Manley v. Hain Celestial Grp., Inc.

• Decision Date: 30 September 2019
• Docket Number: No. 18 C 7101,18 C 7101
• Citation: 417 F.Supp.3d 1114
• Parties: Katy MANLEY, Plaintiff, v. HAIN CELESTIAL GROUP, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

417 F.Supp.3d 1114

Katy MANLEY, Plaintiff,

v.HAIN CELESTIAL GROUP, INC., Defendant.

No. 18 C 7101

United States District Court, N.D. Illinois, Eastern Division.

Signed September 30, 2019

William M. Sweetnam, Natasha Singh, Sweetnam LLC, Chicago, IL, for Plaintiff.

Dean Nicholas Panos, Richard P. Steinken, Jenner & Block LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

HON. JORGE ALONSO, United States District Judge

Feeling defrauded by a sunscreen label that directed her to "SHAKE WELL" rather than "SHAKE VIGOROUSLY for 10 seconds," plaintiff Katy Manley ("Manley") filed against defendant Hain Celestial Group, Inc. ("Hain") a six-count complaint asserting claims for violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act, breach of express and implied warranties, negligent misrepresentation and unjust enrichment.¹ Defendant moves to dismiss. For the reasons set forth below, the Court grants the motion to dismiss.

I. BACKGROUND

The following facts are from plaintiff's complaint, and the Court takes them as true.

On May 7, 2018, plaintiff paid $9.99 at TJ Maxx for a bottle of "Alba Botanica Very Emollient Mineral Spray Sunscreen" (the "Product"), which was manufactured by defendant. The label on the front of the Product said, "SPF 35." The label on the back of the Product included "Directions," which stated, "SHAKE WELL before use." (Complt. ¶ 25). Plaintiff alleges the label failed "to warn the consumer about ... the importance of shaking the product vigorously for at least ten seconds and blending the Product well into the skin after spraying it on as one would with traditional, non-spray sunscreen lotion." (Complt. ¶ 25).

Plaintiff also alleges that defendant's website states the following with respect to the Product:

Broad spectrum mineral sunscreen protection is easily applied with this air-powered, earth-friendly spray. Fragrance free formula helps protect against sunburn, skin cancer

and premature signs of aging and is ideal for sensitive skin. Can conveniently be sprayed on at any angle and rubs in fast.

(Complt. ¶ 21) (emphasis in original).

On May 28, 2018, plaintiff "applied and reapplied the Product as instructed on the label but was unaware of the need to shake the product vigorously for at least ten seconds and to blend it well into her skin after applying it." (Complt. ¶ 33). Plaintiff suffered severe sunburn. Plaintiff alleges that "[h]ad [she] known at the time of purchase that the Product did not provide adequate sun protection even when used as directed, she would not have purchased it." (Complt. ¶ 35).

Plaintiff alleges that the Product has received "hundreds of complaints" in reviews on Amazon.com. (Complt. ¶ 29). In Amazon.com reviews, people complained that, among other things, the product "goes on like white face paint" and that their skin burned while using the product.²

At some point after plaintiff purchased the Product, defendant changed the label it uses on Alba Botanica Very Emollient Mineral Spray Sunscreen. The new label contains different directions. Specifically, the new directions say, "SHAKE VIGOROUSLY for 10 seconds before use." (Complt. ¶ 20).

Based on these allegations, plaintiff asserts six claims, and defendant moves to dismiss them all.

II. STANDARD ON A MOTION TO DISMISS

The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Under the notice-pleading requirements of the Federal Rules of Civil Procedure, a complaint must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). A complaint need not provide detailed factual allegations, but mere conclusions and a "formulaic recitation of the elements of a cause of action" will not suffice. Twombly , 550 U.S. at 555, 127 S.Ct. 1955. To survive a motion to dismiss, a claim must be plausible. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Allegations that are as consistent with lawful conduct as they are with unlawful conduct are not sufficient; rather, plaintiffs must include allegations that "nudg[e] their claims across the line from conceivable to plausible." Twombly , 550 U.S. at 570, 127 S.Ct. 1955.

In considering a motion to dismiss, the Court accepts as true the factual allegations in the complaint and draws permissible inferences in favor of the plaintiff. Boucher v. Finance Syst. of Green Bay, Inc. , 880 F.3d 362, 365 (7th Cir. 2018). Conclusory allegations "are not entitled to be assumed true," nor are legal conclusions. Iqbal , 556 U.S. at 680 & 681, 129 S.Ct. 1937 (noting that a "legal conclusion" was "not entitled to the assumption of truth[;]" and rejecting, as conclusory, allegations that " ‘petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement"). The notice-pleading rule "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal , 556 U.S. at 678-679, 129 S.Ct. 1937.

Pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, the "circumstances constituting fraud" must be alleged with particularity. Fed.R.Civ.P. 9(b).

III. DISCUSSION

A. Plaintiff's claims for consumer fraud and unjust enrichment

In Count I, plaintiff asserts that defendant violated the Illinois Consumer Fraud and Deceptive Trade Practices Act ("ICFA"), 815 ILCS 505/1 et seq. To state a claim, plaintiff must allege: "(1) a deceptive act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deception; (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception." Avery v. State Farm Mut. Auto. Ins. Co. , 216 Ill.2d 100, 180, 296 Ill.Dec. 448, 835 N.E.2d 801 (Ill. 2005).

Defendant moves to dismiss, and plaintiff, in her response brief, clarifies what her claim is and what it is not. "[T]his case is about Defendant's practice of omitting material facts," namely "that the sunscreen would not provide adequate protection unless the consumer takes the unusual step of vigorously shaking the aerosol aluminum bottle for at least ten seconds." (Plf. Brief at 1). Plaintiff notes the case is not about rubbing the product into the skin. Specifically, she states, "no amount of rubbing after the product is applied would prevent burns if the product is not properly mixed before it is sprayed." (Plf. Brief at 2). Plaintiff's claim is that defendant violated the ICFA by omitting from its label the fact that the product needed to be shaken vigorously for ten seconds in order to work. (Plf. Brief at 3 ("This case is about an omission of material fact, which is actionable under the ICFA.") and 4 ("Plaintiff's claim is that if the product is not shaken properly it is ineffective")).

Defendant moves to dismiss the ICFA claim, arguing plaintiff has not alleged that the omitted information was material and arguing the omission is not deceptive. An omission is material only "where a buyer would have acted differently knowing the information." Connick v. Suzuki Motor Co., Ltd. , 174 Ill.2d 482, 505, 221 Ill.Dec. 389, 675 N.E.2d 584 (Ill. 1996). In Connick , where plaintiff had alleged defendant failed to disclose safety problems of which it was aware, the omission was material because plaintiff "would not have purchased the vehicles if [defendant] had disclosed the [product's] safety risk." Connick , 174 Ill.2d at 505, 221 Ill.Dec. 389, 675 N.E.2d 584.

Here, plaintiff argues that she has alleged materiality by alleging "[h]ad [she] known at the time of purchase that the Product did not provide adequate sun protection even when used as directed, she would not have purchased it." (Complt. ¶ 35). That allegation does not make the alleged omission material, though, because the alleged omission is different. Plaintiff is not claiming defendant should have said on its label, "This product does not work when used as directed." Nor is she claiming defendant omitted entirely directions to shake the Product before use. Instead, plaintiff alleges that the Product she purchased contained directions to "SHAKE WELL before using." The alleged omission is that a consumer must "SHAKE VIGOROUSLY for ten seconds." For the alleged omission to have been a material omission, plaintiff must allege she would not have purchased the product had she known she would need to "SHAKE VIGOROUSLY for ten seconds before using." She has not so alleged.

Nor has plaintiff alleged defendant intended her to rely on the alleged deception, which is the second element of her ICFA claim. Avery , 216 Ill.2d at 180, 296 Ill.Dec. 448, 835 N.E.2d 801. Plaintiff has not plausibly alleged that defendant intended consumers to rely on the "SHAKE WELL" language. Plaintiff's theory seems to be that there is a vast difference between the two directions at issue in this case. Plaintiff seems to think that a consumer is willing to purchase a product that requires her to "SHAKE WELL" but that to require her to "SHAKE VIGOROUSLY for ten seconds" is a bridge too far. Her theory seems to be that defendant must have intended consumers to rely on "SHAKE WELL," because, if defendant had told consumers instead that they must "SHAKE VIGOROUSLY for ten seconds," consumers would not have purchased the sunscreen. Equally conceivable,³ though, is that defendant wanted to provide clear directions, because it wanted consumers to purchase not just the first bottle, but many bottles in years to come. If, as plaintiff alleges, the product works properly only if shaken properly, then defendant had a strong incentive to give clear directions. Although surely some products exist that a consumer need...