Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 1 of 15 PageID #:1
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Kianna Gardner, individually and on behalf of
`all others similarly situated,
`
`1:22-cv-01272
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Ferrara Candy Company,
`
`
`
`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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`Ferrara Candy Company (“Defendant”) manufactures, labels, markets, and sells hard
`
`caramel candy described as “Rich & Creamy,” under the Nips brand (the “Product”).
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Kianna Gardner, individually and on behalf of
`all others similarly situated,
`
`1:22-cv-01272
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Ferrara Candy Company,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Ferrara Candy Company (“Defendant”) manufactures, labels, markets, and sells hard
`
`caramel candy described as “Rich & Creamy,” under the Nips brand (the “Product”).
`
`
`
`
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 2 of 15 PageID #:2
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`2.
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`The representation as “Caramel,” described as “Rich & Creamy,” causes consumers
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`to expect a confection with a non-de minims amount of milk fat.
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`3. However, the representations are false, deceptive, and misleading, because the
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`Product’s fat content is almost exclusively from vegetable fat.
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`4. Macmillan Dictionary defines caramel as a “candy made from sugar, butter, and
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`milk.”
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`5.
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`Britannica Dictionary defines caramel as a “light brown candy made from butter,
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`sugar, and milk or cream.”
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`6.
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`Collins Dictionary defines caramel as “a chewy sweet food made from sugar, butter,
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`and milk.”
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`7.
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`Cambridge Dictionary defines caramel as a “chewy sweet food made from sugar,
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`butter, and milk.”
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`8. Merriam-Webster defines caramel as a “firm, chewy, usually caramel-flavored candy
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`made with sugar, cream, corn syrup, and butter.”
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`9.
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`Scholarly treatises confirm the definitions of mainstream dictionaries, describing
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`“‘Caramel candy, or ‘caramel[s],’” as a “soft, dense, chewy candy made by boiling a mixture of
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`milk or cream, sugar(s), glucose, butter, and vanilla (or vanilla flavoring).”
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`10. All legitimate and credible definitions of caramel candy include cream.1
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`11. Cream is the “the thick part of milk that rises to the top…that contains fat.”
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`12. Milk fat ingredients are the most significant ingredient in caramel, responsible for
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`texture, body, and flavor.
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`13. The fat is emulsified into small droplets, dispersed throughout the candy mass.
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`1 Cream is the source of butter.
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`2
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`14. Milk fats provide unique flavors by carrying lipid-soluble volatile compounds like
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`ketones and aldehydes.
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`15. Dairy fat ingredients are described as “rich” and “creamy” because they contains
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`hundreds of lactones, or aroma compounds, which contribute to taste receptors in the mouth.
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`16. Dairy ingredients which contribute fat include milk, butter, and cream.
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`17.
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`In production of caramels, refined vegetable oils are often substituted for milkfat to
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`reduce costs, at the expense of consumers.
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`18. Substituting vegetable fat for dairy fat causes a confection to provide less satiety.
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`19. Milkfat melts at mouth temperature (95°F) and is smooth.
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`20. Vegetable fat does not melt at mouth temperature and leaves a waxy mouthfeel.
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`21.
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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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`22. Milk fat also contains calcium, vitamins A, D, E, and K, which are absent from
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`hardened vegetable fats.
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`23. Despite describing the caramel candy as “Rich & Creamy,” the Product does not
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`contain butter or cream, nor does it contain more than a de minimis amount of milk fat.
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`3
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 4 of 15 PageID #:4
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`INGREDIENTS: CORN SYRUP, SUGAR, REDUCED
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`FAT MILK (MILK, NONFAT MILK), HYDROGENATED
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`COCONUT OIL, WHEY, COFFEE, AND LESS THAN 1%
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`OF SALT, MONO- AND DIGLYCERIDES, NATURAL
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`FLAVORS, SOY LECITHIN.
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`24. While the ingredients include “Reduced Fat Milk” consisting of whole and skim
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`(nonfat) milk, the Product’s fat content is almost exclusively provided by the third ingredient,
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`“Hydrogenated Coconut Oil.”
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`25. Even though hydrogenated coconut oil is listed after reduced fat milk, this ingredient
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`is close to 90% fat, whereas reduced fat milk contains 2% fat.
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`26. The Nutrition Facts reveals the Product contains 10 mg calcium.
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`27. Given that 100g of reduced fat milk contains 126mg calcium, it takes 7.9g reduced
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`
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`fat milk to supply 10mg calcium.
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`28. As 100g of reduced fat milk contains 1.9g fat, 7.9g reduced fat milk supplies 0.15g
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`fat.
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`4
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 5 of 15 PageID #:5
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`29. The Product contains 1.5g fat, which means 1.35g, or ninety percent of its fat content,
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`is from hydrogenated coconut oil, the only other ingredient with any fat.
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`30. The Product substitutes milk fat with the vegetable fat of hydrogenated coconut oil.
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`31. Though the Product contains whey, this dairy ingredient is almost entirely protein,
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`which provides structure.
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`32. Whey is added for cost savings over more expensive milk fat ingredients.
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`33.
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`It is false, deceptive and misleading to describe a product as “Caramel,” with the
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`prominent terms, “Rich & Creamy,” because consumers will expect it is made with the standard
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`dairy ingredients, based on milkfat.
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`34. However, the Product lacks the expected amount and type of milk fat ingredients.
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`35. The Product lacks the nutritive, sensory, organoleptic, and other attributes expected
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`from a product identified as a “Caramel” and described as “Rich & Creamy.”
