Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 1 of 14
`
`
`
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck, NY 11021-3104
`Telephone: (516) 268-7080
`spencer@spencersheehan.com
`
`United States District Court
`Southern District of New York
`
`John Salony, individually and on behalf of
`all others similarly situated,
`
`Plaintiff,
`
`7:20-cv-10273
`
`- against -
`
`Class Action Complaint
`
`VMG Partners, LLC,
`
`
`
`Defendant
`
`
`
`Plaintiff by attorneys alleges upon information and belief, except for allegations pertaining
`
`to plaintiff, which are based on personal knowledge:
`
`1. VMG Partners, LLC (“defendant”) manufactures, distributes, markets, labels and
`
`sells PopChips Ridges – Cheddar & Sour Cream (“Product”) to consumers from retail and online
`
`stores in packaging of various sizes.
`
`2.
`
`The Product makes representations with respect to its “primary recognizable
`
`flavor(s),” cheddar cheese and sour cream, through the wedge of cheddar and bowl of sour cream,
`
`the words “Cheddar & Sour Cream” and the orange color pattern on the label. See 21 C.F.R. §
`
`101.22(i).
`
`
`
`
`
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck, NY 11021-3104
`Telephone: (516) 268-7080
`spencer@spencersheehan.com
`
`United States District Court
`Southern District of New York
`
`John Salony, individually and on behalf of
`all others similarly situated,
`
`Plaintiff,
`
`7:20-cv-10273
`
`- against -
`
`Class Action Complaint
`
`VMG Partners, LLC,
`
`
`
`Defendant
`
`
`
`Plaintiff by attorneys alleges upon information and belief, except for allegations pertaining
`
`to plaintiff, which are based on personal knowledge:
`
`1. VMG Partners, LLC (“defendant”) manufactures, distributes, markets, labels and
`
`sells PopChips Ridges – Cheddar & Sour Cream (“Product”) to consumers from retail and online
`
`stores in packaging of various sizes.
`
`2.
`
`The Product makes representations with respect to its “primary recognizable
`
`flavor(s),” cheddar cheese and sour cream, through the wedge of cheddar and bowl of sour cream,
`
`the words “Cheddar & Sour Cream” and the orange color pattern on the label. See 21 C.F.R. §
`
`101.22(i).
`
`
`
`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 2 of 14
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`3.
`
`Consumers expect the designation of a food’s flavor to tell them information about
`
`
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`the source of the flavor, such as (1) how much is from the named flavor, i.e., cheddar cheese and
`
`sour cream, (2) does the product contain flavor from the named flavor, i.e., cheddar flavor, (3) does
`
`the named flavor come from natural sources other than the food ingredient, i.e., cheddar flavor
`
`from swiss cheese and (4) does the flavor come from artificial, synthetic sources, made in an
`
`artificial process, i.e., cheddar flavor derived from petroleum chemicals. 21 C.F.R. § 101.22(i).
`
`4.
`
`“The rule [21 C.F.R. § 101.22(i)] is premised on the simple notion that consumers
`
`2
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 3 of 14
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`value ‘the real thing’ versus a close substitute and should be able to rely on the label to readily
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`distinguish between the two. This consumer protection objective is relevant to taste claims
`
`conveyed in advertising as well.”1
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`5.
`
`These flavor regulations have established custom and practice so that consumers’
`
`experience primed them to infer from a product’s labeling whether a flavor was entirely from the
`
`characterizing ingredients or not.
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`6. Most foods contain disclosures such as “naturally flavored,” “other natural flavors”
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`or “artificially flavored.”
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`7.
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`The absence of these terms causes consumers to infer the food has a sufficient
`
`amount of the characterizing ingredients to flavor the food. 21 C.F.R. § 101.22(i)(1).
`
`8.
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`The Product’s front label contains no flavor qualifications, which causes consumers
`
`to expect all the flavor comes from cheddar cheese and sour cream.
