Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 1 of 30
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-mail: ltfisher@bursor.com
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`v.
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`Plaintiff,
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` Defendant.
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`CECELIA MOSHER-CLARK, individually and
`on behalf of all others similarly situated,
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`GRAVITY DEFYER MEDICAL
`TECHNOLOGY CORPORATION,
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 2 of 30
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`Plaintiff Cecelia Mosher-Clark (“Plaintiff”) brings this action on behalf of herself and all
`others similarly situated against Defendant Gravity Defyer Medical Technology Corporation
`(“Defendant” or “GDMT”) for the manufacture, marketing, and sale of shoes and sneakers sold under
`the brand name “Gravity Defyer” and using VersoShock technology (the “Footwear”).1 Plaintiff
`makes the following allegations pursuant to the investigation of her counsel and based upon
`information and belief, except as to the allegations specifically pertaining to herself, which are based
`on personal knowledge.
`
`NATURE OF THE ACTION
`1.
`This is a class action on behalf of purchasers of Defendant’s shoes and sneakers in
`the United States. Since at least 2016, Defendant has advertised that the Footwear contains soles
`with VersoShock technology, which it claims are “clinically proven” to provide significant pain
`relief, including neck, knee, back, ankle, and foot pain. In reality though, the Footwear is not
`“clinically proven” to provide pain relief, including relief for knee pain, back pain, ankle pain, and
`foot pain, nor does it provide pain relief at all.
`2.
`As part of its marketing approach, Defendant makes extensive “clinically shown” or
`“clinically roven” claims about the pain-relieving properties of its Footwear. Defendant purports to
`back up its claims with a double-blind study conducted by the Olive View UCLA Medical Center.
`This study bears significant flaws and is unreliable, however, and Defendant’s use of this study to
`bolster its claims about the Footwear is highly misleading.
`3.
`The National Advertising Division of the Better Business Bureau has repeatedly
`demanded that Defendant reform its marketing of the Footwear. Indeed, Defendant’s deception has
`led the FTC to file a complaint (the “FTC Complaint”) against Defendant for its unlawful conduct.2
`Yet, Defendant continues to knowingly make these representations because consumers are willing
`
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`1 The Footwear refers to all of Defendant’s shoes or sneakers sold with Versoshock technology, as
`listed here: https://www.gravitydefyer.com/features/versoshock. These include but are not limited
`to the Gravity Defyer Pain Relief Women’s G-Defy Mighty Walk Athletic Shoes.
`2 Complaint, FTC v. Gravity Defyer, File Number 1923117, https://www.ftc.gov/system/
`files/ftc_gov/pdf/1923114GravityDefyerComplaintExhibitArev.pdf.
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 3 of 30
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`to pay more for products they believe have been specifically designed to and proven to provide pain
`relief for various conditions.
`4.
`Had Defendant disclosed that the Footwear was not in fact “clinically proven” to
`provide extensive neck, back, knee, ankle, and foot pain relief, and that the Footwear did not in fact
`provide pain relief, Plaintiff and members of the Class would not have purchased the Footwear, or
`would have paid significantly less for the Footwear than they did.
`5.
`Plaintiff and members of the Class were accordingly injured by the price premium
`they paid for the Footwear due to Defendant’s misrepresentation that the Footwear was clinically
`proven to provide extensive neck, knee, back, ankle, and foot pain relief, when in fact, the Footwear
`does not provide such pain relief at all, let alone that it is not “clinically proven” to do so.
`6.
`Plaintiff brings this action individually and on behalf of a class of all other similarly
`situated purchasers for a permanent injunction, and to recover damages and restitution for:
`(i) violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. (the
`“UCL”); (ii) violation of California’s Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750, et
`seq. (the “CLRA”); (iii) violation of California’s False Advertising Law, Cal. Bus. & Prof. Code
`§§ 17500, et seq. (the “FAL”); (iv) violation of the Song-Beverly Consumer Warranty Act, Cal. Civ.
`Code §§ 1790, et seq. and California Commercial Code § 2314; (v) violation of the Magnuson-Moss
`Warranty Act, 15 U.S.C. §§ 2301, et seq.; (vi) breach of express warranty under U.C.C. § 2-313; and
`(vii) breach of implied warranty under U.C.C. § 2-314.
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`FACTUAL ALLEGATIONS COMMON TO ALL PARTIES
`Since 2011, Defendant has manufactured, marketed, sold, and distributed footwear to
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`7.
