Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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` Civil Action No.:
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`STEVE HESSE, on behalf of himself and all
`others similarly situated,
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` Plaintiff,
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` v.
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`GODIVA CHOCOLATIER, INC. and DOES
`1 through 50,
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` Defendants.
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`Plaintiff Steve Hesse (“Plaintiff”), on behalf of himself and all others similarly situated,
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`brings this class action against Godiva Chocolatier, Inc. and DOES 1 through 50 (collectively,
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`“Godiva” or “Defendant”), seeking monetary damages, injunctive relief, and other remedies.
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`Plaintiff makes the following allegations based on the investigation of his counsel and on
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`information and belief, except as to allegations pertaining to Plaintiff individually, which are
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`based on his personal knowledge.
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` INTRODUCTION
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`1.
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`Plaintiff brings this consumer protection and false advertising class action lawsuit
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`against Godiva based on its false and deceptive packaging and advertising practices with respect
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`to a number of its chocolate products manufactured and sold in the United States bearing a
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`“Belgium 1926” statement on the label (the “Godiva Chocolate(s)” or “Product(s)”).
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`2.
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`At all relevant times, Godiva has prominently displayed the “Belgium 1926”
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`representation (the “Belgium Representation”) on the front packaging of all the Godiva
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`Chocolates, representing that the Godiva Chocolates are made in Belgium.
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 2 of 30
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`3.
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`Godiva also extensively utilizes the Belgium Representation across its entire
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`marketing campaign, such as on its Godiva storefronts, supermarket display stands, and print and
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`social media advertising.
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`4.
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`Godiva intentionally plays on the false impression that the Godiva Chocolates are
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`made in Belgium and then imported to the United States, in order to enhance the image of
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`Godiva Chocolates as luxury chocolates. It does this because Belgian chocolates are widely
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`known to be among the highest quality in the world.
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`5.
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`However, unbeknownst to consumers, the Godiva Chocolates are not made in
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`Belgium as represented. Rather, all of the Godiva Chocolates are made in Reading,
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`Pennsylvania.
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`6.
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`Plaintiff and other consumers purchased the Godiva Chocolates relying on
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`Godiva’s Belgium Representation and reasonably believing that the Godiva Chocolates are in
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`fact made in Belgium.
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`7.
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`Had Plaintiff and other consumers known that the Godiva Chocolates were not
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`made in Belgium, they would not have purchased them, or would have paid significantly less for
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`them. Therefore, Plaintiff and consumers have suffered injury in fact as a result of Godiva’s
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`deceptive practices.
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`8.
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`Plaintiff brings this class action lawsuit on behalf of himself and all others
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`similarly situated. Plaintiff seeks to represent a Nationwide Class and a New York Subclass
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`(defined infra in paragraph 38) (collectively referred to as the “Classes”).
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`9.
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`Plaintiff, on behalf of himself and other consumers, is seeking damages,
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`restitution, declaratory and injunctive relief, and all other remedies the Court deems appropriate.
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 3 of 30
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` JURISDICTION AND VENUE
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`10.
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`This Court has subject matter jurisdiction pursuant to the Class Action Fairness
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`Act of 2005, 28 U.S.C. § 1332(d)(2), because this is a class action filed under Rule 23 of the
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`Federal Rules of Civil Procedure, there are thousands of proposed Class members, the aggregate
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`amount in controversy exceeds $5,000,000 exclusive of interest and costs, and Godiva is a
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`citizen of a state different from at least some members of the proposed Classes.
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`11.
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`This Court has personal jurisdiction over Godiva because Godiva has sufficient
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`minimum contacts with the State of New York, and/or otherwise intentionally avails itself of the
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`markets in the State of New York through the promotion, marketing, and sale of Godiva
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`Chocolates in this State to render the exercise of jurisdiction by this Court permissible under
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`traditional notions of fair play and substantial justice. Godiva is also headquartered in New York.
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`12.
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`Venue is proper in this District under 28 U.S.C. § 1391(b)(1) because Godiva
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`maintains its principle place of business in this District and therefore resides in this District.
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` PARTIES
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`13.
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`Plaintiff Steve Hesse is a citizen of New York, and he currently resides in Suffolk
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`County. In or around February of 2016 and 2017, and in or around November of 2016 and 2017,
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`Mr. Hesse purchased the Godiva Dark Chocolate Raspberry bar from a Godiva store in Smith
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`Haven Mall in Lake Grove, New York, and from a Kohl’s store in East Setauket, New York. In
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`purchasing the Product, Mr. Hesse saw and relied on the front label of the Product. Specifically,
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`Mr. Hesse saw and relied on the phrase “Belgium 1926” on the label of the Product. Based on
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`this representation, Mr. Hesse believed he was purchasing imported chocolate from Belgium.
