Case 2:22-cv-03633 Document 1 Filed 06/20/22 Page 1 of 19 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`CENTRAL ISLIP
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`Agnita Cheah, individually and on behalf of all
`others similarly situated,
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`2:22-cv-03633
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Pepperidge Farm, Incorporated,
`
`Defendant
`
`
`
`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1.
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`Pepperidge Farm, Incorporated (“Defendant”) manufactures, markets, labels and
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`sells dark colored, mottled crackers identified as “Harvest Wheat” under the Pepperidge Farm
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`brand (“Product”).
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`2.
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`The crackers contain specks of what appear to be grains and are displayed on a stone
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`
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`slap with freshly picked produce and cheese.
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`CENTRAL ISLIP
`
`Agnita Cheah, individually and on behalf of all
`others similarly situated,
`
`2:22-cv-03633
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Pepperidge Farm, Incorporated,
`
`Defendant
`
`
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Pepperidge Farm, Incorporated (“Defendant”) manufactures, markets, labels and
`
`sells dark colored, mottled crackers identified as “Harvest Wheat” under the Pepperidge Farm
`
`brand (“Product”).
`
`2.
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`The crackers contain specks of what appear to be grains and are displayed on a stone
`
`
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`slap with freshly picked produce and cheese.
`
`
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`3.
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`The representation as “Harvest Wheat” causes consumers to expect it contains a
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`predominant amount of whole grains compared to refined grains.
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`I.
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`CONSUMERS VALUE WHOLE GRAINS
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`4.
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`Consumers increasingly prefer whole grains to non-whole, or refined, grains.
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`5. Whole grains are nutritionally superior to non-whole grains because they include the
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`entire grain seed, consisting of the endosperm, bran, and germ.
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`6.
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`The bran and germ contain important nutrients like fiber, vitamins, minerals, and
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`antioxidants, such as iron, zinc, folate, magnesium, thiamin, niacin, selenium, riboflavin,
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`manganese, copper, vitamin A, and vitamin B6.
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`7.
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`In contrast, “non-whole grains” or “refined grains” have been processed to remove
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`the bran and germ, thereby removing the fiber and most other nutrients.
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`8. Most refined grains are enriched, a process that adds back some of the previously
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`removed iron and B vitamins, such as thiamin, riboflavin, niacin, and folic acid.
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`9. Other nutrients, including fiber, vitamin E, vitamin B6, vitamin K, magnesium,
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`manganese, potassium, phosphorus, copper, calcium, and selenium, are not added back.
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`10. Where flour is made of refined grains, which only contains the endosperm and
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`mainly starch, it is white in color (“white flour”).
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`II. CONSUMERS EXPECT FIBER FROM PRODUCTS REPRESENTED AS WHOLE
`GRAIN
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`11. The 2015-2020 Dietary Guidelines for Americans recommend that at least half of all
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`grains eaten be whole grains.
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`12. The Dietary Guidelines recommend consuming 48g of whole grains and 28g of fiber
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`per day.
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`13. The Dietary Guidelines promote whole grains as an important source of fiber.
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`14. 87% of consumers try to consume more whole grains and 92% try to get more fiber.
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`15. Research proves that consumers seek whole grains because they want more fiber.
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`16.
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`In surveys, more than 60% of consumers stated they want to consume more whole
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`grains to improve their digestive health, which is reflective of a desire to increase fiber intake.
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`17. Almost 75% of consumers who are presented representations which contain express
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`and implied representations that a product is made with, or contains whole grains, will expect that
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`food to be at least a good source of fiber – 10% of the daily value.
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`18. Almost 70% of consumers agree with the statement that whole grains are one of the
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`best sources of fiber.
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`19. 62% of consumers agree that foods made from whole grains are one of the best
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`sources of fiber.
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`20. 46% of consumers rely on foods with whole grains for their daily fiber needs.
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`21. Based on the proven connection with fiber, consumers expect foods represented –
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`directly or indirectly – as whole grain, do more than tell consumers a product contains a type of
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`grain ingredient.
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`III. CONSUMER CONFUSION ABOUT WHOLE GRAINS
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`22. Despite consumers’ desire to consume more whole grains, a recent study in the
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`journal, Public Health Nutrition, concluded that labeling practices stymie these efforts.
