Reid v. Unilever United States, Inc. (964 F. Supp. 2d 893, 2013)

United States District Court for the Northern District of Illinois 2013-08-07

Commerce and Trade

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, Chief Judge.

Sidney Reid and Angel Lake, on behalf of themselves and all others similarly situated (collectively “Plaintiffs”), bring this putative class action against Unilever United States, Inc. (“Unilever”) asserting breaches of express and implied warranties, unjust enrichment, violations of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (the “Magnuson-Moss Act”), and several state laws. Plaintiffs’ action arises out of their purchase and use of a hair treatment sold as Suave Professionals Keratin Infusion 30 Day Smoothing Kit (the “Hair Treatment”) that allegedly caused Plaintiffs to suffer hair loss and damage. (R. 1, Compl. ¶¶ 1, 6.) Presently before the Court are Unilever’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), (R. 23, Def.’s Mot.), Plaintiffs’ motion to limit or supervise Unilever’s communications with absent class members, (R. 30, Pis.’ Mot. Limit Commc’ns), and Reid’s motion for approval to serve discovery, (R. 41, Pis.’ Mot. Disc). For the reasons set forth below, each of the motions is granted in part and denied in part.

RELEVANT FACTS

Unilever is a wholly owned subsidiary of Unilever NV and Unilever PLC, (R. 22, Def.’s Corp. Disclosure Statement), and is located in New Jersey, (R. 1, Compl. ¶ 16). Reid is a resident of Chicago, Illinois, and Lake is a resident of Foley, Alabama. (Id. ¶¶ 14, 15.) Plaintiffs allege that on or about December 9, 2011, Unilever made the Hair Treatment available for sale to consumers on a nationwide basis. (Id. ¶¶ 1, 17.) According to Plaintiffs, the Hair Treatment “contains an ingredient or combination of ingredients that causes significant hair loss upon proper application.” (Id. ¶ 1.) Plaintiffs allege that as early as December 2011, consumers complained on the internet that use of the Hair Treatment was causing hair loss and chemical burns. (Id. ¶¶ 7, 33.) Despite these complaints, Plaintiffs aver that Unilever did not disclose the risk of hair loss on the Hair Treatment’s packaging, “or on [Unilever’s] websites or other marketing materials.” (Id. ¶ 6.)

In early March 2012, Reid purchased the Hair Treatment for approximately eleven dollars from a retail store in Chicago, Illinois. (Id. ¶ 49.) Reid alleges that she applied the Hair Treatment properly and thereafter experienced hair loss. (Id.) According to Reid, “[h]er hair became progressively thinner at the top of her crown until there were visible bald spots.” (Id. ¶ 50.) As a result of the damage that the Hair Treatment caused to her hair, Reid needed to “have all but half an inch of her hair cut off.” (Id. ¶ 57.) She alleges that she “incurred in excess of $100 dollars in expenses to date relating to her attempts to restore or salvage what was left of her hair” and that her expenses continue to accrue. (Id.) In April 2012, Reid wrote to Unilever on its website informing them that use of the Hair Treatment caused her to experience hair loss, but she avers that she did not receive a response from Unilever. (Id. ¶ 58.) On July 23, 2012, Reid again wrote to Unilever, and Unilever sent her an e-mail response advising her that someone would contact her. (Id.) According to Reid, as of August 1, 2012, she had not received any follow-up communication from Unilever. (Id.)

In early May 2012, Lake purchased the Hair Treatment for approximately ten dollars from a retail store in Alabama. (Id. ¶ 51.) Lake alleges that she applied the Hair Treatment properly, but “within minutes of use, her hair began melting together and falling out in clumps.” (Id. ¶ 52.) Lake then sent Unilever a letter setting forth her experience with the Hair Treatment. (Id. ¶ 53.) Unilever responded to Lake’s letter and asked for additional information to investigate the problem. (Id. ¶ 54.) Although Unilever also refunded Lake fifteen dollars for the purchase of the Hair Treatment, Lake contends that she incurred and continues to incur expenses in repairing the damage caused by the Hair Treatment. (Id.) Lake avers that she has spent hundreds of dollars attempting to repair the damage caused by the Hair Treatment. (Id. ¶ 59.) Lake also alleges that she has been “forced to cut approximately 12 inches off the length of her hair” and that her remaining hair continues to fall out and “is no longer in the good condition it was in prior to her use of the [Hair] Treatment.” (Id.)-

Plaintiffs allege that they “would not have purchased the [Hair] Treatment but for the Defendant’s false and fraudulent marketing that promoted the [Hair Treatment] as a safe ‘smoothing’ product whose effects would last no longer than 30 days, its false statement that the [Hair Treatment] does not contain [f]ormaldehyde, and its misleading claim-that it was Keratin-based.” (Id. ¶ 55.) Plaintiffs further allege that Unilever was aware or should have been aware that the Hair Treatment contained an inherent defect that caused significant hair loss upon proper application, (Id. ¶¶ 11, 45), but that despite such knowledge, Unilever did not disclose the risk of hair loss to consumers, (Id. ¶ 48).

On May 2, 2012, Unilever recalled the Hair Treatment, (Id. ¶ 35), in what Plaintiffs characterize as a belated and incomplete recall. (Id. ¶¶ 9, 34, 39, 48.) Unilever advised retailers to immediately cease the distribution of the Hair Treatment and asked retailers to send the Hair Treatment back to Unilever. (Id. ¶ 36.) On its website, Unilever explained that the Hair Treatment was recalled “because of potential consumer misunderstanding of the product’s suitability for certain hair conditions.” (Id. ¶ 34.) Nevertheless, Plaintiffs aver that Unilever did not make any public announcement and did not publicly respond to complaints stemming from the use of the Hair Treatment. (Id. ¶ 38.) Plaintiffs allege that despite the recall of the Hair Treatment, Unilever has continued to advise consumers that the Hair Treatment is safe and has not disclosed to consumers complaints of hair loss, or issued warnings about potential hair loss to consumers. (Id. ¶¶ 39-40.)

MOTION TO DISMISS

I. Procedural History

On August 1, 2012, Plaintiffs filed their six-count complaint (“Complaint”) with this Court in their individual capacities and on behalf of others similarly situated. (R. 1, Compl. at 1). That same day, Plaintiffs moved for class certification and a stay of briefing. (R. 4, Pis.’ Class Cert. Mot.) On March 6, 2013, the Court granted a stay of briefing on the class certification motion pending the resolution of Unilever’s motion to'dismiss. (R. 45, Min. Entry.)

In Count I of the Complaint, brought individually and on behalf of all putative class members, Plaintiffs allege that they formed a contract with Unilever at the time they purchased the Hair Treatment, and that “[t]he terms of that contract include the promises and affirmations of fact” made by Unilever through its advertising, marketing and packaging. (R. 1, Compl. ¶ 73.) Specifically, Plaintiffs contend that Unilever expressly warranted that the Hair Treatment “was a hair ‘Smoothing’ Product and not a chemical relaxer, that the effects of the [Hair] Treatment would last no more than 30 days, and that it contained No Formaldehyde and was safe.” (Id. ¶ 74.) Plaintiffs further allege that Unilever breached these express warranties because its statements were false. (Id. ¶ 76.) Plaintiffs contend that they would not have purchased the Hair Treatment had they known its true nature. (Id. ¶ 76.) In Count II, Plaintiffs allege that Unilever breached implied warranties because the Hair Treatment was defective and therefore not merchantable. (Id. ¶ 80.) As a result of the non-merchantability of the Hair Treatment, Plaintiffs allege that they sustained damages. (Id. ¶ 82.)