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`However, unbeknownst to Mr. Hesse, the Product that he purchased was not made in Belgium.
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`Mr. Hesse would not have purchased the Product, or would have paid significantly less for it,
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 4 of 30
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`had he known that it was not made in Belgium. Therefore, Mr. Hesse suffered injury in fact and
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`lost money as a result of Defendant’s misleading, false, unfair, and fraudulent practices, as
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`described herein.
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`14.
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`Despite being misled by Defendant, Plaintiff wishes to and is likely to continue
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`purchasing the Godiva Chocolates in the future. Although Plaintiff regularly visits stores where
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`Defendant’s Godiva Chocolates are sold, absent an injunction prohibiting the deceptive labeling
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`and advertising described herein, he will be unable to rely with confidence on Godiva’s
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`representations in the future and will therefore abstain from purchasing the Products, even
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`though he would like to purchase them. Furthermore, while Plaintiff currently believes the
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`Godiva Chocolates are not made in Belgium, he lacks personal knowledge as to Godiva’s
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`specific business practices, leaving doubt in his mind as to the possibility that some chocolates
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`made by Godiva could be made in Belgium. This uncertainty, coupled with his desire to
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`purchase the Products, is an ongoing injury that can and would be rectified by an injunction
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`enjoining Godiva from making the false and/or misleading representations alleged herein. In
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`addition, Class members will continue to purchase the Godiva Chocolates, reasonably but
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`incorrectly believing that they are made in Belgium, absent an injunction.
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`15.
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`Defendant Godiva Chocolatier, Inc. (d/b/a Godiva) is a New Jersey corporation
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`with its principle place of business in New York, New York. Godiva directly and/or through its
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`agents, formulates, manufactures, labels, markets, distributes, and sells the Products nationwide.
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`Godiva has maintained substantial distribution and sales in this District.
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`16.
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`The true names and capacities of DOES 1 through 50, inclusive, are unknown to
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`Plaintiff at this time, and Plaintiff therefore sues such DOE Defendants under fictitious names.
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`Plaintiff is informed and believes, and thereon alleges, that each Defendant designated as a DOE
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`is in some manner highly responsible for the occurrences alleged herein, and that Plaintiff and
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`Class members’ injuries and damages, as alleged herein, were proximately caused by the conduct
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`of such DOE Defendants. Plaintiff will seek leave of the Court to amend this Complaint to
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`allege the true names and capacities of such DOE Defendants when ascertained.
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`FACTUAL ALLEGATIONS
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`A.
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`Belgian Chocolates Are Well-Known For Their Quality
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`17.
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`Belgium is widely understood and recognized as producing among the highest
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`quality chocolates in the world.1 Indeed, Belgium is known for its rich history as a chocolate
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`producing nation. In the early 20th century, Belgian chocolatier Jean Neuhaus Jr. invented the
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`praline – the first “filled” chocolate product.2 The praline was a revolutionary invention for the
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`chocolate industry and gave Belgian chocolatiers recognition for producing among the finest
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`chocolates in the world.
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`18.
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`To protect the Belgian chocolate image, the Belgian Royal Association of the
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`Chocolate, Praline, Biscuits and Sugar Confectionary Industry (“CHOPRABISCO”) has
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`developed the “Belgian Chocolate Code” that provides guidelines for labeling chocolate as
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`coming from Belgium.3 Among other reasons, the Belgian Chocolate Code is based on the fact
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`“that the reputation of high quality associated with ‘Belgian Chocolate’ frequently induces
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`competitors to mislead consumers by using texts or illustrations referring to Belgium[.]”4
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`1 The Brussels Times, What makes Belgium’s chocolate so popular?, May 2, 2017, available at
`http://www.brusselstimes.com/component/k2/8132/what-makes-belgium-s-chocolate-so-popular
`(last visited on January 31, 2019).
`2 https://www.neuhauschocolate.com/en/heritage.htm (last visited on January 31, 2019).
`3 CHOPRABISCO, Belgian Chocolate Code, available at http://www.choprabisco.be
`/engels/documents/BelgianChocolateCodeEN030507DEF.pdf (last visited on January 31, 2019).
`4 Id. at 1.
