Jump To

Top Caption Trial Court Document The text of this document was obtained by analyzing a scanned document and may have typos.

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

Feb. 13, 2026 Get Citation Alerts Download PDF Add Note

Bridget Simpson, individually and on behalf of all others similarly situated v. Walgreen Co.; Sumter Easy Home LLC; Ningbo (USA) Home-Link Plastic Product MFG., LTD.

District Court, N.D. Illinois

• Citations: None known
• Docket Number: 1:23-cv-16465

• Precedential Status: Unknown Status

• Opinion

• Authorities (48)

• Cited By (0)

• Summaries (0)

• Similar Cases (247)

• PDF

Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BRIDGET SIMPSON, individually and

on behalf of all others similarly

situated,

No. 23-cv-16465

Plaintiff,

Judge Franklin U. Valderrama

v.

WALGREEN CO.; SUMTER EASY

HOME LLC; NINGBO (USA) HOME-

LINK PLASTIC PRODUCT MFG., LTD.

      Defendants.                                                    

          MEMORANDUM OPINION AND ORDER                               

Bridget  Simpson  (Plaintiff)  purchased  plastic  cutlery  that  was  labeled 

“dishwasher safe” from a Walgreens store. When Plaintiff washed that cutlery in her
dishwasher’s lower rack, however, it melted into her dishwasher. So, Plaintiff sued,
individually and on behalf of all others similarly situated, Walgreens, Co.
(Walgreens), and Sumter Easy Home LLC (Sumter) and Ningbo (USA) Home-Link
Plastic Product Mfg., Ltd., (Ningbo), the manufacturers and distributors of the
cutlery (collectively “Defendants”), asserting a variety of consumer protection claims.
R. 1, Compl.1 Defendants move to dismiss the complaint, R. 15, Mot. Dismiss, and
move to strike the class action allegations, R. 16, Mot. Strike. For the reasons stated
in this opinion, the Court grants in part and denies in part the motion to dismiss and
denies the motion to strike.

1Citations to the docket are indicated by “R.” followed by the docket number or filing name, and,
where necessary, a page or paragraph citation.

Background?
Plaintiff is a citizen of California and resides in Riverside, California. Compl.
4 8. In May of 2022, Plaintiff purchased Complete Home Heavy Duty (Complete
Home) plastic cutlery at a Walgreens store in Riverside. Jd. The front and back of the
product were labeled “DISHWASHER SAFE” and “HEAVY DUTY?” in all caps. Id.
The sides of the product were also labeled “HEAVY DUTY.” Jd. Plaintiff purchased
the product in part because she believed it was dishwasher safe. Id. | 9. To Plaintiffs
understanding, “dishwasher safe” means it can be washed anywhere in the
dishwasher, and means something different than “top-rack-only” dishwasher safe.
After using the plastic cutlery Plaintiff washed the cutlery in her dishwasher’s
cutlery basket on the lower rack, where it melted into her dishwasher. Id. { 10. As it
turns out, the bottom of the Complete Home box cautions: “DISHWASHER SAFE IF
CLEANED ON THE TOP RACK.” Td. { 28.

                  cOMELETe 
                  HOME 

                    TY)      oy  IMM  eee 
                  |                 cer   WII     VOO>. tiaras 
                           j      □□□□□□□□□□□□□□□□□□□□□ 

Id. Plaintiff relied on the “dishwasher safe” label when she purchased—and later

?The Court takes the following allegations as true at this stage and makes all reasonable inferences
in favor of the Plaintiff. See R. 1, Compl.; McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879 (7th
Cir. 2012).

washed—the product, and that she would not have purchased it, or at least would not
have paid as much, had she known it could only be washed on the top rack. Id. ¶ 11.
Plaintiff alleges that the labels “dishwasher safe” and “heavy duty” on

Complete Home’s packaging are misleading. Id. According to Plaintiff, it is common
practice in the plastic dish industry to clearly indicate when a product can only be
washed safely on the top rack. Id. ¶ 20–25. In fact, the commonly used “dishwasher
safe” symbols are distinct from the “top rack only” symbols. Id. ¶ 23. The way Plaintiff
sees it, the label “dishwasher safe,” with no qualifiers, means that the product can be
washed anywhere in the dishwasher. Id. ¶ 25. These labels are particularly important

for cutlery, because a dishwasher’s cutlery basket is ordinarily located on the bottom
rack. Id. ¶ 26. Thus, when Complete Home’s cutlery product contains prominent
labels of “dishwasher safe” and “heavy duty,” but only disclose that it is “top rack
only” on the bottom of the box, from Plaintiff’s point of view, it creates the false
impression that the product is dishwasher safe. Id. ¶ 33.

Plaintiff, on behalf of herself and all consumers who purchased Complete
Home Heavy Duty plastic cutlery at Walgreens stores sued Defendant Walgreens,

and Defendants Sumter and Ningbo, the manufacturer, and distributor of the cutlery.
Id. ¶ 14–15. Plaintiff brings claims on behalf of a California subclass, asserting
violations of the California Consumers Legal Remedies Act, CAL. CIV. CODE §§ 1750,
et seq., the California False Advertising Act, CAL. BUS. & PROF. CODE § 17500 et seq.,
California’s Unfair Competition Law, CAL. BUS. & PROF. CODE § 17200 et seq., and
breach of implied warranty under CAL. COMMERCIAL CODE § 2314(2)(f). On behalf of
the entire class, Plaintiff asserts state law claims of common law fraud, unjust
enrichment, intentional misrepresentation, and negligent misrepresentation.
Plaintiff seeks damages and injunctive relief.

Defendants now move to dismiss Plaintiff’s complaint under Federal Rule of 

Civil Procedure 12(b)(6) for failure to state a claim and under Rule 12(b)(1) for lack
of standing to pursue injunctive relief. See generally Mot. Dismiss. They also move to
strike the class action allegations under Rule 23. See generally Mot. Strike. The fully
briefed motion is before the Court.

Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the 

complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009). Under Federal Rule of Civil Procedure 8, a complaint must
include only “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, a complaint
need only contain factual allegations, accepted as true, sufficient to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. The allegations
“must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. The allegations that are entitled to the assumption of truth are those
that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.

A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction.
FED. R. CIV. P. 12(b)(1); Hallinan, 570 F.3d at 820. Standing is an “essential
component of Article III’s case-or-controversy requirement,” and the plaintiff “bears

the burden of establishing standing . . . in the same way as any other matter on which
the plaintiff bears the burden of proof . . . .” Apex Digit., Inc. v. Sears Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009).

To survive a Rule 12(b)(1) motion, the plaintiff bears the burden of establishing
subject matter jurisdiction. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770
F.3d 586, 588–89 (7th Cir. 2014). When deciding a facial challenge to subject matter

jurisdiction—that is, when the defendant argues that the plaintiff’s allegations as to
jurisdiction are inadequate—“the court must accept all well-pleaded factual
allegations as true and draw all reasonable inferences in favor of the plaintiff.” Silha
v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (citing Apex Digit., 572 F.3d at 443–
44).

