Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 1 of 40 Page ID #:53
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`
`Todd M. Friedman (216752)
`Meghan E. George (274525)
`LAW OFFICES OF TODD M. FRIEDMAN, P.C.
`21550 Oxnard Street, Suite 780
`Woodland Hills, CA 91367
`Phone: 323-306-4234
`Fax: 866-633-0228
`tfriedman@attorneysforconsumers.com
`mgeorge@attorneysforconsumers.com
`
`Reuben D. Nathan, Esq. (208436)
`NATHAN & ASSOCIATES, APC
`2901 W. Coast Hwy., Suite 200
`Newport Beach, CA 92663
`Phone: 949-270-2798
`rnathan@nathanlawpractice.com
`
`Attorneys for Plaintiffs, NARGUESS NOOHI, ROBERT BRYCE STEWART III, and
`all others similarly situated
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`NARGUESS NOOHI and ROBERT
`BRYCE STEWART III, individually, and
`on behalf of other members of the general
`public similarly situated,
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`
`
`
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`THE KRAFT HEINZ COMPANY and
`KRAFT HEINZ INGREDIENTS CORP.,
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`
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`Plaintiffs,
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`vs.
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`Defendants.
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` Case No. 2:19-cv-10658-DSF-SK
`
`
`FIRST AMENDED CLASS ACTION
`COMPLAINT
`
`(1) Violation of Unfair Competition Law
`(Cal. Business & Professions Code
`§§ 17500, et seq.) and
`(2) Violation of Unfair Competition Law
`(Cal. Business & Professions Code
`§§ 17200, et seq.)
`(3) Common Law Fraud
`(4) Unjust Enrichment
`(5) Negligent Misrepresentation
`(6) Breach of Express Warranty
`(7) Violation of New York GBL § 349.
`(8) Violation of New York GBL § 350.
`(9) Violation of New York GBL § 350(a)(1).
`(10) Violation of Texas Deceptive Trade
`Practices Act (Tex. Bus. & Com. Code §§
`17.46, et seq.)
`(11) Violation of Georgia Uniform Deceptive
`Trade Practices Act (OCGA §§ 10-1-372,
`et seq.)
`
`
`
`Jury Trial Demanded
`
`
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`
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`CLASS ACTION COMPLAINT – PAGE 1
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 2 of 40 Page ID #:54
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`Plaintiffs Narguess Noohi (“Plaintiff Noohi”) and Robert Bryce Stewart III (“Plaintiff
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`Stewart”), individually and on behalf of all other members of the public similarly situated, allege
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`as follows:
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`PRELIMINARY STATEMENTS
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`1.
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`This is an action for damages, injunctive relief, and any other available legal or
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`equitable remedies, for violations of the California Unfair Competition Law (Cal. Business &
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`Professions Code §§ 17500, et seq.), the California Unfair Competition Law (Cal. Business &
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`Professions Code §§ 17200, et seq.), common law fraud, unjust enrichment, negligent
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`misrepresentation, breach of express warranty, the New York General Business Law (“GBL”) §
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`349, the New York GBL § 350, the New York GBL § 350(a)(1), the Texas Deceptive Trade
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`Practices Act (Tex. Bus. & Com. Code § 17.46, et seq.), and the Georgia Uniform Deceptive Trade
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`Practices Act (OCGA § 10-1-372, et seq.), resulting from the illegal actions of Defendants, in
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`intentionally labeling their drink products with false and misleading claims that they contain no
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`artificial flavors, when Defendants’ products contain artificial Malic Acid. Malic Acid is a
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`common food additive associated with tart and sour flavors. Plaintiffs allege as follows upon
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`personal knowledge as to themselves and their own acts and experiences, and, as to all other
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`matters, upon information and belief, including investigation conducted by their attorneys.
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`JURISDICTION AND VENUE
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`2.
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`This Court has jurisdiction pursuant to 28 U.S.C. § 1332(d), because the matter in
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`controversy exceeds the sum or value of $5,000,000 exclusive of interest or costs and is a class
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`action in which members of the class are citizens of a State different from the Defendant.
