`
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cutter Mill Rd Ste 409
`Great Neck, NY 11021-3104
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`United States District Court
`Southern District of New York
`
`Erin Marcinelli, individually and on behalf
`of all others similarly situated,
`
`Plaintiff,
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`7:21-cv-01075
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`- against -
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`Class Action Complaint
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`Kraft Heinz Foods Company,
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`Defendant
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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. Kraft Heinz Foods Company (“defendant”) manufactures, distributes, markets,
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`labels and sells frozen pizza bagels under the Bagel Bites brand purporting to be made with real
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`mozzarella cheese (“Product”).
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`2.
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`The relevant representations include “Made With Real Cheese,” the “Real” dairy
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`seal, “Mozzarella Cheese,” “Mini Bagels With Mozzarella Cheese and Tomato Sauce,” “Kosher
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`Dairy” and “7g of Protein Per Serving.”
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 2 of 13
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`3.
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`Reasonable consumers understand “pizza” to refer to a combination of tomato sauce,
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`mozzarella cheese and wheat crust.
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`4.
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`In the context of a “pizza snack” where the crust is replaced with a bagel, consumers
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`will still expect the other two elements – tomato sauce and mozzarella cheese.
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`5.
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`The Product’s representations are misleading because though it is labeled as
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`containing mozzarella cheese, it actually contains a “Cheese Blend” of “Part-Skim Mozzarella
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`Cheese” and “Modified Food Starch.”
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`2
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 3 of 13
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`INGREDIENTS: BAGEL HALVES (ENRICHED FLOUR [WHEAT FLOUR,
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`ENZYME, ASCORBIC ACID, NIACIN, REDUCED
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`IRON, THIAMINE
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`MONONITRATE, RIBOFLAVIN, FOLIC ACID], WATER, SALT, INVERT CANE
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`SYRUP, YEAST, SOYBEAN OIL), CHEESE BLEND (PART-SKIM MOZZARELLA
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`CHEESE [PART-SKIM MILK, CHEESE CULTURES, SALT, ENZYMES], MODIFIED
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`FOOD STARCH, SKIM MILK), SAUCE (WATER, TOMATO PASTE, INVERT CANE
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`SYRUP, MODIFIED CORN STARCH, SALT, METHYLCELLULOSE, CITRIC ACID,
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`POTASSIUM CHLORIDE, AMMONIUM CHLORIDE, SPICE, YEAST EXTRACT,
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`NATURAL FLAVOR, CALCIUM LACTATE), WATER, INVERT CANE SYRUP.
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`6. Mozzarella cheese is a sliceable curd cheese made from cow’s milk.
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`7.
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`Consumers want real mozzarella cheese in pizza because they value (1) its soft, moist
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`texture, (2) its milky, yet tangy taste and (3) its high protein but relatively low calories and sodium
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`compared to other cheeses.
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`8.
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`Reasonable consumers do not expect a cheese blend with modified food starch where
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`they are expecting to receive only mozzarella cheese.1
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`1 Or part-skim mozzarella.
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 4 of 13
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`9. Defendant knows consumers want real mozzarella cheese which is why it is
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`highlighted on the front label, with a protein claim (mozzarella is high in protein) and the “Real
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`Dairy” Seal.
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`10. The “Real” Seal is owned by the National Milk Producers Federation (“NMPF”),
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`which authorizes its use to third parties.
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`11. According to the website, realseal.com, “When you see the REAL® logo on a
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`product in a store or on a menu in a restaurant, you can trust it’s the real thing, and not a pale
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`imitation.”
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`12. To use the “Real” seal, a dairy product “must meet the Federal Standards of Identity,
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`which are legal definitions of food products laid out in the Code of Federal Regulations and
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`enforced by the Food and Drug Administration (FDA).”
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`13. However, the “Real” seal is not permitted, according to the NMPF, where a cheese
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`ingredient uses extenders and fillers such as modified food starch, “vegetable proteins, vegetable
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`oils and commonly imported additives like casein, caseinates and milk protein concentrate
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`(MPC).”2
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`14. Since consumers are often misled by lower quality “cheese” products, standards exist
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`to ensure a food labeled as or containing mozzarella cheese is what the front label says.
