By: Linda Boachie-Ansah

  In the movie Forrest Gump, the protagonist observed that,  “life was like a box of  chocolates; you never know what  you’re going to get.” Clarisha Benson and Lorenzo Smith,  plaintiffs in Benson v. Fannie May Confections Brands, Inc., No.  19-1032, 2019 WL 6698082 (7th Cir. Dec. 9, 2019), can attest to that observation. Benson and Smith bought boxes of chocolate from Fannie May stores in Chicago, Illinois. To their displeasure, upon opening the boxes, plaintiffs found less chocolate than they were expecting. Benson and Smith filed a lawsuit against Fannie May on behalf of themselves and a putative class under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), see 815 ILCS  505/1 et seq. Plaintiffs also brought claims of unjust enrichment and breach of implied contract.

According to plaintiffs, Fannie May’s boxes contained unnecessary space that misled consumers into thinking that they would receive more chocolate than they actually would. Had they known there was so much empty space in the boxes, plaintiffs claimed that they would not have purchased the chocolate. Fannie May moved to dismiss the amended complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). The district court granted its motion, reasoning that plaintiffs had not sufficiently pleaded a violation of the Food, Drug, and Cosmetic Act (“FDCA”), see 21 U.S.C. § 301 et seq., and that the FDCA preempted plaintiffs’ claims under Illinois law.

On appeal, the Seventh Circuit noted that preemption is an affirmative defense. Defendant bears the burden of proving an affirmative defense. Thus, the court held that it was improper for the district court to punish plaintiffs for “failing to anticipate an affirmative defense in [the] complaint and dismissing the action based on FDCA preemption.”

Turning to their claim under the ICFA, the court noted that to prevail, plaintiffs had to plead that (1) the defendant committed a deceptive or unfair act with the intent that others rely on the deception; (2) the act occurred in the course of trade or commerce; and (3) the act caused actual damages. In this case, the outside of the box revealed both the net weight and number of pieces of chocolate inside the box. Nonetheless, the court credited plaintiffs’ assertion that they and other reasonable consumers “attach importance to the size of [the] package.” Overall, the court found that plaintiffs adequately pleaded that Fannie May committed both deceptive and acts.

But plaintiffs also had to show that the deceptive or unfair act caused them to suffer actual damages. And here, where plaintiffs never alleged that the chocolates were worth less than what they paid for them, or that they could have gotten a better price from another company, the court ruled that they could not show a pecuniary loss. The court therefore concluded that plaintiffs’ claim under the ICFA was properly dismissed on the pleadings.

On the remaining claims, the court of appeals found that “there is no stand-alone claim for unjust enrichment” under Illinois law. Thus, plaintiffs’ failure to state a claim under the ICFA necessarily meant that they could not state a claim for unjust enrichment. Plaintiffs also claimed that Fannie May breached an implied contract. But the court observed that the parties had entered “a straightforward, everyday sales contract in which the buyers selected the chocolate and offered to purchase it at the advertised price, at which point Fannie May accepted by taking the plaintiffs’ money in exchange for possession of the chocolate.” The sales receipts that plaintiffs received at the cash register spelled out the terms of the contract. Finding that Illinois law does not recognize an implied contract under these circumstances, the Seventh Circuit concluded that that part of the case was correctly dismissed.