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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ELLEN MOSER, individually, and on behalf of Case No. 1:20-cv-7074

all others similarly situated,
JURY TRIAL DEMANDED
Plaintiff,

v.

THE J. M. SMUCKER COMPANY, an Ohio

corporation; THE FOLGER COFFEE
COMPANY, an Ohio corporation; and DOES 1
through 50, inclusive,

Defendants.

COMPLAINT

Plaintiff Ellen Moser (“Plaintiff”), on behalf of herself and all others similarly situated,

bring this class action against Defendants The J. M. Smucker Company, The Folger Coffee

Company, and Does 1 through 50 (collectively, “Defendants”), based on Defendants’ false and

deceptive advertising and labeling of their Folgers ground coffee products. Plaintiff makes the

following allegations based on the investigation of their counsel and on information and belief,

except as to allegations pertaining to Plaintiff individually, which are based on her personal

knowledge.

INTRODUCTION

1. This case revolves around a straightforward and systematic course of false,

misleading, and unlawful conduct: Defendants have grossly exaggerated the number of cups of

coffee that the Folgers ground coffee products can make in order to induce consumer purchases

and to charge consumers more for these products.

2. Throughout the statute of limitations period, Defendants have sold the Folgers

ground coffee products to consumers based on the representation that they contain enough ground

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coffee to make up to a specific number of servings (e.g., “240 6 fl oz cups”). However, by following

Defendants’ own definitions and instructions, the Folgers ground coffee products do not contain

nearly enough ground coffee to make the number of servings represented.

3. Indeed, it is a classic and unlawful bait-and-switch scheme that causes unsuspecting

consumers to spend more money for less than the advertised amount of coffee they believe they

are purchasing.

4. Plaintiff and other consumers purchased the Folgers ground coffee products

because they reasonably believed – based on Defendants’ representations—that these products

contained enough coffee to make the specified number of servings. Had Plaintiff and other

consumers known the truth (i.e., that the Folgers ground coffee products do not contain enough

coffee to make the specified number of servings), they would have paid less for them, or would

not have purchased them at all. As a result, Plaintiff and other consumers have been deceived and

have suffered economic injury.

5. Plaintiff seeks relief in this action individually, and on behalf of all other similarly

situated individuals who purchased Defendants’ falsely and deceptively labeled Folgers ground

coffee products during the statute of limitations period, for violations of California’s Consumers

Legal Remedies Act, Cal. Civ. Code § 1750, et seq., California’s False Advertising Law, Cal.

Bus. & Prof. Code § 17500, et seq., California’s Unfair Competition Law, Cal. Bus. & Prof. Code

§ 17200, et seq., N.Y. Gen. Bus. Law §§ 349 & 350, and for breach of express and implied

warranty, intentional and negligent misrepresentation, unjust enrichment, and for violation of the

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq.

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JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction pursuant to the Class Action Fairness Act

of 2005, 28 U.S.C. § 1332(d)(2), because this is a class action filed under Rule 23 of the Federal

Rules of Civil Procedure, there are thousands of proposed Class members, the aggregate amount

in controversy exceeds $5,000,000 exclusive of interest and costs, and Defendants are citizens of

a state different from at least some members of the proposed Class, including Plaintiff.

7. This Court has personal jurisdiction over Defendants because Defendants have

sufficient minimum contacts in Illinois, or otherwise intentionally avail themselves of the markets

within Illinois, through their sale of the Products in Illinois and to Illinois consumers.

8. Venue is proper in this judicial District pursuant to 28 U.S.C. § 1391(b)(2) because

a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this

District. Plaintiff resides in this District and she purchased the Product in this District.

THE PARTIES

9. Plaintiff Ellen Moser is a citizen of the United States and the State of Illinois and

she currently resides in Lake County, Illinois. In February 2020, Plaintiff purchased the Folgers

Classic Roast, 30.5 oz product from Walmart in Antioch, Illinois, for her own personal benefit.

