Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 1 of 17
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NEW YORK
`
` Civil Action No.: 1:21-cv-1261
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`RYAN HARDY, individually and on behalf
`of all others similarly situated,
`
` Plaintiff,
`
` v.
`
`OLE MEXICAN FOODS, INC.,
`
` Defendant.
`
`Plaintiff Ryan Hardy (“Plaintiff”), on behalf of himself and all others similarly situated,
`
`brings this class action against Ole Mexican Foods, Inc. (“Defendant”), on behalf of himself and
`
`all others similarly situated, and alleges upon information and belief the following:
`
`INTRODUCTION
`
`1.
`
`Plaintiff brings this consumer protection and false advertising class action
`
`lawsuit against Defendant regarding its misleading business practices, with respect to the sale
`
`of its La Banderita tortilla products. The tortilla products at issue in this case are La Banderita
`
`Burrito Grande, La Banderita Sabrosísimas Corn, La Banderita Taco Size Flour Tortillas, and
`
`La Banderita Whole Wheat Fajita (the “Products”).
`
`2.
`
`Specifically, Defendant has marketed and sold these Products with labeling,
`
`packaging, and advertising that leads consumers to believe that they are made in Mexico, when
`
`in fact, they are not. To accomplish this, the front label of the Products prominently use the
`
`Mexican flag in the center of the package, Spanish phrases like “El Sabor de Mexico!”
`
`(meaning “A taste of Mexico”), and a logo that displays the Mexican flag with the word
`
`“Authentic.”
`
`
`
`
`
`
` CLASS ACTION COMPLAINT
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 2 of 17
`
`3.
`
`Tortillas are a staple of Mexican cuisine and are considered to have originated in
`
`Mexico.1 The people of Mexico have a long history with tortillas and are generally credited
`
`with having perfected the art of making them.
`
`4.
`
`Because of this, consumers value tortilla products that are authentically made in
`
`Mexico. Had Plaintiff and other consumers known that the Products were not made in Mexico,
`
`they would not have purchased the Products or would have paid significantly less for them.
`
`Therefore, Plaintiff and other consumers have suffered an injury-in-fact as a result of
`
`Defendant’s deceptive practices.
`
`5.
`
`Thus, Plaintiff, on behalf of himself and all others similarly situated, brings this
`
`case seeking damages, restitution, declaratory and injunctive relief, and all other remedies this
`
`Court deems appropriate.
`
`JURISDICTION AND VENUE
`
`6.
`
`The Court has original jurisdiction under 28 U.S.C. § 1332(d)(2) because the
`
`matter in controversy, exclusive of interest and costs, exceeds the sum or value of $5,000,000,
`
`this is a class action in which there are more than 100 Class members, and at least some Class
`
`members are citizens of states different from Defendant.
`
`7.
`
`This Court has personal jurisdiction over Defendant because Defendant
`
`intentionally avails itself of the markets in New York through the promotion, marketing, and sale
`
`of the Products in New York to render the exercise of jurisdiction by this Court permissible
`
`under traditional notions of fair play and substantial justice.
`
`
`1 http://www.latortillaoven.com/history/ (last visited December 3, 2021).
`
`
`
`
`
`
`
`-2-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 3 of 17
`
`8.
`
`Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(a) and (b)(2) because
`
`a substantial part of the events and omissions giving rise to these claims occurred in this District.
`
`Plaintiff resides and purchased the Product in this District.
`
`PARTIES
`
`9.
`
`Plaintiff Ryan Hardy (“Mr. Hardy”) is a citizen of and resides in Buffalo, New
`
`York. On or about December 2018, Mr. Hardy, purchased the La Banderita Taco Size Flour
`
`Tortillas at a Tops Friendly Markets or Wegmans grocery store in West Seneca, New York. In
`
`purchasing the Product, Mr. Hardy saw and relied on Defendant’s references to the Mexican
`
`flag, the phrase “A Taste of Mexico!”, the brand name “La Banderita,” and the word
`
`“Authentic.”
`
`10.
`
`Based on these front-label representations, Mr. Hardy believed he was
`
`purchasing tortillas made in Mexico. However, unbeknownst to Mr. Hardy, the Product is not
`
`made in Mexico. Mr. Hardy would not have purchased the Product or would have paid
`
`significantly less for it had he known that it was not made in Mexico. Therefore, Mr. Hardy
`
`suffered an injury-in-fact and lost money as a result of Defendant’s misleading, false, unfair,
`
`and fraudulent practices, as described herein.
