UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

NICK PEARSON, On Behalf of Himself and All 

Others Similarly Situated, 

 Plaintiff, 

 vs. 

TARGET CORPORATION, a Minnesota 

Corporation, 

 Defendant. 

Case No. 11cv07972 

Honorable James B. Zagel 

Magistrate Judge Jeffrey T. Gilbert 

MOTION TO DISMISS OF TARGET CORPORATION

Defendant Target Corporation (“Target”) moves to dismiss with prejudice the First 

Amended Class Action Complaint (“the Complaint” or “Cmplt.”) of plaintiff Nick Pearson 

(“Plaintiff”) pursuant to Federal Rules of Civil Procedure 8, 9(b), and 12(b)(6). In support of 

this Motion, and as further explained in the accompanying Memorandum of Law 

(“Memorandum”), Target states: 

1. The single-count Complaint attempts to allege a claim under the Illinois 

Consumer Fraud Act (“ICFA”). The Complaint challenges the effectiveness of a popular dietary 

supplement—glucosamine—that has been on the market for over twenty years. The Complaint, 

however, makes no attempt to explain how or why Target’s statements about its products (Up & 

Up Triple Strength Glucosamine Chondroitin Plus MSM Dietary Supplement (“Up & Up Triple 

Strength”) and Up & Up Advanced Glucosamine Chondroitin Complex Dietary Supplement 

(“Up & Up Advanced”) (each, a “Product,” and together, “the Products”)) are false, apart from 

citing a few clinical studies testing other formulations of glucosamine and/or chondroitin for 

effectiveness in treating osteoarthritis. Put another way, Plaintiff alleges that Target’s claims are 

Case: 1:11-cv-07972 Document #: 28 Filed: 07/20/12 Page 1 of 5 PageID #:113
 2 

false because the Products’ ingredients have not been proven to be effective at treating 

osteoarthritis. Yet, Target has never claimed that the Products are effective for the treatment of 

osteoarthritis, and on the contrary, clearly states on the labels that the Products are not intended 

to be used to treat any disease. 

2. As a threshold matter, the Complaint fails to allege facts establishing Plaintiff’s 

standing to sue regarding the Up & Up Advanced Product, which Plaintiff now concedes he 

never purchased and whose packaging statements he never read. Plaintiff lacks both statutory 

and Constitutional standing to bring such a claim. To have statutory standing under ICFA, a 

plaintiff must show that he was a “consumer” as defined by the statute and that he suffered an 

injury that was caused by the challenged practice. Padilla v. Costco Wholesale Corp., No. 

11cv7686, 2012 U.S. Dist. LEXIS 87222, at *6-7 (N.D. Ill. June 21, 2012). In addition, Article 

III of the U.S. Constitution requires the Plaintiff to show (i) a concrete and actual or imminent 

injury-in-fact, (ii) that is “fairly traceable” to the challenged conduct, and (iii) a likelihood that 

the requested relief will redress the alleged injury. Steel Co. v. Citizens For A Better Env’t, 523 

U.S. 83, 102-03 (1998). Plaintiff now concedes that he purchased only Up & Up Triple 

Strength, yet attempts to assert a claim regarding Up & Up Advanced, which is sold in different 

formulations, in different amounts, at different prices, and with different labeling statements. 

Plaintiff lacks standing under both ICFA and Article IIII to pursue claims regarding Up & Up 

Advanced because he was neither a “consumer” of Up & Up Advanced nor were the 

representations on Up & Up Advanced (which he never read) the cause of any injury to him. 

The Complaint’s claims regarding Up & Up Advanced should therefore be dismissed. See

Memorandum at pp. 6-9. 

Case: 1:11-cv-07972 Document #: 28 Filed: 07/20/12 Page 2 of 5 PageID #:114
 3 

3. More generally, as to both Products, the Complaint fails to allege sufficient facts 

to state a claim. Most fundamentally, the Complaint fails to state a claim under Rule 8, which 

requires the Plaintiff to plead “sufficient factual matter, accepted as true, to state a claim to relief 

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff asserts a 

claim that is not plausible on its face—that the representations on the Products are deceptive 

because studies of different formulations containing some of the ingredients in the Products 

supposedly suggest that the ingredients are ineffective in treating or curing osteoarthritis. Yet 

even if Plaintiff were able to prove that the cited osteoarthritis studies say what he asserts that 

they say (and, at best for Plaintiff, the studies are inconclusive) the findings of those studies 

would have no bearing on showing the falsity of the actual representations on the Products, 

which not only do not purport to treat or cure osteoarthritis, but also include the disclaimer that 

the Products are “not intended to diagnose, treat, cure, or prevent any disease.” The Complaint 

should therefore be dismissed because it fails to allege sufficient facts to state a claim under 

Rule 8. See Memorandum at pp. 9-12. 

