Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 1 of 14 Page ID #:9
`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 1 of 14 Page ID #:9
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` EXHIBIT 1
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`EXHIBIT 1
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 2 of 14 Page ID #:10
`Electronically Filed by Superior Court of California, County of Orange, 06/29/2020 06:33:41 PM.
`30-2020-01145532-CU-BT-CXC - ROA # 2 - DAVID H. YAMASAKI, Clerk of the Court By Georgina Ramirez, Deputy Clerk.
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`Robert J. Stein, III (CA Bar No. 212495)
`rob@DSS.law
`Anthony E. DiVincenzo (CA Bar No. 259714)
`aedivincenzo@dsschicagolaw.com
`DIVINCENZO SCHOENFIELD STEIN
`3 Park Plaza, Suite 1650
`Irvine, CA 92614
`Tel: (714) 881-7002
`Anthony Lanza (CA Bar No. 156703)
`tony@lanzasmith.com
`Ramin T. Montakab (CA Bar No. 297551)
`ramin@lanzasmith.com
`LANZA & SMITH, PLC
`3 Park Plaza, Suite 1650
`Irvine, CA 92614
`Tel: (949) 221-0490
`Attorneys for Plaintiff
`DARREN CLEVENGER AND THE CLASS
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`FOR THE COUNTY OF ORANGE
`
`DARREN CLEVENGER on behalf of himself
`and all others similarly situated,
`Plaintiff,
`
`v.
`WELCH FOODS INC., A COOPERATIVE,
`and DOES 1 through 25, inclusive,
`Defendants.
`
`CASE NO.:
`CLASS ACTION COMPLAINT FOR:
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`1. Violation of Cal. Unfair Competition,
`Cal. Business & Professions Code §17200,
`et seq.
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`2. Violation of Cal. Consumers Legal
`Remedies Act, Cal. Civil Code §1750, et
`seq.;
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`Assigned for All Purposes
`
`CX-104
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`CLASS ACTION COMPLAINT
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`X:\D\753-01\PLEADINGS\WELCH COMPLAINT JUNE 29, 2020.DOCX
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`1
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 3 of 14 Page ID #:11
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`Plaintiff Darren Clevenger (“Plaintiff”), by and through his attorneys, DiVincenzo
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`Schoenfield Stein and Lanza & Smith, PLC, brings this class action complaint on behalf of himself
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`and all others similarly situated (the “Class”), alleging facts related to his own purchases based on
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`personal knowledge and other facts based upon the investigation of counsel.
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`NATURE OF THE ACTION
`This is a consumer protection class action arising from Welch Foods Inc., A
`1.
`Cooperative (“Defendant”) engaging in the practice of “slack-filling” boxes of its Welch’s®
`Reduced Sugar Fruit Snacks and Fruit ‘n Yogurt™ Snacks. The practice of using oversized
`containers with substantial, nonfunctional, empty space inside them is called “slack-fill” and is
`illegal under California and Federal law. Both Federal and California laws have long prohibited
`nonfunctional slack-fills for food containers. Although the legislative and administrative basis and
`policies behind the law are based, in part, on findings that this practice leads consumers to believe
`they are receiving a greater quantity of the food than is in the package (even if the quantity or weight
`is accurately displayed on the label), Plaintiff’s claims are based solely on the grounds that
`Defendant’s conduct is unlawful and unfair. Plaintiff does not assert any claims based on
`misrepresentation.
`Welch’s® Fruit Snacks with Reduced Sugar and Welch’s® Fruit ‘n Yogurt™ boxes
`2.
`contain eight pouches of snacks, compared to ten pouches in other flavors of Welch’s® Fruit Snacks.
