Plaintiff, on behalf of himself and all other similarly situated persons, upon information and belief, respectfully show and allege as follows:

2.Venue is proper in this Court since the Plaintiff and class-members reside in the County of Bronx, City and State of New York, and/or the Defendants do business in the district.

1.Plaintiff and Plaintiff-class are individuals and consumers who have purchased and consumed the Defendants’ products and as result thereof, have become obese, overweight, developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol levels, and/or other detrimental and adverse health effects and/or diseases.

3.The Defendant, BURGER KING CORPORATION, has its principal place of business at 17777 Old Cutler Road, Miami, Florida, and does substantial business throughout the fifty United States and other countries throughout the world.

4.The Defendant, KFC CORPORATION, D/B/A KENTUCKY FRIED CHICKEN, has its principal place of business at 41 Grandiner Lane, Louisville, Kentucky, and does substantial business throughout the fifty United States and other countries throughout the world.

5.The Defendant, WENDY’SINTERNATIONAL, INC., is an Ohio Corporation, andhas its principal place of business at 4288 West Dublin-Granville Road, Dublin, Ohio, 43017, and does substantial business throughout the fifty United States and other countries throughout the world.

6.That at all times hereinafter mentioned, the Defendants, MCDONALD’S CORPORATION, BURGER KING CORPORATION, KFC CORPORATION, D/B/A KENTUCKY FRIED CHICKEN, and/orWENDY’SINTERNATIONAL, INC.,were and still are corporations and perform and conductbusiness in the State of New York. 

7.That at all times hereinafter mentioned, the Defendants, MCDONALD’S CORPORATION, BURGER KING CORPORATION, KFC CORPORATION, D/B/A KENTUCKY FRIED CHICKEN, and/orWENDY’SINTERNATIONAL, INC., derives substantial revenue from the aforementioned goods and food products consumed in the State of New York.

8.That at all times hereinafter mentioned, the Defendants, MCDONALD’S CORPORATION, BURGER KING CORPORATION, KFC CORPORATION, D/B/A KENTUCKY FRIED CHICKEN, and/or WENDY’SINTERNATIONAL, INC., expected or should have reasonably expected its acts and business activities to have consequences in the State of New York.

9.That at all times hereinafter mentioned, the Defendants, MCDONALD’S CORPORATION, BURGER KING CORPORATION, KFC CORPORATION, D/B/A KENTUCKY FRIED CHICKEN,and/orWENDY’S INTERNATIONAL, INC., placed the aforementioned goods and or products within the “stream of commerce” within the Stateof New York.

10.That, upon information and belief, and at all times hereinafter mentioned, the Defendants wereand still are corporations and/or legal entities engaged in the distribution, ownership retail, manufacture, sale, marketing and/or production of food products that tend to be high in fat, salt, sugar, and cholesterol content.

11.That the Defendants, MCDONALD’S CORPORATION, BURGER KING CORPORATION, KFC CORPORATION, D/B/A KENTUCKY FRIED CHICKEN, and/orWENDY’S INTERNATIONAL, INC., operate both company-owned stores and franchise stores, and the Defendantsprescribe the ingredients of the food products served therein, so as to insure that its food products sold in one state or location is substantially identical to food products sold anywhere else in the country.

12.That all products sold by the Defendants respective franchisees are provided by the respective Defendants or approved distributors, agents and/or employees.

1.The United States is experiencing substantial increases in overweight and obesity that cut across all ages, racial and ethnic groups, and both genders,[1] has been increasing in every State in the Nation that has reached epidemic proportions. [2]

2.In 1999, an estimated 61 percent of U.S. adults were overweight or obese, and 13 percent of children and adolescents were overweight. [3]

^3.Today,there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. Approximately 300,000 deaths a year in the United States are currently associated with overweight and obesity, and as indicatedin the U.S. Surgeon General’s 2001 Report on Overweight and Obesity, “left unabated, overweight and obesity may soon cause as much preventable disease and death as cigarette smoking.” [4]

^4.In a 1999, National Health and Nutrition Examination Survey (NHANES), 34 percent of U.S. adults aged 20 to 74 years are overweight, and an additional 27 percent are obese.[5]These findings contrast with the late 1970s, when an estimated 32 percent of adults aged 20 to 74 years were overweight, and 15 percent were obese.[6]

5.^{The most recent data (1999) estimate that 13 percent of children aged 6 to 11 years and 14 percent of adolescents aged 12 to 19 years are overweight.} During the past two decades, the percentage of children who are overweight has almost doubled (from 7 to 13 percent), and the percentage of adolescents who are overweight has almost tripled (from 5 to 14 percent).[7]

