Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 1 of 13
`
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Telephone: (516) 268-7080
`Fax: (516) 234-7800
`
`United States District Court
`Southern District of New York
`
`
`
`
`
`
`
`
`Lauren Yu, individually and on behalf of all
`others similarly situated,
`
`Plaintiff,
`
`1:20-cv-08512
`
`- against -
`
`Class Action Complaint
`
`Froneri US, Inc.,
`
`
`
`Defendant
`
`
`
`Plaintiff by attorneys allege upon information and belief, except for allegations pertaining
`
`to plaintiff, which are based on personal knowledge:
`
`1.
`
`Froneri US, Inc. (“defendant”) manufactures, distributes, markets, labels and sells
`
`vanilla ice cream bars purporting to be dipped in milk chocolate and covered with almonds and
`
`toffee under the Häagen-Dazs brand (“Product”).
`
`2.
`
`The Product is available to consumers from retail and online stores of third-parties
`
`and is sold in 3 OZ bars, individually and in packages of three.
`
`3.
`
`The relevant front label representations include “Häagen-Dazs,” “Coffee Almond
`
`Crunch Ice Cream Bars,” “”Coffee Ice Cream Dipped in Rich Milk Chocolate, Almonds and
`
`Toffee” and an image of the Product.
`
`1
`
`
`
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Telephone: (516) 268-7080
`Fax: (516) 234-7800
`
`United States District Court
`Southern District of New York
`
`
`
`
`
`
`
`
`Lauren Yu, individually and on behalf of all
`others similarly situated,
`
`Plaintiff,
`
`1:20-cv-08512
`
`- against -
`
`Class Action Complaint
`
`Froneri US, Inc.,
`
`
`
`Defendant
`
`
`
`Plaintiff by attorneys allege upon information and belief, except for allegations pertaining
`
`to plaintiff, which are based on personal knowledge:
`
`1.
`
`Froneri US, Inc. (“defendant”) manufactures, distributes, markets, labels and sells
`
`vanilla ice cream bars purporting to be dipped in milk chocolate and covered with almonds and
`
`toffee under the Häagen-Dazs brand (“Product”).
`
`2.
`
`The Product is available to consumers from retail and online stores of third-parties
`
`and is sold in 3 OZ bars, individually and in packages of three.
`
`3.
`
`The relevant front label representations include “Häagen-Dazs,” “Coffee Almond
`
`Crunch Ice Cream Bars,” “”Coffee Ice Cream Dipped in Rich Milk Chocolate, Almonds and
`
`Toffee” and an image of the Product.
`
`1
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 2 of 13
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`
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`4.
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`The unqualified, prominent and conspicuous representation that the Product
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`contains, and is dipped in “milk chocolate” is false, deceptive and misleading because the
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`purported chocolate contains ingredients consumers do not expect in chocolate – vegetable oils.
`
`5.
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`Chocolate is made from cacao beans, which are not consumed by themselves – they
`
`are subject to fermentation, drying and roasting, which produces cacao nibs.
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`6.
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`The nibs are then ground to produce cocoa mass or chocolate liquor, which is
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`separated into components of cocoa solids and cocoa butter.
`
`7.
`
`Consumers want chocolate in chocolate products to come from a real source, i.e.,
`
`2
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 3 of 13
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`from cacao beans.
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`8.
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`Chocolate (from cacao beans) provides greater satiety and a creamy and smooth
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`mouthfeel compared to other ingredients which substitute for chocolate, like vegetable oils, that
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`provide less satiety, a waxy and oily mouthfeel and leave an aftertaste.
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`9.
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`From the time chocolate was first made, companies have adulterated chocolate
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`products with synthetics and substitutes such as cheaper, lower quality vegetable oils.
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`10. Congress directed the Food and Drug Administration (“FDA”) to establish standards
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`and rules to combat the marketing of foods from which traditional constituents are removed or
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`new or different (often cheaper and artificial) ingredients are substituted.
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`11.
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`In terms of chocolate products, this entails the substitution of more valuable
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`ingredients like cacao fat and replacement with less valuable, lower quality ingredients like
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`vegetable oils.
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`12. Chocolate has specific labeling requirements because it is uniquely vulnerable to
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`being adulterated, one of the most popular and one of most costly foods.
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`13. The chocolate standards have been in place for over fifty (50) years, and companies’
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`adherence to these regulations have benefitted consumers who otherwise would not be able to rely
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`on a product’s representations.
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`14. Regulations regarding chocolate effectively establish custom and practice in the
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`industry so that consumers’ experience with that custom and practice primes them to infer from a
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`product’s labeling whether a product contains chocolate or is a chocolate mixture (compound)
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`which contains vegetable oils.
