throbber
Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 1 of 36 Page ID #:1
`
`Jonathan Shub (CA Bar #237708)
`Kevin Laukaitis*
`KOHN, SWIFT & GRAF, P.C.
`1600 Market Street, Suite 2500
`Philadelphia, PA 19103
`Tel: 215-238-1700
`Email: jshub@kohnswift.com
`klaukaitis@kohnswift.com
`
`Attorneys for Plaintiff and the Class
`[Additional Counsel Listed on Signature Page]
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`MICHELENE COLETTE and
`LETICIA SHAW, individually and on
`behalf of all others similarly situated,
`
`Civil Action
`No.:__________________
`
`Plaintiffs,
`
`CLASS ACTION COMPLAINT
`
`v.
`
`JURY TRIAL DEMANDED
`
`CV SCIENCES, INC., a California
`Corporation,
`
`Defendant.
`
`CLASS ACTION COMPLAINT
`
`Plaintiffs Michelene Colette and Leticia Shaw (collectively, “Plaintiffs”),
`
`through their undersigned attorneys, Barbat, Mansour & Suciu PLLC, Kohn, Swift
`
`& Graf, P.C. and Greg Coleman Law PC, brings this Class Action Complaint
`
`against Defendant CV Sciences, Inc. (“Defendant”), individually and on behalf of
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 2 of 36 Page ID #:2
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`all others similarly situated, and complain and allege upon personal knowledge as
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`to themselves and their own acts and experiences and, as to all other matters, upon
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`information and belief, including investigation conducted by their attorneys:
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`NATURE OF THE ACTION
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`1.
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`This is a civil class action brought individually by Plaintiffs on behalf
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`of consumers who purchased Defendant’s “CBD Sprays”, “CBD Oil Drops”,
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`“CBD Gummies”, “CBD Capsules”, and “CBD Softgels” (collectively the “CBD
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`Products” or the “Products”)1, all of which are promoted as products containing
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`cannabidiol (CBD), for personal use and not for resale.
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`2.
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`3.
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`Defendant’s Products, however, are illegal to sell.
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`Defendant formulates, manufactures, advertises, and sells the CBD
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`Products throughout the United States, including in the State of California and
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`Arizona.
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`4.
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`The CBD (cannabidiol) Product market is a multibillion-dollar business
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`enterprise that is lucrative for its market participants and is expected to further
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`expand into a $16 billion-dollar industry by 2025.2
`
`1 The Products contain numerous different flavors and dosages.
`
`2 https://www.forbes.com/sites/irisdorbian/2019/03/12/cbd-market-could-pull-in-16-bln-by-
`2025-says-study/#69e764bb3efd Last Visited November 30, 2019
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 3 of 36 Page ID #:3
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`5. With knowledge of growing consumer demand for CBD Products,
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`Defendant has intentionally marketed and sold illegal CBD products.
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`6.
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`Defendant’s multiple and prominent systematic mislabeling of the
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`Products form a pattern of unlawful and unfair business practices that harms the
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`public.
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`7.
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`Accordingly, Plaintiffs and each of the Class members have suffered an
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`injury in fact caused by the false, fraudulent, unfair, deceptive, and misleading
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`practices as set forth herein, and seek compensatory damages and injunctive relief.
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`8.
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`Plaintiffs bring this suit to halt the unlawful sales and marketing of the
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`CBD Products by Defendant and for damages she sustained as a result. Given the
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`massive quantities of the Products sold all over the country, this class action is the
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`proper vehicle for addressing Defendant’s misconduct and for attaining needed relief
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`for those affected.
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`9.
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`Plaintiffs and each of the Class members accordingly suffered an injury
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`in fact caused by the false, fraudulent, unfair, deceptive, and misleading practices set
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`forth herein, and seek compensatory damages, statutory damages, and declaratory
`
`and injunctive relief.
`
`JURISDICTION AND VENUE
`
`10.
