Case: 1:20-cv-01501 Document #: 1 Filed: 02/28/20 Page 1 of 31 PageID #:1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
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`JACQUELINE WILLARD, an individual, and
`AMIE BLACKMAN, an individual, on behalf of
`themselves individually, and on behalf of all
`others similarly situated, and the general public,
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`Case No:
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`1:20-cv-01501
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`CLASS ACTION COMPLAINT
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`Plaintiffs,
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`v.
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`JURY DEMANDED
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`TROPICANA MANUFACTURING
`COMPANY, INC. a Delaware corporation;
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`Defendant.
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`Plaintiffs Jacqueline Willard (“Willard”) and Amie Blackman (“Blackman”) (collectively
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`referred to herein as “Plaintiffs”), hereby bring this Action against Defendant Tropicana
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`Manufacturing Company, Inc. (“Defendant” or “
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`Tropicana”), alleging that Defendant
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`misbrands and falsely advertises numerous juice-based beverage products (the “Products”), in
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`Illinois, California, and throughout the United States, in violation of federal and state unfair
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`competition, false advertising, and consumer protection laws. Upon information and belief and
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`investigation of counsel, Plaintiffs allege as follows:
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`JURISDICTION AND VENUE
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`1.
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`This Court has original jurisdiction over this action under the Class Action Fairness
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`Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). Defendant is a citizen of a different state than
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`Plaintiff Amie Blackman, the putative class size is greater than 100 persons, and the amount in
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` 1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
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`JACQUELINE WILLARD, an individual, and
`AMIE BLACKMAN, an individual, on behalf of
`themselves individually, and on behalf of all
`others similarly situated, and the general public,
`
`Case No:
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`1:20-cv-01501
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`CLASS ACTION COMPLAINT
`
`Plaintiffs,
`
`v.
`
`JURY DEMANDED
`
`TROPICANA MANUFACTURING
`COMPANY, INC. a Delaware corporation;
`
`Defendant.
`
`Plaintiffs Jacqueline Willard (“Willard”) and Amie Blackman (“Blackman”) (collectively
`
`referred to herein as “Plaintiffs”), hereby bring this Action against Defendant Tropicana
`
`Manufacturing Company, Inc. (“Defendant” or “
`
`Tropicana”), alleging that Defendant
`
`misbrands and falsely advertises numerous juice-based beverage products (the “Products”), in
`
`Illinois, California, and throughout the United States, in violation of federal and state unfair
`
`competition, false advertising, and consumer protection laws. Upon information and belief and
`
`investigation of counsel, Plaintiffs allege as follows:
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`JURISDICTION AND VENUE
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`1.
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`This Court has original jurisdiction over this action under the Class Action Fairness
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`Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). Defendant is a citizen of a different state than
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`Plaintiff Amie Blackman, the putative class size is greater than 100 persons, and the amount in
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` controversy in the aggregate for the putative Class exceeds the sum or value of $5 million exclusive
`of interest and costs.
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`2.
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`This Court has both general and specific personal jurisdiction over the Defendant
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`because Defendant maintains its corporate headquarters in and has conducted and continues to
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`conduct substantial business in the State of Illinois and in Cook County. Plaintiff Willard
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`purchased one or more of the Products in Cook County.
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`3.
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`This Court has specific personal jurisdiction as Defendant maintains its corporate
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`headquarters in and actively advertises and sells the Products in Illinois and is registered to do
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`business in Illinois. Defendant is located within the state and has sufficient minimum contacts with
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`this state and sufficiently avails itself of the markets of this state through the promotion, sales, and
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`marketing of the Products to consumers within the state to render the exercise of jurisdiction by
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`this Court reasonable.
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`4.
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`Venue is proper in the United States District Court for the Northern District of
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`Illinois pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the
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`claims occurred within this judicial district, Plaintiff Willard purchased the Product and sustained
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`harm thereby in this District, and Defendant is headquartered in, conducts business in, and
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`marketed and sold the Product at issue within this judicial district.
