United States District Court, N.D. Illinois, Eastern Division
TERESA ELWARD, individually and on behalf of all others similarly situated, Plaintiffs,
ELECTROLUX HOME PRODUCTS, INC., Defendant.
MEMORANDUM OPINION AND ORDER
Z. LEE United States District Judge
putative class action, Illinois consumers bought dishwashers
designed and manufactured by Electrolux that unexpectedly
overheated, causing fires and flooding. Teresa Elward, on
behalf of herself and others similarly situated, has sued
Electrolux pursuant to Illinois law for breach of implied
warranty, strict liability, negligence, fraud, and statutes
relating to consumer fraud and deceptive practices.
Electrolux has moved to dismiss the First Amended Complaint
for failure to state a claim and for failure to plead the
fraud claims with particularity. For the reasons provided
below, the Court grants in part and denies in part the
is the world's second-largest appliance maker by units
sold. 1st Am. Compl. ¶ 11. Electrolux designs and
manufactures dishwashers and sells them under its own brand
name, as well as other brand names, such as Frigidaire.
Id. ¶¶ 11-13.
alleges that she and other consumers purchased Electrolux
dishwashers through Electrolux's agents. Id.
¶ 55. Further, she alleges that Electrolux had direct
communications with her and other putative class members via
advertisements, the internet, warranty forms, registration
cards, and other documents. Id. According to Elward,
based on the direct dealings of customers with Electrolux and
its agents, Electrolux was aware that Elward and other
Illinois consumers required dishwashers that were safe to use
in their homes and that would last as long as dishwashers
typically do, which is around nine to thirteen years.
Id. ¶ 29.
asserts that Electrolux dishwashers are defective because the
electrical system overheats, causing its electrical
components to catch on fire and melt the tub that contains
the water. Id. ¶ 16. Electrolux began receiving
complaints about its dishwashers catching on fire in 2007.
Id. ¶¶ 21, 24 (citing examples of fires).
Fires occurred even when a dishwasher was not operating.
Id. ¶ 21. According to examples cited in the
complaint, the length of ownership before the dishwashers
caught fire ranged from nine months to five years.
Id. The resulting property damage consisted of smoke
damage, flooding, as well as the loss of a consumer's
house and all of her possessions. Id. Due to its
concerns that its dishwashers were spontaneously igniting,
Electrolux recalled several models of its dishwashers in the
United Kingdom and Australia, but to this day, Electrolux has
not issued a similar recall in the United States.
Id. ¶ 22.
after customers complained to Electrolux that its dishwashers
posed serious safety risks, Electrolux intentionally
concealed those risks and continued to manufacture and sell
the dishwashers at issue. Id. ¶¶ 22, 116,
134, 148-51. Furthermore, Electrolux did not warn owners that
they should replace their dishwashers to avoid those risks.
Id. ¶ 134. To add insult to injury, Elward
alleges, when class members called Electrolux to make
warranty claims, Electrolux routinely charged them a fee to
inspect their dishwashers, knowing that the dishwasher could
not be repaired and that Electrolux would not be offering a
replacement. Id. ¶ 154.
on these facts, Elward and the putative class assert the
following claims: (1) breach of implied warranty of
merchantability (Count I); (2) strict liability based on
design defect (Count II); (3) strict liability based on
failure to warn (Count III); (4) negligence (Count IV); (5)
negligent failure to warn (Count V); (6) injunctive and
declaratory relief (Count VI); (7) unjust enrichment (Count
VII); (8) violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act (Count VIII); (9) violation
of the Illinois Uniform Deceptive Trade Practices Act (Count
IX); and (10) fraudulent concealment (Count X).
motion under Federal Rule of Civil Procedure 12(b)(6)
challenges the sufficiency of the complaint. Christensen
v. Cty. of Boone, Ill., 483 F.3d 454, 457 (7th Cir.
2007). Under federal notice pleading standards, “a
plaintiff's complaint need only provide a short and plain
statement of the claim showing that the pleader is entitled
to relief, sufficient to provide the defendant with fair
notice of the claim and its basis.” Tamayo,
526 F.3d at 1081; see Fed. R. Civ. P. 8(a)(2). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must “accept[ ] as true all well-pleaded facts
alleged, and draw[ ] all possible inferences in [the
plaintiff's] favor.” Tamayo, 526 F.3d at
complaint, however, must also allege “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) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For a claim
to have facial plausibility, a plaintiff must plead
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. Plausibility, however, “does not imply
that the district 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
of fraud must be pleaded in conformance to federal pleading
standards specified in Rule 9(b). Borsellino v. Goldman
Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir. 2007).
Under Rule 9(b), in “averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated
with particularity.” Id. The
“circumstances constituting fraud” include the
identity of the person who committed the fraud, the time,
place, and content of the fraud, and the method by which the
fraud was communicated to the plaintiff. See Vicom, Inc.
v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 777 (7th
Cir. 1994). This is also known as the “who, what, when,
where and how” standard. DiLeo v. Ernst &
Young, 901 F.2d 624, 626 (7th Cir. 1994). This
requirement ensures that defendants have fair notice of
plaintiffs' claims and grounds, providing defendants an
opportunity to frame their answers and defenses. Reshal
Assocs., Inc. v. Long Grove Trading Co., 754 F.Supp.
1226, 1230 (N.D. Ill.1990).
Breach of Implied ...