Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 1 of 10 PageID #:128
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`)
`)
`)
`)
`)
`)
`) No. 22 C 2
`
`)
`
`
`Leroy Jacobs, individually and
`on behalf of all others
`similarly situated
`
` Plaintiff,
`
`
`v.
`
`
`Whole Foods Market Group,
`Inc.,
`
` Defendant.
`
`)))
`
`
`)
`
`
`Memorandum Opinion & Order
`In this action, plaintiff Leroy Jacobs alleges on behalf of
`
`himself and putative Illinois and multistate classes that Whole
`Foods Market (“WFM”) violates the consumer protection statutes and
`common law of Illinois and fifteen other states by selling its
`private label “Long Grain & Wild Rice – Rice Pilaf,” in boxes that
`are larger than necessary for the amount of product they contain.
`Plaintiff claims that notwithstanding WFM’s commitment to reducing
`waste in food packaging, it intentionally misleads consumers about
`the amount of product they are purchasing by sizing the boxes to
`fit store shelves, rather than to fit the volume of product they
`contain. This practice, plaintiff claims, is designed to deceive
`consumers, as it “makes the shelves look full, which appeals to
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`)
`)
`)
`)
`)
`)
`) No. 22 C 2
`
`)
`
`
`Leroy Jacobs, individually and
`on behalf of all others
`similarly situated
`
` Plaintiff,
`
`
`v.
`
`
`Whole Foods Market Group,
`Inc.,
`
` Defendant.
`
`)))
`
`
`)
`
`
`Memorandum Opinion & Order
`In this action, plaintiff Leroy Jacobs alleges on behalf of
`
`himself and putative Illinois and multistate classes that Whole
`Foods Market (“WFM”) violates the consumer protection statutes and
`common law of Illinois and fifteen other states by selling its
`private label “Long Grain & Wild Rice – Rice Pilaf,” in boxes that
`are larger than necessary for the amount of product they contain.
`Plaintiff claims that notwithstanding WFM’s commitment to reducing
`waste in food packaging, it intentionally misleads consumers about
`the amount of product they are purchasing by sizing the boxes to
`fit store shelves, rather than to fit the volume of product they
`contain. This practice, plaintiff claims, is designed to deceive
`consumers, as it “makes the shelves look full, which appeals to
`
`
`
`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 2 of 10 PageID #:129
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`consumers and makes them willing to spend more money.” Compl. at
`¶ 50-51.
`As plaintiff acknowledges, federal and state regulations
`recognize that there may be legitimate reasons for food packaging
`to contain empty space (known in the industry as “slack fill”).
`Plaintiff alleges, however, that none of those reasons justify the
`practice he challenges here. The images below illustrate the
`disparity between the box size and the amount of product within:
`
`
`
`
`
`
`Compl. at ¶¶ 19, 21.
`
`Based on this disparity, plaintiff asserts violation of the
`Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”) and
`unidentified consumer protection statutes of Pennsylvania,
`Michigan, Iowa, Rhode Island, Minnesota, Ohio, Georgia, North
`Dakota, Texas, New Mexico, North Carolina, Virginia, New
`Hampshire, South Dakota, and Oklahoma, which plaintiff claims are
`2
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 3 of 10 PageID #:130
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`similar to the ICFA. He also asserts claims for breach of express
`warranty, breach of the implied warranty of merchantability, and
`violation of the Magnusson Moss Warranty Act, 15 U.S.C. §§ 2301.
`Finally, plaintiff claims negligent misrepresentation, fraud, and
`unjust enrichment under the common law of the foregoing states.
`WFM moves to dismiss the complaint in its entirety, offering
`a cascade of reasons plaintiff’s claims fail as a matter of law.
`At the fore is its argument that because the front, back, and side
`panels of each box contain conspicuous and accurate information
`about the weight of the product; instructions for preparation; and
`the serving size and approximate number of servings each box yields
`when prepared, the packaging is not deceptive as a matter of law
`under the statutes plaintiff asserts. Defendant emphasizes that
`plaintiff does not challenge the accuracy or the conspicuousness
`of this information—in fact, he alleges affirmatively that he
`“relied on the words and images on the Product [and] on the
`labeling” when purchasing the product, Compl. at ¶ 99—and that
`this information dispels any uncertainty a reasonable consumer
`might have about the amount of rice pilaf one box yields. Because,
`as explained below, the law supports this argument, plaintiff’s
`consumer deception claims do not withstand defendant’s motion. And
`because plaintiff’s remaining claims either hinge on his flawed
`theory of deception or suffer from separate procedural or
`
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`3
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 4 of 10 PageID #:131
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`substantive shortcomings, I grant defendant’s motion in its
`entirety.
