Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 1 of 12
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Civil Action No.
`7:21-cv-00002-CS
`
`
`
`
`
`
`
`Steven Beers, individually and on behalf of all others
`similarly situated,
`
`
`
`
`
`
`
`Mars Wrigley Confectionery US, LLC,
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MARS WRIGLEY CONFECTIONARY US, LLC’S
`ANSWER TO PLAINTIFF’S CLASS ACTION COMPLAINT
`
`
`
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 2 of 12
`
`
`
`INTRODUCTION
`
`Defendant Mars Wrigley Confectionery US, LLC (“Mars”) hereby submits this Answer1 to
`
`Plaintiff’s Class Action Complaint (the “Complaint”). In response to the numbered paragraphs of the
`
`Complaint, Mars admits, denies, or otherwise responds as set forth below. All allegations are denied
`
`unless expressly admitted.
`1.
`
`Mars admits that it manufactures, distributes, markets, labels and sells ice cream
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`products. Mars otherwise denies the allegations in this paragraph.
`2.
`3.
`4.
`5.
`6.
`7.
`8.
`9.
`10.
`11.
`12.
`
`The allegations in paragraph 12 purport to summarize external sources which speak
`
`Denied.
`
`for themselves. Mars otherwise denies the allegations in paragraph 12.
`13.
`14.
`15.
`
`Denied.
`
`Denied.
`
`
`1 Mars files this answer to prevent Plaintiff’s counsel from dismissing this case and refiling it in another
`jurisdiction yet again. Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, once Mars has filed an
`answer, an action “may be dismissed at the plaintiff’s request only by court order, on terms that the court
`considers proper.” Fed. R. Civ. P. 41(a)(2); see also Beary v. W. Publ’g Co., 763 F.2d 66, 68 (2d Cir. 1985)
`(“Although [Rule] 12(b) encourages the responsive pleader to file a motion to dismiss before pleading, nothing
`in the rule prohibits the filing of a motion to dismiss with an answer.”).
`
`
`
`2
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 3 of 12
`
`
`
`16.
`17.
`18.
`
`Denied.
`
`Denied.
`
`The allegations in paragraph 18 purport to summarize external sources which speak
`
`for themselves. Mars otherwise denies the allegations in paragraph 18.
`19.
`20.
`21.
`
`Denied.
`
`Denied.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent
`
`that a response is required, Mars denies the allegations in this paragraph.
`22.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent
`
`that a response is required, Mars denies the allegations in this paragraph.
`23.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent
`
`that a response is required, Mars denies the allegations in this paragraph.
`24.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent
`
`that a response is required, Mars denies the allegations in this paragraph.
`25.
`26.
`
`Denied.
`
`The allegations in paragraph 26 purport to summarize external sources which speak
`
`Denied.
`
`Denied.
`
`Denied.
`
`for themselves. Mars otherwise denies the allegations in paragraph 26.
`27.
`28.
`29.
`30.
`31.
`32.
`33.
`34.
`35.
`36.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`
`
`3
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 4 of 12
`
`
`
`37.
`38.
`
`39.
`
`Denied.
`
`Denied.
`
`Jurisdiction and Venue
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`40.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`41. Mars lacks sufficient knowledge or information to determine the truth or accuracy of
`
`the allegations of paragraph 41, and on this basis denies those allegations.
`42.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`43.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`44.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`45.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`46.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`
`Parties
`47. Mars lacks sufficient knowledge or information to determine the truth or accuracy of
`
`the allegations of paragraph 41, and on this basis denies those allegations.
`48.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`49. Mars lacks sufficient knowledge or information to determine the truth or accuracy of
`
`the allegations of paragraph 49, and on this basis denies those allegations.
`50. Mars lacks sufficient knowledge or information to determine the truth or accuracy of
`
`
`
`4
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 5 of 12
`
`
`
`Denied.
`
`Denied.
`
`the allegations of paragraph 50, and on this basis denies those allegations.
`51.
`52.
`53.
`54.
`
`Denied.
`
`Denied.
`
`Class Allegations
`
`Denied.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`55.
`56.
`
`a response is required, Mars denies the allegations in this paragraph.
`57.
`58.
`59.
`60.
`61.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`This paragraph sets forth legal conclusions not requiring an answer. To the extent that
`
`a response is required, Mars denies the allegations in this paragraph.
`62.
`63.
`
`Denied.
`
`Denied.
`
`New York General Business Law (“GBL”) 349 & 350
`64. Mars incorporates by reference its answers to all allegations as if set forth fully herein.
`65.
`66.
`67.
`68.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Negligent Misrepresentation
`69. Mars incorporates by reference its answers to all allegations as if set forth fully herein.
`70.
`71.
`
`Denied.
`
`Denied.
`
`
`
`5
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 6 of 12
`
`
`
`72.
`73.
`74.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Fraud
`75. Mars incorporates by reference its answers to all allegations as if set forth fully herein.
