Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 1 of 20 PageID #:101
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`STACY CHIAPPETTA, individually and on
`behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`KELLOGG SALES COMPANY
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`Defendant.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`)
`)
`)
`)
`)
`) No. 21-CV-3545
`) Hon. Marvin E. Aspen
`)
`)
`)
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`MEMORANDUM OPINION AND ORDER
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`MARVIN E. ASPEN, District Judge:
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`This putative class action concerns the alleged misleading labeling of toaster pastries.
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`Plaintiff Stacy Chiappetta claims that the packaging for Defendant Kellogg Sales Company’s
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`(“Kellogg”) Unfrosted Strawberry Pop-Tarts (the “Product”) is misleading because it “give[s]
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`consumers the impression the fruit filling contains only strawberries and/or more strawberries
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`than it does.” (Complaint (“Compl.”) (Dkt. No. 1) ¶ 2.)1 Chiappetta brings claims for violation
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`of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1
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`et seq.; negligent misrepresentation; breaches of express warranty, implied warranty of
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`merchantability, and the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.; fraud; and
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`unjust enrichment. (Id. ¶¶ 74–100.) Chiappetta asserts that we have jurisdiction under the Class
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`Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(2). (Id. ¶ 45.)2
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`1 For ECF filings, we cite to the page number(s) set forth in the document’s ECF header unless
`citing to a particular paragraph or other page designation is more appropriate.
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` The CAFA gives federal courts jurisdiction over class actions in which there is at least
`$5,000,000 in controversy, minimal diversity exists between the parties, and the total number of
`class members is greater than 100. See 28 U.S.C. § 1332(d). Chiappetta alleges that she is a
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 2 of 20 PageID #:102
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`Kellogg has moved to dismiss Chiappetta’s claims under Federal Rule of Civil Procedure
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`12(b)(6) for failure to state a claim upon which relief can be granted. (Motion to Dismiss
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`Plaintiff’s Class Action Complaint (“Motion”) (Dkt. No. 10) at 1.) Kellogg has also moved to
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`dismiss Chiappetta’s request for injunctive under Federal Rule of Civil Procedure 12(b)(1) for
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`lack of standing. (Id.) For the reasons set forth below, we grant Kellogg’s Motion.
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`BACKGROUND
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`We have taken the following facts from the Complaint and deem them to be true for the
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`purposes of this Motion. See Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016); see also
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`Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
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`Chiappetta purchased the Product “on one or more occasions . . . at stores including but
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`not necessarily limited to” a Jewel Osco store in Chicago Heights, Illinois, “in or around March
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`2021.” (Compl. ¶ 58.) The Product was “sold at a premium price, approximately no less than
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`$5.49 for 12 Pop-Tarts (20.3 OZ), excluding tax.” (Id. ¶ 44.)
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`A front view of the Product’s packaging is found below:
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`citizen of Illinois and that Kellogg is a Delaware corporation with its principal place of business
`in Michigan, which satisfies the minimum diversity requirement. (See Compl. ¶¶ 46, 47.)
`Chiappetta defines the class as “all purchasers of the Product who reside in Illinois during the
`applicable statutes of limitations.” (Id. ¶ 65.) It is reasonable to infer that this class includes
`more than 100 people based on the alleged sale price of the Product ($5.49 for 12 Pop-Tarts) and
`Kellogg’s alleged annual sales of the Product within Illinois (more than $5 million). (See id.
`¶¶ 44, 49.) Chiappetta does not explain how Kellogg’s sales translate to damages, alleging only
`that she paid more for the Product than it was worth. (See id. ¶ 63.) However, she is not
`required to identify the premium that she and others paid at this stage. See Tropp v. Prairie
`Farms Dairy, Inc., 20-cv-1035-jdp, 2021 WL 5416639, at *2 (W.D. Wis. Nov. 19, 2021). And
`Kellogg has not contested that there is at least $5,000,000 in controversy. (See generally
`Memorandum of Law in Support of Kellogg Sales Company’s Motion to Dismiss Plaintiff’s
`Class Action Complaint (“Memo”) (Dkt. No. 11); Reply in Support of Kellogg Sales Company’s
`Motion to Dismiss Plaintiff’s Class Action Complaint (“Reply”) (Dkt. No. 15).) Therefore, we
`conclude for the purposes of this Motion that Chiappetta has properly alleged our subject matter
`jurisdiction. See Gubala v. CVS Pharmacy, Inc., No. 14 C 9039, 2016 WL 1019794, at *2 n.6
`(N.D. Ill. Mar. 15, 2016).
