Ash v. PSP Distribution, LLCAsh v. PSP Distribution, LLC
- Reporters:
- , , ,
- Before:
- Hyman, Pucinski, Coghlan
Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶ 1 Defendants PSP Distribution, LLC, PSP Franchising, LLC, and PSP Group, LLC operate retail stores and the website “Pet Supplies Plus,” selling pet products nationwide. PSP markets a private-label pet food line called “Redford Naturals.” Caryn Ash bought 15 cans of Redford Naturals wet cat food, which listed “ground flaxseed” as one of its ingredients. (“Wet” pet food has a high moisture content, principally water, compared to “dry” pet foods. Pet Food Inst., 4 Common Questions About Pet Food, Pet Food Inst. Blog, https://www.petfoodinstitute.org/blog/4-common-questions-about-pet-food (last visited May 31, 2023) [https://perma.cc/95AC-93G6].)
¶ 3 Drawing all reasonable inferences in Ash‘s favor, as we must, we agree with the trial court and affirm.
Background
¶ 4
¶ 5 Flaxseed contains heart-healthy Omega-3 fatty acids and is a nutritional supplement. Flaxseed comes in three forms: whole, ground, and oil.
¶ 6 Caryn Ash purchased 15 cans of Redford Naturals cat food from a Pet Supplies Plus retail store for $1.18 each. The website and the label listed “ground flaxseed” as one of several ingredients. Ash alleged that whole flaxseed appeared on the top of and throughout the cans.
¶ 7 Ash sued for fraudulent misrepresentation under the Consumer Fraud Act, common-law fraud, and unjust enrichment. After the court dismissed her initial complaint without prejudice, Ash filed a first amended complaint, which the trial court also dismissed, again without prejudice. The trial court concluded that Ash “failed to allege that Defendants concealed, misrepresented, or omitted known material facts, and thus the fraud claims fail as a matter of law.”
Second Amended Complaint
¶ 8
¶ 9 Ash‘s second amended complaint asserted “several whole flaxseeds readily visible at the top of these cans of Redford Naturals, and more whole flaxseeds mixed throughout the wet cat
¶ 10 The major alteration from the first to the second amended complaint concerned a section about “pet humanization,” a theory that pet owners treat pets like their children and willingly pay a higher price for “premium” products that ostensibly provide better ingredients and nutritional value. Allegedly, the presence of whole flaxseed comprises a material fact in the purchasing decision and makes the product “completely undesirable to consumers” “[b]ecause consumers (such as Plaintiff and members of the Class) are unwilling to buy cat food that contains any amount of whole flaxseed.” Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 505 (1996) (“A material fact exists where a buyer would have acted differently knowing the information ***.“).
¶ 11 In addition, Ash alleged that “cat food purveyors” know that disclosing the presence of whole flaxseed in their products would make their products “worthless,” as consumers would not buy cat food with whole flaxseed. Ash complained to the company in an e-mail about the presence of whole flaxseed. PSP responded, “they cannot ensure that every flaxseed is ground during the manufacturing process.”
¶ 12 Ash added, “it is unclear” from the labels and the Pet Supplies Plus website “if these varieties of Redford Naturals contain whole flaxseed instead of ground flaxseed, or whether the presence of ground flaxseed is in addition to the presence of whole flaxseed.” The second complaint claimed PSP failed to disclose and actively concealed that all its varieties of Redford Naturals contain whole flaxseed.
¶ 13 Again, PSP moved to dismiss. The trial court granted a section 2-615 motion to dismiss (
¶ 14 The dismissal order, citing Visvardis v. Ferleger, P.C., 375 Ill. App. 3d 719, 724 (2007), states that under a section 2-615 motion to dismiss, the court accepts as true all well-pleaded facts and reasonable inferences that may be drawn, but the court may give no credence to conclusions of law or conclusory allegations unsupported by specific facts. The trial court declined to “accept as true [Ash‘s] conclusory allegations” relating to unidentified studies on the benefits and detriments of ground and whole flaxseed to animals, including cats. Finally, the trial court held that the dismissal of the fraud counts doomed the unjust enrichment count.
Standard of Review
¶ 15
¶ 16 We review de novo orders granting a section 2-615 dismissal. Bjork v. O‘Meara, 2013 IL 114044, ¶ 21.