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`PARTIES
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`5.
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`Plaintiff Jacqueline Willard is an individual and a citizen of Illinois over the age of
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`eighteen who resides in Bellwood, Illinois.
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`6.
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`Plaintiff Amie Blackman is an individual and a citizen of California over the age of
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`eighteen who resides in San Diego, California.
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`7.
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`Defendant Tropicana Manufacturing Company, Inc. (“Tropicana”) is a Delaware
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`corporation that manufactures, packages, labels, advertises, markets, and sells the Products
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`identified herein. Tropicana maintains its principal place of business at 555 West Monroe Street
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`in Chicago, Illinois.
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`8.
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`Tropicana is registered to do business in the State of California as entity number
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`C2326121.
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`9.
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`Defendant advertises, distributes, and sells the Products in Illinois, California, and
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`throughout the United States.
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`FACTUAL ALLEGATIONS
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`10.
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`Defendant manufactures, packages, labels, distributes, advertises, markets, and
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`sells fruit-juice-based beverage products that contain undisclosed artificial flavoring agents (the
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`“Products”).
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`11.
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`12.
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`Defendant conceals that the Products are artificially flavored.
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`Defendant knowingly adds artificial flavor to the Products but fails to label the
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`Products accordingly, concealing this crucial fact from consumers.
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`13.
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`Defendant knowingly omits all the federal and state law required label disclosures
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`informing consumers that the Products contain artificial flavors.
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`14.
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`The Products, in fact, are all labeled as if they contain only natural ingredients,
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`deceiving consumers into believing they are purchasing a premium, all-natural product instead of
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`one that contains artificial flavoring.
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`15.
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`Consumers value naturally flavored products more highly than those that contain
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`artificial flavors, and some consumers would not buy these Products at all if they knew the
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`Products contained artificial flavors.
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`16.
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`By omitting the legally required disclosures, Defendant tricks consumers into
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`buying these Products when they otherwise would not, and paying more for the Products when
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`they do purchase them.
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`17.
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`Defendant intended to give reasonable consumers like the Plaintiff the impression
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`that the Products are pure, natural, and not artificially flavored, by packaging, labeling, and
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`advertising the Products in this way.
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`18.
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`19.
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`All the Products identified herein contain undisclosed artificial flavoring.
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`One of the Products, for example, “Trop 50 Farmstand Apple”, shows on its label
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`pictures of ripe, fresh apples and includes in the Product name, “Farmstand.”
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`20.
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`The name “Farmstand Apple” is intended to deceive consumers into believing that
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`the Product is an all-natural juice product.
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`21.
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`The “Trop 50 Farmstand Apple” Product nowhere informs consumers that it
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`contains an artificial flavor.
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`22.
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`The “Trop 50 Farmstand Apple” product, like the other Products identified in this
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`action, does not inform consumers that Defendant adds artificial flavor to the product.
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`23.
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`Below is a true and accurate copy of the front label of the “Trop 50 Farmstand
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`Apple” product:
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`//
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`//
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`//
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`//
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`24.
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`The ingredient statement on the “Trop 50 Farmstand Apple” Product label reads,
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`“Filtered water, apple juice concentrate, malic acid, natural flavor, citric acid, ascorbic acid
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`(vitamin C), apple juice concentrate (color), purified stevia leaf extract, vitamin E acetate (vitamin
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`E), hibiscus juice concentrate (color).” (emphasis added)
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`25.
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`26.
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`This label violates federal and state law and deceives consumers.
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`The “malic acid” that Defendant adds to this Product is an artificial flavoring agent
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`and functions as an artificial flavor in the Product.
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`27.
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`Under federal and state law, Defendant must prominently disclose on the Product
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`label that the “Trop 50 Farmstand Apple” product contains artificial flavor.
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`28.
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`29.
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`30.
