Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 1 of 16 PageID #:143
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
`
`No. 21 CV 5516
`
`Judge Manish S. Shah
`
`
`
`KAYLA CERRETTI,
`
`
`Plaintiff,
`
`
`v.
`
`
`WHOLE FOODS MARKET GROUP, INC.,
`
`
`Defendant.
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`
`Defendant Whole Foods Market Group, Inc. manufactures and markets
`
`organic chocolate ice cream bars. Plaintiff Kayla Cerretti bought some of those bars,
`
`expecting the coating on the ice cream to be exclusively chocolate. Cerretti alleges
`
`that Whole Foods deceived her because the chocolate coating contained more non-
`
`chocolate ingredients than actual chocolate. Cerretti wants to represent a class of
`
`consumers and brings claims for violation of the Illinois Consumer Fraud and
`
`Deceptive Business Practices Act, breach of express and implied warranties,
`
`negligent misrepresentation, fraud, and unjust enrichment. Whole Foods moves to
`
`dismiss under Rule 12(b)(6). For the reasons discussed below, the motion is granted.
`
`I.
`
`
`
`Legal Standards
`
`To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a
`
`claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). The complaint must
`
`contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
`
`plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 2 of 16 PageID #:144
`
`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss, a court
`
`must construe all factual allegations as true and draw all reasonable inferences in
`
`the plaintiff’s favor. Sloan v. Am. Brain Tumor Ass’n, 901 F.3d 891, 893 (7th Cir.
`
`2018) (citing Deppe v. NCAA, 893 F.3d 498, 499 (7th Cir. 2018)).
`
`II. Background
`
`Whole Foods sold “Organic Chocolate Ice Cream Bars” under its 365 brand. [1]
`
`¶ 1.1 The front of the product’s packaging described the bars as “Organic Vanilla Ice
`
`Cream Dipped in Organic Chocolate,” and showed the dessert surrounded by chunks
`
`of chocolate:
`
`
`1 Bracketed numbers refer to entries on the district court docket. Page numbers are taken
`from the CM/ECF header placed at the top of filings. The facts are taken from the complaint.
`[1].
`
`
`
`2
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 3 of 16 PageID #:145
`
`Id. A side panel on the box said that “Our Organic Ice Cream Bars are made the old-
`
`fashioned way with the finest organic ingredients. We start with fresh cream and
`
`cane sugar, then dunk our rich ice cream in chocolate for a smooth, thick shell.
`
`Indulge in the pure decadence of our organic ice cream bars.” Id. ¶ 2. Whole Foods
`
`was known for organic and high-quality grocery products, and the company said that
`
`it sought out the “finest natural and organic foods” and maintained “the strictest
`
`quality standards.” Id. ¶¶ 90–93.
`
`Kayla Cerretti bought Whole Foods ice cream bars, expecting that the coating
`
`on the ice cream would only be chocolate. [1] ¶¶ 100–05, 126. Cerretti believed that if
`
`the ice cream’s coating included any chocolate substitutes, they would not exceed the
`
`amount of actual chocolate ingredients like chocolate liquor and cocoa butter. Id.
`
`¶¶ 105, 126. According to the product’s ingredients list, however, the chocolate in
`
`Whole Foods’s ice cream bars was more palm kernel oil than it was organic chocolate
`
`liquor or organic cocoa butter by weight, although it did include those ingredients. Id.
`
`¶¶ 52–53. Relying on Whole Foods’s representations, Cerretti paid more for Whole
`
`Foods’s ice cream bars than she would have if she had known what was really in the
`
`chocolate. Id. ¶¶ 75, 106–08. The ice cream bars were worth less than they appeared
`
`and Whole Foods knew that its product wasn’t consistent with the company’s
`
`advertising. Id. ¶¶ 73–77, 108, 143.