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`15. According to 21 C.F.R. § 133.155, mozzarella cheese is required to be made from
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`dairy ingredients and can have only a small number of other optional ingredients. 21 C.F.R. §
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`133.155(a).3
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`2 NMPF, Who Can Use The REAL® Seal?.
`3 New York’s labeling regulations are identical to federal regulations.
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`4
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 5 of 13
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`16. These optional ingredients include additional milk or cream, clotting enzymes,
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`vinegar, coloring, salt or antimycotics. 21 C.F.R. § 133.155(b)(1)-(3).
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`17. The reason the optional ingredients are limited is to prevent added lower quality
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`ingredients like modified food starch.
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`18. The result from substituting dairy ingredients with modified food starch is a
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`nutritionally inferior cheese product, technically described as an “imitation.”
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`19. The reason why companies, including Defendant, add extender and filler ingredients
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`is so they can use less of the more valuable mozzarella cheese in the form of a “cheese blend.”
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`20. The modified food starch causes the Product to have less nutritional value than if
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`only mozzarella cheese were used, a flat “cardboard-like” taste and a rubbery mouthfeel.
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`21. Though the term is seldom used anymore, a food is considered an imitation “if it is
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`a substitute for and resembles another food but is nutritionally inferior to that food.” 21 C.F.R. §
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`101.3(e)(1).
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`22. The cheese blend with added modified starch substitutes for and resembles
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`mozzarella cheese.
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`23. However, because the cheese blend lacks the protein of mozzarella cheese, it can and
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`should be described as “imitation mozzarella cheese.”
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`24.
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`Imitation foods are required to inform consumers of what they are buying through a
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`front label statement, i.e., “Imitation Mozzarella.”
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`25. The average consumer spends fifteen seconds deciding to purchase a specific
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`product, and consistent, truthful labeling gives them confidence to make quick buying decisions.
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`26. Consumers are misled because the front label fails to disclose – as required by law –
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`that the Product is made with imitation mozzarella cheese.
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`5
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 6 of 13
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`27. Moreover, even consumers who read the small print ingredient list will not know that
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`the cheese blend used is nutritionally inferior to mozzarella cheese since they will not be able to
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`consult nutritional values of mozzarella cheese and modified food starch at the point of sale.
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`28. Further, the ingredient list fails to identify the cheese blend as an imitation, so
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`consumers could easily learn of the nutritional inferiority of this ingredient compared to what they
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`were expecting.
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`29. Nowhere on the Product does Defendant disclose that the Product contains imitation
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`mozzarella cheese.
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`30. Defendant misrepresented the Product through affirmative statements, half-truths,
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`and omissions.
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`31. Defendant sold more of the Product and at higher prices than it would have in absence
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`of this misconduct, resulting in additional profits at the expense of consumers.
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`32. Had plaintiff and the 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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`33. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $10.99 for boxes of 72 bagel halves (56
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`OZ), excluding tax, compared to other similar products represented in a non-misleading way, and
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`higher than it would be sold for absent the misleading representations.
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`Jurisdiction and Venue
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`34.
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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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`35. Under CAFA, district courts have “original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal
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`6
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 7 of 13
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`diversity[.]” Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
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`36. Plaintiff Erin Marcinelli is a citizen of New York.
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`37. Defendant Kraft Heinz Foods Company is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Allegheny County, Pennsylvania and upon
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`information and belief, at least one member of Defendant is not a citizen of New York.
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`38. Diversity exists because plaintiff Erin Marcinelli and at least one of defendant’s
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`members are citizens of different states.
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`39. Upon information and belief, sales of the Product and statutory and other monetary
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`damages, exceed $5 million during the applicable statutes of limitations, exclusive of interest and
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`costs.
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`40. Venue is proper because a substantial part of the events or omissions giving rise to
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`the claim occurred here – plaintiff’s purchase of the Product.
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`41. Venue is further supported because many class members reside in this District.
