Case 2:21-cv-01781-SJF-AYS Document 1 Filed 04/01/21 Page 1 of 21 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`Shelby Franklin, individually and on behalf of all
`others similarly situated,
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`Plaintiff,
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`v.
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` General Mills Inc.,
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` Defendant.
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`Case No.
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`CLASS ACTION
`COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff, Shelby Franklin (hereinafter “Plaintiff”), individually and on behalf of all others
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`similarly situated, by her attorneys, alleges the following upon information and belief, except for
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`those allegations pertaining to Plaintiff, which are based on her personal knowledge:
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`NATURE OF THE ACTION
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`1.
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`This action seeks to remedy the deceptive and misleading business practices of
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`General Mills, Inc. (“General Mills” or “Defendant”) with respect to the marketing and sales of the
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`following list of Defendant’s products throughout the State of New York and throughout the country
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`(hereinafter the “Products”):
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`• Shells & White Cheddar Mac & Cheese;
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`• Organic Shells & White Cheddar Mac & Cheese
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`• Classic Cheddar Mac & Cheese
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`• Organic Classic Cheddar Mac & Cheese
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`• Shells & Real Aged Cheddar Mac & Cheese
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`• Organic Shells & Real Aged Cheddar Mac & Cheese
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`• Organic Macaroni & Cheese Classic Cheddar Cheese with 12g Protein
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`• Gluten Free Rice Pasta & Cheddar Mac
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`• Rice Pasta Shells & White Cheddar
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`• Red Lentil Spirals & White Cheddar
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`• Organic Shells & White Cheddar Mac & Cheese with Whole Grains
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`• Organic Farm Friends & Cheddar Mac & Cheese
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`• Organic Grass Fed Shells & White Cheddar Mac & Cheese
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`• Organic Grass Fed Shells & Real Aged Cheddar Mac & Cheese
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`• Organic Mac & Bees Mac & Cheese; Mac & Trees Mac & Cheese
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`• Quinoa Rice Pasta & White Cheddar
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`• Reduced Sodium Mac & Cheese
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`• Organic Peace Pasta & Parmesan Mac & Cheese
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`• Spirals With Butter & Parmesan
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`• Organic Alfredo Shells & Cheddar Mac & Cheese
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`• Penne & Four Cheese Mac & Cheese
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`• Bunny Pasta with Yummy Cheese Mac & Cheese
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`• Organic Grass Fed Classic Cheddar Mac & Cheese
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`2.
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`Defendant fails to disclose on the Products’ packaging and labels (the one place that
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`all consumers view when purchasing a product) that the Products contain “ortho-phthalates,” also
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`known as “phthalates[.]”
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`3.
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`Phthalates are dangerous and harmful chemicals when consumed, especially by
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`pregnant women and children.
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`4.
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`In the past few years, researchers have linked phthalates to asthma, attention-deficit
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`hyperactivity disorder, breast cancer, obesity and type II diabetes, low IQ, neurodevelopmental
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`issues, behavioral issues, autism spectrum disorders, altered reproductive development and male
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`fertility issues.1
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`5.
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`Defendant manufactures, sells, and distributes the Products using a marketing and
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`advertising campaign centered around claims that appeal to health-conscious consumers.
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`6.
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`For example, Defendant touts its Products as either Certified Organic or Made-with-
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`Organic ingredients and all of the Products’ packaging state that they don’t have artificial flavors,
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`synthetic colors, or preservatives. Further, Defendant uses a cute bunny as a “mascot,” which
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`appears on the Products, along with a “Bunny of Approval,” and the phrase “Made with Goodness!”
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`Reasonable consumers, including Plaintiffs and Class Members, value these claims for important
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`reasons, including the belief that they are safer and healthier than alternative products that are not
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`represented as organic or one’s that are made with goodness. Because Defendants’ Products are
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`contaminated with phthalates (which is something that they have the ability to completely control)
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`these representations are false, deceptive, and willfully malicious.
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`7.
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`Defendant’s marketing and advertising campaign includes the one place that every
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`consumer looks when purchasing a product – the packaging and labels themselves.
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`8.
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`Defendant's advertising and marketing campaign, however, is false, deceptive, and
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`misleading because the Products contain phthalates.