`
`Dictionaries define chocolate as a food prepared from cacao beans, often
`
`combined with other ingredients, including sweeteners. See [1] ¶¶ 4–9. The Food and
`
`Drug Administration defines “milk chocolate” as a food made by “mixing and grinding
`
`3
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 4 of 16 PageID #:146
`
`chocolate liquor with one or more ... optional dairy ingredients,” along with optional
`
`sweeteners or other ingredients. Id. ¶ 10; 21 C.F.R. § 163.130(a). All definitions of
`
`chocolate exclude fats from sources other than cacao ingredients. [1] ¶ 12. Cacao
`
`ingredients, which are natural rather than synthetic, cost more and are more filling
`
`than vegetable oils. [1] ¶¶ 32–35, 45–48. Replacing cocoa butter in chocolate with
`
`vegetable oils degrades the flavor, creating a “waxy and oily mouthfeel” and an
`
`aftertaste as opposed to the “creamy and smooth” taste of chocolate. Id. ¶¶ 37–39.
`
`The adulteration of chocolate—by including starches and vegetable fats—has
`
`a long history. [1] ¶¶ 18–19. When large confectionary companies sought to redefine
`
`chocolate by replacing cacao ingredients, thousands of Americans responded
`
`critically, and industry figures spoke out against the redefinition. Id. ¶¶ 20–28. In a
`
`consumer survey of 400 Americans who saw a product described as coated or dipped
`
`in chocolate pictured with chocolate ingredients, sixty percent of respondents
`
`expected that they would not be provided lower-quality chocolate substitutes. Id.
`
`¶¶ 29–30.
`
`III. Analysis
`
`A.
`
`Statutory and Common-Law Fraud
`
`The Illinois Consumer Fraud Act prohibits “unfair or deceptive acts or
`
`practices ... in the conduct of any trade or commerce.” 815 ILCS 505/2.2 Deceptive or
`
`
`2 The court has subject-matter jurisdiction under the Class Action Fairness Act because
`plaintiff is a citizen of Illinois, Whole Foods (a corporation) is a citizen of Delaware and Texas,
`the amount in controversy exceeds $5 million, and plaintiff seeks to represent a class in
`excess of 100 members. [1] ¶¶ 79–81, 112; 28 U.S.C. § 1332(d). Federal courts sitting in
`diversity apply the substantive law of the forum state, so Illinois law applies. See Piltch v.
`4
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 5 of 16 PageID #:147
`
`unfair practices include any “misrepresentation or the concealment, suppression or
`
`omission of any material fact.” Id. To state a claim under the Act, Cerretti must show
`
`“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) (citing Siegel v. Shell Oil Co., 612 F.3d 932, 934–35 (7th Cir.
`
`2010)). The elements of a common-law fraudulent misrepresentation claim largely
`
`overlap with a deceptive-practices claim under the ICFA,3 and include “a false
`
`statement of material fact.” Newman v. Metro. Life Ins. Co., 885 F.3d 992, 1003 (7th
`
`Cir. 2018) (quoting Doe v. Dilling, 228 Ill.2d 324, 342–43 (2008)). Cerretti must plead
`
`both her deceptive-practices statutory and common-law fraud claims with the detail
`
`required by Rule 9(b), including the “who, what, when, where, and how” of the fraud.
`
`Vanzant, 934 F.3d at 736 (citing Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d
`
`732, 737 (7th Cir. 2014)); Newman, 885 F.3d at 998.
`
`At issue here is the element of a deceptive act or misrepresentation. See [11-1]
`
`at 9–13.4 Whole Foods called its product “Organic Chocolate Ice Cream Bars,”
`
`
`Ford Motor Co., 778 F.3d 628, 631–32 (7th Cir. 2015) (citing Erie R.R. Co. v. Tompkins, 304
`U.S. 64 (1938)).
`3 Cerretti does not argue that Whole Foods’s marketing was an unfair practice, just that it
`was deceptive. See [15] at 9–19.
`4 By claiming that Whole Foods’s knew its products were misrepresented, [1] ¶ 143, and
`otherwise detailing the circumstances of the alleged fraud, Cerretti adequately alleged the
`intent element for her common-law fraud claim. See Newman v. Metro. Life Ins. Co., 885 F.3d
`992, 1003 (7th Cir. 2018) (quoting Doe v. Dilling, 228 Ill.2d 324, 342–43 (2008)). Under Rule
`9, intent can be alleged generally, and can be inferred from circumstances. Fed. R. Civ. P. 9;
`Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 569 (7th Cir. 2012).