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`Defendant fails to do so, misbranding the Product and deceiving consumers.
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`The other Products identified in this action are similarly misbranded.
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`A true and accurate copy of the front of Tropicana’s “100% Juice” “Apple Juice”
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`Product and the ingredients list is reproduced below:
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`31.
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`The ingredient statement on the “100% Juice” “Apple Juice” Product label reads,
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`“Apple juice from concentrate (filtered water and concentrated apple juice), natural flavors, malic
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`acid and ascorbic acid (vitamin C).” (emphasis added)
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`32.
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`The malic acid that Defendant adds to this Product is an artificial flavoring agent
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`and functions as an artificial flavor in the Product.
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`33.
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`Defendant does not disclose that the “100% Juice” “Apple Juice” product contains
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`an artificial flavor.
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`34.
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`35.
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`36.
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`This label similarly violates federal and state law and deceives consumers.
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`Defendant markets at least ten such products, listed below (the “Products”).
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`The Products include:
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`1. Trop 50 “Farmstand Apple”
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`2. Tropicana “100% Juice” Apple Juice
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`3. Trop 50 No Pulp
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`4. Trop 50 Orange Mango
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`5. Trop 50 Orange Peach
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`6. Trop 50 Pomegranate Blueberry
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`7. Trop 50 with Calcium & Vitamin D
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`8. Trop 50 with Vitamin C & Zinc
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`9. Tropicana Grape Drink
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`10. Tropicana “Fruit Medley”
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`37.
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`38.
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`All the Products contain artificial dl-malic acid, an artificial flavoring agent.
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`None of the Products discloses on either the front or back-label that the Product
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`contains artificial flavoring.
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`39.
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`Defendant failed to include the legally-required “Artificially flavored” or
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`“Artificial flavor” disclosure on all of the Products’ labels.
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`40.
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`41.
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`The Products therefore violate federal and state law in multiple respects.
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`First, because each Product contains added flavoring ingredients that simulate and
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`reinforce the characterizing flavor, each Product’s front label is required by both federal and state
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`law to disclose that fact. (see, e.g., Illinois Consumer Fraud Act; California Health & Safety Code
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`§ 109875 et seq., (Sherman Law), incorporating 21 C.F.R. § 101.22.).1
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`42.
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`Second, each Product’s ingredients list violates federal and state law because it
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`misleadingly identifies the added dl-malic acid only as generic “malic acid” instead of using the
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`specific, non-generic name of the ingredient. (See 21 C.F.R. § 101.4(a)(1)).
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`1 California’s Sherman Food, Drug and Cosmetic Act, California Health & Safety Code § 109875 et seq.,
`incorporates into California law all regulations enacted pursuant to the U.S. Food Drug and Cosmetic Act.
`An act or omission that would violate an FDCA regulation necessarily violates California’s Sherman Law.
`(Health & Safety Code, § 110100.) Other states’ statutory and common law function similarly or in some
`cases identically.
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`43.
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`Further, Defendant conceals that the Products contain artificial flavor by omitting
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`the federal and state required ingredient disclosure statements in the Product ingredient lists.
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`44.
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`Defendant labels the Products as if they are made with only natural flavors even
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`though the Products all contain dl-malic acid, an artificial flavor made from petrochemicals.
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`A compound found in nature is sometimes referred to informally as malic acid.
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`That natural compound, however, is not what Defendant puts in the Product.
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`Instead, Defendant flavors the Product with the synthetic industrial chemical dl-
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`45.
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`46.
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`47.
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`malic acid.2
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`48.
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`This type of “malic acid” is not naturally-occurring but is manufactured in
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`petrochemical plants from benzene or butane – components of gasoline and lighter fluid,
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`respectively – through a series of chemical reactions, some of which involve highly toxic chemical
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`precursors and byproducts.
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`49.
