District Court, City & County of Denver, Colorado

Court Address:
1437 Bannock Street
Denver, CO 80202

Plaintiffs:
Debra Gomez, Antonio Esquibel, and Julia Morgan

v.

Defendant:
Nash Finch Company d/b/a Avanza Supermarket COURT USE ONLY

Attorneys for Plaintiffs: Case Number: 08CV10061

Silverman & Olivas, P.C.
Craig Silverman, Attorney Reg. # 11224
David Olivas, Attorney Reg. # 12888
1675 Larimer Street, Suite 735
Denver, Colorado 80202 Division: 9
Phone Number: 303-595-0529
FAX Number: 303-893-3389
E-Mail: silverman@silvermanolivas.com
olivas@silvermanolivas.com
William S. Silverman, Attorney Reg. # 9184
1601 Blake Street, Suite 500
Denver, CO 80202
Phone Number: 303-623-6966
FAX Number: 303-623-4812
E-mail: wss@silverman-law.com
FIRST AMENDED COMPLAINT AND JURY DEMAND

Plaintiffs state as follows:

GENERAL ALLEGATIONS

1. Plaintiff Debra Gomez is a resident of Denver, Colorado. Plaintiff Antonio

Esquibel is a resident of Denver, Colorado. Julia Morgan is a resident of Lakewood, Colorado
who shopped at the Denver Avanza Supermarket.

2. Plaintiffs have been a customer of the Avanza Supermarkets in Colorado,

specifically the Avanza Supermarket located at 1320 S. Federal Boulevard, in the City and
County of Denver and State of Colorado.

3. Defendant, Nash Finch Company, is a corporation with a principal office of 7600

France Avenue South, Edina, Minnesota 55435.
 4. “Avanza Supermarket” is a trade name of Defendant.

5. Defendant is operating grocery stores under the name “Avanza” at 1320 South
Federal Boulevard, in the City and County of Denver, State of Colorado and at 7305 Pecos
Street, Denver, Colorado and at 3635 West 10th Street, Greeley, Colorado.

6. Defendant, through its Avanza Supermarket stores, markets food products and
general merchandise (collectively “grocery items”) to the general public.

7. Defendant’s Avanza stores have a marketing focus on the Hispanic community.

8. Defendant advertised grocery items in newspaper advertising inserts, store

circulars, brochures, on television, on radio, on the internet, and on banners (collectively referred
to as “sales brochures”).

9. Defendant displayed, printed and distributed sales brochures to members of the

public which sales brochures describe the purported sale prices of various grocery items.

10. Defendant printed, displayed, and distributed to members of the public sales
brochures which stated purported prices of various grocery items at Avanza and compared those
purported prices to the price of the same items at competing stores, showing the purported
savings in cost for the items at Avanza.

11. Defendant posted signs on its store shelves which purported to state the prices of
the various grocery items.

12. In actuality, Defendant did not charge its Avanza customers the prices for grocery
items shown on its shelves and in its sales brochures. At its cash registers Avanza added 10% to
the stated or advertised cost of its grocery items.

13. Defendant’s practices described in the preceding paragraphs were in effect at the
time Plaintiffs purchased grocery items at Avanza.

14. Information regarding the 10% surcharge was disclosed in the Avanza stores and
sales brochures in manners which were inconspicuous, misleading, confusing and deceptive.

15. To the extent Defendant displayed signs of their policy, the font was too small
and misleading and only appeared sporadically in the store and did not appear in Spanish on
customer receipts.

16. Defendant not only added 10% to every customer’s bill, it also rounded up the
percentage in situations where such rounding up costs extra money to the customers.

17. For example, if a grocery item was listed on the Avanza shelves at four for $1.00,
the customer buying one such product was charged $.25 plus $.03 for a total of $.28 (a 12%
surcharge).

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 18. As another example, when an Avanza grocery item was marked as 2 for $.89 and
one such item was purchased, Defendant rounded up from $.445 cents to make the single item
ring up at $.45 cents and then, when the ten percent surcharge was added, it was again rounded
up to make the total purchase price of $.50 instead of the $.49 the item should have cost inclusive
of the 10% surcharge.

19. Certain grocery items are marked by the manufacturer (e.g. Frito Lay North
America, Inc.) as costing a specific price such as $.99 and this is generally the highest price paid
by customers at convenience stores, gas stations and competing markets throughout America for
said product. However, at the Avanza Supermarket, when customers took the product marked
$.99 by the manufacturer to the Avanza Supermarket cash register, the customer was charged
$1.09 when the 10% surcharge was added.

20. With respect to grocery items which were subject to sales tax, the sales tax was
computed on the total price after the 10% surcharge increase, thereby exacerbating the effect of
the surcharge.

21. These marketing techniques employed by Defendant confused and tricked

shoppers into thinking they were paying a lower price for the grocery items than was true.

FIRST CLAIM FOR RELIEF

(Colorado Consumer Protection Act)

22. Plaintiffs incorporate by reference all of the allegations in paragraphs 1 through

21 above.

