Case 1:21-cv-02417-NLH-KMW Document 1 Filed 02/11/21 Page 1 of 15 PageID: 1
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`Jonathan Shub
`Kevin Laukaitis*
`SHUB LAW FIRM LLC
`134 Kings Highway E., 2nd Floor
`Haddonfield, NJ 08033
`Tel: (856) 772-7200
`Fax: (856) 210-9088
`jshub@shublawyers.com
`klaukaitis@shublawyers.com
`
`Attorneys for Plaintiff and the Proposed Classes
`[Additional Counsel on Signature Page]
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`
`ERIN SMID,
`individually and on behalf of all others
`similarly situated,
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`Plaintiff,
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`v.
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`CAMPBELL SOUP COMPANY, AND
`PLUM, PBC,
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` Defendants.
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` CASE NO.:__________________
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` CLASS ACTION COMPLAINT
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` JURY TRIAL DEMANDED
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`CLASS ACTION COMPLAINT
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`Plaintiff Erin Smid, on behalf of herself and all others similarly situated, by her
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`undersigned attorneys, against Defendants, Campbell Soup Company (hereafter “Campbell”) and
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`Plum, PBC (hereafter “Plum”), alleges the following based upon personal knowledge as to herself
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`and her own action, and, as to all other matters, allege, upon information and belief and
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`investigation of her counsel, as follows:
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`INTRODUCTION
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`1 The purchased products include, but are not limited to: Plum Organics Stage 1 Just Peaches,
`Plum Organics Stage 1 Just Prunes, Plum Organics Stage 1 Just Sweet Potato, Plum Organics
`Stage 1 Just Mango, Plum Organics Super Puffs Variety Pack, Plum Organics Stage 2 Pear Purple
`Carrot & Blueberry, Plum Organics Stage 2 Pear Spinach and Pea, Plum Organics Stage 2 Banana
`Pumpkin, Plum Organics Stage 2 Grow Well DHA, Plum Organics Stage 2 Sweet Potato Apple &
`Corn, Plum Organics Stage 2 Banana Zucchini & Amaranth, Plum Organics Stage 2 Mango Sweet
`Potato Apple & Millet, Plum Organics Stage 2 Pumpkin Chickpea Spinach & Broccoli, Plum
`Organics Stage 2 Butternut Squash Carrot Chickpea & Corn, Plum Organics Stage 2 Apple Plum
`Berry Barley, Plum Organics Stage 2 Pear & Mango, Plum Organics Stage 2 Peach Pumpkin
`Carrot & Cinnamon, Plum Organics Stage 2 Mango Yellow Zucchini Corn & Turmeric, Plum
`Organics Mighty 4 Guava Banana Black Bean Carrot Oat, Plum Organics Mighty 4 Pear Cherry
`Blackberry Strawberry Black Bean Spinach Oat, Plum Organics Mighty Veggie Zucchini Apple
`Watermelon Barley, Plum Organics Mighty Veggie Spinach Grape Apple Amaranth, Plum
`Organics Mighty Veggie Carrot Pear Pomegranate Oat, Plum Organics Mighty Morning Banana
`Blueberry Oat Quinoa, Plum Organics Mighty Protein & Fiber Pear White Bean Blueberry Date
`& Chia, Plum Organics Mighty Protein & Fiber Mango Banana White Bean Sunflower Seed Butter
`& Chia, and Plum Organics Mighty Protein & Fiber Banana White Beat Strawberry Chia (the
`“Products”).
`2 See https://www.campbellsoupcompany.com/newsroom/press-releases/campbell-completes-
`acquisition-of-plum-organics/ (last accessed February 10, 2021).
`3 See https://www.plumorganics.com/food-philosophy/ (last accessed February 10, 2021).
`4 See https://www.plumorganics.com/video-category/parenting-is-hard/#videos (last accessed
`February 10, 2021).
