Brahler v. Kraft Heinz Food Company

Northern District of Illinois, ilnd-1:2016-cv-06161

COMPLAINT Breach of Contract against Kraft Heinz Food Company by George Brahler. Attorney Preusch, Matthew J. added. (Filing fee $ 400, receipt number 0972-6435712) Modified on 4/25/2016 [Transferred from California Eastern on 6/15/2016.]

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Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 1 of 29 PageID #:1 1 Matthew J. Preusch (SBN 298144) mpreusch@kellerrohrback.com 2 KELLER ROHRBACK L.L.P. 3 1129 State Street, Suite 8 Santa Barbara, CA 93101 4 Tel.: (805) 456-1496 Fax: (805) 456-1497 5 Attorney for Plaintiff 6 (Additional Counsel listed on signature page) 7 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 9 SACRAMENTO DIVISION 10 11 GEORGE BRAHLER, on behalf of himself and all others similarly situated, 12 Case No. Plaintiff, 13 CLASS ACTION COMPLAINT v. 14 (1) BREACH OF EXPRESS WARRANTY; 15 KRAFT HEINZ FOODS COMPANY, (2) BREACH OF IMPLIED WARRANTY; (3) NEGLIGENT MISREPRESENTATION; 16 Defendant. (4) UNJUST ENRICHMENT; (5) VIOLATION OF CALIFORNIA'S FALSE 17 ADVERTISING LAW; (6) VIOLATION OF CALIFORNIA'S 18 CONSUMER LEGAL REMEDIES ACT; 19 (7) VIOLATION OF CALIFORNIA'S UNFAIR COMPETITION LAW; 20 (8) VIOLATION OF THE MAGNUSON- MOSS WARRANTY ACT. 21 JURY TRIAL DEMANDED 22 23 24 25 26 27 28 30 C LAS S ACT I ON C OMP LAI NT 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 2 of 29 PageID #:1 1 TABLE OF CONTENTS 2 I. JURISDICTION ............................................................................................................... 1 3 II. INTRODUCTION ............................................................................................................ 2 4 III. PARTIES .......................................................................................................................... 3 5 IV. FACTUAL BACKGROUND ........................................................................................... 4 6 V. SUBSTANTIVE ALLEGATIONS .................................................................................. 7 7 VI. CLASS ALLEGATIONS ............................................................................................... 11 8 A. The Classes ......................................................................................................... 11 9 1. Numerosity: Fed. R. Civ. P. 23(a)(1). ..................................................... 11 10 11 2. Commonality: Fed. R. Civ. P. 23(a)(2). .................................................. 12 12 3. Typicality: Fed. R. Civ. P. 23(a)(3). ....................................................... 13 13 4. Adequacy: Fed. R. Civ. P. 23(a)(4). ....................................................... 13 14 5. The pre-requisites to maintaining a class action for injunctive relief apparent: Fed. R. Civ. P. 23(b)(2). .......................................................... 13 15 6. Common questions predominate, and the class action device is 16 superior, making certification appropriate: Fed. R. Civ. P. 23(b)(3). ..... 14 17 VII. CLAIMS FOR RELIEF .................................................................................................. 14 18 COUNT I BREACH OF EXPRESS WARRANTY (ON BEHALF OF THE 19 NATIONAL CLASS) ......................................................................................... 14 20 COUNT II BREACH OF IMPLIED WARRANTY (ON BEHALF OF THE NATIONAL CLASS) ......................................................................................... 15 21 COUNT III NEGLIGENT MISREPRESENTATION (ON BEHALF OF THE 22 NATIONAL CLASS) ......................................................................................... 16 23 COUNT IV UNJUST ENRICHMENT AND COMMON LAW RESTITUTION 24 (ON BEHALF OF THE NATIONAL CLASS).................................................. 17 25 COUNT V VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW (CAL. BUS. & PROF. CODE §§ 17500, ET SEQ.) (ON BEHALF OF 26 THE CALIFORNIA CLASS) ............................................................................. 18 27 COUNT VI VIOLATION OF THE CALIFORNIA CONSUMER LEGAL 28 REMEDIES ACT (CAL. CIV. CODE §§ 1750, ET SEQ.) (ON BEHALF OF THE CALIFORNIA CLASS) ....................................................................... 20 30 C LAS S ACT I ON C OMP LAI NT - i 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 3 of 29 PageID #:1 1 COUNT VII VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW (CAL. BUS. & PROF. CODE §§ 17200, ET SEQ.) (ON BEHALF 2 OF THE CALIFORNIA CLASS) ....................................................................... 22 3 COUNT VIII VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 4 (15 U.S.C. §§ 2301, ET SEQ.) (ON BEHALF OF THE NATIONAL CLASS) ............................................................................................................... 23 5 VIII. PRAYER FOR RELIEF ................................................................................................. 25 6 IX. DEMAND FOR JURY TRIAL ...................................................................................... 26 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 C LAS S ACT I ON C OMP LAI NT - ii 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 4 of 29 PageID #:1 1 Plaintiff George Brahler ("Plaintiff"), on behalf of himself and all others similarly situated, 2 brings this action against Defendant Kraft Heinz Foods Company ("Kraft") to recover monetary 3 damages, injunctive relief, and other remedies for violations of California and federal law. Plaintiff 4 makes the following allegations based on the investigation of counsel and on information and belief, 5 except as to allegations pertaining to Plaintiff individually, which is based on personal knowledge. 6 7 I. JURISDICTION 8 This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2)(A) 9 because Plaintiff, as well as most members of the putative Class, are citizens of a different state than 10 the Defendant, and the aggregate amount in controversy exceeds five million dollars, exclusive of 11 interest and costs. 12 This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because 13 Plaintiff's Magnuson-Moss Warranty Act, 15 U.S.C. § 2310, claim arises under a law of the United 14 15 States. 16 This Court has supplemental jurisdiction over the state law claims in this action 17 pursuant to 28 U.S.C. § 1367. 