Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 1 of 19 PageID: 1
`
`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 Plaintiffs and the Proposed Classes
`[Additional Counsel on Signature Page]
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`
`
` CASE NO.:
`
` CLASS ACTION COMPLAINT
`
` JURY TRIAL DEMANDED
`
`
`MELANIE SHEPARD, CIARA VARGAS,
`TISHA VALDEZ, and GWYNDALINE
`QUARLES,
`individually and on behalf of all others
`similarly situated,
`
`
`Plaintiffs,
`
`v.
`
`GERBER PRODUCTS COMPANY (d/b/a
`Nestlé Nutrition, Nestlé Infant Nutrition, or
`Nestlé Nutrition North America),
`
`
` Defendant.
`
`
`CLASS ACTION COMPLAINT
`
`
`
`Plaintiffs MELANIE SHEPARD, CIARA VARGAS, TISHA VALDEZ and
`
`GWYNDALINE QUARLES, on behalf of themselves and all others similarly situated, by their
`
`undersigned attorneys, against Defendant, GERBER PRODUCTS COMPANY (d/b/a Nestlé
`
`Nutrition, Nestlé Infant Nutrition, or Nestlé Nutrition North America) (hereafter “Gerber”), allege
`
`the following based upon personal knowledge as to themselves and their own action, and, as to all
`
`other matters, allege, upon information and belief and investigation of their counsel, as follows:
`
`
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 2 of 19 PageID: 2
`
`INTRODUCTION
`
`
`
`
`
`
`
`
`
`
`
`
`1 The purchased products are: Gerber Toddler Mashed Potatoes & Gravy with Roasted Chicken Meal,
`Gerber Toddler Pick-ups Chicken & Carrot Ravioli Meal, Gerber Toddler Spaghetti Rings in Meat Sauce
`Meal, Gerber Toddler Spiral Pasta in Turkey, Meat Sauce Meal, Gerber Toddler Pick-ups Chicken &
`Carrot Ravioli Meal, Gerber Toddler Spaghetti Rings in Meat Sauce Meal, Gerber Sitter 2nd Foods
`Turkey Rice Dinner Plastic Tub, Gerber Sitter 2nd Foods Vegetable Beef Dinner Plastic Tub, Gerber
`Toddler Pick-ups Chicken & Carrot Ravioli Meal, Gerber Sitter 2nd Foods Apple Chicken Dinner Plastic
`Tub, Gerber Sitter 2nd Foods Vegetable Beef Dinner Plastic Tub, Gerber Toddler Mashed Potatoes &
`Gravy with Roasted Chicken Meal, Gerber Toddler Pick-ups Chicken & Carrot Ravioli Meal, Gerber
`Toddler Spaghetti Rings in Meat Sauce Meal, Gerber Toddler Spiral Pasta in Turkey Meat Sauce Meal,
`and Gerber Sitter 2nd Foods Turkey Rice Dinner Plastic Tub (the “Products”).
`
`2
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 3 of 19 PageID: 3
`
`
`6. Plaintiffs and the members of the proposed Classes, as defined below, thus bring claims
`
`for consumer fraud and seek damages,
`
`injunctive and declaratory relief,
`
`interest, costs, and
`
`attorneys’ fees.
`
`THE PARTIES
`
`
`
`7. Plaintiff MELANIE SHEPARD is a citizen of the State of Connecticut and is a member
`
`
`
`of the proposed class defined herein. She purchased the Products, including Gerber Toddler
`
`Mashed Potatoes & Gravy with Roasted Chicken Meal, Gerber Toddler Pick-ups Chicken &
`
`Carrot Ravioli Meal, Gerber Toddler Spaghetti Rings in Meat Sauce Meal, and Gerber Toddler
`
`Spiral Pasta in Turkey Meat Sauce Meal.
