Case: 1:21-cv-05516 Document #: 1 Filed: 10/17/21 Page 1 of 19 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`Kayla Cerretti, individually and on behalf of
`all others similarly situated,
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`1:21-cv-05516
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`Whole Foods Market Group, 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. Whole Foods Market Group, Inc. (“defendant”) manufactures, labels, markets, and
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`sells “Organic Chocolate Ice Cream Bars,” or more specifically, “Organic Vanilla Ice Cream
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`Dipped in Organic Chocolate,” depicted amidst chunks of chocolate, under its 365 brand
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`(“Product”).
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`Case: 1:21-cv-05516 Document #: 1 Filed: 10/17/21 Page 2 of 19 PageID #:2
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`2.
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`The side panel describes the “Chocolate [Coated] Vanilla Ice Cream Bars.”
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`
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`Our Organic Ice Cream Bars are
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`made the old fashioned way with
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`the finest organic ingredients. We
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`start with fresh cream and cane
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`sugar, then dunk our rich ice cream
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`in chocolate for a smooth, thick
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`shell.
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`Indulge
`
`in
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`the pure
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`decadence of our organic
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`ice
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`cream bars.
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`
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`3.
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`The representations are misleading because the Product has less chocolate than
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`consumers expect.
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`I.
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`DEFINITION OF CHOCOLATE
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`4.
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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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`5. 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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`6.
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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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`7. 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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`8.
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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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`9.
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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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`10. The Food and Drug Administration (“FDA”), and by extension, Illinois, adopted
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`these dictionary definitions, and defines chocolate as made from cacao beans with a small amount
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`of optional ingredients, including dairy (i.e., milk), sweeteners and flavorings. See 21 C.F.R. §
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`163.130(a); Illinois Food, Drug and Cosmetic Act (“IFDCA”), 410 ILCS 620/1 et seq.; 410 ILCS
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`620/21(j) (“[a] federal regulation automatically adopted pursuant to this [Federal Food, Drug &
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`Cosmetic] Act takes effect in this State on the date it becomes effective as a Federal regulation.”).
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`11. 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.
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`12.
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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).1
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`13. 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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`14. Federal and identical state regulations require a product’s front label to contain a
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`common or usual name which accurately identifies or describes, “in as simple and direct terms as
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`possible, the basic nature of the food or its characterizing properties or ingredients.” 21 C.F.R. §
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`102.5(a).
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`1 Vegetable oils are referred to as vegetable fats because they may be solid at room temperature.
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`3
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`15. Defendant’s representations violate 21 U.S.C. § 343(a)(1) and 410 ILCS 620/11,
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`which deem a food misbranded when the label contains a statement that is “false or misleading.”
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`16. The Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2,
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`provides 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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`17. Whether the coating of an ice cream bar is made only from chocolate ingredients or
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`contains more vegetable oils than any chocolate ingredients, is basic front label information
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`consumers rely on when making quick decisions at the grocery store.
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`II. CONSUMERS EXPECT CHOCOLATE TO BE MADE FROM CACAO BEANS
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`18. 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.”2
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`19. The main adulterants and extenders are typically starches and vegetable fats.
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`20.
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`In 2007, the largest confectionery companies sought to re-define chocolate, by
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`replacing cacao ingredients with “cocoa butter equivalents” (“CBE”), or vegetable fats.
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`21. Over thirty-thousand Americans submitted critical comments, crashing the FDA’s
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`website.
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`22.
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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?”3
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`2 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 Rebecca Roberts, An Argument Against 'Healthy' Chocolate, Talk of the Nation, Apr. 24, 2007, NPR; candyblog.net.
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`4
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`23. 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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`24. 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.”4
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`25. 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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`26. 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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`27. 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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`28. 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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`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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`29. Consumer surveys, including one of over four hundred Americans, reached the same
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`conclusions.
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`30. Roughly sixty percent of respondents who observe a product described as coated, or
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`dipped, in chocolate, with pictures of chocolate ingredients, expect they will not be provided lower
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`4 Jerry Hirsch, The Courage of their Confections, Apr. 14, 2007, Los Angeles Times.
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`5
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`quality chocolate substitutes.
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`III. REASONS WHY CONSUMERS WANT CHOCOLATE FROM CACAO BEANS
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`31. For several reasons, consumers are misled when a food represented as containing
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`chocolate replaces cacao beans with vegetable oils.
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`32. First, cacao ingredients are several times more expensive than vegetable oils.
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`33. 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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`34. 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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`35. 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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`36. The result is greater consumption of empty calories.
