Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 1 of 19 Page ID #:1
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`CUSTODIO & DUBEY, LLP
`Robert Abiri (SBN 238681)
`445 S. Figueroa Street, Suite 2520
`Los Angeles, CA 90071
`Telephone: (213) 593-9095
`Facsimile: (213) 785-2899
`E-mail: abiri@cd-lawyers.com
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`Attorneys for Plaintiff and the Putative
`Classes
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`
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`MARIA MENDEZ WHITAKER, on
`behalf of herself and all others similarly
`situated,
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`
`Plaintiff,
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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` CASE NO.: 2:22-cv-04732
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` CLASS ACTION COMPLAINT
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` DEMAND FOR JURY TRIAL
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`v.
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`PHARMAVITE LLC,
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`Defendants.
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` CLASS ACTION COMPLAINT
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 2 of 19 Page ID #:2
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`Plaintiff Maria Mendez Whitaker (“Plaintiff”), on behalf of herself and all
`others similarly situated, brings this class action against Pharmavite LLC
`(“Defendant”) based upon personal knowledge as to herself, and upon information,
`investigation and belief of her counsel.
`
`SUMMARY OF THE ACTION
`This class action seeks to challenge Defendant’s false and deceptive
`1.
`practices in the marketing and sale of its Nature Made® Extra Strength Chewable
`Vitamin C products (the “Products”).
`2.
`Specifically, Defendant has falsely and deceptively labeled the Products
`as being “Extra Strength.” Based on this representation, reasonable consumers are led
`to believe that each tablet contained in the Products has a higher dose of Vitamin C
`than each tablet contained in Defendant’s Nature Made® regular strength chewable
`Vitamin C products (the “Regular Strength Products”).
`3.
`Unbeknownst to consumers, the Products do not have a higher dose of
`Vitamin C per tablet than the Regular Strength Products. As such, the Products are not
`“Extra Strength” and are therefore falsely and deceptively labeled.
`4.
`Plaintiff and Class members have reasonably relied on Defendant’s
`deceptive labeling of the Products, reasonably believing that each tablet in the
`Products contains a higher dose of Vitamin C than each tablet of the Regular Strength
`Products.
`Plaintiff purchased the Products and paid a premium price based upon
`5.
`her reliance on Defendant’s “Extra Strength” representation. Had Plaintiff and Class
`members been aware that the Products were not in fact “Extra Strength,” Plaintiff
`and Class members would not have purchased the Products or would have paid
`significantly less for them. Accordingly, Plaintiff and Class members have been
`injured by Defendant’s deceptive business practices.
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 3 of 19 Page ID #:3
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`PARTIES
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`I.
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`Plaintiff
`6.
`Plaintiff Whitaker is a citizen of California and currently resides in
`North Hollywood, California. Throughout 2020 to early 2022, Plaintiff purchased
`the Products from a Sprouts and CVS in Burbank, California. Specifically, Plaintiff
`last purchased the Products in or around April 2022. In purchasing the Products,
`Plaintiff saw the “Extra Strength” representation on the front label of the Products
`and reasonably believed that each tablet in the Products had a higher dose of Vitamin
`C than each tablet of the Regular Strength Products. Had she known that the Products
`were not in fact extra strength, she would not have purchased the Products or would
`have paid substantially less for them.
`7.
`Despite Defendant’s misrepresentations, Plaintiff would purchase the
`Product, as advertised, if they were in fact extra strength. Although Plaintiff
`regularly shop at stores which carry the Products, absent an injunction on
`Defendant’s deceptive advertising, she will be unable to rely with confidence on
`Defendant’s labeling of the Products in the future. Furthermore, while Plaintiff
`currently believe that the Products are falsely and deceptively labeled, she lacks
`personal knowledge as to Defendant’s specific business practices, as she will not be
`able determine whether the Products truly will be extra strength in the future. This
`leaves doubt in her mind as to the possibility that at some point in the future the
`Products could be made in accordance with the representation on the front labels.