`consumers.
`8.
`Defendant offers over 100 different styles of shoes for men and women, including
`athletic shoes, casual shoes, dress shoes, hiking shoes and boots, and sandals.
`9.
`Defendant sells its Footwear to consumers throughout the United States, including to
`consumers in this District, through Defendant’s website, www.gravitydefyer.com; its in-house call
`center; stores located in Los Angeles, Huntington Beach, Palm Desert, and Encino, CA; and retailers
`such as The Walking Company, Hammacher Schlemmer, and Shoe City.
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 4 of 30
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`10.
`The Footwear sells for between $60, on the low end, for some sandals with Veroshock
`technology, and $235, on the high end, for work boots with Veroshock technology.3
`11.
`Defendant leans heavily on the promise that its Footwear will provide significant
`levels of pain relief. Indeed, Defendant’s homepage features the following graphic, which states that
`a “double-blind study by Olive View UCLA Medical Center”4 has demonstrated that the Footwear
`is “clinically shown to relieve knee pain” by 85%, along with back pain by 91%, ankle pain by 92%,
`and foot pain by 75%.
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`12.
`Defendant also made representations in other areas of its website that the Footwear
`“really relieve[s] pain” and is “clinically proven to relieve pain”:
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`3 https://www.gravitydefyer.com/features/versoshock?order=onlinecustomerprice:desc.
`4 The study was in fact commissioned by Gravity Defyer, and the Olive View UCLA Medical
`Center is a hospital system that is an entirely separate organization from the University of
`California, Los Angeles.
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 5 of 30
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`13.
`in other
`identical representations
`Defendant made substantially similar or
`advertisements, such as magazines and Defendant’s catalogue, each promising that the Footwear was
`“clinically proven” to provide knee, back, ankle, and foot pain, or telling consumers they could “live
`life pain free”:
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`An excerpt of a magazine ad that ran from approximately 2018 to 2020
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 6 of 30
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`The cover of Defendant’s September 2019 Catalogue
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`An excerpt of a magazine ad that ran from approximately 2017 to 2018
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`A Facebook ad from January 2020
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`14.
`Based on the foregoing advertisements, among others, reasonable consumers such as
`Plaintiff were led to believe and did believe that the Footwear provided pain relief, including knee,
`back, ankle, and foot pain.
`15.
`These claims, however, are false. Defendant’s Footwear cannot, and does not,
`provide pain relief, let alone that the Footwear is “clinically proven” to do so.
`16.
`The “study” underpinning Defendant’s claims is fatally deficient for numerous
`reasons, including:
`(a) The study was only designed to measure knee pain, which clearly calls
`into question claims that Gravity Defyer footwear relieves back,
`ankle, and foot pain.
`(b) The study included participants who stopped wearing the shoes, which
`obviously calls into question the results obtained.
`(c) The study relied solely on participants’ self-reported pain levels, when
`it could have included range of motion or other functional tests of
`pain.
`(d) The study failed to control for other treatments that participants might
`have received (such as medications or physical therapy), which could
`have affected participants’ pain levels.
`(e) The study was of insufficient size (52 participants) and duration (five
`weeks) and failed to ensure adequate double-blinding. 
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 9 of 30
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`17.
`Thus, the study was not sufficient to determine the effects of wearing the Footwear
`on knee, back, ankle, or foot pain, or pain associated with the specific conditions claimed.
`18.
`Indeed, the study was so deficient that both the FTC and the Better Business Bureau
`have demanded that GDMT cease entirely from claiming that its Footwear can provide pain relief,
`with the FTC having filed a complaint against Defendant.  
`19.
`This is not Defendant’s first instance of falsely advertising goods to consumers based
`on spurious claims. In 2001, the FTC brought suit against Defendant’s CEO, Alexander Elnekaveh,
`over claims involving a magnet that Mr. Elnekaveh sold to that public that he claimed would
`significantly reduce fuel consumption and harmful emissions. See In re Esrim Ve Sheva Holding
`Corp., 132 F.T.C. 736 (2001). Mr. Elnekaveh settled with the FTC and became subject to an order
`that prevented him, directly or through a corporation, from using improper studies to misrepresent
`his goods and mislead the public.
`20.
`Accordingly, because Mr. Elnekaveh is the CEO of GDMT, Defendant was aware of
`the order and had knowledge of what kinds of advertising statements would and would not be
`considered misleading to consumers.
`21.
