Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 1 of 22 PageID #:1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`)
`)
`
`))
`
`))
`
`))
`
`))
`
`)
`
`KENNETH MEYERS,
`on behalf of Plaintiff and the
`class members described herein,
`
`Plaintiff,
`
`vs.
`
`ARIZONA BEVERAGES USA LLC,
`
`Defendant.
`
`COMPLAINT -- CLASS ACTION
`
`INTRODUCTION
`
`1.
`
`Plaintiff Kenneth Meyers brings this action to secure redress for the
`
`misrepresentation by Defendant AriZona Beverages USA LLC ("AriZona") of the calorie
`
`content of its Arnold Palmer zero calorie drink.
`
`JURISDICTION AND VENUE
`
`2.
`
`This Court has subject matter jurisdiction under 28 U.S.C. §1332(d). The
`
`classwide amount in controversy exceeds $5 million, exclusive of interest and costs. There are
`
`more than 100 class members. Plaintiff is of diverse citizenship to the Defendant.
`
`3.
`
`Venue and personal jurisdiction are proper because Plaintiff purchased
`
`Defendant's mislabeled product in Chicago, Illinois.
`
`PARTIES
`
`4.
`
`Plaintiff Kenneth Meyers is a citizen of Michigan and a resident of Lawrence,
`
`Michigan. He formerly resided in Illinois and frequently visits Illinois, Indiana, and Wisconsin.
`
`-1-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 2 of 22 PageID #:2
`
`5.
`
`Defendant AriZona is a limited liability company organized under the law of New
`
`York with its principal offices at 60 Crossways Park Dr. W., Woodbury, NY 11797. It does
`
`business in Illinois. Its registered agent and office is 208 S. LaSalle St., Suite 814, Chicago, IL
`
`60604.
`
`6.
`
`On information and belief, the owner of AriZona is Hornell Brewing Co., Inc.,
`
`doing business as Vultaggio & Sons. This is a New York corporation with its principal offices
`
`at 60 Crossways Park Dr. W., Woodbury, NY 11797.
`
`7.
`
`8.
`
`AriZona is therefore a citizen of New York.
`
`AriZona develops and markets beverage products throughout the United States.
`
`The products are available at numerous retail and online outlets, including its own website,
`
`www.drinkarizona.com. Defendant has sales of about $3 billion per year.
`
`9.
`
`Defendant is able to identify many purchasers of its products, such as those made
`
`through its website.
`
`FACTS
`
`10.
`
`Defendant AriZona makes and sells, through its website and otherwise, the
`
`Arnold Palmer drink, consisting of ½ tea and ½ lemonade.
`
`11.
`
`12.
`
`The Arnold Palmer drink was sold in zero calorie, lite and regular versions.
`
`During the three years prior to the filing of this action, Plaintiff made numerous
`
`purchases of zero calorie Arnold Palmer drink, mainly in the 23 fl. oz size.
`
`13.
`
`Plaintiff purchased the zero calorie Arnold Palmer drink at the Walgreens at 189
`
`N. Northwest Hwy, Barrington, IL 60010 on September 20, 2019; the Shell gas station at 106 N.
`
`Northwest Highway, Barrington, IL 60010 on April 8, 2019, and April 9, 2019, and the Shell gas
`
`-2-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 3 of 22 PageID #:3
`
`station at 100 W. Northwest Hwy, Barrington, IL 60010 on July 13, 2019.
`
`14.
`
`Plaintiff purchased the zero calorie Arnold Palmer drink at the BP gas station at
`
`112 S. Main Street, Walworth, WI 53184, on June 14, 2019, June 15, 2019, and September 22,
`
`20219.
`
`15.
`
`Plaintiff purchased the zero calorie Arnold Palmer drink at the Walgreens at 580
`
`Indian Boundary Rd., Chesterton, IN 46304, on July 12, 2019; and the BP gas station at 525
`
`Indian Boundary Rd., Chesterton, IN 46304, on April 10, 2019, April 22, 2019, July 12, 2019,
`
`and September 23, 2019.
`
`16.
`
`Plaintiff purchased the zero calorie Arnold Palmer drink at the Shell gas station at
`
`7000 Westnedge, Portage, MI 49002.