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`Analytical testing of the Tropicana “Trop50 No Pulp” Product on 7/29/2019
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`confirmed that the compound added to the Product is the artificial dl-malic acid, an inexpensive
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`synthetic compound made from petrochemicals.
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`50.
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`Both the natural and unnatural forms of malic acid are considered “GRAS”
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`(generally recognized as safe) for use as flavorings in foods marketed to adults3; the d-malic acid
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`form, however, has never been extensively studied for its health effects in human beings. Both
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`forms confer a “tart, fruity” flavor to food products.4
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`2 D-malic acid is also called d-hydroxybutanedioic acid or (R)-(+)-2-Hydroxysuccinic acid.
`3 The dl- form of malic acid, the one used by Defendants, is forbidden for use in baby foods out of health
`concerns if consumed by infants.
`4 https://thechemco.com/chemical/malic-acid/ (last visited June 20, 2019).
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`51.
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`Although the malic acid Defendant uses in the Products to simulate the
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`characterizing fruit flavors is dl-malic acid – the artificial petrochemical – Defendant pretends
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`otherwise, conflating the natural and artificial flavorings and deceiving consumers.
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`52.
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`Because the Products contain an artificial flavor, both federal and state law require
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`the Product’s front and back labels to inform consumers that the Product contains artificial
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`flavoring. (See, e.g., 21 C.F.R. § 101.22.)
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`53.
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`Under FDA regulations, any recognizable primary flavor identified on the front
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`label of a food product is a “characterizing flavor” for the Product. (21 C.F.R. § 101.22.)
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`54.
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`Under federal and state law, if “the label, labeling, or advertising of a food makes
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`any direct or indirect representations with respect to the primary recognizable flavors by word,
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`vignette, e.g., description of a fruit, or other means” then “such flavor shall be considered the
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`characterizing flavor.” (see 21 C.F.R. § 101.22(i).)
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`55.
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` “Apple” is a primary recognizable flavor identified on the “Apple Juice” and “Trop
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`50 Farmstand Apple” Product front labels. Apple is a characterizing flavor for these Products under
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`state and federal regulations.
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`56.
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`“Orange” is a primary recognizable flavor identified on several of the Trop 50
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`Products’ front labels. Orange is a characterizing flavor for these Products.
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`57.
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`The fruits named and illustrated on the other Products’ front labels are similarly
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`characterizing flavors for those Products.
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`58.
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`If any characterizing flavor of a Product is not created exclusively by the identified
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`ingredient, the product’s front label must state that the product is flavored with either, or both of,
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`natural or artificial flavorings.
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`59.
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`If any artificial flavor is present in the product which “simulates, resembles or
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`reinforces” the characterizing flavor, the food must be prominently labeled as “Artificially
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`Flavored.” (see, e.g., California’s Sherman Law, incorporating 21 C.F.R. § 101.22(i)(3), (4).)
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`60.
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`The synthetic dl-malic acid in the Products simulates, resembles, and reinforces the
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`characterizing fruit flavors for each of the Products.
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`61.
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`Defendant was therefore required to place prominently on each Product’s front
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`label a notice sufficient to allow reasonable consumers to understand that the Product contained
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`artificial flavorings.
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`62.
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`63.
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`Defendant failed to do so, deceiving consumers and violating federal and state law.
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`Defendant intended that Plaintiffs and the proposed Class rely on those omissions
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`and affirmative misrepresentations.
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`64.
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`Accordingly, Plaintiffs and the Class were unaware that the Products contained
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`artificial flavors when they purchased them.
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`65. When purchasing the Products, Plaintiffs and class members were seeking products
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`of particular qualities that were flavored only with natural ingredients as described on the labels
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`and which did not contain artificial flavoring.
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`66.
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`67.
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`Plaintiffs are not alone in these purchasing preferences.