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 3 of 20 PageID #:103
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`(Id. ¶ 1.) Chiappetta claims that the Product packaging misled her and other consumers into
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`believing that the Product’s fruit filling contained “only strawberries and/or more strawberries
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`than it does” because it bears the word “Strawberry,” and it depicts half of a fresh strawberry and
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`red fruit filling. (Id. ¶ 2.) In reality, though, the Product’s fruit filling contains more than just
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`strawberries; it also contains dried pears, dried apples, and a food dye known as “red 40,” among
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`other ingredients. (Id. ¶ 26.)
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`Strawberries confer certain health benefits. (Id. ¶¶ 11–17.) For example, they are an
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`“excellent source of vitamin C,” and they have “uniquely high levels of antioxidants known as
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`polyphenols.” (Id. ¶¶ 12, 14 (internal quotation marks and citations omitted).) However, the
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`“Product is unable to confer any of the[se] health-related benefits because it has less strawberries
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`than it purports to” have. (Id. ¶ 23.) Additionally, the red 40 food dye used to color the
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`Product’s filling “is connected with learning disorders and hyperactivity in children.” (Id. ¶ 39.)
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`Chiappetta contends that but for Kellogg’s “misrepresentations and omissions,” she either
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`would not have bought the Product or would have paid less for it. (Id. ¶¶ 62, 63.) She adds that
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`she intends to purchase the Product again “when she can do so with the assurance that [the]
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`Product’s labels are consistent with the Product’s components.” (Id. ¶ 64.) Chiappetta brings
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 4 of 20 PageID #:104
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`this putative class action on behalf of herself and “all purchasers of the Product who reside in
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`Illinois during the applicable statutes of limitations.” (Id. ¶ 65.)
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`LEGAL STANDARD
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`I. Rule 12(b)(6) Motion to Dismiss
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`A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
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`of a complaint, but not the merits of a case. McReynolds v. Merrill Lynch & Co., 694 F.3d 873,
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`878 (7th Cir. 2012); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When
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`considering such motions, courts “construe the complaint in the light most favorable to the
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`plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in
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`her favor.” Tamayo, 526 F.3d at 1081. A court may grant a motion to dismiss under Rule
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`12(b)(6) only if a complaint lacks sufficient facts “to ‘state a claim to relief that is plausible on
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`its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id. Although a facially
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`plausible complaint need not give “detailed factual allegations,” it must allege facts sufficient “to
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`raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–
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`65. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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`statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. These requirements
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`ensure that a defendant receives “fair notice of what the . . . claim is and the grounds upon which
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`it rests.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964.
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`Claims sounding in fraud, including a claim alleging deceptive practices in violation of
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`the ICFA, must also meet the heightened pleading standard of Federal Rule of Civil Procedure
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 5 of 20 PageID #:105
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`9(b). See Fed. R. Civ. P. 9(b); Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639,
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`646 (7th Cir. 2019); Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir. 2011). In
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`practice, this means that a plaintiff “must identify the ‘who, what, when, where, and how’ of the
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`alleged fraud.” Benson, 944 F.3d at 646 (quoting Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d
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`730, 738 (7th Cir. 2019)).
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`II. Rule 12(b)(1) Motion to Dismiss
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`A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) challenges
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`the court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). If a court does not have
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`subject matter jurisdiction over a claim, the claim must be dismissed. See In re Chicago, Rock
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`Island & Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). Where, as here, there is a facial
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`challenge to the court’s subject matter jurisdiction, the plaintiff bears the burden of establishing
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`that the court has jurisdiction over the matter. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir.
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`2015).
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`I.
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`ICFA
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`ANALYSIS
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`The ICFA safeguards “consumers, borrowers, and business persons against fraud, unfair
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`methods of competition, and other unfair and deceptive business practices.” Siegel v. Shell Oil
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`Co., 612 F.3d 932, 934 (7th Cir. 2010) (internal citation and quotation marks omitted). “In order
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`to state a claim under the ICFA, a plaintiff must show: ‘(1) a deceptive or unfair act or promise
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`by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair
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`practice; and (3) that the unfair or deceptive practice occurred during a course of conduct
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`involving trade or commerce.’” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th
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`Cir. 2014) (quoting Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir. 2012)).
