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Lake v. Unilever United States, Inc.

United States District Court, N.D. Illinois

August 7, 2013

SIDNEY REID and ANGEL LAKE, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
UNILEVER UNITED STATES, INC., Defendant

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For Sidney Reid, Angel Lake, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs: Jana Eisinger, LEAD ATTORNEY, PRO HAC VICE, Law Office Of Jana Eisinger, Pllc, Mount Vernon, NY; Andrew Szot, Lori Ann Fanning, Marvin Alan Miller, Miller Law LLC, Chicago, IL; Christopher S. Polaszek, PRO HAC VICE, Morgan & Morgan, Pa, Tampa, FL; Elizabeth S. Metcalf, PRO HAC VICE, Morgan & Morgan, Pc, New York, NY; Peter G.A. Safirstein, PRO HAC VICE, Morgan & Morgan, New York, NY.

For Unilever United States, Inc., Defendant: Paula J. Morency, LEAD ATTORNEY, Sondra A. Hemeryck, Schiff Hardin LLP, Chicago, IL.

OPINION

Ruben Castillo, Chief United States District Judge.

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MEMORANDUM OPINION AND ORDER

Sidney Reid and Angel Lake, on behalf of themselves and all others similarly situated (collectively " Plaintiffs" ), bring this putative class action against Unilever United States, Inc. (" Unilever" ) asserting breaches of express and implied warranties, unjust enrichment, violations of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the " Magnuson-Moss Act" ), and several state laws. Plaintiffs' action arises out of their purchase and use of a hair treatment sold as Suave Professionals Keratin Infusion 30 Day Smoothing Kit (the " Hair Treatment" ) that allegedly caused Plaintiffs to suffer hair loss and damage. (R. 1, Compl. ¶ ¶ 1, 6.) Presently before the Court are Unilever's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), (R. 23, Def.'s Mot.), Plaintiffs' motion to limit or supervise Unilever's communications with absent class members, (R. 30, Pls.' Mot. Limit Commc'ns), and Reid's motion for approval to serve discovery, (R. 41, Pls.' Mot. Disc.). For the reasons set forth below, each of the motions is granted in part and denied in part.

RELEVANT FACTS

Unilever is a wholly owned subsidiary of Unilever NV and Unilever PLC, (R. 22, Def.'s Corp. Disclosure Statement), and is located in New Jersey, (R. 1, Compl. ¶ 16). Reid is a resident of Chicago, Illinois, and Lake is a resident of Foley, Alabama. ( Id. ¶ ¶ 14, 15.) Plaintiffs allege that on or about December 9, 2011, Unilever made the Hair Treatment available for sale to consumers on a nationwide basis. ( Id. ¶ ¶ 1, 17.) According to Plaintiffs, the Hair Treatment " contains an ingredient or combination of ingredients that causes significant hair loss upon proper application." ( Id. ¶ 1.) Plaintiffs allege that as early as December 2011, consumers complained on the internet that use of the Hair Treatment was causing hair loss and chemical burns. ( Id. ¶ ¶ 7, 33.) Despite these complaints, Plaintiffs aver that Unilever did not disclose the risk of hair loss on the Hair Treatment's packaging, " or on [Unilever's] websites or other marketing materials." ( Id. ¶ 6.)

In early March 2012, Reid purchased the Hair Treatment for approximately eleven dollars from a retail store in Chicago, Illinois. ( Id. ¶ 49.) Reid alleges that she applied the Hair Treatment properly and thereafter experienced hair loss. ( Id. ) According to Reid, " [h]er hair became progressively thinner at the top of her crown until there were visible bald spots." ( Id. ¶ 50.) As a result of the damage that the Hair Treatment caused to her hair, Reid needed to " have all but half an inch of her hair cut off." ( Id. ¶ 57.) She alleges that she " incurred in excess of $100 dollars in expenses to date relating to her attempts to restore or salvage what was left of her hair" and that her expenses continue to accrue. ( Id. ) In April 2012, Reid wrote to Unilever on its website informing them that use of the Hair Treatment caused her to experience hair loss, but she avers that she did not receive a response from Unilever. ( Id. ¶ 58.) On July 23, 2012, Reid again wrote to Unilever, and Unilever sent her an e-mail response advising her that someone would contact her. ( Id. ) According to Reid, as of August 1, 2012, she had not received any follow-up communication from Unilever. ( Id. )

