Hamidani v. Bimbo Bakehouse LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Rabia Hamidani, individually and on behalf, )

of all others similarly situated, )

)

Plaintiff, )

v. ) Case No. 22-cv-01026

)

Bimbo Bakehouse LLC, ) Judge Sharon Johnson Coleman

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Rabia Hamidani, on behalf of herself and all others similarly situated, brings this

action against Bimbo Bakehouse LLC (“Bimbo Bakehouse”) for violation of the Illinois Consumer

Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1, et seq.; violation of various

State Consumer Fraud Acts; Breaches of Express Warranty, Implied Warranty of

Merchantability/Fitness for a Particular Purpose, and the Magnuson Moss Warranty Act, 15 U.S.C.

§ 2301, et seq.; Negligent Misrepresentation; Fraud; and Unjust Enrichment.1 Before the Court is

Defendant’s motion to dismiss [9] under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). For

the following reason, the Court grants the motion.

Background

The following facts are taken as true for purposes of this motion. Defendant Bimbo

Bakehouse manufactures and sells various food products, including wheat sandwich loaf called “Our

Famous ‘Brown Bread’” (the “Bread” or the “Product”). The Bread primarily contains enriched

wheat flour made from refined grains as opposed to whole wheat flour made from whole grains.

The exact amount of whole wheat flour the Bread contains is uncertain, but the amount is less than

1 Given Plaintiff’s request to “withdraw” it, (Dkt. 11-1, at 7), the Court dismisses the Breach of Contract

claim.

enriched wheat flour. The Product is also made with molasses and caramel color, which makes the

Bread appear darker in color, and contains oat and rye flakes dispersed on its top crust. As part of

its packaging and marketing, the Bread’s label includes the brand name ““Vhe Cheesecake Factory,”

which, at least in part, references the restaurant chain of the same name that serves a similar bread

product.

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Defendant sells the Product to third parties, including grocery stores. ‘The named Plaintiff

purchased the Bread from one such third party in Illinois on one or more occasions. Plaintiff alleges

that the Bread’s physical appearance and the packaging’s labels deceived her into thinking that the

Bread contained more whole grains than refined grains.

Legal Standard

A Rule 12(b)(1) motion challenges federal jurisdiction, including Article III standing, and the

party invoking jurisdiction bears the burden of establishing the elements necessary for subject matter

jurisdiction, including standing. Thornley v. Clearview AL, Inc., 984 F.3d 1241, 1244 (7th Cir. 2021);

Int’l Union of Operating Eng’rs Loc. 139, AFL-CIO v. Daley, 983 F.3d 287, 294 (7th Cir. 2020).

Under Rule 12(b)(1), the Court accepts all well-pleaded factual allegations as true and construes all

reasonable inferences in the plaintiff’s favor when a defendant has facially attacked standing. Prairie

Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021).

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency

of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S. Ct. 1289, 179 L. Ed. 2d

233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual

allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551

U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam). To survive a motion to

dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A complaint is facially plausible when

the plaintiff alleges enough “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009).

Discussion

Bimbo Bakehouse moves to dismiss Plaintiff’s claims for lack of standing and failure to state

a claim. The Court addresses the standing issue first.

Standing

Defendant argues that Plaintiff does not have standing to seek injunctive relief. To establish

standing under Article III, a plaintiff must show: (1) she suffered an injury-in-fact; (2) that is fairly

traceable to the defendant’s conduct; and (3) that is likely to be redressed by a favorable judicial

decision. Cothron v. White Castle Sys., Inc., 20 F.4th 1156, 1160 (7th Cir. 2021). To establish an injury-

in-fact for injunctive relief, “a plaintiff must show that the defendant’s conduct will likely cause it to

suffer damages in the future.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 741 (7th Cir. 2014)

(quoting Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 9,

909 N.E.2d 848 (1st Dist. 2009)). Past exposure to unlawful conduct is insufficient. Id.

Defendant contends that Plaintiff cannot establish risk of future harm sufficient for standing

to pursue injunctive relief. Plaintiff lacks risk of future deception by Defendants because, by

bringing this suit, Plaintiff is now aware of any alleged misrepresentations regarding the Product. See

Geske v. PNY Techs., Inc., 503 F. Supp. 3d 687, 702 (N.D. Ill. 2020) (Seeger, J.) (“There is no risk of

‘fool me twice,’ so there is no basis for an injunction.”). In response, Plaintiff states that she intends

to re-purchase the Product with assurance that the Product comports with its representations. The

Court disagrees and aligns itself with those courts finding that “[o]nce a plaintiff knows that a

product is deficient, he or she is unlikely to purchase it again, and therefore unlikely to sustain future

harm.” Id. at 702; see also In re Herbal Supplements Mktg. and Sales Pracs. Litig., 15-cv-5070, 2017 WL

2215025, at *7 (N.D. Ill. May 19, 2017) (St. Eve, J.) (collecting cases). Plaintiff therefore lacks

standing to pursue injunctive relief.