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`CLASS ACTION COMPLAINT – PAGE 2
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 3 of 40 Page ID #:55
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`3.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a
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`substantial part of the events giving rise to this claim occurred in this District, and Defendant does
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`business, inter alia, in the Central District of California.
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`PARTIES
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`4.
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`Plaintiff Noohi is an individual who was at all relevant times residing in Los
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`Angeles, California.
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`5.
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`Plaintiff Stewart is an individual who was a resident of Los Angeles, California and
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`Atlanta, Georgia, and now resides in New York.
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`6.
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`On information and belief, Defendant THE KRAFT HEINZ COMPANY (“KHC”)
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`is a Delaware corporation whose principal places of business are located in Chicago, Illinois and
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`Pittsburgh, Pennsylvania.
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`7.
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`On information and belief, Defendant KRAFT HEINZ INGREDIENTS CORP.
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`(“KHI”) is a Delaware corporation whose principal places of business are located in Chicago,
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`Illinois and Pittsburgh, Pennsylvania.
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`8.
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`At all times relevant hereto, Defendants were engaged in the manufacturing,
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`marketing, and sale of drink products.
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`FACTS COMMON TO ALL COUNTS
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`9.
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`Defendant manufactures, advertises, markets, sells, and distributes drink products
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`throughout California, New York, Georgia, Texas, and the United States under the brand name
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`“Crystal Light.”
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`10.
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`During the Class Period the following list of products (the “Products”) were
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`advertised as containing no artificial flavors when they in fact contained synthetic Malic Acid:
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`a.
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`Mango Passion Fruit Crystal Light Liquid;
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`CLASS ACTION COMPLAINT – PAGE 3
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 4 of 40 Page ID #:56
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`b.
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`c.
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`d.
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`f.
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`g.
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`j.
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`Blueberry Raspberry Crystal Light Liquid;
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`Berry Sangria Crystal Light Liquid;
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`Black Cherry Lime Crystal Light Liquid;
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`Strawberry Kiwi Crystal Light Pure;
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`Grape Crystal Light Pure;
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`Tropical Blend Crystal Light Pure;
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`Peach Mango Green Tea Crystal Light;
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`Raspberry Iced Tea Crystal Light;
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`Mango Tangerine Pure;
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`11.
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`12.
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`13.
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`During the Class Period Plaintiffs purchased many of the Products.
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`Plaintiff Noohi’s most recent purchase was during or about September 2019.
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`Plaintiff Stewart has purchased the Products between 2017 and 2020. Plaintiff
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`Stewart purchased the Products from local grocery stores in and around Los Angeles, California,
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`New York, New York, Atlanta, Georgia, Texas, and other neighboring cities and towns. Plaintiff
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`Stewart also purchased some of the Products while visiting the State of Texas.
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`14.
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`All of the Products contain artificial DL-Malic Acid; therefore, the fruit flavors of
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`Defendants’ products are at least partially artificial, but Defendants intentionally advertise and
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`label the Products as containing no artificial flavors.
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`15.
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`Persons, like Plaintiffs herein, have an interest in purchasing products that do not
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`contain false and misleading claims with regards to the inclusion of artificial ingredients in those
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`products.
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`CLASS ACTION COMPLAINT – PAGE 4
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 5 of 40 Page ID #:57
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`16.
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`By making false and misleading claims about the ingredients contained in their
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`products Defendants impaired Plaintiffs’ ability to choose the type and quality of products they
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`chose to buy.
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`17.
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`Therefore, Plaintiffs have been deprived of their legally-protected interest to obtain
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`true and accurate information about their consumer products as required by California, New York,
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`Georgia, Texas, and Federal law.
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`18.
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`As a result, Plaintiffs have been misled into purchasing products they would not
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`have otherwise purchased.
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`19.
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`A flavor is a substance the function of which is to impart taste. See 21 C.F.R. §
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`101.22(a)(1) and (a)(3).
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`20.
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`Taste is the combination of sensations arising from specialized receptor cells
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`located in the mouth. Gary Reineccius, Flavor Chemistry and Technology 2nd edition, § 1.2 (2005).
