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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`MANHATTAN
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`Christopher Leonard, individually and on
`behalf of all others similarly situated,
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`1:21-cv-10102
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`Plaintiff,
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`- against -
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`Class Action Complaint
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`Mondelēz Global LLC,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1. Mondelēz Global LLC (“Defendant”) manufactures, labels, markets, and sells
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`chocolate sandwich cookies containing mint creme identified as “Fudge Covered,” under the Oreo
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`brand (“Product”).
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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 2 of 15
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`I.
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`DEFINITIONS OF FUDGE
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`2.
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`3.
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`Fudge “is a type of sugar candy that is made by mixing sugar, butter and milk.”1
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`Though fudge can have any flavor, milkfat is the central component.
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`4. An 1893 recipe for fudge called for “Four cups granulated sugar; one cup cream; one
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`cup water; one-half cake chocolate; one-half Cup butter.”2
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`5.
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`In 1896, The Los Angeles Times published the original fudge recipe by the Vassar
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`students credited with first making fudge: “Two cups of sugar, one cup of milk, a piece of butter
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`one-half the size of an egg” and added flavoring.3
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`6. A 1902 fudge recipe from Mrs. Rorer's New Cook Book includes:4
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`4 ounces of chocolate
`2 cups of sugar
`1 teaspoonful of vanilla
`1/2 cup of milk
`1 rounding tablespoonful of butter
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`7. Molly Mills, one of today’s leading authorities on fudge, recently described it as
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`made “most commonly from butter, milk, sugar, and chocolate.”5
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`8.
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`The Oxford Companion to Sugar and Sweets notes that:
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`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
`
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`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.
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`2
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`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
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`10. A leading textbook on confectionary science and technology offers a model
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`commercial formulation for fudge which includes between eight and sixteen percent butter and
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`between twelve and twenty percent sweetened condensed milk.
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`11. Dictionaries confirm the definitions held by confectionery experts.
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`12. Google Dictionary – based on its leading search engine that discovers the most
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`relevant and accurate information – defines fudge as “a soft candy made from sugar, butter, and
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`milk or cream.”8
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`13. The Cambridge Dictionary defines fudge as “a soft sweet made from sugar, butter,
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`and milk.”9
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`14. Collins Dictionary defines fudge as “a soft brown candy that is made from butter,
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`cream, and sugar.”10
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`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.
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`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,
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`and sometimes nuts.”11
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`16. Macmillan Dictionary defines fudge as a “soft brown sweet food made from sugar,
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`butter, and milk or cream.”12
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`II. FAT INGREDIENTS ARE ESSENTIAL TO FUDGE, REGARDLESS OF FORM
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`17. The quality of fudge depends on the amount and type of fat-contributing
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`ingredients.13
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`18. The small droplets of fat are dispersed throughout the fudge mass, providing
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`lubricity, and imparting desirable flavor release.14
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`19. The fat ingredients are typically from dairy and based on milk fat, mainly added
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`through butter (80% milkfat).
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`20. Other dairy ingredients like milk and milk derivatives may be added as well.
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`21. Dairy ingredients impart a creamy, rich taste and texture to fudge, because milkfat
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`contains hundreds of lactones, aroma compounds which contribute to its taste.
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`22. Milk fat melts at mouth temperature (35 °C/95 °F) and does not contribute to a waxy
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`sensation.
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`23. Alternatives to milk fat, such as vegetable oils, are often used in place of dairy
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`ingredients to reduce cost.
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`24. These vegetable oil ingredients, like palm and palm kernel oil, are solid at room
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`temperature, and referred to as “hard [vegetable] fats.”
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`
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`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
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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 5 of 15
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`25.
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`In contrast to dairy ingredients with milk fat, vegetable oils do not melt at mouth
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`temperature and leave a waxy mouthfeel.
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`26. The result of substituting vegetable oils for dairy ingredients is that any resulting
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`“fudge” will provide less satiety, a waxy and oily mouthfeel, and leave an aftertaste.
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`27. One popular recipe website echoes the importance of dairy ingredients to fudge,
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`advising, “When making fudge, be sure to use good quality butter and do not substitute margarine
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`(vegetable oils),” since they contain more water and can prevent the fudge from setting up
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`properly.15
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`28. Another site cautions, “Look for recipes that call for butter instead of margarine
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`(vegetable oils).”16
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`29. One chef recommends to “Never use margarine (vegetable oils) instead of butter [in
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`fudge], because your fudge won’t taste as good and will have a shorter shelf life.”
