Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 1 of 15 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Misha Leshchiner, individually and on behalf
`of all others similarly situated,
`
`1:22-cv-03464
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Kellogg Sales Company,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1. Kellogg Sales Company (“Defendant”) manufactures, markets, labels and sells
`
`cranberry almond chewy nut bars depicted with pictures of whole almonds and cranberries under
`
`the Special K brand (“Product”).
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Misha Leshchiner, individually and on behalf
`of all others similarly situated,
`
`1:22-cv-03464
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Kellogg Sales Company,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1. Kellogg Sales Company (“Defendant”) manufactures, markets, labels and sells
`
`cranberry almond chewy nut bars depicted with pictures of whole almonds and cranberries under
`
`the Special K brand (“Product”).
`
`
`
`
`
`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 2 of 15 PageID #:2
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`2.
`
`The labeling is misleading because it gives consumers the impression it has a greater
`
`absolute and relative amount of cranberries and almonds than it does.
`
`3. Almonds and cranberries are valued by consumers because they are rich in nutrients
`
`not available from other foods of their type.
`
`I.
`
`INCREASED POPULARITY OF ALMONDS
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`4. Americans’ almond consumption has grown several hundred percent in the past two
`
`decades, overtaking peanuts as the most consumed nut.1
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`5. One of the reasons is because almonds contain “healthy fats,” which science and
`
`nutrition have concluded are beneficial to health.
`
`6. Almonds are a good source of protein, which studies show contributes to decline in
`
`overall mortality and improvement of heart health.
`
`7. A handful of almonds contains roughly 10 percent of the recommended intakes for
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`protein and fiber, and macronutrients such as vitamins and minerals.
`
`8. Almonds are widely considered the gold standard by many nutrition experts.
`
`9. One prominent consultant declared that “Almonds are better [than other nuts] due to
`
`their greater percentage of minerals, vitamin E and phytonutrients,” with “[fewer] calories, more
`
`fiber and a better glycemic score than peanuts making them better for weight loss, diabetics and
`
`sustained energy throughout the day.”
`
`10. Companies have responded to consumer demand and growing evidence of benefits
`
`of almonds by making them the key ingredients in packaged foods.2
`
`
`1 Roberto A. Ferdman The rise of the American almond craze in one nutty chart, Washington Post,
`Aug. 6, 2014. The Peanut Board has questioned the statistics used to conclude almond
`consumption exceeds peanuts.
`2 Jill Russell Qualizza, Almonds Win 2013 Popularity Contest, Nov. 5, 2013; Joshua Minchin,
`Why are Consumers and Manufacturers Choosing Almonds, New Food, Feb. 18, 2022.
`
`2
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`
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`11. Consumers associate almonds with health over other nut varieties.
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`12. Almonds are the most expensive nut, several times more expensive than peanuts.
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`13. Consumers are willing to pay more for products with almonds based on these factors.
`
`II. POPULARITY OF CRANBERRIES
`
`14. The past two decades have seen an increase in consumer consumption of cranberries,
`
`classified as a “superfruit” by nutrition experts, due to the high antioxidant content.
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`15. Cranberries are very high in antioxidants, compounds that reduce free radicals and
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`contribute to prevention of chronic diseases such as cardiovascular disease.
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`16. One of these is Vitamin E, an essential fat-soluble vitamin which plays a role in skin
`
`and hair health.
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`17. Other antioxidants in cranberries include quercetin, myricetin, peonidin, ursolic acid,
`
`and A-type proanthocyanidins, or tannins.
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`18. Proanthocyanidins are proven to prevent urinary tract infections (“UTIs”).
`
`19. Cranberries contain a relatively greater amount of polyphenols than other fruits.
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`20. Studies indicate these bioactive plant compounds have numerous health benefits,
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`such as promoting circulation, improving blood pressure, and maintaining cardiovascular health.
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`21. Cranberries are a good source of fiber, with 4.6 grams per cup, which is beneficial to
`
`digestive health.
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`22. Based on having fewer calories and carbohydrates, and more fiber, consumers are
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`increasingly choosing cranberries over raisins.
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`23. Though cranberries are more expensive than raisins, consumers are willing to pay
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`higher prices due to the numerous benefits this fruit provides.
`
`3
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`III. “CRANBERRY ALMOND – CHEWY NUT BAR” MISLEADS CONSUMERS
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`24. The front label representations of “Cranberry Almond – Chewy Nut Bars,” pictures
`
`of whole cranberries and almonds, and picture of the bar are misleading because (1) the amount of
`
`cranberry ingredients is almost equivalent to the amount of raisin ingredients and (2) the amount
`
`of peanut ingredients exceeds the amount of almond ingredients.