18 This Court has personal jurisdiction over Defendant pursuant to California Code of 19 Civil Procedure ("Cal. Code Civ. Proc.") § 410.10 and because a substantial portion of the wrongdoing 20 alleged in this Complaint took place in the State of California; Kraft is authorized to do business in the 21 22 State of California; and Kraft has sufficient minimum contacts with the State of California and/or 23 otherwise intentionally avails itself of the markets in the State of California through the production, 24 promotion, marketing, and sale of products and services in this State to render the exercise of 25 jurisdiction by this Court permissible under traditional notions of fair play and substantial justice. 26 27 28 30 C LAS S ACT I ON C OMP LAI NT - 1 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 5 of 29 PageID #:1 1 Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because a substantial part 2 of the events giving rise to the claims herein, including the production and purchase of the cheese 3 products in question, occurred within this District. 4 II. INTRODUCTION 5 Defendant Kraft has advertised and sold millions of containers of its "100% GRATED 6 7 PARMESAN Cheese" products ("Product"). On those containers, and in other advertising, Kraft 8 prominently and in no uncertain terms represents to consumers one trait with regard to its grated 9 parmesan cheese: It is "100% Grated Parmesan Cheese." 10 11 12 13 14 15 16 17 18 19 20 But that representation is not true. Independent laboratory testing confirms that Kraft's 21 "100% parmesan cheese" products are comprised of at least 3.8 percent cellulose,1 a filler and anti- 22 clumping agent derived from wood pulp. 23 24 Nevertheless, Defendant has made—and continues to make—false, fraudulent, and 25 misleading claims on its food labels in violation of state and federal law. 26 1 27 See, e.g., Lydia Mulvany, The Parmesan Cheese You Sprinkle on Your Penne Could Be Wood, Bloomberg (Feb. 16, 2016), http://www.bloomberg.com/news/articles/2016-02-16/the-parmesan- 28 cheese-you-sprinkle-on-your-penne-could-be-wood. 30 C LAS S ACT I ON C OMP LAI NT - 2 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 6 of 29 PageID #:1 1 Plaintiff and members of the Class, as defined herein, are consumers who purchased 2 Kraft's "100% parmesan cheese" products because they were deceived into believing that the products 3 were, in fact, 100% cheese. 4 Plaintiff and members of the Class have been injured, suffering an ascertainable 5 monetary loss, and seek a refund and/or recession of the transaction as well as all further equitable and 6 7 injunctive relief as provided by law. 8 III. PARTIES 9 Plaintiff is and was at all times alleged herein a citizen of the United States and a citizen 10 of the State of California, and he currently resides in Davis, California. Over the years, Plaintiff 11 consistently and routinely purchased Kraft grated "100% parmesan cheese" products for personal use. 12 Most recently in approximately October 2015, Plaintiff purchased the Kraft grated "100% parmesan 13 cheese" product at a retail store located in this District. 14 15 Defendant Kraft is a Pennsylvania corporation with headquarters in Pittsburg, 16 Pennsylvania and Chicago, Illinois. Defendant maintains an agent for service of process at CT 17 Corporation System, 818 West Seventh St, Ste. 930, Los Angeles, CA 90017. Upon information and 18 belief, Defendant has long maintained substantial production, distribution, marketing, and sales 19 operations in California and in this District in particular. For example, Defendant maintains a 20 production plant in Tulare, California where it produces the parmesan cheese used in the products at 21 22 issue.2 23 24 2 Christopher Palmeri, Stealing a Wedge From Wisconsin, Bloomberg (Feb. 11, 2001), 25 http://www.bloomberg.com/news/articles/2001-02-11/stealing-a-wedge-from-wisconsin-intl-edition; 26 FDA, List of U.S. Dairy Product Manufacturers/Processors With Interest in Exporting to Chile (Mar. 2015), http://www.fda.gov/Food/GuidanceRegulation/ImportsExports/Exporting/ucm120245; Cal. 27 Dep't of Res. Recycling and Recovery (CalRecycle), Kraft Foods Global Inc. – Tulare (Dec. 13, 2011), 28 http://www.calrecycle.ca.gov/wrap/search.asp?VW=APP&BIZID=1942&YEAR=2004&CNTY=. 30 C LAS S ACT I ON C OMP LAI NT - 3 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 7 of 29 PageID #:1 1 IV. FACTUAL BACKGROUND 2 Cellulose is made from wood-pulp and, as a technical matter, is wood.3 It is used to 3 reduce the caking and clumping of cheese. However, it can also be used to artificially and cheaply 4 increase the bulk and weight of cheese products, cutting production costs and increasing profits at the 5 expense of quality and the nutritional value of the cheese. As such, parmesan cheese, like many other 6 7 types of cheeses, is regulated by the government. 8 When the Food and Drug Administration ("FDA") originally gave notice regarding a 9 proposed change to its regulations to allow for the use of cellulose as an optional anticaking agent in 10 grated cheese, it stated that standard for the use of anticaking agents was that "[t]he total amount [of 11 anticaking agent] that can be used singly or in combination, cannot exceed 2 percent of the weight of 12 the finished food."4 13 The FDA and the United States Department of Agriculture's Food Safety and 14 15 Inspection Service ("FSIS") currently share an ingredient approval process. The FDA determines the 16 safety of substances and prescribes safe conditions of use while the FSIS determines the efficacy and 17 suitability of food ingredients in meat, poultry, and egg products. FSIS issued a directive ("FSIS 18 Directive 7120.1") that provides inspection program personnel with an up-to-date list of substances 19 that may be used in the production of meat, poultry, and egg products. The FSIS entry for cellulose, 20 reproduced below, provides that cheese may not include more than 2% cellulose:5 21 22 23 24 3 Linda Larsen, Is There Wood in Your Parmesan Cheese?, Food Poisoning Bulletin (Mar. 3, 2016), 25 https://foodpoisoningbulletin.com/2016/is-there-wood-in-your-parmesan-cheese/. 4 26 See Grated Cheeses, Microcrystalline Cellulose as Optional Anticaking Agent, 37 Fed. Reg. 20,183 (Sept. 27, 1972) (to be codified at 21 C.F.R. pt. 19). 5 27 FSIS Directive 7120.1 Revision 33 - Safe and Suitable Ingredients used in the Production of Meat, Poultry, and Egg Products 65 (Mar. 3, 2016), http://www.fsis.usda.gov/wps/wcm/connect/bab10e09- 28 aefa-483b-8be8-809a1f051d4c/7120.1.pdf?MOD=AJPERES. 