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Korte v. Pinnacle Food Groups LLC

United States District Court, S.D. Illinois

September 11, 2019

ARRON KORTE, individually and on behalf of others similarly situated, Plaintiff,



         Plaintiff Arron Korte (“Korte”), individually and on behalf of all similarly situated persons, filed a 3-Count Class Action Complaint against Defendant Pinnacle Food Groups LLC (“Pinnacle”), asserting violations of Illinois' Consumer Fraud Act (“ICFA”), 815 Ill.Comp.Stat. § 505/1, et seq., and Missouri's Merchandising Practices Act (“MMPA”), Mo.Rev.Stat. § 407.010, et seq., with respect to the sale of Wish-Bone branded salad dressing labeled “E.V.O.O. - Dressing Made with Extra Virgin Olive Oil.” Now pending before the Court are Defendant's Motion for Summary Judgment (Doc. 40), Plaintiff's Motion to Certify Class (Doc. 42), and Defendant's Motion to Strike Allegations in the Complaint Regarding the Proposed Missouri Class for Lack of Personal Jurisdiction (Doc. 45). The parties have filed responses to each of the motions (Docs. 57, 52, and 47) and replies to the Motion for Summary Judgment and Motion for Class Certification (Docs. 59 and 60).


         Pinnacle developed, produced, marketed, and sold salad dressings under the Wish-Bone label. In January 2016, it launched a new type of salad dressing that contained extra virgin olive oil (“EVOO”) in 5 different flavors including Caesar Vinaigrette. The label on the front of the dressing bottle states: “Wish-Bone E.V.O.O. Dressing made with Extra Virgin Olive Oil Caesar Vinaigrette with flavors of Parmesan & Romano Cheese, Garlic, & Cracked Black Pepper” (Doc. 41-1, p. 96 (stylistic font and marks omitted)). The words “made with” are in a comparatively smaller font and written vertically. According to Kristen Thompson, Marketing Director for Pinnacle, the label was changed in June 2017 to indicate that the dressing was “Made With Extra Virgin Olive Oil Based Blend of Oils” (8/8/18 Kristen Thompson Declaration, ¶ 15, (Doc. 52-4)). By December 2017, dressings with the original label no longer appeared on store shelves (Id.). In January 2018, Pinnacle changed the shape and volume of the bottle - from a 12- ounce cylindrical glass container to a 15-ounce “paddle-shaped” glass container (Id. ¶¶ 14-15).

         The back label contained a list of ingredients including “Water, Extra Virgin Olive Oil, Soybean Oil, Distilled Vinegar, Sugar, Salt, Red Wine Vinegar . . . .” (Doc. 41-1, p. 100). Ingredients are listed “in descending order of predominance by weight.” 21 C.F.R. § 101.4(a). According to Steven Gunther, Pinnacle's Senior Vice President of Research and Development, the oil blend includes 52% EEOV and 48% soybean oil (Steven Gunther Deposition, pp. 7, (Doc. 52-3)).

         It is undisputed (although Korte argues not relevant) that both water and other oils are necessary to create the viscosity, taste, and liquidity of the salad dressing. Water is needed to dilute the vinegar in the dressing (which is commercially used in a concentrated form) and to manage viscosity, and soybean oil is necessary to cut the EVOO, which solidifies when the dressing is refrigerated per the instructions on the bottle (9/19/18 Thompson Dec. ¶ 9 (Doc. 52-1); Gunther Dep. p. 88).

         Pinnacle sold the salad dressing to retailers, wholesalers, and distributors, but not directly to consumers (9/19/18 Thompson Dec. ¶ 13). It did not set the price at which the dressing was sold by retailers (Id. ¶ 15). It did however offer various coupons to incentivize consumers to buy the salad dressings (8/8/18 Thompson Dec. ¶¶ 4-11). During the relevant time period, millions of coupons were distributed nationally through local newspapers or were placed with/on the products in stores or prior to shipment (Id. ¶ 7). The coupons ranged from $0.50 to $1.00 off per bottle (Doc. 52-4, p. 8, 13-14). According to Thompson, these coupons resulted in “the average value or discount, weighted by circulation, [of] approximately $0.87 off one bottle” (8/18/18 Thompson Dec. ¶ 7).[1]

         Kraft and Ken's Steak House (“Ken's”) are direct competitors of Wish-Bone (Gunther Dep. p. 30). Both companies make salad dressing with EVOO and have labels stating as much.[2]Like Wish-Bone's salad dressings, Kraft's and Ken's dressings contain a blend of oils that include EVOO, canola oil, soybean oil, and/or vegetable oil. It is undisputed that Wish-Bone salad dressing contains more EVOO than Ken's or Kraft's (Gunther Dep. p. 50). EVOO is approximately 6 times more expensive than other oils (Id. 92).

         In the Fall of 2016, Korte purchased a bottle of Wish-Bone's EVOO Caesar Vinaigrette from a Schnucks Supermarket in Belleville, Illinois (Aaron Korte Deposition, p. 70-71).[3] At the time of purchase, based on the information on the front label, he believed the dressing contained EVOO, seasonings, and vinegar, but not any other oils or water (Id. 42). Not until he used the dressing and looked at the back label did he realize the dressing contained soybean oil and water (Id. 42).

         Korte doesn't recall how much he paid for the dressing or whether it was on sale (Id. 75). It was the only Wish-Bone branded dressing he ever purchased (Id. 83, 87). Korte doesn't know anyone personally who has a similar opinion about the salad dressing's label (Id. 91). Korte has known Class Counsel Sean Cronin since high school and Cronin has been his friend and “legal counsel for many years” (Id. 96-97).


         Class Certification

         Korte moves for class certification under Rules 23(a), 23(b)((2), and 23(b)(3) of the Federal Rules of Civil Procedure and seeks certification of the following class:

All persons who purchased the Products in the state of Illinois or Missouri during the period of February 4, 2016, to present.
Excluded from the Class are: (a) Defendant's board members, executive-level officers, and attorneys, and immediate family members of any of the foregoing persons; 9b) governmental entities; (c) the Court, the Court's immediate family, and the Court staff; and (d) any person that timely and properly excludes itself from the Class in accordance with Court-approved procedures.

         Korte, who is a Missouri citizen, is the sole representative of the class.

         “The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 493 (7th Cir. 2012) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011)). To be certifiable, a class must first be “identifiable as a class, ” meaning that the class definitions must be definite enough that the class can be ascertained. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006); see also Mullins v. Direct Dig., LLC, 795 F.3d 654, 659-61 (7th Cir. 2015). The plaintiff must then satisfy all four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Fed. R. Civ. P. 23(a). If Rule 23(a) is satisfied, the proposed class must fall within one of the three categories under Rule 23(b): “(1) a mandatory class action (either because of the risk of incompatible standards for the party opposing the class or because of the risk that the class adjudication would, as a practical matter, either dispose of the claims of non-parties or substantially impair their interests), (2) an action seeking final injunctive or declaratory relief, or (3) a case in which the common questions predominate and class treatment is superior.” Spano v. Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011).

         Plaintiff bears the burden of proving the proposed class satisfies the Rule 23 requirements and must do so through evidentiary proof - merely pleading the existence of the required elements will not suffice. See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012); Comcast Corp. v. Behrend,133 S.Ct. 1426, 1432 (2013). “It is sufficient if each ...

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