417 F.Supp.3d 1114
N.D. Ill.2019Background
- On May 7, 2018 Manley bought Alba Botanica Very Emollient Mineral Spray Sunscreen labeled "SPF 35" and with back-label directions "SHAKE WELL before use." She alleges the product required shaking "VIGOROUSLY for 10 seconds" to be effective, information the label omitted.
- Manley alleges she followed the label directions, suffered severe sunburn, and would not have purchased the product had she known about the ten‑second vigorous‑shake requirement.
- Plaintiff points to Amazon reviews complaining the spray ‘‘goes on like white face paint’’ and causes burning; defendant later changed its label to read "SHAKE VIGOROUSLY for 10 seconds before use."
- Manley brought a six‑count putative class action: (I) Illinois Consumer Fraud Act (ICFA), (II) breach of express warranty, (III) breach of implied warranty of merchantability, (IV) breach of implied warranty of fitness for a particular purpose, (V) negligent misrepresentation, and (VI) unjust enrichment.
- Defendant moved to dismiss. The district court dismissed Counts I, III, IV, V and VI with prejudice and Count II without prejudice, giving Manley 28 days to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission that label did not specify "SHAKE VIGOROUSLY for 10 seconds" states an ICFA claim (material omission and intent to induce reliance) | Manley: omission was material because she would not have purchased the product absent that fact; defendant intended consumers to rely on the label directions. | Hain: the label did say "SHAKE WELL" and the omission is either non‑material or merely insufficiently specific, and plaintiff has not plausibly alleged defendant intended to deceive. | Dismissed with prejudice — omission not plausibly material and no plausible allegation of intent to induce reliance. |
| Whether unjust enrichment claim survives independent of ICFA | Manley: seeks restitution for omission; unjust enrichment is available. | Hain: unjust enrichment depends on an actionable fraud/ICFA claim. | Dismissed with prejudice — unjust enrichment fails because ICFA claim fails. |
| Whether negligent misrepresentation survives given Illinois economic‑loss (Moorman) doctrine and exceptions | Manley: alleges concealment of dangerous problem and suffered sunburn (physical injury) so tort recovery is allowed. | Hain: Moorman bars tort recovery for purely economic loss; negligent‑misrepresentation exception inapplicable because Hain is not in the business of supplying information and plaintiff seeks economic, not personal‑injury, damages. | Dismissed with prejudice — claim barred by Moorman; physical injury exception inapplicable because alleged damages are economic (price paid). |
| Whether implied‑warranty claims are viable absent privity (and whether direct‑dealing exception applies) | Manley: alleges direct dealings via advertising/marketing and that retailers were agents, invoking a direct‑dealing/third‑party‑beneficiary exception. | Hain: Illinois requires privity for implied warranty; plaintiff bought from TJ Maxx, not Hain; direct‑dealing/exception does not apply. | Dismissed with prejudice — privity required and no facts show direct dealing or third‑party beneficiary status. |
| Whether express‑warranty claim is pleaded (affirmation, basis of bargain, privity) | Manley: Hain's website states product "helps protect against sunburn," which created an express warranty; omission about shaking rendered it untrue. | Hain: alleged website language is not an affirmative misstatement (claim is omission), plaintiff did not allege she saw the website before purchase, and privity is required for express warranty. | Dismissed without prejudice — plaintiff failed to plead an actionable affirmation part of the basis of the bargain and lacks alleged privity; leave to amend granted. |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible to survive Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (court need not accept legal conclusions or conclusory allegations)
- Connick v. Suzuki Motor Co., 174 Ill.2d 482 (omission materiality requires buyer would have acted differently)
- Toulon v. Continental Casualty Co., 877 F.3d 725 (insufficient specificity is not actionable under ICFA)
- Moorman Mfg. Co. v. National Tank Co., 91 Ill.2d 69 (economic‑loss doctrine bars tort recovery for purely economic damages)
- Rozny v. Marnul, 43 Ill.2d 54 (foundation for negligent‑misrepresentation exception where defendant supplies information)
- Szajna v. General Motors Corp., 115 Ill.2d 294 (privity required for implied‑warranty economic‑loss claims)
- Rothe v. Maloney Cadillac, 119 Ill.2d 288 (UCC implied warranties give buyer remedy only against immediate seller)
- Sienna Court Condominium Assoc. v. Champion Aluminum Corp., 129 N.E.3d 1112 (recent reaffirmation that implied‑warranty claims are contractual and require privity)
- Collins Co., Ltd. v. Carboline Co., 125 Ill.2d 498 (express‑warranty recovery still subject to privity considerations)