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`Sheehan & Associates, P.C.
`Spencer Sheehan
`505 Northern Blvd Ste 311
`Great Neck NY 11021-5101
`Telephone: (516) 303-0552
`Fax: (516) 234-7800
`
`United States District Court
`Southern District of New York
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`Kimberly Fisher, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`1:20-cv-05339
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`- against -
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`Class Action Complaint
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`Whole Foods Market Group, Inc.,
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`Defendant
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`
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`Plaintiff by attorneys allege upon information and belief, except for allegations pertaining
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`to plaintiff, which are based on personal knowledge:
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`1.
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` Whole Foods Market Group, Inc. (“defendant”) manufactures, distributes, markets,
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`labels and sells coconutmilk beverages purporting to be flavored only with vanilla under the 365
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`Everyday Value brand (“Product”).
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`2.
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`The Product is available to consumers from defendant’s retail stores, its website and
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`Amazon.com and is sold in cartons of 32 OZ (946 ML).
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`3.
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`The relevant front
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`label representations
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`include “365 Everyday Value,”
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`“Unsweetened,” “Coconut,” “Organic,” “Coconutmilk Beverage” and “Vanilla.”
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`4.
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`The unqualified, prominent and conspicuous representation of the Product’s flavor
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`as “Vanilla” is false, deceptive and misleading because the Product contains non-vanilla, artificial
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`flavors which imitate, resemble and extend vanilla’s taste but are not derived from vanilla beans,
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`yet these flavors are not disclosed to consumers on the front label as required and expected.
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`5. According to Nielsen, 62% of consumers say they try to avoid artificial flavors.1
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`6. Another study by New Hope Network concludes that “71% of consumers today are
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`1 Nielsen, Reaching For Real Ingredients: Avoiding The Artificial, Sept. 6, 2016.
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`2
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`avoiding artificial flavors.”2
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`7.
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`Label Insight determined that 76% of consumers avoid products with artificial
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`flavors.3
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`8. Vanilla is “one of the most widely used flavors within the food industry” because it
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`is “unique, versatile and highly evocative.”4
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`9.
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` Real vanilla flavor – from vanilla beans – is “strongly linked to comfort and
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`authenticity, which is aligned with” consumers’ preferences for foods and flavors they recognize
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`and are not created in a laboratory.5
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`10. The tropical orchid of the genus Vanilla (V. planifolia) is the source of the flavor
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`commonly known as vanilla.
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`11. Vanilla’s “desirable flavor attributes…make it one of the most common ingredients
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`used in the global marketplace, whether as a primary flavor, as a component of another flavor, or
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`for its desirable aroma qualities.”6
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`12. Vanilla’s unique flavor and aroma is due to at least 200 compounds scientists have
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`identified.7
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`13. Re-creating the complexity and richness of “vanilla flavor” provided by vanilla beans
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`is a task science has been unable to duplicate, which is why consumers are willing to pay more for
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`products labeled solely with the term “Vanilla.”
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`14. These include volatile constituents such as “acids, ethers, alcohols, acetals,
`
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`2 Alex Smolokoff, Natural color and flavor trends in food and beverage, Natural Products Insider, Oct. 11, 2019.
`3 Thea Bourianne, Exploring today’s top ingredient trends and how they fit into our health-conscious world, March
`26-28, 2018.
`4 Kristiana Lalou Queen of flavors: Vanilla rises above transparency concerns to lead category, Food Ingredients First,
`Sept. 3, 2019.
`5 Id.
`6 Daphna Havkin-Frenkel, F.C. Bellanger, Eds., Handbook of Vanilla Science and Technology, Wiley, 2018.
`7 Arun K. Sinha et al., “A comprehensive review on vanilla flavor: extraction, isolation and quantification of vanillin
`and other constituents,” International Journal of Food Sciences and Nutrition 59.4 (2008): 299-326.
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`3
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`heterocyclics, phenolics, hydrocarbons, esters and carbonyls.”
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`15. The non-volatile constituents include “tannins, polyphenols, free amino acids and
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`resins.”
