Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`____________________________________________
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`
`)
`MARGARET LEE, On Behalf of
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`Herself and All Others Similarly Situated,
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`
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`
`)
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`Plaintiff,
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`)
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`v.
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`) Civ. Action No. 1:17-cv-11042
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`
`)
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`
`)
`CONAGRA FOODS, INC., ROCHE BROS.
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`SUPERMARKETS, INC., ROCHE BROS. INC.,
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`ROCHE BROS. SUPERMARKETS, LLC and
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`THE STOP & SHOP SUPERMARKET
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`COMPANY LLC,
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`Defendants.
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`____________________________________________)
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`AMENDED COMPLAINT
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`Plaintiff Margaret Lee alleges for her complaint the following.
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`Preliminary Statement
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`1.
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`Plaintiff brings this action on behalf of herself and all others similarly situated to
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`obtain monetary and other appropriate relief for herself and members of the Class (defined
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`below) as a result of the unlawful acts of Defendants.
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`2.
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`Defendant ConAgra Foods, Inc. (“ConAgra”) manufactures and distributes
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`packaged food products, including Wesson brand cooking oils such as Wesson Vegetable Oil,
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`Wesson Canola Oil, Wesson Corn Oil, and Wesson Best Blend (“Wesson Oil”). Defendants
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`Roche Bros. Supermarkets, Inc., Roche Bros. Inc., Roche Bros. Supermarkets, LLC
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`(collectively, “Roche Bros.”) and The Stop & Shop Supermarket Company LLC (“Stop &
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`Shop”) sell Wesson Oil in stores.
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`Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 2 of 20
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`3.
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`Plaintiff purchased bottles of Wesson Oil that were manufactured by ConAgra
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`and sold by Roche Bros. and Stop & Shop at stores in Massachusetts.
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`4.
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`The label on the front of the bottles of Wesson Oil represented that it was “Pure &
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`100% Natural.” Contrary to the representations in large print on the front of the bottle, however,
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`the product contained unnatural ingredients and therefore was not “100% Natural.”
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`5.
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`Specifically, Wesson Oil is made from plants, the DNA of which has been
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`deliberately altered by the forced introduction of DNA from other species. The plants, therefore,
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`had specific traits, such as resistance to certain herbicides, which they do not possess in nature or
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`through traditional cross-breeding methods. Plants and other life forms that are products of this
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`process of unnatural DNA alteration are commonly referred to as genetically modified
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`organisms, or “GMOs.” Accordingly, contrary to Defendants’ representations, Wesson Oil is not
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`“100% Natural.”
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`6.
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`Defendants have thus been misrepresenting Wesson Oil and deceiving their
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`customers, including Plaintiff and numerous other consumers. Defendants have injured Plaintiff
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`and other consumers in Massachusetts by inducing them to purchase and consume unnatural
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`products with GMOs on the false premise that such products are “100% Natural,” and by selling
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`such products at prices greater than what the products are actually worth, given that they are not,
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`as represented, “100% Natural.”
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`7.
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`Defendants’ conduct constitutes unfair and deceptive acts and practices in the
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`conduct of trade and commerce and violates Massachusetts General Laws Chapter 93A.
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`Accordingly, Plaintiff seeks, on behalf of herself and other Massachusetts consumers, to recover
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`damages, including statutory and multiple damages, interest, attorneys’ fees, costs, and any and
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`all other relief permitted by law.
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`Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 3 of 20
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`Parties
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`8.
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`9.
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`Plaintiff Margaret Lee is a resident of Brookline, Massachusetts.
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`Defendant ConAgra is a Delaware corporation with its principal place of business
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`in Chicago, Illinois.
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`10.
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`Defendant Roche Bros. Supermarkets, Inc. is a Massachusetts corporation with its
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`principal place of business in Wellesley, Massachusetts.
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`11.
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`Defendant Roche Bros. Inc. is a Massachusetts corporation with its principal
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`place of business in Wellesley, Massachusetts.
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`12.
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`Defendant Roche Bros. Supermarkets, LLC is a Delaware corporation with its
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`principal place of business in Wellesley, Massachusetts.
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`13.