Analysis

I. Defendants’ Rule 12(b)(6) Motion

The Court begins with Defendants’ motion to dismiss under Rule 12(b)(6) for
failure to state a claim.3

3Federal courts “have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.” Word Seed Church v. Vill. of Hazel Crest, 111 F.4th 814, 819 (7th Cir. 2024) (citation omitted). This Court has subject matter jurisdiction under
the Class Action Fairness Act (CAFA) 28 U.S.C. § 1332 (d). Plaintiff alleges that she is a citizen of
California, Compl. ¶ 8, and Walgreens is an Illinois corporation and headquartered in Illinois, R. 22
at 2. Thus, at least one Defendant is a citizen of a different state than at least one Plaintiff, and
minimal diversity is satisfied. Further, Plaintiff alleges that the amount in controversy across the
entire class is greater than $5 million. Compl. ¶ 16.

A. CLRA, FAL, and UCL “Reasonable Consumer” Standard

In Counts I, II, and III, Plaintiff asserts claims under the California
Consumers Legal Remedies Act (CLRA), California’s False Advertising Law (FAL),

and California’s Unfair Competition Law (UCL) respectively. Although they are
different, each of these statutes bars relatively similar conduct. The CLRA “prohibits
‘unfair methods of competition and unfair or deceptive acts or practices.’” Williams v.
Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citing CAL. CIV. CODE § 1770).
The FAL similarly prohibits any “unfair, deceptive, untrue, or misleading
advertising.” Id. (citing CAL. BUS. & PROF. CODE § 17500)). Finally, the UCL

“prohibits any ‘unlawful, unfair or fraudulent business act or practice.’” Id. (citing
CAL. BUS. & PROF. CODE § 17200)). All of these claims have one element in common:
under California law, the plaintiff must allege that the advertisement misleads a
“reasonable consumer.” Id. (“claims under these California statutes are governed by
the ‘reasonable consumer’ test”).4

Under the reasonable consumer standard, a plaintiff must “show that
‘members of the public are likely to be deceived.’” Ebner v. Fresh, Inc., [838 F.3d 958,

965](https://www.courtlistener.com/opinion/8442970/ebner-v-fresh-inc/#965) (9th Cir. 2016) (citation omitted).

This requires more than a mere possibility that [the] label “might conceivably

4“When a federal court sits in diversity, ‘we look to the choice-of-law rules of the forum state to
determine which state’s law applies’” to the issues before it. Sosa v. Onfido, Inc., 8 F.4th 631, 637 (7th
Cir. 2021). “Illinois follows the Restatement (Second) of Conflicts of Laws and uses the ‘most significant
relationship’ test to decide choice-of-law issues.” Siegel v. Shell Oil Co., 256 F.R.D. 580, 585 (N.D. Ill.
2008), aff’d, 612 F.3d 932 (7th Cir. 2010) (citing Carris v. Marriott Int’l, Inc., 466 F.3d 558, 560 (7th
Cir. 2006). In the consumer protection context, “where a plaintiff relies on a representation in the same
state where that representation was made and received, the law of that state applies.” Id. (citing
RESTATEMENT (SECOND) OF CONFLICTS OF LAW § 148(1) (1971)). Plaintiff both received and relied on
the representation at issue in California. Thus, the Court applies California substantive law in
deciding Plaintiff’s state law claims.

be misunderstood by some few consumers viewing it in an unreasonable
manner.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 129 Cal. Rptr.
2d 486, 495 (2003). Rather, the reasonable consumer standard requires a
probability “that a significant portion of the general consuming public or of
targeted consumers, acting reasonably in the circumstances, could be misled.” Id. Id. at 965.

Defendants argue that Plaintiff fails to state a claim under these statutes
because it is not plausible that a significant portion of reasonable consumers would
be deceived by the Complete Home packaging. Specifically, they maintain that no
reasonable consumer could be misled by the labeling because (1) it is in fact labeled
as top-rack-only dishwasher safe on the bottom of the box; (2) Plaintiff does not allege
that she was unaware of the top-rack-only label; and (3) there is no label stating that
the product is safe for the bottom rack. Mot Dismiss at 3–6. At most, submit
Defendants, the label “dishwasher safe” is ambiguous. Mot Dismiss at 4.

Defendants lean heavily on McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023) for the proposition that when a label is merely ambiguous, it is not
misleading, and that a reasonable consumer would check the bottom of the box for
more details. Mot Dismiss at 4–6. In McGinity, the Ninth Circuit held that a shampoo
and conditioner line named “Pantene Pro-V Nature Fusion,” which featured the
image of an avocado and a green leaf, did not mislead consumers into thinking the
shampoo had natural products, because it did “not promise that the product is wholly
natural,” made no “affirmative promise about what proportion of the ingredients were
natural,” and instead, a reasonable consumer would understand the name “Nature
Fusion” to mean any number of things. Id. at 1098. While the front label was not
misleading, it was ambiguous, but any reasonable consumer, concluded the court,
would resolve that ambiguity by reference to the back label, which clarified that the
smoothness of the shampoo and conditioner products were simply inspired by nature. Id. at 1099; See also Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 2021) (holding
no reasonable consumer would expect “100% New Zealand Manuka Honey”—which
was by definitively and undisputedly entirely composed of New Zealand Manuka
honey—to also mean that every contributing bee only pollinated the Manuka flower).
Defendants argue that, in this case, as in McGinity, the packaging for the
plastic cutlery clarifies any potential ambiguity with term “dishwasher safe” by

adding in all caps the statement “dishwasher safe if cleaned on the top rack.” Mot at
6.

Plaintiff counters, as an initial matter, that whether a representation is likely
to deceive a reasonable consumer “is almost always a question of fact, not appropriate
for resolution on a motion to dismiss.” Resp. at 3 (citing Williams, 552 F.3d at 928–
39). On a more substantive level, Plaintiff argues that “disclosures that are not on
the consumer-facing front label do not cure misleading front-label representation

because a reasonable consumer is ‘not expected to look beyond misleading
representations on the front of the box to discover the truth in fine print on the back
label.’” Id. (quoting Williams, 552 F3d. at 939)).

In Williams the front label of defendant’s fruit juice box contained the phrase
“fruit juice snacks,” pictures of fruits and the side label stated that the product was
made with “real fruit juice and all other natural ingredients.” Id. at 936. However,
when consumers turned the package over, they would discover that the product did
not contain juice from any of the fruits pictured on the front. The Ninth Circuit held
that the product could lead a reasonable consumer to falsely believe the drink

contained the pictured fruits and all-natural ingredients, despite the ingredient list
stating that the two most prominent ingredients were sugar and corn syrup, and the
only fruit used was grape. 552 F.3d at 938–39 (reversing district court’s dismissal of
consumer protection claims for failure to state a claim). The Ninth Circuit rejected
the idea that a consumer should be expected to check an ingredient list for
misrepresentations; instead, “reasonable consumers expect that the ingredient list

contains more detailed information about the product that confirms other
representations on the packaging.” Id. at 939–41. As for McGinity, that case, submits
Plaintiff, is distinguishable because in that case it was clear that the phrase “Nature
Fusion” was ambiguous. Resp. at 4. Here, according to Plaintiff, there is nothing to
support the contention that the term “dishwasher safe” is ambiguous. The Court
finds that Plaintiff has the better of the argument.

For starters, Plaintiff is correct that dismissal at the pleading stage is rare.

Williams, 552 F.3d at 939. Next, while Defendants rely heavily on McGinty for the
proposition that a front label must be unambiguously deceptive to preclude a
defendant from insisting that courts look at the back label in tandem with the front
label in determining whether the product is misleading, that standard has since been
clarified. In Whiteside v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024), the
Ninth Circuit reversed the dismissal of consumer protection claims. There, the
plaintiffs claimed that they had been deceived by baby wipes that prominently
displayed they were “’Plant-based,” even though the back of their packaging
disclaimed that they included synthetic ingredients.” Id. at 775–76. The court held

the claims plausible because a disclaimer on the back label of a package is not
necessarily sufficient to dispel the deception caused by a misleading statement on the
package’s front. Id. at 778–79.

