Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 1 of 10 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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`Jaymee Fleming, individually and on behalf of
`all others similarly situated,
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`3:21-cv-01462
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`Plaintiff,
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`
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`- against -
`
`Class Action Complaint
`
`Del Monte Foods, Inc.,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1. Del Monte Foods, Inc. (“defendant”) manufactures, labels, markets, and sells
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`Farmhouse Cut Green Beans described as “Fresh Cut,” “With Natural Sea Salt,” and containing
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`“No Preservatives” (“Product”).
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`2.
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`3.
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`Consumers are increasingly seeking foods without preservatives for various reasons.
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`Preservatives are defined as something that preserves or have the power of
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`preserving, specifically, an additive used to protect against decay, discoloration, or spoilage.
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`4.
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`Preservatives are used to maintain the quality of food beyond their role in killing
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`microorganisms that can contribute to foodborne illness.
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`5.
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`Preservatives are grouped into two general classes – natural preservatives, consisting
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`of sugar, salt, vinegar, and spices, and artificial preservatives such as benzoate of soda, salicylic
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`acid, and sulfur dioxide.
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`6.
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`In response to an unregulated environment where dangerous substances were being
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`added to the nation’s food supply, the Pure Food and Drug Act of 1906 defined “chemical
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`preservatives” as any chemical that, when added to food, tends to prevent or retard deterioration
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`
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ILLINOIS
`
`BENTON DIVISION
`
`Jaymee Fleming, individually and on behalf of
`all others similarly situated,
`
`3:21-cv-01462
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Del Monte 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. Del Monte Foods, Inc. (“defendant”) manufactures, labels, markets, and sells
`
`Farmhouse Cut Green Beans described as “Fresh Cut,” “With Natural Sea Salt,” and containing
`
`“No Preservatives” (“Product”).
`
`2.
`
`3.
`
`Consumers are increasingly seeking foods without preservatives for various reasons.
`
`Preservatives are defined as something that preserves or have the power of
`
`preserving, specifically, an additive used to protect against decay, discoloration, or spoilage.
`
`4.
`
`Preservatives are used to maintain the quality of food beyond their role in killing
`
`microorganisms that can contribute to foodborne illness.
`
`5.
`
`Preservatives are grouped into two general classes – natural preservatives, consisting
`
`of sugar, salt, vinegar, and spices, and artificial preservatives such as benzoate of soda, salicylic
`
`acid, and sulfur dioxide.
`
`6.
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`In response to an unregulated environment where dangerous substances were being
`
`added to the nation’s food supply, the Pure Food and Drug Act of 1906 defined “chemical
`
`preservatives” as any chemical that, when added to food, tends to prevent or retard deterioration
`
`
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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 2 of 10 Page ID #2
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`thereof, but does not include common salt, sugars, vinegars, spices, or oils extracted from spices.
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`7. When the Food Drug and Cosmetic Act was enacted, it contained the same
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`requirement. 21 C.F.R. § 101.22(a)(5).
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`8.
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`Federal and identical state regulations require that all foods contain a prominent
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`statement sufficient to tell purchasers if it contains a chemical preservative. 21 C.F.R. § 101.22(c).
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`9.
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`Canned green beans are required to be processed by heat, in an appropriate manner
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`before or after being sealed in a container, as to prevent spoilage. 21 C.F.R. § 155.120(a).
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`10. Salt is an optional ingredient to canned green beans.
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`11. Salt can be added for taste, but also functions as a preservative.
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`12. Though canning kills biological organisms, it is not a silver bullet.
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`13. Some organisms are merely weakened through the canning process, while some may
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`survive, albeit in small enough numbers such that they will not be an issue if the food is consumed
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`within a reasonable amount of time.
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`14. Salt ensures that fewer bacteria survive, and those that do, stay dormant.
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`15. Salt prevents the deterioration of the green beans over time beyond its impact on any
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`chemical processes
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`16. Chemical processes exist which are unrelated to foodborne illness which can cause
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`a food’s quality to decrease over time.
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`17. Salt prevents and slows discoloration of food.
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`18. Salt causes food to maintain its texture for longer than it otherwise would.
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`19.
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`In canned foods, salt adds flavor, but maintains the natural flavor of the food.
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`20. Salt has a preservative function even in a largely sterile environment.
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`21. The statement that the Product has “No Preservatives” is false, due to the presence
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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 3 of 10 Page ID #3
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`of salt.
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`22. While the relevant regulations for chemical preservatives do not require any
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`ingredient in the Product to be identified as a preservative nor the front label to disclose any
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`chemical preservative (it does not have any), they do not authorize the claim of “No Preservatives.”