4. The Complaint also fails to plead the circumstances constituting fraud with 

particularity under Rule 9(b), which requires the Plaintiff to plead “all the circumstances of the 

fraud in detail,” including “the who, what, when, where, and how: the first paragraph of any 

newspaper story.” Scott v. GlaxoSmithKline Consumer Healthcare, L.P., 05cv3004, 2006 U.S. 

Dist. LEXIS 18630, at *11 (N.D. Ill. Apr. 12, 2006) (Zagel, J.). Plaintiff still refuses to 

specifically identify the representations upon which he relied in making his purchase. Rather, 

Plaintiff summarizes some of the statements which appear on one or another of the labels, adds 

other statements that were never contained on either of the labels, dubs this stew the “the joint 

health benefit representations,” and ascribes the same representations to both Products as if the 

Case: 1:11-cv-07972 Document #: 28 Filed: 07/20/12 Page 3 of 5 PageID #:115
 4 

ingredients and statements were identical even though the Complaint concedes they are not. The 

Complaint should therefore be dismissed because it fails to allege sufficient facts to state a claim 

under Rule 9(b). See Memorandum at pp. 12-13. 

5. The Complaint should also be dismissed under Rule 12(b)(6) because it still fails 

to assert a cognizable legal theory. To state a claim for false advertising or marketing under 

ICFA, a plaintiff must plead facts that show that the representations are actually deceptive and 

that this deception proximately caused the plaintiff actual injury. Here, there is no statement on 

the label for either Product that the representations at issue are substantiated by certain types of 

studies. Accordingly, Plaintiff cannot shift the burden to Target merely by claiming that the 

representations at issue are unsubstantiated—or false or misleading because they are 

unsubstantiated—but must affirmatively plead and establish actual falsity. Gredell v. Wyeth 

Labs., Inc., 367 Ill. App. 3d 287, 291 (1st Dist. 2006). Plaintiff’s theory, however, remains that 

Target lacks clinical substantiation for the statements on the product labels. Plaintiff’s claims 

should therefore be dismissed. See Memorandum at pp. 13-16. 

6. If this case were to proceed to trial, Target would show that there is indeed strong 

scientific support for the claims actually made for the Products, including studies Plaintiff has 

elected to ignore. But this suit should not survive beyond the pleading stage because Plaintiff 

cannot turn conclusory allegations of lack of substantiation, based on nothing more than studies 

of other products for other purposes, into a consumer fraud claim. 

WHEREFORE, for all of the foregoing reasons, and as stated in the accompanying 

Memorandum of Law, the First Amended Class Action Complaint should be dismissed with 

prejudice in its entirety. 

Case: 1:11-cv-07972 Document #: 28 Filed: 07/20/12 Page 4 of 5 PageID #:116
 5 

Dated: July 20, 2012 Respectfully submitted, 

 /s/ Bradley J. Andreozzi 

Bradley J. Andreozzi (ARDC No. 6257334) 

bradley.andreozzi@dbr.com

Justin O. Kay (ARDC No.6286557) 

justin.kay@dbr.com

DRINKER BIDDLE & REATH LLP 

191 North Wacker Drive, Suite 3700 

Chicago, IL 60606-1698 

Tel: (312) 569-1000 

Fax: (312) 569-3000 

Kara L. McCall (ARDC No. 6272681) 

kmccall@sidley.com

Shelby K. Feuerbach (ARDC No. 6296364) 

sfeuerbach@sidley.com

SIDLEY AUSTIN LLP 

One South Dearborn Street 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

Counsel for Defendant Target Corporation

Case: 1:11-cv-07972 Document #: 28 Filed: 07/20/12 Page 5 of 5 PageID #:117