Case: 1:22-cv-01591 Document #: 1 Filed: 03/27/22 Page 1 of 20 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`Margo Clark, individually and on behalf of all
`others similarly situated,
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`1:22-cv-01591
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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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`Blue Diamond Growers,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1.
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`Blue Diamond Growers (“Defendant”) manufactures, labels, markets, and sells
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`almonds represented as made in a smokehouse under the Blue Diamond brand (“Product”).
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`
`
`
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Margo Clark, individually and on behalf of all
`others similarly situated,
`
`1:22-cv-01591
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Blue Diamond Growers,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
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`1.
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`Blue Diamond Growers (“Defendant”) manufactures, labels, markets, and sells
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`almonds represented as made in a smokehouse under the Blue Diamond brand (“Product”).
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`2.
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`The relevant front label representations include “Blue Diamond Almonds,”
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`““Smokehouse®,” “2g Net Carbs,” “Smart Eating!,” and “Irresistible Snacking,” in packaging of
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`red and orange, evocative of the colors of fire and a picture of the almonds.
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`3.
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`Contrary to the front label, the Product is not made in a smokehouse, which misleads
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`consumers.
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`I.
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`SMOKING PROCESS
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`4.
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`Smoking is a method to prepare and preserve food by cooking it over a fire containing
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`various kinds of wood chips, exposing it to smoke.
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`5.
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`The drying action of the smoke and the different phenol compounds help to preserve
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`protein-rich foods such as meat, cheese, almonds, and fish.
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`6.
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`The origins of smoking date to prehistory, as nomadic peoples experimented with
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`fire and primitive cheese products.
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`7.
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`The earliest record of smoked cheese comes from ancient Rome, when an owner of
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`a cheese shop was forced to share space in the macellum with a baker.1
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`8.
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`9.
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`The wood provides unique and powerful flavors, based on the type of wood used.
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`For example, wood chips from deciduous hardwood trees of the genus Carya,
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`hickory, provide hearty and sweet flavors to nuts and meat (“hickory”).
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`10. Pecan wood, a type of hickory, gives cheese a spicy and nutty taste.
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`11. Oak provides smoked flavors of moderate intensity.
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`II.
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`“SMOKEHOUSE” IS A NOUN DESCRIBING A PHYSICAL STRUCTURE
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`12. The center of the front packaging contains the word “Smokehouse®” in large font.
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`1 Macellum is the Italian name for the farmer’s markets of ancient Roman that sold freshly made
`foods.
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`2
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`13. The word “smokehouse” is a noun that describes a physical structure where food is
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`prepared through the process of using actual smoke.
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`14. This is confirmed by numerous dictionary definitions.
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`15. Merriam-Webster defines a smokehouse as “[A] building where meat or fish is cured
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`by means of dense smoke.”
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`16. The Oxford English Dictionary Online defines it as “[A] house or room used for
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`curing meat, fish, etc., by means of smoke.”
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`17. Collins Dictionary defines it as “a building, esp. an outbuilding on a farm, where
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`meats, fish, etc. are cured by smoke.”
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`18. Google Dictionary, based on its leading search engine which is designed to deliver
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`the most relevant and accurate results, defines a smokehouse as “a shed or room for curing food
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`by exposure to smoke.”
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`19. The Britannica Dictionary defines it as “a shed or room for curing food by exposure
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`to smoke.”
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`20.
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`In an industrial smoking process, foods, such as almonds, are put on a large tray and
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`slid into an enclosed structure, referred to as a smokehouse.
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`III. CONSUMERS VALUE FOODS MADE THROUGH NATURAL PROCESSES LIKE
`SMOKING IN A SMOKEHOUSE
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`21. The popularity of using smokehouses to smoke foods decreased in the mid-twentieth
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`century due to the introduction of chemical preservatives and artificial smoke flavorings.2
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`22. However, consumer research company Mintel determined that the last two decades
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`have seen a resurgence in consumer demand for foods made through natural processes, like in a
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`2 Matthew Sedacca, Liquid Smoke: The History Behind a Divisive Culinary Shortcut – Barbecue's
`love/hate relationship with the manufactured flavor, Eater.com, Jun 15, 2016.
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`3
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`smokehouse, without advanced chemistry and synthetic ingredients.
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`23. This is due to regular media reports of potentially dangerous and environmentally
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`harmful substances in foods, due to the work of non-profits such as the Environmental Working
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`Group (“EWG”).
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`24. This is especially true in the context of foods promoted as smoked or made in a
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`smokehouse, as the European Food Safety Authority (“EFSA”) confirmed that smoke flavorings
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`contain compounds at levels high enough to pose a toxic risk when consumed.
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`25. Added smoke flavor is not only an issue of consumer health, but of quality and value.
