CLARISHA BENSON, et al. v. FANNIE MAY CONFECTIONS BRANDS, INC.
No. 19-1032
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 4, 2019 – DECIDED DECEMBER 9, 2019
Before WOOD, Chief Judge, and BAUER and HAMILTON, Circuit Judges.
WOOD, Chief Judge. Proving that almost anything can give rise to litigation, this case concerns chocolates that Clarisha Benson and Lorenzo Smith purchased at their local Fannie May stores in Chicago. Upon opening their boxes of candy, Benson and Smith were dismayed to find that the boxes were not brimming with goodies. Far from it: the boxes appeared to be only about half full. Believing that they had been duped,
I
Each plaintiff purchased an opaque, seven-ounce box of Fannie May‘s chocolate for $9.99 plus tax. Benson purchased Fannie May‘s Mint Meltaways, and Smith purchased Fannie May‘s Pixies. (Since their assertions are otherwise identical, we generally refer in the remainder of this opinion only to Benson, understanding that Smith is also a putative named plaintiff and that there are class allegations.) Although the boxes accurately disclosed the weight of the chocolate within (seven ounces) and the number of pieces in each box (ascertainable by multiplying the serving size times the number of servings per container), the boxes were emptier than each one had expected. The box of Mint Meltaways contained approximately 33% empty space, and the box of Pixies contained approximately 38% empty space. The cognoscenti call this empty space “slack-fill.”
II
We consider the dismissal of a complaint for failure to state a claim de novo. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A
At the outset, there was some question whether diversity jurisdiction existed pursuant to the Class Action Fairness Act (CAFA),
The FDCA does not create a private right of action. Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011). Even so, plaintiffs are entitled to seek relief pursuant to related state-law causes of action. See id. The latter right, however, is tightly circumscribed by the FDCA‘s express preemption of state-law theories that impose requirements “not identical” to its own requirements. See
The district court determined that Benson could avoid dismissal of her state claims on the basis of preemption only if she pleaded that the slack-fill in the Mint Meltaway and Pixie
B
With that much established, the question remains whether Benson sufficiently pleaded the elements of her state-law theories, starting with the contention that Fannie May violated the ICFA. The ICFA is “a regulatory and remedial statute intended to protect consumers ... against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 416–17 (2002). To prevail on a claim under the ICFA, “a plaintiff must plead and prove that the defendant committed a deceptive or unfair act with the intent that others rely on the deception, that the act occurred in the course of trade or commerce, and that it caused actual damages.” Vanzant v. Hill‘s Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019).
Benson‘s complaint alleges that the slack-fill in Fannie May‘s chocolate boxes is both deceptive and unfair. We therefore consider both possibilities. Starting with the first category, a practice is deceptive “if it creates a likelihood of deception or has the capacity to deceive.” See Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 938 (7th Cir. 2001). Courts apply a “reasonable consumer” standard to analyze the likelihood of deception. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 673 (7th Cir. 2015). “[W]hen analyzing a claim under the ICFA, the allegedly deceptive act must be looked upon in light of the totality of the information made available to the plaintiff.” Davis v. G.N. Mortg. Corp., 396 F.3d 869, 884 (7th Cir. 2005).
Benson asserts that the nonfunctional slack-fill in Fannie May‘s opaque packaging is deceptive because it causes consumers to believe that the boxes contain more chocolate than they actually do. The complaint describes the percentage of slack-fill in each seven-ounce box and contrasts Fannie May‘s fourteen-ounce boxes, which contain a smaller percentage of slack-fill, to show that unused capacity in the smaller box is
Fannie May complains that Benson left out information that would have shown that no deception was possible. The information on the outside of the boxes, which as we said discloses the net weight and number of pieces inside the boxes, eliminates the possibility that a reasonable consumer would be deceived. (The person treating her office group, it says, has no one but herself to blame if she thought the box would be enough for everyone; she should have paid attention to the number of pieces it held.) Fannie May also points out that the receipts Benson and Smith received disclosed the weight and price of each box of chocolate.
This is another argument that cries out for an answer and a Rule 12(c) motion rather than a motion to dismiss, but in any event, at this stage of the litigation, we cannot conclude that the information on the boxes is enough as a matter of law to avoid a finding of deception. The Food and Drug Administration takes the position that “the presence of an accurate net weight statement does not eliminate the misbranding that occurs when a container is made, formed, or filled so as to be misleading.” Misleading Containers; Nonfunctional Slack-
Benson also asserted that the packaging of the Mint Meltaways and Pixies is covered by the ICFA‘s “unfair acts” prohibition. Illinois courts look to three considerations to ascertain whether conduct is unfair under the ICFA: “(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers.” Robinson, 201 Ill. 2d at 417–18. A court may find unfairness even if the claim does not satisfy all three criteria. Id. at 418. A practice might be unfair “because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Id.