`
`11.
`
`Despite being misled, Mr. Hardy would purchase the Product in the future if the
`
`Product was in fact made in Mexico. While Mr. Hardy currently believes the Product is not
`
`made in Mexico, he lacks personal knowledge as to Defendant’s specific business practices,
`
`leaving doubt in his mind as to the possibility that in the future the Product might conform to
`
`the representations made on the front label of the Product, and might actually be made in
`
`Mexico. This uncertainty, coupled with his desire to purchase the Product, and the fact that he
`
`regularly visits stores which sell the Product, is an ongoing injury that can and would be
`
`
`
`
`
`
`
`-3-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 4 of 17
`
`rectified by an injunction enjoining Defendant from making the false and/or misleading
`
`representations alleged herein. In addition, Class members will continue to purchase the
`
`Products, reasonably but incorrectly believing that they are made in Mexico, absent an
`
`injunction. Further, money damages alone are an inadequate remedy, as Class members will
`
`continue to purchase the Products.
`
`12.
`
`Defendant Ole Mexican Foods, Inc. maintains its principal place of business in
`
`Norcross, Georgia. Defendant sells a line of products under the brand name La Banderita. The
`
`La Banderita products are available at grocery retailers in New York, and include products like
`
`tortillas, chorizo, chips, and salsas. Defendant, directly and/or through its agents, is responsible
`
`for the manufacturing, packaging, marketing, distribution, and sale of the Products in New
`
`York.
`
`FACTUAL ALLEGATIONS
`
`13.
`
`Tortillas are a staple of Mexican cuisine. They are flat, thin, and circular, similar
`
`to a thin flatbread. Typically, they are made from either corn or flour, and used in a variety of
`
`ways.2
`
`14.
`
`Tortillas are considered the national bread of Mexico and are “increasing in
`
`popularity throughout the world,” with most of the tortillas in the world being produced in
`
`Mexico.3
`
`15.
`
`At all relevant times pertaining to this Complaint, the Products were sold in New
`
`York, and across the United States at grocery chains, and other retailers.
`
`2 See Hartley, Alto, A Brief History of the Tortilla, February 16, 2018 available at
`https://altohartley.com/a-brief-history-of-the-tortilla/#:~:text=According%20to
`%20legend%2C%20tortillas%20were,some%20sort%20of%20maize%20bread (last
`visited December 3, 2021)
`3 See L.W. Rooney, et al., Grain-Based Products and Their Processing,
`https://www.sciencedirect.com/topics/food-science/tortilla (last visited December 3, 2021).
`
`
`
`
`
`
`
`-4-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 5 of 17
`
`16.
`
`The packaging of the Products, regardless of size or variety (e.g., corn tortillas
`
`and flour tortillas) all contain the same misleading representations on the front label of the
`
`Products, regarding the Mexican origin of the Products. Specifically, the front label of the
`
`Products all contain:
`
`(a)
`
`(b)
`
`(c)
`
`the phrase “El Sabor de Mexico!” or “A Taste of Mexico!”
`
`a Mexican flag on the front and center of the packaging; and
`
`the brand name “La Banderita” meaning “the flag”, which is a reference
`
`to the Mexican flag displayed prominently on all the Products (the
`
`foregoing representations are herein collectively referred to as the
`
`“Mexican Representations”).
`
`17.
`
`In addition, some of the Products also contain a circular logo on the front label
`
`of the Products, with the Mexican flag and the word “Authentic.” Several of the Products also
`
`contain Spanish words or phrases, on the front label of the Products, such as “Sabrosisimas”
`
`and “Tortillas de Maiz.”
`
`18.
`
`The foregoing representations, on the front label of the Products, taken in
`
`isolation and as a whole, create the misleading impression that the Products are made in
`
`Mexico, even though they are not.
`
`19.
`
`Examples of the front label of each Product are included in the following pages:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-5-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 6 of 17
`Case 1:21-cv-01261 Document1 Filed 12/03/21 Page 6 of 17
`
`
`
`-6-
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 7 of 17
`
`Case 1:21-cv-01261 Document1 Filed 12/03/21 Page 7 of 17
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-7-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 8 of 17
`Case 1:21-cv-01261 Document1 Filed 12/03/21 Page 8 of 17
`
`
`
`-8-
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 9 of 17
`Case 1:21-cv-01261 Document1 Filed 12/03/21 Page 9 of 17
`
`
`
`-9-
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 10 of 17
`
`20.