Plaintiff paid approximately $6.96 for the Product. In purchasing the Product, Plaintiff saw and

relied on Defendants’ representations made on the packaging. Specifically, Plaintiff reasonably

believed that the Folgers Classic Roast product contained enough ground coffee to make 240 cups

or servings because she saw the representation “MAKES UP TO 240 6 FL OZ CUPS” prominently

printed on the front of the canister. Plaintiff’s reasonable belief that the Product she purchased

could make the represented number of servings was an important factor in her decision to purchase

the products. Plaintiff would have paid significantly less for the Product had she known that the

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Product did not contain enough ground coffee to make the represented number of cups of coffee.

Therefore, Plaintiff suffered injury in fact and lost money as a result of Defendants’ misleading,

false, unfair, and deceptive practices, as described herein.

10. Despite being misled by Defendants with respect to the Folgers ground coffee

products they purchased, Plaintiff lacks personal knowledge as to Defendants’ specific business

practices. Consequently, there is still doubt in her mind as to the possibility that some of the Folgers

ground coffee products could contain enough coffee to make the advertised number of servings.

For example, because there are several Folgers ground coffee products involved in Defendants’

deceit, and due to the likelihood that Defendants may yet develop and market additional coffee

products that misrepresent the serving yield, Plaintiff may again purchase a falsely-advertised

ground coffee product from Defendants under the mistaken impression that the represented number

of servings is accurate. Moreover, Class members will continue to purchase the Folgers ground

coffee products, reasonably but incorrectly believing that they contain enough coffee to make the

advertised number of servings.

11. Plaintiff is also susceptible to reoccurring harm in that she desires to continue to

purchase Folgers ground coffee products but cannot be certain Defendants have corrected their

deceptive and false advertising scheme. Indeed, Plaintiff regularly shops at stores where Folgers

ground coffee products are sold, and she would like to continue purchasing Folgers ground coffee

products because she likes the taste. However, she currently cannot trust that Defendants will label

and/or advertise the Folgers ground coffee products they purchased in the past truthfully and in

compliance with applicable law.

12. The J. M. Smucker Company is a corporation organized and existing under the laws

of the state of Ohio, with its headquarters and principal place of business at One Strawberry Lane,

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Orrville, OH 44667. The J. M. Smucker Company is one of the world’s biggest packaged goods

companies and it owns the Folgers brand.

13. The Folger Coffee Company is a corporation organized and existing under the laws

of the state of Ohio, with its headquarters and principal place of business at One Strawberry Lane,

Orrville, OH 44667. Folgers has a rich history dating back to 1850 and is arguably the most well-

known coffee maker in the United States. The coffee giant excels in offering a wide range of

products to customers, including varying flavors, roasts and strength of coffee. Beginning in

1850 in San Francisco, Folgers is now a household name recognized and sold around the world

Since the early 1990s, it has been the largest-selling ground coffee in the United States. In

the 1980s, Folgers’ slogan “The best part of waking up is Folgers in your cup!” and the well-

associated jingle became recognizable in households across the country, along with the Folgers

name. Folgers generates millions of dollars in sales each year, a significant portion of which is

derived from sales of the Products in California. In 2008, Folgers was acquired by The J. M.

Smucker Company from Procter & Gamble for a reported $3 billion.

14. The true names and capacities of Does 1 through 50, inclusive, are unknown to

Plaintiff at this time, and Plaintiff therefore sues such Doe defendants under fictitious names. Upon

information and belief, each Defendant designated as a Doe is in some manner highly responsible

for the occurrences alleged herein, and Plaintiff and Class members’ injuries and damages, as

alleged herein, were proximately caused by the conduct of such Doe defendants. Plaintiff will seek

leave of the Court to amend this Complaint to allege the true names and capacities of such Doe

defendants when ascertained.

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FACTUAL ALLEGATIONS

A. The Folgers Ground Coffee Products At Issue

15. The products at issue in this case consist of all varieties (e.g., different types of

roasts) and sizes (e.g., 20 oz., 30.5 oz., etc.) of Folgers ground coffee canisters.

