Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 1 of 25
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`Jaimie Mak (SBN 236505)
`Of Counsel
`jmak@richmanlawgroup.com
`Kim Richman (pro hac vice forthcoming)
`krichman@richmanlawgroup.com
`535 Mission Street
`San Francisco, CA 94105
`Telephone: (718) 705-4579
`Facsimile: (718) 228-8522
`
`Attorneys for Plaintiff Quynh Phan and Proposed Class
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`QUYNH PHAN, on behalf of himself and all
`others similarly situated,
`
`Plaintiff,
`
`v.
`SARGENTO FOODS INC.,
`Defendant.
`
`
`
` Case No. _________________
`CLASS ACTION COMPLAINT
`DEMAND FOR JURY TRIAL
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`Plaintiff QUYNH PHAN (“Phan” or “Plaintiff”), a resident of Santa Clara County,
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`California, individually and on behalf of other similarly situated individuals, by and through his
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`counsel, hereby files this Class Action Complaint for equitable relief and damages against
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`Defendant SARGENTO FOODS INC. (“Sargento” or “Defendant”) regarding the deceptive
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`labeling, marketing, and sale of Sargento’s dairy cheese products (“the Products”1) with the claim
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`1 The following Sargento products are deceptively labeled and advertised as alleged in this
`Complaint: Monterey Jack Natural Cheese, Natural Double Cheddar Cheese, Natural White
`Cheddar Cheese, Colby Natural Cheese, Colby-Jack Natural Cheese, Medium Cheddar Cheese,
`Medium Natural Cheddar Cheese, Havarti Natural Cheese, Pepper Jack Natural Cheese, Swiss
`CLASS ACTION COMPLAINT
`1
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`

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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 2 of 25
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`“No Antibiotics” when the Products are made with milk from cows raised with antibiotics and
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`when the Products sometimes contain antibiotics, and alleges the following based upon
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`information, belief, and the investigation of his counsel:
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`INTRODUCTION
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`1.
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`Consumers are increasingly interested in and aware of how their food is produced
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`due to concerns about public health, the environment, and animal welfare.
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`2.
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`In particular, consumers are concerned that the use of antibiotics in industrial
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`agriculture contributes to the growing threat of antibiotic resistance. Consumers are also
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`concerned about the use of antibiotics in industrial animal agriculture because the animals,
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`including dairy cows, are subjected to treatment and conditions that inevitably make them sick.
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`3.
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`According to the Centers for Disease Control and the World Health Organization,
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`antibiotic resistance—the ability of germs to defeat the drugs designed to kill them—is one of the
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`Natural Cheese, Baby Swiss Natural Cheese, Aged Swiss Natural Cheese, Asadero Natural
`cheese, Sharp White Cheddar Cheese, Mild Yellow Natural Cheddar Cheese, Sharp Natural
`Cheddar Cheese, Extra Sharp Natural Cheddar Cheese, 4 State Natural Cheddar Cheese, Natural
`Double Cheddar Cheese, Taco Natural Cheese, Nacho & Taco Natural Cheese, Authentic
`Mexican Natural Cheese, Provolone with Natural Smoke Flavor Natural Cheese, 4 Cheese
`Pizzeria Natura Cheese, 4 Cheese Mexican Natural Cheese, Cheddar Jack Natural Cheese,
`Mozzarella Natural Cheese, Parmesan Natural Cheese, 4 Cheese Italian Natural Cheese, 18-
`Month Aged Natural Cheddar Cheese, Aged Italian Blend Natural Cheese, 14-Month Aged
`Parmesan Natural Cheese, Tomato & Basil Jack Cheese, Smokehouse Cheddar Natural Cheese,
`Garlic & Herb Jack Cheese, Reduced Fat Pepper Jack Natural Cheese, Reduced Fat Medium
`Natural Cheddar Cheese, Reduced Fat Colby Jack Natural Cheese, Fresh Asiago Natural Cheese,
`Gouda Natural Cheese, Muenster Natural Cheese, Sharp, Sharp Non-Smoked Provolone Natural
`Cheese, Cheddar-Mozzarella Natural Cheese, Aged Gouda Natural Cheese, Sharp White Natural
`Cheese, Aged White Natural Cheddar Cheese, Part-Skim Mozzarella Natural Cheese, Colby-
`Pepper Jack Natural Cheese, and Ricotta Natural Cheese. Discovery may reveal that additional
`Sargento products should be included within the scope of the allegations in this Complaint, and
`Plaintiff reserves the right to add such products.
