Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 1 of 12 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`
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`Debbie Kuciver, individually and on behalf of
`all others similarly situated,
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`1:21-cv-05964
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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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`KSF Acquisition Corporation,
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`
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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. KSF Acquisition Corporation (“defendant”) manufactures, packages, labels,
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`markets, and sells meal replacement foods such as shakes, bars, and snacks, promising “Clinically
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`Proven – Lose Weight & Keep It Off,*” and “4hr Hunger Control,” under the SlimFast brand
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`(“Product”).
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`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`
`
`Debbie Kuciver, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-05964
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`KSF Acquisition Corporation,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
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`1. KSF Acquisition Corporation (“defendant”) manufactures, packages, labels,
`
`markets, and sells meal replacement foods such as shakes, bars, and snacks, promising “Clinically
`
`Proven – Lose Weight & Keep It Off,*” and “4hr Hunger Control,” under the SlimFast brand
`
`(“Product”).
`
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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 2 of 12 PageID #:2
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`2.
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`The back and side labels of the Product describe the SlimFast Plan as “Clinically
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`Proven,” consisting of:
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`1. ONE SENSIBLE MEAL – enjoy your favorite foods
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`2. REPLACE TWO MEALS A DAY – with shakes, smoothies or bars
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`3. ONE SENSIBLE MEAL – enjoy your favorite foods
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`3.
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`The above claims – and Satisfies hunger” “Energy for hours” “4-hour hunger
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`control” and control blood sugar – appear on over fifty (50) SlimFast items.
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`4. Weight loss appeals to the many Americans who are considered overweight.
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`5.
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`Consumers who view the Clinically Proven claims will expect the Product and Plan
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`is proven to achieve the results indicated.
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`6.
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`Consumers will expect that (1) the Products on which the claim appears has been
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`clinically proven to achieve and maintain weight loss and (2) the Products have been clinically
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`proven to promote weight loss and keep it off when used as part of the SlimFast plan.
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`7. A claim that something is “clinically proven” requires clinical studies.
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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 3 of 12 PageID #:3
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`8. Defendant’s clinically proven claims are false, because it does not possess evidence
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`to support them, such as randomized and relevant controlled studies.
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`9.
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`The studies relied upon to support the clinically proven claim are from products
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`introduced many years ago, which are no longer sold.
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`10. Defendant has not clinically tested the weight-loss efficacy of the Products.
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`11. Defendant’s clinical trials are of discontinued SlimFast products, as part of a high
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`carbohydrate diet with no resemblance to today’s products, which are higher in fat, protein, and
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`contain fewer carbohydrates.
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`12. Defendant’s clinically proven claims are false because the products and plan upon
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`which the claims are based have not been offered for many years.
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`13. Defendant’s studies about the SlimFast plan being clinically proven are not even
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`entirely relevant to weight loss.
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`14. For instance, one study of required only two snacks per day, and did not involve the
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`participants exercising, nor adjust for higher calories consumed by men.
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`15. Another study failed to indicate whether any specific eating plan was required.
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`16. Another study involved subjects being advised to eat various servings of fruits and
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`vegetables per day, in addition to meal replacements and meals.
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`17. No current SlimFast plan requires consumption of a set number of fruits and
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`vegetables.
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`18. Other studies involve adherence to a low-calorie diet using SlimFast products to
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`achieve a calorie deficit.
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`19. Studies relied upon for the “Keep It Off” part of the claim are not supportive of the
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`clinically proven claims because they show that over 20% participants’ weight was regained at the
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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 4 of 12 PageID #:4
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`end of one-year.
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`20. Guidelines provided by the government indicate that longer term evidence of
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`continued weight loss ad- vantage of meal replacement programs is lacking.
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`21. Defendant’s back label seeks to disclaim the unqualified front label claim.
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`22. The text, “*When Used as Part of the SlimFast Plan,” is small and difficult to read.
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`23. The other claims – regarding hunger control, satiety, and blood sugar, are false and
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`misleading.
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`24. Defendant’s hunger control claim is misleading because the studies relied upon had
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`limited consumer relevance because the subjects were not given food during the test period, so
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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 5 of 12 PageID #:5
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`whether or not they could control their hunger was not actually evaluated.
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`25. 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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`26. 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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`27. 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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`28. 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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`29. The Product is sold for a price premium compared to other similar products, no less
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`than $12.79 for eight 11 oz bottles, a higher price than it would otherwise be sold for, absent the
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`misleading representations and omissions.
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`Jurisdiction and Venue
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`30.
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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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`31. 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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`32. Plaintiff Debbie Kuciver is a citizen of Illinois.
