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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`BUFFALO DIVISION
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`Zilphia Howze, individually and on behalf of
`all others similarly situated,
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`1:22-cv-00351
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`Mondelēz Global LLC,
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`
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`Defendant
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`Jury Trial Demanded
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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. Mondelēz Global LLC (“Defendant”) manufactures, labels, markets, and sells
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`shortbread cookies under the Lorna Doone brand (“Product”).
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`2.
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`The representations of the square cookies, “Lorna Doone,” and tartan (plaid)
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`
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`packaging, are evocative of Scottish themes.
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`3.
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`The brand name, “Lorna Doone,” comes from the name of a character in an 1869
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`Scottish novel by R.D. Blackmore.
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`4.
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`The interlocking yellow and white stripes are referred to as a tartan and are part of
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 2 of 18
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`Scotch culture.
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`5.
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`The representations are misleading to consumers because despite an expectation that
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`a product identified as shortbread contains some butter, the Product contains no butter.
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`6.
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`Shortbread was invented in Scotland centuries ago and derived its name from its
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`short, or crumbly, structure, caused by the high proportion of fat, in the form of butter.
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`7.
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`The high fat content of shortbread inhibits gluten, allowing the dough to rise,
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`contributing to the tender, crumbly texture.
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`8. All forms of baked goods identified as shortbread are based on sugar, shortening in
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`the form of butter, and wheat flour.
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`9. Dictionary.com defines shortbread as a “a butter cookie commonly made in thick,
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`pie-shaped wheels or rolled and cut in fancy shapes.”
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`10. Lexico, from Oxford Dictionary, calls it a “crisp, rich, crumbly type of cookie made
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`with butter, flour, and sugar.”
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`11. The Cambridge Dictionary describes a type of sweet cookie that contains a lot of
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`butter.
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`12. Collins Dictionary defines it as a kind of cookie made from flour, sugar, and butter.
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`13. Google Dictionary – based on its leading search engine that discovers the most
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`relevant and accurate information – defines shortbread as a crisp, rich, crumbly type of cookie
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`made with butter, flour, and sugar.
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`14. Other dictionaries define it as “[A] cookie made of flour, sugar, and much butter or
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`other shortening” and “a hard sweet cookie made with a large amount of butter.”
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`15. Commercial treatises define shortbread consistently with mainstream dictionaries.
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`16.
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`In Biscuit Manufacture: Fundamentals of In-Line Production, P.R. Whitely
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`2
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 3 of 18
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`emphasized that that while shortbread is not required to only have butter, it must have a significant
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`percentage of butter relative to any other shortening ingredients.
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`17. Nicholas Malgieri, author of “How to Bake” by Harper Collins, concurred with
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`Whitely’s analysis, noting, “You can't make shortbread without butter.”
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`18. The expectation that shortbread is made with butter is not limited to experts in food
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`science.
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`19. One amateur food writer noted that most experts have agreed that whether shortbread
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`is made commercially or in one’s kitchen, the presence of butter is essential.
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`20. A popular recipe website emphasizes the importance of butter to shortbread, advising
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`to use only butter and not vegetable oils, because this negatively affects not only the taste but the
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`crumbly texture.
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`21. A layperson recently reviewing the Product on Amazon.com was critical, asking
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`rhetorically, “How can you make shortbread without butter?”
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`22. Since the time butter was first discovered, there have been attempts to imitate it with
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`lower quality substitutes.
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`23. Since the late nineteenth century, this has been in the form of vegetable oils.
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`24. Vegetable oils like palm oil are solid at room temperature and referred to as “hard
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`[vegetable] fats.”
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`25. Vegetable fats are unable to provide the structural, organoleptic, nutritional, and
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`sensory properties to shortbread that butter does.
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`26. Consumers expect that a food identified as shortbread contains at least some butter.
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`27. However, the Product’s ingredient list reveals it is inconsistent with what consumers
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`expect from shortbread cookies, shown by the absence of butter.
