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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Stacey Karney, individually and on behalf of 

all others similarly situated,

Plaintiff,

- against - Class Action Complaint

Kashi Sales, L.L.C.,

Jury Trial Demanded

Defendant

Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff, 

which are based on personal knowledge:

1. Kashi Sales, L.L.C. (“Defendant”) manufactures, labels, markets, and sells Soft 

Baked Breakfast Bars (“cereal bars”) labeled as “Mixed Berry” under the Kashi brand (“Product”).

I. MIXED BERRY AND HONEY CLAIMS

2. The front label shows a bar with dark purple filling, a background of various shades 

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of purple, Defendant’s logo with a swaying stalk of wheat, the statements, “Mixed Berry,” “3g 

Fiber,*” “Made with Wildflower Honey,” and “10g Whole Grains,” and a seal indicating “NonGMO Project Verified.”

3. The back of the package identifies the components of the “mixed berries,” through 

images of two fresh blueberries, one plump blackberry and a ripe strawberry, along with a 

smattering of freshly harvested oats.

4. The purple background contains the statements “Simply Delicious” and 

“Delightfully Nutritious,” and declares:

Good Vibes in Every Bar

These bars were made for you with love. Love for delicious 

snacks that high five your taste buds. Love for simple 

ingredients, like berries and whole grains. And love for our 

farmers, our community, and our planet. Grab a bar and 

spread the good vibes! 

5. The representations are misleading because they give consumers the impression the 

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fruit filling contains a greater relative and absolute amount of mixed berries and honey than it does.

II. INCREASE IN CONSUMER SNACKING FUELS EMPHASIS ON HEALTHY 

INGREDIENTS

6. Research has shown that “consumers are eating fewer meals, yet snacking more than 

ever.”1

7. Defendant is aware that a greater percentage of consumers are eating more snacks 

and has emphasized the importance of fruit ingredients to make up for what “people don’t get 

enough of at meals.”2

8. According to one company, “[A]s snacking increases, so too does the focus on 

healthy products and ingredients.”3

9. Many consumers seek snacks which are a “healthy indulgence,” which are “a treat 

with all the flavor and taste desired, without the guilt of eating something ‘bad’ for you,” due to 

the presence of ingredients known to confer positive health benefits.4

III. CONSUMERS VALUE BERRIES

10. Three of the most popular and widely consumed berry fruits are strawberries, 

blueberries, and blackberries.5

11. Americans increasingly turn to berry fruits for adding value to all types of food.

12. According to the U.S. Department of Agriculture, the average American consumes 

several times more berries per year than they did decades ago. 

13. This is due to berries having a higher nutrient density than almost all other fruit 

groups, such as stone and rose fruits.

1 Elizabeth Louise Hatt, Snackin’ in the sun, Winsight Grocery Business, May 1, 2013.

2 The Story on Snacking, Kellogg’s Nutrition.

3 Mondelez Global, State of Snacking: 2020 Global Consumer Snacking Trends Study.

4 FONA International, Trend Insight: Indulgence, November 28, 2018.

5 Though the strawberry is not, from a botanical point of view, a berry, it is considered a berry by consumers.

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14. According to WebMD, berries provide nutritive and health benefits, such as 

promoting heart health, increasing HDL (good) cholesterol, lowering blood pressure, and guarding

against cancer.6

15. Berries are an excellent source of vitamin C, necessary for immune and skin health.

16. Berries have uniquely high levels of antioxidants known as polyphenols.

17. Polyphenols are micronutrients that naturally occur in plants. 

18. These polyphenols include flavonoids, ellagitannins, flavanols and phenolic acid.

19. Polyphenols prevent or reverse cell damage caused by aging and the environment, 

which is linked to greater risk of chronic diseases.

20. These benefits from berries can only be provided by berry ingredients – actual 

strawberries, blackberries, and blueberries.

21. These positive effects are incapable of being provided by “berry flavor,” which can 

be described as the extracts from these fruits and used only to affect a food’s taste, without any 

nutritional value.

IV. BERRIES ARE VALUED ABOVE OTHER FRUITS

22. It is not just consumers’ subjective preferences which value berries over other fruits.

23. Market price data confirms that berries, when compared to other fruit groups, like 

stone fruits, are perhaps the most expensive of the major fruit groups.

24. For instance, consumer price data tracked by the Bureau of Labor Statistics (“BLS”) 

shows that strawberries are consistently more expensive than non-berry fruits.