`
`25. The ingredient list shows peanuts are the first ingredient, while almonds are listed
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`fifth, after raisins and corn syrup.
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`Ingredients: Peanuts, dried cranberries
`
`(cranberries, sugar, vegetable glycerin),
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`raisins, corn syrup, almonds, sugar,
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`whole grain oats, crisp rice (rice flour,
`
`sugar, salt), date paste, fructose,
`
`toasted coconut (coconut, sugar,
`
`dextrose, salt).
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`Contains 2% or less of palm oil,
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`vegetable glycerin, salt, soy lecithin,
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`rosemary extract for freshness, soy
`
`protein isolate, nonfat milk.
`
`
`
`26. The front label fails to show pictures of peanuts and shows only almonds as a visible
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`nut ingredient in the bar, noticeable by their shape and brown skin.
`
`27.
`
`In other countries, Defendant sells a near-identical version of the Product where the
`
`front label contains pictures of peanuts in addition to almonds.
`
`28. Based on laboratory analysis and/or review of the Product’s formulation, the
`
`approximate percentage of the Product that is peanuts is 20%, while almonds are 9%.
`
`29. While dried cranberries are listed second, ahead of raisins, the amount of these two
`
`ingredients is approximately the same.
`
`4
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`30. This is based upon laboratory analysis and/or review of the Product’s formulation,
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`which reveal that if cranberries constitute 15% of the Product, raisins constitute 14%.
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`31. The front label does not contain pictures of raisins next to cranberries nor contain the
`
`word “raisin.”
`
`32. The picture of the bar on the label does not visibly reveal any fruit component other
`
`than cranberries.
`
`33. The Product’s name of “Cranberry Almond – Chewy Nut Bar” is misleading because
`
`it gives the impression of a greater relative and absolute amount of cranberries and almonds.
`
`34. The name does not comply with federal and identical state requirements that foods
`
`be given a “common or usual name” that is truthful and not misleading. 21 C.F.R. § 102.5(a).
`
`35. A common or usual name must “identify or describe, in as simple and direct terms
`
`as possible, the basic nature of the food or its characterizing properties or ingredients.” 21 C.F.R.
`
`§ 102.5(a).
`
`36. Where the characterizing ingredients (1) have a material bearing on the food’s price
`
`or its acceptance by consumers or (2) creates an erroneous impression they are present in a greater
`
`amount than it is, the common or usual name should include these percentages or otherwise inform
`
`consumers. 21 C.F.R. § 102.5(b).
`
`37. The label could have stated, “Contains % Cranberry [and] Contains %
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`Almonds” beneath “Chewy Nut Bars,” or disclosed the use of raisins and peanuts on the front
`
`label. 21 C.F.R. § 102.5(b)(2).
`
`38. The name, “Cranberry and Almond – Chewy Nut Bars,” does not tell consumers the
`
`Product contains a significantly greater relative amount of peanuts and raisins compared to
`
`almonds and cranberries.
`
`5
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`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 6 of 15 PageID #:6
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`39. While consumers will see the words “Chewy Nut Bars” below “Cranberry and
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`Almond” and may expect other nut ingredients, they will not expect other nuts to be present in an
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`amount greater than the highlighted ingredient of almonds.
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`40. The name, “Cranberry and Almond – Chewy Nut Bars” does not tell consumers that
`
`the Product contains an approximately equivalent amount of cranberries and raisins.
`
`41. The Product substitutes lower valued peanuts and raisins for higher valued almonds
`
`and cranberries.
`
`IV. CONCLUSION
`
`42. Defendant makes other representations and omissions with respect to the Product
`
`which are false and misleading.
`
`43. Reasonable consumers must and do rely on a company to honestly and lawfully
`
`market and describe the components, attributes, and features of a product, relative to itself and
`
`other comparable products or alternatives.
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`44. The value of the Product that Plaintiff purchased was materially less than its value
`
`as represented by Defendant.
`
`45. Defendant sold more of the Product and at higher prices than it would have in the
`
`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`46. Had Plaintiff known the truth, he would not have bought the Product or would have
`
`paid less for it.
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`47. 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 $4.89 for 6 bars (198g), excluding tax and
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`sales, higher than similar products, represented in a non-misleading way, and higher than it would
`
`be sold for absent the misleading representations and omissions.
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`6
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`Jurisdiction and Venue
`
`48.
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`Jurisdiction is based on the Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C.
`
`§ 1332(d)(2).
`
`49. The aggregate amount in controversy exceeds $5 million, including any statutory and
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`punitive damages, exclusive of interest and costs.
`
`50. Plaintiff Misha Leshchiner is a citizen of Illinois.