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`3
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 4 of 18
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`INGREDIENTS: UNBLEACHED ENRICHED FLOUR
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`(WHEAT FLOUR, NIACIN, REDUCED IRON, THIAMINE
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`MONONITRATE
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`{VITAMIN
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`B1},
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`RIBOFLAVIN
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`{VITAMIN B2}, FOLIC ACID), SUGAR, CANOLA OIL,
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`PALM OIL, CORN FLOUR, SALT, HIGH FRUCTOSE
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`CORN SYRUP, BAKING SODA, SOY LECITHIN,
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`CORNSTARCH, ARTIFICIAL FLAVOR.
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`28.
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`In place of using any butter, the Product exclusively uses vegetable shortening,
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`shown through the listing of “CANOLA OIL [and] PALM OIL,” as the third and fourth
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`ingredients, after flour and sugar.
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`29. The result of substituting vegetable oils for butter is that the Product lacks the
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`nutritional, organoleptic, and sensory attributes of shortbread.
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`30. The substitution of palm oil and canola oil for butter reduces costs.
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`31. Butter does more than provide structure and texture to shortbread, but imparts a
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`butter taste, due to the hundreds of lactones or aroma compounds it contains.
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`32.
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`In place of butter, the Product adds artificial flavor to imitate the flavor of butter.
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`33. The addition of artificial flavor is required to be disclosed on the front label, i.e.,
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`“Artificially Flavored Shortbread Cookies.” See 21 C.F.R. § 101.22(i)(2).
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`34. The front label does not tell consumers they are getting a “Shortbread-Style Cookie”
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`or a “Shortbread Flavored Cookie,” but a “Shortbread Cookie.”
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`35. Shortbread cookies made with the expected ingredients are not a rare or pricy
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`delicacy that would make a reasonable consumer “double check” to confirm the presence of butter
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 5 of 18
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`by scouring the packaging.
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`36. These products exist in the marketplace and are not technologically or otherwise
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`unfeasible to produce.
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`37. While some brands of shortbread cookies highlight that they are made with butter,
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`this is not required or universal, because manufacturers and consumers understand and expect
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`shortbread to be made with butter.
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`38. For instance, Favorite Day brand from Target sells “Butter Shortbread” cookies
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`described as “made with real butter.”
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`
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`INGREDIENTS: ENRICHED WHEAT
`FLOUR (WHEAT FLOUR, NIACIN,
`REDUCED IRON, THIAMIN MONO-
`NITRATE, RIBOFLAVIN, FOLIC
`ACID), SALTED BUTTER (CREAM,
`SALT), POWDERED SUGAR (CANE
`SUGAR, CORN STARCH), VANILLA,
`SEA SALT.
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`
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`39. The ingredients in the Favorite Day shortbread list only butter for shortening.
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`40. Walker’s Pure Butter Shortbread lists only butter for shortening.
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 6 of 18
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`INGREDIENTS:
`WHEAT FLOUR, BUTTER, SUGAR, SALT
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`41. Even where shortbread cookies do not use the term “butter” on their front label, they
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`are still made with butter.
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`42. For instance, Dublin Shortbread by Pepperidge Farm lacks any references to butter.
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`6
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 7 of 18
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`
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`MADE FROM: ENRICHED WHEAT FLOUR
`(FLOUR, NIACIN, REDUCED IRON, THIAMINE
`MONONITRATE, RIBOFLAVIN, FOLIC ACID),
`BUTTER, SUGAR, FRUCTOSE, CONTAINS 2%
`OR LESS OF: NONFAT MILK, EGG WHITES,
`SALT, BAKING SODA, NATURAL FLAVOR,
`SOY LECITHIN.
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`
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`43. However, the ingredients list only butter as a shortening ingredient.
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`44. Other shortbread cookies that do not contain butter as the exclusive shortening
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`ingredient will still contain some butter.
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`45.
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`In contrast, the Product has no butter.
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`46. Consumers expect that companies – especially larger and respected businesses, to
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`tell them the truth, not half-truths.
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`47. Consumers of the Product will not be so distrustful to scrutinize the fine print of the
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`ingredient list to confirm the that it lacks butter.
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`48. Consumers expect shortbread cookies, especially where the labeling invokes Scottish
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`themes, through the Lorna Doone name and plaid packaging, to contain butter.