16. These products (hereinafter collectively referred to as the “Products”) include but

are not limited to the following varieties of Folgers ground coffee canisters: Classic Roast; Classic

Roast Decaf; ½ Caff; CoffeeHouse Blend; Country Roast; Simply Smooth; Simply Smooth Decaf;

100% Colombian; Black Silk; Black Silk Decaf; Brazilian Blend; Breakfast Blend; French Roast;

Gourmet Supreme; House Blend; and Special Roast.

17. The Products are sold across the United States through third party retailers

including grocery chains and large retail outlets.

B. Defendants Grossly Overstate The Number Of Servings The Products Can Make

18. Defendants represent on the packaging of each of the Products that they contain

enough ground coffee to make up to a specified number of servings. For example, Defendants

prominently state on the front canister of the 30.5 oz. canister of Folgers Classic Roast Coffee:

“MAKES UP TO 240 6 FL OZ CUPS.”

19. Representative images of the front of the canisters of some of the Products are

depicted below:

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20. Defendants place a materially identical representation on the front label of all the

Products, although the number of represented servings of course varies based on the size of the

Product.

21. On the back of all the Products, Defendants instruct consumers that they should use

1 tablespoon of ground coffee to make 1 serving/cup of coffee. 1

22. One tablespoon of ground coffee weighs approximately 5 grams.

23. Based on these standard measurements, it is evident that Defendants grossly

overstate the number of servings the Products can make.

24. By way of example, Defendants represent on the 30.5 oz. canister of the Folgers

Classic Roast that it “MAKES UP TO 240 6 FL OZ CUPS.”

25. As set forth above, one tablespoon of ground coffee is needed to make 1 serving.

Therefore, 240 tablespoons of ground coffee are needed to make 240 servings.

26. As set forth above, one tablespoon of ground coffee = approximately 5 grams.

Therefore, 1200 grams of ground coffee is needed to make 240 servings [240 tablespoons x 5

grams].

27. However, the 30.5 oz. canister has a net weight of 865 grams. Therefore, it contains

only 72% of the amount of ground coffee required to make up to 240 cups of coffee [865 / 1200 x

100%]. This is equivalent to approximately 173 cups of coffee.

28. The same shortfall (i.e., only 173 cups of coffee) is calculated by dividing the total

grams of coffee in the 30.5 oz. cannister by the number of grams required to make a single serving

[865 grams / 5 grams].

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Hereinafter, the term “cup” is synonymous, and used interchangeably with, the term “serving.” Moreover,
the term “cup” or “serving” is equivalent to 6 fluid ounces, based on Defendants’ representations.

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29. In sum, the 30.5 oz. canister only contains enough coffee to make 173 cups, which

is equivalent to 72% of the amount of ground coffee that is required to make the 240 cups of coffee:

• 865 grams / 1200 grams = 72%

• 173 cups / 240 cups = 72%

30. Thus, it is impossible for the Product to contain enough ground coffee to make

anywhere close to 240 cups of coffee. Defendants’ representation that the 30.5 oz. canister

“MAKES UP TO 240 6 FL OZ CUPS” is therefore false, deceptive, and misleading.

31. The same calculations apply equally to all of the other Products. According to their

net weight, as well as the weight per tablespoon of ground coffee, they are unable to make

anywhere close to the represented number of cups. These calculations are set forth in the following

chart:

Product Name Net Number of “Up Approximate Approximate

Weight To” Servings Number of Percentage of
Promised Servings Received Servings Received
Classic Roast 11.3 oz. 90 64 71.1%
Classic Roast 22.6 oz. 180 128 71.1%
Classic Roast 30.5 oz. 240 173 72.0%
Classic Roast 38.4 oz. 305 216 70.8%
Classic Roast 48 oz. 380 272 71.6%
Classic Roast 51 oz. 400 288 72%
Classic Decaf 11.3 oz. 90 64 71.1%
Classic Decaf 22.6 oz. 180 128 71.1%
Classic Decaf 30.5 oz. 240 173 72.0%
Classic Decaf 33.9 oz. 270 192.2 71.2%
1/2 Caff 10.8 oz. 90 61.2 68%
1/2 Caff 25.4 oz. 210 144 68.6%
CoffeeHouse Blend 10.8 oz. 90 61.2 68%
CoffeeHouse Blend 25.4 oz. 210 144 68.6%
Country Roast 25.1 oz. 240 142.2 59.3%
Country Roast 31.1 oz. 240 176.4 73.5%

