Case: 1:22-cv-01183 Document #: 1 Filed: 03/06/22 Page 1 of 15 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Jessica Sneed, individually and on behalf of all
`others similarly situated,
`
`1:22-cv-01183
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Ferrero U.S.A., Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Ferrero U.S.A., Inc. (“Defendant”) manufactures, labels, markets, and sells a plastic
`
`egg-shaped package with one section containing “Sweet Cream Topped With Cocoa Wafer Bites,”
`
`and the other consisting of a small toy, under the Kinder Joy brand (the “Product”).
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Jessica Sneed, individually and on behalf of all
`others similarly situated,
`
`1:22-cv-01183
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Ferrero U.S.A., Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Ferrero U.S.A., Inc. (“Defendant”) manufactures, labels, markets, and sells a plastic
`
`egg-shaped package with one section containing “Sweet Cream Topped With Cocoa Wafer Bites,”
`
`and the other consisting of a small toy, under the Kinder Joy brand (the “Product”).
`
`
`
`
`
`
`
`Case: 1:22-cv-01183 Document #: 1 Filed: 03/06/22 Page 2 of 15 PageID #:2
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`2. More than half of the packaging is white, which represents milk, with two large
`
`“drops” of milk.
`
`3.
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`The rest of the packaging is orange, the same color as the statement, “Surprise Toy
`
`Inside.”
`
`4.
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`“Sweet Cream Topped With Cocoa Wafer Bites” is in brown font on top of the white
`
`background, next to drops of chocolate.
`
`5.
`
`The representation as “Sweet Cream” is false, deceptive, and misleading, because
`
`the Product does not contain cream.
`
`I.
`
`CREAM
`
`A. Cream is Made From Dairy Ingredients
`
`6.
`
`Cream is understood by consumers as a dairy ingredient.
`
`7. Google Dictionary – based on its leading search engine that discovers the most
`
`relevant and accurate information – defines cream as “the thick white or pale yellow fatty liquid
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`which rises to the top when milk is left to stand and which can be eaten as an accompaniment to
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`desserts or used as a cooking ingredient.”
`
`8. Merriam-Webster defines cream as the “yellowish part of milk containing from 18
`
`to about 40 percent butterfat.”
`
`9.
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`The Britannica Dictionary defines cream as “the thick part of milk that rises to the
`
`top; the part of milk that contains fat.”
`
`10. Collins Dictionary defines cream as “is a thick yellowish-white liquid taken from
`
`milk.
`
`11. Dictionary.com defines cream as “the fatty part of milk, which rises to the surface
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`when the liquid is allowed to stand unless homogenized.”
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`2
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`12. The Food and Drug Administration (“FDA”), and identical Illinois regulations,
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`define cream as “the liquid milk product high in fat separated from milk, which may have been
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`adjusted by adding thereto: Milk, concentrated milk, dry whole milk, skim milk, concentrated skim
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`milk, or nonfat dry milk. Cream contains not less than 18 percent milkfat.” 21 C.F.R. § 131.3(a).
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`13. The two main types of cream are sweet cream and sour cream.
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`14. “Sweet cream” does not mean any sweetener has been added, but that the cream has
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`the naturally sweet flavor of milk, in contrast to a cultured cream such as “sour cream,” which has
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`greater acidity.
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`B. Differences Between Cream and Artificial Cream
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`15. Cream is known for its “creamy” taste because milkfat contains hundreds of lactones,
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`aroma compounds which contribute to its taste.
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`16. Artificial cream substitutes milkfat with vegetable oils to reduce cost.
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`17. These ingredients, like palm and palm kernel oil, are solid at room temperature, and
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`referred to as “hard [vegetable] fats.”
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`18.
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`In production of artificial cream, refined vegetable oils are carefully blended to have
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`some physical properties resembling milkfat.
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`19. However, artificial cream may also include thickening agents, like gums and
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`starches, salts, such as phosphates to provide buffer control against pH changes that can destabilize
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`the emulsion, oxidation stabilizers, sugar, flavor and protein sources such as whey protein and
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`skim milk.
