`
`
`
`
`
`
`
`MARK LANIER, (Admitted Pro Hac Vice)
`ALEX BROWN, (Admitted Pro Hac Vice)
`JONATHAN WILKERSON, (Admitted Pro Hac Vice)
`THE LANIER LAW FIRM, PC
`10940 W. Sam Houston Pkwy N, Ste. 100
`Houston, TX 77064
`Telephone: (713) 659-5200
`Facsimile: (713) 659-2204
`
`SHALINI DOGRA, SBN 309024
`DOGRA LAW GROUP PC
`2219 Main Street, Unit 239
`Santa Monica, CA 90405
`Telephone: (747) 234-6673
`Facsimile: (310) 868-0170
`
`Attorneys for Named Plaintiffs KAREN DHANOWA and NILIMA AMIN and Proposed Class
`
`
`
`
`
`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
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`
`
`KAREN DHANOWA and NILIMA AMIN,
`on behalf of themselves and all others
`similarly situated;
`
`
`
`
`
`SUBWAY RESTAURANTS, INC., a
`Delaware Corporation; FRANCHISE
`WORLD HEADQUARTERS, LLC., a
`Connecticut Limited Liability Corporation;
`SUBWAY FRANCHISEE ADVERTISING
`TRUST FUND LTD., a Connecticut
`Corporation; and DOES 1 through 50,
`Inclusive,
`
`
`
`
`
`Defendants.
`
`Case No:
`
`
`PLAINTIFFS’ CLASS ACTION
`COMPLAINT
`
`1. COMMON LAW FRAUD
`
`2. INTENTIONAL
`MISREPRESENTATION
`
`3. NEGLIGENT MISREPRESENTATION
`
`4. UNJUST ENRICHMENT
`
`5. CONSUMERS LEGAL REMEDIES
`ACT, CAL. CIV. CODE §§ 1750, et seq.
`
`6. VIOLATION OF THE FALSE
`ADVERTISING LAW (“FAL”),
`CALIFORNIA BUSINESS AND
`PROFESSIONS CODE § 17500, et seq.
`
`7. VIOLATION OF THE UNFAIR
`COMPETITION LAW (“UCL”),
`CALIFRONIA BUSINESS AND
`PROFESSIONS CODE §17200 et seq.
`
`
`
`DEMAND FOR JURY TRIAL
`
`Error! Unknown document property name.
`
`
`1
`1
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 2 of 25
`
`
`
`
`
`Plaintiffs Karen Dhanowa and Nilima Amin, by and through their attorneys, bring this action
`on behalf of themselves and all other similarly situated against Subway Restaurants. Inc., Franchise
`World Headquarters, LLC., and Subway Franchisee Advertising Trust Fund Ltd. Corporation
`(collectively hereinafter referred to as “Defendants”), and Does 1 through 50. Plaintiffs hereby
`allege, on information and belief, except as those allegations which pertain to the named Plaintiffs,
`which allegations are based on personal knowledge, as follows:
`
`
`NATURE OF THE ACTION
`1.
`To capitalize on the premium price consumers are willing to pay for tuna, Defendants
`intentionally make false and misleading representations about tuna being used as an ingredient in
`some of their food items, including sandwiches and wraps (“the Products”). Aware that consumers
`place a heightened value on tuna as an ingredient, Defendants deliberately make false and
`misleading claims about the composition of the Products to increase profits at the expense of
`unsuspecting buyers.
`2.
`Defendants label and advertise the Products as “tuna.” However, the Products’
`labeling, marketing and advertising is false and misleading. In reality, the Products do not contain
`tuna nor have any ingredient that constitutes tuna. The Products lack tuna and are completely bereft
`of tuna as an ingredient.
`3.
`The Products are misbranded under federal and California State law. Defendants’
`deceptive marketing scheme of the Products includes tactics such as falsely labeling the Products
`as “tuna” on menus throughout Defendants’ “Subway” eatery locations, as well as Defendants’
`website.
`4.