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`Taste can be defined as sensations of sweet, sour, salty, bitter, and umami; however, limiting taste
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`to five categories suggests that taste is simple, which is not true. Id. For example, the taste of sour
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`contains the sourness of vinegar (Acetic Acid), sour milk (Lactic Acid), lemons (Citric Acid),
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`apples (Malic Acid), and wines (Tartaric Acid). Id. Each of those acids is responsible for unique
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`sensory characteristics of sourness. Id.
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`21.
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`Fruit flavors are the sum of the interaction between sugars, acids, lipids, and a blend
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`of volatile compounds. Hui, et al., Handbook of Fruit and Vegetable Flavors, Ch. 36, p. 693 (2010).
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`The content of sugars, mainly glucose and fructose, and their ratio to the content of acids, such as
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`citric and malic acid, determine the sweetness of fruits. Id.
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`22. Malic Acid (C4H6O5) is the common name for 1-hydroxy-1, 2-ethanedicarboxylic
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`acid. Malic Acid has two isomers, or different arrangements of atoms in the molecule, L-Malic
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`CLASS ACTION COMPLAINT – PAGE 5
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 6 of 40 Page ID #:58
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`Acid, and D-Malic Acid. 21 C.F.R. § 184.1069. L-Malic Acid occurs naturally in various fruits.
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`Id. (Emphasis added.) D-Malic Acid does not occur naturally. Id. (Emphasis added.) D-Malic
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`Acid is most commonly found in a Racemic Mixture, DL-Malic Acid, which is commercially made
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`from petroleum products.
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`23.
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`An isomer is a molecule sharing the same atomic make up as another but differing
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`in structural arrangements. Dan Chong and Johnathan Mooney, Chirality and Stereoisomers,
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`(2019).1 Stereoisomers contain different types of isomers each with distinct characteristics that
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`separate each other as different chemical entities with different chemical properties. Id.
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`Stereoisomers differ from each other by spatial arrangement, meaning different atomic particles
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`and molecules are situated differently in any three-dimensional direction by even one degree. Id.
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`Enantiomers are a type of stereoisomer that are mirror-images and cannot be superimposed. Id. It
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`can be helpful to think of enantiomers as right-hand and left-hand versions of the same molecular
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`formula. D-Malic Acid and L-Malic Acid are enantiomers.
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`24.
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`The following are skeletal formulas of the enantiomers D-Malic Acid and L-Malic
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`Acid:
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`1
`https://chem.libretexts.org/Bookshelves/Organic_Chemistry/Supplemental_Modules_(Organic_Chemistry)/Chirality
`/Chirality_and_Stereoisomers.
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`CLASS ACTION COMPLAINT – PAGE 6
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 7 of 40 Page ID #:59
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`25.
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` Sweetness and tartness are important contributors to the states and flavor
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`perception of fruit juices. Hui, et al., Handbook of Fruit and Vegetable Flavors, Ch. 24, p. 455
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`(2010). Organic acids such as Malic Acid in apples and pears, and Tartaric and Malic Acid in
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`grapes, contribute to the tartness of the juices. Id. The sugar to acid ratio has a great impact on
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`the perceived sweetness and tartness of fruit juices, as well as the flavor perception and balance,
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`and overall consumer acceptability. Id (emphasis added).
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`26. Malic Acid is a key organic acid in the flavors of many fruits as is evidenced by its
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`high concentration in those fruits. The following are charts depicting the concentration of Malic
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`Acid in the characterizing fruit flavors of Defendant’s products:
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`2 The only structural difference between D-Malic Acid and L-Malic Acid is that one Hydroxide (OH-) is attached to
`each different enantiomer at a different angle. The solid cone and the dashed-line cone represent the stereochemical
`differences. Straight lines represent bonds on the same plane as the paper, solid cones represent bonds pointed towards
`the observer, and dashed-line cones represent bonds pointed away from the observer.
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`CLASS ACTION COMPLAINT – PAGE 7
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 8 of 40 Page ID #:60
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`3 Robert Walker and Franco Famiani, Horticultural Reviews, Organic Acids in Fruits, (Vol. 45, Ch. 8 2018).
