Case 1:19-cv-06448-RPK-CLP Document 1 Filed 11/15/19 Page 1 of 12 PageID #: 1
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`SHEEHAN & ASSOCIATES, P.C.
`Spencer Sheehan
`505 Northern Blvd., Suite 311
`Great Neck, NY 11021
`Telephone: (516) 303-0552
`Facsimile: (516) 234-7800
`spencer@spencersheehan.com
`
`-and-
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`REESE LLP
`Michael R. Reese
`100 West 93rd Street, 16th Floor
`New York, NY 10025
`Telephone: (212) 643-0500
`Facsimile: (212) 253-4272
`mreese@reesellp.com
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`United States District Court
`Eastern District of New York
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`Amy Warren, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`- against -
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`Whole Foods Market Group, Inc.,
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`Defendant
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`1:19-cv-06448
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`Complaint
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`Plaintiff by attorneys alleges upon information and belief, except for allegations pertaining
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`to plaintiff, which are based on personal knowledge:
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`1. Whole Foods Market Group, Inc. (“defendant”) manufactures, distributes, markets,
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`labels and sells instant oatmeal containing oats and flax, under their 365 Everyday Value brand
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`(“Products”).
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`2.
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`The Products are available to consumers from defendant’s hundreds of stores across
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`all 50 states, directly from defendant’s website and from Amazon.com.
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`3.
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`The Products are sold in boxes which contain packets of 40 g.
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`4.
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`The relevant front labels representations include “Instant Oatmeal,” “Oats & Flax,”
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`“Low Fat,” “Vegan,” “Good Source of Fiber,” “Whole Grain Stamp,” “Non-GMO Project
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`Verified,” “USDA Organic” and pictures of fresh raspberries on top of and around a heaping bowl
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`of the product.
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`5.
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`The Product’s ingredient list on the back of the package states:
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`ORGANIC
`OATS,
`ROLLED
`ORGANIC
`INGREDIENTS:
`DEHYDRATED CANE JUICE SOLIDS, ORGANIC FLAXSEED, SEA
`SALT.
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`I. Product is Misleading because Sugar is Disguised as “Organic Dehydrated Cane Juice Solids”
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`6.
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`Consumers expect ingredients on a product to be declared by their common or usual
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`name.
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`7. Where an ingredient contains the term “juice,” consumers expect that ingredient to
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`be derived from a consumable fruit or vegetable.
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`8.
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`In fact, “juice” is defined as “the aqueous liquid expressed or extracted from one or
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`more fruits or vegetables, purees of the edible portions of one or more fruits or vegetables, or any
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`concentrates of such liquid or puree.”1
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`9.
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`“Juice solids” is a term associated with the processing of fruit juice such as oranges
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`and apples.
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`10. Sometimes referred to as “soluble juice solids” or “soluble solids,” this term is used
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`to measure the quality of a juice and refers to a “valuable constituent” of a juice, i.e., “orange juice
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`solids.”2
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`11. However, in the context of the Product’s “Organic Dehydrated Cane Juice Solids,”
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`the “juice solids” do not refer to an ingredient that reasonable consumers find “valuable.”
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`12. This is because “dehydrated cane juice” – whether followed by the term “solids” or
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`not – is another name for the ingredient commonly known as “sugar.”
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`13. The FDA previously concluded that where an ingredient was described as
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`“[evaporated] cane juice,” consumers may be misled because “cane juice” refers to a sweetener.
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`14.
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` “Evaporated cane juice,” according to the FDA, “suggest[s] that the ingredients are
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`made from or contain fruit or vegetable “juice” as defined in 21 CFR 120.1.”3
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`15. For the purposes of declaring a food’s ingredients by their common or usual names,
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`there is no material difference between “evaporated cane juice” and “dehydrated cane juice solids.”
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`1 21 C.F.R. § 120.1(a).
`2 FDA Warning Letter to Penguin Juice Company, Inc., 2010-DT-18, Sept. 8, 2010 (“Your [juice] products are
`adulterated within the meaning of section 402(b)(1) of the Act [21 U.S.C. 342(b)(1)] because a valuable constituent,
`namely juice solids, has been in part omitted or abstracted from these products.”).
`3 FDA Guidance, Ingredients Declared as Evaporated Cane Juice (May 2016)
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`16. “Dehydrated” is a commonly understood synonym for “evaporated” such that
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`reasonable consumers will be equally misled by its use.4
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`17. By declaring “sugar” by a term which fails to describe the basic function and qualities
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`of the ingredient, reasonable consumers are deceived into purchasing a product with added sugar
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`as its second most predominant ingredient.
