Kroger Ground Coffee Number of Cups Illinois Class Action

The Kroger Company sells different types of Kroger-brand ground coffee in cannisters. Each of the cannisters shows a tag on its front label claiming that the contents of the cannister will make a certain number of servings. The complaint for this class action alleges that the number is false and significantly overstates the number of cups that can be made from the coffee in the cannister.

The class for this action is all persons in Illinois who bought one or more of the products at issue in this case in Illinois between the beginning of the statute of limitations period and the certification of the class in this case.

The products at issue include the following:

  • Breakfast Blend Mild Roast
  • 100% Columbian Medium Dark Roast
  • Decaf Classic Medium Roast
  • French Roast
  • Premium Blend Medium Roast
  • Reduced Caffeine Lite Medium Roast
  • Select Blend Medium Roast
  • Special Roast Medium Roast
  • Supreme Blend Medium Roast

Page 5 of the complaint shows a 30.5-ounce cannister of Select Blend Kroger ground coffee. On the lower righthand side of the label is a small tag with the words “Makes About 235 Cups.”

On the following two pages are images of other cannisters of Kroger ground coffee with their respective tags claiming that different approximate numbers of cups can be made from the different cannisters’ contents. The numbers range from 90 cups to 235 cups. The complaint says flatly, “Those representations are false.”

The complaint reproduces the instructions for making the coffee on the back of one of the cannisters. Two methods are outlined. “To make one cup, the directions state the consumer is to use one rounded tablespoon of coffee for each 6 fluid ounces of cold water, and to make 10 cups, the consumer is to use a half cup of coffee…”

The complaint contends, “Those instructions, however, will not produce the number of cups of coffee that Kroger represents can be made on the front of the cannisters.”

How does the complaint figure this? A tablespoon is 5 grams of coffee; a rounded tablespoon would contain slightly more than that. By that measure, the complaint says, the 30.5-ounce or 864-gram containers “will produce no more than, and probably less than, 172.8 (or approximately 173) cups of coffee, not 235 cups.”

The complaint displays two tables of the various cannisters’ capacities. One is for making coffee by the cup. This table shows the promised yield of each, the actual yield, and the difference between the two numbers. The actual cannister yields appear to be smaller than the promised yields by anywhere from 25 cups to 62 cups.

The other is for making ten cups at a time. This table also shows the promised yield of each, the actual yield, and the difference between the two numbers. The actual cannister yields appear to be smaller than the promised yields by anywhere from 8.5 cups to 19.5 cups.

The complaint claims that the representations about the numbers of cups “deceptive.”

Sunflower Bank Multiple NSF, OD Fees on One Item Class Action

Overdraft and non-sufficient funds fees fall most heavily on those who can least afford them, says the complaint for this class action. The complaint alleges that Sunflower Bank, NA routinely charges customers two or more non-sufficient funds (NSF) fees or overdraft (OD) fees on a single transaction. It claims that this practice violates the terms of Sunflower’s account agreements.

The class for this action is all persons who, during the applicable statute of limitations period before November 1, 2020, were charged multiple fees on a single item or transaction in their Sunflower Bank checking account.

One of the plaintiffs in this case, Samantha Besser, tried to make a payment via an ACH transaction to Hanover Citizens in September 2016. Because her account did not have enough money in it to cover the transaction, Sunflower rejected it and charged her an NSF fee of $34.97.

Several days later, without Besser’s knowledge and without any request from her, Sunflower again tried to process the transaction. Because Besser’s account still did not have enough money in it, Sunflower charged her another $34.97 fee. On Besser’s statement, this was entered as a “RETRY PYMT.”

The other plaintiff, Alan Schoenberger, tried to make a payment to Geico in September 2020. Again, Sunflower rejected the payment transaction, charged Schoenberger an NSF fee, then later charged him a second NSF fee on the same transaction. The second attempt was also marked as a “RETRY PYMT” on his statement.