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`CLASS ACTION COMPLAINT – PAGE 8
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 9 of 40 Page ID #:61
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`27.
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`In passion fruits a mixture of acids including Malic Acid are responsible for the
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`tartness of the fruit’s juice. Hui, et al., Handbook of Fruit and Vegetable Flavors, Ch. 18, p. 347
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`(2010).
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`28.
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`Adding DL-Malic Acid to a fruit juice solution containing L-Malic Acid would
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`change the concentration of Malic Acid in the solution and the ratio of total Malic Acid to sugars
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`in that solution.
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`29.
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`Natural sugars—like glucose, fructose, and sucrose—combined with artificial DL-
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`Malic Acid in a ratio engineered to resemble the natural chemical combination of sugar and L-
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`Malic Acid found in the characterizing fruits of Defendant’s products does not equal the natural
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`flavor of those characterizing fruits. Likewise, a natural chemical combination of sugar and L-
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`4 Daniel Sortwell and Anne Woo, Improving the Flavor of Fruit Products with Acidulants, p. 1 (1996),
`http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.548.4424&rep=rep1&type=pdf
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`CLASS ACTION COMPLAINT – PAGE 9
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 10 of 40 Page ID #:62
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`Malic Acid altered by adding artificial DL-Malic Acid is no longer the original chemical
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`combination of sugar and L-Malic Acid and therefore no longer the natural flavor.
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`30.
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`Irrespective of the purpose for which Defendant claims DL-Malic Acid was added
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`to its products, DL-Malic Acid has the same effect on the fruit flavors. Defendant does not have
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`the ability to command DL-Malic Acid to only perform certain functions, and Defendant should
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`not be allowed to decide which Malic Acid constitutes flavor and which Malic Acid constitutes
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`only a flavor enhancer or pH balancer.
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`31.
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`32.
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`Defendant includes DL-Malic Acid to help make its products taste tart and fruity.
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`Defendant had the option to add naturally extracted L-Malic Acid to its products,
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`or to add a naturally manufactured acid such as Citric Acid to its products, but it instead
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`intentionally used artificial DL-Malic Acid because it was likely cheaper and/or it more accurately
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`resembled natural flavors than Citric Acid or other acids.
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`33.
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`The Sherman Food, Drug, and Cosmetic Act (“SFDCA”) incorporates all food
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`additive regulations of the Federal Food, Drug, and Cosmetic Act. Cal. Health & Safety Code §
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`110100.
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`34.
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`Under the Federal Food, Drug, and Cosmetic Act (“FFDCA”), artificial flavor is
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`defined as “any substance, the function of which is to impart flavor, which is not derived from a
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`spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or
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`similar plant material, meat, fish, poultry, eggs, dairy products, or fermentation products thereof.”
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`21 C.F.R § 101.22(a)(1).
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`35.
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`New York’s Pure Food and Drug Act § 71.05(a) provides that “[n]o person shall
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`manufacture, produce, pack, possess, sell, offer for sale, deliver or give away any food, drug or
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`cosmetic which is adulterated or misbranded. New York’s Pure Food and Drug Act § 71.05(c)
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`CLASS ACTION COMPLAINT – PAGE 10
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 11 of 40 Page ID #:63
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`states that “[a] food shall be deemed adulterated if the Department has determined the food to be
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`adulterated or as set forth in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §342)” and “[a]
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`food shall be deemed misbranded in accordance with the Federal Food, Drug, and Cosmetic Act
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`(21 U.S.C. §343).”
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`36.
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`Texas’ Food, Drug, and Cosmetics Act incorporates all food additive regulations
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`of the Federal Food, Drug, and Cosmetic Act. TX Health & Safety § 431.244(a). Texas’ Food,
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`Drug, and Cosmetics Act prohibits the adulteration or misbranding of any food, drug, device, or
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`cosmetic in commerce. TX Health & Safety § 431.021(b). Texas’ Food, Drug, and Cosmetics Act
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`provides that a food shall be deemed to be misbranded if its advertising is false or misleading in a
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`material respect or its labeling is in violation of Section 411(b)(2) of the Federal Act. TX Health
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`& Safety § 431.082(b).