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 6 of 20 PageID #:106
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`“Although ICFA claims often involve disputed questions of fact not suitable to a motion to
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`dismiss, a court may dismiss the complaint if the challenged statement was not misleading as a
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`matter of law.” Ibarrola v. Kind, LLC, 83 F. Supp. 3d 751, 756 (N.D. Ill. 2015) (citing Bober v.
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`Glaxo Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001); Pelayo v. Nestle USA, Inc., 989 F.
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`Supp. 2d 973, 978 (C.D. Cal. 2013)).
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`Chiappetta challenges a “deceptive,” rather than “unfair,” practice. (See, e.g., Compl.
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`¶ 61; Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss the
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`Complaint (“Opposition”) (Dkt. No. 14) at 9–16 (explaining why she has plausibly alleged a
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`“deceptive act or practice” under the ICFA).) Therefore, we apply the standard for deceptive
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`practices to Chiappetta’s ICFA claim. “A practice is deceptive ‘if it creates a likelihood of
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`deception or has the capacity to deceive.’” Benson, 944 F.3d at 646 (quoting Bober, 246 F.3d at
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`938). “To determine the likelihood of deception, courts apply a ‘reasonable consumer’
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`standard.” Geske v. PNY Techs., Inc., 503 F. Supp. 3d 687, 704–05 (N.D. Ill. 2020). This
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`standard “requires more than a mere possibility that [a] label might conceivably be
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`misunderstood by some few consumers viewing it in an unreasonable manner. Rather, the
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`reasonable consumer standard requires a probability that a significant portion of the general
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`consuming public . . . acting reasonably in the circumstances, could be misled.” Ebner v. Fresh,
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`Inc., 838 F.3d 958, 965 (9th Cir. 2016) (internal citations and quotation marks omitted); Geske,
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`503 F. Supp. 3d at 705 (quoting Ebner).
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`Courts considering “deceptive advertising claims should take into account all the
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`information available to consumers and the context in which that information is provided and
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`used.” Bell v. Publix Super Markets, Inc., 982 F.3d 468, 477 (7th Cir. 2020). “What matters
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`most is how real consumers understand and react to the advertising.” Id. at 476. “[W]here
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 7 of 20 PageID #:107
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`plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels
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`or other advertising, dismissal on the pleadings may well be justified.” Id. at 477.
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`According to Kellogg, Chiappetta has not plausibly pled that the front of the Product’s
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`packaging is deceptive. (Memo at 9–15.) In particular, Kellogg argues that its Product
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`packaging “does not represent that Strawberry Pop-Tarts contain no fruits other than
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`strawberries, that the filling contains a specific amount of strawberries, or that the filling includes
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`only a de minimis amount of other fruits.” (Id. at 10.) Additionally, Kellogg continues, the use
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`of red 40 is not misleading—if anything, it suggests that the Product contains something other
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`than strawberries because it is an unnatural color. (Id. at 14–15.) Kellogg further contends that
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`courts have made clear that a product’s color does not convey to a reasonable consumer that the
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`product contains certain ingredients. (Id.)
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`In response, Chiappetta argues that courts should not dismiss deceptive labeling claims
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`unless they are unreasonable or fanciful, and her interpretation of the Product’s packaging is
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`neither unreasonable nor fanciful. (Opposition at 10–11.) Further, Chiappetta contends that the
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`term “Strawberry” is sufficiently specific in that a reasonable consumer could understand its use
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`to suggest that the Product’s fruit filling contains only strawberries or a greater amount of
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`strawberry than non-strawberry ingredients. (Id. at 12–13.)
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`The essence of Chiappetta’s ICFA claim is that the word “Strawberry,” combined with a
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`picture of half of a strawberry and a Pop-Tart oozing red filling, misleads consumers into
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`believing that the Product’s filling consists of “only strawberries and/or more strawberries than it
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`does” have. (Compl. ¶ 2.) However, no reasonable consumer could conclude that the filling
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`contains a certain amount of strawberries based on the package’s images and its use of the term
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`“Strawberry.” See, e.g., Wallace v. Wise Foods, Inc., 20-CV-6831 (JPO), 2021 WL 3163599, at
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 8 of 20 PageID #:108
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`*2 (S.D.N.Y. July 26, 2021) (dismissing deceptive advertising claims where no reasonable
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`consumer could believe that because chips were labeled “Cheddar & Sour Cream Flavored,” the
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`chips’ flavor was derived entirely from cheddar and sour cream); Solak v. Hain Celestial Grp.,
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`Inc., 3:17-CV-0704 (LEK/DEP), 2018 WL 1870474, at *4 (N.D.N.Y. Apr. 17, 2018) (not
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`misleading to refer to product as “Garden Veggie Straws” where it contained vegetable-based
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`ingredients and made “no claim as to the amount or proportion of ‘Veggie’ products” that it
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`contained).