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`Collectively, Defendants Roche Bros. Supermarkets, Inc., Roche Bros. Inc. and
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`Roche Bros. Supermarkets, LLC are referred to as “Roche Bros.” Roche Bros. operates 20
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`stores.
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`14.
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`Defendant Stop & Shop is a Delaware corporation with its principal place of
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`business in Quincy, Massachusetts that operates numerous stores throughout New England,
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`including in Massachusetts.
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`Jurisdiction
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`15.
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`Defendants have removed this case from the Superior Court for Suffolk County,
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`Commonwealth of Massachusetts on the basis that removal to this Court was proper under the
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`Class Action Fairness Act of 2005. Without admitting or denying the factual predicates of
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`Defendants’ invocation of this Court’s jurisdiction, which includes evidence solely in
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`Defendants’ possession, Plaintiff does not contest the Court’s subject matter jurisdiction over
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`Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 4 of 20
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`this action, assuming Defendants’ evidence and other representations presented in their notice of
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`removal (Dkt. No. 1) are accurate and true.
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`
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`The Wesson Oils
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`Factual Allegations
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`16.
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`ConAgra is a packaged food company that manufactures and distributes products
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`such as Wesson Oil throughout the United States, including through grocery stores in
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`Massachusetts such as Roche Bros. and Stop & Shop stores.
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`17.
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`At all relevant times, all bottles of Wesson Oil stated prominently in large print on
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`the front of the label, as well as on the back of the label, that they were “Pure & 100% Natural.”
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`There is no qualification on bottles of Wesson Oil to the claim that Wesson Oil is “Pure & 100%
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`Natural,” and there is no indication on the bottles that Wesson Oil contains any GMOs. A picture
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`of one of the bottles purchased by Plaintiff is on the following page.
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`18.
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`ConAgra systematically labels and markets every bottle of Wesson Oil as “Pure &
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`100% Natural” in product packaging, print advertisements, in television commercials, and on the
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`Wesson Oil website (www.wessonoil.com). That is, the “Pure & 100% Natural” labeling is part
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`of a broad, pervasive marketing scheme that is directed to all consumers, without limitation as to
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`geography or the location of the advertisement or sale of Wesson Oils.
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`19.
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`Roche Bros. and Stop & Shop sell bottles of Wesson Oil bearing the “Pure &
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`100% Natural” labels in their stores.
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`20.
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`Imagery on the labels of bottles of Wesson Oil, such as a picture of the sun
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`surrounding the word “Wesson,” serves to reinforce the message that Wesson Oil is purportedly
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`“100% Natural.”
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`The Importance to Consumers of “All Natural” Labels
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`21. Whether products such as Wesson Oil are in fact “100% Natural,” and whether
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`such products contain unnatural GMOs, is important to reasonable consumers.
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`22.
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`In recent years, consumers have shown a significant and increasing interest in “all
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`natural” products, spawning entire subindustries of “natural” products in a range of consumer
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`goods, including food, healthcare, and personal care items. Consumers place a greater value on
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`“natural” products based on perceptions that “natural” products are safer, healthier, or otherwise
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`of a higher quality compared to similar products that contain ingredients that are not “natural,”
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`that is, ingredients that do not occur in nature. Consumers are willing to pay more for products
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`that are “natural” than products that contain unnatural ingredients.
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`23.
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`The trend towards “natural” products has manifested itself most significantly in
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`the food industry. Grocery store shelves are now stocked with “natural” alternatives to a range of
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`foods and beverages. Through the sale of such products, which typically command a substantial
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`price premium, both food manufacturers and stores attempt to cash in on the substantial and
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`increasing consumer demand for “all natural” products.
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`24.
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`Although manufacturers decide what to put on the label of their products, stores
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`are not passive observers. Rather, stores also play a substantial role in the selling and marketing
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`of the products sold in their stores. For example, chain stores such as Roche Bros. and Stop &
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`Shop decide which products to purchase from manufacturers for sale in their stores. Stores create
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`so-called “plan-o-grams” through which the store decides how products will be allocated and
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`arranged on their shelves. Stores make these decisions based in part based on their anticipation of
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`Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 7 of 20
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`how well products will sell. That is, by selecting products that stores anticipate will sell at higher
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`volumes, stores increase their profits. Stores, therefore, choose to purchase from manufacturers,
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`arrange on their shelves, and market to consumers, popular products such as those marketed as
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`“natural.”
