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McDonnell v. Nature's Way Products, LLC

United States District Court, N.D. Illinois, Eastern Division

March 28, 2017



          SARA L. ELLIS United States District Judge.

         After 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 [27].

         The 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.


         McDonnell, 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.”[2] 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.


         A 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. at 678.

         Rule 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 requirements.” Id.


         I. UDTPA Claim (Count I)

         The 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.”).[3] 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.

         II. ICFA Claim (Count II)

         To 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.

         First, 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 ...

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