`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`Lawrence Rice, individually and on
`behalf of all others similarly situated,
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`1:21-cv-03814
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`Plaintiff,
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`- against -
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`Class Action Complaint
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`Dreyer’s Grand Ice Cream, Inc.,
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`Defendant
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`
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1. Dreyer’s Grand Ice Cream, Inc. (“defendant”) manufactures, labels, markets and
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`sells “Vanilla Milk Chocolate Almond” ice cream bars purporting to be “dipped in rich milk
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`chocolate,” presented with chunks of chocolate, a vanilla flower and almonds, under the Häagen-
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`Dazs brand (“Product”).
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`1
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`2.
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`The other label representations emphasize the Product’s ingredients:
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`Madagascar vanilla, rich milk chocolate
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`and toasted California almonds make this
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`unmatched icon legendary.
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`thät’s daz
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`I.
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`DEFINITION OF CHOCOLATE
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`3.
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`Chocolate is defined by Merriam-Webster as a food “prepared from ground roasted
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`cacao beans.”
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`4. Dictionary.com defines chocolate as a “a preparation of the seeds of cacao, roasted,
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`husked, and ground, often sweetened and flavored, as with vanilla.”
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`5.
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`The Cambridge Dictionary describes chocolate as “a sweet, usually brown, food
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`made from cacao seeds, that is usually sold in a block.”
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`6. Google Dictionary – based on its leading search engine that discovers the most
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`2
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`relevant and accurate information – defines chocolate as “a food preparation in the form of a paste
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`or solid block made from roasted and ground cacao seeds, typically sweetened.”
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`7.
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`To make chocolate, cacao beans are “Fermented, roasted, [and] shelled,” producing
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`cacao nibs.
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`8.
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`The nibs are ground to produce cocoa mass or chocolate liquor and then combined
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`with dairy ingredients, sweeteners and flavorings.
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`9.
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`This state, and the Food and Drug Administration (“FDA”), adopted these dictionary
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`definitions and define chocolate as made from cacao beans with a small amount of optional
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`ingredients, including dairy (i.e., milk), sweeteners and flavorings. See 21 C.F.R. § 163.130(a).
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`10. While a definition draws a sharp boundary around a term to provide meaning, words
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`are also defined by what they exclude.1
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`11.
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`In the context of chocolate, all definitions universally exclude fats from sources other
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`than cacao ingredients, namely, vegetable fats (oils).2
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`12. Federal and state regulations require that where a food has some chocolate but is
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`mainly vegetable oils, this should be disclosed to consumers. 21 C.F.R. § 163.155(c).
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`II. CONSUMERS EXPECT CHOCOLATE TO BE MADE FROM CACAO BEANS
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`13. Historians of chocolate note that “Mixing unnatural ingredients with chocolate – with
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`the intent of extending the quantity of raw product and defrauding customers – has a long history.”3
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`14. The main adulterants and extenders were starches and vegetable fats.
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`15.
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`In 2007, a group of the largest confectionery companies, which included the previous
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` Carnap and Bar-Hillel.
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` Vegetable oils are sometimes referred to as vegetable fats because they may be solid at room temperature.
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`1
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`2
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`3
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` 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).
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`3
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`owner of Defendant, Nestle, S.A., sought to re-define chocolate by replacing cacao ingredients
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`with “cocoa butter equivalents” (“CBE”), or vegetable fats.
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`16. Over thirty-thousand Americans submitted critical comments, crashing the FDA’s
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`website.
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`17.
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`In an interview on National Public Radio (“NPR”), Cybele May, proprietor of candy
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`review website, was asked, “if it’s labeled chocolate, [does] it has to have cocoa butter in it?”4
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`18. May replied, “Absolutely, and it cannot contain other vegetable oils. It has to be
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`completely from the cocoa bean.”
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`19. The Los Angeles Times interviewed consumers about this proposal, with one stating,
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`“The idea of substituting vegetable oil for cocoa butter, a natural component of the cocoa bean that
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`is the traditional source of chocolate,” “would [make her] feel like [she] was being duped.”5
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`20. One chocolatier commented, “This is all a question of money. If they can take
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`something and dilute it, and still get the taste [for] a fraction of the cost, that’s what they want. But
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`the taste is not the same, he and others said.” (emphasis added)
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`21. San Francisco-based Gary Guittard of Guittard Chocolate Co., described “this
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`[episode] as a battle for the soul of the popular confection.”