Based on the allegations in the complaint, the Court finds that Plaintiff
plausibly alleges that the front label of the Complete Home plastic cutlery is
unambiguously deceptive to a reasonable consumer. Plaintiff alleges that the product

states that it is “dishwasher safe.” Compl. ¶ 20–26, 33. Further, Plaintiff alleges that
“dishwasher safe” means both to the industry and consumers that a product can be
washed anywhere in the dishwasher. Id. Thus, a reasonable consumer would have no
reason to look at that statement and seek further clarification on whether it was only
safe for the top rack. In short, the Court finds that taking all inferences in favor of
the Plaintiff, that a reasonable consumer would look at a box of “heavy duty” plastic
cutlery labeled as “dishwasher safe” on the front and take it at its word. Whether this

statement is ambiguous is an issue for another day.5 See Williams, 552 F.3d at 938 (“whether a business practice is deceptive will usually be a question of fact”). In sum,
the Court finds that Plaintiff has plausibly alleged that a reasonable consumer would
be misled by the packaging.

5The Court declines to consider the evidence Defendants cite to in support of their argument at this
stage. See Mot. Dismiss at 4 n.1.

B. CLRA Statutory Notice Requirements

Defendants separately move to dismiss Plaintiff’s CLRA claim for failure to
allege compliance with the statute’s pre-suit notice requirement. Mot. Dismiss at 6-

1. 
   Section 1782 of the CLRA provides that “[t]hirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall”: “(1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by” the CLRA, and “(2) [d]emand that the person correct, repair, replace, or otherwise rectify the goods or services.” CAL. CIV. CODE § 1782(a).

Further, the statute requires that the notice be in writing, sent by certified or
registered mail with a return receipt requested, “to the place where the transaction
occurred or to the person’s principal place of business within California.” Id.
Defendants do not dispute that Plaintiff gave some form of notice, but argue that the
notice was deficient. Defendants attach Plaintiff’s pre-suit demand letter to their
motion to dismiss,6 and it is only addressed to Walgreens’ agent in California and
their Illinois headquarters. See generally Ex. 1, Mot. Dismiss.

Plaintiff’s notice states:                                           
Pursuant to Cal. Civ. Code § 1782, on May 2, 2023, counsel mailed a notice and 
demand letter by certified mail, with return receipt requested, to Defendant 
Walgreens. Defendant Walgreens received the notice and demand letter on 
May 3, 2023. Defendants Sumter and Ningbo’s parent company confirmed 
receipt of the letter on June 7, 2023. The CLRA letter that provided notice of 
Defendants’ violation of the CLRA demanded Defendant Walgreens correct, 

6Plaintiff does not oppose consideration of the demand letter, and because the notice letter is
referenced in the Complaint and central to the Plaintiff’s CLRA claim, the Court can consider it under
the incorporation-by-reference doctrine. See In re Harley-Davidson Aftermarket Parts Mktg., Sales
Pracs. & Antitrust Litig., 151 F.4th 922, 926 (7th Cir. 2025).

repair, replace, or otherwise rectify the unlawful, unfair, false, and deceptive
practices complained of herein. The letter also stated that if Defendant
Walgreens refused to do so, Plaintiff would file a complaint seeking damages
in accordance with the CLRA. Defendants failed to comply with the letter.

Compl. ¶ 70. Defendants argue that the notice is deficient because Plaintiff did not
(1) allege that she mailed Defendants Sumter or Ningbo any pre-suit notice, only that
they acknowledged receipt of the letter, or (2) allege that she sent Walgreen’s notice
“to the place where the transaction occurred” or to Walgreen’s principal place of
business in California. § 1782(a). Mot. Dismiss at 7. Defendants contend that courts
require “strict compliance” with the statute’s notice requirements. Mot. Dismiss at 6
(citing Corbett v. PharmaCare U.S., Inc., 567 F. Supp. 3d 1172, 1201 (S.D. Cal. 2021).
Plaintiff does not dispute that she did not serve notice on Defendants Ningbo
or Sumter, or that she did not serve Walgreens at “the place where the transaction
occurred” or at Walgreen’s “principal place of business within California.” Instead,
she argues that courts do not demand strict compliance with the statute but instead
examine whether a plaintiff’s notice is in accordance with the purpose of the statute’s
notice requirements. Resp. at 5 (citing Morgan v. AT&T Wireless Servs., Inc., 177 Cal.
App. 4th 1235 (Cal. Ct. App. 2009)). In reply, Defendants argue that even after
Morgan, courts routinely dismiss CLRA’s claims, including without leave to amend,
where the plaintiff did not strictly comply with the statutory notice requirements.
Reply at 4 (citing Fish v. Aviation, 2019 WL 690286 (N.D. Cal. Feb. 19, 2019), among

others).

“The CLRA’s notice requirement is not jurisdictional, but compliance with this
requirement is necessary to state a claim.” Cattie v. Wal-Mart Stores, Inc., 504 F.
Supp. 2d 939, 949 (S.D. Cal. 2007) (citation omitted). There is some variation as to
how strictly courts enforce the notice requirement. See Parrish v. Volkswagen Grp. of
Am., Inc., 463 F. Supp. 3d 1043, 1059 (C.D. Cal. 2020) (discussing split among courts)

(“the Ninth Circuit has noted that ‘there is a split in authority on whether the CLRA
requires strict compliance with its notice provision’ and has declined to ‘weigh in on
this issue’” (citing Janda v. T-Mobile USA, Inc., 378 F. App’x 705, 708–09 (9th Cir.
2010)).

In Corbett, for example, the case relied on by Defendants, the court dismissed
the complaint for failure to comply with the CLRA’s notice requirements because the

plaintiff did not identify the specific violation and did not send notice to the
defendant’s principal place of business in California. Corbett v. PharmaCare U.S.,
Inc., 567 F. Supp. 3d 1172, 1201 (S.D. Cal. 2021). Corbett noted the California Court
of Appeals holding in Morgan that the notice “requirement exists in order to allow a
defendant to avoid liability for damages if the defendant corrects the alleged wrongs
within 30 days after notice, or indicates within that 30–day period that it will correct
those wrongs within a reasonable time.” Id.; 99 Cal. Rptr. 3d 768, 789. Dismissal with

prejudice, however, is not required to satisfy the purpose of the statute. Id. Since
Corbett and Morgan, other district courts have followed suit and dismissed CLRA
claims that fail to comply with the notice requirement without prejudice, “until 30
days or more after the plaintiff complies with [the CLRA’s notice requirements].” Oh
v. Catalina Snacks, Inc., 764 F. Supp. 3d 903, 920 (C.D. Cal. 2025) (citation omitted).

While Plaintiff invites the Court to find that strict compliance is not required,
the Court declines to do so here. Plaintiff has not cited any case that excuses the
notice requirements under these circumstances. Plaintiff did not serve notice on
Ningbo or Sumter at all. And Plaintiff’s argument that she served notice on Walmart

fares no better, because Plaintiff does not dispute that she did not serve Walgreens
at the place where the transaction occurred, or at Walgreen’s principal place of
business in California. Resp. at 5–6.

Accordingly, the Court finds that Plaintiff has failed to serve proper pre-suit
notice under the CLRA. Plaintiff’s CLRA claims are dismissed without prejudice until
30 days after proper notice is served.

C.   Breach of Implied Warranty                                      
In Count IV, Plaintiff asserts a claim for breach of warranty of merchantability 

under California Commercial Code § 2314.

Under California law, “a warranty that the goods shall be merchantable is
implied in a contract for their sale.” Nacarino v. KSF Acquisition Corp., 642 F. Supp.
3d 1074, 1086 (N.D. Cal. 2022) (citing CAL. COM. CODE § 2314(1)). The term
“merchantable” requires that a product “conform to the promises or affirmations of

fact made on the container or label if any.” Id. (citing § 2314(2)(f)). To state a claim,
a plaintiff must allege that “(1) the seller’s statements constitute an affirmation of
fact or promise or a description of the goods; (2) the statement was part of the basis
of the bargain; and (3) the warranty was breached.” Scott v. Saraya USA, Inc., 675 F.
Supp. 3d 1040, 1049 (N.D. Cal. 2023).7 “To constitute a warranty and be actionable,
the statement must be specific and unequivocal.” Tarvin v. Olly Pub. Benefit Corp., 756 F. Supp. 3d 797, 807 (C.D. Cal. 2024).

Defendants move to dismiss this claim on the basis that Plaintiff has not 

identified any “promise or affirmation of fact to which the product did not conform.”
Mot. Dismiss at 8. Defendants point to Martinez v. Mead Johnson & Co., LLC, 2022
WL 15053334 (C.D. Cal. Oct. 22, 2022) in support of their position. In Martinez the
court granted a motion to dismiss, finding that the representation that an infant
formula was “milk-based” was not a specific and unequivocal statement promising

that the formula was predominantly milk.” Id. at *5. The court, however,
acknowledged that “contexts do vary, and they do matter.” Id. General statements
that a product is “based” on something may be reasonably interpreted as being
“predominantly” made of that thing in certain contexts, but in the infant formula
context, a consumer could easily turn the product around and see that milk is an
ingredient, just not the main one. Id. at *5–6. A consumer may be misled, but
misunderstandings are insufficient to state a breach of warranty claim. Id. at *6.

Defendants argue that this case is similar to Martinez because “the package’s
statement that the plastic cutlery was ‘dishwasher safe’ is not even alleged to be
false.” Mot. Dismiss at 8.

Plaintiff responds that the statement “dishwasher safe” is more than

7This Court also turns to cases examining breach of express warranty for guidance, because where
claims for breach of express warranty and implied warranty are based on the same language, they rise
and fall together. Tarvin, 756 F. Supp. 3d at 807.

misleading, it is false, and therefore a promise to which the product did not conform.
Resp. at 6. Under the statute, this is sufficient. Id. (citing CAL. COM. CODE §
2314(2)(f)).

Here, taking the allegations in the Complaint as true, the Court finds that 

Plaintiff has plausibly alleged a specific and unequivocal statement: that the product
is dishwasher safe. As explained above, Plaintiff alleges that the industry treats each
of these terms differently. Plaintiff alleges that the product did not conform to the
promise that the goods were “dishwasher safe,” and that she would not have been
willing to buy them at that price, or at all, had she known they were not dishwasher

safe. Compl. ¶¶ 92–100. In short, “dishwasher safe” is more than misleading; it
directly contradicts “top-rack-only.”

Defendants also argue in a footnote8 that vertical privity cannot exist in a
breach of warranty claim, so Defendants Ningbo and Sumter are improper
Defendants. Under California Commercial Code section 2314, “a plaintiff asserting
breach of warranty claims must stand in vertical contractual privity with the
defendant.” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008).

Ordinarily, a buyer and seller stand in privity, and “an end consumer such as
[Plaintiff] who buys from a retailer is not in privity with a manufacturer.” Id. Plaintiff
counters that she falls under an exception to this rule, that is, she relied on written

8“A party may waive an argument by presenting it only in an undeveloped footnote.” Evergreen Square
of Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., 848 F.3d 822, 829 (7th Cir. 2017) (citing United
States v. Warner, 792 F.3d 847, 856 (7th Cir. 2015); J. Valderrama Standing Order, Memorandum of
Law Requirements (“Generally, the Court will not consider substantive arguments contained in
footnotes.”).

labels or advertisements of a manufacturer. Resp. at 6 n.1. Further, Plaintiff claims
that “[a]n exception to the privity requirement also exists where a plaintiff is an
intended third-party recipient of the product.” Id. In other words, Plaintiff argues

that she is an intended third-party beneficiary of the implied warranties between
Walgreens and Ningbo and Sumter. Defendants’ reply fails to address this argument
and Defendants therefore waive any response. See generally R. 30, Reply Mot.
Dismiss; In re GT Automation Grp., Inc., 828 F.3d 602, 605 (7th Cir. 2016) (“An
argument not responded to is ordinarily deemed waived.”).

An exception to the privity rule for express warranty claims arises “when the

plaintiff relies on written labels or advertisements of a manufacturer.” Clemens, 534
F.3d at 1023. Plaintiff has alleged that she relied on advertisements and labels made
by Ningbo and Sumter. However, the exceptions listed in Clemens are dicta, as the
plaintiff in that case did not make the argument that the exception based on the
statement of a manufacturer applied. Further, California district courts have more
recently confirmed that the “exception to the privity requirement [of the labels of the
manufacturer] exists but only as to breach of express warranty, and not breach of

implied warranty.” Hilsley v. Ocean Spray Cranberries, Inc., 2018 WL 6300479, at
*11 (S.D. Cal. Nov. 29, 2018) (citing Burr v. Sherwin Williams Co., 42 Cal. 2d 682,
696 (1954)); see also Ostenfeld v. Laundress, LLC, 2024 WL 967124, at *8 (S.D.N.Y.
Mar. 5, 2024) (“There is ‘some ambiguity in the case law’—apparently stemming from
dicta in Clemens itself—as to” the vertical privity exceptions in implied warranty
claims. “In the years since, however, California courts appear to have course-
corrected and reaffirmed the California Supreme Court’s holding in Burr v. Sherwin
Williams Co., 42 Cal.2d 682 (1954)”).

Plaintiff only brings a claim for breach of implied warranty, and Burr is clear

that the exception Plaintiff invokes is only applicable to claims for breach of express
warranty. Burr, 42 Cal. 2d at 696 (“[T]he ... exception, where representations are
made by means of labels or advertisements, i[s] applicable only to express
warranties.”); see Quinn v. Proctor & Gamble Co., 2026 WL 26081, at *8 (S.D. Cal.
Jan. 5, 2026) (“regarding the advertising exception, [p]laintiff brings an implied
warranty claim, so [p]laintiff cannot use this exception as it only applies in express

warranty claims”). Consequently, the Court finds that the exception does not apply.

As for Plaintiff’s argument that she is an intended third-party recipient of
implied warranties between Walgreens and Ningbo and Sumter, “[t]he Ninth Circuit
has not explicitly recognized the existence of an exception to the privity requirement
for third-party beneficiaries,” and Clemens did not discuss any such exception.
Valentine v. Crocs, Inc., 783 F. Supp. 3d 1204, 1213–14 (N.D. Cal. 2025) (declining to
apply third-party beneficiary exception). Those cases that have found the exception

to apply have been based on the California Supreme Court’s decision in Gilbert
Financial Corp. v. Steelform Contracting Co., 82 Cal. App. 3d 65, 69 (1978), which
involved the “very specific factual scenario involving a construction contract between
a contractor and a sub-contractor.” Quinn, 2026 WL 26081, at *10 (collecting cases).
While there is a split on this issue, recent courts have declined to apply the exception
to consumers purchasing goods from retail stores. See id.; Valentine, 783 F. Supp. 3d
1204. Finally, as Clemens recognized, “California courts have painstakingly
established the scope of the privity requirement . . . , and a federal court sitting in
diversity is not free to create new exceptions to it.” Clemens, 534 F.3d at 1024.

Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s breach of
implied warranty claim.

D. Common Law Claims

Defendants move to dismiss Plaintiff’s common law claims (Count V–VIII) for
common law fraud, unjust enrichment, intentional representation, and negligent
misrepresentation.

1.  Common Law Fraud (Count V); Intentional Misrepresentation (Count VII) 
  and Negligent Misrepresentation (Count VIII).                      

California law treats the torts of intentional misrepresentation and negligent 

misrepresentation as forms of common law fraud, so the Court evaluates these claims
together. Tarvin, 756 F. Supp. 3d at 808 (collecting cases equating common law fraud
with intentional misrepresentation and negligent misrepresentation).

Under California law, the “elements of fraud are: (1) a misrepresentation (false
representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter);
(3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting
damage.” Robinson Helicopter Co. v. Dana Corp., 102 P.3d 268, 274 (2004).
Because the “common law fraud, CLRA, FAL, and UCL causes of action are all
grounded in fraud, the [Complaint] must satisfy the traditional plausibility standard
of Rules 8(a) and 12(b)(6), as well as the heightened pleading requirements of Rule
9(b).” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 (9th Cir. 2018). To satisfy
Rule 9(b), “a pleading must identify the who, what, when, where, and how of the
misconduct charged, as well as what is false or misleading about the purportedly
fraudulent statement, and why it is false.” Id. (citation omitted).

For claims based on deceptive product packaging or labeling, many courts in 
California have applied a relatively straightforward test for the application of 
Rule 9(b): The ‘who’ is the defendant; the ‘what’ is the allegedly misleading 
packaging; the ‘when’ is the proposed class period during which time the 
packaging was deceptive; the ‘where’ is the packaging containing the allegedly 
misleading statement—or in the case of deceptive packaging, the packaging 
itself—and the ‘how’ is the plaintiff's explanation for why the packaging is 
misleading.                                                          

Oh, 764 F. Supp. 3d at 913 (citation omitted).

It is true that “Rule 9(b) does not allow a complaint to merely lump multiple
defendants together but ‘require[s] plaintiffs to differentiate their allegations when
suing more than one defendant . . . and inform each defendant separately of the
allegations surrounding his alleged participation in the fraud.” Swartz v. KPMG LLP, 476 F.3d 756, 764–65 (9th Cir. 2007) (alteration in original) (affirming finding that
plaintiff did not properly differentiate among defendants in civil RICO case); see also
Rocha v. Rudd, 826 F.3d 905, 911 (7th Cir. 2016) (“this court has previously ‘rejected
complaints that have “lumped together” multiple defendants’”). “In the context of a
fraud suit involving multiple defendants, a plaintiff must, at a minimum, ‘identif[y]
the role of [each] defendant[ ] in the alleged fraudulent scheme.’” Swartz, 476 F.3d at
764–65 (alterations in original) (citation omitted).

The tort of negligent misrepresentation does not require scienter or intent to
defraud, but rather “encompasses the assertion, as a fact, of that which is not true,
by one who has no reasonable ground for believing it to be true,” and “the positive
assertion, in a manner not warranted by the information of the person making it, of
that which is not true, though he believes it to be true.” Small v. Fritz Companies,
Inc., 65 P.3d 1255, 1258 (2003) (cleaned up) (citing CAL. CIV. CODE, § 1572, subd. 2).

As an initial matter, Defendants argue that Plaintiff fails to plead her fraud 

claim with particularity because she did not allege which Defendant made the
misrepresentation. Mot. Dismiss at 10. On a more substantive basis, Defendants
contend that Plaintiff fails to even allege the existence of a false statement or material
omission. Id. The way Defendants see it, there are no allegations that the product is
not “dishwasher” safe. Id.

Plaintiff counters that she has pled the “who, what, when, where, and how” 

required by Rule 9(b), and that she has properly alleged that all Defendants were
responsible for the statement. Resp. at 7–8. Further, she argues that the front-label
statement that the product was dishwasher safe was false, because a product that
can only be washed on the top rack is not actually dishwasher safe. Resp. at 8.

The Court begins with Defendants’ arguments that the statement “dishwasher
safe” is not fraudulent. California’s statutory claims for misleading advertising are

distinct from common law fraud, because while the statutes only require that a
reasonable consumer is likely to be deceived, a common law fraudulent statement
“must be actually false, known to be false by the perpetrator and reasonably relied
upon by a victim who incurs damages.” In re Tobacco II Cases, 207 P.3d 20, 29 (2009).
“Thus, a ‘perfectly true statement couched in such a manner that is likely to mislead
or deceive the consumer, such as by failure to disclose other relevant information’
may be actionable under consumer protection statutes but not common law fraud.”
Tarvin, 756 F. Supp. 3d at 808.

Defendants maintain that the statement that the plastic cutlery was

“dishwasher safe,” even if misleading, was also perfectly true. It could in fact be
washed safely in the dishwasher, but only on the top rack. As explained before,
however, Plaintiff alleges that “dishwasher safe” has a different meaning than top-
rack-only—to consumers and the industry, it means it can be washed anywhere in
the dishwasher. Taking all inferences in favor of the Plaintiff, the term “dishwasher
safe” was not just misleading, but false. Scott, 675 F. Supp. 3d at 1044 (denying

motion to dismiss consumer protection and fraud claims). Accordingly, the Court
finds that Plaintiff has properly alleged a false statement. See also Davidson, 889
F.3d at 964–65 (affirming denial of motion to dismiss fraud claims where plaintiff
alleged “flushable” label was false, because although the wipes can pass through
home pipes, truly “flushable” wipes must disperse quickly enough to not damage
sewers and septic systems). Plaintiff also alleges that she relied on this statement in
purchasing the product. The Court turns to the Defendants’ argument that Plaintiff

failed to specify each Defendants’ role.

Here, Plaintiff alleges that all Defendants are responsible for the statement
but differentiates between their roles. Specifically, Walgreens sells and markets the
product in its retail stores, and Ningbo and Sumter manufacture the product and
packaging, then market, sell, and distribute the product to stores like Walgreens. See
Dubrosky v. Am. Honda Motor Co., 2025 WL 2451031, at *4 (C.D. Cal. Aug. 13, 2025)
(denying motion to dismiss where plaintiff alleged defendants largely committed the
same acts, “there was no reason (and no way) for [plaintiffs] to differentiate among
those allegations that are common to [both defendants].”). Accordingly, the Court

finds that Plaintiff has satisfied the requirements of Rule 9(b).

Defendants separately move to dismiss the Plaintiff’s negligent
misrepresentation claim under the economic loss rule. This doctrine “prevents a party
to a contract from recovering economic damages resulting from breach of contract
under tort theories of liability.” Rattagan v. Uber Techs., Inc., 19 F.4th 1188, 1190 (9th Cir. 2021), certified question answered, 553 P.3d 1213 (2024). In other words, if

the “breach of duty is nothing more than a violation of a promise which undermines
the expectations of the parties to an agreement,” the tort claim is barred. PMM
Holdings, LLC v. Meyer, 2025 WL 3764051, at *17 (E.D. Cal. Dec. 30, 2025) (citation
omitted). “The rule prevents the law of contract and the law of torts from dissolving
one into the other.” Rattagan, 19 F.4th at 1191 (cleaned up). Defendants argue that
Plaintiff has only alleged “disappointed expectations” at Defendants’ alleged failure
to meet their contractual promise that the cutlery was dishwasher safe. Mot. Dismiss

at 13. Not so counters Plaintiff, as California law does not apply the economic loss
doctrine to fraud and misrepresentation claims. Resp. at 10–11. The Court agrees
with Plaintiff.

California law is clear that “the economic loss rule does not bar fraud claims
premised on affirmative misrepresentations” because they are independent from the
breach of contract. Rattagan, 19 F.4th at 1191 (citing Robinson, 102 P.3d 268, 274 (defendant’s tortious conduct was separate from the breach of contract)). Here,
Plaintiff alleges that Defendants made an affirmative misrepresentation that the
product was dishwasher safe in order to sell its product. Therefore, her fraud claim

is not barred by the economic loss rule.

Courts in the Ninth Circuit, however, are split over whether the economic loss
rule applies to negligent misrepresentation claims. See Kalitta Air, L.L.C. v. Cent.
Texas Airborne Sys., Inc., 315 F. App’x 603, 607 (9th Cir. 2008) (per curiam); Bret
Harte Union High Sch. Dist. v. FieldTurf, USA, Inc., 2016 WL 3519294, at *5 (E.D.
Cal. June 27, 2016) (collecting cases) (citing Hannibal Pictures, Inc. v. Sonja Prods.

LLC, 432 F. App’x 700, 701 (9th Cir. 2011) (per curiam) (affirming jury verdict
because plaintiff “not precluded [by economic loss rule] from suing the defendants for
fraud and negligent misrepresentation in addition to breach of contract” where “one
party has lied to the other”); DiGiacanto v. RB Health US, 668 F. Supp. 3d 950 (N.D.
Cal. 2023); cf Goodwin v. Walgreens, Co., 20213 WL 4037175 (C.D. Cal. June 14,
2023). The Court finds the reasoning in Kalitta and FieldTurf persuasive.
In Kalitta, the plaintiff air freight-carrier brought a claim for negligent

misrepresentation against the manufacturer that was responsible for modifications
to the aircraft. Id. at 603. After a mistrial, the defendant moved for judgment as a
matter of law, arguing that a plaintiff who is not in privity with the defendant may
not recover purely economic loss in actions for negligence and negligent
misrepresentation. Id. at 603–604. The district court denied the defendant’s motion
for judgment as a matter of law with respect to the negligent misrepresentation claim.
Id. The Ninth Circuit affirmed the district court’s order, and while it did not address
the economic loss rule directly, it held “that California law classifies negligent
misrepresentation as a species of fraud, for which economic loss is recoverable.”

Kalitta, 315 F. App’x at 607.

In FieldTurf, USA, Inc., the plaintiff purchased a synthetic athletic field from
the defendant based on representations made in the defendants’ marketing
materials. 2016 WL 3519294, at *2. The parties subsequently entered into a contract
in which the defendants represented that the field was free from defects. Id. The
plaintiff sued for breach of contract alleging that the “defendants failed to make good

on their warranty when they failed to replace the field,” and a negligent
misrepresentation claim alleging that “plaintiff would not have entered into this
contract absent alleged defendants’ misrepresentations.” Id. at *5. The court rejected
the argument that the economic loss rule barred the two claims because the negligent
misrepresentation claim alleged that “plaintiff would not have entered into this
contract absent alleged defendants’ misrepresentations,” whereas the breach of
contract claim focused on the breach of warranties within the contract. Id. In short,

the court found that the negligent misrepresentation claim “sound[ed] more in
deceit/fraud that it [did] in negligence.” Id.

Here, as in FieldTurf, the plaintiff alleges that the label “dishwasher safe” was
false, and that she relied on this false representation in purchasing the product.
Compl. ¶¶ 11, 33. She would not have purchased the product, or would not have paid
as much as she did, had she known that the representation was false. Id.
Consequently, this claim sounds more in fraud than it does in contract law.
It is certainly possible that Plaintiff’s claims of common law fraud, intentional
misrepresentation, and negligent misrepresentation may be, in essence, the same

claim, and Plaintiff is not permitted double recovery. But Plaintiff can still bring
claims in the alternative, and based on the allegations and weight of authority, the
Court will not dismiss her claim for negligent misrepresentation based on the
economic loss doctrine.

Defendants’ cited cases, Schippell v. Johnson & Johnson Consumer Inc., 2023
WL 6178485 (C.D. Cal. Aug. 7, 2023) and Costa v. Reliance Vitamin Co., 2023 WL

2989039 (N.D. Cal. Apr. 18, 2023) do not change this conclusion, which all rely on

Sheen v. Wells Fargo Bank, N.A., 505 P.3d 625 (2022).

In Sheen, the California Supreme Court held that the plaintiff’s negligence
claim was barred by the economic loss doctrine. Sheen, 505 P.3d 625. The plaintiff
was delinquent on his loans and sent multiple letters to the defendant requesting
modification. Plaintiff alleged that the bank’s failure to respond to his requests
constituted negligence, ultimately leading to his home’s foreclosure. The court found

that the economic loss rule barred his claim. The court noted that plaintiff’s claim
was not independent of the original mortgage contract. Id. at 627–28. Consequently,
the mortgage contract governed their relationship, and there was no independent
duty to “review” requests for modification such that this could become an independent
negligence claim. Id. The court then stated: “because plaintiff does not assert an
action for negligent misrepresentation . . . we have no reason to consider whether [it]
might be viable given the facts he alleges.” Id. at 28.

The Court finds that Sheen has not altered the fact that “Courts frequently
decline to apply the economic loss rule in materially similar consumer advertising

contexts where the alleged deceit induced the transaction itself,” and that the Ninth
Circuit has allowed these claims to go forward. Marks v. United Parks & Resorts, Inc., 2025 WL 2767941, at *14 (S.D. Cal. Sept. 26, 2025).

2. Unjust Enrichment

Defendants also move to dismiss Plaintiff’s claim for unjust enrichment. Under
California law, “there is not a standalone cause of action for ‘unjust enrichment,’” but

“[w]hen a plaintiff alleges unjust enrichment, a court may ‘construe the cause of
action as a quasi-contract claim seeking restitution.’” Astiana v. Hain Celestial Grp.,
Inc., 783 F.3d 753, 762 (9th Cir. 2015) (citing Rutherford Holdings, LLC v. Plaza Del
Rey, 166 Cal. Rptr. 3d 864, 872 (2014)). Defendants maintain that Plaintiff fails to
allege any unjust benefit conferred upon any defendant. Mot. Dismiss at 11. Plaintiff
responds that when a plaintiff alleges unjust enrichment, a court may construe the
cause of action as a quasi-contract claim seeking restitution, as she seeks here. Resp.

at 9. The Court agrees with Plaintiff.

