throbber
Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 1 of 19 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Latonya Jackson, individually and on behalf of
`all others similarly situated,
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`1:21-cv-05219
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`Plaintiff,
`
`
`
`- against -
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`Class Action Complaint
`
`Kraft Heinz Foods Company,
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`
`
`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1. Kraft Heinz Foods Company (“defendant”) manufactures, labels, markets, and sells
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`pizza bagels, purporting to contain mozzarella, cheddar and Monterey Jack cheese and tomato
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`sauce under its Ore Ida brand (“Product”).
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`
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`

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`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 2 of 19 PageID #:2
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`2.
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`Relevant front label representations include “Three Cheese,” “Mini Bagels with
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`Mozzarella, Cheddar, Monterey Jack Cheeses and Tomato Sauce,” “Made With Real Cheese,” the
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`“Real” dairy seal, “No High Fructose Corn Syrup,” and “No Artificial Flavors.”
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`3.
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`Consumers are misled by the representations because the front label omits that (1)
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`starch, nonfat milk, and whey are added to the “real” mozzarella cheese, and (2) tomatoes are
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`replaced with non-tomato thickeners including cornstarch.
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`4.
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`Federal and identical state regulations prohibit false and deceptive practices with
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`respect to labeling food and beverages. See Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C.
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`§ 343(a)(1) (a food is misbranded if “its labeling is false or misleading in any particular.”); Illinois
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`Food, Drug and Cosmetic Act (“IFDCA”), 410 ILCS 620/1 et seq.; 410 ILCS 620/21(j) (“[a]
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`federal [food labeling] regulation automatically adopted…takes effect in this State on the date it
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`becomes effective as a Federal regulation.”).
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`5.
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`The Illinois Consumer Fraud and Deceptive Business Practices Act provides
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`protection for consumers purchasing products like Defendant’s Product, and states:
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`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 . . . are hereby declared unlawful
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`815 ILCS 505/2.
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`I.
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`THE FRONT LABEL OMITS THAT THE “MOZZARELLA CHEESE” INCLUDES
`STARCH, NONFAT MILK, AND WHEY
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`6. While consumers are promised “Three Cheese[s],” the ingredient list shows they
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`receive a “Topping,” consisting of a “Cheese Blend,” cheddar cheese and Monterey Jack cheese.
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`2
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`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 3 of 19 PageID #:3
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`INGREDIENTS: BAGEL HALVES (ENRICHED
`FLOUR [WHEAT FLOUR, ENZYME, ASCORBIC
`ACID, NIACIN, REDUCED IRON, THIAMINE
`MONONITRATE, RIBOFLAVIN, FOLIC ACID] ,
`WATER, SALT, INVERT CANE SYRUP, YEAST,
`SOYBEAN OIL) TOPPING (CHEESE BLEND
`[(CHEESE [MOZZARELLA CHEESE (CULTURED
`MILK, SALT, ENZYMES), MODIFIED FOOD
`STARCH, NONFAT MILK, WHEY PROTEIN
`CONCENTRATE]),
`CHEDDAR
`CHEESE
`(CULTURED MILK, SALT, ENZYMES, ANNATTO
`COLOR),
`MONTEREY
`JACK
`CHEESE
`(CULTURED MILK, SALT, ENZYMES)]) SAUCE
`(WATER, TOMATO PASTE,
`INVERT CANE
`SYRUP, MODIFIED CORN STARCH, SALT,
`METHYLCELLULOSE,
`CITRIC
`ACID,
`POTASSIUM
`CHLORIDE,
`AMMONIUM
`CHLORIDE, SPICE, YEAST EXTRACT, NATURAL
`FLAVOR, CALCIUM LACTATE), INVERT CANE
`SYRUP, WATER.
`
`
`
`7.
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`The representations that the Product contains “Real Cheese,” and “Mozzarella
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`Cheese” are misleading because the front label omits that “Modified Food Starch, Nonfat Milk,
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`[and] Whey Protein Concentrate” are added to the mozzarella cheese to form a “cheese blend.”
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`8.
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`There are four varieties of mozzarella cheese, which differ in fat and moisture
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`content: (1) mozzarella, (2) low-moisture mozzarella, (3) part-skim Mozzarella, and (4) low-
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`moisture part-skim mozzarella. 21 C.F.R. § 133.155; 21 C.F.R. § 133.156; 21 C.F.R. § 133.157;
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`21 C.F.R. § 133.158.
