throbber
Case: 5:22-cv-01151-SL Doc #: 1 Filed: 06/29/22 1 of 20. PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
`
`
`CASE NO.:
`
`JURY TRIAL DEMANDED
`
`
`Plaintiff,
`
`JOE PISCIOTTI, individually, and on behalf
`of all others similarly situated,
`
`
`
` v.
`
`THE J.M. SMUCKER COMPANY,
`
`
`
`
`Defendant.
`
`
`
`
`
`
`CLASS ACTION COMPLAINT
`
`Plaintiff JOE PISCIOTTI (“Plaintiff”), individually, and on behalf of all others similarly
`
`situated, by and through counsel, brings this Class Action Complaint against Defendant THE
`
`J.M. SMUCKER COMPANY (“Defendant”).
`
`INTRODUCTION
`
`1.
`
`This consumer class action arises out of Defendant’s unlawful and unreasonable
`
`conduct directly causing a Salmonella outbreak impacting potentially thousands of U.S. consumers
`
`who purchased and/or consumed certain lots of Jif peanut butter.
`
`2.
`
`On May 20, 2022, Defendant announced that it was “recalling select Jif® peanut
`
`butter products sold in the U.S. due to potential salmonella contamination.” See J.M. Smucker Co.
`
`Company Announcement, attached hereto as Exhibit A. “The recalled peanut butter was
`
`distributed nationwide in retail stores and other outlets” and include the lot codes 1274425–
`
`2140425. Id.
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`