`This uncertainty, coupled with her desire to purchase the Products, is an ongoing
`injury that can and would be rectified by an injunction enjoining Defendant from
`making the alleged misleading representations. In addition, other Class members
`will continue to purchase the Products, reasonably but incorrectly, believing that
`they are extra strength.
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 4 of 19 Page ID #:4
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`II. Defendant
`8.
`Defendant Pharmavite LLC is a California corporation and maintains
`its headquarters in West Hills, California. Defendant, on its own and through its
`agents, is responsible for the formulation, ingredients, manufacturing, labeling,
`marketing, and sale of the Products in the United States, including in California,
`specifically in this District. On information and belief, the marketing of the
`Products, including the decision of what to include on their labels, emanates from
`Defendant’s headquarters in California.
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`JURISDICTION AND VENUE
`This Court has subject matter jurisdiction under the Class Action
`9.
`Fairness Act, 28 U.S.C. §1332(d) in that: (1) this is a class action involving more
`than 100 Class members; (2) the parties are minimally diverse, as members of the
`proposed class are citizens of states different than Defendant’s home state; and (3)
`the amount in controversy is in excess of $5,000,000, exclusive of interests and
`costs.
`
`10. This Court has personal jurisdiction over Defendant because Defendant
`maintains its headquarters in California, conducts and transacts substantial business
`in California, and intentionally and purposefully placed the Products into the stream
`of commerce within California
`11. Venue is proper in this judicial District pursuant to 28 U.S.C. § 1391
`because a substantial part of the events or omissions giving rise to Plaintiff’s claims
`occurred in this judicial District. Namely, Plaintiff purchased the Products in this
`judicial District.
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`FACTUAL BACKGROUND
`12. Defendant is in the business of manufacturing and selling dietary
`supplements, including its popular Nature Made® brand.
`13. The “Products” at issue in this action are the following Nature Made
`products:
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 5 of 19 Page ID #:5
`ase 2:22-cv-04732 Document1 Filed 07/11/22 Page5of19 Page ID#:5
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`a.
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`b.
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`Nature Madee Extra Strength Chewable Vitamin C, 60 Tablets;
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`and
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`Nature Madeg Extra Strength Chewable Vitamin C, 90 Tablets.
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`14. Defendant has engagedin false and deceptive labeling of the Products.
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`Specifically, Pharmavite, directly and/or through its agents, has falsely and deceptively
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`labeled the Products as being “Extra Strength.” See below example.
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`eet BScual
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`NatureMade
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`Supplement Facts
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`Serving Size 2 Tablets
`Servings Per Container 45
`Anauat Per Serving
`Cdores a
`Tor! Corbebyerate 4g
`TotalSugars 26
`a Meledes2é Added§Sugars
`Yeame C(as Sodium Ascorbate and Ascorbicrtekodwon
`Stoun mg
`‘DatYatve not established
`“Percent Daily Values are based on a 2.000 calose it
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`15.
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`Based on the “Extra Strength” representation on the front label of the
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`Products, reasonable consumers are led to believe that each chewable tablet contained
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`in the Products has a higher dosage of Vitamin C than each chewable tablet in
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`CLASS ACTION COMPLAINT
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 6 of 19 Page ID #:6
`ase 2:22-cv-04732 Document1 Filed 07/11/22 Page6of19 Page ID #:6
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`— Defendant’s Nature Madee regular strength chewable Vitamin C products (the
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`2||“Regular Strength Products’). An example of the Regular Strength Productis displayed
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`3||below.
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`4 5 6
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`7 8 9
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`10
`7
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`SUGGESTED USE: Adults, chew 1 tabletdailywitwe,
`Storedghtlyclesad,in a cool, dry place, outofeacholchiar
`BI PHARMACIST RECOMMENDS
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`Donotuse if imprinted seal under cap
`ead
`broken or missing
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`|
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`B
`A
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`CAUTION:Ityouaretakingmedicstion,
`(AD
`u.
