class-action lawsuit - Truth In Advertising

Transcription

r
Filed 06126/15
Document 1
Case 1:15-cv-03742-KAM-J0
Page
1 of 67
PagelD
1
(07
4,1.!
LEE LITIGATION GROUP, PLLC
C.K. Lee (CL 4086)
30 East 39th Street, Second Floor
New York, NY 10016
rzn
pj
nuEl;:;1;:y
TeL: 212-465-1188
Fax 212-465-1181
Attorneys for Plaintiffs and the Class
ATS
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORENSTEIN', MJ,
MICHELLE HU,
MICHELLE PEERY,
JOHN DOE (ILLINOIS),
JOHN DOE (MICHIGAN),.
JOHN DOE (NEW JERSEY),
JOHN DOE (FLORIDA),
and JOHN DOES 1-100, on behalf of
themselves and others similarly situated,
Case No.
?I'I
fi
eii
t3
I 5.
A-
CLASS ACTION COMPLAINT
Plaintiffs,
against
JURY TRIAL DEMANDED
PERFETTI VAN MELLE USA INC.,
Defendant.
Plaintiffs, MICHELLE HU, MICHELLE PEERY, JOHN DOE (ILLINOIS), JOHN DOE
(MICHIGAN),
individually
as
JOHN DOE
and
and for their
knowledge
as
on
(NEW JERSEY),
behalf of all other persons
Complaint against
upon information and
belief,
allegations
as
set
own
follows
(FLORIDA)
and JOHN DOES 1-100,
similarly situated, by their undersigned attorneys,
the Defendant,
to themselves and their
will exist for the
JOHN DOE
allege
action, and,
(Plaintiffs
forth herein after
a
as
to
following
the
based upon
all other matters,
believe that substantial
reasonable
opportunity
for
personal
respectfully allege,
evidentiary support
discovery):
NATURE OF THE ACTION
1.
This is
a
consumer
improper business practices
protection
action
arising
out of
deceptive
and otherwise
that Defendant, PERFETTI VAN MELLE USA INC.
(hereinafter,
"Perfetti Van Me lle"
or
"Defendant"), engaged
products (hereinafter,
50
piece sugar-free
are
packaged in non-transparent plastic
gum
stores, grocery stores and
Filed 06/26/15
Document 1
in with respect to the
regularly
The Products
sold
are
of its Mentos®
"Products"), which
or
pharmacies,
sold at
2
PagelD
convenience
follows:
FLAVOR1
PRODUCT
Fresh Mint
Pure Fresh
Mentos® 50
as
2 of 67
packaging
the "Mentos® Products"
containers and
supermarkets.
Page
piece sugar-free chewing
Pure Fresh
Spearmint
Pure Fresh
Pure White
Ice
gum Products
Flurry
Bubble Fresh Cotton
Candy
Peppermint/Spearmint
Up2U
Strawberry/Blackberry
Up2U
Sweet
(Mentos®
2.
50
piece sugar-free chewing gum products, referred herein as the "Products").
Defendant manufactures, markets and sells the Products with non-functional
slack-fill in violation of the Federal Food Drug & Cosmetic Act
U.S.C.
343(d)),
prohibiting
the Code of Federal
misbranded food of the
Regulations
fifty
("FDCA") Section 403(d) (21
Title 21 part 100, et. seq.,
states and the District of
as
well
as
state laws
Columbia, which impose
requirements identical to federal law.
3.
Upon information and belief, Defendant sold and continues
with non-functional slack-fill
4.
during the
class
period.
Images of the Products in various
The non-transparent containers of the Products
transparent wrappings
so
to sell the Products
flavors
are
are
provided herein under EXHIBIT
invariably covered with brightly colored,
that Plaintiffs and Class members cannot
fill in the container. As shown below, the size of the containers in
see
A.
non-
the non-functional slack-
comparison
to
the volume of
The flavors listed in the above table is only intended to be an incomprehensive list of all the flavors of
the Products sold in all fifty states and the District of Columbia.
2
the Products contained therein makes it appear
than what is
actually being
Filed 06/26/15
Document 1
as
Page
Plaintiffs and Class members
sold:
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Plaintiffs and Class members viewed Defendant's
reasonably relied in substantial part on the representations
to
purchase
6.
the Products for
a
and
misleading
were
Product
packaging,
thereby deceived in deciding
premium price.
Plaintiffs bring this
proposed
all other persons nationwide, who from the
consumer
applicable
class action
limitations
present (the "Class Period"), purchased for consumption and
5
on
behalf of themselves and
period
up to and
not for resale
including
of the Products.
the
Document 1
Products
throughout
Page
6 of 67
6
PagelD
the Class Period, Defendant manufactured, marketed and sold the
During
7.
Filed 06/26/15
the United States. Defendant
purposefully
sold the Products with
non-
functional slack-fill.
Defendant violated statutes enacted in each of the
8.
Columbia that
are
designed
to
protect
unconscionable trade and business
a.
b.
c.
d.
e.
f
g.
h.
i.
consumers
practices
and false
fifty
states
and the District of
against unfair, deceptive,
advertising.
These statutes
fraudulent and
are:
8-19-1, et seq.;
Alabama Deceptive Trade Practices Act, Ala. Statues Ann.
Alaska Unfair Trade Practices and Consumer Protection Act, Ak. Code 45.50.471,
et seq.;
Arizona Consumer Fraud Act, Arizona Revised Statutes,
44-1521, et seq.;
Arkansas Deceptive Trade Practices Act, Ark. Code 4-88-101, et seq.;
California Consumer Legal Remedies Act, Cal. Civ. Code 1750, et seq., and
California's Unfair Competition Law, Cal. Bus. & Prof Code 17200, et seq.;
Colorado Consumer Protection Act, Colo. Rev. Stat. 6 1-101, et seq.;
Connecticut Unfair Trade Practices Act, Conn. Gen. Stat 42-110a, et seq,;
Delaware Deceptive Trade Practices Act, 6 Del. Code 2511, et seq.;
District of Columbia Consumer Protection Procedures Act, D.C. Code 283901, et
seq.;
j.
k.
1.
Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. 501.201, et seq.;
Georgia Fair Business Practices Act, 10-1-390 et seq.;
Hawaii Unfair and Deceptive Practices Act, Hawaii Revised Statues 480 1, et seq.,
and Hawaii Uniform Deceptive Trade Practices Act, Hawaii Revised Statutes
Florida
481A-1,
et seq.;
n.
Idaho Consumer Protection Act, Idaho Code 48-601, et seq.;
Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
o.
seq.;
Indiana
m.
p.
q.
r.
S.
u.
v.
w.
x.
y.
z.
aa.
et
Consumer Sales Act, Indiana Code Ann.
24-5-0.5-0.1, et seq.;
Iowa Consumer Fraud Act, Iowa Code
714.16, et seq.;
50 626, et seq.;
Kansas Consumer Protection Act, Kan. Stat. Ann
Ann.
Stat.
Rev.
Protection
Consumer
367.110, et seq., and the
Act, Ky.
Kentucky
Stat.
Ann
Rev.
Trade
Practices
Unfair
365.020, et seq.;
Act, Ky.
Kentucky
Protection
Practices
and
Consumer
Louisiana Unfair Trade
Law, La. Rev. Stat. Ann.
Deceptive
51:1401,
t.
505/1,
et seq.;
Maine Unfair Trade Practices Act, 5 Me. Rev. Stat. 205A, et seq„ and Maine
Uniform Deceptive Trade Practices Act, Me. Rev. Stat. Ann. 10, 1211, et seq.,
Maryland Consumer Protection Act, Md. Com. Law Code 13-101, et seq.;
Massachusetts Unfair and Deceptive Practices Act, Mass. Gen. Laws ch. 93A;
445.901, et seq.;
Michigan Consumer Protection Act,
325F.68, et seq.; and
Minnesota Prevention of Consumer Fraud Act, Minn. Stat
Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. 325D.43, et seq.;
75-24-1, et seq.;
Mississippi Consumer Protection Act, Miss. Code Ann.
Missouri Merchandising Practices Act, Mo. Rev. Stat. 407.010, et seq.;
Montana Unfair Trade Practices and Consumer Protection Act, Mont. Code §30-14-
101,
et seq.;
6
Document 1
Filed 06/26/15
Page
7 of 67
7
PagelD
bh. Nebraska Consumer Protection Act, Neb. Rev. Stat. 59 1601, et seq., and the
Nebraska Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. 87-301, et seq.;
598.0903, et seq.;
cc. Nevada Trade Regulation and Practices Act, Nev. Rev. Stat.
N.H. Rev. Stat. 358-A:1, et seq.;
56:8 1, et seq.;
Jersey Consumer Fraud Act, N.J. Stat. Ann.
Ann.
57 12 1, et seq.;
N.M.
Stat.
Practices
Mexico
New
Unfair
Act,
ff.
Bus. Law
N.Y.
Gen.
and
Practices
349, et seq.;
Acts
York
Act,
Deceptive
gg. New
15
et
Code
51
N.D.
Cent.
Fraud
01, seq.;
hh. North Dakota Consumer
Act,
ii. North Carolina Unfair and Deceptive Trade Practices Act, North Carolina General
dd. New
ee. New
Hampshire Consumer Protection Act,
Statutes
75-1, et seq.;
Ohio
Deceptive Trade Practices Act, Ohio Rev. Code. Ann. 4165.01. et seq.;
jj.
kk. Oklahoma Consumer Protection Act, Okla. Stat. 15 751, et seq.;
11. Oregon Unfair Trade Practices Act, Rev. Stat 646.605, et seq.;
mm.
Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Penn.
nn.
Stat. Ann.
201-1, et seq.;
Rhode Island Unfair Trade Practices And Consumer Protection Act, R.I. Gen. Laws
6-13.1-1,
et seq.;
South Carolina Unfair Trade Practices Act, S.C. Code Laws 39-5-10, et seq.;
Practices and Consumer Protection Law, S.D.
pp. South Dakota's Deceptive Trade
37
24
et
Codified Laws
1, seq.;
Practices
Trade
47-25-101, et seq.;
Tennessee
Act, Tennessee Code Annotated
qq.
rr. Texas Stat. Ann.
17.41, et seq., Texas Deceptive Trade Practices Act, et sep.;
oo.
Utah Unfair Practices Act, Utah Code Ann.
13-5-1, et seq.;
Ann.
Vt.
Stat.
Fraud
Consumer
tit.9, 2451, et seq.;
tt. Vermont
Act,
Ann. §§59.1-196, et seq.;
Code
Protection
uu. Virginia Consumer
Act, Virginia
Code
19.86.010, et seq.;
vv. Washington Consumer Fraud Act, Wash. Rev,
46A-6ww. West Virginia Consumer Credit and Protection Act, West Virginia Code
ss.
101,
9.
Wisconsin
yy.
Wyoming
Through
100. 18, et seq.;
Deceptive Trade Practices Act, Wis. Stat.
Consumer Protection Act, Wyoming Stat. Ann. §§40-12-101, et seq.
has
Defendant
mischaracterizing the
its conduct.
et seq.;
xx.
deceived
Plaintiffs
and
other
volume of its Products. Defendant has been
these unfair and
deceptive practices,
consumers
nationwide
unjustly enriched
as a
10.
bring this
misleading practice.
