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Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 1 of 15
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`MANHATTAN
`
`Christopher Leonard, individually and on
`behalf of all others similarly situated,
`
`1:21-cv-10102
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Mondelēz Global LLC,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1. Mondelēz Global LLC (“Defendant”) manufactures, labels, markets, and sells
`
`chocolate sandwich cookies containing mint creme identified as “Fudge Covered,” under the Oreo
`
`brand (“Product”).
`
`
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 2 of 15
`
`I.
`
`DEFINITIONS OF FUDGE
`
`2.
`
`3.
`
`Fudge “is a type of sugar candy that is made by mixing sugar, butter and milk.”1
`
`Though fudge can have any flavor, milkfat is the central component.
`
`4. An 1893 recipe for fudge called for “Four cups granulated sugar; one cup cream; one
`
`cup water; one-half cake chocolate; one-half Cup butter.”2
`
`5.
`
`In 1896, The Los Angeles Times published the original fudge recipe by the Vassar
`
`students credited with first making fudge: “Two cups of sugar, one cup of milk, a piece of butter
`
`one-half the size of an egg” and added flavoring.3
`
`6. A 1902 fudge recipe from Mrs. Rorer's New Cook Book includes:4
`
`4 ounces of chocolate
`2 cups of sugar
`1 teaspoonful of vanilla
`1/2 cup of milk
`1 rounding tablespoonful of butter
`
`7. Molly Mills, one of today’s leading authorities on fudge, recently described it as
`
`made “most commonly from butter, milk, sugar, and chocolate.”5
`
`8.
`
`The Oxford Companion to Sugar and Sweets notes that:
`
`Traditionally, fudge is made by gently boiling granulated sugar
`and milk to the soft-ball stage (234° to 240°F/ 112° to 115°C);
`adding butter; cooling the mixture somewhat (120°F/49°C);
`then beating until thick, creamy, and less glossy.6
`
`
`1 Wikipedia contributors. "Fudge." Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 5 Jan.
`2021. Web. 8 Jan. 2021.
`2 Mrs. J. Montgomery Smith, of Wisconsin, Alternate Lady Manager.
`3 Los Angeles Times, “‘Fudges’ Are Vassar Chocolates,” May 11, 1896, p.2.
`4 Sarah Tyson Rorer [Arnold and Company: Philadelphia] 1902, p. 629.
`5 Molly Mills, Come Get Your Fudge: 40 Tasty and Creative Fudge Recipes for Everyone, Amazon Digital Services
`LLC, June 11, 2019.
`6 Goldstein, Darra, and Sidney Mintz. The Oxford companion to sugar and sweets. Oxford University Press, 2015.
`
`2
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 3 of 15
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`9. An A-Z of Food and Drink, an authoritative treatise, describes fudge as “a sort of
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`soft, somewhat toffee-like sweet made by boiling together sugar, butter, and milk.”7
`
`10. A leading textbook on confectionary science and technology offers a model
`
`commercial formulation for fudge which includes between eight and sixteen percent butter and
`
`between twelve and twenty percent sweetened condensed milk.
`
`11. Dictionaries confirm the definitions held by confectionery experts.
`
`12. Google Dictionary – based on its leading search engine that discovers the most
`
`relevant and accurate information – defines fudge as “a soft candy made from sugar, butter, and
`
`
`
`milk or cream.”8
`
`13. The Cambridge Dictionary defines fudge as “a soft sweet made from sugar, butter,
`
`and milk.”9
`
`14. Collins Dictionary defines fudge as “a soft brown candy that is made from butter,
`
`cream, and sugar.”10
`
`
`7 John Ayto, An A-Z of Food and Drink, Oxford University Press, 2002, p. 133.
`8 Fudge definition – Google search.
`9 Cambridge Dictionary, fudge.
`10 Collins Dictionary, fudge.
`
`3
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`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 4 of 15
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`15. Dictionary.com defines fudge as “a soft candy made of sugar, butter, milk, chocolate,
`
`and sometimes nuts.”11
`
`16. Macmillan Dictionary defines fudge as a “soft brown sweet food made from sugar,
`
`butter, and milk or cream.”12
`
`II. FAT INGREDIENTS ARE ESSENTIAL TO FUDGE, REGARDLESS OF FORM
`
`17. The quality of fudge depends on the amount and type of fat-contributing
`
`ingredients.13
`
`18. The small droplets of fat are dispersed throughout the fudge mass, providing
`
`lubricity, and imparting desirable flavor release.14
`
`19. The fat ingredients are typically from dairy and based on milk fat, mainly added
`
`through butter (80% milkfat).