`2
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`CLASS ACTION COMPLAINT
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 3 of 25
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`greatest and most urgent public health risks of our time.2 More than 2.8 million antibiotic-resistant
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`infections occur in the United States each year, and more than 35,000 people die as a result.3 The
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`problem of antibiotic resistance has only been exacerbated by the COVID-19 pandemic due to
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`the widespread use of antibiotics in patients diagnosed with COVID-19.4
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`4.
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`Antibiotics are used extensively in factory-style dairy production because the
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`treatment and conditions to which cows are subjected impair their health and cause infections.
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`The majority of dairy cows in the United States are confined indoors and not allowed to graze on
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`pasture.5 Teat trauma caused by milking machines, genetic selection for high milk yields, and
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`unsanitary conditions make cows susceptible to clinical mastitis from pathogenic bacteria, which
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`is the most commonly reported health problem in the dairy industry.6
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`5.
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`The use of antibiotics in industrial agriculture causes residues of antibiotics and
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`antibiotic-resistant bacteria to emerge on agricultural lands, move through the environment,
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`2 Antibiotic Resistance Threats in the United States, 2019, Centers for Disease Control (Dec.
`2019)
`at 3, https://www.cdc.gov/drugresistance/pdf/threats-report/2019-ar-threats-report-
`508.pdf; In the face of slow progress, WHO offers a new tool and sets a target to accelerate action
`resistance, World Health Organization
`(June 18, 2019),
`against antimicrobial
`https://www.who.int/news/item/18-06-2019-in-the-face-of-slow-progress-who-offers-a-new-
`tool-and-sets-a-target-to-accelerate-action-against-antimicrobial-resistance.
`3 Antibiotic Resistance Threats in the United States, 2019, Centers for Disease Control (Dec.
`2019) at vii, https://www.cdc.gov/drugresistance/pdf/threats-report/2019-ar-threats-report-
`508.pdf.
`4 The COVID-19 pandemic has resulted in increased antibiotic use because COVID-19
`patients are often prescribed antibiotics to prevent secondary bacterial infections, and many
`COVID-19 patients receive antibiotics even when not clinically indicated. Steffanie A. Strathdee
`et al., Confronting antimicrobial resistance beyond the COVID-19 pandemic and the 2020 US
`election,
`396
`Lancet
`1050
`(Sept.
`29,
`2020),
`https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32063-
`8/fulltext?dgcid=raven_jbs_etoc_email.
`5 An HSUS Report: The Welfare of Cows in the Dairy Industry, The Humane Society of the
`United States at 3, https://www.humanesociety.org/sites/default/files/docs/hsus-report-animal-
`welfare-cow-dairy-industry.pdf (last visited Dec. 21, 2020).
`6 Id. at 5.
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`CLASS ACTION COMPLAINT
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 4 of 25
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`contaminate waterways, and reach consumers in food.7 Antibiotics do not have to end up in food
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`to pose a public health risk. Current science shows that a major cause of the development and
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`spread of antibiotic resistance in human pathogens is environmental contamination from
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`agricultural use.8
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`6.
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`Sargento is one of the United States’ largest producers of dairy cheese products,
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`which it sells under the Sargento name brand.9
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`7.
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`Sargento knows that consumers seek out and wish to buy cheese products made
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`with milk from cows raised without antibiotics. Sargento also knows that consumers will pay
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`more for, or buy more of, such products than they would products made with milk from cows
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`raised with antibiotics.
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`8.
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`To capture this growing market of consumers, Sargento labels the retail packaging
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`of the Products with the label “No Antibiotics.”
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`9.