`The boxes Welch’s® Fruit Snacks with Reduced Sugar and Welch’s® Fruit ‘n Yogurt™ Snacks
`contain a significant amount of nonfunctional slack-fill compared to other flavors of Welch’s® Fruit
`Snacks. In those boxes, Welch’s® includes two more identically sized pouches and 33% more
`content by volume. By violating Federal and California slack-fill laws, Defendant’s products are
`deemed “misbranded” and cannot legally be sold in interstate commerce. Defendant’s abuses of state
`and federal laws violate the unlawful and unfair prongs of California’s Unfair Competition Law (Bus
`& Prof. Code §17200, et seq.) (“UCL”), for which Plaintiff asserts claims for unlawful and unfair
`practices only; he does not assert claims for deceptive or fraudulent practices under the UCL.
`Defendant’s conduct also violates California’s Consumer Legal Remedies Act, Section 1750 of the
`Cal. Civil Code, et seq (“CLRA”).
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 4 of 14 Page ID #:12
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`PARTIES
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`Plaintiff is, and at all relevant times was, an adult residing in Orange County,
`3.
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`California. Clevenger purchased Defendant’s Welch’s® Fruit Snacks for some time from various
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`stores, including but not limited to, Walmart and Albertson’s in Orange County, California.
`Clevenger noticed that the Welch’s® Fruit Snacks with Reduced Sugar contained significant
`amounts of empty space. Specifically, he realized that Welch’s® boxes of Fruit Snacks with
`Reduced Sugar contained two less pouches per box than other non-premium varieties of Welch’s®
`Fruit Snacks (“Regular Welch’s® Fruit Snacks”). He also noticed that Welch’s® Fruit ‘n Yogurt™
`Snacks he had purchased also only contained eight pouches despite the box being the exact same
`size as Regular Welch’s® Fruit Snacks boxes with ten pouches. Clevenger suffered injury in fact as
`a result of Defendant’s conduct because the boxes were illegally slack-filled -- containing at least
`two less pouches of snacks than they should have but for the illegal slack-fill. Therefore, the
`products were misbranded and could not legally be sold.
`Defendant Welch Foods Inc. is a cooperative based and headquartered in Concord,
`4.
`Massachusetts, and incorporated in Michigan. Welch's products include grape juices, jams, fruit
`snacks, and jellies, which are sold internationally.
`In addition to the Defendant named in this action, upon information and belief, there
`5.
`are other parties, known and unknown, who participated in the conduct as alleged herein. The true
`names and capacities, whether individual, corporate, associate or otherwise, of defendants named
`herein as DOES 1 through 25, inclusive, are presently unknown to Plaintiff, who therefore sues said
`defendants by such fictitious names. Each of these fictitiously named defendants is responsible for
`the events and occurrences alleged herein which were legally and proximately cause by their
`conduct. Plaintiff will seek leave to amend this pleading to state the true names and capacities of
`such fictitiously names defendants if ascertained.
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`/ / /
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 5 of 14 Page ID #:13
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`JURISDICTION AND VENUE
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`This action is brought pursuant to the CLRA, Civil Code §1750, et seq., and
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`California’s UCL, Business and Professions Code §17200, et seq., and seeks equitable relief,
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`including restitution, plus monetary recovery.
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`The Superior Court has Personal jurisdiction over Defendant pursuant to Cal. Code of
`7.
`Civil Procedure §410.10 because at all times relevant to this complaint, it conducted significant,
`continuous business in California. Based on information and belief, Defendant has marketed and
`sold millions of dollars of food goods to California residents for their consumption.
`Venue is proper in this county under Business and Professions Code §17203 and
`8.
`Code of Civil Procedure §§395(a) and 395.5. Defendant transacts business and receives substantial
`compensation from sales in Orange County. Defendant intentionally distributed its products for sale
`to consumers in Orange County. Plaintiff resides in Orange County and purchased Defendant’s
`products in Orange County.
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`FACTUAL ALLEGATIONS
`Welch's® Reduced Sugar Fruit Snacks and Fruit ‘n Yogurt™ Snacks were packaged
`9.
