Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.1 Page 1 of 17
`
`
`
`FITZGERALD JOSEPH LLP
`JACK FITZGERALD (SBN 257370)
`jack@fitzgeraldjoseph.com
`PAUL K. JOSEPH (SBN 287057)
`paul@fitzgeraldjoseph.com
`MELANIE PERSINGER (SBN 275423)
`melanie@fitzgeraldjoseph.com
`TREVOR M. FLYNN (SBN 253362)
`trevor@fitzgeraldjoseph.com
`CAROLINE S. EMHARDT (SBN 321222)
`caroline@fitzgeraldjoseph.com
`2341 Jefferson Street, Suite 200
`San Diego, CA 92110
`Phone: (619) 215-1741
`Counsel for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`CHELSEA FREDERICK, on behalf of
`herself, all others similarly situated, and the
`general public,
`
`
`v.
`
`
`
`Plaintiff,
`
`
`
`
`PERRIGO COMPANY,
`
`
`
`Case No:
`CLASS ACTION
`COMPLAINT FOR VIOLATIONS OF:
`CAL. CIV. CODE §§ 1750 ET SEQ.;
`CAL. BUS. & PROF. CODE §§17500 ET SEQ.;
`CAL. BUS. & PROF. CODE §§17200 ET SEQ.;
`FOR BREACH OF EXPRESS & IMPLIED
`WARRANTIES;
`FOR INTENTIONAL & NEGLIGENT
`MISREPRESENTATION; AND
`UNJUST ENRICHMENT.
`DEMAND FOR JURY TRIAL
`
` Defendant.
`
`
`
`
`
`
`
`
`
`
`Frederick v. Perrigo Company
`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
`
`
`'22
`
`CV1333
`
`WVG
`
`L
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.2 Page 2 of 17
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Plaintiff Chelsea Frederick, on behalf of herself, all others similarly situated, and the general public,
`by and through her undersigned counsel, brings this action against Perrigo Company (“Perrigo”) and alleges
`the following upon her own personal knowledge or, where she lacks personal knowledge, upon information
`and belief, including the investigation of her counsel.
`SUMMARY OF CASE
`Perrigo is the manufacturer and seller of Burt’s Bees Infant Formulas,1 which it represents
`1.
`make a certain number of bottles (the “Burt’s Bees Formulas”). However, following the instructions on the
`label results in fewer bottles than Perrigo promises, short-selling the consumer.
`For example, the 34 oz. Ultra Gentle label says that it “Makes 63 4 Fl Oz Bottles.” That
`2.
`representation is false, however, because following the back-label “FEEDING CHART,” which explains
`how to make a “4 fl oz bottle,” yields only 56 4-oz. bottles—not 63 (a nearly 12% difference).
`Plaintiff brings this action to enjoin Perrigo from continuing to falsely advertise the Burt’s
`3.
`Bees Formulas in this manner, and to recover restitution and damages for herself and other purchasers.
`JURISDICTION & VENUE
`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2)(A), the Class
`4.
`Action Fairness Act, because the matter in controversy exceeds the sum or value of $5,000,000 exclusive of
`interest and costs, and at least one member of the class of plaintiffs is a citizen of a state different from
`Perrigo. In addition, more than two-thirds of the members of the class reside in states other than the state in
`which Perrigo is a citizen and in which this case is filed, and therefore any exceptions to jurisdiction under
`28 U.S.C. § 1332(d) do not apply.
`The Court has personal jurisdiction over Perrigo pursuant to Cal. Code Civ. P. § 410.10, as a
`5.
`result of Perrigo’s substantial, continuous and systematic contacts with the state and because Perrigo has
`purposely availed itself of the benefits and privileges of conducting business activities within the state,
`including by distributing and selling the Burt’s Bees Formulas in California.
`Venue is proper in this Northern District of California pursuant to 28 U.S.C. § 1391(b) and
`6.
`(c), because Perrigo resides (i.e., is subject to personal jurisdiction) in this district, and a substantial part of
`the events or omissions giving rise to the claims occurred in this district.
`
`1 These include sub-brands “Ultra Gentle,” “Infant Milk,” and “Sensitive.”