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`18. Given that the Product marketed as a simple, no-frills basic oatmeal and flax, pictured
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`beneath fresh raspberries, consumers will expect that “dehydrated cane juice solids” is related to
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`actual fruit, including those prominently displayed and is certainly not the equivalent of sugar.
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`19. This results in the impression that the Products are a better nutritional choice than
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`other comparable products which truthfully and non-deceptively identify “sugar” as their second
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`most predominant ingredient.
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`20. The Product’s deceptive labeling is especially egregious because defendant is a
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`grocery store with a reputation for selling health food products of high nutritional quality.
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`21. A growing number of consumers, including plaintiff, are paying more attention to
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`the ingredients contained in the foods they eat and are shunning excess, added sugars due to their
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`association and contribution to ailments and conditions like coronary heart disease, obesity and
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`diabetes.
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`22. The misleading terms used on the Products have a material bearing on price or
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`consumer acceptance of the Products because they will pay more for products with the positive
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`qualities associated with actual fruit juice, including naturally occurring vitamins and minerals.
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`II. Conclusion
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`4 Collins Dictionary, Evaporate, synonyms.
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`23. Had plaintiff and class members known the truth about the Products, they would not
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`have bought the Product or would have paid less for it.
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`24. The Products contain other representations which are misleading and deceptive.
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`25. As a result of the false and misleading labeling, the Products are sold at premium
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`prices, approximately no less than $4.29 per eight packets, excluding tax – compared to other
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`similar products represented in a non-misleading way.
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`Jurisdiction and Venue
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`26.
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`Jurisdiction is proper pursuant to 28 U.S.C. § 1332(d)(2) (Class Action Fairness Act
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`of 2005 or “CAFA”).
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`27. Under CAFA, district courts have “original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal
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`diversity[.]" Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
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`28. Upon information and belief, the aggregate amount in controversy is more than
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`$5,000,000.00, exclusive of interests and costs.
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`29. Plaintiff is a citizen of New York.
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`30. Defendant Whole Foods Market Group, Inc. is a Delaware corporation with a
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`principal place of business in Austin, Travis County, Texas.
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`31. This court has personal jurisdiction over defendant because it conducts and transacts
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`business, contracts to supply and supplies goods within New York.
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`32. Venue is proper because plaintiff and many class members reside in this District and
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`defendant does business in this District and State.
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`33. A substantial part of events and omissions giving rise to the claims occurred in this
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`District.
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`Parties
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`34. Plaintiff Amy Warren is a citizen of Queens County, New York.
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`35. Defendant is a Delaware corporation with a principal place of business in Austin,
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`Travis County, Texas.
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`36. During the class period, plaintiff purchased one or more of the Products identified
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`herein for personal use, consumption or application based on the above representations, for no less
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`than the price indicated, supra, excluding tax, in her state or an immediately adjacent state.
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`37. Plaintiff would consider purchasing the Product again if there were assurances that
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`the Products’ representations were no longer misleading.
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`Class Allegations
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`38. The classes will consist of all consumers in all 50 states with sub-classes for the
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`individual states and nationwide classes.
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`39. Common questions of law or fact predominate and include whether the
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`representations were likely to deceive reasonable consumers and if plaintiff and class members are
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`entitled to damages.
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`40. The claims and the basis for relief of plaintiff are typical to other members because
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`all were subjected to the same representations.
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`41. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`42. No individual inquiry is necessary since the focus is only on defendant’s practices
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`and the class is definable and ascertainable.
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`43.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest.
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`44. The counsel for plaintiff is competent and experienced in complex class action
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`litigation and intends to adequately and fairly protect class members’ interests.
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`45. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York General Business Law (“GBL”) §§ 349 & 350
`and Consumer Protection Statutes of Other States and Territories
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`46. Plaintiff asserts causes of action under the consumer protection statutes of New York,
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`General Business Law (“GBL”) §§ 349 & 350.
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`47. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`48. Plaintiff and class members desired to purchase products which were as described
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`by defendant and expected by reasonable consumers, given the product type.
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`49. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`50. Plaintiff and class members desired to purchase products which were as described
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`by defendant and expected by reasonable consumers, given the product type.
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`51. Defendant’s conduct was misleading, deceptive, unlawful, fraudulent, and unfair
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`because it gives the impression to consumers the Products contain a fruit juice ingredient as
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`opposed to the common sweetener, sugar.
