`
`
`
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck, NY 11021-3104
`Telephone: (516) 268-7080
`spencer@spencersheehan.com
`
`United States District Court
`Eastern District of New York
`
`Michael Fleischer, individually and on
`behalf of all others similarly situated,
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`Plaintiff,
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`1:21-cv-00443
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`- against -
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`Complaint
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`Aldi Inc.,
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`Defendant
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`
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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. Aldi Inc. (“defendant”) manufactures, distributes, markets, labels and sells “Smoked
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`White Cheddar – Deli Sliced Cheese” (“Product”) to consumers from its over 2,000 grocery stores
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`in the United States.
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`2.
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`Smoking is a processing method to preserve or improve the flavor of food by
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`exposing it to smoke, usually from burning wood.
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`3.
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`The drying action of the smoke and the different phenol compounds present in wood
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`smoke helps to preserve the protein-rich foods such as meat, cheese and fish.
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`4.
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`The origins of smoking date to prehistory, as nomadic peoples experimented with
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`fire and primitive cheese products.
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`2
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`5.
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`The earliest written records of smoked cheese comes from Roman times, when an
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`owner of a cheese shop was forced to share space in the Roman market with a baker.
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`6.
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`It was observed that the baker’s wood burning fire gave a distinct flavor to the cheese
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`which varied based on the type of wood that was used.
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`7.
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`For example, hickory wood chips – from deciduous hardwood trees of the genus
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`Carya – are often used for providing hearty yet sweet flavors to cheese and meat (“hickory”).
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`8.
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`Pecan wood, a type of hickory, gives cheese a spicy and nutty taste.
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`9. Oak provides smoked flavors of moderate intensity, between fruit woods and
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`hickory.
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`10. While the popularity of smoking decreased in the mid-20th century due to the
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`introduction of “convenient” chemical preservatives, the last two decades have seen a resurgence
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`in smoked foods, as consumers embrace foods made without advanced chemistry and synthetic
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`ingredients.
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`11. According to reports out of Wisconsin, the capital of the nation’s cheese production,
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`the “volume on the smoked cheeses just continues to grow every year. People are seeking bigger
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`flavors, bolder flavors, deeper flavors.”1
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`12. Cheese industry observers “say smoked cheeses are on the rise, stoked by general
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`excitement about bacon and other smoked foods.”2
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`13. The alternative to using real wood to smoke cheese is using a “smoke flavor,” which
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`is “smoke condensed into a liquid form.”3
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`1 Kimberly L. Jackson, Smoked cheese: Growth stoked by demand for bolder flavors, Newark Star-Ledger, Dec 30,
`2014, Updated Mar 29, 2019.
`2 Id.
`3 Matthew Sedacca, Liquid Smoke: The History Behind a Divisive Culinary Shortcut – Barbecue's love/hate
`relationship with the manufactured flavor, Eater.com, Jun 15, 2016.
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`3
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`14. While this development made it more convenient to enjoy “smoked” foods, it fails
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`to supply the rich, layered taste provided by phenols and other odor-active compounds present
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`when a food is smoked.
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`15. Liquid smoke flavor also contains numerous additives and has been associated with
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`detrimental health impacts.
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`16. Whether a food is flavored by “liquid smoke flavor” or from being smoked is
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`information consumers rely on when making quick purchasing decisions at the grocery store.
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`17. They will look at the food’s front label and see the name of the food, i.e., Smoked
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`White Cheddar Cheese, and expect they are buying cheddar cheese which has been smoked. 21
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`C.F.R. § 101.3(b)(2) (requiring front label to state “common or usual name” of a food).
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`18. Where a food is labeled as having a main flavor, consumers expect to be told basic
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`information on the front of the product about the source of that flavor. 21 C.F.R. § 101.22(i)(1).
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`19. This information includes whether (1) a food has flavor from the “real” thing, i.e.,
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`being smoked, (2) the product contains added flavor from the named process (or flavor) even
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`though it was not subject to that process, i.e., natural smoked flavor and (3) the flavor come from
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`artificial, synthetic sources, i.e., pyroligneous acid or artificial smoke flavor. 21 C.F.R. § 101.22(i);
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`21 C.F.R. § 101.22(h)(6).
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`20. These flavor regulations have established custom and practice so that consumers’
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`experience primed them to infer from a product’s labeling whether a flavor was entirely from the
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`characterizing ingredients or not.
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`21. Most foods contain disclosures such as “naturally flavored,” “other natural flavors”
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`or “artificially flavored.”