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In early May 2012, Lake purchased the Hair Treatment for approximately ten dollars from a retail store in Alabama. ( Id. ¶ 51.) Lake alleges that she applied the Hair Treatment properly, but " within minutes of use, her hair began melting together and falling out in clumps." ( Id. ¶ 52.) Lake then sent Unilever a letter setting forth her experience with the Hair Treatment. ( Id. ¶ 53.) Unilever responded to Lake's letter and asked for additional information to investigate the problem. ( Id. ¶ 54.) Although Unilever also refunded Lake fifteen dollars for the purchase of the Hair Treatment, Lake contends that she incurred and continues to incur expenses in repairing the damage caused by the Hair Treatment. ( Id. ) Lake avers that she has spent hundreds of dollars attempting to repair the damage caused by the Hair Treatment. ( Id. ¶ 59.) Lake also alleges that she has been " forced to cut approximately 12 inches off the length of her hair" and that her remaining hair continues to fall out and " is no longer in the good condition it was in prior to her use of the [Hair] Treatment." ( Id. )

Plaintiffs allege that they " would not have purchased the [Hair] Treatment but for the Defendant's false and fraudulent marketing that promoted the [Hair Treatment] as a safe 'smoothing' product whose effects would last no longer than 30 days, its false statement that the [Hair Treatment] does not contain [f]ormaldehyde, and its misleading claim that it was Keratin-based." ( Id. ¶ 55.) Plaintiffs further allege that Unilever was aware or should have been aware that the Hair Treatment contained an inherent defect that caused significant hair loss upon proper application, ( id. ¶ ¶ 11, 45), but that despite such knowledge, Unilever did not disclose the risk of hair loss to consumers, ( id. ¶ 48).

On May 2, 2012, Unilever recalled the Hair Treatment, ( id. ¶ 35), in what Plaintiffs characterize as a belated and incomplete recall. ( Id. ¶ ¶ 9, 34, 39, 48.) Unilever advised retailers to immediately cease the distribution of the Hair Treatment and asked retailers to send the Hair Treatment back to Unilever. ( Id. ¶ 36.) On its website, Unilever explained that the Hair Treatment was recalled " because of potential consumer misunderstanding of the product's suitability for certain hair conditions." ( Id. ¶ 34.) Nevertheless, Plaintiffs aver that Unilever did not make any public announcement and did not publicly respond to complaints stemming from the use of the Hair Treatment. ( Id. ¶ 38.) Plaintiffs allege that despite the recall of the Hair Treatment, Unilever has continued to advise consumers that the Hair Treatment is safe and has not disclosed to consumers complaints of hair loss, or issued warnings about potential hair loss to consumers. ( Id. ¶ ¶ 39-40.)

MOTION TO DISMISS

I. Procedural History

On August 1, 2012, Plaintiffs filed their six-count complaint (" Complaint" ) with this Court in their individual capacities and on behalf of others similarly situated. (R. 1, Compl. at 1). That same day, Plaintiffs moved for class certification and a stay of briefing. (R. 4, Pls.' Class Cert. Mot.) On March 6, 2013, the Court granted a stay of briefing on the class certification motion pending the resolution of Unilever's motion to dismiss. (R. 45, Min. Entry.)