`
`The Products’ labeling, packaging, and marketing are misleading to reasonable
`
`consumers, including Plaintiff and other Class members, and only serve the profit-maximizing
`
`interests of Defendant.
`
`21.
`
`Defendant deceptively labeled and packaged the Products to target consumers
`
`who are interested in purchasing tortillas from Mexico.
`
`22.
`
`As the entity responsible for the development, manufacturing, packaging,
`
`advertising, distribution, and sale of the Products, Defendant knew or should have known that
`
`each of the Products falsely and deceptively misrepresents that the Products are made in
`
`Mexico.
`
`23.
`
`Defendant knows, knew or should have known, that Plaintiff and other
`
`consumers did and would rely on the labeling, packaging, and advertising before purchasing
`
`the Products, and would reasonably believe that the Products were made in Mexico because of
`
`the Mexican Representations.
`
`24.
`
`Because the Products are not made in Mexico as reasonably expected by
`
`Plaintiff and other consumers, Defendant’s marketing of the Products was and continues to be
`
`misleading and deceptive.
`
`25.
`
`Each consumer has been exposed to the same or substantially similar deceptive
`
`practices because: (1) each Product contains the Mexican Representations; and (2) each Product
`
`is not made in Mexico.
`
`26.
`
` Plaintiff and other consumers have paid an unlawful premium for the Products.
`
`Plaintiff and other consumers would have paid significantly less for the Products had they
`
`known that the Products were not made in Mexico. In the alternative, Plaintiff and other
`
`consumers would not have purchased the Products at all had they known that the Products were
`
`
`
`
`
`
`
`-10-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 11 of 17
`
`not made in Mexico. Therefore, Plaintiff and other consumers purchasing the Products suffered
`
`injury in fact and lost money as a result of Defendant’s false, unfair, and fraudulent practices,
`
`as described herein.
`
`27.
`
`As a result of its misleading business practices, and the harm caused to Plaintiff
`
`and other consumers, Defendant should be enjoined from deceptively representing that the
`
`Products are made in Mexico. Furthermore, Defendant should be required to pay for all
`
`damages caused to misled consumers, including Plaintiff.
`
`CLASS ACTION ALLEGATIONS
`
`28.
`
`Plaintiff brings this class action pursuant to Rule 23 of the Federal Rules of Civil
`
`Procedure, individually and on behalf of all persons who purchased any of the Products in New
`
`York for personal, family, or household purposes, within the applicable statute-of-limitations
`
`period (the “New York Class” or “Class”).
`
`29.
`
`Excluded from the Class are the following individuals and/or entities: Defendant
`
`and its parents, subsidiaries, affiliates, officers and directors, current or former employees, and
`
`any entity in which Defendant have a controlling interest; all individuals who make a timely
`
`election to be excluded from this proceeding using the correct protocol for opting out; and all
`
`judges assigned to hear any aspect of this litigation, as well as their immediate family members.
`
`30.
`
`Plaintiff reserves the right to modify or amend the definition of the proposed
`
`Class after having had an opportunity to conduct discovery.
`
`31.
`
`Numerosity: The members of the Class are so numerous that individual joinder of
`
`all Class members is impracticable. Defendant has sold at least thousands of packages of the
`
`Products to Class members. There are likely at least thousands of Class members.
`
`
`
`
`
`
`
`-11-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 12 of 17
`
`32.
`
`Common Questions Predominate: There are questions of law and fact common to
`
`the proposed Class that will drive the resolution of this action and will predominate over
`
`questions affecting only individual Class members. These questions include, but are not limited
`
`to, the following:
`
`a. Whether Defendant misrepresented material facts and/or failed to disclose
`
`material facts in connection with the packaging, marketing, distribution, and
`
`sale of the Products;
`
`b. Whether Defendant’s use of false or deceptive packaging and advertising
`
`constituted false or deceptive advertising;
`
`c. Whether Defendant engaged in unfair, unlawful and/or fraudulent business
`
`practices;
`
`d. Whether Defendant’s conduct violated
`
`the numerous state consumer
`
`protection statutes alleged herein;
`
`e. Whether Defendant’s unlawful conduct, as alleged herein, was intentional and
`
`knowing;
`
`f. Whether Plaintiff and the Class are entitled to damages and/or restitution, and
`
`in what amount;
`
`g. Whether Defendant is likely to continue using false, misleading or unlawful
`
`conduct such that an injunction is necessary; and
`
`h. Whether Plaintiff and the Class are entitled to an award of reasonable
`
`attorneys’ fees, interest, and costs of suit.