`76.
`77.
`78.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Unjust Enrichment
`79. Mars incorporates by reference its answers to all allegations as if set forth fully
`
`herein.
`
`80.
`
`Denied.
`
`PLAINTIFF’S PRAYER FOR RELIEF
`The Complaint sets forth a prayer for relief requested by the Plaintiff to which no response is
`
`required. For avoidance of doubt, Mars denies Plaintiff is entitled to the relief sought, or to any other
`
`relief, against Mars.
`
`SEPARATE AND AFFIRMATIVE DEFENSES
`Without assuming the burden of proof on any matters that would otherwise rest with Plaintiff,
`
`and expressly denying any and all wrongdoing, Mars alleges the following additional reasons why
`
`Plaintiffs and the purported classes are not entitled to any relief:
`I.
`
`FIRST AFFIRMATIVE DEFENSE
`(Equitable Relief Unavailable)
`Plaintiff is not entitled to equitable relief because, if Plaintiff is entitled to a remedy, which
`
`Mars denies, Plaintiff has adequate legal remedies. No threat of immediate harm exists sufficient to
`
`support a grant of injunctive relief.
`
`
`
`
`
`6
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 7 of 12
`
`
`
`II.
`
`SECOND AFFIRMATIVE DEFENSE
`(Failure to State a Claim)
`The FAC fails to state a claim against Mars on which relief can be granted.
`III. THIRD AFFIRMATIVE DEFENSE
`(Performance of Duties)
`Mars has fully performed any and all contractual, statutory, and other duties, and Plaintiff is
`
`therefore estopped from asserting any cause of action against Mars.
`
`
`
`IV.
`
`FOURTH AFFIRMATIVE DEFENSE
`(Substantial Compliance)
`Mars has substantially complied with the requirements of the law as they pertain to this lawsuit
`
`and such substantial compliance bars Plaintiff’s claims.
`V.
`
`FIFTH AFFIRMATIVE DEFENSE
`(Actions Pursuant to Local, State or Federal Authority)
`Mars is not liable for any acts or omissions undertaken by or at the direction of local, state or
`
`federal authority, including, without limitation, acts or omissions made in accordance with regulations,
`
`ordinances, statutes, and laws applicable at the time of the acts or omissions at issue.
`VI.
`
`SIXTH AFFIRMATIVE DEFENSE
`(Superseding Causes)
`Any and all violations alleged in Plaintiff’s Complaint were the result of superseding or
`
`intervening causes arising from the acts or omissions of parties that Mars neither controlled nor had
`
`a legal right to control, and such alleged violations were not proximately or otherwise caused by any
`
`act, omission, or other conduct of Mars.
`VII. SEVENTH AFFIRMATIVE DEFENSE
`(Failure to Mitigate)
`If Plaintiff has suffered any damages or injury in fact, which Mars expressly denies, Mars
`
`alleges that Plaintiff’s recovery is barred by their failure to mitigate, reduce, or otherwise avoid damages
`
`
`
`7
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 8 of 12
`
`
`
`or injuries.
`VIII. EIGHTH AFFIRMATIVE DEFENSE
`(Aggravation of Harm)
`To the extent any harm exists, Mars is informed and believes and, on that basis, alleges that
`
`Plaintiff’s actions have aggravated such harm, and thus, any recovery from Plaintiff’s FAC for such
`
`harm should be barred or reduced accordingly.
`IX. NINTH AFFIRMATIVE DEFENSE
`(Equitable Estoppel)
`Based on Plaintiff’s conduct, Plaintiff’s claims are barred by the doctrine of equitable estoppel.
`
`X.
`
`TENTH AFFIRMATIVE DEFENSE
`(Waiver)
`Based on Plaintiff’s conduct, Plaintiff’s claims are barred by the doctrine of waiver.
`XI. ELEVENTH AFFIRMATIVE DEFENSE
`(Laches)
`By virtue of Plaintiff’s unreasonable delay in commencing this action, which duly has caused
`
`prejudice to Mars, the FAC and each purported cause of action asserted therein are barred by the
`
`doctrine of laches.
`XII. TWELFTH AFFIRMATIVE DEFENSE
`(Unclean Hands)
`The FAC and each and every purported claim against Mars is barred by the doctrine of unclean
`
`hands in that Plaintiff’s own actions have caused the damages Plaintiff may have incurred, if any.
`XIII. THIRTEENTH AFFIRMATIVE DEFENSE
`(Unjust Enrichment)
`Any award to the Plaintiff in this action would constitute unjust enrichment.
`XIV. FOURTEENTH AFFIRMATIVE DEFENSE
`(Attorneys’ Fees Improper)
`Plaintiff’s FAC fails to state a claim or set forth facts sufficient to support a claim for attorneys’
`
`
`
`8
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 9 of 12
`
`
`
`fees.
