### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1032
C LARISHA B ENSON, et al. , Plaintiffs-Appellants ,

v.

F ANNIE M AY C ONFECTIONS B RANDS, I NC ., Defendant-Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 3519 — Sara L. Ellis , Judge

.

____________________
A RGUED S EPTEMBER 4, 2019

— D ECIDED D ECEMBER 9, 2019

____________________

Before W OOD , Chief Judge, and B AUERand H AMILTON, Circuit Judges

. W OOD , Chief Judge . Proving that almost anything can give rise to litigation, this case concerns chocolates that Clarisha Benson and Lorenzo Smith purc hased at their local Fannie May stores in Chicago. Upon opening their boxes of candy, Benson and Smith were dismayed to fi nd that the boxes were not brimming with goodies. Far from it: the boxes appeared to be only about half full. Belie ving that they had been duped,2 No. 19-1032

they sued Fannie May on behalf of themselves and a putative class, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/1– 505/12, and asserting claims for un just enrichment and breach of implied contract. The plainti ff s contend that Fannie May’s boxes of chocolate contain needle ss empty space, and that this practice misleads consumers. After allowing Benson and Smith to amend their complaint, the district court granted Fannie May’s motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complain t with prejudice. The court found that the plainti ff s had not adequately pleaded a violation of the Food, Drug, and Co smetic Act (“FDCA”), 21 U.S.C. §§ 301–399, and that the FDCA preempted their state-law claims. We a ffi rm the judgment, though on other grounds.

I Each plainti ff purchased an opaque, seven-ounce box of Fannie May’s chocolate for $9.99 plus tax. Benson purchased Fannie May’s Mint Meltaways, and Smith purchased Fannie May’s Pixies. (Since their assertions are otherwise identical, we generally refer in the remainder of this opinion only to Benson, understanding that Smith is also a putative named plainti ff and that there are class allegations.) Although the boxes accurately disclosed the we ight of the chocolate within(seven ounces) and the number of pieces in each box (ascertainable by multiplying the serving size times the number of servings per container), the boxes were emptier than each onehad expected. The box of Mint Meltaways contained approximately 33% empty space, and the box of Pixies contained approximately 38% empty space. The cognoscenti call this empty space “slack- fi ll.”No. 19-1032 3

In the amended complaint, Benson alleges that some of theempty space serves no functional purpose and instead misleads consumers into believing that they are purchasing more chocolate than they actually re ceive. The complaint notes thatFannie May’s fourteen-ounce boxes contain a smaller percentage of slack- fi ll. Benson insists that she would not have purchased the chocolate if she had known that there was so much empty space inside the box. Sh e seeks compensation based on the percentage of nonfunctional slack- fi ll in each box.

II We consider the dismissal of a complaint for failure to state a claim de novo

. Camasta v. Jos. A. Bank Clothiers, Inc. , 761 F.3d 732, 736 (7th Cir. 2014). To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has faci al plausibility when the plainti ff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

A At the outset, there was some question whether diversity jurisdiction existed pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d), because the complaint identi fi edFannie May as an Illinois corporation and the named plainti ff s as Illinois citizens, and alleged only that at least one (unidenti fi ed) class member was a citizen of a state other than Illinois. As the district court recognized, the la tt er allegation was insu ffi cient. But another fi ling then revealed that Fannie May is a Delaware corporation. The amount in controversy exceeds $5,000,000, and so CAFA supports jurisdiction.4 No. 19-1032