`
`33.
`
`Defendant is engaged in a common course of conduct giving rise to violations of
`
`the legal rights sought to be enforced uniformly by Plaintiff and Class members. Similar or
`
`
`
`
`
`
`
`-12-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 13 of 17
`
`identical statutory and common law violations, business practices, and injuries are involved. The
`
`injuries sustained by members of the proposed Class flow, in each instance, from a common
`
`nucleus of operative fact, namely, Defendant’s deceptive packaging and advertising of the
`
`Products. Each instance of harm suffered by Plaintiff and Class members has directly resulted
`
`from a single course of illegal conduct. Therefore, individual questions, if any, pale in
`
`comparison to the numerous common questions presented in this action.
`
`34.
`
`Superiority: Because of the relatively small size of the individual Class members’
`
`claims, no Class member could afford to seek legal redress on an individual basis. Furthermore,
`
`individualized litigation increases the delay and expense to all parties and multiplies the burden
`
`on the judicial system presented by the complex legal and factual issues of this case.
`
`Individualized litigation also presents a potential for inconsistent or contradictory judgments. A
`
`class action is superior to any alternative means of prosecution.
`
`35.
`
`Typicality: The representative Plaintiff’s claims are typical of those of the
`
`proposed Class, as all members of the proposed Class are similarly affected by Defendant’s
`
`uniform unlawful conduct as alleged herein.
`
`36.
`
`Adequacy: Plaintiff will fairly and adequately protect the interests of the proposed
`
`Class as his interests do not conflict with the interests of the members of the proposed Class he
`
`seeks to represent, and he has retained counsel competent and experienced in class action
`
`litigation. The interests of the members of the Class will be fairly and adequately protected by
`
`the Plaintiff and his counsel.
`
`37.
`
`This lawsuit is maintainable as a class action under Federal Rule of Civil
`
`Procedure 23 because Defendant acted, or failed to act, on grounds generally applicable to
`
`
`
`
`
`
`
`-13-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 14 of 17
`
`Plaintiff and the proposed Class, supporting the imposition of uniform relief to ensure
`
`compatible standards of conduct toward the members of the Class.
`
`FIRST CLAIM FOR RELIEF
`Violation of N.Y. Gen. Bus. Law § 349
`(for the New York Class)
`Plaintiff repeats the allegations contained in paragraphs 1-37 above as if fully set
`
`38.
`
`forth herein.
`
`39.
`
`Plaintiff brings this claim on behalf of himself and on behalf of the members of
`
`the New York Class.
`
`40.
`
`New York General Business Law (“GBL”) § 349 declares unlawful “[d]eceptive
`
`acts or practices in the conduct of any business, trade or commerce . . .” GBL § 349(a).
`
`41.
`
`The practices alleged herein – namely, deceiving consumers into believing that
`
`the Products are made in Mexico, when they are not – are unfair, deceptive, and misleading, in
`
`violation of GBL § 349.
`
`42.
`
`The foregoing deceptive acts and practices were directed at Plaintiff and members
`
`of the New York Class.
`
`43.
`
`Defendant’s misrepresentations regarding the Products are material to a
`
`reasonable consumer as the Mexican Representations relate to the origin of the Products. A
`
`reasonable consumer attaches importance to such representations and is induced to act thereon
`
`in making purchase decisions.
`
`44.
`
`At all relevant times, Defendant has known or reasonably should have known
`
`that the Products are not made in Mexico, and that Plaintiff and other members of the New
`
`York Class would reasonably and justifiably rely on the labeling in purchasing the Products.
`
`45.
`
`Plaintiff and members of the New York Class have been injured as a direct and
`
`proximate result of Defendant’s misleading and fraudulent conduct described above as they
`
`
`
`
`
`
`
`-14-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 15 of 17
`
`would have paid significantly less for the Products, or would have purchased the Products, had
`
`they known that they are not made in Mexico.
`
`46.
`
`As a result of Defendant’s unlawful action, Plaintiff and members of the New
`
`York Class seek to enjoin Defendant’s deceptive and unlawful acts and practices described
`
`herein, to recover actual damages or fifty dollars (or both), whichever is greater, as well as treble
`
`damages, reasonable attorneys’ fees, and all other remedies this Court deems proper.
`
`SECOND CLAIM FOR RELIEF
`Violation of N.Y. Gen. Bus. Law § 350
`(for the New York Class)
`Plaintiff repeats the allegations contained in paragraphs 1-37 above as if fully set
`
`47.