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`3.
`
`Also on May 20, 2022, the Food and Drug Administration (“FDA”) published
`
`“Outbreak Investigation of Salmonella: Peanut Butter (May 2022)”, attached hereto as Exhibit B,
`
`notifying the public of its investigation in conjunction with the U.S. Centers for Disease Control
`
`and Prevention (“CDC”) and local partners into a “multistate outbreak of Salmonella Senftenberg
`
`infections linked to certain Jif brand peanut butter products produced at the J.M. Smucker
`
`Company facility in Lexington, Kentucky.”
`
`4.
`
`According to the CDC, as of May 25, 2022, there were 16 reported cases of
`
`Salmonella connected to Defendant’s Jif—100% of the people who were interviewed reported
`
`eating peanut butter prior to becoming ill, and 90% of those interviewed reported which brand
`
`peanut butter and all of them identified Jif. As a result, “Epidemiological evidence indicates that
`
`Jif brand peanut butter produced the strain causing illnesses” in the outbreak. See 2022 Recalls of
`
`Food Products Associated with Peanut Butter from J.M. Smucker Company due to the Potential
`
`Risk of Salmonella,” attached hereto as Exhibit C.
`
`5.
`
`Other products incorporating the contaminated peanut butter are also subject to
`
`recalls, such as products sold by Fudgeamentals, Del Monte, Albertsons Companies, Coblentz
`
`Chocolate Company, Mary’s Harvest fresh Foods Inc., Garden But, LLC, TAHER, INC., Country
`
`Fresh, Cargill, and Wawa. See Exhibit C. These other products, as well as the recalled Jif products,
`
`are collectively referred to as the “Contaminated Products.”
`
`6.
`
`The FDA advised purchasers of the Contaminated Products not to eat them. See
`
`Exhibit B.
`
`7.
`
`However, prior to the recall, Plaintiff purchased Jif brand peanut butter and
`
`consumed it. Shortly after consuming it, Plaintiff became ill.
`
`2
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`8.
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`Defendant’s violations of laws and regulations prohibiting the sale of contaminated
`
`and misbranded food, deviations from reasonable manufacturing and production standard
`
`practices, and failures to ensure the quality and safety of the Contaminated Products prior to sale
`
`directly caused Plaintiff’s and Class members’ economic and noneconomic losses.
`
`9.
`
`Accordingly, Plaintiff brings this suit on behalf of himself and the Class of similarly
`
`situated individuals for out-of-pocket losses, compensation, personal injuries, medical and
`
`healthcare bills, emotional distress, pain and suffering, and all other relief to which they are
`
`lawfully entitled, resulting from Defendant’s sale of the Contaminated Products.
`
`PARTIES
`
`Plaintiff is a citizen of Illinois.
`
`Defendant is an Ohio corporation with its principal place of business in Orrville,
`
`10.
`
`11.
`
`Ohio.
`
`JURISDICTION AND VENUE
`
`12.
`
`This Court has personal jurisdiction over Defendant because Defendant is
`
`incorporated and at home in Ohio.
`
`13.
`
`This Court has original jurisdiction over the subject matter of this action pursuant
`
`to 28 U.S.C. § 1332(d). As set forth below, the proposed Class includes more than 100 individuals,
`
`and the amount of controversy, in the aggregate, exceeds the sum of $5,000,000 exclusive of
`
`interest and costs, given Defendant’s market reach and the approximate number of potential Class
`
`members in the United States. Based on CDC data, proposed Class members are citizens of states
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`different from Defendant.
`
`14.
`
`Venue is proper in this District under 28 U.S.C. § 1391, because a substantial part
`
`of the events and omissions giving rise to the claims occurred in this District.
`
`3
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`FACTUAL ALLEGATIONS
`
`15.
`
`According to the CDC, Salmonella are a group of bacteria that can cause a
`
`gastrointestinal illness and fever called salmonellosis. Salmonella can be spread by food handlers
`
`who do not wash their hands and/or the surfaces and tools they use between food preparation steps,
`
`and when people eat raw or undercooked foods. Salmonella can also spread from animals to
`
`people. People who have direct contact with certain animals, including poultry and reptiles, can
`
`spread the bacteria from the animals to food if they do not practice proper hand washing hygiene
`
`before handling food. Pets can also spread the bacteria within the home environment if they eat
`
`food contaminated with Salmonella.
`
`16. Most people infected with Salmonella will begin to develop symptoms 12 to 72
`
`hours after infection. Salmonellosis usually lasts four to seven days. Most people with
`
`salmonellosis develop diarrhea, fever, and abdominal cramps. More severe cases of salmonellosis
`
`may include a high fever, aches, headaches, lethargy, a rash, blood in the urine or stool, and in
`
`some cases may become fatal. The CDC estimates that approximately 450 persons in the United
`
`States die each year from acute Salmonellosis.
`
`17.
`
`Due to the range in severity of illness, people should consult their healthcare
`
`provider if they suspect that they have developed symptoms that resemble a Salmonella infection.
`
`Most people who get ill from Salmonella have diarrhea, fever, and stomach cramps. Most people
`
`recover without specific treatment and should not take antibiotics. Antibiotics are typically used
`
`only to treat people who have severe illness or who are at risk for it. Some people’s illness may be
`
`so severe that they need to be hospitalized.
`
`18.
`
`According to the CDC’s website as of the date of this filing, the CDC has connected
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`the Contaminated Products to 16 cases in 12 states resulting in 2 hospitalizations. The CDC
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`4
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`cautions that “[t]he true number of sick people in an outbreak is also likely much higher than the
`
`number reported. This is because many people recover without medical care and are not tested for
`
`Salmonella.” https://www.cdc.gov/salmonella/senftenberg-05-22/epi.html.
`
`19.
`
`20.
`
`The Contaminated Products are present throughout the United States.
`
`The first reported case of Salmonellosis from the Contaminated Products occurred
`
`in February 20, 2022. Given the rapidly developing story, cases are likely occurring as of the filing
`
`of this Complaint.
`
`Defendant’s Jif Peanut Butter
`
`21.
`
`Defendant manufactures, distributes, advertises, markets, and sells Jif peanut butter
`
`(“Jif”). There are many sizes and varieties of Jif available. The contaminated varieties are listed
`
`on Exhibits A and B.
`
`
`
`5
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`22.
`
`The Contaminated Products reportedly originated from Defendant’s Lexington,
`
`Kentucky facility, and were distributed nationwide. The Contaminated Products include those with
`
`lot codes 1274425 – 2140425. Lot codes are included alongside the “best-if-used-by” date on the
`
`product.
`
`23.
`
`On May 20, 2022, Defendant issued a recall, informing purchasers and consumers
`
`of Jif with lot codes 1274425–2140425 that their peanut butter was contaminated with Salmonella.
`
`The FDA instructed consumers not to eat the products. See Exhibit B.
`
`24.
`
`Defendant also distributed the contaminated peanut butter for use as an ingredient
`
`in other products, such as by Fudgeamentals, Del Monte, Albertsons Companies, Coblentz
`
`Chocolate Company, Mary’s Harvest fresh Foods Inc., Garden But, LLC, TAHER, INC., Country
`
`Fresh, Cargill, and Wawa. Those products were also recalled. See Exhibit C.
`
`Defendant’s Unlawful Conduct
`
`25.
`
`Defendant directs, controls, and participates in the manufacturing and packaging of
`
`the Contaminated Products and the peanut butter ingredients in them. As part of that direction,
`
`control, and participation, Defendant determines and is responsible for setting manufacturing and
`
`quality standards, proper hygiene of employees, maintaining clean facilities through reasonable
`
`and necessary health and safety measures, and ensuring that the products manufactured and sold
`
`to consumers comply with federal, state, and local laws and regulations.
`
`26.
`
`Defendant violated state and federal laws and rules prohibiting the sale of
`
`adulterated, contaminated, and misbranded foods; and failed to exercise reasonable care in setting
`
`manufacturing and quality standards, ensuring proper hygiene of employees and equipment,
`
`maintaining clean facilities through reasonable and necessary health and safety measures, and
`
`6
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`

