Case: 1:22-cv-01026 Document #: 1 Filed: 02/26/22 Page 1 of 18 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`Rabia Hamidani, individually and on behalf of
`all others similarly situated,
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`1:22-cv-01026
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`Plaintiff,
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`- against -
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`Class Action Complaint
`
`Bimbo Bakehouse LLC,
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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.
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`Bimbo Bakehouse LLC (“Defendant”) manufactures, labels, markets, and sells
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`“Brown Bread” under The Cheesecake Factory brand (the “Product”).
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`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Rabia Hamidani, individually and on behalf of
`all others similarly situated,
`
`1:22-cv-01026
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Bimbo Bakehouse LLC,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
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`Bimbo Bakehouse LLC (“Defendant”) manufactures, labels, markets, and sells
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`“Brown Bread” under The Cheesecake Factory brand (the “Product”).
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`2.
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`The representations include “The Cheesecake Factory At Home,” “Our Famous
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`‘Brown Bead,’” “Wheat Sandwich Loaf,” “No Artificial Preservatives or Flavors,” and a dark-
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`colored loaf of bread with visible pieces of grains on the crust.
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`I.
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`CONSUMERS VALUE WHOLE GRAINS
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`3.
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`Consumers increasingly prefer whole grains to non-whole grains.
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`4. Whole grains are nutritionally superior to non-whole grains because they include the
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`entire grain seed, consisting of the endosperm, bran, and germ.
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`5.
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`The bran and germ contain important nutrients like fiber, vitamins, minerals, and
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`antioxidants, such as iron, zinc, folate, magnesium, thiamin, niacin, selenium, riboflavin,
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`manganese, copper, vitamin A, and vitamin B6.
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`6.
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`7.
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`The bran also gives whole grains their distinctive brown coloring.
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`In contrast, “non-whole grains” or “refined grains” have been processed to remove
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`the bran and germ, thereby removing the fiber and most other nutrients.
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`8. Most refined grains are enriched, a process that adds back some of the previously
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`removed iron and B vitamins, such as thiamin, riboflavin, niacin, and folic acid.
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`9. Other nutrients, including fiber, vitamin E, vitamin B6, vitamin K, magnesium,
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`manganese, potassium, phosphorus, copper, calcium, and selenium, are not added back.
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`10. Where flour is made of refined grains, which only contains the endosperm and
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`mainly starch, it is white in color (“white flour”).
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`11. The 2015-2020 Dietary Guidelines for Americans recommend that at least half of all
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`grains eaten be whole grains.
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`12. The Dietary Guidelines recommend consuming 48g of whole grains per day.
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`A. Consumers Expect Fiber From Products Represented as Whole Grain
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`13. The average person needs 28 grams of fiber per day.
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`14. Dietary Guidelines promote whole grains as an important source of fiber.
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`15. 87% of consumers try to consume more whole grains and 92% try to get more fiber.
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`16. Research proves that consumers seek whole grains because they want more fiber.
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`17.
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`In surveys, more than 60% of consumers stated they want to consume more whole
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`grains to improve their digestive health, which is reflective of a desire to increase fiber intake.
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`18. Almost 75% of consumers who are presented representations which contain express
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`and implied representations that a product is made with, or contains whole grains, will expect that
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`food to be at least a good source of fiber – 10% of the daily value.
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`19. Almost 70% of consumers agree with the statement that whole grains are one of the
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`best sources of fiber.
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`20. 62% of consumers agree that foods made from whole grains are one of the best
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`sources of fiber.
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`21. 46% of consumers rely on foods with whole grains for their daily fiber needs.
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`22. Based on the proven connection with fiber, consumers expect foods represented –
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`directly or indirectly – as whole grain, do more than tell consumers a product contains a type of
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`grain ingredient.
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`23. At least half of consumers expect that such foods will be a good source of fiber.
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`B. Brown Color and Visible Grains
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`24. Almost half of participants in a recent study incorrectly estimated the whole grain
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`content of grain products, and about the same number overstated the whole grain content of actual
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`whole grain foods.
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`25. According to a food economist and professor at Tufts University, manufacturers have
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`many ways to persuade consumers about a product’s whole grain content.
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`26. Studies have shown that consumers seeking whole grain look for products darker in
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`color with visible grains.
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`27. This is logical, because refined grains are associated with white bread, which is
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`smooth and even.
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`28.