`Plaintiff, and all others similarly situated consumers, relied on GDMT’s claims of
`pain relief in making their decision to purchase the Footwear. Put simply, Plaintiff and other
`consumers were induced into purchasing the Footwear on the reasonable but mistaken belief that the
`Footwear would provide significant pain relief, including knee pain, back pain, ankle pain, and foot
`pain. However, the Footwear does not provide such pain relief. But for GDMT’s warranties and
`misrepresentations, Plaintiff and other similarly situated consumers would not have purchased the
`Footwear, or would not have paid as much as they did for the Footwear.
`PARTIES
`22.
`Plaintiff Cecelia Mosher-Clark is a resident of Oakland, California and has an intent
`to remain there, and is therefore a citizen of California. On April 2, 2021, Plaintiff Mosher-Clark
`purchased a pair of Gravity Defyer Pain Relief Women’s G-Defy Mighty Walk Athletic Shoes, one
`of the Footwear products, for $135 from Amazon.com. Prior to her purchase, Ms. Mosher-Clark
`reviewed Defendant’s representations and warranties, which represented that the Footwear was
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 10 of 30
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`“clinically proven” to provide relief for knee pain, back pain, ankle pain, and foot pain. None of the
`advertising and marketing materials or labeling and packaging associated with the Footwear
`disclosed that the Footwear could not provide the aforementioned pain relief. Ms. Mosher-Clark
`relied on these representations and warranties in purchasing the Footwear, in that Ms. Mosher-Clark
`would not have purchased the Footwear or would have paid significantly less for it had she known
`the Footwear was not “clinically proven” to provide and in fact did not provide relief for knee pain,
`back pain, ankle pain, and foot pain. Accordingly, Ms. Mosher-Clark was injured by virtue of the
`price premium she paid for the Footwear as a result of Defendant’s misrepresentations and omissions.
`Ms. Mosher-Clark did not experience any pain relief as a result of wearing the Footwear.
`23.
`Defendant Gravity Defyer Medical Technology Corporation is a California
`corporation with its principal place of business at 10643 Glenoaks Boulevard, Pacoima, CA 91331.
`Defendant transacts or has transacted business in this District and throughout the United States. At
`all times relevant to this Complaint, acting alone or in concert with others, GDMT has advertised,
`marketed, distributed, or sold footwear to consumers throughout the United States, including in this
`District.
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`JURISTICTION AND VENUE
`24.
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`§ 1332(d) because this is a class action where there are more than 100 members and the aggregate
`amount in controversy exceeds $5,000,000.00, exclusive of interest, fees, and costs, and at least one
`member of the putative Class is a citizen of a state different from Defendant.
`25.
`This Court has general personal jurisdiction over Defendant because Defendant is
`headquartered and maintains its principal place of business in California.
`26.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Plaintiff
`purchased her Footwear and was exposed to Defendant’s misrepresentations in this District.
`CLASS ALLEGATIONS
`27.
`Plaintiff brings this action pursuant to Federal Rules of Civil Procedure 23(a) and
`23(b)(3) on behalf of a Class defined as all persons in the United States who purchased the Footwear
`during the applicable statute of limitations period (the “Class”).
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`28.
`Plaintiff also seeks to represent a subclass defined as all Class Members who
`purchased the Footwear in California during the applicable statute of limitations period (the
`“Subclass”).
`29.
`The Class and Subclass shall be collectively referred to as the “Classes.”
`30.
`Specifically excluded from the Classes are Defendant, Defendant’s officers, directors,
`agents, trustees, parents, children, corporations, trusts, representatives, employees, principals,
`servants, partners, joint ventures, or entities controlled by Defendant, and its heirs, successors,
`assigns, or other persons or entities related to or affiliated with Defendant and/or Defendant’s officers
`and/or directors, the judge assigned to this action, and any member of the judge’s immediate family.
`31.
`Subject to additional information obtained through further investigation and
`discovery, the foregoing class definition may be expanded or narrowed by an amended complaint,
`or narrowed at class certification, including through the use of multi-state subclasses.
`Numerosity. The members of the proposed Classes are so numerous that individual
`32.
`joinder is impracticable. Upon information and belief, Plaintiff reasonably estimate that there are
`tens of thousands of individuals that are members of the proposed Classes. Although the precise
`number of proposed members is unknown to Plaintiff, the true number of Class Members is known
`by Defendant. More specifically, Defendant maintains databases that contain the name and address
`of each member of the Classes that purchased Footwear from its website or third-party retailers.
