Bazer v. Brew Dr. Kombucha, LLC, 1:18-cv-02560

Background

Plaintiff Vladislav Bazer bought two Brew Dr. Kombucha products in Illinois labeled as containing “billions” of probiotic bacteria but laboratory testing showed ~50,000 CFUs and ~161,000 CFUs per bottle.
Bazer sued Brew Dr. Kombucha, LLC asserting a putative nationwide class and an Illinois subclass, alleging: violations of consumer fraud statutes (ICFA and similar state laws), breach of express and implied warranty, and unjust enrichment.
Defendant moved to dismiss under Rules 12(b)(1), (2), and (6) and to strike: arguing failure to plead fraud with particularity, lack of standing for unpurchased products and nonresident class members, failure of pre-suit notice for warranty claims, lack of privity, and lack of standing for injunctive relief.
The court found Bazer adequately pleaded an ICFA claim (Rule 9(b) satisfied by alleging who/what/where/when/how and by attaching labels) and denied dismissal of the ICFA and unjust enrichment claims.
The court dismissed Bazer’s breach of express and implied warranty claims for failure to provide the required pre-suit notice and dismissed his claim for injunctive relief for lack of Article III standing (no likelihood he will be deceived again).
The court struck the nationwide class allegations as premature and unworkable given likely variations in other states’ laws, but allowed Bazer to seek leave to amend if circumstances later justify a multi-state or additional representative approach.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ICFA/consumer-fraud claim pleaded with required particularity	Bazer alleged label text, purchase facts, and testing showing low CFUs; scienter plausible	Labels are generalized and not pleaded with Rule 9(b) particularity; claim duplicates warranty	Denied dismissal — 9(b) satisfied by labels and purchase details; claim not merely a warranty in different garb
Standing to assert claims for products not purchased	Bazer may represent purchasers of substantially similar products with the same “billions” labeling	Bazer lacks standing to assert claims for products he did not buy	Denied as premature; court skeptical but finds present allegations focus on products Bazer purchased and may support representation of sufficiently similar products
Nationwide class viability	Bazer seeks nationwide class under common theory	Defendant says differing state laws and typicality/ predominance problems make a nationwide class unmanageable and Bazer lacks standing for out-of-state claims	Nationwide class allegations stricken as unworkable at pleading stage; leave to amend if support later arises
Breach of warranty pre-suit notice requirement	Bazer contends defendant knew of product defects and thus notice excused	Defendant contends Bazer failed to give the required pre-suit notice under UCC 2-607	Warranty claims dismissed for failure to provide pre-suit notice (no actual notice of Bazer’s grievance)
Unjust enrichment dependency on ICFA	Bazer argues unjust enrichment independent or coextensive with ICFA	Defendant argues unjust enrichment fails if ICFA fails	Unjust enrichment survives because ICFA claim survives
Standing for injunctive relief	Bazer seeks injunction to stop deceptive labeling	Defendant: Bazer already knows the alleged deception and thus faces no future injury	Injunctive relief dismissed for lack of Article III standing (no real likelihood of future harm)

Key Cases Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state plausible claim)
Ashcroft v. Iqbal, 556 U.S. 662 (facial plausibility standard for complaints)
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (concrete injury requirement for Article III standing)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements overview)
Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167 (injunctive relief and redressability/standing)
Connick v. Suzuki Motor Co., 675 N.E.2d 584 (Ill.) (pre-suit notice requirement under UCC 2-607)
Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677 (7th Cir.) (Rule 9(b) fraud particularity standards)
In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir.) (differences in state law can preclude nationwide consumer classes)
Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (7th Cir.) (past exposure to deception does not alone support injunction relief)