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Product Name Net Number of “Up Approximate Approximate

Weight To” Servings Number of Percentage of
Promised Servings Received Servings Received
Simply Smooth 11.5 oz. 90 65.2 72.4%
Simply Smooth 23 oz. 180 130.4 72.4%
Simply Smooth 31.1 oz. 240 176.4 73.5%
Simply Smooth 34.5 oz. 270 195.6 72.4%
Simply Smooth Decaf 11.5 oz. 90 65.2 72.4%
Simply Smooth Decaf 23 oz. 180 130.4 72.4%
100% Colombian 10.3 oz. 90 58.4 64.9%
100% Colombian 24.2 oz. 210 137.2 65.3%
Black Silk 10.3 oz. 90 58.4 64.9%
Black Silk 24.2 oz. 210 137.2 65.3%
Black Silk Decaf 10.3 oz. 90 58.4 64.9%
Black Silk Decaf 20.6 oz. 180 116.8 64.9%
Brazilian Blend 10.3 oz. 90 58.4 64.9%
Brazilian Blend 24.2 oz. 210 137.2 65.3%
Breakfast Blend 10.8 oz. 90 61.2 68%
Breakfast Blend 25.4 oz. 210 144 68.6%
French Roast 10.3 oz. 90 58.4 64.9%
French Roast 24.2 oz. 210 137.2 65.3%
Gourmet Supreme 10.3 oz. 90 58.4 64.9%
Gourmet Supreme 24.2 oz. 210 137.2 65.3%
House Blend 10.3 oz. 90 58.4 64.9%
House Blend 24.2 oz. 210 137.2 65.3%
Special Roast 10.3 oz. 90 58.4 64.9%
Special Roast 24.2 oz. 210 137.2 65.3%

32. There are 40 varieties of the Products listed in the chart above. Each and every one

of them contains substantially less ground coffee than is required to make the recommended

number of “up to” servings promised on the packaging. On average, these Products contain enough

ground coffee to make only 68.33% of the number of servings promised on the packaging, thus

revealing a systematic course of unlawful conduct by Defendants to deceive and shortchange

consumers.

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C. The False And Deceptive Serving Amount Representation Harms Consumers

33. Plaintiff and other consumers purchased the Products relying on Defendants’

serving amount representations on the Products’ packaging.

34. Plaintiff and other consumers reasonably expect that, if serving instructions are

followed, the Products will produce the number of servings/cups of coffee as represented on the

Products’ packaging.

35. Plaintiff’s and consumers’ reasonable belief that the Products are able to make up

to the represented number of cups of coffee was a significant factor in each of their decisions to

purchase the Products.

36. Plaintiff and Class members did not know, and had no reason to know, that the

Products’ labeling vastly overstates the number of cups of coffee they are able to make. At the

time of purchase, a reasonable consumer cannot measure or calculate how many servings the

Products can make. Nor are reasonable consumers expected to keep track of the precise number of

cups of coffee they make over a period of time.

37. As the entity responsible for the development, manufacturing, packaging,

advertising, distribution and sale of the Products, Defendants knew or should have known that each

of the Products falsely and deceptively overstates the number of servings of coffee that can be

made.

38. Defendants also knew or should have known that Plaintiff and other consumers, in

purchasing the Products, would rely on Defendants’ serving size representations. Nonetheless,

Defendants deceptively advertise the Products in order to deceive consumers into believing they

are getting considerably more coffee than they are paying for.

39. Consumers are willing to pay more for the Products based on the belief that the

Products contain enough ground coffee to make up to the represented number of servings. Plaintiff

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and other consumers would have paid significantly less for the Products, or would not have

purchased them at all, had they known that they were getting fewer servings of coffee than what

they were promised.

