Suchanek et al v. Sturm Foods, Inc. et al

Filing 161

ORDER finding as moot (116) Motion to Exclude; granting (136) Motion for Summary Judgment; denying (140) Motion for Reconsideration ; denying (149) Motion to Strike ; denying (150) Motion to Strike in case 3:11-cv-00565-GPM-PMF. Signed by Judge G. Patrick Murphy on 11/20/2013. Associated Cases: 3:11-cv-00565-GPM-PMF, 3:11-cv-00889-GPM-PMF, 3:11-cv-01035-GPM-PMF, 3:11-cv-01068-GPM-PMF, 3:12-cv-00224-GPM-PMF(ktc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

LINDA SUCHANEK, RICHARD
MCMANUS, CAROL CARR, PAULA
GLADSTONE, EDNA AVAKIAN,
CHARLES CARDILLO, BEN CAPPS,
DEBORAH DIBENEDETTO, and CAROL
J. RITCHIE,
Plaintiffs,
vs.
STURM FOODS, INC. and TREEHOUSE
FOODS, INC.,
Defendants.

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CIVIL NO. 11-565-GPM
Consolidated Cases:
11-889-GPM
11-1035-GPM
11-1068-GPM
12-224-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This case alleges violations of the Alabama Deceptive Trade Practices Act, California
Legal Remedies Act, California Business and Professions Code, New York Deceptive Act and
Practices Law, New York False Advertising Law, South Carolina Unfair Trade Practices Act, New
Jersey Fraud in Sales or Advertising of Merchandise Law, North Carolina Deceptive Trade
Practices Act, and unjust enrichment against Defendants for their allegedly misrepresentative
packaging of Grove Square individual coffee cartridges (Doc. 53). The action was brought on
behalf of the following putative class:
All persons or consumers that during the Class Period – from September of 2010,
until and including the present who purchased in Alabama, California, Illinois,
New Jersey, New York, North Carolina, South Carolina, and Tennessee
Defendants’ Grove Square Coffee (“GSQ”) products. Excluded from the Class
are: (a) Defendants’ Board members or executive-level officers, including its
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attorneys; (b) persons or entities who purchased the GSQ primarily for resale; (c)
retailers or re-sellers of the GSQ; (d) governmental entities; and (e) any consumer
that already received a refund from Defendants.
(Doc. 99). After briefing and an in-court hearing, the Court denied certification of that class on
August 26, 2013 (Doc. 138). Now before the Court is Plaintiffs’ motion to reconsider that Order
(Doc. 140). Defendants have filed a motion for summary judgment (Doc. 136). The motions
have been fully briefed, and Defendants filed additional motions to exclude expert reports
included in Plaintiffs’ response to the motion for summary judgment (Docs. 149, 150).
Plaintiffs’ Motion to Reconsider Class Certification
The crux of Plaintiffs’ request for reconsideration is the Seventh Circuit Court of Appeal’s
opinion in Butler v. Sears, Roebuck and Co. (Doc. 140). 727 F.3d 796 (7th Cir. 2013). In Butler,
plaintiffs sought to certify classes bringing breach-of-warranty claims for defective washing
machines.

Id. at 797.

In finding class certification appropriate, Judge Posner wrote that

common proof of damages amongst class members is not required to satisfy Rule 23(b):
It would drive a stake through the heart of the class action device, in cases in which
damages were sought rather than an injunction or a declaratory judgment, to require
that every member of the class have identical damages…the fact that damages are
not identical across all class members should not preclude class certification.
Otherwise defendants would be able to escape liability for tortious harms of
enormous aggregate magnitude but so widely distributed as not to be remediable in
individual suits.
Id. at 801. In Butler however, there was one “single, central, common issue of liability: whether
the Sears washing machine was defective.” Id. Here, as discussed in the Order denying class
certification, the issue of liability requires individualized inquiry. The problem here is not that
proof of damages requires looking at each individual class member, for as Butler makes clear, that
does not preclude predominance. The problem with the proposed class here is that showing

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reliance or causation—as required to establish liability—requires an investigation of each
purchaser (Doc. 138, p. 24-25). That problem would remain regardless of any subclass division.
Of course all the facts as between individual class members needn’t be identical in order to satisfy
Rule 23—that is not the standard the Court held Plaintiffs to (as Plaintiffs suggest in their motion
Doc. 140, p. 15). But legal inquiries required to determine liability must predominate. They do
not here. The Court has considered all of Plaintiffs’ grounds for reconsideration of the Order
denying class certification and holds with the reasoning and outcome of the Order. Plaintiffs’
motion is DENIED.
Defendants’ Motion for Summary Judgment
Defendants ask the Court to find that the Grove Square coffee packaging was not deceptive
and did not injure Plaintiffs (Doc. 137, p. 6). Defendants also argue Plaintiffs cannot prove
successful claims under the state fraud laws. To this end, Defendants march through each
Plaintiff: Charles Cardillo did not read the packaging prior to purchase or rely on packaging
when he chose the product; Linda Suchanek read the term “soluble” on the package and
understood that term meant the product dissolved in water; Carol Carr purchased the product
because of the price; Richard McManus did not read the packaging; Edna Avakian was not
motivated to purchase the product because of any representation on the packaging; Carol Ritchie
thought the product contained finely ground coffee, but her purchase was largely motivated by
shelf placement; Deborah Dibenedetto also purchased the product because it was shelved near
other individual coffee products and because of the price; Paula Gladstone thought the product
packaging looked good and assumed it was ground coffee, not instant, because in part the package
pictures an image of coffee beans; Benjamin Capps bought the product because he likes to try new