Benson fi rst a tt acks the district court’ s conclusion that her state-law claims were preempted by the FDCA and so had to be dismissed as a ma tt er of law. Under the FDCA, a food “shall be deemed to be misbranded” if “its container is so made, formed, or fi lled as to be misleading.” 21 U.S.C. § 343(d). Containers that include slack- fi ll—“the di ff erence between the actual capacity of a container and the volume of product contained therein”—are misleading if consumers cannot fully view the contents and if the slack- fi ll is nonfunctional. 21 C.F.R. § 100.100(a). Slack- fi ll is nonfunctional if it cannot be justi fi ed by any of the following reasons: (1) protection of the contents of the pack age; (2) the requirements of the machines used to enclose the cont ents in such package; (3) unavoidable product se tt ling during shipping and handling; (4) the need for the package to perform a speci fi c function; (5) the container is reusable, part of the presentation of food, and has value that is signi fi cant and independent of its function to hold food; or (6) the inability to increase the level of fi ll or reduce the package size because, for example, the size is necessary to meet food labeling requirements or discourage theft. See id. § 100.100(a)(1)–(6). The FDCA does not create a private right of action. Turek v. Gen. Mills, Inc. , 662 F.3d 423, 426 (7th Cir. 2011). Even so, plainti ff s are entitled to seek relie f pursuant to related statelaw causes of action. See id. The la tt er right, however, is tightly circumscribed by the FDCA’s express preemption of state-law theories that impose requirements “not identical” to its own requirements. See 21 U.S.C. § 343-1.

The district court determined that Benson could avoid dismissal of her state claims on th e basis of preemption only if she pleaded that the slack- fi ll in the Mint Meltaway and PixieNo. 19-1032 5

boxes was nonfunctional under 21 C.F.R. § 100.100(a)(1)–(6). Preemption, however, is “an a ffi rmative defense upon which the defendants bear the burden of proof.” Fifth Third Bank ex rel. Tr. O ffi cer v. CSX Corp. , 415 F.3d 741, 745 (7th Cir. 2005). “A ffi rmative defenses do not ju stify dismissal under Rule 12(b)(6).” Doe v. GTE Corp. , 347 F.3d 655, 657 (7th Cir. 2003). Moving for judgment on the pl eadings under Rule 12(c) is the more appropriate way to address an a ffi rmative defense. Bausch v. Stryker Corp. , 630 F.3d 546, 561 (7th Cir. 2010). This is not one of those cases in which the plainti ff has pleaded herself out of court, and so the di fference between Rules 12(b)(6) and 12(c) cannot be disregarded. See, e.g. , Logan v. Wilkins , 644 F.3d 577, 582–83 (7th Cir. 2011); Brooks v. Ross , 578 F.3d 574, 579 (7th Cir. 2009). The district court thus erred by penalizing Benson for failing to anticipate an a ffi rmative defense in her complaint and dismissing the action based on FDCA preemption.

B With that much established, the question remains whether Benson su ffi ciently pleaded the elements of her state-law theories, starting with the contention that Fannie May violatedthe ICFA. The ICFA is “a regulatory and remedial statute intended to protect consumers ... against fraud, unfair methodsof competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp. , 201 Ill. 2d 403,416–17 (2002). To prevail on a claim under the ICFA, “a plainti ff must plead and prove that the defendant commi tt ed a deceptive or unfair act with the inte nt that others rely on the deception, that the act occurred in the course of trade or commerce, and that it caused actual damages.” Vanzant v. Hill’s Pet Nutrition, Inc. , 934 F.3d 730, 736 (7th Cir. 2019).6 No. 19-1032

The statute allows a plainti ff to premise her claim on either deceptive conduct or unfair conduct (or both), but “the two categories have di fferent pleading standards.” Id. at 738. “Ifthe claim rests on allegations of deceptive conduct, then [Federal Rule of Civil Procedure] 9(b) applies and the plainti ff must plead with particularity the circumstances constituting fraud.” Id. This means as a practical ma tt er that she must identify the “who, what, when, wher e, and how” of the alleged fraud. Id. On the other hand, Rule 9( b)’s heightened pleading standard does not apply to an allegation of unfair conduct, because fraud is not a required element under that branch of the statute. Id. at 739. Benson’s complaint alleges that the slack- fi ll in Fannie May’s chocolate boxes is both deceptive and unfair. We therefore consider both possibilities. Starting with the fi rst category, a practice is deceptive “if it creates a likelihood of deception or has the capacity to deceive.” See Bober v. Glaxo Wellcome PLC , 246 F.3d 934, 938 (7th Ci r. 2001). Courts apply a “reasonable consumer” standard to analyze the likelihood of deception. See Mullins v. Direct Digital, LLC , 795 F.3d 654, 673 (7th Cir. 2015). “[W]hen analyzing a claim under the ICFA, the allegedly deceptive act must be looked upon in light of the totality of the information made available to the plainti ff .” Davis v. G.N. Mortg. Corp. , 396 F.3d 869, 884 (7th Cir. 2005).