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`22. “The rule [21 C.F.R. § 101.22(i)] is premised on the simple notion that consumers
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`4
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`value ‘the real thing’ versus a close substitute and should be able to rely on the label to readily
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`distinguish between the two. This consumer protection objective is relevant to taste claims
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`conveyed in advertising as well.”4
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`23. Consumers prefer foods that are flavored from an ingredient or a natural production
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`process, instead of by the essential oil, captured and refined “liquid smoke” and extractives – made
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`in a laboratory – for reasons including nutrition, health and the avoidance of additives and highly
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`processed ingredients.5
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`24. Since the food is labeled as “Smoked White Cheddar Cheese,” consumers expect its
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`smoked flavor is from being smoked over wood chips.
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`25. However, the Product’s smoked flavor is not from being smoked over wood chips,
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`but from added “liquid smoke” flavor, identified as “natural smoke flavor” on the ingredient list.
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`INGREDIENTS: PASTEURIZED MILK, CHEESE CULTURES, SALT,
`MICROBIAL ENZYMES, NATURAL SMOKE FLAVOR.
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`
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`26. Consumers are misled because the front label fails to tell them what the Product is –
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`“Natural Smoke Flavored White Cheddar Cheese” – in violation of the requirements of federal
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`and state law. 21 U.S.C. § 343(i); 21 C.F.R. § 101.22(i)(1)(i).
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`27. The FDA has warned companies that fail to accurately inform consumers of foods
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`4 Steven Steinborn, Hogan & Hartson LLP, Regulations: Making Taste Claims, PreparedFoods.com, August 11, 2006.
`5 David Andrews, Synthetic ingredients in Natural Flavors and Natural Flavors in Artificial flavors, Environmental
`Working Group (EWG).
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`5
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`which are not smoked but only have added smoke flavor:
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`If these smoke ingredients [natural smoke flavor] are added flavors, they should be
`declared in accordance with 21 CFR 101.22 [on the front of the label]; however, if
`these ingredients describe the smoking process, then they must not be listed as
`ingredients in the ingredient statement.6
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`28. The FDA has highlighted cheddar cheese products that “fail to declare the common
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`or usual name of the food,” such as “Smoked [White] Cheddar Cheese.”7
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`29. According to the FDA, it is misleading to identify a “product that is not smoked, but
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`rather contains smoke flavor in accordance with 21 CFR 101.3(b),” as “Smoked [White] Cheddar
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`Cheese.” 21 U.S.C. § 343(i)(1).
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`30. Smoked white cheddar cheese slices that gets its smoked taste from being smoked is
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`not a rare or pricy delicacy that would make a reasonable consumer “double check” the veracity
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`of the front label claims.
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`31. Because the front label contains no qualification such as flavor, flavored, natural
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`smoke flavor, artificial smoke flavored, no reasonable consumer would be so distrustful or
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`skeptical of the “Smoked White Cheddar Cheese” statement to scrutinize whether the ingredient
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`list disclosed “smoke flavor.” See 21 C.F.R. § 101.22(i)(1) (describing a food which contains no
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`simulating artificial flavor and not subject to 21 C.F.R. § 101.22(i)(1)(i)-(iii)).
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`32. Even if consumers were to view the ingredient list, a reasonable consumer would
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`have no reason to know that listing “natural smoke flavor” forecloses the possibility the Product
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`was also subject to some smoking.
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`33. However, the Product has not undergone any smoking, which is deceptive and
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`misleading to consumers who expected some smoking of the cheese.
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`6 FDA Warning Letter, Smoked Seafood, Inc. dba Little Mermaid Smokehouse, MARCS-CMS 515739 — JUNE 27,
`2017.
`7 FDA Warning Letter, Middlefield Original Cheese Coop, MARCS-CMS 500180 – August 29, 2016.
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`6
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`34. Defendant’s branding, marketing and packaging of the Product is designed to – and
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`does – deceive, mislead, and defraud plaintiff and consumers.
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`35. The amount and presence of real smoked flavor from smoking is material to plaintiff
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`and consumers.
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`36. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`37. The value of the Product that plaintiff purchased and consumed was materially less
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`than its value as represented by defendant.
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`38. Had plaintiff and class members known the truth, they would not have bought the
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`Product or would have paid less for it.
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`39. As a result of the false and misleading labeling, the Product is an sold at a premium
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`price, approximately no less than $4.29 per 8 OZ compared to other similar products represented
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`in a non-misleading way, and higher than the price of the Product if it were represented in a non-
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`misleading way.
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`Jurisdiction and Venue
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`40.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2)
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`41. 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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`42. Plaintiff Michael Fleischer is a citizen of New York.
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`43. Defendant Aldi Inc. is a Illinois corporation with a principal place of business in
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`Batavia, Kane County, Illinois and a citizen of Illinois.
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`7
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`44. “Minimal diversity” exists because plaintiff Michael Fleischer and defendant are
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`citizens of different states.