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`23. The study found that the most significant information considered by consumers in
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`comparing foods with different amounts of whole grain was not the ingredient list or nutrition
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`facts, but the front label.
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`24. When products used terms like “multigrain” or “wheat” on the front label, between
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`thirty to fifty percent of participants believed these foods had more whole grains than products
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`without such names.
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`25. According to a food economist and professor at Tufts University, the words used on
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`wheat products can cause consumers to be misled as to the relative amount of whole grains
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`compared to refined grains.
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`26. For instance, products labeled “multigrain” and “Twelve Grain” by definition
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`contain more than one type of grain.
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`27. However, consumers expect that besides regular refined grains, the primary grains in
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`those products are whole grains.
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`28.
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`Instead, they are mostly refined grains with a de minimis amount of whole grains.
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`29. Other potentially misleading terms include “stoned wheat” or “stoned ground grain.”
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`30. These terms have no formal definition about how much whole grain they contain.
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`31. However, the word “stoned” implies a primitive form of processing, i.e., with stones.
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`32. This is in contrast to the advanced technology and machinery used to create refined
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`grains, or white flour.
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`33. The result is that consumers expect grain products described and promoted with the
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`word “stone[d]” to contain mostly whole grains, because they are presumed to be less processed
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`than refined grains.
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`34. Another term which contributed to consumer misunderstanding about whole grains
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`is “honey wheat.”
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`35. The Public Health Nutrition study found that 43% of respondents believed at least
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`half to all of the grains in a “honey wheat” product was whole grains.1
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`1 Parke Wilde, et al. “Consumer confusion about wholegrain content and healthfulness in product
`labels: a discrete choice experiment and comprehension assessment.” Public Health Nutrition
`23.18 (2020): 3324-3331.
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`36. However, the amount of whole grains was negligible.
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`37. Consumers believed “honey wheat” was a type of wheat, and the term “honey”
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`referred to its amber color, darker than regular wheat.
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`38. Where grains and wheat are described with the term “harvest,” i.e., “harvest grain”
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`and “harvest wheat,” consumers expect a product which is mostly whole grains.
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`39. This is because the word “harvest” is defined and understood as “the process or
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`period of gathering in crops.”
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`40. By emphasizing the “harvest” in “harvest grain” and “harvest wheat,” consumers
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`expect that the wheat and grains they are consuming is closer in form to its original “harvest” state
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`than after it is fully refined.
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`41. After all, all grains are initially harvested, but it is their subsequent refining – the
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`removal of the bran and germ – that strips away the nutrients of harvested grains.
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`42. The public health advocacy group, Center for Science in the Public Interest (“CSPI”),
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`noted that terms such as “harvest grain” was misleading to consumers, who expected it meant a
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`product contained a predominant amount of whole grains.2
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`43. One food and nutrition professor stated, “Even people with advanced degrees cannot
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`figure out how much whole grain” is in products represented to consumers as whole grain.
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`44. The FDA and Federal Trade Commission (“FTC”) have cautioned companies against
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`misleading consumers as to the relative amounts of whole grains in foods.
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`45. Both agencies – based on numerous studies and research – know that when
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`consumers are presented with products that reference or allude to whole grains on the front label,
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`consumers will expect those foods to get at least half of its grain content from whole grain.
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`2 CSPI, Comments to 2006 FDA Draft Guidance on Whole Grain Labeling.
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`46. Most consumers, they found, will expect any references, direct or indirect, to whole
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`grains, mean a food is 100% or entirely whole grain.
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`47. The FDA and FTC highlighted deceptive tactics such as the names used to identify
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`grain ingredients, and added dark coloring, among other methods, that companies should steer
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`clear of when marketing whole grain foods to consumers.
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`IV. PRODUCT NOT WHOLE GRAIN
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`48. Despite the labeling of the Product as “Harvest Wheat,” with a dark brown color, and
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`visible pieces of grain, the Product contains a negligible absolute and relative amount of whole
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`grains compared to refined grains.
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`49. This is revealed in part from the fiber content shown on the Nutrition Facts as less
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`than 1g per serving, or 4% of the Daily Value.