Sunflower has two documents that set forth terms for its accountholders. These are Understanding Overdraft Privilege and Deposit Account Terms and Conditions. The complaint quotes the Overdraft Agreement as saying, “If an overdraft occurs, your account will be charged an Overdraft fee of *$36.00 for every item, even if multiple items are presented on the same day. This is the same fee that we charge for insufficient items returned to the payee[.]”

The complaint contends, “The same transaction or ‘item’ on an account is not a new ‘item’ each time it is rejected for payment then reprocessed, especially when—as here—Plaintiffs took no action to resubmit the item.”

It then reinforces the statement: “Even if Sunflower reprocesses an instruction for payment, it is still the same item. The Bank’s reprocessing is simply another attempt to effectuate an accountholder’s original order or instruction.”

According to the complaint, Sunflower changed its deposit agreement in November 2020 to permit it to charge multiple fees if a single item is presented multiple times.

Full Spectrum St. John’s Wort Extract Misbranding Class Action

What’s the difference between a supplement and a drug? The Food and Drug Administration (FDA) considers substances that are “intended for use in the cure, mitigation, treatment, or prevention of disease” to be drugs, which the FDA must review and approve before they can be introduced into interstate commerce. The complaint for this class action alleges that ProHealth, Inc.’s Full Spectrum St. John’s Wort Extract is being offered as a drug, and that ProHealth has already been sent a warning letter by the FDA.

The class for this action is all persons who bought the product between June 11, 2017 and the date of the class notice in this case. A California subclass has also been proposed for those who bought the product in California.

ProHealth advertises the product on its website with two claims, the complaint alleges: “Effective for mild to moderate depression” and “Reduces anxiety.” The product also has labeling that purport to give directions for its use.

However, on February 18, 2021, the FDA sent a warning letter to ProHealth, explaining that the product was misbranded under the federal Food, Drug, and Cosmetic Act (FDCA).

The complaint quotes the letter as saying, in part, “The claims on your website establish that your product is a drug under … the Federal Food, Drug, and Cosmetic Act … because it is intended for use in the cure, mitigation, treatment, or prevention of disease. As explained further below, introducing or delivering this product for introduction into interstate commerce violates the Act.”

The letter then quotes the depression and anxiety claims for the product and says, “Your Full Spectrum St. John’s Wort Extract product is not generally recognized as safe and effective for the above referenced uses and, therefore, this product is a ‘new drug’…”

It also has another complaint: “A drug is misbranded … if the drug fails to bear adequate directions for its intended use(s).”

What’s the problem with the directions for use? The product “is intended for treatement of one or more diseases that are not amenable to self-diagnosis or treatment without the supervision of a licensed practitioner. Therefore, it is impossible to write adequate directions for a layperson to use your product safely for its intended purposes. Accordingly, your Full Spectrum St. John’s Wort Extract product fails to bear adequate directions for its intended use and, therefore, the product is misbranded…”

The complaint therefore alleges that the St. John’s Wort Extract is “a worthless, misbranded drug” because “the Product is a misbranded drug that is unlawful to sell…” The company’s advertising and labeling, the complaint claims, is therefore deceptive.

Red Lobster “Sustainable” Maine Lobsters and Shrimp California Class Action

What should the word “sustainable” mean when it’s used in marketing to consumers? This class action brings suit against a number of Red Lobster entities, alleging that Red Lobster restaurants claim the seafood in their menu items is “sustainable,” when in actuality the Maine lobster and shrimp are from sources that “use environmentally destructive practices,” among other things.

The class for this action is all consumers who bought Red Lobster’s Maine lobster products or shrimp products in California, from the beginning of the applicable statute of limitations through the date of class certification in this case.

For a list of the menu items that use the shrimp and Maine lobster at issue in this case, see page 6 of the complaint linked below.

Consumers these days are concerned about sustainability, the environment, animal welfare, and public health, and they prefer to buy from companies that address these concerns in their business practices. Red Lobster makes a number of representations on its menus that suggest that, too, shares these concerns.

For example, the covers of the menus bear the words, “Seafood with Standards” and “Traceable. Sustainable. Responsible.” These words appear a second time inside the menu with the promise, “These are more than just words on our menu—it’s our promise that all of the seafood we serve is sourced to the highest standards.”