30 C LAS S ACT I ON C OMP LAI NT - 4 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 8 of 29 PageID #:1 1 SUBSTANCE PRODUCT AMOUNT REFERENCE LABELING REQUIREMENTS 2 Cellulose (powdered) To facilitate Not to exceed 2 Acceptability None under the grinding and percent of the determination accepted 3 shredding in cheese conditions of cheese use (1) 4 In November 2012, the FDA conducted a surprise inspection of the Castle Cheese, Inc. 5 ("Castle") factory in rural Pennsylvania to find that the cheese producer, which supplies grocery 6 chains throughout the country, had been illegally doctoring its parmesan cheese with cut-rate fillers, 7 8 such as cellulous, in violation of FDA regulations.6 9 In July 2013, the FDA issued a warning letter to Castle noting its violations of FDA 10 regulations with respect to the use of cellulose in cheese products.7 As a result of these violations, 11 Castle President Michelle Myrter is scheduled to plead guilty to criminal charges and faces up to a 12 year in prison as well as a $100,000 fine.8 13 Following the FDA's 2013 reports of Castle's violations, independent investigations 14 have made it clear that violations of cellulous regulations are not isolated to Castle and are, in fact, an 15 16 industry-wide problem. According to a statement by Arthur Schuman, the largest seller of Italian hard- 17 cheese in the United States: "The tipping point [is] grated cheese, where [in some cases] less than 40 18 percent of the product was actually a cheese product. . . Consumers are innocent, and they're not 19 getting what they bargained for. And that's just wrong."9 20 According to independent laboratory testing conducted by Bloomberg News, Kraft- 21 brand "100% GRATED PARMESAN Cheese" products, which are sold in thousands of retail outlets 22 23 nation-wide, contain 3.8% cellulous10; 1.8% over the 2% permitted by the FSIS Directive 7120.1.11 24 6 See supra n.1. 25 7 FDA Warning Letter to Castle Cheese, Inc. dated July 11, 2013, 26 http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2013/ucm363201.htm. 8 See supra n.1. 9 27 Id. 10 Id. 28 11 See supra ¶ 15 & n.5. 30 C LAS S ACT I ON C OMP LAI NT - 5 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 9 of 29 PageID #:1 1 Nevertheless, as indicated in Figure 1 below, Kraft unequivocally declares to 2 consumers on the front labels of its Kraft-brand grated parmesan cheese products that their products 3 contain "100% GRATED PARMESAN Cheese": 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Fig. 1: Kraft-brand "100% GRATED PARMESAN Cheese" Image available: http://www.kraftrecipes.com/products/kraft-100-grated- 18 parmesan-chees-1147.aspx 19 This type of mislabeling is common because, with the exception of the Castle 20 prosecution, the "FDA has reported that limited resources and authorities challenge its efforts to carry 21 out its food safety responsibilities. . . [which] impact [its] efforts to oversee food labeling laws."12 As a 22 23 result, food producers have had little incentive to comply with FDA and other governmental agency 24 guidelines regarding cellulose. Through this lawsuit, however, Plaintiff seeks to hold Kraft to the 25 applicable legal standards and stop the practice of misleading consumers by mislabeling and 26 27 12 U.S. Gov't Accountability Off., GAO-08-597, FOOD LABELING - FDA Needs to Better Leverage Resources, Improve Oversight, and Effectively Use Available Data to Help Consumers Select Healthy 28 Foods (Sept. 2008), http://www.gao.gov/new.items/d08597.pdf. 30 C LAS S ACT I ON C OMP LAI NT - 6 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 10 of 29 PageID #:1 1 artificiality increasing the bulk and weight of cheese products through the use of filler product such as 2 cellulose. 3 V. SUBSTANTIVE ALLEGATIONS 4 Kraft is engaged in the business of producing, designing, developing, manufacturing, 5 testing, packaging, promoting, marketing, distributing, labeling and selling Parmesan cheese products 6 7 in California and throughout the country. 8 Kraft produces, designs, develops, manufactures, tests, packages, markets, distributes, 9 labels, sells, and advertises the "100% GRATED PARMESAN Cheese" products at issue here 10 throughout the United States, including in the State of California and in this District. 11 Specifically, Kraft has made its "100% GRATED PARMESAN Cheese" products 12 available for purchase at thousands of convenience stores operating in California and this District such 13 as Walmart, Raley's, Safeway, Lucky, Target, and Nob Hill Foods. Defendant also markets, 14 15 advertises, and sells its Kraft-brand "100% GRATED PARMESAN Cheese" products online to 16 consumers throughout the United States via its website: http://www.kraftrecipes.com/. 17 At all or nearly all of the above-noted retail food stores, and on its website, Defendant 18 Kraft advertises and sells Kraft-brand "100% GRATED PARMESAN Cheese" products. 19 These Kraft-brand "100% GRATED PARMESAN Cheese" products make one primary 20 marketing representation on the label: The product is "100% Grated Parmesan Cheese." 21 22 In fact, Kraft prominently displays in large capitalized lettering on the front labels of its 23 grated parmesan cheese products that the product is "100% GRATED PARMESAN Cheese." 24 25 26 27 28 30 C LAS S ACT I ON C OMP LAI NT - 7 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 11 of 29 PageID #:1 1 On Kraft's website page for recipes to make with its grated parmesan cheese product, 2 Kraft continues to encourage customers to "[m]ake every night of the week rewarding and relaxing with 3 KRAFT 100% Grated Parmesan Cheese. . ."13 4 5 6 7 8 9 10 11 12 Similarly, at the top of its products pages, Kraft emphasizes the supposedly "100% 13 Grated Parmesan Cheese" nature of those products, a few examples of which are reproduced below:14 14 15 16 17 18 19 20 21 22 23 24 25 13 26 http://www.kraftrecipes.com/kraftcheese/parm.aspx (emphasis added) (last visited April 18, 2016). 14 http://www.kraftrecipes.com/products/kraft-100-grated-parmesan-chees-1147.aspx (last visited April 27 18, 2016); http://www.kraftrecipes.com/products/kraft-100-grated-parmesan-chees-1002.aspx (last visited April 18, 2016); and http://www.kraftrecipes.com/products/kraft-100-grated-parmesan-chees- 28 1001.aspx (last visited April 18, 2016) respectively. 30 C LAS S ACT I ON C OMP LAI NT - 8 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 12 of 29 PageID #:1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Further, Kraft emphasizes not once but twice on many of its front labels the "100%" 16 representation as well as claiming there are "no fillers" in the product and, indeed, highlighting the 17 "100%" and "NO FILLERS" in prominent red boxes: 18 19 20 21 22 23 24 25 26 Kraft's "100% GRATED PARMESAN Cheese" products are not, however, comprised 27 of "100% Parmesan Cheese" and, in fact, contain fillers and/or anti-caking agents such as cellulose. 