`saga
`aoephysicianbeforeuse
`Supplement Facts
`|
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`7 Cem:DailyValvesare based 08pedons1000calorieHd
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`OTHERINGREDIENTS: Supa
`Froctse, Suanc Ail
`MR
`rin SikconDiowide, Magrestue StorDar
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`Moxidan
`onods, Corn Starch, Natura Rlevors, Lactis®
`por’
`CONTAINS: Milt
`oesreentes BY:
`Nature
`Westits cAee |
`Peptoestseevaritetnares powscyoeria
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`Shatnereeeaecaeesrare
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`Serving Size 1 Tablet
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`Colores 16
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`YEATESLucas
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`23
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`16.
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`Unbeknownstto consumers, an “apples to apples” comparison of the two
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`25||products demonstrates that the Products do not in any way havea higher dosage of
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`26||Vitamin C per chewable tablet than the Regular Strength Products. In fact, they are
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`27||exactly the same.
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`CLASS ACTION COMPLAINT
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 7 of 19 Page ID #:7
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`17. To get 1000 mg of Vitamin C in the Products, a consumer is required to
`take two (2) chewable tablets, meaning that each tablet only has 500 mg of Vitamin C.
`However, each tablet of the Regular Strength Products also contains only 500 mg of
`Vitamin C.
`18. Thus, consumers of the Products do not receive a higher dose of Vitamin
`C in the Products versus the Regular Strength Product.
`19. As such, the Products are not “Extra Strength” and are therefore falsely
`and deceptively labeled.
`20. As the entity ultimately responsible for the manufacturing, labeling,
`and sale of the Products, Defendant is responsible for the accuracy of the
`information conveyed about the Products, including on their labels.
`21. Defendant knew or should have known that the “Extra Strength”
`representation on the Products is deceptive, and that reasonable consumers would
`believe that each chewable tablet in the Products has a higher dosage of Vitamin C
`than each chewable tablet in Defendant’s Regular Strength Products.
`22. Consumers are injured by the foregoing deceptive labeling because they
`pay a premium for the Products over the Regular Strength Products based on the
`“Extra Strength” representation. Indeed, based on a preliminary comparative analysis
`of market prices for the Products and the Regular Strength Products in June 2022 (see
`Table 1 below), the Products consistently command a price premium per serving and
`per bottle even though they do not provide any additional benefit compared to the
`Regular Strength Products.
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 8 of 19 Page ID #:8
`ase 2:22-cv-04732 Document1 Filed 07/11/22 Page 8of19 Page ID #:8
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`Vitacost.com
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`$15.49!
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`CVS.com
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`$23.49°
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`$11.31
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`$15.994
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`$1.80 ($.04 x
`45 doses)
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`$2.25 ($.05 x
`45 doses)
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`45 doses)
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`Amazon.com $16.99°|$.2 $12.59|$2 $.0 $2.25 ($.05 x
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` https://www.vitacost.com/nature-made-chewable-c-orange(last visited June 28, 2022).
`? https://www.vitacost.com/nature-made-chewable-vitamin-c-extra-strength (last visited June 28,
`2022).
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`(last visited June 28, 2022).
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`4 https://www.cvs.com/shop/nature-made-extra-strenoth-chewable-vitamin-c-1000mg-tablets-90-
`ct-prodid-650456 (last visited June 28, 2022).
`3 https://www.amazon.com/Nature-Made-Chewable-Vitamin-
`500/dp/BO18EAP210O/ref=sr_1 1 sspa?keywords=nature+made+vitamintct+chewable&qid=1655
`444721 &s=hpc&sprefix=nature+madetvitamintc+che%2Chpe%2C140&sr=1-1-
`spons&psc=1 &spLa=ZWS5jcnlwdGVkUXVhbGlmaWVyPUExO IMSVDZUTUIOQOU1LUIMVuY3
`JScCHRIZEIKPUEWNDY3Mjc1NzdVUzlyNUs5QzdYJmVuY3JSCHRIZEFkSWOQ9QTA4NTIXND
`dJTIFXRkhBUUZHVzUmd21kZ2VOTmFtZT 1zcF9hdGYmYWN0aW9uPWNsaWNrUmVkaXJ1
`Y30mZG9IOb3RMb2dDbGljaz10cnVI(last visited June 28, 2022).