`
`17.
`
`Plaintiff purchased the zero calorie drink at many other times and locations as
`
`well.
`
`18.
`
`Plaintiff is health conscious and specifically chose the zero calorie Arnold Palmer
`
`drinks instead of one of the other varieties because of its zero calories. Had he known it was not
`
`zero calories he would have purchased another product.
`
`19.
`
`The representation that the product had zero calories was prominently featured on
`
`the front of the can, on the panel on the back, and in advertising.
`
`20.
`
`On information and belief, the zero calorie drink did not qualify for labeling as
`
`such and was renamed “diet.”
`
`21.
`
` Exhibit A depicts the zero calorie version of the drink next to a can of the diet
`
`version.
`
`22.
`
`Under Food & Drug Administration regulations, a product cannot be labeled or
`
`-3-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 4 of 22 PageID #:4
`
`represented as having zero calories unless a standard serving has no more than five calories.
`
`23.
`
`24.
`
`In fact, the zero calorie version of the drink did not have less than five calories.
`
`Recently, the Food & Drug Administration required AriZona to relabel the "zero
`
`calorie" product as a "diet" product with 15 calories per can.
`
`25.
`
`Because of the multiple versions of the product, the reason why a person would
`
`purchase the zero calorie version is to get a product with zero calories. Had Plaintiff known it
`
`was not zero calories he would have purchased another product.
`
`26.
`
`27.
`
`Plaintiff was damaged by paying money in reliance on the representations.
`
`Defendant’s representations gave it an unfair competitive advantage over
`
`products that were honestly labeled.
`
`COUNT I – BREACH OF EXPRESS WARRANTY;
`UNIFORM COMMERCIAL CODE
`
`Plaintiff incorporates paragraphs 1-27.
`
`Under Uniform Commercial Code §2-313, in force throughout the United States
`
`28.
`
`29.
`
`except Louisiana and Puerto Rico (the Illinois citation is 810 ILCS 5/2-313), the representations
`
`on Defendant’s packaging created an express warranty that the contents shall conform to the
`
`representations.
`
`30.
`
`31.
`
`32.
`
`The representation was conveyed directly to the retail purchaser.
`
`Defendant’s representations became a part of the basis of the bargain.
`
`Defendant breached those representations, as described above.
`
`-4-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 5 of 22 PageID #:5
`
`CLASS ALLEGATIONS
`
`33.
`
`Plaintiff brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on behalf
`
`of a class.
`
`34.
`
`The class consists of all persons who purchased in the United States (except
`
`Louisiana and Puerto Rico) Arnold Palmer zero calorie drink on or after a date four years prior
`
`to the filing of this action.
`
`35.
`
`Excluded from the Class are any members of the judiciary assigned to preside
`
`over this matter; any officer or director of Defendant; and any immediate family member, of
`
`such officer or director.
`
`36.
`
`The members of the class are so numerous that joinder of all members is
`
`impracticable. There are thousands of persons in the class.
`
`37.
`
`There are questions of law and fact common to the members of the classes, which
`
`predominate over any questions that affect only individual class members. The predominant
`
`common questions include:
`
`a.
`
`b.
`
`Whether the Arnold Palmer zero calorie drink had zero calories.
`
`Whether Defendant made and breached an express warranty that the
`
`Arnold Palmer zero calorie drink had zero calories.
`
`38.
`
`Plaintiff’s claim is typical of the claims of the class members. All are based on
`
`the same factual and legal theories.
`
`39.
`
`Plaintiff will fairly and adequately represent the interests of the class members.
`
`Plaintiff has retained counsel experienced in consumer class action litigation.
`
`40.
`
`A class action is superior to other alternative methods of adjudicating this
`
`-5-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 6 of 22 PageID #:6
`
`dispute. Individual cases are not economically feasible.
`
`WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
`
`the class, and against Defendant, for:
`
`i.
`
`ii.
`
`iii.
`
`Compensatory damages;
`
`Costs of suit; and
`
`Such other or further relief as the Court deems proper.
