Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 1 of 11 Page ID #1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ILLINOIS
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`BENTON DIVISION
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`Phyllis Spell, individually and on behalf of all
`others similarly situated,
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`3:21-cv-01426
`
`Plaintiff,
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`
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`- against -
`
`Class Action Complaint
`
`Inventure Foods, Inc.,
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`
`
`Defendant
`
`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1.
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`Inventure Foods, Inc. (“defendant”) manufactures, labels, markets, and sells Crunchy
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`Fries Snacks (Baked) – Cheddar Cheese Flavored under the TGIFriday’s brand (“Product”).
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`2. Dictionaries define “fries” as long thin pieces of fried potato.
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`
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`3.
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`The production of fries begins by cutting peeled or unpeeled potatoes into even strips,
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`
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ILLINOIS
`
`BENTON DIVISION
`
`Phyllis Spell, individually and on behalf of all
`others similarly situated,
`
`3:21-cv-01426
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Inventure Foods, Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Inventure Foods, Inc. (“defendant”) manufactures, labels, markets, and sells Crunchy
`
`Fries Snacks (Baked) – Cheddar Cheese Flavored under the TGIFriday’s brand (“Product”).
`
`2. Dictionaries define “fries” as long thin pieces of fried potato.
`
`
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`3.
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`The production of fries begins by cutting peeled or unpeeled potatoes into even strips,
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`
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 2 of 11 Page ID #2
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`which are wiped off or soaked in cold water to remove the surface starch, and thoroughly dried.
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`4.
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`Then the strips are deep fried through being submerged in vegetable oil.
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`5. An increasingly popular lower-fat method for producing a French fry-like product is
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`to coat sliced potatoes in oil and spices/flavoring before baking them.1
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`6.
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`The temperature will be lower compared to deep frying, which reduces acrylamide
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`formation.
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`7. Additionally, these baked fries have lower fat content because they are not cooked
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`in vegetable oil.
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`8. Despite the pictures of what appear to be sliced potatoes on the front label and the
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`name, Crunchy Fries Snacks (Baked) – Cheddar Cheese Flavored, the Product is almost entirely
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`made from corn instead of potatoes, as shown by the ingredient list.
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`
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`INGREDIENTS: WHOLE GRAIN CORN MEAL, ENRICHED
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`CORNMEAL [CORN, FERROUS SULFATE, NIACIN, THIAMINE
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`MONONITRATE, RIBOFLAVIN, FOLIC ACID], SOYBEAN OIL
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`AND/OR SUNFLOWER OIL, POTATO FLAKES, WHEY POWDER,
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`DRIED CHEDDAR CHEESE [CHEDDAR CHEESE (CULTURED
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`MILK, SALT, ENZYMES), WHEY, BUTTERMILK, SALT, DISODIUM
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`PHOSPHATE, ANNATTO EXTRACT], TAPIOCA MALTODEXTRIN,
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`SEA SALT, NATURAL FLAVORS, YEAST EXTRACT, ONION
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`POWDER, EXTRACTIVES OF PAPRIKA, LACTIC CID, CITRIC ACID,
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`1 https://www.acouplecooks.com/baked-french-fries/
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`2
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 3 of 11 Page ID #3
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`EXTRACTIVES OF TURMERIC, CALCIUM CARBONATE.
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`9.
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`The first two ingredients are whole grain corn meal and enriched cornmeal.
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`10. The third ingredient is the vegetable oil used to make the Product.
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`11. Finally, the fourth ingredient in the “fries” is “Potato Flakes.”
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`12. Potato flakes are not sliced potatoes, but “flat chunks of dehydrated mashed potato.”
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`13. Consumers value products made from potatoes for their nutritive properties.
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`14. Federal and identical state regulations prohibit false and deceptive practices with
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`respect to labeling food. See Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 343(a)(1) (a
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`food is misbranded if “its labeling is false or misleading in any particular.”); Illinois Food, Drug
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`and Cosmetic Act (“IFDCA”), 410 ILCS 620/1 et seq.; 410 ILCS 620/21(j) (“[a] federal [food
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`labeling] regulation automatically adopted…takes effect in this State on the date it becomes
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`effective as a Federal regulation.”).
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`15. The Illinois Consumer Fraud and Deceptive Business Practices Act provides
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`protection for consumers purchasing products like Defendant’s Product, and states:
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`Unfair methods of competition and unfair or deceptive acts or practices, including
`but not limited to the use or employment of any deception, fraud, false pretense,
`false promise, misrepresentation or the concealment, suppression or omission of
`any material fact, with intent that others rely upon the concealment, suppression or
`omission of such material fact . . . are hereby declared unlawful
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`815 ILCS 505/2.
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`16. The Product’s name of Crunchy Fries Snacks is false, deceptive, and misleading
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`because it is not a common or usual name for a product made mostly from cornmeal. 21 C.F.R. §
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`102.5.
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`17. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of a product, relative to itself and other
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`3
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 4 of 11 Page ID #4
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`comparable products or alternatives.
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`18. By labeling the Product in this manner, Defendant gained an advantage against other
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`companies, and against consumers seeking to purchase a product that contained mainly potatoes
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`instead of corn.
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`19. The value of the Product that plaintiff purchased was materially less than its value as
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`represented by defendant.
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`20. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`21. 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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`22. The Product is sold for a price premium compared to other similar products, no less
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`than approximately $2.89 for 2.5 oz (70.9g), a higher price than it would otherwise be sold for,
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`absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`23.
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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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`24. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`25. Defendant is a subsidiary of Utz, one of the largest potato snacks companies in the
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`United States, which sells its products nationwide.
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`26. Plaintiff Phyllis Spell is a citizen of Illinois.