`At all relevant times, Defendants packaged, advertised, marketed, distributed and sold
`the Products to consumers at their “Subway” dining establishment throughout California and the
`United States based on the misrepresentation that the Products were manufactured with tuna. In
`truth, the Products do not contain tuna as ingredient. On the contrary, the filling in the Products has
`no scintilla of tuna at all. In fact, the Products entirely lack any trace of tuna as a component, let
`alone the main or predominant ingredient.
`5.
`Reasonable consumers rely on product labeling in making their purchasing decisions.
`
`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
`
`Error! Unknown document property name.
`
`
`2
`2
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 3 of 25
`
`
`
`
`
`When a reasonable consumer sees a sandwich or wrap labeled as “tuna,” he or she reasonably
`expects that the food product will indeed contain tuna.
`6.
`In reliance on Defendants’ misleading marketing and deceptive advertising practices
`for the Products, Plaintiffs and similarly situated class members reasonably thought they were
`purchasing tuna sandwiches and/or tuna wraps and buying a food that was made with tuna or
`contained tuna. In fact, neither Plaintiffs nor any of the members of the putative class received any
`sandwich or wrap that had tuna at all, or even partially included tuna. Thus, they were tricked into
`buying food items that wholly lacked the ingredient they reasonably thought they were purchasing.
`7.
`Plaintiffs and other consumers purchased the Products because they reasonable
`believed, based on Defendants’ packaging and advertising that the Products contained tuna. Had
`Plaintiffs and other consumers known the Products actually lacked tuna, they would not have
`purchased the Products or would have paid significantly less for them. As a result, Plaintiffs and
`other similarly situated class members have been deceived and suffered economic injury.
`8.
`Defendants’ labeling, marketing and advertising uniformly involves multiple false
`and misleading statements, as well as material omissions of fact, concerning the Products that have
`injured Plaintiffs and the Class by duping them into buying premium priced food dishes. Due to the
`false and deceptive business practices and representations, Defendants have mislead the general
`public into believing that the Products contain tuna.
`9.
`Based on the fact that Defendants’ advertising misled Plaintiffs and all others like
`them, Plaintiffs bring this class against Defendants to seek reimbursement of the premium they and
`the Class Members paid due to Defendants’ false and deceptive representations about the
`composition and ingredients of the Products.
`10. Plaintiffs seek relief in this action individually and on behalf of all purchasers of the
`Products statewide in California for common law fraud, intentional misrepresentation, negligent
`misrepresentation, and unjust enrichment. Additionally, Plaintiffs seek relief in this action
`individually and on behalf of all purchasers of the Products in California for violation of the
`California Bus. & Prof. Code §§17500, et seq., California’s False Advertising Law (“FAL”), Bus.
`& Prof. Code §§17200, et seq., as well as California’s Unfair Competition Law (“UCL”).
`
`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
`
`Error! Unknown document property name.
`
`
`3
`3
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 4 of 25
`
`
`
`
`
`
`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
`
`JURISDICTION AND VENUE
`11. This Court has subject matter jurisdiction pursuant to the 28 U.S.C. § 1332(d), the
`Class Action Fairness Act, because the aggregate amount in controversy exceeds $5,000,000.00,
`exclusive of interests and costs, and at least one class member is a citizen of a state different from
`Defendant Subway Restaurants, Defendant Franchise World Headquarters, as well as Defendant
`Subway Franchisee Advertising Trust Fund Ltd. Additionally, this is a class action involving more
`than 1,000 (one thousand) class members.
`12. The Court has personal jurisdiction over Defendants pursuant to Cal. Code Civ. P. §
`410.10, as a result of Defendants’ substantial, continuous and systematic contacts with the State,
`and because Defendants have purposely availed themselves to the benefits and privileges of
`conducting business activities within the State.
`13. Pursuant to 28 U.S.C. §1391, this Court is the proper venue for this action because a
`substantial part of the events, omissions and acts giving rise to the claims herein occurred in this
`District. Moreover, Defendants distributed, advertised and sold the Products, which are the subject
`of the present Complaint, in this District.
