Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 1 of 28
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`GUTRIDE SAFIER LLP
`SETH A. SAFIER (State Bar No. 197427)
`seth@gutridesafier.com
`MARIE A. MCCRARY (State Bar No. 262670)
`marie@gutridesafier.com
`HAYLEY REYNOLDS (State Bar No. 306427)
`hayley@gutridesafier.com
`100 Pine Street, Suite 1250
`San Francisco, CA 94111
`Telephone: (415) 336-6545
`Facsimile: (415) 449-6469
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`Case No.: ________________
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`CLASS ACTION COMPLAINT FOR
`VIOLATION OF THE CALIFORNIA
`UNFAIR COMPETITION LAW; FAL;
`COMMON LAW FRAUD; CONSUMERS
`LEGAL REMEDIES ACT; AND UNJUST
`ENRICHMENT
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`JURY TRIAL DEMANDED
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`- 1 -
`CLASS ACTION COMPLAINT
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`GILLIAN DAVIDSON and SAMUEL
`DAVIDSON, on behalf of themselves and those
`similarly situated,
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`Plaintiffs,
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`v.
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`SPROUT FOODS INC.,
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`Defendant.
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 2 of 28
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`I.
`Plaintiffs Gillian Davidson and Samuel Davidson, by and through their counsel,
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`INTRODUCTION
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`1.
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`bring this class action against Defendant Sprout Foods Inc. d/b/a Sprout (“Defendant”) to seek
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`redress for Defendant’s deceptive and unlawful practices in labeling and marketing the Sprout
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`brand baby and toddler food products.
`2.
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`Parents are increasingly aware of the need to provide healthy food for their
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`children, especially at the critical age of less than 2 years old. To make healthy food choices for
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`their children, parents rely on nutritional information on food product labels.
`3.
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`Intending to profit from parents’ increasing desire to purchase health food for
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`their young children, Defendant misbrands its baby and toddler food products by making
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`nutrient content claims on the product packages that are strictly prohibited by the Food and
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`Drug Administration (“FDA”), and by misleading purchasers into believing that its products are
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`healthier than other products for children under two years of age in order to induce parents into
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`purchasing Defendant’s products.
`4.
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`Defendant’s misbranding caused Plaintiffs and members of the class to pay a
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`price premium for the products.
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`II.
`Gillian Davidson is, and at all times alleged in this Class Action Complaint was,
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`PARTIES
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`5.
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`an individual and a resident of Oakland, California.
`6.
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`Samuel Davidson is, and at all times alleged in this Class Action Complaint was,
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`an individual and a resident of Oakland, California. Samuel Davidson and Gillian Davidson are
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`spouses.
`7.
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`Defendant Sprout Foods Inc. d/b/a Sprout, is a corporation existing under the
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`laws of the State of Delaware, having its principal place of business in the State of New Jersey.
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 3 of 28
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`III.
`This Court has jurisdiction over the subject matter of this action pursuant to
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`JURISDICTION AND VENUE
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`8.
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`28 U.S.C. § 1332(d)(2). The aggregate amount in controversy exceeds $5,000,000, exclusive of
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`interest and costs; and Plaintiffs and at least one Defendant are citizens of different states.
`9.
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`The injuries, damages and/or harm upon which this action is based, occurred, or
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`arose out of activities engaged in by Defendant within, affecting, and emanating from, the State
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`of California. Defendant regularly conduct and/or solicit business in, engage in other persistent
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`courses of conduct in, and/or derive substantial revenue from products provided to persons in
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`the State of California. Defendant has engaged, and continue to engage, in substantial and
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`continuous business practices in the State of California.
`10.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a
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`substantial part of the events or omissions giving rise to the claims occurred in the state of
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`California, including within this District.
`11.
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`In accordance with California Civil Code Section 1780(d), Plaintiffs concurrently
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`file herewith a declaration establishing that, at various times throughout the class period, they
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`purchased the following Sprout Products: Pumpkin, Apple, Red Lentil, and Cinnamon;
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`Strawberry with Banana & Butternut Squash; and Sweet Potato, White Beans, and Cinnamon
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`pouches in Oakland, California. (Plaintiffs’ declarations are attached hereto as Exhibits B and C.)
`12.
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`Plaintiffs accordingly allege that jurisdiction and venue are proper in this Court.
`IV.
`Defendant manufactures, distributes, markets, advertises, and sells a variety of
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`SUBSTANTIVE ALLEGATIONS
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`13.
