Burton v. Hodgson Mills, Inc.

Filing 32

ORDER: For the reasons set forth in the attached Memorandum and Order, the Court DENIES the Motion to Dismiss (Doc. 3 ) in all respects, other than the request to dismiss Plaintiff's claim for injunctive relief-which is hereby GRANTED. Plaintiff's Motion for Leave to File a Second Amended Complaint (Doc. 26 ) is hereby GRANTED. Signed by Chief Judge Michael J. Reagan on 4/6/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHANNAH BURTON,
Individually and on behalf of
All others similarly situated,
Plaintiff,
v.
HODGSON MILL, INC.,
Defendant.

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Case No. 16-cv-1081-MJR-RJD

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
I.

Introduction

This matter is now before the Court on Defendant’s Motion to Dismiss the First
Amended Complaint (Doc. 4). Plaintiff’s ultimate contention is that the Defendant
violated the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”), 815 ILCS §
505, by labeling a pancake mix as ‘all natural’ despite the fact that it contained synthetic
agents such as monocalcium phosphate (a leavening agent) and genetically modified
ingredients, such as corn meal (Doc. 1-1 at 139).1 The matter came before the Court after

1

Plaintiff also made allegations about buckwheat pancake mix, whole wheat blueberry muffin mix,
whole wheat buttermilk pancake mix, Mexican style jalapeno cornbread mix, and insta-bake whole wheat
variety baking mix with buttermilk. The named Plaintiff only purchased the buckwheat pancake mix—
but her Motion for Leave to Amend (Doc. 26) seeks to include plaintiffs who purchased each of the other
products. The Court will only explicitly discuss the buckwheat pancake mix in this order, though the
discussion can fairly be interpreted as applicable to any of the mixes. Subsequently, Plaintiff withdrew
allegations regarding the Mexican style jalapeno cornbread (Doc. 29).

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Defendant removed it from Illinois state court on the basis of the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1332(d) and FED. R. CIV. PRO. RULE 23. In the notice of
removal, Defendant noted that the named Plaintiff (Shannah Burton) and Defendant
(Hodgson Mills) were both citizens of Illinois, but that the proposed Nationwide class
created minimal diversity for removal purposes (Doc. 1 at 1-2).

Plaintiff did not

challenge the removal. Defendants then filed a Motion to Dismiss (Docs. 3, 4), to which
Plaintiff timely responded (Doc. 14). Each side filed supplemental authority (Docs. 17,
18, 20, 22). The Plaintiff has also moved to file a Second Amended Complaint, which
the Defendant opposes (Docs. 26, 31). The matter is now before the Court for resolution
of the pending motions.
II.

Facts

Plaintiff’s Complaint was originally filed in St. Clair County, Illinois, in February
of 2016 (Doc. 1-1 at 3-12), and was subsequently amended on August 17, 2016 (Doc. 1-1
at p. 136)2.

The original complaint alleged that Defendant violated the Illinois

Consumer Fraud Act (“ICFA”), 815 ILCS § 505 (Doc. 1-1 at 9-11), and alleged
accompanying unjust enrichment (Doc. 1-1 at 11-12). The First Amended Complaint
added a count for breach of express warranty (Doc. 1-1 at 147-148). On September 23,
2016 the Defendant removed the case to this court on the basis of CAFA (Doc. 1).
The St. Clair County Court granted the request for leave to amend the complaint on August 24, 2016
(Doc. 1-1 at p. 184). At the time that the leave was granted, Defendant had a pending Motion to Dismiss
(Doc. 1-1 at 28-46, 162-168). In granting leave to amend, the court did not address the pending motion to
dismiss. The record before this Court does not indicate the outcome of the hearing on the Motion to
Dismiss before St. Clair County Court that may have been held on September 7, 2016.
2

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Plaintiff did not oppose said removal. Simultaneous to removal, the Defendant filed a
Motion to Dismiss before this Court and a supporting memorandum (Docs. 3, 4).
Defendant seeks dismissal on numerous grounds. First, Defendant contends that
the Plaintiff lacks standing to make claims for products she did not personally purchase
(Doc. 4 at 1-3).
Second, Defendant argues that Plaintiff’s claims fail because no reasonable
consumer would have been deceived by the product packaging bearing the “all
natural” labeling. Specifically, Defendant argues that there is no fixed definition or
standard for a product to bear an “all natural” label, so such a label is subjective and
cannot form the basis for an affirmative misrepresentation.

