`E-FILED
` Tuesday, 22 March, 2022 10:52:21 PM
` Clerk, U.S. District Court, ILCD
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
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`URBANA DIVISION
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`Conrad Raczkowski, individually and on
`behalf of all others similarly situated,
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`2:22-cv-02061
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`Plaintiff,
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`- against -
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`Class Action Complaint
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`Pinnacle Foods Inc.,
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1.
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`Pinnacle Foods Inc. (“Defendant”) manufactures, labels, markets, and sells vegetable
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`oil spread promoted as “Made With Olive Oil,” with green-themed packaging under its Earth
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`Balance brand (“Product”).
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`2:22-cv-02061-CSB-EIL # 1 Page 2 of 15
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`2.
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`The representations include “Soy Free,” “Non-GMO,” “Vegan,” “Made With Olive
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`Oil,” “Buttery Spread,” “Earth Balance,” and “78% Vegetable Oils.”
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`I.
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`VEGETABLE OIL SPREADS
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`3.
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`Since the dawn of recorded history, humas have enjoyed butter, made from cream
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`and salt, on a farm.
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`4.
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`For the past 150 years, imitators of butter have sold yellow-colored blends of beef
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`tallow and vegetable oil to consumers, through the product known as margarine, required to have
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`80% or more fat.
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`5. Where these non-dairy blends are less than 80% fat, they are referred to as “spreads.”
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`6. Vegetable oil traditionally refers to oils such as corn oil, canola oil, cottonseed oil,
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`palm oil, safflower oil, sesame oil, soybean oil and sunflower oil.
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`7. According to the USDA, annual consumption of margarine and spreads recently
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`reached its lowest level since the 1940s, at roughly three pounds per person.
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`8.
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`In contrast, the average person now consumes almost six pounds of butter per year,
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`the highest level in close to 50 years.
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`9.
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`There are several reasons for these changes.
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`10. First, as confirmed by research firm Mintel, “consumers [are] increasingly turn[ing]
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`to butter over margarine/spreads for its natural appeal,” and a “preference for less processed
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`foods.”
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`11. Butter is made with simple, natural ingredients like cream and salt.
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`12. Butter is made by churning cow’s milk, without chemicals or additives.
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`13.
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`In contrast, vegetable oils are heavily refined in the presence of chemical catalysts
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`such as nickel and cadmium.
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`14. Second, consumers are more aware of the healthier profile of butter compared to
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`vegetable oil alternatives.
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`15. Butter contains heart health(ier) fats, while vegetable oils contain harmful trans fats,
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`a result of hydrogenation and interesterification.
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`16. Butter also contains calcium, and vitamins A and D.
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`17. Vegetable oils have no comparable nutritional value as a result of the intense
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`processing needed to render them palatable.
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`18. Third, vegetable oil spreads are considered ultraprocessed foods (“UPF”), frowned
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`upon by nutrition authorities and public health bodies.
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`19. To counter this decline of vegetable oil spreads, companies are increasingly
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`incorporating alternative oils like olive oil to meet consumer demand.
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`II. CONSUMER DEMAND FOR OLIVE OIL
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`20. Olive oil is the juice of crushed olives without additives or harsh processing.
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`21. Whereas vegetable oils have no flavor or aroma, olive oil is known for its peppery
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`and grassy taste.
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`22. Over the past several decades, olive oil has increased in popularity and its sales
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`exceed all other vegetable oils combined.
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`23. The popularity of olive oil has been helped by its association with the Mediterranean
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`Diet, confirmed by scientific studies showing it reduces health risks.
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`24. Olive oil has high levels of heart-healthy fats, such as polyunsaturated and
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`monounsaturated fat, which help control cholesterol
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`25. Olive oil contains antioxidants, which promote immunity, and fight free radical
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`damage to help slow down the aging process.
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`26. Olive oil promotes brain function, bone strength, and balanced blood sugar.
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`27. The oleic acid and phenols in olive oil are linked to prevention of skin, breast and
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`colon cancer.
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`III. REPRESENTATION OF “MADE WITH OLIVE OIL” IS MISLEADING
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`28. Defendant markets the Product to the increasing numbers of Americans seeking to
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`consume staple foods with ingredients known for providing health benefits, like olive oil.