`
`This Court has original jurisdiction over this controversy pursuant to 28
`
`U.S.C. § 1332(d). The amount
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`in controversy in this class action exceeds
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 4 of 36 Page ID #:4
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`$5,000,000, exclusive of interest and costs, and there are numerous Class members
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`who are citizens of states other than Defendant’s state of citizenship.
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`11.
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`This Court has personal jurisdiction over Defendant in this matter. The
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`acts and omissions giving rise to this action occurred in the state of California.
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`Defendant has been afforded due process because it has, at all times relevant to this
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`matter,
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`individually or
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`through its
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`agents,
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`subsidiaries, officers
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`and/or
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`representatives, operated, conducted, engaged in and carried on a business venture
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`in this state and/or maintained an office or agency in this state, and/or marketed,
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`advertised, distributed and/or sold products, committed a statutory violation within
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`this state related to the allegations made herein, and caused injuries to Plaintiff and
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`putative Class Members, which arose out of the acts and omissions that occurred in
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`the state of California, during the relevant time period, at which time Defendant was
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`engaged in business activities in the state of California.
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`12. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) and
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`(c) because a substantial part of the events or omissions giving rise to Plaintiff’s
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`claims occurred in this District and because Defendant transacts business and/or has
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`agents within this District and has intentionally availed itself of the laws and markets
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`within this district.
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`PARTIES
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`13.
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`Plaintiff Michelene Colette is a citizen of Arizona who resides in
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`Oracle, Arizona.
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`Plaintiff purchased Defendant’s CBD Spray product from
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`Defendant’s CBD sales representative in New York.
`
`Plaintiff purchased
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`Defendant’s CBD Spray approximately two years ago for approximately $60.
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`If
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`Plaintiff knew the Products were not legally sold in the United States, Plaintiff would
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`have not purchased them.
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`14.
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`Plaintiff Leticia Shaw is a citizen of California who resides in Los
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`Angeles, California. On September 27, 2018, Plaintiff Shaw purchased Defendant’s
`
`CBD Oil
`
`Softgels
`
`15mg Gold
`
`Formula
`
`from Defendant’s website,
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`https://pluscbdoil.com/, for a total cost of $90.53, including tax and shipping.
`
`If
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`Plaintiff knew the Products were not legally sold in the United States, Plaintiff would
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`have not purchased them.
`
`15. Defendant CV Sciences, Inc. is a California corporation with its
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`principal place of business at 10070 Barnes Canyon Rd., San Diego, CA 92121.
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`FACTUAL ALLEGATIONS
`
`16. At all relevant
`
`times, Defendant has marketed its Products in a
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`consistent and uniform manner. Defendant sells the Products in all 50 states on its
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`website and through various distributors and sales channels.
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 6 of 36 Page ID #:6
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`DEFENDANT’S ILLEGAL PRODUCTS
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`17. On November 22, 2019, the United States Food & Drug Administration
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`sent roughly 15 Warning Letters discussing numerous violations of CBD products,
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`including but not limited to; Dietary Supplement Labeling, Unapproved New Drugs,
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`Misbranded Drugs, Adulterated Human Foods, Unapproved New Animal Drugs,
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`and Adultered Animal Foods. All of these violations of the Food, Drug and
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`Cosmetic Act make CBD products illegal to sell.3
`
`Dietary Supplement Labeling
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`18. All of Defendant’s Products are mislabeled as Dietary Supplements or
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`contain the illegal dietary ingredient CBD. Every product contains a Supplement
`
`Facts section on the back of the container which is reserved for dietary
`
`supplements and explicitly state “Dietary Supplement” on the front of the
`
`packaging:
`
`3 See https://www.fda.gov/news-events/press-announcements/fda-warns-15-companies-illegally-
`selling-various-products-containing-cannabidiol-agency-
`details?utm_campaign=112519_Statement_FDA%20warns%20companies%20for%20illegally%
`20selling%20various%20products%20containing%20cannabidiol&utm_medium=email&utm_so
`urce=Eloqua Last visited November 27, 2019.
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`19.