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`25.
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`The importance to a reasonable consumer of a claim that a product such as
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`Wesson Oil is “100% Natural” is demonstrated, inter alia, by Defendants’ decision to label,
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`market, and sell Wesson Oil as “100% Natural,” among the various other characteristics of the
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`product that Defendants could have advertised on the label. That is, Defendants’ selection of
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`“100% Natural” to be one of the few descriptive phrases on the front label indicates Defendants’
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`understanding that such a descriptor is material to a typical, reasonable consumer.
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`26. Moreover, independent consumer research confirms the materiality to reasonable
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`consumers of the “100% Natural” label. For example, a 2010 survey conducted by market
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`research firm Mintel confirms that 65% of respondents were “somewhat interested” or “very
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`interested” in products marketed as “natural.”
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`27.
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`Similarly, a 2010 survey performed by the Hartman Group confirmed that
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`substantial portions of consumers understand the word “Natural” in product labeling to indicate
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`products that are “safer for one’s health,” that are freer from pathogens, and that contain “higher
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`nutritional content.” In short, consumers understand a label of “natural” on a product to provide
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`affirmative information on that product’s health and safety compared to products without such a
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`label.
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`GMOs Are Not “Natural,” and Products Containing GMOs Cannot Be “100% Natural”
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`28.
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`Genetically modified foods are made from plants or animals, the DNA of which
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`has been deliberately altered by the forced introduction of DNA from other species using
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`biotechnology. Genetically modified organisms have specific traits, such as resistance to certain
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`herbicides, which they do not possess in nature or through traditional cross-breeding methods.
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`Plants and other life forms that are products of this process of unnatural DNA alteration are
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`commonly referred to as genetically modified organisms, or “GMOs.”
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`29.
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`GMOs are not natural at all, let alone “100% Natural.” In a May 2014 article on
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`“Food Safety” entitled “Frequently asked questions on genetically modified foods,” for example,
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`the World Health Organization stated as follows:
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`Genetically modified organisms (GMOs) can be defined as organisms (i.e. plants,
`animals or microorganisms) in which the genetic material (DNA) has been altered
`in a way that does not occur naturally by mating and/or natural recombination.
`The technology is often called “modern biotechnology” or “gene technology”,
`sometimes also “recombinant DNA technology” or “genetic engineering”. It
`allows selected individual genes to be transferred from one organism into another,
`also between nonrelated species. Foods produced from or using GM organisms
`are often referred to as GM foods.
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`http://www.who.int/foodsafety/areas_work/food-technology/faq-genetically-modified-food/en/
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`(emphasis added) (last visited April 4, 2017).
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`30.
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`GMOs by definition are not “natural” because they do not occur naturally but
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`instead are created through bioengineering technology. Numerous sources confirm this common
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`sense understanding. See, e.g., European Commission, “Genetically Modified Organisms,” last
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`updated April 4, 2017, http://ec.europa.eu/food/plant/gmo_en (distinguishing between “naturally
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`occurring variations” in plant and animal genetic makeup with genetic material that is “modified
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`artificially”); G. Tyler Miller and Scott Spoolman, Cengage Learning, Environmental Science,
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`Fifteenth Edition, 2016. (“Engineers use a process called gene splicing to alter an organism’s
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`genetic material through adding, deleting, or changing segments of its DNA. The goal of this
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`process is to add desirable traits or to eliminate undesirable ones by enabling scientists to transfer
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`genes between different species that would not normally interbreed in nature. The resulting
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`organisms are called genetically modified organisms (GMOs).”); and Chelsea Powell, Harvard
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`University Graduate School of Arts and Sciences, “Special Edition on GMOs: How to Make a
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`GMO,” August
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`9,
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`2015,
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`http://sitn.hms.harvard.edu/flash/2015/how-to-make-a-gmo/
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`(“Genetically modified organisms (GMOs) are organisms that have been altered using genetic
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`engineering methods . . . . The key steps involved in genetic engineering are identifying a trait of
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`interest, isolating that trait, inserting that trait into a desired organism, and then propagating that
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`organism . . . . Genetic engineering is a term used to describe biotechnological methods used by
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`scientists to directly manipulate an organism’s genome.”).
