Wyant v. Dude Prods., 21-cv-00682

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Docket Number21-cv-00682
PartiesArlene Wyant, et al. individually and on Behalf of all others similarly situated, Plaintiffs, v. Dude Products, Inc. Defendant.
Decision Date03 March 2022

Arlene Wyant, et al. individually and on Behalf of all others similarly situated, Plaintiffs,

Dude Products, Inc.

No. 21-cv-00682

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

March 3, 2022



Plaintiffs Arlene Wyant, Dexter Cobb, and Josefina Darnall (“Plaintiffs”) on behalf of themselves and all others similarly situated bring this action against Dude Products, Inc. (“Dude Products”) for violation of California's Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq. (Count I); violation of California's Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq. (Count II); violation of California's False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq. (Count III); violation of New York's Gen. Bus. Law § 349 (Count IV); violation of New York's Gen. Bus. Law § 350 (Count V); Breach of Express Warranty (Count VI); Breach of Implied Warranty (Count VII); violation of Illinois Consumer Fraud Act (“ICFA”), 815 ILCS 505/1, et seq. (Count VIII); and violation of State Consumer Fraud Acts (Count IX). Currently before the Court is Defendant's motion to dismiss [21] under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the Court grants in part and denies in part Defendant's motion.


Defendant Dude Products (“Defendant”) markets and sells Dude Wipes (the “Wipes”), a line of disposable hygiene wipes. At issue is Defendant's advertisement of the product as a flushable


wipe. According to Plaintiffs, Dude Wipes are not fiushable because they do not disperse in a reasonable amount of time after flushing or clear sewage systems without causing clogs.

The First Amended Complaint ("Complaint") contains three variations of Dude Wipes packaging. The first and second describe the product as "† FLUSHABLE WIPES" and "FLUSHABLE† WIPES," respectively followed by "†SEE SIDE PANEL" and "†FOR FLUSHING, SEE SIDE PANEL"[1] (Dkt. 18 at 117). The side panel disclaimer states:

(Image Omitted)

The named plaintiffs are individuals who purchased the Wipes in Illinois, California, and New York. None of the named plaintiffs read the side panel disclaimer before purchasing. Each solely relied upon the front label's flushability claim. After flushing the Wipes, Plaintiffs experienced problems with their home plumbing systems. Legal Standard

A Rule 12(b)(1) motion challenges federal jurisdiction, including Article III standing, and the party invoking jurisdiction bears the burden of establishing the elements necessary for subject matter jurisdiction, including standing. Thornley v. Cleaniew AI, Inc., 984 F.3d 1241, 1244 (7th Cir. 2021); Int'l Union of Operating Eng'rs v. Daley, 983 F.3d 287, 294 (7th Cir. 2020). Under Rule 12(b)(1), the Court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in


the plaintiff's favor when a defendant has facially attacked standing. Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021).

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim tests the sufficiency of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion to dismiss, plaintiff must “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 complaint is facially plausible when the plaintiff alleges enough “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).


1. Standing Injunctive Relief

Defendant argues that Plaintiffs do not have standing to seek injunctive relief. To establish standing under Article III, a plaintiff must show: (1) she suffered an injury-in-fact; (2) that is fairly traceable to the defendant's conduct; and (3) that is likely to be redressed by a favorable judicial decision. Cothron v. White Castle Sys., Inc., 20 F.4th 1156, 1160 (7th Cir. 2021). To establish an injury-in-fact for injunctive relief, “a plaintiff must show that the defendant's conduct will likely cause it to suffer damages in the future.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 741 (7th Cir. 2014) (quoting Kensington's Wine Auctioneers & Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill.App.3d 1, 9, 909 N.E.2d 848, 857 (1st Dist. 2009)). Past exposure to unlawful conduct is insufficient. Id.


Defendant argues that because no consumer would repurchase a product she believes is deficient, Plaintiffs cannot establish risk of future harm. See Geske v. PNY Techs., Inc., 503 F.Supp.3d 687, 702 (N.D. Ill. 2020) (Seeger, J.) (“There is no risk of ‘fool me twice,' so there is no basis for an injunction.”). Plaintiffs respond that they remain interested in purchasing Dude Wipes if Defendant “ensured the products were actually flushable.” (Dkt. 18 at ¶¶ 11, 13, 14). This argument is not persuasive. “Once a plaintiff knows that a product is deficient, he or she is unlikely to purchase it again, and therefore unlikely to sustain future harm.” Geske, 503 F.Supp.3d at 702; see also In re Herbal Supplements Mktg. and Sales Pracs. Litig., 15-cv-5070, 2017 WL 2215025, at *7 (N.D. Ill. May 19, 2017) (St. Eve, J.) (collecting cases). Plaintiffs therefore lack standing to pursue injunctive relief.

Restitution and Disgorgement

Defendant next argues that the Court must dismiss Plaintiffs' restitution and disgorgement claims under the UCL (Count II) and FAL (Count III) because Plaintiffs have not pled that they lack an adequate remedy at law. In Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020), the Ninth Circuit held that a plaintiff “must establish that she lacks an adequate remedy at law before securing equitable restitution for past harm under the UCL and CLRA.” Plaintiffs contend that the Ninth Circuit's holding in Moore v. Mars Petcare US, Inc., 966 F.3d 1007 (9th Cir. 2020), decided one month after Sonner, warrants a different result.

Here, Sonner controls and the Moore court's cursory statement is inapposite. In Moore, the Court concluded that the remedies under the UCL, FAL and CLRA are “cumulative with one another, not with separate legal remedies.” Shay v. Apple Inc., No. 20CV1629-GPC(BLM), 2021 WL 1733385, at *4 (S.D. Cal. May 3, 2021) (quoting In re Subaru Batter Drain Prod. Liab. Litig., No. 20-cv-03095, 2021 WL 1207791, at *28 (D.N.J. Mar. 31, 2021)). So far, all district courts confronted with this issue have followed Sonner and rejected application of the footnote in Moore. Id. (collecting


cases). Because Plaintiffs do not allege that they lack an adequate remedy at law, their claims for restitution and disgorgement (Counts II and III) are dismissed. State...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT