Tag: reliance

Food Maker’s Consumer Fraud Claim For Deficient Buttermilk Formula Tossed (IL ND Case Note)

The food company plaintiff in Kraft Foods v. SunOpta Ingredients, Inc., 2016 WL 5341809 sued a supplier of powdered buttermilk for consumer fraud when it learned that for over two decades the defendant had been selling plaintiff a buttermilk compound consisting of buttermilk powder mixed with other ingredients instead of “pure” buttermilk.

Granting the defendant’s motion to dismiss, the Northern District examines the “consumer nexus” requirement for consumer fraud liability and what conduct by a business entity can still implicate consumer concerns and be actionable under the Consumer Fraud Act, 815 ILCS 505/2 (the “CFA”).

The plaintiff believed it was receiving buttermilk product that wasn’t cut with other ingredients; it relied heavily on a 1996 product specification sheet prepared by defendant’s predecessor that claimed to use only pristine ingredients.

Upon learning that defendant’s buttermilk was not “pure” but was instead a hybrid product composed of buttermilk powder, whey powder, and dried milk, Plaintiff sued.

Dismissing the CFA claim, the Court rejected plaintiff’s argument that the ersatz buttermilk implicated consumer concerns since consumers were the end-users of the product and because consumer health and safety was possibly compromised.

The CFA offers broader protection than common law fraud.  Unlike its common law counterpart, the CFA plaintiff does not have to prove it actually relied on an untrue statement.  Instead, the CFA plaintiff must allege (1) a deceptive or unfair act or practice by defendant, (2) defendant’s intent that plaintiff rely on the deception or unfair practice, (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.

As its name suggests, the CFA applies specifically to consumers which it defines as “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household.” 815 ILCS 505/1.  Where a CFA plaintiff is a business entity – like in this case – the court applies the “consumer nexus” test.  Under this test, if the defendant’s conduct is addressed to the market generally or otherwise implicates consumer protection concerns, the corporate plaintiff can have standing to sue under the CFA.

A classic example of conduct aimed at a business that still implicates consumer protection concerns is a defendant disparaging a business plaintiff or misleading consumers about that plaintiff.  But the mere fact that consumers are end product users normally isn’t enough to satisfy the consumer nexus test.  Here, defendants’ actions were twice removed from the consumer: Defendant supplied plaintiff with product who, in turn, incorporated defendant’s buttermilk product into its food offerings.

The Court also rejected plaintiff’s argument that defendant’s product imperiled “public health, safety or welfare issues.”  Since the plaintiff failed to plead any facts to show that defendant’s conduct affected, much less harmed, consumers, there was no consumer nexus (or connection) and plaintiff’s CFA claim failed.

Take-aways:

Even under relaxed Federal notice pleading standards, a consumer fraud plaintiff must still provide factual specifics in its Complaint.  The case illustrates that the consumer nexus test has some teeth.  Where the plaintiff is a sophisticated commercial entity and isn’t using a product as a consumer would, it will be tough for the plaintiff to show consumer protection concerns are involved.

 

Non-reliance Clause Defeats Fraud In Inducement Claim In Employment Agreement Dispute – IL Court

Colagrossi v. Bank of Scotland, 2016 IL (App) 1st 142216 examines fraud in the inducement in an employment dispute involving parent and subsidiary companies and their respective successors.

The key question was whether a non-reliance clause in an employment contract barred a fraud in the inducement claim based on pre-contract statements by a party?  The answer:  “Yes.”

The case features a tortured procedural history and this tedious litigation timeline:

2005 – Plaintiff receives offer letter from Company 1 for plaintiff to perform futures trading services.  The offer letter contains a non-reliance clause that subsumes all oral representations concerning the offer letter’s subject matter.

2006 – Plaintiff enters into employment agreement with Company 2 – Company 1’s successor.  This agreement also has a non-reliance clause.

2006-2007 – Plaintiff contends that while negotiating the offer letter specifics, Company 1’s officer fails to disclose to Plaintiff that Company 1 is about to be sold to Company 2 and had plaintiff known this, he wouldn’t have accepted Company 1’s offer.

2008 – Plaintiff files two lawsuits.  He sues Company 1 for fraud in the inducement and then sues Company 2 under the same legal theories.  Company 2 removes that case to Federal Court (based on diversity of citizenship).

2011 – Plaintiff files a third lawsuit; this time naming Company 3 – Company 1’s parent – and Company 4, the entity that purchased Company 3.

2013 – Summary judgment for Company 1 is entered in the 2008 fraud in inducement case based on non-reliance language of offer letter.

2014 – Federal court grants summary judgment for Company 2 in removed Federal case (the removed 2008 case) based on same non-reliance clause

2014 – Plaintiff’s 2011 lawsuit against Companies 3 and 4 dismissed based on res judicata in that the same issues were already litigated in the 2008 fraud in inducement case against Company 1

Plaintiff appealed the dismissal of the 2011 lawsuit.

Held: Affirmed

Reasons:

Fraud in the inducement  requires a plaintiff to plead and prove (1) a false representation of material fact, (2) made with knowledge or belief in the representation’s falsity, (3) made with the purpose of inducing a plaintiff to act or refrain from acting, and (iv) the plaintiff reasonably relied on the defendant’s representation (or non-representation) to plaintiff’s detriment. (¶¶ 44-45)

Fraud normally is no defense to the enforceability of a written agreement where the party claiming fraud had ample opportunity to discover the fraud by reading the document.

Here, the plaintiff admitted that he read the 2005 offer letter and 2006 employment contract and signed them after reviewing with his attorney.  In addition, the two agreements each spelled out that plaintiff had not relied on any oral or written representations of the parties in signing the agreements. 

The Court held that the clear non-reliance language prevented plaintiff from establishing justifiable reliance on any oral statements made by Company 1 to induce plaintiff to sign the offer letter or on Company 2 statements before signing the employment agreement. (¶ 47)

The next question for the Court was whether summary judgment for Company 1 in the 2008 case was res judicata to the 2011 case against Companies 3 and 4.  Again, Company 3 was Company 1’s corporate parent and Company 4 purchased Company 3’s assets.

In Illinois, res judicata applies where (1) there is an identity of parties or their privies, (2) identity of causes of action, and (3) final judgment on the merits.

For the first, identity of parties prong, to apply, the parties don’t have to identical.  All that’s required is their interest must be sufficiently similar.  Under Illinois law, a corporate parent and its subsidiaries can be deemed sufficiently similar for res judicata purposes as can successor and predecessor companies.  When the only difference between a predecessor and a successor (like between Company 2 and 3 here) is a name change, “obvious privity” is present.  (¶¶ 53-54)

Since the two 2008 cases and the 2011 case all stemmed from the same underlying facts, involved the same employment contract and same corporate principals, summary judgment for Company 1 and 2 in the 2008 cases barred plaintiff from repackaging the same facts and claims against Companies 3 and 4 in the 2011 case.

Afterwords:

This case and others like it make clear that for a fraud in the inducement plaintiff to establish reliance in the breach of written contract setting, he should show he was deprived of a chance to read the contract.  Otherwise, the rule against allowing fraud claims by one who fails to read a document will defeat the claim.

Another important case holding is that the ‘same parties’ res judicata element applies where parent and subsidiary (or predecessor and successor) companies are sufficiently connected so they sufficiently represents the other’s legal interests in two separate lawsuits.

No Consumer Fraud Where Deceptive Act Doesn’t Actually Reach Plaintiff: Cabbie’s Crash Damages Case Gutted – IL ND

The economic loss doctrine bars a plaintiff from recovering certain money damages under a tort theory (e.g. negligence, products liability, property damage, etc.) where a contract defines his relationship with a defendant.

“Economic loss” means (i) damages for inadequate value, (ii) costs of repair and replacement of the defective product, (iii) loss of profits (without any claim of personal injury or damage to other property) or (iv) the diminution in the value of the product caused by its defect.   (http://paulporvaznik.com/the-negligent-misrepresentation-exception-to-economic-loss-rule-the-information-v-tangible-product-dichotomy/2849).

The rule aims to keep a clear line of demarcation between breach of contract and tort law and remedies.  

Kesse v. Ford Motor Company, 2015 WL 920960 (N.D.Ill. 2015) examines the economic loss doctrine through the lens of a products liability suit involving the crash of a taxi cab.

The plaintiff cab driver claimed his cab suddenly accelerated and wouldn’t stop, requiring the driver to swerve into a roadside pole to avoid hitting oncoming traffic.  After hitting the pole, the cab struck and killed a pedestrian.

He sued the car maker alleging various design defects that caused the cab to accelerate without warning and that lacked a brake override system. The driver joined a consumer fraud claim against the automotive giant.

In addition to his personal injuries, the plaintiff sought damages for (i) lost income (his license was suspended after the accident), (ii) for lease payments he made to use the cab under the assumption it was defect-free, and (iii) damages for time and expense defending criminal charges brought by the State of Illinois in the wake of the fatality.  The defendant moved to dismiss plaintiff’s claims.

Gutting much of the plaintiff’s damage claims,  the court found that most of the claimed damages easily qualified as economic loss that can’t be recovered in a products liability (tort) suit.

The court rejected plaintiff’s argument that the crash was a “sudden and calamitous occurrence” and therefore, the economic loss rule didn’t limit plaintiff’s damages.

This exception to the economic loss rule applies where an occurrence is highly dangerous and presents a likelihood of personal injury or injury to other property (not the property involved in the occurrence).  Typical examples include fires and explosions.  

The court gave the sudden and calamitous occurrence exception a cramped application.  It held that even if the crash was considered a sudden  and calamitous occurrence, the plaintiff could still only recover for damage to other property (i.e. not the cab itself).  Since the plaintiff didn’t allege damage to other property, the sudden and calamitous occurrence exception didn’t apply.

The plaintiff’s consumer fraud claim, premised on Ford not disclosing safety risks associated with the car, also failed.

An Illinois consumer fraud act claimant must show (1) a deceptive act or practice; (2) the defendant intended for the plaintiff to rely on the deception; (3) the deceptive act occurred in the course of trade or commerce; (4) actual damage to the plaintiff; and (5) damages to the plaintiff proximately caused by the defendant.  *3.

A consumer fraud claim fails where the deception doesn’t actually reach the plaintiff, though.  Where a plaintiff isn’t the direct or indirect recipient of deceptive communication from a defendant, such as through advertising, the plaintiff can’t establish that the defendant was the proximate cause of the plaintiff’s injuries.

Here, the plaintiff failed to allege a deceptive act by Ford or that any false statement of Ford actually reached the plaintiff.  As a consequence, the court dismissed the consumer fraud count.

Take-aways:

Sudden and calamitous occurrence only applies where the precipitating event damages property other than the defective product involved in the occurrence;

A consumer fraud plaintiff must prove that he actually read, heard, or received a deceptive act or false statement in order to show proximate cause – that his damages were caused by a deceptive act.