`1
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.3 Page 3 of 17
`
`
`
`7.
`8.
`Michigan.
`
`PARTIES
`Plaintiff Chelsea Frederick is a resident of San Diego, California.
`Defendant Perrigo is a Michigan corporation with its principal place of business in Allegan,
`
`FACTS
`Perrigo is a global manufacturer of many different products, including its Burt’s Bees infant
`
`9.
`formulas.
`Perrigo manufactures, markets, and sells each of the three sub-brands of the Burt’s Bees
`10.
`Formulas in 34 oz container sizes.2 The Burt’s Bees Formulas are not ready-to-use; instead, the purchaser
`must first mix with water, using an enclosed scoop provided by Perrigo and following specific directions on
`the label, before feeding to an infant.
`On each package of Burt’s Bees Formula, Perrigo claims the product makes a certain number
`11.
`of bottles of prepared formula. These statements are false or misleading because—given the dilution
`instructions set forth on the back panel of each Burt’s Bees Formula—the number of bottles Perrigo
`represents each product makes is not what each product actually makes when mixed with water according to
`Perrigo’s own instructions, and thus the value is not what Perrigo represents.
`An example of the challenged Burt’s Bees Ultra Gentle packaging is shown below.
`12.
`
`
`
`
`
`
`
`
`
`
`
`[this space intentionally left blank]
`
`
`2 Perrigo also markets and sells the same sub-brands in 23.3 oz containers. However, at this time, Plaintiff is
`unaware whether the 23.3 oz product labels make any “Makes” a certain number of bottles claims.
`2
`Frederick v. Perrigo Company
`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 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.4 Page 4 of 17
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`The promised number of bottles and the mixing instructions are the same for each of the 34
`13.
`oz Burt’s Bees Formula sub-brands.
`As shown, a 34 oz container of Burt’s Bees Ultra Gentle promises to make “63 [4 fl oz]
`14.
`Bottles.” The on-label “FEEDING CHART” says in order make a ready-for-feeding “4 fl oz bottle,” start
`with 4 fl oz of water, and then “us[ing the] scoop enclosed,” add “2 unpacked level scoops (17.2g).” However,
`contrary to Perrigo’s representation, following these instructions yields only 56 4-ounce bottles, not 63. Thus,
`3
`Frederick v. Perrigo Company
`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 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.5 Page 5 of 17
`
`
`
`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
`
`
`consumers can make only approximately 88% of the bottles Perrigo promised.
`Perrigo consistently employs this misleading practice across the challenged products.
`15.
`16.
`Because the Burt’s Bees Formulas are typically used over the course of several days or weeks,
`consumers are unlikely to notice the discrepancy through normal use of the Burt’s Bees Formulas.
`Additionally, some of the larger packages of Burt’s Bees Formula also promise to make 46%
`17.
`more compared to the smaller, 23.2 oz sized versions of the same type of powder formula. These statements
`are false or at least highly misleading because following the dilution instructions set forth on the back panel
`of each Burt’s Bees Formula, those larger packages do not yield the promised number of additional prepared
`bottles of formula. Thus, the value is not what Perrigo represents.
`PLAINTIFF’S PURCHASE, RELIANCE, AND INJURY
`In June 2022, Plaintiff Chelsea Frederick purchased, on two occasions, Burt’s Bees Infant
`18.
`Milk in packaging bearing the challenged bottle representations, from Amazon. In purchasing the Burt’s
`Bees Infant Milk, Plaintiff relied on statements on the products’ labels representing the number of bottles the
`containers would make.
`Those representations were false, however, and had the capacity, tendency, and likelihood to
`19.
`confuse or confound Plaintiff and other consumers acting reasonably because, as described herein, the Burt’s
`Bees Formulas do not yield the number of bottles promised when following the preparation instructions
`provided and set forth on the product’s back label.
`By representing the number of bottles Plaintiff was supposedly buying, Perrigo implicitly also
`20.
`represented the product’s value to Plaintiff. That representation, however, was false because, based on
`Perrigo’s preparation instructions, the Burt’s Bees Formulas were under-filled, such that Plaintiff received a
`different and substantially lesser value—one with a higher cost—than Perrigo represented. Accordingly,
`Plaintiff did not obtain the benefit of her bargain and her expectations were not met.