In Count I of the Complaint, brought individually and on behalf of all putative class members, Plaintiffs allege that they formed a contract with Unilever at the time they purchased the Hair Treatment, and that " [t]he terms of that contract include the promises and affirmations of fact" made by Unilever through its advertising, marketing and packaging. (R. 1, Compl. ¶ 73.) Specifically, Plaintiffs contend

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that Unilever expressly warranted that the Hair Treatment " was a hair 'Smoothing' Product and not a chemical relaxer, that the effects of the [Hair] Treatment would last no more than 30 days, and that it contained No Formaldehyde and was safe." ( Id. ¶ 74.) Plaintiffs further allege that Unilever breached these express warranties because its statements were false. ( Id. ¶ 76.) Plaintiffs contend that they would not have purchased the Hair Treatment had they known its true nature. ( Id. ¶ 76.) In Count II, Plaintiffs allege that Unilever breached implied warranties because the Hair Treatment was defective and therefore not merchantable. ( Id. ¶ 80.) As a result of the non-merchantability of the Hair Treatment, Plaintiffs allege that they sustained damages. ( Id. ¶ 82.)

In Count III, Plaintiffs bring consumer fraud claims, individually and on behalf of all putative class members, against Unilever. ( Id. ¶ ¶ 83-97.) Reid brings her consumer fraud claims pursuant to the Illinois Consumer Fraud and Deceptive Businesses Practices Act (the " ICFA" ), 815 Ill. Comp. Stat. 505/1 et seq . ( Id. ¶ 85 n.2.) Lake brings her consumer fraud claims pursuant to the Alabama Deceptive Trade Practices Act (the " ADTPA" ), Ala. Code § 8-19-1 et seq . ( Id. ¶ ¶ 84-85.) In a footnote, Plaintiffs note that pursuant to Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) (plurality opinion), although class relief is not permitted under Alabama State law, an Alabama class may nonetheless be maintained in a diversity suit under Federal Rule of Civil Procedure 23. ( Id. at 19 n.1.) In a separate footnote, Plaintiffs also note that the consumer fraud claims of nonresident absent class members are brought under the consumer protection statutes of their respective states of residence. ( Id. ¶ 85 n.2.) In support of their consumer fraud claims, Plaintiffs allege that Unilever knowingly misrepresented and/or omitted material facts to consumers, such as Plaintiffs, and that these material misrepresentations violate the consumer fraud laws at issue. ( Id. at ¶ ¶ 87-96.) Specifically, Plaintiffs allege that Unilever misrepresented that the Hair Treatment " was a Keratin-based 'smoothing' conditioner" and that by placing " No Formaldehyde" in all capital letters on the front of the Hair Treatment's packaging, along with a claim that the Hair Treatment would " 'infuse hair with Keratin,' Unilever marketed the [Hair Treatment] as a natural, safe conditioning treatment." ( Id. ¶ ¶ 90-91.)

In Count IV, brought individually and on behalf of all putative class members, Plaintiffs allege that Unilever committed deceptive acts or practices within the meaning of the Illinois Uniform Deceptive Trade Practices Act (the " Illinois UDTPA" ), 815 Ill. Comp. Stat. 510/1 et seq., such as failing to disclose the defect in the Hair Treatment and failing to warn consumers of the risk of significant hair loss associated with its use. ( Id. ¶ ¶ 98-103.) In Count V, Plaintiffs allege that Unilever violated the Magnuson-Moss Act by breaching the implied and express warranties identified in Counts I and II. [1] ( Id. ¶ 108.) In Count VI, brought individually and on behalf of all putative class members, Plaintiffs allege that Unilever has been unjustly enriched by retaining the revenues derived from the putative class

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members' purchase of the Hair Treatment. ( Id. ¶ ¶ 109-13.)