6 Andrea Gabrick, Nutritional Benefits of the Strawberry, WebMD.com; María Teresa Ariza, et al. “Strawberry 

achenes are an important source of bioactive compounds for human health.” International journal of molecular 

sciences 17.7 (2016): 1103.

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25. According to BLS, apples are typically between $1.20 and $1.50 per pound while 

strawberries are no less than between $2 and $4 per pound.7

26. According to recent data from the USDA, pears are $1.552 per pound, while 

strawberries, at $2.318 per pound, are almost fifty (50) percent more expensive.

27. Blackberries and blueberries are even more expensive than strawberries.

7 Stephen B. Reed, “Slicing through fruit price volatility,” Beyond the Numbers: Prices and Spending, Vol. 3:28, 

Bureau of Labor Statistics, December 2014.

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V. STATE AND FEDERAL REGULATIONS REQUIRE FRONT LABEL TO 

DISCLOSE THAT FRUIT FILLING HAS MORE PEAR INGREDIENTS THAN 

ANY SINGLE MIXED BERRY

28. Federal and identical state regulations require that a product’s front label contain a 

common or usual name which accurately identifies or describes, “in as simple and direct terms as 

possible, the basic nature of the food or its characterizing properties or ingredients.” 21 C.F.R. § 

102.5(a); Florida Food Safety Act, Fla. Stat. § 500.01 et seq.; Fla. Stat. § 500.02(2) (“This chapter 

is intended to: Provide legislation which shall be uniform, as provided in this chapter, and 

administered so far as practicable in conformity with the provisions of, and regulations issued 

under the authority of, the Federal Food, Drug, and Cosmetic Act; the Agriculture Marketing Act 

of 1946; and likewise uniform with the Federal Trade Commission Act, to the extent that it 

expressly prohibits the false advertisement of food.”).

29. Defendant’s representations violate 21 U.S.C. § 343(a)(1) and Fla. Stat. § 500.11, 

which deem food misbranded when the label contains a statement that is “false or misleading in 

any particular.”

30. Thus, a violation of federal food labeling laws is an independent violation of Florida

law and actionable as such.

31. The Florida Deceptive and Unfair Trade Practices Act provides protection for 

consumers purchasing products like Defendant’s Product, and states, “Unfair methods of 

competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the 

conduct of any trade or commerce are hereby declared unlawful.” Fla. Stat. § 501.204(1).

32. Whether a breakfast bar contains mixed berries as its predominant filling ingredient 

– or if it contains a predominant amount of pears – is basic front label information consumers rely 

on when making quick purchasing decisions at the grocery store.

33. Characterizing ingredients are those which have a material bearing on price or 

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consumer acceptance of the food, or which a consumer might otherwise believe to be present in 

an amount greater than is the case.

34. The Product’s common or usual name of “Mixed Berry – Soft-Baked Breakfast 

Bars,” is false, misleading, and deceptive because berries – strawberries, blueberries, and 

blackberries – are not its characterizing ingredients.

35. The Product’s “mixed berry filling” has a predominant ingredient of pears, and 

significantly less berry ingredients than expected.

Ingredients: Mixed berry filling (pear juice concentrate, 

tapioca syrup, cane sugar, blueberry puree concentrate, 

apple powder, corn starch, vegetable glycerin, blackberry 

puree concentrate, blueberry juice concentrate, 

strawberry puree concentrate, natural flavors), Kashi 

Seven Whole Grain flour (oats, hard red wheat, brown 

rice, rye, triticale, barley, buckwheat), whole wheat flour, 

whole grain oats, invert cane syrup, expeller pressed 

canola oil, honey, chicory root fiber, vegetable glycerin, 

tapioca syrup, leavening (sodium acid pyrophosphate, 

baking soda), soy lecithin, xanthan gum, natural flavors.

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36. The relative amounts of the ingredients in the filling are determined based on their 

listing in order of predominance by weight. 21 C.F.R. § 101.4(a)(1).

37. The most predominant ingredient is pear juice concentrate, followed by tapioca syrup

and cane sugar, followed by blueberry puree concentrate, apple powder, corn starch, vegetable 

glycerin, and finally, blackberry puree concentrate, blueberry juice concentrate and strawberry 

puree concentrate.

38. The amount of apple ingredients in the Product exceeds that of blackberries and 

strawberries (separately).