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`20. The result of substituting vegetable fats for dairy fat is that the resulting “cream” will
`
`provide less satiety, a waxy and oily mouthfeel, and leave an aftertaste.
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`21. Milkfat melts at mouth temperature (35 °C/95 °F) and does not contribute to a waxy
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`3
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`sensation.
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`22.
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`In contrast to dairy ingredients with milkfat, vegetable oils do not melt at mouth
`
`temperature and leave a waxy mouthfeel.
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`23.
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`In contrast to fats from dairy ingredients, consumption of vegetable oils is linked to
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`numerous health problems, like increased chances of heart disease and increased cholesterol.
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`24. Milkfat also contains calcium, vitamins A, D, E, and K, which are absent from
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`hardened vegetable fats.
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`II. REPRESENTATION AS “SWEET CREAM” IS MISLEADING
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`25. Despite labeling the Product as “Sweet Cream…,” the Product does not contain
`
`cream, as the ingredient list indicates no ingredients that are a source of milkfat.
`
`
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`INGREDIENTS: SUGAR, VEGETABLE OILS (PALM, SHEANUT AND
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`SUNFLOWER), SKIM MILK POWDER, WHEAT FLOUR, COCOA,
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`WHEAT GERM, WHEAT STARCH, COCOA MASS, MALT EXTRACT,
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`SOY LECITHIN AS EMULSIFIER, WHEY PROTEINS, COCOA BUTTER,
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`ARTIFICIAL FLAVORS, AMMONIUM BICARBONATE AND SODIUM
`
`BICARBONATE AS LEAVENING AGENTS, SALT.
`
`26.
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`Instead of cream, the Product contains artificial cream, derived from hardened
`
`vegetable oils, including “Palm, Sheanut and Sunflower [Oils].”
`
`27. Though the Product contains two dairy ingredients, neither are cream.
`
`28. “Skim Milk Powder,” listed third, is not “cream” and contains no fat.
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`4
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`29. “Whey Proteins” refers to the watery portion of milk that separates from the curds
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`when making cheese, which contains little to no fat.
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`30. The Product lacks the nutritive, sensory, organoleptic, and other attributes expected
`
`from a product described as “[Sweet] Cream.”
`
`III. CONCLUSION
`
`31. Defendant makes other representations and omissions with respect to the Product
`
`which are false or misleading.
`
`32. Reasonable consumers must and do rely on a company to honestly identify and
`
`describe the components, attributes, and features of a product, relative to itself and other
`
`comparable products or alternatives.
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`33. The value of the Product that Plaintiff purchased was materially less than its value
`
`as represented by Defendant.
`
`34. Defendant sold more of the Product and at higher prices than it would have in the
`
`absence of this misconduct, resulting in additional profits at the expense of consumers.
`
`35. Had Plaintiff and proposed class members known the truth, they would not have
`
`bought the Product or would have paid less for it.
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`36. 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 $1.99, 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
`
`37.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2).
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`5
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`38. 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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`39. Plaintiff Jessica Sneed is a citizen of Illinois.
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`40. Defendant Ferrero U.S.A., Inc. is a Delaware corporation with a principal place of
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`business in Parsippany, Morris County, New Jersey.
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`41. 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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`42. 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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`43. The Product is available to consumers from third-parties, which includes grocery
`
`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
`
`online.
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`44. 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,
`
`consumption, and/or use of the Product and awareness and/or experiences of and with the issues
`
`described here.
`
`Parties
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`45. Plaintiff Jessica Sneed is a citizen of Tinley Park, Cook County, Illinois.
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`46. Defendant Ferrero U.S.A., Inc. is a Delaware corporation with a principal place of
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`business in Parsippany, New Jersey, Morris County.
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`47. The parent company of Defendant is Ferrero SpA (“Ferrero”), the second largest
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`manufacturer of chocolate and confectionery products in the world.
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`6
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`48. Ferrero consists of 38 subsidiaries, that operate 18 factories, and employ over 40,000
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`workers.