On September 10, 2012, Unilever moved to dismiss all counts of the Complaint for failure to state a claim pursuant to Rule 12(b)(6). (R. 23, Def.'s Mot.) Unilever first argues that the Hair Treatment's packaging and instructions, attached to the Complaint as exhibits, contradict Plaintiffs' assertions in Count I that Unilever made false statements about the Hair Treatment. (R. 25, Def.'s Mem. at 2, 7-9.) As to Count II, Unilever contends that Plaintiffs lack standing to assert a cause of action for breach of an implied warranty because Plaintiffs are not in privity with Unilever. ( Id. at 2, 9.) Unilever also maintains that Count III fails to state a claim because Plaintiffs' claims are duplicative of their claimed breach of warranties which are not actionable under a consumer fraud act, and because Plaintiffs fail to allege that Unilever acted knowingly. ( Id. at 11.) Unilever next contends that Count IV should be dismissed because an award of damages is not an available remedy under the Illinois UDTPA, and there is no need for injunctive relief because it has recalled the Hair Treatment. ( Id. at 2, 12-13.) Unilever also maintains that, to the extent Count IV purports to assert a claim under the ADTPA, it is duplicative of Count III and should therefore be dismissed. ( Id. at 2, 13.) The lack of viable state law causes of action for breaches of express and implied warranties, Unilever contends, renders the Magnuson-Moss Act claim asserted in Count V moot. ( Id. at 2, 13-14.) Finally, Unilever argues that Count VI, the unjust enrichment claim, fails because the Complaint does not allege sufficient facts to support it and is otherwise moot as to Lake. ( Id. at 2, 14-15.)

On November 28, 2012, Plaintiffs filed a response in opposition to Unilever's motion to dismiss. (R. 34, Pls.' Resp.) Plaintiffs first argue that they have sufficiently pleaded a claim for breach of express warranty in Count I. ( Id. at 3-8.) Specifically, they argue that Unilever's representations that the Hair Treatment was a " smoothing" product, that its effects would last " up to 30 days," and that it contained " No Formaldehyde," are affirmations of fact or promises that are false and not mere puffery. ( Id. at 3-8.) Plaintiffs next argue that lack of privity does not render Count II deficient because neither Illinois nor Alabama State laws require privity of contract for actions such as this one, where it is alleged that a defective product caused injury to property or persons beyond damage to the product itself. ( Id. at 8) (citing Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550, 556 (Ill. 1974)).

With respect to Count III, Plaintiffs argue that they have alleged that Unilever's representations concerning the Hair Treatment were deceptive acts with sufficient particularity, as required by Federal Rule of Civil Procedure 9(b). (R. 34, Pls.' Resp. at 9.) According to Plaintiffs, Rule 9(b) only requires them to allege a " basic outline of the scheme," and not all " evidentiary details that will be used to support the claim." ( Id. at 9) (citing Mutuelle Generale Francaise Vie v. Life Assurance Co. of Pa., 688 F.Supp. 386 (N.D. Ill. 1988)). Plaintiffs further assert that the Hair Treatment's undisclosed corrosive nature clearly caused the damage reported by Plaintiffs. (R. 34, Pls.' Resp. at 12.)

In response to Unilever's assertion that Plaintiffs fail to seek an available remedy under the Illinois UDTPA in Count IV, they argue that the Complaint properly alleges a threat of future actions in violation of the Illinois UDTPA, namely, the full and appropriate recall of the Hair Treatment. ( Id. at 13.) Plaintiffs also do not dispute that their ADTPA claim is duplicative of Count III, but argue that

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this is permitted under Federal Rule of Civil Procedure 8(d)(2). [2] ( Id. )

With respect to Count V, Plaintiffs reiterate that they have adequately alleged viable state law claims for breaches of implied and express warranties as required under the Magnuson-Moss Act. ( Id. at 14.) Finally, as to Count VI, Plaintiffs argue that Unilever's assertion that the " unjust enrichment claim is inapplicable because express warranties create a specific contract which would govern over an unjust enrichment claim" misapprehends the law. ( Id. ) According to Plaintiffs, express warranties do not create a specific contract and Plaintiffs have not alleged a breach of contract claim. ( Id. ) Plaintiffs further contend that the refund Unilever issued to Lake has not rendered her unjust enrichment claim moot because Plaintiffs are entitled to recover the purchase price as well as all interest, fees, and costs accrued. ( Id. at 15.) Finally, in the alternative, Plaintiffs request that they be granted leave to file an amended complaint should additional allegations be in order. ( Id. at 15-16.)

