throbber
2:22-cv-02061-CSB-EIL # 1 Page 1 of 15
`E-FILED
` Tuesday, 22 March, 2022 10:52:21 PM
` Clerk, U.S. District Court, ILCD
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
`
`URBANA DIVISION
`
`Conrad Raczkowski, individually and on
`behalf of all others similarly situated,
`
`2:22-cv-02061
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Pinnacle Foods Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Pinnacle Foods Inc. (“Defendant”) manufactures, labels, markets, and sells vegetable
`
`oil spread promoted as “Made With Olive Oil,” with green-themed packaging under its Earth
`
`Balance brand (“Product”).
`
`
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 2 of 15
`
`2.
`
`The representations include “Soy Free,” “Non-GMO,” “Vegan,” “Made With Olive
`
`Oil,” “Buttery Spread,” “Earth Balance,” and “78% Vegetable Oils.”
`
`I.
`
`VEGETABLE OIL SPREADS
`
`3.
`
`Since the dawn of recorded history, humas have enjoyed butter, made from cream
`
`and salt, on a farm.
`
`4.
`
`For the past 150 years, imitators of butter have sold yellow-colored blends of beef
`
`tallow and vegetable oil to consumers, through the product known as margarine, required to have
`
`80% or more fat.
`
`5. Where these non-dairy blends are less than 80% fat, they are referred to as “spreads.”
`
`6. Vegetable oil traditionally refers to oils such as corn oil, canola oil, cottonseed oil,
`
`palm oil, safflower oil, sesame oil, soybean oil and sunflower oil.
`
`7. According to the USDA, annual consumption of margarine and spreads recently
`
`reached its lowest level since the 1940s, at roughly three pounds per person.
`
`8.
`
`In contrast, the average person now consumes almost six pounds of butter per year,
`
`the highest level in close to 50 years.
`
`9.
`
`There are several reasons for these changes.
`
`10. First, as confirmed by research firm Mintel, “consumers [are] increasingly turn[ing]
`
`to butter over margarine/spreads for its natural appeal,” and a “preference for less processed
`
`foods.”
`
`11. Butter is made with simple, natural ingredients like cream and salt.
`
`12. Butter is made by churning cow’s milk, without chemicals or additives.
`
`13.
`
`In contrast, vegetable oils are heavily refined in the presence of chemical catalysts
`
`such as nickel and cadmium.
`
`2
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 3 of 15
`
`14. Second, consumers are more aware of the healthier profile of butter compared to
`
`vegetable oil alternatives.
`
`15. Butter contains heart health(ier) fats, while vegetable oils contain harmful trans fats,
`
`a result of hydrogenation and interesterification.
`
`16. Butter also contains calcium, and vitamins A and D.
`
`17. Vegetable oils have no comparable nutritional value as a result of the intense
`
`processing needed to render them palatable.
`
`18. Third, vegetable oil spreads are considered ultraprocessed foods (“UPF”), frowned
`
`upon by nutrition authorities and public health bodies.
`
`19. To counter this decline of vegetable oil spreads, companies are increasingly
`
`incorporating alternative oils like olive oil to meet consumer demand.
`
`II. CONSUMER DEMAND FOR OLIVE OIL
`
`20. Olive oil is the juice of crushed olives without additives or harsh processing.
`
`21. Whereas vegetable oils have no flavor or aroma, olive oil is known for its peppery
`
`and grassy taste.
`
`22. Over the past several decades, olive oil has increased in popularity and its sales
`
`exceed all other vegetable oils combined.
`
`23. The popularity of olive oil has been helped by its association with the Mediterranean
`
`Diet, confirmed by scientific studies showing it reduces health risks.
`
`24. Olive oil has high levels of heart-healthy fats, such as polyunsaturated and
`
`monounsaturated fat, which help control cholesterol
`
`25. Olive oil contains antioxidants, which promote immunity, and fight free radical
`
`damage to help slow down the aging process.
`
`3
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 4 of 15
`
`26. Olive oil promotes brain function, bone strength, and balanced blood sugar.
`
`27. The oleic acid and phenols in olive oil are linked to prevention of skin, breast and
`
`colon cancer.
`
`III. REPRESENTATION OF “MADE WITH OLIVE OIL” IS MISLEADING
`
`28. Defendant markets the Product to the increasing numbers of Americans seeking to
`
`consume staple foods with ingredients known for providing health benefits, like olive oil.
`
`29. By representing the Product as “Made With Olive Oil,” with green label statements
`
`and packaging, and promoted as “Non-GMO” and “Vegan,” consumers expect it contains a
`
`significant, non-de minimis amount of olive oil, in relative and absolute amounts to all oils used.
