was] a critical element in their case.” Id. at 353. As
interpreted by the Seventh Circuit, Buckman stands for the proposition that a “plaintiff must not
be suing because the conduct violates the [FDCA]” for “such a claim would be impliedly
preempted.” Bausch v. Stryker Corp., 630 F.3d 546, 557–58 (7th Cir. 2010); see also Jacob v.
Mentor Worldwide, LLC, 40 F.4th 1329, 1336 (11th Cir. 2022) (“State-law claims based on
conduct that violates the [FDCA] can escape implied preemption only if the alleged wrongdoing
would give rise to liability under state law even if the [FDCA] did not exist.”).
Here, the state law tort claims in the FAC are firmly rooted in the states’ historic power to
protect citizens’ health and safety. While Markoff’s claims might also support a violation of the
FDCA, they do not depend on the existence of a violation of the FDCA. Instead, the claims are
rooted in the allegation that Athena sells products that it knows contain an ingredient associated
with adverse side effects but fails to disclose fully the potential risks to customers. See, e.g.,
Gravitt v. Mentor Worldwide, LLC, 289 F. Supp. 3d 877, 888 (N.D. Ill. 2018) (“Buckman does
not preempt . . . ‘tort law claims based on manufacturing defects’ or the manufacturer’s failure to
warn of the product’s known and unacceptable risks.” (quoting Bausch, 630 F.3d at 557));
Caraker v. Sandoz Pharms. Corp., 172 F. Supp. 2d 1018, 1032 (S.D. Ill. 2001) (“Illinois’[s] duty
that manufacturers of dangerous products warn individuals as to the product’s dangers falls
within the state’s traditional role of protecting the health and safety of its citizens.”). As

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explained by another district court that considered the same implied preemption argument
Athena raises here, “[w]arning of [the alleged safety risks associated with DDDE] serves an
important public health purpose and can be addressed via state claims.” Slattery v. Athena
Cosmetics, Inc., No. 2:23-cv-10078-HDV (AJRx), 2024 WL 3914615, at *6 (C.D. Cal. July 17,
2024). And there is no indication in the FDCA that Congress intended to displace previously
available tort remedies for customers who have been harmed by unsafe cosmetics. See Wyeth,
555 U.S. at 574 (“[Congress] may also have recognized that state-law remedies further consumer
protection by motivating manufacturers to produce safe and effective drugs and to give adequate
warnings.”).
That the FAC relies on FDA findings regarding the safety issues associated with PGAs
does not mean that Markoff is seeking to enforce the FDCA. See Slattery, 2024 WL 3914615, at
*5 (“Plaintiff points to the FDA findings as evidence, but its claim in no way rises or falls on the
actions of the FDA or any interpretation of the FDCA.”). Importantly, the FAC plausibly alleges
that the safety risks associated with DDDE are more than theoretical, as it claims that Markoff
personally experienced pain and eye inflammation as a result of using one of the Products. (FAC
¶ 17.) Further, the FAC points to multiple reviews of the Products in which customers report
experiencing similar side effects as Markoff. (Id. ¶¶ 6, 47.) Given that Markoff and others are
alleged to have actually experienced side effects from using the Products, and the side effects
they experienced are consistent with adverse effects associated with other PGAs (id. ¶¶ 4, 30),
the FAC’s allegations regarding the risks posed by the DDDE-containing Products stand on their
own and do not depend on any FDA determination. Slattery, 2024 WL 3914615, at *5 (“[The
plaintiff] does allege that she was physically injured and includes other allegations to support

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that the Products marketed and sold by Athena containing DDDE pose substantial risks to
consumers—independent of any FDA determination.”).
The allegations concerning Markoff’s (and other putative class members’) experience of
tangible harm from using the Products distinguishes the claims here from those in Wilson v.
ColourPop Cosmetics, LLC, No. 22-cv-05198-TLT, 2023 WL 6787986 (N.D. Cal. Sept. 7,
2023). In Wilson, the district court found impliedly preempted claims that sought “to impose
liability on [the defendant] because [the defendant’s] conduct of allegedly using ingredients
designated by the FDA as unsuitable and unapproved for cosmetic use in the eye area violates
the FDCA.” Id. at *7–8 (internal quotation marks omitted). Importantly, the plaintiff in Wilson
did not personally experience a negative physical reaction from using the relevant products. Id. at
*4. Indeed, Wilson relies in substantial part on a Ninth Circuit precedent that distinguishes claims
in which a patient who has suffered harm asserts a traditional common law tort (which survive
preemption) from those where the alleged state law violation is solely derived from
noncompliance with the FDCA (which do not). See Nexus Pharms., Inc. v. Cent. Admixture
Pharmacy Servs., Inc., 48 F.4th 1040, 1050 (9th Cir. 2022) (“[The plaintiff] does not claim harm
to a patient, where a traditional common law tort action might provide a remedy to the patient
and escape preemption. Instead, the claim is that a manufacturer is harmed economically because
the defendant violated the FDCA.” (footnote omitted)); see also Slattery, 2024 WL 3914615, at
*5 (explaining that, in Nexus, “[a] claim for economic harm was insufficient because the state
law violations relied on alleged FDCA violations”).
In short, Markoff’s tort claims in the FAC seeking to hold Athena liable for its failure to
disclose the Products’ potential side effects—which are alleged to have been actually
experienced by Markoff and other users of the Products—could be asserted regardless of