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`The “No Antibiotics” claim is false, deceptive, and misleading. The Products are
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`produced with milk from cows who receive antibiotics. In addition, at least some of the Products,
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`7 Terry Shistar & Carla Curle, Agricultural Uses of Antibiotics Escalate Bacterial Resistance,
`Beyond
`Pesticides
`(Winter
`2016-17),
`https://www.beyondpesticides.org/assets/media/documents/journal/bp-36.4-w17-Antibiotics-
`Cited2.pdf.
`for Apples, Alar, and Antibiotics, Beyond Pesticides,
`8 Terry Shistar, A
`Is
`https://www.beyondpesticides.org/assets/media/documents/infoservices/pesticidesandyou/docu
`ments/AisforApplesCited.pdf (last visited Dec. 21, 2020); see also Thomas F. O’Brien,
`Emergence, Spread, and Environmental Effect of Antimicrobial Resistance: How Use of an
`Antimicrobial Anywhere Can Increase Resistance to Any Antimicrobial Anywhere Else, Clinical
`Infectious Diseases S78-84 (June 1, 2002), https://pubmed.ncbi.nlm.nih.gov/11988877/; J.
`Jutkina et al., Antibiotics and Common Antibacterial Biocides Stimulate Horizontal Transfer of
`Resistance at Low Concentrations, 616-617 Sci. of the Total Env. 172-78 (Mar. 2018),
`https://pubmed.ncbi.nlm.nih.gov/29112840/.
`9 About Us, Sargento, https://www.sargento.com/our-company/about-us (last visited Dec. 21,
`2020).
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`CLASS ACTION COMPLAINT
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 5 of 25
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`in their final form as sold to consumers, still contain detectable levels of antibiotics, which are
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`then ingested by consumers.
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`10.
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`Reasonable consumers, seeing Sargento’s prominent “No Antibiotics”
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`representation, would expect that the Products are made without the use of antibiotics and,
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`therefore, never contain antibiotics.
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`11.
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`In sum, Sargento is deceiving consumers into believing the Products are made
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`without the use of antibiotics, when in fact they are made with milk from cows who are treated
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`with antibiotics, and that the Products contain no antibiotics, when in fact some of them do contain
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`antibiotics.
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`12.
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`By deceiving consumers about the nature and quality of the Products, Sargento is
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`able to sell a greater volume of the Products, to charge higher prices for the Products, and to take
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`away market share from competing products, thereby increasing its own sales and profits.
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`13.
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`Consumers lack the information and scientific knowledge necessary to determine
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`whether the Products are in fact made with “No Antibiotics” and to know or to ascertain the true
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`quality of the Products.
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`14.
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`As a result of its false and misleading labeling and advertising, and omissions of
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`fact, Sargento was and is able to sell the Products to consumers in the United States, including in
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`the State of California, and to realize sizeable profits.
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`15.
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`During any applicable statute of limitations period, Plaintiff and members of the
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`Class (described below) saw Sargento’s “No Antibiotics” misrepresentations when purchasing
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`the Products. Plaintiff and other Class members paid more for the Products based upon the
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`misrepresentations than they otherwise would have paid, and/or purchased the Products, or
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`purchased more of the Products, when they would not have if they had known the truth about
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`CLASS ACTION COMPLAINT
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 6 of 25
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`Sargento’s antibiotic use practices. As a result, Plaintiff and Class members suffered injury.
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`Contrary to representations on the Products’ labeling and advertising, consumers received
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`Products made with the use of antibiotics and Products that themselves sometimes still contained
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`those antibiotics.
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`16.
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`Sargento’s false and misleading representations and omissions violate numerous
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`laws, including the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750-1785;
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`California’s False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq.; and California’s
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`Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210, as well as other state consumer
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`protection statutes and common law.
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`17.
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`Because Sargento’s labeling and advertising of the Products are false, deceptive,
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`and misleading as to the true nature and quality of the Products, Plaintiff brings this deceptive
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`advertising case on behalf of a class of consumers who purchased the Products in the United
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`States, including a subclass who purchased the Products in Alabama, California, Connecticut,
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`Florida, Illinois, Michigan, Minnesota, Missouri, New Jersey, and New York. Plaintiff seeks
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`relief including actual damages, interest, costs, reasonable attorneys’ fees, and an order enjoining
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`Sargento’s unlawful and deceptive acts. Even today, proposed Class members are purchasing the
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`misrepresented Products, and they will continue to do so in the future unless Sargento’s conduct
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`is stopped.