`PARTIES
`14. Plaintiff Dhanowa is a citizen and resident of California, and lives in Alameda County.
`15. Plaintiff Amin is a citizen and resident of California, and lives in Alameda County.
`16. Defendant Subway Restaurants is a Delaware corporation headquartered in the State
`of Connecticut, with its principal place of business at 325 Sub Way, Milford, CT 06461. Therefore,
`Defendant Subway Restaurants is a citizen of the states of Delaware and Connecticut. Defendant
`Subway Restaurants manufactures, mass markets, and distributes the Products throughout
`California and the United States.
`17. Defendant Franchise World Headquarters, LLC. is a Connecticut limited liability
`corporation headquartered in the State of Connecticut, with its principal place of business at 325
`Sub Way, Milford, CT 06461. Hence, Defendant Franchise World Headquarters is a citizen of the
`State of Connecticut. Defendant Franchise World Headquarters manufactures, mass markets, and
`distributes the Products throughout California and the United States.
`
`Error! Unknown document property name.
`
`
`4
`4
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 5 of 25
`
`
`
`
`
`18. Defendant Subway Franchisee Advertising Trust Fund Ltd. is a Connecticut
`corporation headquartered in the State of Connecticut, with its principal place of business at 325
`Sub Way, Milford, CT 06461. Thus, Defendant Subway Franchisee Advertising Trust Fund is a
`citizen of the State of Connecticut. Defendant Subway Franchisee Advertising Trust Fund Ltd.
`manufactures, mass markets, and distributes the Products throughout California and the United
`States.
`
`19. Plaintiffs are informed and believes, and based thereon alleges that at all times
`relevant herein each of these individuals and/or entities was the agent, servant, employee,
`subsidiary, affiliate, partner, assignee, successor-in-interest, alter ego, or other representative of
`each of the remaining Defendants and was acting in such capacity in doing the things herein
`complained of and alleged. Plaintiffs reserve their right to amend this Complaint to add different or
`additional defendants, including without limitation any officer, director, employee, supplier, or
`distributor of Defendant Subway Restaurants, Defendant Franchise World Headquarters, and
`Defendant Subway Franchisee Advertising Trust Fund Ltd. who has knowingly and willfully aided,
`abetted, or conspired in the false and deceptive conduct alleged herein.
`FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS
`20. Consumers often purchase a particular type of sandwich or wrap due to main
`ingredient of the food, and its type of filling. Indeed, the filling of sandwich or wrap is usually the
`most important attribute to buyers when they are deciding which food dish to purchase. Moreover,
`consumers typically associate tuna as a superior ingredient and are typically willing to pay a
`premium for it. Furthermore, buyers are often willing to pay more for tuna as the filling in wraps
`and sandwiches because they associate the ingredient as having higher nutritional value, including
`greater protein levels.
`21. Defendants know or have reason to know that consumers would find the challenged
`attribute important in their decision to purchase the Products, as indicated by the fact that
`Defendants repeatedly emphasized the advertising claim prominently on the Products’ labeling, as
`well as Defendants’ menus and website. Defendants have been advertising and selling the 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
`
`Error! Unknown document property name.
`
`
`5
`5
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 6 of 25
`
`
`
`
`
`as being “tuna” and marketing food fishes as having “tuna,” when in fact the Products completely
`lack tuna as an ingredient.
`SUBWAY’S TUNA SANDWICHES AND TUNA WRAPS HAVE NO TUNA
`22. Defendants consistently advertise the Products as “tuna.” However, Defendants’
`labeling and marketing scheme for the Products is blatantly false. As independent testing has
`repeatedly affirmed, the Products are made from anything but tuna. On the contrary, the Products
`are made from a mixture of various concoctions that do not constitute tuna, yet have been blended
`together by Defendants to imitate the appearance of tuna. Defendants identified, labeled and
`advertised the Products as “tuna” to consumers, when in fact they were not tuna. Yet, Defendants
`have systematically and consistently continued to label and advertise the Products as “tuna.”