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`22. Fran Bigelow, of Fran’s Chocolates in Seattle, was asked if she would “ever use
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`vegetable fats and oils instead of cocoa butter in [her] chocolate?,” and responded, “No, no,
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`no…we just are fighting to protect the integrity of chocolate,” by “educat[ing] consumers.”
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`23. The proposal was defeated, in part due to chocolate colossus and industry leader,
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`Mars Wrigley, which stated:
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`4
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`5
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` Rebecca Roberts, An Argument Against 'Healthy' Chocolate, Talk of the Nation, Apr. 24, 2007, NPR; candyblog.net.
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` Jerry Hirsch, The Courage of their Confections, Apr. 14, 2007, Los Angeles Times.
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`4
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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.
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`24. Consumer surveys, including one of over four hundred Americans, reached the same
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`conclusions.
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`25. Roughly sixty percent of respondents who viewed the Product’s front label chocolate
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`statements with chunks of chocolate – expected it would contain more cacao bean ingredients than
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`it did and would not contain lower quality chocolate substitutes.
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`III. REASONS WHY CONSUMERS WANT CHOCOLATE FROM CACAO BEANS
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`26. For several reasons, consumers are misled when a food represented as containing
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`chocolate replaces cacao beans with soybeans, or other vegetable oils.
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`27. First, cacao ingredients are several times more expensive than vegetable oils.
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`28. Though cocoa butter makes up one-fourth of chocolate, it costs more than three times
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`as much as vegetable oil.
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`29. Bigelow stated, “there's no benefit to the consumer [to eliminate cacao ingredients],
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`but there's a benefit to the manufacturers that are using those vegetable oils or the lower-cost
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`ingredients.”
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`30. Second, cacao ingredients provide greater satiety than vegetable oils – they are more
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`filling, instead of leaving the consumer feeling like they did not eat anything or ate less, even
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`though their caloric contents are roughly similar.
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`31. The result is greater consumption of empty calories.
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`32. Third, the creamy and smooth taste of chocolate is eliminated when vegetable oils
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`are added in place of the cocoa butter from chocolate from cacao beans.
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`33. The substitution of vegetable oils – in amounts as low as five percent – contribute to
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`5
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`a waxy and oily mouthfeel and leave an aftertaste.
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`34. Cocoa butter, according to Jay King, the president of the Retail Confectioners
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`International, “is the essence of the taste, texture and ‘mouth feel’” of chocolate.
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`35. Though proponents of the plan to add vegetable oils to chocolate claimed consumers
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`“won’t notice if they change it,” Jean Hammond of Kilwin’s Ice Cream Shops, disagreed:
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`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.
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`36. Fourth, chocolate has health and nutrition benefits that vegetable oils lack.
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`37. Numerous studies have indicated that flavonoids in cacao beans positively affect the
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`heart and arteries against harmful free radicals.
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`38. Vegetable oils raise cholesterol, contain artery-clogging trans-fats and saturated fats,
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`and are linked to higher rates of heart disease.
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`39. Cocoa butter contains relatively heart-healthy, unsaturated fats, which does not cause
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`elevated cholesterol or greater risks of heart disease.
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`40. Fifth, chocolate is a natural ingredient, while vegetable oils are made through
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`synthetic means.
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`41. Consumers across all demographics increasingly prefer foods that are natural and
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`avoid highly processed synthetic ingredients made with additives.
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`42. Chocolate is made through fermentation, roasting, and grinding of cacao beans.
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`43.
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`In contrast, vegetable oils are highly refined and bleached, subjected to
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`hydrogenation and interesterification, with chemical catalysts, such as nickel and cadmium.
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`IV. THE “MILK CHOCOLATE” CONTAINS INGREDIENTS INCONSISTENT WITH
`CHOCOLATE
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`44. The representation of the Product’s coating as “Milk Chocolate” and drizzled in rich
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`6
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`milk chocolate with pictures of chocolate is misleading, and at best, a “half-truth,” because the
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`chocolate contains ingredients not found in real chocolate – “Coconut Oil.”
