Curtis v. 7-Eleven, Inc., 21-cv-6079
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
| Writing for the Court | Steven C. Seeger United States District Judge |
| Parties | DEVON CURTIS, individually and on behalf of all others similarly situated, Plaintiff, v. 7-ELEVEN, INC., Defendant. |
| Docket Number | 21-cv-6079 |
| Decision Date | 13 September 2022 |
DEVON CURTIS, individually and on behalf of all others similarly situated, Plaintiff,
v.
7-ELEVEN, INC., Defendant.
No. 21-cv-6079
United States District Court, N.D. Illinois, Eastern Division
September 13, 2022
MEMORANDUM OPINION AND ORDER
Steven C. Seeger United States District Judge
One summer day, Devon Curtis strolled into a 7-Eleven convenience store in Chicago, and did a little shopping. She bought four products from 7-Eleven's store brand, “24/7 Life.” She picked up foam plates, foam cups, party cups, and freezer bags, perhaps en route to a picnic or a backyard BBQ.
Before getting her supplies and going on her way, Curtis took a close look at the products. She noticed that the packaging used the term “recyclable.” That representation struck a chord with her. Curtis worries about her environmental footprint, and she wanted to avoid buying a product that would add another piece of garbage to a mountain of trash.
Later, Curtis placed the products in a recycling bin, thinking that they would enjoy new life as a new product someday. But according to the complaint, the recycling never took place. None of the products were actually recycled.
The problem, it turns out, wasn't the material used in the products. According to the complaint, the products are made out of plastics that could be recycled. But in reality, the products aren't recycled that often because few recycling facilities take that type of plastic.
Also, some of the products lacked markings - recycling designations known as RIC labels - and thus did not give recycling facilities the necessary information to sort the products.
Curtis later realized that she bought products that ended up in a landfill or an incinerator. Instead of going back to the store, and demanding a refund, Curtis went to the federal courthouse.
Curtis brings an assortment of claims on behalf of herself and a putative class of purchasers of the 24/7 Life products. She claims that 7-Eleven deceptively or unfairly places the term “recyclable” on the items despite their un-recyclability, in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. She also brings breach of warranty and unjust enrichment claims.
7-Eleven moved to dismiss for lack of standing, and for failure to state a claim. For the reasons explained below, the motion to dismiss is granted in part and denied in part.
Background
7-Eleven operates a multinational chain of retail convenience stores. See Cplt., at ¶ 12 (Dckt. No. 23-1).[1] It operates, franchises, and licenses thousands of stores throughout the United States. Id. You can't drive very far in Chicagoland without driving by a 7-Eleven. Three of them are within a block of the courthouse.
7-Eleven manufactures, designs, and sells products with a store brand called “24/7 Life.” Id. at ¶ 17. The 24/7 Life brand includes foam cups, foam plates, party cups, and freezer bags. Id. at ¶ 3. That brand appears on a “number of plastic products” in the store. Id. at ¶ 18.
7-Eleven represents that its 24/7 Life brand is recyclable. Id. The company includes “various claims regarding their recyclability” on the packaging, meaning the boxes and bags. Id.
For example, the foam plates have the term “RECYCLABLE” directly on the front of the packaging, with the green recycling symbol (i.e., the three green arrows, which point clockwise and bend and twist in a triangular direction). Id. at ¶ 21. The text isn't enormous, and it is less prominent than other text on the front of the packaging. But it is visible, and it appears right next to “25 PLATES.” Id.
The complaint offers helpful pictures:
(Image Omitted)
Other products have similar labeling. The foam cups and the red party cups have the same “RECYLABLE” term on their packaging, right next to the green recycling symbol. Id. at ¶¶ 28-29. The recycling symbol appears on the lids of the foam cups, and on the bottom of the red party cups, too.
(Image Omitted)
The box of freezer bags refers to recycling, too. It says “MADE WITH RECYCLABLE POLYETHYLENE,” but the text is relatively small. Id. at ¶ 30. It is a fraction of the size of the
most prominent phrase: “FREEZER BAGS.” Id. It is about the same size as the description of the size of the bags (“10.56 IN x. 10.75 IN”).
(Image Omitted)
For each product, the packaging doesn't reach out and grab the reader with a bold declaration that the product is recyclable. It is visible, to be sure. It isn't hard to spot. A reasonable consumer could see it, if the consumer bothered to look at the packaging at all. (One wonders how many people read the packaging of red party cups at 7-Eleven, when they probably have other things on their mind.) But it is not the most prominent phrase on the packaging, either. The key point is that Curtis claims that she read it, and that suffices for now.