`6 https://www.amazon.com/Nature-Made-Strength-Chewable-
`Antioxidant/dp/BO8FNG91XM/ref=sr_1_4?keywords=nature+made+vitamin+c+chewable&qid=1
`655444721 &s=hpc&sprefix=naturet+made+vitamintct+che%2Chpce%2C 140&sr=1-4(last visited
`June 28, 2022).
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`CLASS ACTION COMPLAINT
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 9 of 19 Page ID #:9
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`Naturemade.com $20.497
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`$.27
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`$14.698
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`$.33
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`Target.com
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`$21.999
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`$.29
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`$15.8910 $.35
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`$.06
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`$.06
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`$2.70 ($.06 x
`45 doses)
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`$2.70 ($.06 x
`45 doses)
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`23. Had Plaintiff been aware that the Products were not extra strength, she
`would have purchased a different product, or paid significantly less for the Products.
`As such, Plaintiff and members of the putative Classes have been injured.
`24. Plaintiff and members of the putative Classes were exposed to and
`justifiably relied upon the same material misrepresentation and suffered injury
`during the class period because: (1) each of the Products was labeled as “Extra
`Strength;” and (2) each of the Products was not extra strength when compared to the
`Regular Strength Products.
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`CLASS ACTION ALLEGATIONS
`25. Plaintiff brings this matter on behalf of herself and those similarly
`situated. Pursuant to Rule 23 of the Federal Rules of Civil Procedure (the “Rules” or
`“Rule”), Plaintiff seeks to represent the following class:
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`All residents of the United States who purchased either of the
`Products for personal, family, or household consumption and not for
`resale within the applicable statute of limitation period (“Nationwide
`Class”).
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`7 https://www.naturemade.com/products/chewable-vitamin-c-500-mg?variant=17895377567815
`(last visited June 28, 2022).
`8 https://www.naturemade.com/products/nature-made-extra-strength-vitamin-c-1000-mg-
`chewables?variant=34272481443979 (last visited June 28, 2022).
`9 https://www.target.com/p/nature-made-chewable-vitamin-c-500-mg-tablets-150ct/-/A-
`10994372#lnk=sametab (last visited June 28, 2022).
`10 https://www.target.com/p/nature-made-chewable-c-1000mg-tablets-90ct/-/A-
`80377808#lnk=sametab (last visited June 28, 2022).
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 10 of 19 Page ID #:10
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`26. Additionally, as further described herein, Plaintiff brings claims based
`upon state consumer protection laws on behalf of the following state class:
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`All residents of California who purchased either of the Products for
`personal, family, or household consumption and not for resale within
`the applicable statute of limitation period (“California Class”).
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`27. The Nationwide Class and the California Class are referred to
`collectively as the “Classes.”
`28. Excluded from the Classes are the following individuals and/or entities:
`Defendant and its parents, subsidiaries, affiliates, officers and directors, current or
`former employees, and any entity in which Defendant has a controlling interest; all
`individuals who make a timely election to be excluded from this proceeding using
`the correct protocol for opting out; and all judges assigned to hear any aspect of this
`litigation, as well as their immediate family members.
`29. Plaintiff reserves the right to modify or amend the definition of the
`proposed Classes and/or add subclasses before the Court determines whether class
`certification is appropriate.
`30. Numerosity: Members of each Class are so numerous and
`geographically dispersed
`that
`individual
`joinder of all Class members
`is
`impracticable. The precise number of Class members is unknown to Plaintiff but is
`likely to be ascertained by the Defendant’s records. At a minimum, there likely are
`tens of thousands of Class members.