Defendant's
result of its conduct.
result of
Defendant has collected millions of
dollars from the sale of its Products that it would not have otherwise earned. Plaintiffs
action to stop Defendant's
by
misbranding
Through
is intentional. Defendant has been
these unfair and
deceptive practices,
unjustly enriched as
Defendant has collected
millions of dollars from the sale of its Products that it would not have otherwise earned.
7
a
Plaintiffs' claims
11.
routinely recognize
and Education Act
requirements
that
that state law
(codified
No. 09-0395, 2010 WL
refuse to
routinely
jurisdiction
causes
doctrine does
of action
are not
traditional realm of judicial
v.
barred
In
competence."
by
consumer
inquiry upon which
eminently well suited,
even
some
if
seq.)
PagelD
they
Labeling
"seek to
v.
8
because courts
the Nutritional
the FDCA." Ackerman
the doctrine of
issue at stake is
impose
Coca-Cola Co.,
Bates
v.
Dow
primary
in nature and lies within the
Inc. All Natural
(2d Cir.1988)).
a
label is
of the claims in this
re
legal
The
Courts
Litig.,
No. 12-
(E.D.N.Y. Aug. 29, 2013) (citing Goya Foods,
about whether
well versed." In
primary jurisdiction.
to consumer cases.
Frito-Lay N. Am.,
re
846 F.2d 848, 851
[they are]
"far less about science than
preempted by
primary jurisdiction
apply when "the
Tropicana Products, Inc.,
not
preemption
(E.D.N.Y. July 21, 2010) (citing
MD-2413 RRM RLM, 2013 WL 4647512, at *8
Inc.
are
8 of 67
(2005)).
the doctrine of
not
Page
the doctrine of
imposed by
at *6
544 U.S. 431, 432
apply
by
the FDCA, 21 U.S.C. 343 et
2925955,
Plaintiffs' claims
12.
barred
are not
identical to those
are
Agrosciences L.L.C.,
as
Filed 06/26/15
Document 1
case
The claims
and the reasonable-
misleading
depends
Frito-Lay N. Am.,
is
alleged herein are
one
to which courts are
2013 WL 4647512 at *8.
JURISDICTION AND VENUE
13.
this is
a
class is
sum or
class action,
a
as
jurisdiction
over
this matter pursuant to 28 U.S.C.
defined by 28 U.S.0
1332(d)(1)(13),
in which
a
1332, because
member of the
putative
citizen of a different state than Defendant, and the amount in controversy exceeds the
value of $5, 000, 000,
14.
U.S.0
The Court has
excluding interest and costs.
The Court has
jurisdiction
over
See 28 U.S.C.
the federal claims
1332(d)(2).
alleged
herein pursuant to 28
1331 because it arises under the laws of the United States.
15.
same case or
The Court has
jurisdiction
over
the state law claims because
controversy under Article III of the United States Constitution.
8
they
form part of the
Document 1
Alternatively,
16.
Filed 06/26/15
the Court has jurisdiction
over
9 of 67
9
PagelD
alleged herein pursuant to
all claims
1332 because the matter in controversy exceeds the
28 U.S.0
Page
sum or
value of
$75, 000
and is
between citizens of different states.
personal jurisdiction
The Court has
17.
Defendant because its Products
over
are
advertised, marketed, distributed and sold throughout New York State; Defendant engaged in the
wrongdoing alleged
in this
Complaint throughout
State; Defendant is authorized
to do
rendering
traditional notions of fair
play
substantial and not isolated
activity within New York
Defendant is
Products in
which
are
and substantial
Venue is proper in this district
subject
to
events
giving
intentionally
the exercise of jurisdiction
markets in New York State,
substantial part of the
in New York
business in New York State; and Defendant has sufficient
minimum contacts with New York and/or otherwise have
18.
including
the United States,
availed themselves of the
by the
justice. Moreover,
Court
permissible under
Defendant is
engaged
in
State.
pursuant
to 28
U.S.0
1391(a)
and
(b),
because
a
rise to Plaintiff HU's claims occurred in this District, and
personal jurisdiction
in this District. Plaintiff HU
purchased
Defendant's
Queens County. Moreover, Defendant distributed, advertised and sold the Products,
the
subject of the present Complaint,
in this District.
PARTIES
Plaintiffs
Plaintiff MICHELLE HU is, and at all relevant times hereto has been
19.
the state of New York and resides in Queens
50
piece sugar-free
Plaintiff HU
located
gum Products for
purchased
personal consumption
the Products at convenience stores,
throughout Kings County, including
12-month
County. Plaintiff HU
has
purchased
9
citizen of
the Mentos®
within the State of New York.
supermarkets,
but not limited to Rite Aid.
period prior to the filing of this Complaint,
a
Plaintiff HU
and
pharmacies
Specifically,
within the
purchased a Mentos® Product
Fresh Mint and Ice
in the Pure Fresh
Plaintiff HU
purchased
financially injured as
a
Filed 06/26/15
Document 1
Flurry
the Products for the
result of Defendant's
flavors at
10 of 67
Rite Aid store in
a
premium price
Page
of $4.49
10
PagelD
Kings County.
(or more) each, and
was
deceptive conduct as alleged herein.
Plaintiff MICHELLE PEERY is, and at all relevant times hereto has been
20.
a
citizen of the state of California and resides in San Bernardino, California. Plaintiff PEERY has
purchased
the Mentos® 50
gum Products for
piece sugar-free
State of California from convenience stores,
period prior
the 12-month
Mentos® 50
San
to the
piece sugar-free
filing
supermarkets
of this
gum Product in the
and
Complaint,
Spearmint
pharmacies. Specifically,
Plaintiff PEERY
flavor from
Bernardino, California. Plaintiff PEERY purchased the Products
(or more)
and
was
financially injured
as a
within the
at a
a
within
purchased
the
CYS store located in
premium price of $4.59
deceptive
conduct
alleged
as
herein.
(ILLINOIS) is,
Plaintiff JOHN DOE
21.
citizen of the state of Illinois. Plaintiff JOHN DOE
the Products at
conduct
as
(ILLINOIS)
has
premium price
and
was
financially injured
as a
Products for
purchased the
within the State of Illinois. Plaintiff JOHN DOE
a
(ILLINOIS) purchased
deceptive
alleged herein.
22.
a
a
and at all relevant times hereto has been
Plaintiff JOHN DOE
citizen of the state of New
Products for
Jersey. Plaintiff
personal consumption within the
JERSEY) purchased
Defendant's
(NEW JERSEY) is,
the Products at
a
has
purchased
JOHN DOE
(NEW JERSEY)
State of New
Jersey. Plaintiff JOHN
premium price
10
and
was
financially injured
DOE
as a
the
(NEW
result of
Plaintiff JOHN DOE
23.
Filed 06/26/15
Document 1
(MICHIGAN) is,
citizen of the state of Michigan. Plaintiff JOHN DOE
for
purchased the
deceptive
Products at
conduct
within the State of
premium price
a
conduct
as
has
purchased the
Plaintiff JOHN DOE
a
a
Products
(MICHIGAN)
(FLORIDA)
has
purchased
within the State of Florida. Plaintiff JOHN DOE
a
(MICHIGAN)
financially injured as
(FLORIDA) is,
citizen of the state of Florida. Plaintiff JOHN DOE
the Products at
11
PagelD
Michigan.
was
11 of 67
alleged herein.
as
Plaintiff JOHN DOE
24.
and
Page
premium price
and
was
financially injured
as a
a
the Products for
(FLORIDA) purchased
deceptive
alleged herein.
25.
Plaintiffs JOHN DOES 1-100 are, and
citizens of the any of the
fifty
Plaintiffs JOHN DOES 1-100
States. Plaintiffs
purchased
at
all times relevant hereto has been,
states and the District of Columbia.
purchased
Products for
the Products at
a
During
premium price
and
were
the Class
Period,
within the United
financially injured
as a
Defendant
26.
the laws of
Defendant PERFETTI VAN MELLE USA INC. is
Kentucky
with its
headquarters
at 3645
a
Turfway Rd, Erlanger,
address for service of process at FBT LLC, 400 West Market St.
40202. Defendant
corporation organized under
KY 41018 and
an
32'd Floor, Louisville, KY
manufactured, packaged, distributed, advertised, marketed and sold the
Misbranded Products
to
millions of customers nationwide.
11
Filed 06/26/15
Document 1
Page
12 of 67
12
PagelD
FACTUAL ALLEGATIONS
Identical Federal and State Law Prohibit Misbranded Foods with Non-Functional SlackFill
Under the Federal Food Drug and Cosmetic Act
27.
(codified
made, formed,
or
filled
District of Columbia
to
as
the
pursuant
misbranding
misleading."
packaging
and
343
colored
is false
filled
or
laws of the
protection
container is
fifty states
or
as
et
so
and the
343 et seq.
of the FDCA, 21 U.S.C.
advertising
403(d)
of the Products also violate various state
to
that found in
broadly
regulations promulgated
seq.:
to be misbranded: 1. If its
4. If its container is so made, formed,
201, "[flood shall be deemed
Pursuant to N.Y. AGM. LAW
labeling
Consumer
language identical
of food in
FDCA, 21 U.S.C.
to the
"[i]f its
food shall be deemed misbranded
which mirror federal law. New York and California state law
against misbranding
prohibit
be
a
correspond to the requirements
Defendant's
28.
laws
343(d)),
21 U.S.C.
as
Section
(herein "FDCA"),
particular...
misleading
be misleading."
in any
to
Food, Drug and Cosmetics Law, California Health and
110690, "Any food is misbranded if its container is so made, formed, or
Pursuant to California's Sherman
Safety
filled
Code
to be
as
misleading."
Under the Rules of the
29.
accordance with the Federal Food,
State
Agriculture
any of the
container is
Code
so
If its
of New York, foods
Drug and Cosmetic
and Markets Law
following: (1)
City
201)
made, formed, colored
or
filled
as
or
to
misleading
be
deemed misbranded "in
(21 U.S.C. §343)
under circumstances
is false
labeling
Act
are
including,
in any
misleading..
or
the New York
but not limited to,
particular... (4)
If its
See 24 R.C.N.Y. Health
71.05(d).
30.
Additionally, pursuant to
of the act, a food shall be deemed to be misbranded if
formed, or filled as to be misleading.
In accordance with section
its container is
so
made,
21 C.F.R. 100.100:
403(d)
12
Filed 06/26/15
Document 1
Page
13 of 67
PagelD
13
A container that does not allow the consumer to fully view its contents shall be
considered to be filled as to be misleading if it contains nonfunctional slack-fill. Slack-fill
is the difference between the actual capacity of a container and the volume of product
contained therein. Nonfunctional slack-fill is the empty space in a package that is filled to
less than its capacity for reasons other than:
(a)
(1)
Protection of the contents of the
(2) The requirements
package;
(3)
Unavoidable
package;
of the machines used for
enclosing
the contents in such
product settling during shipping and handling;
(4) The need for the package to perfoun a specific function (e.g., where packaging
plays a role in the preparation or consumption of a food), where such function is
inherent to the nature of the food and is clearly communicated to consumers;
product consists of a food packaged in a reusable container
container
is
where the
part of the presentation of the food and has value which is
both significant in proportion to the value of the product and independent of its
function to hold the food, e.g., a gift product consisting of a food or foods
combined with a container that is intended for further use after the food is
(5)
The fact that the
consumed;
or
durable commemorative
or
promotional packages; or
(6) Inability to increase level of fill or to further reduce the size of the package
(e.g., where some minimum package size is necessary to accommodate required
food labeling (excluding any vignettes or other non-mandatory designs or label
information), discourage pilfering, facilitate handling, or accommodate tamperresistant devices).