40. By analogy, if a consumer purchased a six-pack of soda, but only received four cans

of soda, the consumer would only be receiving 66.67% of what she paid for. The situation here is

no different in terms of the harm to the consumer. The only difference is that, due to the nature of

the Products, Defendants are able to conceal the gross shortfall of coffee because reasonable

consumers do not keep track of the number of cups of coffee they make over a period of time.

41. Therefore, Plaintiff and other consumers purchasing the Products have suffered

injury in fact and lost money as a result of Defendants’ false and deceptive practices, as described

herein.

CLASS ACTION ALLEGATIONS

42. Plaintiff brings this class action pursuant to Fed. R. Civ. P 23 and all other

applicable laws and rules, individually, and on behalf of all members of the following Class of

Illinois consumers:

All persons who purchased any of the Products in the state of Illinois within the applicable

statute of limitations period.

43. Excluded from the Class are the following individuals and/or entities: Defendants

and their parents, subsidiaries, affiliates, officers and directors, current or former employees, and

any entity in which Defendants have a controlling interest; all individuals who make a timely

election to be excluded from this proceeding using the correct protocol for opting out; and all

judges assigned to hear any aspect of this litigation, as well as their immediate family members.

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44. Plaintiff reserves the right to modify or amend the definition of the proposed Class

and/or add subclass(es) before the Court determines whether certification is appropriate.

45. Numerosity: The proposed Class is so numerous that joinder of all members would

be impractical. The Products are sold throughout the States of California and New York, and the

United States, by third-party retailers. The number of individuals who purchased the Products

during the relevant time period is at least in the thousands. Accordingly, Class members are so

numerous that their individual joinder herein is impractical. While the precise number of Class

members and their identities are unknown to Plaintiff at this time, these Class members are

identifiable and ascertainable.

46. Common Questions Predominate: There are questions of law and fact common to

the proposed Class that will drive the resolution of this action and will predominate over questions

affecting only individual Class members. These questions include, but are not limited to, the

following:

a. Whether Defendants misrepresented material facts and/or failed to disclose

material facts in connection with the packaging, marketing, distribution, and sale of the

Products;

b. Whether Defendants’ use of false or deceptive packaging and advertising

constituted false or deceptive advertising;

c. Whether Defendants engaged in unfair, unlawful and/or fraudulent business

practices;

d. Whether Defendants’ unlawful conduct, as alleged herein, was intentional

and knowing;

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e. Whether Plaintiff and the Class are entitled to damages and/or restitution,

and in what amount;

f. Whether Defendants are likely to continue using false, misleading or

unlawful conduct such that an injunction is necessary; and

g. Whether Plaintiff and the Class are entitled to an award of reasonable

attorneys’ fees, interest, and costs of suit.

47. Defendants have engaged in a common course of conduct giving rise to violations

of the legal rights sought to be enforced uniformly by Plaintiff and Class members. Similar or

identical statutory and common law violations, business practices, and injuries are involved. The

injuries sustained by members of the proposed Class flow, in each instance, from a common

nucleus of operative fact, namely, Defendants’ deceptive packaging and advertising of the

Products. Each instance of harm suffered by Plaintiff and Class members has directly resulted from

a single course of illegal conduct. Each Class member has been exposed to the same deceptive

practice, as each of the Products: (a) bear the materially same serving amount representations, and

(b) do not contain enough ground coffee to make anywhere close to the represented serving

amount. Therefore, individual questions, if any, pale in comparison to the numerous common

questions presented in this action.

48. Superiority: Because of the relatively small amount of damages at issue for each

individual Class member, no Class member could afford to seek legal redress on an individual

basis. Furthermore, individualized litigation increases the delay and expense to all parties and

multiplies the burden on the judicial system presented by the complex legal and factual issues of

this case. Individualized litigation also presents a potential for inconsistent or contradictory

judgments. A class action is superior to any alternative means of prosecution.

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49. Typicality: The representative Plaintiff’s claims are typical of those of the proposed

Class, as all members of the proposed Class are similarly affected by Defendant’s uniform

unlawful conduct as alleged herein.

