`
`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`(516) 260-7080
`
`United States District Court
`Southern District of New York
`
`
`
`
`
`
`Hawa Kamara, individually and on behalf of
`all others similarly situated,
`
`Plaintiff,
`
`1:20-cv-09012
`
`- against -
`
`Class Action Complaint
`
`Pepperidge Farm, Incorporated,
`
`Defendant
`
`
`
`
`
`Plaintiff by attorneys allege upon information and belief, except for allegations pertaining
`
`to plaintiff, which are based on personal knowledge:
`
`1.
`
`Pepperidge Farm, Incorporated (“defendant”) manufactures, distributes, markets,
`
`labels and sells crackers purported to be made only with butter as a shortening ingredient under its
`
`Pepperidge Farm brand (“Product”).
`
`2.
`
`The Product is available to consumers from retail and online stores of third-parties
`
`and is sold in sizes including boxes of 9.75 OZ and the crackers are prominently and exclusively
`
`identified and described as “Golden Butter – Crackers [lower left corner]” and “distinctively
`
`delicious crackers.”
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 2 of 11
`
`
`
`3.
`
`Consumers prefer butter to chemically produced “vegetable” oils when baking for
`
`reasons including taste, health and avoidance of highly processed artificial substitutes for butter.
`
`4.
`
`Butter costs more than vegetable oil alternatives, like soybean, palm or canola oil.
`
`5. Where a food is labeled “Butter ____________” or uses the word “butter” in
`
`conjunction with its name, reasonable consumers will expect all of its shortening ingredient to be
`
`2
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 3 of 11
`
`butter.1
`
`6.
`
`The representations as “All Butter Loaf Cake” are misleading because butter is not
`
`the sole shortening ingredient in the Product, as shown by the small print of the ingredient list.
`
`
`
`MADE FROM: ENRICHED WHEAT FLOUR (FLOUR, NIACIN,
`REDUCED IRON, THIAMINE MONONITRATE, RIBOFLAVIN, FOLIC
`ACID), BUTTER (MILK), VEGETABLE OILS (CANOLA, SUNFLOWER
`AND/OR SOYBEAN), SUGAR, INVERT SYRUP, CONTAINS 2% OR
`LESS OF: SALT, MALTED BARLEY FLOUR, BAKING SODA,
`MONOCALCIUM PHOSPHATE
`
`7.
`
`Though the Product contains butter, it also contains vegetable oils, as shortening
`
`ingredients.
`
`8. Defendant’s branding and packaging of the Product is designed to – and does –
`
`deceive, mislead, and defraud plaintiff and consumers.
`
`9. Defendant sold more of the Product and at higher prices than it would have in the
`
`absence of this misconduct, resulting in additional profits at the expense of consumers like
`
`
`1 Compliance Policy Guide (“CPG”), Sec 505.200, “Butter” Featured in Product Name, Center for Food Safety and
`Applied Nutrition, Office of Regulatory Affairs, March 1988 (“If the product contains both butter and shortening but
`a sufficient amount of butter to give a characteristic butter flavor to the product, an appropriate name would be ‘butter
`flavored ____________’… if the product contains any artificial butter flavor it would have to be labeled in compliance
`with 21 CFR 101.22(i)(2).”).
`
`3
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 4 of 11
`
`plaintiff.
`
`10. The value of the Product that plaintiff purchased and consumed was materially less
`
`than its value as represented by defendant.
`
`11. Had plaintiff and class members known the truth, they would not have bought the
`
`Product or would have paid less for them.
`
`12. As a result of the false and misleading labeling, the Product is an sold at a premium
`
`price, approximately no less than $2.64 for 9.75 OZ, excluding tax, compared to other similar
`
`products represented in a non-misleading way, and higher than the price of the Product if it were
`
`represented in a non-misleading way.
`
`Jurisdiction and Venue
`
`13.
`
`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2)
`
`14. Under CAFA, district courts have “original federal jurisdiction over class actions
`
`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal
`
`diversity[.]” Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
`
`15. Plaintiff Hawa Kamara is a citizen of New York.
`
`16. Defendant Pepperidge Farm, Incorporated, is a Connecticut corporation with a
`
`principal place of business in Norwalk, Fairfield County, Connecticut and is a citizen of
`
`Connecticut.
`
`17. “Minimal diversity” exists because plaintiff Hawa Kamara and defendant are citizens
`
`of different states.
`
`18. Upon information and belief, sales of the Product in New York exceed $5 million
`
`per year, exclusive of interest and costs.
`
`4
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 5 of 11
`
`19. Venue is proper in this judicial district because a substantial part of the events or
`
`omissions giving rise to the claim occurred in this District, viz, the decision of plaintiff to purchase
`
`the Product and the misleading representations and/or their recognition as such.
`
`20. This court has personal jurisdiction over defendant because it conducts and transacts
`
`business, contracts to supply and supplies goods within New York.
`
`Parties
`
`21. Plaintiff Hawa Kamara is a citizen of Bronx, Bronx County, New York.
`
`22. Defendant Pepperidge Farm, Incorporated is a Connecticut corporation with a
`
`principal place of business in Norwalk, Connecticut, Fairfield County and is a citizen of
`
`Connecticut.
`
`23. During the relevant statutes of limitations, plaintiff purchased the Product within her
`
`district and/or State for personal and household consumption and/or use in reliance on the
`
`representations of the Product.
`
`24. Plaintiff Hawa Kamara purchased the Product on one or more occasions, during the
`
`relevant period, including 2019 and 2020, at stores including but not necessarily limited to, Target,
`
`112 W 34th St, New York, NY 10120, and among other times, purchased the Product between
`
`June and October 2020.