Plaintiff alleges that Defendants’ “misleading representations to Plaintiff and
members of the Classes []induce[d] them to purchase the Products,” but they “have
not received all of the benefits promised by Defendants,” and thus have “paid for [the
product] when they would and/or should not have, or paid more money to Defendants
for the Products than they otherwise would and/or should have paid.” Compl. ¶ 112.
Consequently, “Plaintiff and members of the Classes have conferred a benefit upon
Defendants as Defendants have retained monies paid to them by Plaintiff and
members of the Classes.” Id. ¶ 113. Courts have held that “[t]his straightforward

statement is sufficient to state a quasi-contract cause of action.” Astiana, 783 F.3d at
762; see also Tarvin, 756 F. Supp. 3d at 809 (denying motion to dismiss unjust
enrichment claim where plaintiff alleged “false and misleading labelling caused
[p]laintiff and the [c]lass to purchase the [products] at a premium” and “[d]efendant
received a direct and unjust benefit, at [p]laintiff and the [c]lass’s expense.”).
Accordingly, the Court denies Defendants’ motion to dismiss Plaintiff’s claim for

unjust enrichment.

II. Rule 12(b)(1) Motion

Last, Defendants argue that Plaintiff lacks Article III standing to seek
injunctive relief, as she does not allege that she faces a real and immediate threat of
future harm from Defendants’ alleged wrongful conduct. Mot. Dismiss at 14. More
specifically, Plaintiff, according to Defendants, knows about the allegedly false claim
and cannot plead that she could be fooled in the future. Mot. Dismiss at 15 (citing

Daly v. FitLife Brands, Inc., 2023 WL 6388112 (N.D. Ill. Sept. 29, 2023)). Plaintiff
counters that Defendants’ argument is contrary to the weight of authority in the
Seventh Circuit. Resp. at 12. Plaintiff contends that she is suffering an “ongoing
injury” that “can only be remedied by an injunction,” because “she would likely
purchase the Products in the future if she could be assured that the Products were in
fact dishwasher safe,” and she “regularly visits Walgreens stores which sell the
products.” Id; Compl. ¶ 12.9

“[A] plaintiff must demonstrate standing separately for each form of relief
sought.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., [528 U.S. 167,

185](https://www.courtlistener.com/opinion/118329/friends-of-the-earth-inc-v-laidlaw-environmental-services-toc-inc/#185) (2000). To establish standing for injunctive relief, Plaintiff must allege a “real
and immediate” threat of future injury from Defendants’ misleading labels. Simic v.
City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017). The equitable remedy of injunctive
relief is unavailable absent a showing of irreparable injury, “a requirement that
cannot be met where there is no showing of any real or immediate threat that the
plaintiff will be wronged again.” City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).

“When considering this requirement in the context of consumer fraud claims, 

the majority of courts in this district concluded that a plaintiff’s awareness of the
alleged misrepresentations makes any future harm speculative, precluding that
plaintiff from pursing injunctive relief.” In re Beyond Meat, Inc., Protein Content
Mktg. & Sales Practices Litig., 2024 WL 726838, at *4 (N.D. Ill. Feb. 21, 2024)
(collecting cases). The Seventh Circuit also addressed a plaintiff’s standing to pursue
injunctive relief in the context of a consumer fraud case in Camasta v. Jos. A. Bank

Clothiers, Inc., 761 F.3d 732 (7th Cir. 2014). In Camasta, the Seventh Circuit noted
that a plaintiff who is aware of a defendant’s deceptive practice is not likely to be

9Plaintiff also requests that the Court strike this portion of Defendants’ motion to dismiss as it is
beyond the Court’s 15-page limit and does not include a table of cases. Resp. at 11 n.2. Defendants’
motion is 16 pages, 1 page beyond the limit, and does not include a table of cases. However, Defendants
first raise this argument on page 14 of their brief. Given the minor breach of the page limit, and the
fact that Defendants raised this argument within the page limits, the Court considers it. The Court,
however, directs Defendants to comply with the Court’s page limits in the future, or risk having
portions of their brief struck.

harmed by those practices in the future and thus lacks standing for injunctive relief. Id. at 741.10 Defendants’ cited cases are also consistent with this approach. See Daly
v. FitLife Brands, Inc., 2023 WL 6388112 *4 (N.D. Ill. Sept. 29, 2023) (“when a

consumer knows about the allegedly false advertising, then that particular consumer
is no longer at risk of future harm”); Freeman v. MAM USA Corp., 528 F. Supp. 3d
849, 857 (N.D. Ill. 2021) (finding allegations insufficient to support standing where
plaintiff knew of deception, and only fellow class members were unknowing); Palmer
v. Procter & Gamble Co., 2023 WL 5852252 *3 (N.D. Ill. Sept. 11, 2023) (“a plaintiff
who alleges only a past harm caused by a deceptive sales practice faces no ‘real and

immediate threat’ such that she will be deceived by the same practice after the
deception is revealed”).

The Court agrees that Plaintiff has not plausibly alleged a real and immediate
threat of suffering future harm from Defendants. As Defendants point out, Plaintiff
has not alleged that she in fact continues to buy this product, or that she is forced to,
only that she would likely do so should she receive assurances that it is dishwasher
safe. See Palmer v. Procter & Gamble Co., 2023 WL 5852252, at *3 (N.D. Ill. Sept. 11,

2023) (“Palmer does not allege that she continues to purchase Defendant's product.
To the contrary, she confirms that she does not purchase these products anymore.”);
Daly v. Glanbia Performance Nutrition, 2023 WL 5647232 *5 (N.D. Ill. Aug. 31, 2023)
(“Since [defendant] allegedly deceived [plaintiff] only once, there is no reason to infer

10To the extent one considers this statement dicta, it is nevertheless telling. See In re Herbal
Supplements Mktg. & Sales Pracs. Litig., 2017 WL 2215025, at *8 (N.D. Ill. May 19, 2017) (noting that
even if treated as dicta, Camasta’s reasoning regarding Article III standing is persuasive.).
that he faces a ‘real and immediate threat’ of being deceived again as required for
federal standing.”); Agee v. Kroger Co., 2023 WL 3004628, at *8 (N.D. Ill. Apr. 19,
2023) (finding plaintiff failed to allege standing, where plaintiff did not allege he “has

no choice but to purchase this product”); see In re Herbal Supplements Mktg. & Sales
Pracs. Litig., 2017 WL 2215025, at *8 (finding allegations insufficient to allege
standing where “Plaintiffs make clear in their complaint that they would not have
purchased the Affected Products had they known the truth about them.”).

That Plaintiff alleges the injury is “ongoing” because Defendants still have not
clarified if the products are dishwasher safe is insufficient. “[W]hether a defendant

continues its allegedly deceptive trade practices is irrelevant: What matters is
whether a plaintiff is likely to be harmed by them again.” Guajardo v. Skechers USA,
Inc., 2021 WL 4302532, at *7 (C.D. Ill. Sept. 21, 2021). True, some courts have found
differently based on similar facts. See Le v. Kohls Dep’t Stores, Inc., 160 F. Supp. 3d
1096, 1111 (E.D. Wis. 2016); Muir v. NBTY, Inc., 2016 WL 5234596 (N.D. Ill. Sept.
22, 2016); Shirley v. Reynolds Consumer Prods., LLC, 636 F. Supp. 3d 907, 915 (N.D.
Ill. 2022). But the Court follows what appears to be the majority approach. Indeed,

some of Plaintiff’s own cited cases acknowledge there is a split but still find that a
plaintiff who knows of the deception cannot show, without more, that there is a
concrete risk they will be harmed by the deception in the future. See In re Herbal
Supplements Mktg. & Sales Pracs. Litig., 2017 WL 2215025, at *7; Thomas, et. al, v.
Walmart Inc., 2024 WL 1050179, at *5 (N.D. Ill. Mar. 11, 2024) (finding that plaintiffs
who were aware of fraudulent claim had no concrete basis to assert they would
purchase the product at issue in the future).

