1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 1 of 22
`
`
`
`TODD D. CARPENTER (SBN 234464)
`tcarpenter@carlsonlynch.com
`CARLSON LYNCH LLP
`1350 Columbia St., Ste. 603
`San Diego, California 92101
`Telephone:
`(619) 762-1900
`Facsimile:
`(619) 756-6991
`EDWIN J. KILPELA (Pro Hac Vice Forthcoming)
`ekilpela@carlsonlynch.com
`JAMES P. MCGRAW (Pro Hac Vice Forthcoming)
`jmcgraw@carlsonlynch.com
`CARLSON LYNCH LLP
`1133 Penn Ave., 5th Floor
`Pittsburgh, PA 15222
`Telephone
`412-322-9243
`412-231-0246
`Facsimile
`STEPHEN B. MURRAY (Pro Hac Vice Forthcoming)
`smurray@murray-lawfirm.com
`STEPHEN B. MURRAY, JR. (Pro Hac Vice Forthcoming)
`smurrayjr@murray-lawfirm.com
`CAROLINE T. WHITE (Pro Hac Vice Forthcoming)
`cthomas@murray-lawfirm.com
`MURRAY LAW FIRM
`650 Poydras Street, Suite 2150
`New Orleans, LA 70130
`Telephone
`(504) 525-8100
`Facsimile:
`(504) 584-5249
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`BARRY N. KAY, individually and on behalf of
` Case No.:
`all others similarly situated,
`CLASS ACTION
`Plaintiff,
`COMPLAINT
`JURY TRIAL DEMANDED
`
`v.
`COPPER CANE, LLC d/b/a COPPER CANE
`WINES & PROVISIONS, a California
`corporation,
`
`Defendant.
`
`
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 2 of 22
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Plaintiff Barry N. Kay (“Plaintiff”), individually and on behalf of all others similarly situated,
`brings this class action complaint against Copper Cane, LLC d/b/a Copper Cane Wines & Provisions
`(“Defendant”), and alleges upon personal knowledge as to Plaintiff’s acts and experiences, and, as to all
`other matters, upon information and belief, including investigation conducted by Plaintiff’s attorneys.
`INTRODUCTION
`Defendant distributes wines under various brand names, including pinot noir varieties
`1.
`labeled as “Elouan” (“Elouan” or the “Product”).
`The labels on the Product indicates that this wine originates from and is produced in various
`2.
`wine growing American Viticultural Areas1 (“AVAs”) within the State of Oregon, as well as indicating
`in a more general way that the wine is produced within the wine growing regions of the State of Oregon
`(the “Oregon Appellation2”).
`Specifically, Elouan wine bottles have a label referencing the Oregon Appellation, and the
`3.
`boxes in which Elouan bottles are shipped mention the Willamette, Umpqua, and Rogue valleys, all of
`which are AVAs within the State of Oregon.
`However, contrary to the representations made on the labels, boxes, and marketing
`4.
`materials for Elouan, the wine is not actually made in the state of Oregon, much less in the specific AVAs
`listed on the Product’s packaging. Instead, the wine is vinified3 and bottled at Defendant’s facilities in
`the Napa Valley in the State of California.
`Rules promulgated by the Oregon Winegrowers Association (“OWA”) require that for a
`5.
`wine to be labeled with one of the Oregon AVAs, at least 95 percent of the grapes used in making that
`wine must come from that specific AVA, and the wine must be fully finished within the state.
`In this way, wines from specific Oregon AVAs are similar to Kobe beef, which can only
`6.
`be produced according to specifications within a certain region (Kobe) in Japan, or champagne, which can
`only be produced in a specific region of France and by using certain techniques.
`
`
`1 An “AVA” is a designated wine grape-growing region in the United States, providing an official
`appellation for the mutual benefit of wineries and consumers.
`2 An “appellation” is a legally defined and protected geographical indication used to identify where the
`grapes for a wine were grown.
`3 “Vinification” is the process through which grapes are turned into wine via fermentation.