In Count III, Plaintiffs bring consumer fraud claims, individually and on behalf of all putative class members, against Unilever. (Id. ¶¶ 83-97.) Reid brings her consumer fraud claims pursuant to the Illinois Consumer Fraud and Deceptive Businesses Practices Act (the “ICFA”), 815 Ill. Comp. Stat. 505/1 et seq. (Id. ¶ 85 n. 2.) Lake brings her consumer fraud claims pursuant to the Alabama Deceptive Trade Practices Act (the “ADTPA”), Ala.Code § 8-19-1 et seq. (Id. ¶¶ 84-85.) In a footnote, Plaintiffs note that pursuant to Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) (plurality opinion), although class relief is not permitted under Alabama State law, an Alabama class may nonetheless be maintained in a diversity suit under Federal Rule of Civil Procedure 23. (Id. at 19 n. 1.) In a separate footnote, Plaintiffs also note that the consumer fraud claims of nonresident absent class members are brought under the consumer protection statutes of then-respective states of residence. (Id. ¶ 85 n. 2.) In support of their consumer fraud claims, Plaintiffs allege that Unilever knowingly misrepresented and/or omitted material facts to consumers, such as Plaintiffs, and that these material misrepresentations violate the consumer fraud laws at issue. (Id. at ¶¶ 87-96.) Specifically, Plaintiffs allege that Unilever misrepresented that the Hair Treatment “was a Keratin-based ‘smoothing’ conditioner” and that by placing “No Formaldehyde” in all capital letters on the front of the Hair Treatment’s packaging, along with a claim that the Hair Treatment would “ ‘infuse hair with Keratin,’ Unilever marketed the [Hair Treatment] as a natural, safe conditioning treatment.” (Id. ¶¶ 90-91.)

In Count IV, brought individually and on behalf of all putative class members, Plaintiffs allege that Unilever committed deceptive acts or practices within the meaning of the Illinois Uniform Deceptive Trade Practices Act (the “Illinois UDT-PA”), 815 Ill. Comp. Stat. 510/1 et seq., such as failing to disclose the defect in the Hair Treatment and failing to warn consumers of the risk of significant hair loss associated with its use. (Id. ¶¶ 98-103.) In Count V, Plaintiffs allege that Unilever violated the Magnuson-Moss Act by breaching the implied and express warranties identified in Counts I and II. (Id. ¶ 108.) In Count VI, brought individually and on behalf of all putative class members, Plaintiffs . allege that Unilever has been unjustly enriched by retaining the revenues derived from the putative class members’ purchase of the Hair Treatment. (Id. ¶¶ 109-13.)

On September 10, 2012, Unilever moved to dismiss all counts of the Complaint for failure to state a claim pursuant to Rule 12(b)(6). (R. 23, Def.’s Mot.) Unilever first argues that the Hair Treatment’s packaging and instructions, attached to the Complaint as exhibits, contradict Plaintiffs’ assertions in Count I that Unilever made false statements about the Hair Treatment. (R. 25, Def.’s Mem. at 2, 7-9.) As to Count II, Unilever contends that Plaintiffs lack standing to assert a cause of action for breach of an implied warranty because Plaintiffs are not in privity with Unilever. (Id. at 2, 9.) Unilever also maintains that Count III fails to state a claim because Plaintiffs’ claims' are duplicative of their claimed breach of warranties which are not actionable under a consumer fraud act, and because Plaintiffs fail to allege that Unilever acted knowingly. (Id. at 11.) Unilever next contends that Count IV should be dismissed because an award of damages is not an available remedy under the Illinois UDTPA, and there is no need for injunctive relief because it has recalled the Hair Treatment. (Id. at 2, 12-13.) Unilever also maintains that, to the extent Count TV purports to assert a claim under the ADTPA, it is duplicative of Count III and should therefore be dismissed, (Id. at 2, 13.) The lack of viable state law causes of action for breaches of express and implied warranties, Unilever contends, renders the Magnuson-Moss Act claim asserted in Count V moot. (Id. at 2, 13-14.) Finally, Unilever argues that Count VI, the unjust enrichment claim, fails because the Complaint does not allege sufficient facts to support it and is otherwise moot as to Lake. (Id. at 2,14-15.)

On November 28, 2012, Plaintiffs filed a response in opposition to Unilever’s motion to dismiss. (R. 34, Pis.’ Resp.) Plaintiffs first argue that they have sufficiently pleaded a claim for breach of express warranty in Count I. (Id. at 3-8.) Specifically, they argue that Unilever’s representations that the Hair Treatment was a “smoothing” product, that its effects would last “up to 30 days,” and that it contained “No Formaldehyde,” are affirmations of fact or promises that are false and not mere puffery. (Id. at 3-8.) Plaintiffs next argue that lack of privity does not render Count II deficient because neither Illinois nor Alabama State laws require privity of contract for actions such as this one, where it is alleged that a defective product caused injury to property or persons beyond damage to the product itself. (Id. at 8) (citing Berry v. G.D. Searle & Co., 56 I11.2d 548, 309 N.E.2d 550, 556 (1974)).

With respect to Count III, Plaintiffs argue that they have alleged that Unilever’s representations concerning the Hair Treatment were deceptive acts with sufficient particularity, as required by Federal Rule of Civil Procedure 9(b). (R. 34, Pis.’ Resp. at 9.) According to Plaintiffs, Rule 9(b) only requires them to allege a “basic outline of the scheme,” and not all “evidentiary details that will be used to support the claim.” (Id. at 9) (citing Mutuelle Generóle Francaise Vie v. Life Assurance Co. of Pa., 688 F.Supp. 386 (N.D.I11.1988)). Plaintiffs further assert that the Hair Treatment’s undisclosed corrosive nature clearly caused the damage reported by Plaintiffs. (R. 34, Pis.’ Resp. at 12.)

In response to Unilever’s assertion that Plaintiffs fail to seek an available remedy under the Illinois UDTPA in Count IV, they argue that the Complaint properly alleges a threat of future actions in violation of the Illinois UDTPA, namely, the full and appropriate recall of the Hair Treatment. (Id. at 13.) Plaintiffs also do not dispute that their ADTPA claim is duplicative of Count III, but argue that this is permitted under Federal Rule of Civil Procedure 8(d)(2). (Id.)