`In addition, Plaintiff paid substantially more than the market value represented by the price
`21.
`she and Perrigo bargained for. Like other consumer Class members, Plaintiff bargained with Perrigo on a
`particular market value for a certain number of bottles of infant formula made by mixing the powder with
`water as instructed. But because Perrigo only delivered a portion of those bottles, Plaintiff paid a price-per-
`bottle that was significantly higher than reflected in the market price to which she and Perrigo agreed, and
`4
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.6 Page 6 of 17
`
`
`
`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
`
`
`received an amount of bottles that was lower than Perrigo promised. For these reasons, the Powder Formulas
`Plaintiff purchased were worth less than what she paid for them.
`By falsely representing the number of bottles provided, and thereby the products’ value,
`22.
`Perrigo obtained enhanced negotiating leverage allowing it to command a price Plaintiff and other Class
`members would not have paid had they been fully informed.
`The Burt’s Bees Formulas cost more than similar products without misleading labeling, and
`23.
`would have cost less absent the false and misleading statements complained of herein.
`Absent the false and misleading labeling complained of herein, Plaintiff and other Class
`24.
`members would only have been willing to pay less for the Burt’s Bees Formulas.
`By use of its misleading labeling, Perrigo created increased marketplace demand for the Burt’s
`25.
`Bees Formulas, and increased its market share relative to what its demand and share would have been had
`Perrigo labeled the Burt’s Bees Formulas truthfully.
`Plaintiff and other Class members lost money as a result of Perrigo’s deceptive claims and
`26.
`practices in that they did not receive what they paid for when purchasing the Burt’s Bees Formulas, which
`were underfilled. Plaintiff and other Class members detrimentally altered their position and suffered damages
`in an amount of the under-filled portion of their Burt’s Bees Formula purchases.
`Because infant formula is usually only needed for the first year of a child’s life, after which
`27.
`many consumers will no longer be in the market for the Burt’s Bees Formulas, Perrigo’s conduct is capable
`of repetition yet evading review.
`The duration of the harm to Plaintiff and other Class members is too short to be fully litigated
`28.
`before the harm ceases and there is a reasonable expectation that the harm will occur again if Perrigo remains
`free to market the Burt’s Bees Formulas as capable of making more bottles than each package actually makes
`when following the on-label instructions for preparing formula.
`29. Without prospective injunctive relief requiring Perrigo to label the products in a truthful
`manner, consumers will be unable to determine whether a future label bearing similar claims is valid, or
`whether Perrigo has simply resumed misleading behavior, and thus will be unable to decide, fully informed,
`how best to spend their money.
`Plaintiff continues to regularly shop at stores where the Burt’s Bees Formulas are sold. The
`30.
`5
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.7 Page 7 of 17
`
`
`
`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
`
`
`continued use of the challenged claims on the products labeling threatens to repeatedly infringe upon
`Plaintiff’s substantive rights, under California’s consumer protection statutes, to be free from fraud in the
`marketplace.
`31.
`
`Plaintiff’s legal remedies are inadequate to prevent these future injuries.
`CLASS ACTION ALLEGATIONS
`32. While reserving the right to redefine or amend the class definition prior to seeking class
`certification, pursuant to Federal Rule of Civil Procedure 23, Plaintiff seeks to represent a Class of all persons
`who, on or after September 6, 2018 (the “Class Period”), purchased in California for personal or household
`use and not for resale or distribution, Burt’s Bees “Ultra Gentle,” “Infant Milk,” or “Sensitive” powder infant
`formulas in packaging whose label stated that the product makes any specified number of bottles.
`The members in the proposed Class are so numerous that individual joinder of all members is
`33.
`impracticable, and the disposition of the claims of all Class members in a single action will provide
`substantial benefits to the parties and Court.
`Questions of law and fact common to Plaintiff and the Class include:
`34.
`whether mixing according to the instructions on the back label of the Burt’s Bees
`a.