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`Reasonable Consumers Understand “Natural” to Indicate a Product Contains No GMOs
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`31.
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`In light of the common sense and widespread understanding that GMOs are not
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`naturally occurring ingredients, a reasonable consumer would understand the phrase “100%
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`Natural” to indicate that the product was free of unnatural ingredients, including GMOs.
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`32.
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`Independent surveys have confirmed that consumers understand the phrase
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`“100% Natural” to indicate, among other things, that a product is free of GMOs. For example, a
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`survey commissioned by the Consumer Reports National Research Center, which posed
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`questions to a nationally representative sample in December 2015 with a margin of error of only
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`+/- 3.1 percentage points at a 95% confidence level, concluded that “[m]any consumers think
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`that the natural…label…currently means that no…genetically modified ingredients…were
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`used.” Specifically, 60% of respondents indicated that a “Natural” label on packaged foods
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`indicates that the product has “No GMOs.” That is, consumers understand the phrase “All
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`Natural” as a shorthand promise that the product does not contain GMOs and other ingredients
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`that do not occur naturally.
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`33.
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`Reaching almost identical results to the Consumer Reports survey, the 2010
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`Hartman Group survey discussed above concluded that 61% of consumers understood the phrase
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`“Natural” to indicate an “absence of genetically modified foods.”
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`Wesson Oils Are Not “100% Natural” Because They Contain GMOs
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`34.
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`Food manufacturers such as ConAgra have taken full advantage of consumer
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`sentiment in favor of all natural products in foods. ConAgra for decades has used terms like
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`“Natural” and “100% Natural” on labels of its products, and during all times relevant to this case,
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`it affixed the “Pure & 100% Natural” representation on all bottles of Wesson Oil sold in
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`Massachusetts.
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`35. Wesson Oil, however, contains unnatural ingredients. Specifically, Wesson Oil is
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`made from GMOs, including genetically modified rapeseed (canola oil), soybeans and corn.
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`36.
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`A January 29, 2016 report from Consumer Reports confirms that Wesson Oils
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`contain such ingredients: “The bottle displays a “Pure & 100% Natural” claim, but the oil is
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`made from soybeans genetically engineered to withstand herbicides.” (emphasis in original).
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`37.
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`ConAgra has also admitted that Wesson Oils contain GMOs. In a class action
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`lawsuit brought against ConAgra by consumers in other states, ConAgra admitted in its answer
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`in that case that “most rapeseed, soybean, and corn crops in North America were grown from
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`seeds that have a bioengineering heritage, and that Wesson Oil products are made in whole or in
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`part from corn, soybean and rapeseed grown in North America.” See In re ConAgra Foods, Inc.,
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`No. CV 11-05379-MMM (AGRx), Dkt. No. 145 ¶ 46 (C.D. Cal. Jan. 16, 2013) (the “California
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`Class Action”). Moreover, following the filing of that lawsuit, ConAgra confirmed in its 2011
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`Corporate Responsibility Report that its “Wesson Oil products…are produced with bio-
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`engineered oil seeds.” (“Bio-engineered” is food manufacturers’ preferred term for “GMOs.”
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`The words mean the same thing.)
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`38.
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`The prominent labeling on the front of Wesson Oil bottles representing the
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`products are “100% Natural” is therefore false and misleading.
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`Plaintiff’s Purchases of Wesson Oil
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`39.
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`Plaintiff purchased bottles of Wesson Vegetable Oil from Roche Bros. and Stop
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`& Shop stores in Massachusetts on multiple occasions. Specifically, Plaintiff purchased Wesson
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`Vegetable Oil five or six times per year and used it for cooking and salad dressing. She
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`previously lived on Cape Cod until approximately two years ago. When she lived on Cape Cod,
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`she purchased Wesson Vegetable Oil from the Roche Bros. store at 11 Commercial Street in
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`Mashpee, Massachusetts. After she moved two years ago to Brookline, Massachusetts, she
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`purchased Wesson Vegetable Oil from the Stop & Shop store on Harvard Street in Brookline.
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`40.