`Thus, members may be identified and notified of the pendency of this action by first class mail,
`electronic mail, and/or published notice, as is customarily done in consumer class actions.
`Commonality and Predominance. Common questions of law and fact exist as to all
`33.
`members of the Classes and predominate over any questions affecting only individual members of
`the Classes. These common legal and factual questions include, but are not limited to, the following:
`(a)
`whether the marketing, labeling, and advertisements for the
`Footwear were false and misleading;
`whether Defendant’s conduct was unfair and/or deceptive; and
`whether Plaintiff and the Classes sustained damages with respect to
`the claims asserted, and if so, the proper measure of their damages.  
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`(b)
`(c)
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`Typicality. Plaintiff’s claims are typical of the claims of the other members of the
`34.
`Classes in that Plaintiff, like other members of the Classes, purchased the Footwear based on
`Defendant’s fraudulent and misleading representations, and sustained damages as a result of
`Defendant’s conduct.
`Adequacy of Representation. Plaintiff will fairly and adequately protect the
`35.
`interests of members of the Classes. Plaintiff has retained counsel that is highly experienced in
`complex consumer class action litigation, and Plaintiff intends to vigorously prosecute this action
`on behalf of the Classes. Furthermore, Plaintiff has no interests that are antagonistic to those of the
`Classes.
`Superiority. A class action is superior to all other available means for the fair and
`36.
`efficient adjudication of this controversy. The damages or other financial detriment suffered by
`members of the Classes is relatively small compared to the burden and expense of individualized
`litigation against Defendant. It would, thus, be virtually impossible for members of the Classes, on
`an individual basis, to obtain effective redress for the wrongs committed against them. Furthermore,
`even if members of the Classes could afford such individualized litigation, the court system could
`not. Individualized litigation would create the danger of inconsistent or contradictory judgments
`arising from the same set of facts. Individualized litigation would also increase the delay and
`expense to all parties and the court system from the issues raised by this action. By contrast, the
`class action device provides the benefits of adjudication of these issues in a single proceeding,
`economies of scale, and comprehensive supervision by a single court, and presents no unusual
`management difficulties under the circumstances.
`37.
`In the alternative, the Classes may also be certified because:
`(a)
`the prosecution of separate actions by individual members of the
`Classes would create a risk of inconsistent or varying adjudication
`with respect to individual members of the Classes that would
`establish incompatible standards of conduct for Defendant;
`the prosecution of separate actions by individual members of the
`Classes would create a risk of adjudications with respect to them
`that would, as a practical matter, be dispositive of the interests of
`other members of the Classes not parties to the adjudications, or
`substantially impair or impede its ability to protect its interests;
`and/or
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`(b)
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`(c) Defendant acted or refused to act on grounds generally applicable to
`the Classes, thereby making appropriate final declaratory and/or
`injunctive relief with respect to the members of the Classes as a
`whole.
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`CAUSES OF ACTION
`COUNT I
`Violation of California’s Unfair Competition Law,
`Cal. Bus. & Prof. Code §§ 17200, et seq.
`38.
`Plaintiff realleges and reincorporates by reference all paragraphs alleged above.
`39.
`Plaintiff brings this claim individually and on behalf of the Classes against Defendant.
`40.
`California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq.
`(“UCL”) prohibits “any unlawful, unfair, or fraudulent business act or practice.” By committing the
`acts and practices alleged herein, Defendant has engaged in unlawful, unfair, and fraudulent business
`acts or practices in violation of the UCL.
`41.
`Defendant has violated the UCL’s proscription against engaging in “unlawful”
`conduct as a result of its violations of the CLRA, Cal. Civ. Code § 1770(a)(5), (a)(7), and (a)(9),
`violations of California’s Song-Beverly Act, and violations of California’s False Advertising Law,
`in addition to breaches of warranty and violations of common law, as alleged below.
`42.
`Plaintiff and the Class Members reserve the right to allege other violations of law that
`constitute other unlawful business acts or practices.
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`43.
`Defendant’s acts and practices described above also violate the UCL’s proscription
`against engaging in “fraudulent” conduct.
`44.
` As more fully described above, Defendant’s misleading marketing, advertising,
`packaging, and labeling of the Footwear is likely to deceive and did deceive reasonable consumers.
`45.