1.Epidemiological studies show that obese individuals have a 50 to 100 percent increased risk of premature death from all causes,[8] and an estimated three hundred thousand(300,000) deaths a year may be attributable to obesity. [9]

2.Additionally, overweight classification and obesity are associated with an increased risk for coronary heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast, and other cancers; and certain musculoskeletal disorders, such as knee osteoarthritis. [10]Studies have shown that both modest and large weight gains are associated with significantly increased risk of disease. For example, a weight gain of 11 to 18 pounds increases a person’s risk of developing type 2 diabetes to twice that of individuals who have not gained weight, while those who gain 44 pounds or more have four times the risk of type 2 diabetes.[11]A 10 to 20 pound gain results in an increased risk of coronary heart disease (nonfatal myocardial infarction and death) of 1.25 times in women , [12]and 1.6 times in men.[13]A gain of 22 pounds in men and 44 pounds in women result in an increased coronary heart disease risk of 1.75 and 2.65, respectively.[14]

3.In certain obese women, the risk of developing endometrial cancer is increased by more than six times.[15] Overweight and obesity are also known to exacerbate many chronic conditions such as hypertension and elevated cholesterol and such individuals also may suffer from social stigmatization, discrimination, and poor body image.^[16]

1.The associated health problems and effects of obesity and overweight classification have substantial economic consequences for the United Stateshealth care system and individuals.[17] The increasing prevalence of overweight and obesity is associated with both direct and indirect costs. Direct health care costs refer to preventive, diagnostic, and treatment services related to overweight and obesity (for example, physician visits and hospital and nursing home care).[18] Indirect costs refer to the value of wages lost by people unable to work because of illness or disability, as well as the value of future earnings lost by premature death.[19]

2.In 1995, the total estimated (direct and indirect) costs attributable to obesity amounted to an estimated $99 billion.[20]In 2000, the total cost of obesity was estimated to be $117 billion ($61 billion direct and $56 billion indirect).[21] Most of the costs associated with obesity is due to type 2 diabetes, coronary heart disease, and hypertension.[22]

1.The action is brought and may properly be maintained as a class action pursuant to the provisions of the New York State Civil Practice Law and Rules. Plaintiff seeks certification of this action based upon being members of a certain class of persons and/or consumers who consumed products of the Defendants and have become obese, overweight, developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol levels, and/or other detrimental and adverse health effects and/or diseases.

2.The exact number of Plaintiff class members is not known. Plaintiff estimates that the class includes millions of Americans and the Plaintiff estimates that the class is so numerous that joinders of individual members is impractical. The number and identities of the class members can only be ascertained through appropriate investigation and discovery.

3.Common questions of law and fact predominate the claims of all class members, including the named Plaintiff. These claims depend on proving the Defendants are liable for their acts and/or omissions, in part, based upon a common similar course of conduct. 

4.There are several questions of fact and law are common to the class members, which include:

a.whether consumption of the Defendants’ products and foods facilitate, cause,exacerbate, and/or induce obesity, overweight classification, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases;

b.whether the Defendants’ knew or should have knownthat the consumption of its products and foods facilitate, cause,exacerbate, and/or induce obesity, overweight classification, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases;

c.whether the Defendants adequately warned the consumers and users of the Defendants’ products and foods;

d.whether the Defendants has been unjustly enriched at the detrimental expense of the Plaintiff and class-members;

e.whether, as a result of the Defendants’ actions and products, the Plaintiff class is entitled to restitution or equitable relief or to compensatory or punitive damages. 

1.The claims of the individually named Plaintiff are typical of the claims of the Plaintiff-Class Members. The Plaintiff and all members of the Plaintiff-Class have been similarly affected by the Defendants’ common course of conduct and the members of each class have similarly situated claims and causes of action against the Defendants.

2.There is no conflict as between the Plaintiff and other class members with respect to this action or the claims and requested relief herein.

3.That the Plaintiff is/are aware of theirasserted rights and their roles as class representatives.

4.That Plaintiff and their attorneys are able to and will fairly, and adequately protect the interest of the Class. Plaintiff’ attorneys can vigorously prosecute the rights of the proposed class members.

5.That the prosecution of separate actions by individual Plaintiffs is not feasible or efficient, and would be unduly burdensome. Said individual prosecution will create the risk of inconsistentand varying adjudications and will establishincompatible standards of conduct for the Defendants, in that different Courts may order the Defendants to provide different types ofreliefs and the Plaintiff and class members proposed evidentiary showings would be based on the same documents and testimony concerning the Defendants’ action or omissions, thereby conserving judicial resources.