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`9.
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`Plaintiff and those similarly situated (“Class Members”) relied on Defendant's
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`misrepresentations and omissions that the Products are healthy when purchasing the Products.
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`10.
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`Plaintiff and Class Members paid a premium for the Products based upon their
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`health-conscious marketing and advertising campaigns.
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`1 https://www.theguardian.com/lifeandstyle/2015/feb/10/phthalates-plastics-chemicals-research-analysis.
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`11.
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`Given that Plaintiff and Class Members paid a premium for the Products based on
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`Defendant's misrepresentations that they are healthy and safe, Plaintiff and Class Members suffered
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`an injury in the amount of the premium paid.
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`12.
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`Defendant’s conduct violated and continues to violate, inter alia, New York General
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`Business Law §§ 349 and 350, and the Magnuson-Moss Warranty Act. Defendant also breached
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`and continues to breach its warranties regarding the Products. In addition, Defendant has been and
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`continues to be unjustly enriched.
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`13.
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`Accordingly, Plaintiff brings this action against Defendant on behalf of herself and
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`Class Members who purchased the Products during the applicable statute of limitations period (the
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`“Class Period”).
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`FACTUAL BACKGROUND
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`14.
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`Consumers have become increasingly concerned about the effects of synthetic and
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`chemical ingredients in food products that they and their family members consume. Companies
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`such as Defendant have capitalized on consumers’ desire for healthy and safe products, and indeed
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`consumers are willing to pay, and have paid, a premium for these products.
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`15.
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`Consumers lack the meaningful ability to test or independently ascertain or verify
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`whether a product contains phthalates or other unsafe and unhealthy substances, especially at the
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`point of sale, and therefore must and do rely on Defendant to truthfully and honestly report what
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`their Products contain on their packaging or labels.
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`16.
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`However, public reports and articles, including Defendant’s own website, reveal that
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`Defendant’s Products contain phthalates. Despite this risk, Defendant failed to include phthalates
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`on its ingredient list, nor did it include a warning on the packaging about the risk of phthalates in
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`its Products.
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`17. While Defendant’s packaging doesn’t contain any warnings about the risk of
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`phthalates, it does find ample space to brag to consumers that its Products are “Made with
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`Goodness” and they are either Certified Organic or Made-with-Organic ingredients.
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`18.
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`In fact, all of the Products’ packaging state they are organic and don’t have artificial
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`flavors, synthetic colors, or preservatives, which is just another representation demonstrating their
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`health-conscious marketing message.
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`19.
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`20.
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`This is especially troubling in light of Defendant’s marketing towards children.
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` Defendant uses a cute bunny as a “mascot,” which appears on the Products, along
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`with a “Bunny of Approval,” and the phrase “Made with Goodness!”
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`21.
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`These representations and pictures are done to send the message to parents,
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`caregivers, and their children (as well as all consumers) that Defendant’s Products are healthy and
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`safe food.
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`22.
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` However, contrary to these representations and pictures, the products contain
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`dangerous and harmful phthalates.
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`23.
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`The phthalates enter the Products from the Product packaging and machines used to
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`make the Products. According to the CDC, “[P]eople are exposed to phthalates by eating and
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`drinking foods that have been in contact with containers and products containing phthalates.2
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`24.
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`Despite knowing their Products contain dangerous and harmful phthalates,
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`Defendant does not provide any information whatsoever on the Product label to inform the
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`consumers of this. Rather, after knowing of this significant hazard, it was not until years later that
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`Defendant began to bury this significant information on the FAQ section of its website, which is
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`not easy to find by parents, caregivers, or consumers. Notably, this information is not listed on the
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`Product page itself, nor is there any warning or denotation on the packaging or labels to check the
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`2 https://www.cdc.gov/biomonitoring/Phthalates_FactSheet.html
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`FAQ section of Defendant’s website. If someone did somehow know to check that FAQ section of
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`Defendant’s website, they would find the following:
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`Does Annie's mac and cheese contain phthalates?
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`Food integrity and consumer trust are our top priorities at Annie’s.
`We are troubled by the recent report of phthalates found in dairy
`ingredients of macaroni and cheese and take this issue seriously.