`1
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 3 of 22
`
`
`
`Reasonable consumers purchase wines from the Oregon AVAs believing they possess the
`7.
`attributes of authentic wines from those specific regions.
`Because the wines are sold in sealed bottles made of heavily tinted glass (as is customary
`8.
`with wine) and cannot be seen, smelled, or touched prior to purchase, consumers must rely on the
`truthfulness of the labels.
`There is large consumer demand for wines from the Oregon AVAs, and consumers are
`9.
`willing to pay premium prices for these wines, or purchase them instead of other wines, because, rightly
`or wrongly, consumers believe that wines from the Oregon AVAs have superior flavors and other
`characteristics to wines produced in different regions, elsewhere within and outside of Oregon.
`To the detriment of consumers, the Product is not authentic wine from the Oregon AVAs.
`10.
`11.
`Defendant seeks to take advantage of the premium placed on wines from the Oregon AVAs
`by specifically labeling, packaging, and marketing its Product as if it was produced in the Oregon AVAs.
`Reasonable consumers could have been, and in fact were, misled by the references to the
`12.
`Oregon AVAs on the Product’s labels, packaging, and marketing materials.
`As a result of Defendant’s false and deceptive labeling, Plaintiff and the members of the
`13.
`proposed Classes (defined below) have purchased products they otherwise would not have purchased and
`have paid more for products than they otherwise would have paid.
`Plaintiff brings this action on behalf of himself and all others similarly situated to halt the
`14.
`dissemination of Defendant’s false, misleading and deceptive advertising, correct the inaccurate
`perception it has created in the minds of consumers, and obtain redress for those who have purchased
`Defendant’s Product.
`
`JURISDICTION AND VENUE
`The Court has original jurisdiction under 28 U.S.C. § 1332(d)(2) because the matter in
`15.
`controversy, exclusive of interest and costs, exceeds the sum or value of $5,000,000 and is a class action
`in which there are in excess of 100 Class members, and some of the members of the Classes are citizens
`of states different from Defendant.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`2
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 4 of 22
`
`
`
`This Court has personal jurisdiction over Defendant because Defendant conducts business
`16.
`in this District. Defendant has marketed, promoted, distributed, and sold the Products in California,
`rendering exercise of jurisdiction by this Court permissible.
`Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(a) and (b) because a substantial
`17.
`part of the events and omissions giving rise to Plaintiffs’ claims occurred in this district.
`INTRADISTRICT ASSIGNMENT
`Pursuant to Local Civil Rule 3-2(e), this action shall be assigned to the San Francisco or
`18.
`the Oakland Division.
`
`PARTIES
`Plaintiff Barry N. Kay is a citizen of the State of California, and, at all times relevant to
`19.
`this action, resided in Los Angeles County.
`Defendant Copper Cane, LLC, is a California corporation, and it is headquartered in
`20.
`St. Helena, Napa County, California.
`FACTUAL ALLEGATIONS
`
`I.
`
`Wines from specific Oregon AVAs are subject to objective criteria concerning the location
`of growing, harvesting, vinifying, and finishing the wines
`
`21. Wines, especially pinot noir varieties, produced in the Oregon AVAs are believed by many
`wine consumers to possess superior flavors and other characteristics not possessed by those wines
`produced in other regions.
`The terms “Willamette Valley,” “Umpqua Valley,” and “Rogue Valley” refer to wine
`22.
`growing AVAs located in and unique to the State of Oregon.
`Though grapes grown in one or more of the Oregon AVAs may be used in wines made in
`23.
`a multitude of locations, a winemaker may not use the name of an Oregon AVA unless at least 95% of the
`grapes used in making the particular wine were grown in the AVAs identified on the wine’s labeling,
`packaging, or marketing materials and the wine was fully vinified and finished within the State of Oregon.
`These objective criteria have been developed by the OWA, an organization charged with
`24.
`protecting the investments of its members – Oregon wine growers – through legislative and regulatory
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 5 of 22
`
`
`
`advocacy, legal compliance, and standardization. By extension, these activities protect the valuable
`branding of Oregon wines.