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`This case is substantially similar to Floyd v. Pepperidge Farm, Inc., Case No. 21-cv-525-
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`SPM, 2022 WL 203071 (S.D. Ill. Jan. 24, 2022). In that case, the plaintiff claimed that the
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`packaging for Pepperidge Farm’s “Golden Butter” crackers was misleading because “even
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`though the [crackers] contain butter,” they also contained a “non-de minimis amount of butter
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`substitutes – vegetable oils.” Id. at *1 (internal quotation marks and citation omitted). The
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`plaintiff claimed that “she wanted to consume a cracker which contained more butter than it did
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`and did not contain butter substitutes where butter could be used.” Id. (internal quotation marks
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`and citation omitted). The court dismissed the plaintiff’s ICFA claims, reasoning that there were
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`no “untruths on the packaging” or deception because the crackers were golden-colored and
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`contained butter. Id. at *4.
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`Here, like the plaintiff in Floyd, Chiappetta has not identified any “untruths on the
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`packaging” or a plausible deception. The front of the Product packaging does not state or
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`suggest anything about the amount of strawberries in the Product’s filling or guarantee that the
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`filling contains only strawberries, and Chiappetta concedes that the filling contains some
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`strawberries. (See, e.g., Compl. ¶¶ 1, 2, 26.) Accordingly, Chiappetta’s interpretation of the
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`label is unreasonable and unactionable. See Bober, 246 F.3d at 939 (affirming the dismissal of
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 9 of 20 PageID #:109
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`deceptive advertising claims where statements could not be reasonably understood in the manner
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`that plaintiff alleged). Because Chiappetta has not stated a plausible claim to relief under ICFA,
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`her ICFA claim is dismissed.
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`II. Breach of Warranties
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`A.
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`Breach of Express Warranty and Implied Warranty of Merchantability
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`Chiappetta brings claims for breach of express warranty and the implied warranty of
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`merchantability. (Compl. ¶¶ 87–94.) In support of these claims, Chiappetta alleges that “[t]he
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`Product was manufactured, labeled and sold by [Kellogg] or at [Kellogg’s] express directions
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`and instructions, and warranted to [Chiappetta] and class members that [the Product] possessed
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`substantive, quality, compositional, nutritional, sensory, and/or organoleptic attributes which [it]
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`did not.” (Id. ¶ 88.) Additionally, she alleges that the Product was not merchantable because it
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`“did not conform to its affirmations of fact and promises.” (Id. ¶ 93.)
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`Both parties agree that Illinois law applies to Chiappetta’s common law claims for breach
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`of express warranty and the implied warranty of merchantability. (See Memo at 16–17;
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`Opposition at 16–18.) Under Illinois law, a properly pled claim for breach of express warranty
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`alleges that the defendant: “(1) made an affirmation of fact or promise; (2) relating to the goods;
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`(3) which was part of the basis for the bargain; and (4) guaranteed that the goods would conform
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`to the affirmation or promise.” O’Connor v. Ford Motor Co., 477 F. Supp. 3d 705, 714 (N.D. Ill.
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`2020). In general, “a plaintiff must state the terms of the warranty alleged to be breached or
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`attach it to the complaint.” Gubala v. CVS Pharmacy, Inc., No. 14 C 9039, 2015 WL 3777627,
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`at *7 (N.D. Ill. June 16, 2015) (internal quotation marks and citation omitted).
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`“To state a claim for breach of the implied warranty of merchantability, a plaintiff must
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`allege that ‘(1) the defendant sold goods that were not merchantable at the time of sale; (2) the
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`plaintiff suffered damages as a result of the defective goods; and (3) the plaintiff gave the
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`defendant notice of the defect.’” Baldwin v. Star Scientific, Inc., 78 F. Supp. 3d 724, 741 (N.D.
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`Ill. 2015) (quoting Indus. Hard Chrome, Ltd. v. Hetran, Inc., 64 F. Supp. 2d 741, 748 (N.D. Ill.
