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McDonnell v. Nature's Way Products LLC

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

October 26, 2017




         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. After the Court narrowed the claims on which she could proceed, see Doc. 38, [1] 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, [2] in addition to an unjust enrichment claim. Nature's Way has filed a motion to dismiss the second amended complaint [42].

         The 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.


         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.”[4] 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 states.


         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. Sufficiency of McDonnell's Pecuniary Injury Allegations

         First, 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).

         Nature's 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 misrepresentation).

         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.[5]

         II. Claims for Purchase of Women's Alive Outside of Illinois and ...

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