`
`COUNT II – BREACH OF IMPLIED WARRANTY;
`UNIFORM COMMERCIAL CODE AND MAGNUSON-MOSS ACT
`
`Plaintiff incorporates paragraphs 1-27.
`
`Under the Uniform Commercial Code – in force throughout the United States
`
`41.
`
`42.
`
`except in Louisiana and Puerto Rico – there is an implied warranty in the sale of goods by a
`
`merchant that the goods shall be merchantable. The Illinois citation is 810 ILCS 5/2-314.
`
`43.
`
`Under UCC §2-314(2), “Goods to be merchantable must be at least such as.... (f)
`
`conform to the promises or affirmations of fact made on the container or label if any.”
`
`44.
`
`The Arnold Palmer zero calorie drinks did not conform to the promises or
`
`affirmations of fact made on the packaging.
`
`CLASS ALLEGATIONS
`
`45.
`
`Plaintiff brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on behalf
`
`of a class.
`
`46.
`
`The class consists of all persons who purchased in the United States (except
`
`Louisiana and Puerto Rico) Arnold Palmer zero calorie drink on or after a date four years prior
`
`to the filing of this action.
`
`47.
`
`Excluded from the Class are any members of the judiciary assigned to preside
`
`-6-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 7 of 22 PageID #:7
`
`over this matter; any officer or director of Defendant; and any immediate family member, of
`
`such officer or director.
`
`48.
`
`The members of the class are so numerous that joinder of all members is
`
`impracticable. There are thousands of persons in the class.
`
`49.
`
`There are questions of law and fact common to the members of the classes, which
`
`predominate over any questions that affect only individual class members. The predominant
`
`common questions include:
`
`a.
`
`b.
`
`Whether the Arnold Palmer zero calorie drink had zero calories.
`
`Whether Defendant made and breached an implied warranty that the
`
`Arnold Palmer zero calorie drink had zero calories.
`
`50.
`
`Plaintiff’s claim is typical of the claims of the class members. All are
`
`based on the same factual and legal theories.
`
`51.
`
`Plaintiff will fairly and adequately represent the interests of the class
`
`members. Plaintiff has retained counsel experienced in consumer class action litigation.
`
`52.
`
`A class action is superior to other alternative methods of adjudicating this
`
`dispute. Individual cases are not economically feasible.
`
`WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
`
`the class, and against Defendant, for:
`
`i.
`
`ii.
`
`Compensatory damages;
`
`Attorney’s fees and litigation expenses (pursuant to 15 U.S.C.
`
`§1610), and costs of suit; and
`
`iii.
`
`Such other or further relief as the Court deems proper.
`
`-7-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 8 of 22 PageID #:8
`
`COUNT III – CONSUMER FRAUD – ILLINOIS
`
`Plaintiff incorporates paragraphs 1-27.
`
`Defendant engaged in unfair and deceptive acts and practices, in violation of §2
`
`53.
`
`54.
`
`of the Illinois Consumer Fraud Act, 815 ILCS 505/2, by representing on the label and otherwise
`
`that the Arnold Palmer zero calorie drink had zero calories.
`
`55.
`
`815 ILCS 505/2 provides:
`
` Sec. 2. Unfair methods of competition and unfair or deceptive acts or practices,
`including but not limited to the use or employment of any deception fraud, false pretense,
`false promise, misrepresentation or the concealment, suppression or omission of any
`material fact, with intent that others rely upon the concealment, suppression or omission
`of such material fact, or the use or employment of any practice described in Section 2 of
`the "Uniform Deceptive Trade Practices Act", approved August 5, 1965, in the conduct
`of any trade or commerce are hereby declared unlawful whether any person has in fact
`been misled, deceived or damaged thereby. In construing this section consideration shall
`be given to the interpretations of the Federal Trade Commission and the federal courts
`relating to Section 5 (a) of the Federal Trade Commission Act.
`
`56.
`
`Section 2 of the Uniform Deceptive Trade Practices Act, 815 ILCS 510/2(a),
`
`defines as a deceptive trade practice “(5) represent[ing] that goods or services have . . .
