A federal court in Illinois has dismissed putative class claims alleging that Denny’s Corp. fails to inform consumers that some of its menu items contain excessive levels of salt. Ciszewski v. Denny’s Corp., No. 09 C 5355 (U.S. Dist. Ct., N.D. Ill., E. Div., decided April 7, 2010). Additional information about the case can be found in issue 318 of this Update.
The court determined that the named plaintiff failed to sufficiently plead a violation of the state’s consumer fraud statute because he failed to identify any particular deceptive communication generated by Denny’s. Indeed, plaintiff made clear that his claim was based on alleged deceptive omissions. Because Illinois law requires “some communication from the defendant, either a communication containing a deceptive misrepresentation or one with a deceptive omission,” the court ruled that he had “failed to plead the circumstances constituting the fraud with sufficient particularity.” With the fraud claim dismissed, the court also dismissed derivative unjust enrichment and accounting claims.
To support his implied contract claim, the plaintiff contended that the company’s intent to serve meals safe to eat is implicit in its offer to sell meals, because “consumers reasonably expect restaurants to sell meals that are safe for human consumption. [Plaintiff] contends that by providing meals that contain unsafe amounts of sodium, Denny’s breached their implied contract.” According to the court, the plaintiff did not allege “that any given Denny’s meal is unsafe in and of itself. To put it another way, he does not allege that exceeding the [Center for Disease Control]-recommended maximum for a day, or several days, in a single meal is by itself unsafe. Thus assuming for purposes of discussion that a restaurant impliedly contracts with its customers that the food it sells is safe for consumption, he has not adequately alleged a breach of that contract.”
Had the plaintiff claimed that Denny’s impliedly contracted to sell “only meals that contain less than a particular amount of sodium,” the court may have found this claim sufficiently alleged. As he did not, the court dismissed the claim, thus disposing of the entire case, but gave the plaintiff until April 27, 2010, to file an amended complaint stating “one or more viable claims.” Failing that, the court will enter a final judgment of dismissal with prejudice.