The lack of a formal

definition from the Food and Drug Administration weakens Plaintiff’s claim that the
presence of any artificial color, flavor, or substance was unfair. Defendant further
argues that it would be unreasonable as a matter of law to find that a synthetic
leavening agent precluded the use of the label “all natural.” (Doc. 4 at 3-9).
Third, Defendant argues that the presence of a complete ingredients list on the
packaging defeats any claim of labeling misrepresentation (Doc. 4 at 9-12). Fourth,
Defendant argues that the product guarantee—offering a refund if a customer is not
satisfied—defeats Plaintiff’s claim (Doc. 4 at 12-13). Fifth, Defendant argues that its
conduct was not unfair under the ICFA because it did not violate public policy, or
otherwise place consumers under duress with no viable alternative (Doc. 4 at 13-14).
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Sixth, Defendant argues that Plaintiff’s unjust enrichment claim must be dismissed
because it does not constitute a freestanding cause of action absent the other fraud
allegations (Doc. 4 at 14). Seventh, Defendant contends that the breach of express
warranty claim fails because Defendant did not provide the requisite pre-suit notice and
Defendant was not on notice of the alleged defect (Doc. 4 at 14-15). Eighth, Defendant
argues that Plaintiff lacks standing to bring any claim related to goods purchased
outside of Illinois (Doc 4 at 15-16). Ninth, Defendant argues that Plaintiff’s claims face a
number of statute of limitations problems (Doc. 4 at 16-17). Tenth, Defendant argues
that Plaintiff has no standing to seek injunctive relief since she is unlikely to suffer
future harm (Doc. 4 at 17). Eleventh, Defendant contends that Plaintiff’s claims must be
dismissed for failing to provide sufficient particularity as required by FED. R. CIV. P.
RULE 9(b) (Doc. 4 at 17-19). And, finally, twelfth, Defendant argues that this Court
should stay the case under the doctrine of primary jurisdiction to await word from the
FDA about a more specific definition of the term “all natural” (Doc. 4 at 19-20).
Plaintiff responded to each ground for dismissal in turn (Doc. 14). First, Plaintiff
alleges that ICFA does not require reliance, so there is no standing issue as to products
she did not purchase (Doc. 14 at 1-3). Additionally, she argues that the products she
did not purchase contain the identical packaging ‘misrepresentation’ that is the subject
of her claim against the pancake mix (Id.).

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Second, she argues that she defined ‘natural’ in making her claim, that she
interpreted the term as reasonable consumers would, and that reasonable consumers
would not expect to find synthetic materials in a product labeled ‘natural’ (Doc. 14 at 34). Or, alternatively, the interpretation of the term natural and consumer perception of
that term is inappropriate for resolution at the motion to dismiss stage (Doc. 14 at 4-7).
Third and fourth, Plaintiff argues that presence of an ingredient list or a
guarantee on the packaging does not exonerate Defendant for making a false
representation via the ‘natural’ labeling because consumers should not be required to
look to the list, they might miss the presence of non-natural substances on the list, and
the guarantee does nothing to alter or fix the falsity of the ‘natural’ label on the front of
the box (Doc. 14 at 7-11).
Fifth, Plaintiff argues that her claim does satisfy ICFA under the alternative
interpretation that the practice injured the consumer, rather than the requirement that
the consumer had no reasonable alternative (Doc. 14 at -12).
Sixth, because her other claims should survive, her unjust enrichment claim may
also survive (Doc., 14 at 12).
Seventh, no pre-suit notice was required for her warranty claim because the
Defendant was aware of the falsity of the label based on prior warnings from
consumers (Doc. 14 at 12-13).

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Eighth, as to the nationwide claims, Plaintiff argues that it is too early to
determine the propriety of this issue (Doc. 14 at 13). Likewise, ninth, Plaintiff argues it
is too early to determine the statute of limitations issues (Doc. 14 at 14).
Tenth, Plaintiff argues that she has standing to seek injunctive relief because if
she were unable to do so, consumers would have no method to seek recourse for harms
contemplated by ICFA (Doc. 14 at 14-16).
Eleventh, Plaintiff contends that she does meet Rule 9(b) by alleging that
Hodgson Mills misrepresented the “all natural” character of its products on labels in the
last five years. This allegation contains the who, what, where, when, and how required
by 9(b).
Finally, twelfth, Plaintiff argues that there is no primary jurisdiction basis for
staying the case because the FDA likely will not issue a definitive statement, or even if it
does, that would not impact this case (Doc. 14 at 17-20).
Subsequent to Defendant’s Motion to Dismiss (Doc. 4) and Plaintiff’s Response
(Doc. 14), both sides have moved to supplement the record with developments in
consumer class action case law (Docs. 17, 18, 20, 22).