`
`characteristics, ingredients, uses, benefits, or quantities that they do not have . . . . (7)
`
`represent[ing] that goods or services are of a particular standard, quality, or grade . . . if they are
`
`of another . . . (12) engag[ing] in any other conduct which similarly creates a likelihood of
`
`confusion or misunderstanding.”
`
`57.
`
`The acts of Defendant were done in the course of trade and commerce.
`
`-8-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 9 of 22 PageID #:9
`
`CLASS ALLEGATIONS
`
`58.
`
` Plaintiff brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on behalf
`
`of a class.
`
`59.
`
`The class consists of all persons who purchased in Illinois Arnold Palmer zero
`
`calorie drink on or after a date three years prior to the filing of this action.
`
`60.
`
`Excluded from the Class are any members of the judiciary assigned to preside
`
`over this matter; any officer or director of Defendant; and any immediate family member, of
`
`such officer or director.
`
`61.
`
`The members of the class are so numerous that joinder of all members is
`
`impracticable. There are thousands of persons in the class.
`
`62.
`
`There are questions of law and fact common to the members of the classes, which
`
`predominate over any questions that affect only individual class members. The predominant
`
`common questions include:
`
`a.
`
`b.
`
`c.
`
`Whether the Arnold Palmer zero calorie drink had zero calories.
`
`Whether Defendant falsely represented that the Arnold Palmer zero
`
`calorie drink had zero calories.
`
`Whether such representations violated the Consumer Fraud Act.
`
`63.
`
`Plaintiff’s claim is typical of the claims of the class members. All are based on
`
`the same factual and legal theories.
`
`64.
`
`Plaintiff will fairly and adequately represent the interests of the class members.
`
`Plaintiff has retained counsel experienced in consumer class action litigation.
`
`65.
`
`A class action is superior to other alternative methods of adjudicating this
`
`-9-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 10 of 22 PageID #:10
`
`dispute. Individual cases are not economically feasible.
`
`WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
`
`the class, and against Defendant, for:
`
`i.
`
`ii.
`
`iii.
`
`iv.
`
`Compensatory damages;
`
`Punitive damages;
`
`Attorney’s fees, litigation expenses, and costs of suit; and
`
`Such other or further relief as the Court deems proper.
`
`COUNT IV – CONSUMER FRAUD – WISCONSIN
`
`Plaintiff incorporates paragraphs 1-27.
`
`Defendant engaged in unfair and deceptive acts and practices, in violation of Wis.
`
`66.
`
`67.
`
`Stats. §100.18, by representing on the label and otherwise that the Arnold Palmer zero calorie
`
`drink had zero calories.
`
`68. Wis.Stats. §100.18 provides:
`
`100.18. Fraudulent representations.
`
`(1) No person, firm, corporation or association, or agent or employee thereof, with intent
`to sell, distribute, increase the consumption of or in any wise dispose of any real estate,
`merchandise, securities, employment, service, or anything offered by such person, firm,
`corporation or association, or agent or employee thereof, directly or indirectly, to the
`public for sale, hire, use or other distribution, or with intent to induce the public in any
`manner to enter into any contract or obligation relating to the purchase, sale, hire, use or
`lease of any real estate, merchandise, securities, employment or service, shall make,
`publish, disseminate, circulate, or place before the public, or cause, directly or indirectly,
`to be made, published, disseminated, circulated, or placed before the public, in this state,
`in a newspaper, magazine or other publication, or in the form of a book, notice, handbill,
`poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or
`television station, or in any other way similar or dissimilar to the foregoing, an
`advertisement, announcement, statement or representation of any kind to the public
`relating to such purchase, sale, hire, use or lease of such real estate, merchandise,
`securities, service or employment or to the terms or conditions thereof, which
`advertisement, announcement, statement or representation contains any assertion,
`
`-10-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 11 of 22 PageID #:11
`
`representation or statement of fact which is untrue, deceptive or misleading.
`
`(11)
`
`(b)
`
`2. Any person suffering pecuniary loss because of a violation of this
`section by any other person may sue in any court of competent jurisdiction
`and shall recover such pecuniary loss, together with costs, including
`reasonable attorney fees . . . .
