United States District Court, N.D. Illinois, Eastern Division
KEVIN MUIR, on behalf of himself and all others similarly situated, Plaintiff,
PLAYTEX PRODUCTS, LLC, and PLAYTEX PRODUCTS, INC., Defendants
[Copyrighted Material Omitted]
For Kevin Muir, On Behalf of Himself and All Others Similarly Situated, Plaintiff: Patricia N Syverson, LEAD ATTORNEY, PRO HAC VICE, Elaine Ryan, Bonnett Fairbourn Friedman & Balint, PC, Phoenix, AZ; Aleksandra M. S. Vold, Synergy Law Group, Chicago, IL; Gregg Michael Barbakoff, Joseph J Siprut, Siprut PC, Chicago, IL; Stewart M. Weltman, Stewart M Weltman, LLC, Chicago, IL.
For Playtex Products, LLC, a Delaware Limited Liability Company, Playtex Products, Inc., a Delaware Corporation, Defendants: Athanasios Papadopoulos, Neal, Gerber & Eisenberg, Chicago, IL; Jon A. Santangelo, Stinson Morrison Hecker LLP, Clayton, MO; Richard Joseph Doren, Timothy William Loose, PRO HAC VICE, Gibson, Dunn & Crutcher Llp, Los Angeles, CA.
Memorandum Opinion and Order
Feinerman, United States District Judge.
In this putative class action, Kevin Muir alleges that Playtex Products, LLC, and Playtex Products, Inc. (together, " Playtex" ), sold him a diaper disposal product, the Diaper Genie II Elite, that falsely claimed on its packaging that it had been " Proven #1 in Odor Control." Doc. 1. The complaint advances a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (" ICFA" ), 815 ILCS 505/1 et seq., and submits that Muir suffered an economic injury as a result of Playtex's deception. Playtex has moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and, alternatively, under Rule 12(b)(6) for failure to state a claim. Doc. 20. The motion is denied.
In considering Playtex's motion, the court assumes the truth of the complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider " documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Muir's brief opposing dismissal, so long as those facts " are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). To the extent an exhibit attached to or referenced by the complaint contradicts the complaint's allegations, the exhibit takes precedence. See Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007). The following facts are set forth as favorably to Muir as these materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
In 2008, Playtex launched the Diaper Genie II Elite, a diaper disposal system that uses a proprietary film lining. Doc. 1 at ¶ ¶ 13-14, 17. Until January 2011, the front of each Diaper Genie II Elite package displayed a large gold banner stating " Proven #1 in Odor Control*" in large lettering. Id. at ¶ 16. According to the complaint, the asterisk referenced a disclaimer on the " back" of the package, which stated in fine print: " *proven #1 in odor control when tested against other major competitors that use ordinary garbage
bags and/or carbon refills under the most rigorous conditions of emptying the pail." Id. at ¶ 1 n.1. The complaint alleges that this is the " front shot" of the package:
Id. at ¶ 16. Playtex's motion to dismiss argues that " the photograph of the box that Plaintiff includes in his Complaint misleadingly crops off the bottom section of the front panel," and attaches what it calls " a complete photo" ...