`The standards set by the OWA provide enhanced protection for the branding of wines with
`25.
`Oregon AVAs than what is provided by the Federal rules, which require that 85% of the grapes used in
`making a wine to be from a specific AVA in order for that AVA to be listed on the wine’s labels and
`packaging. Thus, consumers who seek out wines from Oregon AVAs know that more stringent standards
`have been met in order for the Oregon AVAs to be listed on a wine’s labeling, packaging, or marketing
`materials.
`Defendant’s Product, though marked with the names of one or more of the Oregon AVAs,
`26.
`does not meet these standards.
`Oregon pinot noir varieties are considered to have different characteristics of flavor, body,
`27.
`nose, etc., which many buyers regard as more desirable than wines from other regions.
`Rightly or wrongly, consumers believe that these superior characteristics stem from
`28.
`performing every step of the winemaking process in the cool, coastal climate of the Oregon AVAs.
`No portion of any of the Oregon AVAs, including the Willamette Valley, Umpqua Valley,
`29.
`or Rogue Valley, is located in the State of California.
`Because Defendant vinifies, finishes, and bottles all of its wines in the State of California,
`30.
`these wines can never be marketed using the name of one or more of the Oregon AVAs, as these processes
`must be completed withing the State of Oregon in order to label the wines with an Oregon AVA.
`Defendant attempts to confuse buyers by stating that its grapes come from one or more of
`31.
`the Oregon AVAs.
`However, it is not simply where the grapes are grown, but rather, where the entire
`32.
`winemaking process is conducted that determines whether a winemaker may claim that a wine is produced
`in an Oregon AVA. Defendant’s Product does not meet the requirements to make such a claim.
`
`
`4
`COMPLAINT
`
` /
`
` / /
`/ / /
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 6 of 22
`
`
`II.
`
`Defendant’s Product labeling, packaging, and marketing materials are designed to lead
`reasonable consumers to believe the Product meets the criteria to be considered wine from
`the Oregon AVAs when, in fact, it does not.
`
`Defendant’s Product has labeling, packing, and marketing materials representing that the
`33.
`wine is produced in Oregon AVAs.
`The back label for the 2017 vintage Elouan pinot noir is pictured below. The label clearly
`34.
`lists the three Oregon AVAs, despite the fact that the wine was made in California.
`
`
`
`Elouan Label
`
`5
`COMPLAINT
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 7 of 22
`
`
`
`Additionally, the boxes in which bottles of the 2017 Elouan were shipped and sold contain
`35.
`the names of the Oregon AVAs.
`
`
`
`
`
`Elouan Packaging
`
`6
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 8 of 22
`
`
`
`The labeling and packaging materials are also replete with references to the Oregon
`
`36.
`Appellation.
`In 2018, the Federal government forced Defendant to change its Elouan labeling and
`37.
`packaging due to its misleading nature regarding the origins and product of the wine.
`However, upon information and belief, much of the 2017 Elouan is still available in the
`38.
`marketplace.
`Overall, the Product labeling is designed to create the impression and belief that these are
`39.
`premium wines produced in Oregon AVAs.
`Despite Defendant’s affirmative representation that the Product is produced in the Oregon
`40.
`AVAs, and despite the Product packaging, which indicates to reasonable consumers that the wine is an
`authentic pinot noir from the Oregon AVAs, the Product is not produced in any Oregon AVA, and is, in
`fact, vinified and finished in California.
`The basic assumption implied through Defendant’s use of the names of the Oregon AVAs
`41.
`is that the wine meets the criteria for the use of the names of these AVAs by the OWA.
`42. Wine producers are not permitted to unilaterally determine the standard for identifying
`specific Oregon AVAs on their labeling, packaging, marketing materials, etc. The OWA has created these
`standards.
`43. Wines that are vinified and finished in California, or in any other state, can never meet the
`standards for labeling a wine as though it was produced in an Oregon AVA.