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`36. Other products are identified as caramel and contain dairy ingredients based on milk
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`fat, causing consumers to select Defendant’s Product, based in part on the Nips’ brand and its
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`description as “Rich & Creamy.”
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`37. Defendant makes other representations and omissions with respect to the Product
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`which are false or misleading.
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`38. 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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`39. 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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`40. Defendant sold more of the Product and at higher prices than it would have in the
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`5
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 6 of 15 PageID #:6
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`41. 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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`42. 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 $2.39 for 4 oz, excluding tax and sales,
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`higher than similar products, represented in a non-misleading way, and higher than it would be
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`sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`43.
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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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`44. 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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`45. Plaintiff Kianna Gardner is a citizen of Illinois.
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`46. Defendant Ferrara Candy Company is an Illinois corporation with a principal place
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`of business in Chicago, Cook County, Illinois.
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`47. 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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`48. 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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`49. 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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`6
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`50. 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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`51. Plaintiff Kianna Gardner is a citizen of Chicago, Cook County, Illinois.
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`52. Defendant Ferrara Candy Company is a Illinois corporation with a principal place of
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`business in Chicago, Illinois, Cook County.
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`53. Started over a year ago by a family from Italy, Ferrara has grown to become one of
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`the most respected confectionery companies in the world.
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`54.
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`Its values remain true to those established by its founder, who emphasized to never
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`cut corners when it came to quality ingredients for customers.
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`55. The Nips brand is one of the most widely consumed.
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`56. Consumers expect they can trust a product under the Nips brand.
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`57. 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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`58. 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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`8331 S Stewart Ave Chicago IL 60620-1728 between December 30, 2021, and January 30, 2022,
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`and/or among other times.
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`59. Plaintiff believed the Product contained more than a de minimis amount of dairy
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`ingredients with milk fat.
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`7
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 8 of 15 PageID #:8
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`60. Plaintiff bought the Product because she expected it contained more than a de
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`minimis amount of dairy ingredients with milk fat because that is what the representations said
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`and implied.
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`61. 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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`62. Plaintiff was disappointed because she believed the Product contained more than a
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`de minimis amount of dairy ingredients with milk fat.
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`63. Plaintiff bought the Product at or exceeding the above-referenced price.
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`64. 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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`65. 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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`66. 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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`67. 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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`68. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but for other similar caramels and confections containing caramel, because she is unsure whether
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`those representations are truthful.
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`8
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 9 of 15 PageID #:9
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`Class Allegations
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`69. 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, Iowa, Michigan, Wyoming,
`Montana, Nebraska, Virginia, Georgia, and West
`Virginia, who purchased the Product during the
`statutes of limitations for each cause of action
`alleged.
`
`70. 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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`71. 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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`72. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`73. 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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`74.
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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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`75. 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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`76. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`9
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 10 of 15 PageID #:10
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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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`77. Plaintiff incorporates by reference all preceding paragraphs.
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`78. Plaintiff and class members desired to purchase a product that contained more than
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`a de minimis amount of dairy ingredients with milk fat.
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`79. 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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`80. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`81. Plaintiff relied on the representations that the Product contained more than a de
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`minimis amount of dairy ingredients with milk fat.
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`82.
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` 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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`83. 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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`84. 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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`85. Defendant intended that each of the members of the Consumer Fraud Multi-State
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`10
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 11 of 15 PageID #:11
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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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`86. 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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`87. 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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`88. Plaintiff entered into a contract with Defendant for purchase of the Product.
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`Breach of Contract
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`89. The terms of the contract provided that the Product contained more than a de minimis
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`amount of dairy ingredients with milk fat.
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`90. Defendant breached the contract because the Product did not meet the terms Plaintiff
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`agreed to.
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`91. 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.
`
`92. 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 more than a de minimis
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`amount of dairy ingredients with milk fat.
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`93. 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.
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`94. Defendant knew the product attributes that potential customers like Plaintiff were
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`11
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 12 of 15 PageID #:12
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`95. 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 more
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`than a de minimis amount of dairy ingredients with milk fat.
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`96. Defendant’s representations affirmed and promised that the Product contained more
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`than a de minimis amount of dairy ingredients with milk fat.
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`97. Defendant described the Product as one which contained more than a de minimis
`
`amount of dairy ingredients with milk fat, which became part of the basis of the bargain that the
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`Product would conform to its affirmations and promises.
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`98. 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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`99. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted company, known for its transparent labeling, and its commitment to putting customers
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`first.
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`100. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`101. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`102. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`103. 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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`104. The Product did not conform to its affirmations of fact and promises due to
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`12
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 13 of 15 PageID #:13
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`Defendant’s actions.
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`105. 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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`106. 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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`more than a de minimis amount of dairy ingredients with milk fat, and she relied on Defendant’s
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`skill and judgment to select or furnish such a suitable product.
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`107. 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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`108. Defendant had a duty to truthfully represent the Product, which it breached.
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`109. 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, a trusted company, known for its
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`transparent labeling, and its commitment to putting customers first.
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`110. 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 it has been known for.
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`111. 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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`112. 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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`113. Plaintiff and class members reasonably and justifiably relied on these negligent
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`13
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 14 of 15 PageID #:14
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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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`114. 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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`115. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained more than a de minimis amount of dairy ingredients with milk fat.
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`116. 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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`117. Defendant knew of the issues described here yet did not address them.
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`118. 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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`119. 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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`14
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`Case: 1:22-cv-01272 Document #: 1 Filed: 03/10/22 Page 15 of 15 PageID #:15
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for Plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: March 10, 2022
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`
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`
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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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