According to the complaint, these representations lead customers to “expect that the Products are sourced sustainably in accordance with the highest environmental and animal welfare standards.” But the complaint alleges that this is not true.

As to the Maine lobsters, the complaint claims they “are sourced from suppliers that use environmentally destructive practices that threaten endangered populations of North American right whales.

As to the shrimp, the complaint claims they “are sourced from industrial shrimp farms that do not employ the highest environmental or animal welfare standards.”

How do we know this? It alleges, “Monterey Bay Aquarium Seafood Watch … recommends that consumers seeking sustainable seafood should not choose shrimp from the regions that Red Lobster sources from, because of environmentallhy destructive practices, poor reporting of environmental data and standards, and overuse of antibiotics.”

Also, the complaint alleges, “Red Lobster shrimp suppliers use inhumane practices including routine eyestalk ablation, a practice in which the eyestalk gland of female shrimps is crushed, burned, or cut off—without painkillers—in order to increase reproduction.”

According to the complaint the Federal Trade Commission (FTC) has warned companies “not to use unqualified claims such as ‘sustainable’ due to its determination that ‘it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims.’”

The complaint alleges that Red Lobster’s representations are false and deceptive and that they violate California’s consumer protection laws.

Ford F-350 Overstated Towing Capacity Class Action

Ford advertised certain of its 2020 F-350 pickup trucks as having “Best in Class” towing capacity. But the complaint for this class action alleges that the specification documents given to those who bought or leased the vehicles overstated their towing or hauling capacity. If those who own or lease the vehicles load them to the stated payloads, the complaint alleges, they will actually be overloaded, “making them unsafe to drive, and increasing the risk of an accident.”

The class for this action is all individuals in the US who, before March 2021, bought or leased a Ford F-Super Duty F-350 configured with the 6.7L diesel engine, single rear wheels, 4×4, crew cab, long box, and either the 12K or 12.4K gross vehicle weight rating (GVWR).

These trucks were “specifically marketed to consumers shopping for trucks capable of towing heavy loads[,]” the complaint claims.

They came with three sets of specifications:

  • Tire and Loading Information (TREAD) Label, listing the vehicles’ payload capacity
  • Safety Certification Label, stating the vehicles’ accessory reserve capacity (ARC) values
  • Truck Camper Loading Documentation, stating the vehicles’ weight values

Unfortunately, the complaint claims, each of these documents “overstated the actual specifications of the Vehicle… In fact, if the Class Vehicles are loaded to the payload stated on the TREAD label, the Class Vehicles will exceed the gross vehicle weight rating (GVWR) or Gross Axle Weight Rating (GAWR) thus overloading” them. According to the complaint, the overloading produces increased wear and tear on the vehicles and increases the risk of accidents.

In early September 2020, the complaint claims, Ford found, during a yearly vehicle audit, that the F-350s were mislabeled. Ford reviewed the problem for five months. It discovered that the weight capacities of the vehicles were overstated by from 78 to 900 pounds and that the components, such as tires, springs, and brakes, were inadequate to cope with the payload capacities in the documentation.

The company’s Field Review Committee approved an action on February 11, 2021; on February 18, 2021, it registered a safety recall report with the National Highway Traffic Safety Administration (NHTSA). Among other things, the recall report said that “[i]f the vehicle is loaded to the payload value stated on the TREAD label … [t]his may result in … suspension overload and increased stopping distance, which could increase the risk of a vehicle crash.”

However, Ford did not do anything to make the vehicle live up to its original promises, the complaint says: “The only remedy Ford made available under the Recall was to replace the Tire and Loading Information Label, Safety Certification Label, and Truck Camper Loading Documentation. In other words, Ford would supply purchasers/lessors of the Class Vehicles with a new sticker, and nothing more.”

Ford notified dealers of the recall on February 19. On February 24, 2021, it sent dealers a second notice. The complaint claims that “this second notification letter stated affirmatively that no refunds or repairs outside Ford’s standard warranties would be approved under the Recall.”