`Defendant has also violated the UCL’s proscription against engaging in “unfair”
`conduct in that Defendant’s conduct is substantially injurious to consumers, offends public policy,
`and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the conduct outweighs any
`alleged benefits attributable to such conduct.
`46.
`There is no benefit to consumers or competition from deceptively marketing material
`facts about the pain-relieving properties of the Footwear. 
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`47.
`Plaintiff and the other Class Members suffered a substantial injury by virtue of buying
`the Footwear that they would not have purchased absent Defendant’s unlawful, fraudulent, and unfair
`marketing, advertising, packaging, and omission about the defective nature of the Footwear.
`48.
`Plaintiff and the other Class Members had no way of reasonably knowing that the
`Footwear they purchased were not as marketed, advertised, packaged, or labeled. Thus, they could
`not have reasonably avoided the injury each of them suffered.
`49.
`Plaintiff and Class Members have no adequate remedy at law for this claim. Plaintiff
`pleads her claim for equitable relief in the alternative, which inherently would necessitate a finding
`of no adequate remedy at law. Alternatively, legal remedies available to Plaintiff are inadequate
`because they are not “equally prompt and certain and in other ways efficient” as equitable relief.
`American Life Ins. Co. v. Stewart, 300 U.S. 203, 214 (1937); see also United States v. Bluitt, 815 F.
`Supp. 1314, 1317 (N.D. Cal. Oct. 6, 1992) (“The mere existence’ of a possible legal remedy is not
`sufficient to warrant denial of equitable relief.”); Quist v. Empire Water Co., 2014 Cal. 646, 643
`(1928) (“The mere fact that there may be a remedy at law does not oust the jurisdiction of a court of
`equity. To have this effect, the remedy must also be speedy, adequate, and efficacious to the end in
`view … It must reach the whole mischief and secure the whole right of the party in a perfect manner
`at the present time and not in the future.”).
`50.
`Furthermore:
`
`
`(a)
`
`
`(b)
`
`
`(c)
`
`
`To the extent damages are available here, damages are not equally
`certain as restitution because the standard that governs ordering
`restitution is different than the standard that governs damages.
`Hence, the Court may award restitution even if it determines that
`Plaintiff fails to sufficiently adduce evidence to support an award of
`damages.
`Damages and restitution are not necessarily the same amount.
`Unlike damages, restitution is not limited to the amount of money
`defendant wrongfully acquired plus the legal rate of interest.
`Equitable relief, including restitution, entitles the plaintiff to recover
`all profits from the wrongdoing, even where the original funds taken
`have grown far greater than the legal rate of interest would
`recognize. Plaintiff seeks such relief here.
`Legal claims for damages are not equally certain as restitution
`because claims under the UCL entail few elements.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`13
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`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
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`16
`17
`18
`19
`20
`21
`22
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 15 of 30
`
`
`
`(d)
`
`A claimant otherwise entitled to a remedy for unjust enrichment,
`including a remedy originating in equity, need not demonstrate the
`inadequacy of available remedies at law.” RESTATEMENT (THIRD)
`OF RESTITUTION § 4(2).
`51.
`Pursuant to California Business and Professional Code § 17203, Plaintiff and the
`Classes seek an order of this Court that includes, but is not limited to, an order requiring Defendant
`to (a) provide restitution to Plaintiff and the other Class Members; (b) disgorge all revenues obtained
`as a result of violations of the UCL; and (c) pay Plaintiff’s and Class Members’ attorneys’ fees and
`costs.
`
`
`
`COUNT II
`Violation of California’s Consumer Legal Remedies Act,
`Cal. Civ. Code §§ 1750, et seq.
`Plaintiff realleges and reincorporates by reference all paragraphs alleged above.
`Plaintiff brings this claim individually and on behalf of the Classes against Defendant.
`Plaintiff and Class Members are consumers within the meaning of Cal. Civ. Code
`
`52.
`53.
`54.
`§ 1761(d). 
`55.
`Cal. Civ. Code § 1770(a)(5) prohibits “[r]epresenting that goods or services have
`sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not
`have or that a person has a sponsorship, approval, status, affiliation, or connection which she or she
`does not have.”
`56.
`Cal. Civ. Code § 1770(a)(7) prohibits “[r]epresenting that goods or services are of a
`particular standard, quality, or grade, or that goods are of a particular style or model, if they are of
`another.”
`57.
`Cal. Civ. Code § 1770(a)(9) prohibits “advertising goods or services with intent not
`to sell them as advertised.”
