# Crawford v. Arizona Beverages USA LLC

> District Court, S.D. Illinois · January 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10156001

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** January 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

KENNETH CRAWFORD, individually )
and on behalf of all others )
similarly situated, )
)
Plaintiff, )
)
vs. ) Case No. 22-cv-220-DWD
)
ARIZONA BEVERAGES USA LLC, )
)
Defendant. )

MEMORANDUM AND ORDER

DUGAN, District Judge:
Plaintiff Kenneth Crawford1 brings this putative class action against Defendant
AriZona Beverages USA, LLC2 for the alleged deceptive and misleading labeling of its
20oz “Lite Arnold Palmer” beverage. Plaintiff seeks monetary damages and injunctive
relief for unfair business practices and deceptive advertising in violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. Ann. 505/1,
et seq. (“ICFA”) and similar state consumer fraud acts. Plaintiff also asserts claims for
breach of contract, breach of express and implied warranties, and the Magnuson Moss
Warranty Act, 15 U.S.C. § 2301, et seq., along with negligent misrepresentation, fraud, and
unjust enrichment. Now before the Court is Defendant’s motion to dismiss (Doc. 14).

1 Plaintiff is a citizen of Illinois (Doc. 1, ¶ 60).
2Defendant is a limited liability company organized under the laws of the State of New York with a
principal place of business located in Woodbury, New York, and with at least one member having a
different citizenship from Plaintiff (Doc. 1, ¶ 62). Accordingly, Defendant is a citizen of New York for
purposes of determining CAFA jurisdiction. See 28 U.S.C. § 1332(d)(2).
Defendant seeks to dismiss Plaintiff's complaint, with prejudice, pursuant to Fed. R. Civ.
P. 12(b)(1) and 12(b)(6). Plaintiff opposes the Motion (Doc. 19).
Background
Plaintiff alleges the following facts, which for the purposes of this motion are taken
as true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Defendant manufacturers the
200z Lite Arnold Palmer” beverage (the “Product”). Between January 2021 and January
2022, Plaintiff purchased the Product from a third-party on one or more occasions in
Caseyville, Illinois (Doc. 1, {({] 66-73). Below is an image of the Product label:

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(Doc. 14-3, p. 2).
Plaintiff claims the label contains at least four false or misleading representations.
The first two representations concern Defendant's use of the word “Lite.” Plaintiff claims
the use of the word “Lite” is misleading because the reasonable consumer would
understand the term to mean that the Product is low in both sugar and calories, or lower
in sugar and calories than other products. However, Plaintiff alleges that the Product is
neither low in sugar or calories, but instead would qualify as a “high” sugar product

under comparable FDA regulations and contains a similar number of high calories to that
of a can of soda (Doc. 1, pp. 5-6). Plaintiff also complains that the label fails to identify a

“reference food” so that consumers can compare the Product’s “lite” claim to that of
another representative product with higher nutrient values in accordance with FDA
regulations (Doc. 1, pp. 6-7).
Next, Plaintiff claims that the Product’s use of a “dual column” nutrition facts
panel to show a serving size of 12 ounces is misleading because the entire 20-ounce bottle
meets the regulatory definition for a single-serve container (Doc. 1, p. 7). Plaintiff argues

that the dual column format of the label is inconsistent with the “information required to
maintain healthy dietary practices”, and thus misleading, because it implies that a
consumer will consume less than the entire container when they would instead consume
the entire bottle. Finally, Plaintiff contends that the Product falsely claims to be made in
the United States because the label depicts a map of the United States covered in the

image of the American flag and surrounded by the words “An American Company –
Family Owned and Operated” (Doc. 1, ¶¶ 49-51). However, elsewhere on the label – just
below the barcode – the label states that the Product is a “Product of Canada” (Id.; Doc.
14-2, p. 2).
Plaintiff alleges that he was damaged when he paid a premium for the Product,

believing it to be low in sugar and calories, and lower in sugar and calories than
comparable beverages (Doc. 1, ¶ 77). Plaintiff claims he would not have purchased the
Product if he knew the representations and omissions were false and misleading (Doc. 1,
¶ 78). Alternatively, he would have paid less for it.
Discussion
Defendant seeks to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6). Defendant argues that Plaintiff failed to allege any facts plausibly suggesting

that a reasonable consumer would be misled by the Product’s label when it is read in its
entirety. Defendant also argues that its use of a dual column nutrition facts panel
complies with FDA regulations, and thus maintains that Plaintiff’s complaint is
preempted by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., and
triggers the safe-harbor provision of the Illinois Consumer Fraud Act, 815 Ill. Comp. Stat.

