Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 1 of 10 Page ID #87
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`ERIN SANDERS, individually and on
`behalf of all others similarly situated,
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`vs.
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`THE HILLSHIRE BRANDS COMPANY,
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`Plaintiff,
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`Defendant.
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`Case No. 21-cv-1155-SMY
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`MEMORANDUM AND ORDER
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`YANDLE, District Judge:
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`In this putative class action, Plaintiff Erin Sanders alleges that Defendant, The Hillshire
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`Brands Company (“Hillshire”), misrepresented to consumers that its product “Delights English
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`Muffin” by Hillshire’s Jimmy Dean brand (“the Product”) is made predominantly with whole grain
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`wheat flour. Sanders asserts violations of the Illinois Consumer Fraud and Deceptive Business
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`Practices Act, 815 ILCS 505/1 et seq.; breaches of express warranty, implied warranty, and the
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`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.; negligent misrepresentation; fraud; and
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`unjust enrichment (Doc. 1).
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`Now pending before the Court is Hillshire’s Motion to Dismiss for Failure to State a Claim
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`(Doc. 6), which Sanders opposes (Doc. 16). For the following reasons, the Motion is GRANTED
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`in part and DENIED in part.
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`Background
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`The following facts are taken from Plaintiffs’ Second Amended Complaint and are deemed
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`true for the purposes of this motion. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.
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`Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 2 of 10 Page ID #88
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`2008): Hillshire manufactures, labels, markets, and sells breakfast sandwiches purporting to be
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`“English muffins made with whole grain.” The packaging in question is shown below:
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`As indicated by the asterisk, the packaging provides consumers with additional information as to
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`the amount of whole grain in the Product, stating on the side panel, “*THIS PRODUCT
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`PROVIDES 5g OF WHOLE GRAIN IN A 1 SANDWICH SERVING. USDA RECOMMENDS
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`48G OF WHOLE GRAIN EVERY DAY.” The Product also includes the following ingredient
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`list:
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`INGREDIENTS: MUFFIN: ENRICHED WHEAT FLOUR (WHEAT FLOUR,
`MALTED BARLEY FLOUR, NIACIN, REDUCED IRON, THIAMINE
`MONONITRATE, RIBOFLAVIN, FOLIC ACID), WATER, WHOLE GRAIN
`WHEAT FLOUR, YEAST, WHEAT GLUTEN, CONTAINS LESS THAN 2%
`OF: DEGERMED YELLOW CORN FLOUR, DEGERMED YELLOW
`CORNMEAL, SODIUM BICARBONATE, FUMARIC ACID, CORN STARCH,
`SODIUM ACID PYROPHOSPHATE, MONOCALCIUM PHOSPHATE,
`CALCIUM SULFATE, SALT, AMMONIUM CHLORIDE, HONEY, CALCIUM
`PROPIONATE AND
`POTASSIUM
`SORBATE
`(PRESERVATIVES),
`SOYBEAN OIL, HIGH FRUCTOSE CORN SYRUP, VINEGAR.
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`Sanders alleges the Product's label is misleading because, while the Product's front label
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`prominently states, “MADE WITH WHOLE GRAIN,” the primary ingredient in the sandwich
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`Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 3 of 10 Page ID #89
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`portion of the Product is enriched wheat flour. The amount of whole grain wheat flour in the
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`Product is slightly above two percent of the total weight of ingredients used in the English muffin
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`portion of the Product and contains only two grams of dietary fiber per serving, consistent with a
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`food with a de minimis amount of whole grain. A product must contain at least 8 grams of dry
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`whole grain ingredient per labeled serving size of the meat or poultry product to make a whole
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`grain claim under USDA Rules.
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`Sanders purchased the Product on at least one occasion between August 2021 and
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`September 2021. She claims the Product does not contain 8 grams of whole grain per serving, nor
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`is the bread predominantly whole grain, despite the reasonable expectation that the “made with
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`whole grain” claim denotes a product with at least a minimum amount of whole grains. Sanders
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`maintains that the marketing of the Product is misleading because the bread contains mostly non-
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`whole grains and only a small amount of whole grains.
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`Sanders purchased the Product because she expected it would contain a predominant
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`amount of whole grain flour. She would not have purchased the Product absent Hillshire’s false
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`and misleading statements and omissions. She intends to, seeks to, and will purchase the Product
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`again when she can do so with the assurance that the Product’s representations are consistent with
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`its composition.