In the complaint, Benson alleges that Fannie May engaged in unfair acts or practices by including needless slack-fill in its chocolate boxes, and that this amounted to a misrepresentation of the quantity of chocolate within. This practice, she contends, constitutes false advertising, which is unethical and offends public policy. Benson also asserts that the unfair practice seriously injures consumers by making them believe that they are receiving more chocolate than the actual amount within each box. As we have observed before, “an unfair-practices claim has no fraud element and therefore is not subject to a heightened pleading standard.” Vanzant, 934 F.3d at 739. Benson‘s allegations of unfair practices meet the federal notice-pleading standards because they claim that Fannie May “engaged in unfair conduct and aver[] facts that, if proven, make relief more than merely speculative.” See Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 672 (7th Cir. 2008).
C
So far, so good. But Benson has one more hurdle: a private plaintiff suing under the ICFA must show that she “suffered ‘actual damage’ as a result of the defendant‘s violation of the act.” Camasta, 761 F.3d at 739. In other words, she must plausibly plead that the deceptive or unfair act caused her to suffer actual damages, meaning pecuniary loss. Kim v. Carter‘s Inc., 598 F.3d 362, 365 (7th Cir. 2010). Actual loss may occur “if the seller‘s deception deprives the plaintiff of ‘the benefit of her bargain’ by causing her to pay ‘more than the actual value of the property.‘” Id.
In Kim, the plaintiffs purchased clothing from several stores that advertised their wares as being discounted from “Suggested Prices.” Id. at 363. The “Suggested Prices,” however, were fictitious and much higher than anything customers actually paid. Id. Nevertheless, we found that the plaintiffs had suffered no concrete harm because they had not alleged that the clothing “was defective or worth less than what they actually paid” or that “they could have shopped around and obtained a better price in the marketplace.” Id. at 365–66.
The same is true here. Neither Benson nor Smith has alleged that the seven ounces of chocolate in the box were worth less than the $9.99 that they paid. They do not claim that the Mint Meltaways or Pixies were defective or that they could have acquired them for a better price. Instead, both plaintiffs assert that they would not have purchased the candy if they had known the amount of slack-fill, and they seek damages in
But this assumes that they were injured, and that assumption is inconsistent with Camasta. There the plaintiff‘s allegation of actual damages fell short, even though he said that he “would not have purchased” shirts absent deceptive advertising, because he had not alleged that he paid more than “the actual value of the merchandise he received.” Camasta, 761 F.3d at 735, 740. In our case, Benson and Smith never said that the chocolates they received were worth less than the $9.99 they paid for them, or that they could have obtained a better price elsewhere. That is fatal to their effort to show pecuniary loss. Moreover, their request for damages based on the percentage of nonfunctional slack-fill is quite vague. They do not explain how a percentage refund of the purchase price based on the percentage of nonfunctional slack-fill corresponds to their alleged harm. They thus failed to raise a plausible theory of actual damage, and so their allegations that Fannie May violated the ICFA were properly dismissed on the pleadings.
III
Benson also seeks restitution for unjust enrichment. Under Illinois law, there is no stand-alone claim for unjust enrichment. See Alliance Acceptance Co. v. Yale Ins. Agency, Inc., 271 Ill. App. 3d 483, 492 (1995), relying on Charles Hester Enterprises, Inc. v. Illinois Founders Ins. Co., 137 Ill. App. 3d 84, 90–91 (1985). Instead, Illinois courts describe it as “a condition that may be brought about by unlawful or improper conduct as defined by law, such as fraud, duress or undue influence . . . .” Charles Hester, 137 Ill. App. 3d at 90–91. The request for relief based on unjust enrichment is therefore “tied to the fate of the claim under the [ICFA].” Vanzant, 934 F.3d at 740.
Lastly, Benson alleges that Fannie May breached an implied contract for the sale of the chocolate boxes by violating the duty of good faith and fair dealing. But “there can be no contract implied in law where an express contract or a contract implied in fact exists between the parties and concerns the same subject matter.” Marcatante v. City of Chicago, Ill., 657 F.3d 433, 443 (7th Cir. 2011). Here, the parties entered into a “straightforward, everyday sales contract” in which the buyers “selected the [chocolate] and offered to purchase it at the advertised price, at which point [Fannie May] accepted by taking the plaintiffs’ money in exchange for possession of the [chocolate].” See Kim, 598 F.3d at 364. The “contract terms were memorialized in the sales receipt[s] that [Benson and Smith] received at the cash register.” See id. The receipts show the specific products (Mint Meltaways and Pixies), the quantity (seven ounces), and the price ($9.99). The receipts embody the contract between the parties, and it concerns the identical subject-matter of the alleged implied contract. State law does not recognize an implied contract in this situation, and so that part of the case was also properly dismissed.
We AFFIRM the judgment of the district court.