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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF NEW YORK
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`Kelsey Gancarz, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`- against -
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`Beech-Nut Nutrition Company,
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`Defendant
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`Class Action Complaint
`Case No.: 1:21-CV-0258 (TJM/CFH)
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`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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`Beech-Nut Nutrition Company (“defendant”) manufactures, distributes, labels and
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`sells baby food products in numerous forms, i.e., pouches, purees, snacks, etc., under its Beech-
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`Nut brand (“Products”).
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`2.
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`Defendant knows consumers value representations that the Products do not contain
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`specific ingredients or components, as shown by its statements they are free from GMOs, artificial
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`preservatives, artificial colors, and artificial flavors.
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`3.
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`Consumers expect the food they feed their infants and toddlers to be free from any
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`substances which can have significant and dangerous health consequences.
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`4.
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`The Food and Drug Administration (“FDA”) and the World Health Organization
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`(“WHO”) declared arsenic, lead, cadmium, and mercury “dangerous to human health, particularly
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`to babies and children, who are most vulnerable to their neurotoxic effects.”1
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`1 See Baby Foods Are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium, and Mercury, Staff Report (“House
`Report”), Subcommittee on Economic and Consumer Policy of the Committee on Oversight and Reform, at 2,
`February 4, 2021, available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2021-02-
`04%20ECP%20Baby%20Food%20Staff%20Report.pdf.
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`5.
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`These four heavy metals “can harm a baby’s developing brain and nervous system”
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`and cause negative impacts such as the “permanent loss of intellectual capacity and behavioral
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`problems like attention-deficit hyperactivity disorder (ADHD).”2
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`6. Arsenic exposure creates a risk of “respiratory, gastrointestinal, hematological,
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`hepatic, renal, skin, neurological and immunological effects, as well as damaging effects on the
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`central nervous system.”3
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`7.
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`The FDA has set the maximum allowable arsenic levels in bottled water at 10 ppb of
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`inorganic arsenic and is also considering limiting the action level or arsenic in rice cereal for infants
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`to 100 ppb.4
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`8.
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`Lead exposure harms children’s brain and nervous systems and is associated with a
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`range of negative health outcomes including “behavioral problems, decreased cognitive
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`performance, delayed development, and reduced postnatal growth.”5
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`9. Young children are vulnerable to lead because the physical and behavioral effects of
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`lead occur at lower exposure levels in children than in adults.
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`10. EPA has set the maximum contaminant level goal for lead in drinking water at zero
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`because lead is toxic metal that can be harmful to human health even at low exposure levels.
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`11. The Agency for Toxic Substances and Disease Registry states that there may be no
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`threshold for lead with regards to developmental impact on children.
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`12. Mercury increases the risk for cardiovascular disease and can cause vision,
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`2 Healthy Babies Bright Futures Report, at 6.
`3 House Report, at 10 (quoting Miguel Rodríguez-Barranco et al., Association of Arsenic, Cadmium and Manganese
`Exposure with Neurodevelopment and Behavioural Disorders in Children: A Systematic Review and Meta-Analysis
`(June 1, 2013) (online at https://pubmed.ncbi.nlm.nih.gov/23570911/)).
`4 FDA, Draft Guidance for Industry: Inorganic Arsenic in Rice Cereals for Infants: Action Level (Apr.2016),
`https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/UCM49315
`2.pdf.
`5 House Report, at 11.
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`intelligence, and memory problems for children exposed in utero.
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`13. The FDA has set a maximum mercury level in drinking water to 2 ppb.
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`14. Cadmium is linked to neurotoxicity, anemia, liver disease, cancer, and kidney, bone,
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`and heart damage.
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`15. Health and environmental regulatory bodies have set maximum cadmium levels in
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`drinking water to 3 and 5 ppb.
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`16. A recent report by the U.S. House of Representatives’ Subcommittee on Economic
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`and Consumer Policy, Committee on Oversight and Reform, revealed that defendant’s “[i]nternal
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`company standards permit dangerously high levels of toxic heavy metals” in their Products.
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`17. Defendant’s internal limit for inorganic arsenic is 3,000 ppb and has used ingredients
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`with as much as 913.4 ppb arsenic.
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`18. Defendant sold Products which contained upwards of 148 ppb cadmium, above its
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`internal limit of 9 ppb.
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`19. Defendant’s internal limit for lead is 5,000 ppb, far beyond any existing regulatory
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`standard and its Products contained as much as 886.9 ppb lead.
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`20. Though defendant conducts some testing for these substances, the products are sold
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`to consumers regardless of the level of heavy metals they contain.
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`21. Defendant only tested the ingredients it used instead of the finished products.
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`22. Defendant claims their Products are tested for heavy metals and that they abide by
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`the highest testing standards in the industry.
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`23. Defendant’s Products tout the simple nutritious ingredients they purportedly contain,
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`while omitting any reference to the dangerous levels of heavy metals they also contain.
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`24. Defendant knows that consumers expect to purchase baby foods that will not cause
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`harm or risk of harm, and that assurances of quality induce them to pay more than they otherwise
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`would.
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`25. No reasonable consumer seeing defendant’s marketing would expect the Products to
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`contain heavy metals above trace levels.
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`26. Had plaintiff and the proposed class members known the truth, they would not have
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`bought the Products or would have paid less for them.