On December 6, 2012, Unilever filed a reply in support of its motion to dismiss. (R. 38, Def.'s Reply.) Unilever argues that Plaintiffs are unable to point to specific factual allegations that support their claims and, instead, rely on conclusory allegations that lack factual support and are contradicted by the Hair Treatment's packaging and instructions. ( Id. at 1.)

II. Legal standards

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) " challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). In ruling on a motion to dismiss under Rule 12(b)(6), the Court construes the complaint " in the light most favorable to the nonmoving party, accept[ing] well-pleaded facts as true, and draw[ing] all inferences in [their] favor." Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). To survive a motion to dismiss for failure to state a claim, the complaint must overcome " two easy-to-clear hurdles" : (1) " the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests" ; and (2) " its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level[.]'" Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). " A claim has facial plausibility when the plaintiff pleads 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) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plausibility in this context does not imply that a court " should decide whose version to believe, or which version is more likely than not." Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Rather, to survive a motion to dismiss under Rule 12(b)(6), " the plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen." Id.

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For claims that sound in fraud, Federal Rule of Civil Procedure 9(b) requires a plaintiff to " state with particularity the circumstances constituting fraud." Fed.R.Civ.P. 9(b). Specifically, Rule 9(b) requires plaintiffs to plead the " who, what, when, where, and how: the first paragraph of any newspaper story," of the " circumstances constituting fraud." DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). While the circumstances constituting fraud must be pleaded with particularity, a defendant's " intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed.R.Civ.P. 9(b); see also DiLeo, 901 F.2d at 627. Furthermore, the heightened pleading requirement of Rule 9(b) applies to all civil cases brought in federal court, even those grounded on state law. Ackerman v. Nw. Mut. Life. Ins. Co., 172 F.3d 467, 470 (7th Cir. 1999) (citing Herman & MacLean v. Huddleston, 459 U.S. 375, 387-89, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)); see also Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 441 (7th Cir. 2011) (" When a plaintiff in federal court alleges fraud under the ICFA, the heightened pleading standard of [Rule] 9(b) applies." ). This heightened pleading requirement is a response to the " great harm to the reputation of a business firm or other enterprise a fraud claim can do." Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007) (quoting Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999). Thus, " [a] plaintiff claiming fraud or mistake must do more pre-complaint investigation to assure that the claim is responsible and supported, rather than defamatory and extortionate." Id. (quoting Payton, 184 F.3d at 627).

III. Whether plaintiffs have sufficiently pleaded claims for breach of express warranty

In Count I, Plaintiffs bring claims for breach of express warranty under Illinois and Alabama law. (R. 1, Compl. ¶ ¶ 71-77.) Plaintiffs allege that they formed a contract with Unilever when they purchased the Hair Treatment and that " [t]he terms of that contract include the promises and affirmations of fact made by [Unilever] on the [Hair] Treatment's packaging and through marketing and advertising." ( Id. ¶ 73.) Specifically, Plaintiffs aver that Unilever expressly warranted (1) that the Hair Treatment " was a hair 'Smoothing' Product and not a chemical relaxer; " (2) " that the effects of the [Hair] Treatment would last no more than 30 days; " and (3) that the Hair Treatment " contained No Formaldehyde and was safe." ( Id. ¶ 74.) Plaintiffs further claim that Unilever breached these express warranties because its statements about the Hair Treatment were false. ( Id. ¶ 75.) Finally, Plaintiffs allege that they would not have purchased the Hair Treatment " had they known the true nature of the [Hair] Treatment and the mis-statements regarding what the [Hair Treatment] was and what it contained." ( Id. ¶ 76.)