`31. Commonality: There are questions of law and fact common to the
`proposed class(es). Common questions of law and fact include, without limitations:
`a. whether Defendant’s course of conduct alleged herein violates the
`statutes and other laws that are pled in this Complaint;
`b. whether reasonable consumers would likely be deceived by the
`Products’ labeling;
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` CLASS ACTION COMPLAINT
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 11 of 19 Page ID #:11
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`c. whether Defendant knew or should have known its representations
`were false or misleading;
`d. whether Defendant was unjustly enriched by retaining monies from the
`sale of the Products;
`e. whether certification of each Class is appropriate under Rule 23;
`f. whether Plaintiff and the members of each Class are entitled to
`declaratory, equitable, or injunctive relief, and/or other relief, and the
`scope of such relief; and
`g. the amount and nature of the relief to be awarded to the Plaintiff and
`the Class, including whether Plaintiff and the Class are entitled to
`punitive damages.
`32. Typicality: Plaintiff’s claims are typical of the other Class members
`because Plaintiff, as well as Class members, purchased the Product. Plaintiff and the
`members of the Classes relied on the representation made by the Defendant about
`the Products prior to purchasing the Product. Plaintiff and the members of each
`Class paid for Defendant’s Products and would not have purchased them (or would
`have paid substantially less for them) had they known that the Defendant’s
`representations were untrue.
`33. Adequacy: Plaintiff will fairly and adequately protect the interests of
`the proposed Classes as her interests do not conflict with the interests of the
`members of the proposed Classes she seeks to represent, and she has retained
`counsel competent and experienced in class action litigation. Thus, the interests of
`the members of the Classes will be fairly and adequately protected by Plaintiff and
`her counsel.
`34. Predominance: Pursuant to Rule 23(b)(3), the common issues of law
`and fact identified in this Complaint predominate over any other questions affecting
`only individual members of the Classes. Class issues fully predominate over any
`individual issue because no inquiry into individual conduct is necessary; all that is
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` CLASS ACTION COMPLAINT
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 12 of 19 Page ID #:12
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`required is a narrow focus on Defendant’s misconduct detailed at length in this
`Complaint.
`35. Superiority: A class action is superior to all other available methods
`for the fair and efficient adjudication of this litigation because individual litigation
`of each claim is impractical. It would be unduly burdensome to have individual
`litigation of hundreds of thousands of individual claims in separate lawsuits, every
`one of which would present the issues presented in the Complaint/lawsuit. Further,
`because of the damages suffered by any individual Class member may be relatively
`modest in relation to the cost of litigation, the expense and burden of individual
`litigation make it difficult, if not impossible. Furthermore, many of the Class
`members may be unaware that claims exist against the Defendant.
`36. Declaratory and Injunctive Relief: Pursuant to Rule 23(b)(2),
`declaratory and injunctive relief is appropriate in this matter. Defendant has acted or
`refused to act on grounds generally applicable to Plaintiff and the other Class
`members, thereby making appropriate final injunctive relief and declaratory relief,
`as described below, with respect to the Class members as a whole. Unless a class-
`wide injunction is issued, Defendant will continue to advertise, market, promote,
`and sell the Products in an unlawful and misleading manner, as described
`throughout this Complaint, and members of the Classes will continue to be misled,
`harmed, and denied their rights under the law.
`37. Defendant has also acted, or failed to act, on grounds generally
`applicable to Plaintiff and the proposed Classes, supporting the imposition of
`uniform relief to ensure compatible standards of conduct toward the members of the
`Classes.
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 13 of 19 Page ID #:13
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`FIRST CLAIM FOR RELIEF
`Violation of California’s Consumers Legal Remedies Act
`California Civil Code § 1750, et seq.
`(on behalf of the Nationwide Class; or, in the alternative, on behalf of the
`California Class)
`38. Plaintiff repeats and realleges Paragraphs 1-37 as if fully set forth
`herein.
`39. Plaintiff brings this claim individually and on behalf of the Nationwide
`Class. In the alternative, Plaintiff brings this claim individually and on behalf of the
`California Class.
`40. Defendant’s conduct constitutes violations under the California’s
`Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq. (“CLRA”).