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`16. During the first half of the 20th century, “the widespread and exceedingly serious
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`adulteration of vanilla extracts that are now labeled ‘pure’” was rampant, which resulted in
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`consumers expecting vanilla but receiving its synthetic replacement, vanillin:8
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`Misbranding was alleged for the further reason that the product was labeled and
`branded so as to deceive and mislead the purchaser thereof, in that said label was
`calculated and intended to create the impression and belief in the mind of the
`purchaser that the product was a genuine vanilla extract, whereas, in fact, it was a
`mixture of vanilla extract, vanillin, and coumarin, artificially colored with caramel.
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`Notice of Judgment No. 2241, Adulteration and Misbranding of…Vanilla Extract,
`United States Department of Agriculture, W. M. Hays, Acting Secretary,
`Washington, D.C., January 23, 1913.
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`17. Due to widespread fraud, vanilla became the only flavor to have a standard of
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`identity, to “insure, for the protection of both the consumers and our industry, that all vanilla
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`products are correctly labeled and meet at least minimum standards.”9 See 21 C.F.R. § 169.175 –
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`21 C.F.R. § 169.182 (vanilla products); see also 1 NYCRR § 250.1(a)(17) (“the commissioner
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`hereby adopts the following as the standards of identity…as published in…21 CFR part 169”).10
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`18.
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`In the context of non-vanilla flavors, various terms are used to truthfully disclose the
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`source and amount of a product’s primary characterizing flavor. See 21 C.F.R. § 101.22(i)(1)(i)
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`8 Letter from McCormick & Company Inc. to HEW Secretary, January 15, 1960; Memorandum of Telephone
`Conversation between Mr. Alfred Daibock, Commercial Policy Division, Department of State and Tom Bellis, Food
`Standards Branch, FDA (the FDA stated, “The prime purpose sought to be served by the standards adopted was to
`promote honest, fair dealing with housewives and other consumers of the flavorings covered by the standards”).
`9 Letter from McCormick & Company Inc. to HEW Secretary, January 15, 1960; Press Release U.S. Department of
`Health, Education, and Welfare, September 13, 1963.
`10 1 NYCRR § 250.1(a)(17), Section 250.1, Foods, Part 250, Definitions and Standards, Subchapter C, Food and Food
`Products, Chapter VI, Food Control, Title 1; 1. New York State has adopted and incorporated in its entirety, all
`provisions of the Federal Food, Drug and Cosmetic Act (“FFDCA”) through its Agriculture and Markets Law
`(“AGM”) and the accompanying regulations. See Title 1, Department of Agriculture and Markets, Official
`Compilation of Codes, Rules and Regulations of the State of New York (“NYCRR”).
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`4
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`(requiring food to be labeled “strawberry flavored shortcake” where it contains an insufficient
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`amount of strawberries to independently characterize the food and natural strawberry flavor); 21
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`C.F.R. § 101.22(i)(1)(ii) (where a food contains no flavor from the product whose flavor is
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`simulated but flavor from other natural sources, the label must state “artificially flavored”).
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`19. The Product’s front label of “Vanilla” without qualification gives reasonable
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`consumers the impression that only vanilla ingredients provide its taste. See 21 C.F.R. §
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`101.22(i)(1) (“If the food contains no artificial flavor which simulates, resembles or reinforces the
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`characterizing flavor, the name of the food on the principal display panel or panels of the label
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`shall be accompanied by the common or usual name of the characterizing flavor, e.g., ‘vanilla’”).
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`20. However, the Product contains non-vanilla flavors, evident from the ingredients
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`“organic natural flavor” and “natural flavor.”
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`INGREDIENTS: ORGANIC
`COCONUTMILK (FILTERED WATER,
`ORGANIC COCONUT CREAM),
`CALCIUM CARBONATE, ORGANIC
`NATURAL FLAVOR, ORGANIC
`LOCUST BEAN GUM, GELLAN GUM,
`NATURAL FLAVOR, SEA SALT,
`VITAMIN A PALMITATE,
`ERGOCALCIFEROL (VITAMIN D2),
`CYANOCOBALAMIN (VITAMIN
`B12).