`While the FDA has not yet adopted a threshold for levels of
`phthalates in food, the European Food Safety Authority (EFSA) has
`published risk assessment data which notes a Total Daily Intake of
`0.05 mg/kg of body weight. Our mac and cheese products have been
`tested and we know any trace of phthalates are below the EFSA
`standard. We are also reviewing available scientific research on the
`issue to ensure we are informed about the most current evidence
`related to phthalates and food. Phthalates are chemicals that are
`widely used to make plastics more pliable and can be found in
`anything from farm equipment to conveyor belts and packaging ink.
`Their presence in the supply chain is a widespread and complex issue
`that affects products well beyond the food industry. Annie’s remains
`committed to sourcing high-quality organic ingredients and ensuring
`our food is handled in the safest way possible. We continue to work
`with our trusted suppliers to eliminate ortho-phthalates that may be
`present in the packaging materials and food processing equipment
`that produces the cheese and cheese powder in our macaroni and
`cheese. We are also working closely with our industry partners
`including the Organic Trade Association and The Organic Center to
`better understand this emerging issue and determine how Annie’s can
`be part of the solution.”3
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`Upon information and belief, the “recent report” mentioned above refers to a report
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`25.
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`from the Coalition for Safer Food Processing and Packaging, a nonprofit consumer health and food
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`safety advocacy group, who published a study that tested, among other things, cheese powder in
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`ten varieties of macaroni and cheese.4
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`26. While this study didn’t name specific brands tested, Defendant admits that it “has
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`tested its macaroni and cheese products and they do contain phthalates.”5 Further, Defendant’s
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`3 https://www.annies.com/faq/
`4 http://kleanupkraft.org/data-summary.pdf
`5 https://www.annies.com/faq/
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`website acknowledges the problem: “[w]e continue to work with our trusted suppliers to eliminate
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`phthalates that may be present in the packaging materials and food processing equipment that
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`produces the cheese and cheese powder in our macaroni and cheese.”6
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`27.
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`Defendant’s website also states that although the Food and Drug Administration has
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`not adopted a standard for acceptable levels of phthalates in food, the European Food Safety
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`Authority “has published risk assessment data which notes a Total Daily Intake of 0.05 mg/kg of
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`body weight” and that “our mac and cheese products have been tested and we know any trace of
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`phthalates are below the EFSA standard[.]” 7
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`28.
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`Defendant also fails to mention in its FAQ on its website that in the past few years,
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`researchers have linked phthalates to asthma, attention-deficit hyperactivity disorder, breast cancer,
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`obesity and type II diabetes, low IQ, neurodevelopmental issues, behavioral issues, autism spectrum
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`disorders, altered reproductive development and male fertility issues.8 Nor did Defendant mention
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`that pregnant women and children are the most vulnerable to the adverse health risks, affects, and
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`consequences of consuming Products with phthalates in them.
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`29.
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`Despite Defendant’s knowledge of phthalates in the Products, Defendant failed to
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`provide any warning on the place that every consumer looks when purchasing a product --the
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`packaging or labels--that the Products contain dangerous phthalates.
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`30.
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`Defendant’s concealment was material and intentional because people are concerned
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`with what is in the food that they are putting into their bodies, as well as parents and caregivers
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`being concerned with what they are feeding to the children in their care. Consumers such as
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`Plaintiff and the Class Members are influenced by the ingredients listed, as well as any warnings
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`(or lack thereof) on the products packaging and labels they buy. Defendant knows that if it had not
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`6 Id.
`7 https://www.annies.com/faq/
`8 https://www.theguardian.com/lifeandstyle/2015/feb/10/phthalates-plastics-chemicals-research-analysis
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`omitted that the Products contained phthalates and that the Products were not safe or healthy for
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`consumption then Plaintiff and the Class would not have paid a premium for the Products (or
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`purchased them at all) and Defendant wanted to increase sales/profits.
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`JURISDICTION AND VENUE
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`31.