Ann. 10b(1) (Doc. 14-1). Defendant also challenges Plaintiff’s Article III standing to obtain
an injunction.
A Fed. R. Civ. P. 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 standing. Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1244 (7th

Cir. 2021); Int'l Union of Operating Engineers, 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 for failure to state a claim pursuant to Rule 12(b)(6) tests the
sufficiency of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529 (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 (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 (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 (2009).
A. Injunctive Relief
Defendant argues that Plaintiff lacks standing to assert a claim for injunctive relief
because he has not alleged any real or immediate threat of injury or the likelihood of

future or continuing harm. A plaintiff must meet three requirements to establish that she
has standing to bring a lawsuit: (1) injury in fact, (2) a causal connection between the
injury and the defendant’s conduct, and (3) redressability. Scherr v. Marriott Int’l, Inc., 703
F.3d 1069, 1074 (7th Cir. 2013) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
“[T]o establish injury in fact when seeking prospective injunctive relief, a plaintiff must

allege a ‘real and immediate’ threat of future violations of their rights . . . .” Scherr, 703
F.3d at 1074 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)); see also
Kensington's Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1
(2009) (“To be eligible for injunctive relief under the Deceptive Practices Act, a plaintiff
must show the defendant’s conduct will likely cause it to suffer damages in the future.”).

Defendant allegedly injured Plaintiff by using a label that actually deceived him.
However, now that he is aware of the deception, it is unlikely Plaintiff will be misled
again. See Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 741 (7th Cir. 2014) (“Since
[plaintiff] is now aware of [defendant’s] sales practices, [plaintiff] is not likely to be
harmed by the practices in the future.”). Even if Plaintiff intends to purchase the Product
again, which he has not specifically alleged, see Doc. 1, ¶ 92 (“Plaintiff intends to, seeks

to, and will purchase the Product again when he can do so with the assurance the
Product’s representations are consistent with its abilities, attributes and/or
composition.”), he does not face an imminent threat of future harm. Merely purchasing
the Product does not trigger Plaintiff’s injury. His injury lies in purchasing the Product
under the influence of a deceptive label. There is no chance he will be misled again
because he now knows a quick look at the ingredients label will reveal the Product’s true

composition. Therefore, the complaint fails to allege a real and immediate threat of future
violations of his rights. Accordingly, to the extent Plaintiff’s claims seek injunctive relief,
Defendant’s Motion to Dismiss is GRANTED, and those claims are DISMISSED.
B. Illinois Consumer Fraud Act
Next, Defendant moves to dismiss Plaintiff’s consumer fraud claims for failure to

state a claim. Plaintiff’s consumer fraud claims arise under the Illinois Consumer Fraud
and Deceptive Practices Act (“ICFA”). The ICFA “protects consumers against fraud,
unfair methods of competition, and other unfair and deceptive business practices.”
Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019). Deceptive or unfair
practices include any misrepresentation or the concealment, suppression or omission of

any material fact.” 815 Ill. Comp. Stat. Ann. 505/2; Vanzant, 934 F.3d at 736.
To survive a motion to dismiss under the ICFA, 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) (citing Robinson v. Toyota Motor Credit Corp., 201

Ill. 2d 403, 417 (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 reasonable consumer standard requires a “practical and fact-intensive
approach to consumer behavior.” Bell, 982 F.3d at 478. Thus, how reasonable consumers
would interpret an ambiguous food label is typically a question of fact that should not be
decided on the pleadings. See id. at 483. But “a court may dismiss the complaint if the

challenged statement was not misleading as a matter of law.” Ibarrola v. Kind, LLC, 83 F.
Supp. 3d 751, 756 (N.D. Ill. 2015) (citing Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 940
(7th Cir. 2001)). Bell, supra, provides the necessary guidance. The issue presented in Bell
was whether the phrase “100% Grated Parmesan Cheese” was deceptive in the sense that
reasonable consumers could be misled to believe that the product contained only cheese.

