Illinois Southern District Judge Nancy Rosenstengel
EAST ST. LOUIS, ILLINOIS - A Southern Illinois federal judge won’t end a class action alleging Kroger violated a state consumer fraud law by allegedly misleading customers about how many cups of joe they can get from a package of coffee.
U.S. District Judge Nancy Rosenstengel issued an opinion July 28 denying Kroger’s partial motion to dismiss the first amended complaint from Anthony Womick, whose Madison County lawsuit accused the supermarket giant of violating the Illinois Consumer Fraud and Deceptive Business Practices Act because certain store-brand ground coffee products didn’t produce the advertised quantity.
In seeking dismissal, after the complaint was removed to federal court, Kroger argued Womick couldn’t be a class representative for products he didn’t directly buy or for claims under laws in states in which he has never lived or in which he bought the coffee.
At issue are five sizes of ground coffee sold in canisters, from the 11.5-ounce size promoted as making about 90 cups to the 30.5-ounce container good for 235 cups. Each container suggests the same proportion for a single cup: one rounded tablespoon per six fluid ounces of water.
For the largest canister, Womick alleged he could yield no more than 173 cups. He included a chart comparing the represented and actual yields based on using a 5-gram tablespoon. He further claimed the products also fell short when following Kroger’s 10-cup instructions — half a cup of grounds (or 40 grams or eight tablespoons) — although the difference from representation to actual yield was significantly narrower for each of the five sizes.
For the single cup instructions, Womick alleged the shortage ran from 25 cups for the smallest canister up to 62 cups for the largest. When using 10-cup instructions, Womick figured the difference at 8.5 cups for the small canister and 19 cups for the largest.
Womick said he regularly bought the 29-ounce and 30.5-ounce grounds in 2020 and 2021 and usually used the 10-cup instructions.
“In addressing Kroger’s motion to dismiss Womick’s initial class action complaint,” Rosenstengel wrote, she “observed that a class representative who purchased one product may have standing to represent putative class members who purchased different products where the injuries alleged are ‘substantially similar.’ ”
She said Kroger’s argument against the amended complaint suggested the observation wasn’t dispositive as it came from another context, but “the statement directly addressed the question now before the court — namely, Womick’s standing to represent putative class members asserting claims based on products he did not purchase.”
Rosenstengel said allowing a complaint like Womick’s to proceed strikes a balance between standing principles and federal court rules because it would be efficient for federal courts’ purposes while preserving the ability, when ruling on certification, to weed out claims that aren’t sufficiently similar.
Womick pursued a similar strategy in defending his right to represent shoppers outside Illinois, noting the question implicates certification and not his standing, pushing the decision to further in the process. Rosenstegel agreed and declined to resolve the issue just yet.
“Kroger’s challenge to Womick’s ability to represent class members asserting claims under other states’ consumer protection statutes will be addressed, if necessary, at the class certification stage,” she wrote.