`
`Defendant’s broadest arguments target plaintiff’s class
`claims under the ICFA and other states’ consumer protection
`statutes. Plaintiff does not identify the statutes he relies upon
`for his multistate class claims, but he alleges that they are
`“similar to the ICFA and prohibit the use of unfair or deceptive
`business practices in the conduct of trade or commerce.” Compl. at
`¶ 124. Accordingly, I assume that all of the statutes plaintiff
`asserts require, as the ICFA does, that plaintiff plead and prove
`“that the relevant labels are likely to deceive reasonable
`consumers,” which “requires a probability 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).
`Plaintiff does not dispute that the packaging he challenges
`discloses accurate information about the weight and approximate
`yield of the product as prepared. His theory of consumer deception
`is that he nevertheless “could not and did not reasonably
`understand or expect any of the net weight or serving disclosures
`to translate to an amount of rice meaningfully different from his
`expectation of an amount which would fill up the box.” Resp., ECF
`20, at 2. In plaintiff’s view, Benson v. Fannie May Confections
`Brands, Inc., 944 F.3d 639 (7th Cir. 2019), supports this theory
`
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 5 of 10 PageID #:132
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`of deception because in that case, the court observed 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.” Id. at 647 (quoting Misleading
`Containers; Nonfunctional Slack-Fill, 58 Fed. Reg. 64123-01, 64128
`(Dec. 6, 1993) (codified at 21 C.F.R. pt. 100)). But Benson does
`not support plaintiff’s claims on the facts alleged here.
`Benson involved boxed, ready-to-eat chocolates. As the court
`explained, a consumer might reasonably expect to be able to
`estimate the approximate number of chocolates in a particular box
`based on the box size. See id. at 646. But any reasonable consumer
`surely knows that rice pilaf sold in a box must be cooked in water
`or another liquid prior to consumption, and understands further
`that the cooking process will cause the rice to expand in volume.
`In other words, a reasonable consumer expects the size of the box
`to bear only a loose relationship to the amount of cooked product
`its contents will yield. Accordingly, a shopper uncertain about
`how many boxes of rice pilaf to buy for the family dinner would
`know not to rely on the size of the box and would look for
`additional information of precisely the kind plaintiff admits
`defendant’s rice pilaf box contains: the number of servings each
`box will produce based on a specified serving size. Because that
`information dispels any tendency to mislead that the box size alone
`might create, there is no deception as a matter of law. See Killeen
`
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`5
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 6 of 10 PageID #:133
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`v. McDonald's Corp., 317 F. Supp. 3d 1012, 1013 (N.D. Ill. 2018)
`(“Illinois law is clear that where other information is available
`to dispel that tendency, there is no possibility for
`deception.”)(citing Bober v. Glaxo Wellcome PLC, 246 F.3d 934,
`939-40 (7th Cir. 2001).
`Bell v. Publix Super Markets, Inc., 982 F.3d 468, 476 (7th
`Cir. 2020), is not to the contrary. In Bell, the Seventh Circuit
`observed that “[c]onsumer-protection laws do not impose on average
`consumers an obligation to question the labels they see and to
`parse them as lawyers might for ambiguities.” Id. at 476. The court
`went on to hold that courts cannot presume, as a matter of law,
`that “reasonable consumers will test prominent front-label claims
`by examining the fine print on the back label.” Id. at 477. But
`the instant case does not involve ambiguous labeling whose meaning
`is discernable only by reading the “fine-print.” The only
`“labeling” plaintiff claims to have read was the admittedly
`conspicuous and accurate information disclosing instructions for
`preparation, serving size, and number of servings per box.
`The point is not, as plaintiff suggests, that defendant is
`“‘immune from suit’ just because ‘the package accurately lists the
`product’s net weight and quantity.’” Resp., ECF 20 at 4 (quoting
`Izquierdo v. Mondelēz Int’l Inc., No. 16-cv-04697, 2016 WL 6459832,
`at *7 (S.D.N.Y. Oct. 26, 2016)). The point is that the unambiguous,
`conspicuous, and accurate information specific to the question of
`
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 7 of 10 PageID #:134
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`product yield, coupled with the “net weight and quantity”
`disclosures printed on the box, conclusively dispels any
`reasonable misunderstanding a consumer might have based on box
`size (either alone or in conjunction with defendant’s general
`statements elsewhere about its commitment to environmental
`stewardship and reducing packaging waste, see Compl. at ¶ 8) about
`the amount of rice pilaf she can make with a box of uncooked
`product. On these facts, plaintiff’s theory finds no footing in
`either Benson or Bell.1 Instead, his case more closely resembles
`Buso v. ACH Food Companies, Inc., 445 F. Supp. 3d 1033 (S.D. Cal.
`2020), which asserted consumer fraud claims based on allegedly
`unnecessary slack-fill in boxes of cornbread mix. The court held
`that there was no deception as a matter of law, since “consumers
`are clearly put on notice as to the rough estimate of cornbread
`that can be made from the product contained within the box.” Id.