The Court has allowed the

supplements (Docs. 19, 21).
Plaintiff also moved to amend her complaint on February 3, 2017, seeking to
include named plaintiffs who purchased the products she did not purchase (Doc. 26).
The Defendant opposed this request on the grounds that it was prejudicial by dragging
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out the length of the case and that even with the amendment, the case will still suffer
standing problems (Doc. 31).
The Magistrate Judge presiding over this case, Judge Reona Daly, stayed
discovery pending a ruling on the Motion to Dismiss and the Motion to Amend (Dkt.
entry 30). The motions are now before the Court for resolution.
III.

Applicable law

This Court accepts all factual allegations as true when reviewing a 12(b)(6)
motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007). To avoid dismissal for
failure to state a claim, a complaint must contain a short and plain statement of the
claim sufficient to show entitlement to relief and to notify the defendant of the
allegations made against him. FED. R. CIV. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-57 (2007). In order to meet this standard, a complaint must describe the
claims in sufficient factual detail to suggest a right to relief beyond a speculative level.
Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v. Concentra Health Servs., 496
F.3d 773, 776 (7th Cir. 2007). A complaint need not contain detailed factual allegations,
Scott v. Chuhak & Tescon, P.C., 725 F.3d 772, 782 (7th Cir. 2013), but it must go beyond
“mere labels and conclusions” and contain “enough to raise the right to relief above the
speculative level,” G&S Holdings, LLC v. Cont’l Cas. Co., 697 F.3d 534, 537-38 (7th Cir.
2012).

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The Seventh Circuit has outlined the boundaries of 12(b)(6) with two major
principles.

First, facts in the pleadings are accepted as true and construed in the

plaintiff’s favor, but allegations in the form of legal conclusions are insufficient to
survive a motion to dismiss. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885
(7th Cir. 2012).

And, second, “the plausibility standard calls for ‘context-specific’

inquiry that requires the court ‘to draw on its judicial experience and common sense.’”
Id. Threadbare recitals of elements and conclusory statements are not sufficient to state
a claim. Id. Put another way, to survive a motion to dismiss “the plaintiff must give
enough details about the subject-matter of the case to present a story that holds together
[. . .] the court will ask itself could these things have happened, not did they happen.”
Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
Furthermore, FEDERAL RULE OF CIVIL PROCEDURE 9(b) requires that allegations of
fraud be pled with particularity—a heightened standard of pleading.

Windy City

Metal Fabricators & Supply, Inc. v. CIT Technology Financing Serv., Inc., 536 F.3d 663,
668 (7th Cir. 2008).

Particularity requires alleging the circumstances of fraud or

mistake, including: “the identity of the person who made the misrepresentation, the
time, place, and content of the misrepresentation, and the method by which the
misrepresentation was communicated to the plaintiff.” Id. (internal citation omitted).
The complete lack of information about the timing, place, or manner of communicating
alleged misrepresentations may render a claim insufficiently pled, particularly where
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the plaintiffs are the alleged audience for the misrepresentations. See Gandhi v. Sitara
Capital Mgmt., LLC, 721 F.3d 865, 870 (7th Cir. 2013).
In the context of a motion to dismiss, facts are construed in favor of the plaintiff,
but in the context of class certification, the Court must make inquiry into the existence
of facts sufficient to support certification. Thus, the class certification inquiry is more
exacting than the motion to dismiss inquiry, and yet the inquiry should not be so
exacting that it takes place of a merits analysis by the jury. See Messner v. Northshore
University Health System, 669 F.3d 802, 823-24 (7th Cir. 2012) (discussing the
standards for class certification). A court should determine class certification matters
at the earliest possible juncture. See id. citing FED. R. CIV. P. RULE 23(c)(1)(A) (“At an
early practicable time after a person sues or is sued as a class representative, the court
must determine by order whether to certify the action as a class action.”). By contrast,
the Seventh Circuit has cautioned against declining class certification too early in a case
based on a merits—esque determination, because discovery is not yet complete and the
Court runs the risk of substituting its own speculation for the wisdom and deliberation
of jurors. See Messner, 669 F.3d at 823-34.
Class certification is governed in part by FED. R. CIV. P. RULE 23, which requires a
multi-part showing. First, a proposed class must meet the Rule 23(a) requirements of
numerosity, typicality, commonality, and adequacy of representation. Second, the class
must meet one of three alternatives in Rule 23(b).

