Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 1 of 15 Page ID #1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
`
`Lori Gilker, individually and on behalf of all
`others similarly situated,
`
`3:21-cv-00488
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Chobani, LLC,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Chobani, LLC (“defendant”) manufactures, labels and sells low-fat Greek yogurt
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`under the Chobani Complete brand in flavors including vanilla and strawberry (“Product”).
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
`
`Lori Gilker, individually and on behalf of all
`others similarly situated,
`
`3:21-cv-00488
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Chobani, LLC,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Chobani, LLC (“defendant”) manufactures, labels and sells low-fat Greek yogurt
`
`under the Chobani Complete brand in flavors including vanilla and strawberry (“Product”).
`
`
`
`
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 2 of 15 Page ID #2
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`2.
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`The front label statements include nutrition and nutrient claims, ingredient claims
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`and allergen claims (collectively, the “claims”).
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`3.
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`4.
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`The nutrition claims include “Chobani Complete” and “Advanced Nutrition Yogurt.”
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`The nutrient claims1 include:
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`• 0g Added Sugar*
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`• 20 Amino Acids
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`*Not a low calorie food
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`• 3g Soluble Fiber
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`• + Prebiotic [and] Probiotic
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`• 17g Complete Protein
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`
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`5.
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`The ingredient claims include:
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`• Only Natural Ingredients
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`• pictures of the characterizing flavor ingredient,
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`i.e., vanilla beans and flowers or strawberries
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`• + Only Real Vanilla (or Other Fruit)
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`• Vanilla (or other characterizing flavor ingredient)
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`6.
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`7.
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`The “allergen” claims include “Lactose-Free” and “Easy to Digest.”
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`The back of the package lists the ingredients.
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`Ingredients: Cultured lowfat milk, water, chicory
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`root fiber, less than 1.5% of: vanilla extract,
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`lactase*, natural flavors, monk fruit extract, stevia
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`leaf extract (reb m), fruit pectin, locust bean gum,
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`lemon juice concentrate.
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`6 live and active cultures:
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`S. Thermophilus, L. Bulgaricus, L. Acidophilus,
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`Bifidus, L. Casei, and L. Rhamnosus.
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`
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`*Ingredient not found in regular yogurt.
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`1 The term “nutrient claims” is not used synonymously with “nutrient content claims.” Nutrient claims refers to
`statements
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`2
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 3 of 15 Page ID #3
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`8.
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`The back panel contains the Nutrition Facts.
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`I. Claims are Misleading
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`
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`9.
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`The claims are false, deceptive, and misleading for several reasons.
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`A. Nutrition Claims
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`10. The Product’s name, “Complete Nutrition,” is false, deceptive, and misleading
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`because it fails to provide “complete” nutrition as this term is understood by reasonable consumers.
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`11. Reasonable consumers understand “complete” the same way as defined by the
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`dictionary – “having all the necessary or appropriate parts.”
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`12. The Product does not have all the necessary and appropriate parts related to an
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`average consumer’s nutritional needs.
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`13. The “Advanced Nutrition [Yogurt]” representation is false, deceptive, and
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`misleading because the ingredients and composition are not beyond what others have already
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`introduced into the marketplace.
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`3
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 4 of 15 Page ID #4
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`B. Nutrient Content Claims
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`14.
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`Illinois incorporates the federal food labeling regulations in the Illinois Food, Drug
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`and Cosmetic Act (“IFDCA”) and its parallel regulations. See 410 ILCS 620/1, et seq.
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`15. Congress required that the FDA develop and implement nutrient content claims to
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`prevent consumers from being misled by the endless terms and descriptors appearing on foods.
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`16. Nutrient content claims tell consumers about the level of relevant nutrients in a food.
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`17. The criteria for nutrient content claims were the result of dozens of meetings held by
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`the FDA with consumers.
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`18. “Expressed” nutrient content claims are direct statements about the level (or range)
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`of nutrients in a food, e.g., “low sodium” or “contains 100 calories.” 21 C.F.R. § 101.13(b)(1).