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`26. Whether a food has been smoked over hardwoods or contains liquid smoke, prepared
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`by pyrolysis of sawdust, is basic front label information consumers rely on when making quick
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`purchasing decisions at the grocery store.
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`27. Research by Innova Market Insights confirmed that consumers look to see if the front
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`label has any statement about a product’s flavor, because they prefer foods which get their taste
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`from the natural processes by which the food is prepared, such as in a smokehouse.
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`IV. BEYOND MISLEADING CONSUMERS, THE LABELING VIOLATES
`RELEVANT REGULATIONS
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`28. Beyond misleading consumers to expect almonds prepared in a smokehouse, the
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`labeling does not comply with federal and identical state regulations.
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`29. The Product makes “direct or indirect representations” about its primary or
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`“characterizing” flavor of smoke, through the word, “Smokehouse,” a noun, and the red and orange
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`coloring, evocative of fire. 21 C.F.R. § 101.22.
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`30. According to the well-respected regulatory attorney Bob Holmes, these rules are
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`“premised on the simple notion that consumers value ‘the real thing’ versus a close substitute and
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`should be able to rely on the label to readily distinguish between the two. This consumer protection
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`4
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`objective is relevant to taste claims conveyed in advertising as well.”3
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`31. Where a food’s flavor does not come exclusively from a characterizing ingredient or
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`processing method, but contains natural flavor derived from that ingredient or processing method,
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`this must be disclosed to consumers on the front label, in addition to on the ingredient list. See 21
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`C.F.R. § 101.22(i).
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`32. As the almonds are represented as made in a smokehouse, even though they are not,
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`and contain added liquid smoke flavoring, this must be disclosed to consumers on the front label.
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`33. The FDA has repeatedly warned companies that not disclosing the source of a food’s
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`smoked taste is misleading:
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`If these smoke ingredients [natural smoke flavor] are added
`flavors, they should be declared in accordance with 21 CFR
`101.22 [on the front of the label]; however, if these
`ingredients describe the smoking process, then they must not
`be listed as ingredients in the ingredient statement.4
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`34. The FDA has cautioned that a label “should not include the term ‘smoked’” or similar
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`variations which misrepresent whether a food was subject to smoking, such as in a smokehouse.
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`35.
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`Instead, foods that are not made in a smokehouse should contain a prominent
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`statement such as “‘with added smoke flavor,’ ‘smoke flavored,’ or with ‘natural smoke flavor.’”
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`V.
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`“SMOKEHOUSE” IS MISLEADING BECAUSE PRODUCT NOT MADE IN
`SMOKEHOUSE
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`36. The sole meaning of “Smokehouse” goes directly to the fire-infused process by
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`which a food is prepared, without any qualifying or clarifying language.
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`3 Steven Steinborn, Hogan & Hartson LLP, Regulations: Making Taste Claims,
`PreparedFoods.com, August 11, 2006.
`4 FDA, Warning Letter, Smoked Seafood, Inc. dba Little Mermaid Smokehouse, MARCS-CMS
`515739, June 27, 2017; FDA, Warning Letter, Walnut Creek Kitchens, Inc., CIN-15-436857-08,
`Nov. 27, 2014.
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`5
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`37. Though the term “Smokehouse” has a small trademark designation next to it, this
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`fails to put consumers on notice that the Product is not smoked in a smokehouse and gets its
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`smoked taste exclusively from added smoke flavor.
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`38. There is no reason to expect that because a representation may carry a trademark
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`registration that it should mean the thing described is false or that it is necessarily fanciful.
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`39. Consumers will reasonably expect the Product to have been made in a smokehouse.
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`40. However, the Product has not been subjected to any smoking.
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`41. The ingredients include “NATURAL HICKORY SMOKE FLAVOR,” which is
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`defined as “smoke condensed into a liquid form.”
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`INGREDIENTS: ALMONDS, VEGETABLE OIL (CANOLA, SAFFLOWER AND/OR
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`SUNFLOWER), SALT, CORN MALTODEXTRIN, NATURAL HICKORY SMOKE
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`FLAVOR, YEAST, HYDROLYZED CORN AND SOY PROTEIN, NATURAL
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`FLAVORS.
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`42. The Product uses “NATURAL HICKORY SMOKE FLAVOR” to try and make the
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`almonds taste like they were made in a smokehouse, even though they were not.
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`VI. REAL SMOKED ALMONDS ARE A COMMON FOOD
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`43. Almonds prepared in a smokehouse are not a rare or pricy delicacy that would make
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`a reasonable consumer doubt the veracity of the “Smokehouse” claim by reviewing the fine print
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`of the ingredient list.
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`44. Even if Plaintiff and consumers viewed the ingredient list, they would have no reason
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`to know that listing “natural hickory smoke flavor” forecloses the possibility the Product was also
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`subject to smoking in a smokehouse.