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`9. Mozzarella cheese is made chiefly from milkfat with a small amount of permitted
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`optional ingredients. 21 C.F.R. § 133.155(a).
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`10. The optional ingredients include additional milk or cream, clotting enzymes, vinegar,
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`coloring, and salt. 21 C.F.R. § 133.155(b)(1)-(3).
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`11. The reason optional ingredients are restricted is to prevent addition of lower quality
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`ingredients in place of high-quality dairy ingredients.
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`3
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`12. Defendant promises “mozzarella cheese,” with no less than 45 percent milkfat. 21
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`C.F.R. § 133.155(c).
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`13. Though the Product contains mozzarella cheese, the front label omits that this is
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`blended with starch, nonfat milk, and whey.
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`14. Through adding these ingredients, the most valuable component of milk – milkfat –
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`is reduced and substituted with cheaper, filler ingredients. 21 U.S.C. § 342(b)(1) (deeming a food
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`adulterated “If any valuable constituent has been in whole or in part omitted or abstracted
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`therefrom”).
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`15. Starch is a lower quality ingredient compared to dairy, and especially to milkfat.
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`16. Starch also holds up to ten times its own weight in water.
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`17. By adding one unit (by weight) of starch to a batch of food means that up to ten units
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`(by weight) of extra water may also be added to the mix, and the resulting product will maintain
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`its consistency.
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`18. Therefore, by adding starch, Defendant uses less cheese and milkfat.
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`19. The typical consumer will not be aware of the functionality played by starch in a
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`complex food matrix, and know it is used to replace cheese.
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`20. The addition of nonfat milk lowers the overfall fat content of the “mozzarella cheese”
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`or “cheese blend.”
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`21. Whey is the liquid remaining after milk has been curdled and strained, and a
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`byproduct of the manufacture of cheese or casein.
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`22. Whey is used to replace milkfat and is lower in quality compared to the whole milk
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`expected in mozzarella cheese.
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`23. Reasonable consumers do not expect a cheese blend with starch, whey, and nonfat
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`4
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`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 5 of 19 PageID #:5
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`milk where the front label promises “Mozzarella Cheese” and “REAL” cheese.
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`24. Consumers expect mozzarella cheese to mean cheese from milkfat, not a “cheese
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`blend” containing some mozzarella, added starch, nonfat milk, and whey.
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`25. Consumers value mozzarella cheese for (1) its soft, moist texture, (2) its milky, yet
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`tangy taste and (3) its high protein and relatively low calories and sodium compared to other
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`cheeses.
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`II.
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`“REAL” DAIRY SEAL IS MISLEADING
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`26. Consumers value independent, third-party seals as a shorthand way to establish
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`whether a product has been vetted by an accredited, independent entity.
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`27. Obtaining approval from an independent third-party allows companies to obtain a
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`marketplace advantage, to sell more products at higher prices.
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`28. Recognizing the value of independent certification, the Federal Trade Commission
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`(“FTC”) has warned companies against making misleading representations regarding independent
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`certification. See 16 C.F.R. § 260.1.
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`29. As stated
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`in
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`the FTC guidelines against deceptive marketing regarding
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`“Certifications and Seals of Approval”:
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`It is deceptive to misrepresent, directly or by implication,
`that a product, package, or service has been endorsed or
`certified by an independent third party.
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`16 C.F.R. § 260.6(a) (emphasis added).
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`30. Defendant’s front label (left) makes prominent use of the “REAL” dairy seal (right),
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`owned by the National Milk Producers Federation (“NMPF”), which authorizes its use to third
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`parties.
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`5
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`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 6 of 19 PageID #:6
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`Defendant’s Front Label
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`“REAL” Dairy Seal
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`
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`31. The REAL Seal was introduced in 1976 by the dairy industry “to combat the use of
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`imitation cheeses on pizzas.”1
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`32. According to the website, realseal.com, “When you see the REAL® logo on a
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`product in a store or on a menu in a restaurant, you can trust it’s the real thing, and not a pale
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`imitation.”
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`33. Defendant knows consumers want real mozzarella cheese which is why it
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`emphasizes “Mozzarella Cheese,” protein content, the “REAL” seal and “MADE WITH REAL
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`CHEESE.”
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`34. The website for the REAL Seal details its “Vetting Process:”2
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`1 NMPF, The Real Seal Story.
