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Friend v. FGF Brands (USA), Inc.

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

June 12, 2019

EMILY FRIEND, individually and on behalf of a class of similarly situated individuals, Plaintiff,
v.
FGF BRANDS USA INC., a Delaware corporation, and FGF BRANDS, INC., a Canadian corporation, Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert W. Gettleman, United States District Judge.

         A traditional tandoor oven, plaintiff Emily Friend alleges, is cylindrical, insulated with sand, operated over a wood- or charcoal-burning fire, and so small that only one or two pieces of naan-a leavened flatbread popular in South and Central Asian cuisine-can be hand-baked at a time:[1]

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         At grocery stores across North America and Canada, defendants FGF Brands (USA) Inc., an American corporation, and FGF Brands, Inc., a Canadian corporation, sell packaged naan products, boasting that their naan is "hand-stretched and tandoor oven-baked to honor 2, 000 years of tradition":

         (Image Omitted)

         That statement, plaintiff alleges, is deceptive: defendants do not bake their naan in a traditional tandoor oven, but in a patented, gas-heated commercial oven capable of baking 15, 000 pieces of naan an hour:

         (Image Omitted)

         Plaintiff alleges that there is no substitute for the flavor imparted by baking naan in a traditional tandoor oven, and that defendants misleadingly portray their naan products as a high-quality, hand-stretched, low-volume alternative to other mass-produced flatbreads, while in fact they mass-produce their naan on an endless conveyor belt.

         Plaintiff's complaint, filed under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), on behalf of three putative classes of people who bought defendants' naan, claims that defendants: (1) violated the consumer fraud laws of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington (Counts I and II);[2](2) violated the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq. (Count III); (3) fraudulently concealed that they mass-produced their naan in commercial ovens (Count IV); and (4) were unjustly enriched by their deceptive packaging (Count V). Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss all claims. To avoid dismissal, plaintiff's claims must be plausible; her claims are plausible if the court, taking the facts alleged in the complaint as true, can reasonably infer that defendants are liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         1 Consumer Fraud Laws

         Defendants argue that: plaintiff fails to state a claim under the consumer fraud laws because the allegedly mislabeled naan products could not plausibly deceive a reasonable consumer; plaintiff fails to plead fraud with particularity; plaintiff lacks Article III standing to assert claims as to the naan products that she did not purchase; and this court lacks personal jurisdiction over defendants as to the claims that plaintiff brings on behalf of non-Illinois class members. The court holds that: (1) plaintiff states a claim under the consumer fraud laws; (2) plaintiff has pleaded fraud with particularity; (3) plaintiff's Article III standing as to unpurchased products must be decided at class certification; and (4) defendants may file a new motion to dismiss for lack of personal jurisdiction after the Court of Appeals for the Seventh Circuit decides Mussat v. IQVIA, Inc., No. 19-1204.

         1.1 Failure to state a claim

         Plaintiff states a claim under the consumer fraud laws. As did the parties in In re 100% Grated Parmesan Cheese, the parties here “cite precedents applying these laws interchangeably and agree that, while they differ in certain particulars, all share a common requirement: to state a claim, a plaintiff must allege conduct that plausibly could deceive a reasonable consumer.” 275 F.Supp.3d 910, 920 (N.D. Ill. 2017) (discussing claims brought under the consumer protection laws of nine states). Thus, for plaintiff to state a claim under the consumer fraud laws, it must be plausible that the allegedly mislabeled naan products could deceive a reasonable consumer.

         If plaintiff had alleged that the packaging of Campbell's Homestyle Chicken Noodle Soup deceived her into thinking that the soup was home-cooked and home-canned, perhaps common sense or judicially-noticeable facts could justify dismissal: ubiquitous products with long histories are unlikely to deceive. But today's shoppers at Costco, Whole Foods, and Jewel-Osco expect to see tiny jars of artisanal jam made with locally-sourced fruit next to homogenous stacks of Wonder Bread. “Handmade” and ...


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