Rule 23(b)(3) permits class
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certification if the questions of law or fact common to class members ‘predominate’ over
questions that are individual to class members.

Predominance may exist when

“’common questions represent a significant aspect of a case and…can be resolved for all
members of a class in a single adjudication,’ [or] if a ‘common nucleus of operative facts
and issues’ underlies the claims brought by the proposed class.” Messner, 669 F.3d at
815 (internal citations omitted).
Although Rule 23 directs that class certification shall be addressed at the earliest
practical time, the Court finds that in this instance it is not yet appropriate to dispose of
issues in this case on the basis of class certification. The case was removed from state
court, and the Plaintiff has yet to formally move for certification before this Court. As
was discussed above, the standards for class certification are more exacting than those
for a run-of-the-mill motion to dismiss. Though standing should not be obtained via
the back door of class certification, this Court finds that it would be premature to rule
on standing/class certification issues that are clearly intertwined prior to the Plaintiff
formally moving for certification.3 See generally Muir v. NBTY, 2016 WL 5234596 (N.D.
Ill. 2016) (collecting cases on standing and class certification in the consumer fraud
context, and noting that a plaintiff would lack standing to challenge a product he did
not purchase, but deferring a ruling on which product(s) that plaintiff was pursuing
3

The Court also notes that the Seventh Circuit’s findings in Suchanek v. Sturm Foods, Inc. weigh in favor
of waiting to address standing at the appropriate time (when a motion for certification is pending and has
been fully briefed) and giving deference consumers proceeding on a theory of label-misrepresentation
who argued that common claims predominated, 764 F.3d 750 (7th Cir. 2014).

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in that suit); compare with Mednick v. Precor, Inc., 2014 WL 6474915 (7th Cir. 2014)
(finding that a plaintiff may have standing to sue for products not purchased if the
misrepresentations are identical or substantially similar).
The Court will consider the twelve arguments presented in the motion to dismiss
by applying the ‘lighter’ motion to dismiss standard (taking the evidence in favor of the
Plaintiff), with the understanding that the Court will address other arguments later at
the time when class certification is squarely before the Court.
IV.

Legal analysis

First, the Defendant argues that Plaintiff lacks standing to sue for products she
did not purchase. Initially, Plaintiff opposed this contention by relying on case law,
however, she subsequently offered an amended complaint wherein she identifies
plaintiffs who purchased each individual product. The Court has not yet ruled on
Plaintiff’s request for leave to file the amendment, or Defendant’s opposition of the
same. Because the Court is not dismissing the case at this juncture, the Court will allow
the amended complaint to be filed. The amendment presumably resolves the issues
about standing.
Second, the Court is not persuaded by Defendant’s argument that this case
cannot proceed under the ICFA because the Food and Drug Administration (FDA) has
not announced a uniform definition of the term “all natural.” To establish a claim
under ICFA, a Plaintiff must allege “(1) a deceptive or unfair act or promise by the
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defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair
practice; and (3) that the unfair or deceptive practice occurred during a course of
conduct involving trade or commerce.” See Camasta v. Jos. A. Bank Clothiers, Inc., 761
F.3d 732, 739 (7th Cir. 2014) quoting Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574
(7th Cir. 2012). A private plaintiff must show that he or she suffered actual pecuniary
loss, though at the motion to dismiss stage, courts have found that the mere allegation a
consumer paid a premium for a product based on a misrepresentation is sufficient. See
Camastra, 761 F.3d at 739; Biffar v. Pinnacle Foods Grp., LLC, No. 16-0873-DRH, 2016
WL 7429130, * at 4 (S.D. Ill. Dec. 22, 2016) (plaintiff’s allegation that price of muffin
mix was “more than the value of the muffin mix as sold and that she would not have
purchased it or would have paid less for it had she known it contained synthetic
ingredients” sufficient to plead a plausible theory of actual damages); McDonnell v.
Nature’s Way Products, LLC, (CM/ECF, N.D. Ill., Case No. 16-c-5011-SLE, Doc. 38)
(finding that plaintiff’s allegation that she would not have purchased an energy
supplement or would have paid less had she known it was not entirely made in the
United States was sufficient to state a plausible claim of actual damages).
Here, Plaintiff alleges that she paid a premium for the pancake mix because it
was labelled as “all natural”. She alleges that the “all natural” label constituted a
misrepresentation because the product actually contained synthetic ingredients. She
argues that no reasonable consumer would expect to find synthetic ingredients in a
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product labeled as natural. Defendant tries to defeat Plaintiff’s claim, arguing that there
is no commonly accepted definition of “all natural,” that the ‘synthetic’ ingredients are
so ubiquitous that no reasonable consumer could miss them or be aggrieved by them,
and that ‘organic’ products (labelled under higher standards) also contain the
‘synthetic’ ingredients, among other things. The Court finds that these arguments are
better left to a jury, because the determination of whether or not a reasonable consumer
could be misled is an intricate question of fact that is best informed by a pool of
members of the community.
Likewise, the Court declines Defendant’s third and fourth arguments that no
claim should stand because the ingredient label or the product guarantee somehow
clarify the “all natural” label. Arguments like these have been rejected by other courts,
and this Court finds that they are matters best left for jurors. See Biffar, at 7; Murphy v.
Stonewall Kitchen, LLC, 503 S.W.3d 308, 312-13 (Mo. Ct. App. 2016) (finding that
ingredient label defense did not defeat plaintiff’s Missouri misrepresentation claim
about cake mix that was labelled ‘all natural’ but contained a synthetic ingredient);
Thorton v. Pinnacle Foods Group LLC, 2016 WL 4073713 (E.D. Mo. 2016) (finding that
the ingredient list defense did not defeat plaintiff’s allegation regarding muffin mix
labeled as ‘nothing artificial’); but c.f. Kelly v. Cape Cod Potato Chip Co., 81
F.Supp.3d 754, 762 (W.D. Mo. 2015) (finding that ingredient list revealing synthetics
defeated misrepresentation claim about label with ‘all natural’ moniker); Kane v.
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Chobani, 2013 WL 5289253 at *10 (finding that because the label clearly disclosed
allegedly unnatural ingredients, plaintiff’s misrepresentation claim failed).