However,
none
of the above safe-harbor
intentionally incorporated non-functional slack-fill
mislead the consumers,
Inc., 714
F.
Supp.
including
2d 398, 405
in its
(E.D.N.Y. 2010) ("Misleading
made, formed,
Further, "[a] container that does
or
not
filled
as
consumers
is not
v.
a
New
valid
Chapter,
reason
to
100.100(a)(1-6).").
C.F.R.
California's Business & Professions Code
containers shall be
of the Products in order to
packaging
Plaintiffs and members of the Class. Waldman
package a product with slack-fill. See 21
31.
to the Products. Defendant
provisions applies
to
allow the
13
be
12606.2 also
misleading."
consumer to
provides
that "No food
CA B&P Code
fully
12606.2(b).
view its contents shall be
considered to be filled
to be
as
Filed 06/26/15
Document 1
misleading
14 of 67
Page
14
PagelD
if it contains nonfunctional slack fill." CA B&P Code
12606.2(c).
Defendant's Products Contain Non-Functional Slack-Fill
Defendant manufactures,
32.
products
packages, distributes, markets,
under the well-known household brand
supermarket chains,
United States,
convenience stores,
name
pharmacies
Mentos®. The Products
and other
major retail
but not limited to Wal-Mart, Costco, CVS,
including
and sells
chewing
are
outlets
gum
sold at most
throughout the
Walgreens, Target
and
Amazon.com.
Defendant
33.
customers into
employed packaging containing
believing that they
receiving
more
Products than
they actually were.
container and the volume of
reasonably be)
comparison
product
contained within. Plaintiffs
misled about the volume of the
to the size of the Products'
chewing
actual volume of the round
into
believing
the
product contained
packaging.
were
within the
a consumer
plastic
a
would
container in
The size of the container in relation to the
gum tablets contained therein
consumer was
(and
of
capacity
Non-functional slack-fill is the difference between the actual
34.
consumer
were
non-functional slack-fill to mislead
getting more
was
intended to mislead the
of the Product than what
was
actually in
the container.
35.
The Mentos® Products
transparent plastic container with
purchased by
an
actual
Plaintiffs
capacity
of
are
packaged
approximately
However, the Mentos® Products contain merely 50 pieces of gum,
actual
capacity. Thus,
each
plastic container of the
fill of approximately 29% of their actual
capacity.
14
or
Mentos® Products has
in
70
a
wrapped,
pieces
non-
of gum.
71% of the container's
a
non-functional slack-
containers used in the
colorful
packaging
plastic wrappings
Products
were
of the Products
that
consumers
Defendant to
give
In
comparison
to
are
uniformly
cannot
the
Page
see
15 of 67
covered with non-transparent
the actual slack-filled space. The
impression
that there is
Products, other chewing
in similar containers have transparent lids to allow customers to
chewing
gum content
they
The size of the
37.
contained therein
gives
easily
gum
without
products
determine how
actually receiving.
are
plastic
the false
content than
more
similarly packaged competitor products
the Mentos®
15
PagelD
slack-fill, the non-transparent
29% non-functional
See EXHIBIT B for
misleading packaging.
much
so
designed by
actually packaged.
packaged
containing
In addition to
36.
Filed 06/26/15
Document 1
containers in relation to the volume of the Products
impression
that the
consumer
is
buying
more
than
actually
they
are
actually receiving.
entire
38.
Pictures of the Products and
plastic
containers of the Products
consumers
carmot
see
packaging
are
are
covered
shown in EXHIBIT A. Because the
by non-transparent plastic wrappings,
the non-functional slack-fill in the
plastic containers.
EXHIBIT A show that the contents of the Products do not fill up the
containers. In fact, each
plastic
container contains
The
entirety
significant non-functional
pictures
of the
in
plastic
slack-fill in
violation of federal and state laws.
39.
to
Plaintiffs and the members of the Class relied
believe that the entire volume of the
particularly
since the slack-filled space
members of the Class'
reasonably
packaging
was
relied
on
on
the sizes of the
containers
of the Products would be filled to
purposely concealed by Defendant.
the
plastic
capacity,
Plaintiffs and the
expectation that Defendant's Products
would not
contain non-functional slack-fill.
40.
Further, Defendant has already proven itself
15
to
have the
knowledge,
means
and
materials of
producing
marketing
and
Filed 06/26/15
Document 1
the Mentos® Products
Page
16 of 67
honestly
labels, advertises and markets smaller 15-piece Mentos® sugar-free
transparent packaging to allow consumers
to see
because it
their contents:
r.
.f„.
:.4: : : ',
...1.
...1..:
'1, ,7. 1,
_=-1--',
^11.-`:•:‘,
eiG,,, 1,, TwiI rit.-T'-1-9t-,. li
••-"-. . . .j.;:‘':„: :0.
g,„gl, .4::.
.‘...f-.. .i'A-'•,
0
It-,,
illiW'
.11:
f.'..
'4.',
0.
1`1"j:.
Lt.-a d.:..x.ifitto!.,
4''w.iir,11•0*
...7...
tft.,
..9f....
.'1::,
1
s.
rs-1;,
.§1
...i•jj,
.L,
ii.,,
.-.i.-
. : .:.y, ,
:-. . t!:o.-v.
,
' . 1.; :z". . <.,5.'.6'.4s,,
:. : •!-•...3.,.
.- - -5:., A.Li..3
?vr.E4E)(TRA•-'.:.•
'Ntir5174
„a''• .nEECII'
AIROTIFP(GlEfACF-Sy R.4'. ),i0, .RED S,'•U:„i,,u"'-Hii.r..
:11..,
:p...
16
7,7'.1
-A,
I
'i, ..1•Tirtr:
:.::ir.:',
16
packages,
gum Products with
.1;:‘"-•-•••••
.i. '. :•- : :•.:1: :- : '. -: . ,
PagelD
Filed 06/26/15
Document 1
NG R ED IENTS*. XYLITOL, CRFP3.
Page
17 of 67
PagelD
17
• • • 7'.•'•.:• •
SORBITOL; MANhF.TOL,
SYRUP; CONTAINS LESS11142.PESCE1, 7:
APTUIC i AL FLAVORS. GMAffl
•••;.:;!••••••••:: : : 55,e;1• :•: •:•:, : : : : : : T. ;.,
..COLOR::::(11TANIUM OI0VbEI, ASPMEY:::.:F
.fADAGESULFAME X, SOP LE.?TrI",
...EXiatiCIXANTHANGV:
To
wirci•A(.....•.
NUTRITION
SERViNGS PER Cr.:.
CALORIES .r).
011`), IOTA.
SUIVI 4L
01.B...'1191 IES;
r
3o•:•17.TVIER
1.0ONT.E.11.T OF
:6E•5:5
OR PERFtf11,17;u4...3;;•••-•;FOR M E:
'DATA P.O. PDX1g190,
Plaintiffs Were Injured
41.
was
designed
as a
Result of Defendant's Misleading and Deceptive Conduct
Defendant's Product
to
packaging
as
alleged herein
increase sales of the Products. Defendant's
is
deceptive
and
misrepresentations
misleading
are
and
part of its
systematic Product packaging practice.
42.
Plaintiffs and Class members
of what Defendant
represented they
paid
would be
the full
getting
17
price
of the Products and received less
due to the non-functional slack-fill in the
Filed 06/26/15
Document 1
Products. In order for Plaintiffs and Class members
members would have to receive
have
slack-fill
or
Class
damaged by
are
enough
of the
sugar-free
gum
so
that there is
no
18
PagelD
whole, Plaintiffs
be made
alternative, Plaintiffs
less for the Products. In the
paid
to
18 of 67
Page
and Class
non-functional
and members of the
the percentage of non-functional slack-fill relative to the
purchase price
they paid.
There is
43.
practical
no
Products other than to mislead
reason
for the non-functional slack-fill used to
consumers
as
to
package
the actual volume of the Products
the
being
purchased by consumers.
In reliance
44.
members of the
claims that
is
Class
proposed
"misleading"
labeling
might
is
be
statement.
term
a
misleading,
misleading
Pharmacy,
that anyone
was
Columbia have
45.
deception,
misbranding
of art.
purchased Products
"Misleading"
making
192 F.2d
62,
75
a
is
judged
purchase,
(9th
Cir.
meaning of "untruthful,
false
only
misleading.
If any
misled. Consumer
in reference to "the
do not stop to
1951).
claims, but also
those
representation
in the
one
Defendant's
packaging
against misbranding.
of food in
language
and
For
ignorant,
analyze."
as
laws of the
the
labeling
cures a
unthinking
United States
v.
and
El-0-
example,
fifty
states
and the District of
the FDCA.
advertising
of the Misbranded Products violate
New York State law
identical to that found in
broadly prohibits
the
regulations promulgated pursuant
403, 21 U.S.C. 343. Under New York Agm. Law
18
while the
Under the FDCA, it is not necessary to prove
protection
substantially identical requirements
Plaintiffs and
that contain non-functional slack-fill.
reaches not
Misbranding
but still
including
consumers
the entire food is misbranded. No other statement in the
actually
various state laws
the FDCA
have
technically true,
the credulous who, when
Pathic
Defendant's
Under the FDCA, the term "false" has its usual
44.
term
on
to
201, the law specifically
provides
colored
that
filled
or
12606.2
"[flood
Filed 06/26/15
be
its contents shall be considered to be filled
as
made, formed,
so
or
filled
as
to be
misleading."
consumer to
fully view
if it contains nonfunctional slack
misleading
to be
19
PagelD
12606.2(c).
fill." CA B&P Code
Non-fimctional slack-fill is defined
46.
made, formed,
12606.2(b). Further, "{a] container that does not allow the
CA B&P Code
19 of 67
Business & Professions Code
misleading." Similarly, California's
"No food containers shall be
Page
If its container is
shall be deemed to be misbranded
as to
provides that
Document 1
as
the difference between the actual
capacity
of a container and the volume of product contained therein.
Defendant's Products
47.
state food and
drug
the Products in
laws because
comparison to
are
misbranded under state
is
48.
consumer
to
buying more
than
the size of the Products'
they
packaging.
49.
are
gives the false impression
are
that the
actually receiving.
deciding to purchase the Products.
whether Defendant's Products
laws and
The size of the containers in
The types of misrepresentations made above would be considered
when
possession,
protection
misled Plaintiffs and Class members about the volume of
they
relation to the actual amount of the Products contained therein
consumer
consumer
by a reasonable
A reasonable person would attach importance
"misbranded, i.e.,
not
legally salable,
or
capable
of
legal
and/or contain non-functional slack-fill.
Plaintiffs and Class members did not know, and had
no reason
to
know, that the
Products contained non-functional slack-fill.
50.