In short, Plaintiff’s allegations do not indicate that she is at imminent risk of
purchasing Defendants’ product and being deceived once more. Rather, Plaintiff’s

allegations amount to an admission that, based on her knowledge of Defendants’
alleged deception, she will avoid this deception by not purchasing the product. The
weight of authority in the Seventh Circuit indicates that such an allegation precludes
Plaintiff from injunctive relief.

Accordingly, Plaintiff’s claims are dismissed for lack of standing to the extent
that they seek injunctive relief.

III.  Rule 23 Motion to Strike                                       

Recall, that in Counts V through VIII, Plaintiff asserts nationwide class action 

claims for common law fraud, intentional misrepresentation, negligent
misrepresentation, and unjust enrichment under the laws of all states where
customers have purchased Complete Home Heavy Duty plastic cutlery. Compl. ¶¶
101–132.

Defendants move to strike the nationwide class action allegations on the
grounds that the class cannot meet the requirements of Rule 23.11 See generally Mot.
Strike. Specifically, Defendants argue that because the claims are based on varying
state laws, the class cannot satisfy the commonality and superiority requirements of
FED. R. CIV. P. 23. Id. In response, Plaintiff posits that striking the class allegations
is premature at this stage, but even if the Court were to consider the motion now,

11Defendants do not move to strike Plaintiff’s California class allegations.

that Defendants fail to point to an applicable conflict of law. See generally Resp. Mot.
Strike. For the reasons stated below, the Court agrees with the Plaintiff.

The Court has discretion to consider whether a class can be properly certified

under Rule 23 “[a]t an early practicable time after a person sues,” and “may deny
class certification even before the plaintiff files a motion requesting certification.”
FED. R. CIV. P. 23(c)(1)(A); Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th
Cir. 2011) (the court has “an independent obligation to decide whether an action
brought on a class basis is to be so maintained”). “It need not delay a ruling on
certification if it thinks that additional discovery would not be useful in resolving the

class determination.” Kasalo, 656 F.3d at 563. However, “[i]f the dispute concerning
class certification is factual in nature and discovery is needed to determine whether
a class should be certified, a motion to strike the class allegations at the pleading
stage is premature,” and “[g]enerally, courts deny motions to strike class allegations
before certification briefing.” In re Hair Relaxer Mktg. Sales Pracs. & Prods. Liab.
Litig., 2024 WL 4333709, at *1 (N.D. Ill. Sept. 27, 2024) (collecting cases).

“Courts in this district have largely declined to strike nationwide class

allegations at the pleading stage where a party argued that a variation in state laws
made a nationwide class impracticable.” Flaherty v. Clinique Lab’ys LLC, 2021 WL
5299773, at *7 (N.D. Ill. Nov. 15, 2021) (collecting cases) (“It may be that a nationwide
class is impracticable here; however, the prudent approach is to wait for a more fully
developed record before deciding that issue.”). As Plaintiff points out, it is unclear at
this stage which state laws will apply to this case. True, the Court will eventually
have to undertake a choice of law analysis, but that will depend on the facts revealed
in discovery. Discovery may reveal that individuals in only certain states purchased
Complete Home Heavy Duty plastic cutlery in Walmart, that the states at issue have

no material conflicts of law, or that state-specific subclasses are manageable even if
a nationwide class is not. See id.; see also Pella Corp. v. Saltzman, 606 F.3d 391, 396 (7th Cir. 2010) (affirming district court’s “certification of the six state subclasses” on
consumer fraud and breach of warranty claims, where district court made the explicit
“finding that the consumer protection acts of these six states have nearly identical
elements,” and declined “to certify a seventh state subclass that would have required

a [different] analysis”).

It is true that the Seventh Circuit has held that a nationwide class for fraud
and negligent misrepresentation claims “poses serious problems about choice of law,
the manageability of the suit, and thus the propriety of class certification.” Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 674 (7th Cir. 2001) (vacating nationwide
class certification on breach of warranty and fraud claims); In re
Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir. 2002) (reversing

certification of nationwide product warranty classes because “a single nationwide
class is not manageable”). Further, “courts commonly refuse to certify nationwide
classes based on warranty, fraud, and products-liability suits based on questions of
commonality, predominance and superiority.” Flynn v. FCA US LLC, 327 F.R.D. 206,
225 (S.D. Ill. 2018); In re Aqua Dots Prods. Liab. Litig., 270 F.R.D. 377, 386 (N.D. Ill.
2010) (declining to certify unjust enrichment subclasses because they “pose
insurmountable choice-of-law problems”).

However, although the Seventh Circuit “strongly caution[s] against certifying
multistate consumer protection or warranty claims, Seventh Circuit precedent

teaches that such certifications are not categorically prohibited.” Alea v. Wilson
Sporting Goods Co., 2017 WL 5152344, at *7 (N.D. Ill. Nov. 7, 2017) (denying motion
to strike multi-state class action claims without prejudice); see Suchanek v. Sturm
Foods, Inc., 764 F.3d 750, 755 (7th Cir. 2014) (reversing denial of certification of
multi-state consumer protection and unjust enrichment class in part because “the
court failed to recognize the question common to the claims of all putative class

members: whether the []packaging was likely to mislead a reasonable consumer”). At
this stage in the litigation, prior to discovery, the parties are not sure what state laws
will even apply to the class. Accordingly, the Court finds that the motion to strike
based on varying state laws is premature.

Defendants cited cases do not compel a different conclusion. Pilgrim v.
Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011) (affirming striking of multi-
state class action claims in part because multiple state laws applied, but declining to

consider if under different circumstances, common issues of fact could overcome state
law differences); Elson v. Black, 56 F.4th 1002, 1006–1007 (5th Cir. 2023) (affirming
district court’s striking of multi-state class action claims where plaintiff failed to brief
differences in laws, but regardless, differences in laws “swamp[ed] any common
issues and “defeat[ed] predominance”); Jones v. BRG Sports, Inc., 2019 WL 3554374 (N.D. Ill. Aug. 1, 2019) (granting motion to strike where complaint, on its face, showed
a class action was untenable in part because class applied product liability law of 18
different states). Apart from the potential for varying state laws, Defendants do not
argue that Plaintiff's class action claims otherwise fail to satisfy Rule 23’s
requirements of commonality, typicality, and predominance. Instead, they reserve
these arguments for the class certification stage. Mot. Strike at 2 n.1. Accordingly,
the Court denies the motion to strike without prejudice.
Conclusion
For the foregoing reasons, the Court grants in part and denies in part
Defendants’ Motion to Dismiss, R. 15, and denies Defendants’ Motion to Strike, R. 16,
without prejudice. The Court’s dismissal of Plaintiff's CLRA claim, breach of implied
warranty claim, and claim for injunctive relief are without prejudice.

Dated: February 13, 2026 Cinbsloy J A. ——
United States District Judge
Franklin U. Valderrama

                                 36