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`The FDA has stated that CBD may not be labeled as a dietary
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`ingredient or legally be contained within a dietary supplement4:
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`4 See https://www.fda.gov/consumers/consumer-updates/what-you-need-know-and-what-were-
`working-find-out-about-products-containing-cannabis-or-cannabis
`Last Visited November 27, 2019.
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 9 of 36 Page ID #:9
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`20. Defendant’s Products cannot be dietary supplements because they do
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`not meet the definition of a dietary supplement under section 201(ff) of the FD&C
`
`Act, 21 U.S.C. 321(ff). The FDA has concluded, based on available evidence, that
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`CBD products are excluded from the dietary supplement definition under sections
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`201(ff)(3)(B)(i) and (ii) of the FD&C Act, 21 U.S.C. 321(ff)(3)(B)(i) and (ii).
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`Under those provisions, if an article (such as CBD) is an active ingredient in a drug
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`product that has been approved under section 505 of the FD&C Act, 21 U.S.C.
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`355, or has been authorized for investigation as a new drug for which substantial
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`clinical investigations have been instituted and for which the existence of such
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`investigations has been made public, then products containing that substance are
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`outside the definition of a dietary supplement.5 There is an exception if the
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`5 CBD is the active ingredient in the approved drug product Epidiolex. Furthermore, the
`existence of substantial clinical investigations regarding CBD has been made public. For
`example, two such substantial clinical investigations include GW Pharmaceuticals’
`investigations regarding Sativex and Epidiolex. (See Sativex Commences US Phase II/III
`Clinical Trial in Cancer PainExternal Link Disclaimer and GW Pharmaceuticals Receives
`Investigational New Drug (IND) from FDA for Phase 2/3 Clinical Trial of Epidiolex in the
`Treatment of Dravet SyndromeExternal Link Disclaimer). FDA considers a substance to be
`“authorized for investigation as a new drug” if it is the subject of an Investigational New Drug
`
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 10 of 36 Page ID #:10
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`substance was “marketed as” a dietary supplement or as a conventional food before
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`the new drug investigations were authorized; however, based on the evidence
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`available to the FDA, the FDA has concluded that this is not the case for
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`CBD. The FDA is not aware of any evidence that would call into question its
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`current conclusion that CBD products are excluded from the dietary supplement
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`definition under sections 201(ff)(3)(B)(i) and (ii) of the FD&C Act.
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`Sublingual Delivery System
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`21. Defendant’s Spray product directs consumers to spray the CBD product
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`in mouth and swish around for a specific amount of time:
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`See https://pluscbdoil.com/cbd-product/cbd-oil-spray/ Last visited November 27,
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`2019.
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`22.
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`The FD&C Act defines the term “dietary supplement” in section
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`201(ff)(2)(A)(i) of the FD&C Act, 21 U.S.C. 321(ff)(2)(A)(i), as a product that is
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`“intended for ingestion.” Because sublingual products are intended to enter the
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`body directly through the skin or mucosal tissues, they are not intended for
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`application (IND) that has gone into effect. Under 21 CFR 312.2, unless a clinical investigation
`meets the limited criteria in that regulation, an IND is required for all clinical investigations of
`products that are subject to section 505 of the FD&C Act.
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`ingestion. Therefore, the product bears directions for use as a sublingual product,
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`such product does not meet the definition of a dietary supplement under the FD&C
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`Act.
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`23. Defendant’s conduct is also deceptive, unfair, and unlawful in that it
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`violates the prohibition against the sale of adulterated and misbranded products
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`under California’s Sherman Laws, which adopt the federal labeling regulations as
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`the food labeling requirements of the state. Cal. Health & Safety Code § 110100.
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`24.
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`The introduction of adulterated and misbranded food into interstate
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`commerce is prohibited under the FDCA and the parallel state statute cited in this
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`Class Action Complaint.
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`25.
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`Plaintiffs and Class Members would not have purchased the Products
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`or would have paid less for the Products if they were aware of the misleading
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`labeling of the Products by Defendant.
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`26. Defendant intended for Plaintiffs and the Class members to be deceived
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`or misled.
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`27. Defendant’s deceptive and misleading practices proximately caused
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`harm to the Plaintiffs and the Class.