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`ensuring that the products manufactured and sold to consumers comply with federal, state, and
`
`local laws and regulations.
`
`27.
`
`As a result of Defendant’s failures, acts, and omissions, Plaintiff and Class
`
`members suffered injury, including but not limited to out-of-pocket expenses for purchasing
`
`products that were not only worthless but harmful, time and money spent to address symptoms
`
`and consequences of ingesting the Contaminated Products, personal injuries, emotional distress,
`
`and annoyance.
`
`CLASS ALLEGATIONS
`
`28.
`
`Class Definition: Plaintiff brings this action pursuant to Fed. R. Civ. P. 23, on
`
`behalf of a nationwide class of similarly situated individuals and entities (“the Class”), defined as
`
`follows:
`
`
`29.
`
`All persons in the United States who purchased or consumed the
`Contaminated Products.
`
`Illinois Subclass Definition: Plaintiff brings this action pursuant to Fed. R. Civ. P.
`
`23, on behalf of a subclass of similarly situated individuals and entities (“Illinois Subclass”),
`
`defined as follows:
`
`All persons in Illinois who purchased or consumed the Contaminated
`Products.
`
`30.
`
`Excluded from the Class and/or Subclass are: (1) Defendant, Defendant’s agents,
`
`
`
`subsidiaries, parents, successors, predecessors, and any entity in which Defendant or its parents
`
`have a controlling interest; (2) the Judge to whom this case is assigned and the Judge’s immediate
`
`family; (3) any person who executes and files a timely request for exclusion from the Class and/or
`
`Subclass; (4) any persons who have had their claims in this matter finally adjudicated and/or
`
`7
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`otherwise released; and (5) the legal representatives, successors and assigns of any such excluded
`
`person.
`
`31.
`
`Numerosity: The Class and Subclass are each so numerous that joinder of
`
`individual members would be impracticable. While the exact number of Class and Subclass
`
`members is presently unknown and can only be ascertained through discovery, Plaintiff believes
`
`that there are thousands of Class and Subclass members, if not more. Jif was the leading peanut
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`butter brand in the United States in 2017 by a wide margin, controlling over 30 percent of the
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`market in that year. This market share translates into sales of over $587 million in 2017.
`
`https://www.statista.com/statistics/586957/market-share-peanut-butter-brands-in-the-united-
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`states/.
`
`32.
`
`Commonality and Predominance: There are several questions of law and fact
`
`common to the claims of Plaintiff and Class members, which predominate over any individual
`
`issues, including:
`
`a.
`
`Whether Defendant failed to exercise reasonable care in manufacturing the
`
`products;
`
`b.
`
`Whether the contamination occurred as a result of Defendant’s failure to
`
`exercise reasonable care in manufacturing the products;
`
`c.
`
`Whether Defendant misrepresented to Plaintiff and Class members that the
`
`Contaminated Products were safe for human consumption and did not
`
`contain Salmonella;
`
`d.
`
`Whether Defendant omitted and concealed the presence of Salmonella in
`
`the Contaminated Products;
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`8
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`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`Whether the presence of Salmonella in the Contaminated Products is a
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`material fact to Plaintiff and Class members;
`
`Whether Defendant’s conduct constitutes unlawful acts or practices under
`
`state consumer protection and unfair or deceptive practices statutes asserted
`
`herein;
`
`Whether Defendant’s conduct constitutes fraudulent concealment;
`
`Whether Defendant was unjustly enriched by its improper conduct;
`
`Whether Plaintiff and Class members are entitled to injunctive relief to (1)
`
`require Defendant to cease its unlawful and deceptive practices; and (2) to
`
`implement and maintain adequate manufacturing procedures, final product
`
`testing procedures, and ingredient sourcing and inspection practices to
`
`ensure its products do not become contaminated; and
`
`j.
`
`Whether Defendant’s conduct resulted in Defendant unjustly retaining a
`
`benefit to the detriment of Plaintiff and Class members, and violated the
`
`fundamental principles of justice, equity, and good conscience.
`
`33.
`
`Typicality: Plaintiff’s claims are typical of the claims of the proposed Class. All
`
`claims are based on the same legal and factual issues regarding Defendant’s failures to exercise
`
`reasonable care in manufacturing, and Defendant’s misrepresentations and omissions concerning
`
`the presence of Salmonella in the Contaminated Products.
`
`34.
`
`Adequacy: Plaintiff will fairly and adequately represent and protect the interests of
`
`the proposed Class, and Plaintiff does not have any interests antagonistic to those of the proposed
`
`Class. Plaintiff has retained competent counsel experienced in the prosecution of this type of
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`litigation.
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`9
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`35.
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`Superiority: A class action can best secure the economies of time, effort and
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`expense, and promote uniformity. A class action is superior to other available methods for the fair
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`and efficient adjudication of this controversy. The expense and burden of individual litigation
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`would make it impracticable or impossible for proposed Class members to prosecute their claims
`
`individually. Individual actions are not feasible and it is unlikely that individual members of the
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`Class will prosecute separate actions. The trial and the litigation of Plaintiff’s claims as a class
`
`action will be manageable.
`
`COUNT I
`(On Behalf of Plaintiff and the Illinois Subclass)
`Violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act
`(815 ILCS 505/1, et seq.)
`
`Plaintiff repeats and realleges paragraphs 1–35, as if fully set forth herein.
`
`36.
`
`37.
`
`The Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815
`
`ILCS 505/1, et seq., provides protection to consumers by mandating fair competition in
`
`commercial markets for goods and services.
`
`38.
`
`The ICFA prohibits any deceptive, unlawful, unfair, or fraudulent business acts or
`
`practices including using deception, fraud, false pretenses, false promises, false advertising,
`
`misrepresentation, or the concealment, suppression, or omission of any material fact, or the use or
`
`employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices
`
`Act”. 815 ILCS 505/2.
`
`39.
`
`The ICFA applies to Defendant’s acts as described herein because it applies to
`
`transactions involving the sale of goods or services to consumers.
`
`40.
`
`41.
`
`Defendant is a “person,” as defined by 815 ILCS 505/1(c).
`
`Plaintiff and each member of the Illinois Subclass are “consumers,” as defined by
`
`815 ILCS 505/1(e), because they purchased Contaminated Products.
`10
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`