`
`
`8. Plaintiff CIARA VARGAS is a citizen of the State of Connecticut and is a member of
`
`the proposed class defined herein. She purchased the Products, including Gerber Toddler Pick-ups
`
`Chicken & Carrot Ravioli Meal and Gerber Toddler Spaghetti Rings in Meat Sauce Meal.
`
`
`9. Plaintiff TISHA VALDEZ is a citizen of the State of Colorado and is a member of the
`
`proposed class defined herein. She purchased the Products, including Gerber Sitter 2nd Foods
`
`Turkey Rice Dinner Plastic Tub, Gerber Sitter 2nd Foods Vegetable Beef Dinner Plastic Tub, and
`
`Gerber Toddler Pick-ups Chicken & Carrot Ravioli Meal.
`
`
`10. Plaintiff GWYNDALINE QUARLES is a citizen of the State of Texas and is a member
`
`of the proposed class defined herein. She purchased the Products, including Gerber Sitter 2nd
`
`Foods Apple Chicken Dinner Plastic Tub, Gerber Sitter 2nd Foods Vegetable Beef Dinner Plastic
`
`Tub, Gerber Toddler Mashed Potatoes & Gravy with Roasted Chicken Meal, Gerber Toddler Pick-
`
`ups Chicken & Carrot Ravioli Meal, Gerber Toddler Spaghetti Rings in Meat Sauce Meal, and
`
`Gerber Toddler Spiral Pasta in Turkey Meat Sauce Meal.
`
`
`
`3
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 4 of 19 PageID: 4
`
`JURISDICTION AND VENUE
`
`
`FACTUAL ALLEGATIONS
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2 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).
`
`4
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 5 of 19 PageID: 5
`
`
`17. Exposure to heavy metals causes permanent decreases in IQ, diminished future
`
`economic productivity, and increased risk of future criminal and antisocial behavior in children.
`
`Toxic heavy metals endanger infant neurological development and long-term brain function. Lead
`
`and arsenic are heavy metals known to cause a wide spectrum of adverse outcomes in pregnancy
`
`such as abortions, retarded growth at the intrauterine cavity, skeletal deformities, malformations
`
`and retarded development especially of the nervous system.
`
`
`18. Specifically, the Subcommittee found that:
`
`
`
`
`
`
`
`
`
`
`
`
`
`Gerber used high arsenic ingredients, using 67 batches of rice flour that had
`
`tested over 90 ppb inorganic arsenic;
`
`Gerber used an ingredient, conventional sweet potatoes, with 48 ppb lead.
`
`Gerber also used twelve other batches of sweet potato that tested over 20
`
`ppb for lead, the EU’s lenient upper standard. The results for its sweet
`
`potatoes and juices demonstrated its willingness to use ingredients that
`
`contained dangerous lead levels;
`
`Gerber does not test all of its ingredients for cadmium. Of those it does test,
`
`it accepts ingredients with high levels of cadmium. Gerber used multiple
`
`batches of carrots containing as much as 87 ppb cadmium, and 75% of the
`
`carrots Gerber used had more than 5 ppb cadmium— the EPA’s drinking
`
`water standard;
`
`Gerber rarely tests for mercury in its baby foods.
`
`Gerber’s policy is to test only ingredients, and not its final product(s)
`
`According to the Subcommittee, that policy “recklessly endangers babies
`
`and children and prevents the companies from ever knowing the full extent
`
`
`
`5
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 6 of 19 PageID: 6
`
`
`
`
`
`
`
`
`3 See https://www.cdc.gov/nceh/lead/prevention/pregnant.htm.
`4 See https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinking-
`water.
`
`6
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 7 of 19 PageID: 7
`
`CLASS ACTION ALLEGATIONS
`
`
`
`
`
`
`
`
`
`
`
`
`
`5 G. Schwalfenberg, I. Rodushkinb, S.J. Genuis, “Heavy metal contamination of prenatal vitamins,”
`Toxicology Reports 5 at 392 (2018).