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`28.
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`Plaintiffs and Class members would not have purchased the Products,
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`or would have not paid as much for the Products, had they known the truth about the
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`mislabeled and falsely advertised Products.
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 12 of 36 Page ID #:12
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`CLASS ACTION ALLEGATIONS
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`29.
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`Plaintiffs seek to represent a class defined as all persons in the United
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`States who purchased the Products during the class period (the “Class”). Excluded
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`from the Class are Defendant, and its affiliates, employees, officers and directors,
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`persons or entities that purchased the Products for resale, and the Judge(s) assigned
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`to this case. Plaintiffs reserve the right to seek narrower multi-state subclasses as
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`appropriate.
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`30.
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`Plaintiff Shaw also seeks to represent a Subclass of all persons in
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`California who purchased the Products during the class period (the “California
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`Subclass”). Excluded from the California Subclass are Defendant, its affiliates,
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`employees, officers and directors, persons or entities that purchased the Products for
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`resale, and the Judge(s) assigned to this case.
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`31.
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`Plaintiff Colette also seeks to represent a Subclass of all persons in
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`Arizona who purchased the Products during the class period (the “Arizona
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`Subclass”). Excluded from the Arizona Subclass are Defendant, its affiliates,
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`employees, officers and directors, persons or entities that purchased the Products for
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`resale, and the Judge(s) assigned to this case.
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`32.
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`Plaintiffs further reserve the right to redefine the Class(es), and/or
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`requests for relief.
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`33. Certification of Plaintiffs’ claims
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`for class-wide treatment
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`is
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`appropriate because Plaintiffs can prove the elements of their claims on a class-wide
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`basis using the same evidence as would be used to prove those elements in individual
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`actions alleging the same claims.
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`34.
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`The members of the proposed Class(es) are so numerous that joinder of
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`all members is impracticable.
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`35.
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`The exact number of Class members is unknown. Due to the nature of
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`the trade and commerce involved, as well as the number of online and direct
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`complaints, Plaintiffs believe the Class consists of thousands of consumers.
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`36. Common questions of law and fact affect the right of each Class
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`member, and a common relief by way of damages is sought for Plaintiffs and Class
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`members.
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`37. Common questions of law and fact that affect Class members include,
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`but are not limited to:
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`a. Whether the Products, when used by consumers in a normal and
`customary manner and/or in accordance with Defendant’s suggested
`use, works as advertised, marketed, and conveyed to consumers;
`
`b. Whether, in the course of business, Defendant represented that the
`Products have characteristics, uses, benefits, or qualities that they do
`not have when used by consumers in a normal and customary manner
`and/or in accordance with Defendant’s suggested use;
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`c. Whether the claims Defendant made and is making regarding the
`Products are unfair or deceptive; specifically, whether the Products
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`were illegally labeled as dietary supplements with illegal delivery
`instructions;
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`d. Whether Defendant knew at the time the consumer transactions took
`place that consumers would not receive the promised benefits of the
`Products that Defendant was claiming they would receive;
`
`in
`e. Whether Defendant knowingly made misleading statements
`connection with consumer transactions that reasonable consumers were
`likely to rely upon to their detriment;
`
`the
`should have known that
`f. Whether Defendant knew or
`representations and advertisements regarding the Products were
`unsubstantiated, false, and misleading;
`
`g. Whether Defendant has breached express and implied warranties in the
`sale and marketing of the Products;
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`h. Whether Defendant’s conduct violates public policy;
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`i. Whether Defendant’s acts and omissions violate California law;
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`j. Whether Defendant’s act and omissions violate the Arizona consumer
`protection law;
`
`k. Whether Defendant has been unjustly enriched by the sale of the
`Products to the Plaintiffs and the Class Members;
`
`l. Whether Plaintiffs and the Class Members did not receive the benefit
`of their bargain when purchasing the Products;
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`m. Whether the Plaintiffs and the Class Members suffered monetary
`damages, and, if so, what is the measure of those damages;
`
`n. Whether Plaintiffs and the Class Members are entitled to an injunction,
`damages,
`restitution, equitable relief, and other
`relief deemed
`appropriate, and, if so, the amount and nature of such relief.