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`This Court has subject matter jurisdiction under the Class Action Fairness Act, 28
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`U.S.C. section 1332(d) in that: (1) this is a class action involving more than 100 class members; (2)
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`Plaintiff is a citizen of the State of New York, Defendant General Mills, Inc. is a citizen of Delaware
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`and Minnesota; and (3) the amount in controversy is in excess of $5,000,000, exclusive of interests
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`and costs.
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`32.
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`This Court has personal jurisdiction over Defendant because Defendant conducts
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`and transacts business in the State of New York, contracts to supply goods within the State of New
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`York, and supplies goods within the State of New York.
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`33.
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`Venue is proper because Plaintiff and many Class Members reside in the Eastern
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`District of New York, and throughout the State of New York. A substantial part of the events or
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`omissions giving rise to the classes’ claims occurred in this District.
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`PARTIES
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`Plaintiff
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`34.
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`Plaintiff Shelby Franklin is a citizen and resident of the State of New York. During
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`the applicable statute of limitations period, Plaintiff purchased Defendant’s Products that contained
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`phthalates.
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`35.
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`Had Defendant not made the false, misleading, and deceptive representations and
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`omissions regarding the Products containing phthalates, Plaintiff would not have been willing to
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`pay the same amount for the Products, or would not have been willing to purchase the Products.
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`

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`Plaintiff purchased, purchased more of, and/or paid more for, the Products than she would have had
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`she known the truth about the Products. The Products Plaintiff received were worth less than the
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`Products for which she paid. Plaintiff was injured in fact and lost money as a result of Defendant's
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`improper conduct.
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`Defendant
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`36.
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`Defendant General Mills, Inc. is a Delaware corporation with its principal place of
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`business in Golden Valley, Minnesota.
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`37.
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`Defendant manufactures, markets, advertises, and distributes the Products
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`throughout the United States, including New York.
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`CLASS ALLEGATIONS
`Plaintiff brings this matter on behalf of herself and those similarly situated. As
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`38.
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`detailed at length in this Complaint, Defendant orchestrated deceptive marketing and labeling
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`practices. Defendant's customers were uniformly impacted by and exposed to this misconduct.
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`Accordingly, this Complaint is uniquely situated for class-wide resolution.
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`39.
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`The Class is defined as all consumers who purchased the Products anywhere in the
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`United States during the Class Period (the “Class”).
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`40.
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`Plaintiff also seeks certification, to the extent necessary or appropriate, of a subclass
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`of individuals who purchased the Products in the State of New York at any time during the Class
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`Period (the “New York Subclass”).
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`41.
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`The Class and New York Subclass shall be referred to collectively throughout the
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`Complaint as the Class.
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`42.
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`The Class is properly brought and should be maintained as a class action under Rule
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`23(a), satisfying the class action prerequisites of numerosity, commonality, typicality, and adequacy
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`because:
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`43.
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`Numerosity: Class Members are so numerous that joinder of all members is
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`impracticable. Plaintiff believes that there are thousands of consumers who are Class Members
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`described above who have been damaged by Defendant's deceptive and misleading practices.
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`44.
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`Commonality: The questions of law and fact common to the Class Members which
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`predominate over any questions which may affect individual Class Members include, but are not
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`limited to:
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`a. Whether Defendant are responsible for the conduct alleged herein which was
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`uniformly directed at all consumers who purchased the Products;
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`b. Whether Defendant's misconduct set forth in this Complaint demonstrates that
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`Defendant has engaged in unfair, fraudulent, or unlawful business practices with
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`respect to the advertising, marketing, and sale of their Products;
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`c. Whether Defendant made false and/or misleading statements and omissions to
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`the Class and the public concerning the contents of its Products;
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`d. Whether Defendant's false and misleading statements and omissions concerning
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`its Products were likely to deceive the public; and
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`e. Whether Plaintiff and the Class are entitled to money damages under the same
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`causes of action as the other Class Members?
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`45.
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`Typicality: Plaintiff is a member of the Class. Plaintiff’s claims are typical of the
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`claims of each Class Member in that every member of the Class was susceptible to the same
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`deceptive, misleading conduct and purchased Defendant's Products. Plaintiff is entitled to relief
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`under the same causes of action as the other Class Members.
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`46.