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`JURISDICTION AND VENUE
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`18.
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`This Court has original subject-matter jurisdiction over this proposed class action
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`pursuant to 28 U.S.C. § 1332(d), the Class Action Fairness Act (“CAFA”). There are at least 100
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`members in the proposed Class. Plaintiff Phan is a citizen of California. On information and
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`CLASS ACTION COMPLAINT
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 7 of 25
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`belief, Defendant Sargento Foods Inc. is a citizen of Wisconsin. The amount in controversy
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`exceeds the sum of $5,000,000, exclusive of interest and costs.
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`19.
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`This Court has personal jurisdiction over Sargento. Sargento regularly conducts and
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`transacts business in California, purposefully avails itself of the laws of California, markets its
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`Products to consumers in California, and distributes its Products to numerous retailers throughout
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`California.
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`20.
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`Venue is proper in this District under 28 U.S.C. § 1391(a). Substantial acts in
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`furtherance of the alleged improper conduct, including the dissemination of false and misleading
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`labeling and advertising regarding the nature and quality of the Products and sales of the Products
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`at issue, occurred within this District.
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`21.
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`Defendant Sargento Foods Inc. is a Wisconsin business corporation that maintains
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`PARTIES
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`its principal place of business in Plymouth, Wisconsin.
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`22.
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`Sargento manufactures and/or causes the manufacture of the Products and markets
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`and distributes the Products in the United States, including in California. Sargento created and/or
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`authorized the false and deceptive labeling and advertising of the Products.
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`23.
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`Plaintiff Phan is a citizen of the State of California and a resident of Santa Clara
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`County.
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`24.
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`At all times mentioned herein, Plaintiff Phan was and is an individual consumer
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`over the age of 18.
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`25. Within the Class Period (as defined herein), Plaintiff Phan purchased Sargento’s
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`Products labeled “No Antibiotics,” including Sargento Natural String Cheese Snacks and
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`Sargento Sharp Cheddar Cheese Slices, from the following stores in San Jose, California: Lucky’s
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 8 of 25
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`(565 W. Capitol Expy.); Target (879 Blossom Hill Rd.); and Safeway (4950 Almaden Expy.).
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`From 2018 to 2020, Phan purchased the above products at least once every two months.
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`26.
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`In deciding to make his purchases, Phan saw, relied upon, and reasonably believed
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`Sargento’s “No Antibiotics” representations on the Product packaging. Examples of the Product
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`packaging that Phan saw and relied upon are shown below:
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 9 of 25
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`27.
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`Plaintiff Phan was willing to pay more for Sargento’s Products because he
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`expected the Products to have been made without the use of antibiotics and to never contain
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`antibiotics.
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`28.
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`Had Plaintiff Phan known at the time that Sargento’s Products were made with
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`milk from cows who were given antibiotics and that the Products sometimes contain antibiotics,
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`he would not have purchased or continued to purchase the Products.
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`29.
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`Plaintiff Phan ceased purchasing the Products because Sargento was labeling its
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`Products “No Antibiotics” when they are made with the use of antibiotics and sometimes contain
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`antibiotics.
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 10 of 25
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`30.
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`Plaintiff Phan continues to purchase cheese products and intends to continue
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`purchasing cheese products in the future, but he does not currently purchase Sargento’s Products.
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`31.
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`Plaintiff Phan wishes to be able to continue purchasing Sargento’s Products and,
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`therefore, wishes to see them truthfully made without antibiotics. Moreover, Phan is aware that
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`members of the proposed Class are currently purchasing, and will continue to purchase,
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`Sargento’s Products, unaware that the “No Antibiotics” representations are false, unless
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`Sargento’s conduct is enjoined.
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`FACT ALLEGATIONS
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`I.
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`Sargento Falsely Represents That the Products Are Made Without the Use of
`Antibiotics and Never Contain Antibiotics.