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`2
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`4. Unbeknownst to Plaintiff and members of the proposed Classes, and contrary to the
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`representations on the Products’ label, the Products contain toxic heavy metals, which, if disclosed
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`to Plaintiff and members of the proposed Classes prior to purchase, would have caused Plaintiff
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`and members of the proposed Classes not to purchase or consume the Products.
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`5. As a result, the Products’ labeling is deceptive and misleading.
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`6. Plaintiff and the members of the proposed Classes, as defined below, thus bring claims
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`for consumer fraud and seek damages,
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`injunctive and declaratory relief,
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`interest, costs, and
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`attorneys’ fees.
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`THE PARTIES
`THE PARTIES
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`7. Plaintiff Erin Smid is a citizen of the State of Illinois and is a member of the proposed
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`Classes defined herein. She purchased all of the listed Products from Amazon between December
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`29, 2017 and January 13,2021.
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`8. Defendant, Campbell Soup Company, is a New Jersey corporation with its headquarters
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`located in Camden, New Jersey.
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`9. Defendant, Plum, PBC, is a Delaware corporation with its headquarters located in San
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`Francisco, California.
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`JURISDICTION AND VENUE
`JURISDICTION AND VENUE
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`10. This Court has subject matter jurisdiction under the Class Action Fairness Act of 2005
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`(hereinafter referred to as “CAFA”) codified as 28 U.S.C. § 1332(d)(2) because the claims of the
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`members of the proposed Classes exceed $5,000,000 and because Defendants are citizens of a
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`different state than most members of the proposed Classes.
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`3
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`FACTUAL ALLEGATIONS
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`5 U.S. House of Representatives Subcommittee on Economic and Consumer Policy, Staff Report,
`“Baby Foods are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium and Mercury (Feb.
`4, 2021).
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`4
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`such as abortions, retarded growth at the intrauterine cavity, skeletal deformities, malformations
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`and retarded development especially of the nervous system.6
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`16. Defendants refused invitations to cooperate with the Subcommittee,
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`leading the
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`Subcommittee to state it is “greatly concerned that [Defendants’] lack of cooperation might be
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`obscuring the presence of even higher levels of toxic heavy metals in their baby food products than
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`their competitors’ products.” Defendants additionally refused to produce to the Subcommittee their
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`testing standards or any specific test results regarding the presence of toxic heavy metals. Rather,
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`Defendants provided a spreadsheet “self-declaring” that their baby food meets unspecified criteria
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`for toxic heavy metals.7
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`l7. Defendants’ produced a spreadsheet, which declares that their baby food met the
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`criteria for mercury, which notes with asterisks that for mercury: “[n]o specific threshold
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`established because no high-risk ingredients are used.” The Subcommittee found this note
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`disturbing, stating “[t]his misleading framing—of meeting criteria that do not exist—raises
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`questions about what [Defendants’] other thresholds actually are, and whether they exist.”8
`9“
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`18. The Subcommittee notes that Defendants
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`evasion is concerning, as even limited
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`independent testing has revealed the presence of toxic heavy metals in their baby food.”
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`19. Young children are particularly vulnerable to lead because the physical and behavioral
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`effects of lead occur at lower exposure levels in children than in adults. A dose of lead that would
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`have little effect on an adult can have a significant effect on a child. In children, low levels of
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`6 Id.
`6 Id.
`7 Id.
`7 Id.
`8 Id.
`8 Id.
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`5
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`CLASS ACTION ALLEGATIONS
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`9 See https://www.cdc.gov/nceh/lead/prevention/pregnant.htm.
`10 See https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-
`drinking-water.
`11 G. Schwalfenberg, I. Rodushkinb, S.J. Genuis, “Heavy metal contamination of prenatal
`vitamins,” Toxicology Reports 5 at 392 (2018).
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`6
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`and immediate family, and Plaintiff’s counsel, their staff members, and their immediate family.