`Formulas yields the specified number of bottles promised on the label;
`whether the claimed “Makes 63 4 fl oz Bottles” was material to purchasers;
`b.
`c.
`whether a reasonable consumer believes that “Makes 63 4 fl oz Bottles” means the
`product will make that amount of bottles when following the back label mixing instructions;
`whether Perrigo’s conduct violates public policy;
`d.
`e.
`the proper amount of damages, including punitive damages;
`f.
`the proper amount of restitution;
`g.
`the proper scope of injunctive relief, including corrective advertising and recall from
`the marketplace; and
`the proper amount of attorneys’ fees.
`h.
`These common questions of law and fact predominate over questions that affect only
`35.
`individual Class members.
`Plaintiff’s claims are typical of Class members’ claims because they are based on the same
`36.
`6
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.8 Page 8 of 17
`
`
`
`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
`
`
`underlying facts, events, and circumstances relating to Perrigo’s conduct. Specifically, all Class members,
`including Plaintiff, were subjected to the same misleading and deceptive conduct when they purchased the
`Burt’s Bees Formulas, and suffered economic injury because the products are misrepresented in the same
`manner. Absent Perrigo’s business practice of deceptively and unlawfully labeling the Burt’s Bees Formulas,
`Plaintiff and other Class members would have paid less for the Burt’s Bees Formulas.
`Plaintiff will fairly and adequately represent and protect the interests of the Class, has no
`37.
`interests incompatible with the interests of the Class, and has retained counsel competent and experienced in
`class action litigation, and specifically in litigation involving false and misleading advertising.
`Class treatment is superior to other options for resolution of the controversy because the relief
`38.
`sought for each Class member is small, such that, absent representative litigation, it would be infeasible for
`Class members to redress the wrongs done to them.
`Perrigo has acted on grounds applicable to the Class, thereby making appropriate final
`39.
`injunctive and declaratory relief concerning the Class as a whole.
`As a result of the foregoing, class treatment is appropriate under Fed. R. Civ. P. 23(a),
`40.
`23(b)(2), and 23(b)(3). In addition, it may be appropriate, pursuant to Fed. R. Civ. P. 23(c)(4), to maintain
`this action as a class action with respect to particular issues.
`CAUSES OF ACTION
`FIRST CAUSE OF ACTION
`Violations of the California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq.
`Plaintiff realleges and incorporates the allegations elsewhere in the Complaint as if set forth
`41.
`in full herein.
`The CLRA prohibits deceptive practices in connection with the conduct of a business that
`42.
`provides goods, property, or services primarily for personal, family, or household purposes.
`Perrigo’s false and misleading labeling and other policies, acts, and practices described herein
`43.
`were designed to, and did, induce the purchase and use of Perrigo’s Burt’s Bees Formulas for personal,
`family, or household purposes by Plaintiff and other Class members, and violated and continue to violate at
`least the following sections of the CLRA:
`§ 1770(a)(5): Representing that goods or services have characteristics, ingredients,
`a.
`7
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.9 Page 9 of 17
`
`
`
`uses, benefits, or quantities which they do not have;
`§ 1770(a)(7): Representing that goods or services are of a particular standard, quality,
`b.
`or grade, or that goods are of a particular style or model, if they are of another;
`§ 1770(a)(9): Advertising goods with intent not to sell them as advertised; and
`c.
`d.
`§ 1770(a)(16): Representing the subject of a transaction has been supplied in
`accordance with a previous representation when it has not.
`Perrigo profited from its sales of the falsely, deceptively, and unlawfully advertised Burt’s
`44.
`Bees Formulas to unwary consumers.
`Perrigo’s wrongful business practices regarding the Burt’s Bees Formulas constituted, and
`45.
`constitute, a continuing course of conduct in violation of the CLRA.
`Pursuant to California Civil Code § 1782, more than 30 days before filing this lawsuit,
`46.
`Plaintiff sent written notice of her claims and Perrigo’s particular violations of the Act to Perrigo by certified
`mail, return receipt requested, but Perrigo has failed to implement remedial measures.
`As a result, Plaintiff and the Class have suffered harm, and therefore seek (a) actual damages
`47.