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`9.
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`This representation is misleading because the cheddar and sour cream flavor does
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`not come only from cheddar cheese and sour cream and has less (or none) of these ingredients than
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`expected by consumers.
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`10. Consumers prefer foods that are flavored by actual ingredients, such as cheddar
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`cheese and sour cream, as opposed to cheddar and sour cream flavor.
`
`11. Even “natural cheddar” and “natural sour cream” flavors are the distilled and
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`extracted flavor components of the respective foods and are highly processed in laboratories with
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`complex methods and contain numerous additives and enhancers.
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`12. Consumers are seeking products which obtain their flavor from their characterizing
`
`food ingredients, i.e., strawberry shortcake with strawberries or natural strawberry flavor from
`
`
`1 Steven Steinborn, Hogan & Hartson LLP, Regulations: Making Taste Claims, PreparedFoods.com, August 11, 2006.
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`3
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 4 of 14
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`strawberries as opposed to strawberry flavor synthesized from cherries.2
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`13. The Product’s representations that it is flavored only by cheddar cheese and sour
`
`cream is misleading.
`
`14. Though the Product contains some cheddar cheese, it also contains added cheddar
`
`cheese flavor, indicated by the listing of “Natural Flavors.”
`
`
`
`INGREDIENTS: DRIED POTATO, YELLOW CORN
`(DEGERMED), SUNFLOWER AND/OR SAFFLOWER
`OIL, SEASONING (WHEY POWDER, BUTTERMILK
`POWDER, CORN MALTODEXTRIN, SALT, DRIED
`BUTTER [CREAM, SALT], CHEDDAR CHEESE [MILK,
`CULTURES, SALT, ENZYMES], AUTOLYZED YEAST
`EXTRACT, ONION POWDER, NONFAT DRY MILK,
`NATURAL FLAVORS, ANNATTO [COLOR], GARLIC
`POWDER, CITRIC ACID, DRIED MILKFAT, PAPRIKA
`OLEORESIN [COLOR], TURMERIC [COLOR]), RICE
`FLOUR, AND POTATO STARCH.
`
`15. Based on analysis of the Product, the “Natural Flavors” contains numerous cheddar
`
`aroma compounds such as acetic, butyric, caproic, and caprylic acids.
`
`16. These flavors are added because the amount of cheddar cheese in the Product is
`
`insufficient to independently provide a cheddar taste of the food.
`
`
`2 David Andrews, Synthetic ingredients in Natural Flavors and Natural Flavors in Artificial flavors, Environmental
`Working Group (EWG).
`
`4
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 5 of 14
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`17. The front label is required to disclose the added cheddar flavoring, with the word
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`“cheddar” preceded by the word “natural,” followed by the word “flavored,” i.e., “natural cheddar
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`flavored” or “cheddar flavored.” 21 C.F.R. § 101.22(i)(1)(i).
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`18. The Product also contains annatto and turmeric, orange food colorings, which gives
`
`consumers the incorrect impression that the Product contains more cheddar than it does.
`
`19. The front label also fails to disclose the Product contains no real sour cream, because
`
`“sour cream” and its components of “cultured milk” and/or “cultured cream” are not listed on the
`
`ingredient list.
`
`
`
`INGREDIENTS: DRIED POTATO, YELLOW CORN
`(DEGERMED), SUNFLOWER AND/OR SAFFLOWER
`OIL, SEASONING (WHEY POWDER, BUTTERMILK
`POWDER, CORN MALTODEXTRIN, SALT, DRIED
`BUTTER [CREAM, SALT], CHEDDAR CHEESE [MILK,
`CULTURES, SALT, ENZYMES], AUTOLYZED YEAST
`EXTRACT, ONION POWDER, NONFAT DRY MILK,
`NATURAL FLAVORS, ANNATTO [COLOR], GARLIC
`POWDER, CITRIC ACID, DRIED MILKFAT, PAPRIKA
`OLEORESIN [COLOR], TURMERIC [COLOR]), RICE
`FLOUR, AND POTATO STARCH.