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`25. Certification of Plaintiff’ s claims for class-wide treatment
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`is appropriate because
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`Plaintiff can prove the elements of her claims on a class-wide basis using the same evidence as
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`would be used to prove those elements in individual actions alleging the same claims.
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`26. Numerosity — Federal Rule of Civil Procedure 23(a)(1). The members of the Classes
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`are so numerous that their individual joinder herein is impracticable. On information and belief,
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`members of the Classes number in the thousands to tens of thousands. The number of members in
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`the Classes is presently unknown to Plaintiff but may be verified by Defendants’ records. Members
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`of the Classes may be notified of the pendency of this action by mail, email, Internet postings,
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`mnflorpubhcafion.
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`27. Commonality and Predominance — Federal Rule of Civil Procedure 23(a)(2) and
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`23(b)(3). Common questions of law and fact exist as to all members of the Classes and
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`predominate over questions affecting only individual members of the Classes. Such common
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`questions of law or fact include, but are not limited to, the following:
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`a. Whether the Products contain dangerous levels of heavy metals;
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`b. Whether the marketing, advertising, packaging, labeling, and other promotional
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`materials for the Products are deceptive;
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`c. Whether Defendants’ actions violate the state consumer fraud statutes invoked
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`beloyv;
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`(1. Whether Defendants’ actions constitute common law fraud;
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`e. Whether Plaintiff and Members of the Classes were damaged by Defendants’
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`conduct;
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`f. Whether Defendants were unjustly enriched at the expense of Plaintiff and
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`Class Members; and
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`g. Whether Plaintiff and Class Members are entitled to injunctive relief.
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`28. Typicality — Federal Rule of Civil Procedure 23(a)(3). The claims of the named
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`Plaintiff are typical of the claims of other Members of the Classes. All Members of the Classes
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`were comparably injured by Defendants’ conduct described above, and there are no defenses
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`available to Defendants that are unique to Plaintiff or any particular members of the Classes.
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`29. Adequacy of Representation — Federal Rule of Civil Procedure 23(a)(4). Plaintiff
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`is an adequate Class representative because her interests do not conflict with the interests of other
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`Members of the Classes; she has retained class counsel competent to prosecute class actions and
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`financially able to represent the Classes.
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`30. Declaratory and Injunctive Relief — Federal Rule of Civil Procedure 23(b)(2).
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`Defendants have acted or refused to act on grounds generally applicable to Plaintiff and the other
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`Members of the Classes, thereby making appropriate final injunctive relief and declaratory relief,
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`as described below, with respect to the Members of the Classes as a whole. In particular, Plaintiff
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`seeks to certify the Classes to enjoin Defendants from selling or otherwise distributing baby foods
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`until such time that Defendants can demonstrate to the Court’s satisfaction that their baby foods
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`are accurately labeled.
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`31. Superiority — Federal Rule of Civil Procedure 23(b)(3). A class action is superior to
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`any other means of adjudication for this controversy. It would be impracticable for Members of
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`the Classes to individually litigate their own claims against Defendants because the damages
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`suffered by Plaintiff and the Members of the Classes are relatively small compared to the cost of
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`individually litigating their claims. Individual litigation would create the potential for inconsistent
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`8
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`VIOLATIONS OF ILLINOIS CONSUMER FRUAD AND
`DECEPTIVE BUSINESS PRACTICES ACT,
`815 Ill. Comp. Stat. §§ 505, et seq.
`(On behalf of the Illinois Sub-Class)
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`COUNT II
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`VIOLATIONS OF ILLINOIS UNIFORM DECEPTIVE TRADE PRACTICES ACT,
`815 Ill. Comp. Stat. §§ 505, et seq.