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`42.
`
`43.
`
`The Contaminated Products are “merchandise,” as defined by 815 ILCS 505/1(b).
`
`Defendant made false and fraudulent statements, and misrepresented, concealed,
`
`and omitted material facts regarding the Contaminated Products, including the misrepresentation
`
`that the Contaminated Products were safe for human consumption, and the omission that the
`
`Contaminated Products contained Salmonella.
`
`44.
`
`Defendant’s aforementioned misrepresentations, omissions, and concealment
`
`regarding the Contaminated Products constitute deceptive and unconscionable acts or practices
`
`prohibited by the DTPA.
`
`45.
`
`Defendant’s aforementioned misrepresentations, omissions, and concealment
`
`possess the tendency or capacity to mislead and create the likelihood of consumer confusion.
`
`46.
`
`Defendant’s aforementioned misrepresentations, omissions, and concealment were
`
`used or employed in the conduct of trade or commerce, namely, the marketing, sale, and
`
`distribution of the Contaminated Products to Plaintiff and Illinois Subclass members.
`
`47.
`
`Defendant’s aforementioned misrepresentations, omissions, and concealment are
`
`unconscionable because they offend public policy and/or cause substantial injury to consumers.
`
`48.
`
`Defendant’s aforementioned conduct is deceptive and unlawful because it violated
`
`the Illinois Food, Drug & Cosmetic Act (“IFDCA”), 410 ILCS 620/3–3.3. The Contaminated
`
`Products were adulterated and misbranded, in violation of the IFDCA. 410 ILCS 620/2.11; 410
`
`ILCS 620/14(a)(2)(A), (a)(2)(B), (d).
`
`49.
`
`Defendant intended that Plaintiff and Illinois Subclass members rely on its
`
`respective aforementioned false statements, misrepresentations, omissions, and concealment of
`
`material facts in purchasing Contaminated Products.
`
`11
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`