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`Sanders requests compensatory and injunctive relief and seeks to represent an Illinois class
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`including: All persons in the State of Illinois who purchased the Product during the statutes of
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`limitations for each cause of action alleged.
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`Discussion
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`To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a Complaint
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`must “state a claim to relief that is plausible on its face.” Lodholtz v. York Risk Servs. Group, Inc.,
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`Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 4 of 10 Page ID #90
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`778 F.3d 635, 639 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
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`draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009). The Court draws all reasonable inferences and facts in favor of
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`the nonmovant. See Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014). Additionally,
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`under Rule 8(a)(2), a Complaint must include “a short and plain statement of the claim showing
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`that the pleader is entitled to relief” and “[giving] the defendant fair notice of what the claim is
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`and the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2); Twombly, 550 U.S. at 555 (citation
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`omitted).
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`Under Rule 9(b), a party alleging fraud must “state with particularity the circumstances
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`constituting fraud.” Fed. R. Civ. P. 9(b). This “ordinarily requires describing the 'who, what,
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`when, where, and how' of the fraud, although the exact level of particularity that is required will
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`necessarily differ based on the facts of the case.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614
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`(7th Cir. 2011).
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`Hillshire argues that Sanders’ claims are subject to dismissal on numerous grounds:
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`(1) she has not plausibly alleged that the “made with whole grain” label statement
`is deceptive; (2) her warranty claims fail because she has not alleged privity or that
`she served proper notice; (3) the Complaint fails to allege facts about Hillshire that
`give rise to a strong inference of fraudulent intent; (4) her negligent
`misrepresentation claims are barred under the Moorman doctrine; (5) her unjust
`enrichment claim fails to state a claim; and (6) she lacks standing to seek injunctive
`relief.
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`Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”)
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`The ICFA safeguards “consumers, borrowers, and businesspersons 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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`Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 5 of 10 Page ID #91
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`to state a claim under the ICFA, a plaintiff must show: (1) a deceptive or unfair act or promise by
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`the defendant; (2) the defendant's intent that the plaintiff rely on the deceptive or unfair practice;
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`and (3) that the unfair or deceptive practice occurred during a course of conduct involving trade or
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`commerce. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th Cir. 2014). “Although
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`ICFA claims often involve disputed questions of fact not suitable to a motion to dismiss, a court
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`may dismiss the complaint if the challenged statement was not misleading as a matter of law.”
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`Bober v. Glaxo Wellcome PLC, 246 F.3d 934, 940 (7th Cir. 2001).
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`Here, Sanders claims deceptive practices. Specifically, she alleges that the Product’s
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`labeling “Made With Whole Grain” suggests to a reasonable consumer that the sandwich portion
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`of the Product was either predominantly made with whole grain, or at least contains a non de
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`minimis amount of whole grain. To state a viable claim for deceptive practices, a plaintiff must
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`plausibly allege that the packaging is likely to deceive reasonable consumers. Bell v. Publix Super
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`Markets, Inc., 982 F.3d 468, 474–75 (7th Cir. 2020). This standard “requires a probability that a
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`significant portion of the general consuming public or of target consumers, acting reasonably in
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`the circumstances, could be misled.” Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969, 973 (7th
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`Cir. 2020) (quoting Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016)). A statement is
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`deceptive if “it is likely to mislead a reasonable consumer in a material respect, even if it is not
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`literally false.” Id. “What matters most is how real consumers understand and react to the
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`advertising.” Bell, 982 F.3d at 476. “[W]here plaintiffs base deceptive advertising claims on
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`unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings
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`may well be justified.” Id. at 477.
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`Hillshire maintains that Sanders is unable to demonstrate that the “Made With Whole
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`Grain*” statement is likely to mislead a reasonable consumer because the statement is truthful and
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`Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 6 of 10 Page ID #92
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`not deceptive. It further argues that Sanders claim is implausible because the asterisk on the
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`Product directs consumers to the additional information disclosed on the Product’s packaging.
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`This case is substantially similar to Mantikas v. Kellog Co., 910 F.3d 633 (2nd Cir. 2018).