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`37. 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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`38. The substitution of vegetable oils – in amounts as low as five percent – contribute to
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`a waxy and oily mouthfeel and leave an aftertaste.
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`39. 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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`40. 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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`41. Fourth, chocolate has health and nutrition benefits that vegetable oils lack.
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`42. 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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`43. 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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`44. 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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`45. Fifth, chocolate is a natural ingredient, while vegetable oils are made through
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`synthetic means.
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`46. 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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`47. Chocolate is made through fermentation, roasting, and grinding of cacao beans.
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`48.
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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 PRODUCT’S “CHOCOLATE” CONTAINS INGREDIENTS INCONSISTENT
`WITH CHOCOLATE
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`49. The representations include describing the ice cream bar as coated in “Chocolate”
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`and “Dipped in Organic Chocolate,” next to a chocolate coated bar, alongside numerous chunks
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`of chocolate.
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`50. The side panel describes the Product as being “made the old fashioned way with the
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`finest organic ingredients,” “dunk[ing] our rich ice cream in chocolate for a smooth, thick shell,”
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`and consumers are told to “Indulge in the pure decadence of our organic ice cream bars.”
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`51. “Smooth” and “decadence” are words commonly used to describe chocolate.
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`52. These representations are misleading, because the “chocolate” contains more
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`chocolate substitutes than cacao ingredients, shown on the ingredient list.
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`
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`INGREDIENTS: ORGANIC ICE CREAM: PASTEURIZED
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`ORGANIC MILK, PASTEURIZED ORGANIC CREAM,
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`ORGANIC CANE SUGAR, ORGANIC SUGARED EGG
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`YOLKS (ORGANIC EGG YOLKS, ORGANIC CANE SUGAR),
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`ORGANIC VANILLA EXTRACT, ORGANIC LOCUST BEAN
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`GUM, ORGANIC GUAR GUM. ORGANIC CHOCOLATE:
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`ORGANIC CANE SUGAR, ORGANIC EXPELLER PRESSED
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`PALM KERNEL OIL, ORGANIC CHOCOLATE LIQUOR,
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`ORGANIC COCOA BUTTER, ORGANIC WHOLE MILK
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`POWDER, ORGANIC SOY LECITHIN
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`(EMULSIFIER),
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`ORGANIC VANILLA EXTRACT.
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`53. The relative amounts of the ingredients in the “Organic Chocolate” are listed based
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`on their order of predominance by weight, which shows that the second ingredient, “Organic
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`Expeller Pressed Palm Kernel Oil,” precedes the third and fourth ingredients of “Organic
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`Chocolate Liquor, [and] Organic Cocoa Butter.” See 21 C.F.R. § 101.4(a)(1).
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`54. What is described on the front and side label as “CHOCOLATE” is actually “MILK
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`CHOCOLATE AND VEGETABLE OIL COATING.”
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`55. The amount of vegetable oil exceeds that of the chocolate liquor and cocoa butter.
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`56. Based on industry specifications for this type of “compound coating,” coupled with
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`evaluation of the saturated fat and cholesterol content listed on the Nutrition Facts, the amount of
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`vegetable oil in the Product appears to exceed the combined total of chocolate liquor and cocoa
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`butter.
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`57. The substitution of palm kernel oil for cacao bean ingredients reduces costs.
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`58. However, this cost-saving is not passed on to consumers, who are sold a product
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`represented to contain “chocolate,” described as “smooth,” and “indulgent,” and accordingly
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`charged a premium price.
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`59. The pictures of chocolate chunk ingredients tells consumers the “chocolate”
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`component of the Product will (1) only contain chocolate, (2) not contain the ingredients excluded
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`from chocolate, and (3) certainly not contain more chocolate substitute ingredients than the
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`chocolate ingredients.
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`60. Consumers expect that companies – especially larger and respected businesses, like
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`Whole Foods, to tell them the truth, not half-truths.
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`61. Consumers of a premium ice cream bar, under the Organic 365 brand, will not be so
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`distrustful to scrutinize the fine print of the ingredient list to confirm the front label is accurate.
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`62. As Gary Guittard stated, nothing prevents a company from making a product without
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`actual chocolate or with vegetable oils, but it “has to be labeled ‘chocolate flavored’ (for it still has
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`the cocoa in it) rather than ‘chocolate.’ That gives the consumer a signal that something less than
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`chocolate lies beneath the wrapping.”
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`63. 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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`64. 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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`65.