28 30 C LAS S ACT I ON C OMP LAI NT - 9 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 13 of 29 PageID #:1 1 Indeed, independent testing has indicated that at least 3.8 percent of the grated 2 parmesan cheese produced, advertised, and sold by Kraft is comprised of cellulose, an anti-clumping 3 agent derived from wood chips.15 4 Customers, including Plaintiff, reasonably rely on Kraft's labeling and representations 5 that its cheese products contain "100% Parmesan Cheese" and purchased those products as a result. 6 7 Specifically, Plaintiff purchased Kraft-brand "100% GRATED PARMESAN Cheese" 8 products on numerous occasions, most recently, October 1, 2015, within this District. 9 Plaintiff saw and relied on the front label of the product, which prominently stated, 10 "100% GRATED PARMESAN Cheese" in his decision to purchase the product. Plaintiff would not 11 have purchased this product, or would have paid significantly less for the product, had he known that 12 the "100%" representation mischaracterizes the amount and percentage of Parmesan cheese in the 13 container. 14 15 Relying on the false and misleading claims on its grated parmesan cheese product 16 labels, Plaintiff and members of the Class have purchased millions of dollars of Kraft's grated cheese 17 products during the relevant time period that they otherwise would not have purchased or would not 18 have paid the same price to purchase. 19 The Kraft Heinz Company is the third-largest food and beverage company in North 20 America and the fifth-largest food and beverage company in the world.16 Kraft boasted a net revenue 21 of $18.2 billion dollars in 2014.17 In the United States, where Kraft is the largest producer and seller of 22 23 cheese, it commanded a 27% value share in 2015 of all cheese sold in the country.18 24 25 15 26 See supra n.1. 16 About Us, http://www.kraftfoodsgroup.com/about/index.aspx (last visited Apr. 14, 2016). 17 27 Kraft Foods Group, Inc., Annual Report (Form 10-K) (Dec. 27, 2014). 18 Euromonitor Intern'l, Cheese in the United States (July 2015), http://www.euromonitor.com/cheese- 28 in-the-us/report. 30 C LAS S ACT I ON C OMP LAI NT - 1 0 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 14 of 29 PageID #:1 1 Kraft has made, and continues to make, the claim on the food labels of its parmesan 2 cheese products, and elsewhere, that those products contain "100% GRATED PARMESAN Cheese" 3 and have "no fillers" In other words, Kraft continues to perpetuate the myth to customers, including 4 Plaintiff, with literally false and, therefore, misleading information. 5 VI. CLASS ALLEGATIONS 6 7 Plaintiff repeats and re-alleges every allegation above as if set forth herein in full. 8 A. The Classes 9 Plaintiff brings this action on his own behalf and pursuant to Rule 23 of the Federal 10 Rules of Civil Procedure ("Fed. R. Civ. Proc."), on behalf of the following class (the "Class"): 11 All persons who purchased Kraft branded "100% GRATED PARMESAN Cheese" during the 12 relevant statute of limitations. 13 Plaintiff also brings this action under California law on behalf of the following class 14 ("the California Class"): 15 All persons of the Class who purchased Kraft branded "100% GRATED PARMESAN 16 Cheese" Products in California. 17 Excluded from the Class are: (a) Defendant and its affiliates, parents, subsidiaries, 18 employees, officers, agents, and directors; (b) any trial judge who may preside over the case and 19 members of such judges' staffs and immediate families; and (c) any persons or entities that purchased 20 the produce for purposes of resale. 21 1. Numerosity: Fed. R. Civ. P. 23(a)(1). 22 23 The Members of the Class are so numerous that joinder of all Members is 24 impracticable. On information and belief, hundreds of thousands of consumers have purchased Kraft's 25 "100% GRATED PARMESAN Cheese" products. Disposition of the claims of the proposed Class in a 26 class action will provide substantial benefits to both the parties and the Court. 27 28 30 C LAS S ACT I ON C OMP LAI NT - 1 1 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 15 of 29 PageID #:1 1 2. Commonality: Fed. R. Civ. P. 23(a)(2). 2 The rights of each member of the proposed Class were violated in a similar fashion 3 based upon Defendant's uniform wrongful actions and/or inaction. 4 The following questions of law and fact are common to each proposed Class Member 5 and predominate over questions that may affect individual Class Members: 6 7 a. Whether Defendant Kraft misrepresented the ingredients of its "100% GRATED PARMESAN Cheese" products; 8 b. Whether Defendant Kraft engaged in marketing and promotional activities which were 9 likely to deceive consumers by omitting, suppressing, and/or concealing the true content of its "100% GRATED PARMESAN Cheese" products; 10 11 c. Whether Defendant Kraft omitted, suppressed, and/or concealed material facts concerning their "100% GRATED PARMESAN Cheese" products from consumers; 12 d. What the fair market value of Defendant Kraft's "100% GRATED PARMESAN 13 Cheese" products would have been throughout the class period but for Defendant omissions, suppressions, and/or concealments concerning the true content of 14 Defendant's "100% GRATED PARMESAN Cheese" products; 15 e. Whether the prices which Defendant Kraft charged for its "100% GRATED 16 PARMESAN Cheese" products exceeded their fair market value; 17 f. Whether Plaintiff and the Class were deprived of the benefit of the bargain in 18 purchasing Defendant Kraft's "100% GRATED PARMESAN Cheese" products; 19 g. Whether the prices that Defendant Kraft charged for its "100% GRATED PARMESAN Cheese" products constituted unfair acts or practices in violation of California's Unfair 20 Competition Law and/or California's Consumers Legal Remedies Act; 21 h. Whether Defendant Kraft's actions occurred in connection with the Defendant's 22 conduct of trade and commerce; 23 i. Whether Defendant Kraft's omissions, suppressions, and/or concealments of the content of its "100% GRATED PARMESAN Cheese" products enabled Defendant to 24 charge unfair or unconscionable prices; 25 j. Whether Defendant Kraft violated California's False Advertising Law, California's 26 Consumer Legal Remedies Act, California's Unfair Competition Law, and/or the Magnuson-Moss Warranty Act; 27 28 30 C LAS S ACT I ON C OMP LAI NT - 1 2 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 16 of 29 PageID #:1 1 k. Whether Defendant Kraft made and/or breached an express or implied warranty to Plaintiff and the Class; 2 3 l. Whether Defendant Kraft was unjustly enriched at the expense of Plaintiff and Class members; 4 m. Whether Defendant Kraft's conduct in violation of California and federal law was 5 intentional and knowing; 6 n. Whether Defendant Kraft is likely to continue to use false, misleading or unlawful 7 conduct such that an injunction is necessary; 8 o. Whether Plaintiff and the Class have been damaged and, if so, the extent of such damages; and 9 p. Whether Plaintiff and the Class are entitled to an award of reasonable attorneys' fees, 10 interest, and costs of suit. 11 3. Typicality: Fed. R. Civ. P. 23(a)(3). 