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`As reported in Forbes Magazine, 88% of consumers polled indicated they would
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`pay more for foods perceived as natural or healthy. “All demographics [of consumers] – from
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`Generation Z to Baby Boomers – say they would pay more” for such products, specifically
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` including foods with no artificial flavors.5 Forty-one percent (41%) of consumers rated the
`absence of artificial flavors in food products as “Very Important,” and eighty percent (80%) of
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`North American consumers are willing to pay a premium for foods with no artificial ingredients.6
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`68.
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`Defendant’s labeling and advertising reflect these consumer preferences – not by
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`making the Products solely with natural ingredients, but instead by concealing the fact that the
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`Products are artificially flavored.
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`69.
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`The Illinois Consumer Fraud and Deceptive Business Practices Act (the “ICFA”),
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`815 ILCS 505/1, et seq., prohibits the use of unfair or deceptive business practices in the conduct
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`of trade or commerce.
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`70.
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`Under the Illinois Food, Drug and Cosmetic Act (410 ILCS 620/11), a food is
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`misbranded:
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`(a) If its labeling is false or misleading in any particular, [or,]
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`. . .
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`(k) If it bears or contains any artificial flavoring, artificial coloring or chemical
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`preservative, unless it bears labeling stating that fact.
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`71.
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`Similarly, California’s Health & Safety Code, and other states’ applicable codes,
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`state that “[a]ny food is misbranded if it is bears or contains any artificial flavoring, artificial
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`
`5 Consumers Want Healthy Foods - And Will Pay More For Them”; Forbes Magazine, February 15, 2015.
`https://www.forbes.com/sites/nancygagliardi/2015/02/18/consumers-want-healthy-foods-and-will-pay-
`more-for-them/#4b8a6b4b75c5; (last visited March 22, 2018).
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`6 The Nielsen Company, Global Health and Wellness Survey, “Healthy Eating Habits Around the World,”
`2015; https://www.nielsen.com/content/dam/nielsenglobal/eu/
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`nielseninsights/pdfs/Nielsen%20Global%20Health%20and%20Wellness%20Report%20-
`%20January%202015.pdf; (last visited March 22, 2018).
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` coloring, or chemical preservative, unless its labelling states that fact.” (California Health &
`Safety Code, § 110740.)
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`72.
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`Federal and state law therefore require Defendant to include sufficient notice on the
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`Products’ labels to alert consumers that the Product is artificially flavored.
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`73.
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`Defendant failed to do so. Accordingly, Defendant’s Products are misbranded and
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`illegal to distribute or sell in the U.S. and in any state in the U.S.
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`74.
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`Defendant’s conduct violated the Illinois Consumer Fraud and Deceptive Business
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`Practices Act ("Act"), 815 ILCS 505/1, et seq., as well as 815 Illinois Compiled Statutes (“ILCS”)
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`510/2 (False advertising), and other states’ similarly applicable laws.
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`75.
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`Defendant was aware that consumers, like Plaintiffs and the Class, prefer natural
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`products to those that are artificially flavored.
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`76.
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`Defendant intended for Plaintiffs and the Class to be deceived, and Plaintiffs and
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`the Class actually were deceived by the unlawful labeling.
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`77.
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`Defendant deceived Plaintiffs and the Class into purchasing the Products by
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`unlawfully concealing that they are artificially flavored.
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`78.
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`Plaintiffs and the Class lost money as a result of Defendant’s conduct because they
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`would not have purchased the Product or would not have paid as much as they had in the absence
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`of Defendant’s misrepresentations and omissions.
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`B. Plaintiffs’ Purchases of the Products
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`79.
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`Plaintiff Willard purchased one or more of the Products several times since April
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`2018 in Cook County, Illinois, during the Class Period defined herein.
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`80.
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`Plaintiff Willard purchased one of the Products most recently on January 5, 2020
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`at a Jewel-Osco supermarket located at 944 S. York Road, in Elmhurst, Illinois.
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`81.
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`Plaintiff Blackman purchased one or more of the Products several times since 2016
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`at various locations in San Diego County, California during the Class Period defined herein.