The Court determined that it has “no quarrel with defendants’ ability to call their
products “grated cheese.” The problem lies in the “100%,” especially since the pleadings
provide reason to think that consumers understand “100% grated cheese” to mean that
the cheese does not have additives.” Bell at 481.
Here, Plaintiff alleges four misleading or deceptive statements: (1) that the term
“Lite” indicates that the Product is low in sugar and calories, and (2) lower in sugar and

calories than an unidentified comparable reference food; (3) that the use of the dual
nutrition facts panel is inconsistent with research on healthy dietary practices and
misrepresents that the Product meets the regulatory definition for a single-serve
container; and (4) that the Product is alleged to have been made in the United States,
although it is from Canada. Defendant’s arguments concerning the “Lite” and “United
States” statements are congruent, so the Court will address those statements first.

I. “Lite” and “United States” Statements
As to the “Lite” and “United States” statements, Defendant responds that these
statements cannot plausibly mislead or deceive a reasonable consumer because the
statements do not make a claim about the Product’s sugar or calorie content, or the
Product’s origin. Defendant further argues that no reasonable consumer would be misled

by the statements because of the other information contained on the label, i.e., the
nutrition facts and the words “Product of Canada” (Doc. 14-1) (citing Davis v. G.N. Mortg.
Corp., 396 F.3d 869, 884 (7th Cir. 2005) (“the allegedly deceptive act must be looked upon
in light of the totality of information made available to the plaintiff.”)). Defendant argues
that these truthful statements negate any alleged deception when read as a whole.

However, the Seventh Circuit instructs that consumer-protection laws “do not
impose on average consumers an obligation to question the labels they see and to parse
them as lawyers might for ambiguities, especially in the second usually spent picking a
low-cost product.” Bell, 982 F.3d at 476 (citing Danone, US, LLC v. Chobani, LLC, 362 F.
Supp. 3d 109, 123 (S.D.N.Y. 2019) (“[A] parent walking down the dairy aisle in a grocery
store, possibly with a child or two in tow, is not likely to study with great diligence the

contents of a complicated product package, searching for and making sense of fine-print
disclosures … . Nor does the law expect this of the reasonable consumer.”).
Further, as one district court has aptly reasoned, the fact that the FDA regulates
and uses the term “light” or “lite” in the context of its nutrient content claims, “implies
that consumers may rely on the use of such terminology, at least to some extent, when
making decisions about what products to purchase.” Hadley v. Kellogg Sales Co., 273 F.

Supp. 3d 1052, 1086 (N.D. Cal. 2017) (citing 21 C.F.R. § 101.56)); Cruz v. Anheuser-Busch,
LLC, No. CV 14-09670 AB ASX, 2015 WL 3561536, at *8 (C.D. Cal. June 3, 2015), aff'd sub
nom. Cruz v. Anheuser-Busch Companies, LLC, 682 F. App'x 583 (9th Cir. 2017) (“It is evident
that a ‘light’ product signifies a lower calorie option which one would reasonably
measure against the product’s full calorie counterpart.”).

Moreover, in other contexts, the Seventh Circuit has likened the term “light” to
that of a subcategory of another product. See, e.g., Henri's Food Prod. Co. v. Tasty Snacks,
Inc., 817 F.2d 1303, 1306 (7th Cir. 1987) (likening “light beer” to a subcategory of beer that
is of a quality that is “less filing with reduced calories”); Miller Brewing Co. v. G. Heileman
Brewing Co., 561 F.2d 75, 81 (7th Cir. 1977) (in the context of a trademark dispute, finding

