Muir v. Playtex Prods., LLC

983 F.Supp.2d 980

Kevin Muir, on behalf of himself and all others similarly situated, Plaintiff,

v.Playtex Products, LLC, and Playtex Products, Inc., Defendants.

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

13 C 3570

November 6, 2013

Patricia N. Syverson, Elaine Ryan, Bonnett Fairbourn Friedman & Balint, PC, Phoenix, AZ, Aleksandra M. S. Vold, Synergy Law Group, Gregg Michael Barbakoff, Joseph J. Siprut, Siprut PC, Stewart M. Weltman, Stewart M. Weltman, LLC, Chicago, IL, for Plaintiff.

Athanasios Papadopoulos, Neal, Gerber & Eisenberg, Chicago, IL, Jon A. Santangelo, Stinson Morrison Hecker LLP, Clayton, MO, Richard Joseph Doren, Timothy William Loose, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Defendants.

Memorandum Opinion and Order

GARY SCOTT FEINERMAN, United States District Judge

In this putative class action, Kevin Muir alleges that Playtex Products, LLC, and Playtex Products, Inc. (together, “Playtex”), sold him a diaper disposal product, the Diaper Genie II Elite, that falsely claimed on its packaging that it had been “Proven # 1 in Odor Control.” Doc. 1. The complaint advances a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1 et seq., and submits that Muir suffered an economic injury as a result of Playtex's deception. Playtex has moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and, alternatively, under Rule 12(b)(6) for failure to state a claim. Doc. 20. The motion is denied.

Background

In considering Playtex's motion, the court assumes the truth of the complaint's factual allegations, though not its legal conclusions. SeeMunson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Muir's brief opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). To the extent an exhibit attached to or referenced by the complaint contradicts the complaint's allegations, the exhibit takes precedence. SeeForrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir.2007). The following facts are set forth as favorably to Muir as these materials allow. SeeGomez v. Randle, 680 F.3d 859, 864 (7th Cir.2012).

In 2008, Playtex launched the Diaper Genie II Elite, a diaper disposal system that uses a proprietary film lining. Doc. 1 at ¶¶ 13–14, 17. Until January 2011, the front of each Diaper Genie II Elite package displayed a large gold banner stating “Proven # 1 in Odor Control* ” in large lettering. Id. at ¶ 16. According to the complaint, the asterisk referenced a disclaimer on the “back” of the package, which stated in fine print: “ *proven # 1 in odor control when tested against other major competitors that use ordinary garbagebags and/or carbon refills under the most rigorous conditions of emptying the pail.” Id. at ¶ 1 n.1. The complaint alleges that this is the “front shot” of the package:

IMAGE

Id. at ¶ 16. Playtex's motion to dismiss argues that “the photograph of the box that Plaintiff includes in his Complaint misleadingly crops off the bottom section of the front panel,” and attaches what it calls “a complete photo” of the front panel, which has the disclaimer at the bottom:

IMAGE

Doc. 22 at 13; Doc. 22–1. Muir's opposition brief responds that the photograph attached to Playtex's motion “is not a picture of the packaging on store shelves, but a picture used in an advertisement.” Doc. 26 at 10 n.6.

The court may consider “documents attached to a motion to dismiss ... [as] part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim.” Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir.2002) (quoting Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir.1994)) (alterations omitted). Although the front of the Diaper Genie II Elite package is referred to in Muir's complaint and central to his claim, the court declines at this point to accept Playtex's submission that the photograph attached to its motion accurately represents the front of the package. On a Rule 12(b)(6) motion, the court must accept the plaintiff's factual allegations and draw all reasonable inferences in the plaintiff's favor. SeeYeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir.2013). Accordingly, for purposes of this motion, the court will accept as true Muir's allegation that the disclaimer appears on the back, not the front, of the Diaper Genie II Elite package.^*