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`Negligent Misrepresentation
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`52. Plaintiff incorporates by reference all preceding paragraphs.
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`53. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Products through misrepresenting the characterizing properties
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`of the second most predominant ingredient.
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`54. Defendant had a duty to disclose and/or provide non-deceptive labeling of the
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`Products and knew or should have known same were false or misleading.
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`55. This duty is based on defendant’s position as an entity which has held itself out as
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`having special knowledge and experience in the production, service and/or sale of the product or
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`service type.
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`56. The representations took advantage of consumers’ (1) cognitive shortcuts made at
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`the point-of-sale and (2) trust placed in defendant, a well-known and respected brand in this sector.
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`57. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Products.
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`58. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`59. Plaintiff incorporates by reference all preceding paragraphs.
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`60. Defendant manufactures and sells products which contain the identified ingredient
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`that contributes only sweetness and calories to the Product.
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`61. The Products warranted to Plaintiff and class members that they possessed
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`substantive, functional, nutritional, qualitative, compositional, organoleptic, sensory, physical and
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`other attributes which they did not due to the declaration of “organic dehydrated cane juice solids”
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`instead of sugar.
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`62. Defendant’s ingredient list informed and warranted to Plaintiff the Product contained
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`a form of juice instead of sugar.
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`63. Defendant had a duty to disclose and/or provide a non-deceptive names of the
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`ingredients and knew or should have known same were false or misleading.
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`64. This duty is based, in part, on defendant’s position as one of the most recognized
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`companies in the nation in this sector.
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`65. Plaintiff provided or will provide notice to defendant and/or its agents,
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`representatives, retailers and their employees.
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`66. The Products did not conform to their affirmations of fact and promises due to
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`defendant’s actions and were not merchantable.
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`67. Plaintiff and class members relied on defendant’s claims, paying more than they
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`would have.
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`Fraud
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`68. Plaintiff incorporates by references all preceding paragraphs.
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`69. Defendant’s purpose was to sell products which contained basic sugar but identify
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`them as containing “organic dehydrated cane juice solids,” a healthier sounding yet misleading
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`name.
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`70. The Product contains no real fruit juice even though the front label prominently
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`pictures fruits with the Product.
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`71. Defendant’s fraudulent intent is evinced by its failure to accurately indicate the
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`Products contained the ingredient understood by consumers as sugar and to secure economic
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`advantage in the marketplace against competitors by appealing to consumers who value products
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`with less sugar.
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`72. Plaintiff and class members observed and relied on defendant’s claims, causing them
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`to pay more than they would have, entitling them to damages.
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`73. Plaintiff incorporates by references all preceding paragraphs.
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`Unjust Enrichment
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`74. Defendant obtained benefits and monies because the Products were not as
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`represented and expected, to the detriment and impoverishment of plaintiff and class members,
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`who seek restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove and/or refrain from the challenged representations, restitution
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`and disgorgement for members of the State Subclasses pursuant to the consumer protection
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`laws of their States;
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`4. Awarding monetary damages and interest, including treble and punitive damages, pursuant
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`to the common law and consumer protection law claims, and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: November 15, 2019
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`505 Northern Blvd., Suite 311
`Great Neck, NY 11021
`Telephone: (516) 303-0552
`Facsimile: (516) 234-7800
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`Case 1:19-cv-06448-RPK-CLP Document 1 Filed 11/15/19 Page 11 of 12 PageID #: 11
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`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
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`-and-
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`Reese LLP
`Michael R. Reese
`100 West 93rd Street, 16th Floor
`New York, NY 10025
`Telephone: (212) 643-0500
`Facsimile: (212) 253-4272
`mreese@reesellp.com
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`
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`Case 1:19-cv-06448-RPK-CLP Document 1 Filed 11/15/19 Page 12 of 12 PageID #: 12
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`1:19-cv-06448
`United States District Court
`Eastern District of New York
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`Amy Warren, individually and on behalf of all others similarly situated,
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` - against -
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`Whole Foods Market Group, Inc.,
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`Plaintiff
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` Defendant
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`Complaint
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`Sheehan & Associates, P.C.
`505 Northern Blvd., #311
`Great Neck, NY 11021
`Tel: (516) 303-0552
`Fax: (516) 234-7800
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`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
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`Dated: November 15, 2019
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` /s/ Spencer Sheehan
` Spencer Sheehan
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