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`baby and toddler food products under the brand name “Sprout.” Many of these products have
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`packaging that predominately, uniformly, and consistently make nutrient content claims on the
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`principal display panel of the product labels (the “Products”). A non-exhaustive list of the
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`Products and the express nutrient content claims made on the product packages is attached
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`hereto as Exhibit A.
`14.
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`The Products are intended for children under the age of two. Many of the
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`Products are baby food “pouches.” These pouches that contain pureed baby food were
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 4 of 28
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`introduced to the market over a decade ago, and as of 2018, accounted for 25 percent of baby
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`food sales in the United States.
`15.
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`FDA regulations explicitly prohibit certain nutrient content claims on foods
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`intended for children under the age of two. 21 C.F.R. § 101.13(b)(3).
`16.
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`An ever-growing industry, there is seemingly no limit to the combination of
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`foods that can go into baby food pouches, as evidenced by the wide array of flavors of the
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`Products. Looking for a way to differentiate itself in the growing market, Defendant has turned
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`to making nutrient content claims on the front of the Product labels.
`17.
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`For example, Defendant has a line of “Power Pak” baby food pouches called that
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`states on the front label, “3g of Protein, 5g of Fiber and 300mg Omega-3 from Chia ALA” and
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`“12 Months & Up.” An exemplar is shown below:
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`18.
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`Another line of pouches advertises “plant protein power” and states on the front
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`label “2 grams of Plant Protein Power” and “6 Months & Up.” An exemplar is shown below.
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 5 of 28
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`19.
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`As described in detail below, Defendant’s advertising and labeling of the
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`Products with express nutrient content claims is unlawful, misleading, deceptive, and intended
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`to induce consumers to purchase the Products at a premium price. These claims deceive and
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`mislead reasonable consumers into believing that the Products will provide more benefits than
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`its competitors, and induces parents to purchase the Products despite a lack of evidence that an
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`increased intake for the nutrients advertised are appropriate or recommended for infants and
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`toddlers less than 2 years of age.
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`Federal and State Regulations Governing Food Labeling
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`20.
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`The Food and Drug Administration regulates nutrition content labeling.
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`According to these regulations, “no nutrient content claims may be made on food intended
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`specifically for use by infants and children less than 2 years of age,” subject to certain
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`exceptions not applicable here. 21 C.F.R. § 101.13(b)(3).
`21.
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`According to the regulations, nutrient content claims can be expressed or implied.
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`21 C.F.R. § 101.13(b)(1), 21 C.F.R. § 101.13(b)(2).
`22.
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`An express nutrient content claim is “any direct statement about the level (or
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`range) of a nutrient in the food.” 21 C.F.R. § 101.13(b)(1). Further, where information that is
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`required or permitted to be “declared in nutrition labeling, and that appears as part of the
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 6 of 28
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`nutrition label . . . is declared elsewhere on the label or in labeling, it is a nutrient content claim
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`and is subject to the requirements for nutrient content claims.” 21 C.F.R. § 101.13(c).
`23.
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`Identical federal and California laws regulate the content of labels on packaged
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`food and require truthful, accurate information on the labels of packaged foods. The
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`requirements of the federal Food, Drug & Cosmetic Act (“FDCA”), and its labeling regulations,
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`including those set forth in 21 C.F.R. § 101, were adopted by the California legislature in the
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`Sherman Food Drug & Cosmetic Law (the “Sherman Law”). California Health & Safety Code §
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`110100 (“All food labeling regulations and any amendments to those regulations adopted
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`pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be
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`the food labeling regulations of this state.”). The federal laws and regulations discussed herein
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`are applicable nationwide to all sales of packaged food products. Additionally, no state imposes
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`different requirements on labeling of packaged food for sale in the United States.
`24.
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`Under the FDCA, the term “misleading” covers labels that are technically true,
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`but are likely to deceive consumers. Under the FDCA, if any single representation on the
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`labeling is misleading, the entire food is misbranded, and no other statement in the labeling can
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`cure a misleading statement.
`25.
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`Further in addition to its blanket adoption of federal labeling requirements,
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`California has also enacted a number of laws and regulations that adopt and incorporate specific
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`numerated federal food laws and regulations. See California Health & Safety Code § 110660
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`(misbranded if label is misleading).
`26.
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`Under California law, a food product that is “misbranded” cannot legally be
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`manufactured, advertised, distributed, sold, or possessed. Misbranded products have no
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`economic value and are legally worthless.