`23. Consequently, because the Products lack tuna as an ingredient, consumers are not
`receiving the benefit of their bargain. Moreover, Defendants are deceptively saving substantial sums
`of money in manufacturing the Products because the fabricated ingredient they use in the place of
`tuna costs less money. Defendants’ marketing, labeling, and packaging of the Products are designed
`to, and do in fact, deceive, mislead and defraud consumers.
`24. Defendants have no reasonable basis for labeling, advertising, marketing and
`packaging the Products as being or containing “tuna.” As a result, consumers are consistently
`misled into purchasing the Products for the commonly known and/or advertised benefits and
`characteristics of tuna when in fact no such benefits could be had, given that the Products are in fact
`devoid of tuna.
`25.
`21 U.S.C. § 343 states that a food product is misbranded if “its labeling is false or
`misleading in any manner, if it is offered for sale under the name of another food,” or if it is an
`imitation of another food,” with labeling defined as “all labels and other written printed, or graphic
`matter (1) upon any article or any of its containers or wrappers or (2) accompanying such article.”
`Similarly, under California’s Sherman Food, Drug and Cosmetic Law (“Sherman Law”), Article 6,
`§ 110660, “Any food is misbranded if its labeling is false or misleading in any particular.”
`26. Defendants’ display and takeaway menus that accompanied the Products identified
`the food items as being or containing “tuna,” even though none of the Products in fact were
`
`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
`
`Error! Unknown document property name.
`
`
`6
`6
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 7 of 25
`
`
`
`
`
`comprised of or made with any tuna. On the contrary, the Products contained an entirely non-tuna
`based mixture that Defendants blended to resemble tuna and imitate its texture.
`27. Additionally, § 402(b) of the Food, Drug and Cosmetic Act (“FDCA”) affirms that a
`food product is adulterated “if any valuable constituent has been in whole or in part omitted or
`abstracted therefrom; or if any substance has been substituted, wholly or in part therefor; or if
`damage or inferiority has been concealed in any manner; or if any substance has been added thereto
`or mixed or packed therewith so as to increase its bulk or weight or reduce its quality or strength or
`make it appear better or of greater value than it is.” Likewise, under California’s Sherman Law,
`Article 5, § 110585, “any food is adulterated” if : (a) any valuable constituent has been in whole or
`in part omitted or abstracted therefrom; (b) if any substance has been substituted wholly or in part
`therefor; (c) if damage or inferiority has been concealed in any manner or; (d) if any substance has
`been added thereto or mixed or packed therewith so as to increase its bulk or weight or reduce its
`quality or strength to make it appear better or of greater value than it is.”
`28. Furthermore, 21 U.S.C. § 331 prohibits the “introduction or delivery for introduction
`of any food that is adulterated or misbranded into interstate commerce,” as well as the “adulteration
`or misbranding of any food in interstate commerce.” Similarly, pursuant to California’s Sherman
`Law, Article 5, §§110620, 110625 and 110630, it is unlawful for any person “to manufacture, sell,
`deliver, hold or offer for sale any food that is adulterated,” “to adulterate any food,” or “to receive
`in commerce any food that is adulterated or to deliver or proffer for delivery any such food.”
`29. Defendants have engaged in economic adulteration by selling a food product that
`partially or wholly lacked the valuable constituents of tuna, and that had been substituted in part
`or whole. Defendants have further committed unlawful adulteration by concealing the inferiority
`of the Products. Moreover, Defendants’ conduct also constitutes prohibited adulteration because
`substances had been added and mixed into the Products to make them appear better or of a greater
`value than they actually were. Significantly, Defendants have perpetuated all the practices of
`adulteration with the intention of reaping ill-gotten profits at the expense of consumers.
`30. Reasonable consumers rely on product labeling when making their purchasing
`decisions. When a consumer sees a food product labeled and identified as “tuna,” or containing
`
`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
`
`Error! Unknown document property name.