Several tests have concluded that the Diaper Genie II Elite is not superior to diaper disposal systems that, like the Diaper Genie II Elite, utilize proprietary film bags, as opposed to diaper disposal systems that use ordinary garbage bags or carbon refills. Doc. 1 at ¶¶ 17–19. In the sole test that Playtex conducted against another diaper disposal system using a proprietary film bag, the Diaper Dékor, the Diaper Genie II Elite underperformed in odor control. Id. at ¶ 17. And in 2010, Munchkin, Inc.—the manufacturer of the Arm & Hammer Diaper Pail, which also uses a proprietary film—retained an independent laboratory to test the odor control of competitor diaper pails, including the Diaper Genie II Elite. Id. at ¶ 19. The test concluded that the Arm & Hammer Diaper Pail controlled odor better than the Diaper Genie II Elite. Ibid. In November 2010, the National Advertising Division of the Better Business Bureau recommended that Playtex discontinue its “Proven # 1 in Odor Control” claim because it “convey[s] a broad claim of comparative superior product efficacy” without scientific evidence establishing its truth. Id. at ¶ 18. Playtex stopped using the “Proven # 1” claim after Munchkin filed suit against Playtex for false labeling in January 2011. Id. at ¶ 15.

In or around July 2010, Muir purchased a Diaper Genie II Elite for approximately $35 at a store in McHenry, Illinois. Id. at ¶ 9. “After reading the Product label, including Playtex's ‘Proven # 1’ claim, [Muir] purchased the Diaper Genie II Elite in reliance on the ‘Proven # 1’ claim' believing that the Diaper Genie II Elite was the superior odor control product on the market.” Ibid. “Had [Muir] known the truth about Playtex's misrepresentations and omissions, he would not have paid for the Diaper Genie II Elite. As a result, [Muir] suffered injury in fact and lost money.” Ibid.

Muir claims that Playtex violated the ICFA by having “misrepresented and deceptivelyconcealed, suppressed and/or omitted the material information known to [Playtex] as set forth above concerning the Diaper Genie II Elite.” Id. at ¶ 40. These “deceptive acts,” Muir alleges, “proximately caused [him] actual injury and damage.” Id. at ¶ 42.

Discussion

Playtex has moved to dismiss under Rule 12(b)(1) for lack of standing and under Rule 12(b)(6) for failure to state a claim. Each ground will be considered in turn.

I. Rule 12(b)(1): Whether Muir Has Standing

To establish Article III standing, a plaintiff must allege injury-in-fact, causation, and redressability. SeeLujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Muir's alleged injury is financial; he claims that if he had known that the “Proven # 1 in Odor Control” claim was false, he would not have purchased the Diaper Genie II Elite and certainly would not have paid a premium price for the product. Doc. 1 at ¶ 9 (“Had [Muir] known the truth about Playtex's misrepresentations and omissions, he would not have paid for the Diaper Genie II Elite.”); Doc. 26 at 4–5 (“Had [Muir] known the truth about [Playtex's] misrepresentation and omissions, he would not have purchased, let alone paid a premium for[,] the Product.”). Under the principles set forth in In re Aqua Dots Products Liability Litigation, 654 F.3d 748 (7th Cir.2011), these allegations are sufficient to establish standing.

The plaintiffs in Aqua Dots sued the manufacturer and distributors of a children's toy consisting of beads containing a chemical that, when swallowed, could cause severe illness and even death. Id. at 749. The plaintiffs were not physically injured children or their parents, but instead were the parents of children who had suffered no physical injury. Id. at 750. The Seventh Circuit held that the plaintiffs had Article III standing, explaining: “[The fact] that members of the class did not suffer physical injury ... does not mean that they were uninjured. The plaintiffs' loss is financial: they paid more for the toys than they would have, had they known of the risks the beads posed to children. A financial injury creates standing.” Id. at 751.

The same result obtains here. As just noted, Muir alleges that if he had known that Playtex's “Proven # 1” claim was false, he would not have purchased the Diaper Genie II Elite and certainly would not have paid a premium price. That is, Muir alleges that Playtex's product was worth less than what he paid because the product was not, in fact, better than its competitors at odor control. That is sufficient to establish standing under Aqua Dots. See alsoBridenbaugh v. Freeman–Wilson, 227 F.3d 848, 849–50 (7th Cir.2000) (holding that plaintiffs seeking to invalidate a state statute had standing where they alleged that the statute resulted in their paying a premium price for a certain wine, and noting that “this difference in price is [a] source of injury”); Lipton v. Chattem, Inc., 2012 WL 1192083, at *3–4 (N.D.Ill. Apr. 10, 2012) (same where the plaintiff alleged that the weight loss drug she bought was worth less than what she paid because it contained a dangerous ingredient and that she would not have purchased the product had she known that the drug contained that ingredient); Askin v. Quaker Oats Co., 818 F.Supp.2d 1081, 1084 (...