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`38. Defendant engaged in a common course of conduct giving rise to the
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`legal rights sought to be enforced by Plaintiffs, on behalf of themselves and the other
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`Class members. Similar or identical statutory and common law violations, business
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`practices, and injuries are involved.
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`Individual questions, if any, are pale by
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`comparison, in both quality and quantity, to the numerous common questions that
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`dominate this action.
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`39. Additionally, the factual basis of Defendant’s conduct is common to all
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`Class members and represents a common thread of misconduct resulting in injury
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`and damages to all members of the Class.
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`40.
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`The named Plaintiffs will fairly and adequately assert and protect the
`
`interests of the Class. Specifically, they have hired attorneys who are experienced
`
`in prosecuting class action claims and will adequately represent the interests of the
`
`Class; and they have no conflict of interests that will interfere with the maintenance
`
`of this class action.
`
`a. The common questions of law and fact set forth herein predominate
`over any questions affecting only individual Class members;
`
`b. The Class is so numerous as to make joinder impracticable but not so
`numerous as to create manageability problems;
`
`c. There are no unusual legal or factual issues which would create
`manageability problems, and depending on discovery, manageability
`will not be an issue as much information is solely in Defendant’s
`possession;
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 16 of 36 Page ID #:16
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`d. Prosecution of separate actions by individual members of the Class
`would create a risk of inconsistent and varying adjudications against
`Defendant when confronted with incompatible standards of conduct;
`
`e. Adjudications with respect to individual members of the Class could,
`as a practical matter, be dispositive of any interest of other members
`not parties to such adjudications, or substantially impair their ability to
`protect their interests; and
`
`f. The claims of the individual Class members are small in relation to the
`expenses of litigation, making a Class action the only procedure in
`which Class members can, as a practical matter, recover. However, the
`claims of individual Class members are collectively large enough to
`justify the expense and effort in maintaining a class action.
`
`CAUSES OF ACTION
`
`COUNT I
`California’s Unfair Competition Law
`Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”)
`(On Behalf of the California Subclass)
`
`41.
`
`Plaintiffs re-allege and incorporate by reference the allegations
`
`contained in Paragraphs 1 through 40, as though set forth fully herein.
`
`42.
`
`Plaintiff Shaw brings this claim individually and on behalf of the
`
`members of the proposed California Subclass against Defendant.
`
`43.
`
`The UCL prohibits any “unlawful, unfair or fraudulent business act or
`
`practice.” Cal. Bus. & Prof. Code § 17200.
`
`44.
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`The acts, omissions, misrepresentations, practices, and non-disclosures
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`of Defendant as alleged herein constitute business acts and practices.
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 17 of 36 Page ID #:17
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`45. Unlawful: The acts alleged herein are “unlawful” under the UCL in
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`that they violate at least the following laws:
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`The False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq.;
`
`The Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.;
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`The Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq.;
`
`a.
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`b.
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`c.
`and
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`The California Sherman Food, Drug, and Cosmetic Law, Cal. Health &
`d.
`Safety Code §§ 110100 et seq.
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`46. Unfair: Defendant’s conduct with respect to the labeling, advertising,
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`and sale of the Products was “unfair” because Defendant’s conduct was immoral,
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`unethical, unscrupulous, or substantially injurious to consumers and the utility of
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`their conduct, if any, does not outweigh the gravity of the harm to their victims.
`
`47. Defendant’s conduct with respect to the labeling, advertising, and sale
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`of the Products was and is also unfair because it violates public policy as declared
`
`by specific constitutional, statutory or regulatory provisions, including but not
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`limited to the applicable sections of: the Consumers Legal Remedies Act, the False
`
`Advertising Law, the Federal Food, Drug, and Cosmetic Act, and the California
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`Sherman Food, Drug, and Cosmetic Law.