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`
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`21. “Organic natural flavor” and “natural flavor” are distinct from the exclusively vanilla
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`ingredients. See 21 C.F.R. § 101.4(a)(1) (“designation of ingredients” by common or usual name)
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`22. Where a food is flavored only by vanilla, the ingredient list is required to “bear[s]
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`the name of the food specified in the definition and standard.” See 21 U.S.C. §343(g); see also 21
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`C.F.R. § 169.175 (b)(1) (“The specified name of the food is ‘Vanilla extract’ or ‘Extract of
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`5
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`Case 1:20-cv-05339-GHW-GWG Document 1 Filed 07/11/20 Page 6 of 16
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`vanilla’”).
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`23. Non-standardized (and non-vanilla) flavors are listed as “‘natural flavor’ or ‘artificial
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`flavor.’”11 See 21 C.F.R. § 101.22(h)(1) (“The label of a food to which flavor is added shall declare
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`the flavor in the statement of ingredients…as ‘spice’, “‘natural flavor’, or ‘artificial flavor.’”); see
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`also 21 U.S.C. § 343(i) (non-standardized flavors “may be designated as spices, flavorings, and
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`colorings without naming each.”).
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`24. The labeling of non-standardized flavors “is different – as well as highly regulated –
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`at the industrial level so that the end user, the processor, knows the flavor source.”12
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`25. For the Product’s front label to avoid disclosing any non-vanilla flavors, the “organic
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`natural flavor” and “natural flavor” would have to provide a taste sensation completely unrelated
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`to vanilla.
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`26. The Product’s flavor ingredients include and are equivalent to an ingredient
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`designated as “Vanilla With Other Natural Flavor” or “Vanilla WONF.”
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`27. Vanilla WONF is increasingly used in place of vanilla extract13 due to record high
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`vanilla prices.14
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`28. Vanilla WONF can supposedly “provide the same vanilla taste expectation while
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`requiring a smaller quantity of vanilla beans,” or less vanilla than if only vanilla beans were used.15
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`29. The Vanilla WONF used in the Product contains vanilla extract but also contains
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`added vanillin, maltol and piperonal.
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`30. These flavor compounds are not from vanilla beans but enhance, resemble, simulate,
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`11 Donna Berry, Playing the natural flavor game, Food Business News, Jan. 1, 2018.
`12 Id.
`13 Or vanilla flavoring.
`14 Uliana Pavlova, Vanilla Morphs From Plain to Premium as Prices Refuse to Go Down, Bloomberg, July 27, 2018.
`15 Donna Berry, Understanding the limitations of natural flavors, BakingBusiness.com, Jan. 16, 2018.
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`6
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`Case 1:20-cv-05339-GHW-GWG Document 1 Filed 07/11/20 Page 7 of 16
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`reinforce and extend the “complex array of flavor notes and aromas” of vanilla by providing,
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`among other things, creamy, sweet and vanilla-like notes.16 See 21 C.F.R. § 101.22(i)(1)(iii).17 See
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`21 C.F.R. § 101.22(i)(1)(iii).
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`31. Though non-vanilla WONF flavors would require a front label disclosure of “other
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`natural flavor,” the addition of non-vanilla flavors to the Product that enhance vanilla are required
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`to be declared as artificial flavors. See Memorandum of Conference, Status of Vanilla Flavoring
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`with other Natural Flavors, July 8, 1966 (“The vanilla standard determines vanilla as a
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`standardized product. If other flavorings are added, then the vanilla is no longer a standardized
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`product and should therefore be labeled artificial or imitation.”).
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`32. This is because labeling foods with a primary characterizing flavor of vanilla requires
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`following the vanilla regulations instead of the general flavor regulations where they may conflict.
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`See 21 C.F.R. § 169.175-182 (vanilla products) compare with 21 C.F.R. § 101.22(i).
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`33. The vanilla regulations restrict what can be added to vanilla and what it can be called,
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`because consumers have been, and continue to be, misled by deceptive vanilla labeling.