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`50.
`
`Plaintiff and Illinois Subclass members reasonably relied on Defendant’s respective
`
`misrepresentations, omissions, and concealment when they purchased the Contaminated Products.
`
`51.
`
`Acting as reasonable consumers, had Plaintiff and Illinois Subclass members been
`
`aware of the true facts regarding the presence of Salmonella in the Contaminated Products, they
`
`would have declined to purchase these products.
`
`52.
`
`Acting as reasonable consumers, Plaintiff and Illinois Subclass members could not
`
`have avoided the injuries suffered by purchasing the Contaminated Products because they did not
`
`have any reason to suspect that the products contained Salmonella. Moreover, the detection of
`
`Salmonella in food requires rigorous and specialized scientific testing that goes well beyond the
`
`level of inquiry a reasonable consumer would make into the issue, and, in any event, such testing
`
`was not possible without Plaintiff and Illinois Subclass members first purchasing the Contaminated
`
`Products.
`
`53.
`
`As a direct and proximate result of Defendant’s false, misleading, and deceptive
`
`acts and practices set forth above, Plaintiff and members of the Illinois Subclass suffered damages
`
`by purchasing the Contaminated Products because they would not have purchased them had they
`
`known the truth, and they received a product that was worthless because it contains unsafe
`
`Salmonella.
`
`54.
`
`As a result of Defendant’s failures, acts, and omissions, Plaintiff and Illinois
`
`Subclass members suffered injury, including but not limited to out-of-pocket expenses for
`
`purchasing products that were not only worthless but harmful, time and money spent to address
`
`symptoms and consequences of ingesting the Contaminated Products, personal injuries, emotional
`
`distress, and annoyance.
`
`12
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`

