FILED: SUFFOLK COUNTY CLERK 07/02/2018 02:00 PM INDEX NO.

612601/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/02/2018

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

MATTHEW CASCONE, on behalf of

himself and all others similarly situated,
Index No.:

Plaintiff,
v. SUMMONS

The basis for venue is

7-ELEVEN, INC.,
plaintiff's place of residence

Defendant.

To the above-named defendant:

YOU ARE HEREBY SUMMONED and required to serve upon plaintiff's attorneys an

answer to the complaint in this action within twenty days after the service of this summons,

exclusive of the day of service, or within thirty days after service is complete if this summons is

not personally delivered to you within the State of New York. In case of your failure to answer,

judgment will be taken against you by default for the relief demanded in the complaint.

Dated: July 2, 2018

MOORE KUEHN, PLLC

/s/ Justin A. Kuehn

Fletcher W. Moore
Justin A. Kuehn
8th
30 Wall Street, floor

New York, New York 10005

Tel: (212) 709-8245
fmoore@moorekuehn.com
jkuehn@moorekuehn.com

Attorneys for Plaintiff and the Class

To:

7-ELEVEN, INC.
C/O CORPORATE CREATIONS NETWORK INC.
15 NORTH MILL STREET
NYACK, NEW YORK, 10960

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SUFFOLK

MATTHEW CASCONE, on behalf of

himself and all others similarly situated,
Index No.:

Plaintiff,
v. CLASS ACTION COMPLAINT

7-ELEVEN, INC.,

Defendant.

(" Plaintiff'
Plaintiff Matthew Cascone ("Plaintiff"), by his undersigned counsel, on behalf of himself

("Defendant"
and all other similarly situated, complaining of defendant 7-Eleven, Inc. or "7-

Eleven"
Eleven"), alleges based upon information and belief, as follows:

PRELIMINARY STATEMENT

1. This is a class action against 7-Eleven for violations of New York General Business

Law § 349, a declaratory judgment, and unjust enrichment.

2. On January 1, 2018, Suffolk County, New York, Local Law No. 27-2016 ("Bag

Store"
Fee Law") went into effect. The Bag Fee Law requires that a "Covered charge a customer

Bag" customer'
a fee of at least five-cents a bag for each "Carryout provided to a customer at the customer's

Fee").1
request ("Bag Fee").

3. The intent of the Bag Fee Law is to reduce the use of Carryout Bags in Suffolk

County, New York.

4. The Bag Fee Law does not require the use of Carryout Bags, and customers, like

Plaintiff, may decline a Carryout Bag at their discretion.

5. Bag Fees are retained by the Covered Store.

1
All terms are used as defined in the Bag Fee Law unless otherwise defined here.

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6. As a convenience store, 7-Eleven is a Covered Store under the Bag Fee Law.

7. In direct contradiction with the express intent of the Bag fee Law, 7-Eleven has a

policy of compelling customers purchasing alcohol to use, and pay for, a Carryout Bag.

JURISDICTION AND VENUE

8. This Court has jurisdiction pursuant to Article 6, Section 7, of the New York State

Constitution and because the acts and omissions giving rise to the cause of action occurred within the

State of New York.

9. Venue is proper in this Court pursuant to CPLR § 503 because Plaintiff is a resident

of Suffolk County, New York.

PARTIES

10. Plaintiff is an individual residing in Bayshore, New York.

11. Defendant 7-Eleven is a Texas corporation. 7-Eleven is registered to do business

in the State of New York. Eight of 7-Eleven's top locations by sales are in Suffolk County, New

York.2
York. The highest grossing 7-Eleven in the country is located in Montauk, New York. The

month.3
Montauk 7-Eleven, alone, sells $100,000 of beer a

STATEMENT OF FACTS

12. In late-February 2018, Plaintiff purchased two cans of Angry Orchard hard cider at

the 7-Eleven located at 128 E. Main Street, Huntington, New York 11743. When Plaintiff was

paying for this purchase, the cashier scanned the cans and placed them in a paper Carryout Bag.

Plaintiff then took the cans out of the Carryout Bag and said that he did not want a bag. The cashier

then told Plaintiff that all alcohol must be in a Carryout Bag when it leaves the store, and placed

the cans Plaintiff was purchasing back in the bag. In demanding Plaintiff use and pay for a

2
https://www.newsday.com/business/7-eleven-turns-90-facts-about-slurpees-stores-headquarters-1.10285729
.com/business/7-eleven-turns-90-facts-about-slu
3 —
https://nypost.com/2014/02/16/montauk-li-hosts-the-largest-grossing-%c2%ad7-eleven-in-the-nation/

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Carryout Bag, the cashier misrepresented the law to Plaintiff. Plaintiff noticed on his receipt that,

despite his attempt to refuse a Carryout Bag, he was charged and paid a five-cent Bag fee.

13. On May 31, 2018, Plaintiff purchased two cans of Angry Orchard at a 7-Eleven

located at 345 Howells Road, Bayshore, New York. Plaintiff again attempted to refuse a Carryout

Bag with his purchase, but was again compelled to use a Carryout Bag and pay a five-cent Bag

fee.

14. Evidently, 7-Eleven has a policy of requiring the use of a Carryout Bag with all

purchases of alcoholic beverages.