Defendant's Product
members' decisions
to
purchase
packaging
was
a
material factor in Plaintiffs' and Class
the Products. In reliance
Plaintiffs and Class members believed that
they
19
were
on
getting
Defendant's Product
more
packaging,
of the Products than
was
non-functional slack-fill, they would
reason
to
At the
point
not
have
violation of the FDCA and
had
packaging
consumer
at issue
Columbia, and the Products
they known the truth
are
misbranded
illegal to
As
53.
throughout the
54.
deceptive
as a
a
sell
or
forth herein, and
matter
held
misleading
fifty states
and the District of
of law. Misbranded
or
and in
products
sold in the United States.
the Products had
they
known
they
were
possess.
United States
bought
set
no
about them.
laws of each of the
protection
Plaintiffs and Class members would not have
misbranded and
as
with non-functional slack-fill is
legally manufactured, advertised, distributed,
be
20
PagelD
of sale, Plaintiffs and Class members did not know, and had
bought the Products
Defendant's
52.
20 of 67
bought the Products.
know, that the Products contained non-functional slack-fill
would not have
cannot
Page
sold. Had Plaintiffs and Class members known Defendant's Products contained
actually being
51.
Filed 06/26/15
Document 1
misrepresentations,
Plaintiffs and millions of others
purchased the Products.
Plaintiffs and the Class
and unfair conduct in that
(defined below)
they purchased
have been
damaged by
Defendant's
Products with non-functional slack-fill and
paid prices they otherwise would not have paid.
CLASS ACTION ALLEGATIONS
The Nationwide Class
55.
Plaintiffs
Rules of Civil Procedure
brings
on
this action
as a
class action pursuant to Rule 23 of the Federal
behalf of the following class (the "Class"):
All persons or entities in the United States who made retail
purchases of Products during the applicable limitations period,
and/or such subclasses as the Court may deem appropriate.
20
Filed 06/26/15
Document 1
Page
21 of 67
PagelD
following
subclass
21
The New York Class
Plaintiff ITU seeks to represent
56.
"New York
a
class
consisting
of the
(the
Class"):
All New York residents who made retail purchases of Products
during the applicable limitations period, and/or such subclasses as
the Court may deem appropriate.
California Class
The
Plaintiff PEERY seeks
57.
to
represent
a
class
consisting
of the
following subclass
(the "California Class"):
All California residents who made retail purchases of Products
during the applicable limitations period, and/or such subclasses as
the Court may deem appropriate.
The
proposed
Classes exclude current and former officers and directors of Defendant,
members of the immediate families of the officers and directors of Defendant, Defendant's
representatives, heirs,
successors,
assigns,
and any
entity
in which it has
or
has had
a
legal
controlling
interest, and the judicial officer to whom this lawsuit is assigned.
Plaintiffs
58.
the
course
impracticable.
can
right
to
only
The members of the Class
revise the Class definition based
on
facts learned in
are
so
numerous
that
joinder
of all members is
While the exact number of Class members is unknown to Plaintiffs at this time
be ascertained
millions of members in the
records maintained
by
through
proposed
the
appropriate discovery,
Plaintiffs believe that there
are
Class. Other members of the Class may be identified from
Defendant and may be notified of the
by advertisement, using
as
the
of litigating this matter.
59.
and
reserve
the form of notice similar to that
this.
21
pendency
customarily
of this action
by mail,
or
used in class actions such
Plaintiffs' claims
60.
members of the Class
are
Class in that Plaintiffs have
Plaintiffs have retained
adjudication
be
no
interests
experienced
millions of dollars
63.
or more
Common
over
questions
i.
any
in
22
PagelD
as
all
the interests of the members of the
to
those of the other members of the Class.
and competent counsel.
superior
individually
Class treatment of these claims
common
antagonistic
to
other available methods for the fair and efficient
damages
sustained
the expense and burden of individual
members of the Class to
22 of 67
by Defendant's wrongful conduct.
adequately protect
of this controversy. Since the
relatively small,
predominate
and
Page
of the claims of the members of the Class
typical
affected
fairly
A class action is
62.
are
similarly
Plaintiffs will
61.
Filed 06/26/15
Document 1
not
individual Class members may
litigation
seek redress for the
were
by
make it
wrongful
impracticable
conduct
alleged
for the
herein. If
available, Defendant would likely unfairly receive
improper charges.
questions
of law and fact exist
questions solely affecting
of law fact to the Class
as
to
all members of the Class and
individual members of the Class.
Among
the
are:
Whether Defendant labeled,
packaged, marketed,
Products to Plaintiffs and Class members,
advertised and/or
using false, misleading
sold
and/or
deceptive packaging and labeling;
ii.
iii.
Whether Defendant's actions constitute violations of 21 U.S.C.
Whether Defendant omitted and/or
with the
iv.
misrepresented
labeling, packaging, marketing, advertising
Whether Defendant's
343(d);
material facts in connection
and/or sale of Products;
labeling, packaging, marketing, advertising
of Products constituted
an
unfair, unlawful or fraudulent practice;
22
and/or
selling
v.
Whether the
Filed 06/26/15
Document 1
of the Products
packaging
Page
23 of 67
the relevant statutory
during
23
PagelD
period
constituted unlawful non-functional slack-fill;
vi.
Whether, and
to
vii.
ix.
injunctive relief should
what extent,
Whether the members of the Class have sustained
The
reduce the
on
Defendant
Whether Defendant has been
Whether Defendant should be
possibility
of
damages
as
result of
a
unjustly
enriched
its scheme of
by
or
prosecution of this
Plaintiffs know of
repetitious litigation.
litigation
which would
using false,
misrepresentations, and;
enjoined from continuing its
and
readily definable,
encountered in the management of this
relief;
of damages and/or other
appropriate measure
The class is
64.
imposed
wrongful conduct;
misleading and/or deceptive labeling, packaging
x.
be
prevent such conduct in the future;
Defendant's
viii.
to
action
no
unlawful
as a
Class action will
difficulty
preclude
practices.
which will be
its maintenance
as a
Class action.
A class action is
65.
adjudication
superior
of this controversy. The
small to make it
other available methods for the fair and efficient
to
suffered
damages
economically feasible
for
individual class member to prosecute
an
action, and it is desirable for judicial efficiency
forum. Furthermore, the
potentially
no
inconsistent and
difficulty
66.
adjudication
23(b)(2)
to
as a
maintaining
are
met,
as
a
the
through
conflicting adjudications of the
prerequisites
relief pursuant to Rule
to concentrate
of this controversy
in the management of this action
The
any individual class member
by
a
too
separate
of the claims in this
class action will avoid the
claims asserted herein. There will be
class action.
class action for
Defendant has acted
23
litigation
a
are
injunctive
or
relief
refused to act
or
equitable
on
grounds
generally applicable
with
to
The
67.
to
over
The
maintaining
to
23(b)(3)
are
met,
as
questions affecting only
other available methods for
68.
of
any
injunctive
fairly
prosecution
a
class action for
injunctive
questions
of law
or
fact
individual members and
of separate actions
individual actions may be
although certain Class members are
69.
by
dispositive
parties to
not
Defendant's conduct is
and
equitable
practices
make
a
relief
or
24
relief
common to
equitable
the Class
class action is
superior
members of the Class would create
a
risk
of conduct for Defendant.
of the interest of all members of the Class,
such actions.
generally applicable
seek, inter alia, equitable remedies with respect
systematic policies
or
PagelD
efficiently adjudicating the controversy.
and
establishing inconsistent rulings and/or incompatible standards
Additionally,
24 of 67
whole.
prerequisites
relief pursuant to Rule
predominate
as a
Page
final
thereby making appropriate
the Class,
respect to the Class
Filed 06/26/15
Document 1
to
declaratory
the Class
to
the Class
as a
as a
whole and Plaintiffs
whole. As
such, Defendant's
relief with respect to the Class
as a
whole
appropriate.
CAUSES OF ACTION
COUNT I
INJUNCTION FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW
(DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)
70.
contained in all
71.
the Class for
realleges
Plaintiff HU
preceding paragraphs,
Plaintiff HU
an
brings
injunction
General Business Law
and
incorporates herein by
and further
this claim
individually
349.
24
allegations
alleges as follows:
and
for violations of New York's
("NY GBL")
reference the
349
on
behalf of the other members of
Deceptive
Acts
or
Practices Law,
business, trade
or commerce or
("To the
extent
General Business Law
an
provides
in the
that
furnishing
that the
Appellate
349..
claims, it
element of the statutory claim." Koch
(N.Y. App.
Div.
2012) (internal
The
74.
citations
and
are
acts or
349, it is
Division order
was error.
practices
25
in the conduct of any
are...
unlawful."
not necessary to prove justifiable
imposed
a
reliance
requirement
on
plaintiff is
not
Justifiable reliance by the
omitted)).
Defendant advertised,
in slack-fill
packaging resulting
prohibits the misbranding of foods in language
are
promoted,
unfair, deceptive and
349. Moreover, New York State law
identical to that found in
If its container is
so
broadly
regulations promulgated
403, 29 U.S.C. 343(d). Under New York Agm. Law
be deemed to be misbranded
PagelD
Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941
v.
in violation of the NY GBL
pursuant to the FDCA
25 of 67
Page
of any service in this state
practices employed by Defendant, whereby
marketed and sold its Products in
misleading
"deceptive
Under the New York Gen. Bus. Code
73.
reliance.
349
NY GBL
72.
Filed 06/26/15
Document 1
made, formed, colored
201, "[f]ood shall
or
filled
as
to be
misleading."
75.
The
76.
Defendant should be
slack-fill
as
demands
a
acts
and
enjoined
practices
from
described above pursuant to NY GBL
FDCA, 21 U.S.C.
77.
foregoing deceptive
on
judgment enjoining
as
packaging
directed
at consumers.
their Products with non-functional
349, New York Agm. Law
201, and the
343(d).
Plaintiff HU,
attorneys' fees,
were
provided by
behalf of herself and all others similarly situated,
Defendant's conduct,
NY
awarding
GBL, and such other relief
proper.
25
costs
as
of this
respectfully
proceeding
this Court deems
just
and
and
Filed 06/26/15
Document 1
26 of 67
Page
26
PagelD
COUNT II
VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW 349
(DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)
Plaintiff HU
78.
contained in all
brings
this claim
may
person who has been
Any
bring
an
action in her
her actual damages
or
own name
fifty dollars,
up to
one
individually
to
injured by
and
by
reference the
on
behalf of the other members of
enjoin such unlawful act or practice,
damages
or
acts
is
and
By
to an amount not to
practices by misbranding
alleged herein,
its Products
as
an
action to
willfully
to
contain
knowingly
or
prevailing plaintiff.
a
Defendant committed unfair
seeming
recover
exceed three times the actual
thousand dollars, if the court finds the defendant
the acts and conduct
349
both such actions. The court may, in
violated this section. The court may award reasonable attorney's fees to
81.
allegations
of any violation of NY GBL
reason
whichever is greater,
its discretion, increase the award of
damages
herein
incorporates
349.
the Class for violations of NY GBL
80.
and
preceding paragraphs, and further alleges as follows:
Plaintiff HU
79.
realleges
in the
more
or
deceptive
packaging
than
actually included.
The
82.
practices employed by Defendant, whereby
marketed and sold its Products in
deceptive
and
packages resulting
in non-functional slack-fill
misleading and are in violation of the NY GBL
and the FDCA, 21 U.S.C.
