United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. ELLIS United States District Judge.
learning that Alive! Women's Energy Supplements
(“Women's Alive”) contain substantial
ingredients that are not “Made in the USA” as
advertised, Plaintiff Angel McDonnell filed this putative
class action complaint against Defendant Nature's Way
Products, LLC (“Nature's Way”), Women's
Alive's manufacturer. McDonnell brings claims for
violations of the Illinois Uniform Deceptive Trade Practices
Act (“UDTPA”), 810 Ill. Comp. Stat. 510/1 et
seq., the Illinois Consumer Fraud and Deceptive Business
Practices Act (“ICFA”), 815 Ill. Comp. Stat.
505/1 et seq., and certain other states'
consumer fraud laws, in addition to an unjust enrichment
claim. Nature's Way has filed a motion to dismiss the
amended complaint .
Court grants in part and denies in part the motion to
dismiss. Because McDonnell has not alleged that Nature's
Way's representations about Women's Alive will harm
her in the future, the Court dismisses the UDTPA claim. But
the Court allows McDonnell to proceed on her ICFA and unjust
enrichment claims, finding that she has sufficiently pleaded
the required ICFA elements at this stage and that the unjust
enrichment claim rises or falls alongside the ICFA claim. And
although at this stage the Court allows McDonnell's
claims under other states' consumer fraud laws to
proceed, she cannot pursue relief for any claims related to
unidentified Nature's Way products. Finally, because the
Seventh Amendment allows for jury trials in certain cases
even where no such right exists in state court and the Court
finds McDonnell's ICFA claim provides her with the right
to a jury, the Court refuses to strike the jury demand.
a resident of Plainfield, Illinois, purchased Women's
Alive on several occasions in 2013 and 2014 at CVS and
Walgreens stores in Joliet and Plainfield, Illinois.
Women's Alive is one of a number of vitamin supplements
manufactured and sold by Nature's Way. Women's Alive
includes vitamin C in the form of ascorbic acid as a
significant ingredient. Although the ascorbic acid is
manufactured outside of the United States, the Women's
Alive label states both on the bottom of the box and the
bottle that it is “Made in USA.” But pursuant to
the Federal Trade Commission's guidelines concerning
domestic source representations, because the product contains
foreign-sourced vitamin C, the “Made in USA”
statement should be qualified. McDonnell relied on the
representation that Women's Alive was made in the USA
when buying the supplement because she prefers to purchase
goods made in the United States instead of imported goods and
she believed that the vitamins contained in the supplement
did not originate from foreign sources.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “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.” Iqbal, 556 U.S.
9(b) requires a party alleging fraud to “state with
particularity the circumstances constituting fraud.”
Fed.R.Civ.P. 9(b). This “ordinarily requires describing
the ‘who, what, when, where, and how' of the fraud,
although the exact level of particularity that is required
will necessarily differ based on the facts of the
case.” AnchorBank, 649 F.3d at 615 (citation
omitted). Rule 9(b) applies to “all averments of fraud,
not claims of fraud.” Borsellino v. Goldman Sachs
Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007). “A
claim that ‘sounds in fraud'- in other words, one
that is premised upon a course of fraudulent conduct-can
implicate Rule 9(b)'s heightened pleading
UDTPA Claim (Count I)
UDTPA only provides for injunctive relief where a plaintiff
can “show that the defendant's conduct will likely
cause it to suffer damages in the future.”
Kensington's Wine Auctioneers & Brokers, Inc. v.
John Hart Fine Wine, Ltd., 909 N.E.2d 848, 857, 392
Ill.App.3d 1, 330 Ill.Dec. 826 (2009). Nature's Way
argues that the Court should dismiss McDonnell's UDTPA
claim because she has not adequately alleged that Nature
Way's representations that Women's Alive is made in
the USA will harm her in the future. “Past exposure to
illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse
effects.” O'Shea v. Littleton, 414 U.S.