`
`3. No action may be commenced under this section more than 3 years after
`the occurrence of the unlawful act or practice which is the subject of the
`action. . . .
`
`CLASS ALLEGATIONS
`
`69.
`
` Plaintiff brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on behalf
`
`of a class.
`
`70.
`
`The class consists of all persons who purchased in Wisconsin Arnold Palmer zero
`
`calorie drink on or after a date three years prior to the filing of this action.
`
`71.
`
`Excluded from the Class are any members of the judiciary assigned to preside
`
`over this matter; any officer or director of Defendant; and any immediate family member, of
`
`such officer or director.
`
`72.
`
`The members of the class are so numerous that joinder of all members is
`
`impracticable. There are thousands of persons in the class.
`
`73.
`
`There are questions of law and fact common to the members of the classes, which
`
`predominate over any questions that affect only individual class members. The predominant
`
`common questions include:
`
`a.
`
`b.
`
`Whether the Arnold Palmer zero calorie drink had zero calories.
`
`Whether Defendant falsely represented that the Arnold Palmer zero
`
`-11-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 12 of 22 PageID #:12
`
`calorie drink had zero calories.
`
`c.
`
`Whether such representations violated Wis.Stats. §100.18.
`
`74.
`
`Plaintiff’s claim is typical of the claims of the class members. All are based on
`
`the same factual and legal theories.
`
`75.
`
`Plaintiff will fairly and adequately represent the interests of the class members.
`
`Plaintiff has retained counsel experienced in consumer class action litigation.
`
`76.
`
`A class action is superior to other alternative methods of adjudicating this
`
`dispute. Individual cases are not economically feasible.
`
`WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
`
`the class, and against Defendant, for:
`
`i.
`
`ii.
`
`iii.
`
`iv.
`
`Compensatory damages;
`
`Punitive damages;
`
`Attorney’s fees, litigation expenses, and costs of suit; and
`
`Such other or further relief as the Court deems proper.
`
`COUNT V – CONSUMER FRAUD – INDIANA
`
`Plaintiff incorporates paragraphs 1-27.
`
`Defendant violated Ind. Code §24-5-0.5-3 by representing on the label and
`
`77.
`
`78.
`
`otherwise that the Arnold Palmer zero calorie drink had zero calories.
`
`79.
`
`Ind. Code §24-5-0.5-3 provides:
`
`(a) A supplier may not commit an unfair, abusive, or deceptive act, omission, or practice
`in connection with a consumer transaction. Such an act, omission, or practice by a
`supplier is a violation of this chapter whether it occurs before, during, or after the
`transaction. An act, omission, or practice prohibited by this section includes both implicit
`and explicit misrepresentations.
`
`-12-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 13 of 22 PageID #:13
`
`(b) Without limiting the scope of subsection (a), the following acts, and the following
`representations as to the subject matter of a consumer transaction, made orally, in
`writing, or by electronic communication, by a supplier, are deceptive acts:
`
`(1) That such subject of a consumer transaction has sponsorship, approval,
`performance, characteristics, accessories, uses, or benefits it does not have which
`the supplier knows or should reasonably know it does not have.
`
`(2) That such subject of a consumer transaction is of a particular standard, quality,
`grade, style, or model, if it is not and if the supplier knows or should reasonably
`know that it is not. . . .
`
`(c) Any representations on or within a product or its packaging or in advertising or
`promotional materials which would constitute a deceptive act shall be the deceptive act
`both of the supplier who places such representation thereon or therein, or who authored
`such materials, and such other suppliers who shall state orally or in writing that such
`representation is true if such other supplier shall know or have reason to know that such
`representation was false. . . .
`
`80.
`
`Under Ind. Code §24-5-0.5-4, Plaintiff may bring suit for actual damages or $500,
`
`whichever is greater, subject to increase to $1,000 if the act was willful, plus attorney’s fees.
`
`CLASS ALLEGATIONS
`
`81.
`
` Plaintiff brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on behalf
`
`of a class.
`
`82.
`
`The class consists of all persons who purchased in Indiana Arnold Palmer zero
`
`calorie drink on or after a date one year prior to the filing of this action.
`
`83.