343(d)
in that said Products
foregoing deceptive
acts and
are
practices were
directed at
84.
Plaintiff HU and the other Class members suffered
and unfair acts and
and unfair trade acts.
practices,
Specifically,
unfair,
201
misbranded.
The
deceptive
are
349, New York Agm. Law
83.
Defendant's
promoted,
Defendant advertised,
as a
consumers.
a
result of
deceptive
a
loss
as
Plaintiff HU and the other Class members suffered monetary losses
26
associated with the
due to
purchase
of Products, i.e.,
approximately 29% non-functional
Class members to be made whole,
Products
or a
they
receiving
Page
less than the
27 of 67
capacity
PagelD
of the
27
packaging
slack-fill in the Products. In order for Plaintiff HU and
need to receive either the
purchase price
refund of the
Filed 06/26/15
Document 1
of the Products
equal
price premium paid
to
for the
the percentage of
non-
functional slack-fill in the Products.
COUNT III
VIOLATIONS OF CALIFORNIA'S CONSUMER LEGAL REMEDIES ACT,
1750,
Cal. Civ. Code
85.
Plaintiff PEERY realleges and
contained in all
86.
Plaintiff PEERY
incorporates herein by
and further
brings
et seq.
alleges
as
follows:
individually
this claim
allegations
reference the
and
on
behalf of the other
members of the California Class for Defendant's violations of California's Consumer
1761(d).
Remedies Act ("CLRA"), Cal. Civ. Code
87.
Products for
members
are
Plaintiff PEERY and California Class members
personal, family
"consumers"
as
or
88.
who
purchased the
that term is defined
by
the CLRA in Cal. Civ. Code
of corporate
branding, labeling
are
not
1761(d).
sophisticated experts
and packaging
were
"goods" within the meaning
Defendant's actions,
violate the CLRA, because
representations,
they extend
resulted in, the sale of goods to
of Cal. Civ. Code
to
27
purchased
1761(a).
and conduct have violated, and continue to
transactions that intended to result,
consumers.
with
practices.
Products that Plaintiff PEERY and other California Class members
from Defendant
89.
are consumers
household purposes. Plaintiff PEERY and the California Class
Plaintiff PEERY and the California Class members
independent knowledge
Legal
or
which have
Filed 06/26/15
Document 1
functional slack-fill and because they
being able to fully
see
uses,
prevent the
to
28
PagelD
consumer
non-
from
their contents.
that
prohibits Irlepresenting
ingredients,
intentionally packaged
are
California's Consumers
91.
benefits,
sponsorship, approval,
goods
or
Legal
services have
or
which
quantities
status, affiliation,
they
sponsorship, approval, characteristics,
do not have
connection which he
or
1770(a)(5),
Remedies Act, Cal. Civ. Code
that
or
or
a
person has
she does not have."
a
By
in the conduct set forth herein, Defendant violated and continues to violate Section
engaging
of the CLRA, because Defendant's conduct constitutes unfair methods of competition
1770(a)(5)
and unfair
or
fraudulent acts
quantities which they do
or
in that it
practices,
with intent not to sell them
further
1770(a)(9)
constitutes unfair methods of
goods with the
advertised." By
as
engaging
about the corporate
Defendant's
because Defendant's conduct
1770(a)(9),
or
and
reasonably
when
services
fraudulent acts
or
practices,
in that it
goods as advertised.
are
packaging practices.
they purchased
not
Plaintiff PEERY and the
the Products based
on
their belief that
representations were true and lawful.
Plaintiff PEERY and the California Class suffered
(a) they
and
and unfair
intent not to sell the
branding, labeling
California Class acted
94.
competition
or
in the conduct set forth herein,
93.
that the Products have
prohibits "[a]dvertising goods
Defendant violated and continues to violate Section
advertises
misrepresents
not have.
Cal. Civ. Code
92.
illegal
28 of 67
Defendant violated federal and California law because the Products contain
90.
because
Page
would not have
misleading conduct as
purchased
set forth
the Products
on
the
herein; (b) they paid
28
a
injuries
caused
same terms
by
Defendant
absent Defendant's
price premium
for the Products
Document 1
due to Defendant's
and
(c)
the Products did not have the
95.
served
misrepresentations
on
On
about
or
by refunding
to
that
they
PagelD
with non-functional
filing
this
action,
behalf of herself and the
on
a
29
slack-fill;
CLRA notice letter
in all respects with California Civil Code
receipt requested, advising
demanding
29 of 67
Page
quantities as promised.
complies
Plaintiff PEERY sent Defendant,
CLRA and
deceptive packaging
April 28, 2015, prior
Defendant which
certified mail, return
and
Filed 06/26/15
Defendant that
proposed Class,
they
are
was
1782(a).
a
letter via
in violation of the
and desist from such violations and make full restitution
cease
the monies received therefrom. A true and correct copy of Plaintiff PEERY's letter
is attached hereto
as
EXHIBIT C.
Wherefore, Plaintiff PEERY seeks damages, restitution, and injunctive relief for
96.
these violations of the CLRA.
COUNT IV
VIOLATION OF CALIFORNIA'S UNFAIR COMPETITION LAW,
California Business & Professions Code
17200, et seq.
97.
Plaintiff PEERY
contained in all
98.
the
proposed
and
herein
incorporates
and further
alleges
Plaintiff PEERY brings this claim
as
by
reference the
The UCL
unlawful, unfair
or
17200,
provides,
in
allegations
follows:
individually
and
on
behalf of the members of
California Class for Defendant's violations of California's Unfair
Law, Cal. Bus. & Prof. Code
99.
realleges
Competition
et seq.
pertinent part:
fraudulent business
practices
advertising
29
"Unfair
and
competition
mean
and include
untrue or
misleading
shall
unfair, deceptive,
Document 1
functional slack-fill and because they
being able to fully
see
30 of 67
are
to
prevent the
30
PagelD
consumer
non-
from
their contents.
Defendant's business
101.
Section
by violating
California Health &
343(d),
Page
100.
the UCL
Filed 06/26/15
practices, described herein, violated the "unlawful"
403(r) of the
Safety
prong of
Federal Food, Drug, and Cosmetic Act, 21 U.S.C.
110690, the CLRA, and other applicable law
Code
as
described herein.
Defendant's business
102.
the UCL in that their conduct is
is immoral,
alleged
with the FDCA and
the
substantially injurious
advertising
parallel
quantity
that "foods
ensure
described herein, violated the "unfair" prong of
unethical, oppressive, and unscrupulous,
benefits. Defendant's
concerning
practices,
are
as
to consumers,
the
offends
gravity of the
public policy,
and
outweighs
any
conduct
is of no benefit to consumers, and its failure to
California
labeling requirements
of the Products offends the
and
comply
deceptive advertising
public policy advanced by
the FDCA to
U.S.C.
safe, wholesome, sanitary, and properly labeled." 21
393(b)(2)(A).
103.
Defendant violated the "fraudulent" prong of the UCL
PEERY and the California Class to believe that the Products contained
actually
deceive
do and that such
or
mislead the
104.
packaging
and
labeling practices
were
lawful,
branding, labeling,
and the California Class acted
that Defendant's
more contents
than
they
true and not intended to
consumers.
about the corporate
by misleading Plaintiff
and
packaging practices
are
not
of the Products. Plaintiff PEERY
reasonably when they purchased the Products based
representations were true
and lawful.
30
on
their belief
Defendant's UCL violations because
terms absent
concerning
Defendant's
conduct
illegal
as
forth
set
representations; (b) they paid
Defendant's
Defendant's
would not have
(a) they
a
31 of 67
Page
Plaintiff PEERY and the California Class lost money
105.
same
Filed 06/26/15
Document 1
property
or
purchased
herein,
as a
price premium
result of
the Products
if the true facts
or
31
PagelD
were
the
on
known
for the Products due to
misrepresentations; and (c) the Products did not have the quantities as promised.
COUNT V
VIOLATION OF CALIFORNIA'S FALSE ADVERTISING LAW,
California Business & Professions Code
17500, et seq.
Plaintiff PEERY
106.
contained in all
the
to
or cause
device
or
this claim
individually
and
17500,
reference the
allegations
on
behalf of the members of
Advertising
Law
et seq.
disposition thereof,
exercise of reasonable
be made
in any other
or
disseminated before the
manner or means
which is untrue
care
Defendant
should be
engaged
or
known, to
in
a
functional slack-fill. Such
practice misrepresented
as
or
performance
which
by
the
Products for sale to
of packaging the Products with
the content and
were
quantity
17500,
non-
of the misbranded
made in California and
contained in Bus. & Prof. Code
31
or
misleading."
or
by way
in any
the Internet, any
otherwise,
offering misbranded
Products. Defendant's advertisements and inducements
advertising
or
over
and which is known,
be untrue
scheme of
in this state,
whatever, including
misleading
the definition of
public
personal property or services, professional
statement, concerning
109.
by
Under the FAL, the State of California makes it "unlawful for any person to make
disseminate
advertising
or
brings
Cal. Bus. & Prof Code
108.
or
herein
incorporates
Class for Defendant's violations of California's False
proposed California
("FAL"),
and
preceding paragraphs, and further alleges as follows:
Plaintiff PEERY
107.
realleges
come
et seq.
within
in that the
product packaging
was
intended
knew that these statements
were
inducements to
as
they
able to
fully see their contents.
111.
Defendant violated
true as
that the Products
were
or
et seq.
packaging
to
prevent the
by misleading
through
and continue to be misbranded, and that their
Defendant's FAL violations because
terms absent
from
Plaintiff PEERY and the
the exercise of reasonable
and
Defendant's
illegal
(a) they
conduct
as
would not have
set forth
concerning Defendant's representations; (b) they paid
misrepresentations;
and
representations
care
about the
misleading.
Plaintiff PEERY and the California Class lost money
113.
consumer
non-
with non-functional slack-fill made about the
should have known,
quantity of the Products were untrue
Defendant's
Defendant's Products. Defendant
described herein.
Defendant knew
112.
are
17500,
California Class to believe that the
were
32
PagelD
unauthorized, inaccurate, and misleading.
functional slack-fill and because
Products
purchase
32 of 67
Page
110.
being
Filed 06/26/15
Document 1
(c) the
property
as a
purchased the Products
herein,
a
or
or
if the true facts
price premium
on
result of
the
were
same
known
for the Products due to
Products did not have the characteristics,
benefits,
or
quantities as promised.
COUNT VI
VIOLATION OF ILLINOIS' CONSUMER FRAUD AND DECEPTIVE BUSINESS
PRACTICES ACT,
815 ILCS 505, et seq.
114.
the
allegations
Plaintiff JOHN DOE
contained in all
(ILLINOIS) realleges
32
and
incorporates
and further
alleges
as
herein
follows:
by
reference
115.
Filed 06/26/15
Document 1
Plaintiff JOHN DOE
this claim
(ILLINOIS) brings
Page
33 of 67
individually
and
on
the other members of the Illinois Class for violations of Illinois's Consumer Fraud and
Business Practice Act,
116.
purchased
(Illinois)
("ICFA"),
Plaintiff JOHN DOE
the Products for
(ILLINOIS)
personal, family
and the Illinois Class members
815 ILC
505/1(e)
as
505,
815 ILC
they purchased
are
33
PagelD
behalf of
Deceptive
et seq.
and Illinois Class members
are consumers
who
household purposes. Plaintiff JOHN DOE
or
"consumers"
the Products for
as
that term is defined
or
by
the ICFA,
of a member of
their household and not for resale.