Under Section 2-313 of the Uniform Commercial Code (" UCC" ) as adopted in both Illinois and Alabama, an express warranty is created where (1) the seller makes an affirmation of fact or promise; (2) that relates to the goods; and (3) becomes part of the basis of the bargain between the parties. [3] See Royal Bus. Mach., Inc. v. Lorraine Corp., 633 F.2d 34, 41

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(7th Cir. 1980) (construing UCC § 2-313 as adopted in Indiana). " An affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty." [4] 810 Ill. Comp. Stat. 5/2-313(2) (2012); Ala. Code § 7-2-313(2) (2002); see also Weiss v. Rockwell Mfg. Co., 9 Ill.App.3d 906, 293 N.E.2d 375, 381 (Ill.App.Ct. 1st Dist. 1973) (holding that " to be actionable under the theory of express warranty the claim must be based on an affirmation of fact or promise which is not a statement representing the seller's opinion or commendation of the goods and which is false" ). Thus, " [s]ales talk which relates only to the value of the goods or the seller's personal opinion or commendation of the goods is considered puffing and is not binding on the seller." Redmac, Inc. v. Computerland of Peoria, 140 Ill.App.3d 741, 489 N.E.2d 380, 382, 95 Ill.Dec. 159 (Ill.App.Ct. 3d Dist. 1986); see also Russell v. Wilson, 991 So.2d 745, 749 (Ala. Civ. App. 2008) (holding that statements attributed to motorcycle seller that motorcycle was in " good shape" were statements of opinion and " sales talk, i.e., mere puffery, and [did] not rise to the level of a representation of material fact required to create an express warranty" ) (internal citations omitted). The question of whether a statement constitutes an express warranty or mere puffery is generally considered a question of fact. Redmac, Inc., 489 N.E.2d at 382; 810 Ill. Comp. Stat. 5/2-313, cmt. 3; Russell, 991 So.2d at 748 (" Whether a given representation is an expression of opinion or a statement of fact depends upon all the circumstances of the particular cases . . . in cases of question should be left to the jury" ) (internal quotation marks omitted) (quoting McGowan v. Chrysler Corp., 631 So.2d 842, 846 (Ala. 1993)); Ala. Code § 7-2-313, cmt. 3.

The Seventh Circuit has noted that " [t]he decisive test for whether a given

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representation is a warranty or merely an expression of the seller's opinion is whether the seller asserts a fact of which the buyer is ignorant or merely states an opinion or judgment on a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment." Royal Bus. Mach., Inc., 633 F.2d at 41 (referencing Illinois' test where claims arose under the UCC as adopted by Indiana) (citing Weiss, 293 N.E.2d at 381; Gen. Supply & Equip. Co. v. Phillips, 490 S.W.2d 913, 917 (Tex. Civ. App. 1972)). In the first case there is a warranty, but in the second there is not. Weiss, 293 N.E.2d at 381.

Unilever argues that Count I fails to state a claim because Plaintiffs have not identified any affirmation of fact or promise by Unilever that was not true. (R. 25, Def.'s Mem. at 7.) Specifically, Unilever contends that the Hair Treatment's packaging, which Plaintiffs attached as exhibits to their Complaint, contradict Plaintiffs' claims. [5] ( Id. at 7-9.)

A. Allegations regarding use of the term " Smoothing"

As to Plaintiffs' first alleged express warranty that the Hair Treatment " was a hair 'Smoothing' [p]roduct and not a chemical relaxer," (R. 1, Compl. ¶ 74), Unilever argues that while it did use the term " smoothing" in the packaging, it also noted that the results of the Hair Treatment may vary. (R. 25, Def.'s Mem. at 7.) Unilever contends that, at most, this " language is akin to non-actionable puffery" and is not an affirmation of fact or promise. ( Id. at 7) (citing Barbara's Sales, Inc. v. Intel Corp., 227 Ill.2d 45, 879 N.E.2d 910, 926, 316 Ill.Dec. 522 (Ill. 1999)). In addition, Unilever argues that the packaging and instructions are " abundantly clear" that the Hair Treatment is a hair straightener that uses the same chemicals used in hair perming thereby contradicting Plaintiff's assertion that Unilever promised that the Hair Treatment was not a " chemical relaxer." ( Id. at 8.)