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`Ice cream bars coated in chocolate without vegetable oils are not a rare or pricy
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`delicacy that would make a reasonable consumer “double check” the relative amount of the cacao
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`bean and vegetable oil ingredients by scouring the packaging.
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`66. These products exist in the marketplace and are not technologically or otherwise
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`unfeasible to produce, as made by the Magnum Ice Cream Company.
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`67. Moreover, even if some “chocolate” covered ice cream bars have a drop of vegetable
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`oils, Defendant’s Product has more vegetable oil than chocolate liquor and cocoa butter.
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`68. Competitor ice cream bars typically, and truthfully describe their coating as
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`“chocolatey,” “chocolate flavored,” or as a “milk chocolate and vegetable oil coating.”
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`69. These statements put consumers on notice that the coating is something less than
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`authentic chocolate.
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`70. Consumers seeing Defendant’s Product, which exclusively promotes its chocolate
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`coating, and fails to disclose the greater amount of vegetable oils, and the more “restrained” or
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`truthful labeling of competitors, will purchase Defendant’s Product, believing it is higher quality
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`than it is.
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`V. CONCLUSION
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`71. 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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`72. By labeling the Product in this manner, Defendant gained an advantage against other
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`companies, and against consumers seeking to purchase a product with more of the named
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`ingredient, chocolate, than it contained.
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`73. 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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`74. 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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`75. 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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`76. The Product is sold for a price premium compared to other similar products, no less
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`than approximately $5.39 for three bars (9 FL OZ or 267 mL), a higher price than it would
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`otherwise be sold for, absent the misleading representations and omissions.
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`77. Similar products which have an equivalent amount and/or proportion of chocolate
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`and chocolate substitutes are sold for a lower price of $3.49 for three bars (9 FL OZ or 267 mL).
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`Jurisdiction and Venue
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`78.
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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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`79. 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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`80. Plaintiff Kayla Cerretti is a citizen of Illinois.
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`81. Defendant Whole Foods Market Group, Inc. is a Delaware corporation with a
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`principal place of business in Austin, Travis County, Texas.
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`82. Plaintiff and defendant are citizens of different states.
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`83. Defendant transacts business within this district, through the marketing, supply, and
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`sales of its products at numerous physical stores which it operates within this district.
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`84. 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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`85. Venue is in the Eastern Division of this District because a substantial part of the
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`events or omissions giving rise to the claim occurred in Lake County, i.e., Plaintiff’s purchase of
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`the Product and her awareness of the issues described here.
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`Parties
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`86. Plaintiff Kayla Cerretti is a citizen of Round Lake, Lake County, Illinois.
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`87. Plaintiff likes chocolate for the same reason most Americans do, and why so many
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`citizens spoke up when the largest confectionary companies tried to re-define this food.
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`88. Defendant Whole Foods Market Group, Inc., is a Delaware corporation with a
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`principal place of business in Austin, Texas, Travis County.
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`89. Whole Foods operates over five hundred stores in the United States.
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`90. Whole Foods is known for its organic and high-quality grocery products.
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`91. Whole Foods is self-described as “more than just a grocery store, [because] [they]
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`seek out the finest natural and organic foods available [and] maintain the strictest quality
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`standards.”5
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`92. Whole Foods promises its customers that it “Sell[s] the Highest Quality Natural and
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`5 Website Text Preview, Google search of whole foods,
`https://www.amazon.com/alm/storefront/ref=grocery_wholefoods?almBrandId=VUZHIFdob2xlIEZvb2Rz
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`Organic Foods.”
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`93. Whole Foods tells customers that it:
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`[C]arefully vet[s] our products to make sure they meet our
`high standards by researching ingredients, reading labels and
`auditing sourcing practices – all to make shopping easier for
`you. Remember, if it doesn’t meet our standards, we don’t
`sell it.
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`94. These facts show a retailer with a significant amount of trust and equity when it
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`comes to consumer purchasing.
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`95. Whole Foods manufactures or contracts to manufacture, private label products under
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`its “365” brand.
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`96. The quality of products under the 365 brand is considered equal to, or greater than,
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`similar products sold by national brands.
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`97. Whole Foods also sells its products through the internet, via its own website, and via
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`the website of corporate parent, Amazon.com, Inc. (“Amazon”).
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`98. The Product is available at all of Defendant’s stores and from its online platforms.
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`99. The Product is purported to be distributed by Whole Foods Market, which is
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`headquartered in Austin, Texas.
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`100. Defendant is the entity responsible for the Product’s labeling and approves and
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`
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`authorizes all products bearing the 365 brand.