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`Parties
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`42. Plaintiff Erin Marcinelli is a citizen of Poughkeepsie, Dutchess County, New York.
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`43. Defendant Kraft Heinz Foods Company is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Pennsylvania, Allegheny County.
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`44. Defendant, through its Ore-Ida brand and Bagel Bites product line, sells frozen bagel-
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`based snacks, including a variety of pizza bagels and hot dogs wrapped inside bagel pieces.
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`45. Defendant’s brand is associated with the highest levels of quality, owing to its long
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`history of selling food products to Americans.
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`46. The Product is sold to consumers from retail and online stores of third-parties across
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`the country, in boxes of 72 bagel halves.
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`7
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 8 of 13
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`47. During the relevant statutes of limitations for each cause of action alleged, plaintiff
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`purchased the Product within her district and/or State in reliance on its representations and
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`omissions.
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`48. Plaintiff bought the Product on one or more occasions within the statute of limitations
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`from one or more locations, including between January 22, 2021 and January 29, 2021, from Stop
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`& Shop, 59 Burnett Blvd, Poughkeepsie, NY 12603.
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`49. Plaintiff bought the Product at or exceeding the above-referenced price because she
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`wanted to buy a product with the qualities and attributes represented herein.
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`50. Plaintiff would not have purchased the Product in the absence of Defendant’s
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`misrepresentations and omissions.
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`51. The Products was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`52. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance that Product's labeling is consistent with its composition and origins.
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`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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`the applicable statutes of limitations.
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`54. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`55. 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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`56. 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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`8
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 9 of 13
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`57. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`58. 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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`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.
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`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 a product described and identified
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`by Defendant – containing mozzarella cheese and not a cheese blend with lower value extender
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`ingredients like food starch, i.e., imitation mozzarella cheese.
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`64. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`65. Defendant misrepresented
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`the Product
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`through
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`its statements, omissions,
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`ambiguities, half-truths and/or actions.
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`66. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`67. Plaintiff incorporates by reference all preceding paragraphs.
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`68. The Product was manufactured, labeled and sold by defendant and warranted to
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 10 of 13
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`plaintiff and class members that they possessed substantive, functional, nutritional, qualitative,
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`compositional, organoleptic, sensory, physical and other attributes which it did not.
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`69. The amount and proportion of the characterizing component has a material bearing
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`on price or consumer acceptance of the Product because consumers are willing to pay more for
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`such components.
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`70. 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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`71. This duty is based, in part, on Defendant’s position as one of the most recognized
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`companies in the nation in this sector.
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`72. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`73. Defendant received notice and should have been aware of these misrepresentations
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`due to numerous complaints by consumers to its main office over the past several years regarding
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`the Product.
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`74. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable.
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`75. 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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`76. Plaintiff incorporates by reference all preceding paragraphs.
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`77. Defendant had a duty to truthfully represent the Product, which it breached.
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`78. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience in the sale of the product type.
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`10
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 11 of 13
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`79. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, a well-known and respected brand or entity in this sector.
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`80. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Product.
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`81. 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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`82. Plaintiff incorporates by reference all preceding paragraphs.
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`83. Defendant misrepresented and/or omitted the attributes and qualities of the Product.
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`84. Defendant’s fraudulent intent is evinced by its failure to accurately disclose the issues
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`described herein, when it knew not doing so would mislead consumers.
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`85. 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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`86. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
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`87. 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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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 12 of 13
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`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: February 6, 2021
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cutter Mill 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
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`12
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`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 13 of 13
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`7:21-cv-01075
`United States District Court
`Southern District of New York
`
`
`Erin Marcinelli, individually and on behalf of all others similarly situated,
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`
`
`
`
` - against -
`
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`Kraft Heinz Foods Company,
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`Plaintiff,
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` Defendant
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`Class Action Complaint
`
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`Sheehan & Associates, P.C.
`60 Cutter Mill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`
`
`
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`
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`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
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`Dated: February 6, 2021
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` /s/ Spencer Sheehan
` Spencer Sheehan
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