Chrysler Ram Trucks Inadequate Warm Up Protection New Jersey Class Action

This class action addresses a defect in certain Chrysler Ram trucks that could possibly end up with a hole punched in the engine. The complaint alleges that the vehicles have inadequate warm-up protection, which can eventually lead to engine failure. FCA US, LLC, the maker, has issued a recall to address the defect, but it has refused to pay for repairs.

The class for this action is persons who bought or leased a 2019 or 2020 Chrysler Ram 5500 vehicle, where the purchase, lease, or registration was in New Jersey.

Plaintiff Michel J. Ortiz bought a new 2019 Ram 5500 around December 2019, which included a limited warranty on the Cummins diesel engine components for five years and unlimited miles.

Less than a year later, the complaint alleges, “the vehicle’s engine seized and locked up on the freeway with no signs or indication that there was something wrong with the vehicle.” It was towed to a servicer, where a large hole was found in the engine block.

The vehicle was at the servicer for around three months, in an attempt to get the repairs covered under the warranty. Near the end of November, the service manager explained that the repairs would not be covered under the warranty because the vehicle’s electronic control unit (ECU) said the vehicle had had low oil pressure before the failure occurred.

However, less than two weeks before the engine failure occurred, on August 27, 2020, FCA had issued a recall for the vehicle.

Its Summary, as quoted in the complaint, described the problem: “inadequate warmup protection can cause a lack of oil film on the rod bearings while the engine is reaching operating temperature, resulting in engine damage and potential connecting rod failure, which may puncture the engine block. If the engine failure results in oil contacting a competent ignition source, a vehicle failure may occur.” The recall involved “flash[ing] the engine calibration software to include enhanced engine warm up protection.”

An online article on Cars.com noted that the start date for the recall was September 10, 2020—two days after Ortiz’s truck’s failure occurred.

Ortiz had the truck examined by an expert, who later said he had found a technical service bulletin on the problem: “It states that the engine computer must be reprogrammed for a low oil pressure problem when cold. Basically[,] the engine computer was originally programmed to lower oil pressure when cold to speed up the warm up time. The problem is they lowered the oil pressure to[o] much and this caused excessive wear to the engine bearings.”

The complaint alleges that FCA knew about the defect and did not warn Ortiz when he bought the truck. The complaint claims, “Acting in bad faith and with knowledge of the existence of the recall which it issued relative to the vehicle, the manufacturer … wrongfully refused to repair the vehicle under warranty.”

Hippo Insurance Unwanted Prerecorded Calls TCPA Class Action

Hippo Enterprises, Inc. goes under the name Hippo Insurance when it sells its insurance products in the US. Unfortunately, the complaint for this class action alleges that it tries to sell those products by placing prerecorded telemarketing calls to consumers without first obtaining their prior express written consent, in violation of the Telephone Consumer Protection Act (TCPA).

The complaint alleges, “The problems Congress identified when it enacted the TCPA have only grown exponentially in recent years.” At the time the law was passed, in 1991, telemarketers were calling more than 18 million Americans each day. Due to more powerful technology, by 2003, they were placing calls to 104 million Americans each day. The complaint also claims a 466% increase in the three-year period between September 2015 and December 2018.

Hippo is one such company, the complaint claims. It reproduces the Requirements section of a Hippo ad for a sales manager, underlining in red the requirement “Experience with cold calling or cold e[-]mailing.”

The plaintiff in this case, Nicholas Kalair, got an unsolicited call on his cell phone on July 27, 2020. Kalair did not pick up, but the call went on to leave a voice message.

The message is transcribed in the complaint as follows: Ruben calling from [H]ippo Insurance want to tell you my direct information if you’re shopping for coverage or needing this for a purchase. Make sure it’s the best price can go over everything.” A phone number followed, one that was different from the number listed as the source of the call.

According to the complaint, people who place a return call to the number listed as the source of the call get an automated system thanking them for calling Hippo and directing them to call an 877 number to reach a representative. The 877 number is the one listed as the sales phone number on the Hippo website.