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`101. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, from defendant’s stores including the location at 851
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`N Milwaukee Ave, Vernon Hills, IL 60061, between July and August 2021, among other times.
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`102. Plaintiff bought the Product because she expected it contained chocolate and not
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`chocolate substitutes, and did not contain more chocolate substitutes than chocolate because that
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`is what the front label said.
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`103. Plaintiff relied on the words, “Organic Chocolate Ice Cream Bars,” “Organic Vanilla
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`Ice Cream Dipped in Organic Chocolate,” depicted amidst chunks of chocolate, and the
`
`description, stating:
`
`Our Organic Ice Cream Bars are made the old fashioned way
`with the finest organic ingredients. We start with fresh cream
`and cane sugar, then dunk our rich ice cream in chocolate for
`a smooth, thick shell. Indulge in the pure decadence of our
`organic ice cream bars.
`
`104. Plaintiff bought the Product at or exceeding the above-referenced price.
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`105. Plaintiff expected the Product’s coating was exclusively chocolate, and if it had any
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`chocolate substitutes, these were present in a de minimis or negligible amount, instead of exceeding
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`the amount of chocolate liquor and cocoa butter.
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`106. Plaintiff would not have purchased the Product if she knew the representations were
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`false and misleading or would have paid less for it.
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`107. 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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`108. 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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`109. 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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`110. Plaintiff is unable to rely on the labeling of this, and other Whole Foods 365 brand
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`products, which means she buys fewer Whole Foods 365 brand items than before being aware of
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`this issue, which causes her to spend more money on buying more expensive brands.
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`111. Plaintiff wants to resume purchasing Whole Foods 365 brand products in the same
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`amount as she previously did.
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`Class Allegations
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`112. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
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`classes:
`
`Illinois Class: All persons in the State of Illinois who
`purchased the Product during the statutes of limitations for
`each cause of action alleged.
`
`Consumer Fraud Multi-State Class: All persons in the
`States of North Dakota, Kansas, Michigan, West Virginia,
`Wyoming, Minnesota, Rhode Island, and Delaware, who
`purchased the Product during the statutes of limitations for
`each cause of action alleged
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`113. 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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`114. 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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`115. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`116. 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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`117. 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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`118. 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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`119. 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.
`
`(Consumer Protection Statute)
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`120. Plaintiff incorporates by reference all preceding paragraphs.
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`121. Plaintiff and class members desired to purchase a product that contained chocolate
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`and not chocolate substitutes, and did not contain more chocolate substitutes than chocolate.
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`122. 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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`123. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`124. 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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`125. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`126. Plaintiff relied on the representations and omissions that the Product’s coating was
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`exclusively chocolate, and that if it contained any chocolate substitutes, this amount would be de
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`minimis or negligible instead of exceeding the chocolate ingredients.
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`127. 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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`Case: 1:21-cv-05516 Document #: 1 Filed: 10/17/21 Page 17 of 19 PageID #:17
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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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`128. 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 chocolate and not chocolate
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`substitutes, and did not contain more chocolate substitutes than chocolate.
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`129. 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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`130. This duty is based on Defendant’s outsized role in the market as a trusted brand, as
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`described above, which means consumers expect it to be different than other companies that are
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`solely motivated by their bottom line.
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`131. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers, and their employees.
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`132. 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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`133. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and was not merchantable because it was not fit to pass in the trade as
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`advertised.
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`134. 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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`135. Defendant had a duty to truthfully represent the Product, which it breached.
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`136. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience in this area, as a company which “vets” all its Products for quality and
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`honest labeling.
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`Case: 1:21-cv-05516 Document #: 1 Filed: 10/17/21 Page 18 of 19 PageID #:18
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`137. Defendant is a purveyor of natural foods, and though chocolate is natural, the use of
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`vegetable oils is not, because these ingredients are subject to hydrogenation and interesterification,
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`in the presence of chemical catalysts such as nickel and cadmium.
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`138. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, the leading specialty grocery store in the nation.
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`139. 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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`140. 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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`141. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained chocolate and not chocolate substitutes, and did not contain more chocolate
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`substitutes than chocolate.
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`142. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provide it with actual and/or constructive knowledge of
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`the falsity of the representations.
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`143. 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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`144. 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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`Case: 1:21-cv-05516 Document #: 1 Filed: 10/17/21 Page 19 of 19 PageID #:19
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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 and/or punitive damages pursuant to any statutory
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`claims and 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: October 17, 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
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`19
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