50. Adequacy: Plaintiff will fairly and adequately protect the interests of the proposed

Class as their interests do not conflict with the interests of the members of the proposed Class they

seek to represent, and they have retained counsel competent and experienced in class action

litigation. The interests of the members of the Class will be fairly and adequately protected by the

Plaintiff and counsel.

51. Defendants have also acted, or failed to act, on grounds generally applicable to

Plaintiff and the proposed Class, supporting the imposition of uniform relief to ensure compatible

standards of conduct toward the members of the Class.

FIRST CLAIM FOR RELIEF

Violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act
(815 ILCS § 505/1, et seq.)

52. Plaintiff repeats the allegations contained in paragraphs 1-51 above as if fully set

forth herein.

53. The Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815

ILCS §§ 505/1, et seq., provides protection to consumers by mandating fair competition in

commercial markets for goods and services.

54. The ICFA prohibits any deceptive, unlawful, unfair, or fraudulent business acts or

practices including using deception, fraud, false pretenses, false promises, false advertising,

misrepresentation, or the concealment, suppression, or omission of any material fact, or the use or

employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices

Act”. 815 ILCS § 505/2.

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55. The ICFA applies to Defendant’s acts as described herein because it applies to

transactions involving the sale of goods or services to consumers.

56. Defendants are a “person” as defined by section 505/1(c) of the ICFA. The Plaintiff

and each member of the Class are “consumers” as defined by section 505/1(e) of the ICFA. The

Products are “merchandise” under the meaning of section 505/1(b) and its sale is within the

meaning of “trade” or “commerce” under the ICFA.

57. Defendants have represented and continue to represent to the public, including

Plaintiff and members of both Class, through its deceptive packaging, that the Products contain

enough ground coffee to make substantially more servings than they can actually make. Because

Defendants have disseminated misleading information regarding the Products, and Defendants

know, knew, or should have known through the exercise of reasonable care that the representations

were and continue to be misleading, Defendants have violated the IFCA.

58. At all relevant times, Defendants have known or reasonably should have known

that the Products did not contain enough ground coffee to make the represented number of servings,

and that Plaintiff and other members of the Class would reasonably and justifiably rely on the

packaging in purchasing the Products. Plaintiff is therefore informed and believes and thereon

alleges that Defendants’ false and misleading statements set forth above were made knowingly and

intentionally, with the intent to mislead Plaintiff and the Class.

59. Plaintiff and members of the Class have justifiably relied on Defendants’

misleading representations when purchasing the Products. Moreover, based on the materiality of

Defendants’ misleading and deceptive conduct, reliance may be presumed or inferred for Plaintiff

and members of the Class.

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60. Defendant’s misrepresentations and omissions regarding the amount of ground

coffee contained in the Products were acts likely to mislead the Plaintiff and the members of the

Class acting reasonably under the circumstances, and thus constitute unfair and deceptive trade

practices in violation of ICFA.

61. Plaintiff and members of the Class have suffered and continue to suffer injuries

caused by Defendants because they would have paid significantly less for the Products, or would

not have purchased them at all, had they known that the Products contain substantially less ground

coffee to make the promised number of servings. As a result, Defendants have and continue to

unlawfully obtain money from Plaintiff and members of the Class.

62. Plaintiff, on behalf of herself and the Class, seeks an order (1) requiring Defendants

to cease the deceptive and unfair practices described herein; (2) requiring Defendants to correct

their marketing and advertising messages on Folgers ground coffee canister products to adequately

disclose the material facts regarding the actual number of servings a Product will yield according

to the Product’s brewing instructions (otherwise, Plaintiff and Class members may be irreparably

harmed and/or denied an effective and complete remedy if such an order is not granted);(3)

awarding damages, interest, and reasonable attorneys’ fees, expenses, and costs to the extent

allowable; and/or (4) requiring Defendant to restore to Plaintiff and each Class member this

unlawfully obtained money from them, to disgorge the profits Defendants made on these

transactions, and to enjoin Defendants from violating the ICFA or violating it in the same fashion

in the future as discussed herein.