Analysis
¶ 17
¶ 18 A section 2-615 motion to dismiss challenges the complaint‘s legal sufficiency.
¶ 19 Illinois is a fact pleading jurisdiction. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429-430 (2006). Although the complaint need not include evidence, it must allege facts sufficient to bring a claim within a legally recognized cause of action. Id. The trial court will not admit conclusory allegations or conclusions of law not supported by specific facts. Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 406 Ill. App. 3d 325, 336 (2010); see Small v. Sussman, 306 Ill. App. 3d 639, 646 (1999) (conclusory allegations cannot substitute for well-pleaded facts).
¶ 20 Ash pleaded both statutory and common-law fraud.
Common-Law Fraud and Consumer Fraud Act
¶ 21
¶ 22 To state a cause of action for common law fraud, the plaintiff pleads (i) a false statement of material fact, (ii) which the party making the statement knew or believed to be false, (iii) with the intention to induce the plaintiff to act (iv) and that the plaintiff reasonably relied on the false statement, (v) resulting in damages to the plaintiff. Schrager v. North Community Bank, 328 Ill. App. 3d 696, 706-07 (2002); Lagen, 274 Ill. App. 3d at 17. Fraud claims must be pleaded with sufficient specificity, particularity, and certainty to apprise the defendant of the grounds for the claim. See Illinois Non-Profit Risk Management Ass‘n v. Human Service Center of Southern Metro-East, 378 Ill. App. 3d 713, 722 (2008). This sets a high standard of specificity for claims of common-law fraud. Hirsch v. Optima, Inc., 397 Ill. App. 3d 102, 116 (2009).
¶ 23 The Consumer Fraud Act protects “consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” McIntosh v. Walgreens Boots Alliance, Inc., 2019 IL 123626, ¶ 20 (citing Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 416-17 (2002)). Courts liberally construe the Consumer Fraud Act to effectuate its purposes. Robinson, 201 Ill. 2d at 417 (citing Cripe v. Leiter, 184 Ill. 2d 185, 191 (1998)). Under the Consumer Fraud Act, the plaintiff must allege (i) the defendant engaged in a deceptive act or practice, (ii) intending that the plaintiff rely on the deception or practice, (iii) which occurs in the course of conduct involving trade or commerce, (iv) causing actual damage to the plaintiff, (v) proximately caused by the deception. McIntosh, 2019 IL 123626, ¶ 21;
¶ 24 The Consumer Fraud Act expands consumers’ rights beyond those of the common law and provides broader protection. Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 68 (1994). We have observed, “Plaintiff‘s right to recovery is unaffected by her alleged failure to show an intent to deceive because ‘a violation of the Consumer Fraud Act may be based on an innocent or negligent misrepresentation as well as one that is intentional.’ ” Rubin v. Marshall Field & Co., 232 Ill. App. 3d 522, 533 (1992) (quoting Carl Sandburg Village Condominium Ass‘n No. 1 v. First Condominium Development Co., 197 Ill. App. 3d 948, 953 (1990)).
¶ 25 The Consumer Fraud Act defines deceptive acts or practices as ” ‘including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact *** in the conduct of any trade or commerce.’ ” Phillips v. DePaul University, 2014 IL App (1st) 122817, ¶ 33 (quoting
¶ 26 “Intent” under the Consumer Fraud Act means that the defendant intends for the plaintiff to rely on the deception as opposed to the defendant‘s intent to deceive. Carl Sandburg Village Condominium Ass‘n No. 1, 197 Ill. App. 3d at 953. Put another way, the misrepresentation or omission may be innocent if it was intended to induce reliance. Mackinac, 271 Ill. App. 3d at 142.
Materiality
¶ 28
¶ 29 Ash contends materiality is the sole issue, citing Thompson v. IFA, Inc., 181 Ill. App. 3d 293 (1989). She asserts materiality presents a question of fact in the context of the information at issue: How do consumers behave and make a buying decision for Redford Naturals’ canned cat food, and how do they perceive representations about the product. See id. at 299. Ash relies on cases where materiality raises a question of fact. See Hanson-Suminski v. Rohrman Midwest Motors, Inc., 386 Ill. App. 3d 585, 593 (2008) (affirming for plaintiff because “trier of fact could find by a preponderance of the evidence that” omissions material); Napcor Corp. v. JP Morgan Chase Bank, NA, 406 Ill. App. 3d 146, 154 (2010) (“trier of fact could have concluded that plaintiff would have acted differently had it known” roof‘s true condition); Lidecker v. Kendall College, 194 Ill. App. 3d 309, 316 (1990) (“Materiality can only be defined in the context of the transaction between the parties.“).