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`27. As a result of the false and misleading representations, the Products are sold at
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`premium prices, approximately no less than no less than $1.79 for jars of 4 OZ, excluding tax,
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`compared to other similar products represented in a non-misleading way, and higher than they
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`would be sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`28.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`29. Under CAFA, district courts have original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal diversity.
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`30. Plaintiff is a citizen of Massachusetts.
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`31. Defendant Beech-Nut Nutrition Company is a Delaware corporation with a principal
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`place of business in Amsterdam, Montgomery County, New York.
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`32. Diversity exists because plaintiff and defendant are citizens of different states.
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`33. Upon information and belief, sales of the Products and any available statutory and
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`other monetary damages, exceed $5 million during the applicable statutes of limitations, exclusive
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`of interest and costs.
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`34. Venue is proper because a substantial part of the events or omissions giving rise to
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`the claim occurred here and Defendant’s principal place of business is in the Northern District of
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`New York, Montgomery County.
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`Parties
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`35. Plaintiff is a citizen of North Adams, Berkshire County, Massachusetts.
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`36. Defendant Beech-Nut Nutrition Company is a Delaware corporation with a principal
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`place of business in Amsterdam, Montgomery County, New York.
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`37. Defendant’s “Beech-Nut” is a leading baby food brand.
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`38. Defendant’s use of the words “Organics” and “Naturals” in the names of its Products
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`represents they are high quality and will not contain harmful or potentially harmful components.
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`39. The Products are sold to consumers from retail and online stores of third-parties
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`across the country.
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`40. Plaintiff bought the Products on one or more occasions within the statute of
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`limitations for each cause of action alleged, from one or more locations, such as Walmart, 1415
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`Curran Memorial Hwy, North Adams, MA 01247, numerous times over the past year, for the
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`consumption of children.
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`41. Plaintiff bought the Products at or exceeding the above-referenced price because she
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`wanted to buy a product with the qualities and attributes represented herein and relied upon what
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`the label indicated and omitted.
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`42. Plaintiff would not have purchased the Products in the absence of defendant’s
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`misrepresentations and omissions.
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`43. The Products were worth less than what plaintiff paid and she would not have paid
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`as much absent defendant's false and misleading statements and omissions.
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`44. Plaintiff intends to, seeks to, and will purchase the Products again when she can do
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`so with the assurance that Products' labeling is consistent with its composition.
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`Class Allegations
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`45. The class will consist of all purchasers of the Products who reside in Massachusetts
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`and Maine during the applicable statutes of limitations.
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`46. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`47. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`48. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`49. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`50. 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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`51.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`52. 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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`53. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York General Business Law (“GBL”) §§ 349 & 350
`(Consumer Protection Statutes)
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`54. Plaintiff incorporates by reference all preceding paragraphs.
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`55. Plaintiff and class members desired to purchase products without high levels of toxic
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`heavy metals.
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`56. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`57. Defendant misrepresented
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`the Products
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`through
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`its statements, omissions,
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`ambiguities, half-truths and/or actions.
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`58. Defendant intended that plaintiff and the Class rely upon defendant’s deceptive
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`conduct, and a reasonable person would in fact be misled by this deceptive conduct.
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`59. Defendant knew or should have known that its representations and omissions about
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`the Product’s contents were material and likely to mislead consumers.
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`60. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`61. Plaintiff incorporates by reference all preceding paragraphs.
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`62. The Products were manufactured, labeled and sold by defendant and warranted to
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`plaintiff and class members that it possessed substantive, functional, nutritional, qualitative,
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`compositional, organoleptic, sensory, physical and health-related attributes which it did not.
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`63. The absence of toxic heavy metals was impliedly warranted because of the numerous
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`health-related statements.
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`64. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`Case 1:21-cv-00258-TJM-CFH Document 1 Filed 03/04/21 Page 8 of 11
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`marketing of the Products.
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`65. This duty is based on defendant’s outsized role in the market for this type of Products.
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`66. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`67. Defendant received notice and should have been aware of these misrepresentations
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`due to numerous complaints by consumers to its main office over the past several years regarding
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`the Products.
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`68. The Products did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable.
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`69. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`70. Plaintiff incorporates by reference all preceding paragraphs.
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`71. Defendant had a duty to truthfully represent the Products, which it breached.
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`72. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience in the sale of the product type.
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`73. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, a well-known and respected brand or entity in this sector.
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`74. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Products.
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`75. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`76. Plaintiff incorporates by reference all preceding paragraphs.
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`77. Defendant misrepresented and/or omitted the attributes and qualities of the Products.
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`78. Defendant’s fraudulent intent is evinced by its failure to accurately disclose the issues
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`described herein, when it knew not doing so would mislead consumers.
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`79. Defendant was aware of these issues for almost two years yet failed to inform
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`consumers.
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`80. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`81. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
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`82. Defendant obtained benefits and monies because the Products were not as
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`represented and expected, to the detriment and impoverishment of plaintiff and class members,
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`who seek restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, 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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`Case 1:21-cv-00258-TJM-CFH Document 1 Filed 03/04/21 Page 10 of 11
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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`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: March 4, 2021
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cutter Mill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
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`Case 1:21-cv-00258-TJM-CFH Document 1 Filed 03/04/21 Page 11 of 11
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`United States District Court
`Northern District of New York
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`Kelsey Gancarz, individually and on behalf of all others similarly situated,
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` - against -
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`Beech-Nut Nutrition Company,
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`Plaintiff,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`60 Cutter Mill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
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`Dated: March 4, 2021
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` /s/ Spencer Sheehan
` Spencer Sheehan
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