Benson asserts that the nonfunctional slack- fi ll in FannieMay’s opaque packaging is deceptive because it causes consumers to believe that the boxe s contain more chocolate than they actually do. The complaint describes the percentage of slack- fi ll in each seven-ounce box and contrasts Fannie May’s fourteen-ounce boxes, which contain a smaller percentage of slack- fi ll, to show that unused capacity in the smaller box isNo. 19-1032 7

not entirely functional. The complaint asserts that reasonable consumers rely on the size of packaging to infer the quantity of product that they are pu rchasing, so any extra slack- fi ll misleads consumers. Someone mi ght think, for instance, that a box of a certain size would contain enough candy for the whole o ffi ce group, only to be chag rined when it is opened and half the people leave empty-handed. These allegations describe the “who,” “what,” and “how” of the alleged fraud with particularity. The complaint also alleges the “where” and “when” of the fraud. The “when” is May 10, 2014, to the present, and the “where” is in Illinois stores and online. Fannie May complains that Benson left out information that would have shown that no deception was possible. The information on the outside of th e boxes, which as we said discloses the net weight and numberof pieces inside the boxes, eliminates the possibility that a reasonable consumer would be deceived. (The person treating her o ffi ce group, it says, has no one but herself to blame if she thought the box would be enough for everyone; she should have paid a tt ention to the number of pieces it held.) Fanni e May also points out that the receipts Benson and Smith received disclosed the weight and price of each box of chocolate. This is another argument that cries out for an answer and a Rule 12(c) motion rather than a motion to dismiss, but in any event, at this stage of the litig ation, we cannot conclude that the information on the bo xes is enough as a ma tt er of law to avoid a fi nding of deception. The Food and Drug Administration takes the position that “the presence of an accurate netweight statement does not eliminate the misbranding that occurs when a container is made, formed, or fi lled so as to be misleading.” Misleading Containers; Nonfunctional Slack-8 No. 19-1032

Fill, 58 Fed. Reg. 64123-01, 64128 (Dec. 6, 1993) (codi fi ed at 21C.F.R. pt. 100). Moreover, Benson’s assertion that she and others a tt ach importance to the size of a package is enough for now to indicate that a “reasonable consumer” does so too. She therefore did enough to plead a deceptive act.Benson also asserted that the packaging of the Mint Meltaways and Pixies is covered by the ICFA’s “unfair acts” prohibition. Illinois courts look to three considerations to ascertain whether conduct is unfair under the ICFA: “(1) whether the practice o ff ends public policy; (2) whether it is immoral, unethical, oppressive, or unscr upulous; [and] (3) whether it causes substantial injury to consumers.” Robinson , 201 Ill. 2d at 417–18. A court may fi nd unfairness even if the claim does not satisfy all three criteria. Id. at 418. A practice might be unfair “because of the degree to wh ich it meets one of the criteria or because to a lesser extent it meets all three.” Id. In the complaint, Benson alleges that Fannie May engaged in unfair acts or practice s by including needless slack- fi ll in its chocolate boxes, and that this amounted to a misrepresentation of the quantity of chocolat e within. This practice, she contends, constitutes false advertising, which is unethical and offends public policy. Benson also asserts that the unfair practice seriously injures consumers by making them believe that they are receiving more chocol ate than the actual amountwithin each box. As we have observed before, “an unfairpractices claim has no fraud el ement and therefore is not subject to a heightened pleading standard.” Vanzant, 934 F.3d at 739. Benson’s allegations of unfair practices meet the federal notice-pleading standards beca use they claim that Fannie May “engaged in unfair conduct and aver[] facts that, if proven, make relief more than merely speculative.” See WindyNo. 19-1032 9

City Metal Fabricators & Supply, In c. v. CIT Tech. Fin. Servs., Inc. , 536 F.3d 663, 672 (7th Cir. 2008).

