United States District Court, N.D. Illinois
OREN PANITCH, GINA DAVIS, AND MARGIE RIZIKA, on behalf of themselves and all others similarly situated, Plaintiffs,
THE QUAKER OATS COMPANY, Defendant.
J. Ives FOX, SWIBEL, LEVIN & CARROLL LLP Andrew S.
Tulumello (pro hac vice) Jason R. Meltzer (pro hac vice)
GIBSON, DUNN & CRUTCHER LLP Attorneys for Defendant
Quaker Oats Company.
Honorable Sidney I. Schenkier Magistrate Judge.
DEFENDANT QUAKER OATS COMPANY'S MOTION FOR ENTRY
Honorable Charles R. Norgle, Sr. Judge.
to Federal Rule of Civil Procedure 58(d), Defendant Quaker
Oats Co. (“Quaker”) hereby requests that the
Court direct the Clerk to enter judgment in this case. The
Court has already closed this case, ECF No. 26, but has not
formally entered judgment in favor of Quaker. See
Fed. R. Civ. P. 58(a).
case is one of a number of cases asserting identical claims
based on Quaker's use of terms like “natural”
and “heart healthy” on its product labeling.
Those actions have all been transferred to this district.
Five cases were consolidated into a single action and two
others, including this action, were stayed pending resolution
of the consolidated action because they are substantially
identical to the consolidated action. The Court granted
Quaker's motion to dismiss the consolidated action with
prejudice because the plaintiffs' claims were preempted
and failed as a matter of law. As other courts found in
ordering transfer to this district, and as this Court found
in its order on relatedness, this action is substantially
identical to the now-dismissed consolidated action.
Accordingly, one week after dismissing the consolidated
action, the Court entered minute orders closing this case and
the other stayed case. Quaker now requests that the Court
complete the clerical task of entering judgment in this case.
April 29, 2016, and May 3, 2016, five plaintiffs filed nearly
identical complaints proposing nationwide classes based on
the alleged presence of trace amounts of glyphosate in Quaker
Oats products. Those actions were transferred to this Court
and consolidated in Gibson v. Quaker Oats Co., No.
16-cv-4853. See Daly v. Quaker Oats Co., No.
16-cv-7383, ECF Nos. 1, 12 (N.D. Ill.) (Daly
complaint and order granting transfer); Cooper v. Quaker
Oats Co., No 16-cv-7217, ECF Nos. 1, 16 (N.D. Ill.)
(Cooper complaint and order granting transfer);
Jaffee v. Quaker Oats Co., No 16-cv-7134, ECF Nos.
1, 12 (N.D. Ill.) (Jaffee complaint and order
granting transfer); Gibson, No. 16-cv-4853, ECF No.
1 (N.D. Ill.) (Gibson complaint); see also
Wheeler v. Quaker Oats Co., No 16-cv-5776, ECF No. 1, 19
(N.D. Ill.) (Wheeler complaint and voluntary
dismissal). Another plaintiff filed a substantially identical
suit in Washington state court-Quaker removed the case to
federal court and successfully moved to transfer. Kinn v.
Quaker Oats Co., No 16-cv-1262, ECF Nos. 1-1, 10, 22
(W.D. Wash.) (Kinn complaint, mot. to transfer and
order granting mot.).
filed this action as the seventh lawsuit asserting
claims identical to those first raised months earlier.
Panitch v. Quaker Oats Co., No. 16-cv-4586, ECF No.
1 (E.D. Pa. Aug. 22, 2016) (“Panitch
Compl.”). Because the claims alleged in this case are
“substantially identical to the consolidated amended
complaint in Gibson, ” id., ECF No.
21, at 7 (opinion), that court ordered the case transferred
to this district, id., ECF No. 22 at 1 (order).
this case was transferred, Quaker moved for a finding of
relatedness and to stay proceedings pending resolution of
Quaker's motion to dismiss in Gibson. Quaker
argued that this action satisfied all of the conditions
required for a finding of relatedness under Rule 40.4(b)
because this case and the consolidated cases were
“pending in this Court, ” the factual and legal
overlap described above demonstrated that “the handling
of [these] cases” as related was “likely to
result in a substantial saving of judicial time and effort,
” and the cases were “susceptible of disposition
in a single proceeding.” Gibson, No.
16-cv-4853, ECF No. 50 at 2-3 (N.D. Ill. May 12, 2017)
(quoting LCvR. 40.4(b)(3)). The Court granted the motion,
relating the cases and staying proceedings in this case
pending the Court's consideration of the Quaker's
motion to dismiss in the consolidated Gibson action.
Gibson, No. 16-cv-4853, ECF No. 52 (N.D. Ill. May
Court acknowledged in its ruling on relatedness, this case is
materially identical to Gibson. Plaintiffs assert
the same purported injury resulting from the same labels on
Quaker's products as the Gibson plaintiffs.
See Mem. Supp. Mot. to Transfer or Stay,
Panitch, No. 16-cv-4586, ECF No. 5, at 3-4 (E.D. Pa.
Oct. 11, 2016) (describing similarities in complaints);
Compare Panitch Compl., with Gibson, No.
16-cv-4853, ECF No. 28 (N.D. Ill. Aug. 11, 2016)
(“Consol. Compl.”). Both Plaintiffs proposed
nationwide class certification. Mot. to Transfer or Stay,
Pa-nitch, No. 16-cv-4586, ECF No. 5 (E.D. Pa. Oct.
