`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`Lakita Smith, individually and on behalf of all
`others similarly situated,
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`1:22-cv-01529
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`General Mills Sales, Inc.,
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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. General Mills Sales, Inc. (“Defendant”) manufactures, labels, markets, and sells
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`frozen cheese pizza rolls under the Totino’s brand (“Product”).
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`Case: 1:22-cv-01529 Document #: 1 Filed: 03/23/22 Page 2 of 16 PageID #:2
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`2.
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`The representations include “Cheese,” “Totino’s Pizza Rolls Brand Pizza Snacks,”
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`“Pizza In A Golden Crust,” “Naturally Flavored,” pictures of the pizza rolls, with the visible
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`contents of what appears to be red tomato sauce and white cheese, in yellow, red and orange
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`packaging.
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`3.
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`The representations cause consumers to expect the Product contains a non-de
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`minimis amount of ingredients associated with pizza, such as cheese.
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`4. However, the representations are false, deceptive, and misleading, because the
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`cheese used is almost entirely imitation cheese instead of traditional cheese.
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`I.
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`PIZZA
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`5. All definitions of pizza include bread, tomato sauce, and cheese.
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`6. Macmillan Dictionary defines pizza as a “a food that consists of flat round bread with
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`tomato, cheese, vegetables, meat etc.”
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`7.
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`Collins Dictionary defines pizza as “dough covered with tomatoes, cheese, and other
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`toppings, and then baked in an oven.
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`8.
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`Cambridge Dictionary defines pizza as a “a large circle of flat bread baked with
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`cheese, tomatoes, and sometimes meat and vegetables spread on top:
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`9. Merriam-Webster defines pizza as a “a dish made typically of flattened bread dough
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`spread with a savory mixture usually including tomatoes and cheese and often other toppings and
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`baked.”
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`10. The Product is identified as “Pizza In A Golden Crust,” which means that instead of
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`having the pizza components on top of bread, it is enclosed within the bread.
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`11. Government agencies define pizza as the class of products that have been
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`traditionally formulated with tomato sauce and cheese on a bread-based crust.
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`2
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`12. A food like pizza, without a “standard of identity,” is required by federal and
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`identical state regulations to be labeled with a “common or usual name.” 21 C.F.R. § 102.5(a).
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`13. A common or usual name must “identify or describe, in as simple and direct terms
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`as possible, the basic nature of the food or its characterizing properties or ingredients.” 21 C.F.R.
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`§ 102.5(a).
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`14. Where the characterizing ingredient (1) has a material bearing on the food’s price or
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`its acceptance by consumers or (2) creates an erroneous impression it is present in a greater amount
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`than it is, the common or usual name is required to include its percentage. 21 C.F.R. § 102.5(b).
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`15. Cheese is valued by consumers because it is a natural food, made from milk.
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`16.
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`In contrast, imitation or analog cheese is made by combining vegetable oils, corn
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`starch and casein, instead of milk solids.
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`17. These ingredients are highly processed with added chemicals and preservatives.
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`18. Since ancient times, milk has been an essential part of the human diet and nutrition.
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`19. Milk and dairy products are reservoirs of energy, because they contain a range of
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`proteins, carbohydrates, lipids, minerals, and vitamins.
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`20.
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`Imitation cheese has unhealthy fats and lacks the nutrients found in real cheese.
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`21.
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`In contrast to the supple texture of real cheese, imitation cheese has a rubbery texture.
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`22. Real cheese gets its taste from hundreds of lactones, or flavor compounds, compared
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`to the bland taste of imitation cheese.
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`II. REPRESENTATIONS ARE MISLEADING
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`23. The representations, including “Cheese,” “Pizza Rolls,” and “Pizza In A Golden
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`Crust,” are misleading because the characterizing cheese ingredient is replaced with imitation
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`cheese.
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`3
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`Case: 1:22-cv-01529 Document #: 1 Filed: 03/23/22 Page 4 of 16 PageID #:4
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`
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`Ingredients: Enriched Flour (wheat flour, niacin, ferrous sulfate, thiamin
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`mononitrate, riboflavin, folic acid), Tomato Puree (water, tomato paste),
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`Imitation Mozzarella Cheese (water, palm oil, modified corn starch,
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`vegetable oil [soybean, high oleic soybean and/or canola oil], rennet casein,
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`salt, sodium aluminum phosphate, potassium chloride, citric acid, guar gum,
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`potassium sorbate [preservative], sodium citrate, sodium phosphate,
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`titanium dioxide [artificial color]), Vegetable Oil (soybean, high oleic
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`soybean and/or canola oil). Contains less than 2% of: Rehydrated Fat Free
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`Mozzarella Cheese (water, skim milk, cheese cultures, salt, enzymes, citric
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`acid), Sugar, Modified Corn Starch, Salt, Modified Whey, Defatted Soy
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`Flour, Spice, Methylcellulose, Onion Powder, Dextrose, Rehydrated
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`Enzyme Modified Cheese (water, milk, cheese cultures, salt, enzymes),
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`Maltodextrin, TBHQ (preservative), Natural Flavor.
