Benson v. Fannie May Confections Brands, Inc.

• Decision Date: 09 December 2019
• Docket Number: No. 19-1032,19-1032
• Citation: 944 F.3d 639
• Parties: Clarisha BENSON, et al., Plaintiffs-Appellants, v. FANNIE MAY CONFECTIONS BRANDS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

944 F.3d 639

Clarisha BENSON, et al., Plaintiffs-Appellants,

v.FANNIE MAY CONFECTIONS BRANDS, INC., Defendant-Appellee.

No. 19-1032

United States Court of Appeals, Seventh Circuit.

Argued September 4, 2019

Decided December 9, 2019

Rehearing and Rehearing En Banc Denied January 10, 2020

James X. Bormes, Attorney, LAW OFFICE OF JAMES X. BORMES, P.C., Chicago, IL, Kasif Khowaja, Attorney, KHOWAJA LAW FIRM, LLC, Chicago, IL, for Plaintiff - Appellant.

David J. Chizewer, Attorney, GOLDBERG KOHN LTD., Chicago, IL, David Alan Forkner, I, Attorney, WILLIAMS & CONNOLLY LLP, Washington, DC, for Defendant - Appellee.

Before Wood, Chief Judge, and Bauer and Hamilton, Circuit Judges.

Wood, Chief Judge.

Proving that almost anything can give rise to litigation, this case concerns chocolates that Clarisha Benson and Lorenzo Smith purchased at their local Fannie May stores in Chicago. Upon opening their boxes of candy, Benson and Smith were dismayed to find that the boxes were not brimming with goodies. Far from it: the boxes appeared to be only about half full. Believing that they had been duped, they sued Fannie May on behalf of themselves and a putative class, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 – 505/12, and asserting claims for unjust enrichment and breach of implied contract. The plaintiffs contend that Fannie May’s boxes of chocolate contain needless empty space, and that this practice misleads consumers. After allowing Benson and Smith to amend their complaint, the district court granted Fannie May’s motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint with prejudice. The court found that the plaintiffs had not adequately pleaded a violation of the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301 – 399, and that the FDCA preempted their state-law claims. We affirm the judgment, though on other grounds.

I

Each plaintiff purchased an opaque, seven-ounce box of Fannie May’s chocolate for $9.99 plus tax. Benson purchased Fannie May’s Mint Meltaways, and Smith purchased Fannie May’s Pixies. (Since their assertions are otherwise identical, we generally refer in the remainder of this opinion only to Benson, understanding that Smith is also a putative named plaintiff and that there are class allegations.) Although the boxes accurately disclosed the weight of the chocolate within (seven ounces) and the number of pieces in each box (ascertainable by multiplying the serving size times the number of servings per container), the boxes were emptier than each one had expected. The box of Mint Meltaways contained approximately 33% empty space, and the box of Pixies contained approximately 38% empty space. The cognoscenti call this empty space "slack-fill."

In the amended complaint, Benson alleges that some of the empty space serves no functional purpose and instead misleads consumers into believing that they are purchasing more chocolate than they actually receive. The complaint notes that Fannie May’s fourteen-ounce boxes contain a smaller percentage of slack-fill. Benson insists that she would not have purchased the chocolate if she had known that there was so much empty space inside the box. She seeks compensation based on the percentage of nonfunctional slack-fill in each box.

II

We consider the dismissal of a complaint for failure to state a claim de novo . Camasta v. Jos. A. Bank Clothiers, Inc. , 761 F.3d 732, 736 (7th Cir. 2014). To survive a motion to dismiss, a complaint must 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A

At the outset, there was some question whether diversity jurisdiction existed pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), because the complaint identified Fannie May as an Illinois corporation and the named plaintiffs as Illinois citizens, and alleged only that at least one (unidentified) class member was a citizen of a state other than Illinois. As the district court recognized, the latter allegation was insufficient. But another filing then revealed that Fannie May is a Delaware corporation. The amount in controversy exceeds $5,000,000, and so CAFA supports jurisdiction.