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`INGREDIENTS: VANILLA ICE CREAM: CREAM, SKIM MILK, SUGAR, EGG YOLKS,
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`VANILLA EXTRACT. MILK CHOCOLATE AND VEGETABLE OIL COATING WITH
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`ALMONDS: MILK CHOCOLATE (SUGAR, WHOLE MILK POWDER, CHOCOLATE,
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`COCOA BUTTER, SOY LECITHIN, VANILLA EXTRACT), ALMONDS ROASTED IN
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`VEGETABLE OIL (ALMONDS, SAFFLOWER OIL), COCONUT OIL.
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`45. The ingredient list reveals that what is described on the front label as “MILK
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`CHOCOLATE” is actually “MILK CHOCOLATE AND VEGETABLE OIL COATING.”
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`46. Consumers who view the ingredient list and see “Coconut Oil” listed as the least
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`predominant ingredient will not know this ingredient is still present in a significant, appreciable
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`amount.
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`47. Based on industry specifications for “compound coatings” and evaluation of the
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`saturated fat and cholesterol content listed on the Nutrition Facts, the amount of coconut oil is
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`estimated at approximately twenty percent.
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`48. The substitution of coconut oil for cacao beans reduces costs for Defendant.
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`49. However, this cost-saving is not passed on to consumers, as they are sold a product
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`represented as containing “rich milk chocolate,” and accordingly charged a premium price.
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`50. The pictures of the ingredients – chunks of chocolate, a vanilla flower and almonds
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`– tells consumers the Product will contain these highlighted ingredients instead of cheaper
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`substitutes for them.
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`51. The Product does not contain imitation vanilla or almond alternatives, which makes
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`it especially misleading that it contains alternatives to chocolate in the form of vegetable oil.
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`52. Consumers expect that companies – especially larger and respected businesses, like
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`Häagen-Dazs – to tell them the truth, not half-truths.
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`53. Consumers of a premium ice cream bar, under the Häagen-Dazs brand, will not be
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`so distrustful to scrutinize the fine print of the ingredient list to confirm the front label is accurate.
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`54. Guittard stated that nothing prevents a company from making a product without
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`actual chocolate, but it “has to be labeled ‘chocolate flavored’ (for it still has the cocoa in it) rather
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`than ‘chocolate.’ That gives the consumer a signal that something less than chocolate lies beneath
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`the wrapping.”
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`55. While the Product’s ingredient list may give that “signal,” consumers expect – and
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`the law requires it – to be disclosed prominently on the front of the label, as “milk chocolate and
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`vegetable oil coating.” 21 C.F.R. § 163.155(c).
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`56. Even chocolate aficionados such as Cybele May indicated that expectations for
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`chocolate are so well-established that she “do[es]n’t want to have to flip over the chocolate bar to
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`read the ingredients to know what I’m getting. I want to know on the front that it is chocolate with
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`cocoa butter.”
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`57. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components and features of the Product.
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`58. The value of the Product that plaintiff purchased was materially less than its value as
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`represented by defendant.
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`59. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`60. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`61. The Product is sold for a price premium compared to other similar products,
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`approximately $6.59 for pack of three bars (9 OZ), a higher price than it would otherwise be sold
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`for, absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`62.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`63. Upon information and belief, the aggregate amount in controversy exceeds $5
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`million, including any statutory damages, exclusive of interest and costs.
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`64. Plaintiff Lawrence Rice is a citizen of Illinois.
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`65. Defendant Dreyer’s Grand Ice Cream, Inc. is a Delaware corporation with a principal
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`place of business in Oakland, Alameda County, California.
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`66. The parties are citizens of different states.
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`67. Venue is proper because plaintiff resides in this district and a substantial portion of
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`the events giving rise to the claims occurred in this district.
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`Parties
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`68. Plaintiff Lawrence Rice is a citizen of Buffalo Grove, Lake County, Illinois.
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`69. Defendant Dreyer’s Grand Ice Cream, Inc., is a Delaware corporation with a
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`principal place of business in Oakland, California, Alameda County.
