As anticipated, the "sodium" claims against Denny’s asserted in federal district court in Illinois have been dismissed on a Federal Rule of Civil Procedure (FRCP) 12(b)(6) motion. A copy of the court’s order is here. As discussed previously in this blog, the Illinois action alleges claims of consumer fraud, breach of implied warranty of merchantability, unjust enrichment, accounting and breach of contract implied in fact.

State consumer fraud claims based on “deceptive conduct” were tossed because they require under FRCP 9(b)’s “heightened pleadings requirement” allegations of a specific “communication containing a deceptive misrepresentation or one with a deceptive omission.” Denny’s made no deceptive misrepresentations or deceptive omissions (nor were any alleged). To the contrary, as discussed previously in this blog, Denny’s discloses clearly on its website and in its restaurants sodium content of its meals.  

Unjust enrichment and accounting claims were dismissed for largely the same reason as the consumer fraud claims.

The breach of contract claim was based upon the novel theory that the “bargained for” contract between class members and Denny’s required Denny’s to provide “a meal fit for human consumption.” The food sold, according to the plaintiff, “contained excessive amounts of sodium, such that it was not fit for human consumption.”

The contract claims were dismissed because there were no allegations that (1) a single meal that contains sodium in excess of the recommended daily maximum “is by itself unsafe” or (2) “Denny’s enters into an implied contract to sell only meals that contain less than a particular amount of sodium.”