39. Not only does the Product’s filling have a predominant ingredient of pears, but it also

contains more sugar – tapioca syrup and cane sugar – than any individual berry fruit.

40. The Product’s name is required to, but fails, to include the percentage of the 

characterizing strawberry, blueberry, and blackberry ingredients, because the amount of these

mixed berries has a material bearing on price or consumer acceptance.

41. The front label is required to disclose the percentage of the individual mixed berry 

ingredients relative to the other fruits, i.e., “10% Strawberry, 20% Blueberry, 40% Pear, 10% 

Blackberry, 20% Apple.” 21 C.F.R. § 102.5(b).

42. The labeling creates an erroneous impression that the Product contains more mixed 

berry ingredients than it does.

43. The Product’s name, “Mixed Berry – Soft-Baked Breakfast Bars,” is misleading 

because it includes “Mixed Berry,” but does not include pears and apples, even though these fruits 

are stated in the fine print on the ingredient list. 21 C.F.R. § 101.18(b).

44. Cereal bars which contain mixed berries as their predominant filling ingredient are 

not a rare or pricy delicacy that would make a reasonable consumer “double check” the relative 

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amount of the mixed berries by scouring the label.

45. Cereal bars with fruit fillings which contain a berry as a first and predominant 

ingredient exist in the marketplace and are not technologically or otherwise unfeasible to produce.

46. For instance, competitor cereal bars from like Hill Country Fare (H-E-B), Great 

Value (Walmart) and Publix are described as “mixed berry” but put consumers on notice that they

have less mixed berries than consumers would otherwise expect, through the statements, 

“Naturally Flavored” and “Flavored . . . With Other Natural Flavors.”

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47. The labels of the Hill Country and Great Value bars include pictures of blueberries, 

strawberries and raspberries.

48. The bars from Hill Country also contain one of the pictured berries as their fillings’ 

first ingredient.

49. Consumers seeing Defendant’s Product, which exclusively promotes mixed berries, 

and the more modest labeling of competitors will purchase Defendant’s Product, believing it is 

higher quality than it is.

50. The FDA has consistently warned companies that fail to describe their products with 

a non-misleading, common or usual name:

Your Sour Cherry Juice (two unique brand names) and Sour Grape Juice (four 

unique brand names) products are misbranded within the meaning of section 

403(i)(1) of the Act [21 U.S.C. § 343(i)(1)] because the statement of identity does 

not bear an accurate common or usual name. According to 21 CFR 102.33(a), for a 

carbonated or noncarbonated beverage that contains less than 100 percent and more 

than 0 percent fruit or vegetable juice, the common or usual name shall be a 

descriptive name that meets the requirements of 21 CFR 102.5(a).8

51. The marketing and sale of foods which are advertised as containing valuable berries,

8 FDA Warning Letter, Shemshad Food Products, Inc., W/L 28-11, March 11, 2011.

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but are mainly comprised of other, less valuable, fruit ingredients are not new practices.

52. In the fall of 1960, the FDA seized a shipment of “Strawberry Bars” where:

strawberries, had been in whole or in part omitted or abstracted therefrom; 402(b) 

(4) – figs and dates had been mixed or packed with the articles so as to increase 

their bulk or weight and make them appear of greater value than they were; and 

403(a)-the label statements and the label vignettes depicting whole fresh fruit, 

apricots and strawberries, were false and misleading as applied to an article 

(Apricot Bars) containing no apricots, and an article (Strawberry Bars) containing 

a mixture of figs and dates and some strawberries.

FDA, Notices of Judgment, No. 28302, “Fruit Bars,” F.D.C. No. 45358, E. Dist. 

Mich., July 11, 1961.

53. The Product is unable to confer any of the health-related benefits of mixed berries

because the amount of mixed berry ingredients is insufficient to provide the benefits of these fruits.

54. The Product does not even taste like mixed berries, but like pears and apples.

55. If the Product tasted like mixed berries from containing mixed berry ingredients, 

there would be no need to add “NATURAL FLAVORS” to simulate a mixed berry taste.

VI. HONEY IS MISREPRESENTED AS MAIN SWEETENING INGREDIENT

56. The front label promotes the presence of honey – “Made with Wildflower Honey.”

57. This representation conveys that honey is the exclusive, primary and/or most 

significant sweetener in the Product and is present in an appreciable amount.