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`In that case, the Second Circuit concluded that the plaintiff had sufficiently alleged that the label
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`on a box of Cheez-It crackers stating, “made with whole grain”, despite the fact that the crackers
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`contained more white flour than whole wheat flour, was misleading. 910 F.3d at 634. The court
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`found that the mere fact that the crackers did contain some whole grain was insufficient to defeat
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`the lawsuit, because the box's bold-faced “Made With Whole Grain” claim arguably
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`“communicate[d] to the reasonable consumer that the grain in the product [was] predominantly, if
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`not entirely, whole grain.” Id. at 637. The court also found it irrelevant that the ingredient list on
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`the back of the box clarified that enriched white flour was the predominant ingredient, since “a
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`reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the
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`box to correct misleading information set forth in large bold type on the front of the box.” Id. The
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`Seventh Circuit has explicitly adopted the reasoning in Mantikas. Bell, 982 F.3d at 477.
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`As was true in Mantikas, the Product’s packaging arguably suggests to a reasonable
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`consumer that it contains primarily whole grain. Instead, as the side panel reflects, it contains only
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`5 grams of whole grain per sandwich; enriched wheat flour is the predominant ingredient. Sanders
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`sufficiently alleges that the representation is misleading to a reasonable consumer because it
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`implies that whole grain flour is the primary ingredient of the English muffin. And the language
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`and information on the side panel does not destroy Sander’s claims. See Bell, 982 F.3d at 483
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`(quoting Beardsall, 953 F.3d at 977) (restating the Seventh Circuit's observation “that an asterisk
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`pointing to [the label's] fine print could save virtually any deceptive slogan ...”).
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`To survive a motion to dismiss, Sanders need only nudge her claims across the line from
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`conceivable to plausible. She has done so and has sufficiently alleged that the Product’s packaging
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`is misleading.
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`Breach of Warranty
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`Hillshire correctly argues that Sanders’ state law warranty claims fail because she has not
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`alleged privity or that timely notice was provided of the alleged breach. Claims for breach of
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`implied warranty and breach of express warranty are contractual claims requiring privity of
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`contract. Voelker v. Porsche Cars North Amer., Inc., 353 F.3d 516, 525 (7th Cir. 2003) (Under
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`Illinois law, privity of contract is a prerequisite to recover economic damages for breach of implied
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`warranty). Sanders and Hillshire are not in privity because she did not purchase the Product
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`directly from Hillshire.1
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`Sanders’ breach of warranty claim under the Magnuson-Moss Warranty Act (“MMWA”)
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`also fails. Under the MMWA, a written warranty is a fact or promise that “affirms or promises
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`that such material or workmanship is defect free or will meet a specified level of performance over
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`a specified period of time.” 15 U.S.C. § 2301(6)(A). The description, “Made With Whole Grain”
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`is not a “written warranty” under the MMWA; it makes no claim that the Product is free of defects
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`or will meet a specified level of performance over a specified period of time. See Rudy v. Fam.
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`Dollar Stores, Inc., No. 21-cv-3575, 2022 WL 345081, at *8 (N.D. Ill. Feb. 4, 2022) (The phrase
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`“Smoked Almonds” is a product description that does not warrant to consumers that the Product
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`is defect-free or will perform at a specified level over a specific time.); In re Sears, Roebuck &
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`Co., No. MDL-1703, 2006 WL 1443737, at *4 (N.D. Ill. May 17, 2006) (concluding that the phrase
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`“Made in USA” was not a “written warranty” under the Magnuson-Moss Act because it does not
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`1 As the lack of privity is dispositive, the Court declines to address Hillshire’s notice argument.
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`Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 8 of 10 Page ID #94
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`indicate that the product will be defect-free or will perform at a specified level over a specific
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`time). For these reasons, Hillshire’s motion to dismiss is granted as to Sanders’ warranty claims.
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`Fraud
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`To state a claim for common-law fraud, a plaintiff must plead: (1) a false statement of
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`material fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that
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`the statement induce the plaintiff to act; (4) plaintiff's reliance upon the truth of the statement; and
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`(5) plaintiff's damages resulting from reliance on the statement. Tricontinental Indus., Ltd. v.
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`PricewaterhouseCoopers, LLP, 475 F.3d 824, 841 (7th Cir. 2007). “Scienter, knowledge by the
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`defendant that a statement he has made is false, is an essential element of common-law fraud.” Id.
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`at 841–42.