`41. Defendant’s conduct falls within the meaning of this statute because it
`caused transactions to occur resulting in the sale or lease of goods to consumers –
`namely, the sale of the Products. The Products are considered to be “goods” within
`the meaning of the statute under Cal. Civil Code 1761(a).
`42. Plaintiff and members of the Classes are “consumers” pursuant to the
`statute.
`43. Defendant violated the CLRA by way of the following provisions:
`a. Representing that the Products have “characteristics” (i.e., are “Extra
`Strength”) which they do not have, in violation of Cal. Civ. Code §
`1770(a)(5);
`b. Representing that the Products are of a particular “standard” (i.e., are
`“Extra Strength”) when they are not that standard, in violation of Cal.
`Civ. Code § 1770(a)(7); and
`c. Advertising the Products with the “intent not to sell [it] as advertised”
`in violation of Cal. Civ. Code § 1770(a)(9).
`44. As the entity responsible for the manufacturing, labeling, and
`advertising of the Products, Defendant is aware the claim “Extra Strength” is
`misleading and will mislead a reasonable consumer.
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 14 of 19 Page ID #:14
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`45. Due to Defendant’s conduct, Plaintiff and members of the Classes
`suffered economic injury in that they paid more of the Products than they otherwise
`would have had they known the truth.
`46. Pursuant to the provisions of Cal. Civ. Code § 1782(a), on February 7,
`2022, Defendant received a letter via certified mail, return receipt requested,
`providing notice to Defendant of its alleged violations of the CLRA, and demanding
`that Defendant correct such violations. The letter was sent on behalf of all
`purchasers of the Products during the class period. Because more than 30 days has
`passed since Defendant received the notice, and Defendant has yet to cure its
`violations, Plaintiff brings this claim for damages under the CLRA.
`47. Plaintiff and members of the Classes therefore seek damages,
`reasonable attorneys’ fees and costs, and all other available relief as pleaded in this
`Complaint and available under the CLRA.
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`SECOND CLAIM FOR RELIEF
`Violation of California’s False Advertising Law (“FAL”)
`California Business & Professions Code § 17500, et seq
`(on behalf of the Nationwide Class; or, in the alternative, on behalf of the
`California Class)
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`48. Plaintiff repeats and realleges Paragraphs 1-37 as if fully set forth
`herein.
`49. Plaintiff brings this claim individually and on behalf of the Nationwide
`Class. In the alternative, Plaintiff brings this claim individually and on behalf of the
`California Class.
`50. The FAL makes it “unlawful for any person to make or disseminate or
`cause to be made or disseminated before the public . . . in any advertising device . . .
`or in any other manner or means whatever, including over the Internet, any
`statement, concerning . . . personal property or services professional or otherwise, or
`performance or disposition thereof, which is untrue or misleading and which is
`known, or which by the exercise of reasonable care should be known, to be untrue
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 15 of 19 Page ID #:15
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`or misleading.” Cal. Bus. & Prof. Code § 17500.
`51. Defendant violated the FAL by publicly disseminating misleading and
`false advertisements for the Products through the labeling of the Products as “Extra
`Strength.”
`52. Defendant’s false and misleading representation was made in order to
`increase sales of the Products.
`53. Plaintiff and members of the Classes would not have bought the
`Products, or would have paid considerably less for them, had they known that the
`representation was false and misleading.
`54. Plaintiff and Class members seek an order requiring Defendant to: (a)
`make full restitution for all monies wrongfully obtained; and (b) disgorge all ill-
`gotten revenues and/or profits. Plaintiff also seeks all other available relief as
`pleaded in this Complaint.
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`THIRD CLAIM FOR RELIEF
`Violation of California’s Unfair Competition Law (“UCL”),
`California Business & Professions Code § 17200, et seq.
`(on behalf of the Nationwide Class; or, in the alternative, on behalf of the
`California Class)
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`55. Plaintiff repeats and realleges Paragraphs 1-37 as if fully set forth
`herein.