`
`5
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 6 of 16 PageID #:148
`
`described the bars as “Organic Vanilla Ice Cream Dipped in Organic Chocolate,”
`
`decadent, and smooth, and the bars were pictured amidst chunks of chocolate. See [1]
`
`¶¶ 1–2, 49–51. Cerretti claims that these representations were misleading because
`
`(1) the coating on the ice cream “has less chocolate than consumers expect,” (2) the
`
`chocolate “contains more chocolate substitutes than cacao ingredients,” and (3) the
`
`coating wasn’t only chocolate. See id. ¶¶ 3, 52, 59.
`
`To show that Whole Foods misrepresented its product, Cerretti needs to allege
`
`that the product packaging was “likely to deceive reasonable consumers,” and that “a
`
`significant portion of the general consuming public or of targeted consumers, acting
`
`reasonably in the circumstances, could be misled.” Bell v. Publix Super Markets, Inc.,
`
`982 F.3d 468, 474–75 (7th Cir. 2020) (quoting Beardsall v. CVS Pharmacy, Inc., 953
`
`F.3d 969, 972–73 (7th Cir. 2020)). Where a plaintiff alleges “unreasonable or fanciful
`
`interpretations” of labels or advertising, dismissal on the pleadings can be justified.
`
`Id. at 477 (collecting cases). The context of the entire packaging of the ice cream bars
`
`along with “all the information available to consumers and the context in which that
`
`information is provided and used” is relevant, but an accurate list of ingredients does
`
`not necessarily mean that a front label isn’t deceptive. Id. at 476–78 (citing Davis v.
`
`G.N. Mortg. Corp., 396 F.3d 869, 884 (7th Cir. 2005)).
`
`Cerretti was misled by Whole Foods’s packaging, but her interpretation of the
`
`labeling on the ice cream bars was unreasonable. Whole Foods called its product
`
`“chocolate” and showed the dessert amidst chunks of chocolate. [1] ¶¶ 1–2. As
`
`plaintiff acknowledged, the product actually contained chocolate. See id. ¶¶ 52–56.
`
`6
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 7 of 16 PageID #:149
`
`Whole Foods never advertised its product as exclusively or 100% chocolate. See id.
`
`¶¶ 1–2. Defendant called the bars smooth and decadent, id. ¶¶ 2, 50–51, but those
`
`representations were about the product’s qualities, not its ingredients. The product
`
`contained an accurate ingredients list. See id. ¶ 52.5 With that context, Whole Foods’s
`
`packaging wasn’t likely to deceive a significant portion of reasonable consumers. See
`
`Chiappetta v. Kellogg Sales Co., No. 21-CV-3545, 2022 WL 602505, at *4 (N.D. Ill.
`
`Mar. 1, 2022) (the word strawberry, a picture of a half a strawberry, and a pastry
`
`oozing red filling weren’t false representations that a product’s filling contained a
`
`certain number of strawberries); Mitchell v. Whole Foods Mkt. Grp., Inc., 20 Civ. 8496
`
`(ER), 2022 WL 657044, at *2–8 n.14 (S.D.N.Y. Mar. 4, 2022) (dismissing consumer
`
`fraud claims based on allegations about the presence of vegetable oils in products
`
`advertised as “chocolate”); Bell, 982 F.3d at 478 (citing Red v. Kraft Foods, Inc., 2012
`
`WL 5504011, at *3 (C.D. Cal. Oct. 25, 2012) (“‘Made with Real Vegetables’ label on
`
`box of crackers could not reasonably mean crackers were composed of primarily fresh
`
`vegetables.”)).
`
`Cerretti wants to ground her interpretation of Whole Foods’s representations
`
`on dictionary definitions, consumer preferences, survey results, and federal
`
`regulations. See [15] at 9–19. None of plaintiffs’ allegations shows that Whole Foods
`
`was lying, however. Definitions of chocolate universally exclude fats from sources
`
`
`5 While an accurate ingredients list doesn’t immunize Whole Foods from claims that the rest
`of its packaging was deceptive, the ingredients list is relevant as a piece of information
`available to consumers. See Bell v. Publix Super Markets, Inc., 982 F.3d 468, 474–77 (7th Cir.
