United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JORGE L. ALONSO United States District Judge.
Kraft Foods Group, Inc. (“Kraft”) purchased a
dried buttermilk product from defendant SunOpta Ingredients,
Inc. (“SunOpta”) or SunOpta's predecessor for
over two decades. Kraft learned in 2013 that the dried
buttermilk product it was purchasing was not pure buttermilk
powder but a blend of buttermilk powder and other ingredients
including whey powder, whey protein concentrate, and dried
milk. Kraft subsequently brought this action against SunOpta
for breach of contract, common-law fraud, and violation of
the Illinois Consumer Fraud Act (“ICFA”), 815
ILCS 505/2. SunOpta moves to dismiss Counts II and III of
Kraft's amended complaint for failure to state a claim.
For the following reasons, the motion is granted.
over twenty years, Kraft purchased from SunOpta or a SunOpta
predecessor a high-heat spray-dried buttermilk product, which
it used as an ingredient in Kraft products such as cheese
powder. (Am. Compl. ¶ 6, ECF No. 34.) Kraft alleges
that, throughout this twenty-year period, Kraft understood
the buttermilk product to be composed of pure, unadulterated
buttermilk. (Id., ¶¶ 1, 14-15.)
periodically requires ingredient suppliers to verify that the
ingredients supplied are in compliance with Kraft's
specifications. (Id. ¶ 19.) In 1996, Kraft sent
a Raw Material Information Sheet form to Northern Food and
Dairy, Inc. (“Northern Food”), a Kraft supplier
that was subsequently acquired by SunOpta. (Id.
¶¶ 20-21.) In the 1996 Raw Material Information
Sheet, which Northern Food filled out in handwriting and
returned to Kraft, Northern Food stated that the buttermilk
product's only ingredient was “Buttermilk -
100%.” (Id. ¶ 22; id., Ex. 4, at
3.) Where the form asked for a “physical
description” of the product, Northern Food offered the
following: “Buttermilk product in liquid form is
brought into the plant to be spray dried.”
(Id., Ex. 4, at 4.) The form is not signed, but it
lists a “contact name” of “Mary, ”
without giving a last name, and a phone number.
(Id., Ex. 4, at 7.)
2012, Kraft notified SunOpta that it wished to change the
specifications for the buttermilk product, increasing the
protein level from the current 20-28% to a minimum of 28%.
(Id. ¶ 26.) SunOpta acknowledged that the
change in protein level would “affect the cost of the
product.” (Id. ¶ 27.)
March 2013, Kraft “learned from SunOpta” (Kraft
does not elaborate on how) that the buttermilk product it was
buying from SunOpta was not 100% buttermilk, but a blend of
buttermilk powder, whey powder, whey protein concentrate and
nonfat dried milk. (Id. ¶¶ 14-15.)
subsequently brought this action. On August 10, 2015, this
Court dismissed Kraft's fraud claims without prejudice
for failure to state a claim. (Memo. Op. & Order, ECF No.
27.) Kraft filed an amended complaint on September 29, 2015,
again alleging breach of contract as well as common-law fraud
(Count II) and violation of the ICFA, 815 ILCS 505/2 (Count
III). SunOpta has moved to dismiss Counts II and III.
motion under Rule 12(b)(6) tests whether the complaint states
a claim on which relief may be granted.” Richards
v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under
Rule 8(a)(2), a complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short
and plain statement under Rule 8(a)(2) must “give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted).
federal notice-pleading standards, a plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. Stated differently,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “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.”
Id. (citing Twombly, 550 U.S. at 556).
“In reviewing the sufficiency of a complaint under the
plausibility standard, [courts must] accept the well-pleaded
facts in the complaint as true, but [they] ‘need[ ] not
accept as true legal conclusions, or threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements.'” Alam v. Miller Brewing
Co., 709 F.3d 662, 665-66 (7th Cir. 2013) (quoting
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)).
a plaintiff alleging fraud must “state with
particularity the circumstances constituting fraud.”
Fed.R.Civ.P. 9(b). Although fraudulent or deceptive intent
“may be alleged generally, ” Rule 9(b) requires
Kraft to describe the “circumstances” of the
alleged fraud with “particularity” by including
such information as the “the identity of the person who
made the misrepresentation, the time, place and content of
the misrepresentation, and the method by which the
misrepresentation was communicated to the plaintiff, ”
Windy City Metal Fabricators & Supply, Inc.
v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 668 (7th
Cir. 2008), or, to put it differently, by providing the
“who, what, where, when and how” of the alleged
misrepresentations. See Bank of Am., Nat. Ass'n, v.
Knight, 725 F.3d 815, 818 (7th Cir. 2013).
moves to dismiss Kraft's claims of common-law fraud
(Count II) and violation of the ICFA by engaging in
“deceptive acts and practices” (Count III). The
elements of these claims are as follows:
To state a claim under the ICFA, a plaintiff must allege
“(1) a deceptive or unfair act or practice 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., 775 N.E.2d
951, 960 (Ill. 2002)). To state a claim of common law fraud,
a plaintiff must allege “(1) a false statement or
omission of material fact; (2) knowledge or belief of the
falsity by the party making it; (3) intention to induce the
other party to act; (4) action by the other ...