58. However, the Product is sweetened primarily with sugar and contains a miniscule 

amount of honey.

A. Sugar Disfavored as Sweetener

59. In 2014, the National Institutes of Health cautioned: “experts agree that Americans 

eat and drink way too much sugar, and it’s contributing to the obesity epidemic. Much of the sugar 

we eat isn’t found naturally in food but is added during processing or preparation.” 

60. The NIH noted further: “[s]everal studies have found a direct link between excess 

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sugar consumption and obesity and cardiovascular problems worldwide.” 

61. There has long been a consensus among doctors and nutritionists that “[e]ating too 

much sugar contributes to numerous health problems, including weight gain, Type 2 diabetes, 

dental caries, metabolic syndrome and heart disease, and even indirectly to cancer because of 

certain cancers’ relationship to obesity.” 

62. In addition, “there is emerging research that suggests high-sugar diets may increase 

the risk of developing [dementia].” 

63. As part of a societal trend toward consuming healthier foods and natural foods, 

avoidance of added sugar has been and remains a significant consumer preference, with consumers 

strongly favoring honey as a sugar substitute.

64. At least in part due to growing consumer awareness of health problems caused by 

excessive sugar consumption, in recent years consumers have shown a distinct preference for 

products with little or no added sugar.

65. In August 2016, an article in “Prepared Foods” magazine noted that “[o]ngoing 

concerns about obesity and sugar intake have driven interest in reduced sugar and diet drinks in 

recent years.” 

66. As another observer of the food industry explained in May 2017: “[h]ealth concerns 

and better educated consumers are propelling the demand for sugar reduction across food and 

beverage categories...Sugar reduction will be one of the top marketing claims prominently 

featured on products in the coming year...” 

67. Similarly, an article in the February 28, 2018, edition of “Food Business News” 

reported that “[s]peakers addressing consumer trends at the International Sweetener Colloquium 

in Orlando on February 13 said sugar avoidance was a macro trend ‘that is here to stay and will 

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only increase.’” 

68. The same article noted that “I.R.I. [Information Resources, Inc.] surveys show that 

58% of consumers across generations are avoiding sugar...[and of] those avoiding sugar, 85% are 

doing so for health reasons and 58% for weight concerns.” 

B. Consumer Preference for Products Sweetened with Honey Instead of Sugar

69. Surveys show “[c]onsumers rated honey at 73% ‘better for you’ than sugar.” 

70. A survey highlighted in “Prepared Foods” magazine in 2018 noted that: (i) “93% of 

consumers consider honey to be a natural sweetener;” (ii) “58% of consumers with one or more 

children look for honey on the product label;” (iii) “60% of consumers between the ages of 18 and 

34 look for honey on the product label; and (iv) about half of consumers would pay at least 5% 

more for food bars, ready-to-drink tea, and yogurt primarily sweetened with honey.” 

71. Referring to food products perceived as healthier, the Huffington Post reported that 

“[a]ccording to a 2015 Nielsen survey of 30,000 people, 90% of shoppers are willing to pay more 

for the added quality and benefits.” 

72. Honey is a naturally occurring substance and, unlike sugar, has small amounts of 

nutrients such as vitamins, minerals, enzymes, and antioxidants.

73. In addition, honey has a lower glycemic index than sugar, meaning that it causes 

slower fluctuations in blood glucose levels (often referred to as “blood sugar”) and therefore in 

insulin levels as well.

74. Rapid spikes of blood glucose levels lead to quick spurts of energy followed by sharp 

declines in energy characterized by tiredness, headaches, and difficulties in concentrating (“low 

blood sugar”).

75. Although sugar contains slightly fewer calories than honey by weight, honey is much 

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sweeter than sugar and therefore less is needed to achieve the same level of sweetness.

76. Based on the common marketplace perception that honey is healthier and more 

natural than sugar, consumers place a greater value on products that are sweetened with honey 

instead of sugar and are willing to pay a higher price for such products.

C. Contrary to Representation, Honey is Present in De Minimis Amount and Product is 

Sweetened Mainly with Sugar

77. The sweeteners in the Product include tapioca syrup, cane sugar, invert cane syrup 

and honey.

78. Among the sweeteners in the Product, honey is present in the lowest quantity.9

79. The Product contains more canola oil than honey, yet the front label does not tout 

this ingredient.

80. The representation that the Product is made with wildflower honey is misleading 

because reasonable consumers will expect honey to be present in a greater amount than it is.