`27.
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`Representing that the Products will provide certain health benefits by making
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`unlawful nutrient content claims as Defendant’s labels do is prohibited by the aforementioned
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`misbranding laws and regulations.
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 7 of 28
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`28.
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`The regulations relating to nutrient content claims discussed herein are intended
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`to ensure that consumers are not misled as to the actual or relative levels of nutrients in food
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`products.
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`Defendant’s Marketing and Labeling of the Products Violates State and Federal Food
`Labeling Laws
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`29.
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`The Products are unlawful, misbranded, and violate the Sherman Law, California
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`Health & Safety Code § 110660, et seq., because the Products are intended for children less
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`than 2 years of age and the Products’ labels contain nutrient content claims.
`30.
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`The Products at issue in this case are intended for children 8 months and up, if
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`not younger.
`31.
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`Some Product labels explicitly state on the label the age for which the Product is
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`intended. For example, the Sprout Power Pak Apple with Superblend Blueberry Plum Pouch is
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`labeled “12 Months & Up.” The Sprout Butternut Chickpea Quinoa Dates Pouch is labeled “8
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`Months & Up.”
`32.
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`Other Product labels do not include an intended age. However, the Products are
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`in the “Baby Food” grocery store aisles, alongside similar puree pouch products.
`33.
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`Defendant misbrands the Products by making nutrient content claims that are
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`strictly prohibited by the FDA, and by misleading purchasers into believing that its products
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`are healthier in order to induce parents into purchasing the Products.
`34.
`shown in Exhibit A, the Product labels prominently state nutrient content claims on the front
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`All the Product labels contain impermissible express nutrient content claims. As
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`label such as “3g of Protein, 4g of Fiber and 300mg Omega-3 from Chia ALA.” The grams of
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`protein and fiber appear in the nutrition facts panel and are therefore nutrient content claims
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`when stated elsewhere on the label. 21 C.F.R. § 101.13(c). The statement of the presence of
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`other nutrients are also express nutrient content claims because it is a direct statement about the
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`level of a nutrient in the product. See 21 C.F.R. § 101.13(b)(1).
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 8 of 28
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`35.
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`Foods intended for children less than two are prohibited from making such
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`nutrient content claims. 21 C.F.R. § 101.13(b)(3). Therefore, the Products are accordingly
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`misbranded.
`36.
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`Defendant’s marketing, advertising, and sale of the Products violates the false
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`advertising provisions of the Sherman Law (California Health & Safety Code § 110390, et.
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`seq.), including but not limited to:
`a.
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`Section 110390, which makes it unlawful to disseminate false or misleading food
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`advertisements that include statements on products and product packaging or
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`labeling or any other medium used to directly or indirectly induce the purchase of a
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`food product;
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`b.
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`Section 110395, which makes it unlawful to manufacture, sell, deliver, hold, or
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`offer to sell any falsely or misleadingly advertised food; and
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`c.
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`Sections 110398 and 110400, which make it unlawful to advertise misbranded
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`food or to deliver or proffer for delivery any food that has been falsely or
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`misleadingly advertised.
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`37.
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`Defendant’s marketing, advertising, and sale of the Products violates the
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`misbranding provisions of the Sherman Law (California Health & Safety Code § 110660, et.
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`seq.), including but not limited to:
`a.
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`Section 110665 (a food is misbranded if its labeling does not conform with the
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`requirements for nutrition labeling as set forth in 21 U.S.C. Sec. 343(q));
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`b.
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`Section 110760, which makes it unlawful for any person to manufacture, sell,
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`deliver, hold, or offer for sale any food that is misbranded;
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`c.
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`Section 110765, which makes it unlawful for any person to misbrand any food;
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`and
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`d.
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`Section 110770, which makes it unlawful for any person to receive in commerce
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`any food that is misbranded or to deliver or proffer for delivery any such food.
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`38.
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`Defendant has violated 21 U.S.C. § 343(a), and the standards set by FDA
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`regulations, including, but not limited to, 21 C.F.R. §§ 101.13(b), 101.13(c), which have been
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 9 of 28
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`incorporated by reference in the Sherman Law, by including impermissible nutrient content
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`claims on the labels of foods intended for children less than 2 years of age.
`39.
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`A reasonable consumer would rely on the label claims to purchase the product.