`
`
`7
`7
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 8 of 25
`
`
`
`
`
`“tuna”, they reasonably expect the food will contain tuna fish. The Products that Defendants have
`advertised and continue to market as having tuna as an ingredient or being comprised of tuna do not
`have tuna fish as their component. Instead, Defendants have been selling and continuing to sell some
`mixture that is deceptively and dishonestly being passed off as tuna to purchasers. In reliance on
`Defendants’ misleading marketing and labeling and deceptive advertising practices of the Products,
`Plaintiffs and similarly situated class members reasonably thought they were purchasing “tuna.” In
`fact, neither Plaintiffs nor any of the member of the putative class received any tuna, the food
`product they reasonably thought they were buying. Plaintiffs consumed units of the Products as
`intended and would not have bought them if they had known the advertising and labeling as
`described herein was false and deceptive. Additionally, the Products are worth less than what
`Plaintiffs paid for them. Plaintiffs and the putative Class would not have paid as much as they did
`for the Products absent Defendants’ false and misleading statements and omissions.
`31. The malicious actions taken by Defendants caused significant harm to consumers.
`Plaintiffs and similarly situated class members who purchased the Products because they reasonably
`believed, based on Defendants’ marketing, packaging, labeling and advertising schemes, that the
`Products were comprised of tuna. Had Plaintiffs and other class members known the Products
`actually lacked tuna as an ingredient, they would not have bought the Products or would have paid
`substantially less money for them. As a result, Plaintiffs and similar situated class members have
`been deceived and suffered economic injury. Plaintiffs were economically harmed by Defendants’
`false labeling, deceptive marketing and misleading packaging conveying the message that the
`Products were made with tuna. The value of the Products that Plaintiffs actually purchased and
`consumed was materially less than their value as misrepresented by Defendants.
`32. Plaintiffs purchased units of the Products from one of Defendants’ eateries located in
`Alameda County, as well as other counties within the State of California, during the relevant time
`period, including as recently as 2020. Plaintiffs bought and consumed the Products because, based
`on Defendants’ marketing and labeling scheme, they believed the Products were made with tuna,
`contained tuna, and were actually a tuna sandwich and/or wrap. Plaintiffs purchased the Products in
`reliance upon the labeling and advertising of the Products claiming that they were comprised of
`
`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
`
`Error! Unknown document property name.
`
`
`8
`8
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 9 of 25
`
`
`
`
`
`“tuna,” without knowledge of the fact that they lacked tuna. Plaintiffs consumed the Products as
`intended and would not have purchased the Products if they had known that the advertising as
`described herein was false, misleading and deceptive.
`33. During the time when they were each purchasing and consuming the Products,
`Plaintiffs did not take steps to verify the Products’ components, or whether the Products contained
`tuna as an ingredient. Reasonable consumer such as Plaintiffs would not have considered it
`necessary to verify the clear message conveyed by Defendants’ labeling, advertising, marketing and
`packaging of the Products.
`
`RULE 9(B) ALLEGATIONS
`34. Federal Rule of Civil Procedure 9(b) provides that “[i]n alleging fraud or mistake, a
`party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P.
`9(b). To the extent necessary, as detailed in the paragraphs above and below, Plaintiffs have satisfied
`the requirement of Rule 9(b) by establishing the following elements with sufficient particularity:
`35. WHO: Defendants made material misrepresentations and omissions of fact in the
`labeling, packaging and marketing of the Products.
`36. WHAT: Defendants made material misrepresentations and omissions of fact by
`labeling, packaging and marketing the Products as “tuna.” Defendants made these claims with
`respect to the Products even though the Products were not in fact made with tuna, nor meet the
`requirements to make such claims. Defendants’ misrepresentations and omissions were material
`because a reasonable consumer would not have purchased or paid as much for the Products if he or
`she knew that they contained false representations.
`37. WHEN: Defendants made the material misrepresentations and omissions detailed
`herein continuously throughout the Class Period.
`38. WHERE: Defendants’ material misrepresentations and omissions were made, inter
`alia, on the labeling of the Products, on Defendants’ website, and throughout Defendants’ various
`other marketing and advertising scheme for the Products, including its menus.