`56. Plaintiff brings this claim individually and on behalf of the Nationwide
`Class. In the alternative, Plaintiff brings this claim individually and on behalf of the
`California Class.
`57. Plaintiff and Defendant are “persons” within the meaning of the UCL.
`Cal. Bus. & Prof. Code § 17201.
`58. The UCL defines unfair competition to include any “unlawful, unfair or
`fraudulent business act or practice,” as well as any “unfair, deceptive, untrue or
`misleading advertising.” Cal. Bus. Prof. Code § 17200.
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 16 of 19 Page ID #:16
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`In the course of conducting business, Defendant engaged in “unlawful”
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`business practices by violating Cal. Civ. Code § 1770, Cal. Bus. & Prof. Code §
`17500, and the other laws referenced herein.
`60. As a result of Defendant’s unlawful business acts and practices,
`Defendant has and continues to unlawfully obtain money from Plaintiff and
`members of the Classes.
`61. Defendant’s foregoing business practices are also “unfair” under the
`UCL, which states that unfair acts are acts where the reasons, justifications and
`motivations of Defendant are outweighed by the harm to Plaintiff and other
`California consumers.
`62. A business practice is also considered to be “unfair” if the conduct
`alleged is immoral, unethical, oppressive, or substantially injurious to consumers; as
`well as if the conduct alleged causes an injury which is not outweighed by any
`benefits to other consumers or to competition, and that the injury is of the type that
`the consumer could not have avoided. Defendant’s conduct is “unfair” pursuant to
`the UCL under each of the three tests described in these paragraphs.
`63. Defendant’s behavior constitutes unfair business practices under
`California law.
`64. Defendant’s retention of Plaintiff’s and Class member’s payments for
`the Products outweighs the economic harm that said retention imposes on
`consumers. The only party that benefits is Defendant. Defendant’s sale of the
`Products with the “Extra Strength” misrepresentation discussed herein are immoral,
`unethical, oppressive, and substantially injures consumers.
`65. Plaintiff and members of the Classes had no way of knowing that the
`Products were not in fact “Extra Strength.” As Defendant continues to unfairly
`retain Plaintiff’s and members of the Classes’ payments for the Products, this
`conduct continues to be unfair under California law. This is exactly the type of
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 17 of 19 Page ID #:17
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`unscrupulous and inexcusable business practice that the UCL was enacted to
`address.
`66. Defendant’s representations are also “fraudulent” under the UCL
`because they have the effect of deceiving consumers into believing that the Products
`are “Extra Strength” when they are not.
`67. Defendant knew, or should have known, its material misrepresentation
`would be likely to deceive and harm the consuming public and result in consumers
`making payments to Defendant under the false impression about the Products.
`68. As a result of Defendant’s conduct, Plaintiff and members of the
`Classes have suffered injury-in-fact by paying more for the Products than they
`would have. Plaintiff requests that the Court issue sufficient equitable relief to
`restore her and members of the Classes to the position they would have been had
`Defendant not engaged in unfair business practices.
`69. Plaintiff and members of the Classes seek an order requiring Defendant
`to: (a) make full restitution for all monies wrongfully obtained; and (b) disgorge all
`ill-gotten revenues and/or profits. Plaintiff also seeks all other available relief as
`pleaded in this Complaint.
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`FOURTH CLAIM FOR RELIEF
`Quasi Contract/Unjust Enrichment/Restitution
`(on behalf of the Nationwide Class; or, in the alternative, on behalf of the
`California Class)
`70. Plaintiff repeats the allegations contained in paragraphs 1-37 above as
`if fully set forth herein.
`71. Plaintiff brings this claim individually and on behalf of the Nationwide
`Class. In the alternative, Plaintiff brings this claim individually and on behalf of the
`California Class.
`72. As alleged herein, Defendant has intentionally and recklessly made a
`misleading representation to Plaintiff and members of the Classes to induce them to
`purchase the Products. Plaintiff and members of the Classes have reasonably relied
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`Case 2:22-cv-04732 Document 1 Filed 07/11/22 Page 18 of 19 Page ID #:18
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