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`34. For example, when vanillin is added to vanilla, the ingredient list and front label are
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`required to state “‘contains vanillin, an artificial flavor (or flavoring).’” See 21 C.F.R. § 169.180(b)
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`(“Vanilla-vanillin extract”).
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`35. According to representatives of FEMA, the flavor industry trade group:
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`16 Vanilla, Taste Foundations, Virginia Dare Company.
`17 Hallagan and Drake, FEMA GRAS and U.S. Regulatory Authority: U.S. Flavor and Food Labeling Implications,
`Perfumer & Flavorist, Oct. 25, 2018; Charles Zapsalis et al., Food chemistry and nutritional biochemistry. Wiley,
`1985, p. 611 (describing the flavor industry’s goal to develop vanilla compound flavors “[T]hat Seem[s] to be
`Authentic or at Least Derived from a Natural Source”) (emphasis added).
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`7
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`The standards for vanilla extract and the other standardized vanilla products at 21
`CFR 169 expressly do not provide WONF designation. This means that a flavoring
`mixture of vanilla extract and vanillin produced through a “natural” process (i.e. a
`process consistent with the definition of natural flavor at 21 CFR Section 101.22(a)
`(3)) cannot be described as “vanilla extract WONF,” “vanilla WONF” or other
`similar descriptive terms.
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`“Labeling Vanilla Flavorings and Vanilla-Flavored Foods in the U.S.,” John B.
`Hallagan and Joanna Drake, The Flavor and Extract Manufacturers Association of
`the United States, Perfumer & Flavorist, Vol. 43 at p. 46, Apr. 25, 2018.
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`36. The Product’s non-vanilla, artificial flavors are not disclosed on the front label or the
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`ingredient list, which is deceptive, misleading and in violation of law.
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`37.
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` A reasonable consumer cannot follow up or learn the truth that the Product contains
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`non-vanilla, artificial flavors from reading the Product’s ingredient list because defendant labels
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`the flavor ingredients as “Organic Natural Flavor” and “Natural Flavor.”
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`38. Reasonable consumers, observing the Product’s absence of qualifying front label
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`terms, will expect the Product to only be flavored by vanilla ingredients.
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`39. Consumers cannot be expected to know intricate labeling regulations for vanilla
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`ingredients, which makes defendant’s flavor designation of “Vanilla” deceptive and misleading.
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`40. Defendant’s branding and packaging of the Product is designed to – and does –
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`deceive, mislead, and defraud plaintiff and consumers.
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`41. 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 like
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`plaintiff.
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`42. The value of the Product that plaintiff purchased and consumed was materially less
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`than its value as represented by defendant.
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`43. Had plaintiff and class members known the truth, they would not have bought the
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`Product or would have paid less for them.
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`44. As a result of the false and misleading labeling, the Product is sold at a premium
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`price, approximately no less than $3.49 for cartons of 32 OZ (946 ML), excluding tax, compared
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`to other similar products represented in a non-misleading way.
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`Jurisdiction and Venue
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`45.
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`Jurisdiction is proper pursuant to 28 U.S.C. § 1332(d)(2) (Class Action Fairness Act
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`of 2005 or “CAFA”).
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`46. Under CAFA, district courts have “original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal
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`diversity[.]” Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
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`47. Upon information and belief, the amount in controversy exceeds the threshold
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`because defendant sells significant quantities of the Product throughout this state.
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`48. Plaintiff Kimberly Fisher is a citizen of New York.
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`49. Defendant Whole Foods Market Group, Inc. is a Delaware corporation with a
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`principal place of business in Austin, Travis County, New York and is a citizen of Texas.
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`50. “Minimal diversity” exists because plaintiff and defendant are citizens of different
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`states.
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`51. Venue is proper in this judicial district because a substantial part of the events or
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`omissions giving rise to the claim occurred in this district, viz, the purchase of the Product by
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`plaintiff and the misleading representations relied upon by plaintiff.
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`52. This court has personal jurisdiction over defendant because it conducts and transacts
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`business, contracts to supply and supplies goods within New York.