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`19. While this case is not predicated on Godiva’s violations of the Belgian Chocolate
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`Code, it demonstrates the significance of the Belgium origin to the chocolate industry and to
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`consumers generally.
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`B.
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`Godiva’s “Belgium 1926” Representation
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`20.
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`During the relevant statute of limitations period, Godiva directly and/or through
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`its agents, has formulated, manufactured, labeled, marketed, distributed and sold the Godiva
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`Chocolates across New York and the rest of the United States. The Godiva Chocolates are sold
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`in Godiva brick and mortar stores and through third-party retailers, including, but not limited to,
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`Target, Amazon.com, Walgreens, CVS, and Walmart.
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`21.
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`Rather than be transparent in its packaging and advertising about the difference
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`between its Belgian-made chocolates (sold outside the U.S.) and American-made chocolates
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`(sold in the U.S.), Godiva has intentionally propagated the misconception that all of the Godiva
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`Chocolates are made in Belgium. Godiva continues this deception to this day.
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`22.
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`In 2009, Godiva began utilizing the signature phrase “Belgium 1926” on the
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`product packaging of all Godiva Chocolates.
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`23.
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`Since then, Godiva has ubiquitously and prominently used the Belgium
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`Representation on the front packaging of the Godiva Chocolates:
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 7 of 30
`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 7 of 30
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`ASSORTED 351-0th
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`NETWTL!._EUZ1132§I
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 8 of 30
`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 8 of 30
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`GODIVA
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 9 of 30
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`24.
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`Godiva has also implemented a multimillion-dollar marketing campaign that
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`reinforces the notion that the Godiva Chocolates are made in Belgium. Many of these
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`advertisements similarly have the Belgium Representation and other references to Belgium as a
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`focal point (red border added for demonstrative purposes only):
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`Figure 1: Online Advertising
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 10 of 30
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`Figure 2: Storefront Advertising
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`Figure 3: In-Store Advertising
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`Figure 4: Social Media Advertising
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`25. With its minimalist style, Godiva’s marketing campaign revolves around its
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`purported Belgian origin, thereby magnifying the Belgium Representation to consumers and
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`reinforcing the misconception that the Godiva Chocolates are from Belgium.
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 13 of 30
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`C.
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`The Godiva Chocolates Are Not Made In Belgium
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`26.
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`None of the Godiva Chocolates are made in Belgium. Instead, all of the Godiva
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`Chocolates during the relevant statute of limitations period have been made in Reading,
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`Pennsylvania.
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`27.
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`In addition to the perception that Belgian chocolates are premium chocolates, in
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`Godiva’s case, the difference between Belgian and non-Belgian chocolate represents a tangible
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`difference in quality. For example, in a Washington Post article, Melanie Draps, the
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`granddaughter of the founder of Godiva, states: “I’ve tried the American Godivas and they do
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`taste different.”5 This taste difference is due in part, according to Ms. Draps, to the use of
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`different butters, creams, and alcohol in the chocolates made in Belgium versus the chocolates
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`sold in the United States.6
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`28. While the mere perception that the Godiva chocolates are from Belgium – and the
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`emotional response that this belief elicits – is the primary driver of this case, it cannot be ignored
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`that the actual ingredients used to make Godiva Chocolates also matter. In short, there is both a
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`tangible and intangible difference between a true Belgian Godiva chocolate and a Godiva
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`Chocolate made in Reading, Pennsylvania.
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`D.
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`The False and Deceptive Belgium Representation Harms Consumers
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`29.
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`Plaintiff and other consumers purchased the Godiva Chocolates, relying on
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`Godiva’s Belgium Representation, reasonably believing that the Godiva Chocolates are made in
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`Belgium.
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`5 Washington Post, Godiva: Better in Belgium?, Sept. 14, 1994, available at https://www.
`washingtonpost.com/archive/lifestyle/food/1994/09/14/godiva-better-in-belgium/7e011581-5fbb-
`43bf-bc7e-6db959bf5178/?utm_term=.64776ceecb33 (last visited January 31, 2019)
`6 Id.
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 14 of 30
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`30.
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`Plaintiff’s and other consumers’ reasonable belief that the Godiva Chocolates they
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`purchased were made in Belgium was a significant factor in each of their decisions to purchase
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`the Godiva Chocolates.
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`31.
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`Plaintiff and Class members did not know, and had no reason to know, that the
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`Godiva Chocolates were not made in Belgium because of how the Godiva Chocolates are
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`deceptively labeled and advertised to create the impression that they are made in Belgium.