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`32.
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`Sargento labels the Products “No Antibiotics.” This label appears prominently on
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`the front or back of the Product packaging.
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 11 of 25
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`33.
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`In an apparent effort to qualify the “No Antibiotics” label, the Products’ packaging
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`also includes the fine print statement: “Our cheese is made from milk that does not contain
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`antibiotics.” Examples of the Product packaging are shown below:
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`34.
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`Reasonable consumers interpret Sargento’s “No Antibiotics” label to mean that its
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`Products are made with milk from cows who were not given antibiotics and that the Products
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`never contain antibiotics.
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`35.
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`A 2018 nationally representative consumer survey conducted by Consumer
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`Reports Survey Group found that 67% of consumers believe the claim “no antibiotics” means that
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`no antibiotics were administered to the animals under any circumstances.10
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`10 Natural and Antibiotics Labels Survey: 2018 Nationally Representative Phone Survey,
`Consumer Reports Survey Group (May 1, 2018), https://advocacy.consumerreports.org/wp-
`CLASS ACTION COMPLAINT
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 12 of 25
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`36.
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`This understanding is consistent with the United States Department of Agriculture
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`Food Safety and Inspection Service’s policy for use of the similar claim “antibiotics free” on food
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`labels. Such a claim is permitted only with evidence that the source animals have not been
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`administered antibiotics.11
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`37.
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`Sargento’s packaging and advertising fail to inform consumers that the Products
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`are made with milk from dairy farms that administer antibiotics to their cows. This is a material
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`omission, given that Sargento prominently labels its Products with the phrase “No Antibiotics.”
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`II.
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`Sargento Sources Its Milk from Farms That Use Antibiotics, and the Products
`Sometimes Contain Antibiotics.
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`38.
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`Sargento sources its Products from dairy farms that use antibiotics. Despite its “No
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`Antibiotics” representations, Sargento does not attempt to ensure that the milk used in the
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`Products comes only from cows who were never given antibiotics.
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`39.
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`In addition, at least some of the Products, in their final form as sold to consumers,
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`still contain detectable levels of antibiotics, which are then ingested by consumers.
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`40.
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`Independent laboratory testing conducted in July 2020 has confirmed that
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`Sargento’s Products are made with milk from cows who are administered antibiotics. In testing
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`of Sargento’s Mild Cheddar sliced cheese product, which is marketed with the claim “No
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`Antibiotics,” the laboratory found detectable levels of the antibiotic sulfamethazine.
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`content/uploads/2018/10/2018-Natural-and-Antibiotics-Labels-Survey-Public-Report-1.pdf
`[hereinafter Natural and Antibiotics Labels Survey].
`11 U.S. Department of Agriculture Food Safety and Inspection Service, Labeling Guideline
`on Documentation Needed to Substantiate Animal Raising Claims for Label Submissions (Dec.
`2019).
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`CLASS ACTION COMPLAINT
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 13 of 25
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`III.
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`Sargento’s “No Antibiotics” Claims Are Material to Reasonable Consumers.
`41.
`Consumers are aware of, and concerned about, the health threat posed by
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`antibiotic-resistant bacteria. The 2018 Consumer Reports survey found that most consumers are
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`aware that antibiotic use in farmed animals may diminish their effectiveness in humans, and 43%
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`of consumers were highly concerned about this.12 (See also supra ¶¶ 1-5.)
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`42.
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`Given these concerns, consumers seek out and are willing to pay more for dairy
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`products that they believe are made without the use of antibiotics. The 2018 Consumer Reports
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`survey cited above found that more than 60% of consumers would pay more for animal products
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`labeled as being raised without antibiotics.13
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`43.
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`Consumers further seek out and are willing to pay more for Products that are
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`guaranteed to contain no antibiotics.
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`44.
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`Consumers are also concerned about antibiotic use in dairy farming because the
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`inhumane practices and conditions are harmful to the cows’ health and welfare, which necessitates
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`the use of antibiotics. A 2015 Consumer Reports survey found that consumers deem it important
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`that food not be produced through standard factory farm methods. For example, 84% of food
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`shoppers believe it is “important” or “very important” to provide better living conditions for
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`animals.14
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`IV.