`2020) (citations omitted).
`
`7
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 8 of 16 PageID #:150
`
`other than cacao ingredients, [1] ¶¶ 4–7, 10–12, but plaintiff hasn’t alleged that
`
`consumers were aware of those definitions or would expect a chocolate coating on ice
`
`cream to conform precisely to those definitions.6 That consumers reacted negatively
`
`to a proposed regulatory redefinition of chocolate, see id. ¶¶ 20–28, doesn’t show that
`
`chocolate buyers understand all products labelled with the word “chocolate” to be
`
`made only (or mostly) from cacao ingredients. There’s an allegation that putting
`
`vegetable oils into chocolate creates unpleasant mouthfeel and an aftertaste, id. ¶ 38,
`
`but Cerretti doesn’t allege that Whole Foods’s ice cream bars had those problems or
`
`that the packaging deceptively represented the actual mouthfeel or taste.
`
`Plaintiff’s survey results don’t support her theory of misrepresentation, either.
`
`Sixty percent of respondents in a 400-person survey expected that “they [would] not
`
`be provided lower quality chocolate substitutes” when viewing a product that was
`
`coated or dipped in chocolate alongside pictures of chocolate ingredients. [1] ¶¶ 29–
`
`30. Whole Foods’s ice cream bars included chocolate, see id. ¶¶ 52–54, and the
`
`complaint doesn’t allege that survey respondents expected that the dipped or coated
`
`products at issue would only contain cacao ingredients, or what “lower quality
`
`chocolate substitutes” meant. See id. ¶ 30; see also Puri v. Costco Wholesale Corp.,
`
`Case No. 5:21-cv-01202-EJD, 2021 WL 60000078, at *7 (N.D. Cal. Dec. 20, 2021)
`
`(discussing a similar survey); c.f. Bell v. Publix Super Markets, Inc., 982 F.3d 468,
`
`
`6 The definitions of chocolate in the complaint do not specify that chocolate is only or primarily
`made from cacao ingredients. See [1] ¶¶ 4–7, 10; see also Mitchell v. Whole Foods Mkt. Grp.,
`Inc., 20 Civ. 8496 (ER), 2022 WL 657044, at *8 n.14 (S.D.N.Y. Mar. 4, 2022) (citing Puri v.
`Costco Wholesale Corp., Case No. 5:21-cv-01202-EJD, 2021 WL 60000078, at *6 (N.D. Cal.
`Dec. 20, 2021)) (finding similar definitions “inapposite, because they do not require that a
`food be made exclusively or primarily from cacao bean ingredients to be called ‘chocolate’”).
`
`8
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 9 of 16 PageID #:151
`
`480–83 (7th Cir. 2020) (survey results showing that consumers understood the
`
`precise representation at issue—“100% Grated Parmesan Cheese”—meant that a
`
`product contained only cheese, combined with other allegations, were sufficient to
`
`plead that a significant portion of consumers read an advertisement that way).
`
`Cerretti doesn’t want to enforce federal regulations against Whole Foods, but
`
`argues that those regulations support a finding of misrepresentation. See [15] at 15–
`
`19.7 Because Whole Foods used the word “chocolate,” Cerretti argues, reasonable
`
`consumers were likely to rely on the Food and Drug Administration’s definition of
`
`milk chocolate, which doesn’t include vegetable oils. See id. at 18 (citing 21 C.F.R.