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`Adequacy: Plaintiff is an adequate Class representative because her interests do not
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`conflict with the interests of the Class Members she seeks to represent, her consumer fraud claims
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`are common to all members of the Class and she has a strong interest in vindicating her rights.
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`

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`Plaintiff has also retained counsel competent that is experienced in complex class action litigation,
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`and counsel intends to vigorously prosecute this action.
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`47.
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`Predominance: Pursuant to Rule 23(b)(3), common issues of law and fact identified
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`above predominate over any other questions affecting only individual members of the Class. The
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`Class issues fully predominate over any individual issues because no inquiry into individual conduct
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`is necessary; all that is required is a narrow focus on Defendant's deceptive and misleading
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`marketing and labeling practices.
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`48.
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`Superiority: A class action is superior to the other available methods for the fair and
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`efficient adjudication of this controversy because:
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`a. The joinder of thousands of individual Class Members is impracticable,
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`cumbersome, unduly burdensome, and a waste of judicial and/or litigation resources;
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`b. The individual claims of the Class Members may be relatively modest compared
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`with the expense of litigating the claim, thereby making it impracticable, unduly
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`burdensome, and expensive—if not totally impossible—to justify individual actions;
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`c. When Defendant's liability has been adjudicated, all Class Members’ claims can be
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`determined by the Court and administered efficiently in a manner far less
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`burdensome and expensive than if it were attempted through filing, discovery, and
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`trial of all individual cases;
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`d. This class action will promote orderly, efficient, expeditious, and appropriate
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`adjudication and administration of Class claims;
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`e. Plaintiff knows of no difficulty to be encountered in the management of this action
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`that would preclude its maintenance as a class action;
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`f. This class action will assure uniformity of decisions among Class Members;
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`g. The Class is readily definable and prosecution of this action as a class action will
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`eliminate the possibility of repetitious litigation;
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`h. Class Members’ interests in individually controlling the prosecution of separate
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`actions is outweighed by their interest in efficient resolution by single class action;
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`and
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`i.
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`It would be desirable to concentrate in this single venue the litigation of all plaintiffs
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`who were induced by Defendant's uniform false advertising and omissions to
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`purchase its Products.
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`49.
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`Accordingly, this Class is properly brought and should be maintained as a class
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`action under Rule 23(b)(3) because questions of law or fact common to Class Members predominate
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`over any questions affecting only individual members, and because a class action is superior to
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`other available methods for fairly and efficiently adjudicating this controversy.
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`FIRST CAUSE OF ACTION
`VIOLATION OF NEW YORK GBL § 349
`(On Behalf of Plaintiff and New York Subclass Members)
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`50.
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`Plaintiff repeats and realleges each and every allegation contained in all the
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`
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`foregoing paragraphs as if fully set forth herein.
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`51.
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`New York General Business Law Section 349 (“GBL § 349”) declares unlawful
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`“[d]eceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing
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`of any service in this state . . .”
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`52.
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`The conduct of Defendant alleged herein constitutes recurring, “unlawful” deceptive
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`acts and practices in violation of GBL § 349, and as such, Plaintiff and the New York Subclass
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`Members seek monetary damages against Defendant, enjoining them from inaccurately describing,
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`labeling, marketing, and promoting the Products.
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`53.
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`There is no adequate remedy at law.
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`

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`54.
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`Defendant misleadingly, inaccurately, and deceptively advertises and markets its
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`Products to consumers.
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`55.
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`Defendant's improper consumer-oriented conduct—including failing to label and
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`warn that the Products have phthalates—is misleading in a material way in that it, inter alia, induced
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`Plaintiff and the New York Subclass Members to purchase and pay a premium for Defendant's
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`Products and to use the Products when they otherwise would not have. Defendant made its untrue
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`and/or misleading statements and omissions willfully, wantonly, and with reckless disregard for the
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`truth.
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`56.
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`Plaintiff and the New York Subclass Members have been injured inasmuch as they
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`paid a premium for products that were mislabeled and not healthy and nutritious. Accordingly,
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`Plaintiff and the New York Subclass Members received less than what they bargained and/or paid
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`for.
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`57.
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`Defendant's advertising and Products’ packaging and labeling induced Plaintiff and
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`the New York Subclass Members to buy Defendant's Products and to pay a premium price for them.