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`In contrast to white bread, made from refined grain, bread that is brown with visible
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`grain pieces is expected to be made mainly from whole grains.
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`29.
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`In a recent study, participants stated, “For me I like to look at the color,” and “I like
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`to be able to see the grains” to find out if a bread is mainly whole grain.
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`30. One of these methods is the addition of coloring from molasses or caramel.
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`31. Companies also mix distinct pieces of whole grains to their bread, which creates the
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`impression it contains more whole grain flour than it does.
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`32. One food and nutrition professor stated, “Even people with advanced degrees cannot
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`figure out how much whole grain” is in products represented to consumers as whole grain.
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`33. The FDA cautioned companies against misleading consumers as to whole grain
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`content of foods, through statements, representations, and omissions.
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`34. The Food and Drug Administration (“FDA”) has established standards of identity for
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`various flours, including a standard of identity for whole wheat flour. 21 C.F.R. § 137.200.
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`35. However, the FDA recognized that companies could find many ways to mislead
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`consumers as to the amount of whole wheat flour used in grain products.
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`36. The FDA stated that depending on the context in which a product was represented,
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`directly or indirectly, as whole grain, consumers could likely understand a product is “100 percent
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`whole grain.”
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`37. The Federal Trade Commission (“FTC”) agreed and recognized that many
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`reasonable consumers will likely understand whole grain representations, direct or implied, to
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`mean that all, or virtually all, of the food product is whole grain, or that all of the grain ingredients
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`in the product are whole grains.
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`38. The recommendation of the FDA was that products marketed as “whole grain,” either
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`by representations, omissions, or other methods, not contain non-whole grains.
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`39.
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` The FDA has warned companies against making misleading whole grain
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`representations, even where the actions merely take advantage of common consumer assumptions,
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`such as through product names, like “HiHo Deluxe WHOLE WHEAT Crackers” and “Krispy
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`WHOLE WHEAT Saltine Crackers,” and added coloring to bread to make it look “brown.”
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`II. PRODUCT NOT WHOLE GRAIN
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`40. Despite the labeling of the Product as “Brown Bread,” with a dark brown color, and
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`visible pieces of grain, the Product is not made mainly whole grains.
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`41. This is revealed in part from the fiber content shown on the Nutrition Facts as 1g per
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`serving, or 4% of the Daily Value.
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`42. The ingredient list reveals that the most predominant ingredient is not whole grain
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`flour but “ENRICHED WHEAT FLOUR.”
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`INGREDIENTS: ENRICHED WHEAT FLOUR (WHEAT
`FLOUR, MALTED BARLEY FLOUR, NIACIN,
`REDUCED
`IRON,
`THIAMIN MONONITRATE,
`RIBOFLAVIN, FOLIC ACID), WATER, WHOLE
`WHEAT FLOUR, SUGAR, BROWN SUGAR, OATS,
`RYE FLAKES, CONTAINS 2% OR LESS OF EACH:
`YEAST, WHEAT GLUTEN, VEGETABLE OIL
`(CANOLA OIL AND/OR SOYBEAN OIL), DRIED
`MOLASSES [MOLASSES, WHEAT STARCH], WHEAT
`BRAN, SALT, CULTURED WHEAT STARCH,
`MALTED BARLEY EXTRACT, CARAMEL COLOR,
`MALTED BARLEY FLOUR, SOYBEAN LECITHIN,
`GUAR GUM, MONO AND DIGLYCERIDES,
`DEXTROSE, ASCORBIC ACID, ENZYMES.
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`43. While “WHOLE WHEAT FLOUR” is the third most predominant ingredient, this is
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`less than the second most predominant ingredient of “WATER.”
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`44. Even if consumers review the ingredients, they will not know what percent of the
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`Product’s grains are refined and whole grains.
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`45. The Product contains “OATS, [and] RYE FLAKES,” added to the exterior.
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`46. This causes consumers to see these visible grain pieces and expect the Product is
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`made from these whole grain flours, even though their purpose is only visual.
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`47. The Product contains “DRIED MOLASSES” and “CARAMEL COLOR,” which
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`cause the bread to be significantly darker than it would be if the color was based solely on the ratio
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`of refined grains to whole grains.
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`48. These ingredients contribute to consumers getting the misleading impression the
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`Product contains more whole grains, relative to refined grains, than it does.
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`49. The Product’s name of “Brown Bread” takes advantage of consumer assumptions
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`and beliefs about the darker color of whole grain products.