`
`30. However, the ingredient list reveals a smaller than expected amount of olive oil, in
`
`absolute and relative terms.
`
`INGREDIENTS: VEGETABLE OIL BLEND
`
`(PALM FRUIT, CANOLA, SAFFLOWER,
`
`EXTRA VIRGIN OLIVE, AND FLAX OILS),
`
`WATER, CONTAINS LESS THAN 2% OF
`
`SALT, NATURAL FLAVOR, PEA PROTEIN,
`
`SUNFLOWER LECITHIN, LACTIC ACID (TO
`
`PROTECT
`
`FRESHNESS),
`
`ANNATTO
`
`
`
`EXTRACT (COLOR)
`
`31. That the Product contains a de minimis amount of olive oil is revealed from the
`
`ingredient list, with the first ingredient identified as a “Vegetable Oil Blend.”
`
`32. The components of this ingredient are listed in order of predominance by weight,
`
`which shows more “palm fruit, canola, [and] safflower” oils than “extra virgin olive [oil].”
`
`4
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 5 of 15
`
`33. The amount of olive oil only exceeds the flax oils.
`
`34. The small relative and absolute amount of olive oil is misleading in light of the front
`
`label claim the Product is “Made With Olive Oil.
`
`35. The amount of olive oil is insufficient to confer any of the health benefits associated
`
`with olive oil or deliver the taste of olive oil.
`
`36. The non-olive oil components of the vegetable oil blend – palm, canola, safflower
`
`and flax oils – lack the health and nutritional attributes of olive oil.
`
`IV. CONCLUSION
`
`37. Defendant makes other representations and omissions with respect to the Product
`
`which are false and misleading.
`
`38. Reasonable consumers must and do rely on a company to honestly and lawfully
`
`market and describe the components, attributes, and features of a product, relative to itself and
`
`other comparable products or alternatives.
`
`39. The value of the Product that Plaintiff purchased was materially less than its value
`
`as represented by Defendant.
`
`40. Defendant sold more of the Product and at higher prices than it would have in the
`
`absence of this misconduct, resulting in additional profits at the expense of consumers.
`
`41. Had Plaintiff and proposed class members known the truth, they would not have
`
`bought the Product or would have paid less for it.
`
`42. As a result of the false and misleading representations, the Product is sold at a
`
`premium price, approximately no less than no less than $3.49 per 13 OZ, excluding tax and sales,
`
`higher than similar products, represented in a non-misleading way, and higher than it would be
`
`sold for absent the misleading representations and omissions.
`
`5
`
`

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`2:22-cv-02061-CSB-EIL # 1 Page 6 of 15
`
`Jurisdiction and Venue
`
`43.
`
`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2).
`
`44. The aggregate amount in controversy exceeds $5 million, including any statutory
`
`damages, exclusive of interest and costs.
`
`45. Plaintiff Conrad Raczkowski is a citizen of Illinois.
`
`46. Defendant Pinnacle Foods Inc. is a Delaware corporation with a principal place of
`
`business in Parsippany, Morris County, New Jersey.
`
`47. The class of persons Plaintiff seeks to represent includes persons who are citizens of
`
`different states from which Defendant is a citizen
`
`48. The members of the class Plaintiff seeks to represent are more than 100, because the
`
`Product has been sold for several years, with the representations described here, in thousands of
`
`locations, in the states covered by Plaintiff’s proposed classes.
`
`49. The Product is available to consumers from third-parties, which includes grocery
`
`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
`
`online.
`
`50. Venue is in the Urbana Division in this District because a substantial part of the
`
`events or omissions giving rise to these claims occurred in Kankakee, including Plaintiff’s
`
`purchase, consumption, and/or use of the Product and awareness and/or experiences of and with
`
`the issues described here.
`
`Parties
`
`51. Plaintiff Conrad Raczkowski is a citizen of Kankakee, Kankakee, Illinois.
`
`52. Defendant Pinnacle Foods Inc. is a Delaware corporation with a principal place of
`
`6
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 7 of 15
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`business in Parsippany, New Jersey, Morris County.
`
`53. Earth Balance was started over twenty years ago in Boulder, Colorado.
`
`54. The company’s founding principles were based on using plant-based ingredients, to
`
`improve health, the environment, and society.
`
`55. The Earth Balance brand is self-described as “Ethically Plant-Made,” defined as
`
`“mak[ing] things from plants,” in addition to “integrity, mindfulness, and making a positive
`
`impact.”
`
`56. Earth Balance promotes “Plant-based diets a[s] recognized as having a reduced
`
`carbon footprint compared to animal-based diets.”
