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Class-Action Lawsuit Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 1 of 56 PageID: 1 CLARKSON LAW FIRM, P.C. 1 Ryan J. Clarkson (SBN 257074) (pro hac vice application forthcoming) [email protected] 2 Matthew T. Theriault (SBN 244037) (pro hac vice application forthcoming) [email protected] 3 Bahar Sodaify (SBN 289730) (pro hac vice application forthcoming) [email protected] 4 Zach Chrzan (SBN 329159) (pro hac vice application forthcoming) [email protected] 5 9255 Sunset Blvd., Suite 804 Los Angeles, CA 90069 6 Tel: (213) 788-4050 Fax: (213) 788-4070 7 SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 8 James C. Shah, Esq. (SBN 260435) [email protected] 9 475 White Horse Pike Collingswood, NJ 08107 10 Tel: (856) 858-1770 Fax: (860) 300-7367 11 Attorneys for Plaintiffs 12 P.C. , IRM 13 F IN THE UNITED STATES DISTRICT COURT AW L 14 FOR THE DISTRICT OF NEW JERSEY 15 LARKSON Los Angeles, CA 90069 C 16 REGAN IGLESIA, LARRY FERTEL, ) Case No. 9255 Sunset Blvd., Suite 804 NOSSON CHAIM ROSENBERG, ) SORAYA YD, SUZANNE TATKOW, ) CLASS ACTION 17 JAIME MAXWELL, LAUREN ) DEBELISO, MEREDITH BARTER, ) COMPLAINT: 18 and PATRICK FERGUSON, ) individually and on behalf of all others ) 1. VIOLATION OF NEW JERSEY 19 similarly situated, ) CONSUMER FRAUD ACT ) (N.J.S.A § 56:8-1, et. seq.) 20 Plaintiffs, ) 2. BREACH OF EXPRESS ) WARRANTY (N.J.S.A. § 12A:2- 21 vs. ) 313. et seq.) ) 3. VIOLATION OF NEW YORK 22 NESTLE USA, INC., a Virginia ) DECEPTIVE ACTS AND Corporation; and FERRARA CANDY ) PRACTICES ACT (G.B.L. § 349, et 23 COMPANY, an Illinois Corporation, ) seq.) ) 4. FALSE AND MISLEADING 24 Defendants. ) ADVERTISING IN VIOLATION OF ) NEW YORK DECEPTIVE ACTS 25 ) AND PRACTICES ACT (G.B.L. § ) 350, et seq.) 26 ) 5. VIOLATION OF FLORIDA ) DECEPTIVE AND UNFAIR 27 ) TRADE PRACTICES ACT, ) FLORIDA STATUTES §§ 501.201, 28 ) et seq. ) 1 Error! Unknown document property name. 1 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 2 of 56 PageID: 2 ) 6. VIOLATION OF MICHIGAN 1 ) CONSUMER PROTECTION ACT, ) COMPILED LAWS § § 445.901, et 2 ) seq. ) 7. VIOLATION OF ILLINOIS 3 ) CONSUMER FRAUD AND ) DECEPTIVE BUSINESS 4 ) PRACTICES ACT, COMPLIED ) STATUTES CHAPTER 815 §§ 5 ) 505/1, et seq. ) 8. VIOLATION OF NORTH 6 ) CAROLINA UNFAIR AND ) DECEPTIVE TRADE PRACTICES 7 ) ACT, GENERAL STATUTES § 75- ) 1.1, et seq. 8 ) 9. VIOLATION OF TEXAS ) DECEPTIVE TRADE PRACTICES- 9 ) CONSUMER PROTECTION ACT, ) BUSINESS AND COMMERCIAL 10 ) CODE §§ 17.41, et seq. ) 10. UNJUST ENRICHMENT 11 ) 11. COMMON LAW FRAUD ) 12. BREACH OF IMPLIED 12 ) WARRANTY OF P.C. , ) MERCHANTABILITY IRM 13 ) 13. INTENTIONAL F ) MISREPRESENTATION AW L 14 ) 14. NEGLIGENT ) MISREPRESENTATION 15 ) LARKSON ) Los Angeles, CA 90069 DEMAND FOR JURY TRIAL C 16 9255 Sunset Blvd., Suite 804 ) 17 18 Plaintiffs Regan Iglesia, Larry Fertel, Nosson Chaim Rosenberg, Soraya Yd, 19 Suzanne Tatkow, Jaime Maxwell, Lauren Debeliso, Maeredith Barter, and Patrick 20 Ferguson, (collectively, “Plaintiffs”), individually and on behalf of all others 21 similarly situated, bring this Complaint against Nestle USA, Inc. (“Nestle”) and 22 Ferrara Candy Company (“Ferrara”) (collectively, “Defendants”) in connection with 23 the false, deceptive, unfair, unlawful, and fraudulent advertising and labeling of 24 opaque theater box candy products Raisinets®, Butterfinger Bites®, Gobstopper®, 25 Tollhouse®, Nerds®, Buncha Crunch®, Runts®, Sno Caps®, Spree®, and 26 Sweetarts® (the “Products”). Plaintiffs allege upon their personal knowledge, acts, 27 and experiences, and as to all other matters, upon information and belief, including 28 investigation conducted by their attorneys and their retained experts: 2 Error! Unknown document property name. 2 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 3 of 56 PageID: 3 1 INTRODUCTION 2 1. Defendants manufacture the most popular theater box candy products in 3 the world. To increase profits at the expense of consumers and fair competition, 4 Nestle pioneered a scheme to deceptively sell candy in oversized, opaque boxes that 5 do not reasonably inform consumers that they are half empty. Defendants’ “slack- 6 fill” scam dupes unsuspecting consumers across America to pay for empty space at 7 Figure 1. 