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`At the time of her purchases in both stores, Plaintiff read the front label of the
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`bottles and believed that Wesson Oil was in fact 100% Natural, meaning that it contained no
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`unnatural ingredients such as GMOs.
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`41.
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`After using Wesson Oil, Plaintiff learned that, contrary to the representations in
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`large print on the front of the bottle, the product contains unnatural ingredients—GMOs—and is
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`therefore not “100% Natural.”
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`42.
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`After Plaintiff learned that Wesson Oil is not really “100% Natural” because it
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`contained GMOs, she never again purchased Wesson Oil (after having been a regular customer
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`for years) and now purchases another brand of oil.
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`Plaintiff and Other Consumers Suffer Injury and Damages Due to Defendants’ False
`Representations Concerning the Contents of Wesson Oil
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`43.
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`Plaintiff and other consumers have been injured, economically and otherwise, by
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`the misrepresentations that the oil she purchased was 100% Natural, including because she paid
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`for but did not receive a product that was actually 100% Natural, and because Plaintiff would not
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`have purchased Wesson Oil had she known it contained GMOs and was not 100% Natural.
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`44. More specifically, the value to a reasonable consumer of the product Defendants
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`promised—a truly “All Natural” oil—is materially greater than the value of the product Plaintiff
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`actually received—a product containing unnatural GMO ingredients. That is, Plaintiff received a
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`product that was materially less valuable than the product that Defendants promised to her,
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`whether value is measured by retail price or by consumers’ willingness to pay.
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`45.
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`For example, the December 2015 Consumer Reports National Research Center
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`survey discussed above confirmed that the “overwhelming majority (87%) of…consumers” who
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`“buy food labeled natural” are willing to “pay even more” for such products if the products meet
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`their expectations for what “natural” means, including that the products are free of GMOs. That
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`is, GMO-free products are more valuable, measured by consumer willingness to pay, than
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`products containing GMOs, and consumers seek out such products in part by focusing on
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`whether products are labeled as “Natural.”
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`46.
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`Similarly, Nielsen’s 2015 Global Health & Wellness Survey, commissioned by
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`Nielsen N.V., a global information and measurement company, in which a representative sample
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`of more than 30,000 consumers were polled, concluded that 88% of those polled are willing to
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`pay more for foods they perceive to be healthier, including those that are GMO-free.
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`47.
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`Likewise, the 2010 Mintel survey discussed above confirmed that 62% of
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`consumers who purchase “natural” products agree that it is “worth paying more for natural
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`products for some types of items,” and therefore, “many [consumers] are tolerant of price
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`premiums with natural…items.” The same report also noted that consumer willingness to pay
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`translates into a price premium that consumers pay for purportedly “natural” products.
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`48.
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`The difference in value between GMO-free products and products containing
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`GMOs is confirmed further by analyses performed specifically with respect to cooking oils. A
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`preliminary regression analysis performed by an expert in the California Class Action against
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`ConAgra confirmed that cooking oils labeled as “All Natural” were sold at a price premium
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`compared to oils without such a label. This price premium for so-called “All Natural” products
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`provides further confirmation of the difference in value between “All Natural” products and
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`products that contain unnatural ingredients such as GMOs. Notably, the Court in the California
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`Action, in the context of a class certification motion, rejected Defendants’ challenges to
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`Plaintiff’s damages analysis, finding the analysis sufficiently reliable (together with other
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`evidence) to provide classwide evidence of the damages consumers experienced due to
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`ConAgra’s deceptions.
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`49.
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`Defendants’ prominent use of the false label “All Natural” on Wesson Oil also
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`caused Defendants to sell a greater volume of Wesson Oil than they otherwise would have sold
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`without the false label, enabling Defendants to extract additional profits from duped customers
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`and to obtain a greater market share in cooking oils than they would have obtained absent
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`deception.
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`Class Action Allegations
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`50.
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`Plaintiff realleges and incorporates the allegations contained in the paragraphs
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`above.
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`51.
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`Plaintiff brings this action pursuant to Massachusetts Rule of Civil Procedure 23
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`and Chapter 93A, Section 9(2) on behalf of herself and a Class consisting of:
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`All persons who have purchased Wesson Oil products in
`Massachusetts that were labeled “100% Natural.”
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`Plaintiff reserves the right to amend the definition of the Class.