`
`20. Sour cream is a cultured dairy product made by adding lactic acid bacteria to
`
`pasteurized milk or cream.
`
`21. This process restores many of the beneficial bacteria that are lost during
`
`5
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 6 of 14
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`pasteurization and imparts a pleasant tangy flavor.
`
`22. Consumers want real sour cream because even when consumed in small amounts, it
`
`contributes to beneficial health effects.
`
`23. Sour cream helps to establish and maintain beneficial intestinal bacterial flora and
`
`reduce lactose intolerance.
`
`24. Sour cream has high mineral content, particularly phosphorus and calcium.
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`25. Phosphorous helps maintain the health of teeth and bones.
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`26. Calcium assists the heart muscles by providing pressure in the arteries.
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`27. When calcium levels drop, calcitriol is released, causing contraction of arteries by
`
`raising the blood pressure.
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`28. The vitamin B12 in sour cream helps preserve nerve cells and maintain red blood
`
`cells.
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`29. Vitamin B2 also promotes growth and development of body tissues and organs such
`
`as eyes, skin, mucous membranes and the immune system.
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`30. The vitamin A in sour cream helps to promote eye health by increasing moisture and
`
`adjusting to changes in ambient light.
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`31. Vitamin A also increases the body’s immunity in fighting against infections due to
`
`its effect on white blood cells.
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`32. Based on analysis of the Product, the “Natural Flavors” contains “sour cream flavor.”
`
`33. This is not sour cream as consumers understand and expect it, but is “the essential
`
`oil, oleoresin, essence or extractive, protein hydrolysate, distillate, or any product of roasting,
`
`heating or enzymolysis, which contains the flavoring constituents derived from” sour cream. See
`
`21 C.F.R. § 101.22(a)(3).
`
`6
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 7 of 14
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`34. The “Natural Flavors” contains key sour cream flavor compounds, including 2,3-
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`butanedione, acetic acid, butyric acid, octanal, 2-methyl-3-furanthiol, 1-octene-3-one, and
`
`acetaldehyde.
`
`35. Defendant’s branding, marketing and packaging of the Product is designed to – and
`
`does – deceive, mislead, and defraud plaintiff and consumers.
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`36. The amount and presence of cheddar cheese and sour cream is material to plaintiff
`
`and consumers.
`
`37. 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.
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`38. The value of the Product that plaintiff purchased and consumed was materially less
`
`than its value as represented by defendant.
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`39. Had plaintiff and class members known the truth, they would not have bought the
`
`Product or would have paid less for it.
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`40. As a result of the false and misleading labeling, the Product is an sold at a premium
`
`price, approximately no less than $2.29 per 5 OZ 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
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`41.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2)
`
`42. 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).
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`7
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 8 of 14
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`43. Plaintiff John Salony is a citizen of New York.
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`44. Defendant VMG Partners, LLC is a Delaware limited liability company with a
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`principal place of business in San Francisco, San Francisco County, California and at least one of
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`its members is not a citizen of New York.
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`45. “Minimal diversity” exists because plaintiff John Salony and at least one member of
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`defendant are citizens of different states.
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`46. Upon information and belief, sales of the Product exceed $5 million during the
`
`applicable statutes of limitations, exclusive of interest and costs.
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`47. Venue is proper a substantial part of the events or omissions giving rise to the claim
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`occurred in this District.
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`48. Plaintiff purchased the Product on numerous occasions including but not limited to
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`between November and December 2020, at stores including Price Chopper, 115 Temple Hill Rd,
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`New Windsor, NY 12553 (Vails Gate).
`
`49. Plaintiff bought the Product at or exceeding the above-referenced price because he
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`liked the product for its intended use and relied upon its front label representations.
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`50. Plaintiff was deceived by and relied upon the Product's deceptive labeling and
`
`marketing.
