United States District Court, N.D. Illinois, Eastern Division
Steven Galanis, individually and on behalf of all others similarly situated, Plaintiff,
Starbucks Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge
Galanis alleges that Starbucks deceives its customers by
misrepresenting the volume of its cold drinks because much of
the volume is taken up by ice. Galanis alleges that this
conduct constitutes: a breach of an express warranty (Count
I); a breach of an implied warranty of merchantability (Count
II); negligent misrepresentation (Count III); unjust
enrichment (Count IV); fraud (Count V); a violation of the
Illinois Consumer Fraud and Deceptive Business Practices Act
(Count VI); and, a violation of the Illinois Uniform
Deceptive Trade Practices Act (Count VII). See R. 1.
Starbucks has moved to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. R. 34.
For the following reasons, Starbucks motion is granted.
12(b)(6) motion challenges the sufficiency of the
complaint. See, e.g., Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.
2009). A complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim
and the basis for it. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). This standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). While “detailed factual allegations”
are not required, “labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. The
complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (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.'” Mann v.
Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting
Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party.
Mann, 707 F.3d at 877.
sells iced coffee, iced tea, and iced blended specialty
drinks at its many cafes across the country. R. 1 ¶ 1.
Starbucks drinks are available in different sizes.
Starbucks's menus describe the different sizes according
to volume measured in “fluid ounces.”
Id. ¶¶ 18-19. On its website, Starbucks
lists the drink container sizes it offers in a menu that is
separate from the menu listing the drinks' contents.
Id. ¶ 18. In its stores, Starbucks lists the
drink container sizes across the top of its menu, whereas the
contents of the drinks are separately listed down the side of
the menu. Id. ¶ 19.
cold drinks that contain ice are described on the menu as
"iced." Id. Galanis referenced the menus
on Starbucks's website in the complaint, so the Court
independently viewed the website. As can be seen in the
red-highlighted sections of the screen capture from the
online menu included below, not only is the word
"iced" part of the name of the cold drinks at issue
in this case, the drinks are served "over ice" or
"with ice, " and the ingredients list includes ice.
See www. starbucks.com/menu/drinks, for
"Starbucks Refreshers Beverages, " "Iced
Coffee, " "Iced Tea" (last visited Oct. 14,
2016, and confirmed for earlier dates prior to the filing of
the complaint using The Wayback Machine Internet Archive,
cups in which Starbucks serves its “iced” drinks
are made of clear plastic. The cups are also marked with
black lines that delineate the amount of coffee, tea, or
other beverage a Starbucks employee is supposed to pour into
the cup. Id. ¶ 22. The employee then fills the
rest of the cup with ice. Id. ¶¶ 22-23.
Galanis alleges that “in essence, Starbucks is
advertising the size of its . . . cups on its menu, rather
than the amount of fluid a customer will receive when they
purchase [an iced coffee, iced tea, or iced blended specialty
drink]-and deceiving its customers in the process.”
Id. ¶ 35.
Counts IV, V & VI: Unjust Enrichment, Common Law Fraud,
and the Illinois Consumer Fraud and Deceptive Business
Practices Act (the “Consumer Fraud Act”)
claims that Starbucks's alleged misrepresentations
constitute fraud and a violation of the Consumer Fraud Act.
In relevant part, the Consumer Fraud Act provides:
Unfair methods of competition and unfair or deceptive acts or
practices, including but not limited to the use or employment
of any deception, fraud, false pretense, false promise,
misrepresentation or the concealment, suppression or omission
of any material fact, with intent that others rely upon the
concealment, suppression or omission of such material fact,
or the use or employment of any practice described in Section
2 of the “Uniform Deceptive Trade Practices Act”,
approved August 5, 1965, in the conduct of any trade or
commerce are hereby declared unlawful whether any person has
in fact been misled, deceived or damaged thereby.
815 ILCS 505/2. “To prove a succeed in a private cause
of action under the Consumer Fraud Act, a plaintiff must
prove (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 the course
of conduct involving trade or commerce, and (4) actual damage
to the plaintiff (5) proximately caused by the
deception.” Avery v. State Farm Mut. Auto. Ins.
Co., 835 N.E.2d 801, 856 (Ill. 2005). “[A]
statement is deceptive if it creates a likelihood of
deception or has the capacity to deceive.” Bober v.
Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2001).
In other words, the statements must “have misled a
reasonable consumer, ” Mullins v. Direct Digital,
LLC, 795 F.3d 654, 673 (7th Cir. 2015), “in light
of the totality of the information made available to the
plaintiff.” Davis v. G.N. Mortg. Corp., 396
F.3d 869, 884 (7th Cir. 2005); see also Phillips v.
DePaul Univ., 19 N.E.3d 1019, 1031 (Ill.App.Ct. 1st
Dist. 2014) (courts are to “consider whether the act
was deceptive as reasonably understood in light of all the
information available to plaintiffs”). “Although
[Consumer Fraud Act] claims often involve disputed ...