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`55.
`
`These damages were reasonably foreseeable because the Contaminated Products
`
`are known to cause illnesses.
`
`COUNT II
`Negligence
`(On Behalf of Plaintiff and the Class)
`
`Plaintiff repeats and realleges paragraphs 1–35, as if fully set forth herein.
`
`Defendant manufactured distributed, marketed, promoted, and sold
`
`the
`
`56.
`
`57.
`
`Contaminated Products.
`
`58.
`
`Defendant owned a duty of care to Plaintiff and Class members to exercise
`
`reasonable care
`
`in manufacturing, distributing, marketing, promoting, and selling
`
`the
`
`Contaminated Products, including a duty to prevent the sale of food products contaminated with
`
`Salmonella.
`
`59.
`
`Plaintiff and Class members are reasonable consumers who rely on Defendant to
`
`manufacture, distribute, market, promote, and sell its food products in a safe and reasonable
`
`manner in compliance with food health and safety laws.
`
`60.
`
`Defendant was aware that Plaintiff and Class members rely on Defendant to
`
`manufacture and sell safe food products, and in the case of the Contaminated Products, that they
`
`are ready to eat.
`
`61.
`
`Defendant breached its duty of care by:
`
`a.
`
`violating state and federal laws and rules prohibiting the sale of adulterated,
`
`contaminated, and misbranded foods, which laws were designed to protect
`
`the class of persons to which Plaintiff and Class members belong;
`
`b.
`
`failing to exercise reasonable care in setting manufacturing and quality
`
`standards, and ensuring proper hygiene of employees and equipment;
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`13
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`c.
`
`failing to maintain clean facilities through reasonable and necessary health
`
`and safety measures;
`
`d.
`
`failing to ensure that the products that left its facilities were safe for human
`
`consumption; and
`
`e.
`
`failing to warn Plaintiff and Class members that the Contaminated Products
`
`were not safe to eat and were contaminated with Salmonella.
`
`62.
`
`As a direct and proximate result of Defendant’s failures set forth above, Plaintiff
`
`and Class members suffered damages by purchasing the Contaminated Products because they
`
`would not have purchased them had they known the truth, and they received a product that was
`
`worthless because it contains unsafe Salmonella.
`
`63.
`
`As a result of Defendant’s failures, acts, and omissions, Plaintiff and Illinois
`
`Subclass members suffered injury, including but not limited to out-of-pocket expenses for
`
`purchasing products that were not only worthless but harmful, time and money spent to address
`
`symptoms and consequences of ingesting the Contaminated Products, personal injuries, emotional
`
`distress, and annoyance.
`
`64.
`
`These damages were reasonably foreseeable because the Contaminated Products
`
`are known to cause illnesses.
`
`COUNT III
`Strict Product Liability
` (On behalf of Plaintiff and the Class)
`
`Plaintiff repeats and realleges paragraphs 1–35, as if fully set forth herein.
`
`Defendant is in the business of selling Jif peanut butter to consumers.
`
`The Contaminated Products sold by Defendant contained harmful Salmonella when
`
`65.
`
`66.
`
`67.
`
`they left Defendant’s custody and control.
`
`14
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`68.
`
`Despite having a legal duty to do so, Defendant failed to warn or disclose to
`
`customers—including Plaintiff and Class members—that the Contaminated Products contained
`
`contaminants, specifically Salmonella.
`
`69.
`
`The Contaminated Products are unreasonably dangerous and unsafe for human
`
`consumption because Salmonella causes illness, infections, and in some cases severe consequences
`
`such as death.
`
`70.
`
`The Contaminated Products obtained by Plaintiff and Class members were in a
`
`defective and unreasonably dangerous condition at the time they were obtained by Plaintiff and
`
`Class members.
`
`71.
`
`Plaintiff and Class members purchased and/or consumed the Contaminated
`
`Products that they obtained from Defendant.
`
`72.
`
`As a result, Plaintiff and Class members were immediately harmed because they
`
`consumed harmful levels of Salmonella.
`
`73.
`
`As a direct and proximate result of Defendant’s failures set forth above, Plaintiff
`
`and Class members suffered damages by purchasing the Contaminated Products because they
`
`would not have purchased them had they known the truth, and they received a product that was
`
`worthless because it contains unsafe Salmonella.
`
`74.
`
`As a result of Defendant’s failures, acts, and omissions, Plaintiff and Illinois
`
`Subclass members suffered injury, including but not limited to out-of-pocket expenses for
`
`purchasing products that were not only worthless but harmful, time and money spent to address
`
`symptoms and consequences of ingesting the Contaminated Products, personal injuries, emotional
`
`distress, and annoyance.
`
`75.
`
`These damages were reasonably foreseeable because the Contaminated Products
`
`15
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`