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`50. That the name is presented in quotes does not tell consumers the Product is not really
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`brown bread.
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`51.
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`Instead, the quotes are used to identify the Product as the brown bread typically
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`served to consumers at The Cheesecake Factory restaurants.
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`III. CONCLUSION
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`52. Defendant makes other representations and omissions with respect to the Product
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`which are false or misleading.
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`53. 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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`54. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`55. 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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`56. 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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`57. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $3.99, excluding tax and sales, higher than
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`similar products, represented in a non-misleading way, and higher than it would be sold for absent
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`the misleading representations and omissions.
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`Jurisdiction and Venue
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`58.
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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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`59. 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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`60. Plaintiff Rabia Hamidani is a citizen of Illinois.
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`61. Defendant Bimbo Bakehouse LLC is an Delaware limited liability company with a
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`principal place of business in Horsham, Montgomery County, Pennsylvania and upon information
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`and belief, at least one member of defendant is not a citizen of the same state as the plaintiff.
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`62. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
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`63. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold for several years, in thousands of locations, in the states covered by
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`Plaintiff’s proposed classes.
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`64. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
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`online.
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`65. Venue is in the Eastern Division in this District because a substantial part of the
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`events or omissions giving rise to these claims occurred in Cook County, i.e., Plaintiff’s purchase,
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`consumption, and/or use of the Product and awareness and/or experiences of and with the issues
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`described here.
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`Parties
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`66. Plaintiff Rabia Hamidani is a citizen of Chicago, Cook County, Illinois.
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`67. Defendant Bimbo Bakehouse LLC is a Delaware limited liability company with a
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`principal place of business in Horsham, Pennsylvania, Montgomery County.
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`68. The parent company of Defendant is Bimbo Bakeries, the largest multinational
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`bakery conglomerate in the world.
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`69. Defendant manufactures, labels, and markets the Product under license from The
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`Cheesecake Factory.
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`70. Founded in the 1940s, the restaurant which would become The Cheesecake Factory
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`began by only selling cheesecake.
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`71. Beginning in Los Angeles, the first few Cheesecake Factory restaurants were a hit
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`with the public, who appreciated the diverse menu and freshly prepared meals.
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`72. As a family business, The Cheesecake Factory focused on foods Americans enjoyed,
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`made with nutrient-rich ingredients that were good for them.
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`73. The Cheesecake Factory’s success resulted in the sale of branded products in
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`supermarkets across the nation.
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`74. These products carry the brand’s name, and reputation for high quality, established
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`from almost a century of success.
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`75.
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`In numerous polls, The Cheesecake Factory has been the top pick of consumers in
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`the favorite restaurant and food quality category for several years in a row.
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`76. Consumers presented with Cheesecake Factory-branded products at the supermarket
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`will expect the same level of high-quality and truthfulness they have grown accustomed to.
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`77.
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` Consumers know they can trust a product with the Cheesecake Factory’s name to
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`deliver what it promises, directly or indirectly.
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`78. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
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`online.
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`79. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at stores including Jewel Osco, at locations including
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`424 W Division St Chicago IL 60610-3190 between August 2021 and October 2021, and/or among
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`other times.
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`80. Plaintiff believed the Product contained a greater absolute and relative amount of
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`whole grains compared to refined grains, and more fiber, than it did.
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`81. Plaintiff bought the Product because she expected it contained a greater absolute and
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`relative amount of whole grains compared to refined grains, and more fiber, than it did because
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`that is what the representations said and implied.
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`82. Plaintiff relied on the words, coloring, descriptions, layout, packaging, tags, and/or
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`images on the Product, on the labeling, statements, omissions, and/or claims made by Defendant
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`or at its directions, in digital, print and/or social media, which accompanied the Product and
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`separately, through in-store, digital, audio, and print marketing.
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`83. Plaintiff was disappointed because she believed the Product contained a greater
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`absolute and relative amount of whole grains compared to refined grains, and more fiber, than it
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`did.
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`84. Plaintiff bought the Product at or exceeding the above-referenced price.
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`85. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`86. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, features, and/or components.
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`87. 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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`88. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`89. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but for other similar whole grain products, because she is unsure whether those representations are
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`truthful.
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`Class Allegations
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`90. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following 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; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Arkansas, Montana, Nebraska, Virginia,
`Georgia, and Iowa, who purchased the Product
`during the statutes of limitations for each cause of
`action alleged.
