United States District Court, S.D. Illinois
AARON KORTE, individually and on behalf of others similarly situated, Plaintiff,
PINNACLE FOODS GROUP, LLC., Defendant.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss (Doc. 11).
Plaintiff filed a Response (Doc. 19). For the following
reasons, the motion is DENIED.
Aaron Korte filed this putative class action against
Defendant Pinnacle Foods Group, LLC (“Pinnacle”)
in Illinois state court. (Complaint, Doc. 2-1). Pinnacle
subsequently removed the case to this Court. (Notice of
Removal, Doc. 2)
case involves a line of salad dressings sold by Pinnacle
under the label “WishBone® E.V.O.O. Dressing- Made
With Extra Virgin Olive Oil”. Plaintiff alleges that
the products violate the Illinois Consumer Fraud &
Deceptive Business Practices Act (810 ILCS § 505/1
et seq.) (“IFCA”)(Count I) and the
Missouri Merchandising Practices Act (§407.010 R.S.Mo,
et seq.) (“MMPA”)(Count II), and that
the money realized by Defendant as a result of the alleged
deceptive practices constitutes unjust enrichment (Count
III). Plaintiff seeks class certification for consumers who
bought the product from December 19, 2013 onward.
moves to dismiss each Count of the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim, as well as under F.R.C.P. 9(b) for failure
to plead fraud with adequate particularity.
survive a motion to dismiss for failure to state a claim
under F.R.C.P. 12(b)(6), a complaint must
“state a claim to relief that is plausible on its
face.” Lodholtz v. York Risk Servs. Group,
Inc., 778 F.3d 635, 639 (7th Cir. 2015) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[W]hen ruling on
a defendant's motion to dismiss, a judge must accept as
true all of the factual allegations contained in the
complaint.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). The Court also draws all reasonable inferences and
facts in favor of the nonmovant. See Vesely v. Armslist
LLC, 762 F.3d 661, 664 (7th Cir. 2014).
Rule 9(b), a party pleading fraud must “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, FSB v. Hofer, 649 F.3d 610,
614 (7th Cir. 2011).
alleges that Defendant “promotes, markets and sells its
E.V.O.O. line of dressings in such a manner to deceive the
consumer into purchasing what he or she [believes] is a true
100% E.V.O.O. product.” (Id. at ¶ 16). In
particular, Plaintiff alleges that Pinnacle's naming and
marketing of the dressings in question was deceptive because
although they are made with extra virgin olive oil (sometimes
abbreviated E.V.O.O. or EVOO), they are “comprised
mainly of water and cheap soybean oil, and not premium
E.V.O.O.” (Doc. 2-1 at ¶ 16). Plaintiff also
alleges that Pinnacle made several statements in a press
release accompanying the introduction of the dressing that
were misleading as to the EVOO content (and therefore product
quality). (Id. at ¶ 11). Plaintiff further
alleges that Pinnacle charged 25% more, on average, for the
products than similar salad dressings on the basis that it
was made with extra virgin olive oil. (Id. at ¶
a Missouri citizen, purchased the product in the Fall of 2016
from a Schnuck's Market in St. Clair County, Illinois.
(Id. at ¶ 8).
and Drug Administration Preemption
first argues that Plaintiff's ICFA claim is preempted by
federal law. Specifically, Pinnacle points to a provision of
the Federal Food, Drug, and Cosmetic Act
(“FDCA”), 21 U.S.C. § 343-1(a)(5), added by
the Nutrition Labeling and Education Act of 1990
(“NLEA”), that prevents states from imposing
“any requirement respecting any claim of the type
described in section 343(r)(1) [of the FDCA] ... made in the
label or labeling of food that is not identical to the
requirement of section 343(r).” It contends that
allowing a state consumer fraud claim for use of the phrase
“Made With ...