With respect to Count V, Plaintiffs reiterate that they have adequately alleged viable state law claims for breaches of implied and express warranties as required under the Magnuson-Moss Act. (Id. at 14.) Finally, as to Count VI, Plaintiffs argue that Unilever’s assertion that the “unjust enrichment claim is inapplicable because express warranties create a specific contract which would govern over an unjust enrichment claim” misapprehends the law. (Id.) According to Plaintiffs, express warranties do not create a specific contract and Plaintiffs have not alleged a breach of contract claim. (Id.) Plaintiffs further contend that the refund Unilever issued to Lake has not rendered her unjust enrichment claim moot because Plaintiffs are entitled to recover the purchase price as well as all interest, fees, and costs accrued. (Id. at 15.) Finally, in the alternative, Plaintiffs request that they be granted leave to file an amended complaint should additional allegations be in order. (Id. at 15-16.)

On December 6, 2012, Unilever filed a reply in support of its motion to dismiss. (R. 38, Def.’s Reply.) Unilever argues that Plaintiffs are unable to point to specific factual allegations that support their claims and, instead, rely on conclusory allegations that lack factual support and are contradicted by the Hair Treatment’s packaging and instructions. (Id. at 1.)

II. Legal standards

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). In ruling on a motion to dismiss under Rule 12(b)(6), the Court construes the complaint “in the light most favorable to the nonmoving party, accepting] well-pleaded facts as true, and drawing] all inferences in [their] favor.” Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir.2010). To survive a motion to dismiss for failure to state a claim, the complaint must overcome “two easy-to-clear hurdles”: (1) “the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which it rests”; and (2) “its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ‘speculative level[.]’ ” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.2008). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plausibility in this context does not imply that a court “should decide whose version to believe, or which version is more likely than not.” Swanson v. Citibank, N.A, 614 F.3d 400, 404 (7th Cir.2010). Rather, to survive a motion to dismiss under Rule 12(b)(6), “the plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen.” Id.

For claims that sound in fraud, Federal Rule of Civil Procedure 9(b) requires a plaintiff to “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). Specifically, Rule 9(b) requires plaintiffs to plead the “who, whát, when, where, and how: the first paragraph of any newspaper story,” of the “circumstances constituting fraud.” DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990). While the circumstances constituting fraud must be pleaded with particularity, a defendant’s “intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b); see also DiLeo, 901 F.2d at 627. Furthermore, the heightened pleading requirement of Rule 9(b) applies to all civil cases brought in federal court, even those grounded on state law. Ackerman v. Nw. Mut. Life. Ins. Co., 172 F.3d 467, 470 (7th Cir.1999) (citing Herman & MacLean v. Huddleston, 459 U.S. 375, 387-89, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983)); see also Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 441 (7th Cir.2011) (“When a plaintiff in federal court alleges fraud under the ICFA, the heightened pleading standard of [Rule] 9(b) applies.”). This heightened pleading requirement is a response to the “great harm to the reputation of a business firm or other enterprise a fraud claim can do.” Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir.2007) (quoting Payton v. Rushr-Presbyteñan-St. Luke’s Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999)). Thus, “[a] plaintiff claiming fraud or mistake must do more pre-complaint investigation to assure that the claim is responsible and supported, rather than defamatory and extortionate.” Id. (quoting Payton, 184 F.3d at 627).

III. Whether plaintiffs have sufficiently pleaded claims for breach of express warranty

In Count I, Plaintiffs bring claims for breach of express warranty under Illinois and Alabama law. (R. 1, Compl. ¶¶ 71-77.) Plaintiffs allege that they formed a contract with Unilever when they purchased the Hair Treatment and that “[t]he terms of that contract include the promises and affirmations of fact made by [Unilever] on the [Hair] Treatment’s packaging and through marketing and advertising.” {Id. ¶ 73.) Specifically, Plaintiffs aver that Unilever expressly warranted (1) that the Hair Treatment “was a hair ‘Smoothing’ Product and not a chemical relaxer;” (2) “that the effects of the [Hair] Treatment would last no more than 30 days;” and (3) that the Hair Treatment “contained No Formaldehyde and was safe.” {Id. ¶ 74.) Plaintiffs further claim that Unilever breached these express warranties because its statements about the Hair Treatment were false. {Id. ¶ 75.) Finally, Plaintiffs allege that they would not have purchased the Hair Treatment “had they known the true nature of the [Hair] Treatment and the mis-statements regarding what the [Hair Treatment] was and what it contained.” {Id. ¶ 76.)

Under Section 2-313 of the Uniform Commercial Code (“UCC”) as adopted in both Illinois and Alabama, an express warranty is created where (1) the seller makes an affirmation of fact or promise; (2) that relates to the goods; and (3) becomes part of the basis of the bargain between the parties. See Royal Bus. Mach., Inc. v. Lorraine Corp., 633 F.2d 34, 41 (7th Cir.1980) (construing UCC § 2-813 as adopted in Indiana). “An affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” 810 Ill. Comp. Stat. 5/2-313(2) (2012); Ala. Code § 7-2-313(2) (2002); see also Weiss v. Rockwell Mfg. Co., 9 Ill.App.3d 906, 293 N.E.2d 375, 381 (1st Dist.1973) (holding that “to be actionable under the theory of express warranty the claim must be based on an affirmation of fact or promise which is not a statement representing the seller’s opinion or commendation of the goods and which is false”). Thus, “[s]ales talk which relates only to the value of the goods or the seller’s personal opinion or commendation of the goods is considered puffing and is not binding on the seller.” Redmac, Inc. v. Computerland of Peoria, 140 Ill.App.3d 741, 95 Ill.Dec. 159, 489 N.E.2d 380, 382 (3d Dist.1986); see also Russell v. Wilson, 991 So.2d 745, 749 (Ala.Civ.App. 2008) (holding that statements attributed to motorcycle seller that motorcycle was in “good shape” were statements of opinion and “sales talk, i.e., mere puffery, and [did] not rise to the level of a representation of material fact required to create an express warranty”) (internal citations omitted). The question of whether a statement constitutes an express warranty or mere puffery is generally considered a question of fact. Redmac, Inc., 95 Ill.Dec. 159, 489 N.E.2d at 382; 810 Ill. Comp..Stat. 5/2-313, cmt. 3; Russell, 991 So.2d at 748 (“Whether a given representation is an expression of opinion or a statement of fact depends upon all the circumstances of the particular cases ... in cases of question should be left to the jury”) (internal quotation marks omitted) (quoting McGowan v. Chrysler Corp., 631 So.2d 842, 846 (Ala. 1993)); Ala.Code § 7-2-313, cmt. 3.

The Seventh Circuit has noted that “[t]he decisive test for whether a given representation is a warranty or merely an expression of the seller’s opinion is whether the seller asserts a fact of which the buyer is ignorant or merely states an opinion or judgment on a matter of which the seller has no special knowledge and on which the buyer may be expected also to have an opinion and to exercise his judgment.” Royal Bus. Mach., Inc., 633 F.2d at 41 (referencing Illinois’ test where claims arose under the UCC as adopted by Indiana) (citing Weiss, 293 N.E.2d at 381; Gen. Supply & Equip. Co. v. Phillips, 490 S.W.2d 913, 917 (Tex.Civ.App.1972)). In the first case there is a warranty, but in the second there is not. Weiss, 293 N.E.2d at 381.

Unilever argues that Count I fails to state a claim because Plaintiffs have not identified any affirmation of fact or promise by Unilever that was not true. (R. 25, Def.’s Mem. at 7.) Specifically, Unilever contends that the Hair Treatment’s packaging, which Plaintiffs attached as exhibits to their Complaint, contradict Plaintiffs’ claims. (Id. at 7-9.)