`
`51. Defendant Kellogg Sales Company is a Delaware corporation with a principal place
`
`of business in Battle Creek, Calhoun County, Michigan.
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`52. 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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`53. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold with the representations described here for several years, in thousands of
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`locations across the States covered by Plaintiff’s proposed classes.
`
`54. The Product is available to consumers from grocery stores, dollar stores, warehouse
`
`club stores, drug stores, convenience stores, big box stores, and online
`
`55. 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 Lake County, including Plaintiff’s
`
`purchase, consumption, transactions and/or use of the Product and awareness and/or experiences
`
`of and with the issues described here.
`
`Parties
`
`56. Plaintiff Misha Leshchiner is a citizen of Vernon Hills, Lake County, Illinois.
`
`57. Defendant Kellogg Sales Company is a Delaware corporation with a principal place
`
`of business in Battle Creek, Michigan, Calhoun County.
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`7
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`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 8 of 15 PageID #:8
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`58. Kellogg’s is one of the largest food manufacturers in the world.
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`59. Kellogg’s founding was based upon its desire to improve the health of medical
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`patients, leading to the innovative corn flakes cereal.
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`60. The original founder, W.K. Kellogg, believed that a food’s ingredients determined
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`its quality, and always prioritized transparency and honesty to his customers.
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`61. For over a hundred years, American families have trusted Kellogg’s products, which
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`have become part of the fabric of American life.
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`62. The Product is sold in boxes containing various numbers of bars, and individually.
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`63. Plaintiff purchased the Product at locations including Target, 1400 E Lake Cook Rd,
`
`Wheeling, IL 60090, between December 21, 2021 and April 21, 2022, among other times.
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`64. Plaintiff believed and expected the Product had a greater relative and absolute
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`amount of almonds and cranberries relative to other fruits and nuts because that is what the
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`representations and omissions said and implied, on the front label and/or the absence of any
`
`references or statements elsewhere on the Product.
`
`65. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
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`packaging, hang tags, and/or images on the Product, on the labeling, statements, omissions, claims,
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`statements, and instructions, made by Defendant or at its directions, in digital, print and/or social
`
`media, which accompanied the Product and separately, through in-store, digital, audio, and print
`
`marketing.
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`66. Plaintiff bought the Product at or exceeding the above-referenced price.
`
`67. Plaintiff would not have purchased the Product if he knew the representations and
`
`omissions were false and misleading or would have paid less for it.
`
`68. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`8
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`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 9 of 15 PageID #:9
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`69. 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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`70. 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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`71. Plaintiff is unable to rely on the labeling and representations not only of this Product,
`
`but other similar fruit and nut bars, because he is unsure whether those representations are truthful.
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`Class Allegations
`
`72. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
`
`Illinois Class: All persons in the State of Illinois who
`purchased
`the Product during
`the statutes of
`limitations for each cause of action alleged; and
`
`Consumer Fraud Multi-State Class: All persons in
`the States of Arkansas, South Carolina, Montana,
`Mississippi, Alaska, Virginia, Louisiana, and
`Oklahoma who purchased the Product during the
`statutes of limitations for each cause of action
`alleged.
`
`73. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
`
`to damages.
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`74. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`75. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 10 of 15 PageID #:10
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`76. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`77.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
`
`78. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
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`79. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`
`(Consumer Protection Statute)
`
`80. Plaintiff incorporates by reference all preceding paragraphs.
`
`81. Plaintiff believed the Product had a greater relative and absolute amount of almonds
`
`and cranberries relative to other fruits and nuts.
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`82. Defendant’s false, misleading and deceptive representations and omissions are
`
`material in that they are likely to influence consumer purchasing decisions.
`
`83. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`84. Plaintiff relied on the representations and omissions to believe the Product had a
`
`greater relative and absolute amount of almonds and cranberries relative to other fruits and nuts.
`
`85.
`
` Plaintiff would not have purchased the Product or paid as much if the true facts had
`
`been known, suffering damages.
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`10
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`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 11 of 15 PageID #:11
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` Violation of State Consumer Fraud Acts
`
`(On Behalf of the Consumer Fraud Multi-State Class)
`
`86. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
`
`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
`
`deceptive business practices in the conduct of commerce.
`
`87. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
`
`their consumer protection claims under the Consumer Fraud Acts of the States they represent
`
`and/or the consumer protection statute invoked by Plaintiff.
`
`88. Defendant intended that members of the Consumer Fraud Multi-State Class would
`
`rely upon its deceptive conduct.
`
`89. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
`
`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
`
`90. Defendant’s conduct showed motive and a reckless disregard of the truth such that
`
`an award of punitive damages is appropriate.
`
`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.