VII. CONCLUSION

81. The cost of using more mixed berry and honey ingredients, relative to pears, apples,

and sugar, would be several cents per Product – not a significant addition to the price.

82. Reasonable consumers must and do rely on a company to honestly identify and 

describe the components, attributes, and features of the Product, relative to itself and other 

comparable products or alternatives.

83. The value of the Product that Plaintiff purchased was materially less than its value 

as represented by Defendant. 

84. Defendant sold more of the Product and at higher prices than it would have in the

9 Even though honey is listed ahead of tapioca syrup, this ingredient is listed twice as part of the filling, ahead of 

honey.

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absence of this misconduct, resulting in additional profits at the expense of consumers.

85. Had Plaintiff and proposed class members known the truth, they would not have 

bought the Product or would have paid less for it.

86. The Product is sold for a price premium compared to other similar products, no less 

than $3.69 for six 1.2 OZ (35g) bars, a higher price than it would otherwise be sold for, absent the 

misleading representations and omissions.

Jurisdiction and Venue

87. Jurisdiction is based on the Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C. 

§ 1332(d)(2).

88. The aggregate amount in controversy exceeds $5 million, including any statutory and 

punitive damages, exclusive of interest and costs.

89. Plaintiff Stacey Karney is a citizen of Florida.

90. Defendant Kashi Sales, L.L.C. is a Delaware limited liability company with a 

principal place of business in Battle Creek, Calhoun County, Michigan.

91. The sole member of Defendant is Kellogg Sales Company, a Delaware corporation 

with a principal place of business in Battle Creek, Calhoun County, Michigan.

92. Defendant is a citizen of Michigan.

93. Plaintiff’s citizenship of Florida is diverse from Defendant and its sole member, 

Kellogg Sales Company, citizens of Michigan.

94. The members of the class of persons Plaintiff seeks to represent include citizens of 

different states from Defendant.

95. Venue is in this District because a substantial part of the events or omissions giving 

rise to the claims occurred here, including Plaintiff’s purchase and consumption of the Product, 

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exposure to and reliance on the representations, and her awareness that they were misleading.

96. This action should be assigned to the Miami Division because Plaintiff resides in 

Miami-Dade County and a substantial part of the events or omissions giving rise to the claims 

occurred in Miami-Dade County, including Plaintiff’s purchase and consumption of the Product, 

exposure to and reliance on the representations, her awareness that they were misleading, 

Parties

97. Plaintiff Stacey Karney is a citizen of North Miami, Florida, Miami-Dade County.

98. Defendant Kashi Sales, L.L.C. is a Delaware limited liability company with a 

principal place of business in Battle Creek, Michigan, Calhoun County. 

99. Defendant is a leading seller of organic and healthy snacks.

100. Defendant’s image is exemplified by its logo, with a stalk of wheat running across 

its company name, epitomizing the connection to farmers and healthy ingredients.

101. The Product is sold at tens of thousands of retail locations such as grocery stores, 

drug stores, big box stores, convenience stores, and online in the States covered by the classes 

Plaintiff seeks to represent.

102. The Product is sold in boxes of 6 bars, among other sizes.

103. Plaintiff bought the Product on one or more occasions within the statute of limitations 

for each cause of action alleged, at stores including Publix, 12800 Biscayne Blvd, North Miami, 

FL 33181, in or around June 2020 and throughout 2021, among other times.

104. Plaintiff bought the Product because she expected it would have more of mixed berry

ingredients than it did.

105. Plaintiff wanted more than a “mixed berry taste,” but an appreciable amount of mixed 

berry ingredients, which was not received because the most predominant ingredients are pears and 

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sugar.

106. Plaintiff expected the filling would contain more mixed berry ingredients than it did 

and did not expect the main ingredient to be pears. 

107. Plaintiff did not expect that the filling would contain more pear ingredients than any 

single berry, and more apple than blackberry and strawberry.

108. Plaintiff expected that honey would be the Product’s primary sweetener or at a 

minimum, it would be present in an appreciable amount instead of a de minimis, negligible amount.

109. Plaintiff prefers honey to sugar for the reasons described herein.

110. Plaintiff bought the Product at or exceeding the above-referenced price.

111. Plaintiff relied on the representations on the front and back of the box identified here.

112. Plaintiff would not have purchased the Product if she knew the representations were 

false and misleading.

