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Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 1 of 15 PageID #:1
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`Lawrence Rice, individually and on
`behalf of all others similarly situated,
`
`1:21-cv-03814
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Dreyer’s Grand Ice Cream, Inc.,
`
`Defendant
`
`
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1. Dreyer’s Grand Ice Cream, Inc. (“defendant”) manufactures, labels, markets and
`
`sells “Vanilla Milk Chocolate Almond” ice cream bars purporting to be “dipped in rich milk
`
`chocolate,” presented with chunks of chocolate, a vanilla flower and almonds, under the Häagen-
`
`Dazs brand (“Product”).
`
`
`
`1
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 2 of 15 PageID #:2
`
`2.
`
`The other label representations emphasize the Product’s ingredients:
`
`Madagascar vanilla, rich milk chocolate
`
`and toasted California almonds make this
`
`unmatched icon legendary.
`
`thät’s daz
`
`I.
`
`DEFINITION OF CHOCOLATE
`
`
`
`3.
`
`Chocolate is defined by Merriam-Webster as a food “prepared from ground roasted
`
`cacao beans.”
`
`4. Dictionary.com defines chocolate as a “a preparation of the seeds of cacao, roasted,
`
`husked, and ground, often sweetened and flavored, as with vanilla.”
`
`5.
`
`The Cambridge Dictionary describes chocolate as “a sweet, usually brown, food
`
`made from cacao seeds, that is usually sold in a block.”
`
`6. Google Dictionary – based on its leading search engine that discovers the most
`
`2
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 3 of 15 PageID #:3
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`relevant and accurate information – defines chocolate as “a food preparation in the form of a paste
`
`or solid block made from roasted and ground cacao seeds, typically sweetened.”
`
`7.
`
`To make chocolate, cacao beans are “Fermented, roasted, [and] shelled,” producing
`
`cacao nibs.
`
`8.
`
`The nibs are ground to produce cocoa mass or chocolate liquor and then combined
`
`with dairy ingredients, sweeteners and flavorings.
`
`9.
`
`This state, and the Food and Drug Administration (“FDA”), adopted these dictionary
`
`definitions and define chocolate as made from cacao beans with a small amount of optional
`
`ingredients, including dairy (i.e., milk), sweeteners and flavorings. See 21 C.F.R. § 163.130(a).
`
`10. While a definition draws a sharp boundary around a term to provide meaning, words
`
`are also defined by what they exclude.1
`
`11.
`
`In the context of chocolate, all definitions universally exclude fats from sources other
`
`than cacao ingredients, namely, vegetable fats (oils).2
`
`12. Federal and state regulations require that where a food has some chocolate but is
`
`mainly vegetable oils, this should be disclosed to consumers. 21 C.F.R. § 163.155(c).
`
`II. CONSUMERS EXPECT CHOCOLATE TO BE MADE FROM CACAO BEANS
`
`13. Historians of chocolate note that “Mixing unnatural ingredients with chocolate – with
`
`the intent of extending the quantity of raw product and defrauding customers – has a long history.”3
`
`14. The main adulterants and extenders were starches and vegetable fats.
`
`15.
`
`In 2007, a group of the largest confectionery companies, which included the previous
`
` Carnap and Bar-Hillel.
`
`
`
` Vegetable oils are sometimes referred to as vegetable fats because they may be solid at room temperature.
`
`1
`
`2
`
`3
`
` L.P. Brindle and B.F. Olsen, Adulteration – The Dark World of ‘Dirty’ Chocolate,” in Chocolate (eds. L.E. Grivetti
`and H.Y. Shapiro) (2009).
`
`3
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 4 of 15 PageID #:4
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`owner of Defendant, Nestle, S.A., sought to re-define chocolate by replacing cacao ingredients
`
`with “cocoa butter equivalents” (“CBE”), or vegetable fats.
`
`16. Over thirty-thousand Americans submitted critical comments, crashing the FDA’s
`
`website.
`
`17.
`
`In an interview on National Public Radio (“NPR”), Cybele May, proprietor of candy
`
`review website, was asked, “if it’s labeled chocolate, [does] it has to have cocoa butter in it?”4
`
`18. May replied, “Absolutely, and it cannot contain other vegetable oils. It has to be
`
`completely from the cocoa bean.”