`
`7
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 8 of 19 PageID: 8
`
`
`27. Plaintiff Gwyndaline Quarles (the “Texas Plaintiff) also seeks certification of the
`
`following subclass (the “Texas Sub-Class”): All persons in the State of Texas who purchased and
`
`consumed the Products from the beginning of any applicable limitations period through the date
`
`of class certification.
`
`
`28. Excluded from the proposed Classes are the Defendant, and any entities in which the
`
`Defendants have controlling interest,
`
`the Defendant’s agents, employees and their
`
`legal
`
`representatives, any Judge to whom this action is assigned and any member of such Judge’s staff
`
`
`
`and immediate family, and Plaintiffs’ counsel, their staff members, and their immediate family.
`
`
`29. Certification of Plaintiffs’ claims for class-wide treatment is appropriate because
`
`Plaintiffs can prove the elements of their claims on a class-wide basis using the same evidence as
`
`would be used to prove those elements in individual actions alleging the same claims.
`
`
`30. Numerosity — Federal Rule of Civil Procedure 23(a)(1). The members of the Classes
`
`are so numerous that their individual joinder herein is impracticable. On information and belief,
`
`members of the Classes number in the thousands to tens of thousands. The number of members in
`
`the Classes is presently unknown to Plaintiffs but may be verified by Defendant’s records.
`
`Members of the Classes may be notified of the pendency of this action by mail, email, Internet
`
`postings, and/or publication.
`
`
`31. Commonality and Predominance — Federal Rule of Civil Procedure 23(a)(2) and
`
`23(b)(3). Common questions of law and fact exist as to all members of the Classes and
`
`predominate over questions affecting only individual members of the Classes. Such common
`
`questions of law or fact include, but are not limited to, the following:
`
`
`a. Whether the Products contain dangerous levels of heavy metals;
`
`
`
`8
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 9 of 19 PageID: 9
`
`
`
`
`. Whether the marketing, advertising, packaging, labeling, and other promotional
`
`materials for the Products are deceptive;
`
`
`
`Whether Defendant’s actions violate the state consumer fraud statutes invoked
`
`below;
`
`
`. Whether Defendant’s actions constitute common law fraud;
`
`
`
`
`
`Whether Plaintiffs and Members of the Classes were damaged by Defendant’s
`
`conduct;
`
`Whether Defendant was unjustly enriched at the expense of Plaintiffs and Class
`
`Members; and
`
`
`. Whether Plaintiffs and Class Members are entitled to injunctive relief.
`
`
`32. Typicality — Federal Rule of Civil Procedure 23(a)(3). The claims of the named
`
`Plaintiffs are typical of the claims of other Members of the Classes. All Members of the Classes
`
`were comparably injured by Defendant’s conduct described above, and there are no defenses
`
`available to Defendant that are unique to Plaintiffs or any particular Class members.
`
`
`33. Adequacy of Representation — Federal Rule of Civil Procedure 23(a)(4). Plaintiffs
`
`are adequate Class representatives because their interests do not conflict with the interests of other
`
`Class Members;
`
`they have retained class counsel competent to prosecute class actions and
`
`financially able to represent the Classes.
`
`
`34. Declaratory and Injunctive Relief — Federal Rule of Civil Procedure 23(b)(2).
`
`Defendants have acted or refused to act on grounds generally applicable to Plaintiffs and the other
`
`Class Members, thereby making appropriate final injunctive relief and declaratory relief, as
`
`described below, with respect to the Class Members as a whole. In particular, Plaintiffs seek to
`
`certify a Class to enjoin Defendants from selling or otherwise distributing baby foods until such
`
`
`
`9
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 10 of 19 PageID: 10
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`VIOLATIONS OF CONNECTICUT TRADE PRACTICES ACT,
`Conn. Gen. Stat. §§ 42-110g, et seq.
`(On behalf of the Connecticut Class)
`
`10
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 11 of 19 PageID: 11
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`COUNT II
`
`VIOLATIONS OF ARIZONA CONSUMER FRAUD ACT,
`Ariz. Rev. Stat. §§ 44-1521, et seq.