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`For example, a reasonable consumer would believe that because Defendant labeled the Products
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`as containing certain nutrients and as being nutritious, that they were superior to other similar
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`products that do not make the impermissible claims. A reasonable consumer would also believe
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`that the Product label’s inclusion of the nutrient content claims means that an increased intake
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`of those nutrients would be beneficial for his or her child.
`40.
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`Defendant intends for and know that consumers will and do rely upon food
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`labeling statements in making their purchasing decisions. Label claims and other forms of
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`advertising and marketing drive product sales, particularly if placed prominently on the front of
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`product packaging, as Defendant has done on the Product labels.
`41.
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`Because consumers pay a price premium for Products that have a nutrient
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`content claim, by labeling the Products as providing nutritional value, Defendant is able to both
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`increase its sales and retain more profits.
`42.
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`Defendant engaged in the practices complained of herein to further its private
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`interests of: (i) increasing sales of its Products while decreasing the sales of competitors’
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`products that do not make unlawful nutrient content claims, and/or (ii) commanding a higher
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`price for the Products because consumers will pay more for them due to consumers’ demand for
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`healthful products for their children.
`43.
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`The market for baby food pouch products continues to grow, and because
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`Defendant knows consumers rely on the nutrient content claims on the Product labels,
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`Defendant has an incentive to continue to make such misleading and unlawful representations.
`44.
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`Defendant continues to launch new product lines with nutrient content claims to
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`maintain its competitive edge, making it likely that Defendant will continue to misleadingly
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`advertise its Products.
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 10 of 28
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`V.
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`PLAINTIFFS’ EXPERIENCE
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`Gillian Davidson
`45.
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`During the last four years, Ms. Davidson purchased several Sprout Organic food
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`pouches for her child starting when her child was under 2 years of age, including each of the
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`following varieties: Pumpkin, Apple, Red Lentil, and Cinnamon; Strawberry with Banana &
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`Butternut Squash; and Sweet Potato, White Beans, and Cinnamon. She purchased the products
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`primarily from Amazon.com.
`46. Ms. Davidson made each of her purchases after reading the nutrient content
`claims on the product labels, including, for example, “Contains 3g of Protein.” She purchased
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`the Products instead of other products, because she believed the Products to be superior in
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`providing nutrition for her child.
`47.
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`As a result of Defendant’s unlawful nutrient content claims, the Products have
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`no, or at a minimum, a much lower value to Ms. Davidson.
`48. Ms. Davidson not only purchased the Products because the labels contained
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`nutrient content claims, but she also paid more money for the Products than she would have
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`paid for them if they did not contain nutrient content claims.
`49.
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`Had Defendant not unlawfully and misleadingly labeled the Products, Ms.
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`Davidson would not have purchased them or, at a very minimum, she would have paid less for
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`the Products.
`50. Ms. Davidson continues to desire to purchase pouch products, including those
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`marketed and sold by Defendant. If the Products did not contain deceptive and misleading
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`labels, Plaintiffs would likely purchase the Products again in the future. Ms. Davidson regularly
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`shops at stores and online retailers where the Products and other baby food pouch products are
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`sold.
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`Samuel Davidson
`51.
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`During the last four years, Mr. Davidson purchased several Sprout Organic food
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`pouches for his child starting when his child was under 2 years of age, including each of the
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`following varieties: Pumpkin, Apple, Red Lentil, and Cinnamon; Strawberry with Banana &
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`CLASS ACTION COMPLAINT
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 11 of 28
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`Butternut Squash; and Sweet Potato, White Beans, and Cinnamon. He purchased the products
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`primarily from Amazon.com.
`52. Mr. Davidson made each of his purchases after reading the nutrient content
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`claims on the product labels, including, for example, “Contains 3g of Protein.” He purchased
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`the Products instead of other products, because he believed the Products to be superior in
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`providing nutrition for his child.
`53.
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`As a result of Defendant’s unlawful nutrient content claims, the Products have
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`no, or at a minimum, a much lower value to Mr. Davidson.
`54. Mr. Davidson not only purchased the Products because the labels contained
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`nutrient content claims, but he also paid more money for the Products than he would have paid
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`for them if they did not contain nutrient content claims.
`55.
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`Had Defendant not unlawfully and misleadingly labeled the Products, Ms.
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`Davidson would not have purchased them or, at a very minimum, he would have paid less for
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`the Products.
`56. Mr. Davidson continues to desire to purchase pouch products, including those
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`marketed and sold by Defendant. If the Products did not contain deceptive and misleading
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`labels, Plaintiffs would likely purchase the Products again in the future. Mr. Davidson regularly
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`shops at stores where the Products and other baby food pouch products are sold.
