Wienhoff v. Conagra Brands, Inc.

Docket NumberCase No. 21-CV-00501-NJR
Decision Date08 September 2022
Citation626 F.Supp.3d 1015
PartiesBarbara WIENHOFF, Individually, and on Behalf of All Others Similarly Situated, Plaintiff, v. CONAGRA BRANDS, INC., Defendant.
CourtU.S. District Court — Southern District of Illinois

Spencer I. Sheehan, Sheehan & Associate, P.C., Great Neck, NY, for Plaintiff.

Angela M. Spivey, Pro Hac Vice, Alan Pryor, Pro Hac Vice, Andrew G. Phillips, Pro Hac Vice, Alston & Bird LLP, Atlanta, GA, for Defendant.



Pending before the Court is a Motion to Dismiss Plaintiff Barbara Wienhoff's Class Action Complaint filed by Defendant Conagra Brands, Inc. ("Conagra"). (Doc. 13). For the reasons set forth below, Conagra's Motion to Dismiss is granted.


Wienhoff alleges that Conagra manufactures, labels, and sells pudding. (Doc. 1, p. I). On the front label, Conagra includes the words "Pudding," "NEW SMOOTHER RECIPE!," and "Made With Real Milk." (Id. at pp. 2-3). A picture of the front label of the pudding is below:

Image materials not available for display.

The top of the pudding package also states, "Made with Real Milk" with an asterisk and four checkmarks: 0g of Trans Fat Per Serving, NO Artificial Growth Hormones Used!, NO High Fructose Corn Syrup, and NO Preservatives. (Id. at p. 3). Beneath the checkmarks, another statement with an asterisk says "*Made With Nonfat Milk." (Id. at p. 4). An image of the pudding's top label is found below:

Image materials not available for display.

The pudding package also contains an ingredients list. (Id.). Wienhoff notes "[t]he fine print of the ingredient list identifies 'Nonfat Milk' as the second most predominant ingredient, after water." (Id.).

Wienhoff purchased the pudding on at least one occasion at Dollar General in Hamel, Illinois. (Id. at p. 9). Wienhoff "bought the [pudding] because she expected a pudding product touted as 'Made With Real Milk' and having a 'Smoother' taste meant it would have whole milk, a source of milkfat." (Id.). Wienhoff alleges that "[i]n the context of a pudding product, consumers will interpret 'real milk' to mean 'whole milk.' " (Id. at 1). Wienhoff asserts "[t]he representations of 'Real Milk' give consumers the impression that the [pudding's] fat content will come exclusively or predominantly from milkfat." (Id. at p. 5). According to Wienhoff, "[c]onsumers are misled because none of the [pudding's] fat content is from milkfat." (Id.). Wienhoff then alleges "[i]t is false and misleading to consumers to highlight 'real milk' when its most significant part—milkfat —is replaced with palm oil, a cheaper and nutritionally inferior ingredient." (Id.).

Wienhoff brings a class action against Conagra with the following claims: (1) Violation of the Illinois Consumer Fraud and Deceptive Business Practice Act ("ICFA"); (2) Breaches of Express Warranty, Implied Warranty of Merchantability, and Magnuson Moss Warrant Act, 15 U.S.C. § 2301 ("MMWA"); (3) Negligent Misrepresentation; (4) Fraud; and (5) Unjust Enrichment. (Doc. 1). Conagra timely moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 13).

The Court has subject matter jurisdiction over this action pursuant to the Class Action Fairness Act ("CAFA"). 28 U.S.C. § 1332(d). Under CAFA, federal courts have jurisdiction over cases in which (1) the class consists of 100 or more members, see 28 U.S.C. § 1332(d)(5)(B); (2) any plaintiff is a citizen of a state different from that of any defendant, 28 U.S.C. § 1332(d)(2)(A); and (3) the aggregate amount of the plaintiffs' claims exceeds $5 million, exclusive of interest and costs. 28 U.S.C. §§ 1332(d)(2), (d)(6). Specifically, Wienhoff alleges "[d]iversity exists because plaintiff Barbara Wienhoff seeks to represent a class of persons who include citizens of different states from defendant." (Doc. 1, p. 9). Wienhoff defines the class as "all purchasers of the Product who reside in Illinois, Florida, Texas, Ohio, Indiana, Iowa, Minnesota, Michigan and Wisconsin, during the applicable statutes of limitations." (Id. at p. 10). It is reasonable to infer that this class includes more than 100 people based on the alleged sale price of the pudding ($1.79 for the pack of pudding), and Conagra's alleged annual sales of the pudding exceeded $5 million during the applicable statutes of limitations. (Id. at pp. 8-9). Wienhoff does not explain how Conagra's sales translate to damages, alleging only that she paid more for the pudding than it was worth. (Id. at p. 10). Nonetheless, Conagra has not challenged that there is at least $5,000,000 in controversy. Thus, for purposes of this Motion, the Court concludes Wienhoff has properly alleged subject matter jurisdiction. See Ware v. Best Buy Stores, L.P., 6 F.4th 726, 732 (7th Cir. 2021) ("Normally, a plaintiff can meet [the] pleading requirement by simply alleging a plausible amount in controversy.").1