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`82.
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`Both Plaintiffs were deceived by, and justifiably relied upon, the Products’
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`deceptive labeling. Plaintiffs, like any reasonable consumers, believed consistent with U.S. and
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`state law that if a beverage label does not include a statement that it is artificially flavored then
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`that beverage does not contain artificially flavoring ingredients.
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`83.
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`Plaintiffs justifiably relied on Defendant’s omission from the Product label the
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`legally required disclosure of artificial flavoring.
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`84.
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`Plaintiffs, as reasonable consumers, are not required to subject consumer food
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`products to laboratory analysis, to scrutinize the labels on the back of products to discover that a
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`front label is false and misleading, or to search the labels for information that federal regulations
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`require be displayed prominently on the front – and, in fact, under state law are entitled to rely on
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`statements that Defendant deliberately places on the Products’ labeling.
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`85.
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`Defendant, but not Plaintiffs, knew or should have known that this labeling was in
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`violation of federal regulations and state law.
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`86.
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`Because Plaintiffs reasonably assumed the Products were free of artificial flavoring
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`based on the Products’ labels when they were not, Plaintiffs did not receive the benefit of their
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`purchases. Instead of receiving the benefit of a product free of artificial flavoring, Plaintiffs
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`received a Product that was unlawfully labeled to deceive consumers into believing that it was
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`naturally flavored and contained no artificial flavoring, in violation of federal and state labeling
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`regulations.
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`87.
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`Plaintiffs would not have purchased the Products in the absence of Defendant’s
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`misrepresentations and omissions or would only have been willing to pay less for the Products
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`than they did.
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`88.
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`The Products were worth less than what Plaintiffs paid, and they would not have
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`paid as much as they did for the Products absent Defendant’s false and misleading statements and
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`omissions.
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`89.
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`90.
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`Plaintiffs therefore lost money as a result of Defendant’s unlawful behavior.
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`Plaintiffs and the Class altered their position to their detriment and suffered a loss
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`in an amount equal to the amounts they paid for the Products.
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`91.
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`Plaintiffs intend to, seek to, and will purchase the Products again when they can do
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`so with the assurance that the Products’ labels, which indicate that the Products are naturally
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`flavored, are lawful and consistent with the Products’ ingredients.
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`CLASS ACTION ALLEGATIONS
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`92.
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`Plaintiffs brings this action on behalf of themselves and all others similarly situated
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`(the “Class”), as well as several Sub-Classes, pursuant to Federal Rules of Civil Procedure 23(a),
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`23(b)(2), and 23(b)(3).
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`93.
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`The Class is defined as follows:
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`All citizens of U.S. states and territories who made retail purchases of the Products in the
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`U.S. for personal use and not for resale, excluding Defendant and Defendant’s officers,
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`directors, employees, agents and affiliates, and the Court and its staff, on or after
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`February 2014 and until notice is disseminated to the Class (the “Class”).
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`94.
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`An Illinois Sub-Class is defined as follows:
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`Case: 1:20-cv-01501 Document #: 1 Filed: 02/28/20 Page 15 of 31 PageID #:15
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`All Illinois citizens who made retail purchases of the Products in Illinois, for personal
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`use and not for resale, excluding Defendant and Defendant’ officers, directors,
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`employees, agents and affiliates, and the Court and its staff, on or after February, 2015
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`and until notice is disseminated to the Class (the “Class”).
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`95.
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`A California Sub-Class is defined as follows:
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`All citizens of the State of California who made retail purchases of the Products within
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`California, for personal use and not for resale, excluding Defendant and Defendant’s
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`officers, directors, employees, agents and affiliates, and the Court and its staff, on or after
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`February, 2014 and until notice is disseminated to the Class.
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`96.
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`During the Class Period, the Products unlawfully contained the undisclosed
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`artificial flavoring ingredient dl-malic acid and were otherwise improperly labeled. Defendant
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`failed to label the Products as required by federal and state law.