113. Plaintiff chose between Defendant’s Product and other similar products which were 

represented similarly, but which did not misrepresent their attributes and/or lower-priced products 

which did not make the claims made by Defendant.

114. The Product was worth less than what Plaintiff paid and she would not have paid as 

much absent Defendant’s false and misleading statements and omissions.

115. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so 

with the assurance that Product’s representations are consistent with its composition.

Class Allegations

116. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:

Florida Class: All persons in the State of Florida 

who purchased the Product during the statutes of 

limitations for each cause of action alleged; and

Consumer Fraud Multi-State Class: All persons in 

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the States of Alabama, South Carolina, Tennessee, 

and Virginia who purchased the Product during the 

statutes of limitations for each cause of action 

alleged.10

117. Common questions of law or fact predominate and include whether Defendant’s 

representations were and are misleading and if Plaintiff and class members are entitled to damages.

118. Plaintiff’s claims and basis for relief are typical to other members because all were 

subjected to the same unfair and deceptive representations and actions.

119. Plaintiff is an adequate representative because her interests do not conflict with other 

members. 

120. No individual inquiry is necessary since the focus is only on Defendant’s practices 

and the class is definable and ascertainable. 

121. Individual actions would risk inconsistent results, be repetitive and are impractical 

to justify, as the claims are modest relative to the scope of the harm.

122. Plaintiff’s counsel is competent and experienced in complex class action litigation 

and intends to protect class members’ interests adequately and fairly.

123. Plaintiff seeks class-wide injunctive relief because the practices continue.

Florida Deceptive and Unfair Trade Practices Act, 

Fla. Stat. § 501.201, et seq.

(Consumer Protection Statute)

124. Plaintiff incorporates by reference all preceding paragraphs.

125. Plaintiff and class members desired to purchase a product had a greater amount of 

10 The States in the Consumer Fraud Multi-State Class are limited to those States with similar consumer fraud laws 

under the facts of this case: Alabama (Alabama Deceptive Trade Practices Act, Ala. Statues § 8-19-1, et seq.); South 

Carolina (South Carolina Unfair Trade Practices Act, S.C. Code Laws § 39-5-10, et seq.); Tennessee (Tennessee Trade 

Practices Act, Tennessee Code § 47-25-101, et seq.); and Virginia (Virginia Consumer Protection Act, Virginia Code 

§ 59.1-196, et seq.).

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berry and honey ingredients and expected a non-de minimis amount of these ingredients.

126. Defendant’s false and deceptive representations and omissions are material in that 

they are likely to influence consumer purchasing decisions. 

127. Defendant misrepresented the Product through statements, omissions, ambiguities, 

half-truths and/or actions.

128. Plaintiff relied on the representations.

129. Plaintiff and class members would not have purchased the Product or paid as much 

if the true facts had been known, suffering damages.

Violation of State Consumer Fraud Acts

(On Behalf of the Consumer Fraud Multi-State Class)

130. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class 

prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.

131. Defendant intended that Plaintiff and each of the other members of the Consumer 

Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in 

fact be misled by this deceptive conduct.

132. As a result of Defendant’s use or employment of artifice, unfair or deceptive acts or 

business practices, Plaintiff, and each of the other members of the Consumer Fraud Multi-State 

Class, have sustained damages in an amount to be proven at trial.

133. In addition, Defendant’s conduct showed malice, motive, and the reckless disregard 

of the truth such that an award of punitive damages is appropriate.

Breaches of Express Warranty,

Implied Warranty of Merchantability/Fitness for a Particular Purpose and

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

134. The Product was manufactured, labeled, and sold by Defendant and expressly and 

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impliedly warranted to Plaintiff and class members that it had a greater amount of berry and honey 

ingredients, who expected a non-de minimis amount of these ingredients.

135. Defendant directly marketed the Product to Plaintiff and consumers through its

advertisements and marketing, through various forms of media, on the packaging, in print 

circulars, direct mail, product descriptions, and targeted digital advertising.

136. Defendant knew the product attributes that potential customers like Plaintiff were 

seeking and developed its marketing and labeling to directly meet those needs and desires.

137. Defendant was aware of consumer demand for greater amounts of berry and honey 

ingredients.

138. Defendant’s representations about the Product were conveyed in writing and 

promised it would be defect-free, and Plaintiff understood this meant it contained a greater amount 

of berry and honey ingredients.