A. Allegations regarding use of the term “Smoothing”

As to Plaintiffs’ first alleged express warranty that the Hair Treatment “was a hair ‘Smoothing’ [p]roduct and not a chemical relaxer,” (R. 1, Compl. ¶ 74), Unilever argues that while it did use the term “smoothing” in the packaging, it also noted that the results of the Hair Treatment may vary. (R. 25, Def.’s Mem. at 7.) Unilever contends that, at most, this “language is akin to non-actionable puffery” and is not an affirmation of fact or promise. (Id. at 7) (citing Barbara’s Sales, Inc. v. Intel Corp., 227 I11.2d 45, 316 Ill.Dec. 522, 879 N.E.2d 910, 926 (2007)). In addition, Unilever argues that the packaging and instructions are “abundantly clear” that the Hair Treatment is a hair straightener that uses the same chemicals used in hair perming thereby contradicting Plaintiffs assertion that Unilever promised that the Hair Treatment was not a “chemical relaxer.” (Id. at 8.)

In response, Plaintiffs contend that the language used in the packaging — “results may vary depending on hair type” — does not negate the smoothing promise. (R. 34, Pis.’ Resp. at 6) (citing Fed. Trade Comm’n v. QT, Inc., 448 F.Supp.2d 908 (N.D.Ill.2006)). According to Plaintiffs, this language “merely warns that the [Hair Treatment] may be less effective on some hair types.” (Id. at 6.) Plaintiffs also contend that Unilever’s statements that the Hair Treatment would smooth hair were not mere puffery and that “[t]he critical question is whether marketing materials would be likely to mislead reasonable consumers.” (Id. at 6-7) (internal quotation marks and alterations omitted) (citing Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 866 (7th Cir.1999)).

Puffing is generally defined as “[t]he expression of an exaggerated opinion — as opposed to a factual misrepresentation — with the intent to sell a good or service. Puffing involves expressing opinions, not asserting something as a fact.” Black’s Law Dictionary 1358 (9th ed.2009). According to the Seventh Circuit, statements are puffing if they are “empty superlatives on which no reasonable person would rely.” All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 868 (7th Cir. 1999); see also Barbara’s Sales, Inc., 316 Ill.Dec. 522, 879 N.E.2d at 926 (“Puffing denotes the exaggerations reasonably expected of a seller as to the degree of quality of his or her product, the truth or falsity of which cannot be precisely determined.”); Russell, 991 So.2d at 748-49 (likening mere sales talk to puffery); Hughes v. Hertz Corp., 670 So.2d 882, 885 (Ala. 1995) (“This Court has held that statements of opinion amounting to sales talk, or ‘puffery,’ are not statements concerning a material fact upon which one has a right to act and, therefore, will not support a fraud claim.”). Illinois courts have held that phrases such as, “high-quality,” “expert workmanship,” “custom quality,” “perfect,” “magnificent,” “comfortable,” “picture perfect,” and the “best” are puffery. Barbara’s Sales, Inc., 316 Ill.Dec. 522, 879 N.E.2d at 926. Similarly, Alabama courts have construed phrases such as “in good shape,” “as good as [] new,” Gable v. Boles, 718 So.2d 68, 70-71 (Ala. Civ.App.1998) (citing Hughes, 670 So.2d at 885; Young v. Serra Volkswagen, Inc., 579 So.2d 1337, 1339 (Ala.1991); Pell City Wood, Inc. v. Forke Bros. Auctioneers, Inc., 474 So.2d 694, 695 (Ala.1985)), “as good or better,” Lucky Mfg. Co. v. Activation, Inc., 406 So.2d 900, 905 (Ala.1981), and “in good condition,” La Trace v. Webster, 17 So.3d 1210, 1217 (Ala.Civ.App. 2008) (citing Pell City Wood, Inc., 474 So.2d at 695), as mere puffery. Generally, statements that ascribe specific virtues to a product that it does not possess are not considered puffing. See Miller v. William Chevrolet/GEO, Inc., 326 Ill.App.3d 642, 260 Ill.Dec. 735, 762 N.E.2d 1, 7 (1st Dist. 2001) (citing Totz v. Cont’l Du Page Acura, 236 Ill.App.3d 891, 177 Ill.Dec. 202, 602 N.E.2d 1374, 1383 (2d Dist.1992)); La Trace, 17 So.3d at 1217 (noting that Alabama courts have held that a seller’s statement that a boat was winterized, or that a trailer was a 2000 mode-year trailer were statements of fact) (citing Gable, 718 So.2d at 70; Terrell v. R & A Mfg. Partners, Ltd., 835 So.2d 216, 226 (Ala.Civ.App. 2002)).

Here, the front of the Hair Treatment packaging unequivocally states (in bold, capital letters that are in a large font): “30 DAY SMOOTHING KIT.” (R. 1, Compl., Ex. B at 30.) Underneath this statement, the packaging reads (in bold, capital letters): “SMOOTHES YOUR STYLE.” (Id.) The back of the packaging provides that the Hair Treatment “leaves [hair] smooth, shiny, and manageable for up to 30 days.” (Id. at 31) (emphasis added). The Court cannot conclude as a matter of law that Unilever’s statements were mere puffery. The statements do not appear to be exaggerations of an opinion and are susceptible of being interpreted as factual statements. That is, the description of the Hair Treatment as a “smoothing” product may be viewed as a statement that “conjure[s] a specific, factual idea” about the Hair Treatment’s effects in the mind of a typical consumer. See Miller, 260 Ill.Dec. 735, 762 N.E.2d at 7. In short, whether the identification of the Hair Treatment as a “smoothing” product is an affirmation of fact or promise is a question of fact that cannot be resolved on a motion to dismiss. Redmac, Inc., 95 Ill.Dec. 159, 489 N.E.2d at 382; 810 III. Comp. Stat. 5/2-313, cmt. 3; Russell, 991 So.2d at 748; Ala.Code § 7-2-313, cmt. 3. Similarly, whether the Hair Treatment’s packaging made it “abundantly clear” that it was a chemical hair straightener is a question of fact. Accordingly, the Court concludes that Plaintiffs have sufficiently pleaded that Unilever’s assertion that the Hair Treatment was a “smoothing” product and not a chemical relaxer was an affirmation of fact or promise so as to survive the motion to dismiss.

B. Allegations regarding use of the phrase “Up to 30 days”

Plaintiffs also allege that Unilever’s statement that the effects of the Hair Treatment “would last no more than 30 days,” (R. 1, Compl. ¶ 74), constituted a second express warranty. The front and back of the Hair Treatment’s packaging identify it as a “30 Day Smoothing Kit.” (R. 1, Compl., Ex. B at 30-31.) In addition, the packaging provides that “Hair will begin to return to its normal texture and shape over time but will continue to be smoother up to 30 days.” {Id. at 31) (emphasis added). Unilever argues that the latter statement “is not a warranty that the effects will not last longer than thirty days.” (R. 25, Def.’s Mem. at 8.) In response, Plaintiffs argue that “the plain meaning of the words indicates that there is a limit of 30 days for the effects.” (R. 34, Pis.’ Resp. at 7.)