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`45. Numerous non-professional food websites describe the basic, simple process of
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`preparing authentic smoked almonds.
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`46. First, the almonds are soaked in a brine solution and briefly roasted in oils.
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`47. Then they are placed in a wire mesh basket and inserted into a smoker for several
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`hours.
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`48. Almonds that are smoked in a smokehouse exist in the marketplace and are not
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`technologically or otherwise unfeasible to produce and consume, shown by the example below of
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`Hickory Smoked Almonds, printed across an image of a smokehouse.
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`49. These products are labeled identically to the Smokehouse Almonds, yet the latter is
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`not smoked and has added smoke flavor, while the former are smoked over hickory woods in a
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`smokehouse.
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`50. Where almonds have a smoked taste not from being prepared in a smokehouse, but
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`due to added smoke flavor, competitor brands truthfully disclose this fact on the front label, such
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`as “Smoked Almonds – Naturally Flavored” (Planters) and “Natural Smoke Flavored Almonds
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`With Other Natural Flavors” (Walmart Great Value brand) in contrast to Defendant’s
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`“Smokehouse Almonds” (left) See 21 C.F.R. § 101.22(i)(1)(i); 21 C.F.R. § 101.22(i)(1)(iii).
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`51. The disclosure on a front label of whether a food is smoked in a smokehouse or only
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`has added smoke flavor is basic information on which consumers rely when making quick
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`purchasing decisions at the grocery store.
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`52. Consumers are misled because the absence of qualifying terms with “Smokehouse,”
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`such as “naturally flavored” or “natural smoke flavored almonds” gives them the false impression
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`the Product was made in a smokehouse.
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`VII. ADDED SMOKE FLAVOR IS NOT EQUIVALENT TO BEING MADE IN A
`SMOKEHOUSE
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`53. Though the Product is not made in a smokehouse, it adds “NATURAL HICKORY
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`SMOKE FLAVOR” to make consumers think it was made in a smokehouse.
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`54. Scientists concluded that there are at least 400 flavor compounds which are created
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`when foods are made in a smokehouse.
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`55. These include pyrazines, aliphatic, aromatic hydrocarbons, alcohols, organic acids,
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`esters, furans, phenols, carbonyl and non carbonyl compounds, and various oxygen- and nitrogen-
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`containing heterocyclic compounds.
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`56. Added smoke flavor is unable to make the Product taste like it was made in a
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`smokehouse for several reasons.
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`57. First, added smoke flavoring lacks the delicate balance of phenolic compounds,
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`including 2,3-Butanedione, 2,3-Pentanedione, 3-Butanoic acid, 3-Methylbutanoic acid, 4-
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`Ethylguaiacol, 4-Propylguaiacol and/or 4-Vinylguaiacol.
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`58. Second, inside a smokehouse, the smoke generation process dramatically influences
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`the wood-smoke chemical composition, generating compounds that are not capable of being
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`included in a “natural smoke flavor,” like trans-isceugenol and 4-methylsyringol.
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`59. When foods like almonds are exposed to volatiles and particulate matter in a
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`smokehouse, they undergo chemical reactions which form new flavor compounds.
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`60. Third, certain compounds only serve as intermediates in the formation of more stable
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`forms of compounds which are essential to the aroma of smoke.
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`61. Fourth, in most systems which seek to emulate a smokehouse, there is only a focus
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`on volatile compounds which are believed to have distinctive odor properties at low
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`concentrations.
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`62. This overlooks that nonvolatile compounds significantly contribute to smoke flavor.
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`VIII. CONCLUSION
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`63. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`64. 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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`65. 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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`66. 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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`67. 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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`68. 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 $7.98 per 16 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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`69.
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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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`70. 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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`71. Plaintiff Margo Clark is a citizen of Illinois.
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`72. Defendant Blue Diamond Growers is a California agricultural cooperative with a
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`principal place of business in Sacramento, Sacramento County, California.
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`73. 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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`74. 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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`75. The Product is sold in numerous sizes such as individual smaller pouches, large
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`pouches, and tins, with identical representations.
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`76. 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/or
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`online,
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`77. 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, including Plaintiff’s
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`purchase, consumption, and/or use of the Product and awareness and/or experiences of and with
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`the issues described here.
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`Parties
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`78. Plaintiff Margo Clark is a citizen of Chicago, Cook, Illinois.
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`79. Defendant Blue Diamond Growers is a California agricultural cooperative with a
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`principal place of business in Sacramento, California, Sacramento County.
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`80. Defendant is the largest cooperative of almond growers in the world.
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`81. Blue Diamond has been credited with popularizing almonds, which are considered
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`the type of nut most appreciated by consumers.