`
`19. The Los Angeles Times interviewed consumers about this proposal, with one stating,
`
`“The idea of substituting vegetable oil for cocoa butter, a natural component of the cocoa bean that
`
`is the traditional source of chocolate,” “would [make her] feel like [she] was being duped.”5
`
`20. One chocolatier commented, “This is all a question of money. If they can take
`
`something and dilute it, and still get the taste [for] a fraction of the cost, that’s what they want. But
`
`the taste is not the same, he and others said.” (emphasis added)
`
`21. San Francisco-based Gary Guittard of Guittard Chocolate Co., described “this
`
`[episode] as a battle for the soul of the popular confection.”
`
`22. Fran Bigelow, of Fran’s Chocolates in Seattle, was asked if she would “ever use
`
`vegetable fats and oils instead of cocoa butter in [her] chocolate?,” and responded, “No, no,
`
`no…we just are fighting to protect the integrity of chocolate,” by “educat[ing] consumers.”
`
`23. The proposal was defeated, in part due to chocolate colossus and industry leader,
`
`Mars Wrigley, which stated:
`
`4
`
`5
`
` Rebecca Roberts, An Argument Against 'Healthy' Chocolate, Talk of the Nation, Apr. 24, 2007, NPR; candyblog.net.
`
` Jerry Hirsch, The Courage of their Confections, Apr. 14, 2007, Los Angeles Times.
`
`
`
`4
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 5 of 15 PageID #:5
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`At Mars, the consumer is our boss, and American consumers are passionate about
`chocolate. They don’t want anyone to change the chocolate they’ve enjoyed for
`generations…As a privately held company, we have the freedom to invest in the
`highest quality chocolate and deliver what consumers want.
`
`24. Consumer surveys, including one of over four hundred Americans, reached the same
`
`conclusions.
`
`25. Roughly sixty percent of respondents who viewed the Product’s front label chocolate
`
`statements with chunks of chocolate – expected it would contain more cacao bean ingredients than
`
`it did and would not contain lower quality chocolate substitutes.
`
`III. REASONS WHY CONSUMERS WANT CHOCOLATE FROM CACAO BEANS
`
`26. For several reasons, consumers are misled when a food represented as containing
`
`chocolate replaces cacao beans with soybeans, or other vegetable oils.
`
`27. First, cacao ingredients are several times more expensive than vegetable oils.
`
`28. Though cocoa butter makes up one-fourth of chocolate, it costs more than three times
`
`as much as vegetable oil.
`
`29. Bigelow stated, “there's no benefit to the consumer [to eliminate cacao ingredients],
`
`but there's a benefit to the manufacturers that are using those vegetable oils or the lower-cost
`
`ingredients.”
`
`30. Second, cacao ingredients provide greater satiety than vegetable oils – they are more
`
`filling, instead of leaving the consumer feeling like they did not eat anything or ate less, even
`
`though their caloric contents are roughly similar.
`
`31. The result is greater consumption of empty calories.
`
`32. Third, the creamy and smooth taste of chocolate is eliminated when vegetable oils
`
`are added in place of the cocoa butter from chocolate from cacao beans.
`
`33. The substitution of vegetable oils – in amounts as low as five percent – contribute to
`
`5
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 6 of 15 PageID #:6
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`a waxy and oily mouthfeel and leave an aftertaste.
`
`34. Cocoa butter, according to Jay King, the president of the Retail Confectioners
`
`International, “is the essence of the taste, texture and ‘mouth feel’” of chocolate.
`
`35. Though proponents of the plan to add vegetable oils to chocolate claimed consumers
`
`“won’t notice if they change it,” Jean Hammond of Kilwin’s Ice Cream Shops, disagreed:
`
`Just that little bit of vegetable oil changes the mouthfeel. It makes it taste waxy.
`You would just be stunned at the difference in taste. They're just not comparable
`We take chocolate just very, very seriously. Chocolate-ish is not good enough.
`
`36. Fourth, chocolate has health and nutrition benefits that vegetable oils lack.
`
`37. Numerous studies have indicated that flavonoids in cacao beans positively affect the
`
`heart and arteries against harmful free radicals.