`
`48. Defendant’s conduct with respect to the labeling, advertising, and sale
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`of the Products was and is unfair because the consumer injury was substantial, not
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 18 of 36 Page ID #:18
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`outweighed by benefits to consumers or competition, and not one consumer
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`themselves could reasonably have avoided.
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`49.
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`Fraudulent: A statement or practice is “fraudulent” under the UCL if it
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`is likely to mislead or deceive the public, applying an objective reasonable consumer
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`test.
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`50. As set forth herein, Defendant’s claims relating the ingredients stated
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`on the Products’ labeling and moreover that the Products were labeled as illegal
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`dietary supplements with illegal delivery instruction is likely to mislead reasonable
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`consumers to believe the product is legal to purchase.
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`51. Defendant profited from its sale of the falsely, deceptively, and
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`unlawfully advertised and packaged Products to unwary consumers.
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`52.
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`Plaintiff and California Subclass Members are likely to continue to be
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`damaged by Defendant’s deceptive trade practices, because Defendant continues to
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`disseminate misleading information on the Products’ packaging. Thus, injunctive
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`relief enjoining Defendant’s deceptive practices is proper.
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`53. Defendant’s conduct caused and continues to cause substantial injury
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`to Plaintiff and the other California Subclass Members. Plaintiff has suffered injury
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`in fact as a result of Defendant’s unlawful conduct.
`
`54.
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`In accordance with Bus. & Prof. Code § 17203, Plaintiff seeks an order
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`enjoining Defendant from continuing to conduct business through unlawful, unfair,
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 19 of 36 Page ID #:19
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`and/or fraudulent acts and practices, and to commence a corrective advertising
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`campaign.
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`55.
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`Plaintiff and the California Subclass also seek an order for and
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`restitution of all monies from the sale of the Products, which were unjustly acquired
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`through acts of unlawful competition.
`
`COUNT II
`California’s False Advertising Law
`Cal. Bus. & Prof. Code § 17500 (“FAL”)
`(On Behalf of the California Subclass)
`
`56.
`
`Plaintiffs reallege and incorporate by reference paragraphs 1 through
`
`40 as if fully set forth herein.
`
`57.
`
`Plaintiff Shaw brings this claim individually and on behalf of the
`
`members of the proposed California Subclass against Defendant.
`
`58.
`
`The FAL provides that “[i]t
`
`is unlawful for any person, firm,
`
`corporation or association, or any employee thereof with intent directly or indirectly
`
`to dispose of real or personal property or to perform services” to disseminate any
`
`statement “which is untrue or misleading, and which is known, or which by the
`
`exercise of reasonable care should be known, to be untrue or misleading.” Cal. Bus.
`
`& Prof. Code § 17500.
`
`//
`
`//
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 20 of 36 Page ID #:20
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`59.
`
`It is also unlawful under the FAL to disseminate statements concerning
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`property or services that are “untrue or misleading, and which is known, or which
`
`by the exercise of reasonable care should be known, to be untrue or misleading.” Id.
`
`60. As alleged herein, the advertisements, labeling, policies, acts, and
`
`practices of Defendant relating to the Products misled consumers acting reasonably
`
`as to the ingredients and effectiveness of the Products.
`
`61.
`
`Plaintiff suffered injury in fact as a result of Defendant’s actions as set
`
`forth herein because she purchased the Products in reliance on Defendant’s false and
`
`misleading labeling claims that the Products, among other things, that the Products
`
`contained the ingredients stated on the Products’ labeling and moreover that the
`
`Products were labeled as legal dietary supplements with legal delivery instruction as
`
`claimed on the Products’ labeling and Defendant’s website.
`
`62. Defendant’s business practices as alleged herein constitute deceptive,
`
`untrue, and misleading advertising pursuant to the FAL because Defendant has
`
`advertised the Products in a manner that is untrue and misleading, which Defendant
`
`knew or reasonably should have known, and omitted material information from its
`
`advertising.
`
`63. Defendant profited from its sale of the falsely and deceptively
`
`advertised Products to unwary consumers.