23. Defendant advertised its grocery items with the intent not to sell them as
advertised.

24. Defendant made false or misleading statements of fact concerning the price of its
grocery items.

25. Defendant has engaged and is engaging in unfair and deceptive trade practices.

26. Defendant engaged in unfair and deceptive trade practices in the course of its
business.

27. Defendant’s unfair and deceptive trade practices have significantly impacted and
do significantly impact the public as actual or potential consumers of Defendant’s goods.

28. Plaintiffs were an actual consumer and purchaser of Defendant’s goods.

29. Plaintiffs were deceived by Defendant’s unfair and deceptive trade practices.

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 30. Defendant’s unfair and deceptive trade practices caused actual damages and
losses to the Plaintiffs.

31. Defendant engaged in its deceptive trade practices in bad faith.

32. Pursuant to C.R.S. 6-1-113 Defendant is liable to each Plaintiff for the greater of
$500 or three times the Plaintiffs’ actual damages plus the costs of this action and reasonable
attorney fees.

SECOND CLAIM FOR RELIEF

(Common Law Unfair Trade Practices)

33. Plaintiffs incorporate herein by reference all allegations in paragraphs 1 through

32 above.

34. Defendant’s actions constituted unfair trade practices.

35. Defendant’s actions were attended by circumstances of fraud, malice, or willful

and wanton conduct.

THIRD CLAIM FOR RELIEF

(Intentional False Representation – Fraud)

36. Plaintiffs incorporate herein by reference all allegations contained in paragraphs 1

through 35 above.

37. Defendant made false and deceptive representations of past and present facts with
respect to its prices.

38. The false and deceptive facts were material.

39. At the time the representations were made, Defendant knew the representations
were false and deceptive.

40. Defendant made the representations with the intent that Plaintiffs would rely on
the representations.

41. Plaintiffs relied on the representations.

42. Plaintiffs’ reliance was reasonable.

43. Plaintiffs suffered damage as a result of their reliance on Defendant’s false

representations.

44. Defendant’s actions were attended by circumstances of fraud, malice, or willful

and wanton conduct.

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 45. Defendant’s conduct constituted bait advertising in violation of C.R.S. 18-5-303.

46. Plaintiffs are a victim of Defendant’s bait advertising.

47. Defendant’s conduct constituted fraud in effecting sales in violation of C.R.S. 18-
5-301.

48. Plaintiffs are a victim of Defendant’s fraud in effecting sales.

FOURTH CLAIM FOR RELIEF

(Negligent Misrepresentation)

49. Plaintiff s incorporate herein by reference all allegations contained in paragraphs

1 through 35 above.

50. Defendant gave false pricing information to Plaintiffs by stating one price for
grocery items in its sales brochures and on its shelves but charging a higher price at the cash
register.

51. Defendant gave such false information to the Plaintiffs in the course of
Defendant’s business.

52. Defendant gave the information to the Plaintiffs for the use of Plaintiffs in the
conduct of a business transaction.

53. Defendant was negligent in communicating the false information and by not
making clear its sales promotion and pricing policies.

54. Defendant gave the false information to Plaintiffs realizing that Plaintiffs would
act on the reliance of the information.

55. Plaintiffs reasonably relied on the false information supplied by the Defendant.

56. Plaintiffs’ reliance on the false information supplied by Defendant caused damage
to Plaintiffs.

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 FIFTH CLAIM FOR RELIEF
(Theft – Rights in Stolen Property)

57. Plaintiffs incorporate by reference herein all of the allegations contained in

paragraphs 1 through 56 above.

58. Defendant knowingly obtained money from Plaintiffs by deception.

59. Defendant intended to and has retained the money obtained from Plaintiffs by
deception.

60. Pursuant to C.R.S. 18-4-405, Defendant is required to be divested of Plaintiffs’

money.

61. Pursuant to C.R.S. 18-4-405, Defendant is required to pay Plaintiffs the greater of
two hundred dollars or treble damages for each event when Defendant knowingly obtained
money from Plaintiffs by deception.

62. Pursuant to C.R.S. 18-4-405, Defendant is required to pay the costs of this action.

63. Pursuant to C.R.S. 18-4-405, Defendant is required to pay the reasonable attorney
fees of Plaintiffs’ counsel.

PLAINTIFFS HEREBY DEMANDS A JURY TRIAL.

WHEREFORE, the Plaintiffs request the Court grant an award of damages in an amount
to be proven at trial, damages as provided by statute, pre-judgment and post-judgment interest,
costs, attorneys’ fees, treble damages, and such other relief as may be available at law or in
equity.

Dated this 8th day of December, 2008.

s/ William S. Silverman________________ SILVERMAN & OLIVAS, P.C.

William S. Silverman, #9184

By:s/ Craig Silverman __________________

Craig Silverman, #11224

By:s/ David Olivas _____________________

David Olivas, #12888

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Plaintiffs’ addresses:

Debra Gomez
3755 West Union Avenue
Denver, CO 80236

Antonio Esquibel
1388 South Zuni Street
Denver, CO 80223

Julia Morgan
1300 Balsam Street, Unit E
Lakewood, CO 80214