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Ciszewski v. Denny's Corp.

April 7, 2010


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Jason Ciszewski, on behalf of a putative class, has sued Denny's Corporation for failing to inform consumers of the sodium content in its meals. He asserts claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), unjust enrichment, and breach of an implied-in-fact contract, and he requests an accounting. Denny's has moved to dismiss Ciszewski's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the Court grants the motion.


The Court takes the following recitation of the facts from the allegations in Ciszewski's complaint.

From the time of the transactions giving rise to his claims through the present, Ciszewski has suffered from high blood pressure which, among other things, requires him to take prescription medication and limit his sodium intake. Sodium is a prominent cause of high blood pressure, hypertension, and other ailments that increase the risk of heart disease and stroke. To lessen the health risks associated with sodium, the Centers for Disease Control and Prevention (CDC) recommends limiting sodium intake to 1,500 milligrams per day. This averages to 500 milligrams per meal for someone who consumes three meals in a day.

Starting in 2004, Ciszewski purchased and consumed meals at Denny's, including items called Moons Over My Hammy, the SuperBird Sandwich, and the Meat Lover's Scramble. Ciszewski alleges that seventy-five percent of the meals sold at Denny's contain an amount of sodium that far exceeds 1,500 milligrams, the maximum that CDC recommends consuming in an entire day. Ciszewski alleges that Moons Over My Hammy contains over 3,200 milligrams of sodium; the SuperBird Sandwich contains over 2,600 milligrams of sodium; and the Meat Lover's Scramble contains over 5,600 milligrams of sodium. Combined, these Denny's meals contain more sodium than the CDC recommends consuming in eight days.

Ciszewski alleges that Denny's knows the ingredients and methods used to prepare the food sold at its restaurants. He also alleges, on information and belief, that Denny's adds excessive amounts of sodium to its meals and/or uses food excessively high in sodium. He claims that consumers would not expect or suspect that the food contains such high levels of sodium and that they cannot ascertain the excessive sodium content through touch, taste, smell, or sight.

Ciszewski claims that although Denny's is aware of the health risks associated with sodium, it failed to disclose the true sodium content of its meals. He also alleges that had he known the actual and excessive sodium content of Denny's meals, he would not have conducted business with the restaurant. Ciszewski contends that by failing to inform customers of the true amount of sodium in its food, Denny's subjected him and others to unnecessary and serious health risks.


To survive a motion to dismiss under Rule 12(b)(6), the complaint must include enough facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. When considering a motion to dismiss a complaint, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).

I. ICFA Claim

Ciszewski claims that Denny's defrauded its customers by failing to inform them of the allegedly excessive amounts of sodium contained in most of its meals. In Illinois, a "Consumer Fraud Act claim requires (1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual damage to the plaintiff that is (5) a result of the deception." De Bouse v. Bayer AG, 235 Ill. 2d 544, 550, 922 N.E.2d 309, 313 (2009).

The Court can dispose quickly of two of Denny's arguments. Denny's argues that Ciszewski's ICFA claim is barred by a provision of the statute that says its provisions do not apply to "[a]ctions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States." 815 ILCS 505/10b(1). Denny's contends that this provision applies because food labeling requirements imposed under the federal Nutritional Labeling and Education Act (NLEA) do not apply to food served in restaurants. See 21 U.S.C. § 343(q)(5)(A)(i) & (r)(5)(B).*fn1

The argument is without merit. Under the cited provision of the ICFA, "full compliance with applicable disclosure requirements is a defense, under section 10b(1), to a claim of fraud based on failure to make additional disclosures." Price v. Philip Morris, Inc., 219 Ill. 2d 182, 249, 848 N.E.2d 1, 41 (2006). Denny's cites no authority, however, that would support a ...

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