`resulting from purchases of the Burt’s Bees Formulas sold throughout the Class Period to all Class Members,
`(b) punitive damages, (c) injunctive relief in the form of modified advertising and a corrective advertising
`plan, (d) restitution, and (e) attorneys’ fees and costs. See Cal. Civ. Code § 1782(d).
`In compliance with Cal. Civ. Code § 1782(d), an affidavit of venue is filed concurrently
`48.
`herewith.
`Because these claims are subject to a three-year statute of limitations, while Plaintiff’s claims
`49.
`for restitution under the UCL are subject to a four-year statute of limitations, and because Plaintiff’s claims
`under the UCL’s “unfair” and “unlawful” prongs are subject to different elements and standards, Plaintiff’s
`legal remedies under the CLRA are inadequate to fully compensate Plaintiff for all of Perrigo’s challenged
`behavior.
`
`SECOND CAUSE OF ACTION
`Violations of the False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500 et seq.
`Plaintiff realleges and incorporates the allegations elsewhere in the Complaint as if set forth
`50.
`in full herein.
`
`8
`Frederick v. Perrigo Company
`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 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.10 Page 10 of 17
`
`
`
`Under the FAL, “[i]t is unlawful for any person, firm, corporation or association, or any
`51.
`employee thereof with intent directly or indirectly to dispose of real or personal property or to perform
`services” to disseminate any statement “which is untrue or misleading, and which is known, or which by the
`exercise of reasonable care should be known, to be untrue or misleading.” Cal. Bus. & Prof. Code § 17500.
`As alleged herein, the advertisements, labeling, policies, acts, and practices of Perrigo relating
`52.
`to its Burt’s Bees Formulas misled consumers acting reasonably as to the amount of bottles on could make
`following the directions for mixing.
`Plaintiff suffered injury in fact as a result of Perrigo’s actions as set forth herein because
`53.
`Plaintiff purchased Burt’s Bees Formulas in reliance on Perrigo’s false and misleading marketing claims
`that the products “Makes” a specified number of bottles, when following the instructions on the back panel,
`as instructed and advertised by Perrigo.
`Perrigo’s business practices as alleged herein constitute unfair, deceptive, untrue, and
`54.
`misleading advertising pursuant to the FAL because Perrigo has advertised the Burt’s Bees Formulas in a
`manner that is untrue and misleading, which Perrigo knew or reasonably should have known.
`Perrigo profited from its sales of the falsely and deceptively advertised Burt’s Bees Formulas
`55.
`to unwary consumers.
`As a result, pursuant to Cal. Bus. & Prof. Code § 17535, Plaintiff and the Class are entitled
`56.
`to injunctive and equitable relief and restitution.
` Because the Court has broad discretion to award restitution under the FAL and could, when
`57.
`assessing restitution under the FAL, apply a standard different than that applied to assessing damages under
`the CLRA or commercial code (for Plaintiff’s breach of warranty claims), and restitution is not limited to
`returning to Plaintiff and Class members monies in which they have an interest, but more broadly serves to
`deter the offender and others from future violations, the legal remedies available under the CLRA and
`commercial code are more limited than the equitable remedies available under the FAL, and are therefore
`inadequate. Moreover, Plaintiff challenges more labeling statements as violating the FAL than they do as
`breaching Perrigo’s warranties, such that her legal remedies under the commercial code are inadequate.
`
`
`
`9
`Frederick v. Perrigo Company
`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 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.11 Page 11 of 17
`
`
`
`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
`
`
`THIRD CAUSE OF ACTION
`Violations of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.
`Plaintiff realleges and incorporates the allegations elsewhere in the Complaint as if set forth
`58.
`in full herein.
`The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. &
`59.
`Prof. Code § 17200.
`The acts, omissions, misrepresentations, practices, and non-disclosures of Perrigo as alleged
`60.
`herein constitute business acts and practices.
`Fraudulent Prong
`A statement or practice is fraudulent under the UCL if it is likely to deceive the public,
`61.
`applying a reasonable consumer test.
`As set forth herein, the Perrigo’s labeling claims relating to the number of bottles Burt’s Bees
`62.
`Formulas make and the value they represent are likely to deceive reasonable consumers and the public.
`Unlawful Prong
`The acts alleged herein are “unlawful” under the UCL in that they violate at least the CLRA
`
`63.
`and FAL.
`Because Plaintiff’s claims under the “unlawful” prong of the UCL sweep more broadly than
`64.
`her claims under the FAL, CLRA, or UCL’s “fraudulent” prong, plaintiff’s legal remedies are inadequate to
`fully compensate plaintiff for all of Perrigo’s challenged behavior.
`Unfair Prong
`Perrigo’s conduct with respect to the manufacturing, labeling, advertising, and sale of the
`65.
`Burt’s Bees Formulas is unfair because Perrigo’s conduct was immoral, unethical, unscrupulous, or
`substantially injurious to consumers and the utility of its conduct, if any, does not outweigh the gravity of
`the harm to its victims.
`Perrigo’s conduct with respect to the manufacturing, labeling, advertising, and sale of the
`66.
`Burt’s Bees Formulas was also unfair because it violated public policy as declared by specific constitutional,
`statutory or regulatory provisions, including but not limited to the False Advertising Law.
`Perrigo’s conduct with respect to the manufacturing, labeling, advertising, and sale of the
`67.
`10
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.12 Page 12 of 17
`
`
`
`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
`
`
`Burt’s Bees Formulas was also unfair because the consumer injury was substantial, not outweighed by
`benefits to consumers or competition, and not one consumers themselves could reasonably have avoided.
`Because Plaintiff’s claims under the “unfair” prong of the UCL sweep more broadly than her
`68.
`claims under the FAL, CLRA, or UCL’s “fraudulent” prong, Plaintiff’s legal remedies are inadequate to fully
`compensate Plaintiff for all of Perrigo’s challenged behavior.
`*
`*
`
`*
`
`Perrigo profited from its sale of the falsely, deceptively, and unlawfully advertised Burt’s
`69.
`Bees Formulas to unwary consumers.
`Plaintiff and other Class Members are likely to be damaged by Perrigo’s deceptive trade
`70.
`practices, as Perrigo continues to disseminate, and is otherwise free to continue to disseminate false and
`misleading information. Thus, injunctive relief enjoining its deceptive practices is proper.
`Perrigo’s conduct caused and continues to cause substantial injury to Plaintiff and the other
`71.
`Class Members, who have suffered injury in fact as a result of Perrigo’s fraudulent, unlawful, and unfair
`conduct.
`In accordance with Bus. & Prof. Code § 17203, Plaintiff, on behalf of herself, the Class, and
`72.
`the general public, seeks an order enjoining Perrigo from continuing to conduct business through unlawful,
`unfair, and/or fraudulent acts and practices, and to commence a corrective advertising campaign.
`Plaintiff, on behalf of herself and the Class also seeks an order for the restitution of all monies
`73.
`from the sale of the Burt’s Bees Formulas that Perrigo unjustly acquired through acts of unlawful
`competition.
`
`FOURTH CAUSE OF ACTION
`Breach of Express Warranty, Cal. Com. Code § 2313(1)
`Plaintiff realleges and incorporates the allegations elsewhere in the Complaint as if set forth
`
`74.
`in full herein.
`Through the Burt’s Bees Formula labels, Perrigo made affirmations of fact or promises, or
`75.
`description of goods, that, inter alia, the products make a certain number of bottles (or a certain number of
`additional bottles as compared to a smaller package of the same product) when following the preparation
`instructions provided. These representations were part of the basis of the bargain, in that Plaintiff and the
`11
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.13 Page 13 of 17
`
`
`
`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
`
`
`Class purchased the Burt’s Bees Formulas in reasonable reliance on those statements. Cal. Com. Code §
`2313(1).
`Perrigo breached its express warranties by selling Burt’s Bees Formulas that do not make the
`76.
`total number of bottles promised and do not make the promised number of additional bottles when compared
`to smaller packages of the same product.
`That breach actually and proximately caused injury in the form of the lost purchase price, or
`77.
`some portion thereof, that Plaintiff and Class members paid for the Burt’s Bees Formulas.