`57.
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`Plaintiffs and members of the Class have been economically damaged by their
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`purchase of the Products because the advertising for the Products was and is misleading under
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`California law and the products are misbranded; therefore, the Products are worth less than what
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`Plaintiffs and members of the Class paid for them.
`VI. CLASS ALLEGATIONS
`Plaintiffs bring this class action lawsuit on behalf of themselves and a proposed
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`58.
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`class of similarly situated persons, pursuant to Rule 23(b)(2) and (b)(3) of the Federal Rules of
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`Civil Procedure. Plaintiffs seek to represent the following group of similarly situated persons,
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`defined as follows:
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 12 of 28
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`Class: All persons in the State of California who purchased the Products between
`February 18, 2018 and the present.
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`59.
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`This action has been brought and may properly be maintained as a class action
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`against Defendant because there is a well-defined community of interest in the litigation and the
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`proposed class is easily ascertainable.
`60.
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`Numerosity: Plaintiffs do not know the exact size the Class, but they estimate
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`that it is composed of more than 100 persons. The persons in the Class are so numerous that the
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`joinder of all such persons is impracticable and the disposition of their claims in a class action
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`rather than in individual actions will benefit the parties and the courts.
`61.
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`Common Questions Predominate: This action involves common questions of law
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`and fact to the Class because each class member’s claim derives from the deceptive, unlawful
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`and/or unfair statements and omissions that led them to rely on the unlawful nutrient content
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`claims on the Product labels. The common questions of law and fact predominate over
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`individual questions, as proof of a common or single set of facts will establish the right of each
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`member of the Class to recover. The questions of law and fact common to the Class are:
`a.
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`Whether the marketing, advertising, packaging, labeling, and other promotional
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`materials for the Products are deceptive and/or unlawful;
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`Whether Defendant’s actions violate Federal and California laws invoked herein;
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`Whether labeling the Products with unlawful nutrient content claims causes the
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`Products to command a price premium in the market as compared with similar
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`products that do not make such unlawful claims;
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`Whether Defendant’s advertising and marketing regarding the Products was
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`likely to deceive reasonable consumers;
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`Whether representations regarding the nutrient content of the Products are
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`material to a reasonable consumer;
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`Whether Defendant engaged
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`in
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`the behavior knowingly, recklessly, or
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`b.
`c.
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`d.
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`e.
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`f.
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`negligently;
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`g.
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`h.
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`i.
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`The amount of profits and revenues earned by Defendant as a result of the
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`conduct;
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`Whether class members are entitled to restitution, injunctive and other equitable
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`relief and, if so, what is the nature (and amount) of such relief; and
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`Whether class members are entitled
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`to payment of actual,
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`incidental,
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`consequential, exemplary and/or statutory damages plus interest thereon, and if
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`so, what is the nature of such relief.
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`62.
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`Typicality: Plaintiffs’ claims are typical of the claims of the other members of
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`the Class because, among other things, all such claims arise out of the same wrongful course of
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`conduct engaged in by Defendant in violation of law as complained of herein. Further, the
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`damages of each member of the Class were caused directly by Defendant’s wrongful conduct in
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`violation of the law as alleged herein.
`63.
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`Adequacy of Representation: Plaintiffs will fairly and adequately protect the
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`interests of all class members because it is in their best interests to prosecute the claims alleged
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`herein to obtain full compensation due to them for the unfair and illegal conduct of which they
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`complain. Plaintiffs also have no interests that are in conflict with, or antagonistic to, the
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`interests of class members. Plaintiffs have retained highly competent and experienced class
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`action attorneys to represent her interests and that of the class. By prevailing on their own
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`claims, Plaintiffs will establish Defendant’s liability to all class members. Plaintiffs and their
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`counsel have the necessary financial resources to adequately and vigorously litigate this class
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`action, and Plaintiffs and counsel are aware of their fiduciary responsibilities to the class
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`members and are determined to diligently discharge those duties by vigorously seeking the
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`maximum possible recovery for class members.
`64.