`at 1038.
`Plaintiff’s common law fraud claim fails for similar reasons.
`To prevail on such a claim, plaintiff must establish, among other
`
`
`1 Plaintiff muddies the waters with the argument that the fact the
`product “‘required preparation by combining the rice with the
`seasoning packet, water and olive oil’ does not change whether a
`reasonable consumer would expect ‘over 50% of the box [to be] empty
`space.’” Resp., ECF 20 at 3. What plaintiff fails to explain is
`why a reasonable consumer would care about the ratio of uncooked
`product to empty space, when what he really wants to know is how
`many boxes he needs to buy to end up with a given amount of cooked
`rice pilaf on his serving platter or plate.
`7
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 8 of 10 PageID #:135
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`things, his own and the putative class members’ “reasonable
`reliance” on the defendant’s alleged misrepresentation.
`Petrakopoulou v. DHR Int’l, Inc., 626 F. Supp. 2d 866, 870 (N.D.
`Ill. 2009). As explained above, even unsophisticated consumers
`understand that rice must be cooked prior to serving and that it
`expands during cooking. Accordingly, they cannot reasonably rely
`on the size of the box to estimate product yield when specific
`information on that question is printed conspicuously and
`unambiguously on the box. See Daniel v. Mondelez Int’l, Inc., 287
`F. Supp. 3d 177, 199–200 (E.D.N.Y. 2018) (“Since a simple
`‘investigation’ would have dispelled any misrepresentation as to
`the amount of food arising from the size of the box, Plaintiff’s
`common law fraud claim is foreclosed as a matter of law.”).
`Plaintiff’s claims for breach of express or implied
`warranties and violation of the Magnuson-Moss Act require only
`brief discussion. As defendant correctly observes, Illinois law
`requires a plaintiff to provide defendant pre-suit notice of any
`breach warranty claims—a requirement plaintiff acknowledges he did
`not satisfy. See Anthony v. Country Life Mfg., LLC., 70 F. App’x
`379, 384 (7th Cir. 2003) (observing that the Supreme Court of
`Illinois interprets 810 ILCS 5/2–607(3)(a) to “require[] a
`plaintiff to notify the defendant of the claimed deficiency in its
`product prior to filing suit.”) (citing Connick v. Suzuki Motor
`Co., Ltd., 675 N.E.2d 584, 590 (Ill. 1996)). Although that is
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 9 of 10 PageID #:136
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`reason enough to dismiss plaintiff’s warranty claims under both
`state law and the Magnuson-Moss Act, see Bakopoulos v. Mars Petcare
`US, Inc., No. 20 CV 6841, 2022 WL 846603, at *2 (N.D. Ill. Mar.
`22, 2022) (Magnuson-Moss Act “incorporates state-law notice
`requirements”), there is more: Plaintiff fails to allege that the
`rice pilaf sold in the boxes he challenges were not “fit for the
`ordinary purposes for which such goods are used” as required for
`implied warranty claims. Solvay USA v. Cutting Edge Fabrication,
`Inc., 521 F. Supp. 3d 718, 725 (N.D. Ill. 2021). If there is any
`support for plaintiff’s “alternative” theory that defendant
`breached an implied warranty because the product was “not fit to
`pass in the trade” because of its excessive box size, he has not
`cited it. For at least these reasons, plaintiff’s warranty claims
`fail as a matter of law.
`This leaves only plaintiff’s claims for negligent
`misrepresentation and unjust enrichment. Defendant argues
`correctly that the first of these claims is barred by the general
`rule that “a negligence cause of action cannot be sustained for
`the recovery of economic loss alone.” Clay Fin. LLC v. Mandell,
`No. 16-cv-11571, 2017 WL 3581142, at *4 (N.D. Ill. Aug. 18, 2017),
`citing Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill.2d 69 (1982)).
`Plaintiff’s vague suggestion that his claim falls within an
`exception to the economic loss rule for allegedly negligent
`breaches of non-contractual duties arising out of the parties’
`
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`Case: 1:22-cv-00002 Document #: 27 Filed: 08/16/22 Page 10 of 10 PageID #:137
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`“special relationship” (such as the attorney-client or accountant-
`client relationship) finds no support in either the law or the
`facts he alleges.
`Finally, plaintiff concedes that his unjust enrichment claim
`“will stand or fall with his other claims[.]” Resp., ECF 20 at 10.
`Because none of his other claims is viable for the reasons
`explained above, his unjust enrichment claim, too, is subject to
`dismissal.
`For the foregoing reasons, defendant’s motion to dismiss is
`granted.
`
`
`
`
`
`Dated: August 16, 2022
`
`ENTER ORDER:
`
`
`
`
`_____________________________
` Elaine E. Bucklo
` United States District Judge
`
`
`
`
`10
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