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 21 22 23 24 25 26 premium prices. Defendants failed to comply with consumer protection and 27 packaging statutes designed to prevent this scam, and rely on their name and 28 goodwill to further this scam even in the face of other lawsuits against them in other 3 Error! Unknown document property name. 3 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 4 of 56 PageID: 4 1 states, including a certified class action in California for the same violations. While 2 other similar lawsuits against Defendants’ competitors have all but curbed this 3 unfair business practice, Defendants remain the last hold-out, ignoring this industry 4 trend towards transparency in the hopes of obtaining an unfair competitive 5 advantage in the marketplace. This class action aims to remedy Defendants’ unfair 6 business practice by forcing them to follow the industry trend toward greater 7 transparency and eliminating consumer deception. Figure 1 (above) and Figures 8 2-10 (below) are true and correct representations of Defendants’ Products 9 illustrating their uniformly deceptive, unfair, and unlawful business practice. 10 Figure 2. 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 21 22 23 24 25 26 27 28 4 Error! Unknown document property name. 4 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 5 of 56 PageID: 5 1 Figure 3. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 5 Error! Unknown document property name. 5 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 6 of 56 PageID: 6 1 Figure 4. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 21 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 Error! Unknown document property name. 6 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 7 of 56 PageID: 7 1 Figure 5. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 7 Error! Unknown document property name. 7 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 8 of 56 PageID: 8 1 Figure 6. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 8 Error! Unknown document property name. 8 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 9 of 56 PageID: 9 1 Figure 7. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 9 Error! Unknown document property name. 9 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 10 of 56 PageID: 10 1 Figure 8. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 21 22 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 10 Error! Unknown document property name. 10 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 11 of 56 PageID: 11 1 Figure 9. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 11 Error! Unknown document property name. 11 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 12 of 56 PageID: 12 1 Figure 10. 2 3 4 5 6 7 8 9 10 11 12 P.C. , IRM 13 F AW L 14 15 LARKSON Los Angeles, CA 90069 C 16 9255 Sunset Blvd., Suite 804 17 18 19 20 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 12 Error! Unknown document property name. 12 COMPLAINT Case 3:20-cv-05971 Document 1 Filed 05/15/20 Page 13 of 56 PageID: 13 1 2. Defendants market the Products in a systematically misleading manner 2 by representing them as adequately filled when, in fact, they contain an unlawful 3 amount of empty space or “slack-fill.” Defendants underfill the Products for no 4 lawful reason. The only purpose of this practice is to save money (by not filling the 5 boxes) in order to deceive consumers into purchasing Defendants’ products over 6 their competitors’ products.
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