State Consumer Fraud Claims

Next, Defendant moves to dismiss Plaintiff’s consumer fraud claims for failure to state a

claim. To survive a motion to dismiss under the ICFA,2 a plaintiff must plausibly allege: “(1) a

deceptive or unfair act or promise by the defendant; (2) the defendant’s intent that the plaintiff rely

on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course

of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010)

2 Plaintiff also raises claims on behalf of a multi-state class for violations of State Consumer Fraud Acts in

Arkansas, Montana, Nebraska, Virginia, Georgia, and Iowa. The statutes “‘all require plaintiffs to prove that

the relevant labels are likely to deceive reasonable consumers,’ which ‘requires a probability that a significant

portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances,

could be misled.’” Bell v. Publix Super Markets, Inc., 982 F.3d 468, 475–76 (7th Cir. 2020) (quoting Beardsall v.

CVS Pharmacy, Inc., 953 F.3d 969, 972–73 (7th Cir. 2020)). The parties do not identify any meaningful

differences between the applicable statutes. Therefore, these claims rise and fall together on the question of

whether the Product’s representations were likely to deceive reasonable consumers. See id.

(citing Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417, 775 N.E.2d 951 (2002)). To show

that an act was deceptive, a plaintiff must allege that a reasonable consumer would be deceived by

the defendant’s representations or omissions. Bell v. Publix Super Markets, Inc., 982 F.3d 468, 476 (7th

Cir. 2020). This standard “requires a probability that a significant portion of the general consuming

public or of target consumers, acting reasonably in the circumstances, could be misled.” Beardsall v.

CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th Cir. 2020) (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965

(9th Cir. 2016)). The Court may dismiss ICFA claims that are not misleading as a matter of law,

such as where Plaintiff’s interpretations are unreasonable of fanciful. Bell, 982 F.3d at 477.

Plaintiff alleges that the Bread’s name and appearance leads consumers to believe it is made

primarily of whole grains, although the Bread actually contains a larger proportion of refined grains

than whole grains. Specifically, Plaintiff contends that the Bread’s brown color as well as the oats

and rye flakes atop the Bread mislead consumers as to its contents. Plaintiff maintains that the

Bread’s label, which states “Brown Bread,” also supports this conclusion. Defendant responds that

the claim should be dismissed because the Bread’s physical appearance and label make no explicit or

implicit claims about its ingredients. Further, Defendant argues the phrase “Brown Bread” refers to

the branding of the Bread served at The Cheesecake Factory restaurants, not the Bread’s whole grain

content.

Packaging that merely depicts or asserts the presence of an ingredient typically cannot lead a

reasonable consumer to conclude that the product contains a certain amount of that ingredient. See,

e.g., Chiappetta v. Kellogg Sales Co., No. 21-cv-3545, 2022 WL 602505, at *4–5 (N.D. Ill. Mar. 1, 2022)

(Aspen, J.); Cerretti v. Whole Foods Mkt. Grp., Inc., No. 21 CV 5516, 2022 WL 1062793, at *3 (N.D. Ill.

Apr. 8, 2022) (Shah, J.). In Chiappetta, for example, the defendant company produced a breakfast

pastry with a fruit filling. The plaintiff sued, arguing that the product’s packaging, which included a

picture of a strawberry and the word “strawberry,” falsely led consumers to believe the fruit filling

contained no other fruits. Id. That court dismissed the ICFA claim, reasoning that the packaging

and color of the filling made no claims about the proportion of strawberries in the filling. Id. at *5.

This case is substantially similar to Chiappetta. Here, the Bread’s appearance and label makes

no explicit or implicit representations about the proportion of whole grains in the Bread’s

ingredients. Even if the brown color of the bread signifies that the Bread contained whole grains—

which it does—it does not guarantee its precise whole grain content. Further, Defendant’s use of

the phrases “Brown Bread” and “wheat sandwich loaf” make no reference to “whole wheat” or “whole

grains.” See Bell, 982 F.3d at 477–78; Chiappetta, 2022 WL 602505, at *5 (dismissing the ICFA claim

because there were no “untruths on the packaging”). The presence of oat and rye flakes on the

exterior of the Bread does not move the needle. No reasonable consumer could conclude what

percentage of whole wheat the Bread contains merely by these toppings. Plaintiff has not identified

any plausible deception in the Product’s packaging or physical appearance. Therefore, Plaintiff’s

interpretation of the Product’s representations is unreasonable, and her consumer fraud claims are

dismissed.

Because Plaintiff’s consumer fraud claims fail to state a claim, the Court does not consider

whether they are preempted or whether her ICFA claim improperly seeks to enforce an alleged

contractual promise.

Common Law Fraud

Plaintiff’s common law fraud claim fails for the same reasons as her consumer fraud claims.

In Illinois, to support a claim for fraud, a plaintiff must allege “(1) a false statement of material fact;

(2) defendant’s knowledge that the statement was false; (3) defendant’s intent that the statement

induce the plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s

damages resulting from reliance on the statement.” Tricontinental Indus., Ltd. v. PricewaterhouseCoopers,

LLP, 475 F.3d 824, 841 (7th Cir. 2007) (quoting Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 675

N.E.2d 584, 591 (1996)). Plaintiff has not plausibly alleged that the Product contained a false

statement of material fact. Rather, as previously held, her interpretations of the Bread’s packaging

and physical appearance are unreasonable. Therefore, her common law fraud claim is dismissed.