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`37.
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`Georgia’s Food Act food additive regulations conform to the definitions and
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`standards promulgated under the Federal Food, Drug, and Cosmetics Act. GA. ST. § 26-2-35.
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`Georgia’s Food Act prohibits the adulteration or misbranding of any food. GA. ST. § 26-2-22.
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`Georgia’s Food Act provides that a food shall be deems to be misbranded if its labeling is false or
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`misleading in any particular. GA. ST. § 26-2-28(1).
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`38.
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`DL-Malic Acid is not derived from a spice, fruit or fruit juice, vegetable or
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`vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry,
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`eggs, dairy products, or fermentation products thereof.
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`39.
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`A combination of sugar and DL-Malic Acid in a ratio resembling a fruit flavor
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`cannot be derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb,
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`bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs, dairy products, or
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`fermentation products thereof.
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`40.
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`Likewise, a combination of sugar, natural L-Malic Acid, and artificial DL-Malic
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`Acid combined in a way to resemble the natural ratio of sugar and L-Malic Acid found in the
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`characterizing fruits of Defendant’s products cannot be derived from a spice, fruit or fruit juice,
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`vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat,
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`fish, poultry, eggs, dairy products, or fermentation products thereof.
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`41.
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`A combination of sugars and artificial DL-Malic Acid engineered to resemble the
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`natural ratio of sugars and natural L-Malic Acid that make up the natural flavor of the
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`characterizing fruit of Defendants’ products is not a natural flavor. Put more simply, the natural
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`flavor of the fruits in controversy is heavily dependent on a specific ratio of sugar and L-Malic
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`Acid, while Defendants flavors depend upon a ratio of sugar and DL-Malic Acid.
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`42.
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`Under the FFDCA, a flavor enhancer is a substance “added to supplement, enhance,
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`or modify the original taste and or aroma of a food without imparting a characteristic taste or aroma
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`of its own.” 21 C.F.R. § 170.3(o)(11).
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`43.
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`Under the FFDCA, pH balancers are “substances added to change or maintain
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`active acidity or basicity, including buffers, acids, alkalis, and neutralizing agents.” 21 C.F.R. §
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`170.3(o)(23).
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`44.
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`DL-Malic Acid under other circumstances could function as a flavor enhancer or
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`pH balancer, such as when Malic Acid is not a core component of the natural flavor of the food.
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`For example, Malic Acid added to vinegar (Acetic Acid) dishes like barbecue pork, coleslaw, or
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`pickled eggs would most likely not fundamentally alter the underlying vinegar flavors.
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`45.
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`Under the circumstances in this case, artificial DL-Malic Acid fundamentally alters
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`the original combination of sugar and natural L-Malic Acid core to fruit flavors, so that the flavor
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`CLASS ACTION COMPLAINT – PAGE 12
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 13 of 40 Page ID #:65
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`of the Products are no longer a natural combination of sugar and L-Malic Acid but instead are an
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`artificial combination of sugar and DL-Malic Acid.
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`46.
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`Under the FFDCA, a primary flavor identified on the front of a food product label
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`is referred to as a “characterizing flavor.” 21 C.F.R. § 101.22.
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`47.
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`The FFDCA further defines a “characterizing flavor” as flavors identified by
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`“…labeling, or advertising of a food [making] any direct or indirect representations with respect
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`to the primary recognizable flavor, by word, vignette, e.g., depiction of a fruit or other means.” 21
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`C.F.R. § 101.22(i).
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`48.
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`If the food products contain any artificial flavor that simulates, resembles or
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`reinforces the characterizing flavor, the name of the characterizing flavor “shall be accompanied
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`by the word(s) ‘artificial’ or ‘artificially flavored’…e.g., ‘artificial vanilla’, ‘artificially flavored
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`strawberry’, or ‘grape artificially flavored.’” 21 C.F.R. § 101.22(i)(2).
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`49.