139. Defendant’s representations affirmed and promised that the Product contained a 

greater amount of berry and honey ingredients.

140. Defendant described the Product so Plaintiff and consumers believed it contained a 

greater amount of berry and honey ingredients, which became part of the basis of the bargain that 

it would conform to its affirmations and promises.

141. Defendant had a duty to disclose and/or provide non-deceptive descriptions and 

marketing of the Product.

142. This duty is based on Defendant’s outsized role in the market for this type of Product, 

a trusted company, known for its authentic, high-quality products, honestly marketed to 

consumers.

143. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.

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144. Plaintiff provided or will provide notice to Defendant, its agents, representatives, 

retailers, and their employees. 

145. Plaintiff hereby provides notice to Defendant that it breached the express and implied 

warranties associated with the Product.

146. Defendant received notice and should have been aware of these issues due to 

complaints by third-parties, including regulators, competitors, and consumers, to its main offices, 

and by consumers through online forums.

147. The Product did not conform to its affirmations of fact and promises due to 

Defendant’s actions.

148. The Product was not merchantable because it was not fit to pass in the trade as 

advertised, not fit for the ordinary purpose for which it was intended and did not conform to the 

promises or affirmations of fact made on the packaging, container, or label, because it was 

marketed as if it contained a greater amount of berry and honey ingredients.

149. The Product was not merchantable because Defendant had reason to know the 

particular purpose for which the Product was bought by Plaintiff, because she expected it contained 

a greater amount of berry and honey ingredients, and she relied on Defendant’s skill and judgment 

to select or furnish such a suitable product.

150. Plaintiff would not have purchased the Product or paid as much if the true facts had 

been known, suffering damages.

Negligent Misrepresentation

151. Defendant had a duty to truthfully represent the Product, which it breached.

152. This duty is based on Defendant’s position, holding itself out as having special 

knowledge and experience this area, as custodian of the Kashi brand.

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153. Defendant’s representations and omissions regarding the Product went beyond the 

specific representations on the packaging, as they incorporated the extra-labeling promises and 

commitments to quality, transparency and putting customers first, that it has been known for.

154. These promises were outside of the standard representations that other companies 

may make in a standard arms-length, retail context.

155. The representations took advantage of consumers’ cognitive shortcuts made at the 

point-of-sale and their trust in Defendant, a nationally recognized and trusted brand.

156. Plaintiff reasonably and justifiably relied on these negligent misrepresentations and 

omissions, which served to induce and did induce, their purchase of the Product. 

157. Plaintiff would not have purchased the Product or paid as much if the true facts had 

been known, suffering damages.

Fraud

158. Defendant misrepresented and/or omitted the attributes and qualities of the Product, 

that it had a greater amount of berry and honey ingredients, so Plaintiff and class members 

expected a non-de minimis amount of these ingredients.

159. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not

consistent with its representations.

Unjust Enrichment

160. Defendant obtained benefits and monies because the Product was not as represented 

and expected, to the detriment and impoverishment of Plaintiff and class members, who seek 

restitution and disgorgement of inequitably obtained profits.

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Jury Demand and Prayer for Relief

Plaintiff demands a jury trial on all issues.

WHEREFORE, Plaintiff prays for judgment:

1. Declaring this a proper class action, certifying Plaintiff as representative and the

undersigned as counsel for the class;

2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the 

challenged practices to comply with the law;

3. Injunctive relief to remove, correct and/or refrain from the challenged practices and 

representations, and restitution and disgorgement for members of the class pursuant to the 

applicable laws;

4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory 

claims and interest pursuant to the common law and other statutory claims;

5. Awarding costs and expenses, including reasonable fees for Plaintiff’s attorneys and 

experts; and

6. Other and further relief as the Court deems just and proper.

Dated: July 25, 2022

Respectfully submitted, 

/s/Will Wright

The Wright Law Office, P.A.

515 N Flagler Dr Ste P-300 

West Palm Beach FL 33401

Tel: (561) 514-0904

willwright@wrightlawoffice.com

Sheehan & Associates, P.C.

Spencer Sheehan (Pro Hac Vice forthcoming)

60 Cuttermill Rd Ste 412

Great Neck NY 11021

Tel: (516) 268-7080

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spencer@spencersheehan.com

Case 1:22-cv-22325-JEM Document 1 Entered on FLSD Docket 07/25/2022 Page 24 of 24