`in boxes that were substantially under-filled and contained a substantial amount of unnecessary
`empty space, i.e. non-functional slack-fill. This is apparent because Defendant only included eight
`pouches of snacks in these flavors, but included ten pouches in identically sized boxes of other
`flavors. The boxes with ten pouches have a net weight of 9 oz, whereas the box with eight pouches
`have a net weight of 6.4 oz. As such, the eight pouch boxes are at least 20% under-filled by quantity
`and at least 30% under-filled by weight.
`Defendant’s Fruit Snacks and Fruit ‘n Yogurt™ Snacks are individually plastic
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`wrapped and packaged in colored cardboard boxes. Consumers cannot see the empty space
`contained in the product packaging, i.e. the non-functional slack-fill. These boxes are substantially
`under-filled and contain substantial amount of unnecessary space, i.e. non-functional slack-fill.
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 6 of 14 Page ID #:14
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`Both federal and California law prohibit nonfunctional slack-fill for food containers,
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`which would include fruit snacks and its packaging. As explained below, California has codified the
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`federal law and regulations.
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`The Slack-Fill Violates Federal Law. Federal statutes and regulations prohibit
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`nonfunctional slack fill. Pursuant to the Federal Food Drug and Cosmetic Act, 21 U.S.C. §403(d)
`and 21 C.F.R. §100.100 provides:
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`“In accordance with Section 403(d) of the [Food Drug and Cosmetic
`Act], a food shall be deemed to be misbranded if its container is so
`made, formed, or filled as to be misleading.
`(a) A container that does not allow the consumer to fully view its
`contents shall be considered to be filled as to be misleading if it
`contains nonfunctional slack-fill. Slack-fill is the difference between
`the actual capacity of a container and the volume of product contained
`therein. Nonfunctional slack-fill is the empty space in a package that is
`filled to less than its capacity for reasons other than:
`(1) Protection of the contents of the package;
`(2) The requirements of the machines used for enclosing the contents
`in such package;
`(3) Unavoidable product settling during shipping and handling:
`(4) The need for the package to perform a specific function (e.g.,
`where packaging plays a role in the preparation or consumption of a
`food), where such function is inherent to the nature of the food and is
`clearly communicated to consumers;
`(5) The fact that the product consists of a food packaged in a reusable
`container where the container is part of the presentation of the food
`and has value which is both significant in proportion to the value of
`the product and independent of its function to hold the food, e.g., a gift
`product consisting of a food or foods combined with a container that is
`intended for further use after the food is consumed; or a durable
`commemorative or promotional packages; or
`(6) Inability to increase the level of fill or to further reduce the size of
`the package (e.g., where some minimum package size is necessary to
`accommodate required food labeling (excluding any vignettes or other
`nonmandatory designs or label information), discourage pilfering,
`facilitate handling, or accommodate tamper-resistant devices).
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 7 of 14 Page ID #:15
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`The FDA deems a product containing nonfunctional slack fill to be “misbranded”
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`within the meaning of the Food Drug and Cosmetic Act. As such, the sale of the packages of
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`Defendant’s boxes with only eight pouches is prohibited under 21 U.S.C. §331.
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`The Slack-Fill Also Violates California Law. California law expressly prohibits
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`nonfunctional slack-fill. California has adopted the federal regulations and codified them as the
`California “Fair Packaging and Labeling Act” (“FPLA”). Bus & Prof Code §12606, et seq. The
`FPLA states that it “applies to food containers subject to Section 403(d) of the Federal Food, Drug
`and Cosmetic Act (21 U.S.C. Sec. 343(d)) and Section 100.100 of Title 21 of the Code of Federal
`Regulations.” Bus & Prof. Code §12606.2(a). The FPLA uses identical language, as is relevant here,
`to 21 CFR §100.100. Bus & Prof Code §12606.2(b) and (c)(1)-(6). The text of FPLA contains
`additional provisions which, based on the express language of the statute, are inoperative.1
`The boxes of Welch's® Reduced Sugar Fruit Snacks and Fruit ‘n Yogurt™ Snacks do
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`not meet any of the six exemptions under federal or California law.