In response, Plaintiffs contend that the language used in the packaging--" results may vary depending on hair type" --does not negate the smoothing promise. (R. 34, Pls.' Resp. at 6) (citing Fed. Trade Comm'n v. QT, Inc., 448 F.Supp.2d 908 (N.D. Ill. 2006)). According to Plaintiffs, this language " merely warns that the [Hair Treatment] may be less effective on some hair types." ( Id. at 6.) Plaintiffs also contend that Unilever's statements that the Hair Treatment would smooth hair were not mere puffery and that " [t]he critical question is whether marketing materials would be likely to mislead reasonable consumers." ( Id. at 6-7) (internal quotation marks and alterations omitted) (citing Speakers of Sport, Inc. v. Proserv. Inc., 178 F.3d 862, 866 (7th Cir. 1999)).

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Puffing is generally defined as " [t]he expression of an exaggerated opinion--as opposed to a factual misrepresentation--with the intent to sell a good or service. Puffing involves expressing opinions, not asserting something as a fact." Black's Law Dictionary 1353 (9th ed. 2009). According to the Seventh Circuit, statements are puffing if they are " empty superlatives on which no reasonable person would rely." All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 868 (7th Cir. 1999); see also Barbara's Sales, Inc., 879 N.E.2d at 926 (" Puffing denotes the exaggerations reasonably expected of a seller as to the degree of quality of his or her product, the truth or falsity of which cannot be precisely determined." ); Russell, 991 So.2d at 748-49 (likening mere sales talk to puffery); Hughes v. Hertz Corp., 670 So.2d 882, 885 (Ala. 1995) (" This Court has held that statements of opinion amounting to sales talk, or 'puffery,' are not statements concerning a material fact upon which one has a right to act and, therefore, will not support a fraud claim." ). Illinois courts have held that phrases such as, " high-quality," " expert workmanship," " custom quality," " perfect," " magnificent," " comfortable," " picture perfect," and the " best" are puffery. Barbara's Sales, Inc., 879 N.E.2d at 926. Similarly, Alabama courts have construed phrases such as " in good shape," " as good as [] new," Gable v. Boles, 718 So.2d 68, 70-71 (Ala. Civ. App. 1998) (citing Hughes, 670 So.2d at 885; Young v. Serra Volkswagen, Inc., 579 So.2d 1337, 1339 (Ala. 1991); Pell City Wood, Inc. v. Forke Bros. Auctioneers, Inc., 474 So.2d 694, 695 (Ala. 1985)), " as good or better," Lucky Mfg. Co. v. Activation, Inc., 406 So.2d 900, 905 (Ala. 1981), and " in good condition," La Trace v. Webster, 17 So.3d 1210, 1217 (Ala. Civ. App. 2008) (citing Pell City Wood, Inc., 474 So.2d at 695), as mere puffery. Generally, statements that ascribe specific virtues to a product that it does not possess are not considered puffing. See Miller v. William Chevrolet/GEO, Inc., 326 Ill.App.3d 642, 762 N.E.2d 1, 7, 260 Ill.Dec. 735 (Ill.App.Ct. 1st Dist. 2001) (citing Totz v. Cont'l Du Page Acura, 236 Ill.App.3d 891, 602 N.E.2d 1374, 1383, 177 Ill.Dec. 202 (Ill.App.Ct. 2d Dist. 1992)); La Trace, 17 So.3d at 1217 (noting that Alabama courts have held that a seller's statement that a boat was winterized, or that a trailer was a 2000 mode-year trailer were statements of fact) (citing Gable, 718 So.2d at 70; Terrell v. R & A Mfg. Partners, Ltd., 835 So.2d 216, 226 (Ala. Civ. App. 2002)).

Here, the front of the Hair Treatment packaging unequivocally states (in bold, capital letters that are in a large font): " 30 DAY SMOOTHING KIT." (R. 1, Compl., Ex. B at 30.) Underneath this statement, the packaging reads (in bold, capital letters): " SMOOTHES YOUR STYLE." ( Id. ) The back of the packaging provides that the Hair Treatment " leaves [hair] smooth, shiny, and manageable for up to 30 days." ( Id. at 31) (emphasis added). The Court cannot conclude as a matter of law that Unilever's statements were mere puffery. The statements do not appear to be exaggerations of an opinion and are susceptible of being interpreted as factual statements. That is, the description of the Hair Treatment as a " smoothing" product may be viewed as a statement that " conjure[s] a specific, factual idea" about the Hair Treatment's effects in the mind of a typical consumer. See Miller, 762 N.E.2d at 7. In short, whether the identification of the Hair Treatment as a " smoothing" product is an affirmation of fact or promise is a question of fact that cannot be resolved on a motion to dismiss. Redmac, Inc., 489 N.E.2d at 382; 810 Ill. Comp. Stat. 5/2-313, cmt. 3; Russell,