`
`§ 163.130(a)); [1] ¶ 10. Even if Cerretti is right about the correct FDA definition for
`
`defendant’s product,8 however, “average consumers are not likely to be aware of the
`
`nuances of the FDA’s regulations” of a particular food. Bell, 982 F.3d at 482. In other
`
`words, that the FDA’s definition of milk chocolate excluded vegetable oils doesn’t
`
`make it reasonable to interpret Whole Foods’s packaging to mean that the chocolate
`
`coating on the ice cream bars was made up of only (or mostly) cacao ingredients.9
`
`
`7 Cerretti couldn’t enforce the FDA’s regulations if she wanted to. See 21 U.S.C. § 337(a);
`Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 645 (7th Cir. 2019) (citing
`Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011) and 21 U.S.C. § 343-1)) (noting
`that the Federal Food, Drug, and Cosmetic Act does not create a private right of action but
`allows plaintiffs to seek relief pursuant to state-law causes of action, so far as those claims
`are not preempted by the FDCA’s express preemption clause).
`8 Whole Foods argues that the FDA’s definition of milk chocolate didn’t apply to its product,
`which was actually an ice cream bar, not milk chocolate. [11-1] at 15. The parties also dispute
`whether chocolate is a food or a flavor. See [15] at 13; [11-1] at 11–13. While it’s reasonable
`to infer that plaintiff is right and chocolate is a food, that doesn’t change the analysis, which
`centers on Whole Foods’s representations and consumer understanding of those
`representations. See Bell v. Publix Super Markets, Inc., 982 F.3d 468, 474–75 (7th Cir. 2020).
`9 I ignore Whole Foods’s untimely arguments for dismissal based on preemption. See [11-1]
`at 16–17. Preemption is an affirmative defense appropriately addressed through a Rule 12(c)
`9
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 10 of 16 PageID #:152
`
`Whole Foods called its ice cream bars chocolate, and the bars included
`
`chocolate. [1] ¶¶ 1–2, 52–54. Defendant didn’t say anything about the proportion of
`
`cacao ingredients to other ingredients in the chocolate coating on the ice cream bars,
`
`and Cerretti hasn’t shown that a significant portion of reasonable consumers would
`
`read the word “chocolate” (or the other representations on the product’s packaging)
`
`the way she did.
`
`The claims for violation of the ICFA and fraudulent misrepresentation are
`
`dismissed.
`
`B.
`
`Breach of Warranties
`
`Cerretti brings claims for breach of implied and express warranties under
`
`Illinois law and under the Magnuson–Moss Warranty Act. [1] ¶¶ 128–134. Under
`
`Illinois law, a buyer who discovers a breach of warranty must notify the seller “or be
`
`barred from any remedy.” 810 ILCS 5/2-607(3)(a). Buyers are required to give pre-
`
`suit notice to encourage settlement and allow sellers to cure defects and minimize
`
`damages. See Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482, 495 (1996); U.C.C.
`
`§ 2–607 cmt. 4; Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill.App.3d
`
`935, 939 (3d Dist. 1998) (citations omitted). If plaintiff’s notice is insufficient under
`
`Illinois law, it also fails under federal law, because the Magnuson–Moss Warranty
`
`Act incorporates state-law notice requirements. See Perona v. Volkswagen of Am.,
`
`Inc., 292 Ill.App.3d 59, 65 (1st Dist. 1997) (citing Walsh v. Ford Motor Co., 807 F.2d
`
`
`motion for judgment on the pleadings. See Bausch v. Stryker Corp., 630 F.3d 546, 561–62 (7th
`Cir. 2010) (citations omitted).
`
`10
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 11 of 16 PageID #:153
`
`1000, 1012 (D.C. Cir. 1986)); In re Rust-Oleum Restore Mktg., Sales Pracs. & Prod.
`
`Liab. Litig., 155 F.Supp.3d 772, 799 (N.D. Ill. 2016) (citations omitted).
`
`The sufficiency of notice is generally a question of fact. See Datil v. C.R. Bard,
`
`Inc., No. 19 C 8274, 2020 WL 5810402, at *6 (N.D. Ill. Sept. 30, 2020) (citing Malawy
`
`v. Richards Mfg. Co., 150 Ill.App.3d 549, 561 (5th Dist. 1986)); Halo Branded Sols.,
`
`Inc. v. RTB W., Inc., Case No: 15 C 50152, 2016 WL 1161340, at *4 (N.D. Ill. Mar. 24,
`
`2016) (quoting Maldonado, 296 Ill.App.3d at 940). But a court may decide whether
`
`notice was sufficient as a matter of law when the only inference to be drawn is that
`
`notice was unreasonable. Datil, 2020 WL 5810402, at *6 (quoting Maldonado, 296
`
`Ill.App.3d at 940); Baldwin v. Star Scientific, Inc., No. 14 C 588, 2016 WL 397290, at
`
`*10 (N.D. Ill. Feb. 2, 2016) (quoting Al Maha Trading & Contracting Holding Co. v.
