A class action suit against the snack manufacturer and distributor, J&J Snack Food Corp. accuses the company of misrepresenting their products. Plaintiffs Martin Orbach of New York and Phillip Sego of Massachusetts allege the defendant committed consumer fraud by falsely labeling the size of their line of Luigi’s Real Italian Ice.

The lawsuit, filed on January 12, 2018, in the Southern District of New York, claims the plaintiffs purchased inadequately filled Luigi’s Italian ice products over a three year period. Orbach and Sego base this claim on the fill line etched into the cups and independent testing that confirmed the cups contained 5.4 to 5.5 ounces on average, instead of six ounces as advertised.

“Defendant is cheating purchasers by providing roughly 8.5 to 9% less Italian Ice than purchasers are paying for,” the lawsuit says. The plaintiffs argue they would not have purchased the products if they knew the company was providing less Italian ice than advertised.

The plaintiffs are suing on behalf of themselves and any similarly situated customers who purchased Luigi’s Real Italian ice products in the Cherry, Chocolate, Orange, Mango, Cotton Candy, Lemon, Blue Raspberry, or Watermelon flavors. The suit excluded customers who purchased the products for resale. Orbach and Sego claim the defendant cheated customers and violated various consumer protection rights under Massachusetts and New York law, including breach of implied warranty, fraud, and unjust enrichment. They requested a trial by jury to grant them compensatory, punitive, and statutory damages; prejudgment interest; restitution; injunctive relief; and attorneys’ fees.

The lawsuit is Martin Orbach and Phillip Sego v. J&J Snack Foods Corp., Case No. 7:18-cv-00321, in the U.S. District Court for the Southern District of New York. Attorneys representing the case are Philip L. Fraietta and Alec M. Leslie of Bursor & Fisher PA