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`45. Upon information and belief, sales of the Product exceed $5 million during the
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`applicable statutes of limitations, exclusive of interest and costs.
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`46. Venue is proper because a substantial part of the events or omissions giving rise to
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`the claim occurred in this District.
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`Parties
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`47. Plaintiff Michael Fleischer is a citizen of Brooklyn, Kings County, New York.
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`48. Defendant Aldi Inc. is a Illinois corporation with a principal place of business in
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`Batavia, Illinois, Kane County.
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`49. Defendant operates over 2,000 grocery stores in over 36 states.
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`50. Defendant’s products are known to be of the highest quality, because of its efficiency
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`that enables it to secure private label versions of the highest end products.8
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`51. During the relevant statutes of limitations for each cause of action alleged, plaintiff
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`purchased the Product within his district and/or State in reliance on its representations and
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`omissions.
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`52. Plaintiff purchased the Product on one or more occasions including but not limited
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`to between June and August 2020, at defendant’s grocery store, including the location at 3785
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`Nostrand Ave, Brooklyn, NY 11235.
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`53. Plaintiff bought the Product at or exceeding the above-referenced price because he
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`liked the product for its intended use and relied upon its front label representations.
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`54. Plaintiff was deceived by and relied upon the Product's deceptive labeling and
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`8 See article “This is Not Your Parent’s Store Brand.”
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`8
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`marketing.
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`55. Plaintiff would not have purchased the Product in the absence of Defendant’s
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`misrepresentations and omissions or would have paid less for it.
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`56. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance that Product's labels are consistent with the Product’s components and
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`attributes.
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`Class Allegations
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`57. The classes will consist of all purchasers of the Product who reside in all states except
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`for Illinois, California, Massachusetts and New Jersey during the applicable statutes of limitations.
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`58. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`59. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`60. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`61. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`62. 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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`63.
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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 relative to the scope of the harm.
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`64. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`9
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`65. 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 Included States
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`66. Plaintiff incorporates by reference all preceding paragraphs.
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`67. Plaintiff and class members desired to purchase and consume products which were
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`as described and marketed by defendant and expected by reasonable consumers.
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`68. 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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`69. Defendant misrepresented the substantive, quantitative, qualitative, compositional
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`and/or nutritional attributes of the Product.
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`70. The Product’s purported smoking over wood chips had a material bearing on price
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`and consumer acceptance of the Product.
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`71. Plaintiff relied on the statements, omissions and representations of defendant, and
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`defendant knew or should have known the falsity of same.
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`72. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`73. Plaintiff incorporates by reference all preceding paragraphs.
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`74. Defendant had a duty to disclose the amount and presence of the characterizing
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`ingredient – added smoke flavor – on the front label as part of the Product’s name, to not mislead
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`consumers who do not scrutinize the ingredient list.
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`75. 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 type.
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`76. The representations took advantage of consumers’ cognitive shortcuts made at the
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`10
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`point-of-sale and their trust in defendant, a well-known and respected brand or entity in this sector.
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`77. 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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`Product.
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`78. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`79. Plaintiff incorporates by reference all preceding paragraphs.
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`80. The Product was manufactured, labeled and sold by defendant or at its express
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`directions and instructions, and warranted to plaintiff and class members that it possessed
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`substantive, quality, organoleptic, nutritional, and/or compositional attributes it did not.
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`81. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`82. 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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`83. Plaintiff provided or will provide notice to defendant, its agents, representatives, and
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`their employees.
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`84. Defendant received notice and should have been aware of these misrepresentations
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`due to numerous complaints by consumers to its main office over the past several years regarding
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`the Product or those of the type described here.
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`85. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable because plaintiffs expected a product that was
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`described by Defendant.
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`11
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`86. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`87. Plaintiff incorporates by reference all preceding paragraphs.
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`88. Defendant’s fraudulent intent is evinced by its failure to accurately represent the
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`Product on the front label, when it knew its statements were neither true nor accurate and misled
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`consumers.
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`89. Defendant was motivated by increasing its market share against competitor products.
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`90. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Unjust Enrichment
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`91. Plaintiff incorporates by reference all preceding paragraphs.
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`92. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`12
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`Case 1:21-cv-00443-ERK-PK Document 1 Filed 01/27/21 Page 13 of 14 PageID #: 13
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory damages under the GBL and interest pursuant to
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`the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: January 27, 2021
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
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`13
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`1:21-cv-00443
`United States District Court
`Eastern District of New York
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`Plaintiff,
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`Michael Fleischer, individually and on behalf of all others similarly situated,
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` - against -
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`Aldi Inc.,
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` Defendant
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`Complaint
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`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`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: January 27, 2021
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` /s/ Spencer Sheehan
` Spencer Sheehan
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