`
`57. This emphasis on plant-based foods and integrity have made Earth Balance one of
`
`the most trusted brands.
`
`58. Consumers of vegetable oil spreads trust Earth Balance to be honest with them,
`
`because it has built up a reservoir of good will when it comes to plant-based foods and including
`
`healthy ingredients like olive oil in its products.
`
`59. The Product is available to consumers from third-parties, which includes grocery
`
`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
`
`online.
`
`60. Plaintiff purchased the Product on one or more occasions within the statutes of
`
`limitations for each cause of action alleged, at stores including Meijer, 990 N Kinzie Ave Bradley
`
`IL 60915-1233 between December 31, 2021, and January 31, 2022, and/or among other times.
`
`61. Plaintiff believed and expected the Product was made with a non-de minimis and/or
`
`predominant amount of olive oil, as opposed to containing mainly palm and canola oil because
`
`that is what the representations and omissions said and implied.
`
`7
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 8 of 15
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`62. Plaintiff relied on the words, terms coloring, descriptions, layout, packaging, tags,
`
`and/or images on the Product, on the labeling, statements, omissions, claims, statements, and
`
`instructions, made by Defendant or at its directions, in digital, print and/or social media, which
`
`accompanied the Product and separately, through in-store, digital, audio, and print marketing.
`
`63. Plaintiff bought the Product at or exceeding the above-referenced price.
`
`64. Plaintiff would not have purchased the Product if he knew the representations and
`
`omissions were false and misleading or would have paid less for it.
`
`65. Plaintiff chose between Defendant’s Product and products represented similarly, but
`
`which did not misrepresent their attributes, requirements, instructions, features, and/or
`
`components.
`
`66. The Product was worth less than what Plaintiff paid and he would not have paid as
`
`much absent Defendant's false and misleading statements and omissions.
`
`67. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
`
`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
`
`composition.
`
`68. Plaintiff is unable to rely on the labeling and representations not only of this Product,
`
`but other similar vegetable oil spreads containing desired ingredients like olive oil, because he is
`
`unsure whether those representations are truthful.
`
`Class Allegations
`
`69. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
`
`Illinois Class: All persons in the State or federal
`district of Illinois who purchased the Product during
`the statutes of limitations for each cause of action
`alleged; and
`
`Consumer Fraud Multi-State Class: All persons in
`the States of Arkansas, Iowa, Utah, West Virginia,
`
`8
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 9 of 15
`
`Idaho, Alaska, and Montana who purchased the
`Product during the statutes of limitations for each
`cause of action alleged.
`
`70. Common questions of issues, law, and fact predominate and include whether
`
`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
`
`to damages.
`
`71. Plaintiff's claims and basis for relief are typical to other members because all were
`
`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
`
`72. Plaintiff is an adequate representative because his interests do not conflict with other
`
`members.
`
`73. No individual inquiry is necessary since the focus is only on Defendant’s practices
`
`and the class is definable and ascertainable.
`
`74.
`
`Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
`
`75. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
`
`76. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`
`(Consumer Protection Statute)
`
`77. Plaintiff incorporates by reference all preceding paragraphs.
`
`78. Plaintiff believed was made with a non-de minimis and/or predominant amount of
`
`olive oil, as opposed to containing mainly palm and canola oil.
`
`79. Defendant’s false, misleading and deceptive representations and omissions are
`
`material in that they are likely to influence consumer purchasing decisions.
`
`9
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 10 of 15
`
`80. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`81. Plaintiff relied on the representations and omissions to believe the Product was made
`
`with a non-de minimis and/or predominant amount of olive oil, as opposed to containing mainly
`
`palm and canola oil.
`
`82.
`
` Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
` Violation of State Consumer Fraud Acts
`
`(On Behalf of the Consumer Fraud Multi-State Class)
`
`83. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
`
`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
`
`deceptive business practices in the conduct of commerce.
`
`84. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
`
`their consumer protection claims under the Consumer Fraud Acts of the States they represent
`
`and/or the consumer protection statute invoked by Plaintiff.
`
`85. Defendant intended that members of the Consumer Fraud Multi-State Class would
`
`rely upon its deceptive conduct.
`
`86. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
`
`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
`
`87. Defendant’s conduct showed motive and a reckless disregard of the truth such that
`
`an award of punitive damages is appropriate.
`
`10
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 11 of 15
`
`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`88. The Product was manufactured, identified, marketed and sold by Defendant and
`
`expressly and impliedly warranted to Plaintiff and class members that it was made with a non-de
`
`minimis and/or predominant amount of olive oil, as opposed to containing mainly palm and canola
`
`oil.