`
`forth herein.
`
`48.
`
`Plaintiff brings this claim on behalf of himself and on behalf of the members of
`
`the New York Class.
`
`49.
`
`GBL § 350 provides in relevant part: “False advertising in the conduct of any
`
`business, trade or commerce . . . in this state is hereby declared unlawful.”
`
`50.
`
`In turn, GBL § 350-a defines false advertising as:
`
`“[a]dvertising, including labeling, of a commodity . . . if such advertising is misleading in
`a material respect. In determining whether any advertising is misleading, there shall be
`taken into account (among other things) not only representations made by statement,
`word, design, device, sound or any combination thereof, but also the extent to which the
`advertising fails to reveal facts material in the light of such representations with respect to
`the commodity . . . to which the advertising relates under the conditions proscribed in
`said advertisement, or under such conditions as are customary or usual.”
`
`51.
`
`Defendant’s actions are untrue and misleading through their deceptive packaging
`
`and marketing of the Products, which deceives consumers into believing that the Products are
`
`made in Mexico, when the Products are actually made in the U.S.
`
`52.
`
`The foregoing misleading acts and practices were directed to Plaintiff and
`
`members of the New York Class.
`
`
`
`
`
`
`
`-15-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 16 of 17
`
`53.
`
`Defendant’s false and misleading representations regarding the Products are
`
`material to a reasonable consumer because they relate to the origins of the Products (i.e., where
`
`the Products are made) purchased by the consumer. A reasonable consumer attaches importance
`
`to such representations and is induced to act thereon in making purchasing decisions.
`
`54.
`
`The foregoing misrepresentations have resulted in consumer injury or harm to the
`
`New York public.
`
`55.
`
`Plaintiff and members of the New York Class have been injured as a direct and
`
`proximate result of Defendant’s violations described above, as they would not have purchased
`
`the Products, or would have paid significantly less for them, had they known that the Products
`
`are not made in Mexico.
`
`56.
`
`As a result of Defendant’s unlawful action, Plaintiff and members of the New
`
`York Class seek to enjoin Defendant’s misleading and unlawful acts and practices described
`
`herein, to recover actual damages or five hundred dollars per violation, whichever is greater (or
`
`both), as well as treble damages, reasonable attorneys’ fees, and all other remedies this Court
`
`deems proper.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, individually and on behalf of the Class, respectfully prays for
`
`following relief:
`
`A.
`
`Certifying
`
`the Class as requested herein, designating Plaintiff as class
`
`representative, and appointing the undersigned counsel as class counsel;
`
`B.
`
`Declaring that Defendant is financially responsible for notifying the New York
`
`Class members of the pendency of this suit;
`
`
`
`
`
`
`
`-16-
`
`

`

`Case 1:21-cv-01261 Document 1 Filed 12/03/21 Page 17 of 17
`
`C.
`
`Ordering restitution and disgorgement of all profits and unjust enrichment
`
`Defendant obtained from Plaintiff and the New York Class members as a result of Defendant’s
`
`unlawful, unfair and fraudulent business practices;
`
`D.
`
`Ordering payment of damages as permitted by
`
`law,
`
`including actual,
`
`compensatory, statutory, and punitive damages, to the full extent permitted by law;
`
`E.
`
`Ordering injunctive relief as permitted by law or equity, including enjoining
`
`Defendant from continuing the unlawful practices as set forth herein, and ordering Defendant to
`
`engage in a corrective advertising campaign;
`
`F.
`
`Ordering Defendant to pay attorneys’ fees and litigation costs to Plaintiff and the
`
`other members of the New York Class;
`
`G.
`
`Ordering Defendant to pay both pre- and post-judgment interest on any amounts
`
`awarded; and
`
`H.
`
`Ordering such other and further relief as may be just and proper.
`
`
`
`
`DATED: December 3, 2021
`
`
`
`
`
`
`
`DEMAND FOR JURY TRIAL
`
`Plaintiff hereby demands a trial by jury of all claims in this Complaint so triable.
`
`
`
`
`
`
`
`FARUQI & FARUQI, LLP
`
`By: /s/ Innessa M. Huot
`
`Innessa M. Huot (IH-1916)
`
`
`685 Third Avenue, 26th Floor
`New York, NY 10017
`Tel: 212-983-9330
`Fax: 212-983-9331
`E-mail: ihuot@faruqilaw.com
`
`Attorney for Plaintiff and the
`proposed Class
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-17-
`
`