CLASS ALLEGATIONS

15. Plaintiff brings this class action under CPLR Article 9 on behalf of a Class

consisting of all customers of 7-Elevens located in Suffolk County, New York who were

compelled to use Carryout Bag and pay a Bag Fee with the purchase of alcoholic beverages (the

"Class"
"Class").

16. The members of the Class are so numerous that joinder of all members is

impracticable. Although the exact number of members of the Class is unknown to Plaintiff at this

time and can only be ascertained through appropriate discovery, Plaintiff reasonably believes there

are thousands of members of the Class.

17. The claims of all Class members present common questions of law or fact, which

predominate over any questions affecting only individual Class members, including:

(a) whether Defendant's conduct violated New York General Business Law § 349;

(b) whether the Class is entitled to injunctive relief;

(c) whether the Class is entitled to declaratory judgment; and

(d) whether Defendant was unjustly enriched.

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18. Plaintiff's claims are typical of the claims of the members of the Class, as Plaintiff

and the other members of the Class sustained damages arising out of the same wrongful conduct

by Defendant as alleged herein.

19. Plaintiff will fairly and adequately protect the interests of the members of the Class

and has retained counsel competent and experienced in class action litigation. Plaintiff has no

interests antagonistic to or in conflict with those of the Class.

20. A class action is superior to all other available methods for the fair and efficient

adjudication of the controversy since joinder of all members of the Class is impracticable.

Furthermore, as the damages suffered by the individual class members may be relatively small,

the expense and burden of individual litigation make it impracticable for members of the Class to

seek redress individually for the wrong done to them. There will be no difficulty in the

management of this action as a class.

FIRST CLAIM FOR RELIEF

(Violation of N.Y. GBL § 349 on behalf of Plaintiff

and the Class against Defendant)

21. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

22. Plaintiff and the other members of the Class have been injured and suffered

damages by violations of § 349(a) of New York General Business Law (the "GBL"), which states:

Deceptive acts or practices in the conduct of any business, trade or commerce or in

the furnishing of any service in this state are hereby declared unlawful.

23. Defendant engaged in acts and practices in the State of New York that were

deceptive or misleading in a material way, and that injured Plaintiff and the other members of the

Class. Such acts and practices were likely to mislead a reasonable consumer acting reasonably

under the circumstances existing at the time.

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24. Defendant's deceptive acts include compelling customers use a Carryout Bag and

pay a Bag Fee when purchasing alcoholic beverages; when in fact a customer is not required to

use a Carryout Bag when purchasing alcoholic beverages, and the intent of the Bag Fee Law is to

reduce the usage of Carryout Bags, not to compel the payment of Bag Fees.

25. Plaintiff and the other members of the Class have been damaged by Defendant's

violations of § 349 of the GBL, for which they seek recovery of the actual, or, alternatively,

statutory, damages they suffered because of Defendant's willful and wrongful violations of § 349,

in an amount to be determined at trial.

26. Plaintiff and the other members of the Class also seek to enjoin Defendant's

practices that violate § 349 of the GBL.

27. Plaintiff and the other members of the Class seek treble damages and an award of

reasonable attorney's fees pursuant to § 349(h) of the GBL.

SECOND CLAIM FOR RELIEF

(Declaratory Judgment on behalf of Plaintiff

and the Class against Defendant)

28. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

29. An actual controversy exists as to whether Defendant may compel customers

purchasing alcoholic beverages to use a Carryout Bag and pay a Bag Fee.

30. Plaintiff and the Class are entitled to declaratory judgment that they may refuse a

Carryout Bag when purchasing alcoholic beverages.

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THIRD CLAIM FOR RELIEF

(Unjust Enrichment on behalf of Plaintiff

and the Class against Defendant)

31. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

32. As detailed above, Plaintiff and the other members of the Class have conferred a

benefit upon Defendant, specifically the Bag Fees to which it would not otherwise have been

entitled.

33. Defendant's retention of the money they received by compelling the payment of

Bag Fees is an unjust enrichment and violates equity and good conscience.

34. As a result of Defendant's unjust enrichment, Plaintiff and the Class have been

damaged in an amount to be determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff on behalf of himself and the Class prays for judgment as follows:

(a) Certifying the proposed Class pursuant to CPLR Article 9;

(b) Designating Plaintiff as representative of the proposed Class and designating

Plaintiff's counsel as Class counsel;

(c) Awarding Plaintiff and the other members of the Class compensatory and/or

statutory damages for the wrongful acts alleged;

(d) Awarding Plaintiff and the other members of the Class treble damages for

Defendant's violations of GBL § 349;

(e) Awarding Plaintiff and the other members of the Class the declaratory relief sought;

(f) Enjoining Defendant from continuing the wrongful acts and practices alleged;

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(g) Awarding Plaintiff and the other members of the Class the costs of the suit and

attorneys'
fees;

(h) Awarding Plaintiff and the other members of the Class pre and post-judgment

interest at the maximum legal rate; and

(i) Awarding Plaintiff and the other members of the Class such other and further relief

as the Court deems just and proper.

Dated: July 2, 2018

MOORE KUEHN, PLLC

/s/Justin Kuehn
Justin A. Kuehn
Fletcher W. Moore
8th
30 Wall Street, flOOr
New York, New York 10005
Tel: (212) 709-8245
jkuehn(almoorekuehn.com
fmoore@moorekuehn.com

Attorneys for Plaintiff and the Class

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