`
`20. Other dairy ingredients like milk and milk derivatives may be added as well.
`
`21. Dairy ingredients impart a creamy, rich taste and texture to fudge, because milkfat
`
`contains hundreds of lactones, aroma compounds which contribute to its taste.
`
`22. Milk fat melts at mouth temperature (35 °C/95 °F) and does not contribute to a waxy
`
`sensation.
`
`23. Alternatives to milk fat, such as vegetable oils, are often used in place of dairy
`
`ingredients to reduce cost.
`
`24. These vegetable oil ingredients, like palm and palm kernel oil, are solid at room
`
`temperature, and referred to as “hard [vegetable] fats.”
`
`
`
`11 Dictionary.com, fudge.
`12 Macmillan Dictionary, fudge.
`13 International Dairy Federation, Bulletin, 1982.
`14 Hartel R.W., von Elbe J.H., Hofberger R. (2018) Caramel, Fudge and Toffee. In: Confectionery Science and
`Technology. Springer, Cham. https://doi.org/10.1007/978-3-319-61742-8_10
`
`4
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 5 of 15
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`25.
`
`In contrast to dairy ingredients with milk fat, vegetable oils do not melt at mouth
`
`temperature and leave a waxy mouthfeel.
`
`26. The result of substituting vegetable oils for dairy ingredients is that any resulting
`
`“fudge” will provide less satiety, a waxy and oily mouthfeel, and leave an aftertaste.
`
`27. One popular recipe website echoes the importance of dairy ingredients to fudge,
`
`advising, “When making fudge, be sure to use good quality butter and do not substitute margarine
`
`(vegetable oils),” since they contain more water and can prevent the fudge from setting up
`
`properly.15
`
`28. Another site cautions, “Look for recipes that call for butter instead of margarine
`
`(vegetable oils).”16
`
`29. One chef recommends to “Never use margarine (vegetable oils) instead of butter [in
`
`fudge], because your fudge won’t taste as good and will have a shorter shelf life.”
`
`30. Whether a product contains fudge and/or ingredients expected in fudge, is basic front
`
`label information consumers rely on when making quick decisions at the grocery store.
`
`31. The Product lacks essential fudge ingredients – dairy ingredients with milkfat – and
`
`substitutes lower quality and lower-priced palm and palm kernel oil and nonfat milk, shown the
`
`ingredient list.
`
`
`15 Use Real Butter For Making Best Fudge, RecipeTips.com.
`16 Easy Fudge Making Tips, The Happy Housewife.
`
`5
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 6 of 15
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`
`
`INGREDIENTS: SUGAR, PALM AND PALM KERNEL OIL,
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`UNBLEACHED ENRICHED FLOUR (WHEAT FLOUR, NIACIN,
`
`REDUCED IRON, THIAMINE MONONITRATE {VITAMIN B1},
`
`RIBOFLAVIN {VITAMIN B2}, FOLIC ACID), CANOLA OIL, COCOA
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`(PROCESSED WITH ALKALI), NONFAT MILK, COCOA, HIGH
`
`FRUCTOSE CORN SYRUP, LEAVENING (BAKING SODA AND/OR
`
`CALCIUM PHOSPHATE), SOY LECITHIN, SALT, PEPPERMINT OIL,
`
`CHOCOLATE, YELLOW 5 LAKE, BLUE 1 LAKE, ARTIFICIAL
`
`FLAVOR, NATURAL FLAVOR.
`
`32. Since the cookies, fudge and mint are not identified separately, the fudge ingredients
`
`are identified by comparing them against the regular Oreo ingredients.
`
`33. This comparison shows the fudge components are palm and palm kernel oil, nonfat
`
`milk, cocoa, and natural flavor, because these ingredients are not a part of the regular Oreo.
`
`34. Reasonable consumers are misled by the statements, “Fudge Covered Oreo – Mint
`
`Creme,” and the picture of the cookie being coated with what appears to be fudge, because they
`
`expect fudge to mean a food made of dairy ingredients containing milk fat.
`
`6
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`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 7 of 15
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`35. The Product does not contain such dairy ingredients because it contains nonfat milk
`
`and contains palm oils for its fat content.
`
`36. Fudge covered cookies made with fudge ingredients such as dairy components,
`
`containing milkfat, are not a rare or pricy delicacy that would make a reasonable consumer “double
`
`check” their presence by scouring the packaging.
`
`37. Fudge covered cookies made with fudge ingredients such as dairy components,
`
`containing milkfat exist in the marketplace and are not technologically or otherwise unfeasible to
`
`produce.
