609 F.Supp.3d 633
N.D. Ill.2022Background
- Plaintiff Kevin Harris purchased Kashi Mixed Berry Soft Baked Breakfast Bars labeled prominently “Mixed Berry” and “Made with Wildflower Honey,” with fruit images on the box.
- Harris alleges the packaging conveyed that the product contained a non‑de minimis amount of actual berries and wildflower honey, and that he relied on those representations when purchasing for health/natural‑sweetener reasons.
- Claims pleaded: consumer‑fraud claims under Illinois, Arkansas, Iowa, Ohio, and Texas statutes; breach of express and implied warranties; Magnuson‑Moss Act; negligent misrepresentation; common‑law fraud; unjust enrichment; injunctive relief.
- Kashi moved to dismiss; the court reviewed pleading standards under Rule 8 and fraud‑specific Rule 9(b), and criticized Kashi for failing to marshal legal standards and for raising some arguments only in a footnote.
- Court rulings on motion: consumer‑fraud claims (Illinois and the four other states) and unjust enrichment survive; express and implied warranty claims and Magnuson‑Moss claim dismissed with prejudice; negligent misrepresentation dismissed with prejudice; common‑law fraud dismissed without prejudice; injunctive‑relief demand dismissed without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether labeling violates Illinois Consumer Fraud Act (ICFA) | Harris: packaging misleads consumers into thinking product contains appreciable mixed berries and wildflower honey and he relied on that | Kashi: label not misleading to a reasonable consumer; “mixed berry” refers to flavor not ingredients; dismissal appropriate | Denied — pleading sufficiently alleges deceptive act, intent to induce reliance, and commerce; whether label actually misleads is a merits question for later stages |
| Consumer‑fraud claims under AR, IA, OH, TX statutes | Harris: similar deceptive‑labeling theory applies to those states | Kashi: (footnote) those states use a reasonable‑consumer standard so claims should fail | Denied — Kashi waived/failed to develop argument and did not meet dismissal burden |
| Breach of express and implied warranties; Magnuson‑Moss Act | Harris: label statements created express warranty; product not merchantable | Kashi: label not false or misleading; lack of privity | Granted — warranty claims dismissed with prejudice for lack of privity; Magnuson‑Moss claim dismissed as derivative |
| Negligent misrepresentation | Harris: Kashi negligently provided inaccurate product information on the label | Kashi: claim seeks economic loss only and is barred by Moorman/economic‑loss rule | Granted — dismissed with prejudice; label information is ancillary to sale so no special‑relationship exception |
| Common‑law fraud (intent element) | Harris: Kashi knew product inconsistent with its representations, showing intent to deceive | Kashi: insufficient particularized facts to infer fraudulent intent | Dismissed without prejudice — intent allegations are conclusory and fail Rule 9(b) particularity for scienter |
| Unjust enrichment and injunctive relief | Harris: unjust enrichment depends on consumer‑fraud theory; seeks restitution and injunctive relief | Kashi: challenges predicate claims and relief availability | Unjust enrichment survives (tied to consumer‑fraud claim); injunctive demand dismissed without prejudice to proper motion |
Key Cases Cited
- Bell v. Publix Super Mkts., Inc., 982 F.3d 468 (7th Cir.) (explaining limits of deciding reasonable‑consumer issues on pleadings)
- Twombly v. Bell Atlantic Corp., 550 U.S. 544 (pleading must be plausible on its face)
- Ashcroft v. Iqbal, 556 U.S. 662 (Rule 8 plausibility standard and inference drawing)
- Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir.) (elements for ICFA claim as stated by Seventh Circuit)
- Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (7th Cir.) (Rule 9(b) applied to consumer‑fraud claims)
- Pirelli Armstrong Tire Corp. Retiree Med. Ben. Trust v. Walgreen Co., 631 F.3d 436 (7th Cir.) (fraud pleading particularity guidance)
- Beardsall v. CVS Pharm., Inc., 953 F.3d 969 (7th Cir.) (labels deceptive if likely to mislead reasonable consumer)
- Donaldson v. Read Magazine, Inc., 333 U.S. 178 (advertisements may be misleading as a whole though literally true)
- Moorman Mfg. Co. v. Nat’l Tank Co., 435 N.E.2d 443 (Ill.) (economic‑loss rule barring tort recovery for purely economic damages)
- First Midwest Bank, N.A. v. Stewart Title Guar. Co., 843 N.E.2d 327 (Ill.) (limits on negligent‑misrepresentation exception to Moorman)