Case: 1:22-cv-03355 Document #: 1 Filed: 06/27/22 Page 1 of 11 PageID #:1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`COOLAB FOODS, LLC.,
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`
`CREAMALICIOUS, INC.,
`ELIZABETH ROGERS, RICHARD WHITE,
`and ROGER CUNNINGHAM,
`
`
`Defendants.
`
`
`
`
`
`COMPLAINT
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`Plaintiff CooLab Foods, LLC, for its Complaint against defendants Creamalicious, Inc.,
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`Elizabeth Rogers, Richard White, and Roger Cunningham states as follows:
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`PARTIES
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`1.
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`Plaintiff CooLab Foods, LLC (“CooLab”) is a Delaware limited liability company
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`with its principal place of business located at 3220 Manheim Road, Franklin Park, IL 60131.
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`2.
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`The sole member of CooLab is Western Skies Food Holdings LLC, (“Western
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`Skies”). The members of Western Skies are Nicholas Kuneman, Michael Kenefick, and Cody
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`Miller. Nicholas Kuneman is a citizen of the state of Colorado. Michael Kenefick is a citizen of
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`the state of Florida. Cody Miller is a citizen of the state of Kentucky.
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`3.
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`For purposes of diversity, CooLab is a citizen of the states of Colorado, Florida,
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`and Kentucky.
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`4.
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`Defendant Creamalicious, Inc. (“Creamalicious”) is a Delaware Corporation with
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`its principal place of business at 6953 Tarrago CT, Liberty Township, Ohio 45011.
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`5.
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`For purposes of diversity, Creamalicious is a citizen of the states of Delaware and
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`Ohio.
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`

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`6.
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`Defendant Elizabeth Rogers is a principal of Creamalicious and is a citizen of the
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`state of Ohio.
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`7.
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`Defendant Richard White is a principal of Creamalicious and is a citizen of the state
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`of Hawaii.
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`8.
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`Defendant Roger Cunningham is a principal of Creamalicious and is a citizen of
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`the state of Vancouver, British Columbia, Canada.
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`JURISDICTION AND VENUE
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`9.
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`This Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332
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`as the parties are completely diverse in citizenship and the amount in controversy exceeds $75,000.
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`10.
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`Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391 as a substantial
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`portion of the events or omissions giving rise to this action occurred in this district.
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`FACTUAL BACKGROUND
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`11.
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`12.
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`13.
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`14.
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`CooLab collaborates with its customers to co-manufacture frozen desserts.
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`Creamalicious is a brand of artisan ice cream.
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`Creamalicious was in need of assistance with the manufacturing of its ice cream.
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`In the spring of 2022, CooLab and Creamalicious entered into an agreement,
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`whereby CooLab would purchase supplies and manufacture Creamalicious’s ice cream.
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`15.
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`16.
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`services.
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`17.
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`18.
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`Creamalicious agreed to pay CooLab for the goods and services provided.
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`CooLab fulfilled its obligations under the agreement by providing the goods and
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`CooLab issued invoices to Creamalicious for the goods and services rendered.
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`Until the end of May 2022, Creamalicious paid the invoices issued by CooLab.
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`2
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`19.
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`On May 26, 2022, CooLab issued Invoice # 1660 for goods and services provided
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`to Creamalicious in the amount of $69,552.00. (A true and correct copy is attached hereto as
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`Exhibit 1.)
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`20.
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`On May 31, 2022, CooLab issued Invoice # 1665 for goods and services provided
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`to Creamalicious in the amount of $25,149.10. (A true and correct copy is attached hereto as
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`Exhibit 2.)
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`21.
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`On June 1, 2022, CooLab issued Invoice # 1675 for goods and services provided to
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`Creamalicious in the amount of $3,859.31. (A true and correct copy is attached hereto as Exhibit
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`3.)
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`22.
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`On June 3, 2022, CooLab issued Invoice # 1684 for goods and services provided to
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`Creamalicious in the amount of $510.94. (A true and correct copy is attached hereto as Exhibit 4.)
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`23.
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`On June 3, 2022, CooLab also issued Invoice # 1692 for goods and services
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`provided to Creamalicious in the amount of $1,225.00. (A true and correct copy is attached hereto
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`as Exhibit 5.)
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`24.
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`On June 13, 2022, CooLab issued Invoice # 1703 for goods and services provided
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`to Creamalicious in the amount of $19,678.90. (A true and correct copy is attached hereto as
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`Exhibit 6.)
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`25.