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`97.
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`During the Class Period, the Class purchased the misbranded Products, and paid a
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`price premium for the Products compared to similar products lawfully labeled.
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`98.
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`The proposed Class and Sub-Classes meet all criteria for a class action, including
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`numerosity, commonality, typicality, predominance, superiority, and adequacy of representation.
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`99.
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`This action has been brought and may properly be maintained as a class action
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`against Defendant. While the exact number and identities of other Class Members are unknown
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`to Plaintiffs at this time, Plaintiffs are informed and believe that there are hundreds of thousands
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`of members in the Class. The members of the Class are so numerous that joinder of all members
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`is impracticable, and the disposition of their claims in a class action rather than in individual
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`actions will benefit the parties and the courts.
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`Case: 1:20-cv-01501 Document #: 1 Filed: 02/28/20 Page 16 of 31 PageID #:16
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`100. The proposed Class satisfies typicality. Plaintiffs’ claims are typical of and are not
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`antagonistic to the claims of other Class members. Plaintiffs and the Class members all purchased
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`one or more of the Products, were deceived by the false and deceptive labeling, and lost money as
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`a result of purchasing Products that were illegal to sell in the United States.
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`101. The proposed Class satisfies superiority. A class action is superior to any other
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`means for adjudication of the Class members’ claims because each Class member’s claim is
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`modest, based on the Product’s retail purchase price which is generally less than $5.00 per retail
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`unit. It would be impractical for individual Class members to bring individual lawsuits to vindicate
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`their claims.
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`102. Because Defendant’s misrepresentations were made on the labels of the Products,
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`all Class members including Plaintiffs were exposed to and continue to be exposed to the omissions
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`and affirmative misrepresentations. If this action is not brought as a class action, then Defendant
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`can continue to deceive consumers and violate state and federal law with impunity.
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`103. The proposed Class representatives satisfy adequacy of representation. Plaintiffs
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`are adequate representatives of the Class as they seek relief for the Class, their interests do not
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`conflict with the interests of the Class members, and they have no interests antagonistic to those
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`of other Class members. Plaintiffs have retained counsel competent in the prosecution of consumer
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`fraud and class action litigation.
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`104. There is a well-defined community of interest in questions of law and fact common
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`to the Class, and these predominate over any individual questions affecting individual Class
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`members in this action.
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`105. Questions of law and fact common to Plaintiffs and the Class include:
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`Case: 1:20-cv-01501 Document #: 1 Filed: 02/28/20 Page 17 of 31 PageID #:17
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`i. Whether Defendant failed to disclose the presence of the artificial flavoring
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`ingredient dl-malic acid in the Product;
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`ii. Whether Defendant’s labeling omissions and representations constituted
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`false advertising under state and federal law;
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`iii. Whether Defendant’s conduct violated Federal regulations;
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`iv. Whether Defendant’s conduct constituted a violation of California’s Unfair
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`Competition Law;
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`v. Whether Defendant’s conduct constituted a violation of California’s
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`Consumer Legal Remedies Act;
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`vi. Whether Defendant’s conduct constituted a violation of The Illinois
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`Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 502/1 et
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`seq. (“ICFA”).
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`vii. Whether Defendant’s conduct constituted a violation of state common law;
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`viii. Whether the Class is entitled to restitution, rescission, actual damages,
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`punitive damages, attorney fees and costs of suit, and injunctive relief; and
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`ix. Whether members of the Class are entitled to any such further relief as the
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`Court deems appropriate.
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`106. Plaintiffs will fairly and adequately protect the interests of the Class, have no
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`interest that is incompatible with the interests of the Class, and have retained counsel competent
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`and experienced in class litigation.
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`107. Defendant has acted on grounds applicable to the entire Class, making final
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`injunctive relief or declaratory relief appropriate for the Class as a whole.
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`108. Class treatment is therefore appropriate under federal law.