`(On behalf of the Illinois Sub-Class)
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`10
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`COUNT III
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`UNJUST ENRICHMENT
`(On Behalf of the National Class)
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`51. Defendants have been unjustly enriched in retaining the revenues derived from the
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`proposed Class Members’ purchases of the Products, which retention of such revenues under these
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`circumstances is unjust and inequitable because Defendants manufactured defective Products, and
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`misrepresented the nature of the Products, misrepresented their ingredients, and knowingly
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`marketed and promoted dangerous and defective Products, which caused injuries to Plaintiff and
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`Members of the proposed Class because they would not have purchased the Products based on the
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`same representations if the true facts concerning the Products had been known.
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`52. Plaintiff and the putative Class Members have been damaged as a direct and proximate
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`result of Defendants’ unjust enrichment because they would not have purchased the Products on
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`the same terms or for the same price had they known the true nature of the Products and the
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`misstatements regarding what the Products were and what they contained.
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`53. Defendants either knew or should have known that payments rendered by Plaintiff and
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`the putative Class Members were given and received with the expectation that the Products were
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`produced in accordance with the stated food philosophy, “Little ones deserve the very best food
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`from the very first bite,” as represented by Defendants. It is inequitable for Defendants to retain
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`the benefit of payments under these circumstances.
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`54. Plaintiff and the putative Class Members are entitled to recover from Defendants all
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`amounts wrongfully collected and improperly retained by Defendants.
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`55. When required, Plaintiff and the putative Class Members are in privity with Defendants
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`because Defendants’ sale of the Products was either direct or through authorized sellers.
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`Purchasing through authorized sellers is sufficient to create such privity because such authorized
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`sellers are Defendants’ agents for the purpose of the sale of the Products.
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`WHEREFORE, Plaintiff, individually and on behalf of the other members of the Classes
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`proposed in this Complaint, respectfully requests that the Court enter judgment as follows:
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`13
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`DEMAND FOR JURY TRIAL
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` Plaintiff demands a trial by jury of all claims in this Complaint so triable. Plaintiff also
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`respectfully requests leave to amend this Complaint to conform to the evidence, if such amendment
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`is needed for trial.
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`Dated: February 11, 2021
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`Respectfully submitted,
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`/s/ Jonathan Shub
`Jonathan Shub
`Kevin Laukaitis*
`SHUB LAW FIRM LLC
`134 Kings Highway E., 2nd Floor
`Haddonfield, NJ 08033
`Tel: (856) 772-7200
`Fax: (856) 210-9088
`jshub@shublawyers.com
`klaukaitis@shublawyers.com
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`Gary E. Mason*
`Danielle Perry*
`MASON LIETZ & KLINGER, LLP
`5101 Wisconsin Avenue NW, Suite 305
`Washington, DC 20016
`Tel: 202-640-1168
`Fax: 202-429-2294
`gmason@masonllp.com
`dlietz@masonllp.com
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`Gary M. Klinger*
`MASON LIETZ & KLINGER, LLP
`227 W. Monroe Street, Suite 2100
`Chicago, Illinois 60606
`Tel: 202-640-1168
`Fax: 202-429-2294
`gklinger@masonllp.com
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`Jeffrey S. Goldenberg*
`GOLDENBERG SCHNEIDER, L.P.A.
`4445 Lake Forest Drive, Suite 490
`Cincinnati, OH 45242
`Phone: (513) 345-8297
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`Case 1:21-cv-02417-NLH-KMW Document 1 Filed 02/11/21 Page 15 of 15 PageID: 15
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`Fax: (513) 345-8294
`jgoldenberg@gs-legal.com
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`Charles E. Schaffer*
`David C. Magagna Jr.
`LEVIN, SEDRAN & BERMAN, LLP
`510 Walnut Street, Suite 500
`Philadelphia, Pennsylvania 191060
`Tel: 215-592-1500
`Fax: 215-592-4663
`cschaffer@lfsblaw.com
`dmagagna@lfsblaw.com
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`*pro hac vice to be filed
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`Attorneys for the Plaintiff and the Putative Classes
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`15
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