`
`89. Defendant directly marketed the Product to Plaintiff and consumers through its
`
`advertisements and marketing, through various forms of media, on the packaging, in print
`
`circulars, direct mail, and targeted digital advertising.
`
`90. Defendant knew the product attributes that potential customers like Plaintiff were
`
`seeking and developed its marketing and labeling to directly meet those needs and desires.
`
`91. Defendant’s representations about the Product were conveyed in writing and
`
`promised it would be defect-free, and Plaintiff understood this meant that it was made with a non-
`
`de minimis and/or predominant amount of olive oil, as opposed to containing mainly palm and
`
`canola oil.
`
`92. Defendant’s representations affirmed and promised that it was made with a non-de
`
`minimis and/or predominant amount of olive oil, as opposed to containing mainly palm and canola
`
`oil.
`
`93. Defendant described the Product so Plaintiff and consumers believed it was made
`
`with a non-de minimis and/or predominant amount of olive oil, as opposed to containing mainly
`
`palm and canola oil, which became part of the basis of the bargain that it would conform to its
`
`affirmations and promises.
`
`94. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
`
`11
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 12 of 15
`
`95. This duty is based on Defendant’s outsized role in the market for this type of Product,
`
`a trusted company, known for its transparent labeling, and its commitment to putting customers
`
`first.
`
`96. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
`
`97. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
`
`retailers, and their employees.
`
`98. Plaintiff hereby provides notice to Defendant that it breached the express and implied
`
`warranties associated with the Product.
`
`99. Defendant received notice and should have been aware of these issues due to
`
`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
`
`and by consumers through online forums.
`
`100. The Product did not conform to its affirmations of fact and promises due to
`
`Defendant’s actions.
`
`101. The Product was not merchantable because it was not fit to pass in the trade as
`
`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
`
`promises or affirmations of fact made on the packaging, container or label, because it was marketed
`
`as if it was made with a non-de minimis and/or predominant amount of olive oil, as opposed to
`
`containing mainly palm and canola oil.
`
`102. The Product was not merchantable because Defendant had reason to know the
`
`particular purpose for which the Product was bought by Plaintiff, because he expected it was made
`
`with a non-de minimis and/or predominant amount of olive oil, as opposed to containing mainly
`
`palm and canola oil, and he relied on Defendant’s skill and judgment to select or furnish such a
`
`suitable product.
`
`12
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 13 of 15
`
`103. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Negligent Misrepresentation
`
`104. Defendant had a duty to truthfully represent the Product, which it breached.
`
`105. This duty was non-delegable, and based on Defendant’s position, holding itself out
`
`as having special knowledge and experience in this area, a trusted company, known for its
`
`transparent labeling, and its commitment to putting customers first.
`
`106. Defendant’s representations and omissions regarding the Product went beyond the
`
`specific representations on the packaging, as they incorporated the extra-labeling promises and
`
`commitments to quality, transparency and putting customers first, that it has been known for.
`
`107. These promises were outside of the standard representations that other companies
`
`may make in a standard arms-length, retail context.
`
`108. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`point-of-sale and their trust in Defendant.
`
`109. Plaintiff and class members reasonably and justifiably relied on these negligent
`
`misrepresentations and omissions, which served to induce and did induce, their purchase of the
`
`Product.
`
`110. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Fraud
`
`111. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
`
`that it was made with a non-de minimis and/or predominant amount of olive oil, as opposed to
`
`containing mainly palm and canola oil.
`
`13
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 14 of 15
`
`112. Moreover, the records Defendant is required to maintain, and/or the information
`
`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
`
`the falsity and deception, through statements and omissions.
`
`113. Defendant knew of the issues described here yet did not address them.
`
`114. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
`
`Unjust Enrichment
`
`115. Defendant obtained benefits and monies because the Product was not as represented
`
`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
`
`restitution and disgorgement of inequitably obtained profits.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jury Demand and Prayer for Relief
`
`Plaintiff demands a jury trial on all issues.
`
` WHEREFORE, Plaintiff prays for judgment:
`
`1. Declaring this a proper class action, certifying Plaintiff as representative and the
`
`undersigned as counsel for the class;
`
`2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the
`
`challenged practices to comply with the law;
`
`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
`
`representations, and restitution and disgorgement for members of the class pursuant to the
`
`applicable laws;
`
`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
`
`claims and interest pursuant to the common law and other statutory claims;
`
`5. Awarding costs and expenses, including reasonable fees for Plaintiff's attorneys and
`
`experts; and
`
`14
`
`

`

`2:22-cv-02061-CSB-EIL # 1 Page 15 of 15
`
`6. Other and further relief as the Court deems just and proper.
`
`Dated: March 22, 2022
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`15
`
`

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