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`82. The prevalence of almonds is due to Defendant’s efforts at developing numerous
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`foods and ingredients based on almonds, such as almond butter, almond flour, and almond-based
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`beverages.
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`83. The Blue Diamond brand is synonymous with almonds, similar to Kleenex for tissues
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`or Vaseline for petroleum jelly.
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`84. Consumers value Blue Diamond branded almond snacks over competitors, because
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`they know Blue Diamond is responsible for the almonds, which assures them of quality and their
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`products’ integrity.
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`85. For decades, consumers have relied on Blue Diamond name and logo to expect
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`honesty in all aspects of almond products.
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`86. Consumers trust the Blue Diamond brand to be honest with them, because they have
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`built up a reservoir of good will when it comes to almonds.
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`87. 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/or
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`online,
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`88. 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 CVS, 1930 W 103rd St Chicago IL
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`60643-2625 between March 15, 2022, and March 21, 2022, and/or among other times.
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`89. Plaintiff believed and expected the Product was made in a smokehouse instead of
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`having added liquid smoke flavor, even though it was not made in a smokehouse because that is
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`what the representations and omissions said and implied.
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`90. 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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`91. Plaintiff bought the Product at or exceeding the above-referenced price.
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`92. 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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`93. 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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`94. 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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`95. 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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`96. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar almonds represented as smoked, because she is unsure whether those
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`representations are truthful.
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`Class Allegations
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`97. 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, Wyoming, Texas,
`Nebraska, South Dakota, West Virginia, Utah, Idaho,
`Alaska, and Montana who purchased the Product
`during the statutes of limitations for each cause of
`action alleged.
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`98. 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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`99. 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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`100. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`101. 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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`102. 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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`103. 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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`104. 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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`105. Plaintiff incorporates by reference all preceding paragraphs.
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`106. Plaintiff believed the Product was made in a smokehouse instead of having added
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`liquid smoke flavor, even though it was not made in a smokehouse.
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`107. 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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`108. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`109. Plaintiff relied on the representations and omissions to believe the Product was made
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`in a smokehouse instead of having added liquid smoke flavor, even though it was not made in a
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`smokehouse.
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`110. 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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`111. 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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`112. 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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`113. 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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`114. 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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`115. 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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`116. 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 it was made in a smokehouse
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`instead of having added liquid smoke flavor, even though it was not made in a smokehouse.
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`117. 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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`118. 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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`119. 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 it was made in a
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`smokehouse instead of having added liquid smoke flavor, even though it was not made in a
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`smokehouse.
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`120. Defendant’s representations affirmed and promised that the Product was made in a
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`smokehouse instead of having added liquid smoke flavor, even though it was not made in a
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`smokehouse.
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`Case: 1:22-cv-01591 Document #: 1 Filed: 03/27/22 Page 17 of 20 PageID #:17
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`121. Defendant described the Product so Plaintiff and consumers believed it was made in
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`a smokehouse instead of having added liquid smoke flavor, even though it was not made in a
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`smokehouse, which became part of the basis of the bargain that it would conform to its affirmations
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`and promises.
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`122. 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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`123. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`the leading name in almonds, trusted by consumers to make and sell almond products truthfully.
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`124. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`125. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`126. 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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`127. 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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`128. 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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`129. 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 it was made in a smokehouse instead of having added liquid smoke flavor, even though it was
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`not made in a smokehouse.
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`17
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`Case: 1:22-cv-01591 Document #: 1 Filed: 03/27/22 Page 18 of 20 PageID #:18
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`130. 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 was
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`made in a smokehouse instead of having added liquid smoke flavor, even though it was not made
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`in a smokehouse, and she relied on Defendant’s skill and judgment to select or furnish such a
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`suitable product.
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`131. 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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`132. Defendant had a duty to truthfully represent the Product, which it breached.
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`133. This duty was non-delegable, and based on Defendant’s position, holding itself out
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`as having special knowledge and experience in this area, the leading name in almonds, trusted by
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`consumers to make and sell almond products truthfully.
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`134. Defendant’s representations and omissions regarding the Product went beyond the
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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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`135. 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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`136. 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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`137. 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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`138. Plaintiff and class members would not have purchased the Product or paid as much
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`18
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`Case: 1:22-cv-01591 Document #: 1 Filed: 03/27/22 Page 19 of 20 PageID #:19
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`if the true facts had been known, suffering damages.
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`Fraud
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`139. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it was made in a smokehouse instead of having added liquid smoke flavor, even though it was
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`not made in a smokehouse.
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`140. 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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`141. Defendant knew of the issues described here yet did not address them.
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`142. 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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`143. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying Plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`19
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`Case: 1:22-cv-01591 Document #: 1 Filed: 03/27/22 Page 20 of 20 PageID #:20
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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 28, 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
`
`20
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`
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