`XV. FIFTEENTH AFFIRMATIVE DEFENSE
`(Uncertainty)
`The FAC and the cause of action therein presented are vague, ambiguous, and uncertain. Mars
`
`reserves the right to add additional defenses as the factual bases for each of Plaintiff’s claims and
`
`allegations becomes known.
`XVI. SIXTEENTH AFFIRMATIVE DEFENSE
`(Mootness)
`Plaintiff is not entitled to an injunction to the extent Mars has already ceased the allegedly
`
`unlawful conduct.
`XVII. SEVENTEENTH AFFIRMATIVE DEFENSE
`(Violation of Right to Free Speech)
`To the extent Plaintiff purports to seek equitable relief to mandate the specific content of
`
`Mars’s advertising or the content of the products labels, Plaintiff’s FAC violates Mars’s right to
`
`freedom of speech under the First Amendment of the United States Constitution.
`XVIII. EIGHTEENTH AFFIRMATIVE DEFENSE
`(Set-off)
`Any recovery by Plaintiff should be offset and diminished by the value to the general public
`
`of the use of the products.
`XIX. NINETEENTH AFFIRMATIVE DEFENSE
`(Punitive Damages Are Not Available)
`Plaintiff’s claims do not permit the recovery of punitive damages.
`XX. TWENTIETH AFFIRMATIVE DEFENSE
`(Preemption)
`All or some of the alleged causes of action in the FAC are preempted by federal law.
`
`
`
`
`
`9
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 10 of 12
`
`
`
`XXI. TWENTY-FIRST AFFIRMATIVE DEFENSE
`(Statute of Limitation)
`All or some of Plaintiff’s claims and damages are barred, reduced, and/or limited by the
`
`applicable statutes of limitations.
`XXII. TWENTY-SECOND AFFIRMATIVE DEFENSE
`(No Private Right of Action)
`All or some of Plaintiff’s causes of action are unavailable because Plaintiff does not have a
`
`private right of action to enforce the FDCA.
`XXIII. TWENTY-THIRD AFFIRMATIVE DEFENSE
`(No Standing)
`Plaintiff lacks standing to assert the claims in the Complaint.
`XXIV. TWENTY-FOURTH AFFIRMATIVE DEFENSE
`(De Minimis Violations)
`Plaintiff’s claims are barred because the claimed violations are “de minimis.”
`XXV. TWENTY-FIFTH AFFIRMATIVE DEFENSE
`(Improper Class Action)
`The Complaint does not satisfy the requirements of Fed. R. Civ. P. 23(a) and 23(b).
`XXVI. TWENTY-SIXTH AFFIRMATIVE DEFENSE
`(Compliance with Law)
`The Complaint fails because Mars has made good faith efforts to comply, and has complied,
`
`with all relevant laws and regulations.
`XXVII.
`
`TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`(Adequate Remedy of Law)
`Plaintiff’s equitable claims fail because Plaintiff has an adequate remedy at law.
`XXVIII.
`
`TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`(Failure to Satisfy Statutory Prerequisites to Suit)
`All or some of Plaintiff’s causes of action are unavailable because Plaintiff failed to satisfy the
`
`
`
`10
`
`

`

`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 11 of 12
`
`
`
`statutory prerequisites to suit, including failure to provide notice.
`XXIX. TWENTY-NINTH AFFIRMATIVE DEFENSE
`(Reservation of Additional Defenses)
`Mars hereby reserves the right to amend its answer to raise additional affirmative defenses as
`
`they become available or apparent to it through discovery in this matter or otherwise.
`
`DEFENDANT’S PRAYER FOR RELIEF
`WHEREFORE, Defendant Mars prays for judgment as follows:
`1. That this action not be certified as a class action;
`
`2. That Plaintiffs and/or the purported Class Members take nothing by way of the Complaint;
`
`3. That judgment be entered in favor of Defendant and against Plaintiff;
`
`4. That Defendant be awarded its costs of suit;
`
`5. That Defendant be awarded its attorneys’ fees to the extent permitted under applicable law;
`
`and
`
`6. That the Court award Defendant such other and further relief as this Court may deem just
`
`and proper.
`
`
`Dated: May 24, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Omid G. Banuelos
`Omid G. Banuelos
`David A. Forkner (pro hac vice to file)
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
`Tel: (202) 434-5000
`Fax: (202) 434-5029
`obanuelos@wc.com
`dforkner@wc.com
`
`Attorneys for Mars Wrigley Confectionery US, LLC
`
`11
`
`

`

`
`
`Case 7:21-cv-00002-CS Document 9 Filed 05/24/21 Page 12 of 12
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 24, 2021, a true and correct copy of the foregoing pleading
`
`was filed on the CM/ECF system, which will send notification of such filing to all parties and
`
`counsel in this case.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Omid G. Banuelos
`Omid G. Banuelos
`
`21
`
`
`
`