`2 NMPF, Who Can Use the Real Seal?
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`6
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`So how do we ensure that products fulfill the strict requirements detailed
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`above? We require every brand to submit copies of packaging and a detailed
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`ingredient label for each product they wish to certify. This allows us to properly
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`vet the products to ensure they meet the REAL® Seal standards.
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`
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`35. The traditional “REAL” seal does not contain any qualifying text, and is what
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`defendant uses on its front label.
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`36. According to the NMPF, the original “REAL” Seal can be used where a food contains
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`dairy ingredients that meet federal standards of identity.
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`37. Where a food or dairy ingredient does not meet a standard of identity, it can use a
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`modified version of the REAL seal, subject to evaluation by the NMPF.
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`38. The four modified seals contain the word “REAL” accompanied by the qualifying
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`statements: “Made With Milk,” “American Made Butter,” “American Made Cheese” and “Made
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`With Dairy.”
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`39. Defendant’s Product does not qualify for the traditional “REAL” seal because the
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`“cheese blend” contains starch, an extender and filler.3
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`40. Though NMPF guidelines might have allowed defendant to use one of the four
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`modified REAL seals, defendant misappropriated the original “REAL” seal and added the
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`statement, “MADE WITH REAL CHEESE.”
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`41. The use of the standard “REAL” seal with the statement “MADE WITH REAL
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`CHEESE” is unauthorized by the NMPF because the Product does not contain “real cheese.”
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`42. No reasonable consumer expects mozzarella cheese to have starch, nonfat milk, and
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`
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`whey.
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`43. Defendant knew the Product did not meet the “rigorous and exacting certification
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`process” of the NMPF to use the traditional “REAL” seal.
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`3 NMPF, Who Can Use The REAL® Seal?.
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`8
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`44. Though the Product may have been authorized to use a modified “REAL” seal,
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`Defendant chose to misuse the “REAL” seal, adding its own misleading statement – “MADE
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`WITH REAL CHEESE.”
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`45. The use of the “REAL” seal and accompanying statements misleads consumers as to
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`the quality of the Product.
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`III. DEFENDANT’S
`“CHEESE BLEND”
`MOZZARELLA CHEESE
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`IS LESS NUTRITIOUS THAN
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`46. The addition of starch, nonfat milk, and whey causes the “[mozzarella] cheese blend”
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`to be nutritionally inferior to mozzarella cheese.
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`47. Consumers are misled because the front label fails to disclose – as required by law –
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`that the purported mozzarella cheese blend is an imitation because “it [the cheese blend] is a
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`substitute for and resembles another food [mozzarella cheese] but is nutritionally inferior to that
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`food.” 21 C.F.R. § 101.3(e)(1).
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`48. The addition of starch, nonfat milk, and whey permit a reduction in milkfat content,
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`resulting in at least two percent less of the daily recommended value (“DRV”) of protein. 21 C.F.R.
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`§ 101.3(e)(4)(ii) (“Nutritional inferiority”).
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`49. Consumers are misled because the front label fails to identify the “mozzarella
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`cheese” as an “imitation” on the front label.
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`50. The ingredient list fails to disclose that the Product does not contain mozzarella
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`cheese.
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`51. First, the ingredient list uses the misleading term – “cheese blend” – to describe a
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`lower quality, or imitation mozzarella cheese.
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`52. Second, consumers reading the ingredient list will not know the exact nutritional
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`values of starch, nonfat milk, and whey, compared to real milk.
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`53. Only after purchasing and consuming the Product will consumers also realize the
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`Product does not taste like mozzarella cheese, due to the flat “cardboard-like” taste and rubbery
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`mouthfeel associated with the extender and filler ingredients.
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`54. Defendant could avoid having to identify the mozzarella cheese as an imitation if the
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`front label disclosed the addition of the added filler ingredients.
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`IV. THE REPRESENTATION OF “TOMATO SAUCE” IS MISLEADING
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`55. Tomato sauce is understood by consumers as a tomato product that is not as thick as
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`tomato puree but thicker than tomato juice, with flavor enhanced through herbs and spices.4
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`56. The USDA defines tomato sauce in a way consistent with what consumers expect
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`from this food, as a combination of tomato ingredients “to which is added salt and spices [.] [,]
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`[o]ne or more nutritive sweetening ingredients, a vinegar or vinegars, onion, garlic, or other
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`vegetable flavoring ingredients.”5
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`57. The thickness of a tomato sauce is a marker of quality, because a thicker sauce has
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`deeper and richer flavor and texture.