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`49. According to the Reputation Institute, Ferrero is one of the most reputable companies
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`in the world.
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`50. These values originated with founder Pietro Ferrero, a Piedmont (Italy) confectioner
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`and pastry maker, known for his impeccable honesty and commitment to quality.
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`51. The founder of Ferrero invented Nutella by adding hazelnuts to chocolate to save
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`money during economic shortages in Italy after World War Two.
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`52. Pietro Ferrero required truthfulness from everyone who worked for Ferrero, and he
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`put the consumer interests above all others.
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`53. Kinder (Chocolate)1 is a Ferrero brand of chocolate products introduced in the late
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`1960s.
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`54. Kinder chocolate bars contain various fillings, based on milk and hazelnut.
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`55. The Kinder product line includes the world-famous Kinder Surprise, a hollow milk
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`chocolate egg shell, with a milky interior, containing a toy.
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`56. The Kinder Joy is the American version of the Kinder Surprise, but has a plastic egg-
`
`shaped packaging, internally divided into two halves.
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`57. One half contains “Sweet Cream Topped With Cocoa Wafer Bites,” and the other
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`consists of a small toy.
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`58. The Kinder product line has seen tremendous success in the United States, and
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`exceeds other brands in popularity.
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`59. Consumers know they can trust a product from the Kinder brand, and Ferrero, to
`
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`1 “Kinder” is German for “children.”
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`7
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`deliver what it promises.
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`60. The Product is available to consumers from third-parties, which includes grocery
`
`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
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`online.
`
`61. 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 Walmart, at locations including
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`9265 159th St Orland Hills, IL 60487 between February 16, 2022, and February 23, 2022, and/or
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`among other times.
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`62. Plaintiff believed the Product contained cream, understood as dairy ingredients based
`
`on milkfat.
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`63. Plaintiff bought the Product because she expected it contained cream, understood as
`
`dairy ingredients based on milkfat because that is what the representations said and implied.
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`64. 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
`
`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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`65. Plaintiff was disappointed because she believed the Product contained cream,
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`understood as dairy ingredients based on milkfat.
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`66. Plaintiff bought the Product at or exceeding the above-referenced price.
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`67. Plaintiff would not have purchased the Product if she knew the representations and
`
`omissions were false and misleading or would have paid less for it.
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`68. 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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`8
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`69. 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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`70. 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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`71. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but for other similar cream-based confections, because she is unsure whether those representations
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`are truthful.
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`Class Allegations
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`72. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following 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; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Arkansas, Montana, Nebraska, Virginia,
`Georgia, and Minnesota, who purchased the Product
`during the statutes of limitations for each cause of
`action alleged.
`
`73. 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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`74. 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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`75. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`76. 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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`77.
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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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`78. 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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`79. 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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`80. Plaintiff incorporates by reference all preceding paragraphs.
`
`81. Plaintiff and class members desired to purchase a product that contained cream,
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`understood as dairy ingredients based on milkfat.
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`82. Defendant’s false and deceptive representations and omissions are material in that
`
`they are likely to influence consumer purchasing decisions.
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`83. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
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`84. Plaintiff relied on the representations that the Product contained cream, understood
`
`as dairy ingredients based on milkfat.
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`85.
`
` Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
` Violation of State Consumer Fraud Acts
`
`(On Behalf of the Consumer Fraud Multi-State Class)
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`86. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
`
`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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`87. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
`
`their consumer protection claims under the Consumer Fraud Acts of the States they represent
`
`and/or the consumer protection statute invoked by Plaintiff.
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`88. Defendant intended that each of the members of the Consumer Fraud Multi-State
`
`Class would rely upon its deceptive conduct, and a reasonable person would in fact be misled by
`
`this deceptive conduct.
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`89. 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
`
`damages in an amount to be proven at trial.
`
`90. Defendant’s conduct showed motive and a reckless disregard of the truth such that
`
`an award of punitive damages is appropriate.
`
`
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`91. Plaintiff entered into a contract with Defendant for purchase of the Product.