In the summer of 2021, Devon Curtis entered a 7-Eleven in Chicago and purchased four 24/7 Life products: foam plates, foam cups, party cups, and freezer bags. Id. at ¶ 37. Curtis saw the term “recyclable” on the packaging of each product. Id. According to the complaint, she “reasonably understood that the products would actually be recycled if she placed them for recycling with her municipal recycling service.” Id. at ¶ 38 (emphasis added).
Curtis later placed the products in a recycling bin. Id. at ¶¶ 39-40. But in the end, the products weren't recycled. Instead, the items suffered the same fate as any other piece of garbage. Id. They went into a trash heap. They ended up buried or burned, in a landfill or an incinerator. Id.
The complaint offers some background about the recycling industry to explain why the products were not recycled. To process plastic waste, a recycling facility must collect and separate products based on the type of plastic resin. Id. at ¶ 19. Manufacturers mark their products with certain Resin Identification Codes (“RICs”) to assist recycling facilities. Id. It's a sort-by-number operation.
There are seven categories of recyclable plastics based on their resin types, with corresponding RIC numbers one through seven. Id. at ¶ 20. RIC numbers one through six identify six types of plastic resin, and RIC number seven is a catchall for all other categories of plastic. Id.
You have seen those designations before, even if you didn't know what they were, or what they were called. Put down the opinion for a second, take a quick walk, and grab any plastic product that happens to be nearby. A single-use plastic water bottle is a good example.
Turn it upside down, and you should be able to find the recycling symbol, meaning the three arrows that bend in a triangular shape. Look in the middle of the triangle, and you should
see a number. That's the RIC number. (On a personal note, by way of example, a tub of Kirkland cashews from Costco has an RIC number of 1.)
The complaint then walks through the details of each of the four products and explains why they aren't recyclable. Again, the problem is not the material in the products themselves. That is, the complaint does not allege that any of the products are made up of unrecyclable material.
The problem falls into two different categories. Sometimes the problem is the lack of recycling facilities. And sometimes the problem is the lack of RIC designations on the product itself. So, sometimes the problem is outside the product (i.e., the lack of facilities), and sometimes the problem is inside the product (i.e., that lack of markings on the products). There is an extrinsic problem, and an intrinsic problem.
The Foam Plates. According to the complaint, the foam plates suffer from both problems. They lack an RIC number, and there is nowhere for them to go.
The complaint alleges that the foam plates “do not feature any RIC number on the front or the back.” Id. at ¶ 22. The correct designation for styrofoam plastic is RIC No. 6, but no such label appears on the plates. Id. at ¶ 23. Without an RIC number, the plates “cannot be separated in the recycling process and actually be recycled.” Id. at ¶ 22.
The lack of an RIC number is only part of the problem. No recycling facility in the area recycles that type of plastic. “[E]ven if the plates were properly labeled as RIC No. 6 - for styrofoam plastic - as with the vast majority of recycling facilities around the United States, there are no recycling facilities in the Chicago region that recycle RIC No. 6 plastics.” Id. at ¶ 23.
The back of the packaging provides additional information about recycling. The bag encourages the reader to look into how to recycle the plates: “CHECK YOUR LOCAL MUNICIPALITY FOR RECYCLING GUIDELINES.” Id. at ¶ 24.
As Curtis sees it, that disclosure made things worse, not better. The complaint alleges that the disclosure itself was misleading and deceptive. It “does not adequately disclose the limited availability of recycling programs that accept and recycle RIC No. 6 styrofoam plastic.” Id.
So, as Curtis sees it, the problem with the plates is twofold. The plates lack an RIC number that is necessary to sort the plastic. And even if the plates had that number, there isn't a recycling facility in the area that could do the recycling. Id. at ¶ 23.
The Foam Cups. Unlike the foam plates, the foam cups do have an RIC number (RIC No. 6). The complaint includes a picture, which shows the designation Id. at ¶ 28. Instead, the problem is the lack of recycling plants. The complaint alleges that RIC No. 6 styrofoam plastic “is not actually recycled by any municipal recycling facilities.” Id. The Party Cups. The party cups have a similar problem. They are made of RIC No. 5 plastic, and “less than 5% of all RIC No. 5 plastic collected nationwide is actually recycled.” Id. at ¶ 29. So, “even if collected,” the party cups “will either be stockpiled, incinerated, or sent to a landfill.” Id. The Freezer Bags. Finally, the box...
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