Gordon & Rees Partners Peter Siachos, Clair Wischusen, JoAnna Doherty, and Greil Roberts obtained dismissal in the Northern District of Illinois of a six-count class action complaint alleging that their client, a national manufacturer of popular seltzer drinks, did not put enough lemon in their lemon seltzer drink in breach of express and implied warranties and in violation of the Magnusson-Moss Act, the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) and comparable consumer protection laws of other states. Other causes of action included fraud, unjust enrichment and negligent misrepresentation. The Hon. Steven C. Seeger colorfully described the case and the reasons why the complaint “gives [the] Court a decidedly sour taste”:
[The plaintiff] went to the grocery store and bought a 12-pack of lemon seltzer water, sold by [the defendant]. Anyone who glanced at the box had no doubt what thirst-quenching flavor was on tap inside. The packaging said “LEMON,” and images of lemon slices floated nearby in a tranquil sea of blue bubbly water, like citrus islands. For good measure, the box had plenty of yellow, signaling lemony flavor waiting to burst out of the cans.
[The plaintiff] apparently was none too pleased to discover that the 12-pack of carbonated water contained a 12-pack of carbonated water. She apparently wanted the cans of water to contain a bunch of juice. Not just a little juice – a big squeeze of lemon juice, right in each can. She was so troubled with the cans that she marched to the federal courthouse. She believes that the packaging is misleading because it uses the word “lemon.” The theory isn’t that the can says “lemon,” but there is no lemon. The cans apparently do, in fact, contain a little lemon. Instead, the theory is that [the plaintiff] thought that there would be more lemon. So she makes a big fuss about a little lemon. The complaint fizzles, and has no juice... the motion to dismiss is granted.
The court dismissed the ICFA claim, agreeing with the defendant that no reasonable consumer would confuse a claim about the presence of a flavor with the amount of flavor present: “This case doesn’t involve a situation where the can says ‘lemon,’ and there was no lemon. In fact, the complaint concedes that the lemon seltzer does, in fact, contain real lemon." “The claim about the amount of lemon fail[ed] for a simple reason. [The defendant] did not make any representations about the amount of lemon in each can.” In short, “without a representation, there is no misrepresentation.”
Judge Seeger found that the plaintiff’s failure to sufficiently allege that a reasonable consumer would be misled by the product’s labeling was a “kill shot” to the remainder of her claims, as each of those claims depended on the allegation that the product’s labeling is false, deceptive, or misleading.
Judge Seeger did not stop at finding that the complaint “fizzles, and has no juice.” After reviewing case law in support of dismissal and realizing that the plaintiff’s counsel was behind many unsuccessful product labeling lawsuits “covering just about every aisle in the grocery store,” he ordered the plaintiff’s counsel to identify all consumer fraud claims he has filed in federal court since January 2020 and state whether those complaints survived a motion to dismiss to determine whether “additional relief is appropriate.”