11, 2016). The complaint in this case is, in many
places, copied word-for-word from the complaints of the cases
consolidated in Gibson. Mem. Supp. Mot. to Transfer
or Stay, Panitch, No. 16-cv-4586, ECF No. 5 at 1
(E.D. Pa. Oct. 11, 2016). Like the plaintiffs in the
consolidated action, Plaintiffs here allege that: (1) the
same products- Quaker Oats Old-Fashioned, Quaker Oats Quick
1-Minute, and Quaker Steel Cut Oats; (2) contain the same
labels, including the term “natural”; (3) which
purportedly were “likely to deceive” con- sumers;
(4) because “quantitative testing” purportedly
“revealed that Quaker Oats contain glypho-sate.”
Compare Panitch Compl. ¶¶ 1, 3, 6, 73, 99,
151, 173, 193, with Consol. Compl. ¶¶ 4,
5, 72, 85. Plaintiffs assert that Quaker is liable under the
same theories asserted in the Gibson complaint,
including unjust enrichment, breach of warranty, negligent
misrepresentation, and violation of state consumer protection
laws. Compare Panitch Compl. ¶¶ 120-207,
with Consol. Compl. ¶¶ 140-254. Plaintiffs
here seek the same relief-injunctive relief, restitution,
disgorgement, damages, and attorneys' fees-as the
Gibson plaintiffs. Compare Panitch Compl.
41, with Consol. Compl. 52-53.
August 14, 2017, the Court dismissed the consolidated
complaint in Gibson with prejudice. Gibson,
No. 16-cv-4853, ECF Nos. 58, 59, 60 (N.D. Ill. Aug. 14, 2017)
(order granting Mot. to Dismiss, Mem. Op. on Mot. to Dismiss,
and Judgment). The Court held that the consolidated
plaintiffs lacked standing to assert claims based on products
that they did not purchase. It further held that the
remaining claims were preempted by the comprehensive federal
regulatory scheme established by the Food, Drug, and Cosmetic
Act, and by the actions of the Food and Drug Administration
in defining use of the term “natural.” The Court
also held that, because preemption by Congress meant that
“Plaintiffs cannot challenge Quaker Oats labeling under
state or common law, ” dismissal with prejudice was
warranted because the Plaintiffs could not cure the fatal
defects in their complaint. Gibson, No. 16-cv-4853,
ECF No. 59 at 8 (N.D. Ill. Aug. 14, 2017) (Mem. Op. on Mot.
to Dismiss). Plaintiffs' claims also failed for other
reasons, including that Plaintiffs' claims were
implausible as a matter of law. See Mot. to Dismiss,
Gibson, No. 16-cv-4853, ECF No. 35 at 3 (N.D. Ill.
Sept. 26, 2016) (“Gibson Mot. to
days later, the Court closed this case (and the related
Kinn action), referencing the Court's opinion
and order dismissing the complaint in Gibson.
Closure was appropriate because Plaintiffs' claims are
meritless for the reasons described in Quaker's motion to
dismiss and in this Court's opinion and order dismissing
the related action. Gibson v. Quaker Oats Co., No.
16-cv-4853, 2017 WL 3508724 (N.D. Ill. Aug. 14, 2017);
Gibson Mot. to Dismiss; Mem. Supp. Mot. to Dismiss,
Gibson, No. 16-cv-4853, ECF No. 36 (N.D. Ill. Sept.
26, 2016) (“Gibson Mem. Supp. Mot. to
dismissal in Gibson, standing alone, is sufficient
to warrant entry of judgment in this action because the
claims in this action are identical to those in
Gibson. In addition to the grounds for dismissal
discussed in this Court's opinion in Gibson,
Plaintiffs fail to state a claim for the following additional
failure-to-warn claims are duplicative of those asserted in
Gibson and are mer-itless for the same reasons: (1)
Plaintiffs lack standing, not having suffered any concrete
injury from the trace amounts of glyphosate alleged to be
present in Quaker products, (2) Plaintiffs' claims are
preempted by federal legislation and regulations expressly
deeming safe and permitting trace levels of glyphosate, and
(3) Plaintiffs have not alleged the omission of any material
fact in Quaker's public representations. The
Gibson plaintiffs failed to state a claim for the
same reasons. See Gibson Mot. to Dismiss at 2;
Gibson Mem. Supp. Mot. to Dismiss at 10-18.
just as in Gibson, Plaintiffs' claims relating
to Quaker's use of “heart healthy” are
preempted by federal regulations. See 21 C.F.R.
§ 101.81; Food Labeling: Health Claims; Soluble Fiber
From Whole Oats & Risk of Coronary Heart Disease, 62 Fed.
Reg. 15, 343 (Mar. 31, 1997); see also Gibson Mot.
to Dismiss at 2; Gibson Mem. Supp. Mot. to Dismiss
at 19-20. Plaintiffs also fail to state a claim relating to
Quaker's use of “natural.” These claims seek
to impose retroactive punishment on Quaker for its reliance
on long-standing federal policy regarding the use of
“natural” in food labeling. See Christopher
v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2167
(2012); Wilson v. Frito-Lay N. Am., Inc., 961
F.Supp.2d 1134, 1147 (N.D. Cal. 2013). Nor have Plaintiffs
plausibly alleged that reasonable consumers share their
interpretation of “natural” as indicating a
product is free of trace amounts of any pesticide down to the
molecular level. See Gibson Mem. Supp. Mot. to
Dismiss at 20-23; In re: Gen. Mills Glyphosate
Litig., No. 16-2869, 2017 WL 2983877 at *5 (D. Minn.
July 12, 2017) (“It is implausible that a reasonable
consumer would believe that a product labelled as having one
ingredient-oats-that is ‘100% Natural' could not
contain a trace amount of ...