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 8 of 18
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`49. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`50. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`51. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`52. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`53. Had Plaintiff and 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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`54.
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`
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`The Product is sold for a price premium compared to other similar products, no less than
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`approximately $3.79 for three packages of three cookies (4.5 OZ or 129g), a higher price than it
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`would otherwise be sold for, absent the misleading representations and omissions.
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`Similar products which have an equivalent amount and/or proportion of shortbread ingredients are
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`sold for a lower price of approximately $3.29 for three packages of three cookies (4.5 OZ or 129g).
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`55.
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`
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`56. 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 $3.79 for three packages of three cookies
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`(4.5 OZ or 129g), excluding tax and sales, higher than similar products represented in a non-
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`misleading way, and higher than it would be sold for absent the misleading representations and
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`omissions.
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 9 of 18
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`57. Other similar products which contain butter are sold for lower prices.
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`Jurisdiction and Venue
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`58.
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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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`59. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`60. Plaintiff Zilphia Howze is a citizen of New York.
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`61. Defendant Mondelēz Global LLC is a Delaware limited liability company with a
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`principal place of business in East Hanover, Morris County, New Jersey. and upon information
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`and belief, at least one member of defendant is not a citizen of the same state as the plaintiff.
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`62. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
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`63. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold with the representations described here, in thousands of locations, in the
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`states covered by Plaintiff’s proposed classes.
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`64. The Product is available to consumers from grocery stores, dollar stores, warehouse
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`club stores, drug stores, convenience stores, big box stores, and online.
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`65. Venue is in the Buffalo Division in this District because a substantial part of the
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`events or omissions giving rise to these claims occurred in Erie County, including Plaintiff’s
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`purchase, consumption, and/or use of the Product and awareness and/or experiences of and with
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`the issues described here.
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`Parties
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`66. Plaintiff Zilphia Howze is a citizen of Buffalo, Erie, New York.
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`67. Defendant Mondelēz Global LLC is a Delaware limited liability company with a
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`principal place of business in East Hanover, New Jersey, Morris County.
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`68. The predecessor of Mondelēz was the National Biscuit Company (“Nabisco”),
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`formed in 1898 from a merger of over 100 bakeries.
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`69. Nabisco revolutionized packaged snacks through wrapping which maintained
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`freshness and kept out debris.
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`70. Prior to this, crackers were sold loose in a barrel, which is where the term “cracker
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`barrel” comes from.
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`71. Nabisco introduced numerous staples of American pantries, including Oreo Cookies,
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`Barnum’s Animal Crackers, Honey Maid Grahams, Ritz crackers, Wheat Thins, Saltines, and
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`Chips Ahoy.
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`72. Nabisco was one of the largest advertisers for much of its history, which created a
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`great reservoir of public trust.
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`73. Nabisco emphasized its commitment to quality products, labeled honestly, in support
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`of giving workers the value they deserve, which Defendant continues to do.
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`74. These facts show a company with a significant amount of goodwill and equity when
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`it comes to consumer purchasing.
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`75. The Product is available to consumers from grocery stores, dollar stores, warehouse
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`club stores, drug stores, convenience stores, big box stores, and online.
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`76. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at stores including CVS, 2000 Kensington Ave
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`Amherst NY 14226-4611, between February 15, 2022, and March 15, 2022, and/or among other
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`times.
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 11 of 18
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`77. Plaintiff believed and expected the Product contained ingredients expected of
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`shortbread, like some amount of butter, instead of not having any butter because that is what the
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`representations and omissions said and implied, on the front label and the absence of any reference
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`or statement elsewhere on the Product.
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`78. Through reading and understanding
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`the Product’s
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`labeling,
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`including
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`the
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`identification as shortbread cookies, the Scottish themes, and awareness of the use of butter for
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`shortbread cookies, Plaintiff expected the Product contained some butter.
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`79.
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`references to vitamin C, Plaintiff eschewed consumption of foods which were natural
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`sources of vitamin C and/or and did not consult the Nutrition Facts.
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`80. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
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`packaging, tags, and/or images on the Product, on the labeling, statements, omissions, claims,
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`statements, and instructions, made by Defendant or at its directions, in digital, print and/or social
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`media, which accompanied the Product and separately, through in-store, digital, audio, and print
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`marketing.