`Defendant’s slack-fill does not protect the content of the packages. The Fruit Snacks
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`and Fruit ‘n Yogurt™ Snacks each individually plastic wrapped, and do not gain additional
`protection from the extra space in the box compared to the boxes with ten pouches. See 21 CFR
`§100.100(a)(1); Cal. Bus & Prof. Code § 12606.2(a)(1).
`The requirements of packaging machines do not justify or require the slack-fill.
`17.
`Defendant’s boxes are sealed with hot glue. As such, upon information and belief, the equipment
`used to manufacture and seal the boxes does not breach the inside of boxes during the packaging
`process. The hot glue is applied to an exterior flap of the box which is then sealed by a second
`exterior flap that is folded down onto the glued surface. Neither the hot glue nor the sealing
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`1 Bus & Prof Code §§12606.2(c)(7)-(8) add additional requirements and exemptions which are not
`included in the 21 C.F.R. 100.100 or otherwise imposed under 21 U.S.C. §343(d). As such, pursuant
`to Bus & Prof Code §§12606.2(e) and (f) they are inoperative. To wit, Bus & Prof. §12606.2(f)
`states “If the requirements of this section do not impose the same requirements as are imposed by
`Section 403(d) of the Federal Food Drug and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any
`regulation promulgated pursuant thereto, then this section is not operative to the extent that it is not
`identical to the federal requirements, and for this purpose, those federal requirements are
`incorporated into this section and shall apply as if they were set forth in this section.”
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 8 of 14 Page ID #:16
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`equipment requires a substantial amount of slack-fill in the box during the manufacturing and
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`packaging processes. See 21 CFR §100.100(a)(2); Cal. Bus & Prof. Code § 12606.2(a)(2).
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`The slack-fill is not caused by product settling during shipping and handling. Given
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`the product’s density, shape, and composition, any settling occurs immediately at the point of filling
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`the box. No additional product settling occurs during subsequent shipping and handling (see 21 CFR
`§100.100(a)(3); Cal. Bus & Prof. Code § 12606.2(a)(3)).
`The slack-fill space is not needed to perform a specific function, such as preparing the
`19.
`food. The Fruit Snacks and Fruit ‘n Yogurt™ Snacks are removed from the packing for consumption
`(e.g., the Fruit Snacks are not consumed or prepared in the cardboard packing). See 21 CFR
`§100.100(a)(4); Cal. Bus & Prof. Code § 12606.2(a)(4).
`Defendant’s packaging itself lacks independent value from the food it contains. The
`20.
`cardboard packaging is not a commemorative item nor is it a reusable container which is part of the
`presentation of the food, nor is it intended for use after the food is consumed. See 21 CFR
`§100.100(a)(5); Cal. Bus & Prof. Code § 12606.2(a)(5).
`The slack-filled package was not necessary to prevent pilfering or accommodate
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`required food labeling. Indeed, Defendant is able to include ten pouches of its product in each box.
`Alternatively, Defendant could reduce the size of the containers to eliminate the nonfunctional slack-
`fill. See 21 CFR §100.100(a)(6); Cal. Bus & Prof. Code § 12606.2(a)(6).
`There is no lawful reason for the substantial non-functional slack-fill contained in
`22.
`Defendant’s packaging of its Reduced Sugar Fruit Snacks or its Fruit ‘n Yogurt™ Snacks. Defendant
`is overcharging reasonable consumers because its packaging is substantially larger than necessary to
`contain the eight pouches included per box.
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`CLASS ALLEGATIONS
`Plaintiff brings count I (the UCL Cause of Action) as a class action pursuant to
`23.
