U.S. Court of Appeals Affirms Dismissal of Claim That Failed Under the Illinois Fraud and Deceptive Business Practices Act

Clarisha Benson and Lorenzo Smith each purchased an opaque, seven-ounce box of Fannie May chocolates for $9.99 plus tax. Benson purchased Fannie May’s Mint Meltaways and Smith purchased Fannie May’s Pixies. Although the boxes accurately disclosed the weight of the chocolate within, and the number of pieces in each box, the boxes were emptier than either had expected.

The box of Mint Meltaways contained approximately 33% empty space and the box of Pixies contained approximately 38% empty space.

The plaintiffs eventually sued Fannie May on behalf of themselves and a putative class, alleging violations of Illinois Consumer Fraud and Deceptive Business Practices Act and asserted claims for unjust enrichment and breach of implied contract.

The U.S. District Court for the Northern District of Illinois in Chicago granted Fannie May’s motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint with prejudice. The plaintiffs appealed.

The appeals panel stated that to prevail on a claim under the Illinois Consumer Fraud Act, 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.

The plaintiff found that the plaintiffs had sufficiently pleaded a deceptive act. The Food and Drug Administration (FDA) takes the position that the presence of an act or a net weight statement does not eliminate the misbranding that occurs when a container is made, formed or filled so as to being misleading.

The appeals panel found that the plaintiffs’ assertion that they and others attach importance to the size of a package is enough now to indicate that a reasonable customer does also.

Next, the panel found that the plaintiffs met the pleading standard for an unfair practice, as they claimed that they may engage in unfair conduct and averred facts that, if proved, made relief more than merely speculative.

However, the panel continued, the plaintiffs had a final hurdle: In order to sue under the State Fraud Act, they were required to show that they suffered actual damage as a result of the defendants’ violation of the act.

The panel stated that none of the plaintiffs had alleged that the seven ounces of chocolate and the box were worth less than the $9.99 they paid. The court of appeals found that this was fatal to their efforts to show pecuniary loss. As a result, the U.S. Court of Appeals for the 7^th Circuit affirmed the district court’s decision dismissing this case.

Clarisha Benson, et al. v. Fannie May Confections Brands Inc., No. 19-1032 (U.S. Court of Appeals for the 7^th Circuit, Dec. 9, 2019).

Kreisman Law Offices has been handling breach of contract lawsuits, noncompete employment contracts, business litigation and consumer fraud lawsuits for individuals and families for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Rosemont, Rolling Meadows, Schaumburg, Highland Park, Geneva, St. Charles, Palatine, Tinley Park, Skokie, Willowbrook, McHenry, Crystal Lake, Round Lake Beach, Bensenville, Chicago (Englewood, Hyde Park, Gage Park, Little Village, McKinley Park, West Garfield Park, Hermosa, Avondale, North Center, Andersonville, Uptown, Albany Park, Ravenswood Manor, Sauganash, Jefferson Park, Portage Park, Norwood Park), Harwood Heights, Norridge, Franklin Park, Park Ridge, Elk Grove Village, Wheeling and Buffalo Grove, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.