`58.
`Defendant violated Cal. Civ. Code §§ 1770(a)(5), (a)(7), and (a)(9) by intentionally
`and misleading representing the Footwear provided significant and clinically proven pain relief,
`including for knee pain, back pain, ankle pain, and foot pain, when in fact, the Footwear did not
`provide pain relief, much less “clinically proven” pain relief.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
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`27
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`Case 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 16 of 30
`
`
`
`59.
`Defendant’s misrepresentations and omissions deceive and have a tendency and
`ability to deceive the general public.
`60.
`Defendant has exclusive or superior knowledge of the Footwear’s actual pain-
`relieving properties, if any, which were not known to Plaintiff or Class Members.
`61.
`Plaintiff and Class Members have suffered harm as a result of these violations of the
`California Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq. (“CLRA”) because they
`have incurred charges and/or paid monies for the Footwear that they otherwise would not have
`incurred or paid had they known the Footwear did not provide clinically proven pain relief, including
`for knee pain, back pain, ankle pain, and foot pain, or any pain relief at all. As a result, Plaintiff and
`the Classes are entitled to actual damages in an amount to be proven at trial, reasonable attorneys’
`fees and costs, declaratory relief, and punitive damages.
`62.
`Plaintiff and Class Members have no adequate remedy at law for this claim. Plaintiff
`pleads her claim for equitable relief in the alternative, which inherently would necessitate a finding
`of no adequate remedy at law. Alternatively, legal remedies available to Plaintiff are inadequate
`because they are not “equally prompt and certain and in other ways efficient” as equitable relief.
`American Life Ins. Co. v. Stewart, 300 U.S. 203, 214 (1937); see also United States v. Bluitt, 815 F.
`Supp. 1314, 1317 (N.D. Cal. Oct. 6, 1992) (“The mere existence’ of a possible legal remedy is not
`sufficient to warrant denial of equitable relief.”); Quist v. Empire Water Co., 2014 Cal. 646, 643
`(1928) (“The mere fact that there may be a remedy at law does not oust the jurisdiction of a court of
`equity. To have this effect, the remedy must also be speedy, adequate, and efficacious to the end in
`view … It must reach the whole mischief and secure the whole right of the party in a perfect manner
`at the present time and not in the future.”).
`63.
`Furthermore:
`
`
`(a)
`
`
`(b)
`
`To the extent damages are available here, damages are not equally
`certain as restitution because the standard that governs ordering
`restitution is different than the standard that governs damages.
`Hence, the Court may award restitution even if it determines that
`Plaintiff fails to sufficiently adduce evidence to support an award of
`damages.
`Damages and restitution are not necessarily the same amount.
`Unlike damages, restitution is not limited to the amount of money
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`15
`
`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 3:22-cv-05288-LB Document 1 Filed 09/16/22 Page 17 of 30
`
`
`
`
`(c)
`
`(d)
`
`defendant wrongfully acquired plus the legal rate of interest.
`Equitable relief, including restitution, entitles the plaintiff to recover
`all profits from the wrongdoing, even where the original funds taken
`have grown far greater than the legal rate of interest would
`recognize. Plaintiff seeks such relief here.
`Legal claims for damages are not equally certain as restitution
`because claims under the CLRA entail few elements.
`
`A claimant otherwise entitled to a remedy for unjust enrichment,
`including a remedy originating in equity, need not demonstrate the
`inadequacy of available remedies at law.” RESTATEMENT (THIRD)
`OF RESTITUTION § 4(2).
`64.
`On August 17, 2022, at least thirty (30) days prior to the filing of this Complaint,
`Plaintiff’s counsel sent Defendant a CLRA notice letter, which complies in all respects with Cal.
`Civ. Code § 1782(a). The letter was sent via certified mail, return receipt requested, advising
`Defendant that it was in violation of the CLRA and demanding that it cease and desist from such
`violations and make full restitution by refunding the monies received therefrom. The letter stated
`that it was sent on behalf of all other similarly situated purchasers. Accordingly, Plaintiff,
`individually, and on behalf of the proposed Classes, seeks monetary damages pursuant to Cal. Civ.
`Code § 1782(d). A true and correct copy of that letter is attached hereto as Exhibit 1.
`
`
`COUNT III
`Violation of California’s False Advertising Law,
`Cal. Bus. & Prof. Code §§ 17500, et seq.
`65.
`Plaintiff realleges and reincorporates by reference all paragr