Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 1 of 12 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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`Dawn Hancock, individually and on behalf of
`all others similarly situated,
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`3:21-cv-01735
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`Plaintiff,
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`- against -
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`Class Action Complaint
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`Arizona Beverages USA LLC,
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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. Arizona Beverages USA LLC (“Defendant”) manufactures, labels, markets, and sells
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`mango drinks identified as “Mucho Mango Fruit Cocktail,” under the Arizona brand (“Product”).
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ILLINOIS
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`BENTON DIVISION
`
`Dawn Hancock, individually and on behalf of
`all others similarly situated,
`
`3:21-cv-01735
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Arizona Beverages USA LLC,
`
`Defendant
`
`
`
`Jury Trial Demanded
`
`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. Arizona Beverages USA LLC (“Defendant”) manufactures, labels, markets, and sells
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`mango drinks identified as “Mucho Mango Fruit Cocktail,” under the Arizona brand (“Product”).
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 2 of 12 Page ID #2
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`2.
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`The relevant front label representations include “Mucho Mango,” “Fruit Juice
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`Cocktail,” “All Natural,” pictures of mangos and “VITAMIN C FORTIFIED” and “VITAMIN C
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`FORTIFIED – ANTIOX.”
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`3.
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`“VITAMIN C FORTIFIED” and “VITAMIN C FORTIFIED – ANTIOX” are
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`relative nutrient content claims with the descriptor, “fortified.”
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`4. Nutrient content claims tell consumers about the levels of a nutrient in a food.
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`5.
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`FDA regulations, identical to those of this State, restrict nutrient content claims to
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`those that are specifically authorized.
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`6.
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`7.
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`If a nutrient content claim is not authorized, it is prohibited.
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`The purpose is to prevent consumers being deceived by the endless terms that
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`marketers can devise in order to gain advantage in the marketplace, at the detriment of the public.
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`8.
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`Relative nutrient content claims compare the level of a nutrient in one food with
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`another food. 21 C.F.R. § 101.13(j).
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`9.
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`Relative claims are required to identify the particular food a product is comparing
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`itself against when making such a claim. 21 C.F.R. § 101.13(j)(2)(i).
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`10. Consumers understand “fortified with vitamin C” in the same way as “added vitamin
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`C,” to describe differences in the level of vitamin C between two similar foods that result from the
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`addition of vitamin C in the food bearing the claim. 21 CFR 101.13(j)(1).
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`11. Since “Fortified with Vitamin C” is a relative claim, it is required to contain at least
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`2
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 3 of 12 Page ID #3
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`10 percent more vitamin C than a reference food. 21 CFR 101.54(e)(1)(i).
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`12. A reference food for the Product would be a similar fruit beverage which has not
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`been fortified. 21 CFR 101.54(e)(1)(iii).
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`13. However, the Product does not list any reference food, and consumers are not told
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`the basis for the Product’s claim to be “fortified with Vitamin C.”
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`14. The addition of vitamin C to the Product is not consistent with the FDA’s fortification
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`policy. 21 CFR 101.54(e)(1)(ii).
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`15. Fortification of the Product is not appropriate because there is no nutritional
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`deficiency in vitamin C recognized by the scientific community and the addition of vitamin C does
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`not replace nutrients lost in storage, handling, or processing.
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`16. The Product contains 22 grams of added sugars per eight oz serving, which is 44%
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`of the daily value of added sugars.
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`17. The Product contains 15% of the daily value for vitamin C, through addition of
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`ascorbic acid, as shown in the ingredient list.
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`3
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 4 of 12 Page ID #4
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`INGREDIENTS: FILTERED WATER, HIGH FRUCTOSE CORN SYRUP
`(GLUCOSE-FRUCTOSE SYRUP), MANGO PUREE, PEAR JUICE FROM
`CONCENTRATE, CITRIC ACID, ASCORBIC ACID
`(VITAMIN C),
`NATURAL FLAVORS, BETA CAROTENE FOR COLOR, GUM ACACIA,
`ESTER GUM.
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`18. Dietary guidance indicates foods with high added sugar content such as the Product
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`should be consumed sparingly.
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`19. Fortification of the Product is deceptive, causing consumers to purchase it instead of
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`other products, which are consistent with dietary guidance.
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`20. The Product contains other representations which are misleading, such as “All
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`Natural.”
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`21. 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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`22. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by defendant.
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`23. 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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`24. 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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`25. The Product is sold for a price premium compared to other similar products, no less
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`than approximately $3.79 per 128 oz, a higher price than it would otherwise be sold for, absent the
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`4
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 5 of 12 Page ID #5
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`misleading representations and omissions.
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`Jurisdiction and Venue
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`26.
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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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`27. 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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`28. Plaintiff Dawn Hancock is a citizen of Illinois.
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`29. Defendant Arizona Beverages USA LLC, is a New York limited liability company
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`with a principal place of business in Woodbury, Nassau County, New York and upon information
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`and belief, at least one member of defendant is not a citizen of the same state as the plaintiff.
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`30. Defendant transacts business within this District through sale of the Product at stores
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`within this State and District, including big box stores, convenience stores, drug stores, grocery
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`stores, club stores, and online, sold directly to residents of this District.