`
`W.S. Darley & Co., 936 F.Supp.2d 933, 941 (N.D. Ill. 2013)).
`
`
`
`Cerretti argues that she notified Whole Foods of the problems with their
`
`product by filing this lawsuit. [15] at 19. But when there’s no allegation that a
`
`consumer suffered a personal injury because of a product’s defect, filing a complaint
`
`against a seller isn’t adequate notice under Illinois law. See Connick, 174 Ill.2d at 495
`
`(“Only a consumer plaintiff who suffers a personal injury may satisfy the section 2–
`
`607 notice requirement by filing a complaint stating a breach of warranty action
`
`against the seller.”); Maldonado, 296 Ill.App.3d at 940 (citation omitted).10
`
`
`10 Plaintiff relies on Bridgestone/Firestone, but that court’s interpretation of § 2–607(3)(a) of
`the Uniform Commercial Code isn’t controlling. See In re Bridgestone/Firestone, Inc. Tires
`Prod. Liab. Litig., 155 F.Supp.2d 1069, 1110 (S.D. Ind. 2001) (finding that filing a lawsuit
`can constitute adequate notice of a breach in some circumstances). Plaintiff filed suit in an
`Illinois federal court, which means that Illinois’s notice requirements apply. See Piltch v.
`11
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 12 of 16 PageID #:154
`
`
`
`Alternatively, Cerretti contends that she didn’t need to give notice to defendant
`
`because Whole Foods had actual knowledge of the alleged defect. [15] at 19. If a
`
`manufacturer is aware of the “trouble with the particular product purchased by a
`
`particular buyer,” that actual knowledge satisfies Illinois’s notice requirement.
`
`Connick, 174 Ill.2d at 493–94 (citing Malawy v. Richards Mfg. Co., 150 Ill.App.3d 549
`
`(5th Dist. 1986)). This exception to the notice requirement centers on manufacturer
`
`knowledge of a plaintiff’s claim, rather than the facts of the alleged breach. Connick,
`
`174 Ill.2d at 493–494 (quoting American Mfg. Co. v. United States Chipping Board
`
`Emergency Fleet Corp., 7 F.2d 565, 566 (2d Cir. 1925)); see O’Connor v. Ford Motor
`
`Co., 477 F.Supp.3d 705, 715–16 (N.D. Ill. 2020); Anthony v. Country Life Mfg., LLC.,
`
`70 Fed. App’x 379, 384 (7th Cir. 2003).
`
`
`
`There’s an allegation in the complaint that “defendant received notice and
`
`should have been aware of [the issues with its products] due to complaints by
`
`regulators, competitors, and consumers.” [1] ¶ 132. But those complaints (made by
`
`people other than Cerretti) at best put Whole Foods on notice of problems with the
`
`product line, and didn’t alert the company to plaintiff’s claim. That’s not the kind of
`
`knowledge that can excuse pre-suit notice under Illinois law. See Connick, 174 Ill.2d
`
`at 493–94; O’Connor, 477 F.Supp.3d at 715–17. Whole Foods didn’t admit that the
`
`company knew its products were defective and disputes that it made any false
`
`statements about the ice cream bars; it has not conceded that it had knowledge of
`
`
`Ford Motor Co., 778 F.3d 628, 631–32 (7th Cir. 2015) (citing Erie R.R. Co. v. Tompkins, 304
`U.S. 64 (1938)); Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482, 494–95 (1996).
