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Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 1 of 13
`
`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,
`
`7:21-cv-01075
`
`- against -
`
`Class Action Complaint
`
`Kraft Heinz Foods Company,
`
`Defendant
`
`
`
`
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1. Kraft Heinz Foods Company (“defendant”) manufactures, distributes, markets,
`
`labels and sells frozen pizza bagels under the Bagel Bites brand purporting to be made with real
`
`mozzarella cheese (“Product”).
`
`2.
`
`The relevant representations include “Made With Real Cheese,” the “Real” dairy
`
`seal, “Mozzarella Cheese,” “Mini Bagels With Mozzarella Cheese and Tomato Sauce,” “Kosher
`
`Dairy” and “7g of Protein Per Serving.”
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 2 of 13
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`3.
`
`Reasonable consumers understand “pizza” to refer to a combination of tomato sauce,
`
`
`
`mozzarella cheese and wheat crust.
`
`4.
`
`In the context of a “pizza snack” where the crust is replaced with a bagel, consumers
`
`will still expect the other two elements – tomato sauce and mozzarella cheese.
`
`5.
`
`The Product’s representations are misleading because though it is labeled as
`
`containing mozzarella cheese, it actually contains a “Cheese Blend” of “Part-Skim Mozzarella
`
`Cheese” and “Modified Food Starch.”
`
`2
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 3 of 13
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`
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`INGREDIENTS: BAGEL HALVES (ENRICHED FLOUR [WHEAT FLOUR,
`
`ENZYME, ASCORBIC ACID, NIACIN, REDUCED
`
`IRON, THIAMINE
`
`MONONITRATE, RIBOFLAVIN, FOLIC ACID], WATER, SALT, INVERT CANE
`
`SYRUP, YEAST, SOYBEAN OIL), CHEESE BLEND (PART-SKIM MOZZARELLA
`
`CHEESE [PART-SKIM MILK, CHEESE CULTURES, SALT, ENZYMES], MODIFIED
`
`FOOD STARCH, SKIM MILK), SAUCE (WATER, TOMATO PASTE, INVERT CANE
`
`SYRUP, MODIFIED CORN STARCH, SALT, METHYLCELLULOSE, CITRIC ACID,
`
`POTASSIUM CHLORIDE, AMMONIUM CHLORIDE, SPICE, YEAST EXTRACT,
`
`NATURAL FLAVOR, CALCIUM LACTATE), WATER, INVERT CANE SYRUP.
`
`6. Mozzarella cheese is a sliceable curd cheese made from cow’s milk.
`
`7.
`
`Consumers want real mozzarella cheese in pizza because they value (1) its soft, moist
`
`texture, (2) its milky, yet tangy taste and (3) its high protein but relatively low calories and sodium
`
`compared to other cheeses.
`
`8.
`
`Reasonable consumers do not expect a cheese blend with modified food starch where
`
`they are expecting to receive only mozzarella cheese.1
`
`1 Or part-skim mozzarella.
`
`
`
`3
`
`

`

`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
`
`highlighted on the front label, with a protein claim (mozzarella is high in protein) and the “Real
`
`Dairy” Seal.
`
`10. The “Real” Seal is owned by the National Milk Producers Federation (“NMPF”),
`
`which authorizes its use to third parties.
`
`11. According to the website, realseal.com, “When you see the REAL® logo on a
`
`product in a store or on a menu in a restaurant, you can trust it’s the real thing, and not a pale
`
`imitation.”
`
`12. To use the “Real” seal, a dairy product “must meet the Federal Standards of Identity,
`
`which are legal definitions of food products laid out in the Code of Federal Regulations and
`
`enforced by the Food and Drug Administration (FDA).”
`
`13. However, the “Real” seal is not permitted, according to the NMPF, where a cheese
`
`ingredient uses extenders and fillers such as modified food starch, “vegetable proteins, vegetable
`
`oils and commonly imported additives like casein, caseinates and milk protein concentrate
`
`(MPC).”2
`
`14. Since consumers are often misled by lower quality “cheese” products, standards exist
`
`to ensure a food labeled as or containing mozzarella cheese is what the front label says.
`
`15. According to 21 C.F.R. § 133.155, mozzarella cheese is required to be made from
`
`dairy ingredients and can have only a small number of other optional ingredients. 21 C.F.R. §
`
`133.155(a).3
`
`
`2 NMPF, Who Can Use The REAL® Seal?.
`3 New York’s labeling regulations are identical to federal regulations.
`
`4
`
`