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`15. Over ten years ago in response to a proposal to modify the chocolate standards to
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`allow vegetable oils, industry leader Mars Wrigley was adamant in its opposition, because it
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`3
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 4 of 13
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`recognized what consumers wanted:
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`At Mars, the consumer is our boss, and American consumers are passionate about
`chocolate. They don’t want anyone to change the chocolate they’ve enjoyed for
`generations…As a privately held company, we have the freedom to invest in the
`highest quality chocolate and deliver what consumers want.1
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`16. For example, the optional ingredients in milk chocolate include cacao fat, nutritive
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`carbohydrate sweeteners, spices, natural and artificial flavorings, dairy ingredients and
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`emulsifying agents but not vegetable oils. 21 C.F.R. § 163.124(b).
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`17. Since the Product’s front label represents the Product contains “rich milk chocolate”
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`without qualification, consumers expect that it only has chocolate ingredients, when this is not
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`accurate.
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`18. This conclusion is consistent with a consumer survey indicating consumers
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`understand the Product’s representations, viz, “rich milk chocolate” to refer to a chocolate product
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`which contains cacao ingredients and not vegetable oils or fats.
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`19. However, the representation of “rich milk chocolate” is misleading and at best, a
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`“half-truth,” because the chocolate part of the Product contains ingredients not found in real
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`chocolate – “COCONUT OIL.”
`
`INGREDIENTS: COFFEE ICE CREAM: CREAM, SKIM MILK,
`SUGAR, EGG YOLKS, COFFEE. MILK CHOCOLATE AND
`VEGETABLE OIL COATING WITH ALMONDS AND TOFFEE:
`MILK CHOCOLATE
`(SUGAR, WHOLE MILK POWDER,
`CHOCOLATE, COCOA BUTTER, SOY LECITHIN, VANILLA
`EXTRACT), COCONUT OIL, ALMONDS ROASTED IN VEGETABLE
`
`
`
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`1 Mars US Announces Support for Current Chocolate Standard of Identity, Press Release, September 17, 2007.
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`4
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 5 of 13
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`OIL (ALMONDS, SAFFLOWER OIL), TOFFEE (CORN SYRUP,
`SUGAR, BUTTER [CREAM, SALT], BROWN SUGAR, ALMONDS,
`BAKING SODA, SOY LECITHIN, SALT).
`
`20. The Product does not designate the chocolate as “milk chocolate and vegetable oil
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`coating” on the front label, which would tell consumers what they are buying. See 21 C.F.R. §
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`163.155(c) (“Alternatively, the common or usual name of the vegetable derived fat ingredient may
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`be used in the name of the food, e.g., “milk chocolate and ___ oil coating”, the blank being filled
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`in with the common or usual name of the specific vegetable fat used.”).
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`21. Consumers do not expect to have to resort to the fine print on a product’s ingredient
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`list to find information they are accustomed to seeing on the front label.
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`22. 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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`23. 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
`
`plaintiff.
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`24. 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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`25. 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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`26. 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 $5.99 for three 3 OZ bars, excluding tax, compared to other
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`similar products represented in a non-misleading way.
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`Jurisdiction and Venue
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`27.
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`Jurisdiction is proper pursuant to 28 U.S.C. § 1332(d)(2) (Class Action Fairness Act
`
`5
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 6 of 13
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`of 2005 or “CAFA”).
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`28. 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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`29. Plaintiff Lauren Yu is a citizen of New York.
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`30. Defendant Froneri US, Inc. is a Delaware corporation with a principal place of
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`business in Oakland, Alameda County, California and therefore is a citizen of California.
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`31. “Minimal diversity” exists because plaintiff and defendant are citizens of different
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`states.
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`32. 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, viz, the purchase of the Product and the misleading
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`representations relied upon by plaintiff.
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`33. 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.
`
`Parties
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`34. Plaintiff Lauren Yu is a citizen of New York, New York County, New York.
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`35. Defendant Froneri US, Inc. is a Delaware corporation with a principal place of
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`business in Oakland, California, Alameda County.
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`36. Defendant operates over five hundred high-end grocery stores, which sells high-
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`value groceries.
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`37. During the relevant statutes of limitations, plaintiff purchased the Product within her
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`district and/or State for personal consumption and/or use in reliance on the representations the
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`Product contained milk chocolate, understood as not containing vegetable oils.
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`38. Plaintiff Lauren Yu purchased the Product at stores including Key Food, 52 Avenue
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`6
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 7 of 13
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`A, New York, NY 10009 and Rite Aid, 81 1st Avenue, New York, NY 10003, during May, June
`
`and July of 2020, among other instances.