`
`12
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 13 of 16 PageID #:155
`
`Cerretti’s claim. [11-1] at 9–17; c.f. Abramov v. Home Depot, Inc., Case No. 17-cv-
`
`1860, 2018 WL 1252105, at *4 (N.D. Ill. Mar. 12, 2018) (the exception to the notice
`
`requirement applied when a defendant admitted “knowledge of the alleged defect”
`
`during the course of litigation).
`
`
`
`The warranty claims are dismissed for lack of notice.11
`
`C. Negligent Misrepresentation
`
`To state a claim for negligent misrepresentation, a plaintiff must allege that
`
`(1) the defendant had a duty to the plaintiff to communicate accurate information; (2)
`
`the defendant made a false statement of material fact to the plaintiff; (3) the
`
`defendant negligently failed to ascertain the truth of that statement; (4) the
`
`defendant made the statement intending to induce the plaintiff to act; (5) the plaintiff
`
`acted in reliance on the truth of that statement; and (6) the plaintiff suffered damage
`
`due to that reliance. First Midwest Bank, N.A. v. Stewart Title Guar. Co., 218 Ill.2d
`
`326, 334–35 (2006) (citations omitted); Kemper/Prime Indus. Partners v. Montgomery
`
`Watson Americas, Inc., 487 F.3d 1061, 1064 (7th Cir. 2007) (quoting Bd. of Educ. v.
`
`A, C & S, Inc., 131 Ill.2d 428 (1989)).
`
`
`11 To state a claim for breach of the implied warranty of merchantability, Cerretti needs to
`allege “(1) a sale of goods (2) by a merchant of those goods, and (3) the goods were not of
`merchantable quality.” Brandt v. Boston Sci. Corp., 204 Ill.2d 640, 645 (2003); 810 ILCS 5/2-
`314. To be merchantable, the goods must be fit for the ordinary purposes for which such goods
`are used. 810 ILCS 5/2-314(2)(c); see Baldwin v. Star Sci., Inc., 78 F.Supp.3d 724, 741–42
`(N.D. Ill. 2015). While Cerretti alleges that Whole Foods’s ice cream bars were defective
`because they included chocolate substitutes, see [1] ¶¶ 3, 52, she hasn’t alleged any ordinary
`purposes for the bars, her own purpose for the product, or how defendant’s ice cream bars
`were unfit for their ordinary purposes. See id. ¶¶ 102, 128–34. Cerretti does not argue, for
`example, that the ice cream bars were inedible. Plaintiff hasn’t alleged that the defendant’s
`goods weren’t of merchantable quality. See 810 ILCS 5/2-314.
`
`13
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 14 of 16 PageID #:156
`
`As discussed above, Cerretti hasn’t shown that Whole Foods made a false
`
`statement to her. See supra 4–10. Plaintiff’s negligent misrepresentation claim has
`
`another problem, too. The Moorman doctrine is Illinois’s economic-loss rule, and it
`
`provides that “[a] plaintiff cannot recover for solely economic loss under the tort
`
`theories of strict liability, negligence and innocent misrepresentation.” Moorman
`
`Mfg. Co. v. Nat’l Tank Co., 91 Ill.2d 69, 91 (1982). To recover for economic loss, a
`
`plaintiff must look to contract law instead. Id. at 86, 92. Economic loss includes “the
`
`diminution in the value of the product because it is inferior in quality and does not
`
`work for the general purposes for which it was manufactured and sold.” Id. at 82
`
`(citations omitted).