117.
purchased
Products that Plaintiff JOHN DOE
from Defendant
were
(ILLINOIS)
"merchandise" within the
and other Illinois Class members
of the ICFA, 815 ILC
meaning
505/1(b).
118.
or
deceptive
Under Illinois law, 815 ILC
acts
deception fraud,
or
practices, including
505/2, "[u]nfair methods of competition and unfair
but not limited to the
omission of any material fact, with intent that others
or
omission of such material fact
rely
upon the
in the conduct of any trade
unlawful whether any person has in fact been
in the conduct set forth
employment
or
of any
promise, misrepresentation or the concealment, suppression
false pretense, false
or
engaging
use
concealment, suppression
or commerce are
misled, deceived
or
hereby declared
damaged thereby." By
herein, Defendant violated and continues
to
violate
505/2 of
the ICFA, because Defendant's conduct constitutes unfair methods of competition and unfair
deceptive
acts or
practices,
in that it
misrepresents
do not have.
33
that the Products have
quantities
which
or
they
practice
being
packaging
Defendant's
119.
under the ICFA because
able to
they
are
rely on their deceptive
Defendant's
deceptive
act or
distribution of any services and any
practice occurred
122.
act
or
practice
in the
mean
facts
terms
were
absent Defendant's
known
the
act or
consumer
from
concerning
Products due to Defendant's
and
Defendant's
would
505/1(4
or
for
Defendant's
of trade
or
sale, sale,
or
deceptive
as
not have the
damage
purchased the Products
set
forth herein,
representations; (b) they paid
and
act
distribution of the Products.
not have
conduct
misleading
misrepresentations
slack-fill; and (c) the Products did
course
and the Illinois Class suffered actual
(ILLINOIS)
illegal
and other members of
advertising, offering
advertising, offering for sale, sale,
Plaintiff JOHN DOE
(ILLINOIS)
occurred in the
815 ILC
property...."
proximately caused by Defendant because (a) they
same
prevent the
deceptive
34
practice.
"The terms "trade" and "commerce"
commerce.
to
a
PagelD
the Illinois Class
121.
34 of 67
Page
with non-functional slack-fill constitute
Defendant intended that Plaintiff JOHN DOE
120.
or
Filed 06/26/15
Document 1
a
or
the
if the true
price premium
deceptive packaging
on
for the
with non-functional
characteristics, benefits,
or
quantities
as
promised.
123.
Wherefore, Plaintiff JOHN DOE (ILLINOIS) seeks damages, restitution, and
injunctive relief for these violations of the
ICFA.
COUNT VII
VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT,
Fla. Stat. Ann.
124.
the
Plaintiff JOHN DOE
501.201,
(FLORIDA) realleges
et seq.
and
incorporates
herein
allegations contained in all preceding paragraphs, and further alleges as follows:
34
by
reference
(FLORIDA) brings
Plaintiff JOHN DOE
125.
Filed 06/26/15
Document 1
this claim
the Florida Class for Defendant's violations of Florida's
Act, Fla. Stat.
501.201,
Ann.
("FDUTPA")
makes "unfair
35 of 67
individually
Deceptive
35
PagelD
and
on
behalf of
and Unfair Trade Practices
et seq.
501.204(1)
Section
126.
Page
or
of the Florida
deceptive
Deceptive
acts or
practices
and Unfair Trade Practices Act
in the conduct
or
any trade
or
commerce" in Florida unlawful.
127.
selling
Throughout
the Products with the
(FLORIDA) and
false
the Class Period,
packaging
by advertising, marketing, distributing, and/or
with non-functional slack-fill, to Plaintiff JOHN DOE
other Florida Class members, Defendant violated the FDUTPA
by engaging
in
advertising concerning the content and quantity of the Products.
Defendant has made and continue to make
128.
statements
concerning
packaging
and
quantities,
as
the
advertising
alleged
of its Products,
quantities
from
129.
being able to fully see
Plaintiff JOHN DOE
practices
misleading
misleading
as
they
are
concerning
its
(FLORIDA)
nature
prevent the
and other Florida Class members seek to
enjoin
described above. Each of the Florida Class members will be
are
enjoined
rely on the Defendant's packaging with non-functional
deceptive
to
their contents.
Had Plaintiff JOHN DOE
and/or
statements
harmed unless the unlawful actions of Defendant
continue to be unable to
130.
misleading
herein. Defendant violated federal and Florida law because the Products
such unlawful acts and
irreparably
false and
namely manufacturing, selling, marketing,
the Products with false and
contain non-functional slack-fill and because
consumer
deceptive,
(FLORIDA)
35
they
will
slack-fill.
and the Florida Class members known the
of Defendant's claims,
Products.
in that
they
would not have
purchased
the
Plaintiff JOHN DOE
131.
fact and lost money
as a
Filed 06/26/15
Document 1
for Defendant's
result of Defendant's conduct of
injured in
were
the Products
and the Florida Class members
were
worth less than
they paid.
Plaintiff JOHN DOE
132.
(FLORIDA)
36
PagelD
improperly packaging
but received Products that
premium priced Products,
the Products for which
36 of 67
and the Florida Class members
(FLORIDA)
with non-functional slack-fill. Plaintiff JOHN DOE
paid
Page
(FLORIDA)
declaratory relief,
misleading
statements, actual
disseminate their false and
enjoining Defendant from continuing to
damages plus attorney's
and the Florida Class seek
fees and court costs, and other relief allowable under the FDUTPA.
COUNT VIII
VIOLATION OF MICHIGAN'S CONSUMER PROTECTION ACT,
MCL
445.901. et seq.
reference the
(MICHIGAN) realleges
Plaintiff JOHN DOE
133.
allegations
134.
contained in all
Plaintiff JOHN DOE
(MICHIGAN) brings
and
and further
this claim
herein
incorporates
alleges
individually
as
by
follows:
and
on
behalf
of the Michigan Class for Defendant's violations under the Michigan Consumer Protection Act,
445.901. et seq.
MCL
135.
(the "MCPA").
Defendant's
actions
actions/practices as defined by the MCPA,
of trade
MCL
§445.901,
et seq., as
they occurred
in the
course
or commerce.
136.
practice
material
DOE
unlawful, unfair, deceptive and fraudulent
constitute
As part of its fraudulent
of knowingly and
facts,
marketing practices
intentionally making
with the intent to deceive and
(MICHIGAN)
and the members of the
numerous
false
fraudulently
Michigan
36
Defendant
engaged
in
a
pattern and
representations and omissions
induce reliance
Class. These false
by
of
Plaintiff JOHN
representations
and
omissions
more
uniform and identical in nature
were
contents than
Filed 06/26/15
Document 1
as
they
concerning
packaging
and
quantities,
as
the
advertising
alleged
quantities
being
and/or
misleading
able to
deceptive
Products. Defendant's acts,
decision to
purchase
deceptive,
false and
misleading
concerning
statements
misleading
herein. Defendant violated federal and
law because the Products
Michigan
are
its
to
prevent the
Had Plaintiff JOHN DOE
138.
37
of its Products,
contain non-functional slack-fill and because they
from
PagelD
they actually do.
statements
consumer
37 of 67
all represent that the Products contain
137.
Page
nature
(MICHIGAN)
and the
of Defendant's claims,
practices
the Products at
and
and
Class known the
would not have
omissions, therefore,
premium price,
a
they
Michigan
were
the
material to Plaintiffs'
justifiably
were
purchased
relied upon
by
Plaintiffs.
139.
proximately
The unfair and
caused damage
deceptive
to
trade acts and
practices
have
(MICHIGAN)
Plaintiff JOHN DOE
directly, foreseeably
and
and other members of the
Michigan Class.
140.
The Defendant's
caused Plaintiff JOHN DOE
not
outweighed by
consumers
any
practices,
(MICHIGAN)
addition,
and the
countervailing benefits
themselves could have
141.
in
are
unfair and
deceptive because they have
Class substantial harm, which is
Michigan
to consumers or
competition,
and is not
an
injury
reasonably avoided.
The Defendant's acts and
practices have misled
the past, and will continue to mislead and deceive the
37
and deceived the
general public
general public in
into the future,
by,
among
other
preliminary
and permanent
unfair business
(MICHIGAN)
Page
misleading
38 of 67
PagelD
38
statements
concerning
Class
entitled
quantity at a premium price.
Plaintiff JOHN DOE
142.
such
Products with false and
things, causing them to purchase
its content and
Filed 06/26/15
Document 1
practices,
and the
revenues as
(MICHIGAN)
injunctive relief ordering
as
well
Michigan
as
equitable
Michigan
are
immediately
the Defendant to
cease
to
these
and restitution to Plaintiff JOHN DOE
disgorgement
Class of all
the Court may find
and the
revenue
associated with their unfair
practices,
or
and just.
COUNT IX
VIOLATION OF NEW JERSEY'S CONSUMER FRAUD ACT,
N.J.S.A.56:8-1,
143.
reference the
144.
et seq.
Plaintiff JOHN DOE (NEW JERSEY) realleges and incorporates herein by
allegations contained in all preceding paragraphs,
Plaintiff JOHN DOE
and further alleges
(NEW JERSEY) bring this
claim
of the other members of the New Jersey Class for violations of New
Act, N.J.S.A. 56:8-1,
145.
as
individually
Jersey's
follows:
and
on
behalf
Consumer Fraud
et seq.
At all relevant
times, Defendant
was
and is
a
"person,
as
defined
by
N.J.S.A.
56:8-1(d).
146.
At all relevant
times, Defendant's Products constituted "merchandise,
as
defined
by N.J.S.A. 56:8-1(c).
147.
At all relevant
times, Defendant's manufacturing, branding, labeling, packaging,
sales and/or distribution of the Products at issue met the definition of "advertisement" set forth
by N.J.S.A. 56:8-1(a).
38
Page
39 of 67
39
PagelD
times, Defendant's manufacturing, branding, labeling, packaging,
At all relevant
148.
Filed 06/26/15
Document 1
sales and/or distribution of the Products at issue met the definition of "sale" set forth
by N.J.S.A.
56:8-1(e).
N.J.S.A. 56:8-2
149.
unconscionable
provides that "[tjhe act,
practice, deception, fraud,
knowing, concealment, suppression,
or
statements
concerning
packaging
and
quantities,
as
the
151.
JOHN DOE
by means
from
being
able to
(NEW JERSEY)
see
labeling
are
such concealment,
packaging, selling
Jersey
false and
statements
misleading
concerning
they are intentionally packaged
its
and
based
to
prevent
their contents.
to
Plaintiff
Class the Products'
quantity
above, Defendant uniformly misrepresented
Jersey
packaging.
engaged in practices which are unconscionable, deceptive
on
knowing concealment, suppression,
rely upon
unlawful practice..."
deceptive,
misleading
and each member of the New
Defendant has therefore
and fraudulent and which
the
fully
As described in detail
of their branding,
152.
an
herein. Defendant violated federal and New Jersey law because the
Products contain non-functional slack-fill and because
consumer
be
rely
advertising
alleged
of its Products,
quantities
to
the
or
omission of material fact with the intent that others
150.
any person of any
promise, misrepresentation,
false pretense, false
concealment, suppression or omission, ...is declared
upon such
the
employment by
use or
false pretenses, false
or
suppression
promises, misrepresentations,
and
omission of material fact with the intent that others
or
omission in their
manufacturing, branding, labeling,
and distribution of the Products. Defendant has therefore violated the New
Consumer Fraud
Act, N.J.S.A. 56:8-1,
et seq.