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`29. By representing the Product as “Made With Olive Oil,” with green label statements
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`and packaging, and promoted as “Non-GMO” and “Vegan,” consumers expect it contains a
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`significant, non-de minimis amount of olive oil, in relative and absolute amounts to all oils used.
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`30. However, the ingredient list reveals a smaller than expected amount of olive oil, in
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`absolute and relative terms.
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`INGREDIENTS: VEGETABLE OIL BLEND
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`(PALM FRUIT, CANOLA, SAFFLOWER,
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`EXTRA VIRGIN OLIVE, AND FLAX OILS),
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`WATER, CONTAINS LESS THAN 2% OF
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`SALT, NATURAL FLAVOR, PEA PROTEIN,
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`SUNFLOWER LECITHIN, LACTIC ACID (TO
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`PROTECT
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`FRESHNESS),
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`ANNATTO
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`EXTRACT (COLOR)
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`31. That the Product contains a de minimis amount of olive oil is revealed from the
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`ingredient list, with the first ingredient identified as a “Vegetable Oil Blend.”
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`32. The components of this ingredient are listed in order of predominance by weight,
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`which shows more “palm fruit, canola, [and] safflower” oils than “extra virgin olive [oil].”
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`33. The amount of olive oil only exceeds the flax oils.
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`34. The small relative and absolute amount of olive oil is misleading in light of the front
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`label claim the Product is “Made With Olive Oil.
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`35. The amount of olive oil is insufficient to confer any of the health benefits associated
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`with olive oil or deliver the taste of olive oil.
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`36. The non-olive oil components of the vegetable oil blend – palm, canola, safflower
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`and flax oils – lack the health and nutritional attributes of olive oil.
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`IV. CONCLUSION
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`37. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`38. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`39. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`40. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`41. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`42. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $3.49 per 13 OZ, excluding tax and sales,
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`higher than similar products, represented in a non-misleading way, and higher than it would be
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`sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`43.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`44. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`45. Plaintiff Conrad Raczkowski is a citizen of Illinois.
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`46. Defendant Pinnacle Foods Inc. is a Delaware corporation with a principal place of
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`business in Parsippany, Morris County, New Jersey.
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`47. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
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`48. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold for several years, with the representations described here, in thousands of
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`locations, in the states covered by Plaintiff’s proposed classes.
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`49. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
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`online.
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`50. Venue is in the Urbana Division in this District because a substantial part of the
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`events or omissions giving rise to these claims occurred in Kankakee, including Plaintiff’s
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`purchase, consumption, and/or use of the Product and awareness and/or experiences of and with
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`the issues described here.
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`Parties
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`51. Plaintiff Conrad Raczkowski is a citizen of Kankakee, Kankakee, Illinois.
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`52. Defendant Pinnacle Foods Inc. is a Delaware corporation with a principal place of
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`2:22-cv-02061-CSB-EIL # 1 Page 7 of 15
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`business in Parsippany, New Jersey, Morris County.
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`53. Earth Balance was started over twenty years ago in Boulder, Colorado.
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`54. The company’s founding principles were based on using plant-based ingredients, to
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`improve health, the environment, and society.
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`55. The Earth Balance brand is self-described as “Ethically Plant-Made,” defined as
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`“mak[ing] things from plants,” in addition to “integrity, mindfulness, and making a positive
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`impact.”
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`56. Earth Balance promotes “Plant-based diets a[s] recognized as having a reduced
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`carbon footprint compared to animal-based diets.”
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`57. This emphasis on plant-based foods and integrity have made Earth Balance one of
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`the most trusted brands.
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`58. Consumers of vegetable oil spreads trust Earth Balance to be honest with them,
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`because it has built up a reservoir of good will when it comes to plant-based foods and including
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`healthy ingredients like olive oil in its products.
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`59. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
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`online.
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`60. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at stores including Meijer, 990 N Kinzie Ave Bradley
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`IL 60915-1233 between December 31, 2021, and January 31, 2022, and/or among other times.
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`61. Plaintiff believed and expected the Product was made with a non-de minimis and/or
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`predominant amount of olive oil, as opposed to containing mainly palm and canola oil because
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`that is what the representations and omissions said and implied.