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`23. The Product contains other representations which are misleading.
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`24. 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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`comparable products or alternatives.
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`25. 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 did not contain preservative
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`ingredients.
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`26. 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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`27. 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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`28. 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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`29. The Product is sold for a price premium compared to other similar products, no less
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`than approximately $2.79 for 14.5 oz (411g), 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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`30.
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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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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 4 of 10 Page ID #4
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`31. 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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`32. Plaintiff Jaymee Fleming is a citizen of Illinois.
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`33. Defendant Del Monte Foods, Inc., is a Delaware corporation with a principal place
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`of business in Walnut Creek, Contra Costa County, California.
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`34. Plaintiff and defendant are citizens of different states.
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`35. Defendant transacts business within this District through sale of the Product within
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`this District, at convenience stores, grocery stores, drug stores, big box stores, membership stores,
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`and online, sold directly to residents of this District.
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`36. 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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`37. Venue is in the Benton Division Courthouse in this District because a substantial part
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`of the events or omissions giving rise to the claim occurred in Perry County, i.e., Plaintiff’s
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`purchase of the Product and her awareness of the issues described here.
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`Parties
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`38. Plaintiff Jaymee Fleming is a citizen of Pinckneyville, Perry County, Illinois.
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`39. Plaintiff tries to avoid food with any kinds of added preservatives.
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`40. Defendant Del Monte Foods, Inc., is a Delaware corporation with a principal place
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`of business in Walnut Creek, California, Contra Costa County.
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`41. Del Monte is the country's largest producers of vegetables.
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`42. As one of the oldest sellers of canned goods, consumers know the Del Monte Shield
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`means trust and quality.
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`43. Plaintiff purchased the Product on one or more occasions within the statutes of
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`4
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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 5 of 10 Page ID #5
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`limitations for each cause of action alleged, from stores including Walmart, 215 Grant Way Du
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`Quoin, IL 62832, between October and November 2021, among other times.
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`44. Plaintiff bought the Product because she expected it did not contain preservative
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`ingredients because that is what the representations said and implied.
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`45. Plaintiff seeks to avoid preservatives of all kinds.
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`46. Plaintiff relied on the words and images on the Product, identified here.
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`47. Plaintiff bought the Product at or exceeding the above-referenced price.
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`48. 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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`49. 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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`50. 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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`51. 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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`52. Plaintiff is unable to rely on the labeling of not only this Product, but other items
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`purporting to not contain preservatives, because she is unsure of whether their representations are
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`truthful.
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`53. Plaintiff wants to purchase foods, including green beans, without preservatives
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`because she likes this food and she dislikes preservatives.
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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 6 of 10 Page ID #6
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`Class Allegations
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`54. 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,
`Kansas, Wyoming, and Delaware, who purchased the
`Product during the statutes of limitations for each cause of
`action alleged
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`55. 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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`56. 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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`57. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`58. 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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`59.
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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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`60. 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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`61. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`6
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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 7 of 10 Page ID #7
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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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`62. Plaintiff incorporates by reference all preceding paragraphs.
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`63. Plaintiff and class members desired to purchase a product that did not contain
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`preservative ingredients.
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`64. 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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`65. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`66. 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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`67. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`68. Plaintiff relied on the representations that the Product did not contain preservative
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`ingredients
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`69.
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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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`70. 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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`71. Defendant intended that plaintiff and each of the other members of the Consumer
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`7
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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 8 of 10 Page ID #8
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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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`72. 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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`73.
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`In addition, defendant’s conduct showed motive, and the reckless disregard of the
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`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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`74. 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 did not contain preservative ingredients.
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`75. 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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`76. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`the preeminent brand when it comes to packaged vegetables, symbolized by the iconic Del Monte
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`Shield, representing the highest quality.
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`77. Thus, the Product has a high level of trust with consumers, more so than other brands.
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`78. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers, and their employees.
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`79. 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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`80. 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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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 9 of 10 Page ID #9
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`advertised.
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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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`Negligent Misrepresentation
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`82. Defendant had a duty to truthfully represent the Product, which it breached.
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`83. 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 leading canner of vegetables in the nation.
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`84. 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 canned vegetables brand.
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`85. 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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`86. 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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`87. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it did not contain preservative ingredients.
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`88. 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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`89. 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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`90. Defendant obtained benefits and monies because the Product was not as represented
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`Case 3:21-cv-01462-SMY Document 1 Filed 11/19/21 Page 10 of 10 Page ID #10
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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 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 19, 2021
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`10
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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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