Benson first attacks the district court’s conclusion that her state-law claims were preempted by the FDCA and so had to be dismissed as a matter of law. Under the FDCA, a food "shall be deemed to be misbranded" if "its container is so made, formed, or filled as to be misleading." 21 U.S.C. § 343(d). Containers that include slack-fill—"the difference between the actual capacity of a container and the volume of product contained therein"—are misleading if consumers cannot fully view the contents and if the slack-fill is nonfunctional. 21 C.F.R. § 100.100(a). Slack-fill is nonfunctional if it cannot be justified by any of the following reasons: (1) protection of the contents of the package; (2) the requirements of the machines used to enclose the contents in such package; (3) unavoidable product settling during shipping and handling; (4) the need for the package to perform a specific function; (5) the container is reusable, part of the presentation of food, and has value that is significant and independent of its function to hold food; or (6) the inability to increase the level of fill or reduce the package size because, for example, the size is necessary to meet food labeling requirements or discourage theft. See id. § 100.100(a)(1)–(6).

The FDCA does not create a private right of action. Turek v. Gen. Mills, Inc. , 662 F.3d 423, 426 (7th Cir. 2011). Even so, plaintiffs are entitled to seek relief pursuant to related state-law causes of action. See id. The latter right, however, is tightly circumscribed by the FDCA’s express preemption of state-law theories that impose requirements "not identical" to its own requirements. See 21 U.S.C. § 343-1.

The district court determined that Benson could avoid dismissal of her state claims on the basis of preemption only if she pleaded that the slack-fill in the Mint Meltaway and Pixie boxes was nonfunctional under 21 C.F.R. § 100.100(a)(1)–(6). Preemption, however, is "an affirmative defense upon which the defendants bear the burden of proof." Fifth Third Bank ex rel. Tr. Officer v. CSX Corp. , 415 F.3d 741, 745 (7th Cir. 2005). "Affirmative defenses do not justify dismissal under Rule 12(b)(6)." Doe v. GTE Corp. , 347 F.3d 655, 657 (7th Cir. 2003). Moving for judgment on the pleadings under Rule 12(c) is the more appropriate way to address an affirmative defense. Bausch v. Stryker Corp. , 630 F.3d 546, 561 (7th Cir. 2010). This is not one of those cases in which the plaintiff has pleaded herself out of court, and so the difference between Rules 12(b)(6) and 12(c) cannot be disregarded. See, e.g. , Logan v. Wilkins , 644 F.3d 577, 582–83 (7th Cir. 2011) ; Brooks v. Ross , 578 F.3d 574, 579 (7th Cir. 2009). The district court thus erred by penalizing Benson for failing to anticipate an affirmative defense in her complaint and dismissing the action based on FDCA preemption.

B

With that much established, the question remains whether Benson sufficiently pleaded the elements of her state-law theories, starting with the contention that Fannie May violated the ICFA. The ICFA is "a regulatory and remedial statute intended to protect consumers ... against fraud, unfair methods of competition, and other unfair and deceptive business practices." Robinson v. Toyota Motor Credit Corp. , 201 Ill. 2d 403, 416–17, 266 Ill.Dec. 879, 775 N.E.2d 951 (2002). To prevail on a claim under the ICFA, "a plaintiff must plead and prove 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).

The statute allows a plaintiff to premise her claim on either deceptive conduct or unfair conduct (or both), but "the two categories have different pleading standards." Id. at 738. "If the claim rests on allegations of deceptive conduct, then [Federal Rule of Civil Procedure] 9(b) applies and the plaintiff must plead with particularity the circumstances constituting fraud." Id. This means as a practical matter that she must identify the "who, what, when, where, and how" of the alleged fraud. Id. On the other hand, Rule 9(b) ’s heightened pleading standard does not apply to an allegation of unfair conduct, because fraud is not a required element under that branch of the statute. Id. at 739.

Benson’s complaint alleges that the slack-fill in Fannie May’s chocolate boxes is both deceptive and unfair. We therefore consider both possibilities. Starting with the first category, a practice is deceptive "if it creates a likelihood of deception or has the capacity to deceive." See Bober v. Glaxo Wellcome PLC , 246 F.3d 934, 938 (7th Cir. 2001). Courts apply a "reasonable consumer" standard to analyze the likelihood of deception. See Mullins v. Direct Digital, LLC , 795 F.3d 654, 673 (7th Cir. 2015). "[W]hen analyzing a claim under the ICFA, the allegedly deceptive act must be looked upon in light of the totality of the information made available to the plaintiff." Davis v. G.N. Mortg. Corp. , 396 F.3d 869, 884 (7th Cir. 2005).

Benson asserts that the nonfunctional slack-fill in Fannie May’s opaque packaging is deceptive because it causes consumers to believe that the boxes contain more chocolate than they actually do. The complaint describes the percentage of slack-fill in each seven-ounce box and contrasts Fannie May’s...