`California Code of Civil Procedure §382 on behalf of a Class consisting of:
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`All persons who made retail purchases in the State of California of Welch’s® Reduced Sugar
`Fruit Snacks,Welch’s® Fruit ‘n Yogurt™ Snacks, or any other Welch’s brand fruit snacks
`containing less pouches per box than the Regular Welch’s® Fruit Snacks sold in the same
`size box. The class period will be from June 30, 2016, through the date a class is certified.
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 9 of 14 Page ID #:17
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`Excluded from the Class are the officers, directors, or employees of Defendant; any entity in
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`which Defendant has a controlling interest; and any affiliate, legal representative, heir or
`assign of Defendant. Also excluded from the Class are the judge to whom this case is
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`assigned and any member of the judge’s immediate family.
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`24.
`The Class is so numerous that joinder of all members is impracticable. Plaintiff
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`believes the class consists of, at least, many thousands of members. As a result, individual joinder of
`all purchasers is impractical.
`Plaintiff’s claims are typical of the claims of the other members of the Class, as
`25.
`Plaintiff and all other members of the Class sustained injuries arising out of Defendant’s conduct as
`alleged herein. The slack-filled containers were the same for all members of the class. Further,
`Plaintiff is a member of the Class he seeks to represent.
`Plaintiff will fairly and adequately protect the interests of the members of the Class
`26.
`and has retained counsel competent and experienced in complex class action litigation. Plaintiff has
`no interests that are contrary to, or in conflict with, those of the other members of the Class. Plaintiff
`and counsel are committed to the vigorous prosecution of this action on behalf of all Class members.
`Common questions of law and fact exist as to all members of the Class and
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`predominate over any questions affecting solely individual members of the Class. Among the
`questions of law and fact common to the Class are:
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`a)
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`b)
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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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`Whether Defendant’s packing of Reduced Sugar Fruit Snacks and Fruit ‘n Yogurt™
`Snacks or other Fruit Snacks contained non-functional slack-fill in violation of
`California Business and Professions Code §12606.2 (FPLA), et seq.;
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`Whether packages of Defendant’s Reduced Sugar Fruit Snacks and Fruit ‘n Yogurt™
`Snacks or other Fruit Snacks contained non-functional slack-fill in violation of 21
`U.S.C. §403(d) et seq. and 21 C.F.R. 100.100;
`The number of Fruit Snack pouches (of all varieties) that could or should be
`contained in Defendant’s packaging;
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`Whether Defendant’s packages were misbranded and prohibited from being sold in
`interstate commerce under 21 U.S.C. §331;
`Whether Defendant’s conduct is an unfair business practice within the meaning of
`California Business and Professions Code §17200, et seq.;
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`Whether Defendant’s conduct is an unlawful business practice within the meaning of
`California Business and Professions Code §17200, et seq.;
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`The appropriate measure of restitution and/or other relief; and
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`h)
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 10 of 14 Page ID #:18
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`Whether Defendant should be enjoined from continuing its unlawful practices.
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`Class action treatment is superior to the alternatives for the fair and efficient
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`adjudication of the controversy alleged herein. Such treatment will permit a large number of
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`similarly situated persons to prosecute their common claims in a single forum simultaneously,
`efficiently, and without the duplication of effort and expense that numerous individual actions would
`entail. No difficulties are likely to be encountered in the management of this class action that would
`preclude its maintenance as a class action, and no superior alternative exists for the fair and efficient
`adjudication of this controversy.
`Defendant has acted on grounds generally applicable to the entire Class, thereby
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`making final relief appropriate with respect to the Class as a whole. Prosecution of separate actions
`by individual members of the Class could create the risk of inconsistent or varying adjudications
`with respect to individual members of the Class that could establish incompatible standards of
`conduct for Defendant.
`A class action is superior to other available methods for the fair and efficient
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`adjudication of this controversy since joinder of all members is impractical. Further, the amount at
`stake for many of the Class members is small, meaning that few, if any, Class members could afford
`to maintain individual suits against Defendant. The expense and burden of individual litigation
`would make it impracticable or impossible for the Class to prosecute their claims individually.