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`Case: 5:22-cv-01151-SL Doc #: 1 Filed: 06/29/22 16 of 20. PageID #: 16
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`are known to cause illnesses.
`
`COUNT IV
`Breach of Implied Warranty of Merchantability
` (On behalf of Plaintiff and the Class)
`
`Plaintiff repeats and realleges paragraphs 1–35, as if fully set forth herein.
`
`Defendant, as the seller of Jif peanut butter, impliedly warranted that the
`
`76.
`
`77.
`
`Contaminated Products were safe for human consumption, were not adulterated, and did not
`
`contain Salmonella.
`
`78.
`
`Contrary to those implied warranties, the Contaminated Products which Defendant
`
`manufactured, distributed, and sold were in fact adulterated, and contained Salmonella. Defendant
`
`breached the implied warranty of merchantability.
`
`79.
`
`Plaintiff and Class members purchased and/or consumed the Contaminated
`
`Products in reliance upon Defendant’s implied warranties.
`
`80.
`
`Had Plaintiff and Class members known that the Contaminated Products they
`
`purchased and consumed were adulterated and contained Salmonella, they would not have
`
`purchased or consumed them.
`
`81.
`
`As a direct and proximate result of Defendant’s breaches of warranties set forth
`
`above, Plaintiff and Class members suffered damages by purchasing the Contaminated Products
`
`because they would not have purchased them had they known the truth, and they received a product
`
`that was worthless because it contains unsafe Salmonella.
`
`82.
`
`As a result of Defendant’s failures, acts, and omissions, Plaintiff and Illinois
`
`Subclass members suffered injury, including but not limited to out-of-pocket expenses for
`
`purchasing products that were not only worthless but harmful, time and money spent to address
`
`16
`
`
`

`

`Case: 5:22-cv-01151-SL Doc #: 1 Filed: 06/29/22 17 of 20. PageID #: 17
`
`symptoms and consequences of ingesting the Contaminated Products, personal injuries, emotional
`
`distress, and annoyance.
`
`83.
`
`These damages were reasonably foreseeable because the Contaminated Products
`
`are known to cause illnesses.
`
`COUNT V
`Unjust Enrichment
`(On Behalf of Plaintiff and the Class)
`
`Plaintiff repeats and realleges paragraphs 1–35, as if fully set forth herein.
`
`Defendant knew that the presence of Salmonella in the Contaminated Products was
`
`
`84.
`
`85.
`
`a material fact to consumers, including Plaintiff and Class members.
`
`86.
`
`Because Defendant is responsible for, and controls, the manufacturing, marketing,
`
`distribution, and sale of the Contaminated Products, Defendant knew that its omissions and
`
`concealment of the presence of Salmonella would mislead Plaintiff and Class members, and induce
`
`them to buy products that they would otherwise not have been willing to purchase.
`
`87.
`
`Acting as reasonable consumers, had Plaintiff and Class members been aware of
`
`the true facts regarding the Contaminated Products, they would have declined to purchase them.
`
`88.
`
`Acting as reasonable consumers, Plaintiff and Class members could not have
`
`avoided the injuries because they did not have any reason to suspect that the Contaminated
`
`Products were contaminated. Moreover, due to the products being sold as ready to eat, Plaintiff
`
`and Class members were not required to cook or prepare the food to prevent contamination.
`
`89.
`
`As a direct and proximate result of Defendant’s misrepresentations and omissions,
`
`Plaintiff and Class members conferred a benefit on Defendant—i.e., the money that they paid
`
`under the belief that these products were safe for human consumption.
`
`17
`
`
`