`
`Excluded from the Class are any members of the judiciary assigned to preside
`
`over this matter; any officer or director of Defendant; and any immediate family member, of
`
`such officer or director.
`
`84.
`
`The members of the class are so numerous that joinder of all members is
`
`impracticable. There are thousands of persons in the class.
`
`85.
`
`There are questions of law and fact common to the members of the classes, which
`
`-13-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 14 of 22 PageID #:14
`
`predominate over any questions that affect only individual class members. The predominant
`
`common questions include:
`
`a.
`
`b.
`
`c.
`
`Whether the Arnold Palmer zero calorie drink had zero calories.
`
`Whether Defendant falsely represented that the Arnold Palmer zero
`
`calorie drink had zero calories.
`
`Whether such representations violated Ind. Code § 24-5-0.5-3.
`
`86.
`
`Plaintiff’s claim is typical of the claims of the class members. All are based on
`
`the same factual and legal theories.
`
`87.
`
`Plaintiff will fairly and adequately represent the interests of the class members.
`
`Plaintiff has retained counsel experienced in consumer class action litigation.
`
`88.
`
`A class action is superior to other alternative methods of adjudicating this
`
`dispute. Individual cases are not economically feasible.
`
`WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
`
`the class, and against Defendant, for:
`
`i.
`
`ii.
`
`iii.
`
`iv.
`
`Compensatory damages;
`
`Statutory damages;
`
`Attorney’s fees, litigation expenses, and costs of suit; and
`
`Such other or further relief as the Court deems proper.
`
`-14-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 15 of 22 PageID #:15
`
`COUNT VI – COMMON LAW FRAUD
`
`Plaintiff incorporates paragraphs 1-27.
`
`Defendants committed fraud by representing on the label and otherwise that
`
`89.
`
`90.
`
`the Arnold Palmer zero calorie drink had zero calories.
`
`CLASS ALLEGATIONS
`
`91.
`
`Plaintiff brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on behalf
`
`of a class.
`
`92.
`
`The class consists of all persons who purchased in the United States Arnold
`
`Palmer zero calorie drink on or after a date five years prior to the filing of this action.
`
`93.
`
`Excluded from the Class are any members of the judiciary assigned to preside
`
`over this matter; any officer or director of Defendant; and any immediate family member, of
`
`such officer or director.
`
`94.
`
`The members of the class are so numerous that joinder of all members is
`
`impracticable. There are thousands of persons in the class.
`
`95.
`
`There are questions of law and fact common to the members of the classes, which
`
`predominate over any questions that affect only individual class members. The predominant
`
`common questions include:
`
`a.
`
`b.
`
`c.
`
`Whether the Arnold Palmer zero calorie drink had zero calories.
`
`Whether Defendant falsely represented that the Arnold Palmer zero
`
`calorie drink had zero calories.
`
`Whether such representations were fraudulent.
`
`96.
`
`Plaintiff’s claim is typical of the claims of the class members. All are based on
`
`-15-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 16 of 22 PageID #:16
`
`the same factual and legal theories.
`
`97.
`
`Plaintiff will fairly and adequately represent the interests of the class members.
`
`Plaintiff has retained counsel experienced in consumer class action litigation.
`
`98.
`
`A class action is superior to other alternative methods of adjudicating this
`
`dispute. Individual cases are not economically feasible.
`
`WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
`
`the class, and against Defendant, for:
`
`i.
`
`ii.
`
`iii.
`
`iv.
`
`Compensatory damages;
`
`Punitive damages;
`
`Costs of suit; and
`
`Such other or further relief as the Court deems proper.
`
`COUNT VII – UNJUST ENRICHMENT
`
`99.
`
`Plaintiff incorporates paragraphs 1-27.
`
`100. Defendant obtained money to which it was not entitled by selling the Arnold
`
`Palmer drink as having zero calories.
`
`101. Defendant had knowledge of the benefit conferred upon them by Plaintiff and he
`
`class members. Defendant made a calculated profit from the sales of its product, while Plaintiff
`
`and others like him suffered damages as a result of the transactions.
`
`102. Defendant has voluntarily and deliberately accepted and retained those
`
`profits and benefits, without delivering the product promised.