`31. Without a class action, Defendant will likely retain the benefit of their wrongdoing
`and could continue a course of action, which would result in further damages to the Class. Plaintiff
`envisions no difficulty in the management of this action as a class action.
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`FIRST CAUSE OF ACTION
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`For Violation of California Unfair Competition Law,
`Cal. Business & Professions Code §17200, et seq (UCL)
`Plaintiff realleges the foregoing paragraphs and incorporates them as if fully set forth
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`32.
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`herein.
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`At all relevant times, the UCL was in full force and effect.
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 11 of 14 Page ID #:19
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`The UCL prohibits the use of “any unlawful, unfair or fraudulent business act or
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`practice.” (Bus & Prof. Code §17200).
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`Section 17203 of the UCL empowers the Court to enjoin any conduct that violates the
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`UCL and “make such orders or judgments, including the appointment of a receiver, as may be
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`necessary to prevent the use or employment by any person of any practice which constitutes unfair
`competition, as defined in this chapter, or as may be necessary to restore to any person in interest
`any money or property, real or personal, which may have been acquired by means of such unfair
`competition.”
`Plaintiff has “suffered injury in fact and has lost money or property as a result of the
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`unfair competition” as complained of herein. Bus & Prof. Code §17204. Plaintiff has paid money for
`Defendant’s products that contained nonfunctional slack-fill and were “misbranded.” As such, the
`products could not legally be sold in interstate commerce. The monies that Plaintiff and the class
`members paid for the products resulted from unfair and illegal competition by Defendant and
`Plaintiff and the class members are entitled to an order restoring those monies to them and an order
`enjoining Defendant from selling nonfunctionally slack-filled products in the State of California.
`Additionally, even if Defendant’s Reduced Sugar Fruit Snacks and Fruit ‘n Yogurt™ Snacks and
`other Fruit Snacks could have legally been sold in interstate commerce, Plaintiff overpaid and/or
`acquired less than he would have if the same packages had not contained nonfunctional slack-fill.
`Defendant’s conduct violated the unlawful prong of the UCL, as it violated the
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`California FPLA and the Federal Food Drug and Cosmetic Act (and regulations promulgated
`thereunder), both of which prohibit nonfunctional slack-fill. Further, by violating the federal slack-
`fill regulations, Defendant’s products are deemed “misbranded” and, thus, illegal to sell. 21 U.S.C.
`§331. It is not necessary for Plaintiff to establish that Defendant violated both laws. A violation of
`either law establishes a violation of the UCL.
`Defendant’s conduct also violated the unfair practices prong of the UCL. Defendant’s
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`conduct violates both California and federal public policy, as shown by their respective prohibitions
`on nonfunctional slack-fill and prohibition on introducing misbranded products into interstate
`commerce. The conduct is also anti-competitive and puts competitors who follow the law at a
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 12 of 14 Page ID #:20
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`disadvantage. Defendant’s conduct suppresses competition and has a negative impact on the
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`marketplace, decreasing consumer choice. Further, Defendant’s conduct causes significant aggregate
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`harm to consumers, causing them to overpay, because the increased empty space in the packages is
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`nonfunctional slack-fill.
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`Defendant’s violations of the UCL entitle Plaintiff and the class members to seek
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`injunctive relief, including, but not limited to ordering Defendant to permanently cease their illegal
`conduct and provide full restitution to Plaintiff and the class members.
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`SECOND CAUSE OF ACTION
`For Violation of California Consumers Legal Remedies Act,
`California Civil Code §1750, et seq. (CLRA)
`Plaintiff realleges the foregoing paragraphs and incorporates them as if fully set forth
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`herein.