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`31. 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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`32. 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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`purchase of the Product and her awareness of the issues described here.
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`Parties
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`33. Plaintiff Dawn Hancock is a citizen of Johnson City, Williamson County, Illinois.
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`34. Defendant Arizona Beverages USA LLC, is a New York limited liability company
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`with a principal place of business in Woodbury, New York, Nassau County.
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`35. Defendant is one of the largest sellers of non-carbonated beverages in the country,
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`5
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 6 of 12 Page ID #6
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`from its eponymous iced teas to dozens of types of fruit beverages.
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`36. Defendant’s products, including the Product in this action, are sold to consumers by
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`third-parties, available online and in almost every convenience store, grocery store, big box store,
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`drug store in Illinois.
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`37. The Product is sold in various sizes, in bottles designed for one person, to 128 oz, for
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`multiple people.
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`38. Defendant is an established and leading seller of non-carbonated beverage for over
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`two decades, which has resulted in high levels of trust by consumers and goodwill.
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`39. Defendant’s products are known for their elaborate and unique artwork on its labels,
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`rendering them instantly identifiable by consumers.
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`40.
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` Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at stores including Walmart, 2802 Outer Dr, Marion,
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`IL 62959 between June and August 2021, among other times.
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`41. Plaintiff bought the Product because she expected it contained more vitamin C than
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`similar beverages, and was the type of food acceptable to contain added nutrients because that is
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`what the representations said and implied.
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`42. Plaintiff relied on the words and images on the Product, on the labeling and/or claims
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`made by Defendant in digital and/or social media.
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`43. Plaintiff bought the Product at or exceeding the above-referenced price.
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`44. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`45. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, features, and/or components.
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 7 of 12 Page ID #7
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`46. 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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`47. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance the Product's representations are consistent with its abilities and/or composition.
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`48. Plaintiff is an unable to rely on the labeling of not only this Product, but other similar
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`products, because she is an unsure of whether their representations are truthful.
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`Class Allegations
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`49. 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 Ohio, Michigan, Nevada, Arizona, Rhode Island,
`North Dakota, Oregon, Texas, Iowa, Kansas, Virginia,
`Tennessee, New Hampshire, Maine, Alaska, South Dakota,
`and Oklahoma, who purchased the Product during the
`statutes of limitations for each cause of action alleged
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`50. 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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`51. 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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`52. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`53. 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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`54.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 8 of 12 Page ID #8
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`to justify, as the claims are modest relative to the scope of the harm.
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`55. 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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`56. Plaintiff seeks class-wide injunctive relief because the practices continue.
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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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`57. Plaintiff incorporates by reference all preceding paragraphs.
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`58. Plaintiff and class members desired to purchase a product that contained more
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`vitamin C than similar beverages, and was the type of food acceptable to contain added nutrients.
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`59. 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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`60. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`61. 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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`62. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`63. Plaintiff relied on the representations that the Product contained more vitamin C than
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`similar beverages, and was the type of food acceptable to contain added nutrients
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`64.
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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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`8
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 9 of 12 Page ID #9
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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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`65. 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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`66. Defendant intended that each of members of the Consumer Fraud Multi-State Class
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`would rely upon its deceptive conduct, and a reasonable person would in fact be misled by this
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`deceptive conduct.
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`67. As a result of defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, each of the other members of the Consumer Fraud Multi-State Class, have
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`sustained damages in an amount to be proven at trial.
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`68.
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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/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`69. 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 more vitamin C than similar
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`beverages, and was the type of food acceptable to contain added nutrients.
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`70. Defendant directly marketed the Product to consumers through its advertisements
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`and partnerships with retailers.
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`71. Defendant knew the qualities of beverages its potential customers like Plaintiff were
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`seeking, and developed its marketing to meet those specific needs and desires.
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`72. Defendant’s representations affirmed and promised that the Product contained more
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`vitamin C than similar beverages, and was the type of food acceptable to contain added nutrients.
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`9
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 10 of 12 Page ID #10
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`73. Defendant described the Product as one which contained more vitamin C than similar
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`beverages, and was the type of food acceptable to contain added nutrients, which became part of
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`the basis of the bargain that the Product would conform to its affirmation and promise.
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`74. 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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`75. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted company known for its high quality products.
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`76. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers, and their employees.
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`77. 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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`78. 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 and not fit for the purpose for which it was intended.
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`79. The Product was not merchantable because it was not adequately contained,
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`packaged, and labeled as required by the representations, and did not conform to the promises or
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`affirmations of fact made on the container or label if any.
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`80. Defendant had reason to know that the purpose for which the Product was bought by
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`Plaintiff and consumers was because they expected it contained more vitamin C than similar
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`beverages, and was the type of food acceptable to contain added nutrients, and they relied on
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`Defendant’s skill or judgment to select or furnish such a suitable product.
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`81. Plaintiff and class members would not have purchased the Product or paid as much
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`10
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 11 of 12 Page ID #11
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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, a trusted company known for its high quality products.
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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.
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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 contained more vitamin C than similar beverages, and was the type of food acceptable to
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`contain added nutrients.
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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, provided 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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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`Case 3:21-cv-01735-SMY Document 1 Filed 12/22/21 Page 12 of 12 Page ID #12
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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: December 22, 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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`12
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