that the term “light”, in reference to a “light beer”, is a common descriptive word
indicating that the product is “lighter in taste” or “less filing, and further noting that the
word “light” is “also used by Pepsico, Inc. for ‘Pepsi Light’ as a soft drink described as
having ‘half the calories out.’”). While Defendant argues that these regulations only
apply to fat content (Doc. 14-1, p. 17), at this junction, the Court cannot conclude as a
matter of law that no reasonable consumer would rely on the Product’s “Lite” statement

in concluding that the Product contains low sugar and calories, or lower sugar and
calories than other products.
Defendant also argues that Plaintiff’s claim fails because Plaintiff did not identify
a comparative beverage to determine whether the Product’s use of the term “lite” is a
method of deception (Doc. 14-1, pp. 10-11) (citing Cruz, 2015 WL 3561536, at *8 (reasoning
that even when a “light” product signifies a lower calorie option, plaintiffs failed to state

a claim because they did not identify “the full calorie counterpart” of defendant’s
products for the court to “objectively determine whether the product’s use of the term
light is a method of deception.”). Defendant acknowledges that Plaintiff generally
references “soda” as a comparative product but argues that this generalized comparison
is not enough to sufficiently evaluate Plaintiff’s deceptive claim here. The Court

disagrees.
First, unlike in Cruz, a portion of Plaintiff’s deceptive claim is premised on
Defendant’s alleged failure to include a comparative beverage on the Product’s label in
accordance with FDA regulations (Doc. 1) (citing 21 C.F.R. 101.13(j)(1)(i)(B)-(ii)(A) (“For
‘light’ . . . claims, the reference food shall be similar food . . . and . . . shall be representative

of the type of food that includes the product that bears the claim.”). Whereas in Cruz, the
Court referred to the FDA regulations only for illustrative purposes because the FDA
does not regulate the alcoholic beverage industry or the malt beverages at issue in the
case. See Cruz at *8, n.14. Further, the Cruz court found that the beverage’s use of the
word “light” had nothing to do with the beverage being a “light” product but was a
reference to how the beverage contained “some combination of a margarita and

[Defendant’s] Bud Light Lime [product].” See Cruz at *8. Thus, at this stage, the Court
cannot say that as a matter of law, that Plaintiff’s failure to identify a more specific
comparable product requires dismissal where the generalized comparison to “soda”
provides a sufficient comparison to evaluate the deceptive claim.
In sum, while the Product does not explicitly make a claim as to its sugar and
calorie composition, the Court cannot say that as a matter of law that significant portion

of reasonable consumers are not deceived by the “Lite” claim made by Defendant in its
labeling. However, the statements referring to the Product’s origin present a much closer
case. As Defendant argues, it certainly appears less likely that a consumer would
conclude that the combination of statements “American Company” and “Product of
Canada” means that the Product was made in the United States. Nevertheless, “[w]hat

matters here is how consumers behave –how they perceive advertising and how they
make decisions.” Bell at 481. And this Court cannot say at this stage, that as a matter of
law that “a significant portion of the general consuming public or of target consumers,
acting reasonably in the circumstances” are not deceived by the claim made by Defendant
in its labeling of the product.

II. Dual Nutrition Facts Panel
The Court turns next to Defendant’s arguments concerning its dual nutrition facts
panel. Plaintiff alleges that the dual nutrition facts panel is inconsistent with research on
health dietary practices and misrepresents that the Product is actually a single-serve
container. Defendant maintains that these complaints are preempted by the Federal
Food, Drug, and Cosmetic Act, 21 U.S.C. § 343-1(a)(4), barred under the Illinois Safe

Harbor Doctrine, and because the regulations Plaintiff refers to do not govern calorie and
sugar content claims (Doc. 14-1).
The FDCA delegates to the FDA the power to “promulgate regulations fixing and
establishing for any food ... a reasonable definition and standard of identity, a reasonable
standard of quality, or reasonable standards of fill of container.” 21 U.S.C. § 341. These
standards of identity determine what a food product must contain to be marketed under

a certain name. They also often establish requirements for how the product must be made
or sold.” Bell, 982 F.3d at 486. 21 U.S.C. § 343(q) also governs the disclosure of nutrition
information on a product label, including calorie and sugar content, and serving sizes,
which are the amounts “customarily consumed and which is expressed in a common
household measure that is appropriate to the food.” See 21 U.S.C. § 343(q)(1)(A)(i); see