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`Superiority: There is no plain, speedy, or adequate remedy other than by
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`maintenance of this class action. The prosecution of individual remedies by members of the
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`class will tend to establish inconsistent standards of conduct for Defendant and result in the
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`impairment of class members’ rights and the disposition of their interests through actions to
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`which they were not parties. Class action treatment will permit a large number of similarly
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`Case 3:22-cv-01050-RS Document 1 Filed 02/19/22 Page 14 of 28
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`situated persons to prosecute their common claims in a single forum simultaneously, efficiently,
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`and without the unnecessary duplication of effort and expense that numerous individual actions
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`would engender. Furthermore, as the damages suffered by each individual member of the class
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`may be relatively small, the expenses and burden of individual litigation would make it difficult
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`or impossible for individual members of the class to redress the wrongs done to them, while an
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`important public interest will be served by addressing the matter as a class action.
`65.
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`Plaintiffs are unaware of any difficulties that are likely to be encountered in the
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`management of this action that would preclude its maintenance as a class action.
`VII. CAUSES OF ACTION
`Plaintiffs do not plead, and hereby disclaim, causes of action under the FDCA and
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`regulations promulgated thereunder by the FDA. Plaintiffs rely on the FDCA and FDA
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`regulations only to the extent such laws and regulations have been separately enacted as state
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`law or regulation or provide a predicate basis of liability under the state and common laws cited
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`in the following causes of action.
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`PLAINTIFFS’ FIRST CAUSE OF ACTION
`(Violation of the Consumers Legal Remedies Act (the “CLRA”), California Civil
`Code § 1750, et seq.)
`On Behalf of Themselves and the Class
`Plaintiffs reallege and incorporate the paragraphs of this Class Action Complaint
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`66.
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`as if set forth herein.
`67.
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`Plaintiffs and other subclass members are “consumers” as that term is defined by
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`the CLRA in California Civil Code § 1761(d).
`68.
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`The Products that Plaintiffs (and other similarly situated subclass members)
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`purchased from Defendant were “goods” within the meaning of California Civil Code §
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`1761(a).
`69.
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`Defendant’s actions, representations and conduct have violated, and continue to
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`violate the CLRA, because they extend to transactions that are intended to result, or which have
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`resulted, in the sale or lease of goods or services to consumers.
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`70.
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`Defendant’s acts and practices, set forth in this Class Action Complaint, led
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`Plaintiffs and other similarly situated consumers to falsely believe that the Products were
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`superior to other products and would provide increased nutritional value for their babies. By
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`engaging in the actions, representations and conduct set forth in this Class Action Complaint,
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`Defendant has violated, and continue to violate, § 1770(a)(2), § 1770(a)(5), § 1770(a)(7), and
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`§ 1770(a)(8) of the CLRA. In violation of California Civil Code §1770(a)(2), Defendant’s acts
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`and practices constitute improper representations regarding the source, sponsorship, approval,
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`or certification of the goods they sold. In violation of California Civil Code §1770(a)(5),
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`Defendant’s acts and practices constitute improper representations that the goods they sell have
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`sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities, which they do
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`not have. In violation of California Civil Code §1770(a)(7), Defendant’s acts and practices
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`constitute improper representations that the goods it sells are of a particular standard, quality, or
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`grade, when they are of another. In violation of California Civil Code §1770(a)(8), Defendant
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`has disparaged the goods, services, or business of another by false or misleading representation
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`of fact.
`71.
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`Plaintiffs request that this Court enjoin Defendant from continuing to employ the
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`unlawful methods, acts and practices alleged herein pursuant to California Civil Code
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`§ 1780(a)(2). If Defendant is not restrained from engaging in these types of practices in the
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`future, Plaintiffs and the other members of the subclass will continue to suffer harm. Plaintiffs
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`and those similarly situated have no adequate remedy at law to stop Defendant’s continuing
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`practices.
`72.
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`Plaintiffs provided Defendant with notice and demand that Defendant corrects,
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`repair, replace or otherwise rectify the unlawful, unfair, false and/or deceptive practices
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`complained of herein. Despite receiving the aforementioned notice and demand, Defendant
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`failed to do so in that, among other things, they failed to identify similarly situated customers,
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`notify them of their right to correction, repair, replacement or other remedy, and/or to provide
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`that remedy. Accordingly, Plaintiffs seek, pursuant to California Civil Code § 1780(a)(3), on
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`behalf of themselves and those similarly situated class members, compensatory damages,
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`punitive damages and restitution of any ill-gotten gains due to Defendant’s acts and practices.
`73.
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`Plaintiffs also request that this Court award their costs and reasonable attorneys’
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`fees pursuant to California Civil Code § 1780(d).
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`PLAINTIFFS’ SECOND CAUS