`
`38. Vegetable oils raise cholesterol, contain artery-clogging trans-fats and saturated fats,
`
`and are linked to higher rates of heart disease.
`
`39. Cocoa butter contains relatively heart-healthy, unsaturated fats, which does not cause
`
`elevated cholesterol or greater risks of heart disease.
`
`40. Fifth, chocolate is a natural ingredient, while vegetable oils are made through
`
`synthetic means.
`
`41. Consumers across all demographics increasingly prefer foods that are natural and
`
`avoid highly processed synthetic ingredients made with additives.
`
`42. Chocolate is made through fermentation, roasting, and grinding of cacao beans.
`
`43.
`
`In contrast, vegetable oils are highly refined and bleached, subjected to
`
`hydrogenation and interesterification, with chemical catalysts, such as nickel and cadmium.
`
`IV. THE “MILK CHOCOLATE” CONTAINS INGREDIENTS INCONSISTENT WITH
`CHOCOLATE
`
`44. The representation of the Product’s coating as “Milk Chocolate” and drizzled in rich
`
`6
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 7 of 15 PageID #:7
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`milk chocolate with pictures of chocolate is misleading, and at best, a “half-truth,” because the
`
`chocolate contains ingredients not found in real chocolate – “Coconut Oil.”
`
`
`
`INGREDIENTS: VANILLA ICE CREAM: CREAM, SKIM MILK, SUGAR, EGG YOLKS,
`
`VANILLA EXTRACT. MILK CHOCOLATE AND VEGETABLE OIL COATING WITH
`
`ALMONDS: MILK CHOCOLATE (SUGAR, WHOLE MILK POWDER, CHOCOLATE,
`
`COCOA BUTTER, SOY LECITHIN, VANILLA EXTRACT), ALMONDS ROASTED IN
`
`VEGETABLE OIL (ALMONDS, SAFFLOWER OIL), COCONUT OIL.
`
`45. The ingredient list reveals that what is described on the front label as “MILK
`
`CHOCOLATE” is actually “MILK CHOCOLATE AND VEGETABLE OIL COATING.”
`
`46. Consumers who view the ingredient list and see “Coconut Oil” listed as the least
`
`predominant ingredient will not know this ingredient is still present in a significant, appreciable
`
`amount.
`
`47. Based on industry specifications for “compound coatings” and evaluation of the
`
`saturated fat and cholesterol content listed on the Nutrition Facts, the amount of coconut oil is
`
`estimated at approximately twenty percent.
`
`48. The substitution of coconut oil for cacao beans reduces costs for Defendant.
`
`49. However, this cost-saving is not passed on to consumers, as they are sold a product
`
`represented as containing “rich milk chocolate,” and accordingly charged a premium price.
`
`50. The pictures of the ingredients – chunks of chocolate, a vanilla flower and almonds
`
`– tells consumers the Product will contain these highlighted ingredients instead of cheaper
`
`7
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 8 of 15 PageID #:8
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`substitutes for them.
`
`51. The Product does not contain imitation vanilla or almond alternatives, which makes
`
`it especially misleading that it contains alternatives to chocolate in the form of vegetable oil.
`
`52. Consumers expect that companies – especially larger and respected businesses, like
`
`Häagen-Dazs – to tell them the truth, not half-truths.
`
`53. Consumers of a premium ice cream bar, under the Häagen-Dazs brand, will not be
`
`so distrustful to scrutinize the fine print of the ingredient list to confirm the front label is accurate.
`
`54. Guittard stated that nothing prevents a company from making a product without
`
`actual chocolate, but it “has to be labeled ‘chocolate flavored’ (for it still has the cocoa in it) rather
`
`than ‘chocolate.’ That gives the consumer a signal that something less than chocolate lies beneath
`
`the wrapping.”
`
`55. While the Product’s ingredient list may give that “signal,” consumers expect – and
`
`the law requires it – to be disclosed prominently on the front of the label, as “milk chocolate and
`
`vegetable oil coating.” 21 C.F.R. § 163.155(c).
`
`56. Even chocolate aficionados such as Cybele May indicated that expectations for
`
`chocolate are so well-established that she “do[es]n’t want to have to flip over the chocolate bar to
`
`read the ingredients to know what I’m getting. I want to know on the front that it is chocolate with
`
`cocoa butter.”