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`39. Plaintiff bought the Product because she liked the product type for its intended use
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`and expected it would only contain a chocolate coating, because that is what the front label said
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`and because chocolate is understood by consumers to not contain vegetable oils.
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`40. Plaintiff would buy the Product again if assured it did not contain vegetable oils and
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`was real chocolate.
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`Class Allegations
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`41. 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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`42. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`43. 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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`44. 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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`45. Plaintiff is an adequate representatives because her interests do not conflict with
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`other members.
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`46. 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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`47.
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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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`48. Plaintiff's counsel is competent and experienced in complex class action litigation
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`7
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 8 of 13
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`and intends to adequately and fairly protect class members’ interests.
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`49. 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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`50. Plaintiff incorporates by reference all preceding paragraphs.
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`51. 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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`52. 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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`53. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Product.
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`54. The presence of chocolate – understood as excluding vegetable oils and vegetable
`
`fats – has a material bearing on price or consumer acceptance of the Product because chocolate
`
`provides greater satiety and a creamy and smooth mouthfeel compared to vegetable oils, which
`
`provide less satiety, a waxy and oily mouthfeel and leave an aftertaste. The amount and proportion
`
`of the characterizing component, chocolate, and the exclusion of vegetable oils, has a material
`
`bearing on price or consumer acceptance of the Product because consumers are willing to pay more
`
`for them.
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`55. Plaintiff relied on the statements, omissions and representations of defendant, and
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`defendant knew or should have known the falsity of same.
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`56. 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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`8
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 9 of 13
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`Negligent Misrepresentation
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`57. Plaintiff incorporates by reference all preceding paragraphs.
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`58. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Product.
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`59. The presence of chocolate – understood as excluding vegetable oils and vegetable
`
`fats – has a material bearing on price or consumer acceptance of the Product because chocolate
`
`provides greater satiety and a creamy and smooth mouthfeel compared to vegetable oils, which
`
`provide less satiety, a waxy and oily mouthfeel and leave an aftertaste. The amount and proportion
`
`of the characterizing component, chocolate, and the exclusion of vegetable oils, has a material
`
`bearing on price or consumer acceptance of the Product because consumers are willing to pay more
`
`for them.
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`60. 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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`61. 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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`62. 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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`63. 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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`64. 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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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 10 of 13
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`Breaches of Express Warranty, Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`65. Plaintiff incorporates by reference all preceding paragraphs.
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`66. 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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`67. The presence of chocolate – understood as excluding vegetable oils and vegetable
`
`fats – has a material bearing on price or consumer acceptance of the Product because chocolate
`
`provides greater satiety and a creamy and smooth mouthfeel compared to vegetable oils, which
`
`provide less satiety, a waxy and oily mouthfeel and leave an aftertaste. The amount and proportion
`
`of the characterizing component, chocolate, and the exclusion of vegetable oils, has a material
`
`bearing on price or consumer acceptance of the Product because consumers are willing to pay more
`
`for them.
`
`68. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
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`69. 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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`70. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`71. 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, of the type described here.
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`72. 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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`10
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 11 of 13
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`73. 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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`74. Plaintiff incorporates by reference all preceding paragraphs.
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`75. The presence of chocolate – understood as excluding vegetable oils and vegetable
`
`fats – has a material bearing on price or consumer acceptance of the Product because chocolate
`
`provides greater satiety and a creamy and smooth mouthfeel compared to vegetable oils, which
`
`provide less satiety, a waxy and oily mouthfeel and leave an aftertaste. The amount and proportion
`
`of the characterizing component, chocolate, and the exclusion of vegetable oils, has a material
`
`bearing on price or consumer acceptance of the Product because consumers are willing to pay more
`
`for them.
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`76. Defendant’s fraudulent intent is evinced by its failure to accurately identify the
`
`Product on the front label and ingredient list, when it knew its statements were neither true nor
`
`accurate and misled consumers.
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`77. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
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`78. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
`
`79. Defendant obtained benefits and monies because the Product was not as represented
`
`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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`11
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 12 of 13
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
`
`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: October 13, 2020
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`12
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`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
`
`
`
`
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`Case 1:20-cv-08512 Document 1 Filed 10/13/20 Page 13 of 13
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`1:20-cv-08512
`United States District Court
`Southern District of New York
`
`
`Lauren Yu, individually and on behalf of all others similarly situated,
`
`
`
`
`
` - against -
`
`
`Froneri US, Inc.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`Plaintiff,
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` Defendant
`
`Class Action Complaint
`
`
`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`
`
`
`
`
`
`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: October 13, 2020
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` /s/ Spencer Sheehan
` Spencer Sheehan
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`
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