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`

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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 21 of 36 Page ID #:21
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`64. As a result, Plaintiff, the California Subclass, and the general public are
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`entitled to injunctive and equitable relief, restitution, and an order for the
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`disgorgement of the funds by which Defendant was unjustly enriched.
`
`65.
`
`Pursuant to Cal. Bus. & Prof. Code § 17535, Plaintiff, on behalf of
`
`herself and the California Subclass, seeks an order enjoining Defendant from
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`continuing to engage in deceptive business practices, false advertising, and any other
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`act prohibited by law, including those set forth in this Complaint.
`
`COUNT III
`California’s Consumer Legal Remedies Act
`Cal. Civ. Code § 1750 et seq. (“CLRA”)
`(On Behalf of the California Subclass)
`
`66.
`
`Plaintiffs reallege and incorporate by reference paragraphs 1 through
`
`40 as if fully set forth herein.
`
`67.
`
`Plaintiff Shaw brings this claim individually and on behalf of the
`
`members of the proposed California Subclass against Defendant.
`
`68.
`
`The CLRA prohibits deceptive practices in connection with the conduct
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`of a business that provides goods, property, or services primarily for personal,
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`family, or household purposes.
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`69. Defendant’s false and misleading labeling and other policies, acts, and
`
`practices were designed to, and did, induce the purchase and use of the Products for
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 22 of 36 Page ID #:22
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`personal, family, or household purposes by Plaintiff and California Subclass
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`Members, and violated and continue to violate the following sections of the CLRA:
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`a. § 1770(a)(5): representing that goods have characteristics, uses, or
`benefits which they do not have;
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`b. § 1770(a)(7): representing that goods are of a particular standard,
`quality, or grade if they are of another;
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`c. § 1770(a)(9): advertising goods with intent not
`advertised; and
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`to sell
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`them as
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`d. § 1770(a)(16): representing the subject of a transaction has been
`supplied in accordance with a previous representation when it has not.
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`70. Defendant profited from the sale of the falsely, deceptively, and
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`unlawfully advertised Products to unwary consumers.
`
`71. Defendant’s wrongful business practices constituted, and constitute, a
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`continuing course of conduct in violation of the CLRA.
`
`72.
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`Pursuant to the provisions of Cal. Civ. Code § 1782(a), Plaintiff will
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`provide a letter to Defendant concurrently with the filing of this Class Action
`
`Complaint or shortly thereafter with notice of its alleged violations of the CLRA,
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`demanding that Defendant correct such violations, and providing it with the
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`opportunity to correct its business practices. If Defendant does not thereafter correct
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`its business practices, Plaintiff will amend (or seek leave to amend) the complaint to
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`add claims for monetary relief, including restitution and actual damages under the
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`Consumers Legal Remedies Act.
`
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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 23 of 36 Page ID #:23
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`73.
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`Pursuant to California Civil Code § 1780, Plaintiff seeks injunctive
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`relief, her reasonable attorney fees and costs, and any other relief that the Court
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`deems proper.
`
`COUNT IV
`Breach of Express Warranties
`Cal. Com. Code § 2313(1)
`(On Behalf of the California Subclass)
`
`74.
`
`Plaintiffs reallege and incorporate by reference paragraphs 1 through
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`40 as if fully set forth herein.
`
`75.
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`Plaintiff Shaw brings this claim individually and on behalf of the
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`members of the proposed California Subclass against Defendant.
`
`76.
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`Through the Products’
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`labels and advertising, Defendant made
`
`affirmations of fact or promises, or description of goods, described above, which
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`were “part of the basis of the bargain,” in that Plaintiff and the California Subclass
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`purchased the Products in reasonable reliance on those statements. Cal. Com. Code
`
`§ 2313(1).
`
`77. Defendant breached the express warranties by selling Products that do
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`not and cannot provide the promised benefits and moreover by selling Products that
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`are illegally labeled as dietary supplements with illegal delivery instructions.
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`

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`Case 2:19-cv-10227-CAS-JEM Document 1 Filed 12/03/19 Page 24 of 36 Page ID #:24
`
`78.
`
`Plaintif

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