39
As
153.
DOE
a
direct and
Filed 06/26/15
Document 1
40 of 67
40
PagelD
proximate result of Defendant's improper conduct, Plaintiff JOHN
ascertainable losses of moneys and/or property,
damages
by paying more for the Products than they
have, and/or by purchasing the Products which they would
misrepresented,
have suffered
Jersey Class
New
(NEW JERSEY) and other members of the
the Products had not been
Page
not have
purchased,
if the
and
would
quantity
of
in amounts to be determined at trial.
COUNT XI
NEGLIGENT MISREPRESENTATION
(All States
Plaintiffs reallege and incorporate herein by reference the
154.
all
and the District of Columbia)
and further
Defendant,
155.
representations,
directly
allegations
contained in
alleges as follows:
or
its
through
concealment and nondisclosures
to
agents
and
employees,
made
false
Plaintiffs and members of the Class.
Defendant, through its deceptive packaging of the Products, makes uniform representations
regarding the Products.
Defendant,
156.
Products
purchased by
as
the Plaintiffs, had
not sell the Products with
material facts
not
the manufacturers,
known
or
a
duty
packagers,
to
disclose the true nature of the Products and
non-functional slack-fill. Defendant had exclusive
reasonably accessible
to the
material facts from the Plaintiffs and Defendant made
because
some
knowledge
of
Plaintiffs; Defendant actively concealed
partial representations
that
are
misleading
other material fact has not been disclosed. Defendant's failure to disclose the
information it had
misleading
labelers and initial sellers of the
a
duty
to disclose constitutes material
misrepresentations
omissions which misled the Plaintiffs who relied
disclose all material facts
accurately and truthfully and fully.
40
on
and
Defendant in this
materially
regard
to
157.
members
and
Plaintiffs
Filed 06/26/15
Document 1
of the
Class
Page
41 of 67
relied
reasonably
PagelD
41
Defendant's
on
representation that their Product contains more product than actually packaged.
158.
In
making
the
representations
described herein, Defendant has failed
above.
The direct and
proximate
to
cause
of fact to Plaintiffs and members of the Class
fulfill their duties to disclose the material facts set forth
of this failure to disclose
was
Defendant's
negligence
and carelessness.
159.
Defendant, in making the misrepresentations and omissions, and in doing the
knew
alleged above,
or
reasonably
Defendant made and intended the
should have known that the
misrepresentations
to
representations
were
acts
not true.
induce the reliance of Plaintiffs and
members of the Class.
160.
been misled
Plaintiffs and members of the Class would have acted
i.e.
161.
they would not have paid
Defendant has
deceptive packaging
nondisclosures
and
duty
money for the Products in the first
to correct
the misinformation
duty.
Defendant also
Defendant when
profited financially as
purchasing
place.
and members of the Class,
a
result of this breach.
Plaintiffs and members of the Class relied upon these false
by
had they not
they disseminated through the
informing Plaintiffs
of the Products. By not
Defendant breached their
162.
a
differently
representations
the Products, upon which reliance
was
and
justified
reasonably foreseeable.
163.
As
a
direct and
proximate result
of Defendant's
wrongful conduct, Plaintiffs and
members of the Class have suffered and continue to suffer economic losses and other
general and
Products, and
any interest
specific damages, including
but not limited to the amounts
that would have been accrued
to
on
all those monies, all in
proof at time of trial.
41
an
paid
for
amount to be determined
according
Defendant acted with intent to defraud,
164.
the
Filed 06/26/15
Document 1
rights of Plaintiffs and members of the
with reckless
or
42 of 67
42
PagelD
negligent disregard
of
Class.
Plaintiffs and members of the Class
165.
or
Page
are
entitled to damages,
including punitive
damages.
COUNT XII
(All
Plaintiffs reallege and incorporate herein by reference the
166.
all
regarding the
alleges
as
follows:
Plaintiffs and members of the Class
misleading packaging, representations
were
in
representations
size of the Products.
168.
they
and further
allegations contained
Defendant intentionally made materially false and misleading
167.
false and
COMMON LAW FRAUD
States and the District of Columbia)
purchasing
the Products that
they
were
induced
by,
and relied on, Defendant's
and omissions and did not know at the time that
were
purchasing
Products that contained unlawful
non-functional slack-fill.
Defendant knew
169.
packaging
misrepresentations
and
and encourage customers to
Defendant
or
170.
misleading labeling,
and omissions. Defendant nevertheless continued to promote
purchase
adequately disclosed
would not have
should have known of their false and
the Products in
a
misleading
and
deceptive
manner.
Had
the true size of the Products, Plaintiffs and Class members
purchased the Products.
Plaintiffs and members of the Class have been
injured
as a
fraudulent conduct.
171.
as a
Defendant is liable to Plaintiffs and members of the Class for
damages sustained
result of Defendant's fraud. In order for Plaintiffs and Class members to be made whole,
42
they
need to receive either the
Filed 06/26/15
Document 1
price premium paid for
Page
the Products
price of the Products equal to the percentage of non-functional
or a
43 of 67
43
PagelD
refund of the
purchase
slack-fill in the Products.
COUNT XII
(All
172.
all
Plaintiffs
reallege
173.
As
a
UNJUST ENRICHMENT
States and the District of Columbia)
and
and further
incorporate
alleges
packaging, advertising, marketing
of and members of the Class,
by reference
allegations
contained in
misleading labeling,
fraudulent and
deceptive,
and sales of Products, Defendant
the payment of the
through
the
follows:
as
herein
was
enriched,
purchase price
the expense
at
for Defendant's
Products.
Plaintiffs and members of the Class conferred
174.
the Products, and Defendant has
purchasing
knowledge
a
benefit
Defendant
on
of this benefit and has
through
voluntarily
accepted and retained the benefits conferred on it.
175.
Defendant will be
Class member is entitled to
which Defendant has been
176.
an
unjustly
amount
unjustly
would be
was
in
not
light of the
they enriched
benefits that
against equity
they
Defendant and for
purported
it to be
and
good
conscience to
received from Plaintiffs, and all others
fact that the volume of the Products
what Defendant
unjust or inequitable
and all others
to the amount
Under the circumstances, it would be
similarly situated,
Class,
equal
enriched.
permit Defendant to retain the ill-gotten
the
enriched if it is allowed to retain such funds, and each
by
its
purchased by
labeling
and
Plaintiffs and
packaging. Thus,
it
for Defendant to retain the benefit without restitution to Plaintiffs,
similarly situated,
for
selling
their Products in
packaging resulting
functional slack-fill. In order for Plaintiffs and Class members to be made whole,
43
they
in
non-
need to
Filed 06/26/15
Document 1
for the Products
44 of 67
Page
refund of the
purchase price
receive either the
price premium paid
Products
the percentage of non-functional slack-fill in the Products.
equal to
or a
44
PagelD
of the
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs,
for relief and judgment
For
(A)
as
similarly situated,
pray
the nationwide Class and under Rule 23 of the Federal
certifying
Rules of Civil Procedure and
attorneys
behalf of themselves and all others
against Defendant as follows:
Order
an
on
Plaintiffs
naming
as
representatives
of the Class and Plaintiffs'
Class Counsel to represent members of the Class;
(B)
For
an
(C)
For
an
(D)
For
declaring
Order
the Defendant's conduct violates the statutes referenced
herein;
Order
finding in favor of Plaintiffs and members
compensatory and punitive damages in
of the Class;
amounts to
be determined
by
the
Court and/or jury;
(E)
For prejudgment interest
(F)
For
an
(G)
For
injunctive
on
all amounts awarded;
Order of restitution and all other forms of equitable monetary relief;
relief to
repackage the
Products without non-functional slack-fill
as
pleaded or as the Court may deem proper;
(H)
attorneys'
(I)
For
an
Order
awarding
Plaintiffs and members of the Class their reasonable
fees and expenses and costs of suit; and
For such other and farther relief as the Court deems just and proper.
44
Filed 06/26/15
Document 1
Page
45 of 67
PagelD
45
DEMAND FOR TRIAL BY JURY
Plaintiffs, individually and
on
behalf of all others
similarly situated, hereby
jury trial on all claims so triable.
Dated: June 26, 2015
Respectfully submitted,
LEE LITIGATION
C.K. Lee (CL 4086)
GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Tel.: 212-465-1188
Fax: 212-465-1181
Attorneys for Plaintiffs and the Class
By:
C.K. Lee,
45
demands
a
Document 1
Filed 06/26/15
Page
46 of 67
PagelD
EXHIBIT A
46
Document 1
Filed 06/26/15
Page
47 of 67
PagelD
47
TABLE OF CONTENTS
MENTOS® SUGAR-FREE CHEWING GUM PRODUCTS
Mentos® Sugar-free Chewing Gum (Fresh Mint)
Mentos® Sugar-free Chewing Gum (Spearmint)
Mentos® Sugar-free Chewing Gum (Pure White)
Mentos® Sugar-free Chewing Gum (Ice Flurry)
Mentos® Sugar-free Chewing Gum (Bubble Fresh Cotton
Mentos®
Mentos®
3
4
5
Candy)
Peppermint/Spearmint)
Sugar-free Chewing Gum (Up2U
Gum
Strawberry/Blackberry)
(Up2U
Sugar-free Chewing
Sweet
6
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EXHIBIT C
64
Document 1
Filed 06/26/15
Page
65 of 67
PagelD
LEE LITIGATION GROUP, PLLC
30 EAST 30TH STREET, SECOND FLOOR
NEW YORK, NY 10016
TEL: 212-465-1180
FAN: 212-465-1181
[email protected]
212-465-1188
WRITER'S DIRECT:
[email protected]
April 29,
VIA CERTIFIED MAIL
2015
RETURN RECEIPT REQUESTED
Legal Department
Perfetti Van Melle USA Inc.
Turfway Rd
Erlanger, KY 41018
3645
Re:
Demand Letter
re:
Mentos® Chewing Gum (Pure Fresh Fresh Mint)
Mentos® Chewing Gum (Pure Fresh Spearmint)
Mentos® Chewing Gum (Pure Fresh Pure White)
Mentos® Chewing Gum (Ice Finny)
Mentos® Chewing Gum (Bubble Fresh Cotton Candy)
Mentos® Chewing Gum (Up2U Sweet Peppermint/Spearrnint)
Mentos®
Chewing Gum (Up2U Strawberry/Blackberry)
(together, the "Products)
To Whom It
May
Concern:
This demand letter serves as a notice and demand for corrective action on behalf
of my client, Michelle Peery and all other persons similarly situated, arising from
violations of numerous provisions of California law including the Consumers Legal
Remedies Act, Civil Code 1770, including but not limited to subsections (a)(5) and (9)
and violations of consumer protection laws of each of the fifty states and the District of
Columbia. This demand letter serves as notice pursuant to state laws concerning your
deceptive
and
misleading Product packaging.