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`19. “Implied” nutrient content claims can describe the food or an ingredient in a manner
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`that suggests that a nutrient is absent or present in a certain amount. 21 C.F.R. § 101.13(b)(2).
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`20. For example, a claim that a food is “high in oat bran” is understood as a way of saying
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`that food is high in fiber. 21 C.F.R. § 101.13(b)(2)(i).
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`21.
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`Implied nutrient content claims can also suggest that a food, because of its nutrient
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`content, may be useful in maintaining healthy dietary practices and is made in association with an
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`explicit claim or statement about a nutrient e.g., “healthy, contains 3 grams (g) of fat.” 21 C.F.R.
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`§ 101.13(b)(2)(ii).
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`22. Nutrient content claims are restricted to nutrients that have an established Reference
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`Daily Intake (“RDI”) or Daily Reference Value (“DRV”).
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`23.
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`If this were not the case, companies would be able to promote nutrients and
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`ingredients which were of limited or no value, and consumers would not be able to know if those
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`statements were truthful and meaningful.
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`24. Probiotics and prebiotics are not recognized by FDA as having an RDI or DRV.
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`4
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 5 of 15 Page ID #5
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`25. Probiotics are defined by the Food and Agriculture Organization and the World
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`Health Organization as “live microorganisms which when administered in adequate amounts
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`confer a health benefit on the host.”
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`26. The theory is that probiotics – “good bacteria” can affect the “gut microbiome,”
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`which plays an important role in gastrointestinal health and disease.
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`27. Consumer enthusiasm for probiotics is based on the unregulated messages conveyed
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`by companies which sell these products, which is a multibillion-dollar industry.
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`28. Most studies on probiotic strains – including those identified as in the Product – S.
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`Thermophilus, L. Bulgaricus, L. Acidophilus, Bifidus, L. Casei, and L. Rhamnosus – reveal no
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`benefit to persons who are already healthy.
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`29. The only people who may benefit from probiotics are those who suffer from a small
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`number of intestinal disorders.
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`30. Experts have warned that healthy people who consume probiotics may suffer harm.
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`31. According to Dr. Matthew Ciorba, a gastroenterologist at Washington University in
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`St. Louis, “There is no evidence to suggest that people with normal gastrointestinal tracts can
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`benefit from taking probiotics.”
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`32. The theory behind probiotics is based on the live bacteria surviving and propagating
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`in the intestinal tract and altering the internal composition of the human body.
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`33. However, the human gut contains tens of trillions of bacteria.
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`34. Defendant’s Complete Nutrition yogurt purports to contains “billions.”
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`35. The probiotics in the Product are “still just a drop in a bucket,” because “The gut
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`always has orders of magnitude more microbes,” states Shira Doron, an infectious disease expert
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`at Tufts Medical Center.
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`5
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 6 of 15 Page ID #6
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`36. Defendant touts the probiotics and prebiotics through the + or plus symbol.2
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`
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`37. Through use of the + (plus) symbol in conjunction with “probiotic” and “prebiotic,”
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`defendant tells consumers the Product has “more” of these nutrients or ingredients than other
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`comparable foods. 21 C.F.R. § 101.54(e) (identifying “plus” as a synonym for “more”).
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`38. This is an unlawful nutrient content claim, which is also misleading because there is
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`no recognized or accepted number, amount or colony forming units (“CFU”) of probiotics and
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`prebiotics with which those in the Product can be compared.
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`39. Nutrient content claims for the term “more” and its synonyms are restricted to
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`describing the level of protein, vitamins, minerals, dietary fiber, or potassium. 21 C.F.R. §
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`101.54(e)(1).
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`40. Further, the Product offers no comparison to other foods with probiotics and
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`prebiotics, i.e., “More, compared to what?”
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`41. While the front label uses the + (plus) symbol to claim, “ONLY REAL VANILLA,”
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`consumers are smart enough to distinguish the context of the plus symbol.
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`2 Probiotics and prebiotics will be used interchangeably from this point forward in the pleading.
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`6
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 7 of 15 Page ID #7
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`42.
