Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Korte v. Pinnacle Foods Group LLC

United States District Court, S.D. Illinois

March 27, 2018

AARON KORTE, individually and on behalf of others similarly situated, Plaintiff,
v.
PINNACLE FOODS GROUP, LLC., Defendant.

          MEMORANDUM AND ORDER

          STACI M. YANDLE UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant's Motion to Dismiss (Doc. 11). Plaintiff filed a Response (Doc. 19). For the following reasons, the motion is DENIED.

         Background

         Plaintiff 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)

         This 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.

         Defendant 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.

         Legal Standard

         To 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).

         Under 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).

         Discussion

         Plaintiff 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 ¶ 13).

         Plaintiff, a Missouri citizen, purchased the product in the Fall of 2016 from a Schnuck's Market in St. Clair County, Illinois. (Id. at ¶ 8).

         Food and Drug Administration Preemption

         Pinnacle 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.