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`24. This is shown through the ingredients, listing “Imitation Mozzarella Cheese” as the
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`third most predominant ingredient after flour and tomato paste.
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`25.
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`Instead of being made from milk, the components of this ingredient are:
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`4
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`water, palm oil, modified corn starch, vegetable oil
`[soybean, high oleic soybean and/or canola oil],
`rennet casein, salt, sodium aluminum phosphate,
`potassium chloride, citric acid, guar gum, potassium
`sorbate
`[preservative], sodium citrate, sodium
`phosphate, titanium dioxide [artificial color].
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`26. The Product “[C]ontains less than 2% [of:] Rehydrated Fat Free Mozzarella Cheese
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`[and]…Rehydrated Enzyme Modified Cheese,” or cheese made from dairy ingredients.
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`27. The representations are misleading because the Product’s common or usual name,
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`“Pizza In A Golden Crust,” does not include the percentage of the characterizing cheese ingredient.
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`21 C.F.R. § 102.5(b).
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`28. Federal and identical state regulations require that beneath “Pizza In A Golden
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`Crust,” the percentage of the characterizing cheese ingredient is disclosed in the following manner:
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`“Contains % Cheese.” 21 C.F.R. § 102.5(b)(2).
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`29. The blank is required to be filled in with the percentage expressed as a whole number
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`not greater than the actual percentage of the ingredient.
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`30. For example, if the combined amount of rehydrated fat free mozzarella cheese and
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`rehydrated enzyme modified cheese is two percent, the label would state “Contains 2 % Cheese.”
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`31. The small relative and absolute amount of cheese and its replacement with imitation
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`cheese is misleading in light of the Product’s name and cheese representations.
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`32. Though Defendant attempts to disclaim the presence of cheese through the statement,
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`“Naturally Flavored,” this is insufficient to overcome the misleading common or usual name.
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`33. The amount of actual cheese is more significant than whether the Product contains
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`“natural flavor,” the last ingredient listed.
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`34. The Product’s “natural flavor” is used to simulate the flavor of cheese, even though
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`the relevant regulations prohibit the use of flavors to simulate the flavor of any variety of cheese.
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`5
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`21 C.F.R. § 133.193(a).
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`35.
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`If a manufacturer could add “cheese flavor” to cheese, it would be too easy to reduce
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`the amount of cheese but mislead consumers to think a product contains more cheese than it does.
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`III. CONSUMERS ARE MISLED BY OMISSION OF IMITATION CHEESE ON
`FRONT LABEL
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`36. The replacement of traditional cheese with imitation cheese causes consumers to
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`receive a nutritionally inferior food.
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`37. Consumers are misled because the front label fails to disclose – as required by law –
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`that the purported mozzarella cheese blend is an imitation because “it [the cheese blend] is a
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`substitute for and resembles another food [mozzarella cheese] but is nutritionally inferior to that
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`food.” 21 C.F.R. § 101.3(e)(1).
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`38. The use of vegetable oils and corn starch instead of milk permit a reduction in milkfat
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`content, resulting in at least two percent less of the daily recommended value (“DRV”) of protein,
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`among other nutrients. 21 C.F.R. § 101.3(e)(4)(ii) (“Nutritional inferiority”).
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`39. Consumers are misled because the front label fails to identify the “mozzarella
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`cheese” as an “imitation” on the front label.
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`40. The result of substituting vegetable oils for milk in cheese is a Product which lacks
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`the nutritional, organoleptic, and sensory attributes of traditional cheese.
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`IV. CONCLUSION
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`41. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`42. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`43. 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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`44. 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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`45. 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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`46. 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 per 7.5 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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`47.
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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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`48. 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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`49. Plaintiff Lakita Smith is a citizen of Illinois.
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`50. Defendant General Mills Sales, Inc. is a Delaware corporation with a principal place
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`of business in Minneapolis, Hennepin County, Minnesota.
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`51. 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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`52. 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, with the representations described here, in thousands of
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`locations, in the states covered by Plaintiff’s proposed classes.
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`7
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`53. 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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`54. 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, including 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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`55. Plaintiff Lakita Smith is a citizen of Chicago, Cook, Illinois.
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`Parties
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`56. Defendant General Mills Sales, Inc. is a Delaware corporation with a principal place
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`of business in Minneapolis, Minnesota, Hennepin County.