`
`25. Plaintiff bought the Product at or exceeding the above-referenced price because she
`
`liked the product for its intended use, and expected it to contain only butter as a shortening
`
`ingredient due to the product name and description prominently displayed on the front label.
`
`26. Plaintiff was deceived by and relied upon the Product's deceptive labeling.
`
`27. Plaintiff would not have purchased the Product in the absence of Defendant’s
`
`misrepresentations and omissions.
`
`28. The Product was worth less than what Plaintiff paid for it and she would not have
`
`5
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 6 of 11
`
`paid as much absent Defendant's false and misleading statements and omissions.
`
`29. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
`
`with the assurance that Product's labels are consistent with the Product’s components.
`
`Class Allegations
`
`30. The class will consist of all purchasers of the Product who reside in New York during
`
`the applicable statutes of limitations.
`
`31. Plaintiff will seek class-wide injunctive relief based on Rule 23(b) in addition to
`
`monetary relief class.
`
`32. Common questions of law or fact predominate and include whether defendant’s
`
`representations were and are misleading and if plaintiff and class members are entitled to damages.
`
`33. Plaintiff's claims and basis for relief are typical to other members because all were
`
`subjected to the same unfair and deceptive representations and actions.
`
`34. Plaintiff is an adequate representatives because her interests do not conflict with
`
`other members.
`
`35. No individual inquiry is necessary since the focus is only on defendant’s practices
`
`and the class is definable and ascertainable.
`
`36.
`
`Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
`
`37. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
`
`38. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`6
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 7 of 11
`
`New York General Business Law (“GBL”), §§ 349 & 350
`(Consumer Protection Statutes)
`
`39. Plaintiff incorporates by reference all preceding paragraphs.
`
`40. Plaintiff and class members desired to purchase and consume products which were
`
`as described and marketed by defendant and expected by reasonable consumers, given the product
`
`type.
`
`41. Defendant’s acts and omissions are not unique to the parties and have a broader
`
`impact on the public.
`
`42. Defendant misrepresented
`
`the substantive, quality, compositional and/or
`
`environmental attributes of the Product.
`
`43. Plaintiff relied on the statements, omissions and representations of defendant, and
`
`defendant knew or should have known the falsity of same.
`
`44. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Negligent Misrepresentation
`
`45. Plaintiff incorporates by reference all preceding paragraphs.
`
`46. Defendant misrepresented
`
`the substantive, quality, compositional and/or
`
`environmental attributes of the Product.
`
`47. Defendant had a duty to disclose and/or provide non-deceptive marketing of the
`
`Product and knew or should have known same were false or misleading.
`
`48. This duty is based on defendant’s position as an entity which has held itself out as
`
`having special knowledge and experience in the production, service and/or sale of the product type.
`
`49. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`point-of-sale and their trust in defendant, a well-known and respected brand or entity in this sector.
`
`7
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 8 of 11
`
`50. Plaintiff and class members reasonably and justifiably relied on these negligent
`
`misrepresentations and omissions, which served to induce and did induce, the purchase of the
`
`Product.
`
`51. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Breaches of Express Warranty, Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`52. Plaintiff incorporates by reference all preceding paragraphs.
`
`53. The Product was manufactured, labeled and sold by defendant or at its express
`
`directions and instructions, and warranted to plaintiff and class members that they possessed
`
`substantive, quality, compositional and/or environmental which they did not.
`
`54. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
`
`55. This duty is based, in part, on defendant’s position as one of the most recognized
`
`companies in the nation in this sector.
`
`56. Plaintiff provided or will provide notice to defendant, its agents, representatives,
`
`retailers and their employees.
`
`57. Defendant received notice and should have been aware of these misrepresentations
`
`due to numerous complaints by consumers to its main office over the past several years regarding
`
`the Product and issues described here.
`
`58. The Product did not conform to its affirmations of fact and promises due to
`
`defendant’s actions and were not merchantable.
`
`59. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`8
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 9 of 11
`
`Fraud
`
`60. Plaintiff incorporates by reference all preceding paragraphs.
`
`61. Defendant misrepresented
`
`the substantive, quality, compositional and/or
`
`environmental attributes of the Product.
`
`62. 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.
`
`63. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`64. Plaintiff incorporates by reference all preceding paragraphs.
`
`Unjust Enrichment
`
`65. 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
`
`restitution and disgorgement of inequitably obtained profits.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jury Demand and Prayer for Relief
`
`Plaintiff demands a jury trial on all issues.
`
` WHEREFORE, Plaintiff prays for judgment:
`
`1. Declaring this a proper class action, certifying plaintiff as representative and the
`
`undersigned as counsel for the class;
`
`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
`
`challenged practices to comply with the law;
`
`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
`
`representations, and restitution and disgorgement for members of the class pursuant to the
`
`9
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 10 of 11
`
`applicable laws;
`
`4. Awarding monetary damages and interest pursuant to the common law and other statutory
`
`claims;
`
`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
`
`experts; and
`
`6. Other and further relief as the Court deems just and proper.
`
`Dated: October 28, 2020
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 260-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
`
`
`
`10
`
`
`
`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 11 of 11
`
`1:20-cv-09012
`United States District Court
`Southern District of New York
`
`
`Hawa Kamara, individually and on behalf of all others similarly situated,
`
`
`
`
`
` - against -
`
`
`Pepperidge Farm, Incorporated,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Defendant
`
`Class Action Complaint
`
`
`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 260-7080
`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.
`
`Dated: October 28, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /s/ Spencer Sheehan
` Spencer Sheehan
`
`
`
`
`
`