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`This action is properly maintainable as a class action.
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`52.
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`53.
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`54.
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`The members of the Class are sufficiently numerous that joinder of all members is
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`impractical.
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`55.
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`Common questions of law and fact exist as to all members of the Class and
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`predominate over any questions solely affecting individual members of the Class. Among the
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`questions of law and fact common to the Class are:
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`(a) Whether Wesson Oil products were sold with the label “100% Natural”;
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`(b) Whether the products so labeled in fact were 100% Natural;
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`(c) Whether, how, and when Defendants disclosed that Wesson Oil contained GMOs;
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`(d) Whether Defendants’ conduct alleged herein constituted unfair or deceptive acts
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`or practices in the conduct of trade or commerce in violation of Chapter 93A, Section 2; and
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`(e)
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`56.
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`The proper measure of damages.
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`Plaintiff’s claims are typical of the claims of the members of the Class because,
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`like Plaintiff, each Class member purchased Wesson Oil products that were mislabeled as alleged
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`herein.
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`57.
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`Plaintiff will fairly and adequately protect the interests of the members of the
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`Class and has retained counsel who have extensive experience prosecuting consumer class
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`actions and who, with Plaintiff, are fully capable of, and intent upon, vigorously pursuing this
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`action. Plaintiff does not have any interest adverse to the Class.
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`58.
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`A class action is superior to all other available methods for the fair and efficient
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`adjudication of this controversy. Furthermore, the damage that has been suffered by any
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`individual Class member is likely not substantial, and the expense and burden of individual
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`litigation would make it impracticable for all members of the Class to redress the wrongs done to
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`them individually. There will be no difficulty in the management of this action as a class action.
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`59.
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`The prosecution of separate actions against Defendants would create a risk of
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`inconsistent or varying adjudications with respect to the individual Class members which could
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`establish incompatible standards of conduct for Defendants. In addition, adjudications with
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`respect to individual members of the Class could, as a practical matter, be dispositive of the
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`interests of the other members of the Class not parties to such adjudications, or could
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`substantially impede or impair their ability to protect their interests.
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`60.
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`The members of the Class are readily identifiable through Defendants’ records
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`and other records, and Plaintiff is a member of the Class.
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`61.
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`Defendants have acted on grounds generally applicable to the Class with respect
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`to the matters complained of herein, thereby making appropriate the relief sought herein with
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`respect to the Class as a whole.
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`COUNT I
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`(Violation of Chapter 93A)
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`62.
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`63.
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`Plaintiff incorporates the foregoing paragraphs as if fully set forth herein.
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`At all relevant times, Defendants were engaged in trade or commerce within the
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`Commonwealth of Massachusetts, including the trade or commerce of selling, or causing to be
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`sold, the Wesson Oil products at issue within the Commonwealth of Massachusetts.
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`64.
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`By conducting the unfair and deceptive branding efforts described above,
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`Defendants have engaged in unfair or deceptive acts or practices in the conduct of trade or
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`commerce in violation of Chapter 93A, Section 2.
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`65.
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`In addition, and as an additional basis for liability under Chapter 93A, by
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`engaging in the conduct described above, Defendants violated at least the following General
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`Regulations of the Massachusetts Attorney General:
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`Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 16 of 20
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`a.
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`940 C.M.R. 3.02(2), which states:
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`No statement or illustration shall be used in any advertisement which creates a
`false impression of the grade, quality, make, value, currency of model, size, color,
`usability, or origin of the product offered, or which may otherwise misrepresent
`the product in such a manner that later, on disclosure of the true facts, there is a
`likelihood that the buyer may be switched from the advertised product to another.
`
`b.
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`940 C.M.R. 3.05(1), which states:
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`No claim or representation shall be made by any means concerning a product
`which directly, or by implication, or by failure to adequately disclose additional
`relevant information, has the capacity or tendency or effect of deceiving buyers or
`prospective buyers in any material respect. This prohibition includes, but is not
`limited to, representations or claims relating to the construction, durability,
`reliability, manner or time of performance, safety, strength, condition, or life
`expectancy of such product, or financing relating to such product, or the utility of
`such product or any part thereof, or the ease with which such product may be
`operated, repaired, or maintained or the benefit to be derived from the use thereof.