`Defendant is aware of the OWA standards for claiming that a wine is from an Oregon
`44.
`
`AVA.
`
`Defendant does not disclose that the bottles and packages marked with the names of the
`45.
`Oregon AVAs do not, in fact, contain authentic wines from any Oregon AVA.
`Defendant attempts to confuse consumers by suggesting that because a wine is made with
`46.
`grapes Defendant claims were grown in the Oregon Appellation, it is selling those consumers authentic
`wines produced in the Oregon AVAs. This is patently false.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`7
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 9 of 22
`
`
`III. The impact of Defendant’s advertising and labeling practices
`
`Plaintiff and the Class members have been and will continue to be deceived or misled by
`47.
`Defendant’s false and deceptive labeling and representations.
`Defendant’s Product labeling, packaging, and marketing materials lead reasonable
`48.
`consumers to believe Defendant’s Product originates from the Oregon AVAs: (i) the Product labeling
`references the Oregon Appellation; and (ii) the Product labeling, packaging, and marketing materials,
`contain references to specific Oregon AVAs.
`To the detriment of consumers, Defendant’s Product labeling, packaging, and marketing is
`49.
`false and misleading as the Product is not, in fact, wine eligible for designation with any Oregon AVA.
`The false belief created by Defendant’s Product labeling and packaging is a material factor
`50.
`in influencing consumer purchase decisions.
`Had Plaintiff and the Class members known the truth about the Product, they would not
`51.
`have purchased Elouan and would not have paid the prices they paid for the Product.
`Plaintiff and each Class member were harmed by purchasing Defendant’s Product because
`52.
`they did not receive what they paid for, and, as a result, lost money and property.
`
`IV.
`
`Plaintiff’s Experiences
`Barry N. Kay
`A.
`53.
`Plaintiff Barry N. Kay purchased several bottles of Elouan beginning in or around 2018.
`54.
`Plaintiff Barry N. Kay last purchased Elouan on or around June 2018 at Total Wine in
`Pasadena, California.
`Plaintiff Barry N. Kay relied upon the representations on the Elouan labeling when
`55.
`purchasing the wine, believing it to be authentic wine from one or more of the Oregon AVAs.
`Had the Product not displayed the names of the Oregon Appellation and the Oregon AVAs,
`56.
`Plaintiff Barry N. Kay either would not have purchased the wine or would not have been willing to pay a
`premium for the wine. If Plaintiff Barry N. Kay could rely upon the truthfulness of Defendant’s labeling,
`he would continue to purchase the Products in the future.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`8
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 10 of 22
`
`
`
`FED. R. CIV. P. 9(b) ALLEGATIONS
`Rule 9(b) of the Federal Rules of Civil Procedure provides that “[i]n alleging fraud or
`57.
`mistake, a party must state with particularity the circumstances constituting fraud or mistake. To the
`extent necessary, as detailed in the paragraphs above and below, Plaintiff has satisfied the requirements
`of Rule 9(b) by establishing the following elements with sufficient particularity:
`58. WHO: Copper Cane, LLC made material misrepresentations and/or omissions of fact in
`selling wines labeled as having been produced in Oregon AVAs.
`59. WHAT: Defendant made material misrepresentations and/or omissions of fact by
`specifically labeling, packaging, and marketing its wines as if they were produced in Oregon AVAs.
`Wines from these Oregon AVAs are considered by many customers to have superior characteristics to
`wines produced in other AVAs, and purchasers seek these wines out and pay a premium for them on that
`basis. This is particularly true of pinot noir varieties from the Oregon AVAs. The Defendant has falsely
`identified the Product at issue here as a pinot noir from the Oregon AVAs in order to avail itself of this
`enhanced perception and commensurate pricing premium for its wines. In order to be considered an
`authentic wine from an Oregon AVA, at least 95% of the grapes used in making the wine must be from
`that particular Oregon AVA, and the wine must be fully vinified and finished within the state or Oregon.