`Plaintiff gave Perrigo notice of the breach prior to filing the lawsuit, but Perrigo failed to
`78.
`remedy the breach.
`As a result, Plaintiff seeks, on behalf of herself and the Class, actual damages arising as a
`79.
`result of Perrigo’s breaches of express warranty, including without limitation, their expectation damages.
`Because the UCL and FAL apply to a broader set of business practices than the California
`80.
`Commercial Code, Plaintiff’s legal remedies under the Commercial Code are inadequate to fully address all
`of Perrigo’s challenged behavior.
`
`FIFTH CAUSE OF ACTION
`Breach of Implied Warranty of Merchantability, Cal. Com. Code § 2314
`Plaintiff realleges and incorporates the allegations elsewhere in the Complaint as if set forth
`
`81.
`in full herein.
`Perrigo, through its acts set forth herein, in the sale, marketing, and promotion of the Burt’s
`82.
`Bees Formulas, made representations to Plaintiff and the Class that, among other things, the products yield
`the number of bottles promised when prepared according to the instructions provided.
`Perrigo is a merchant with respect to the goods of this kind which were sold to Plaintiff and
`83.
`the Class, and there was, in the sale to Plaintiff and other consumers, an implied warranty that those goods
`were merchantable.
`However, Perrigo breached that implied warranty in that the Burt’s Bees Formulas do not
`84.
`make the number of bottles promised.
`As an actual and proximate result of Perrigo’s conduct, Plaintiff and other Class members did
`85.
`not receive goods as impliedly warranted by Perrigo to be merchantable in that they did not conform to
`12
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.14 Page 14 of 17
`
`
`
`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
`
`
`promises and affirmations made on the container or label of the goods.
`Plaintiff gave Perrigo notice of the breach prior to filing the lawsuit, but Perrigo failed to
`86.
`remedy the breach.
`Plaintiff and the Class have sustained damages as a proximate result of the foregoing breach
`87.
`of implied warranty in the amount of the Burt’s Bees Formulas’ purchase prices, or some portion thereof.
`Because the UCL and FAL apply to a broader set of business practices than the California
`88.
`Commercial Code, Plaintiff’s legal remedies under the Commercial Code are inadequate to fully address all
`of Perrigo’s challenged behavior.
`
`SIXTH CAUSE OF ACTION
`Intentional Misrepresentation
`Plaintiff realleges and incorporates the allegations elsewhere in the Complaint as if set forth
`
`89.
`in full herein.
`Perrigo marketed the Burt’s Bees Formulas in a manner indicating that they contain enough
`90.
`powdered formula to make a specific number of bottles. However, the Burt’s Bees Formulas cannot make
`the represented number of bottles. Therefore, Perrigo has made misrepresentations about the Burt’s Bees
`Formulas.
`Perrigo’s misrepresentations regarding the Burt’s Bees Formulas are material to a reasonable
`91.
`consumer because they relate to the number of bottles the consumer is receiving and paying for. A reasonable
`consumer would attach importance to such representations and would be induced to act thereon in making
`purchase decisions.
`At all relevant times when such misrepresentations were made Perrigo knew that the
`92.
`representations were misleading, or has acted recklessly in making the representations, without regard to the
`truth.
`
`Perrigo intends that Plaintiff and other consumers rely on these representations, as evidenced
`93.
`by the intentional and conspicuous placement of the misleading representations on the Burt’s Bees Formulas’
`packaging by Perrigo.
`Plaintiff and members of the Class have reasonably and justifiably relied on Perrigo’s
`94.
`intentional misrepresentations when purchasing the Burt’s Bees Formulas, and had the correct facts been
`13
`Frederick v. Perrigo Company
`CLASS ACTION COMPLAINT
`
`

`

`Case 3:22-cv-01333-L-WVG Document 1 Filed 09/06/22 PageID.15 Page 15 of 17
`
`
`
`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
`
`
`known, would not have purchased them at the prices at which they were offered.
`Therefore, as a direct and proximate result of Perrigo’s intentional misrepresentations,
`95.
`Plaintiff and members of the Class have suffered economic losses and other general and specific damages,
`in the amount of the Burt’s Bees Formulas’ purc