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`50. This is further confirmed by the ingredient list, which reveals that the most
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`
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`predominant ingredient is “ENRICHED WHEAT FLOUR.”
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`MADE FROM: ENRICHED WHEAT FLOUR
`(FLOUR, NIACIN, REDUCED IRON, THIAMINE
`MONONITRATE, RIBOFLAVIN, FOLIC ACID),
`VEGETABLE OILS (CANOLA, SUNFLOWER
`AND/OR SOYBEAN), BROWN SUGAR (SUGAR,
`INVERT SUGAR, MOLASSES), DEFATTED
`WHEAT GERM, WHOLE WHEAT FLOUR,
`SUGAR, CONTAINS 2% OR LESS OF: SALT,
`HONEY, OAT FIBER, MALTED BARLEY
`FLOUR, BAKING SODA, SOY LECITHIN,
`MONOCALCIUM PHOSPHATE, NONFAT MILK.
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`
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`51. While the Product contains “WHOLE WHEAT FLOUR,” this is listed fifth, just
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`ahead of sugar.
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`52. There is no way for consumers to know what percent of the Product’s grains are
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`refined relative to whole grains.
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`V.
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`INGREDIENTS USED TO DARKEN COLOR GIVES APPEARANCE OF MORE
`WHOLE GRAINS
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`53. Studies have shown that consumers seeking whole grain look for products darker in
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`color with visible grains.
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`54. One participant stated, “For me I like to look at the color,” and “I like to be able to
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`see the grains” to find out if a food is mainly whole grain.
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`55.
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`In part, this is due to the presence of bran in whole grains, which gives it a distinctive
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`brown coloring.
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`56. This is logical, because refined grains are associated with white flour, which is white
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`and smooth.
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`57. The Product contains several ingredients which alter its physical appearance so that
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`consumers will expect the “Harvest Wheat” crackers depicted on the label are predominantly
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`whole grain.
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`58. First, though the primary sweetener is brown sugar, its component ingredients
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`correctly show this consists of regular sugar with molasses added back, to impart a darker color.
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`59. Second, the addition of honey causes bread, crackers, and other grain products to
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`“[to] brown[s] easily during baking, adding a natural dark color,” because it consists of “mostly
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`reducing sugars.”3
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`60. Third, the crackers are mottled with darker spots and specks, because it contains
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`added defatted wheat germ.
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`61.
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`Industry publications praise this ingredient as recognized to “help[s] manufacturers
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`of wheat-based products cut down on costs” by using less whole grain and give consumers the
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`impression a product contains more whole grain.
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`62. According to a November 2019 article in Food Business News, the tan to dark color
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`of defatted wheat germ and its “granular particle size gives a wholesome appearance and texture
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`to baked foods such as crackers, bread, tortillas, cookies and muffins.”
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`63. Consumers viewing these brown specks will believe they are there because the
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`Product is predominantly whole grain and/or contains a non-de minimis amount of whole grain,
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`when this would be false.
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`3 W.K. Nip et al., eds. Bakery products: science and technology, Ch. 7, “Sweeteners,” John Wiley
`& Sons, 2006.
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`64. The addition of molasses, honey, and defatted wheat germ results in a darker product
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`which consumers believe has more whole grains relative to refined grains than it does.
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`65. The Product’s color and texture would be significantly lighter and smoother if based
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`solely on the ratio of refined grains to whole grains.
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`VI. CONCLUSION
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`66. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`67. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`68. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`69. 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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`70. Had Plaintiff known the truth, she would not have bought the Product or would have
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`paid less for it.
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`71. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $4.09 for 10.25 oz, excluding tax and sales,
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`higher than similar products, represented in a non-misleading way, and higher than it would be
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`sold for absent the misleading representations and omissions.
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`72.
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`Jurisdiction and Venue
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`73.
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`Jurisdiction is based on the Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C.
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`§ 1332(d)(2).
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`74. The aggregate amount in controversy exceeds $5 million, including sales, statutory
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`and punitive damages, injunctive relief, and attorney’s fees, exclusive of interest and costs.