Again, whether a statement is merely the expression of an opinion or a statement of fact is a question of fact that cannot be decided on a motion to dismiss. See Red-mac, Inc., 95 ULDec. 159, 489 N.E.2d at 382; 810 111. Comp. Stat. 5/2-313, cmt. 3; Russell, 991 So.2d at 748; Ala.Code § 7-2-313, cmt. 3. Furthermore, courts have not hesitated to find that a warranty has been created when a seller uses language in product brochures to suggest that a product will perform up to certain nominal values. See Ricwil, Inc. v. S.L. Pappas and Co., Inc., 599 So.2d 1126, 1131 (Ala. 1992) (concluding that where plaintiffs contract called for pipe that would withstand water temperatures of at least 240 degree Fahrenheit, and defendant’s product brochures specified that its piping system was for “Domestic Hot Water and Condensate Lines to 250 degree Fahrenheit,” such statements became part of the basis of the bargain and an express warranty as to temperature was made) (emphasis added and internal alterations omitted); cf. McGowan v. Am. Pressed TanBark Co., 121 U.S. 575, 581, 586, 608, 7 S.Ct. 1315, 30 L.Ed. 1027 (1887) (holding that where there was a written agreement for the construction of machinery which “would sustain and work up to a pressure of 1,500 tons” and the machinery was unable to sustain such pressure, plaintiffs could recover damages for breach of contract) (emphasis added). Thus, the Court finds that Plaintiffs have sufficiently pleaded that the description of the Hair Treatment as one that would “last up to 30 days” rose to the level of an affirmation of fact or promise so as to survive the motion to dismiss their breach of express warranty claim.

C. Allegations regarding use of the phrase “No Formaldehyde”

Finally, Plaintiffs allege that Unilever’s statement that the Hair Treatment “contained No Formaldehyde and was safe,” (R. 1, Compl. ¶ 74), created a third express warranty. Unilever contends that even if the “No Formaldehyde” statement constitutes a warranty, Plaintiffs have failed to adequately plead that Unilever breached that warranty. According to Unilever, “Plaintiffs do not allege that the [Hair Treatment] in fact contains formaldehyde,” (R. 25, Def.’s Mem. at 8), nor do Plaintiffs “allege that formaldehyde is in fact released during the specific use at issue ... [or] any facts that would support such a conclusion.” (Id. at 8-9.) Unilever also asserts that Plaintiffs’ allegations that the Hair Treatment contains a chemical ingredient that is known to release formaldehyde “does not make false the representation that the [Hair Treatment] itself does not contain formaldehyde.” (Id. at 8.)

Contrary to Unilever’s argument, Plaintiffs have alleged enough facts to state a plausible claim for relief on the basis that Unilever breached an express warranty that the Hair Treatment did not contain any formaldehyde. In their Complaint, Plaintiffs allege that the Hair Treatment contains “DMDM Hydantoin, a chemical that is known as a ‘[fjormaldehyde-releaser.’ ” (R. 1, Compl. ¶ 23.) Plaintiffs further allege that formaldehyde releasers “release small amounts of [formaldehyde over time” and that “[a]n average consumer reviewing the representation that the [Hair] Treatment contains ‘No Formaldehyde’ would not expect that it would contain a chemical known to release [formaldehyde.” (R. 1, Compl. ¶¶ 23, 25.) Placing language that indicates the absence of formaldehyde in bold, all capital letters, on the front and back of the Hair Treatment’s packaging would suggest to the reasonable consumer the absence of the offending chemical during use of the Hair Treatment. All-Tech Telecom, Inc., 174 F.3d at 862. Thus, the Court finds that Plaintiffs have sufficiently pleaded that the phrase “No Formaldehyde” rose to the level of an affirmation of fact or promise so as to survive the motion to dismiss their breach of express warranty claim. Accordingly, the Court declines to dismiss Plaintiffs’ claims for breach of express warranty in Count I.

IV. Whether plaintiffs have sufficiently pleaded a claim for breach of implied warranty

In Count II, Plaintiffs bring a claim for breach of implied warranty of merchantability against Unilever under both Illinois and Alabama law. (See R. 1, Compl. ¶¶ 78-82.) Plaintiffs allege that the Hair Treatment was “not merchantable because it contained a defect that caused hair loss upon proper application and did not otherwise perform as represented.” (Id. ¶ 80.) Specifically, Plaintiffs allege that they both experienced hair loss upon using the Hair Treatment. (Id. ¶¶ 50, 52.) Unilever argues that Plaintiffs lack standing to assert a claim for breach of implied warranty because both Illinois and Alabama State law require privity as a prerequisite for asserting such a claim. (R. 25, Def.’s Mem. at 9.) Unilever also contends that Plaintiffs fail to state a claim because they “seek to assert a claim for purely economic loss.” (R. 38, Def.’s Reply at 7.)

Under the UCC, as adopted by both Illinois and Alabama, “a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” 810 111. Comp. Stat. 5/2-314; Ala.Code § 7-2-314. Where a plaintiff seeks to sue a manufacturer (as opposed to a seller) for breach of an implied warranty, both Illinois and Alabama require the plaintiff to establish privity of contract between the plaintiff and the manufacturer. See Jensen v. Bayer, 371 Ill.App.3d 682, 308 Ill.Dec. 888, 862 N.E.2d 1091, 1099 (1st Dist.2007) (noting that under the UCC section on implied warranties, as adopted by Illinois, a plaintiff will only have a cause of action for breach of an implied warranty of merchantability against the entity from which the plaintiff purchased the good); Rampey v. Novartis Consumer Health, Inc., 867 So.2d 1079, 1087 (Ala.2003) (“[A] claim for breach of an implied warranty is not available against a manufacturer who was not involved in the transaction pursuant to which the [plaintiff] purchased the product.”). Nonetheless, where a plaintiff sues for personal injuries, as opposed to economic losses, she is excepted from the privity requirement in both Illinois and Alabama. See Jensen, 308 Ill.Dec. 888, 862 N.E.2d at 1099 (“[A] plaintiff may be excepted from the privity requirement by suing for personal injury”); Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550, 556 (1974) (“[P]rivity is of no eonseqüénce when a buyer who purportedly has sustained personal injuries predicates recovery against a remote manufacturer for breach of an implied warranty [sic]” under the UCC); Rampey, 867 So.2d at 1089 (noting that § 318 of the UCC, as adopted by Alabama, abolished the’ privity requirement for breach of implied warranty actions involving personal injury to natural persons); Bishop v. Faroy Sales, 336 So.2d 1340,1341 (Ala.1976).