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991 So.2d at 748; Ala. Code § 7-2-313, cmt. 3. Similarly, whether the Hair Treatment's packaging made it " abundantly clear" that it was a chemical hair straightener is a question of fact. Accordingly, the Court concludes that Plaintiffs have sufficiently pleaded that Unilever's assertion that the Hair Treatment was a " smoothing" product and not a chemical relaxer was an affirmation of fact or promise so as to survive the motion to dismiss.

B. Allegations regarding use of the phrase " Up to 30 days"

Plaintiffs also allege that Unilever's statement that the effects of the Hair Treatment " would last no more than 30 days," (R. 1, Compl. ¶ 74), constituted a second express warranty. The front and back of the Hair Treatment's packaging identify it as a " 30 Day Smoothing Kit." (R. 1, Compl., Ex. B at 30-31.) In addition, the packaging provides that " Hair will begin to return to its normal texture and shape over time but will continue to be smoother up to 30 days." ( Id. at 31) (emphasis added). Unilever argues that the latter statement " is not a warranty that the effects will not last longer than thirty days." (R. 25, Def.'s Mem. at 8.) In response, Plaintiffs argue that " the plain meaning of the words indicates that there is a limit of 30 days for the effects." (R. 34, Pls.' Resp. at 7.)

Again, whether a statement is merely the expression of an opinion or a statement of fact is a question of fact that cannot be decided on a motion to dismiss. See Redmac, Inc., 489 N.E.2d at 382; 810 Ill. Comp. Stat. 5/2-313, cmt. 3; Russell, 991 So.2d at 748; Ala. Code § 7-2-313, cmt. 3. Furthermore, courts have not hesitated to find that a warranty has been created when a seller uses language in product brochures to suggest that a product will perform up to certain nominal values. See Ricwil, Inc. v. S.L. Pappas and Co., Inc., 599 So.2d 1126, 1131 (Ala. 1992) (concluding that where plaintiff's contract called for pipe that would withstand water temperatures of at least 240 degree Fahrenheit, and defendant's product brochures specified that its piping system was for " Domestic Hot Water and Condensate Lines to 250 degree Fahrenheit," such statements became part of the basis of the bargain and an express warranty as to temperature was made) (emphasis added and internal alterations omitted); cf. McGowan v. Am. Pressed Tan-Bark Co., 121 U.S. 575, 581, 586, 608, 7 S.Ct. 1315, 30 L.Ed. 1027 (1887) (holding that where there was a written agreement for the construction of machinery which " would sustain and work up to a pressure of 1,500 tons" and the machinery was unable to sustain such pressure, plaintiffs could recover damages for breach of contract) (emphasis added). Thus, the Court finds that Plaintiffs have sufficiently pleaded that the description of the Hair Treatment as one that would " last up to 30 days" rose to the level of an affirmation of fact or promise so as to survive the motion to dismiss their breach of express warranty claim.

C. Allegations regarding use of the phrase " No Formaldehyde"

Finally, Plaintiffs allege that Unilever's statement that the Hair Treatment " contained No Formaldehyde and was safe," (R. 1, Compl. ΒΆ 74), created a third express warranty. Unilever contends that even if the " No Formaldehyde" statement constitutes a warranty, Plaintiffs have failed to adequately plead that Unilever breached that warranty. According to Unilever, " Plaintiffs do not allege that the [Hair Treatment] in fact contains formaldehyde," (R. 25, Def.'s Mem. at 8), nor do ...


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