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whether that same conduct also violates the FDCA. Consequently, the Court finds that the FAC’s
claims are not impliedly preempted.
II.

State Law Consumer Protection Claim (Count I)

Turning to the sufficiency of Markoff’s individual claims, the Court begins with Athena’s
contention that Markoff has failed to satisfy federal pleading standards with respect to the
alleged violation of state statutory consumer protection law. In particular, Athena faults the FAC
for listing over fifty consumer protection statutes under Count I without addressing how the
allegations in the FAC satisfy the elements of any single one of those laws. Athena, however,
demands too much of Markoff at the pleading stage.
Under the federal notice pleading system, a “complaint need contain only factual
allegations that give the defendant fair notice of the claim for relief and show the claim has
‘substantive plausibility.’” Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind.,
786 F.3d 510, 517 (7th Cir. 2015) (quoting Johnson v. City of Shelby, 574 U.S. 10, 12 (2014)
(per curiam)). Here, the FAC sets forth detailed allegations about how Athena misled Markoff
and other customers into believing that the Products were all-natural and free of side effects, that
Markoff and other customers relied on Athena’s deceptive actions, and that they suffered actual
damages as a result. These allegations are sufficient to support a claim under the Illinois
Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505 et seq., the state
consumer protection statute applicable to Illinois residents like Markoff. See, e.g., Oshana v.
Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006) (listing the elements of a claim for damages
under the ICFA as including (1) a deceptive act or practice by the defendant; (2) that the act or
practice occurred in the course of conduct involving trade or commerce; (3) that the defendant
intended the plaintiff to rely on the deception; and (4) that actual damages were proximately
caused by the deception); Rudy v. Fam. Dollar Stores, Inc., 583 F. Supp. 3d 1149, 1158 (N.D. Ill.
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2022) (explaining that, under the ICFA, a practice is deceptive where there is “a probability that
a significant portion of the general consuming public acting reasonably in the circumstances,
could be misled” (internal quotation marks omitted)). “Having informed [Athena] of the factual
basis for [her] complaint, [Markoff was] required to do no more to stave off threshold dismissal
for want of an adequate statement of [her] claim.” Johnson, 574 U.S. at 12.
In arguing that the FAC fails to plead Markoff’s statutory consumer protection claim
adequately, Athena implicitly suggests that the FAC be evaluated under the standards of code
pleading such that the FAC should have “plead[ed] the elements of a cause of action along with
facts supporting each element.” Runnion, 786 F.3d at 517. But the notice pleading system
established by the Federal Rules of Civil Procedure does not require such level of detail.
Deslandes v. McDonald’s, USA, LLC, 81 F.4th 699, 705 (7th Cir. 2023) (“Nor need a complaint
plead law or match facts to elements of legal theories.”). Indeed, a complaint need not even plead
legal theories. Auto Driveaway Franchise Sys., LLC v. Auto Driveaway Richmond, LLC, 928
F.3d 670, 675 (7th Cir. 2019).5 Consequently, the Court rejects Athena’s contention that the state
law statutory consumer protection claim at Count I must be dismissed as inadequately pleaded.

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To the extent Athena criticizes Markoff for not stating a claim under each and every state consumer
protection statute listed in the FAC, that is not necessary for Markoff to survive a Rule 12(b)(6) motion.
The Court understands Markoff to be pursuing her individual claims under Illinois law. Notably, the
consumer protection laws of other states appear to be listed in the FAC primarily as support for Markoff’s
putative nationwide class action. Whether Markoff can satisfy the requirements for certification of a class
whose members have claims arising under the laws of states other than Illinois has not been briefed by the
parties and, in any case, is a matter properly raised under Federal Rule of Civil Procedure 23 in response
to a motion for class certification or, at the pleadings stage, via a motion to strike class allegations. See
Harris v. Rust-Oleum Corporation, No. 21-cv-01376, 2022 WL 952743, at *3–*4 (N.D. Ill. March 30,
2022) (explaining that, “in certain circumstances, it will be apparent from the complaint that the class
allegations are facially and inherently deficient and therefore class certification is inappropriate” and
citing cases approving a motion to strike as an appropriate device to determine whether a case will
proceed as a class action) (internal quotation marks omitted). Athena, however, did not file a Rule 23
motion and instead challenges only whether Markoff has stated a claim. Similarly, in response to
Athena’s Rule 12(b)(6) motion, Markoff need not show that she has stated a claim under the common law

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III.

