CHICAGO (Legal Newsline) – A cookie manufacturer facing a class action lawsuit has filed a motion for dismissal, alleging conflict of multiple state laws and statute requirements.

Rochelle Ibarrola of Illinois and Lori Cowen of Michigan filed a class action representing similarly affected consumers in 10 states altogether. It was filed on Feb. 28 in U.S. District Court of Northern District of Illinois against Lenny & Larry’s Inc., makers of The Complete Cookie. 

They alleged multiple state consumer fraud violations, product liability, unjust enrichment and breach of implied warranty. They claimed Lenny inflated the cookie’s protein nutritional value, misleading consumers and engaging in deceptive practices for profit.

Filed April 24, Lenny & Larry's motion for dismissal addressed each of the allegations by state, by individual statute and by type of allegation. It claimed the plaintiffs limited the multi-state class to states with similar fraud laws including Illinois, Michigan, California, Massachusetts, Minneapolis, New Jersey, New York, Washington, Florida and Missouri.

However, the defense claimed that since the plaintiffs didn’t live, purchase the product, suffer an injury or filed claims in any of these other eight states, they cannot sue under their respective consumer protection laws. The defendant also said because these consumer laws have major differences and conflicting requirements, the plaintiffs’ claims should be dismissed. 

Further, because a few states require notice of intent to sue and this wasn’t filed, claims for fraud relief should be restricted to home-state claims or dismissed entirely. Lenny & Larry's said other claims should be discharged for “lack of privity of contract,” and failure to allege sufficient details regarding specifics of the fraud committed and the resulting injury. 

It claimed the plaintiffs didn’t state which of the 14 cookie products they purchased or specifically when they purchased them.

The defendant alleged the conflict of this multi-state class would affect, among others, the intent, statute of limitations, exemptions, standing and remedies, to varying degrees, making it difficult to litigate. It claimed the statute of limitation for the 10 states spanned three-to-six years, three required notice and several required some form of intent. They used similar arguments as to why each plaintiff’s claim should also be dismissed in their home state, as well.

Finally, the defense alleged that Rochelle, specifically, was involved in another similar case. It was dismissed for lack of pre-suit notice, and for failing to specify individual injury and being vague. Lenny & Larry's surmised that for these reasons and more, current litigation should be dissolved.

Defense counsel includes Todd Stelter and David Schultz of Hindshaw & Culbertson LLP of Chicago and Robert Wallan of Pillsbury Winthrop Shaw Pittman LLP in Los Angeles. 

Plaintiffs are represented by Edward Wallace and Amy Keller of Wexler Wallace LLP in Chicago; by Nick Suciu of Barbat, Mansour & Suciu PLLC in Bloomfield Hills, Michigan; and by Steven Wasserman, Kathryn Marshall and Karin Leavitt of the Wasserman Law Group in Tarzana, California.

U.S. District Court for the Northern District of Illinois Case number 17-cv-01530

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