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`27. Defendant Inventure Foods, Inc., is a Delaware corporation with a principal place of
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`business in Hanover, York County, Pennsylvania.
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`4
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 5 of 11 Page ID #5
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`28. Plaintiff and defendant are citizens of different states.
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`29. Defendant transacts business within this District through the sale of the Product
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`directly to retailers, to distributors who sell to retailers, and directly to consumers from the internet.
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`30. Venue is in this District because plaintiff resides in this district and the actions giving
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`rise to the claims occurred within this district.
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`31. Venue is in the Benton Division in this District because a substantial part of the
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`events or omissions giving rise to the claim occurred in Williamson County, i.e., Plaintiff’s
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`consumption of the Product and her awareness of the issues described here.
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`Parties
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`32. Plaintiff Phyllis Spell is a citizen of Marion, Williamson County, Illinois.
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`33. Defendant Inventure Foods, Inc., is a Delaware corporation with a principal place of
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`business in Hanover, Pennsylvania, York County.
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`34. Defendant licenses the TGIFriday’s name for snack products.
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`35. TGIFriday’s is a national restaurant chain that is a leader and innovator in dining
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`experiences, recognized by industry observers and consumers as responsible for popularizing “bar
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`food,” such as fried potatoes covered in cheese, or “cheese fries.”
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`36. Plaintiff bought the Product at or exceeding the above-referenced price, on one or
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`more occasions at one or more locations, including in 2020 and 2021, from stores including
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`Casey’s, in Illinois and/or Missouri.
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`37. Plaintiff relied on the front label statement that the Product was a “Crunchy Fries
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`Snack[s],” and understood “fries” similar to the way this term is defined in dictionaries, and
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`expected a food made chiefly from potatoes instead of corn.
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`38. Plaintiff has had baked fries which involve placing strips of potato in an oven,
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`5
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 6 of 11 Page ID #6
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`covered in oil with seasonings and flavorings.
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`39. Plaintiff did not expect a product made mainly from corn with some potato flakes.
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`40. The Product is sold to consumers from retail and online stores of third-parties, and
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`online.
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`41. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, from stores including Casey’s, between 2020 and
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`2021, among other times.
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`42. Plaintiff bought the Product because she expected it contained mainly potatoes
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`instead of corn because that is what the representations said and implied.
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`43. Plaintiff relied on the words and images on the Product, identified here.
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`44. Plaintiff bought the Product at or exceeding the above-referenced price.
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`45. Plaintiff would not have purchased the Product if she knew the representations were
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`false and misleading or would have paid less for them.
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`46. Plaintiff chose between Defendant’s Product and similar products represented
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`similarly, but which did not misrepresent their attributes and/or lower-priced products which did
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`not make the statements and claims made by Defendant.
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`47. The Product was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`48. 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 are consistent with their composition.
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`49. Plaintiff is unable to rely on the labeling of not only this Product, but other items
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`purporting to contain potatoes, because she is unsure of whether their representations are truthful.
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`50. Plaintiff wants to purchase foods which contain potatoes because she likes them for
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`6
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 7 of 11 Page ID #7
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`their distinctive taste and nutritive properties.
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`Class Allegations
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`51. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
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`classes:
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`Illinois Class: All persons in the State of Illinois who
`purchased the Product during the statutes of limitations for
`each cause of action alleged.
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`Consumer Fraud Multi-State Class: All persons in the
`States of North Dakota, Rhode Island, Michigan, Virginia,
`North Carolina, Kansas, Wyoming, and Delaware, who
`purchased the Product during the statutes of limitations for
`each cause of action alleged
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`52. 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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`53. 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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`54. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`55. 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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`56.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`57. 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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`58. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`7
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 8 of 11 Page ID #8
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
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`(Consumer Protection Statute)
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`59. Plaintiff incorporates by reference all preceding paragraphs.
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`60. Plaintiff and class members desired to purchase a product that contained mainly
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`potatoes instead of corn.
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`61. 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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`62. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`63. 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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`64. Plaintiff relied on the representations that the Product contained mainly potatoes
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`instead of corn
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`65.
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` Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`66. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class
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`prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.
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`67. Defendant intended that plaintiff and each of the other members of the Consumer
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`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
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`fact be misled by this deceptive conduct.
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`8
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 9 of 11 Page ID #9
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`68. As a result of defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, plaintiff, and each of the other members of the Consumer Fraud Multi-State
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`Class, have sustained damages in an amount to be proven at trial.
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`69.
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`In addition, defendant’s conduct showed malice, motive, and the reckless disregard
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`of the truth such that an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`70. The Product was manufactured, identified, and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it contained mainly potatoes instead of
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`corn.
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`71. 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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`72. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`sold under the iconic TGIFriday’s brand, associated across America and the world with bar food
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`staples such as cheddar fries.
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`73. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers, and their employees.
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`74. 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, and by consumers
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`through online forums.
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`75. 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 it was not fit to pass in the trade as
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`advertised.
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`76. Plaintiff and class members would not have purchased the Product or paid as much
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`9
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 10 of 11 Page ID #10
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`77. Defendant had a duty to truthfully represent the Product, which it breached.
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`78. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience in this area, as the custodian of the iconic TGIFriday’s brand, associated
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`across America and the world with bar food staples such as cheddar fries.
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`79. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, the preeminent place for bar food.
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`80. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, their purchase of the
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`Product.
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`81. 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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`82. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained mainly potatoes instead of corn.
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`83. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provide it with actual and/or constructive knowledge of
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`the falsity of the representations.
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`84. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`85. 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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`10
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`Case 3:21-cv-01426 Document 1 Filed 11/14/21 Page 11 of 11 Page ID #11
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: November 15, 2021
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`11
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