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`Sargento’s Claims and Omissions Mislead and Harm Consumers.
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`45.
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`Sargento’s conduct in labeling and advertising the Products with the claim “No
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`Antibiotics” deceived and/or was likely to deceive the public. Consumers have been, and continue
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`
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`12 Natural and Antibiotics Label Survey, supra note 10 at 5.
`13 Id. at 4.
`14 Natural Food Labels Survey: 2015 Nationally-Representative Phone Survey, Consumer
`Reports National Research Center at 3, https://foodpolitics.com/wp-content/uploads/Consumer-
`Reports-Natural-Food-Labels-Survey-Report.pdf.
`13
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 14 of 25
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`to be, deceived into believing that the Products are made with milk from cows who have not been
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`given antibiotics, when in fact the Products come from dairy farms that use antibiotics.
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`46.
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`Consumers cannot discover the true nature of the Products from reading the label.
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`Ordinary consumers do not have sufficient knowledge about the dairy industry to determine that
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`antibiotics are used in the production of Sargento’s Products marketed with “No Antibiotics”
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`claims.
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`47.
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`Sargento deceptively and misleadingly conceals material facts about the Products,
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`namely, that the Products contain milk sourced from dairy farms that use antibiotics, and that the
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`Products sometimes contain antibiotics.
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`48.
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`Sargento knew what representations it made on the labels and advertising of the
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`Products. It also knew how the Products were sourced and produced. Sargento thus knew, or
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`should have known, the facts demonstrating that the Products were falsely advertised.
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`49.
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`The production process Sargento uses for the Products is known only to Sargento
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`and its suppliers and has not been disclosed to Plaintiff Phan or to the class of consumers he seeks
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`to represent.
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`50.
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`51.
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`Sargento’s concealment tolls the applicable statute of limitations.
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`To this day, Sargento continues to conceal and suppress the true nature, identity,
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`sources, and methods of production of its Products.
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`52.
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`In making the false, misleading, and deceptive representations and omissions at
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`issue, Sargento also knew and intended that consumers would choose to buy, and would pay more
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`for, products marketed with the claim “No Antibiotics,” furthering Sargento’s private interest of
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`increasing sales of its products and decreasing the sales of its competitors’ products that are
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`truthfully marketed.
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 15 of 25
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`53.
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`Had Sargento not made the false, misleading, and deceptive representations and
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`omissions, Plaintiff and the Class members would not have been willing to pay the same amount
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`for the Products they purchased, would have chosen competing products, and/or would not have
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`purchased as much of the Products.
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`54.
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`Sargento’s ongoing false and misleading labeling and advertising of the Products
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`continues to cause harm to the consumers Plaintiff seeks to represent and will continue absent
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`injunctive relief.
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`55.
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`Consumers are at risk of real, immediate, and continuing harm if the Products
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`continue to be sold using false and misleading labeling and advertising.
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`CLASS ALLEGATIONS
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`56.
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`Plaintiff realleges and incorporates by reference the allegations set forth in each of
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`the preceding paragraphs of this Complaint.
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`57.
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`This action is maintainable as a class action under Rules 23(b)(2) and (3) of the
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`Federal Rules of Civil Procedure.
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`58.
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`The class definition(s) may depend on the information obtained throughout
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`discovery. Notwithstanding, at this time, Plaintiff brings this action pursuant to Rule 23 of the
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`Federal Rules of Civil Procedure on behalf of himself and all other similarly situated individuals
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`within the United States (the “Class”) defined as follows: All consumers who purchased
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`Sargento’s Products (as defined herein) in the United States within the applicable statute of
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`limitations and until the date of class certification (the “Class Period”).
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`59.
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`Included in the Class, to the extent necessary, is a subclass of all persons who
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`purchased Sargento’s Products (as defined herein) in the following states during the Class Period
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`(the “Multi-State Subclass”): Alabama, California, Connecticut, Florida, Illinois, Michigan,
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 16 of 25
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`Minnesota, Missouri, New Jersey, and New York.
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`60.