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`58. The front label representation of “Tomato Sauce” is false, deceptive, and misleading
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`because it contains non-tomato ingredients designed to give the impression it contains more
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`tomatoes than it does.
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`59. The fourth and sixth most predominant ingredients are “Modified Corn Starch” and
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`“Methylcellulose.”
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`4 Tomato Sauce.
`5 USDA, Tomato Sauce Grades and Standards.
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`10
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`SAUCE (WATER, TOMATO PASTE, INVERT CANE SYRUP,
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`MODIFIED CORN STARCH, SALT, METHYLCELLULOSE, CITRIC
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`ACID, POTASSIUM CHLORIDE, AMMONIUM CHLORIDE, SPICE,
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`YEAST EXTRACT, NATURAL FLAVOR, CALCIUM LACTATE)
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`60. Cornstarch and methylcellulose are thickening agents, generally considered
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`adulterants for tomato sauce because the valuable tomato ingredients have been “in part omitted
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`or abstracted therefrom.” 21 U.S.C. § 342(b)(1).
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`61. The addition of cornstarch and methylcellulose rechanges the substance, texture, and
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`nutritional composition of the ingredient identified only as “sauce” on the back label.
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`62. By using cornstarch and methylcellulose, consumers get thirty-five percent less
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`tomatoes.
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`63. Cornstarch and methylcellulose are cheaper than tomatoes because they are produced
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`industrially in a chemical plant instead of grown on a farm.
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`64. Consumers value tomato sauce that gets its thickness from tomatoes instead of
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`cornstarch and methylcellulose, because of their taste, and nutrient density.
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`65. Tomatoes are rich in lycopene, an antioxidant that contributes to heart health and
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`reduction in cancer risk.
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`V. CONCLUSION
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`66. Whether a product contains the amount and/or proportion of cheese and tomato
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`ingredients expected by consumers is basic information relied on when making decisions at the
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`store.
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`67. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of a product, relative to itself and other
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`comparable products or alternatives.
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`68. 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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`69. 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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`70. 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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`71. The Product is sold for a price premium compared to other similar products, no less
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`than approximately $10.29 for 40 halves (31.1 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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`72.
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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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`73. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`74. Plaintiff Latonya Jackson is a citizen of Illinois.
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`75. Defendant Kraft Heinz Foods Company is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Allegheny County, Pennsylvania and upon
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`information and belief, at least one member of defendant is not a citizen of the same state as the
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`plaintiff.
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`76. Plaintiff and defendant are citizens of different states.
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`77. Venue is in this district because plaintiff resides in this district and the actions giving
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`rise to the claims occurred within this district.
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`78. Venue is in the Eastern Division because plaintiff resides in Cook County, which is
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`12
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`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 13 of 19 PageID #:13
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`where the events giving rise to the present claims occurred.
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`Parties
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`79. Plaintiff Latonya Jackson is a citizen of Homewood, Cook County, Illinois.
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`80. Defendant Kraft Heinz Foods Company, is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Pennsylvania, Allegheny County.
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`81. Defendant’s predecessor, the Kraft Corporation, was started in 1903 through the sale
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`of cheese door-to-door in Chicago.
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`82. Within twenty years, Kraft had become the largest cheese manufacturer in the world.
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`83. Because Kraft was a producer of cheese, it has generally been hostile to the producers
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`of dairy farmers, who sought a fair price for their milk products.
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`84. Kraft has continually sought to reduce its reliance on milk and dairy ingredients, to
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`the detriment of the dairy industry.
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`85. The Three Cheese Bagel Bites are sold in various sizes, consisting of 9, 18, 24 and
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`40 bagel halves.
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`86. 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 Target, 7300 W 191st St, Tinley Park, IL
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`60487, in September 2021, among other times.
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`87. Plaintiff bought the Product because she expected it contained mozzarella cheese,
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`without added fillers, and tomato sauce thickened by tomatoes.
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`88. Plaintiff expected that if the Product contained ingredients which changed the nature
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`of mozzarella cheese and tomato sauce, this would be disclosed on the front label.
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`89. Plaintiff knew that Kraft was a brand with an established reputation for quality and
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`expected it would live up to its word on the Product’s composition.