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`On June 13, 2022, CooLab also issued Invoice # 1707 for goods and services
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`provided to Creamalicious in the amount of $1,858.83. (A true and correct copy is attached hereto
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`as Exhibit 7.)
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`26.
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`On June 14, 2022, CooLab issued Invoice # 1706 for goods and services provided
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`to Creamalicious in the amount of $28,980.00. (A true and correct copy is attached hereto as
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`Exhibit 8.)
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`3
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`27.
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`Creamalicious failed to fulfill its obligation under the agreement by refusing to pay
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`for the goods and services set forth in Invoice # 1660, Invoice # 1665, Invoice # 1675, Invoice #
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`1684, Invoice # 1692, Invoice #1703, Invoice # 1707, and Invoice # 1706.
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`28.
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`Creamalicious has also failed to fulfill its obligation under the agreement by
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`refusing to pay for approximately $10,000 in finished products that remain in CooLab freezers and
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`approximately $800 of FedEx shipping costs.
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`29.
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`To address Creamalicious’s failure to pay the amounts owed to CooLab, CooLab
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`and Creamalicious began negotiating a settlement pursuant to which Creamalicious would pay the
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`outstanding amounts owed to CooLab and CooLab would release the goods, packaging, and
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`ingredients that CooLab had prepared and procured for defendants.
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`30.
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`On June 10, 2022, CooLab and Creamalicious entered into a Settlement Agreement
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`and Release of Claim (the “Settlement Agreement”). (A true and correct copy is attached hereto
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`as Exhibit 9.)
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`31.
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`The Settlement Agreement provided that,
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`the parties have agreed that the amount of One Hundred Forty Nine
`Thousand Three Hundred Eighty Three and 75/100 Dollars ($149,383.75)
`representing invoice numbers 1660, 1665, 1675, 1694 [sic] and 1692, un-
`invoiced amounts of $23,184 for finished goods to be verified with a bill of
`lading provided to Elizabeth Rogers, $28,980.00 for ice cream mix,
`$1,858.53 for third party testing fees, and $800 for fedex charges are owed
`by Creamalicious, Inc. to Coolab Foods, LLC.
`
`
`(Ex. 9 at 1.)
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`32.
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`The Settlement Agreement also provided that,
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`The parties mutually agree as follows (a) Creamalicious, Inc. shall cause to
`be paid to Coolab Foods, LLC the following: (1) Fifty Seven Thousand and
`Five Hundred and 00/100 Dollars ($57,500.00) on 06/10/2022; and (2) the
`balance owing as in three equal payments of Thirty Thousand Six Hundred
`Twenty Seven Dollars and 92/100 ($30,627.92) on 06/24/2022, on
`07/01/2022, and a final payment on 07/08/2022, as full and final settlement
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`4
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`of this matter (the “settlement payment”). Payments will be made via ACH.
`Any outstanding amounts owed at the time of a failure to make a payment
`in accordance with this agreement will be subject to a default interest of
`eight percent (8%) per annum. In the event of a default in payment which
`has not been remedied within three (3) business days, Creamalicious. Inc.
`will also be responsible for Coolab Foods, LLC reasonable legal costs
`associated with enforcing this agreement . . . (c) Coolab Foods LLC will
`release the finished goods, packaging and ingredients for pickup, the same
`day as receipt of wire confirmation of the first settlement payment of Fifty
`Seven Thousand and Five Hundred and 00/100 Dollars ($57 ,500.00). These
`items will be documented on a bill of lading provided to Elizabeth Rogers.
`
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`The following additional terms were also included in the Settlement Agreement:
`
`
`(Id. ¶ 2.)
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`33.
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`a. CooLab’s
`release of Creamalicious was “conditioned upon
`Cremalicious, Inc. [sic] making all of the settlement payments to Coolab
`Foods, LLC. If Creamalicious, Inc. fails to make all of the settlement
`payments, Coolab Foods LLC is free to avail themselves of all legal
`remedies available to them including, but not limited to, a lawsuit to
`enforce this agreement.” (Id. ¶ 3(c).)
`
`
`b. “If this agreement is breached, the breaching party will indemnify and
`hold the other harmless from any resulting claims, including attorney
`fees and costs.” (Id. ¶ 5(a).)
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`c. “The party representatives executing this agreement warrant that they
`are the duly authorized representatives of the respective entities
`designated below and are fully empowered to execute this agreement on
`behalf of the respective parties.” (Id. ¶ 5(e).)
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`d. “This agreement must be construed in accordance with the laws of the
`State of Illinois.” (Id. ¶ 5(g).)