`

`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,
`
`vinegar, coloring, salt or antimycotics. 21 C.F.R. § 133.155(b)(1)-(3).
`
`17. The reason the optional ingredients are limited is to prevent added lower quality
`
`ingredients like modified food starch.
`
`18. The result from substituting dairy ingredients with modified food starch is a
`
`nutritionally inferior cheese product, technically described as an “imitation.”
`
`19. The reason why companies, including Defendant, add extender and filler ingredients
`
`is so they can use less of the more valuable mozzarella cheese in the form of a “cheese blend.”
`
`20. The modified food starch causes the Product to have less nutritional value than if
`
`only mozzarella cheese were used, a flat “cardboard-like” taste and a rubbery mouthfeel.
`
`21. Though the term is seldom used anymore, a food is considered an imitation “if it is
`
`a substitute for and resembles another food but is nutritionally inferior to that food.” 21 C.F.R. §
`
`101.3(e)(1).
`
`22. The cheese blend with added modified starch substitutes for and resembles
`
`mozzarella cheese.
`
`23. However, because the cheese blend lacks the protein of mozzarella cheese, it can and
`
`should be described as “imitation mozzarella cheese.”
`
`24.
`
`Imitation foods are required to inform consumers of what they are buying through a
`
`front label statement, i.e., “Imitation Mozzarella.”
`
`25. The average consumer spends fifteen seconds deciding to purchase a specific
`
`product, and consistent, truthful labeling gives them confidence to make quick buying decisions.
`
`26. Consumers are misled because the front label fails to disclose – as required by law –
`
`that the Product is made with imitation mozzarella cheese.
`
`5
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 6 of 13
`
`27. Moreover, even consumers who read the small print ingredient list will not know that
`
`the cheese blend used is nutritionally inferior to mozzarella cheese since they will not be able to
`
`consult nutritional values of mozzarella cheese and modified food starch at the point of sale.
`
`28. Further, the ingredient list fails to identify the cheese blend as an imitation, so
`
`consumers could easily learn of the nutritional inferiority of this ingredient compared to what they
`
`were expecting.
`
`29. Nowhere on the Product does Defendant disclose that the Product contains imitation
`
`mozzarella cheese.
`
`30. Defendant misrepresented the Product through affirmative statements, half-truths,
`
`and omissions.
`
`31. Defendant sold more of the Product and at higher prices than it would have in absence
`
`of this misconduct, resulting in additional profits at the expense of consumers.
`
`32. Had plaintiff and the proposed class members known the truth, they would not have
`
`bought the Product or would have paid less for it.
`
`33. As a result of the false and misleading representations, the Product is sold at a
`
`premium price, approximately no less than no less than $10.99 for boxes of 72 bagel halves (56
`
`OZ), excluding tax, compared to other similar products represented in a non-misleading way, and
`
`higher than it would be sold for absent the misleading representations.
`
`Jurisdiction and Venue
`
`34.
`
`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
`
`U.S.C. § 1332(d)(2).
`
`35. 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
`
`6
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 7 of 13
`
`diversity[.]” Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
`
`36. Plaintiff Erin Marcinelli is a citizen of New York.
`
`37. Defendant Kraft Heinz Foods Company is a Pennsylvania limited liability company
`
`with a principal place of business in Pittsburgh, Allegheny County, Pennsylvania and upon
`
`information and belief, at least one member of Defendant is not a citizen of New York.
`
`38. Diversity exists because plaintiff Erin Marcinelli and at least one of defendant’s
`
`members are citizens of different states.
`
`39. Upon information and belief, sales of the Product and statutory and other monetary
`
`damages, exceed $5 million during the applicable statutes of limitations, exclusive of interest and
`
`costs.
`
`40. Venue is proper because a substantial part of the events or omissions giving rise to
`
`the claim occurred here – plaintiff’s purchase of the Product.
`
`41. Venue is further supported because many class members reside in this District.
`
`Parties
`
`42. Plaintiff Erin Marcinelli is a citizen of Poughkeepsie, Dutchess County, New York.
`
`43. Defendant Kraft Heinz Foods Company is a Pennsylvania limited liability company
`
`with a principal place of business in Pittsburgh, Pennsylvania, Allegheny County.
`
`44. Defendant, through its Ore-Ida brand and Bagel Bites product line, sells frozen bagel-
`
`based snacks, including a variety of pizza bagels and hot dogs wrapped inside bagel pieces.
`
`45. Defendant’s brand is associated with the highest levels of quality, owing to its long
`
`history of selling food products to Americans.
`
`46. The Product is sold to consumers from retail and online stores of third-parties across
`
`the country, in boxes of 72 bagel halves.
`
`7
`
`