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`c.
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`940 C.M.R. 3.16(1)-(2), which make any act or practice a violation of
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`Chapter 93A, Section 2 (and thus Section 9) if:
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`(1) It is oppressive or otherwise unconscionable in any respect; or
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`(2) Any person or other legal entity subject to this act fails to disclose to a buyer
`or prospective buyer any fact, the disclosure of which may have influenced the
`buyer or prospective buyer not to enter into the transaction . . . .
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`d.
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`940 C.M.R. 6.03(2), which states:
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`Sellers shall not use advertisements which are untrue, misleading, deceptive,
`fraudulent, falsely disparaging of competitors, or insincere offers to sell.1
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`e.
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`940 C.M.R. 6.04(1)-(2), which state:
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`(1) Misleading Representations. It is an unfair or deceptive act for a seller to make
`any material representation of fact in an advertisement if the seller knows or
`should know that the material representation is false or misleading or has the
`tendency or capacity to be misleading, or if the seller does not have sufficient
`information upon which a reasonable belief in the truth of the material
`representation could be based.
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`1 “An unfair or deceptive representation may result not only from direct representations and the
`reasonable inferences they create, but from the seller’s omitting or obscuring a material fact.”
`940 C.M.R. 6.03(4).
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`Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 17 of 20
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`(2) Disclosure of Material Representations. It is an unfair or deceptive act for a
`seller to fail to clearly and conspicuously disclose in any advertisement any
`material representation, the omission of which would have the tendency or
`capacity to mislead reasonable buyers or prospective buyers . . . .
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`66.
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`Defendants’ violations of the regulations enumerated above constitute additional
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`violations of Chapter 93A, Section 2(a) because regulations promulgated by the Massachusetts
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`Attorney General under Chapter 93A, Section 2(c) provide that any act or practice violates
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`Chapter 93A, Section 2 if “[i]t fails to comply with existing statutes, rules, regulations or laws,
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`meant for the protection of the public’s health, safety, or welfare promulgated by the
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`Commonwealth or any political subdivision thereof intended to provide the consumers of this
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`Commonwealth protection . . . .” 940 C.M.R. 3.16(3).
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`67.
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`The violations of Chapter 93A by Defendants as described herein were done
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`willfully, knowingly, and in bad faith.
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`68.
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`As a direct and proximate result of Defendants’ conduct, Plaintiff and the
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`members of the Class were harmed when they paid for and received a product (oil with unnatural
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`GMOs) that was less valuable than the product promised to them (a “100% Natural” oil).
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`69.
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`Plaintiff sent Defendant ConAgra written demand for relief pursuant to Chapter
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`93A, Section 9, identifying the claimant and reasonably describing the unfair acts or practices
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`relied upon and the injuries suffered, on February 16, 2017 and sent the same type of written
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`demand to Defendants Roche Bros. and Stop & Shop on February 21, 2017. None of the
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`Defendants responded to Plaintiff’s demand.
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`70.
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`As a result of Defendants’ violation of Chapter 93A, Defendants are liable to
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`Plaintiff and the Class for up to three times the damages that Plaintiff and the Class incurred, or
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`at the very least the statutory minimum award of $25 per purchase of a Wesson Oil product as
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`alleged herein, together with all related court costs, attorneys’ fees, and interest.
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`Case 1:17-cv-11042-NMG Document 24 Filed 07/05/17 Page 18 of 20
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`Prayers for Relief
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`
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`WHEREFORE, Plaintiff prays for relief in the form of an order as follows:
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`1.
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`Allowing this action to proceed as a class action under Massachusetts Rule of
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`Civil Procedure 23 and Chapter 93A, Section 9(2);
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`2.
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`3.
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`Awarding Plaintiff and members of the Class monetary damages;
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`Awarding Plaintiff and members of the Class up to three times their damages, or
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`in the alternative statutory damages, together with interest and costs;
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`4.
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`Awarding counsel for the Plaintiff and the Class their reasonable attorneys’ fees
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`and expenses;
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`5.
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`Enjoining Defendants from using false and deceptive marketing, branding, and
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`labeling as described herein; and
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`6.
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`Awarding such other and further relief which the Court finds just and proper.