Fraud (Count II)

Next, Athena contends that Markoff’s fraud claim at Count II is not pleaded with the
particularity required by Federal Rule of Civil Procedure 9(b). Rule 9(b) requires that a party
alleging fraud “state with particularity the circumstances constituting fraud,” although “[m]alice,
intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R.
Civ. P. 9(b). To state the circumstances of fraud with sufficient particularity, the plaintiff must
allege “the who, what, when, where, and how: the first paragraph of any newspaper story.”
DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). “Courts in this circuit have
recognized that the standard to state a fraudulent omission claim under Rule 9(b) is more relaxed
than the typical fraud claim.” FDIC v. Patel, No. 19-cv-6917, 2020 WL 6681348, at *2 (N.D. Ill.
Nov. 12, 2020).
In support of dismissal, Athena first asserts that the FAC fails to allege with particularity
any safety risk associated with DDDE and therefore does not plead sufficiently that Athena
fraudulently omitted to warn of those risks. The Court disagrees. As noted above, the FAC
alleges that DDDE is a PGA, and thus falls within a class of compounds associated with adverse
reactions to the eye and surrounding areas. Moreover, the FAC alleges that Markoff and other
purchasers of the Products experienced similar adverse effects after they used a Product. The
FAC also cites a study by the European Commission Scientific Committee on Consumer Safety
that was unable to conclude that DDDE is safe for use in cosmetics meant to be applied around
the eye. (FAC ¶ 31.) Taken together, the FAC alleges the potential safety risk posed by DDDE
with sufficient particularity. See United States v. Molina Healthcare of Ill., Inc., 17 F.4th 732,

of each state for fraud, negligent misrepresent, breach of warranty (express and implied), negligence, or
unjust enrichment.

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741 (7th Cir. 2021) (“Rule 9(b) requires specificity, but it does not insist that a plaintiff literally
prove his case in the complaint.”). Given its alleged awareness that the Products’ contained
DDDE, it is reasonable to infer that Athena knew or should have known that the Products could
cause side effects similar to those caused by other PGAs. The FAC therefore plausibly alleges
that Athena’s failure to disclose the Products’ potential safety risks was a fraudulent omission.
E.g., In re Testosterone Replacement Therapy Prods. Liab. Litig., No. 14 C 1748, 2014 WL
7365872, at *7 (N.D. Ill. Dec. 23, 2014) (“[P]laintiffs have also sufficiently pled fraud by
omission. They allege that defendants failed to disclose the risks of stroke, pulmonary embolism,
and cardiovascular events and that they knew or should have known about these side effects.”).
Second, Athena argues that the FAC does not sufficiently plead that Athena’s omissions
were made with the intent to induce Markoff and other customers to act. But even under Rule
9(b) intent can be alleged generally. It is enough at this stage that the FAC alleges that Athena
sold products that it knew contained a PGA without disclosing that PGAs can cause adverse
reactions and instead emphasized the effects of the Products’ natural ingredients. And even when
Athena eventually acknowledged the side effects associated with use of the Products, it
nonetheless tended to downplay the frequency of those adverse reactions and claimed ignorance
as to their cause. (FAC ¶¶ 48–49.) Together, the FAC’s allegations make it plausible that Athena
omitted pertinent information regarding with the Products with the intent to mislead customers
into believing that the Products were safe and natural. See Robin v. Arthur Young & Co., 915
F.2d 1120, 1127 (7th Cir. 1990) (“[W]hile the defendant’s mental state need not be pleaded with
particularity, the complaint must still afford a basis for believing that plaintiffs could prove
scienter.” (internal quotation marks omitted)).

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Because the FAC pleads fraud with particularity, Athena’s motion to dismiss is denied
with respect to the fraud claim in Count II.
IV.