`Defendant knew or should have known this information is material to the reasonable consumer and
`impacts the purchasing decision. Defendant attempts to confuse consumers by representing that its wines
`are produced in Oregon AVAs and the Oregon Appellation, when it knows they are, in fact, produced in
`California.
`60. WHEN: Defendant made material misrepresentations and/or omissions detailed herein
`continuously throughout the Class Period.
`61. WHERE: Defendant’s material misrepresentations and/or omissions were made on the
`labeling, packaging, and marketing materials for its Product.
`HOW: Defendant made written misrepresentations and/or failed to disclose material facts
`62.
`regarding the true quality and origin of the Product on the labeling, packaging, and marketing materials
`of the Product.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`9
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 11 of 22
`
`
`
`63. WHY: Defendant engaged in the material misrepresentations and/or omissions detailed
`herein for the express purpose of inducing Plaintiff and other reasonable consumers to purchase and/or
`pay for the Product. Defendant profited by selling the Product to thousands of consumers.
`CLASS DEFINITIONS AND ALLEGATIONS
`Plaintiff, pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3), brings this
`64.
`action on behalf of the following Classes:
`California Class: All persons who purchased Defendant’s Product within the state
`(a)
`of California and within the applicable statute of limitations period.
`(b) Multi-State Class: All persons in Alaska, Arizona, Arkansas, California, Colorado,
`Connecticut, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas,
`Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada,
`New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma,
`Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah,
`Vermont, Virginia, Washington, West Virginia, or Wyoming who purchased Defendant’s Product
`during the applicable statute of limitations period (collectively, the “Classes”).
`Excluded from the Classes are Defendant, its parents, subsidiaries, affiliates, officers, and
`65.
`directors, those who purchased the Copper Cane, LLC Product for resale, all persons who make a timely
`election to be excluded from the Classes, the judge to whom this case is assigned and any immediate
`family members thereof, and those who assert claims for personal injury.
`Numerosity – Federal Rule of Civil Procedure 23(a)(1). The members of the Classes are
`66.
`so numerous that individual joinder of all Class members is impracticable. Defendant has sold many
`thousands of units of the Product to Class members.
`Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2) and
`67.
`23(b)(3). This action involves common questions of law and fact, which predominate over any questions
`affecting individual Class members, including, without limitation:
`(a) Whether the representations discussed herein that Defendant made about the
`Product were or are true, misleading, or likely to deceive a reasonable consumer;
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`10
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 12 of 22
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`(b) Whether the representations discussed herein were material to a reasonable
`consumer;
`(c) Whether Defendant’s conduct violates public policy;
`(d) Whether Defendant engaged in false or misleading advertising;
`(e) Whether Defendant’s conduct constitutes violations of the laws asserted herein;
`(f) Whether Plaintiffs and the other Class members have been injured and the proper
`measure of their losses as a result of those injuries; and
`(g) Whether Plaintiffs and the other Class members are entitled to injunctive,
`declaratory, or other equitable relief.
`Typicality – Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s claims are typical of
`68.
`those of the other Class members because, among other things, Plaintiff and all Class members were
`injured in a similar manner through the uniform conduct described herein.
`Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4). Plaintiff is an
`69.
`adequate representative of the Classes because Plaintiff’s interests do not conflict with the interests of the
`other Class members Plaintiff seeks to represent; Plaintiff has retained counsel competent and experienced
`in complex commercial and class action litigation; and Plaintiff intends to prosecute this action vigorously.
`The interests of the Class members will be fairly and adequately protected by Plaintiff and his counsel.
`Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2).
`70.
`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 Classes as a whole.
`Superiority – Federal Rule of Civil Procedure 23(b)(3). A class action is superior to
`71.
`any other available means for the fair and efficient adjudication of this controversy, and no unusual
`difficulties are likely to be encountered in the management of this class action. The damages or other
`financial detriment suffered by Plaintiff and the other Class members are relatively small compared to the
`burden and expense that would be required to individually litigate their claims against Defendant, making
`it impracticable for Class members to individually seek redress for Defendant’s wrongful conduct. Even
`if Class members could afford individual litigation, the court system could not. Individualized litigation
`
`11
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 13 of 22
`
`
`
`creates a potential for inconsistent or contradictory judgments, and increases the delay and expense to all
`parties and the court system. By contrast, the class action device presents far fewer management
`difficulties, and provides the benefits of single adjudication, economies of scale, and comprehensive
`supervision by a single court.