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`30. Whether a product contains fudge and/or ingredients expected in fudge, is basic front
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`label information consumers rely on when making quick decisions at the grocery store.
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`31. The Product lacks essential fudge ingredients – dairy ingredients with milkfat – and
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`substitutes lower quality and lower-priced palm and palm kernel oil and nonfat milk, shown the
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`ingredient list.
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`15 Use Real Butter For Making Best Fudge, RecipeTips.com.
`16 Easy Fudge Making Tips, The Happy Housewife.
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`5
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`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,
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`REDUCED IRON, THIAMINE MONONITRATE {VITAMIN B1},
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`RIBOFLAVIN {VITAMIN B2}, FOLIC ACID), CANOLA OIL, COCOA
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`(PROCESSED WITH ALKALI), NONFAT MILK, COCOA, HIGH
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`FRUCTOSE CORN SYRUP, LEAVENING (BAKING SODA AND/OR
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`CALCIUM PHOSPHATE), SOY LECITHIN, SALT, PEPPERMINT OIL,
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`CHOCOLATE, YELLOW 5 LAKE, BLUE 1 LAKE, ARTIFICIAL
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`FLAVOR, NATURAL FLAVOR.
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`32. Since the cookies, fudge and mint are not identified separately, the fudge ingredients
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`are identified by comparing them against the regular Oreo ingredients.
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`33. This comparison shows the fudge components are palm and palm kernel oil, nonfat
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`milk, cocoa, and natural flavor, because these ingredients are not a part of the regular Oreo.
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`34. Reasonable consumers are misled by the statements, “Fudge Covered Oreo – Mint
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`Creme,” and the picture of the cookie being coated with what appears to be fudge, because they
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`expect fudge to mean a food made of dairy ingredients containing milk fat.
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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
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`and contains palm oils for its fat content.
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`36. Fudge covered cookies made with fudge ingredients such as dairy components,
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`containing milkfat, are not a rare or pricy delicacy that would make a reasonable consumer “double
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`check” their presence by scouring the packaging.
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`37. Fudge covered cookies made with fudge ingredients such as dairy components,
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`containing milkfat exist in the marketplace and are not technologically or otherwise unfeasible to
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`produce.
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`38. The front label creates an erroneous impression that essential fudge ingredients are
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`present.
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`39. The fudge representation is in contrast to the truthful and non-misleading “Mint”
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`representations, through words and picture of peppermint leaf, because the Product contains
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`peppermint oil.
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`40. The Product contains other representations which are misleading.
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`41. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of a product, relative to itself and other
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`comparable products or alternatives.
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`42. By labeling the Product in this manner, Defendant gained an advantage against other
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`companies, and against consumers seeking to purchase a product that contained fudge ingredients
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`such as dairy ingredients with milkfat.
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`43. The value of the Product that plaintiff purchased was materially less than its value as
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`represented by defendant.
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`44. Defendant sold more of the Product and at higher prices than it would have in the
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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.
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`45. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`46. The Product is sold for a price premium compared to other similar products, no less
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`than approximately $3.99 for 9.9 oz (280 g), a higher price than it would otherwise be sold for,
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`absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`47.
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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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`48. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`49. Plaintiff Christopher Leonard is a citizen of New York.
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`50. Defendant Mondelēz Global LLC, is a Delaware limited liability company with a
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`principal place of business in East Hanover, Morris County, New Jersey.
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`51. Defendant’s managing member is Mondelēz International, Inc., a Virginia
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`corporation with a principal place of business in New Jersey.
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`52. Plaintiff and defendant’s managing member are citizens of different states.
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`53. Defendant transacts business within this District through sale of the Product within
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`this District, through its hundreds of stores within this State, and dozens within this District, and
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`online, sold directly to residents of this District.
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`54. Defendant transacts business within this district, through the marketing, supply, and
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`sale of the Product products at thousands of locations, including convenience stores, grocery
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`stores, drug stores, big box stores, warehouse clubs, and online directly to citizens of this district.
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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
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`rise to the claims occurred within this district.
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`56. Venue is in the Manhattan Courthouse in this District because a substantial part of
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`the events or omissions giving rise to the claim occurred in New York County, i.e., Plaintiff’s
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`purchase of the Product and his awareness of the issues described here.