This

Court finds that the crux of this issue is a reasonable person’s interpretation of the
various labels and representations on a given product—thus, this question is best left
for the jury.
Fifth, as to Defendant’s argument that the pancake packaging does not violate
ICFA because it is not unfair or oppressive, this argument is not persuasive because it
leaves out the alternative way to establish unfairness—via a showing that the consumer
was substantially injured. See Siegel v. Shell Oil Co., 612 F.3d 932, 934-35 (7th Cir.
2010). To determine unfairness, a defendant’s conduct must: “(1) violate public policy;
(2) be so oppressive that the consumer has little choice but to submit; and (3) cause
consumers substantial injury”—though not all three criteria must exist for a finding of
unfairness. Id. at 935. The parties gave short shrift to this argument in their briefs, but
based upon the above-findings and the low standard of review for a motion to dismiss,
the Court finds at this juncture that unfairness has been sufficiently established for the
case to proceed.
Likewise, as to the sixth argument that unjust enrichment did not occur, the
Court will allow this claim to proceed because it is intertwined with the others and may
be established if Plaintiff prevails on the other ICFA claims.

To establish unjust

enrichment in Illinois “a plaintiff must allege that the defendant has unjustly retained a
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benefit to the plaintiff’s detriment and that defendant’s retention of the benefit violates
the fundamental principles of justice, equity and good conscience.” HPI Health Care
Servs., Inc. v. Mt. Vernon Hosp., Inc.¸ 545 N.E.2d 672, 679 (Ill. 1989). Here, Plaintiff
plausibly alleges that defendant overcharged her for a product that was not as
advertised, and that Defendant still possess those funds.
Seventh, Defendant argues that Plaintiff cannot maintain her claim under a
theory of breach of an express warranty because she did not provide pre-suit notice
regarding the alleged product defect. To state a claim for breach of express warranty, a
plaintiff must allege that (1) the seller made an affirmation of fact or promise; (2)
relating to the goods; (3) which was part of the basis for the bargain; and (4) seller
guaranteed that the goods would conform to the affirmation or promise. Typically, a
breach of express warranty claim requires pre-suit notice to the seller, however, this is
not required when: (1) the seller has actual knowledge of the defect of the particular
product; or (2) a consumer plaintiff suffers a personal injury, in which case the notice
requirement could be satisfied by filing a lawsuit against the seller. See Connick v.
Suzuki Motor Co., Ltd., 675 N.E.2d 584, 589 (1996). Here, Plaintiff does not allege that
she sustained personal injury, but she claims that the seller had actual knowledge of the
breach of the warranty. Her theory is essentially that the Defendant had knowledge of
the falsity of the “all natural” label in light of the ingredients in the product.