`
`
`91. The Product was manufactured, identified, marketed and sold by Defendant and
`
`expressly and impliedly warranted to Plaintiff that it had a greater relative and absolute amount of
`
`almonds and cranberries relative to other fruits and nuts.
`
`92. Defendant directly marketed the Product to Plaintiff through its advertisements and
`
`marketing, through various forms of media, on the packaging, in print circulars, direct mail,
`
`product descriptions distributed to resellers, and targeted digital advertising.
`
`93. Defendant knew the product attributes that potential customers like Plaintiff were
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`11
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`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 12 of 15 PageID #:12
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
`
`94. Defendant’s representations about the Product were conveyed in writing and
`
`promised it would be defect-free, and Plaintiff understood this meant that it had a greater relative
`
`and absolute amount of almonds and cranberries relative to other fruits and nuts.
`
`95. Defendant’s representations affirmed and promised that the Product had a greater
`
`relative and absolute amount of almonds and cranberries relative to other fruits and nuts.
`
`96. Defendant described the Product so Plaintiff believed it had a greater relative and
`
`absolute amount of almonds and cranberries relative to other fruits and nuts, which became part of
`
`the basis of the bargain that it would conform to its affirmations and promises.
`
`97. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
`
`98. This duty is based on Defendant’s outsized role in the market for this type of Product,
`
`a trusted company, known for its transparent labeling, and its commitment to putting customers
`
`first.
`
`99. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
`
`100. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
`
`retailers, and their employees.
`
`101. Plaintiff hereby provides notice to Defendant that it breached the express and implied
`
`warranties associated with the Product.
`
`102. Defendant received notice and should have been aware of these issues due to
`
`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
`
`and by consumers through online forums.
`
`103. The Product did not conform to its affirmations of fact and promises due to
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`12
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`Defendant’s actions.
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`104. The Product was not merchantable because it was not fit to pass in the trade as
`
`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
`
`promises or affirmations of fact made on the packaging, container or label, because it was marketed
`
`as if it had a greater relative and absolute amount of almonds and cranberries relative to other fruits
`
`and nuts.
`
`105. The Product was not merchantable because Defendant had reason to know the
`
`particular purpose for which the Product was bought by Plaintiff, because he expected it had a
`
`greater relative and absolute amount of almonds and cranberries relative to other fruits and nuts,
`
`and he relied on Defendant’s skill and judgment to select or furnish such a suitable product.
`
`106. Plaintiff would not have purchased the Product or paid as much if the true facts had
`
`been known, suffering damages.
`
`Negligent Misrepresentation
`
`107. Defendant had a duty to truthfully represent the Product, which it breached.
`
`108. This duty was non-delegable, based on Defendant’s position, holding itself out as
`
`having special knowledge and experience in this area, a trusted company, known for its transparent
`
`labeling, and its commitment to putting customers first.
`
`109. Defendant’s representations and omissions regarding the Product went beyond the
`
`specific representations on the packaging, as they incorporated the extra-labeling promises and
`
`commitments to quality, transparency and putting customers first, that it has been known for.
`
`110. These promises were outside of the standard representations that other companies
`
`may make in a standard arms-length, retail context.
`
`111. The representations took advantage of consumers’ cognitive shortcuts made at the
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`13
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`point-of-sale and their trust in Defendant.
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`112. Plaintiff reasonably and justifiably relied on these negligent misrepresentations and
`
`omissions, which served to induce and did induce, their purchase of the Product.
`
`113. Plaintiff would not have purchased the Product or paid as much if the true facts had
`
`been known, suffering damages.
`
`Fraud
`
`114. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
`
`that it had a greater relative and absolute amount of almonds and cranberries relative to other fruits
`
`and nuts.
`
`115. Moreover, the records Defendant is required to maintain, and/or the information
`
`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
`
`the falsity and deception, through statements and omissions.
`
`116. Defendant knew of the issues described here yet did not address them.
`
`117. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
`
`Unjust Enrichment
`
`118. Defendant obtained benefits and monies because the Product was not as represented
`
`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
`
`Plaintiff demands a jury trial on all issues.
`
` WHEREFORE, Plaintiff prays for judgment:
`
`1. Declaring this a proper class action, certifying Plaintiff as representative and the
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`undersigned as counsel for the class;
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`14
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`Case: 1:22-cv-03464 Document #: 1 Filed: 07/03/22 Page 15 of 15 PageID #:15
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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
`
`representations, and restitution and disgorgement for members of the class pursuant to the
`
`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
`
`claims and interest pursuant to the common law and other statutory claims;
`
`5. Awarding costs and expenses, including reasonable fees for Plaintiff's attorneys and
`
`experts; and
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`6. Other and further relief as the Court deems just and proper.
`
`Dated: July 4, 2022
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`
`15
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