`
`CLAIMS ALLEGED
`COUNT I
`
`Violation of the California Unfair Competition Law (“UCL”)
`Cal. Bus. & Prof. Code §§ 17200, et seq.
`(On Behalf of the California Class)
`Plaintiff incorporates the preceding paragraphs as if fully set forth herein.
`72.
`Plaintiff brings this claim individually and on behalf of the Class.
`73.
`Plaintiff and Defendant are “persons” within the meaning of the UCL. Cal. Bus. & Prof.
`74.
`Code § 17201.
`The UCL defines unfair competition to include any “unlawful, unfair or fraudulent business
`75.
`act or practice,” as well as any “unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof.
`Code § 17200.
`In the course of conducting business, Defendant engaged in unlawful business practices by
`76.
`violating Cal. Civ. Code § 1770 and Cal. Bus. & Prof. Code § 17500, as explained more fully below.
`Plaintiff reserves the right to allege other violations of law, which constitute other unlawful business acts
`or practices.
`In the course of conducting business, Defendant also committed “unfair” and “fraudulent”
`77.
`business practices by, among other things, representing that its Product was produced in the Oregon AVAs,
`when, in fact, it was not.
`These representations, Defendant’s corresponding omissions, and Defendant’s other
`78.
`related actions and conduct were false, misleading, and likely to deceive the consuming public.
`Additionally, there were reasonably available alternatives to Defendant’s conduct, and
`79.
`Defendant’s false and deceptive advertising provided no societal benefit. Plaintiff and the members of the
`Class paid large sums of money to Defendant to receive wines produced in the Oregon AVAs, but did not
`receive such products.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`12
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 14 of 22
`
`
`
`Receiving money as a result of false and misleading advertising is contrary to public policy
`80.
`and is immoral, unethical, oppressive, unscrupulous and substantially injures consumers. And, as
`demonstrated by the many California laws prohibiting false and deceptive advertising, there is no
`justification or motive that outweighs the harm caused by Defendant’s false and deceptive advertising.
`Defendant knew, or should have known, its material misrepresentations and omissions
`81.
`would be likely to deceive and harm the consuming public and result in consumers making payments to
`Defendant to obtain wines produced in the Oregon AVAs that, in fact, were not.
`Plaintiff and the Class lost money and suffered injury in fact by purchasing Defendant’s
`82.
`Product, and Defendant was unjustly enriched by receiving payments from Plaintiff and the Class in return
`for providing Plaintiff and the Class products that were not as advertised.
`Unless restrained and enjoined, Defendant will continue to engage in the unlawful, unfair
`83.
`and fraudulent conduct described herein.
`Accordingly, Plaintiff, individually and on behalf of all others similarly situated, and on
`84.
`behalf of the general public, seeks restitution from Defendant of all money from Plaintiff and the other
`members of the Class obtained as a result of Defendant’s unfair competition, an injunction prohibiting
`Defendant from continuing and further engaging in its unlawful, unfair and fraudulent conduct, corrective
`advertising, and all other relief the Court deems appropriate.
`COUNT II
`
`Violation of the California Consumers Legal Remedies Act (“CLRA”)
`Cal. Civ. Code §§ 1750, et seq.
`(On Behalf of the California Class)
`Plaintiff incorporates the preceding paragraphs as if fully set forth herein.
`85.
`The CLRA, Cal. Civ. Code §§ 1750, et seq., was designed and enacted to protect
`86.
`consumers from unfair and deceptive business practices. To this end, the CLRA sets forth a list of unfair
`and deceptive acts and practices in California Civil Code § 1770.
`Plaintiff brings this claim individually and on behalf of the Class.