The term “personal injury” may encompass “any harm caused to a person, such as a broken bone, a cut, or a bruise; bodily injury,” or “[a]ny invasion of a personal right, including mental suffering and false imprisonment.” Black’s Law Dictionary 857 (9th ed.2009); see also Volkswagen of Am., Inc. v. Dillard, 579 So.2d 1301, 1305-07 (Ala.1991) (interpreting the meaning of the UCC’s use of the words, “injury to person,” as they related to an award of damages for breach of warranty broadly to allow recovery for mental anguish and declining to interpret “the UCC as restricting damages for breach of warranty for injury to the person solely to physical injury”). Here, Plaintiffs allege that they suffered hair loss upon using the Hair Treatment. Such allegations clearly fall within the category of personal injuries and not pure economic losses. See In re Von Volkmar, 217 B.R. 561, 566 (N.D.I11. 1998) (characterizing hair loss as one of several personal injuries alleged by the plaintiff); see also Higbee v. Giant Food Shopping Ctr., 106 F.Supp. 586, 587 (E.D.Va.1952) (affirming directed verdict against the seller of a hair product on a breach of implied warranty theory where the hair product caused the plaintiff to lose her hair, and noting that the warranty implied was that the hair product would not “injure the human body when correctly and normally administered”). Accepting all of the well-pleaded facts as true and drawing all inferences in Plaintiffs’ favor, the Court concludes that Plaintiffs have sufficiently alleged that they seek to recover for personal injuries, which exempts them from the privity requirement. Accordingly, the Court declines to dismiss Plaintiffs’ claim for breach of implied warranty.

V. Whether Plaintiffs have sufficiently pleaded a claim under the ICFA or the ADTPA

In Count III, Plaintiffs allege violations of the ICFA, 815 111. Comp. Stat. 505/1 et seq., and the ADTPA, Ala.Code § 8-19-1 et seq. (R. 1, Compl. ¶¶ 83-97.) Plaintiffs first allege that Unilever “used unconscionable commercial practices, deception, fraud, false promise and misrepresentation “in marketing the Hair Treatment.” (Id. ¶¶ 88, 93.) Plaintiffs also allege that Unilever “knowingly concealed, suppressed and consciously omitted material facts to Plaintiffs and other members of the Class knowing that consumers would rely on the advertisements and packaging and [Unilever]’s uniform representations to purchase the [Hair Treatment].” (Id. ¶¶ 89, 93.)

The ICFA “provides a remedy for ‘unfair methods of competition and unfair or deceptive acts or practices’ in specific commercial transactions.” Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir.2011) (quoting 815 111. Comp. Stat. 505/2.) The ICFA declares unlawful “unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact.” 815 111. Comp. Stat. 505/2. To state a cause of action under the ICFA, Plaintiffs must allege: “(1) a deceptive act or unfair practice- occurred, (2) the defendant intended for plaintiff to rely on the deception, (3) the deception occurred in the course of conduct involving trade or commerce, (4) the plaintiff sustained actual damages, and (5) such damages were proximately caused by the defendant’s deception.” Dubey v. Pub. Storage, Inc., 395 Ill.App.3d 342, 335 Ill.Dec. 181, 918 N.E.2d 265, 277 (1st Dist.2009); see also Connick v. Suzuki Motor Co., 174 I11.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584, 593 (1996).

The ADTPA provides a remedy for certain ■ “unlawful trade practices.” Ala.Code § 8-19T5. The ADTPA identifies no less than 26 unlawful trade practices and makes it unlawful, inter alia, to represent “that goods or services have ... characteristics, ingredients, uses, benefits, or qualities that they do not have,” Ala. Code § 8-19-5(5); represent “that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another,” Ala.Code § 8-19-5(7); or to engage “in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce,” Ala. Code § 8-19-5(27).

Unilever posits several grounds for the dismissal of Plaintiffs’ ICFA and- ADTPA claims. First, Unilever argues that the Hair Treatment’s packaging and instructions contradict Plaintiffs’ allegations concerning Unilever’s alleged misrepresentations, and that “[Representations that were not made, or were not false, cannot constitute the ‘deceptive’ acts required to state a claim under the ICFA or ADTPA.” (R. 25, Def.’s Mem. at 10-11.) Second, Unilever contends that Count III is a restatement of the claimed breach of warranties in Count I, and that “such a ‘breach of contractual promise, without more, is not actionable under the [ICFA].’ ” (Id. at 11.) (citing Greenberger, 631 F.3d at 399). Third, Unilever argues that Plaintiffs’ claim for a violation of the ICFA based on an alleged concealment of material facts should be dismissed because “Plaintiffs fail to allege that Unilever knew that the [Hair Treatment] posed a risk of hair loss when properly used.” (Id.) Finally, Unilever argues that Reid fails to allege “a causal connection between the alleged misrepresentation and her claimed damages.” (Id.) The Court addresses each argument in turn.

A. Plaintiffs’ misrepresentation allegations

In Count III, Plaintiffs allege that “Unilever misrepresented that the [Hair Treatment] was a Keratin-based ‘smoothing’ conditioner,” and that by indicating that the Hair Treatment contained “No Formaldehyde,” Unilever marketed the Hair Treatment as a safe hair conditioning treatment. (R. 1, Compl. ¶¶ 90-91.) As an initial matter, to the extent that Plaintiffs’ allegations in Count III are duplicative of their breach of express warranties action in Count I, they must be dismissed.

Both the Illinois and Alabama Supreme Courts have recognized that an “action for breach of express warranty is an action ex contractu.” Collins Co., Ltd. v. Carboline Co., 125 I11.2d 498, 127 111. Dec. 5, 532 N.E.2d 834, 838 (1988) (citing Paul Harris Furniture Co. v. Morse, 10 I11.2d 28, 139 N.E.2d 275, 282 (1956)); Simmons v. Clemco Indus., 368 So.2d 509, 513 (Ala.1979) (“actions for breach of warranty ... are ex contractu ”) (italics added). Furthermore, the United States Supreme Court has recognized that while the basis for a breach of contract action lies in the parties’ agreement, in order to succeed under a consumer protection law, a plaintiff “must show not necessarily an agreement, but in all cases, an unfair or deceptive practice.” Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 233, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (holding that the ICFA “should not apply to simple breach of contract claims.”). In other words, to set forth an action under a consumer protection law, a party must allege unfair or deceptive conduct that is distinct from a simple breach of contract. See Greenberger, 631 F.3d at 399-400 (affirming dismissal of statutory consumer-fraud claim where the plaintiff failed to allege any deceptive conduct that was distinct from an alleged breach of contract); Avery v. State Farm Mut. Auto. Ins. Co., 216 I11.2d 100, 296 Ill.Dec. 448, 835 N.E.2d 801, 844 (2005) (“A breach of a contractual promise, without more, is not actionable under the [ICFA].”). Were it otherwise, a plaintiff “could convert any suit for breach of contract into a consumer fraud action,” as all breach of contract actions involve a promise and a subsequent failure to perform. Avery, 296 IlbDec. 448, 835 N.E.2d at 844 (quoting Zankle v. Queen Anne Landscaping, 311 Ill.App.3d 308, 244 111. Dec. 100, 724 N.E.2d 988, 992-98 (2d Dist. 2000)). Therefore, to the extent that Plaintiffs seek to enforce a mere contractual promise through the ICFA and ADT-PA, their claim is not actionable.