`(On behalf of the Arizona Class)
`
`11
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 12 of 19 PageID: 12
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`COUNT III
`
`VIOLATIONS OF COLORADO CONSUMER PROTECTION ACT,
`Colo. Rev. Stat. §§ 6-1-101, et seq.
`(On behalf of the Colorado Class)
`
`
`12
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 13 of 19 PageID: 13
`
`
`
`
`
`
`
`
`
`
`
`
`
`COUNT IV
`
`VIOLATIONS OF TEXAS DECEPTIVE TRADE PRACTICES—CONSUMER
`PROTECTION ACT,
`Tex. Bus. & Com. Code Ann. §§ 17.41, et seq.
`(On behalf of the Texas Class)
`
`
`
`
`
`
`
`13
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 14 of 19 PageID: 14
`
`
`64. The Texas Plaintiff and the Class members are “consumers,” as defined by Tex. Bus.
`
`& Com. Code Ann. § 1745(4).
`
`
`65. Defendant advertised, offered, or sold goods or services in Texas and engaged in trade
`
`or commerce directly or indirectly affecting the people of Texas, as defined by Tex. Bus. & Com.
`
`Code Ann. § 1745(6).
`
`
`66. Defendant engaged in false, misleading, or deceptive acts and practices, in violation of
`
`Tex. Bus. & Com. Code Ann. § l7.46(b) by representing that goods or services have sponsorship,
`
`approval, characteristics,
`
`ingredients, uses, benefits or quantities that
`
`they do not have;
`
`
`
`representing that goods or services are of a particular standard, quality or grade, if they are of
`
`another; and advertising goods or services with intent not to sell them as advertised.
`
`
`67. Defendant’s representations and omissions were material because they were likely to
`
`deceive reasonable consumers.
`
`
`68. Defendant engaged in unconscionable actions or courses of conduct, in violation of
`
`Tex. Bus. & Com. Code Ann. § l7.50(a)(3). Defendant engaged in acts or practices which, to
`
`consumers’ detriment, took advantage of consumers’ lack of knowledge, ability, experience, or
`
`capacity to a grossly unfair degree.
`
`
`69. Consumers, including the Texas Plaintiff and Class members, lacked knowledge about
`
`the above business practices, omissions, and misrepresentations because this information was
`
`known exclusively by Defendant.
`
`
`70. As a direct and proximate result of Defendant’s deceptive acts and practices, the Texas
`
`Plaintiff and Class members have suffered and will continue to suffer injury, ascertainable losses
`
`of money or property, and monetary and non-monetary damages, including from not receiving the
`
`benefit of their bargain in purchasing the Products.
`
`
`
`14
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 15 of 19 PageID: 15
`
`
`71. Defendant’s violations present a continuing risk to the Texas Plaintiff and Class
`
`members as well as to the general public.
`
`
`72. Defendant received notice pursuant to Tex. Bus. & Com. Code Ann.
`
`§ 17.505
`
`concerning its wrongful conduct as alleged herein by the Texas Plaintiff and Class members. The
`
`Texas Plaintiff and Class members seek all monetary and non-monetary relief allowed by law,
`
`including economic damages, damages for mental anguish, treble damages for each act committed
`
`intentionally or knowingly, court costs, reasonably and necessary attorneys’ fees, injunctive relief,
`
`and any other relief which the court deems proper.
`
`COUNT V
`
`UNJUST ENRICHMENT
`
`(On Behalf of the National Class, or Alternatively, the Connecticut, Arizona,
`Colorado, and/0r Texas Subclasses)
`
`
`73. All Plaintiffs identified above, individually and on behalf of the Nationwide Class, or
`
`alternatively, the Connecticut, Arizona, Colorado, and/or Texas Subclasses repeat and reallege all
`
`previously alleged paragraphs, as if fully alleged herein.