`
`Breach of Contract
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`92. The terms of the contract provided that the Product contained cream, understood as
`
`dairy ingredients based on milkfat.
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`93. Defendant breached the contract because the Product did not meet the terms Plaintiff
`
`agreed to.
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`94. Plaintiff was damaged by the breach, and those damages include the purchase price.
`
`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.
`
`95. The Product was manufactured, identified, and sold by Defendant and expressly and
`
`impliedly warranted to Plaintiff and class members that it contained cream, understood as dairy
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`11
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`ingredients based on milkfat.
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`96. Defendant directly marketed the Product to Plaintiff and consumers through its
`
`advertisements and marketing, through various forms of media, on the packaging, in print
`
`circulars, direct mail, and targeted digital advertising.
`
`97. Defendant knew the product attributes that potential customers like Plaintiff were
`
`seeking and developed its marketing and labeling to directly meet those needs and desires.
`
`98. Defendant’s representations about the Product were conveyed in writing and
`
`promised it would be defect-free, and Plaintiff understood this meant the Product contained cream,
`
`understood as dairy ingredients based on milkfat.
`
`99. Defendant’s representations affirmed and promised that the Product contained
`
`cream, understood as dairy ingredients based on milkfat.
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`100. Defendant described the Product as one which contained cream, understood as dairy
`
`ingredients based on milkfat, which became part of the basis of the bargain that the Product would
`
`conform to its affirmations and promises.
`
`101. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
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`102. This duty is based on Defendant’s outsized role in the market for this type of Product,
`
`a trusted family company, known for its transparency to consumers, and not sacrificing quality
`
`when it comes to ingredients, with a commitment to putting customers first.
`
`103. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`104. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
`
`retailers, and their employees.
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`105. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`12
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`warranties associated with the Product.
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`106. 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,
`
`and by consumers through online forums.
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`107. 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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`108. The Product was not merchantable because it was not fit to pass in the trade as
`
`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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`109. The Product was not merchantable because Defendant had reason to know the
`
`particular purpose for which the Product was bought by Plaintiff, because she expected it contained
`
`cream, understood as dairy ingredients based on milkfat, and she relied on Defendant’s skill and
`
`judgment to select or furnish such a suitable product.
`
`110. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Negligent Misrepresentation
`
`111. Defendant had a duty to truthfully represent the Product, which it breached.
`
`112. This duty was non-delegable, and based on Defendant’s position, holding itself out
`
`as having special knowledge and experience in this area, a trusted family company, known for its
`
`transparency to consumers, and not sacrificing quality when it comes to ingredients, with a
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`commitment to putting customers first.
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`113. Defendant’s representations regarding the Product went beyond the specific
`
`representations on the packaging, as they incorporated the extra-labeling promises and
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`13
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`commitments to quality, transparency and putting customers first, that it has been known for.
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`114. These promises were outside of the standard representations that other companies
`
`may make in a standard arms-length, retail context.
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`115. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`point-of-sale and their trust in Defendant.
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`116. Plaintiff and class members reasonably and justifiably relied on these negligent
`
`misrepresentations and omissions, which served to induce and did induce, their purchase of the
`
`Product.
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`117. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Fraud
`
`118. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
`
`that it contained cream, understood as dairy ingredients based on milkfat.
`
`119. Moreover, the records Defendant is required to maintain, and/or the information
`
`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
`
`the falsity or deception, through statement and omission, of the representations.
`
`120. Defendant knew of the issues described here yet did not address them.
`
`121. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
`
`Unjust Enrichment
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`122. Defendant obtained benefits and monies because the Product was not as represented
`
`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
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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.
`
` WHEREFORE, Plaintiff prays for judgment:
`
`1. Declaring this a proper class action, certifying Plaintiff as representative and the
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`undersigned as counsel for the class;
`
`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
`
`experts; and
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`6. Other and further relief as the Court deems just and proper.
`
`Dated: March 6, 2022
`
`
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`
`
`Respectfully submitted,
`
`/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
`
`
`15
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