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`1999)). To be merchantable, goods must, among other things, “pass without objection in the
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`trade under the contract description” and “conform to the promises or affirmations of fact made
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`on the container or label if any.” 810 ILCS 5/2-314(2).
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`Buyers seeking to sue for breach of express or implied warranties must first notify the
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`seller of its breach. Ibarrola, 83 F. Supp. 3d at 760 (express warranty); Baldwin, 78 F. Supp. 3d
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`at 741–42 (implied warranty). A party’s failure to comply with the notice requirement may be
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`excused if she alleges that she suffered a physical injury or that the defendant had actual
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`knowledge of the product’s defect. Ibarrola, 83 F. Supp. 3d at 760.
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`Kellogg makes a few arguments as to why Chiappetta’s allegations do not sufficiently
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`plead breach of warranty claims. First, Kellogg argues that Chiappetta’s claims fail because they
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`are predicated on allegedly false advertising, and she has not plausibly alleged that Kellogg’s
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`advertising would likely deceive a reasonable consumer. (Memo at 15–16.) Second, Kellogg
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`contends that Chiappetta’s claims fail for lack of privity because Chiappetta alleges that she
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`purchased the Product from stores, such as Jewel Osco, rather than from Kellogg directly. (Id. at
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`16.) Third, Kellogg argues that Chiappetta’s claims must be dismissed because she failed to
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`provide pre-suit notice. (Id. at 16–17.)
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`Chiappetta takes the opposite view, first arguing that she has plausibly alleged that a
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`reasonable consumer would be deceived by Kellogg’s advertising. (Opposition at 16–17.)
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`Second, Chiappetta contends that privity is a fact-intensive issue that is more properly resolved
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`at a later stage in the litigation; and in any event, her claims qualify for the “direct-dealing”
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 11 of 20 PageID #:111
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`exception to the privity requirement. (Id. at 17.) Third, Chiappetta claims that she gave Kellogg
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`notice of the Product’s defect by filing this suit, and Kellogg admitted knowledge of the defect
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`by not contesting the defect in its opening brief. (Id. at 17–18.)
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`We agree with Kellogg that Chiappetta’s claims for breach of express and implied
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`warranties suffer from the same infirmity as Chiappetta’s ICFA claim: Kellogg never made the
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`representation that Chiappetta claims it made. As discussed above, the word “Strawberry,”
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`combined with a picture of half of a strawberry and a Pop-Tart oozing red filling, does not
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`guarantee that there will be a certain amount of strawberries in the Product’s filling. Chiappetta
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`purchased Strawberry Pop-Tarts that did, in fact, contain strawberries. (See Compl. ¶¶ 26, 58.)
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`The Product comported with its packaging. This is fatal to Chiappetta’s claims for breach of
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`express and implied warranties. See Spector v. Mondelēz, 178 F. Supp. 3d 657, 674 (N.D. Ill.
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`2016) (dismissing a claim for breach of express warranty where plaintiff had not pled sufficient
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`facts to show that defendant had warranted what plaintiff claimed it did); Floyd, 2022 WL
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`203071, at *5 (dismissing plaintiff’s claim for breach of implied warranty of merchantability
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`where the label did not warrant what plaintiff claimed it did, and plaintiff purchased what was
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`promised).
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`Chiappetta’s claims for breach of express and implied warranties fail for the additional
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`reason that Chiappetta did not meet her pre-suit notice obligation. (See Compl. ¶ 91.) Contrary
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`to Chiappetta’s contention, she cannot satisfy the pre-suit notice obligation by filing suit. See
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`Rudy v. Family Dollar Stores, No. 21-cv-3575, 2022 WL 345081, at *7 (N.D. Ill. Feb. 4, 2022)
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`(“The notice requirement is intended to encourage pre-suit settlement negotiations. That purpose
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`would be eviscerated if a party could satisfy the notice requirement by filing suit . . . .”) (internal
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`quotation marks and citations omitted). Nor does the allegation that Kellogg received consumer
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`Case: 1:21-cv-03545 Document #: 18 Filed: 03/01/22 Page 12 of 20 PageID #:112
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`complaints (see Compl. ¶ 92) relieve Chiappetta of her duty to notify Kellogg. At most, this
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`allegation suggests that Kellogg has “generalized knowledge” of the alleged defect, which does
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`not suffice under Illinois law. See Connick, 174 Ill. 2d at 493–94, 675 N.E.2d at 590; Rudy,
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`2022 WL 345081, at *7 n.4.