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`Excluded from the Class are (1) Defendant, any entity or division in which
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`Defendant has a controlling interest, and Defendant’s legal representatives, officers, directors,
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`assigns, and successors; and (2) the judge to whom this case is assigned and the judge’s staff.
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`61.
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`Plaintiff brings the Class pursuant to Federal Rules of Civil Procedure 23(a),
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`23(b)(1), 23(b)(2), and 23(b)(3).
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`62.
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`Plaintiff reserves the right to amend the Class definition(s) if further information
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`and discovery indicate that the Class definition(s) should be narrowed, expanded, or otherwise
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`modified.
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`63.
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`All members of the Class were and are similarly affected by the deceptive labeling
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`and advertising of Sargento’s Products, and the relief sought herein is for the benefit of Plaintiff
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`and members of the Class.
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`
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`1. Numerosity.
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`64.
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`At this time, Plaintiff does not know the exact number of the Class members. Based
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`on the wide distribution of Sargento’s Products, Plaintiff believes that the Class comprises many
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`thousands of consumers. The number of consumers in the Class is so large as to make joinder
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`impracticable, if not impossible. Class members may be notified of the pendency of this action
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`by recognized, Court-approved notice dissemination methods, which may include U.S. Mail,
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`electronic mail, Internet postings, and/or published notice.
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`2. Commonality.
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`65.
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`There is a well-defined community of interest in the questions of law and fact
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`involved in this case. Questions of law and fact common to the members of the Class that
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`predominate over questions that may affect individual Class members include:
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 17 of 25
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`(a)
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`(b)
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`(c)
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`(d)
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`Whether Sargento is responsible for the labeling and advertising at issue;
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`Whether the labeling and advertising of the Products was unfair, false, deceptive,
`fraudulent, and/or unlawful;
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`Whether Sargento breached a warranty created through the labeling and
`marketing of its Products; and
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`Whether Sargento’s conduct, as set forth above, injured, and may continue to
`injure, Plaintiff and Class members.
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`3. Typicality.
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`66.
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`Plaintiff’s claims are typical of those of the Class, as the claims arise from the
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`same course of conduct by Sargento, and the relief sought within the Class is common to the Class
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`members. Plaintiff, like all members of the Class, relied on Sargento’s false and misleading
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`representations and purchased Sargento’s Products, or purchased more of them, or paid more for
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`the Products than he would have paid if the products had been properly labeled, and sustained
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`injury from Sargento’s wrongful conduct. Further, there are no defenses available to Sargento that
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`are unique to Plaintiff.
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`4. Adequacy.
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`67.
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`Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff is an
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`adequate representative of the Class because his interests do not conflict with the interests of the
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`Class members he seeks to represent, and he has retained counsel competent and experienced in
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`both consumer protection and class action litigation. Plaintiff and his counsel will fairly and
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`adequately protect the interests of the Class members. Undersigned counsel have represented
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`consumers in a variety of actions seeking to protect consumers from fraudulent and deceptive
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`practices.
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`Case 5:20-cv-09251-SVK Document 1 Filed 12/21/20 Page 18 of 25
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`5. Predominance and Superiority of Class Action.
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`68.
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`The prerequisites to maintaining a class action pursuant to Federal Rule of Civil
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`Procedure 23(b)(3) are met because questions of law and fact common to each Class member
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`predominate over any questions affecting only individual members, and a class action is superior
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`to other available methods for fairly and efficiently adjudicating the controversy.
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`69.
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`Individual joinder of the Class members is not practicable, and questions of law
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`and fact common to the Class predominate over any questions affecting only individual Class
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`members. Each Class member has been damaged and is entitled to recovery as a result of the
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`violations alleged herein.
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`70. Moreover, because the damages suffered by individual members of the Class may
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`be relatively small, the expense and burden of individual litigation would make it difficult or
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`impossible for individual Class members to redress the wrongs done to them, while an important
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`public interest will be served by addressing the matter as a class action. Class action treatment
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`will allow those persons similarly situated to litigate their claims in the manner that is most
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`efficient and economical for the parties and the judicial system.
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`71.
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`