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`51. Plaintiff would not have purchased the Product in the absence of Defendant’s
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`misrepresentations and omissions or would have paid less for it.
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`52. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
`
`with the assurance that Product's labels are consistent with the Product’s components.
`
`Class Allegations
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`53. The class will consist of all purchasers of the Product who reside in New York during
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`8
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 9 of 14
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`the applicable statutes of limitations.
`
`54. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
`
`monetary relief class.
`
`55. 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.
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`56. 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.
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`57. Plaintiff is an adequate representative because his interests do not conflict with other
`
`members.
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`58. No individual inquiry is necessary since the focus is only on defendant’s practices
`
`and the class is definable and ascertainable.
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`59.
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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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`60. 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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`61. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`New York General Business Law (“GBL”) §§ 349 & 350
`(Consumer Protection Statutes)
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`62. Plaintiff incorporates by reference all preceding paragraphs.
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`63. Plaintiff and class members desired to purchase and consume products which were
`
`as described and marketed by defendant and expected by reasonable consumers.
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`64. Defendant’s acts and omissions are not unique to the parties and have a broader
`
`impact on the public.
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`65. Defendant misrepresented the substantive, quantitative, qualitative, compositional
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`9
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 10 of 14
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`and/or nutritional attributes of the Product.
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`66. The Product’s purported amount of cheddar cheese and sour cream have a material
`
`bearing on price and consumer acceptance of the Product.
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`67. 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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`68. 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
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`69. Plaintiff incorporates by reference all preceding paragraphs.
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`70. Defendant had a duty to disclose the amount and presence of the characterizing
`
`ingredients on the front label in the Product’s flavoring designation.
`
`71. 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.
`
`72. 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.
`
`73. 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.
`
`74. 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.
`
`75. Plaintiff incorporates by reference all preceding paragraphs.
`
`76. The Product was manufactured, labeled and sold by defendant or at its express
`
`10
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 11 of 14
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`directions and instructions, and warranted to plaintiff and class members that it possessed
`
`substantive, quality, nutritional, and/or compositional attributes it did not.
`
`77. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
`
`78. This duty is based, in part, on defendant’s position as one of the most recognized
`
`companies in the nation in this sector.
`
`79. Plaintiff provided or will provide notice to defendant, its agents, representatives, and
`
`their employees.
`
`80. 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, of the type described here.
`
`81. The Product did not conform to its affirmations of fact and promises due to
`
`defendant’s actions and were not merchantable because plaintiffs expected a product that was
`
`described by Defendant.
`
`82. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Fraud
`
`83. Plaintiff incorporates by reference all preceding paragraphs.
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`84. Defendant’s fraudulent intent is evinced by its failure to accurately represent the
`
`Product on the packaging, when it knew its statements were neither true nor accurate and misled
`
`consumers.
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`85. Defendant was motivated by increasing its market share against competitor products.
`
`86. Plaintiff and class members would not have purchased the Product or paid as much
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`11
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 12 of 14
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`if the true facts had been known, suffering damages.
`
`Unjust Enrichment
`
`87. Plaintiff incorporates by reference all preceding paragraphs.
`
`88. 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.
`
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`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;
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`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 damages under the GBL 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: December 6, 2020
`
`
`
`
`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`
`12
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 13 of 14
`
`
`
`
`
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
`
`
`13
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`Case 7:20-cv-10273-VB Document 1 Filed 12/06/20 Page 14 of 14
`
`7:20-cv-10273
`United States District Court
`Southern District of New York
`
`
`John Salony, individually and on behalf of all others similarly situated,
`
`
`
`
`
` - against -
`
`
`VMG Partners, LLC,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
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`Plaintiff,
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` Defendant
`
`Class Action Complaint
`
`
`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`
`
`
`
`
`
`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
`
`Dated: December 6, 2020
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` /s/ Spencer Sheehan
` Spencer Sheehan
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