also 21 C.F.R. § 101.9(b)(1) (nutrition labeling of food); 21 C.F.R. § 101.12(b) (defining
“reference amounts customarily consumed”).
Defendant maintains that these regulations require it to include nutrition
information in terms of a 12-ounce serving size, while also allowing it to include a
statement based upon the entire 20-ounce container (Doc. 14-1). Thus, Defendant argues

that Plaintiff’s claims are preempted by the FDCA. While the FDCA does not create a
private right of action, and plaintiffs are entitled to seek relief pursuant to state-law
causes of action, these state actions are “tightly circumscribed by the FDCA's express
preemption of state-law theories that impose requirements ‘not identical’ to its own
requirements.” See Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 645 (7th
Cir. 2019) (citing Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011)); see also 21 U.S.C.

§ 343-1 (national uniform nutrition labeling).
Plaintiff does not object to Defendant’s use of the dual column labeling generally
and does not contest that the FDA permits such labeling (Doc. 19). Rather, Plaintiff claims
the label is misleading because the Nutrition Facts should disclose that the Product
qualifies as a single serving size. Thus, Plaintiff argues that its claims escape preemption
because they are based on Defendant’s failure to abide by the “identical requirements of

federal and state law.” (Doc. 19, p. 8) (citing Turek, 662 F.3d at 427; Bausch v. Stryker Corp.,
630 F.3d 546, 554 (7th Cir. 2010)).
The Court need not determine at this stage whether preemption bars Plaintiff’s
claims here because preemption “is an affirmative defense upon which the defendants
bear the burden of proof.” Benson, 944 F.3d at 645 (citing Fifth Third Bank ex rel. Tr. Officer

v. CSX Corp., 415 F.3d 741, 745 (7th Cir. 2005)); see also, Luna Vanegas v. Signet Builders,
Inc., 46 F.4th 636 (7th Cir. 2022) (“Rarely will the face of the complaint so clearly prove
the opponent’s affirmative defense that immediate dismissal, prior to the filing of an
answer, will be proper.”). Thus, unlike cases where “the plaintiff has pleaded herself out
of court”, the more appropriate way to address this affirmative defense would be by

moving for judgment on the pleadings under Fed. R. Civ. P. 12(c). Benson, 944 F.3d at 645
(citing Bausch, 630 F.3d at 561; Logan v. Wilkins, 644 F.3d 577, 582–83 (7th Cir. 2011); Brooks
v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)); see also Luna Vanegas, 46 F.4th 636 (A party
seeking to dismiss a claim at the outset of a case based on an affirmative defense should
first raise the defense in its answer and then move for judgment on the pleadings under
Rule 12(c)). As the Court has already found that Plaintiff’s other claims survive

dismissal, the difference between Rule 12(c) and 12(b)(6) should not be disregarded here,
and the Court will not penalize Plaintiff for not anticipating Defendant’s preemption
defense in his complaint. See Benson, 944 F.3d at 645.
For these reasons, Defendant’s motion to dismiss Plaintiff’s consumer fraud claims
is DENIED.
C. Other Consumer Fraud Statutes

Plaintiff also raises claims on behalf of a multi-state class for violations of state
consumer fraud acts in Alabama, Arkansas, Georgia, Indiana, Iowa, Louisiana, Michigan,
Montana, Nebraska, Ohio, Oklahoma, Texas, Virginia, West Virginia (Doc. 1, p. 13).
Defendant complains that Plaintiff has not sufficiently identified the relevant states or
statutes at issue (Doc. 14-1, p. 20). However, the Court observes that all of the states

referred to in Plaintiff’s complaint have enacted consumer fraud statutes.3 The Seventh
Circuit has referred to these statutes as “Little-FTC Acts” which “broadly prohibit unfair
business practices, including deceptive advertising.” Bell, 982 F.3d at 474. Generally,
these 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