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`Nothing on the front packaging of the Godiva Chocolates indicates the true manufacturing origin
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`of the chocolates to consumers.
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`32.
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`As the entity responsible for the development, manufacturing, advertising, and
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`sale of the Godiva Chocolates, Godiva knew that each of the Godiva Chocolates bears the
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`Belgium Representation but is not made in Belgium.
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`33.
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`Godiva knew or should have known that Plaintiff and other consumers, in
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`purchasing the Godiva Chocolates, would rely on Godiva’s Belgium Representation and would
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`therefore reasonably believe that the Godiva Chocolates were made in Belgium.
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`34.
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`Consumers are willing to pay more for chocolates made from Belgium. They are
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`also induced to make purchases that they otherwise would not have but for the belief that the
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`chocolate is from Belgium. Indeed, consumers, like Plaintiff, place inherent value on this
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`perception, in addition to any value placed on the chocolate due to taste.
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`35.
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`Because the Godiva Chocolates are not made in Belgium, Defendant’s branding
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`of the Godiva Chocolates was and continues to be misleading and deceptive.
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`36.
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`Plaintiff and other consumers have paid a premium for the Godiva Chocolates.
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`Plaintiff and other consumers would have paid significantly less for the Godiva Chocolates had
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`they known that the Godiva Chocolates were not made in Belgium. In the alternative, Plaintiff
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`and other consumers would not have purchased the Godiva Chocolates at all had they known that
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`the Godiva Chocolates were not made in Belgium. Therefore, Plaintiff and other consumers
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`purchasing the Godiva Chocolates suffered injury in fact and lost money as a result of
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`Defendant’s false, unfair, and fraudulent practices, as described herein.
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`37.
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`Each Class member has been exposed to the same or substantially similar
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`deceptive practice, as each of the Godiva Chocolates have the same core “Belgium 1926”
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`misleading statement prominently printed on their labeling. All of the Godiva Chocolates create
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`the similar impression that they are made in Belgium.
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`CLASS ACTION ALLEGATIONS
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`38.
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`Plaintiff brings this class action pursuant to Rule 23 of the Federal Rules of Civil
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`Procedure, individually and on behalf of all members of the following Nationwide Class, and a
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`New York Subclass.
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`Nationwide Class
`All persons in the United States who, within the relevant statute of limitations period,
`purchased any of the Godiva Chocolates.
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`New York Subclass
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`All persons who, within the relevant statute of limitations period, purchased any of the
`Godiva Chocolates for personal, family, or household purposes in the state of New York.
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`39.
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`Excluded from the Classes are the following individuals and/or entities:
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`Defendant and its parents, subsidiaries, affiliates, officers and directors, current or former
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`employees, and any entity in which Defendant has a controlling interest; all individuals who
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`make a timely election to be excluded from this proceeding using the correct protocol for opting
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`out; and all judges assigned to hear any aspect of this litigation, as well as their immediate family
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`members.
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`40.
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`Plaintiff reserves the right to modify or amend the definition of the proposed
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`Classes after having had an opportunity to conduct discovery.
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`41.
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`42.
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`Plaintiff is a member of both Classes.
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`Numerosity: The proposed Classes are so numerous that joinder of all members
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`would be impractical. Godiva Chocolates are sold across New York and the United States at
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`Godiva-owned boutique stores, online, and through high-end third-party retailers. The number
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`of individuals who purchased the Godiva Chocolates within the United States and the state of
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`New York during relevant time period is at least in the thousands. Accordingly, members of the
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`Classes (“Class members”) are so numerous that their individual joinder herein is impractical.
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`While the precise number of Class members and their identities are unknown to Plaintiff at this
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`time, these Class members are identifiable and ascertainable.
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`43.
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`Common Questions Predominate: There are questions of law and fact common to
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`the proposed Classes that will drive the resolution of this action and will predominate over
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`questions affecting only individual Class members. These questions include, but are not limited
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`to, the following:
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`a. Whether Defendant misrepresented material facts and/or failed to disclose
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`material facts in connection with the packaging, marketing, distribution, and
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`sale of the Godiva Chocolates;
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`b. Whether Defendant’s use of false or deceptive packaging and advertising
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`constituted false or deceptive advertising;
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`c. Whether Defendant engaged in unfair, unlawful and/or fraudulent business
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`practices;
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`d. Whether Defendant’s unlawful conduct, as alleged herein, was intentional and
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`knowing;
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`e. Whether Plaintiff and the Classes are entitled to damages and/or restitution,
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`and in what amount;
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`f. Whether Defendant is likely to continue using false, misleading or unlawful
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`conduct such that an injunction is necessary; and
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`g. Whether Plaintiff and the Classes are entitled to an award of reasonable
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`attorneys’ fees, interest, and costs of suit.
