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CHICAGO — A federal judge refused to fully dispose of a lawsuit from Walgreens customers who said the company failed to warn them disposable plastic cutlery might melt in dishwashers.
Bridget Simpson, of Riverside, California, sued the Deerfield-based pharmacy giant along with Sumter Easy Home and Ningbo Hole-Link Plastic Product Manufacturing, based on her May 2022 purchase of cutlery in a package that identified the contents, in all caps, as "HEAVY DUTY" and "DISHWASHER SAFE."
Simpson said the products melted in her dishwasher’s lower-rack cutlery basket. She said language on the bottom of the package, which read, “Dishwasher safe if cleaned on the top rack,” was insufficient. She further alleged the companies failed to abide by an industry standard to clearly delineate something that only be safely washed on a top rack.
The companies moved to dismiss the complaint, which included subclass claims under the California Consumers Legal Remedies Act and the state’s Unfair Competition Law, as well as breach of implied warranty. The complaint also sought damages on behalf of an entire class covering state law claims for common law fraud, unjust enrichment and intentional and negligent misrepresentation.
In an opinion filed Feb. 13, US. District Judge Franklin Valderrama, of the Northern District of Illinois, granted only part of the motion to dismiss and denied outright a request to strike class claims.
Valderrama first agreed with Simpson that dismissal for actions like hers is rare at this stage of litigation. He further said she was right to rely on a 2024 U.S. Ninth Circuit Court of Appeals opinion, Whiteside v. Kimberly Clark, to bolster her position that disclaimers on the back of packing aren’t inherently sufficient to resolve potential ambiguity when compared to the more prominent front packaging.
Simpson, Valderrama wrote, “alleges that ‘dishwasher safe’ means both to the industry and consumers that a product can be washed anywhere in the dishwasher. 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.”
Whether the words on the package front were ambiguous, he continued, is the type of factual question suitable as the litigation proceeds.
He did agree with the defendants that Simpson failed to comply with CLRA’s requirement to give companies 30 days of notice that they will be defendants in a lawsuit. Valderrama dismissed those claims without prejudice for at least 30 days until she provides proper notice.
Regarding implied warranty, Valderrama again sided with Simpson, rejecting the company’s contention her complaint didn’t identify a “promise or affirmation of fact to which the product did not conform.” He said she directly alleged the label asserted the cutlery was “dishwasher safe” and further claimed she wouldn’t have bought the box at that price, or at all, had she known they would melt unless washed on a top rack.
Ningbo and Sumter argued they are improper defendants for the warranty breach claim, and Valderrama agreed Simpson doesn’t qualify for an exception to the rule that end consumers don’t have any legal contract to manufacturers despite her allegations of relying on written labels or her position as an intended third-party recipient of a product Walgreens sold. California courts only recognize that exception for breach of express warranty, Valderrama noted, not implied, and other “recent courts have declined to apply the exception to consumers purchasing goods from retail stores.”
Regarding common law claims, Valderrama again returned to the distinction of “dishwasher safe” — which the companies argued was a true statement because there is a method to safely wash the cutlery in a dishwasher — and “top-rack only” such that relying on the former term to advertise the cutlery “was not just misleading, but false.”
He further said Simpson’s fraud claim wasn’t barred by a rule requiring a plaintiff to show an economic loss, but did note Ninth Circuit courts have been split on whether that rule applies to claims for negligent misrepresentation. He said Simpson’s “claim sounds more in fraud than it does in contract law” and acknowledged that all the common law claims might be essentially the same, posing a roadblock for an attempt at double recovery.
However, Valderrama wrote, she “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.” He also wouldn’t dismiss the unjust enrichment claim, agreeing he has the option to “construe the cause of action as a quasi-contract claim seeking restitution.”
Finally, Valderrama agreed with the companies that Simpson lacked standing to seek an injunction because she failed to show any “real and immediate threat of suffering future harm” because she hasn’t continued to buy the plastic cutlery, nor would she be forced to buy more in the future. He said her injury isn’t ongoing or likely to recur, even if the companies don’t alter the packaging to clarify safe methods for washing.
Regarding the class motions, Valderrama noted the U.S. Seventh Circuit Court of Appeals has raised several concerns about multistate consumer protection or warranty claims, but they aren’t categorically prohibited and the motion to strike is premature.
Simpson is represented in the action by attorney Timothy J. Peter, of the firm of Farqui & Farqui, of Philadelphia.
Walgreens is represented by attorneys Peter S. Roeser and Matthew D. Tanner, of the firm of Roeser Tanner & Graham, of Chicago; and Todd P. Lewis and Jorge J. Rodriguez, of the firm of Conner & Winters, of Fayetteville, Arkansas.