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`75. The Product is sold at thousands of locations in the states covered by the classes
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`Plaintiff seeks to represent.
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`76. Plaintiff Agnita Cheah is a citizen of New York.
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`77. Defendant Pepperidge Farm, Incorporated is a Delaware corporation with a principal
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`place of business in Norwalk, Fairfield County, Connecticut.
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`78. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
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`79. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold with the representations described here for several years, in thousands of
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`locations, in the states covered by Plaintiff’s proposed classes.
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`80. The Product is available to consumers from grocery stores, dollar stores, warehouse
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`club stores, drug stores, convenience stores, big box stores, and online.
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`81. Venue is in the Central Islip in this District because a substantial part of the events
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`or omissions giving rise to these claims occurred in Suffolk County, including Plaintiff's purchase,
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`consumption, transactions and/or use of the Product and awareness and/or experiences of and with
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`the issues described here.
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`Parties
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`82. Plaintiff Agnita Cheah is a citizen of Bay Shore, Suffolk County, New York.
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`83. Defendant Pepperidge Farm, Incorporated is a Delaware corporation with a principal
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`place of business in Norwalk, Connecticut, Fairfield County.
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`595STPORT AVENUE, NORWALK, CT, 06851,
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`84. Defendant Pepperidge Farm, Incorporated is a Connecticut corporation with a
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`principal place of business in Norwalk, Connecticut, Fairfield County and is a citizen of
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`Connecticut.
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`85.
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`In 1937, Margaret Rudkin started the company known today as Pepperidge Farms to
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`prepare wholesome, nutritious foods that her son, who had asthma and was allergic to most
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`commercially processed foods, could eat.
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`86. This commitment to nutrient dense yet widely accepted foods continues to be the
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`hallmark of Pepperidge Farm.
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`87. Pepperidge Farm is believed to have opposed many “advances” in the food industry,
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`such as the development of synthetic preservatives, artificial flavors, and significant amounts of
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`additives and thickeners, like sugars and starches, because it stays as close to its founding
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`principles as possible.
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`88. This commitment is apparent when it comes to whole and refined grains.
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`89. Early on, Pepperidge Farm recognized how modern wheat processing stripped away
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`valuable nutrients and fiber and has been at the forefront of advocating for greater consumption of
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`whole grains.
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`90. Pepperidge Farm’s commitment to whole grains is shown through its logo of the
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`actual grist mill in Sudbury, Massachusetts which for decades supplied only whole wheat flour.
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`91. The importance placed on whole grains by Pepperidge Farm is in contrast to other
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`big food companies, who rely on low cost refined flours to churn out nutritionally deficient foods.
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`92. Based on these bedrock values, Pepperidge Farm became one of the largest food
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`manufacturers in the United States.
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`93. Consumers trust Pepperidge Farm because they know its brand represents a
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`commitment to nutrition and quality foods, like they might prepare for their own families.
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`94. Defendant spends millions of dollars each year on consumer research to identify
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`attributes of products consumers want and will pay more for.
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`95. Defendant’s internal and external studies confirm that consumers increasingly seek
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`foods which contain a greater absolute and relative amount of whole grains compared to refined
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`grains, and correspondingly sufficient amounts of fiber.
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`96. Plaintiff purchased the Product at locations including Stop & Shop Supermarket, 421
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`Commack Rd, Deer Park, NY 11729, between June 2021 and January 2022, among other times.
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`97. Plaintiff believed and expected the Product contained a greater absolute and relative
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`amount of whole grains compared to refined grains, and more fiber, than it did because that is what
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`the representations and omissions said and implied, on the front label and the absence of any
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`reference or statement elsewhere on the Product.
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`98. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
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`packaging, hang tags, and/or images on the Product, on the labeling, statements, omissions, claims,
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`statements, and instructions, made by Defendant or at its directions, in digital, print and/or social
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`media, which accompanied the Product and separately, through in-store, digital, audio, and print
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`marketing.
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`99. Plaintiff bought the Product at or exceeding the above-referenced price.
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`100. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`101. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`102. The Product was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`103. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`104. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar whole grain products, because she is unsure whether those representations are
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`truthful.
