Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 1 of 11
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`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`(516) 260-7080
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`United States District Court
`Southern District of New York
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`Hawa Kamara, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`1:20-cv-09012
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`- against -
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`Class Action Complaint
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`Pepperidge Farm, Incorporated,
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`Defendant
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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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`Pepperidge Farm, Incorporated (“defendant”) manufactures, distributes, markets,
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`labels and sells crackers purported to be made only with butter as a shortening ingredient under its
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`Pepperidge Farm brand (“Product”).
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`2.
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`The Product is available to consumers from retail and online stores of third-parties
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`and is sold in sizes including boxes of 9.75 OZ and the crackers are prominently and exclusively
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`identified and described as “Golden Butter – Crackers [lower left corner]” and “distinctively
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`delicious crackers.”
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`
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`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:
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`1.
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`Pepperidge Farm, Incorporated (“defendant”) manufactures, distributes, markets,
`
`labels and sells crackers purported to be made only with butter as a shortening ingredient under its
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`Pepperidge Farm brand (“Product”).
`
`2.
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`The Product is available to consumers from retail and online stores of third-parties
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`and is sold in sizes including boxes of 9.75 OZ and the crackers are prominently and exclusively
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`identified and described as “Golden Butter – Crackers [lower left corner]” and “distinctively
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`delicious crackers.”
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 2 of 11
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`3.
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`Consumers prefer butter to chemically produced “vegetable” oils when baking for
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`reasons including taste, health and avoidance of highly processed artificial substitutes for butter.
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`4.
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`Butter costs more than vegetable oil alternatives, like soybean, palm or canola oil.
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`5. Where a food is labeled “Butter ____________” or uses the word “butter” in
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`conjunction with its name, reasonable consumers will expect all of its shortening ingredient to be
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`2
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 3 of 11
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`butter.1
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`6.
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`The representations as “All Butter Loaf Cake” are misleading because butter is not
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`the sole shortening ingredient in the Product, as shown by the small print of the ingredient list.
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`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
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`7.
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`Though the Product contains butter, it also contains vegetable oils, as shortening
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`ingredients.
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`8. 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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`9. 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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`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).”).
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`3
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 4 of 11
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`plaintiff.
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`10. 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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`11. 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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`12. As a result of the false and misleading labeling, the Product is an sold at a premium
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`price, approximately no less than $2.64 for 9.75 OZ, excluding tax, compared to other similar
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`products represented in a non-misleading way, and higher than the price of the Product if it were
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`represented in a non-misleading way.
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`Jurisdiction and Venue
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`13.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2)
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`14. 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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`15. Plaintiff Hawa Kamara is a citizen of New York.
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`16. Defendant Pepperidge Farm, Incorporated, is a Connecticut corporation with a
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`principal place of business in Norwalk, Fairfield County, Connecticut and is a citizen of
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`Connecticut.
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`17. “Minimal diversity” exists because plaintiff Hawa Kamara and defendant are citizens
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`of different states.
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`18. Upon information and belief, sales of the Product in New York exceed $5 million
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`per year, exclusive of interest and costs.
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 5 of 11
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`19. 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 decision of plaintiff to purchase
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`the Product and the misleading representations and/or their recognition as such.
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`20. 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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`Parties
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`21. Plaintiff Hawa Kamara is a citizen of Bronx, Bronx County, New York.
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`22. Defendant Pepperidge Farm, Incorporated is a Connecticut corporation with a
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`principal place of business in Norwalk, Connecticut, Fairfield County and is a citizen of
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`Connecticut.
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`23. During the relevant statutes of limitations, plaintiff purchased the Product within her
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`district and/or State for personal and household consumption and/or use in reliance on the
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`representations of the Product.
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`24. Plaintiff Hawa Kamara purchased the Product on one or more occasions, during the
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`relevant period, including 2019 and 2020, at stores including but not necessarily limited to, Target,
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`112 W 34th St, New York, NY 10120, and among other times, purchased the Product between
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`June and October 2020.
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`25. Plaintiff bought the Product at or exceeding the above-referenced price because she
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`liked the product for its intended use, and expected it to contain only butter as a shortening
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`ingredient due to the product name and description prominently displayed on the front label.
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`26. Plaintiff was deceived by and relied upon the Product's deceptive labeling.
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`27. Plaintiff would not have purchased the Product in the absence of Defendant’s
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`misrepresentations and omissions.
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`28. The Product was worth less than what Plaintiff paid for it and she would not have
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 6 of 11
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`paid as much absent Defendant's false and misleading statements and omissions.
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`29. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance that Product's labels are consistent with the Product’s components.
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`Class Allegations
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`30. 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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`31. 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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`32. 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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`33. 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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`34. Plaintiff is an adequate representatives because her interests do not conflict with
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`other members.
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`35. 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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`36.
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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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`37. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`38. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 7 of 11
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`New York General Business Law (“GBL”), §§ 349 & 350
`(Consumer Protection Statutes)
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`39. Plaintiff incorporates by reference all preceding paragraphs.
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`40. 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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`41. 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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`42. Defendant misrepresented
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`the substantive, quality, compositional and/or
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`environmental attributes of the Product.
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`43. 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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`44. 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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`45. Plaintiff incorporates by reference all preceding paragraphs.
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`46. Defendant misrepresented
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`the substantive, quality, compositional and/or
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`environmental attributes of the Product.
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`47. 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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`48. 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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`49. 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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`7
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 8 of 11
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`50. 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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`51. 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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`52. Plaintiff incorporates by reference all preceding paragraphs.
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`53. The Product was manufactured, labeled and sold by defendant or at its express
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`directions and instructions, and warranted to plaintiff and class members that they possessed
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`substantive, quality, compositional and/or environmental which they did not.
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`54. 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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`55. 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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`56. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`57. 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 and issues described here.
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`58. 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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`59. 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-09012-PKC Document 1 Filed 10/28/20 Page 9 of 11
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`Fraud
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`60. Plaintiff incorporates by reference all preceding paragraphs.
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`61. Defendant misrepresented
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`the substantive, quality, compositional and/or
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`environmental attributes of the Product.
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`62. 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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`63. 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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`64. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
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`65. 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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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 10 of 11
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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: October 28, 2020
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`Respectfully submitted,
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`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
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`Case 1:20-cv-09012-PKC Document 1 Filed 10/28/20 Page 11 of 11
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`1:20-cv-09012
`United States District Court
`Southern District of New York
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`Hawa Kamara, individually and on behalf of all others similarly situated,
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` - against -
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`Pepperidge Farm, Incorporated,
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`Plaintiff,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 260-7080
`Fax: (516) 234-7800
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`
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`
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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: October 28, 2020
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` /s/ Spencer Sheehan
` Spencer Sheehan
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