`39. HOW: Defendants made written misrepresentations and failed to disclose material
`facts on the labeling and packaging of the Products and on their website and other advertising.
`
`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
`
`Error! Unknown document property name.
`
`
`9
`9
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 10 of 25
`
`
`
`
`
`40. WHY: Defendants engaged in the material misrepresentations and omissions detailed
`herein for the express purpose of inducing Plaintiffs and other reasonable consumers to purchase
`and/or pay a premium for the Products based on the belief that they actually contained “tuna.”
`Defendants profited by selling the Products to millions of unsuspecting consumers statewide in
`California, as well as nationwide.
`CLASS ACTION ALLEGATIONS
`41. Plaintiffs bring this class action on behalf of themselves individually and all others
`similarly situated, pursuant to Fed. R. Civ. P. 23(a) and (b)(2) and/or (b)(3). Pursuant to Fed. R.
`Civ. P. 23, Plaintiffs bring this class action on behalf of themselves individually and all others
`similarly situated statewide in California. Plaintiff seeks to represent a class a comprised of all
`persons in California who, on or after January 21, 2017 (the “Class Period”) purchased the Products
`for household use and not for resale or distribution.
`42. The proposed class consists of all consumers who purchased the Products in the State
`of California for personal use and not for resale, during the time period January 21, 2017, through
`the present. Excluded from the Class are Defendants, their affiliates, employees, officers and
`directors, any individual who received remuneration from Defendants in connection with that
`individual’s use or endorsement of the Products, the Judge(s) assigned to this case, and the attorneys
`of record in this case. Plaintiffs reserve the right to amend the Class definitions if discovery and
`further investigation reveal that the Class should be expanded or otherwise modified.
`43. This action is properly brought as a class action for the following reasons:
`(a) The members in the proposed class, which contains no less than one thousand members
`and based on good information and belief is comprised of several thousands of individuals,
`are so numerous that individual joinder of all members is impracticable and disposition of
`the class members’ claims in a single class action will provide substantial benefits to the
`parties and Court, and is in the best interests of the parties and judicial economy.;
`(b) Plaintiffs stand on equal footing with and can fairly and adequately protect the interests of
`all members of the proposed class. All marketing and packaging of units of the Products
`bear the misleading “tuna” labeling and are falsely advertised as “tuna.” Defendants’ 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
`
`Error! Unknown document property name.
`
`
`10
`10
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 11 of 25
`
`
`
`
`
`statements and “tuna” labeling occur on the packaging of the units of Products themselves,
`and thus every individual consumer who purchases the Products is exposed to the false
`advertising. Defendants have, or have access to, address information for the Class
`Members, which may be used for the purpose of providing notice of the pendency of this
`class action. Further, the class definition itself describes a set of common characteristics
`sufficient to allow a prospective plaintiff or class member to identify herself or himself as
`having a right to recover based on the description. ;
`(c) Plaintiffs will fairly and adequately represent and protect the interests of the class, have no
`interest incompatible with the interests of the class, and have retained counsel competent
`and experienced in class actions, consumer protection, and false advertising litigation,
`including within the context of food and the food industry. Plaintiffs’ attorneys have the
`experience, knowledge, and resources to adequately and properly represent the interests of
`the proposed class. Plaintiffs have no interests antagonistic to those of other proposed class
`members, and they have retained attorneys experienced in consumer class actions and
`complex litigation as counsel.;
`(d) Class treatment is superior to other options for resolution of the controversy because the
`relief sought for each class member is so small, that, absent representative litigation, it
`would be infeasible for class members to redress the wrongs done to them. Prosecution of
`separate actions by individual members of the proposed class would create a risk of
`inconsistent or varying adjudications with respect to individual members of the class and
`thus establish incompatible standards of conduct for the party or parties opposing the class.
`Further, individual cases would be so numerous as to inefficiently exhaust judicial
`resources. Plaintiffs seek damages and equitable relief on behalf of the proposed class on
`grounds generally applicable to the entire proposed class.;
`(e) Questions of law and fact common to the class predominate over any questions affecting
`only individual class members. There are questions of law and fact common to the proposed
`class which predominate over any questions that may affect particular class members. Such
`questions of law and fact common to Plaintiffs and the class include, without limitation:
`
`Error! Unknown document property name.
