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. After the Court narrowed the claims
on which she could proceed, see Doc. 38,
McDonnell filed a second amended complaint, bringing claims
for violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act (“ICFA”), 815 Ill. Comp.
Stat. 505/1 et seq., as well as seven states'
consumer fraud laws,  in addition to an unjust enrichment claim.
Nature's Way has filed a motion to dismiss the second
amended complaint .
Court grants in part and denies in part Nature's
Way's motion to dismiss. The Court allows McDonnell to
proceed on her ICFA and unjust enrichment claims with respect
to the Women's Alive product she purchased, 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. But the Court dismisses
McDonnell's claims related to the products listed in
paragraph 22 and 24 of the second amended complaint that are
alleged to contain unspecified ingredients that are not
“Made in USA” and her claims for violations of
the seven other states' consumer fraud laws, finding the
Court does not have personal jurisdiction over Nature's
Way with respect to those claims.
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.” Doc. 42 ¶
10. But pursuant to the Federal Trade Commission's
guidelines concerning domestic source representations,
because the product contains foreign-sourced vitamin C,
Nature's Way should qualifiy the “Made in
USA” statement. 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. Nature's Way produces an additional
sixty-nine other products, listed in the second amended
complaint, which use ascorbic acid or other unspecified
ingredients not made in the United States but are nonetheless
marketed as “Made in USA.” See Id.
¶¶ 22, 24. Nature's Way offered a refund for
these products in California in 2016, but it did not offer a
similar program to purchasers of these products in other
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
Sufficiency of McDonnell's Pecuniary Injury
Nature's Way renews its argument that McDonnell's
claims fail because she has not sufficiently alleged a
pecuniary injury. The Court, however, already addressed this
issue and after considering Nature's Way's renewed
arguments, finds no reason to depart from its prior
conclusion that McDonnell has stated enough of a pecuniary
injury to proceed to discovery. See Doc. 38 at 6-7.
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 v. Jos. A. Bank Clothiers,
Inc., 761 F.3d 732, 737 (7th Cir. 2014).
Way again focuses on the fourth element of an ICFA claim,
actual damages, which “requires that the plaintiff
suffer actual pecuniary loss.” Kim, 598 F.3d
at 365 (citation omitted) (internal quotation marks omitted).
As the Court previously explained, “actual loss may
occur if the seller's deception deprives the plaintiff of
‘the benefit of her bargain' by causing her to pay
‘more than the actual value of the
property.'” Id. (quoting Mulligan v.
QVC, Inc., 888 N.E.2d 1190, 1197-98, 382 Ill.App.3d 620,
321 Ill.Dec. 257 (2008)). McDonnell again alleges that
“she paid more for the products than they were actually
worth” and “would not have purchased the vitamins
at the price she paid if she had known that they contained
foreign-sourced vitamins.” Doc. 42 ¶ 21. The Court
previously found that these allegations sufficed to allege
actual damages, rejecting Nature's Way's insistence
that McDonnell include comparisons to other vitamins or the
price she paid for Women's Alive. See Doc. 38 at
6-7 (collecting cases findings allegations similar to
McDonnell's sufficient to allege pecuniary injury);
see also Block v. Lifeway Foods, Inc., No. 17 C
1717, 2017 WL 3895565, at *5 (N.D. Ill. Sept. 6, 2017)
(finding plaintiff adequately alleged actual damage where he
claimed he would not have bought product if he had known it
was not in fact 99% lactose free and alleged that defendant
charged more for the product because of the
Court does not find the cases Nature's Way cites in
support of its renewed argument to compel a different result.
The Court already distinguished Demedicis v. CVS Health
Corp. in its prior opinion, finding that although
McDonnell's allegations are relatively bare-boned, they
cure the issue identified in Demedicis, where the
plaintiff did not even allege “that, but for the
alleged deception, he would not have purchased the
Supplements, ” or that “the supplements were more
expensive because they were marked ‘Made in
U.S.A.'” No. 16-cv-5973, 2017 WL 569157, at *3
(N.D. Ill. Feb. 13, 2017). The Court respectfully disagrees
with the Sabo v. Wellpet, LLC court, which imposed a
more stringent pleading standard on the plaintiff, noting he
did not plead that he actually paid more for the purchased
products because he believed them to be American-made and
requiring a factual foundation for his estimation of their
worth at the pleading stage. ___ F.Supp.3d ___, 2017 WL
1427057, at *3 (N.D. Ill. Apr. 21, 2017). Finally, In re
Barnes & Noble Pin Pad Litigation involved a
different factual situation and the question of standing, not
whether a plaintiff sufficiently stated a claim. No.
12-cv-8617, 2013 WL 4759588, at *5 (N.D. Ill. Sept. 3, 2013).
Therefore, the Court stands by its prior Opinion finding
McDonnell has adequately pleaded pecuniary injury and turns
to Nature's Way's remaining arguments.
Claims for Purchase of Women's Alive Outside of Illinois