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`91. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`92. 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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`93. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`94. 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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`95.
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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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`96. 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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`97. 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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`98. Plaintiff incorporates by reference all preceding paragraphs.
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`99. Plaintiff and class members desired to purchase a product that contained a greater
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`absolute and relative amount of whole grains compared to refined grains, and more fiber, than it
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`did.
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`100. 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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`101. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`102. Plaintiff relied on the representations that the Product contained a greater absolute
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`and relative amount of whole grains compared to refined grains, and more fiber, than it did.
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`103. 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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`104. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the above-referenced consumer protection statute and prohibit the use of unfair or
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`deceptive business practices in the conduct of trade or commerce.
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`105. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`106. Defendant intended that each of the members of the Consumer Fraud Multi-State
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`Class would rely upon its deceptive conduct, and a reasonable person would in fact be misled by
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`this deceptive conduct.
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`107. As a result of Defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, each of the members of the Consumer Fraud Multi-State Class have sustained
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`damages in an amount to be proven at trial.
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`108. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`109. Plaintiff entered into a contract with Defendant for purchase of the Product.
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`Breach of Contract
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`110. The terms of the contract provided that the Product contained a greater absolute and
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`relative amount of whole grains compared to refined grains, and more fiber, than it did.
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`111. Defendant breached the contract because the Product did not meet the terms Plaintiff
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`agreed to.
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`112. Plaintiff was damaged by the breach, and those damages include the purchase price.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`113. 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 a greater absolute and relative
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`amount of whole grains compared to refined grains, and more fiber, than it did.
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`114. Defendant directly marketed the Product to Plaintiff and consumers through its
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`advertisements and marketing, through various forms of media, on the packaging, in print
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`circulars, direct mail, and targeted digital advertising.
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`115. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`116. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant the Product contained a
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`greater absolute and relative amount of whole grains compared to refined grains, and more fiber,
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`than it did.
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`117. Defendant’s representations affirmed and promised that the Product contained a
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`greater absolute and relative amount of whole grains compared to refined grains, and more fiber,
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`than it did.
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`118. Defendant described the Product as one which contained a greater absolute and
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`relative amount of whole grains compared to refined grains, and more fiber, than it did, which
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`became part of the basis of the bargain that the Product would conform to its affirmations and
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`promises.
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`119. 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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`120. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`the trusted Cheesecake Factory brand, known for transparency, foods with high-quality, nutrient-
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`rich ingredients, and made from scratch.
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`121. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`122. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`123. Plaintiff hereby provides notice to Defendant that it has breached the express and
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`implied warranties associated with the Product.
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`124. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`125. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`126. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container or label.
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`127. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because she expected it contained
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`a greater absolute and relative amount of whole grains compared to refined grains, and more fiber,
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`than it did, and she relied on Defendant’s skill and judgment to select or furnish such a suitable
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`product.
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`128. 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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`129. Defendant had a duty to truthfully represent the Product, which it breached.
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`130. This duty was non-delegable, and based on Defendant’s position, holding itself out
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`as having special knowledge and experience in this area, the world’s largest bakery company,
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`selling products under the trusted Cheesecake Factory brand, known for transparency, foods with
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`high-quality, nutrient-rich ingredients, and made from scratch.
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`131. Defendant’s representations regarding the Product went beyond the specific
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`representations on the packaging, as they incorporated the extra-labeling promises and
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`commitments to quality, transparency and putting customers first, that the Cheesecake Factory has
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`been known for.
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`132. These promises were outside of the standard representations that other companies
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`may make in a standard arms-length, retail context.
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`133. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in Defendant.
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`134. 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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`135. 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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`136. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`16
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`Case: 1:22-cv-01026 Document #: 1 Filed: 02/26/22 Page 17 of 18 PageID #:17
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`that it contained a greater absolute and relative amount of whole grains compared to refined grains,
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`and more fiber, than it did.
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`137. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity or deception, through statement and omission, of the representations.
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`138. Defendant knew of the issues described here yet did not address them.
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`139. 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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`140. 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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`claims and interest pursuant to the common law and other statutory claims;
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`17
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`Case: 1:22-cv-01026 Document #: 1 Filed: 02/26/22 Page 18 of 18 PageID #:18
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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: February 26, 2022
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`Respectfully submitted,
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`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`18
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