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`58.
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`Defendant's deceptive and misleading practices constitute a deceptive act and
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`practice in the conduct of business in violation of New York General Business Law §349(a) and
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`Plaintiff and the New York Subclass Members have been damaged thereby.
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`59.
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`As a result of Defendant's recurring, “unlawful” deceptive acts and practices,
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`Plaintiff and the New York Subclass Members are entitled to monetary, statutory, compensatory,
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`treble and punitive damages, restitution, and disgorgement of all moneys obtained by means of
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`Defendant's unlawful conduct, interest, and attorneys’ fees and costs.
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`

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`SECOND CAUSE OF ACTION
`VIOLATION OF NEW YORK GBL § 350
`(On Behalf of Plaintiff and the New York Subclass Members)
`Plaintiff repeats and realleges each and every allegation contained in all the
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`60.
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`foregoing paragraphs as if fully set forth herein.
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`61.
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`N.Y. Gen. Bus. Law § 350 provides, in part, as follows:
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`False advertising in the conduct of any business, trade, or commerce
`or in the furnishing of any service in this state is hereby declared
`unlawful.
`N.Y. Gen. Bus. Law § 350a(1) provides, in part, as follows:
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`62.
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`The term ‘false advertising, including labeling, of a commodity, or of
`the kind, character, terms or conditions of any employment
`opportunity if such advertising is misleading in a material respect. In
`determining whether any advertising is misleading, there shall be
`taken into account (among other things) not only representations
`made by statement, word, design, device, sound or any combination
`thereof, but also the extent to which the advertising fails to reveal
`facts material in the light of such representations with respect to the
`commodity or employment to which the advertising relates under the
`conditions proscribed in said advertisement, or under such conditions
`as are customary or usual . . .
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`Defendant's labeling and advertisements contain untrue and materially misleading
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`63.
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`statements and omissions concerning Defendant's Products inasmuch as they misrepresent that the
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`Products are healthy and don’t list or warn that the Products contain, or may contain, phthalates.
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`64.
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`Plaintiff and the New York Subclass Members have been injured inasmuch as they
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`relied upon the labeling, packaging, and advertising and paid a premium for the Products which
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`were mislabeled and not healthy and nutritious. Accordingly, Plaintiff and the New York Subclass
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`Members received less than what they bargained and/or paid for.
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`65.
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`Defendant's advertising, packaging, and products’ labeling induced Plaintiff and the
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`New York Subclass Members to buy Defendant's Products.
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`Case 2:21-cv-01781-SJF-AYS Document 1 Filed 04/01/21 Page 15 of 21 PageID #: 15
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`66.
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`Defendant made its untrue and/or misleading statements and representations
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`willfully, wantonly, and with reckless disregard for the truth.
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`67.
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`Defendant's conduct constitutes multiple, separate violations of N.Y. Gen. Bus. Law
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`§ 350.
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`68.
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`Defendant made the material misrepresentations described in this Complaint in
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`Defendant's advertising and on the Products’ packaging and labeling.
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`69.
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`Defendant's material misrepresentations were substantially uniform in content,
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`presentation, and impact upon consumers at large. Moreover, all consumers purchasing the
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`Products were and continue to be exposed to Defendant's material misrepresentations.
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`70.
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`As a result of Defendant's recurring, “unlawful” deceptive acts and practices,
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`Plaintiff and New York Subclass Members are entitled to monetary, statutory, compensatory, treble
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`and punitive damages, restitution, and disgorgement of all moneys obtained by means of
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`Defendant's unlawful conduct, interest, and attorneys’ fees and costs.
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`THIRD CAUSE OF ACTION
`BREACH OF EXPRESS WARRANTY
`(On Behalf of Plaintiff and All Class Members)
`Plaintiff repeats and realleges each and every allegation contained in the foregoing
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`71.
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`paragraphs as if fully set forth herein.
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`72.
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`Defendant provided Plaintiff and Class Members with an express warranty in the
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`form of written affirmations of fact promising and representing that the Products are healthy,
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`nutritious, and safe for consumption.
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`73.