You have participated in the manufacture, marketing and sale of the Mentos®
chewing gum Products. The Products are packaged in containers made, formed or filled
Food Drug
as to be misleading, contain non-functional slack-fill and violate the Federal
& Cosmetic Act ("FDCA") Section 403 (21 U.S.C. 343) and consumer protection laws of
states and the District of Columbia. As a result, consumers are misled as
each of the
fifty
to
the volume of the Products.
Ms. Michelle Peery, a resident of California, purchased the Mentos® chewing
Spearmint flavor in reliance on the packaging and is
gum Products in the Pure Fresh
acting on behalf of a class defined as all persons in each of the fifty states and the District
of Columbia who purchased the Products (hereafter, the "Class").
65
Document 1
Filed 06/26/15
Page
66 of 67
PagelD
the defects described above, we demand that you (i) cease and desist from
continuing to package the Products with non-functional slack fill; (ii) issue an immediate
recall on any Products with non-functional slack fill; and (iii) make full restitution to all
purchasers throughout the United States of all purchase money obtained from sales
To
cure
thereof.
We further demand that you preserve all documents and other evidence which
refer or relate to any of the above-described practices including, but not limited to the
following:
labeling
and
packaging
(i)
All documents concerning the manufacture,
process for the Products;
(ii)
All communications with the U.S. Food and Drug Administration
concerning the product development, labeling, packaging, marketing and
sales of the Products;
(iii)
All documents
Products; and
(iv)
All communications with customers
concerning
the advertisement,
marketing,
or
concerning complaints
sale of the
or
comments
concerning the Products.
We
are
willing
to
attempt to resolve the demands asserted in this
into such discussions, please contact me immediately. If I do
negotiate
to
letter. If you wish to enter
not hear from you promptly, I will conclude that you are not interested in resolving this
dispute short of litigation. If you contend that any statement in this letter is inaccurate in
documents promptly.
any respect, please provide us with your contentions and supporting
Very truly xours,
Mr. Lee, Esq.
66
Document 1
Filed 06/
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CERTIFIEUtil
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Total
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PostaP
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N.,
Sent To
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or
FO Sox No.
City, Stele, Z1P4-4
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il docket sheet. (SEE S
ICT
ver
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1 of 3
er
nor
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supplement the filing and service of pleadings or other papers as required by law, except as
States in September 1974, is required for the use of the Clerk of Court for the
Odtit8i
poci
ligUnited
FORM.)
••I
'LtRIC
(a) PLAINTIFFS
Michelle Hu, Michelle Peery, John Doe (Illinois), John Doe
John Doe (New Jersey), John Doe (Florida) and
(b) County of Residence of First Listcd Plaintiff
Perfetti Van Melle USA Inc.
pti 1: 05.
Kings.
U .S. 01:Z.1
(EXCEPT IN ItS. PIAISTIFF CASES)
DEFENDANTS
(Michigan),
JotigiseithqN
l' tt...
I
f
tc?inity of Residence of First Listed Defendant
Kenton
r I__,
u 1%,
EASTERN 01S1 RISEITE:
OF IT7V., Yirli
(c) Attorneys (Firm Name. Address, anti 7Clephone Number)
IN LAND
THE
CONDEMNAli
-.Mmigii4W-4,1?,
i
Attorneys (If Ktrown)
C.K. Lee, Esq., Lee Litigation Group, PLLC
30 East 39th Street, Second Floor, New York, NY 10016
Tel: (212) 465-1188
II. BASIS OF JURISDICTION (llace an
"X" m One Nos
CI 3
U.S. Government
A4t 4ill,
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an.".e
Only)
and One Bar for
Only)
(Pin- Diversity Cases
O 1
68
PagelD
CIVIL COVER SHEET
3S 44 (Rev. 1/2013)
p.,.
Filed 06/26/15
Document 1-1
Case0:15-cv-03742-KAM-JO
Federal Question
Plaintiff
(I (S.
PTF
DEE
Government Not
X I
Citizen of This State
Part))
a
0
Def,
1
Incorporated
or
Principal Place
Plamtqf
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CJ 4
0 4
0 5
X
0 6
0 6
of Business In This State
02
DI
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Defendant
Citizen ofAnother State
iversity
CI 2
0
2
Incorporated anfl Principal Place
5
of Business In Another State
(Indicate Otr:emitip of Parties in hem HO
0 3
Citizen or Subject of a
CI
3
Foreign Nation
Foreign Country
IV. NATURE OF SUIT (Place an
CONTRACT
"X" in One Hos Mit)
TORTS
PERSONAL INJURY
CI 110 Insurance
0 120 Marine
0 310 Airplane
O 130 Miller Act
O 140 Negotiable Instrument
O 150 Recovery of Overpayment
& Enforcement ofJudgment
CI 151 Medicare Act
O 152 Recovery of Defaulted
Student Loans
0 315
0 153
0
CI
O
CI
(Excludes Veterans)
Recovery of Overpayment
0 320 AssaulL Libel &
Slander
0 330 Federal Employers'
Liability
CI 340 Marine
0 345 Marine Product
Liability
0 350 MillOf Vehicle
0 355 Motor Vehicle
Product Liability
0 360 Other Personal
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
I
Airplane Product
Liability
CI 362 Personal Injury.
Medical Malpractice
CIVIL RIGHTS
REAL PROPERTY
0 440 Other Civil
0 441 Voting
CI
0
0
0
CI
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
0 290 All Other Real Property
0 365 Personal Injury
Product Liability
CI 367 I lealth Care/
Pharmaceutical
Personal Injury
Product Liability
0 368 Asbestos Personal
Injury Product
Liability
ERS s NAL PROPERTY
370 0, er Fraud
ruth in Lending
0 3
380 Other Personal
0 385
Injury
Employment
0
0
0
0
0
0
CI
0
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
540
550
555
560
Drug Related Seizure
of Property 21 USC 881
0 690 Other
I 0 422
OTHER STATUTF-S
BANKRUPTCY
Appeal 28 USC 158
0 423 Withdrawal
28 USC 157
0
CI
CI
0
0
0
0
PROPERTY RIGHTS
CI 820 Copyrights
0 830 Patent
0 840 Trademark
LABOR
0 710 Fair Labor Standards
Act
CI 720 Labor/Management
Relations
Railway Labor Act
Family mid Medical
CI
0
CI
0
0
Mandamus & Other
Civil Rights
Prison Condition
Civil Detainee
Conditions of
0 790 Other Labor Litigation
CI 791 Employee Retirement
Income
Security Act
375 False Claims Act
400 State Reapportionment
410 Antitnist
430 Banks and Banking
450 Commerce
460 Devolution
470 Racketeer Influenced and
Corrupt Organizations
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 D1WC/DIWW (405(g))
864 SSID Tide XVI
865 RS1 (405(g))
Leave Act
Other:
0 446 Amer. w/Disabilities
Other
CI 448 Education
0 625
0 740
CI 751
Property Damage
Property Damage
Prolvet Liability
PRISONER PETITIONS
Rights
0 442 Employment
0 443 Housing/
Accommodations
0 445 Amer. w/Disabilitics
FORFEITUREIPENALTY
PERSONAL INJURY
FEDERAL TAX suns
0 870 Taxes (U.S. Plaintiff
0 480 Consumer Credit
0 490 Cable/Sat TV
0 850 Securitiesrommodities,
Exchange
0
0
CI
CI
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom ofInformation
Act
0 896 Arbitration
o 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
0 950 Constitutionality of
State Statutes
Defendant)
0 871 1RS—Third Party
or
26 USC 7609
IMMIGRATION
0 462 Naturalization Application
0 465 Other Inunigration
Actions
Confinement
/1S\ORIGIN
)it 1 %Original
(Place an "X" in One Boy (Inly)
Proceeding
0 2 Removed from
State Court
0 3
Remanded from
0 4 Reinsmted
Appellate Court
Reopened
or
0 5 Transferred from
Anotr
he Di strct
i
0 6
Multidistrict
Litigation
fapL'rifs'
Cite the U.S. Civil Statute under which you are filing/Du not dte Jurisdictional statutes
28 U.S.C. 1332(d); New York General Business Law Section 349
VI. CAUSE OF ACTION Brief
description of cause:
Deceptive and Unfair Trade Practices
VII.
01 CHECK IF THIS IS A CLASS ACTION
REQUESTED IN
VIII. RELATED
CASE(S)
(See instructions).
IF ANY
DATE
(0
L (II
I
JUDGE
it".•40.
AMOUNT
g
CHECK YES
only if demanded in complaint.
JURY DEMAND:
A
Yes
0 No
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
S
FOR OFFICE USE ONLY
RECEIPT It
DEMAND S
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
unless divers109:
--9"--
APPLYING IFP
JUDGFAigtiMo 44MAG.
a
JUDGE
(O/enSie /p)
g7(--(
Z
Document 1-1
Filed 06/26/15
1OTOMU8TAM
zosiri\O
\4\31
‘I.INft
I
4
.7
Page
2 of 3
PagelD
69
Document 1-1
Filed 06/26/15
3 of 3
Page
70
PagelD
CERTIFICATION OF ARBITRATION ELIGIBILITY
Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000.
exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless a
certification to the contrary is filed.
Lee, counsel for Plaintiffs, do
ineligible for compulsory arbitration for the following reason(s):
CK
monetary damages sought
the
0
are
in
excess
hereby certify that the
above
captioned civil action
is
of $150,000, exclusive of interest and costs,
complaint seeks injunctive relief,
the matter is otherwise
ineligible
for the
DISCLOSURE STATEMENT
following reason
FEDERAL RULES CIVIL PROCEDURE 7.1
Identify any parent corporation and any publicly held corporation that owns
RELATED CASE STATEMENT (Section VIII
on
10% or more
or
its stocks:
the Front of this Form)
Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a)
provides that "A civil case is -related" to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or
because the cases arise from the same transactions or events, a substantial saving ofjudicial resources is likely to result from assigning both cases to the
A civil case shall not be deemed "related" to another civil case merely because the civil
same judge and magistrate judge." Rule 50.3.1 (b) provides that
case: (A) involves identical legal issues, or (B) involves thc same parties." Rule 50.3.1 (c) further provides that "Presumptively, and subject to the power
of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to bc -related" unless both cascs are still pending before the
court."
NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)
Is the civil action
1.)
being
filed in the Eastern District removed from
a
New York State Court located in Nassau
or
Suffolk
County: 140
If you answered "no" above:
events or omissions
2.)
a) Did the
giving rise to the claim or claims,
or a
substantial part thereof,
occur
in Nassau
or
Suffolk
County? No
b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern
District? Yes
If your answer to question 2 (b) is "No, does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or
Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau
or Suffolk County?
(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts).
BAR ADMISSION
I
am
currently admitted in the
MI
Are you
I
Eastern District of New York and
Yes
currently a member
in
currently the subject of any disciplinary action (s) in this or any other state or
No
(If yes, please explain)
M
p Yes
certify the accuracy of all information provided above.
Signature:
good standing of the bar of this court.
No
federal court?

class-action lawsuit - Truth In Advertising

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