Moreover, a party "must have privity to the contract before bringing a breach of express warranty claim." Baldwin, 78 F. Supp. 3d at 739 (quoting In re McDonald's French Fries Litig., 503 F. Supp. 2d 953, 957 (N.D. Ill. 2007)) (applying Illinois law).

But the key distinction between all of the cases cited that decline to do away with the privity requirement, and the cases that make exceptions to the privity requirement is that, where exceptions are made, people or animals have been physically harmed. Compare IWOI, LLC , 581 F.Supp.2d at 1000-01; and Williamson v. S.A. Gear Company, Inc., 2017 WL 283373, *1, *2-3 (S.D. Ill. 2017) (noting that under Illinois law a plaintiff must establish privity of contractbetween a plaintiff and manufacturer in a suit to recover economic loss); Flynn v. FCA US LLC, 2016 WL 5341749, *1, *7 (S.D. Ill. 2016) (noting that privity must be established for a warranty claim purely for economic loss); with In re McDonald's French Fries Litigation, 503 F.Supp.2d 953, 958 (N.D. Ill. 2007) (finding that because McDonald's expressly warranted to fry consumers that fries were allergen free, an exception to privity existed under Illinois law); see also Adkins , 973 F.Supp.2d at 922 (finding that sealed container exception to the privity requirement for implied warranty claims can apply to dog treats as well as products for human consumption); Bloomer Chocolate Co. v. Bongards Creameries, Inc., 635 F.Supp. 911 (N.D. Ill. 1985) (finding that a lack of apparent privity may not preclude warranty claims against a whey protein manufacturer selling whey contaminated by salmonella); Southland Milling Co., 248 F.Supp. 482 (discussing the historical and policy based rationale for privity and deciding it did not apply to a scenario where a manufacturer of a component of poultry feed produced toxic fat). Taking this distinction alongside Illinois case law discussing the evolution of competing tort and contract based theories of relief for product liability it is evident that Illinois

The exception to the privity rule is if a manufacturer "expressly warranted its goods to the ultimate consumers and this was the basis for the bargain and relied upon by plaintiffs."In re McDonald's French Fries Litig., 503 F. Supp. 2d 953, 957 (N.D. Ill. 2007); see Rosenstern v. Allergan, Inc. 987 F. Supp. 2d at 805 (quoting In Re McDonald's). "In other words, manufacturer documents given directly to the buyer prior to a purchase may give rise to an express warranty because the assertions become part of the basis of the bargain unless clear affirmative proof shows otherwise."

To state a claim for breach of implied warranty of fitness for a particular purpose, Plaintiffs must allege that “(1) the seller had reason to know of the particular purpose for which the buyer required the goods; (2) the buyer relied on the seller's skill and judgment to select suitable goods; and (3) the seller knew of the buyer's reliance on its skill and judgment.” In re McDonald's French Fries Litig. , 503 F.Supp.2d 953, 957 (N.D.Ill.2007) (internal quotation marks omitted). In each relevant state, an implied warranty of fitness for a particular purpose arises only “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required.”

Under Illinois law, “[t]o state a claim for breach of implied warranty of fitness for a particular purpose, plaintiffs must allege that (1) the seller had reason to know of the particular purpose for which the buyer required the goods; (2) the buyer relied on the seller's skill and judgment to select suitable goods; and (3) the seller knew of the buyer's reliance on its skill and judgment.” In re McDonald's French Fries Litig. , 503 F.Supp.2d 953, 957 (N.D.Ill.2007) (citation and quotation marks omitted). “For such a warranty to exist, the goods must be for a purpose other than their ordinary use.”

And because an express warranty derives from contract law, “a party must have privity to the contract before bringing a breach of express warranty claim.” In re McDonald's French Fries Litig., 503 F.Supp.2d 953, 957 (N.D.Ill.2007) (applying Illinois law) (citation omitted). Further, in general, “a plaintiff must state the terms of the warranty or attach it to the complaint.”

“To state a claim for breach of implied warranty of fitness for a particular purpose, plaintiffs must allege that (1) the seller had reason to know of the particular purpose for which the buyer required the goods; (2) the buyer relied on the seller's skill and judgment to select suitable goods; and (3) the seller knew of the buyer's reliance on its skill and judgment.” In re McDonald's French Fries Litig., 503 F.Supp.2d 953, 957 (N.D.Ill.2007) (quoting Indus. Hard Chrome, Ltd. v. Hetran, Inc., 64 F.Supp.2d 741, 746 (N.D.Ill.1999) (applying Illinois law)). To state a general claim for breach of the implied warranty of merchantability, a plaintiff must allege that “(1) the defendant sold goods that were not merchantable at the time of sale; (2) the plaintiff suffered damages as a result of the defective goods; and (3) the plaintiff gave the defendant notice of the defect.”

"To state a claim for breach of implied warranty of fitness for a particular purpose, plaintiffs must allege that (1) the seller had reason to know of the particular purpose for which the buyer required the goods; (2) the buyer relied on the seller's skill and judgment to select suitable goods; and (3) the seller knew of the buyer's reliance on its skill and judgment." In re McDonald's French Fries Litig., 503 F. Supp. 2d 953, 957 (N.D. Ill. 2007) (quoting Indus. Hard Chrome, Ltd. v. Hetran, Inc., 64 F. Supp. 2d 741, 746 (N.D. Ill. 1999) (applying Illinois law)). To state a general claim for breach of the implied warranty of merchantability, a plaintiff must allege that "(1) the defendant sold goods that were not merchantable at the time of sale; (2) the plaintiff suffered damages as a result of the defective goods; and (3) the plaintiff gave the defendant notice of the defect.

That deficiency is also fatal to Plaintiff's claim. See In re McDonald's French Fries Litig., 503 F. Supp. 2d 953, 956 (N.D. Ill. 2007) (dismissing a fraud claim where the plaintiff alleged that the defendant "represented to the public that its potato products contained no allergens," but failed to specify "what the relevant time period is as to the representations made through the website."). The relevant time frame is also significant to the issue of Defendants' knowledge. Under Illinois law, "where a plaintiff claims consumer fraud on the premise that the defendant concealed or omitted material facts from potential buyers with the intent that the buyers rely on such a concealment or omission, a plaintiff must allege that the fact omitted or concealed was known to the defendant at the time of the concealment."

Not so. The notice requirement is supposed to encourage presuit settlement negotiations, In re McDonald's French Fries Litig., 503 F.Supp.2d 953, 956 (N.D. Ill. 2007); the requirement would be meaningless “if a party could satisfy the notice requirement by filing suit....” Rudy v. Fam. Dollar Stores, Inc., 583 F.Supp.3d 1149, 1163 (N.D. Ill. 2022). In Re Bridgestone/Firestone, Inc. Tires Products, 155 F.Supp.2d 1069 (S.D. Ind. 2001), does not compel a different result.