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`Class Allegations
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`105. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`New York Class: All persons in the State of New
`York who purchased the Product during the statutes
`of limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Kansas, New Hampshire, Nebraska,
`Virginia, South Carolina, Montana,
`Iowa,
`Mississippi, and Utah who purchased the Product
`during the statutes of limitations for each cause of
`action alleged.
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`106. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`107. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`108. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`109. 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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`110. 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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`111. 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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`112. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York General Business Law (“GBL”) §§ 349 & 350
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`(Consumer Protection Statute)
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`113. Plaintiff incorporates by reference all preceding paragraphs.
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`114. Plaintiff believed the Product contained a greater absolute and relative amount of
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`whole grains compared to refined grains, and more fiber, than it did.
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`115. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`116. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`117. Plaintiff relied on the representations and omissions to believe the Product contained
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`a greater absolute and relative amount of whole grains compared to refined grains, and more fiber,
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`than it did.
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`118. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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` Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`119. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`120. Plaintiff and/or the members of the Consumer Fraud Multi-State Class reserve their
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`rights to assert these consumer protection claims under the Consumer Fraud Acts of the States they
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`represent and/or the consumer protection statute invoked by Plaintiff.
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`121. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct.
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`122. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`123. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
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`124. The Product was manufactured, identified, marketed and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff that it contained a greater absolute and relative
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`amount of whole grains compared to refined grains, and more fiber, than it did.
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`125. Defendant directly marketed the Product to Plaintiff through its advertisements and
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`marketing, through various forms of media, on the packaging, in print circulars, direct mail,
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`product descriptions distributed to resellers, and targeted digital advertising.
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`126. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`127. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant that it contained a greater
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`absolute and relative amount of whole grains compared to refined grains, and more fiber, than it
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`did.
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`128. Defendant’s representations affirmed and promised that the Product contained a
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`greater absolute and relative amount of whole grains compared to refined grains, and more fiber,
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`than it did.
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`129. Defendant described the Product so Plaintiff believed it contained a greater absolute
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`and relative amount of whole grains compared to refined grains, and more fiber, than it did, which
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`became part of the basis of the bargain that it would conform to its affirmations and promises.
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`130. 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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`131. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted brand known for the highest quality products.
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`132. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`133. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`134. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`135. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`16
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`Case 2:22-cv-03633 Document 1 Filed 06/20/22 Page 17 of 19 PageID #: 17
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`136. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`137. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container or label, because it was marketed
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`as if it contained a greater absolute and relative amount of whole grains compared to refined grains,
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`and more fiber, than it did.
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`138. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because she expected it contained
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`a greater absolute and relative amount of whole grains compared to refined grains, and more fiber,
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`than it did, and she relied on Defendant’s skill and judgment to select or furnish such a suitable
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`product.
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`139. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Negligent Misrepresentation
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`140. Defendant had a duty to truthfully represent the Product, which it breached.
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`141. This duty was non-delegable, based on Defendant’s position, holding itself out as
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`having special knowledge and experience in this area, a trusted brand known for the highest quality
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`products.
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`142. Defendant’s representations and omissions regarding the Product went beyond the
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`specific representations on the packaging, as they incorporated the extra-labeling promises and
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`commitments to quality, transparency and putting customers first, that it has been known for.
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`143. These promises were outside of the standard representations that other companies
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`17
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`Case 2:22-cv-03633 Document 1 Filed 06/20/22 Page 18 of 19 PageID #: 18
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`may make in a standard arms-length, retail context.
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`144. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in Defendant.
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`145. Plaintiff reasonably and justifiably relied on these negligent misrepresentations and
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`omissions, which served to induce and did induce, their purchase of the Product.
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`146. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Fraud
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`147. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained a greater absolute and relative amount of whole grains compared to refined grains,
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`and more fiber, than it did.
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`148. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity and deception, through statements and omissions.
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`149. Defendant knew of the issues described here yet did not address them.
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`150. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`151. 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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`18
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`
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`Case 2:22-cv-03633 Document 1 Filed 06/20/22 Page 19 of 19 PageID #: 19
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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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`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 and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to 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: June 20, 2022
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`Respectfully submitted,
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`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`19
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`
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