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`81. Plaintiff bought the Product at or exceeding the above-referenced price.
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`82. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`83. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`84. The Product 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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`85. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 12 of 18
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`86. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar shortbread cookies, because she is unsure whether those representations are
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`truthful.
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`Class Allegations
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`87. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`New York Class: All persons in the State of New
`York who purchased the Product during the statutes
`of limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Rhode Island, Texas, New Mexico,
`Maine and Louisiana, who purchased the Product
`during the statutes of limitations for each cause of
`action alleged.
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`88. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`89. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`90. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`91. 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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`92.
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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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`93. Plaintiff's counsel is competent and experienced in complex class action litigation
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 13 of 18
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`and intends to protect class members’ interests adequately and fairly.
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`New York General Business Law (“GBL”) §§ 349 & 350
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`(Consumer Protection Statute)
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`94. Plaintiff incorporates by reference all preceding paragraphs.
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`95. Plaintiff believed the Product contained ingredients expected of shortbread, like
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`some amount of butter, instead of not having any butter.
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`96. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`97. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`98. Plaintiff relied on the representations and omissions to believe the Product contained
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`ingredients expected of shortbread, like some amount of butter, instead of not having any butter.
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`99.
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` 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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` Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`100. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`101. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`102. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 14 of 18
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`rely upon its deceptive conduct.
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`103. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`104. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`105. The Product was manufactured, identified, marketed and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff and class members that it contained ingredients
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`expected of shortbread, like some amount of butter, instead of not having any butter.
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`106. Defendant directly marketed the Product to Plaintiff and consumers through its
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`advertisements and marketing, through various forms of media, on the packaging, in print
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`circulars, direct mail, product descriptions distributed to resellers, and targeted digital advertising.
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`107. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`108. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant that it contained ingredients
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`expected of shortbread, like some amount of butter, instead of not having any butter.
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`109. Defendant’s representations affirmed and promised that the Product contained
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`ingredients expected of shortbread, like some amount of butter, instead of not having any butter.
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`110. Defendant described the Product so Plaintiff and consumers believed it contained
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`ingredients expected of shortbread, like some amount of butter, instead of not having any butter,
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`which became part of the basis of the bargain that it would conform to its affirmations and
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`promises.
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 15 of 18
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`111. 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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`112. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted company known for its high quality products.
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`113. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`114. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`115. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`116. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`117. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`118. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container or label, because it was marketed
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`as if it contained ingredients expected of shortbread, like some amount of butter, instead of not
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`having any butter.
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`119. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because she expected it contained
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`ingredients expected of shortbread, like some amount of butter, instead of not having any butter,
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`and she relied on Defendant’s skill and judgment to select or furnish such a suitable product.
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 16 of 18
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`120. 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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`121. Defendant had a duty to truthfully represent the Product, which it breached.
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`122. This duty was non-delegable, and based on Defendant’s position, holding itself out
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`as having special knowledge and experience in this area, a trusted company known for its high
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`quality products.
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`123. Defendant’s representations and omissions regarding the Product went beyond the
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`specific representations on the packaging, as they incorporated the extra-labeling promises and
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`commitments to quality, transparency and putting customers first, that it has been known for.
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`124. These promises were outside of the standard representations that other companies
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`may make in a standard arms-length, retail context.
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`125. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in Defendant.
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`126. 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, their purchase of the
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`Product.
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`127. 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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`128. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained ingredients expected of shortbread, like some amount of butter, instead of not
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`having any butter.
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 17 of 18
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`129. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity and deception, through statements and omissions.
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`130. Defendant knew of the issues described here yet did not address them.
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`131. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`132. 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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`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. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims;
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`4. Awarding costs and expenses, including reasonable fees for Plaintiff's attorneys and
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`experts; and
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`5. Other and further relief as the Court deems just and proper.
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`Dated: May 11, 2022
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`Respectfully submitted,
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`
`17
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`Case 1:22-cv-00351-JLS Document 1 Filed 05/11/22 Page 18 of 18
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`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`18
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