`87.
`88.
`Plaintiff is a “consumer,” Defendant is a “person,” and the Product constitutes “goods”
`within the meaning of the CLRA. Cal. Civ. Code § 1761(a), (c) and (d).
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`13
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 15 of 22
`
`
`
`Defendant’s sale and advertisement of the Product constitute “transactions” within the
`89.
`meaning of the CLRA. Cal. Civ. Code § 1761(e).
`Plaintiff has standing to pursue these claims because he has suffered injury in fact and a
`90.
`loss of money and/or property as a result of the wrongful conduct alleged herein.
`The CLRA declares as unlawful the following unfair methods of competition and unfair or
`91.
`deceptive acts or practices when undertaken by any person in a transaction intended to result, or which
`results in the sale of goods to any consumer:
`
`Representing that goods . . . have . . . approval, characteristics, . . . uses [and]
`(5)
`benefits . . . which [they do] not have . . . .
`(7)
`Representing that goods . . . are of a particular standard, quality or grade . . . if they
`are of another.
`(9)
`Advertising goods . . . with intent not to sell them as advertised.
`(16) Representing that [goods] have been supplied in accordance with a previous
`representation when [they have] not.
`
`Cal. Civ. Code § 1770(a)(5), (7), (9) and (16).
`Defendant violated the CLRA by representing that its Product was produced in the Oregon
`92.
`AVAs, when in fact it was not.
`Defendant knew or should have known its content and place-of-origin representations were
`93.
`false and misleading.
`Defendant’s violations of the CLRA proximately caused injury in fact to Plaintiff and the
`94.
`
`Class.
`
`Plaintiff and the Class members purchased Defendant’s Product on the belief that the
`95.
`Product was produced in the Oregon AVAs.
`Defendant’s Product, however, is not produced in the Oregon AVAs, but instead, is made
`96.
`in the State of California.
`Pursuant to Cal. Civ. Code § 1782(d), Plaintiff, individually and on behalf of the other
`97.
`members of the Class, seeks a Court order enjoining the above-described wrongful acts and practices of
`Defendant and for restitution and disgorgement.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`14
`COMPLAINT
`
`

`

`Case 3:20-cv-04068-RS Document 1 Filed 06/18/20 Page 16 of 22
`
`
`
`In accordance with Cal. Civ. Code § 1780(a), Plaintiff and the Class members seek
`98.
`injunctive and equitable relief for Defendant’s violations of the CLRA.
`Filed concurrently herewith is the required declaration stating facts showing that venue in
`99.
`this Court is proper pursuant to Cal. Civ. Code § 1780(d).
`100. Pursuant to § 1782 of the Act, Plaintiff notified Defendant in writing by certified mail sent
`on May 29, 2020, of its violations of § 1770 described above and demanded that it correct the problems
`associated with the actions detailed above and give notice to all affected consumers of Defendant’s intent
`to so act. Defendant failed to respond to Plaintiff’s letter or agree to rectify the problems identified and
`give notice to all affected consumers within 30 days of the date of written notice pursuant to § 1782 of the
`Act. Therefore, Plaintiff further seeks actual, punitive and statutory damages, as appropriate.
`COUNT III
`
`Violation of the California False Advertising Law (“FAL”)
`Cal. Bus. & Prof. Code §§ 17500, et seq.
`(On Behalf of the California Class)
`101. Plaintiff incorporates the preceding paragraphs as if fully set forth herein.
`102. Plaintiff brings this claim individually and on behalf of the Class.
`103. The FAL, in relevant part, states that “[i]t is unlawful for any . . . corporation . . . with
`intent . . . to dispose of . . . personal property . . . to induce the public to enter into any obligation relating
`thereto, to make or disseminate or cause to be made or disseminated . . . from this state before the public
`in any state, in any newspaper or other publication, or any advertising device, or by public outcry or
`proclamation, or in any other manner or means whatever, including over the Internet, any statement . . .
`which is untrue or misleading, and which is known, or which by the exercise of reasonable care s