`
`57. Reasonable consumers must and do rely on a company to honestly identify and
`
`describe the components and features of the Product.
`
`58. The value of the Product that plaintiff purchased was materially less than its value as
`
`represented by defendant.
`
`59. Defendant sold more of the Product and at higher prices than it would have in the
`
`8
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 9 of 15 PageID #:9
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
`
`60. Had Plaintiff and proposed class members known the truth, they would not have
`
`bought the Product or would have paid less for it.
`
`61. The Product is sold for a price premium compared to other similar products,
`
`approximately $6.59 for pack of three bars (9 OZ), a higher price than it would otherwise be sold
`
`for, absent the misleading representations and omissions.
`
`Jurisdiction and Venue
`
`62.
`
`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2).
`
`63. Upon information and belief, the aggregate amount in controversy exceeds $5
`
`million, including any statutory damages, exclusive of interest and costs.
`
`64. Plaintiff Lawrence Rice is a citizen of Illinois.
`
`65. Defendant Dreyer’s Grand Ice Cream, Inc. is a Delaware corporation with a principal
`
`place of business in Oakland, Alameda County, California.
`
`66. The parties are citizens of different states.
`
`67. Venue is proper because plaintiff resides in this district and a substantial portion of
`
`the events giving rise to the claims occurred in this district.
`
`Parties
`
`68. Plaintiff Lawrence Rice is a citizen of Buffalo Grove, Lake County, Illinois.
`
`69. Defendant Dreyer’s Grand Ice Cream, Inc., is a Delaware corporation with a
`
`principal place of business in Oakland, California, Alameda County.
`
`70. Defendant is one of the largest producers of frozen dairy desserts in the world.
`
`71. Previously owned by Nestle, defendant is currently operated by the recently created
`
`9
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`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 10 of 15 PageID #:10
`
`overseas holding company known only as “Froneri.”
`
`72. Defendant’s brands include the super-premium Häagen-Dazs, recognized by
`
`consumers for the strictest standards of purity and quality with respect to ingredients.
`
`73. The Product is sold throughout this state in grocery stores, convenience stores, big
`
`box stores, gas station stores, warehouse stores, and is available online.
`
`74. Plaintiff bought the Product on one or more occasions within the statute of limitations
`
`for each cause of action alleged, at stores including Walmart, 1455 E Lake Cook Rd, Wheeling,
`
`IL 60090, between February and March 2021, among other times.
`
`75. Plaintiff bought the Product for no less than the above-referenced price.
`
`76. Plaintiff saw the front label said, “[Vanilla] Milk Chocolate [Almond]” and “dipped
`
`in rich milk chocolate.”
`
`77. Plaintiff saw other parts of the label which described the Product’s “rich milk
`
`chocolate.”
`
`78. Plaintiff knew that “rich” was an adjective associated with chocolate, as it connotes
`
`a smooth mouthfeel.
`
`79. Plaintiff knew that chocolate substitutes, like vegetable oils, imparted a waxy and
`
`oily mouthfeel.
`
`80. Plaintiff expected the “milk chocolate” part of the Product would only contain
`
`chocolate, and that it would not include chocolate substitutes such as coconut oil.
`
`81. Plaintiff knew that the Häagen-Dazs brand is one of the largest sellers of chocolate
`
`covered ice cream bars in this country and expected that if they sold a product represented as
`
`“Chocolate” and “Milk Chocolate,” with pictures of chocolate, it would not contain ingredients
`
`inconsistent with chocolate.
`
`10
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 11 of 15 PageID #:11
`
`82. Plaintiff wanted more than a “chocolatey” taste, though he failed to even receive such
`
`a taste, because even a small amount of vegetable oils results in a waxy and oily taste.
`
`83. Plaintiff saw the pictures of ingredients he expected to be in the Product – chunks of
`
`chocolate, vanilla (flower) and almonds.
`
`84. Plaintiff did not observe pictures of coconuts and coconut oil on the front label.
`
`85. Plaintiff would not have purchased the Product if he knew the representations were
`
`false and misleading.