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`33. Defendant KSF Acquisition Corporation is a Delaware corporation with a principal
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`place of business in Palm Beach Gardens, Palm Beach County, Florida.
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`34. Defendant transacts business within this district by selling its Products to thousands
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`of retailers in this district, and directly shipping the Products to persons in this district.
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`35. The parties are citizens of different states.
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`36. 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, Plaintiff’s purchase of the Product and awareness
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`of the issues described herein.
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`37. Venue is in the Eastern Division because Plaintiff resides in DuPage County.
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` Parties
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`38. Plaintiff Debbie Kuciver is a citizen of Wood Dale, DuPage County, Illinois.
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`39. Defendant KSF Acquisition Corporation is a Delaware corporation with a principal
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`place of business in Palm Beach Gardens, Florida, Palm Beach County.
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`40. SlimFast is a pioneer in weight control, going back to its founding in the 1940s.
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`41. This long history has provided it cachet and caused consumers to instinctively trust
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`the SlimFast brand.
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`42. The Product is sold at the thousands of locations including drug stores, grocery
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`stores, big box stores, convenience stores, and online.
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`43. Plaintiff bought the Product, such as the SlimFast Original Rich Chocolate Royale
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`Meal Replacement Shake, on one or more occasions within the statutes of limitations for each
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`cause of action alleged, at stores including Jewel-Osco, 343 W Irving Park Rd, Wood Dale, IL
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`60191, during 2020 and/or 2021, among other times.
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`44. Plaintiff counts herself among the many Americans who would like to lose weight.
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`45. Plaintiff bought the Product because she expected the Product and SlimFast plan to
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`be clinically proven to lose weight and keep it off, would control hunger and blood sugar.
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`46. Plaintiff bought the Product at or exceeding the above-referenced price.
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`47. Plaintiff relied on the representations identified here.
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`48. Plaintiff would not have purchased the Product if she knew the representations were
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`false and misleading.
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`49. Plaintiff chose between Defendant’s Product and other similar products which were
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`represented similarly, but which did not misrepresent their attributes and/or lower-priced products
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`which did not make the claims made by Defendant.
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`50. 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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`51. 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 their abilities.
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`52. Plaintiff has purchased fewer items that promise they are clinically proven since
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`becoming aware of this issue but wants to resume purchasing such items because she cannot
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`imagine that all such claims that a product is clinically proven are as false as those here, but then
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`again, she would not have expected Defendant’s claims to be false.
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`Class Allegations
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`53. 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 North Dakota, Kansas, Texas, Wyoming, and
`Delaware, who purchased the Product during the statutes of
`limitations for each cause of action alleged
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`54. 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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`55. Plaintiff's claims and basis for relief are typical to other members because all were
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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 8 of 12 PageID #:8
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`subjected to the same unfair and deceptive representations and actions.
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`56. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`57. 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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`58.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`59. 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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`60. 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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`61. Plaintiff incorporates by reference all preceding paragraphs.
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`62. The Illinois Consumer Fraud and Deceptive Business Practices Act provides
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`protection for consumers purchasing items like the 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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`63. Plaintiff and class members expected the Product and SlimFast plan to be clinically
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`proven to lose weight and keep it off, would control hunger and blood sugar.
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`64. 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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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 9 of 12 PageID #:9
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`65. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`66. Plaintiff relied on the representations.
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`67. 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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`68. 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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`69. 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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`70. 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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`71.
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`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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`72. The Product was manufactured, labeled, and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that the Product and SlimFast plan was
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`clinically proven to lose weight and keep it off, would control hunger and blood sugar
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`73. 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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`74. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted and leading brand in the area of weight control.
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`75. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers, and their employees.
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`76. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, third-party evaluators, competitors, and consumers, to its main offices.
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`77. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and was not clinically proven, and did not control hunger or blood sugar.
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`78. 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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`79. Defendant had a duty to truthfully represent the Product, which it breached.
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`80. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience this area, as custodian of the SlimFast brand.
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`81. Because weight loss is an area which many consumers are embarrassed about, they
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`are vulnerable to trusting companies which make bold promises.
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`82. Consumers are reluctant to talk with others about their weight control issues, which
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`means the companies selling them solutions have a special obligation to treat them with care.
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`83. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in SlimFast, a globally recognized and trusted brand.
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`84. Plaintiff and class members reasonably and justifiably relied on these negligent
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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 11 of 12 PageID #:11
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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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`85. 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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`86. Defendant misrepresented and/or omitted the attributes and capabilities of the
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`Product.
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`87. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`clinically proven.
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`Unjust Enrichment
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`88. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`Case: 1:21-cv-05964 Document #: 1 Filed: 11/06/21 Page 12 of 12 PageID #:12
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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: November 6, 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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`12
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