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`62. Plaintiff relied on the words, terms coloring, descriptions, layout, packaging, tags,
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`and/or images on the Product, on the labeling, statements, omissions, claims, statements, and
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`instructions, made by Defendant or at its directions, in digital, print and/or social media, which
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`accompanied the Product and separately, through in-store, digital, audio, and print marketing.
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`63. Plaintiff bought the Product at or exceeding the above-referenced price.
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`64. Plaintiff would not have purchased the Product if he knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`65. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`66. The Product was worth less than what Plaintiff paid and he would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`67. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`68. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar vegetable oil spreads containing desired ingredients like olive oil, because he is
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`unsure whether those representations are truthful.
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`Class Allegations
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`69. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`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
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`Consumer Fraud Multi-State Class: All persons in
`the States of Arkansas, Iowa, Utah, West Virginia,
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`Idaho, Alaska, and Montana who purchased the
`Product during the statutes of limitations for each
`cause of action alleged.
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`70. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`71. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`72. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`73. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`74.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`75. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`76. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
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`(Consumer Protection Statute)
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`77. Plaintiff incorporates by reference all preceding paragraphs.
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`78. Plaintiff believed was made with a non-de minimis and/or predominant amount of
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`olive oil, as opposed to containing mainly palm and canola oil.
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`79. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`80. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`81. Plaintiff relied on the representations and omissions to believe the Product was made
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`with a non-de minimis and/or predominant amount of olive oil, as opposed to containing mainly
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`palm and canola oil.
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`82.
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` Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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` Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`83. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`84. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`85. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct.
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`86. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`87. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`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.
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`88. The Product was manufactured, identified, marketed and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff and class members that it was made with a non-de
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`minimis and/or predominant amount of olive oil, as opposed to containing mainly palm and canola
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`oil.
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`89. Defendant directly marketed the Product to Plaintiff and consumers through its
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`advertisements and marketing, through various forms of media, on the packaging, in print
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`circulars, direct mail, and targeted digital advertising.
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`90. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`91. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant that it was made with a non-
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`de minimis and/or predominant amount of olive oil, as opposed to containing mainly palm and
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`canola oil.
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`92. Defendant’s representations affirmed and promised that it was made with a non-de
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`minimis and/or predominant amount of olive oil, as opposed to containing mainly palm and canola
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`oil.
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`93. Defendant described the Product so Plaintiff and consumers believed it was made
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`with a non-de minimis and/or predominant amount of olive oil, as opposed to containing mainly
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`palm and canola oil, which became part of the basis of the bargain that it would conform to its
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`affirmations and promises.
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`94. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`95. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted company, known for its transparent labeling, and its commitment to putting customers
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`first.
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`96. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`97. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`98. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`99. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`100. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`101. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container or label, because it was marketed
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`as if it was made with a non-de minimis and/or predominant amount of olive oil, as opposed to
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`containing mainly palm and canola oil.
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`102. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because he expected it was made
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`with a non-de minimis and/or predominant amount of olive oil, as opposed to containing mainly
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`palm and canola oil, and he relied on Defendant’s skill and judgment to select or furnish such a
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`suitable product.
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`103. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`104. Defendant had a duty to truthfully represent the Product, which it breached.
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`105. This duty was non-delegable, and based on Defendant’s position, holding itself out
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`as having special knowledge and experience in this area, a trusted company, known for its
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`transparent labeling, and its commitment to putting customers first.
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`106. Defendant’s representations and omissions regarding the Product went beyond the
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`specific representations on the packaging, as they incorporated the extra-labeling promises and
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`commitments to quality, transparency and putting customers first, that it has been known for.
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`107. These promises were outside of the standard representations that other companies
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`may make in a standard arms-length, retail context.
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`108. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in Defendant.
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`109. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, their purchase of the
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`Product.
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`110. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`111. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it was made with a non-de minimis and/or predominant amount of olive oil, as opposed to
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`containing mainly palm and canola oil.
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`112. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity and deception, through statements and omissions.
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`113. Defendant knew of the issues described here yet did not address them.
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`114. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`115. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying Plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for Plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: March 22, 2022
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`Respectfully submitted,
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`/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
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`15
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