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`The CLRA prohibits certain “unfair methods of competition and unfair or deceptive
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`acts or practices.” Civil Code § 1770(a)(5) prohibits conduct which is unfair or unlawful because a
`person represents that goods have “characteristics” or “quantities” that they do not have. By
`including the nonfunctional slack-fill in violation of California and Federal law, as described above,
`Defendant has committed unfair and unlawful acts, practices, and methods of competition in
`violation of the CLRA.
`Plaintiff brings this cause of action pursuant to Civil Code §1750, et seq., the CLRA,
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`on his own behalf and on behalf of all other persons similarly situated pursuant to Cal. Civil Code
`§§1781(a) & (b).
`The CLRA provides its own class certification standards, which makes class
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`certification mandatory where the requirements are met. Section 1781 provides:
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`(b) the Court shall permit the suit to be maintained on behalf of all
`members of the represented class if all of the following conditions
`exist:
`(1) It is impracticable to bring all members of the class before the
`court.
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 13 of 14 Page ID #:21
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`(2) The questions of law or fact common to the class are substantially
`similar and predominate over the questions affecting the individual
`members.
`(3) The claims or defenses of the representative plaintiff is typical of
`the claims or defenses of the class.
`(4) The representative plaintiff will fairly and adequately protect the
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`interests of the class
`For the reasons stated in paragraphs 3 to 31, all of the requirements of California
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`Civil Code §1781(b) are met. Plaintiff seeks certification of a CLRA class defined as stated above in
`paragraph 23, except the beginning date will be June 30, 2017 (rather than 2016).
`Plaintiff and the proposed class members have each been harmed by Defendant’s
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`violations of the CLRA in that he and class members have paid for products that were packaged to
`contain significant nonfunctional slack-fill. Therefore, Plaintiff and the class members have overpaid
`and/or been short-changed due to the unlawful packaging.
`Pursuant to California Civil Code §1780(a), Plaintiff, on behalf of himself and the
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`class, seeks: (i) and order enjoining Defendant’s wrongful conduct; (ii) an order of restitution; (iii)
`any and all other relief the Court deems proper. Plaintiff reserves the right to amend this complaint
`to also seek actual damages, as permitted under Civil Code §§1780(a)(1) and 1782(e), after he has
`met the demand requirements under Civil Code §1782(a), if Defendant fails to fully cure.
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`PRAYER FOR RELIEF
`Wherefore, Plaintiff, on behalf of himself and the putative Class members, prays for the
`following relief:
`A.
`For an order certifying this case as a class action under California Code of Civil
`Procedure §382 (UCL), and California Civil Code § 1781 (CLRA), as alleged herein, and appointing
`Plaintiff as a Class Representative and Plaintiff’s Counsel as Lead Class Counsel;
`B.
`For an order that Defendant has violated the statutes as alleged herein;
`C.
`For preliminary, permanent and mandatory injunctive relief prohibiting Defendant, its
`officers, agents and those acting in concert with them, from committing in the future those violations
`of law herein alleged;
`D.
`For an order awarding Plaintiff and Class members restitution and/or disgorgement in
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`CLASS ACTION COMPLAINT
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`Case 2:20-cv-08799 Document 1-1 Filed 09/24/20 Page 14 of 14 Page ID #:22
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`an amount to be determined at trial;
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`E.
`For an award of reasonable attorneys’ fees and all costs of suit as provided for by
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`California Code of Civil Procedure § 1780(e), California Code of Civil Procedure § 1021.5, and/or
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`all other applicable law and/or equitable doctrines;
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`For such other relief as the Court deems just and proper.
`F.
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`DIVINCENZO SCHOENFIELD STEIN
`and LANZA & SMITH, PLC
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`By: /s/ Anthony Lanza
` Anthony Lanza
`Robert J. Stein III
` Ramin T. Montakab
`Attorneys for Plaintiff
`DAREN CLEVENGER,
`AND THE CLASS
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`Dated: June 29, 2020
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`CLASS ACTION COMPLAINT
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