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`Hillshire contends that Sanders fails to allege specific facts showing that it had the requisite
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`scienter to defraud. Sanders does not address this argument; she simply argues that the Rule 9(b)
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`pleading requirements are met because she alleges the “who, what, where, when, and how” of the
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`fraud. With respect to fraud, Sanders alleges that “[Hillshire] mispresented and/or omitted the
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`attributes of the qualities of the Product” and that “[Hillshire’s] fraudulent intent is evinced by its
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`knowledge that the Product was not consistent with its representations.” These conclusory
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`allegations fall short of Rule 9(b)’s pleading requirements. Accordingly, Hillshire’s motion is
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`granted with respect to Sanders’ fraud claim.
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`Negligent Misrepresentation
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`Under the Moorman doctrine or “economic loss doctrine,” claims solely alleging injury to
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`economic interests must proceed only under contract law, as opposed to both contract and tort law.
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`See Moorman Mfg. Co. v. National Tank Co., 435 N.E.2d 443, 448 (Ill. 1982). Citing
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`Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 636 N.E.2d 503, 515
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`(1994), Sanders argues that her claim satisfies an exception to the Moorman doctrine: when a
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`defendant made negligent misrepresentations while in the business of supplying information for
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`the guidance of others in their business transactions. Illinois courts have applied this exception to
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`a variety of commercial information providers, such as accountants, banks that provide credit
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`information, product and real-estate inspectors, title insurers, and stockbrokers. Fox Assocs., Inc.
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`v. Robert Half Int'l, Inc., 777 N.E.2d 603, 607 (2002) (collecting cases). But the exception may
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`only be applied to businesses providing commercial information, not tangible products such as
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`breakfast sandwiches. Accordingly, Sanders’ negligent misrepresentation claim will be dismissed.
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`Unjust Enrichment
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`In Illinois, “[t]o state a cause of action based on a theory of unjust enrichment, a plaintiff
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`must allege that the defendant has unjustly retained a benefit to the plaintiff's detriment, and that
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`defendant's retention of the benefit violates the fundamental principles of justice, equity, and good
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`conscience. Cleary v. Philip Morris Inc., 656 F.3d 511, 516 (7th Cir. 2011). Sanders unjust
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`enrichment claim, which is based on the same conduct underlying her ICFA claim, remains viable.
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`See Cleary, 656 F.3d at 517. Hillshire’s motion to dismiss Sanders’ unjust enrichment claim is
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`denied.
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`Injunction
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`A plaintiff must meet three requirements to establish that she has standing to bring a
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`lawsuit: (1) injury in fact, (2) a causal connection between the injury and the defendant's conduct,
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`and (3) redressability. Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1074 (7th Cir. 2013) (citing
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`Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “[T]o establish injury in fact when
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`seeking prospective injunctive relief, a plaintiff must allege a ‘real and immediate’ threat of future
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`violations of their rights ...” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983));
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`Case 3:21-cv-01155-SMY Document 21 Filed 07/08/22 Page 10 of 10 Page ID #96
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`see also Kensington's Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 909 N.E.2d
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`848, 858 (Ill. App. Ct. 2009) (“To be eligible for injunctive relief under the Deceptive Practices
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`Act, a plaintiff must show the defendant's conduct will likely cause it to suffer damages in the
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`future.”).
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`Hillside argues that Sanders lacks standing to seek injunctive relief because she is now
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`aware of the allegedly deceptive nature of the label. Sanders asserts that she “intends to, seeks to,
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`and will purchase the Product again when she can do so with the assurance that Product's
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`representations are consistent with its composition.” But merely purchasing the Product does not
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`trigger Sander’s injury. Her injury lies in purchasing the Product under the influence of a deceptive
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`label. There is no chance she can claim to be harmed in the future – tricked again by “Made With
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`Whole Grain” – as she now knows that the ingredient list shows the Product’s true composition.
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`See Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 741 (7th Cir. 2014) (“Since [plaintiff]
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`is now aware of [defendant's] sales practices, [plaintiff] is not likely to be harmed by the practices
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`in the future.”). As such, Sanders lacks standing to pursue injunctive relief; her claim will be
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`dismissed accordingly.
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`Conclusion
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`Defendant The Hillshire Brands Company’s motion to dismiss Plaintiff Erin Sanders’
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`claims for breach of express warranty, implied warranty, and the Magnuson Moss Warranty Act;
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`negligent misrepresentation; fraud; and her request for injunctive relief are GRANTED. Plaintiff
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`may proceed on her claims under the ICFA and for unjust enrichment.
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`IT IS SO ORDERED.
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`DATED: July 8, 2022
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`STACI M. YANDLE
`United States District Judge
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`Page 10 of 10
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