`
`86. Plaintiff chose between Defendant’s Product and other similar products which were
`
`represented similarly, but which did not misrepresent their attributes and/or lower-priced products
`
`which did not make the claims made by Defendant.
`
`87. The Product was worth less than what Plaintiff paid and he would not have paid as
`
`much absent Defendant's false and misleading statements and omissions.
`
`88. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
`
`with the assurance that Product's representations are consistent with its composition.
`
`Class Allegations
`
`89. The class will consist of all Illinois residents who purchased the Product during the
`
`statutes of limitations for each cause of action alleged.
`
`90. Common questions of law or fact predominate and include whether defendant’s
`
`representations were and are misleading and if plaintiff and class members are entitled to damages.
`
`91. Plaintiff's claims and basis for relief are typical to other members because all were
`
`subjected to the same unfair and deceptive representations and actions.
`
`92. Plaintiff is an adequate representative because his interests do not conflict with other
`
`members.
`
`11
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 12 of 15 PageID #:12
`
`93. No individual inquiry is necessary since the focus is only on defendant’s practices
`
`and the class is definable and ascertainable.
`
`94.
`
`Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
`
`95. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
`
`96. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`
`(Consumer Protection Statute)
`
`97. Plaintiff incorporates by reference all preceding paragraphs.
`
`98. Plaintiff and class members desired to purchase a Product with a coating that
`
`contained chocolate ingredients and not an appreciable amount of chocolate substitutes.
`
`99. Defendant’s false and deceptive representations and omissions are material in that
`
`they are likely to influence consumer purchasing decisions.
`
`100. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`101. Plaintiff relied on the representations.
`
`102. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`103. The Product was manufactured, labeled and sold by defendant and expressly and
`
`impliedly warranted to plaintiff and class members that the Product’s coating contained chocolate
`
`12
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 13 of 15 PageID #:13
`
`ingredients and not an appreciable amount of chocolate substitutes.
`
`104. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
`
`105. This duty is based on Defendant’s outsized role in the market for this type of Product.
`
`106. Plaintiff provided or will provide notice to defendant, its agents, representatives,
`
`retailers and their employees.
`
`107. Defendant received notice and should have been aware of these issues due to
`
`complaints by regulators, competitors, and consumers, to its main offices.
`
`108. The Product did not conform to its affirmations of fact and promises due to
`
`defendant’s actions and were not merchantable because they were not fit to pass in the trade as
`
`advertised.
`
`109. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Negligent Misrepresentation
`
`110. Defendant had a duty to truthfully represent the Product, which it breached.
`
`111. This duty is based on defendant’s position, holding itself out as having special
`
`knowledge and experience this area.
`
`112. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`point-of-sale and their trust in defendant.
`
`113. Plaintiff and class members reasonably and justifiably relied on these negligent
`
`misrepresentations and omissions, which served to induce and did induce, their purchase of the
`
`Product.
`
`114. Plaintiff and class members would not have purchased the Product or paid as much
`
`13
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 14 of 15 PageID #:14
`
`if the true facts had been known, suffering damages.
`
`Fraud
`
`115. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
`
`that it contained chocolate ingredients and not an appreciable amount of chocolate substitutes
`
`116. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
`
`Unjust Enrichment
`
`117. Defendant obtained benefits and monies because the Product was not as represented
`
`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
`
`restitution and disgorgement of inequitably obtained profits.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jury Demand and Prayer for Relief
`
`Plaintiff demands a jury trial on all issues.
`
` WHEREFORE, Plaintiff prays for judgment:
`
`1. Declaring this a proper class action, certifying plaintiff as representative and the
`
`undersigned as counsel for the class;
`
`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
`
`challenged practices to comply with the law;
`
`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
`
`representations, and restitution and disgorgement for members of the class pursuant to the
`
`applicable laws;
`
`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
`
`interest pursuant to the common law and other statutory claims;
`
`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
`
`experts; and
`
`14
`
`

`

`Case: 1:21-cv-03814 Document #: 1 Filed: 07/18/21 Page 15 of 15 PageID #:15
`
`6. Other and further relief as the Court deems just and proper.
`
`Dated: July 18, 2021
`
`
`
`
`
`
`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`
`15
`
`

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