Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence on 12(b)(6) Motion — Defendant’s Website — Current and Older Versions as Displayed on Wayback Machine Based on Complaint’s Reference to Website

Galanis v. Starbucks Corp., 2016 U.S. Dist. LEXIS 142380 (N.D. Ill. Oct. 14, 2016):

Memorandum Opinion and Order

Steven Galanis alleges that Starbucks deceives its customers by misrepresenting the volume of its cold drinks because much of the volume is taken up by ice. Galanis alleges that this conduct constitutes: a breach of an express warranty (Count I); a breach of an implied warranty of merchantability (Count II); negligent misrepresentation (Count III); unjust enrichment (Count IV); fraud (Count V); a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Count VI); and, a violation of the Illinois Uniform Deceptive Trade Practices Act (Count VII). See R. 1. Starbucks [*2]  has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. R. 34. For the following reasons, Starbucks motion is granted.

Legal Standard

A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.


Starbucks sells iced coffee, [*3]  iced tea, and iced blended specialty drinks at its many cafes across the country. R. 1 ¶ 1. Starbucks drinks are available in different sizes. Starbucks's menus describe the different sizes according to volume measured in "fluid ounces." Id. ¶¶ 18-19. On its website, Starbucks lists the drink container sizes it offers in a menu that is separate from the menu listing the drinks' contents. Id. ¶ 18. In its stores, Starbucks lists the drink container sizes across the top of its menu, whereas the contents of the drinks are separately listed down the side of the menu. Id. ¶ 19.

Starbucks's cold drinks that contain ice are described on the menu as "iced." Id. Galanis referenced the menus on Starbucks's website in the complaint, so the Court independently viewed the website. As can be seen in the red-highlighted sections of the screen capture from the online menu included below, not only is the word "iced" part of the name of the cold drinks at issue in this case, the drinks are served "over ice" or "with ice," and the ingredients list includes ice. See , for "Starbucks Refreshers Beverages," "Iced Coffee," "Iced Tea" (last visited Oct. 14, 2016, and confirmed [*4]  for earlier dates prior to the filing of the complaint using The Wayback Machine Internet Archive, ).

The cups in which Starbucks serves its "iced" drinks are made of clear plastic. The cups are also marked with black lines that delineate the amount of coffee, tea, or other beverage a Starbucks employee is supposed to pour into the cup. Id. ¶ 22. The employee then fills the rest of the cup with ice. Id. ¶¶ 22-23. Galanis alleges that "in essence, Starbucks is advertising the size of its . . . cups on its menu, rather than the amount of fluid a customer will receive when they purchase [an iced coffee, iced tea, or iced blended specialty drink]--and deceiving its customers in the process." Id. ¶ 35.


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