3 See, e.g., Ala. Code § 8-19-10(a); Ark. Code Ann. § 4-88-113(f); Ga. Code Ann. § 10-1-390; Ind. Code Ann §
24-5-0.5-2; Iowa Code § 714H.5; La. Stat. Ann. § 51:1409(A); Mich. Comp. Laws § 445.904(1)(a); Mont. Code
Ann. § 30-14-133(1); Neb. Rev. Stat. Ann. § 59-1602; Ohio Rev. Code Ann. § 1345.01(A); Okla. Stat. tit. 15, §
752; Tex. Bus. & Com. Code Ann. § 17.41; Va. Code Ann. § 6.2-2025; W. Va. Code § 46A-6-106(a).
circumstances, could be misled.’” See, e.g., Bell, 982 F.3d at 475–76 (quoting Beardsall, 953
F.3d at 972–73). 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
Bell, 982 F.3d at 475–76.
Having found Plaintiff’s consumer fraud claims sufficient to survive dismissal,
Defendant’s motion to dismiss the claims under other consumer fraud statutes are also
DENIED. However, the Court is aware that prudential concerns and potential Rule 23

issues may stand in the way of permitting Plaintiff to represent potential members of a
class to which he himself does not belong or to maintain claims that are different from
those of other potential members. See generally Valley Forge Christian Coll. v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 102 (1982).
D. Breach of Contract

Defendant argues that Plaintiff’s breach of contract claim must fail because
Plaintiff failed to plead contractual privity. Indeed, Plaintiff alleged that he purchased
the Product from third parties, specifically at BP Stations, and not from Defendant
directly. Both parties devote little argument to this count, such that their contentions are
largely underdeveloped. Nevertheless, to state a claim for breach of contract under

Illinois law, a plaintiff must allege: “(1) the existence of a valid and enforceable contract;
(2) substantial performance by the plaintiff; (3) a breach by the defendant; and (4)
resultant damages.” Sevugan v. Direct Energy Servs., LLC, 931 F.3d 610, 614 (7th Cir. 2019).
Plaintiff’s bare-boned allegations do not sufficiently allege these elements. Thus,
Defendant’s Motion as this claim is GRANTED, and Plaintiff’s claim for breach of
contract is DISMISSED, without prejudice.
E. Breach of Express and Implied Warranties and the Magnuson Moss
Warranty Act

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 Ill. Comp. Stat. Ann. 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.” Id. (emphasis
added); see also Connick v. Suzuki Motor Co., 174 Ill. 2d 482 (1996) (Plaintiff must “directly

notify the seller of the troublesome nature of the transaction or be barred from recovering
for a breach of warranty.”).
The Complaint alleges that Plaintiff “recently became aware of Defendant’s breach
of the Product’s warranties” and “provided or will provide notice to Defendant, its
agents, representatives, retailers, and their employees.” (Doc. 1, ¶¶ 114-115). Although

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 v. Ford Motor Co., 477 F. Supp. 3d 705, 717 (N.D.
Ill. 2020). Here, Plaintiff’s Complaint does not provide sufficient allegations to support
his argument that he complied with the statutory notice requirement by filing this suit or

shortly thereafter (See Doc. 17, p. 11). Plaintiff is required to give notice pre-suit, and this
notice must not be generalized See id. (emphasis added) (citing Connick, 174 Ill. 2d 482
(While “it is unnecessary to list specific claims of breach of warranty in giving notice

under section 2-607, it is essential that the seller be notified that this particular transaction
is ‘troublesome and must be watched.’”) (emphasis in original). Because Plaintiff does
not allege that he gave direct pre-suit notice, Plaintiff’s breach of warranty claims must
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. However, because Plaintiff’s state law warranty claims fail, his MMWA claim
also fails. See, e.g., Oettle v. Walmart, Inc., No. 3:20-CV-455-DWD, 2022 WL 3584944, at *2
(S.D. Ill. Aug. 22, 2022); Cerretti v. Whole Foods Mkt. Grp., Inc., No. 21 CV 5516, 2022 WL
1062793 (N.D. Ill. Apr. 8, 2022), at *5 (“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.”) (collecting cases). Accordingly, Defendant’s Motion as
to the warranty claims is GRANTED, and Plaintiff’s claims for breach of warranties are
DISMISSED, without prejudice.
F. Common law claims for negligent misrepresentation and fraud
Defendant argues that Plaintiff’s common law claims for negligent