`

`Case: 5:22-cv-01151-SL Doc #: 1 Filed: 06/29/22 18 of 20. PageID #: 18
`
`90.
`
`Defendant acquired and retained money belonging to Plaintiff and Class members
`
`as a result of its wrongful conduct. Defendant profited at the expense of Plaintiff and Class
`
`members because Plaintiff and Class members paid money for products that were worthless due
`
`to the fact that they are not safe for human consumption.
`
`91.
`
`Defendant has unjustly received and retained a benefit at the expense of Plaintiff
`
`and the Class because Defendant unlawfully acquired profits for worthless (and unsafe) food
`
`products while appreciating and knowing that its Contaminated Products were unsafe for human
`
`consumption.
`
`92.
`
`Defendant’s retention of that benefit violates the fundamental principles of justice,
`
`equity, and good conscience. Under the principles of equity, Defendant should not be allowed to
`
`keep the money rightfully belonging to Plaintiff and the Class members.
`
`
`WHEREFORE, Plaintiff, individually, and on behalf of the Class and Subclass, prays for
`
`PRAYER FOR RELIEF
`
`an Order as follows:
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Finding that this action satisfies the prerequisites for maintenance as a class
`action set forth in Fed. R. Civ. P. 23, and certifying the Class and/or
`Subclass defined herein;
`
`Designating Plaintiff as representative of the Class and/or Subclass, and
`designating undersigned counsel as Class Counsel;
`
`Entering judgment in favor of Plaintiff and the Class and/or Subclass, and
`against Defendant;
`
`Awarding Plaintiff and Class and/or Subclass members all relief to which
`they are entitled, including awards for their economic and non-economic
`actual damages, statutory damages, treble damages, enhanced damages, and
`punitive damages for Defendant’s willful and intentional conduct;
`
`Ordering equitable relief, including restitution, disgorgement of any of
`Defendant’s ill-gotten gains, imposing a constructive trust in favor of
`
`18
`
`
`

`

`Case: 5:22-cv-01151-SL Doc #: 1 Filed: 06/29/22 19 of 20. PageID #: 19
`
`Plaintiff and the Class and/or Subclass members, and awarding those
`amounts to Plaintiff and the Class and/or Subclass members;
`
`Granting injunctive relief, including but not limited to, an order: (1)
`requiring Defendant to cease its unlawful and deceptive practices; and (2)
`requiring Defendant to implement and maintain adequate manufacturing
`procedures, final product testing procedures, and ingredient sourcing and
`inspection practices to ensure its products are safe for human consumption;
`
`Awarding Plaintiff and the Class and/or Subclass attorneys’ fees and costs,
`including interest thereon, as allowed or required by law; and
`
`Granting all such further and other relief as the Court deems just and
`appropriate.
`
`F.
`
`G.
`
`H.
`
`
`JURY DEMAND
`Plaintiff demands a trial by jury on all counts so triable.
`
`Respectfully submitted,
`
`
`By: /s/ Marc E. Dann
`
`Marc E. Dann (0039425)
`Brian D. Flick (0081605)
`Michael A. Smith, Jr. (0097147)
`DANN LAW
`15000 Madison Avenue
`Lakewood, Ohio 44107
`(216) 373-0539 phone
`(216) 373-0536 facsimile
`notices@dannlaw.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Thomas A. Zimmerman, Jr.
`tom@attorneyzim.com
`Sharon A. Harris
`sharon@attorneyzim.com
`Matthew C. De Re
`matt@attorneyzim.com
`Jeffrey D. Blake
`jeff@attorneyzim.com
`ZIMMERMAN LAW OFFICES, P.C.
`77 W. Washington Street, Suite 1220
`Chicago, Illinois 60602
`
`19
`
`
`

`

`Case: 5:22-cv-01151-SL Doc #: 1 Filed: 06/29/22 20 of 20. PageID #: 20
`
`(312) 440-0020

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