Here, the only allegation of misrepresentation that Plaintiffs allege in Count III that they do not also identify as an express warranty in Count I is the statement that the Hair Treatment is “Keratin-based.” (Compare R. 1, Compl. ¶¶ 71-77, with R. 1, Compl. ¶¶ 88-97; see also R. 34, Pis.’ Resp. at 10.) Plaintiffs’ remaining misrepresentation allegations are mere restatements of the claimed breach of warranties in Count I as Plaintiffs have not alleged any distinct deceptive conduct. Thus, the Court focuses its analysis on whether Plaintiffs have sufficiently alleged that Unilever’s statement that the Hair Treatment was “Keratin-based” constitutes a deceptive act or practice.

Unilever argues that Count III should be dismissed because the statements upon which Plaintiffs base their ICFA and ADTPA claims are, as a matter of law, not deceptive. (See R. 25, Def.’s Mem. at 10.) Both Illinois and Alabama State law direct that in construing whether conduct constitutes a deceptive act or practice, courts shall take into how the Federal Trade Commission and federal courts have interpreted Section 5(a) of the Federal Trade Commission Act (the “FTC Act”), 15 U.S.C. § 45(a). 815 111. Comp. Stat. 505/2; Ala.Code § 8-19-6. Under Section 5(a) of the FTC Act, “the likelihood of deception or the capacity to deceive is the criterion by which advertising is judged.” Montgomery Ward & Co. v. Fed. Trade Comm’n., 379 F.2d 666, 670 (7th Cir.1967); see also LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1200 (11th Cir.2010) (“[I]n the FTC context, an act or practice is deceptive or unfair if it has the tendency or capacity to deceive.”) (internal quotation marks and alterations omitted)(quoting Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1172 (11th Cir.1985)). Similarly, the Seventh Circuit has explained that under the ICFA,. “a statement is deceptive if it creates a likelihood of deception or has the capacity to deceive.” Bober v. Glaxo Well-come PLC, 246 F.3d 934, 938 (7th Cir. 2001) (citing People ex rel. Hartigan v. Knecht Servs., Inc., 216 Ill.App.3d 843, 159 Ill.Dec. 318, 575 N.E.2d 1378, 1387 (2d Dist.1991); Graphic Sales, Inc. v. Sperry Univac Div., Sperry Corp., 824. F.2d 576, 580 (7th Cir.1987)). Therefore, to determine whether the allegations in Plaintiffs’ complaint state a claim for relief that satisfies the requirements of Federal Rule of Civil Procedure 12(b)(6), the Court asks whether the allegedly false and misleading statement on which Plaintiffs base their ICFA and ADTPA claims can be read to create a likelihood of deception or to have the capacity to deceive. Bober, 246 F.3d at 938.

Here, Plaintiffs allege that Unilever marketed the Hair Treatment as “Keratin-based.” (R. 1, Compl. ¶ 90.) A review of the Hair Treatment’s packaging and instructions reveals that no such statement appears in these materials. Instead, the front of the packaging identifies the Hair Treatment as a “Keratin Infusion” and describes it as a “Keratin Treatment,” while the back of the packaging and the instructions repeatedly refer to the Hair Treatment as a “Keratin Infusion 30 Day Smoothing Kit.” (R. 1, Compl., Ex. B. at 30-31, 35.) In addition, the ingredient list on the side of the Hair Treatment’s packaging lists “Hydrolyzed Keratin” as an ingredient in all three, portions of the Hair Treatment. (Id. at 33.) Considering that Keratin is listed as an actual ingredient in all three portions of the Hair Treatment, it cannot be said, as a matter of law, that the statements on the Hair Treatment’s packaging or instructions which describe the Hair Treatment as a “Keratin Infusion” or “Keratin Treatment” were likely to deceive a consumer or had the capacity to deceive. The Court therefore dismisses Plaintiffs’ claims in Count III to the extent they are based on Unilever’s alleged misrepresentations.

B. Plaintiffs’ failure to disclose and warn allegations

In Count III, Plaintiffs also allege that once Unilever became aware of the “defect” in the. Hair Treatment and its tendency to cause hair loss, despite proper application, “consumers (such as Plaintiffs) were entitled to disclosure of that fact because a significant risk of hair loss would be a material fact in a consumer’s decision-making process, and, without [Unilever’s] disclosure consumers would not necessarily know that there is such a risk.” (R. 1, Compl. ¶ 94.) Plaintiffs argue that Unilever’s failures to disclose the defect in the Hair Treatment and to warn consumers of the risk of significant hair loss associated with use of the Hair Treatment constitute deceptive acts. (R. 34, Pis.’ Resp. at 10.) Unilever argues that Plaintiffs’ ICFA and ADTPA claims grounded on Unilever’s alleged concealment of material facts fail because Plaintiffs have failed to allege that Unilever knew that the Hair Treatment posed a risk of hair loss when used properly. (R. 25, Def.’s Mem. at 11) (citing Jensen, 308 IlLDec. 888, 862 N.E.2d at 1098; Sam v. Beaird, 685 So.2d 742, 744 (Ala.Civ.App.1996)).

Under the ICFA, “the concealment, suppression or omission of any material fact” is unlawful. 815 111. Comp. Stat. 505/2. In an ICFA action grounded on an alleged concealment, “plaintiffs must establish that the fact concealed was known to the seller at the time of concealment.” Miller v. William Chevrolet/GEO, Inc., 326 Ill.App.3d 642, 260 IlLDec. 735, 762 N.E.2d 1, 14 (1st Dist.2001); see also Connick, 221 IlLDec. 389, 675 N.E.2d at 595 (reversing dismissal of ICFA claim based on the defendant’s alleged concealment of material facts where plaintiffs alleged that the defendant was aware of safety problems with its product, that it failed to disclose those defects, and that plaintiffs would not have purchased the products if they had known of the defects); White v. DaimlerChrysler Corp., 368 111. App.3d 278, 305 IlLDec. 737, 856 N.E.2d 542, 547-49 (1st Dist.2006); Wiegel v. Stork Craft Mfg., Inc., 946 F.Supp.2d 804, 813, No. 09 C 7417, 2013 WL 2243094, at *7 (N.D.I11. May 21, 2013). As an Illinois Appellate Court has explained, “[u]nlike an action for misrepresentation under the [ICFA], where even innocent misrepresentations can support liability, an action for fraudulent concealment logically demands that defendants have prior knowledge of the information that they are alleged to have suppressed.” Miller, 260 IlLDec. 735, 762 N.E.2d at 14.

Although the ADTPA does not have a similar provision explicitly making the concealment or omission of a material fact unlawful, § 8-9-5(27) makes it unlawful to engage “in any other unconscionable, false misleading, or deceptive act or practice in the conduct of trade or commerce.” Ala.Code. § 8-19-5(27). “As is evident from this language, the ADTPA is generally written to require some knowledge of false or deceptive conduct on the part of the wrongdoer.” Beaird, 685 So.2d at 744. Thus, under both the ICFA and the ADT-PA, a plaintiff asserting a claim of an alleged concealment, suppression, or omission must allege that the defendant had knowledge of the fact that was allegedly concealed, suppressed, or omitted.