12 The claims of the individually named Plaintiff are typical of the claims of the Class and 13 14 do not conflict with the interests of any other members of the Class, in that Plaintiff and the other 15 members of the Class were subjected to the same uniform practices of the Defendant. 16 4. Adequacy: Fed. R. Civ. P. 23(a)(4). 17 The individually named Plaintiff will fairly and adequately represent the interest of the 18 Class. Plaintiff is committed to the vigorous prosecution of the Class' claims and has retained 19 attorneys who are qualified to pursue this litigation and have experience in class actions – in particular, 20 consumer protection and false advertising claims. 21 22 Defendant has acted or refused to act on grounds generally applicable to the proposed 23 Class, thereby making appropriate equitable relief with respect to the Class. 24 5. The pre-requisites to maintaining a class action for injunctive relief apparent: Fed. R. Civ. P. 23(b)(2). 25 26 The prerequisites to maintaining a class action for injunctive relief exist: 27 a. If injunctive relief is not granted, great harm and irreparable injury to Plaintiff and the members of the Class will continue; and 28 30 C LAS S ACT I ON C OMP LAI NT - 1 3 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 17 of 29 PageID #:1 1 b. Plaintiff and the members of the Class have no adequate remedy at law for the injuries which are threatened to recur, in that, absent action from this Court, Defendant will 2 continue to violate state law, and cause damage to Plaintiff. 3 Defendant's actions are generally applicable to the Class as a whole, and Plaintiff seek, 4 inter alia, equitable remedies with respect to the Class as a whole. 5 6. Common questions predominate, and the class action device is superior, making 6 certification appropriate: Fed. R. Civ. P. 23(b)(3). 7 The common questions of law and fact enumerated above predominate over questions 8 affecting only individual members of the Class, and a class action is the superior method for fair and 9 efficient adjudication of the controversy. The likelihood that individual members of the Class will 10 11 have the necessary resources to prosecute separate actions is remote due to the time and expense 12 necessary to conduct such complex litigation in relation to each person's individual potential recovery. 13 The prosecution of this action as a class action will conserve the resources of the judicial system and 14 ensure consistent judgments for Defendant as well as consumers. Plaintiff's counsel, highly 15 experienced in class actions, foresee little difficulty in the management of this case as a class action. 16 VII. CLAIMS FOR RELIEF 17 18 COUNT I BREACH OF EXPRESS WARRANTY 19 (ON BEHALF OF THE NATIONAL CLASS) 20 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 21 In connection with the sale of their "100% GRATED PARMESAN Cheese" products 22 ("the Product"), Defendant issued an express warranty that these products consisted of 100% 23 Parmesan cheese and/or contain "no fillers." 24 Defendant's affirmation of fact and promise on the labels of these products that they 25 26 consisted of 100% Parmesan cheese and/or contain "no fillers" became part of the basis of the bargain 27 between Defendant and Plaintiff and all Class members, thereby creating express warranties that these 28 products would conform to Defendant's affirmation of fact, representations, promise, and description. 30 C LAS S ACT I ON C OMP LAI NT - 1 4 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 18 of 29 PageID #:1 1 Defendant breached its express warranties because their "100% GRATED 2 PARMESAN Cheese" products do not in fact consist of 100% Parmesan cheese and/or do not contain 3 "no fillers" – but instead, are substantially filled with cellulose. The products at issue here do not live 4 up to Defendant's express warranties. 5 Plaintiff and the members of the class were injured as a direct and proximate result of 6 7 Defendant's breach because: (a) they would not have purchased or they would have paid less for the 8 Product if they had known the true facts; (b) they paid a premium price for the Product as a result of 9 Defendant's false warranties and misrepresentations; and (c) they purchased a Product that did not 10 have the characteristics, qualities, or value promised by Defendant. 11 COUNT II 12 BREACH OF IMPLIED WARRANTY (ON BEHALF OF THE NATIONAL CLASS) 13 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 14 15 The Uniform Commercial Code § 2-314 provides that, unless excluded or modified, a 16 warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a 17 merchant with respect to goods of that kind. To be "merchantable," goods must "run, within the 18 variations permitted by the agreement, of even kind, quality and quantity within each unit and among 19 all units involved," "are adequately contained, packaged, and labeled as the agreement may require," 20 and "conform to the promise or affirmations of fact made on the container or label if any." 21 22 Defendant Kraft, through its actions and omissions as alleged herein, in the sale, 23 labeling, marketing, and promotion of its "100% GRATED PARMESAN Cheese" products, impliedly 24 warranted that these products consisted of 100% Parmesan cheese and/or contained "no fillers." 25 Defendant is a merchant with respect to the goods which were sold to Plaintiff and the 26 Class, and there was an implied warranty that those goods were merchantable. 27 28 30 C LAS S ACT I ON C OMP LAI NT - 1 5 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 19 of 29 PageID #:1 1 Defendant breached the warranty implied in the sale of the goods, in that Defendant's 2 "100% GRATED PARMESAN Cheese" products do not contain the "quality and quantity" of 3 Parmesan cheese as impliedly warranted, and because these products do not conform to the promises 4 made on their labels. 5 Plaintiff and Class members reasonably relied upon Defendant's implied warranties in 6 7 purchasing Defendant's "100% GRATED PARMESAN Cheese" products. 