`
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`e. Creamalicious, Inc., shall at Coolab Foods, LLC’s option, be in default
`under this Agreement upon the happening of any of the following events
`or conditions (each, an “Event of Default”): (a) a failure to pay any
`amount due under the Note or this Agreement the date the same is due;
`(b) the failure by Creamalicious, Inc. to perform any of its other
`obligations under this Agreement within ten (10) days of notice from
`Coolab Foods, LLC of the same;” (Id. ¶ 6.)
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`On June 9, 2022, the day before the Settlement Agreement was executed, Richard
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`34.
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`White sent an email to CooLab in which he provided the schedule for the trucks that would arrive
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`5
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`at CooLab’s facility the following day to pick up the goods prepared for Creamalicious. The email
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`also provided that Elizabeth Rogers would be at the CooLab facility and that she would transfer
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`the initial settlement payment of $57,500 once she confirmed all packing and ingredients were
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`available to load on the trucks.
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`35.
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`On June 10, 2022, Elizabeth Rogers sent an email to CooLab showing the ACH
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`payment confirmation for the first payment under the Settlement Agreement.
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`36.
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`CooLab worked into the night preparing the trucks for shipment, and once Roger
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`Cunningham sent a copy of the Settlement Agreement signed on behalf of Creamalicious, CooLab
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`released the goods to Creamalicious.
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`37.
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`On June 15, 2022, after Creamalicious had received all of the goods, CooLab was
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`informed that Creamalicious had reversed the ACH payment for the initial settlement payment.
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`38.
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`39.
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`CooLab issued a notice of default to Creamalicious on June 15, 2022.
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`Creamalicious has failed to pay the outstanding amounts due to CooLab and has
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`refused to honor its obligations under the Settlement Agreement.
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`COUNT I
`(Breach of Settlement Agreement against Creamalicious)
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`40.
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`CooLab incorporates the allegations in paragraphs 1 through 39 of the Complaint
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`as though fully set forth herein.
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`41.
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`42.
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`43.
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`The Settlement Agreement is a valid, enforceable and binding contract.
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`CooLab performed all of its obligations under the Settlement Agreement.
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`Creamalicious materially breached the Settlement Agreement by failing to pay the
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`amounts to CooLab by the dates required by the Settlement Agreement.
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`44.
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`Creamalicious is in default under the Settlement Agreement.
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`6
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`45.
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`As a direct and proximate result of Creamalicious’s material breach of the
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`Settlement Agreement, CooLab has suffered damages in the amount of $149,383.75, plus default
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`interest of 8%, and attorneys’ fees and costs.
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`COUNT II
`(Breach of Contract against Creamalicious)
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`46.
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`CooLab incorporates the allegations in paragraphs 1 through 39 of the Complaint
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`as though fully set forth herein.
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`47.
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`CooLab and Creamalicious entered into a valid and enforceable agreement whereby
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`CooLab would purchase supplies and manufacture Creamalicious’s ice cream and Creamalicious
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`would pay CooLab for the goods and services provided.
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`48.
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`CooLab fully performed all of its obligations under the agreement by providing the
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`agreed upon goods and services.
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`49.
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`Defendant Creamalicious breached its obligations under the agreement by failing
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`and refusing to pay for the goods and services provided by CooLab, including those set forth in
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`Invoice # 1660, Invoice # 1665, Invoice # 1675, Invoice # 1684, Invoice # 1692, Invoice #1703,
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`Invoice # 1707, and Invoice # 1706, among others.
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`50.
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`As a direct and proximate result of the breach by defendant Creamalicious, CooLab
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`has been damaged in excess of $150,000, plus pre-judgment and post-judgment interest.
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`COUNT III
`(Unjust Enrichment against All Defendants – In the Alternative to Count I and II)
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`51.
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`In the event that the Court finds that there is no enforceable agreement between
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`CooLab and Creamalicious, CooLab pleads the following allegations in the alternative.
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`7
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`52.
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`As set forth in paragraphs 1 to 39, defendants requested and CooLab provided
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`goods and services to defendants. In particular, CooLab purchased supplies and manufactured
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`Creamalicious’s ice cream.
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`53.
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`Defendants accepted the goods, packaging, and ingredients that CooLab had
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`prepared and procured for defendants.
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`54.
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`In consideration for those goods and services, CooLab expected defendants to
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`compensate them as set forth in invoices issued by CooLab. To date, however, defendants have
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`failed to compensate CooLab for the goods and services set forth in Invoice # 1660, Invoice #
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`1665, Invoice # 1675, Invoice # 1684, Invoice # 1692, Invoice #1703, Invoice # 1707, and Invoice
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`# 1706, among others.