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`We are not persuaded that Kellogg admitted knowledge of the alleged defect by not
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`contesting Chiappetta’s claims on the merits either. On a Rule 12(b)(6) motion, we accept all
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`well-pleaded facts as true and do not test the merits of a case. See McReynolds, 694 F.3d at 878;
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`Tamayo, 526 F.3d at 1081; Gibson, 910 F.2d at 1520. Given the standard applicable to Rule
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`12(b)(6) motions, it would be inappropriate for us to conclude that Kellogg “admitted knowledge
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`of the alleged defect” merely because it abided by the standards applicable to Rule 12(b)(6)
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`motions in its briefing.
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`
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`Because we conclude that Chiappetta’s claims for breach of express and implied
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`warranties fail on multiple grounds, we need not reach Kellogg’s privity argument. Chiappetta’s
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`claims for breach of express and implied warranties are dismissed.
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`B. Magnuson-Moss Warranty Act
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`
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`Chiappetta also alleges that Kellogg violated the Magnuson-Moss Warranty Act, 15
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`U.S.C. § 2301 et seq. (Compl. ¶ 87–94.) Her Magnuson-Moss Act claim relies on the same
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`allegations as her common-law breach of warranty claims. (See id.) Kellogg argues that
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`Chiappetta’s Magnuson-Moss Act claim should be dismissed because Magnuson-Moss Act
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`claims depend on the existence of a viable state-law warranty claim, and Chiappetta has none.
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`(Memo at 16 n.6.) Chiappetta disagrees, arguing that we should not dismiss her Magnuson-Moss
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`Act claims because her state-law claims are valid, and Kellogg’s argument was raised in a
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`footnote. (Opposition at 18.)
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`As set forth in the previous section, Chiappetta has not pled viable state-law warranty
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`claims. We therefore dismiss her claim under the Magnuson-Moss Act as well. See Scheisser v.
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`Ford Motor Co., No. 16-730, 2016 WL 6395457, at *4 (N.D. Ill. Oct. 28, 2016) (“[A] cause of
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`action under the Magnuson-Moss Act is dependent on the existence of an underlying viable
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`state-law warranty claim.”); see also Floyd, 2022 WL 203071, at *5 (“Since Illinois law prevails
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`and this Court has dismissed both the express and implied warranties for failing to properly
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`allege a state law claim, any MMWA counts are dismissed as well.”).
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`
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`Contrary to Chiappetta’s contention, we need not disregard Kellogg’s argument merely
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`because it was made in a footnote. See Hills v. AT&T Mobility Servs, LLC, No. 3:17-CV-556-
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`JD-MGG, 2021 WL 3088629, at *1 (N.D. Ind. July 22, 2021) (considering arguments raised in
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`footnotes where doing so would ensure “a fair and just outcome”). It is within our discretion to
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`consider arguments made in footnotes or to deem them to be waived. Id. This is not a case
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`where a party’s use of footnotes was so excessive as to make it difficult for us or other parties to
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`follow. See O’Connor v. Ford Motor Co., Case No. 19-cv-5045, 2021 WL 4866353, at *2 n.1
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`(difficult to follow arguments where opening brief contained 83 footnotes and reply contained
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`113 footnotes). Therefore, we do not find it improper to consider Kellogg’s argument in this
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`instance. In the future, however, both parties should raise substantive arguments in the body of
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`their briefs. See Leonardo v. Health Care Serv. Corp., No. 09 C 1588, 2010 WL 317520, at *4
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`n.1 (N.D. Ill. Jan. 20, 2010) (“[T]he Court is not opposed to the use of footnotes in principle.
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`However, in the future, the Court encourages the parties to avoid gratuitous misuse of an
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`instrument generally reserved for tangential details.”). Accordingly, Chiappetta’s Magnuson-
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`Moss Warranty Act claim is also dismissed.
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`
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`III. Negligent Misrepresentation
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`
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`Chiappetta asserts that Kellogg should be liable for negligent misrepresentation because
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`Kellogg “misrepresented the substantive, quality, compositional, nutritional, sensory, and/or
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`organoleptic attributes of the Product” and “knew or should have known” that its marketing of
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`the Product was “false or misleading.” (Compl. ¶¶ 81, 82.) Chiappetta claims that had she and
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`other putative class members known the truth, they “would not have purchased the Product or
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`paid as much,” and, as a result, they “suffer[ed] damages.” (Id. ¶ 86.)