¶ 30 Three factors encompass a false statement of material fact: (i) a misrepresentation, (ii) involving a fact (iii) that is material. Miller v. William Chevrolet/GEO, Inc., 326 Ill. App. 3d 642, 649 (2001) (summary judgment granted for defendants on common-law fraud and statutory
¶ 31 Courts view the elements of a Consumer Fraud Act claim under an objective standard, measuring the materiality of the consumer‘s decision by what a reasonable consumer would regard as important in making a decision. Connick, 174 Ill. 2d at 505 (reasonable person standard—whether omission “concerned the type of information upon which a buyer would be expected to rely in making a decision whether to purchase“); see Cirone-Shadow v. Union Nissan of Waukegan, 955 F. Supp. 938, 944 (N.D. Ill. 1997) (“The standard for materiality under the [Consumer Fraud Act] is an objective standard.“). So we ask what a reasonable consumer of a can of cat food would consider consequential in making a purchase.
¶ 32 We hold that, even under the expanded protection of the Consumer Fraud Act, the second amended complaint fails to support a claim of materiality.
¶ 33 The second amended complaint alleges that identifying “ground flaxseed” as an ingredient implies only “ground flaxseed” in the product. But, an omission is not actionable as fraud if it gives rise to “an incomplete” as opposed to an affirmatively “false impression.” See Phillips, 2014 Il App 1st 122817. In Phillips, the plaintiffs alleged that DePaul University committed a deceptive act or practice by failing to inform them of the percentages of graduates employed in nonlegal and part-time positions. Id. ¶ 40. The Phillips court stated, “[W]hile the information published by DePaul could certainly have been more specific about the types of employment included in the reported percentage of employed graduates, plaintiffs have identified no affirmative misrepresentation by DePaul of those figures.” (Emphasis added.) Id.
¶ 35 Courts interpret “plausibility” by considering “the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff‘s inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011). Considering these factors, the claims have not crossed into “plausible.” Ash‘s claim that whole flaxseed is detrimental to cats is a conclusion unsupported by any facts pleaded. Nor has Ash adequately alleged that the disclosure of one form of an ingredient must exclude the presence of another form.
¶ 37 Accordingly, we hold as a matter of law that no factfinder could find a reasonable consumer would consider the disclosure of “ground flaxseed” to imply the absence of other forms of flaxseed.
¶ 38 Moreover, Ash alleges that the phenomenon known as “pet humanization” (pet owners’ tendency to anthropomorphize their pets) leads to a willingness to spend more money on pet products perceived as superior in quality. The second amended complaint asserts, “since pet owners view their pets as human (or substantially similar to humans because they are mammals), pet owners generally believe that “if it is good/bad for me, it must also be good/bad for my pet. If that was not true, I would certainly know.” Not only is the syllogism self-evidently faulty, but it also has no empirical support in the complaint other than the conclusory allegation that Ash “would certainly know” about what is good or bad for humans and pet cats.
¶ 39 Besides, pet humanization is a dubious basis for determining whether reasonable consumers would consider the presence of whole flaxseed material in their purchasing decisions. Whether or not a “phenomenon,” factual allegations must support the critical element of materiality.
¶ 40
¶ 41 Finally, Ash cites a federal statute and regulation and two Illinois regulations as requiring “a full and complete ingredient list.” But nothing in what she cites requires distinguishing between different forms of an ingredient. As PSP argues, the federal statute and regulation indicate that pet food labels need not list ingredients with particular specificity. See
Unjust Enrichment Claim
¶ 42
¶ 43 Unjust enrichment is not a separate cause of action and must be dismissed when the underlying claims, here consumer and common-law fraud, are deficient. Vanzant v. Hill‘s Pet Nutrition, Inc., 934 F.3d 730, 739-40 (7th Cir. 2019) (unjust enrichment claim “tied to the fate of the claim under the Consumer Fraud Act“). Ash‘s claim for unjust enrichment fails, as it hinged on the survival of the claims of fraud, which have been dismissed.
¶ 44 Affirmed.