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`55.
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`Defendants have therefore been enriched and received benefits at Plaintiffs’
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`expense.
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`56.
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`57.
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`Defendants receipt and retention of these benefits was unjust and wrongful.
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`As a direct and proximate result of defendants’ conduct, CooLab has suffered injury
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`for which compensation is sought in the form of monetary damages in an amount in excess of
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`$150,000, plus pre-judgment and post-judgment interest, and that will be established at trial by
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`jury.
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`COUNT IV
`(Promissory Fraud against All Defendants)
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`58.
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`CooLab incorporates the allegations in paragraphs 1 through 39 of the Complaint
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`as though fully set forth herein.
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`59.
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`Defendants engaged in unlawful promissory fraud. Specifically, defendants
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`engaged in an unlawful scheme to defraud CooLab into releasing to defendants the goods,
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`packaging, and ingredients that CooLab had prepared and procured for defendants.
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`8
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`60.
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`In June 2022, defendants knew that CooLab would not release the goods,
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`packaging, and ingredients that CooLab had prepared and procured for defendants unless
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`defendants represented that they would enter into the Settlement Agreement in good faith and that
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`they would make an initial settlement payment of $57,500.
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`61.
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`On June 9, 2022, Richard White sent an email in which he falsely represented that
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`the defendants intended to make the initial settlement payment the following day after confirming
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`what was available to load on the trucks.
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`62.
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`On June 10, 2022, Elizabeth Rogers sent an email to CooLab showing the ACH
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`payment confirmation for the first payment under the Settlement Agreement to induce CooLab to
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`release the goods, packaging, and ingredients that CooLab had prepared and procured for
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`defendants.
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`63.
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`Also on June 10, 2022, Roger Cunningham sent a copy of the Settlement
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`Agreement purportedly signed on behalf of Creamalicious to CooLab to induce CooLab to release
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`the goods, packaging, and ingredients that CooLab had prepared and procured for defendants.
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`64.
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`Defendants intentionally misrepresented and concealed their intent to withdraw the
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`ACH payment for the initial settlement payment after receipt of the goods from CooLab.
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`65.
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`On June 10, 2022, in reasonable reliance on defendants false representations,
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`CooLab released to defendants the goods, packaging, and ingredients that CooLab had prepared
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`and procured for defendants.
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`66.
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`After receipt of the goods from CooLab, Creamalicious reversed the ACH payment
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`for the initial settlement payment.
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`9
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`67.
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`Defendants had no intention of keeping their promises in the Settlement
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`Agreement, and almost immediately upon receiving the goods and services from CooLab, violated
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`them.
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`68.
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`As a direct and proximate result of defendants’ conduct, CooLab has suffered injury
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`for which compensation is sought in the form of monetary damages in an amount in excess of
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`$150,000, plus punitive damages and pre-judgment and post-judgment interest, and that will be
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`established at trial by jury.
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`PRAYER FOR RELIEF
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`
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`WHEREFORE, Plaintiff CooLab Foods LLC, requests the following relief:
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`A.
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`An Order awarding CooLab actual and compensatory damages, with default
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`interest and attorneys’ fees and costs, for Creamalicious’s breach of the Settlement Agreement;
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`B.
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`An Order awarding CooLab actual and compensatory damages, with pre-judgment
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`and post-judgment interest, for Creamalicious’s breach of contract by failing to pay the CooLab
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`invoices;
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`C.
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`In the alternative, an Order awarding CooLab damages in the amount by which
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`defendants were unjustly enriched;
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`D.
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`An Order awarding CooLab actual, compensatory and punitive damages, with pre-
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`judgment and post-judgment interest, for defendants’ promissory fraud; and
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`E.
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`All such other relief as the Court deems just and proper.
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`JURY DEMAND
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`Plaintiff CooLab Foods LLC hereby demands a trial by jury on all issues so triable.
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`COOLAB FOODS LLC
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`Respectfully submitted,
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`
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`By:
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`
`
`/s/ Michael J. Grant
`One of Their Attorneys
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`
`
`
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`Dated: June 27, 2022
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`
`
`Michael J. Grant (ARDC #6275028)
`Ashley Crettol Insalaco (ARDC #6305680)
`TABET DIVITO & ROTHSTEIN LLC
`209 S. LaSalle Street, 7th Floor
`Chicago, IL 60604
`Telephone: (312) 762-9450
`mgrant@tdrlaw.com
`ainsalaco@tdrlaw.com
`
`
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`11
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