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`Case: 1:20-cv-01501 Document #: 1 Filed: 02/28/20 Page 18 of 31 PageID #:18
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`109. Class damages will be adduced at trial through expert testimony and other
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`competent evidence.
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`110. For consumers who might have bought the Products had they been labeled
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`accurately and priced fairly, the price-premium consumers paid for the falsely-advertised Products,
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`as a percentage of the Products’ retail price, is a proper measure of those class members’ damages.
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`111. For consumers who would not have purchased the Products at all, had they known
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`the Products contained artificial flavors, the difference between the retail price paid and the
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`intrinsic value of the ingredients is one proper measure of damages.
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`112. Food-industry consumer research is consistent and readily supports such estimates
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`of price-premium, as consumers qualitatively and quantitatively report that they seek out, value,
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`and are willing to pay a premium for food products with no artificial flavors and some consumers
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`simply will not knowingly purchase food products that contain artificial flavors.
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`113. On information and belief, based on publicly available information, Plaintiffs allege
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`that the total amount in controversy exclusive of fees, costs, and interest, based on the estimated
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`price premium and revenue for sales to the Class during the proposed Class Period, exceeds $5
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`million.
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`CAUSES OF ACTION
`I.
`ILLINOIS CONSUMER FRAUD AND
`DECEPTIVE BUSINESS PRACTICES ACT – 815 ILCS § 505/1, 2
`(Plaintiff Willard, on behalf of Class and Illinois Sub-Class)
` Plaintiff Willard re-alleges and incorporates by reference the allegations made
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`114.
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`elsewhere in the Complaint as if set forth in full herein.
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`115. Defendant’s conduct violated the Illinois Consumer Fraud and Deceptive Business
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`Practices Act (“Illinois Consumer Fraud Act” or “ICFA”).
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`Case: 1:20-cv-01501 Document #: 1 Filed: 02/28/20 Page 19 of 31 PageID #:19
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`116. Section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act
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`(“CFA”) declares unlawful “any [u]nfair methods of competition and unfair or deceptive acts or
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`practices, including but not limited to the use or employment of any deception, fraud, false
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`pretense, false promise, misrepresentation or the concealment, suppression or omission of such
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`material fact . . . in the conduct of any trade or commerce . . . whether any person has in fact been
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`misled, deceived or damaged thereby.”
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`117. Defendant’s actions alleged herein violated the Act.
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`118. Defendant committed multiple deceptive acts or practices.
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`119. Defendant intended that Plaintiff Willard and the Class rely on that deception.
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`120. Plaintiffs and the Class and Illinois subclass actually did rely on that deception.
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`121. Defendant’s conduct was in the course of trade or commerce.
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`122. Plaintiff Willard and the Class suffered damage as a result of those violations.
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`123. Defendant violated the ICFA by engaging in unfair and/or deceptive practices,
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`including, but not limited to, the misrepresentation, concealment, suppression, or omission of
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`material facts, while participating in trade or commerce with the knowledge and/or intent that the
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`State of Illinois, its citizens and others would rely on their deceptive conduct.
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`124.
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`In so doing, Defendant acted with reckless disregard meriting an award of punitive
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`damages.
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`125. Defendant intended that Plaintiff Willard and each of the other members of the
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`Class and Illinois Sub-Class would rely upon their deceptive conduct, and a reasonable person
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`would in fact be misled by this deceptive conduct.
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`Case: 1:20-cv-01501 Document #: 1 Filed: 02/28/20 Page 20 of 31 PageID #:20
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`126. As a result of the Defendant’s use of unfair or deceptive acts or business practices,
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`Plaintiff Willard and each of the other members of the Class and Illinois Sub-Class have sustained
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`damages in an amount to be proven at trial.
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`127. Had Defendant disclosed the true nature of its Product, Plaintiff Willard and the
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`other class members would not have purchased the Product or would have paid substantially less
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`for the Product.
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`II.
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