United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE UNITED STATES DISTRICT COURT.
the Court is Defendant's Partial Motion to Dismiss Counts
I, II, and III pursuant to Fed.R.Civ.P. 12(b)(6) [ECF No. 5].
For the reasons stated herein, the Motion is denied.
following facts derive from Plaintiff's Complaint and
are, for purposes of this Motion, accepted as true with all
inferences drawn in Plaintiff's favor. See, Adams v.
City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2015).
case concerns a product recall involving the parties'
respective products. Power Cell LLC d/b/a/ Zeus Battery
Products (“Zeus”) sells a range of battery
products, including the AA battery at issue in this suit (the
“Subject Battery”). (Compl. ¶ 6, Ex. A to
Dkt. 1.) Spring Window Fashions, LLC (“SWF”)
sells window shades and coverings in various retail stores
across the country. (Id. ¶ 7.) Starting in the
fall of 2015, SWF ordered approximately one hundred thousand
Subject Batteries from Zeus to power its motorized window
shades (the “SWF Product”). (Id.
in June 2016, various customers began reporting problems with
the SWF Product. (Id. ¶¶ 26-35.) The
reports complained that the batteries and/or battery casing
burst, caught fire, or melted the surrounding material
(hereinafter the “Incidents”). (Id.)
Zeus alleges these Incidents were caused by a design defect
in the SWF Product; namely, that SWF's product design
allowed for improper installation of the Subject Batteries, a
condition known in the industry as reverse-polarity.
(Id. ¶¶ 37-38.) Reverse-polarity greatly
increases the risk of batteries overheating. (Id.)
In light of this risk, manufacturers typically design
products to be inoperable if the batteries are installed in
the reverse-polarity position. (Id.) According to
Zeus, SWF did not heed this known, industry-wide advice,
resulting in a design flaw in the SWF Product-the
reverse-polarity condition-that directly caused the
the Incidents, SWF initiated a product recall (the
“Recall”) in conjunction with the Consumer
Product Safety Commission. (Id. ¶ 48.) SWF
recalled the SWF Products that were sold with the Subject
Batteries from December 14, 2015 to approximately November
11, 2016. (Id.) SWF published an Important Safety
Notice and a Recall Alert regarding the Recall (the Recall
Notices). (Id. ¶¶ 48-49, 53-54.)
Recall Notices are at the heart of this suit. Zeus alleges
that the Recall Notices are false and misleading because they
blame the Incidents on Zeus's Subject Battery rather than
the design flaw in SWF's Product. (Id.
¶¶ 50-53.) Zeus alleges that the ongoing
publication of the Recall Notices (and the absence of a
retraction) continue to harm and injure its reputation in the
industry. (Id. ¶¶ 68-70.) Zeus brings a
four-count Complaint for declaratory judgment related to:
indemnification (Count I); violations of the Illinois Uniform
Deceptive Trade Practices Act (the “UDTPA”), 815
ILCS 510/2 (Count II); violations of the Illinois Consumer
Fraud and Deceptive Business Practices Act, 815 ILCS 505/2
(Count III); and breach of contract (Count IV). SWF moves to
dismiss the two statutory claims and the declaratory judgment
claim (Counts I - III). The Court will address these three
claims below, but out of turn.
Zeus States a Claim under Illinois's Uniform Deceptive
Trade Practices Act
argues that two things are fatal to Zeus's UDTPA claims:
First, the alleged misrepresentations are either true or mere
opinion and thus not actionable, and second, Zeus cannot
allege a threat of future harm.
argues that Zeus's UDTPA claim fails because the alleged
misrepresentations are not false or misleading. The UDTPA
states in pertinent part:
A person engages in a deceptive trade practice when, in the
course of his or her business, vocation, or ...