`
`
`74. Plaintiffs and putative Class Members conferred a benefit on Defendant when they
`
`purchased the Products, of which Defendant had knowledge. By its wrongful acts and omissions
`
`described herein, including selling the Products, which contain heavy metals, including arsenic,
`
`cadmium, and lead at levels above what is considered safe for babies and did not otherwise perform
`
`as represented and for the particular purpose for which they were intended, Defendant was unjustly
`
`enriched at the expense of Plaintiffs and putative Class Members. Plaintiffs’ detriment and
`
`Defendant’s enrichment were related to and flowed from the wrongful conduct challenged in this
`
`Complaint.
`
`
`
`15
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 16 of 19 PageID: 16
`
`
`75. Defendant has profited from its unlawful, unfair, misleading, and deceptive practices
`
`at the expense of Plaintiffs and putative Class Members under circumstances in which it would be
`
`unjust for Defendant to be permitted to retain the benefit. It would be inequitable for Defendant to
`
`retain the profits, benefits, and other compensation obtained from its wrongful conduct as
`
`described herein in connection with selling the Products.
`
`
`76. Defendant has been unjustly enriched in retaining the revenues derived from Class
`
`Members’ purchases of the Products, which retention of such revenues under these circumstances
`
`is unjust and inequitable because Defendant manufactured defective Products, and misrepresented
`
`the nature of the Products, misrepresented their ingredients, and knowingly marketed and
`
`promoted dangerous and defective Products, which caused injuries to Plaintiffs and the Class
`
`because they would not have purchased the Products based on the same representations if the true
`
`facts concerning the Products had been known.
`
`
`77. Plaintiffs and putative Class Members have been damaged as a direct and proximate
`
`result of Defendant’s unjust enrichment because they would not have purchased the Products on
`
`the same terms or for the same price had they known the true nature of the Products and the
`
`misstatements regarding what the Products were and what they contained.
`
`
`78. Defendant either knew or should have known that payments rendered by Plaintiffs and
`
`putative Class Members were given and received with the expectation that the Products were from
`
`“the world’s most trusted name in baby food.” as represented by Defendant in advertising, on
`
`Defendant’s websites, and on the Products’ labels and packaging. It is inequitable for Defendant
`
`to retain the benefit of payments under these circumstances.
`
`
`79. Plaintiffs and putative Class Members are entitled to recover from Defendant all
`
`amounts wrongfully collected and improperly retained by Defendant.
`
`
`
`16
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 17 of 19 PageID: 17
`
`
`
`
`
`WHEREFORE, Plaintiffs, individually and on behalf of the other members of the Classes
`
`proposed in this Complaint, respectfully requests that the Court enter judgment as follows:
`
`
`
`
`
`
`
`
`
`
`
`17
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 18 of 19 PageID: 18
`
`
`
`
`
`
`
` Plaintiffs demand a trial by jury of all claims in this Complaint so triable. Plaintiffs also
`
`respectfully request leave to amend this Complaint to conform to the evidence, if such amendment
`
`is needed for trial.
`
`Dated: February 5, 2021
`
`Respectfully submitted,
`
`/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
`
`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
`
`Gary M. Klinger*
`MASON LIETZ & KLINGER, LLP
`227 W. Monroe Street, Suite 2100
`Chicago, Illinois 60606
`Tel: 202-640-1168
`
`18
`
`

`

`Case 2:21-cv-01977-CCC-MF Document 1 Filed 02/05/21 Page 19 of 19 PageID: 19
`
`Fax: 202-429-2294
`gklinger@masonllp.com
`
`Charles E. Schaffer*
`LEVIN, SEDRAN & BERMAN, LLP
`510 Walnut Street, Suite 500
`Philadelphia, Pennsylvania 191060
`Tel: 215-592-1500
`Fax: 215-592-4663
`cschaffer@lfsblaw.com
`
`*pro hac vice to be filed
`
`Attorneys for the Plaintiffs and the Putative Classes
`
`
`
`19
`
`