8 Plaintiff and the members of the class were injured as a direct and proximate result of 9 Defendant's breach because Plaintiff and Class members: (a) would not have purchased the product if 10 they had known that the product did not have the characteristics or qualities as impliedly warranted by 11 Defendant or they would have paid substantially less for the product; (b) paid a premium price for the 12 Product as a result of Defendant's false warranties and misrepresentations; and (c) purchased a 13 Product that did not have the characteristics, qualities, or value promised by Defendant. 14 15 COUNT III NEGLIGENT MISREPRESENTATION 16 (ON BEHALF OF THE NATIONAL CLASS) 17 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 18 As alleged herein, Defendant misrepresented that its "100% GRATED PARMESAN 19 Cheese" products contain 100% Parmesan cheese and/or "no fillers," when, in fact, they contain a 20 substantial amount of cellulose. 21 22 At the time Defendant made these representations, Defendant knew or should have 23 known that these representations were false or made them without knowledge of their truth or veracity. 24 At minimum, Defendant negligently misrepresented and/or negligently omitted material 25 facts about its "100% GRATED PARMESAN Cheese" products. 26 27 28 30 C LAS S ACT I ON C OMP LAI NT - 1 6 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 20 of 29 PageID #:1 1 The negligent misrepresentations and omissions made by Defendant, upon which 2 Plaintiff and Class members reasonably and justifiably relied, were intended to induce, and actually 3 induced, Plaintiff and all Class members to purchase the products at issue. 4 The negligent misrepresentations and omissions made by Defendant, upon which 5 Plaintiff and all Class members reasonably and justifiably relied, were intended to induce, and actually 6 7 induced, Plaintiff and Class members to purchase the "100% GRATED PARMESAN Cheese" 8 products at issue. 9 Plaintiff would not have purchased Defendant's "100% GRATED PARMESAN 10 Cheese" products, or would not have purchased the products on the same terms, if the true ingredients 11 had been known to them. Class members were likely to also have reasonably relied upon Defendant's 12 deceptive labeling and advertising in Defendant's "100% GRATED PARMESAN Cheese" products. 13 The negligent actions of Defendant caused damage to Plaintiff and all Class members, 14 15 who are entitled to damages and other legal and equitable relief as a result. 16 COUNT IV UNJUST ENRICHMENT AND COMMON LAW RESTITUTION 17 (ON BEHALF OF THE NATIONAL CLASS) 18 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 19 As a result of Defendant's wrongful and deceptive conduct, Plaintiff and Class 20 members have suffered a detriment while Defendant has received a benefit. 21 22 Defendant's misleading, inaccurate and deceptive marketing and labeling intentionally 23 cultivates the perception that consumers are being offered a product that they are not. Plaintiff and all 24 Class members likely would not have purchased Defendant's "100% GRATED PARMESAN Cheese" 25 products, or would have paid significantly less for the products, if Defendant had not misrepresented 26 the nature of the products. 27 28 30 C LAS S ACT I ON C OMP LAI NT - 1 7 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 21 of 29 PageID #:1 1 Defendant received a premium price benefit and/or additional sales from Plaintiff and 2 Class members as a result of this unlawful conduct. 3 Defendant should not be allowed to retain the premium price profits and/or additional 4 sales generated from the sale of products that were unlawfully marketed, advertised and promoted. 5 Allowing Defendant to retain these unjust profits would offend traditional notions of justice and fair 6 7 play and induce companies to misrepresent key characteristics of their products in order to increase 8 sales. 9 Thus, Defendant is in possession of funds that were wrongfully retained from Plaintiff 10 and Class members that should be disgorged as illegally gotten gains. 11 COUNT V 12 VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW (CAL. BUS. & PROF. CODE §§ 17500, ET SEQ.) 13 (ON BEHALF OF THE CALIFORNIA CLASS) 14 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 15 California's False Advertising Law ("FAL"), California Business and Professions Code 16 ("Cal. Bus. & Prof. Code") §§ 17500, et seq., prohibits unfair, deceptive, untrue, or misleading 17 18 advertising. 19 Specifically, Cal. Bus. & Prof. Code § 17500 makes it unlawful for "[a]ny person. . . to 20 make or disseminate or cause to be made or disseminated from this state before the public in any state 21. . . in any advertising device. . . or in any other manner or means whatever, including over the 22 Internet, any statement, concerning. . . personal property or services, professional or otherwise, or 23 performance or disposition thereof, which is untrue or misleading and which is known, or which by 24 the exercise of reasonable care should be known, to be untrue or misleading." 25 26 Kraft engaged in a scheme of offering mislabeled containers of "100% GRATED 27 PARMESAN Cheese" products for sale to Plaintiff and California Class members by way of product 28 packaging, labeling, internet advertising, and other promotional materials. 30 C LAS S ACT I ON C OMP LAI NT - 1 8 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 22 of 29 PageID #:1 1 These labels and materials misrepresented and/or omitted the true content and nature of 2 the mislabeled products. 3 Kraft's advertisements and inducements – including the "100%" cheese representations 4 and/or "no filler" representation made on Kraft's labels and website – were made in California, and 5 come within the definition of advertising as contained in Cal. Bus. & Prof. Code §§ 17500, et seq., in 6 7 that the product packaging, labeling, and promotional materials were intended as inducements to 8 purchase Kraft's "100% GRATED PARMESAN Cheese" products, and they are statements 9 disseminated by Kraft to Plaintiff and the California Class members. 10 Kraft knew or should have known that these statements were inaccurate and 11 misleading. 12 Kraft's false advertisements, as alleged herein, were calculated to induce Plaintiff and 13 California Class members to purchase merchandise they otherwise would not have and/or to spend 14 15 more money than they otherwise would have spent, in order to increase profits. 16 Defendant's actions caused injury to Plaintiff and the California Class members 17 because: (a) they would not have purchased the product if they had known that the product did not 18 have the characteristics or qualities as impliedly warranted by Defendant or they would have paid 19 substantially less for the product; (b) they paid a premium price for the Product as a result of 20 Defendant's false warranties and misrepresentations; and (c) they purchased a Product that did not 21 have the characteristics, qualities, or value promised by Defendant. 