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`Under the FFDCA, a food is misbranded if its labeling is false or misleading in any
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`particular, including if it contains any artificial flavoring, coloring, or chemical preservative,
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`unless it bears labeling stating that fact. Cal. Health & Safety Code § 110660; Cal. Health & Safety
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`Code § 110740.
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`50.
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`Under the FFDCA, a good is misbranded if its labeling is false or misleading in any
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`particular. 21 U.S.C.A. § 343(a).
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`51.
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`The following are examples of the Products’ labeling that explicitly violate the
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`above cited regulations:
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`CLASS ACTION COMPLAINT – PAGE 13
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 14 of 40 Page ID #:66
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`52.
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`The Products’ fruit flavors containing DL-Malic Acid resemble the natural
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`characterizing fruity flavors Defendants claims are in their products.
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`53.
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`Plaintiffs purchased Defendants’ products because Defendants’ packaging claims
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`that their products do not contain artificial flavors.
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`54.
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`Plaintiffs would not have been able to understand that the Products contained
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`artificial flavoring without an advanced understanding of organic chemistry and without
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`performing chemical analyses on the Products.
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`CLASS ACTION COMPLAINT – PAGE 14
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 15 of 40 Page ID #:67
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`55.
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`Furthermore, due to Defendants’ intentional, deceitful practice of falsely labeling
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`the Products as containing no artificial flavors, Plaintiffs could not have known that the Products
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`contained artificial flavors.
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`56.
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`Plaintiffs were unaware that the Products contained artificial DL-Malic Acid when
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`they purchased them.
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`57.
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`Plaintiffs and the members of the Class and Sub-Classes were deceived into paying
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`money for products they did not want because the Products were labeled as containing no artificial
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`flavors.
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`58. Worse than the lost money, Plaintiffs, the Class, and Sub-Classes were deprived of
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`their protected interest to choose the foods and ingredients they ingest.
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`59.
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`Plaintiffs, the Class, and Sub-Classes members, are not, and should not be, required
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`to chemically test the food products they purchase to know the true contents of those products.
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`60.
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`Defendants, and not Plaintiffs, the Class, or Sub-Classes, knew or should have
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`known that the Products’ express labeling stating “no artificial flavors” was false, deceptive, and
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`misleading, and that Plaintiffs, the Class, and Sub-Classes’ members would not be able to tell that
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`the Products contained artificial DL-Malic Acid unless Defendants expressly told them, as required
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`by law.
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`61.
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`Defendants employ professional chemists to create the chemical flavor formulas of
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`Defendants’ products. Therefore, Defendants, through their employees, knew or should have
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`known that DL-Malic Acid is not naturally occurring, and that by adding DL-Malic Acid to its
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`products, the natural flavoring, if any was ever actually added to the products, would be
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`fundamentally changed.
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`CLASS ACTION COMPLAINT – PAGE 15
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 16 of 40 Page ID #:68
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`On information and belief, Defendants, through their employees, did know that DL-
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`Malic Acid was not naturally occurring and would fundamentally alter any natural combination of
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`sugar and L-Malic Acid in their products, but chose to include DL-Malic Acid because it was
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`cheaper for Defendants than using natural L-Malic Acid and because they did not believe their
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`customers were educated enough to know the difference.
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`63.
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`As a result of Defendants’ acts and omissions outlined above, Plaintiffs have
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`suffered concrete and particularized injuries and harm, which include, but are not limited to, the
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`following:
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`a.
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`b.
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`c.
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`Lost money;
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`Wasting Plaintiffs’ time; and
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`Stress, aggravation, frustration, loss of trust, loss of serenity, and loss of
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`confidence in product labeling.
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`CLASS ALLEGATIONS
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` Plaintiffs bring this action on behalf of themselves and all others similarly situated,
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`64.
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`as a member of the proposed class (the “Class”), defined as follows:
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`All persons within the United States who purchased the Products
`within ten years prior to the filing of this lawsuit through the date of
`class certification.
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`Plaintiffs also bring this action on behalf of themselves and all others similarly
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`65.
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`situated, as a member of a proposed sub-class (the “California Sub-Class”), defined as follows:
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`All persons within California who purchased the Products within ten
`years prior to the filing of this lawsuit through the date of class
`certification.