`

`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
`
`purchased the Product within her district and/or State in reliance on its representations and
`
`omissions.
`
`48. Plaintiff bought the Product on one or more occasions within the statute of limitations
`
`from one or more locations, including between January 22, 2021 and January 29, 2021, from Stop
`
`& Shop, 59 Burnett Blvd, Poughkeepsie, NY 12603.
`
`49. Plaintiff bought the Product at or exceeding the above-referenced price because she
`
`wanted to buy a product with the qualities and attributes represented herein.
`
`50. Plaintiff would not have purchased the Product in the absence of Defendant’s
`
`misrepresentations and omissions.
`
`51. The Products was worth less than what Plaintiff paid and she would not have paid as
`
`much absent Defendant's false and misleading statements and omissions.
`
`52. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
`
`with the assurance that Product's labeling is consistent with its composition and origins.
`
`Class Allegations
`
`53. The class will consist of all purchasers of the Product who reside in New York during
`
`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.
`
`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.
`
`8
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 9 of 13
`
`57. Plaintiff is an adequate representative because her interests do not conflict with other
`
`members.
`
`58. No individual inquiry is necessary since the focus is only on defendant’s practices
`
`and the class is definable and ascertainable.
`
`59.
`
`Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
`
`60. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
`
`61. Plaintiff seeks class-wide injunctive relief because the practices continue.
`
`New York General Business Law (“GBL”) §§ 349 & 350
`(Consumer Protection Statutes)
`
`62. Plaintiff incorporates by reference all preceding paragraphs.
`
`63. Plaintiff and class members desired to purchase a product described and identified
`
`by Defendant – containing mozzarella cheese and not a cheese blend with lower value extender
`
`ingredients like food starch, i.e., imitation mozzarella cheese.
`
`64. Defendant’s acts and omissions are not unique to the parties and have a broader
`
`impact on the public.
`
`65. Defendant misrepresented
`
`the Product
`
`through
`
`its statements, omissions,
`
`ambiguities, half-truths and/or actions.
`
`66. 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.
`
`67. Plaintiff incorporates by reference all preceding paragraphs.
`
`68. The Product was manufactured, labeled and sold by defendant and warranted to
`
`9
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 10 of 13
`
`plaintiff and class members that they possessed substantive, functional, nutritional, qualitative,
`
`compositional, organoleptic, sensory, physical and other attributes which it did not.
`
`69. The amount and proportion of the characterizing component has a material bearing
`
`on price or consumer acceptance of the Product because consumers are willing to pay more for
`
`such components.
`
`70. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Product.
`
`71. This duty is based, in part, on Defendant’s position as one of the most recognized
`
`companies in the nation in this sector.
`
`72. Plaintiff provided or will provide notice to defendant, its agents, representatives,
`
`retailers and their employees.
`
`73. 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.
`
`74. The Product did not conform to its affirmations of fact and promises due to
`
`defendant’s actions and were not merchantable.
`
`75. 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
`
`76. Plaintiff incorporates by reference all preceding paragraphs.
`
`77. Defendant had a duty to truthfully represent the Product, which it breached.
`
`78. This duty is based on defendant’s position, holding itself out as having special
`
`knowledge and experience in the sale of the product type.
`
`10
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 11 of 13
`
`79. 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.
`
`80. 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.
`
`81. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`Fraud
`
`82. Plaintiff incorporates by reference all preceding paragraphs.
`
`83. Defendant misrepresented and/or omitted the attributes and qualities of the Product.
`
`84. Defendant’s fraudulent intent is evinced by its failure to accurately disclose the issues
`
`described herein, when it knew not doing so would mislead consumers.
`
`85. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`86. Plaintiff incorporates by reference all preceding paragraphs.
`
`Unjust Enrichment
`
`87. Defendant obtained benefits and monies because the Product was not as represented
`
`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
`
`restitution and disgorgement of inequitably obtained profits.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jury Demand and Prayer for Relief
`
`Plaintiff demands a jury trial on all issues.
`
` WHEREFORE, Plaintiff prays for judgment:
`
`1. Declaring this a proper class action, certifying plaintiff as representative and the
`
`11
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 12 of 13
`
`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;
`
`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 pursuant to any statutory claims and
`
`interest pursuant to the common law and other statutory claims;
`
`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
`
`experts; and
`
`6. Other and further relief as the Court deems just and proper.
`
`Dated: February 6, 2021
`
`
`
`
`
`
`
`Respectfully submitted,
`
`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
`
`12
`
`

`

`Case 7:21-cv-01075 Document 1 Filed 02/06/21 Page 13 of 13
`
`7:21-cv-01075
`United States District Court
`Southern District of New York
`
`
`Erin Marcinelli, individually and on behalf of all others similarly situated,
`
`
`
`
`
` - against -
`
`
`Kraft Heinz Foods Company,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
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`Plaintiff,
`
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`
`
` Defendant
`
`Class Action Complaint
`
`
`Sheehan & Associates, P.C.
`60 Cutter Mill 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: February 6, 2021
`
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` /s/ Spencer Sheehan
` Spencer Sheehan
`
`
`
`
`
`

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