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`44.
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`Defendant has engaged in a common course of conduct giving rise to violations of
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`the legal rights sought to be enforced uniformly by Plaintiff and Class members. Similar or
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`identical statutory and common law violations, business practices, and injuries are involved. The
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`injuries sustained by members of the proposed Classes flow, in each instance, from a common
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`nucleus of operative fact, namely, Defendant’s deceptive packaging and advertising of the
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`Godiva Chocolates. Each instance of harm suffered by Plaintiff and Class members has directly
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`resulted from a single course of illegal conduct. Therefore, individual questions, if any, pale in
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`comparison to the numerous common questions presented in this action.
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`45.
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`Superiority: Because of the relatively small size of the individual Class members’
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`claims, no Class member could afford to seek legal redress on an individual basis. Furthermore,
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`individualized litigation increases the delay and expense to all parties and multiplies the burden
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`on the judicial system presented by the complex legal and factual issues of this case.
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`Individualized litigation also presents a potential for inconsistent or contradictory judgments. A
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`class action is superior to any alternative means of prosecution.
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 18 of 30
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`46.
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`Typicality: The representative Plaintiff’s claims are typical of those of the
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`proposed Classes, as all members of the proposed Classes are similarly affected by Defendant’s
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`uniform unlawful conduct as alleged herein.
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`47.
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`Adequacy: Plaintiff will fairly and adequately protect the interests of the proposed
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`Classes as his interests do not conflict with the interests of the members of the proposed Classes
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`he seeks to represent, and he has retained counsel competent and experienced in class action
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`litigation. The interests of the members of the Classes will be fairly and adequately protected by
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`the Plaintiff and his counsel.
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`48.
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`This lawsuit is maintainable as a class action under Federal Rule of Civil
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`Procedure 23 because Defendant acted, or failed to act, on grounds generally applicable to
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`Plaintiff and the proposed Classes, supporting the imposition of uniform relief to ensure
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`compatible standards of conduct toward the members of the Classes.
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`FIRST CLAIM FOR RELIEF
`Violation of N.Y. Gen. Bus. Law § 349
`(for the New York Subclass)
`Plaintiff repeats the allegations contained in paragraphs 1-48 above as if fully set
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`49.
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`forth herein.
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`50.
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`Plaintiff brings this claim on behalf of himself and on behalf of the members of
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`the New York Subclass.
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`51.
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`New York General Business Law (“GBL”) § 349 declares unlawful “[d]eceptive
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`acts or practices in the conduct of any business, trade or commerce . . . .” GBL § 349(a).
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`52.
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`The practices alleged herein – namely, advertising Godiva Chocolates as being
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`from Belgium when they are not – are unfair, deceptive, and misleading, in violation of GBL §
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`349.
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`53.
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`Defendant’s conduct is also unfair, deceptive, and misleading because Defendant
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`fails to disclose that the Products are made in the U.S., in order to induce consumers’ purchases
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`of the Products.
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`54.
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`The foregoing deceptive acts and practices were directed at Plaintiff and members
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`of the New York Subclass.
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`55.
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`Defendant’s misrepresentation regarding the Godiva Chocolates is material to a
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`reasonable consumer because it relates to the contents and characteristics of the Godiva
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`Chocolates purchased by the consumer. A reasonable consumer attaches importance to such
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`representation and is induced to act thereon in making purchase decisions.
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`56.
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`Plaintiff and members of the New York Subclass have been injured as a direct and
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`proximate result of Defendant’s violations described above as they would not have purchased the
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`Godiva Chocolates, or would have paid significantly less for the Godiva Chocolates, had they
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`known that the Godiva Chocolates they purchased are actually made in Reading, Pennsylvania.
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`57.
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`As a result of Defendant’s unlawful action, Plaintiff and members of the New
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`York Subclass seek to enjoin Defendant’s deceptive and unlawful acts and practices described
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`herein to recover actual damages, fifty dollars (or both), whichever is greater, as well as treble
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`damages, reasonable attorneys’ fees, and all other remedies this Court deems proper.
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`SECOND CLAIM FOR RELIEF
`Violation of N.Y. Gen. Bus. Law § 350
`(for the New York Subclass)
`Plaintiff repeats the allegations contained in paragraphs 1-48 above as if fully set
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`58.