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`In the context of the purported “ONLY REAL VANILLA,” the plus symbol is
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`equivalent to a bullet point or checkmark, ticking off attributes of added value.
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`43.
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`In the context of scientific-sounding terms – Probiotic and Prebiotic – consumers
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`will associate a “plus” symbol to mean not just that the Product contains probiotics, but that (1)
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`probiotics are recognized by relevant authoritative bodies as nutrients of dietary significance and
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`(2) the Product had more of them than other comparable products.
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`C. Ingredient Claims are Misleading
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`44. The FDA has considered the term “natural” to mean that nothing artificial or
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`synthetic has been included in, or has been added to, a food that would not normally be expected.
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`45. Consumers increasingly are avoiding foods that are synthetic, due to negative health
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`and environmental effects caused by chemicals and additives used.
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`46. Consumers pay more for products that claim to be made with natural ingredients.
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`47.
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` The representation that the Product contains “Only Natural Ingredients” is false,
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`deceptive and misleading due to the use of “monk fruit extract.”
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`48. Siraitia grosvenorii Swingle (“Monk”) fruit extract (SGFE) is a high-intensity, non-
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`nutritive sweetener.
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`49. Should consumers read “monk fruit extract” on the ingredient list, they will think it
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`is made similarly to “vanilla extract,” which only involves ethyl alcohol to remove the flavoring
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`principles.
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`50. However, the sweetener used by defendant is not a simple extract from the Luo Han
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`Guo or monk fruit.
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`51. Real monk fruit extract is very sweet, but its aftertaste causes producers to further
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`refine and process it to modify its taste.
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`7
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 8 of 15 Page ID #8
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`52. This is typically done with solvents and additives, such as divinylbenzene
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`copolymer, calcium hydroxide, hydrochloric acid and styrene divinylbenzene ion exchange resin.
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`53. The solvents and additives used in making the monk fruit extract are not natural, as
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`those terms are understood by consumers.
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`54. Even if none of these solvents or additives remain in final product, their use in an
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`ingredient identified as “monk fruit extract” is misleading.
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`55. Consumers expect that a representation that a product is made with “Only Natural
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`Ingredients” does not only mean the ingredients are natural, but that they were obtained in a natural
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`way – without harsh processing and additives.
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`56.
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` Even if consumers read the ingredients, they will expect monk fruit extract to be
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`made in the same, natural way that vanilla extract is made – only with an alcohol solution.
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`57. The Product contains other representations about its ingredients that are false,
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`deceptive and misleading.
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`58. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components and features of the Product, relative to itself and other comparable
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`products.
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`59. Defendant sold more of the Product and at a 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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`60. 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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`61. Plaintiff paid more for the Product based on the representations than she would have
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`otherwise paid.
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`8
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 9 of 15 Page ID #9
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`62. 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 $4.99 for 24 OZ (680g), excluding tax,
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`higher than similar products represented in a non-misleading way, and higher than it would be sold
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`for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`63.
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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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`64. Plaintiff Lori Gilker is a citizen of Illinois.
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`65. Defendant Chobani, LLC is a Delaware limited liability company with a principal
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`place of business in Norwich, Chenango County, New York and upon information and belief, at
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`least one member of defendant is not a citizen of the same state as the plaintiff.
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`66. Diversity exists because plaintiff Lori Gilker and defendant are citizens of different
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`states.
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`67. Upon information and belief, sales of the Product and any available statutory and
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`other monetary damages, exceed $5 million during the applicable statutes of limitations, exclusive
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`of interest and costs.
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`68. Venue is proper because a substantial part of the events or omissions giving rise to
`
`the claim occurred here – the purchase of plaintiff and her experiences identified here.
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`Parties
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`69. Plaintiff Lori Gilker is a citizen of Collinsville, Madison County, Illinois.
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`70. Defendant Chobani, LLC is a Delaware limited liability company with a principal
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`place of business in Norwich, New York, Chenango County and upon information and belief, at
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`least one member of defendant is not a citizen of the same state as the plaintiff.