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`9
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`Parties
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`53. Plaintiff Kimberly Fisher is a citizen of New York, New York County, New York.
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`54. Defendant Whole Foods Market Group, Inc. is a Delaware corporation with a
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`principal place of business in Austin, New York, Travis County.
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`55. Defendant sells the Product at its 476 grocery stores nationwide and is exclusively
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`responsible for the labeling which consumers see and rely upon.
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`56. Defendant sells the Product through its website and Amazon.com.
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`57. During the relevant statutes of limitations, plaintiff purchased the Product within her
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`districts and/or State for personal consumption and/or use in reliance on the representations the
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`Product’s vanilla taste was only provided by vanilla.
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`58. Plaintiff purchased the Product from Whole Foods, 95 E Houston St, New York, NY
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`10002, New York in April 2020, among other occasions.
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`59. Plaintiff cannot be assured the Product’s labeling in the future will be accurate even
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`though she would like to purchase the Product provided its label and/or components are changed
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`so they are no longer misleading.
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`Class Allegations
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`60. The class will consist of all purchasers of the Product who reside in New York during
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`the applicable statutes of limitations.
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`61. Plaintiff will seek class-wide injunctive relief based on Rule 23(b) in addition to
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`monetary relief class.
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`62. 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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`63. 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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`64. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`65. 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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`66.
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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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`67. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to adequately and fairly protect class members’ interests.
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`68. 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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`69. Plaintiff incorporates by reference all preceding paragraphs.
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`70. Plaintiff and class members desired to purchase and consume products which were
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`as described and marketed by defendant and expected by reasonable consumers, given the product
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`type.
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`71. 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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`72. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Product.
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`73. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`74. Plaintiff relied on the statements, omissions and representations of defendant, and
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`11
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`defendant knew or should have known the falsity of same.
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`75. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`76. Plaintiff incorporates by reference all preceding paragraphs.
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`77. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Product.
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`78. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`79. Defendant had a duty to disclose and/or provide non-deceptive marketing of the
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`Product and knew or should have known same were false or misleading.
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`80. This duty is based on defendant’s position as an entity which has held itself out as
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`having special knowledge and experience in the production, service and/or sale of the product type.
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`81. 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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`82. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Product.
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`83. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`84. Plaintiff incorporates by reference all preceding paragraphs.
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`85. The Product was manufactured, labeled and sold by defendant and warranted to
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`plaintiff and class members that they possessed substantive, functional, nutritional, qualitative,
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`compositional, organoleptic, sensory, physical and other attributes which they did not.
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`86. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`87. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`88. 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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`89. This duty is based, in part, on defendant’s position as one of the most recognized
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`companies in the nation in this sector.
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`90. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`91. Defendant received notice and should have been aware of these misrepresentations
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`due to numerous complaints by consumers to its main office over the past several years regarding
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`the Product.
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`92. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable.
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`93. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`94. Plaintiff incorporates by reference all preceding paragraphs.
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`95. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`96. Defendant’s fraudulent intent is evinced by its failure to accurately identify the
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`Product on the front label and ingredient list, when it knew its statements were neither true nor
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`accurate and misled consumers.
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`97. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`98. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
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`99. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`Case 1:20-cv-05339-GHW-GWG Document 1 Filed 07/11/20 Page 15 of 16
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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 and interest pursuant to the common law and other statutory
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`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: July 11, 2020
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`505 Northern Blvd Ste 311
`Great Neck NY 11021-5101
`Tel: (516) 303-0552
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
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`15
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`1:20-cv-05339
`United States District Court
`Southern District of New York
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`Plaintiff,
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`Kimberly Fisher, individually and on behalf of all others similarly situated,
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` - against -
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`Whole Foods Market Group, Inc.,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`505 Northern Blvd Ste 311
`Great Neck NY 11021-5101
`Tel: (516) 303-0552
`Fax: (516) 234-7800
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`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
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`Dated: July 11, 2020
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` /s/ Spencer Sheehan
` Spencer Sheehan
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