488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Here,
although McDonnell does include a picture of a label from a
Women's Alive box purchased in 2016 around the time she
filed the amended complaint, she does not allege that she has
recently purchased Women's Alive (only claiming to have
purchased it in 2013 and 2014). Moreover, her present
awareness of Nature's Way's alleged deceptive
labeling practices-as evidenced by the filing of this
lawsuit-means that she is unlikely to be harmed in the future
by Nature's Way's labeling claims, be it with respect
to Women's Alive supplements or other unnamed supplements
that Nature's Way manufactures that contain vitamin C.
See Camasta v. Jos. A. Bank Clothiers, Inc., 761
F.3d 732, 740-41 (7th Cir. 2014) (finding that plaintiff was
not entitled to injunctive relief on UDTPA claim where he was
aware of defendant's sales practices and only offered
speculation that he would be harmed by defendant's
practices because he had been harmed in the past);
Demedicis v. CVS Health Corp., No. 16-cv-5973, 2017
WL 569157, at *2 (N.D. Ill. Feb. 13, 2017) (dismissing claim
alleging violation of UDTPA for labeling Vitamin C drops and
other products containing vitamins with false statements of
origin because “[p]laintiff has not alleged that he is
likely to keep buying products from Defendants with the
knowledge of their allegedly deceptive practices”);
Johnson v. Wal-Mart Stores, Inc., No.
3:15-cv-775-DRH-DGW, 2016 WL 3753663, at *2-3 (S.D. Ill. July
14, 2016) (“[T]he plaintiffs' awareness of the
defendants' tendency to mislabel products means the
plaintiffs can avoid future harm by exercising consumer
choice.”). The fact that Nature's Way markets a
number of products or has been sued for making unrelated
allegedly misleading claims does not matter; the issue is
whether McDonnell has asserted a basis for future harm with
respect to the alleged mislabeling of Women's Alive.
McDonnell is aware of this alleged deception and so can avoid
the problem in the future. See Kljajich v. Whirlpool
Corp., No. 15 C 5980, 2015 WL 8481973, at *4-5 (N.D.
Ill.Dec. 10, 2015) (discussing requirement of future harm for
UDTPA actions and finding that plaintiff could not proceed on
UDTPA claim because she knew of risks concerning
defendants' ovens and so could avoid buying them in the
future). Thus, without more than McDonnell's claim of
speculative harm, following Camasta, the Court
dismisses the UDTPA claim without prejudice.
ICFA Claim (Count II)
state an ICFA claim, McDonnell must allege (1) a deceptive or
unfair act or practice by Nature's Way, (2) Nature's
Way's intent that McDonnell rely on the deceptive or
unfair practice, (3) the deceptive or unfair practice
occurred in the course of conduct involving trade or
commerce, and (4) Nature's Way's deceptive or unfair
practice caused McDonnell actual damage. Wigod v. Wells
Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir. 2012);
Kim v. Carter's Inc., 598 F.3d 362, 365 (7th
Cir. 2010). Because McDonnell proceeds on a deceptive
practices claim, she must meet Rule 9(b)'s heightened
pleading standard. Camasta, 761 F.3d at 737.
Nature's Way argues that McDonnell's claim fails for
lack of specificity because she includes in the amended
complaint a picture of the label on the bottom of a
Women's Alive box purchased in 2016, but she purchased
Women's Alive in 2013 and 2014. She need not have
included a photograph of the allegedly deceptive statement in
her amended complaint, however, and so the Court treats the
photograph only as a representative example of Nature's
Way's deception. The Court proceeds to consider whether
the allegations McDonnell makes in the amended complaint
concerning the allegedly deceptive statement suffice to state
an ICFA claim. Her amended complaint describes the alleged
misrepresentation McDonnell viewed when purchasing the
supplement and describes the alleged deception-that
Women's Alive contains vitamin C in the form of ascorbic
acid that is necessarily foreign-sourced but purports to be
entirely domestically sourced. Nature's Way does not cite
any cases that required McDonnell to provide more specificity
(such as the countries from which the ...