`
`The losses Cerretti alleges—the higher prices she paid because of Whole
`
`Foods’s representations, [1] ¶¶ 106–08; id. at 19—are economic. See Moorman, 91
`
`Ill.2d at 82. Cerretti argues that Whole Foods had an extra-contractual duty to
`
`provide honest information to her because the company vetted its products for quality
`
`and honest labeling and had special knowledge and experience. [15] at 21. Illinois law
`
`recognizes an exception to the economic loss rule that applies to professional
`
`malpractice claims when a defendant’s work product is intangible. See Congregation
`
`of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill.2d 137, 156–65
`
`(1994) (holding that accountants owed an extracontractual duty of reasonable
`
`professional competence); Fireman’s Fund. Ins. Co. v. SEC Donohue, Inc., 176 Ill.2d
`
`160, 168–69 (1997) (declining to extend the professional malpractice exception to
`
`architects, because architectural plans and drawings were “incidental to a tangible
`
`14
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 15 of 16 PageID #:157
`
`product”); In re Michaels Stores Pin Pad Litig., 830 F.Supp.2d 518, 530 (N.D. Ill. 2011)
`
`(finding that the professional malpractice exception didn’t apply to retailers selling
`
`products to plaintiffs). In this case, Whole Foods sold tangible products—ice cream
`
`bars—to Cerretti, the characteristics of those products were readily ascertainable,
`
`and the company owed no extracontractual duty. See Congregation, 159 Ill.2d at 163;
`
`Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 567–68 (7th Cir. 2012).
`
`Plaintiff hasn’t shown that Whole Foods made a false statement of material
`
`fact or explained why she should be able to recover against the company in tort rather
`
`than contract for her economic losses. See Kemper/Prime, 487 F.3d at 1064;
`
`Moorman, 91 Ill.2d at 90–91. The negligent misrepresentation claim is dismissed.
`
`D. Unjust Enrichment
`
`Unjust enrichment isn’t a separate cause of action under Illinois law. Vanzant
`
`v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 739–40 (7th Cir. 2019) (quoting Pirelli
`
`Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 447
`
`(7th Cir. 2011)). Instead, “if an unjust enrichment claim rests on the same improper
`
`conduct alleged in another claim, then the unjust enrichment claim will be tied to
`
`this related claim” and will “stand or fall with the related claim.” Cleary v. Philip
`
`Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011) (citation omitted). Because Cerretti’s
`
`other claims have all been dismissed, her request for relief based on unjust
`
`enrichment fails as well. See id.; Vanzant, 934 F.3d at 740.12
`
`
`12 So too with Cerretti’s request for injunctive relief. See [1] at 19. Injunctive relief is a
`remedy, not a cause of action. See Knutson v. Vill. of Lakemoor, 932 F.3d 572, 576 n.4 (7th
`Cir. 2019) (citing Guardians Ass’n v. Civil Serv. Com’n, 463 U.S. 582, 595 (1983)). Because
`15
`
`
`

`

`Case: 1:21-cv-05516 Document #: 18 Filed: 04/08/22 Page 16 of 16 PageID #:158
`
`IV. Conclusion
`
`Whole Foods’s motion to dismiss, [11], is granted. The claim for negligent
`
`misrepresentation is dismissed with prejudice.13 Plaintiff’s statutory and common-
`
`law fraud claims, the warranty claims, and her requests for unjust enrichment and
`
`injunctive relief are dismissed without prejudice. See Runnion ex rel. Runnion v. Girl
`
`Scouts of Greater Chicago and Northwest Indiana, 786 F.3d 510, 519–20 (7th Cir.
`
`2015). Plaintiff has leave to file an amended complaint by April 22, 2022. If an
`
`amended complaint is not filed, this dismissal will convert to a dismissal with
`
`prejudice and final judgment will be entered.
`
`ENTER:
`
`Date:
`
`April 8, 2022
`
`___________________________
`Manish S. Shah
`United States District Judge
`
`Cerretti has no claims remaining for which she can seek injunctive relief as a remedy, her
`request is dismissed.
`13 Amendment of Cerretti’s claim for negligent misrepresentation would be futile. That claim
`depends entirely on the flawed legal theory that a retailer owes an extra-contractual duty to
`a consumer. See [1] ¶¶ 135–140; [15] at 21. No additional facts or arguments will cure this
`legal defect, and so this claim is dismissed with prejudice. See McCoy v. Iberdrola Renewables,
`Inc., 760 F.3d 674, 685 (7th Cir. 2014) (alteration in original) (citing Foman v. Davis, 371
`U.S. 178, 182 (1962)) (“While the federal courts ‘should freely give leave [to amend a pleading]
`when justice so requires,’ Rule 15(a)(2), a district court may deny leave for a variety of
`reasons, including undue delay and futility.”).
`
`16
`
`