misrepresentation and fraud fail because Plaintiff has only alleged economic losses, has
failed to allege a special relationship, and cannot satisfy the heightened pleading
requirements of Fed. R. Civ. P. 9(b). Under Illinois law, the economic loss rule bars
plaintiffs from recovering solely economic losses for negligent misrepresentation claims.
See Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill. 2d 69, 91 (1982). Plaintiff has not alleged
non-economic losses, and thus the economic loss rule does bar his recovery for negligent

misrepresentation. Further, the “special knowledge and experience” exception does not
apply here to create a duty here because Defendant, as a manufacturer of goods, is “not
in the business of supplying information.” See Hamidani v. Bimbo Bakehouse LLC, No. 22-
CV-01026, 2023 WL 167513, at *3 (N.D. Ill. Jan. 12, 2023) (citing O'Connor, 477 F. Supp. 3d
at 723)). “Rather, the information supplied to consumers is ancillary to the sale of its
product. See Id. (citing First Midwest Bank, N.A. v. Stewart Title Guar. Co., 218 Ill. 2d 326

(2006)).
To state a claim for common law fraud, 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, 174 Ill. 2d 482). Fraud claims are further subject to the heightened
pleading standard under Fed. R. Civ. P. 9(b). Generally, this standard requires Plaintiff
to plead the who, what, when, where, and how of the fraud. Camasta, 761 F.3d at 737.
Plaintiff has satisfied its heightened pleading burden under Rule 9(b) as to his

consumer fraud claims. Plaintiff’s complaint adequately alleges the who, what, when,
where, and how as to the alleged misleading or deceptive statements: the who:
Defendant; the what: “Lite” labeling on the Product; the when and where: Plaintiff’s
purchases and reading of the Label made between January 2021 and January 2022 at two
BP Stations in Caseyville, Illinois; and how: by representing that the Product was low in
sugar and calories or lower in sugar and calories than other beverages. However, Plaintiff

has not alleged the necessary elements to establish common law fraud. Specifically,
Plaintiff has failed to plausibly allege that the Product contained a false statement of
material fact. Rather, as previously discussed, his claim stems from his interpretation of
the Product’s label which he maintains was misleading and deceptive, but not overtly
false. Further, the Complaint does not allege anything concerning Defendant’s
knowledge.

For these reasons, Defendant’s Motion as to Plaintiff’s common law fraud and
negligent misrepresentation counts are GRANTED, and those claims are DISMISSED,
without prejudice.
G. Unjust Enrichment
To state a claim for unjust enrichment under Illinois law, “a plaintiff must allege

that the defendant has unjustly retained a benefit to the plaintiff's detriment, and that
defendant's retention of the benefit violates the fundamental principles of justice, equity,
and good conscience.” Jett v. Warrantech Corp., 436 F. Supp. 3d 1170, 1181 (S.D. Ill.
2020). “When a claim of unjust enrichment arises out of the same conduct alleged in
another claim, the unjust enrichment claim stands or falls with the other claim.” Id. (citing

Cleary v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011)). Here, Plaintiff’s theory of
unjust enrichment arises out of the same conduct as his ICFA claims. As such, the claim
stands or falls with the ICFA claim. Based on this Court's determination that Plaintiff has
stated a colorable ICFA claim, the related unjust enrichment claim is also sufficient to
withstand dismissal. Defendant’s Motion is DENIED as to that count.
Conclusion
For these reasons, Defendant’s Motion to Dismiss (Doc. 14) is GRANTED, in part,
and DENIED, in part. The Motion is GRANTED as to Plaintiff's claims for breach of
contract, breach of warranties, negligent misrepresentation, common law fraud, and
injunctive relief. Accordingly, those claims are DISMISSED. The Motion is DENIED as
to Plaintiff's consumer fraud and unjust enrichment claims.
SO ORDERED.
Dated: January 30, 2023
Yo i
DAVID W. DUGAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156001. Public record. Not legal advice.