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`Parties
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`57. Plaintiff Christopher Leonard is a citizen of New York, New York County, New
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`York.
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`58. Defendant Mondelēz Global LLC, is a Delaware limited liability company with a
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`principal place of business in East Hanover, New Jersey, Morris County.
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`59. The forerunner of Mondelēz was the National Biscuit Company (“Nabisco”), formed
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`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
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`crackers, Wheat Thins, Saltines, and Chips Ahoy.
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`62. Nabisco was the second largest advertiser after tobacco companies for much of its
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`history, which created a great reservoir of public trust.
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`63. Nabisco, and its successor, Defendant, emphasizes its commitment to quality
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`products, labeled honestly.
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`64. These facts show a company with a significant amount of goodwill and equity when
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`it comes to consumer purchasing.
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`65. Plaintiff purchased the Product on one or more occasions within the statutes of
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`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
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`223 W 40th St, New York, NY 10018, in 2020 and/or 2021, among other times.
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`66. Plaintiff bought the Product because he expected it contained fudge ingredients such
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`as dairy ingredients with milkfat because that is what the representations said and implied.
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`67. Plaintiff relied on the words and images on the Product, on the labeling and/or claims
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`made by Defendant in digital and/or social media.
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`68. Plaintiff bought the Product at or exceeding the above-referenced price.
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`69. Plaintiff would not have purchased the Product if he knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`70. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes and/or lower-priced non-similar products which did not
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`make the statements and claims made by Defendant.
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`71. The Product was worth less than what Plaintiff paid and he would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`72. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance that Product's representations are consistent with its abilities and/or
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`composition.
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`73. Plaintiff is unable to rely on the labeling of not only this Product, but other similar
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`products, because he is unsure of whether their representations are truthful.
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`Class Allegations
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`74. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
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`classes:
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`New York Class: All persons in the State of New York who
`purchased the Product during the statutes of limitations for
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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 11 of 15
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`each cause of action alleged.
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`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
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`75. 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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`76. 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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`77. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`78. 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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`79.
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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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`80. 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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`81. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York General Business Law (“GBL”) §§ 349 & 350
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`(Consumer Protection Statute)
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`82. Plaintiff incorporates by reference all preceding paragraphs.
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`83. Plaintiff and class members desired to purchase a product that contained fudge
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`ingredients such as dairy ingredients with milkfat.
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`84. Defendant’s false and deceptive representations and omissions are material in that
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`they are likely to influence consumer purchasing decisions.
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`11
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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 12 of 15
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`85. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`86. 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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`87. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`88. Plaintiff relied on the representations that the Product contained fudge ingredients
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`such as dairy ingredients with milkfat
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`89.
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` 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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`Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`90. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class
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`prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.
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`91. Defendant intended that plaintiff and each of the other members of the Consumer
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`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
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`fact be misled by this deceptive conduct.
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`92. As a result of defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, plaintiff, and each of the other members of the Consumer Fraud Multi-State
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`Class, have sustained damages in an amount to be proven at trial.
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`93.
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`In addition, defendant’s conduct showed motive, and the reckless disregard of the
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`truth such that an award of punitive damages is appropriate.
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`12
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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 13 of 15
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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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`94. The Product was manufactured, identified, and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it contained fudge ingredients such as dairy
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`ingredients with milkfat.
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`95. 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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`96. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted snack producer, with a higher level of trust with consumers than other brands.
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`97. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers, and their employees.
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`98. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, competitors, and consumers, to its main offices, and by consumers
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`through online forums.
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`99. 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 because it was not fit to pass in the trade as
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`advertised.
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`100. 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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`101. Defendant had a duty to truthfully represent the Product, which it breached.
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`102. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience in this area, a trusted seller of snacks and part of Americana.
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`103. The representations took advantage of consumers’ cognitive shortcuts made at the
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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 14 of 15
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`point-of-sale and their trust in defendant, one of the nation’s largest snack companies.
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`104. 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, their purchase of the
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`Product.
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`105. 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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`106. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained fudge ingredients such as dairy ingredients with milkfat.
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`107. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provide it with actual and/or constructive knowledge of
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`the falsity of the representations.
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`108. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`109. 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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`Case 1:21-cv-10102 Document 1 Filed 11/28/21 Page 15 of 15
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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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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory 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: November 28, 2021
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`15
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