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SECOND CLAIM FOR RELIEF

Violation of the Illinois Uniform Deceptive Trade Practices Act

(815 ILCS 510/1, et seq.)
63. Plaintiff repeats the allegations contained in paragraphs 1-51 above as if fully set

forth herein.

64. At all times relevant hereto, there was in full force and effect the Illinois Uniform

Deceptive Practices Act, 815 ILCS 510/1, et seq. (“DTPA”).

65. Plaintiff brings this claim individually and on behalf of the members of the Class

against Defendant pursuant to the DTPA.

66. 815 ILCS 510/2(a)(5) prohibits “represent[ng] that goods or services have

sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not

have …” By marketing the Products with their current packaging, Defendants have represented and

continue to represent that the Products have characteristics (i.e., contain enough ground coffee to

make up to a specified number of servings) that they do not have. Therefore, Defendants have

violated section 510/2(a)(5) of the DTPA.

67. 815 ILCS 510/2(a)(7) prohibits “represent[ing] that goods or services are of a

particular standard, quality, or grade, or that goods are of a particular style or model, if they are of

another.” By marketing the Products with their current packaging, Defendants have represented and

continue to represent that the Products are of a particular standard (i.e., contain enough ground coffee

to make up to a certain number of servings) which they do not possess. Therefore, Defendants have

violated section 510/2(a)(7) of the DTPA.

68. 815 ILCS 510/2 (a)(9) prohibits “advertis[ing] goods or services with intent not to

sell them as advertised.” By marketing the Products as containing enough ground coffee to make a

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specified number of servings, but not intending to sell the Products as such, Defendants have violated

section 510/2(a)(9) of the DTPA.

69. 815 ILCS 510/2 (a)(12) prohibits “engag[ing] in any other conduct which similarly

creates a likelihood of confusion or misunderstanding.” By marketing the Products with their current

packaging as containing enough ground coffee to make a specified number of servings which they

do not contain, Defendants have engaged and continued to engage in conduct which is likely to

create confusion or misunderstanding among consumers. Therefore, Defendants have violated

section 510/2(a)(12) of the DTPA.

70. The above-described deceptive and unfair acts and practices were used or employed

in the course of trade or commerce—namely, the sale of Folgers ground coffee canisters to Plaintiff

and members of the Class.

71. At all relevant times, Defendants have known or reasonably should have known

that the Products did not contain enough ground coffee to make the represented number of servings,

and that Plaintiff and other members of the Class would reasonably and justifiably rely on the

packaging in purchasing the Products. Plaintiff is therefore informed and believes and thereon

alleges that Defendants’ false and misleading statements set forth above were made knowingly and

intentionally, with the intent to mislead Plaintiff and the Class.

72. Plaintiff and members of the Class have justifiably relied on Defendants’

misleading representations when purchasing the Products. Moreover, based on the materiality of

Defendants’ misleading and deceptive conduct, reliance may be presumed or inferred for Plaintiff

and members of the Class.

73. Defendant’s misrepresentations and omissions regarding the amount of ground

coffee contained in the Products were acts likely to mislead the Plaintiff and the members of the

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Class acting reasonably under the circumstances, and thus constitute unfair and deceptive trade

practices in violation of DTPA. Thus, the above-described deceptive and unfair acts offend public

policy.

74. Plaintiff and members of the Class have suffered and continue to suffer injuries

caused by Defendants because they would have paid significantly less for the Products, or would

not have purchased them at all, had they known that the Products contain substantially less ground

coffee to make the promised number of servings. As a result, Defendants have and continue to

unlawfully obtain money from Plaintiff and members of the Class.