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things (Doc. 137, p. 3-7).
Plaintiffs argue in response that Defendants have mischaracterized their rationales for
purchase by cherry-picking statements from their depositions. According to Plaintiffs:
Defendants attempt to focus the Court’s attention on each purchasing decision of
the individual consumer and thereby deflect the inquiry away from the central issue
before the Court: under each states’ consumer protection statute, from an
objective standpoint of a reasonable consumer, is the packaging of the Grove
Square Coffees…deceptive or misleading, or did it have the capacity, likelihood or
tendency to mislead the public?
(Doc. 141, p. 1).
Therein lies Plaintiffs’ problem. The Court believes that each Plaintiff does indeed need
to show that he or she was deceived and that he or she suffered some injury from the misleading
packaging. Linda Suchanek must show: some deceptive practice by Defendants; that Defendants
intended her to rely on that deception; and that she incurred damages proximately caused by the
deception. See Avery v. State Farm Mut. Auto Ins. Co., 835 N.W.2d 801, 850 (Ill.2005). She
understood the terms on the packaging and bought the product because of the price. Plaintiffs’
basic complaint is that they were misled into purchasing instant coffee (Doc. 53, p. 3). Ms.
Suchanek just was not misled by the packaging—she knew what soluble meant.

Richard

McManus must show actual deception by false advertising. See Billions v. White & Stafford
Furniture Co., 528 So.2d 878, 880 (Ala. Civ. App. 1988). Mr. McManus did not rely on the
package when he decided to purchase. Carol Carr needn’t prove reliance, but still must show
Defendants’ alleged deception proximately caused her injury. See Cloud Nine, LLC v. Whaley,
650 F.Supp.2d 798, 797-98 (E.D. Tenn. 2009). Ms. Carr stated that she was misled because the
package was attractive and had a picture of an individual coffee “cup” on the box (Doc. 141, p. 8).
But she did not read any of the text on the packaging. Paula Gladstone must also show that a

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material deception caused her injury. See Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d
Cir. 2005). And while Ms. Gladstone may have “believed she was purchasing fresh ground with
a filter”, that belief was premised on the fact that the Grove Square cup can be used in a Keurig
machine—which it can (Doc. 141, p. 7). Edna Avakian thought the product was ground coffee,
not instant, because it could be used in a Keurig brewing machine (Doc. 141, p. 5), but she stated in
her deposition that she was motivated by the price and her desire to try new products. She cannot
prove the requisite causation or reliance. In their response brief, even Plaintiffs do not argue that
the packaging motivated Charles Cardillo to purchase the product (Doc. 141, p. 4). The facts of
Mr. Cardillo’s purchase cannot support a state deception claim, as he is required to prove
causation. See Stutman v. Chem. Bank, 731 N.E.2d 608, 611-12 (N.Y. 2000). Ben Capps must
also show a causal relationship. S.C. Code Ann. § 39-5-140(a) (1985). Mr. Capps apparently
only looked at certain information on the packaging (Doc. 141, p. 6). He saw, in part, a picture of
whole beans and language stating the Grove Square coffee was made from Arabica beans.
However, the indication that this particular individual coffee serving is soluble is also on the
packaging. Further Mr. Capps emphasized he wanted to give try this product because it was a
product he was unfamiliar with. No misrepresentation or material omission motivated his
purchase or caused his harm. Deborah DiBenedetto must prove a direct correlation between
Defendants’ representation and her loss. Heyert v. Taddese, 2013 WL 3184626 at *13 (N.J.App.
June 25, 2013). When she purchased Grove Square’s product, Ms. DiBenedetto felt the coffee
would be not-instant coffee because the package pictured an individual serving cup (Doc. 141, p.
6).

Her belief that all individual serving cups, or “k-cups” contain only ground, versus

micro-ground (instant) coffee, is both not accurate and not enough to show causation between

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Defendants’ packaging and her dissatisfaction with the product. In order to succeed on her claim,
Carol Ritchie must prove she actually relied on the packages representations. See Williams v.
United Cmty. Bank, 724 S.E.2d 543, 549 (N.C. Ct. App. 2012). Ms. Ritchie, however, stated that
she purchased the product because it “looked pretty good”—not enough (Doc. 137, p. 10).
Summary Judgment is “the ‘put up or shut up’ moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to accept its version of events.”
Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (internal quotation omitted).
The Court must, and does, look at any evidence in the light most favorable to the Plaintiff here, but
when Defendants point out that there is an absence of evidence to support the nonmoving party’s
case then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Plaintiffs have not shown evidence to support their claims.
That this Order is brief does not reflect a mere surface analysis of the motion for summary
judgment. The Court has read all the papers. Further and importantly, these parties have been
before the undersigned on this matter several times. The Court understands the claims and the
facts presented and finds there are no genuine issues of material fact in dispute. The Court has
seen the packaging at issue—Plaintiffs bring it to each hearing—and finds that it is not designed to
mislead consumers. It says what it is. Judgment is proper as a matter of law because none of the
Plaintiffs have shown their pecuniary loss was caused by Defendants’ fraud, deceit, or
mislabeling. The motion for summary judgment is GRANTED. The Court did read the expert
reports to which Defendants objected, so the motions at Docs. 149 and 150 are DENIED—though
those report excerpts were not dispositive. Judgment will enter for Defendants and this case
closed on the Court’s docket.

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IT IS SO ORDERED.
DATED: November 20, 2013
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G. PATRICK MURPHY
United States District Judge

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