Negligence-Based Claims (Counts III and VI)

Athena contends that Count III’s claim for negligent misrepresentation and Count VI’s
negligence claim must be dismissed as barred by the economic loss doctrine. Under Illinois law,
the economic loss doctrine provides that a “plaintiff cannot recover for solely economic loss
under the tort theories of strict liability, negligence and innocent misrepresentation.” Moorman
Mfg. Co. v. Nat’l Tank Co., 435 N.E.2d 443, 453 (Ill. 1982). Since Markoff concededly seeks to
recover only the economic damages she incurred as a result of Athena’s omissions, Athena
argues that the economic loss doctrine precludes her negligence claims.
Markoff’s claimed damages are based on the amount she paid for the Products in excess
of what she would have paid if their safety risks had been fully disclosed, which fall squarely
within the ambit of the economic loss doctrine. See Sienna Ct. Condo. Ass’n v. Champion
Aluminum Corp., 129 N.E.3d 1112, 1119 (Ill. 2018) (“In essence, the economic loss, or
commercial loss, doctrine denies a remedy in tort to a party whose complaint is rooted in
disappointed contractual or commercial expectations.” (internal quotation marks omitted)).
When a purchaser of a defective product suffers “harm relat[ing] to the consumer’s expectation
that a product is of a particular quality so that it is fit for ordinary use, contract, rather than tort,
law provides the appropriate set of rules for recovery.” Moorman, 435 N.E.2d at 451. While
Markoff contends that the economic loss doctrine does not apply because her negligence claims
do not relate to the performance of a contract, she supports this proposition by citing a case
involving the provision of a service. Flores v. Aon Corp., 242 N.E.3d 340, 360–61 (Ill. App. Ct.
2023) (“[T]he Illinois Supreme Court . . . held that the [economic loss] doctrine applies to the
service industry only where the duty of the party performing the service is defined by a contract
15

executed with the client.” (citing Congregation of the Passion, Holy Cross Province v. Touche
Ross & Co., 636 N.E.2d 503, 514 (Ill. 1994))). By contrast, the present case involves the sale of
tangible goods and the doctrine applies with full force. See Anderson Elec. v. Ledbetter Erection
Corp., 503 N.E.2d 246, 249 (Ill. 1986) (“In Moorman, after determining that the losses the
plaintiff sought to recover resulted solely from its disappointed commercial expectations, this
court held that the plaintiff’s remedy must lie under the warranty provisions of the Uniform
Commercial Code.”); see also Bruno v. Am. Textile Co., No. 22-cv-2937, 2023 WL 6976826, at
*5 (N.D. Ill. Oct. 23, 2023) (“Courts in this district consistently deny negligent misrepresentation
claims due to the economic loss doctrine in cases where a plaintiff alleges he was duped by
deceptive trade practices.”).
Markoff also argues that the Court should refrain from dismissing her claims under the
economic loss doctrine because, with discovery, she may be able to establish the applicability of
one of the doctrine’s exceptions. But Markoff cannot avoid dismissal simply by speculating that
she may later be able to establish some exception without explaining how any particular one
might apply. In any case, as alleged, no exception to the economic-loss doctrine can save the
negligence-based claims.
Illinois law recognizes the following three exceptions to the economic loss doctrine:
(1) where the plaintiff sustained damage, i.e., personal injury or property damage,
resulting from a sudden or dangerous occurrence; (2) where the plaintiff’s damages
are proximately caused by a defendant’s intentional, false representation, i.e., fraud;
and (3) where the plaintiff’s damages are proximately caused by a negligent
misrepresentation by a defendant in the business of supplying information for the
guidance of others in their business transactions.

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In re Chi. Flood Litig., 680 N.E.2d 265, 275 (Ill. 1997) (citations omitted).6 As to the first
exception, while Markoff does allege that she suffered personal injury from using the Products,
her injury did not result from a sudden or dangerous occurrence. Markoff does not argue, and the
Court does not understand her to be alleging, that the side effects she experienced qualify as a
sudden or dangerous event. See Loman v. Freeman, 890 N.E.2d 446, 452 (Ill. 2008) (“This court
had in mind fires, explosions, or other calamitous occurrences due to the failure of a product and
the resulting risk of harm to persons or property.”). The third exception is also inapplicable
because, although Markoff alleges a negligent misrepresentation, Athena is in the business of
manufacturing and selling cosmetics—i.e., tangible goods—not supplying information for the
guidance of others in their business transactions. See, e.g., Manley v. Hain Celestial Grp., Inc.,
417 F. Supp. 3d 1114, 1120 (N.D. Ill. 2019) (“[T]he negligent misrepresentation exception to the
Moorman doctrine is not applicable if the information supplied is merely ancillary to the sale of a
product.”); Kinman v. Kroger Co., 604 F. Supp. 3d 720, 727 (N.D. Ill. 2022) (“The [negligent
misrepresentation] exception does not . . . apply to information provided by the purveyor of
tangible products.”).
Because Markoff seeks to recover for solely economic losses and no exception to
Illinois’s economic loss doctrine applies, the FAC’s negligent misrepresentation and negligence
claims at Counts III and VI are dismissed.