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`9
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 10 of 15 Page ID #10
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`71. Defendant is one of the largest yogurt producers in the world and controls over fifty
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`percent of the United States yogurt market.
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`72. Defendant popularized the Greek yogurt category in the United States.
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`73. Greek yogurt is a thick yogurt with higher protein content than regular yogurt.
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`74. Defendant is considered an “innovator” when it comes to pushing the boundaries in
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`consumer foods and beverages.
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`75. Defendant’s annual sales are approximately $1.5 billion.
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`76. Plaintiff purchased the Product on at least one occasion within the statutes of
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`limitations for each cause of action, including in April 2021, at locations including Walmart, 1101
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`Beltline Rd, Collinsville, IL 62234.
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`77. Plaintiff bought the Product because she expected the + (plus) symbol in conjunction
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`with “Probiotic” and “Prebiotic” meant that these were nutrients of dietary significance, and that
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`it contained more of them than other comparable foods.
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`78. Plaintiff bought the Product because she expected “Only Natural Ingredients” meant
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`the ingredients were made through natural processes without non-natural additives and processing
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`aids.
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`79. Plaintiff did not know that probiotics and prebiotics are ingredients with no
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`established dietarily significant values, and that no credible evidence existed of their efficacy or
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`usefulness to healthy people.
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`80. Plaintiff did not know how monk fruit extract was made.
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`81. Plaintiff was unaware of the other misrepresentations on the Product.
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`82. The Product was worth less than what Plaintiff and consumers paid and she would
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`not have paid as much absent Defendant's false and misleading statements and omissions.
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`10
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 11 of 15 Page ID #11
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`83. Plaintiff paid more for the Product than she would have paid otherwise.
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`84. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance that Product’s representations about its components and ingredients are
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`consistent with its representations.
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`Class Allegations
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`85. The class will consist of all purchasers of the Product who reside in Illinois during
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`the applicable statutes of limitations.
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`86. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`87. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`88. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`89. Plaintiff is an adequate representative because her interests do not conflict with other
`
`members.
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`90. 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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`91.
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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.
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`92. 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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`93. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`11
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 12 of 15 Page ID #12
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`
`(Consumer Protection Statute)
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`94. Plaintiff incorporates by reference all preceding paragraphs.
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`95. Plaintiff and class members desired to purchase a product which had valuable
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`nutrients it did not have, contained ingredients that were natural not just in their final version but
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`in their production and conformed to the other representations.
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`96. Defendant’s false and deceptive representations and omissions are material in that
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`they are likely to influence consumer purchasing decisions.
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`97. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`98. Plaintiff relied on the representations.
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`99. 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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`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`100. The Product was manufactured, labeled and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it had valuable nutrients it did not have,
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`contained ingredients that were natural not just in their final version but in their production and
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`conformed to the other representations.
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`101. 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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`102. This duty is based on Defendant’s outsized role in the market for this type of Product.
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`12
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 13 of 15 Page ID #13
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`103. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`104. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, competitors, and consumers, to its main offices.
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`105. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable because they were not fit to pass in the trade as
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`advertised.
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`106. 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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`107. Defendant had a duty to truthfully represent the Product, which it breached.
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`108. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience this area – a trusted innovator in dairy products.
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`109. 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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`110. Plaintiff reasonably and justifiably relied on these negligent misrepresentations and
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`omissions, which served to induce and did induce, their purchases of the Product.
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`111. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`112. Defendant misrepresented and/or omitted the attributes and qualities of the Product.
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`13
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 14 of 15 Page ID #14
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`113. Defendant’s fraudulent intent is evinced by its knowledge that probiotics and
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`prebiotics were not authorized to be used in nutrient content claims and because its “Only Natural
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`Ingredients” statement was a “half-truth.”
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`Unjust Enrichment
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`114. 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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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`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: May 16, 2021
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`Respectfully submitted,
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`
`14
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`
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`Case 3:21-cv-00488-DWD Document 1 Filed 05/16/21 Page 15 of 15 Page ID #15
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Bar Roll # 519087
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`
`15
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`
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