C So far, so good. But Benson has one more hurdle: a private plainti ff suing under the ICFA must show that she “su ffered ‘actual damage’ as a result of the defendant’s violation of the act.” Camasta , 761 F.3d at 739. In other words, she must plausibly plead that the deceptive or unfair act caused her to su ffer actual damages, meaning pecuniary loss. Kim v. Carter’s Inc. , 598 F.3d 362, 365 (7th Cir. 2010). Actual loss may occur “if the seller’s deception deprives the plainti ff of ‘the bene fi t of her bargain’ by causing her to pay ‘more than the actual value of the property.’” Id.

In Kim , the plainti ff s purchased clothing from several stores that advertised their wares as being discounted from “Suggested Prices.” Id. at 363. The “Suggested Prices,” however, were fi ctitious and much higher than anything customers actually paid. Id. Nevertheless, we fo und that the plainti ff s had su ffered no concrete harm because they had not alleged that the clothing “was defectiv e or worth less than what they actually paid” or that “they could have shopped around and obtained a be tt er price in the marketplace.” Id. at 365–66.
The same is true here. Neither Benson nor Smith has alleged that the seven ounces of chocolate in the box were worth less than the $9.99 that they paid. They do not claim that the Mint Meltaways or Pixies were defective or that they could have acquired them for a be tt er price. Instead, both plainti ff s assert that they would not have purchased the candy if they had known the amount of slack- fi ll, and they seek damages in10 No. 19-1032

the amount of the percentage of the purchase price equal to the percentage of nonfunctional slack- fi ll.But this assumes that they were injured, and that assumption is inconsistent with Camasta . There the plainti ff’s allegation of actual damages fell short, even though he said that he“would not have purchased” shirts absent deceptive advertising, because he had not alleged that he paid more than “the actual value of the merchandise he received.” Camasta , 761 F.3d at 735, 740. In our case, Benson and Smith never said that the chocolates they received were worth less than the $9.99 they paid for them, or that they could have obtained a be tt er price elsewhere. That is fatal to their e ff ort to show pecuniaryloss. Moreover, their request for damages based on the percentage of nonfunctional slack- fi ll is quite vague. They do not explain how a percentage refund of the purchase price based on the percentage of nonfunctional slack- fi ll corresponds to their alleged harm. They thus fa iled to raise a plausible theoryof actual damage, and so their allegations that Fannie May violated the ICFA were properly dismissed on the pleadings.

III

Benson also seeks restitution for unjust enrichment. Under Illinois law, there is no stand- alone claim for unjust enrichment. See Alliance Acceptance Co. v. Yale Ins. Agency, Inc. , 271 Ill. App. 3d 483, 492 (1995), relying on Charles Hester Enterprises, Inc. v. Illinois Founders Ins. Co. , 137 Ill. App. 3d 84, 90– 91 (1985). Instead, Illinois courts describe it as “a condition that may be brought about by unlawful or improper conduct as de fi ned by law, such as f raud, duress or undue in fl uence ... .” Charles Hester, 137 Ill. App. 3d at 90–91. The request for relief based on unjust enrichment is therefore “tied to the fate of the claim under the [ICFA].” Vanzant, 934 F.3d at 740.No. 19-1032 11

Because Benson failed to stat e a claim under the ICFA, she also failed to state a claim for unjust enrichment.Lastly, Benson alleges that Fannie May breached an implied contract for the sale of the chocolate boxes by violating the duty of good faith and fair dealing. But “there can be no contract implied in law where an express contract or a contract implied in fact exists between the parties and concerns the same subject ma tt er.” Marcatante v. City of Chicago, Ill. , 657 F.3d 433, 443 (7th Cir. 2011). Here , the parties entered into a“straightforward, everyday sales contract” in which the buyers “selected the [chocolate] and o ffered to purchase it at the advertised price, at which point [Fannie May] accepted by taking the plainti ff s’ money in exchange for possession of the [chocolate].” See Kim , 598 F.3d at 364. The “contract terms were memorialized in the sale s receipt[s] that [Benson and Smith] received at the cash register.” See id. The receipts show the speci fi c products (Mint Meltaways and Pixies), the quantity (seven ounces), and the price ($9.99). The receipts embody the contract between the parties, and it concerns the identical subject-ma tt er of the alleged implied contract. State law does not recognize an implied contract inthis situation, and so that part of the case was also properly dismissed.

We A FFIRMthe judgment of the district court.