22 23 Through their unfair acts and practices, Kraft improperly obtained money from Plaintiff 24 and the California Class. As such, Plaintiff requests that this Court cause Kraft to restore this money to 25 Plaintiff and all class-members, and to enjoin Kraft from continuing to violate the FAL in the future. 26 Plaintiff also requests that the Court award reasonable attorneys' fees and costs 27 pursuant to Cal. Code Civ. Proc. § 1021.5. 28 30 C LAS S ACT I ON C OMP LAI NT - 1 9 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 23 of 29 PageID #:1 1 COUNT VI VIOLATION OF THE CALIFORNIA CONSUMER LEGAL REMEDIES ACT 2 (CAL. CIV. CODE §§ 1750, ET SEQ.) 3 (ON BEHALF OF THE CALIFORNIA CLASS) 4 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 5 This cause of action is brought pursuant to the California Consumer Legal Remedies 6 Act ("CLRA"), Cal. Civ. Code §§ 1750, et seq. 7 Plaintiff and all California Class members are "consumers" within the meaning of Cal. 8 Civ. Code § 1761(d). 9 10 The sale of Kraft's "100% GRATED PARMESAN Cheese" products to Plaintiff and 11 California Class members were "transactions" within the meaning of Cal. Civ. Code § 1761(e). 12 The cheese products purchased by Plaintiff and California Class members are "goods" 13 within the meaning of Cal. Civ. Code § 1761(a). 14 As alleged herein, Defendant violated the CLRA by falsely labeling and advertising its 15 products as consisting of 100% Parmesan Cheese and/or containing no fillers when, in fact, they 16 contain a significant percentage of cellulose, rendering the "100%" and "no filler" claims false, and 17 18 misleading to a reasonable consumer. 19 Defendant violated several provisions of the CLRA. Cal. Civ. Code 20 § 1770(a)(5), prohibits "[r]epresenting that goods or services have sponsorship, approval, 21 characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a 22 sponsorship, approval, status, affiliation, or connection which he or she does not have." Further, Cal. 23 Civ. Code § 1770(a)(7) prohibits "[r]epresenting that goods or services are of a particular standard, 24 quality, or grade, or that goods are of a particular style or model, if they are of another." In addition, 25 26 Cal. Civ. Code § 1770(a)(9) prohibits "[a]dvertising goods or services with intent not to sell them as 27 advertised." 28 30 C LAS S ACT I ON C OMP LAI NT - 2 0 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 24 of 29 PageID #:1 1 By engaging in the conduct alleged herein, Kraft violated, and continues to violate, 2 among other laws, sections 1770(a)(5), (7), and (9) of the CLRA. 3 Plaintiff relied on Kraft's false representations that its "100% GRATED PARMESAN 4 Cheese" products consisted of 100% Parmesan cheese. Plaintiff would not have purchased the product, 5 or would have paid significantly less for the product, but for Defendant's unlawful conduct. California 6 7 Class members were likely to also have relied upon Defendant's deceptive labeling and advertising. 8 Plaintiff and the California Class acted reasonably when they purchased Defendant's "100% 9 GRATED PARMESAN Cheese" products under the mistaken belief that the products they purchased 10 were 100% Parmesan cheese. 11 As a result of Defendant's false representations regarding its "100% GRATED 12 PARMESAN Cheese" products, Plaintiff and the members of the California Class were injured 13 because they: (a) would not have purchased the product if they had known that the product did not 14 15 have the characteristics or qualities as impliedly warranted by Defendant or they would have paid 16 substantially less for the product; (b) paid a premium price for the Product as a result of Defendant's 17 false warranties and misrepresentations; and (c) purchased a Product that did not have the 18 characteristics, qualities, or value promised by Defendant. 19 Under Cal. Civ. Code § 1780(a), Plaintiff and members of the California Class seek 20 injunctive and equitable relief for Defendant's violations of the CLRA. Contemporaneously with the 21 filing of this Complaint, Plaintiff will send a notice letter by certified mail to Kraft indicating his intent 22 23 to pursue claims under the CLRA that provides Kraft with an opportunity to cure the unlawful 24 practice, consistent with Cal. Civ. Code § 1782. If Defendant fails to take corrective action within 30 25 days of receipt of the demand letter, Plaintiff will amend the Complaint to include a request for 26 damages as permitted under Cal. Civ. Code § 1782(d). 27 28 30 C LAS S ACT I ON C OMP LAI NT - 2 1 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 25 of 29 PageID #:1 1 COUNT VII VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW 2 (CAL. BUS. & PROF. CODE §§ 17200, ET SEQ.) 3 (ON BEHALF OF THE CALIFORNIA CLASS) 4 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 5 Plaintiff and California Class members are "persons" within the meaning of Cal. Bus. 6 & Prof. Code § 17201. 7 The California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et 8 seq., defines unfair business competition to include any "unlawful, unfair or fraudulent" act or 9 10 practice, as well as any "unfair, deceptive, untrue or misleading" advertising. 11 A business act or practice is "unfair" under the UCL if the reasons, justifications and 12 motives of the alleged wrongdoer are outweighed by the gravity of the harm to the alleged victims. A 13 business act or practice is "fraudulent" under the UCL if it is likely to deceive members of the 14 consuming public. A business act or practice is "unlawful" under the UCL if it violates any other law 15 or regulation. 16 Defendant has violated the "unfair" prong of the UCL by mislabeling their "100% 17 18 GRATED PARMESAN Cheese" products in order to induce consumers into believing the products 19 consist of 100% Parmesan cheese and/or contain no fillers, when they do not. 20 The business acts and practices alleged herein are unfair because they caused Plaintiff 21 and California Class members to falsely believe that Defendant is offering a product that is superior to 22 what they actually received. This deception was likely to have induced reasonable consumers, 23 including Plaintiff, to buy Defendant's "100% GRATED PARMESAN Cheese" products, which they 24 otherwise would not have purchased, or would have paid substantially less for such products. 