The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the claims, not to determine the merits of the case or decide who will ultimately prevail. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, a party only needs to allege enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A party need not plead detailed factual allegations, but must provide "more than labels and conclusions, and a formulaic recitation of the elements." Id. For purposes of a motion to dismiss under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and draw all possible inferences in favor of the nonmovant. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 879 (7th Cir. 2012).

I. Standing to Pursue Injunctive Relief

There is a "split of authority on the question of whether consumer plaintiffs claiming [only that] they were deceived can pursue injunctive relief when they are aware of the deceptive practice at issue." See In re Herbal Supplements Mktg. and Sales Practices Litig., 2017 WL 2215025, at *7 (N.D. Ill. 2017) (collecting cases). Here, the split favors Conagra. Wienhoff cites Leiner v. Johnson & Johnson Consumer Companies, Inc., 215 F. Supp. 3d 670, 673 (N.D. Ill. 2016), for the notion that "even where a plaintiff is unlikely to purchase a product again, he or she can maintain standing for injunctive relief." (Doc. 18, p. 22). But the court in Leiner relied on cases from the Eastern District of New York, Central District of California, and Northern District of California—non-binding authority.

District courts within the Seventh Circuit have concluded that allegations of deceptive practices do not support standing for injunctive relief. For instance, in In re Herbal, 2017 WL 2215025, at *8, the court noted:

Moreover, beyond the persuasive force of Bohn and similar cases, the Seventh Circuit appears to endorse Defendants' argument. In Camasta v. Jos. A Bank Clothiers, the plaintiff brought a consumer fraud action based on the defendant's allegedly fraudulent sales technique. 761 F.3d 732, 734-35 (7th Cir. 2014). He claimed that had he known the truth, he would not have purchased the defendant's products. Id. at 735. The court explained that the plaintiff's claim did not entitle him to injunctive relief because "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief." Id. at 740-41 (alteration in original) (quoting O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). Camasta uses the language of Article III standing (i.e., "case or controversy"), cites O'Shea (an Article III standing case), and "[f]ederal courts must determine that they have jurisdiction before proceeding to the merits," Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (per curiam) (citing Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Thus, Camasta dealt with Article III standing. Even if Camasta were dicta, as the court found in Le v. Kohls Department Stores, Inc., 160 F. Supp. 3d 1096, 1111 (E.D. Wis. 2016), it is persuasive.

Additionally, in Ulrich v. Probalance, Inc., 2017 WL 3581183, at *7 (N.D. Ill. Aug. 18, 2017), the court acknowledged:

The Seventh Circuit seems likely to agree, based on its reasoning in a similar context that a plaintiff who was already aware of the defendant's deceptive sales practices could not obtain injunctive relief because he "is not likely to be harmed in the future." See Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 740 (7th Cir. 2014) (" '[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.' ") (quoting O'Shea, 414 U.S. at 495, 94 S.Ct. 669). Although plaintiff cites a decision that has dismissed this portion of Camasta as dicta, see Le v. Kohls Dep't Stores, Inc., 160 F.Supp.3d 1096, 1111 (E.D. Wis. 2016), the Court finds the Seventh Circuit's reasoning compelling, regardless of whether it is dicta. See in re Herbal Supplements, 2017 WL 2215025, at *8 ("Even if Camasta were dicta, as the court found in [Le], it is persuasive.").

In Geske v. PNY Techs., Inc., 503 F.Supp.3d 687, 702 (N.D. Ill. 2020), the court continued this trend finding that:

Although the Seventh Circuit hasn't directly addressed standing for injunctive relief in this context, it has offered instructive dicta. See Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (7th Cir. 2014). There, the Court of Appeals stated that, once a plaintiff is aware of a defendant's "sale practices, he is not likely to be harmed by the practices in the future." Id. at 741. Courts in this district have picked up that line of reasoning and concluded that allegations of deceptive practices, without more, do not support standing for injunctive relief.

Based on Camasta, Wienhoff, who is already aware...

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