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`forth herein.
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`59.
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`Plaintiff brings this claim on behalf of himself and on behalf of the members of
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`the New York Subclass.
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`60.
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`GBL § 350 provides in relevant part: “False advertising in the conduct of any
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`business, trade or commerce . . . in this state is hereby declared unlawful.”
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 20 of 30
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`61.
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`In turn, GBL § 350-a defines false advertising as:
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`“advertising, including labeling, of a commodity . . . 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 . . . to which the advertising relates under the conditions prescribed in said
`advertisement, or under such conditions as are customary or usual.”
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`62.
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`Defendant’s actions are untrue and misleading in representing the Godiva
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`Chocolates are from Belgium when they are not.
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`63.
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`Defendant’s conduct is also misleading because Defendant fails to disclose that
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`the Godiva Chocolates are made in the U.S., in order to induce consumers’ purchases of the
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`Godiva Chocolates.
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`64.
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`The foregoing misleading acts and practices were directed at Plaintiff and
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`members of the New York Subclass.
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`65.
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`Defendant’s misrepresentation regarding the Godiva Chocolates is material to a
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`reasonable consumer because it relates to the contents and characteristics of the Godiva
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`Chocolates purchased by the consumer. A reasonable consumer attaches importance to such
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`representation and is induced to act thereon in making purchase decisions.
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`66.
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`The foregoing misrepresentation has resulted in consumer injury or harm to the
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`New York public.
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`67.
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`Plaintiff and members of the New York Subclass have been injured as a direct and
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`proximate result of Defendant’s violations described above as they would not have purchased the
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`Godiva Chocolates, or would have paid significantly less for the Godiva Chocolates, had they
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`known that the Godiva Chocolates they purchased are actually made in Reading, Pennsylvania.
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`68.
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`As a result of Defendant’s unlawful action, Plaintiff and members of the New
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 21 of 30
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`York Subclass seek to enjoin Defendant’s misleading and unlawful acts and practices described
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`herein, to recover actual damages or five hundred dollars per violation, whichever is greater (or
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`both), as well as treble damages, reasonable attorneys’ fees, and all other remedies this Court
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`deems proper.
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`THIRD CLAIM FOR RELIEF
`Breach of New York Express Warranty
`N.Y. U.C.C. § 2-313
`(for the New York Subclass)
`Plaintiff repeats the allegations contained in paragraphs 1-48 above as if fully set
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`69.
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`forth herein.
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`70.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed New York Subclass who purchased a Product directly at a brick and mortar Godiva
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`store or on www.godiva.com.
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`71.
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`New York U.C.C. § 2-313 provides that “(a) Any affirmation of fact or promise
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`made by the seller to the buyer which relates to the goods and becomes part of the basis of the
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`bargain creates an express warranty that the goods shall conform to the affirmation or
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`promise[,]” and “(b) Any description of the goods which is made part of the basis of the bargain
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`creates an express warranty that the goods shall conform to the description.” N.Y. U.C.C. § 2-
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`313.
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`72.
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`Defendant has expressly warranted on the packaging of the Godiva Chocolates
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`that the chocolates are from Belgium. These representations about the Godiva Chocolates: (1)
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`are affirmations of fact or promises made by Defendant to consumers that the Godiva Chocolates
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`are in fact made in Belgium; (2) became part of the basis of the bargain to purchase the Godiva
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`Chocolates when Plaintiff Hesse relied on the representation; and (3) created an express warranty
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`that the Godiva Chocolates would conform to these affirmations of fact or promises. In the
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`Case 1:19-cv-00972-AJN Document 1 Filed 01/31/19 Page 22 of 30
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`alternative, the representations about the Godiva Chocolates are descriptions of goods which
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`were made as part of the basis of the bargain to purchase the Godiva Chocolates and which
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`created an express warranty that the Godiva Chocolates would conform to the product
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`descriptions.
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`73.
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`Plaintiff and members of the New York Subclass reasonably and justifiably relied
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`on the foregoing express warranties believing that the Godiva Chocolates did in fact conform to
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`these warranties.
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`74.
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`Defendant has breached the express warranties made to Plaintiff and members of
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`New York Subclass by failing to manufacture the Godiva Chocolates in Belgium.
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`75.
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`Plaintiff and members of the New York Subclass paid a premium price for the
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`Godiva Chocolates but did not obtain the full value of the chocolates as represented. If Plaintiff
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`and members of the New York Subclass had known of the true nature of the Godiva Chocolates,
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`they would not have purcha