75. Plaintiff, on behalf of herself and the Class, seeks an order (1) requiring Defendants

to cease the deceptive and unfair practices described herein; (2) requiring Defendants to correct

their marketing and advertising messages on Folgers ground coffee canister products to adequately

disclose the material facts regarding the actual number of servings a Product will yield according

to the Product’s brewing instructions (otherwise, Plaintiff and Class members may be irreparably

harmed and/or denied an effective and complete remedy if such an order is not granted);(3)

awarding damages, interest, and reasonable attorneys’ fees, expenses, and costs to the extent

allowable; and/or (4) requiring Defendant to restore to Plaintiff and each Class member this

unlawfully obtained money from them, to disgorge the profits Defendants made on these

transactions, and to enjoin Defendants from violating the DTPA or violating it in the same fashion

in the future as discussed herein.

THIRD CLAIM FOR RELIEF

Quasi Contract/Unjust Enrichment/Restitution

76. Plaintiff repeats the allegations contained in paragraphs 1-51 above as if fully set

forth herein.

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77. Plaintiff brings this claim individually and on behalf of the members of the

proposed Class against Defendants.

78. As alleged herein, Defendants have intentionally and recklessly made misleading

representations to Plaintiff and members of the Class to induce them to purchase the Products.

Plaintiff and members of the Class have reasonably relied on the misleading representations and

have not received all of the benefits promised by Defendants. Plaintiff and members of the Class

therefore have been induced by Defendants’ misleading and deceptive representations about the

Products, and paid more money to Defendants for the Products than they otherwise would and/or

should have paid.

79. Plaintiff and members of the Class have conferred a benefit upon Defendants as

Defendants have retained monies paid to them by Plaintiff and members of the Class.

80. The monies received were obtained under circumstances that were at the expense

of Plaintiff and members of the Class – i.e., Plaintiff and members of the Class did not receive the

full value of the benefit conferred upon Defendants.

81. Therefore, it is inequitable and unjust for Defendants to retain the profit, benefit, or

compensation conferred upon them without paying Plaintiff and the members of the Class back for

the difference of the full value of the benefits compared to the value actually received.

82. As a direct and proximate result of Defendants’ unjust enrichment, Plaintiff and

members of the Class are entitled to restitution, disgorgement, and/or the imposition of a

constructive trust upon all profits, benefits, and other compensation obtained by Defendants from

their deceptive, misleading, and unlawful conduct as alleged herein.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of the Class, respectfully pray for

following relief:

A. Certification of this case as a class action on behalf of the Class defined above,

appointment of Plaintiff as Class representative, and appointment of her counsel as Class counsel;

B. A declaration that Defendants’ actions, as described herein, violate the claims

described herein;

C. An award of injunctive and other equitable relief as is necessary to protect the

interests of Plaintiff and the Class, including, inter alia, an order prohibiting Defendants from

engaging in the unlawful act described above;

D. An award to Plaintiff and the proposed Class of restitution and/or other equitable

relief, including, without limitation, restitutionary disgorgement of all profits and unjust

enrichment that Defendants obtained from Plaintiff and the proposed Class as a result of its

unlawful, unfair and fraudulent business practices described herein;

E. An award of all economic, monetary, actual, consequential, compensatory, and

treble damages caused by Defendant’s conduct;

F. An award of punitive damages;

G. An award to Plaintiff and her counsel of their reasonable expenses and attorneys’

fees;

H. An award to Plaintiff and the proposed Class of pre- and post- judgment interest, to

the extent allowable; and

I. For such further relief that the Court may deem just and proper.

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DEMAND FOR JURY TRIAL

Plaintiff, on behalf of herself and the Class, hereby demand a jury trial with respect to all

issues triable of right by jury.

Dated: November 30, 2020 CARLSON LYNCH LLP

By: /s/ Katrina Carroll

Katrina Carroll
[email protected]
Kyle Shamberg
[email protected]
111 W. Washington St., Ste. 1240
Chicago, Illinois 60602
Tel.: (312) 750-1265
Fax: (412) 231-0246

CARLSON LYNCH LLP

Todd D. Carpenter (234464)
[email protected]
Scott G. Braden (305051)
[email protected]
1350 Columbia St., Ste. 603
San Diego, CA 92101
Tel.: (619) 762-1900
Fax: (619) 756-6991

Attorneys for Plaintiff

and the Putative Class

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