`
`
`11
`11
`CLASS ACTION 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 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 12 of 25
`
`
`
`
`
`i. Whether Defendants were unjustly enriched by their conduct;
`ii. Whether Class Members suffered an ascertainable loss as a result of
`Defendants’ misrepresentations;
`iii. Whether, as a result of Defendants’ misconduct as alleged herein, Plaintiffs
`and the Class Members are entitled to restitution, injunctive relieve and/or
`monetary relief, and if so, the amount and natural of such relief;
`iv. Whether Defendants made any statement they knew or should have known
`were false or misleading;
`v. Whether Defendants maintained a longstanding marketing policy, practice
`and strategy of labeling, advertising and selling the Products with the “tuna”
`claim even though they were not comprised of tuna;
`vi. Whether the utility of Defendants’ practices, if any, outweighed the gravity
`of the harm to their victims;
`vii. Whether Defendants’ conduct violated public policy, included as declared
`by specific constitutional, statutory, or regulatory provisions;
`viii. Whether Defendants’ conduct or any of their practices violated the
`California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq.,
`the California Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et
`seq., The Federal Food, Drug and Cosmetics Act, 28 U.S.C. §§ 301 et seq.
`and its implementing regulations, 21 C.F.R. §§ 101 et seq., the Cal. Health
`& Safety Code §§ 109875 et seq., or any other regulation, statute or law;
`ix. Whether Defendants passed off the Products as that of another, within the
`meaning of Cal. Civ. Code § 1770(a)(1);
`x. Whether Defendants misrepresented the source, sponsorship, approval or
`certification of the Products, within the meaning of Cal. Civ. Code §
`1770(a)(2);
`
`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
`
`Error! Unknown document property name.
`
`
`12
`12
`CLASS ACTION COMPLAINT
`
`
`
`Case 4:21-cv-00498-DMR Document 4 Filed 01/21/21 Page 13 of 25
`
`
`
`
`
`xi. Whether Defendants misrepresented the Products’ affiliation, connection or
`association with, or certification by another, within the meaning of Cal. Civ.
`Code § 1770(a)(3);
`xii. Whether Defendants represented that the Products have characteristics, uses, or
`benefits which they does not have, within the meaning of Cal. Civ. Code §
`1770(a)(5);
`xiii. Whether Defendants represented that the Products are of a particular standard,
`quality, or grade, when they were really of another, within the meaning of Cal.
`Civ. Code § 1770(a)(7);
`xiv. Whether Defendants advertised the Products with the intent not to sell them as
`advertised, within the meaning of Cal. Civ. Code § 1770(a)(9);
`xv. Whether Defendants represented that the Products have been supplied in
`accordance with a previous representation when they have not, within the
`meaning of Cal. Civ. Code § 1770(a)(16);
`xvi. The proper equitable and injunctive relief;
`xvii. The proper amount of restitution or disgorgement;
`xviii. The proper amount of reasonable litigation expenses and attorneys’ fees;
`(f) Plaintiffs’ claims are typical of the claims of the members of the proposed class. Plaintiffs
`and all class members have been injured by the same practices of Defendants. Plaintiffs’
`claims arise from the same practices and conduct that give rise to the claims of all class
`members and are based on the same legal theories. Plaintiffs’ claims are typical of class
`members’ claims, as they are based on the same underlying facts, events and circumstances
`relating to Defendants’ conduct.;
`(g) As a result of the foregoing, class treatment is appropriate under Fed. R. Civ. P. 23(a),
`(b)(1), (b)(2) and (b)(3), and may be appropriate for certification “with respect to particular
`issues” under Rule 23(b)(4).
`
`///
`///
`
`Error! Unknown document property name.
`
`
`13
`13
`CLASS ACTION COMPLAINT
`
`1
`2
`3
`4
`5
`6
`7
`8