6

The second exception is the reason Markoff’s fraud claims are not subject to challenge under Moorman,
but it does not save her negligence claims. See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 568–574
(7th Cir. 2012) (finding that fraud claims survived dismissal under the intentional misrepresentation
exception to the economic loss doctrine but the negligent misrepresentation claim did not).

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V.

Breach of Express Warranty (Count IV)

In Count IV, the FAC alleges that Athena breached an express warranty that the Products
were safe and effective for their intended use. “In Illinois, an express warranty is created where
(1) the seller makes an affirmation of fact or promise; (2) that relates to the goods; and (3)
becomes part of the basis of the bargain between the parties.” CHS Acquisition Corp. v. Watson
Coatings, Inc., No. 17-cv-4993, 2018 WL 3970137, at *3 (N.D. Ill. Aug. 20, 2018); see also 810
ILCS 5/2-313. Athena contends that the express warranty claim fails because the FAC does not
plead any affirmation of fact or promise made by Athena to the Products’ purchasers.
The Court agrees that the FAC does not plead an express affirmation of fact or promise
regarding the Products’ ingredients and side effects. On the contrary, the allegations focus on the
implications created by Athena’s omissions—for example, “Athena deceptively implies to
consumers that the [Products] merely contain benign, natural ingredients.” (FAC ¶ 33 (emphasis
added); see also id. ¶ 7 (“Athena falsely implied the [Products] are effective at improving the
appearance of eyelashes and eyebrows because of the natural ingredients and ‘vitamins’
contained therein.”).) Yet the FAC does not allege that Athena directly claimed that the Products
did not contain DDDE or were completely free of side effects. Based on the allegations, the
impression that the Products were free of side effects and wholly natural came less from what
was said than what was left unsaid. See Manley, 417 F. Supp. 3d at 1124–25 (dismissing express
warranty claim because “what plaintiff alleges is an omission, not an actionable affirmation”);
see also Slattery, 2024 WL 3914615, at *7 (dismissing the Florida law express warranty claim
because “none of the broad allegations by Plaintiff about Athena’s marketing or labeling
expressly warrant the safety of the Products”). The Court therefore dismisses Count IV’s express
warranty claim due to the failure to plead adequately any affirmative statement of fact or promise
that Athena made regarding the Products.
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VI.

Breach of Implied Warranty (Count V)

Count V asserts a claim for breach of implied warranty. In Illinois, “a warranty that the
goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with
respect to goods of that kind.” 810 ILCS 5/2-314. To prevail on a claim for breach of implied
warranty of merchantability, a plaintiff must prove: “(1) a sale of goods (2) by a merchant of
those goods, and (3) the goods were not of merchantable quality.” Brandt v. Bos. Sci. Corp., 792
N.E.2d 296, 299 (Ill. 2003). And goods are not of merchantable quality if they are “unfit for the
ordinary purposes for which the goods are used.” Maldonado v. Creative Woodworking
Concepts, Inc., 796 N.E.2d 662, 666 (Ill. App. Ct. 2003).
Athena argues that Markoff’s implied warranty claim must be dismissed because the
FAC does not sufficiently plead that the Products pose any safety hazards. As noted above,
however, the Court rejects Athena’s contention that the FAC fails to plead any safety risk
associated with the Products. And “[i]t is evident that the harm [Markoff] suffered from use of
the Products, if true, does not fall within the ordinary purpose of the Products.” Slattery, 2024
WL 3914615, at *7. The Court denies Athena’s motion to dismiss as to Count V.
VII.

Unjust Enrichment (Count VII)

Finally, Athena argues that Count VII’s unjust enrichment claim must be dismissed
because it rests on the same improper conduct that underlies the FAC’s other claims and,
according to Athena, none of the other counts state viable claims. See Vanzant v. Hill’s Pet
Nutrition, Inc., 934 F.3d 730, 740 (7th Cir. 2019) (holding that under Illinois law unjust
enrichment is a “request for relief” that is “tied to the fate” of an independent cause of
action). But given the Court’s conclusion that Counts I, II, and V may proceed, the unjust
enrichment claim may proceed as well.

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CONCLUSION
For the foregoing reasons, Athena’s motion to dismiss (Dkt. No. 23) is granted in part
and denied in part. Counts III, IV, and VI of the FAC are dismissed. The motion is otherwise
denied.
ENTERED:

Dated: January 28, 2025

__________________________
Andrea R. Wood
United States District Judge

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