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`90. Plaintiff bought the Product at or exceeding the above-referenced price.
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`91. Plaintiff relied on the representations identified here – “Three Cheese,” “Made With
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`Real Cheese,” “Mozzarella Cheese,” and “Tomato Sauce.”
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`92. Plaintiff would not have purchased the Product if she knew the representations were
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`false and misleading by omission.
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`93. 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 statements and claims made by Defendant.
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`94. The Product was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`95. Plaintiff intends to, seeks to, and will purchase the Product again when she 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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`96. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
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`classes:
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`Illinois Class: All persons in the State of Illinois who
`purchased the Product during the statutes of limitations for
`each cause of action alleged.
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`Consumer Fraud Multi-State Class: All persons in the
`States of Iowa and Arkansas who purchased the Product
`during the statutes of limitations for each cause of action
`alleged.6
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`97. 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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`6 The States in the Consumer Fraud Multi-State Class are limited to those States with similar consumer fraud laws
`under the facts of this case: Iowa (Consumer Fraud and Private Right of Action for Consumer Frauds Act, Iowa Code
`Ann. § 714.16 et seq.); Arkansas (Arkansas Deceptive Trade Practices Act, Ark. Code § 4-88-101, et. seq.).
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`98. 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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`99. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`100. 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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`101. 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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`102. 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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`103. 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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`104. Plaintiff incorporates by reference all preceding paragraphs.
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`105. Plaintiff and class members desired to purchase a product that contained mozzarella
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`cheese, without added fillers, and tomato sauce thickened by tomatoes.
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`106. 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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`107. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`108. Plaintiff relied on the representations and omissions.
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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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`Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`110. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class
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`prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.
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`111. Defendant intended that plaintiff and each of the other members of the Consumer
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`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
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`fact be misled by this deceptive conduct.
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`112. As a result of defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, plaintiff, and each of the other members of the Consumer Fraud Multi-State
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`Class, have sustained damages in an amount to be proven at trial.
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`113. In addition, defendant’s conduct showed malice, motive, and the reckless disregard
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`of the truth such that an award of punitive damages is appropriate.
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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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`114. The Product was manufactured, identified, and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it contained mozzarella cheese, without
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`added fillers, and tomato sauce thickened by tomatoes.
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`115. 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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`116. This duty is based on Defendant’s outsized role in the market for this type of product
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`because Kraft and the OreIda brand are among the most trusted food companies in America.
`
`117. Plaintiff provided or will provide notice to defendant, its agents, representatives,
`
`retailers, and their employees.
`
`16
`
`

`

`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 17 of 19 PageID #:17
`
`118. Defendant received notice and should have been aware of these issues due to
`
`complaints by regulators, competitors, and consumers, to its main offices.
`
`119. The Product did not conform to its affirmations of fact and promises due to
`
`defendant’s actions and was not merchantable because it was not fit to pass in the trade as
`
`advertised.
`
`120. 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
`
`121. Defendant had a duty to truthfully represent the Product, which it breached.
`
`122. This duty is based on defendant’s position, holding itself out as having special
`
`knowledge and experience this area, as custodians and owners of the OreIda brand, known for its
`
`high-quality frozen foods.
`
`123. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`point-of-sale and their trust in defendant, a leader in the field of frozen, “heat-and-eat” foods.
`
`124. 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.
`
`125. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Fraud
`
`126. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
`
`that it contained mozzarella cheese, without added fillers, and tomato sauce thickened by tomatoes.
`
`127. Defendant possesses specialized knowledge regarding the relative amounts of
`
`17
`
`

`

`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 18 of 19 PageID #:18
`
`mozzarella cheese and tomato sauce content of the Product, and that omissions from the front label
`
`of the term “imitation,” or disclosure of added milkfat replacers, and replacement of tomatoes with
`
`cornstarch, would mislead consumers.
`
`128. Moreover, the records Defendant is required to maintain provide it with actual and/or
`
`constructive knowledge of the falsity of the representations.
`
`129. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
`
`Unjust Enrichment
`
`130. 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 and/or punitive 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
`
`18
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`

`

`Case: 1:21-cv-05219 Document #: 1 Filed: 10/02/21 Page 19 of 19 PageID #:19
`
`experts; and
`
`6. Other and further relief as the Court deems just and proper.
`
`Dated: October 2, 2021
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`19
`
`

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