`
`38. The front label creates an erroneous impression that essential fudge ingredients are
`
`present.
`
`39. The fudge representation is in contrast to the truthful and non-misleading “Mint”
`
`representations, through words and picture of peppermint leaf, because the Product contains
`
`peppermint oil.
`
`40. The Product contains other representations which are misleading.
`
`41. Reasonable consumers must and do rely on a company to honestly identify and
`
`describe the components, attributes, and features of a product, relative to itself and other
`
`comparable products or alternatives.
`
`42. By labeling the Product in this manner, Defendant gained an advantage against other
`
`companies, and against consumers seeking to purchase a product that contained fudge ingredients
`
`such as dairy ingredients with milkfat.
`
`43. The value of the Product that plaintiff purchased was materially less than its value as
`
`represented by defendant.
`
`44. Defendant sold more of the Product and at higher prices than it would have in the
`
`7
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`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 8 of 15
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
`
`45. Had Plaintiff and proposed class members known the truth, they would not have
`
`bought the Product or would have paid less for it.
`
`46. The Product is sold for a price premium compared to other similar products, no less
`
`than approximately $3.99 for 9.9 oz (280 g), a higher price than it would otherwise be sold for,
`
`absent the misleading representations and omissions.
`
`Jurisdiction and Venue
`
`47.
`
`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2).
`
`48. The aggregate amount in controversy exceeds $5 million, including any statutory
`
`damages, exclusive of interest and costs.
`
`49. Plaintiff Christopher Leonard is a citizen of New York.
`
`50. Defendant Mondelēz Global LLC, is a Delaware limited liability company with a
`
`principal place of business in East Hanover, Morris County, New Jersey.
`
`51. Defendant’s managing member is Mondelēz International, Inc., a Virginia
`
`corporation with a principal place of business in New Jersey.
`
`52. Plaintiff and defendant’s managing member are citizens of different states.
`
`53. Defendant transacts business within this District through sale of the Product within
`
`this District, through its hundreds of stores within this State, and dozens within this District, and
`
`online, sold directly to residents of this District.
`
`54. Defendant transacts business within this district, through the marketing, supply, and
`
`sale of the Product products at thousands of locations, including convenience stores, grocery
`
`stores, drug stores, big box stores, warehouse clubs, and online directly to citizens of this district.
`
`8
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`

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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 9 of 15
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`55. Venue is in this District because plaintiff resides in this district and the actions giving
`
`rise to the claims occurred within this district.
`
`56. Venue is in the Manhattan Courthouse in this District because a substantial part of
`
`the events or omissions giving rise to the claim occurred in New York County, i.e., Plaintiff’s
`
`purchase of the Product and his awareness of the issues described here.
`
`Parties
`
`57. Plaintiff Christopher Leonard is a citizen of New York, New York County, New
`
`York.
`
`58. Defendant Mondelēz Global LLC, is a Delaware limited liability company with a
`
`principal place of business in East Hanover, New Jersey, Morris County.
`
`59. The forerunner of Mondelēz was the National Biscuit Company (“Nabisco”), formed
`
`in 1898 from a merger of over 100 bakeries.
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`60. Nabisco revolutionized packaged snacks through wrapping which maintained
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`freshness and kept out debris.
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`61. Nabisco introduced numerous staples of American pantries, including Oreos, Ritz
`
`crackers, Wheat Thins, Saltines, and Chips Ahoy.
`
`62. Nabisco was the second largest advertiser after tobacco companies for much of its
`
`history, which created a great reservoir of public trust.
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`63. Nabisco, and its successor, Defendant, emphasizes its commitment to quality
`
`products, labeled honestly.
`
`64. These facts show a company with a significant amount of goodwill and equity when
`
`it comes to consumer purchasing.
`
`65. Plaintiff purchased the Product on one or more occasions within the statutes of
`
`9
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 10 of 15
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`limitations for each cause of action alleged, at stores including Jack’s Stores, at locations such as
`
`223 W 40th St, New York, NY 10018, in 2020 and/or 2021, among other times.
`
`66. Plaintiff bought the Product because he expected it contained fudge ingredients such
`
`as dairy ingredients with milkfat because that is what the representations said and implied.
`
`67. Plaintiff relied on the words and images on the Product, on the labeling and/or claims
`
`made by Defendant in digital and/or social media.
`
`68. Plaintiff bought the Product at or exceeding the above-referenced price.
`
`69. Plaintiff would not have purchased the Product if he knew the representations and
`
`omissions were false and misleading or would have paid less for it.
