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In re McDonald's French Fries Litigation

May 30, 2007

IN RE MCDONALD'S FRENCH FRIES LITIGATION,


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Alissa Krinsky; Jenna Friedman; Dave Burdi; Debra Moffatt; Josh Gottwig; David and Cehrilyn Levy, individually and as parents and legal guardians of their daughter Sydni Levy; Robert Dahn; Bettye Dahn; Kathryn E. Stepkowski; Amanda and Scott Spaid, individually and on behalf of minor children Sean, Sarah and Adam Spaid; and Cynthia Tsimpedes, next friend of Elene Tsimpedes, have filed an amended class action complaint ("the complaint"), on behalf of a nationwide class of persons who "purchased and/or consumed" french fries and hash browns ("potato products"), against defendant McDonald's Corporation ("McDonald's") alleging violations of various states' consumer protection statutes (Count I), breach of implied and express warranties (Counts II and III), unjust enrichment (Count IV), and fraud (Count V). Plaintiffs seek monetary damages and injunctive relief. Defendant has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and to strike the complaint's request for injunctive relief. For the following reasons, the motion is granted in part and denied in part.

I.

Plaintiffs and alleged members of the class are individuals who cannot or chose not to consume gluten, milk or wheat because of food allergies, dietary issues, or food sensitivities. Plaintiffs claim that on numerous occasions they purchased defendant's potato products from McDonald's restaurants based on defendant's alleged representations that the products were free of milk, wheat, and gluten, and were safe for consumption by persons such as plaintiffs and members of the class. On or about February 13, 2006, McDonald's revised its "USA Food Allergens and Sensitivities Listing" contained on its website, with respect to its potato products entries. Since that date McDonald's lists such products as containing milk, wheat, and gluten on its website.

II.

In assessing defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), I must accept all well-pleaded facts in the complaint as true. Moranski v. General Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005); Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). Documents attached to the complaint are considered part of the complaint. Id. (citing Fed. R. Civ. P. 10(c)). I must view the allegations in the light most favorable to plaintiff. Id. However, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, No. 05-1126, slip op. at 8, 550 U.S. __, 127 S.Ct. 1955, 2007 U.S. LEXIS 5901, at *5, 2007 WL 1461066, at *8 (May 21, 2007).

A. Counts I and V: Fraud

Counts I and V set forth claims for consumer and common law fraud. Defendant moves to dismiss these counts on the ground that they fail to allege fraud with particularity in accordance with Fed. R. Civ. P. 9(b). Under Federal Rule of Civil Procedure 9(b), plaintiff must plead with specificity the who, what, where, and when of the alleged fraud or mistake. Fidelity Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins., 412 F.3d 745, 749 (7th Cir. 2005). Rule 9(b) also applies in consumer fraud claims. See, e.g., Fleming-Dudley v. Legal Investigations, Inc., No. 05 C 4648, 2007 WL 952026, at *10 (N.D. Ill. Mar. 22, 2007) (Filip, J.).

In this case, the complaint alleges that "McDonald's website for many years contained a chart entitled 'McDonald's USA Food Allergens and Sensitivities Listing'" in which defendant "represented to the public that its [p]otato [p]roducts contained no allergens, that no food sensitivities were associated with the consumption of those items, and that they were gluten-free." (Compl. at ¶ 15.) The complaint also provides that defendant revised its website listing on or about February 13, 2006. (Id. at ¶ 21.) On their face, these allegations are insufficient to plead the "when" with specificity as required under Fed. R. Civ. P. 9(b).

Other than before February 13, 2006, it is unclear what the relevant time period is as to the representations made through the website.

Moreover, the complaint does not specify the time frame or method through which any other alleged misrepresentations were made to plaintiffs. Nor does the complaint allege that these plaintiffs relied on the representations on the website when purchasing or consuming the potato products. Both counts allege that the potato products were advertised and marketed as milk, wheat, and gluten-free, but no specific instances or locations of the advertisements are identified. (See Compl. at ¶¶ 46, 75-76.) Accordingly, counts I and V are dismissed.

B. Counts II and III

Breach of Implied and Express Warranties Defendant first moves to dismiss counts II and III on the ground that plaintiffs failed to provide pre-suit notice as required by the Uniform Commercial Code ("UCC"). Under the UCC, a plaintiff buyer pursuing a breach of warranty claim must give the seller notice of the claimed breach or be barred from recovery. U.C.C. § 2-607; Cal. U. Com. Code § 2607(3)(A); Fla. Stat. § 672.607(3)(a); 810 ILCS 5/2-607(3)(A). This notice requirement is intended to encourage pre-suit settlement negotiations, see U.C.C. § 2-607 cmt. 4; see also Reyes v. McDonald's Corp., Nos. 06 C 1604, 06 C 2813, 2006 U.S. Dist. LEXIS 81684, at *10 (N.D. Ill. Nov. 8, 2006) (Kendall, J.), and is subject to two exceptions.

Direct notice 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 Allstate Ins. Co. v. Daimler Chrysler, No. 03C6107, 2004 WL 442679, at *2, 2004 U.S. Dist. LEXIS 3811, at *7 (N.D. Ill. Mar. 9, 2004) ...


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