25 26 The gravity of the harm to Plaintiff and the California Class members resulting from 27 these unfair acts and practices outweighs any conceivable reasons, justifications and/or motives of 28 Defendant for engaging in such deceptive acts and practices. By committing the acts and practices 30 C LAS S ACT I ON C OMP LAI NT - 2 2 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 26 of 29 PageID #:1 1 alleged herein, Defendant engaged in, and continue to engage in, unfair business practices within the 2 meaning of Cal. Bus. & Prof. Code §§ 17200, et seq. 3 Defendant has also violated the "unlawful" prong of the UCL by violating several 4 California laws, as alleged herein, including the FAL and CLRA. 5 Defendant has also violated the "fraudulent" prong of the UCL by misleading Plaintiff 6 7 and the California Class to believe that Defendant's "100% GRATED PARMESAN Cheese" products 8 consist of 100% Parmesan cheese and/or contain "no fillers", when in actuality, they include a 9 substantial percentage of cellulose at levels beyond what is allowed by government directives. 10 As a result of their unlawful acts and practices, Defendant improperly obtained money 11 from Plaintiff and the California Class because: (a) they would not have purchased the product if they 12 had known that the product did not have the characteristics or qualities as impliedly warranted by 13 Defendant or they would have paid substantially less for the product; (b) paid a premium price for the 14 15 Product as a result of Defendant's false warranties and misrepresentations; and (c) purchased a 16 Product that did not have the characteristics, qualities, or value promised by Defendant.. As such, 17 Plaintiff requests that this Court cause Defendant to restore this money to Plaintiff and the California 18 Class, and to enjoin Defendant from continuing to violate the UCL as alleged herein. 19 COUNT VIII 20 VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT (15 U.S.C. §§ 2301, ET SEQ.) 21 (ON BEHALF OF THE NATIONAL CLASS) 22 Plaintiff incorporates all preceding and subsequent paragraphs as if fully set forth herein. 23 Defendant's "100% GRATED PARMESAN Cheese" products are "consumer 24 products" within the meaning of 15 U.S.C. § 2301(1). 25 26 Plaintiff and Class Members are "consumers" within the meaning of 15 U.S.C. § 27 2301(3). 28 30 C LAS S ACT I ON C OMP LAI NT - 2 3 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 27 of 29 PageID #:1 1 Defendant Kraft is a supplier and warrantor within the meaning of 15 U.S.C. § 2301(4), 2 (5). 3 In connection with the sale of its "100% GRATED PARMESAN Cheese" products, 4 Defendant gave multiple written warranties as defined in 15 U.S.C. § 2301(6), including but not 5 limited to written warranties that the products contained "100% Parmesan Cheese" and/or that the 6 7 products contained "no fillers." 8 Defendant breached these written warranties because its "100% GRATED 9 PARMESAN Cheese" products do not, in fact, consist of 100% Parmesan cheese and/or do not 10 contain "no fillers" – but instead, are substantially filled with cellulose. The products at issue here do 11 not live up to Defendant's express warranties. 12 In connection with the sale of its "100% GRATED PARMESAN Cheese" products, 13 Defendant also gave multiple implied warranties as defined in 15 U.S.C. § 2301(7), including but not 14 15 limited to the implied warranty of merchantability and the implied warranty of fitness for a particular 16 purpose. 17 Defendant breached these implied warranties, in that its "100% GRATED 18 PARMESAN Cheese" products are not fit for the ordinary purpose for which it is used, namely as a 19 "100% GRATED PARMESAN Cheese" product. 20 Plaintiff and the members of the class were injured as a direct and proximate result of 21 Defendant's breach of their warranties because Plaintiff and Class members: (a) would not have 22 23 purchased the product if they had known that the product did not have the characteristics or qualities 24 as impliedly warranted by Defendant, or they would have paid substantially less for the product; (b) 25 paid a premium price for the Product as a result of Defendant's false warranties and 26 misrepresentations; and (c) purchased a Product that did not have the characteristics, qualities, or value 27 promised by Defendant. 28 30 C LAS S ACT I ON C OMP LAI NT - 2 4 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 28 of 29 PageID #:1 1 VIII. PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff demand judgment as follows: 3 A. An order declaring that this action may be maintained as a class action pursuant to Fed. 4 R. Civ. Proc. 23, and for an order certifying this case as a class action and appointing Plaintiff as 5 representatives of the Classes; 6 7 B. A declaration that Defendant's actions, as described herein, violate the claims described 8 herein; 9 C. An award of injunctive and other equitable relief as is necessary to protect the interests 10 of Plaintiff and the Classes, including, inter alia, an order prohibiting Defendant from engaging in the 11 unlawful act described above; 12 D. An award to Plaintiff and the Classes of restitution and/or other equitable relief, 13 including, without limitation, disgorgement of all profits and unjust enrichment that Kraft obtained 14 15 from Plaintiff and the Classes as a result of its unlawful, unfair and fraudulent business practices 16 described herein; 17 E. For judgment for Plaintiff and the Classes on their claims in an amount to be proven at 18 trial, for compensatory damages caused by Defendant's practices; along with exemplary damages to 19 each Class member for each violation; 20 F. For pre-judgment and post-judgment interest as provided for by law or allowed in 21 22 equity; 23 G. For an order awarding Plaintiff and the Class their attorneys' fees and costs; and 24 H. Such other and further relief as may appear necessary and appropriate. 25 26 27 28 30 C LAS S ACT I ON C OMP LAI NT - 2 5 31 Case: 1:16-cv-06161 Document #: 1 Filed: 04/25/16 Page 29 of 29 PageID #:1 1 IX. DEMAND FOR JURY TRIAL 2 Pursuant to Fed. R. Civ. Proc. 38(b), Plaintiff demands a trial by jury on all issues so triable. 3 DATED this 25th day of April, 2016. 4 KELLER ROHRBACK L.L.P. 5 6 By /s/ Matthew J. Preusch 7 Matthew J. Preusch, SBN 298144 mpreusch@kellerrohrback.com 8 1129 State Street, Suite 8 9 Santa Barbara, California 93101 Tel.: (805) 456-1496 10 Fax: (206) 623-3384 11 Tana Lin, pro hac vice forthcoming tlin@kellerrohrback.com 12 Michael Meredith, pro hac vice forthcoming 13 mmeredith@kellerrohrback.com 1201 Third Ave, Suite 3200 14 Seattle, WA 98101 Tel: (206) 623-1900 15 Fax: (206) 623-3384 16 Counsel for Plaintiff 17 18 19 20 21 22 23 24 25 26 27 28 30 C LAS S ACT I ON C OMP LAI NT - 2 6 31