Claims brought pursuant to the ICFA and ADTPA are subject to the heightened pleading standards of Federal Rule of Civil Procedure 9(b). Fed.R.Civ.P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”); see also Greenberger, 631 F.3d at 399 (Claims brought pursuant to the ICFA “are subject to the same heightened pleading standards as other fraud claims; as such, they must satisfy the particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure.”) (citing Davis v. G.N. Mortg. Corp., 396 F.3d 869, 883 (7th Cir.2005)); Beaird, 685 So.2d at 744 (noting that the ADTPA is “intended to replace the common law and statutory actions for fraud” in specifically designated situations). Rule 9(b) requires that the circumstances constituting fraud be stated “with particularity.” Fed.R.Civ.P. 9(b). In order to plead fraud with particularity, Plaintiffs must allege “[t]he who, what, when, where, and how: the first paragraph of any newspaper story.” DiLeo, 901 F.2d at 627. Nevertheless, knowledge may be alleged generally. Fed.R.Civ.P. 9(b).

Here, Plaintiffs allege that Unilever “knowingly concealed, .suppressed and consciously omitted material facts to Plaintiffs.” (R. 1, Compl. ¶ 89.) In support, Plaintiffs have alleged that Unilever did not disclose, either on the Hair Treatment’s packaging or on Unilever’s websites or other marketing materials, that the Hair Treatment “contains an ingredient or combination of ingredients” that places consumers at risk of “significant hair loss” upon proper application of the Hair Treatment. (Id. ¶¶ 1, 6.) According to Plaintiffs, Unilever failed to make these disclosures “even though [Unilever] knew, before or almost immediately upon introduction of the [Hair Treatment] in late 2011, that consumers were complaining that the [Hair] Treatment caused significant hair loss.” (Id. ¶ 7.) According to Plaintiffs, “[a]s early as December 2011, consumer complaints appeared on the internet concerning serious adverse effects such as hair loss and chemical burns resulting from use of the [Hair Treatment].” (Id. ¶ 33.) In addition, Plaintiffs allege that not only did Unilever fail to properly warn consumers “but when it finally chose to ‘recall’ the [Hair' Treatment] in May 2012, it told consumers' the [Hair Treatment] was being ‘discontinued’ and was still safe to use.” ' (Id. ¶ 8.)

Contrary-to Unilever’s argument, Plaintiffs have sufficiently alleged that Unilever acted with the requisite knowledge in failing to disclose the risks of using the Hair Treatment. Specifically, viewing the facts in the light most favorable to them, Plaintiffs have alleged that Unilever knew that the Hair Treatment could cause substantial hair loss as early as December 2011 when consumers began to post complaints on the internet about hair loss they experienced as a result of using the Hair Treatment. Thus, Plaintiffs have sufficiently alleged that Unilever-had knowledge of the alleged defect at the time they purchased the Hair Treatment. See Coss v. Playtex Prods., No. 08 C 50222, 2009 WL 2245657, at *5 (N.D.I11. July 10, 2009) (finding that the plaintiff had sufficiently pleaded that the defendant had the requisite knowledge for an ICFA claim grounded on the alleged concealment or omission of a material fact where plaintiff alleged that the defendant’s knowledge of a design defect was reflected in a patent criticizing the design of the allegedly defective product at issue); Stella v. LVMH Perfumes & Cosmetics USA Inc., 564 F.Supp.2d 833, 836 (N.D.Iil. 2008) (declining to dismiss ICFA claim where the plaintiff alleged that the manufacturer knew or should have known that lead was an ingredient in lipstick it manufactured and that it failed to disclose this fact to consumers); cf. Huddleston, 459 U.S. at 387-90 n. 30, 103 S.Ct. 683 (“[P]roof of scienter required in fraud cases is often a matter of inference from circumstantial evidence.”).

Finally, Unilever also argues that the Complaint’s exhibits demonstrate that Unilever did warn consumers about circumstances under which the Hair Treatment should not be used, and specifically warned that use of the Hair Treatment by some consumers could result in “hair breakage.” (R. 25, Def.’s Mem. at 11; see also R. 1, Compl., Ex. B at 32.) The Hair Treatment’s packaging and instructions state, “[u]se of this product on lightened hair (including highlights or high lift color processes) will result in hair breakage— regardless of how long ago the hair was treated.” (R. 1, Compl., Ex. B at 32, 35.) Plaintiffs argue that although Unilever warned consumers of “hair breakage,” such a warning did not effectively warn consumers that hair loss would result under “any and all circumstances,” and that such a warning does not suffice to also warn of “a significant risk of hair loss.” (R. 34, Pis.’ Resp. at 11.) This is a question of fact that is inappropriate to resolve on a motion to dismiss.

Thus, to the extent that Plaintiffs base their ICFA and ADTPA claims on alleged misrepresentations made by Unilever, the Court dismisses those claims. To the extent that Plaintiffs base their ICFA and ADTPA claims on Unilever’s failure to disclose and warn of a defect in the Hair Treatment, the Court declines to dismiss those claims.

VI. Whether Plaintiffs have sufficiently pleaded a claim under the Uniform Deceptive Trade Practices Act

In Count IV, Plaintiffs allege violations of the Illinois UDTPA, 815 111. Comp. Stat. 510/1 et seq., and the ADTPA, Ala.Code § 8-19-1 et seq. (R. 1, Compl. ¶¶ 98-103.) Plaintiffs allege that “[Unilever] has committed deceptive acts or practices within the meaning of [the] UDTPA by engaging in the acts and practices alleged, including but not limited to the failure to disclose the defect in the [Hair] Treatment and warn consumers of the risk of significant hair loss associated with its use.” (Id. at ¶ 102.) The UDTPA, as adopted in both Illinois and Alabama, provides, inter alia, that a person engages in a deceptive act or practice when that person “represents that goods or services have'... characteristics, ingredients, uses, [or] benefits ... that they do not have.” 815 111. Comp. Stat. 510/2(5); Ala.Code § 8-19-5(5). While the ADTPA provides for damages, Ala.Code § 8-19-10(a), the Illinois UDTPA only allows a plaintiff to recover injunctive relief. 815 111. Comp. Stat. 510/3; Comtel Techs., Inc. v. Schwendener, Inc., No. 04 C 3879, 2005 WL 433327, at *9 (N.D.Iil. Feb. 22, 2005) (“The [Illinois] UDTPA does not provide a cause of action for damages — its only remedy is injunctive relief.”) (internal citations omitted).

A. Whether Reid has pleaded a claim for relief under the Illinois UDT-PA

In their Complaint, Plaintiffs acknowledge that Unilever recalled the Hair Treatment on May 8, 2012, and advised retailers to immediately remove the Hair Treatment from their shelves and send the Hair Treatment back to Unilever. (R. 1, Compl. ¶¶8, 38.) Plaintiffs also allege, however, that Unilever did not make a public announcement or publicly respond to complaints, but instead, posted a notice on its website stating that the Hair Treatment was “discontinued because of consumer ‘confusion’ ” and continued to advise consumers that the Hair Treatment was safe to use as directed. (Id. ¶¶ 38-39, 48.) As a result, Plaintiffs contend-that “[Unilever] has never fully and appropriately recalled the [Hair Treatment].” (Id. ¶ 9.)

Unilever argues that Reid fails to state a claim under the Illinois UD