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`70. Defendant is one of the largest producers of frozen dairy desserts in the world.
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`71. Previously owned by Nestle, defendant is currently operated by the recently created
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`overseas holding company known only as “Froneri.”
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`72. Defendant’s brands include the super-premium Häagen-Dazs, recognized by
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`consumers for the strictest standards of purity and quality with respect to ingredients.
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`73. The Product is sold throughout this state in grocery stores, convenience stores, big
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`box stores, gas station stores, warehouse stores, and is available online.
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`74. Plaintiff bought the Product on one or more occasions within the statute of limitations
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`for each cause of action alleged, at stores including Walmart, 1455 E Lake Cook Rd, Wheeling,
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`IL 60090, between February and March 2021, among other times.
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`75. Plaintiff bought the Product for no less than the above-referenced price.
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`76. Plaintiff saw the front label said, “[Vanilla] Milk Chocolate [Almond]” and “dipped
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`in rich milk chocolate.”
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`77. Plaintiff saw other parts of the label which described the Product’s “rich milk
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`chocolate.”
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`78. Plaintiff knew that “rich” was an adjective associated with chocolate, as it connotes
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`a smooth mouthfeel.
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`79. Plaintiff knew that chocolate substitutes, like vegetable oils, imparted a waxy and
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`oily mouthfeel.
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`80. Plaintiff expected the “milk chocolate” part of the Product would only contain
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`chocolate, and that it would not include chocolate substitutes such as coconut oil.
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`81. Plaintiff knew that the Häagen-Dazs brand is one of the largest sellers of chocolate
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`covered ice cream bars in this country and expected that if they sold a product represented as
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`“Chocolate” and “Milk Chocolate,” with pictures of chocolate, it would not contain ingredients
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`inconsistent with chocolate.
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`82. Plaintiff wanted more than a “chocolatey” taste, though he failed to even receive such
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`a taste, because even a small amount of vegetable oils results in a waxy and oily taste.
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`83. Plaintiff saw the pictures of ingredients he expected to be in the Product – chunks of
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`chocolate, vanilla (flower) and almonds.
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`84. Plaintiff did not observe pictures of coconuts and coconut oil on the front label.
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`85. Plaintiff would not have purchased the Product if he knew the representations were
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`false and misleading.
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`86. Plaintiff chose between Defendant’s Product and other similar products which were
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`represented similarly, but which did not misrepresent their attributes and/or lower-priced products
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`which did not make the claims made by Defendant.
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`87. The Product was worth less than what Plaintiff paid and he would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`88. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance that Product's representations are consistent with its composition.
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`Class Allegations
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`89. The class will consist of all Illinois residents who purchased the Product during the
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`statutes of limitations for each cause of action alleged.
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`90. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`91. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`92. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`93. No individual inquiry is necessary since the focus is only on defendant’s practices
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`and the class is definable and ascertainable.
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`94.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`95. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`96. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
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`(Consumer Protection Statute)
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`97. Plaintiff incorporates by reference all preceding paragraphs.
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`98. Plaintiff and class members desired to purchase a Product with a coating that
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`contained chocolate ingredients and not an appreciable amount of chocolate substitutes.
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`99. Defendant’s false and deceptive representations and omissions are material in that
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`they are likely to influence consumer purchasing decisions.
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`100. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`101. Plaintiff relied on the representations.
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`102. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`103. The Product was manufactured, labeled and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that the Product’s coating contained chocolate
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`ingredients and not an appreciable amount of chocolate substitutes.
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`104. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`105. This duty is based on Defendant’s outsized role in the market for this type of Product.
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`106. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`107. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, competitors, and consumers, to its main offices.
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`108. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable because they were not fit to pass in the trade as
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`advertised.
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`109. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`110. Defendant had a duty to truthfully represent the Product, which it breached.
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`111. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience this area.
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`112. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant.
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`113. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, their purchase of the
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`Product.
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`114. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`115. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained chocolate ingredients and not an appreciable amount of chocolate substitutes
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`116. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`117. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: July 18, 2021
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`Respectfully submitted,
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`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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