`
`70. Plaintiff chose between Defendant’s Product and products represented similarly, but
`
`which did not misrepresent their attributes and/or lower-priced non-similar products which did not
`
`make the statements and claims made by Defendant.
`
`71. The Product was worth less than what Plaintiff paid and he would not have paid as
`
`much absent Defendant's false and misleading statements and omissions.
`
`72. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
`
`with the assurance that Product's representations are consistent with its abilities and/or
`
`composition.
`
`73. Plaintiff is unable to rely on the labeling of not only this Product, but other similar
`
`products, because he is unsure of whether their representations are truthful.
`
`Class Allegations
`
`74. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
`
`classes:
`
`New York Class: All persons in the State of New York who
`purchased the Product during the statutes of limitations for
`
`10
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 11 of 15
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`each cause of action alleged.
`
`Consumer Fraud Multi-State Class: All persons in the
`States of North Dakota, Kansas, and Wyoming, who
`purchased the Product during the statutes of limitations for
`each cause of action alleged
`
`75. 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.
`
`76. 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.
`
`77. Plaintiff is an adequate representative because his interests do not conflict with other
`
`members.
`
`78. No individual inquiry is necessary since the focus is only on defendant’s practices
`
`and the class is definable and ascertainable.
`
`79.
`
`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.
`
`80. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
`
`81. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`New York General Business Law (“GBL”) §§ 349 & 350
`
`(Consumer Protection Statute)
`
`82. Plaintiff incorporates by reference all preceding paragraphs.
`
`83. Plaintiff and class members desired to purchase a product that contained fudge
`
`ingredients such as dairy ingredients with milkfat.
`
`84. Defendant’s false and deceptive representations and omissions are material in that
`
`they are likely to influence consumer purchasing decisions.
`
`11
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 12 of 15
`
`85. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`86. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`87. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`88. Plaintiff relied on the representations that the Product contained fudge ingredients
`
`such as dairy ingredients with milkfat
`
`89.
`
` Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Violation of State Consumer Fraud Acts
`
`(On Behalf of the Consumer Fraud Multi-State Class)
`
`90. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class
`
`prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.
`
`91. Defendant intended that plaintiff and each of the other members of the Consumer
`
`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
`
`fact be misled by this deceptive conduct.
`
`92. As a result of defendant’s use or employment of artifice, unfair or deceptive acts or
`
`business practices, plaintiff, and each of the other members of the Consumer Fraud Multi-State
`
`Class, have sustained damages in an amount to be proven at trial.
`
`93.
`
`In addition, defendant’s conduct showed motive, and the reckless disregard of the
`
`truth such that an award of punitive damages is appropriate.
`
`12
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 13 of 15
`
`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`94. The Product was manufactured, identified, and sold by defendant and expressly and
`
`impliedly warranted to plaintiff and class members that it contained fudge ingredients such as dairy
`
`ingredients with milkfat.
`
`95. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
`
`96. This duty is based on Defendant’s outsized role in the market for this type of Product,
`
`a trusted snack producer, with a higher level of trust with consumers than other brands.
`
`97. Plaintiff provided or will provide notice to defendant, its agents, representatives,
`
`retailers, and their employees.
`
`98. Defendant received notice and should have been aware of these issues due to
`
`complaints by regulators, competitors, and consumers, to its main offices, and by consumers
`
`through online forums.
`
`99. The Product did not conform to its affirmations of fact and promises due to
`
`defendant’s actions and were not merchantable because it was not fit to pass in the trade as
`
`advertised.
`
`100. 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
`
`101. Defendant had a duty to truthfully represent the Product, which it breached.
`
`102. This duty is based on defendant’s position, holding itself out as having special
`
`knowledge and experience in this area, a trusted seller of snacks and part of Americana.
`
`103. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`13
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 14 of 15
`
`point-of-sale and their trust in defendant, one of the nation’s largest snack companies.
`
`104. Plaintiff and class members reasonably and justifiably relied on these negligent
`
`misrepresentations and omissions, which served to induce and did induce, their purchase of the
`
`Product.
`
`105. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Fraud
`
`106. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
`
`that it contained fudge ingredients such as dairy ingredients with milkfat.
`
`107. Moreover, the records Defendant is required to maintain, and/or the information
`
`inconspicuously disclosed to consumers, provide it with actual and/or constructive knowledge of
`
`the falsity of the representations.
`
`108. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
`
`consistent with its representations.
`
`Unjust Enrichment
`
`109. 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
`
`14
`
`

`

`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 15 of 15
`
`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
`
`applicable laws;
`
`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
`
`claims 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: November 28, 2021
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`
`15
`
`

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