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Defendant's Attorney: Dean Nicholas Panos and Alex Smith

Description: Rockford, Illinois consumer law lawyers represented Plaintiff, who sued Defendant on a fraud theory.


Kashi manufactures, labels, markets, and sells Mixed Berry Soft Baked Breakfast Bars. They are packaged in a predominately purple box with the image of a breakfast bar with a purple-colored jam down the center. The words “Mixed Berry” appear approximately four times larger than “Soft Baked Breakfast Bars” and beneath that, it reads, “Made with Wildflower Honey”. On the back of the box, there are photographs of two blueberries, a blackberry, and a strawberry along with oats. The text on the box includes the phrases: “These bars were made for
you with love” and “Love for simple ingredients, like berries and whole grains.” Below the text box, the box reads “Simply Delicious” and “Delightfully Nutritious”.

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The ingredients are also listed on the box. The “mixed berry filling” is comprised of pear juice concentrate, tapioca syrup, cane sugar, blueberry puree concentrate, apple powder, com starch, vegetable glycerin, blackberry puree concentrate, blueberry juice concentrate, strawberry puree concentrate, and natural flavors. The remaining ingredients are Kashi Seven Whole Gram flour and whole wheat flour, whole gram oats, invert cane syrup, expeller pressed canola oil, honey, chicory root fiber, vegetable glycerin, tapioca syrup, leavening, soy lecithin, xanthan gum, and natural flavors.

Plaintiff purchased the product on one or more occasions at Jewel-Osco in Elburn, Illinois, and Schnucks in DeKalb, Illinois. He alleges the representations on the box misled him because they gave him the impression that the fruit filling contained more mixed berries and honey than it actually did. Plaintiff further alleges that he purchased this specific product because of the health benefits of berries and his preference for honey as a natural sweetener, and he cites to multiple studies detailing the health benefits of berries and honey, consumers' subjective preferences for them, and the relative price of berries.

II. LEGAL STANDARD

Rule 8 requires a plaintiff to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The statement must give the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555. A plaintiff's well-pleaded factual allegations must allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must also plausibly suggest that the plaintiff is entitled to relief, which “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The federal pleading standard does not require the plaintiff to plead every element; plaintiff need only plead enough facts to elevate his claim from conceivable to plausible. Twombly, 550 U.S. at 570; Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (“Complaints need not plead law or match facts to every element of a legal theory.”). The Court accepts as true all of the plaintiff's well-pleaded allegations and draws all reasonable inferences in the light most favorable to the plaintiff. See Calderone v. City of Chicago, 979 F.3d 1156, 1161 (7th Cir. 2020); Landmark Am. Ins. Co. v. Deerfield Constr., Inc., 933 F.3d 806, 809 (7th Cir. 2019). The movant bears the burden on a motion to dismiss. Gunn v. Cont'l Cas. Co., 968 F.3d 802, 806 (7th Cir. 2020).

Claims involving fraud, including those under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 18 ILCS § 505/2, are subject to a heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b). Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014); Pirelli Armstrong Tire Corp. Retiree Med. Ben. Trust v. Walgreen Co., 631 F.3d 436, 441 (7th Cir. 2011). Specifically, a pleading must “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). This heightened standard requires that “the plaintiff do more than the usual investigation before filing his complaint.” Camasta, 761 F.3d at 737 (quoting Ackerman v. Northwestern Mutual Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999)). Courts in this circuit have interpreted that to mean that a plaintiff must “describ[e] the who, what, when, where, and how of the fraud.” Anchorbank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir. 2011). The particularity requirement of 9(b) aims “to discourage a ‘sue first, ask questions later' philosophy.” Pirelli, 631 F.3d at 441 (quoting Berman v. Richford Indus. Inc., 1978 U.S. Dist. LEXIS 16300, *5 (S.D.N.Y. Jul. 28, 1978)). But this requirement is not “overly rigid”-rather, it is highly fact- and context-specific. Pirelli, 631 F.3d at 442. “Plaintiffs are not absolutely required to plead the specific date, place, or time of the fraudulent acts, provided they use some sort of alternative means of injecting precision and some measure of substantiation into their allegations of fraud.” 2 Moore's Federal Practice § 9.03(1)(b) (Matthew Bender 3d Ed. 1999). Factual allegations under 9(b) “cannot lie between the lines.” Webb v. Frawley, 906 F.3d 569, 582 n.7 (7th Cir. 2021).

Outcome: As Judge Kanne explained in Bell, 982 F.3d at 494 (Kanne, J., concurring),

Determining that a statement is not “clearly misleading” on the pleadings robs the jury of the opportunity to determine, as a matter of fact, whether the statement is “clearly misleading,” just “misleading,” or “not misleading at all.” It also flips the proper motion to dismiss inquiry on its head . . . And it's simply a stretch to say that a consumer's reading of a statement is implausible as a matter of law just because fine print elsewhere on the label could clarify an ambiguity that a reasonable consumer might not have even noticed in the first place.

For the reasons articulated above, Kashi's motion to dismiss is granted in part and denied in part. Plaintiff's warranty and negligent misrepresentation claims are dismissed with prejudice, and his common-law fraud claim is dismissed without prejudice. With regard to the consumer fraud claims and unjust enrichment, the motion to dismiss is denied. To the extent that Plaintiff's
demand for injunctive relief is considered a claim, it is dismissed without prejudice, with leave to be refiled through a proper motion to this Court.

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