People who call the number left in the voicemail get the same automated system as the one listed as the source of the call. However, according to the complaint, this is also the business phone of a Hippo Insurance employee named Ruben Deluna, who also has an e-mail address at MyHippo.com.

The complaint alleges the voicemail was prerecorded because it only began to play four seconds after the voice messaging system picked up. It also claims that Kalair did not give his consent for Hippo to place prerecorded calls to his cell phone.

The Prerecorded No Consent Class for this action is all persons in the US who, between June 4, 2017 and the trial in this case, (1) Hippo, or an agent acting on Hippo’s behalf, called on their cell phone numbers (2) using a prerecorded voice message, and (3) from whom Hippo claims it obtained consent to call those persons in the same manner as Hippo claims it obtained consent to call the plaintiff in this case.

Dr. Tobias Omega 3 Fish Oil Processing Class Action

Dr. Tobias Omega 3 Fish Oil Triple Strength is a dietary supplement made by Mimi’s Rock Corporation (MRC). The complaint for this class action alleges that the company engages in deceptive advertising of the fish oil, because it has undergone a chemical process that turns it into something that is no longer fish oil and does not provide the advantages of fish oil.

The National Class for this action is all persons in the US who bought MRC’s product in the US during the applicable statute of limitations period. The California Class is all persons in California who bought MRC’s product in California during the applicable statute of limitations period.

According to the complaint, “Numerous studies have shown that consuming fatty fish 2-3 times a week may reduce the risk of heart disease and stroke, as well as provide[] a myriad of additional health benefits.” However, most Americans don’t eat fatty fish that often, and they often take fish oil supplements, which the complaint claims became in 2012 “the most commonly used non-vitamin, non-mineral dietary supplement sold in the US…”

The Dr. Tobias product, the complaint says, “claims to be a Triple Strength Fish Oil containing [] 2,000 mg of Fish Oil including 800 mg of Eicosapentaenoic Acid (‘EPA’) and 600 mg of Docosahexaenoic Acid (‘DHA’)—the essential omega-3 fatty acids that naturally occur in fish.”

However, the complaint alleges that the product does not in fact provide those benefits. “Contrary to what is represented on the label, however, this Product is not fish oil, nor does it contain a single milligram of EPA or DHA.” This is because of the process it has undergone, the complaint says: “Through a chemical process known as trans-esterification, ethanol, an industrial solvent, is introduced into fish oil and combined with catalyst to break the natural triglyceride bonds and cleave the glycerol backbone from the fatty acid molecules.”

What does this do? “Fish oil is stripped of hundreds of its constituent sub ingredients, and the Omega-3s, which including DHA and EPA, are converted into ethyl esters of fatty acids. Critically, these newly formed ethyl esters of fatty acids are different than the [Omega-3s] which exist naturally in fish oil.” They are now, the complaint claims, “Omega-3 Fatty Acid Ethyl Esters.”

According to the complaint, the product should no longer be labeled as fish oil. It refers to the “trans-esterification process” as “a means of boosting profits.”

The causes of action include unlawful, unfair, or fraudulent business practices and false advertising, among other things.

Hefty Recycling Bags Not Recyclable California Class Action

What do consumers expect of a trash bag that’s marketed as a recycling bag? The complaint for this class action alleges that reasonable consumers will expect such bags to be recyclable. However, Hefty Recycling Bags (offered by Reynolds Consumer Products, Inc. and Reynolds Consumer Products, LLC) are not recyclable. The complaint claims that statements made in connection with the bags amount to “greenwashing,” false advertising, fraud, deceit, or misrepresentation, among other things.

The class for this action is all persons who, between May 7, 2017 and the present, bought Hefty brand Recycling Bags in California.

According to the complaint for this class action, almost 90% of plastics are not recycled: “Indeed, over 12 million tons of plastic enters the ocean each year.” Many images have been shown of great swathes of plastic waste accumulating in the water. This has raised increasing concerns for consumers who don’t want to add to the mess.