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`The above affirmations of fact were not couched as “belief” or “opinion,” and were
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`not “generalized statements of quality not capable of proof or disproof.”
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`74.
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`These affirmations of fact became part of the basis for the bargain and were material
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`to Plaintiff’s and Class Members’ transactions.
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`Case 2:21-cv-01781-SJF-AYS Document 1 Filed 04/01/21 Page 16 of 21 PageID #: 16
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`75.
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`Plaintiff and Class Members reasonably relied upon Defendant's affirmations of fact
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`and justifiably acted in ignorance of the material facts omitted or concealed when they decided to
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`buy Defendant's Products.
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`76.
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`Defendant knowingly breached the express warranties by including phthalates in the
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`Products sold to Plaintiffs and the Class
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`77. Within a reasonable time after they knew or should have known, Defendant's did not
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`change the Products’ labels to include phthalates in the ingredient list or place a warning that
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`phthalates might be in the Products.
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`78.
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`Further, within a reasonable time after they knew or should have known of
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`Defendant's breach, Plaintiff, on behalf of herself and Class Members, placed Defendant on notice
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`of its breach, giving Defendant an opportunity to cure its breach, which it refused to do.
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`79.
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`As a direct and proximate result of Defendant's breach of the express warranty,
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`Plaintiff and Class Members were damaged in the amount of the price they paid for the Products,
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`in an amount to be proven at trial.
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`FOURTH CAUSE OF ACTION
`VIOLATION OF THE MAGNUSON-MOSS
`WARRANTY ACT, 15 U.S.C. § 2301 et seq.
`(On Behalf of Plaintiff and All Class Members)
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`Plaintiff repeats and realleges each and every allegation contained in the foregoing
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`80.
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`paragraphs as if fully set forth herein.
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`81.
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`Plaintiff brings this claim individually and on behalf of all members of the Class.
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`Upon certification, the Class will consist of more than 100 named Plaintiffs.
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`82.
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`The Magnuson-Moss Warranty Act provides a federal remedy for consumers who
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`have been damaged by the failure of a supplier or warrantor to comply with any obligation under a
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`Case 2:21-cv-01781-SJF-AYS Document 1 Filed 04/01/21 Page 17 of 21 PageID #: 17
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`written warranty or implied warranty, or other various obligations established under the Magnuson-
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`Moss Warranty Act, 15 U.S.C. § 2301 et seq.
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`83.
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`The Products are “consumer products” within the meaning of the Magnuson-Moss
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`Warranty Act, 15 U.S.C. § 2301(1).
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`84.
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`Plaintiff and other members of the Class are “consumers” within the meaning of the
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`Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3).
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`85.
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`Defendant is a “supplier” and “warrantor” within the meaning of the Magnuson-
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`Moss Warranty Act, 15 U.S.C. §§ 2301(4) & 2301(5).
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`86.
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`Defendant Products failed to conform to the representations made on the container
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`or label as each product contained dangerous phthalates.
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`87.
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`These statements were made in connection with the sale of the Products and relate
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`to the nature of the Products and affirm and promise that the Products are as represented and defect
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`free and, as such, are “written warranties” within the meaning of the Magnuson-Moss Warranty
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`Act, 15 U.S.C. § 2301(6)(A).
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`88.
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`The Products do not conform to Defendant's written warranty and therefore violate
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`the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. Consequently, Plaintiff and the other
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`members of the Class have suffered injury and are entitled to damages in an amount to be proven
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`at trial.
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`

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`Case 2:21-cv-01781-SJF-AYS Document 1 Filed 04/01/21 Page 18 of 21 PageID #: 18
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`FIFTH CAUSE OF ACTION
`FRAUDULENT CONCEALMENT
`(On Behalf of Plaintiff and All Class Members)
`
`
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`89.
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`Plaintiff repeats and realleges each and every allegation contained in the foregoing
`
`paragraphs as if fully set forth herein.
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`90.
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`Defendant concealed and failed to disclose the material fact the Products contained
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`phthalates and that the products were not safe or healthy for consumption.
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`91.
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`Defendants had knowledge that the Products contained phthalates and that the
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`products were not safe or healthy for consumption.
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`92.
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`Defendants had a duty to disclose that the Produ