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`
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`Kellogg asserts that Chiappetta’s claim is barred by the economic loss doctrine. (Memo
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`at 17–18.) The economic loss doctrine in Illinois—also known as the “Moorman doctrine”—was
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`set forth by the Illinois Supreme Court in Moorman Manufacturing Co. v. National Tank Co., 91
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`Ill. 2d 69, 88, 435 N.E.2d 443, 451–52 (1982). This doctrine “‘denies a remedy in tort to a party
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`whose complaint is rooted in disappointed contractual or commercial expectations.’” Manley v.
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`Hain Celestial Grp., Inc., 417 F. Supp. 3d 1114, 1120 (N.D. Ill. 2019) (quoting Sienna Ct.
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`Condo. Assoc. v. Champion Aluminum Corp., 2018 IL 122022, ¶ 21, 129 N.E.3d 1112, 1119
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`(2018)).
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`
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`Chiappetta does not dispute that she suffered an economic loss rooted in disappointed
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`contractual or commercial expectations; instead, she argues that her claim satisfies an exception
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`to the economic loss doctrine. (Opposition at 19.) Specifically, a plaintiff who suffers purely
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`economic losses may maintain a claim for negligent misrepresentation against “one who is in the
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`business of supplying information for the guidance of others in their business transactions.” See
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`Moorman, 91 Ill.2d at 89, 435 N.E.2d at 452. Citing Congregation of the Passion, Holy Cross
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`Province v. Touche Ross & Co., 159 Ill. 2d 137, 163, 636 N.E.2d 503, 515 (1994), Chiappetta
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`contends that “as one of the largest food manufacturers in the world, and a pioneer of breakfast
`
`
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`foods, with special knowledge and experience, [Kellogg] had a non-delegable duty, outside of
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`the contract to provide non-deceptive information, that it breached.” (Opposition at 19 (internal
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`quotation marks and citations omitted).) Chiappetta’s position is unsupported by the authority
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`she cites, however. Congregation of the Passion concerned services offered by skilled
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`professional accountants, 159 Ill. 2d at 142, 636 N.E.2d at 505, and Kellogg is not a learned
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`intermediary (like an accountant) offering professional advice to its customers. Rather, Kellogg
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`“is one of the largest food manufacturers in the world.” (Compl. ¶ 54.) Congregation of the
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`Passion is inapposite.
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`
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`The more relevant authority is Manley. In that case, the court considered whether a
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`consumer could maintain a claim for negligent misrepresentation against a sunscreen
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`manufacturer where the consumer alleged that she wanted a refund for sunscreen that did not
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`perform as she expected. 417 F. Supp. 3d at 1120. The court concluded that because the
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`consumer sought relief for disappointed commercial expectations, her claim for negligent
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`misrepresentation was barred by the Moorman doctrine. Id. at 1120–21. The court also rejected
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`the notion that consumer’s claim qualified for an exception to that doctrine, observing, among
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`other things, that the sunscreen manufacturer did not become “one who is in the business of
`
`supplying information for the guidance of others in their business transactions” by virtue of
`
`providing “information ancillary to the sale of a product” only. Id. (internal quotation marks
`
`and citations omitted).
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`
`
`Kellogg may have provided information to consumers that was ancillary to the sale of the
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`Product, but that does not mean it “is in the business of supplying information for the guidance
`
`of others in their business transactions.” Id.; see also First Midwest Bank, N.A. v. Stewart Title
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`Guar. Co., 218 Ill. 2d 326, 339, 843 N.E.2d 327, 334–35 (2006) (exception to economic loss
`
`
`
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`doctrine is inapplicable where “the negligent misrepresentation is contained within information
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`which is incidental to a tangible product”). Chiappetta has not pled sufficient facts to sustain her
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`claim for negligent misrepresentation; therefore, that claim is dismissed.
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`IV.
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`Fraud
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`
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`Chiappetta challenges the same conduct in her fraud claim as in her other claims, adding
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`that Kellogg’s “fraudulent intent is evinced by its failure to accurately identify the Product on the
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`front label, when it knew its statements were neither true nor accurate . . . .” (Compl. ¶¶ 96, 97.)
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`To state a claim for common-law fraud, a plaintiff must plead: “‘(1) a false statement of material
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`fact; (2) defendant’s knowledge that the statement was false; (3) defendant’s intent that the
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`statement induce the plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and