6.A classaction is superiorto the other available methods for the fair, just and efficient adjudication of the controversy. The class action device allows a single court to provide the benefits of a single adjudication, conserving judicial economy and the fair and equitable handling of all of plaintiffs claims in a single action and forum. The conduct of this action as a class action conserves the judicial resources of the parties and of the judicial system, and reserves the rights of each class member. 

1.Plaintiff reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,negligently, recklessly, carelessly and/or intentionally engaged in the distribution, ownership, retail, manufacture, sale, marketing and/or production of food productsthatare high in fat, salt, sugar,and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, strokes, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

3.That by reason of the foregoing, the Plaintiff and Plaintiff-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

1.Plaintiff reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,engaged in the distribution, ownership, retail, manufacture, sale, marketing and/or production of food productsthatare high in fat, salt, sugar, and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, strokes, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

3.That, upon information and belief, the Defendants failed to warn and/or adequately warn the users and consumers of the aforesaid food products of the quantity and levels of fat, salt, sugar,and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

4.That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,failed to adequately label and warn the consumers of the aforesaid food products that ingestion of certain of its food products with high levels of fat, salt, sugar, and cholesterol content,have or can beshown to cause obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases. 

5.Plaintiff and Plaintiff-Classrelied upon the skill and judgments of Defendants, their respective agents, servants and/or employees and the representations and the warranties of the aforementioned in connection with the use and consumption of the aforementioned food products. 

6.That by reason of the foregoing, the Plaintiff and Plaintiff-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

7.

1.Plaintiff reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,negligently, recklessly, carelessly and/or intentionally engaged in the distribution, ownership, retail, manufacture, sale, marketing and/or production of food products marketed directly to children thatare high in fat, salt, sugar, and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, strokes, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases, and have been a substantial cause in the 13% percentage rate of children aged 6 to 11 years and 14 percentage rateof adolescents aged 12 to 19 years that are overweight in the United States today.

3.That by reason of the foregoing, the Plaintiff and Plaintiff-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

1.Plaintiff reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,failed to label and/or adequately label, represent,warn or properly account to the users and consumers of nutritional values,including but not limited to, the quantities and qualities of fat, salt, sugar, and cholesterol content, oftheir respective food products.

3.That, upon information and belief, the Defendants failed to adequately label, represent,and warn the consumers of their certain respective food products that ingestion of such food products with high levels of fat, salt, sugar, and cholesterol content,have or can beshown to cause obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases. 

4.Plaintiff and Plaintiff-Classrelied upon the skill and judgments of Defendants, their respective agents, servants and/or employees and the representations and the warranties of the aforementioned in connection with the use and consumption of the aforementioned food products. 

5.That by reason of the foregoing, the Plaintiff and Plaintiff-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

AS AND FOR A FIFTH CAUSE OF ACTION

1.Plaintiff reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That the Defendants engaged in unfair and deceptive acts and practices, in violation of the consumer fraud statutes and provisions of the New York Consumer Protection Act (N.Y. Gen. Bus. Law §§349, 350 (Consol.) by failing to adequately disclose the health effects ofingestion of certain respectivefood products with high levels of fat, salt, sugar, and cholesterol content,which have or can be shown to cause obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases; by engaging in marketing practices which enticed the Plaintiff-Class members to consume their respective products in larger portions through the use of “value meal” and “meal combo” advertisements without disclosing the detrimental health effects as a result thereof.

3.That Defendant engaged in such conduct in the course of trade and commerce.

4.That by reason of the foregoing, the Plaintiff and Plaintiff-Class has suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

WHEREFORE, Plaintiff and Plaintiff-Class demand a jury trail and judgment and damages against the Defendants, and further relief as follows:

For compensatory damages in an amount to be determined by a jury at trial together with interests;

For an Order immediately mandating the Defendants to label its individual products with the fat, salt, cholesterol and other dietary content, thereby warning the users of said products of the health affects thereof;

For the funding of an educational program to inform children and adults of the dangers of eating certain foods sold, marketed, produced by Defendants and containing high levels of fat, salt, sugar and cholesterol content;

For Attorneys Fees;

For the Costs of this Action.

Dated: New York, New York

July 23, 2002

_____________________________

SAMUEL HIRSCH, ESQ.

Attorney for Plaintiff

350 Fifth Avenue

New York, New York 10118

(212) 947-3800

That deponent is the attorney for the Plaintiff(s) in the action within; that deponent has read the foregoingCOMPLAINT and knows the contents thereof; that the same is true to the deponent’s own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters believes it to be true and the reason this verification is not made by Plaintiff(s) and is made by deponent is that Plaintiff is/are not presently located in the county where the deponent-attorney maintains his office.

___________________

SAMUEL HIRSCH