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`57. Defendant is one of the largest food companies in the world.
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`58.
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`In its early years, the company’s focus was on milling flour, and it was led by a
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`military general, thus the name of “General Mills” seemed to stick.
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`59. During the Second World War, General Mills switched from producing foods to
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`armaments for the military.
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`60. Following the war, General Mills developed numerous culinary innovations to
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`improve the lives of Americans.
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`61. Totino’s was the name of the Minnesota pizzeria known for using the highest quality
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`ingredients, with no substitutes.
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`62. Totino’s developed the most popular brand of frozen pizzas, purchased by General
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`Mills in the 1990s.
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`63. Defendant has promoted the Totino’s brand heavily and emphasizes its quality
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`ingredients in a snackable, convenient form.
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`64. Consumers of General Mills and Totino’s products trust these companies to be honest
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`with them, because it has built up a reservoir of good will when it comes to foods and especially
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`pizza.
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`65. 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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`66. 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 Food 4 Less, 7030 S Ashland Ave
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`Chicago IL 60636-3948 between January 25, 2022, and January 31, 2022, and/or among other
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`times.
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`67. Plaintiff believed and expected the Product the Product’s cheese component was
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`mainly traditional cheese from dairy ingredients instead of imitation cheese from vegetable oils
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`because that is what the representations and omissions said and implied.
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`68. Plaintiff relied on the words, terms coloring, descriptions, layout, packaging, tags,
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`and/or images on the Product, on the labeling, statements, omissions, claims, statements, and
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`instructions, made by Defendant or at its directions, in digital, print and/or social media, which
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`accompanied the Product and separately, through in-store, digital, audio, and print marketing.
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`69. Plaintiff bought the Product at or exceeding the above-referenced price.
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`70. Plaintiff would not have purchased the Product if he knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`71. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`72. The Product was worth less than what Plaintiff paid and he would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`73. Plaintiff intends to, seeks to, and will purchase the Product again when he 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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`74. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar frozen pizza products promoted as containing cheese, because he is unsure
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`whether those representations are truthful.
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`Class Allegations
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`75. 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, Utah, Idaho, Alaska,
`and Montana who purchased the Product during the
`statutes of limitations for each cause of action
`alleged.
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`76. 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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`77. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`78. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`79. 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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`80.
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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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`81. 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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`82. 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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`83. Plaintiff incorporates by reference all preceding paragraphs.
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`84. Plaintiff believed the Product’s cheese component was mainly traditional cheese
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`from dairy ingredients instead of imitation cheese from vegetable oils.
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`85. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`86. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`87. Plaintiff relied on the representations and omissions to believe the Product’s cheese
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`component was mainly traditional cheese from dairy ingredients instead of imitation cheese from
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`vegetable oils.
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`88.
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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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`89. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`90. 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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`91. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct.
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`92. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`93. 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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`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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`94. The Product was manufactured, identified, marketed and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff and class members that the Product’s cheese
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`component was mainly traditional cheese from dairy ingredients instead of imitation cheese from
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`vegetable oils.
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`95. 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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`96. 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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`97. 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 that the Product’s cheese
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`component was mainly traditional cheese from dairy ingredients instead of imitation cheese from
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`vegetable oils.
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`98. Defendant’s representations affirmed and promised that the Product’s cheese
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`component was mainly traditional cheese from dairy ingredients instead of imitation cheese from
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`vegetable oils.
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`99. Defendant described the Product so Plaintiff and consumers believed the Product’s
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`cheese component was mainly traditional cheese from dairy ingredients instead of imitation cheese
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`from vegetable oils, which became part of the basis of the bargain that it would conform to its
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`affirmations and promises.
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`100. 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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`101. 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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`102. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`103. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`104. 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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`105. 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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`106. 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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`107. 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, because it was marketed
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`as if the Product’s cheese component was mainly traditional cheese from dairy ingredients instead
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`of imitation cheese from vegetable oils.
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`108. 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 he expected the
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`Product’s cheese component was mainly traditional cheese from dairy ingredients instead of
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`imitation cheese from vegetable oils, and he relied on Defendant’s skill and judgment to select or
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`furnish such a suitable product.
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`109. 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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`110. Defendant had a duty to truthfully represent the Product, which it breached.
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`111. 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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`112. Defendant’s representations and omissions regarding the Product went beyond the
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`14
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`specific 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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`113. 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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`114. 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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`115. 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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`116. 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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`117. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that the Product’s cheese component was mainly traditional cheese from dairy ingredients instead
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`of imitation cheese from vegetable oils.
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`118. 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 and deception, through statements and omissions.
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`119. Defendant knew of the issues described here yet did not address them.
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`120. 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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`121. 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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`15
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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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`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 23, 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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`16
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