`
`103. Defendant’s retention of the money they obtained constitutes unjust enrichment.
`
`-16-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 17 of 22 PageID #:17
`
`CLASS ALLEGATIONS
`
`104.
`
`Plaintiff brings this claim, pursuant to Fed.R.Civ.P. 23(a) and 23(b)(3), on behalf
`
`of a class.
`
`105.
`
`The class consists of all persons who purchased in the United States Arnold
`
`Palmer zero calorie drink on or after a date five years prior to the filing of this action.
`
`106.
`
`Excluded from the Class are any members of the judiciary assigned to preside
`
`over this matter; any officer or director of Defendant; and any immediate family member, of
`
`such officer or director.
`
`107.
`
`The members of the class are so numerous that joinder of all members is
`
`impracticable. There are thousands of persons in the class.
`
`108.
`
`There are questions of law and fact common to the members of the classes, which
`
`predominate over any questions that affect only individual class members. The predominant
`
`common questions include:
`
`a.
`
`b.
`
`c.
`
`Whether the Arnold Palmer zero calorie drink had zero calories.
`
`Whether Defendant falsely represented that the Arnold Palmer zero
`
`calorie drink had zero calories.
`
`Whether such representations resulted in unjust enrichment.
`
`109.
`
`Plaintiff’s claim is typical of the claims of the class members. All are based on
`
`the same factual and legal theories.
`
`110.
`
`Plaintiff will fairly and adequately represent the interests of the class members.
`
`Plaintiff has retained counsel experienced in consumer class action litigation.
`
`111. A class action is superior to other alternative methods of adjudicating this
`
`-17-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 18 of 22 PageID #:18
`
`dispute. Individual cases are not economically feasible.
`
`WHEREFORE, Plaintiff requests that the Court enter judgment in favor of Plaintiff and
`
`the class, and against Defendant, for:
`
`i.
`
`ii.
`
`iii.
`
`Appropriate monetary relief;
`
`Costs of suit; and
`
`Such other or further relief as the Court deems proper.
`
`/s/ Daniel A. Edelman
`Daniel A. Edelman
`
`Daniel A. Edelman (ARDC 0712094)
`Cathleen M. Combs (ARDC 0472840)
`Dulijaza (Julie) Clark (ARDC 6273353)
`Bryan G. Lesser (ARDC 6330021)
`EDELMAN, COMBS, LATTURNER & GOODWIN, LLC
`20 South Clark Street, Suite 1500
`Chicago, IL 60603-1824
`(312) 739-4200
`(312) 419-0379 (FAX)
`Email address for service: courtecl@edcombs.com
`
`JURY DEMAND
`
`Plaintiff demands trial by jury.
`
`/s/ Daniel A. Edelman
`Daniel A. Edelman
`
`-18-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 19 of 22 PageID #:19
`
`NOTICE OF LIEN AND ASSIGNMENT
`
`Please be advised that we claim a lien upon any recovery herein for 1/3 or such amount as
`a court awards. All rights relating to attorney’s fees have been assigned to counsel.
`
`/s/ Daniel A. Edelman
`Daniel A. Edelman
`
`Daniel A. Edelman
`EDELMAN, COMBS, LATTURNER
`& GOODWIN, LLC
`20 S. Clark Street, Suite 1500
`Chicago, Illinois 60603
`(312) 739-4200
`(312) 419-0379 (FAX)
`
`-19-
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 20 of 22 PageID #:20
`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 20 of 22 PageID #:20
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 21 of 22 PageID #:21
`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 21 of 22 PageID #:21
`
`
`
`
`
`

`

`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 22 of 22 PageID #:22
`Case: 1:20-cv-05543 Document #: 1 Filed: 09/18/20 Page 22 of 22 PageID #:22
`
`-; Hymns 51mm:
`
`i ‘ .
`-”I
`
`
`
`
`R LE‘JUN JIJIEEFHOMI
`
`f§l§l§i§l
`fiiéifiiyér
`
`Inwmuznmmhlhmfiqd
`WW ““anilfldhller;
`HEWELI ELENIJffMK
`
`
`
`