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`Plaintiff Stewart also brings this action of behalf of himself and all others similarly
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`66.
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`situated, as a member of a proposed sub-class (the “New York Sub-Class”), defined as follows:
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`CLASS ACTION COMPLAINT – PAGE 16
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 17 of 40 Page ID #:69
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`All persons within New York who purchased the Products within
`ten years prior to the filing of this lawsuit through the date of class
`certification.
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`Plaintiff Stewart also brings this action on behalf of himself and all others similarly
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`67.
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`situated, as a member of a proposed sub-class (the “Texas Sub-Class”), defined as follows:
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`All persons within Texas who purchased the Products within ten
`years prior to the filing of this lawsuit through the date of class
`certification.
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`Plaintiff Stewart also brings this action on behalf of himself and all others similarly
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`68.
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`situated, as a member of a proposed sub-class (the “Georgia Sub-Class”), defined as follows:
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`All persons within Georgia who purchased the Products within ten
`years prior to the filing of this lawsuit through the date of class
`certification.
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`Defendants, their employees and agents are excluded from the Class and Sub-
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`69.
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`Classes. Plaintiffs do not know the number of members in the Class and Sub-Classes, but believe
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`the members number in the thousands, if not more. Thus, this matter should be certified as a Class
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`Action to assist in the expeditious litigation of the matter.
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`70.
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`The Class and Sub-Classes are so numerous that the individual joinder of all of their
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`members is impractical. While the exact number and identities of their members are unknown to
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`Plaintiffs at this time and can only be ascertained through appropriate discovery, Plaintiffs are
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`informed and believe and thereon allege that the Class and Sub-Classes include thousands, if not
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`millions of members. Plaintiffs allege that the class members may be ascertained by records
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`maintained by Defendants.
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`71.
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`This suit is properly maintainable as a class action pursuant to Fed. R. Civ. P. 23(a)
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`because the Class and Sub-Classes are so numerous that joinder of their members is impractical
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`CLASS ACTION COMPLAINT – PAGE 17
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 18 of 40 Page ID #:70
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`and the disposition of their claims in the Class Action will provide substantial benefits both to the
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`parties and the Court.
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`72.
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`There are questions of law and fact common to the Class and Sub-Classes affecting
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`the parties to be represented. The questions of law and fact common to the Class and Sub-Classes
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`predominate over questions which may affect individual class members and include, but are not
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`necessarily limited to, the following:
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`a.
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`Whether Defendants intentionally, negligently, or recklessly disseminated
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`false and misleading information by including the statement “no artificial
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`flavors” on the front of the Products’ packaging;
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`b.
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`Whether the Class and Sub-Classes’ members were informed of the
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`artificial nature of the ingredients in the Products;
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`Whether the Products contain artificial flavoring;
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`Whether Defendants’ conduct was unfair and deceptive;
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`Whether Defendants unjustly enriched themselves as a result of the
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`unlawful conduct alleged above;
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`Whether the statement “No Artificial Flavors” is misleading or false;
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`Whether there should be a tolling of the statute of limitations; and
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`Whether the Class and Sub-Classes are entitled to restitution, actual
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`damages, punitive damages, and attorneys’ fees and costs.
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`73.
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`As residents of the United States and some of the above-mentioned states who
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`purchased the Products in those states, Plaintiffs are asserting claims that are typical of the Class
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`and Sub-Classes.
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`CLASS ACTION COMPLAINT – PAGE 18
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`Case 2:19-cv-10658-DSF-SK Document 14 Filed 04/09/20 Page 19 of 40 Page ID #:71
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`74.
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`Plaintiffs have no interests adverse or antagonistic to the interests of the other
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`members of the Class and Sub-Classes.
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`75.
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`Plaintiffs will fairly and adequately protect the interests of the members of the Class
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`and Sub-Classes. Plaintiffs have retained attorneys experienced in the prosecution of class actions.
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`76.
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`A class action is superior to other available methods of fair and efficient
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`adjudication of this controversy, since individual litigation of the claims of all Class and Sub-Class
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`members is impracticable. Even if every Class and Sub-Class member