Hefty makes plastic trash bags markets and label as Recycling Bags. The labeling claims they are “Perfect For All Your Recycling Needs” and “Designed to Handle All Types of Recyclables.” The complaint quotes the website as saying that “these transparent bags make it easy to sort your recyclables and avoid the landfill.” According to the complaint, reasonable consumers would take this to mean that the bags are recyclable as well.

“In truth,” the complaint claims, “the Hefty bags contaminate the recyclable waste stream, decrease the recyclability of otherwise recyclable materials, and are not recyclable because they are made from low-density polyethylene plastic (‘LDPE’ or ‘No. 4 plastic’).”

According to the complaint, recycling LDPE in the US is not cost-effective. Although the US previously sent such products for recycling in China, that country enact import restrictions that limit imports of plastic waste. Because of this, LDPE products normally are burned, are put in landfills, or end up in the environment.

Furthermore, municipal recycling facilities (MRFs) classify LDPE products as recycling contaminants, the complaint claims, “because they can clog up recycling equipment and reduce the value of otherwise recyclable plastics.” In fact, the complaint quotes a news article as saying that “[w]hen bagged items come through the sort line, [MRFs] throw [the entire bag] in the trash.” The complaint claims that the bags “are not only non-recyclable but … unsuitable for disposing of recycling.”

The Federal Trade Commission publishes Green Guides, or Guides for Use of Environmental Marketing Claims. The complaint quotes the Green Guides as saying it is “deceptive to misrepresent, directly or by implication, that a product or package is recyclable. A product or package should not be marketed as recyclable unless it can be collected, separated, or otherwise recovered from the waste stream through an established recycling program for reuse or use in manufacturing or assembling another item.”

The complaint refers to the misleading “recycling” claims for the bags as “greenwashing.”

TGI Fridays Onion Rings Snacks No Pieces of Real Onion Class Action

At issue in this class action are TGI Fridays brand Onion Rings Snacks, a product of Inventure Foods, Inc. The complaint alleges that the products are falsely labeled, in that “consumers will get the false impression the Product contains onions as an ingredient in an appreciable, non de minimis amount.” According to the complaint, the onion snacks contain no complete pieces of onions, just fried corn meal and onion powder.

The class for this action is all residents of Illinois, Ohio, Texas, Virginia, Rhode Island, and Florida who bought the product during the statutes of limitations for the causes of action.

The product’s ingredient list appears on page 2 of the complaint. Does it contain any actual, whole pieces of onion? Apparently not: The first item is corn meal; the second is vegetables oils; and the third is onion powder.

According to the complaint, “Onion powder is made from dehydrated, ground onions and has a flavor ten times stronger than real onions.” But this is still not sufficient, the complaint contends: “Onion powder lacks the depth of real onion flavor because it is made with parts of an onion” and “is unable to provide the ‘oniony’ flavor appreciated by consumers.”

The product also cannot provide what it promises, the complaint says: “Onion powder and onion flavor are unable to match the flavor from real onions because they lack the delicate balance of flavonoids critical to onions.”

Furthermore, the complaint claims, onion powder does not give consumers “the health and nutrition benefits that are provided by real onions” which include vitamin C, vitamin B6, folate, and potassium.

Also imitating the taste of onions, the complaint claims, are natural and artificial flavors, which are also in the ingredient list; and even the caramel coloring is an attempt to make the product seem like it contains more onions. The front label does reveal that the product is “Natural and Artificially Flavored,” but in a small thin font.

Rather snarkily, the complaint alleges that Inventure “knows consumers will pay more for the Product because the front label only states ‘Onion Snacks’ instead of ‘artificial onion flavored fried corn snacks’ or ‘does not have any real onions and does not taste like real onions.’”

The complaint claims the Onion Rings Snacks are sold “for a price premium compared to other similar products, no less than $2.19 per bag, higher than it would otherwise be sold for, absent the misleading representations and omissions.”

The counts include violations of the Illinois Consumer Fraud and Decedptive Business Practices Act, breaches of warranties, negligent misrepresentation, fraud, and unjust enrichment.