A

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reasonable jury could reach this conclusion, so this claim will proceed beyond the
motion to dismiss.
Eighth, Defendant argues that Plaintiff has no standing to bring claims for a
nationwide class, including consumers whose transactions took place entirely outside of
Illinois. The Court finds that resolution of this issue is premature, and will be better
addressed at the class certification phase.
Ninth, Defendant argues that various statutes of limitations may bar Plaintiff’s
claims, particularly if the class includes individuals from multiple states (that may have
differing statutes of limitations). As with the previous claim, the Court finds that this
issue is best addressed once the case proceeds to class certification and the parameters
of this issue are more well-defined.
Tenth, Defendant argues that Plaintiff lacks standing to seek injunctive relief
because now that she is aware of the synthetic ingredients in Defendant’s products, she
will not be harmed again by buying the products. In order to secure injunctive relief, a
plaintiff must show a “’real and immediate’ threat of future violations of their rights[.]”
Scherr v. Marriott Intern., Inc., 703 F.3d 1069, 1074 (7th Cir. 2013) quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983) (finding that a plaintiff had standing to seek
injunctive relief against a hotel for potential Americans with Disabilities Act
violations based on her upcoming trips to the hotel to visit nearby family). Plaintiff
cites two cases from other districts in this circuit where courts have allowed injunctive
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claims to proceed in the consumer fraud context, but this Court does not find those
cases persuasive. See Muir v. NBTY, Inc., 2016 WL 5234596 at *10 (N.D. Ill. 2016)
(holding that a plaintiff suing a dietary supplement manufacturer for false
advertising could show future harm in light of the fact that manufacturer’s false
practices were allegedly ongoing); Le v. Kohls Dep’t Stores, Inc., 160 F.Supp.3d 1096,
1109 (E.D. Wis. 2016) (allowing consumer fraud claim against Kohls for deceptive
pricing to proceed). The named Plaintiff is unlikely to purchase a Hodgson Mills
product again if she is truly harmed and deterred by their advertising conduct, so she
does not have standing as contemplated by Scherr and Lyons. Additionally, even after
class certification, it is unlikely any class member runs the risk of future harm, because
the class will not include those who could in the future unknowingly buy a product, just
those who have already purchased the products.4 Accordingly, the motion to dismiss is
granted as to the request for injunctive relief.
In a catch-all attempt to defeat Plaintiff’s complaint, the Defendant’s eleventh
argument is that the case should be dismissed for failing to meet the Rule 9(b)
particularity requirements for pleading fraud. Rule 9(b) requires a plaintiff to outline
the basic who, what, when, where, how components of the claim. Here, Plaintiff has
met these basics by alleging that the Defendant acted in a deceptive manner by

It is worth noting that the ICFA clearly provides the Attorney General with a cause of action for
injunctive relief, perhaps because it would be impossible for individual plaintiffs to establish standing.
See 815 ILCS § 505/7.
4

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advertising pancake mix (and other mixes) as “all natural” despite the presence of
synthetic ingredients, and that she, and other individuals, were misled and relied on
this representation in buying the products in the past five or so years. These assertions
are sufficient under Rule 9(b).
Finally, twelfth, the Defendant argues that this Court should stay this case under
the doctrine of primary jurisdiction because the FDA may be in the process of
formulating a more concrete definition of the term ‘all natural.’ The Court is not
persuaded by this argument for numerous reasons, including because the FDA last
issued a call for proposals on the topic in the fall of 2016 and has not yet issued any
further timeframe or next steps. But, more importantly, the FDA’s eventual formal
definition has no bearing on a reasonable consumer’s perception at the time this
product was advertised and purchased. Awaiting FDA action would unnecessarily
protract this litigation. Accordingly, the Court denies this ground for dismissal.
V.

Pending motions

Plaintiff’s pending Motion for Leave to File a Second Amended Complaint (Doc.
26) is hereby GRANTED. The Court does not find that granting leave is unduly
prejudicial because the arguments already considered at the motion to dismiss phase as
to the one named Plaintiff would apply with equal force and the same results to the
new plaintiffs. Nothing about the above analysis changes based upon the inclusion of
additional parties.
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VI.

Conclusion

For the foregoing reasons, the Court DENIES the Motion to Dismiss (Doc. 4) in
all respects, other than the request to dismiss Plaintiff’s claim for injunctive relief—
which is hereby GRANTED.
IT IS SO ORDERED.
DATED: April 6, 2017

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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