Negligent Misrepresentation

Defendant argues that Plaintiff cannot sustain her claim for negligent misrepresentation

because a negligence cause of action cannot be sustained for economic losses alone. See Moorman

Mfg. Co. v. Nat’l Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982). Under Moorman, there exists two

exceptions to the economic loss doctrine: (1) if defendant intentionally made false representations;

or (2) if defendant is “in the business of supplying information for the guidance of others in their

business transactions.” Id. at 88–89. Plaintiff maintains that the second Moorman exception applies

because Defendant holds itself out as having special knowledge and expertise that created a duty to

refrain from misleading consumers about its product. Plaintiff’s response is without legal support.

As a manufacturer of goods, Defendant is “not in the business of supplying information.” See

O’Connor v. Ford Motor Co., 477 F. Supp. 3d 705, 723 (N.D. Ill. 2020) (Dow, J.). Rather, the

information supplied to consumers is ancillary to the sale of its product. See id. at 722 (citing First

Midwest Bank, N.A. v. Stewart Title Guar. Co., 218 Ill. 2d 326, 843 N.E.2d 327, 334 (2006)). Therefore,

Plaintiff’s negligent misrepresentation claim is dismissed.

Breach of Warranty

Plaintiff brings claims for breach of express warranty and breach of implied warranty of

merchantability. Defendant contends that these claims must be dismissed because Plaintiff failed to

meet pre-suit notice requirements to bring breach of warranty claims as required by 810 ILCS 5/2-

607(3)(a). Under section 2-607, “the buyer must within a reasonable time after he discovers or

should have discovered any breach notify the seller of the breach or be barred from any remedy.”

810 ILCS 5/2-607(3)(a) (emphasis added); see also Connick, 675 N.E.2d at 589 (Plaintiff must “directly

notify the seller of the troublesome nature of the transaction or be barred from recovering for a

breach of warranty”). Plaintiff responds that she complied with the pre-suit notice requirement by

filing this lawsuit in February 2022. (Dkt. 11-1, at *8.)

Though the issue of notice is normally a question of fact to be decided by the jury, where a

plaintiff does not allege legally sufficient notice in the complaint, the Court may rule on the issue at

the motion to dismiss stage. O’Connor, 477 F. Supp. 3d at 717. Here, Plaintiff’s argument that she

complied with the statutory notice requirement by filing this suit fails. Plaintiff is required to give

notice pre-suit. See id. (emphasis added) (dismissing a breach of warranty claim because the plaintiff

failed to “allege in the complaint or assert in response to the motion to dismiss that he ever

contacted Defendant about his [product] in any manner before filing suit”). Because she does not

allege that she gave direct pre-suit notice, Plaintiff’s breach of warranty claims fail.

Plaintiff also claims that Defendant violated the Magnuson-Moss Warranty Act (“MMWA”),

15 U.S.C. § 2310(d)(1), which creates a federal cause of action for breach of warranty. Because her

state law warranty claims fail, however, her MMWA claim also fails. See Cerretti, 2022 WL 1062793,

at *5 (citing Perona v. Volkswagen of Am., Inc., 292 Ill. App. 3d 59, 65 684 N.E.2d 859 (1st Dist. 1997))

(“If plaintiff’s notice is insufficient under Illinois law, it also fails under federal law, because the

Magnuson-Moss Warranty Act incorporates state-law notice requirements.”).

Unjust Enrichment

Finally, Defendant contends that Plaintiff’s claim for unjust enrichment must fail because it

is predicated on Plaintiff’s claims for fraud. See Pirelli Armstrong Tire Corp. Retiree Med. Benefits Tr. v.

Walgreen Co., 631 F.3d 436, 447 (7th Cir. 2011) (quoting Alliance Acceptance Co. v. Yale Ins. Agency, Inc.,

271 Ill. App. 3d 486, 492, 648 N.E.2d 971 (1st Dist. 1995)) (“Under Illinois law, unjust enrichment is

not a separate cause of action[, but rather] ‘a condition that may be brought about by unlawful or

improper conduct as defined by law … and may be redressed by a cause of action based upon that

improper conduct.””). Plaintiff admits that her unjust enrichment claim must be predicated on an

independent source of fraud. Because her underlying causes of action fail, so does her unjust

enrichment claim.

Conclusion

For the foregoing reasons, the Court grants Defendant’s motion [9] and dismisses the

complaint in its entirety. Plaintiffs claim for negligent misrepresentation 1s dismissed with prejudice

as amendment would be futile. The remaining claims are dismissed without prejudice. Plaintiff has

leave to file an amended complaint by January 26, 2023 if she can do so in accordance with this

Opinion.

IT IS SO ORDERED.

Date: 1/12/2023

Entered: Me Lie

SHARON JOHNSON COLEMAN

United States District Judge.