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`Case 1:20-cv-01327-NYW-NRN Document 74 Filed 09/19/22 USDC Colorado Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`CO Craft, LLC dba Freshcraft and Arborz,
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`LLC dba The Piper Inn.,
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`Civil Action No.: 20-cv-01327-NYW
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`Plaintiffs,
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`V
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`Grubhub, Inc.,
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`Defendant
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`[CORRECTED] SECOND AMENDED CLASS ACTION COMPLAINT AND JURY
`DEMAND
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`INTRODUCTION
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`Plaintiffs CO Craft, LLC, (“Freshcraft”) and Arborz, LLC (“Piper Inn”) by and through
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`their attorneys (“Plaintiffs”), file this Second Amended Class Action Complaint against the
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`Defendant Grubhub, Inc. (“Grubhub”), on behalf of themselves and on behalf of a class
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`of similarly situated restaurants, and alleges, upon personal knowledge as to its own
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`actions, and upon investigation of counsel as to all other matters, as follows:
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`NATURE OF THE ACTION
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`1.
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`In the midst of the greatest public health and economic crisis in living
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`memory, Grubhub, one of the largest restaurant delivery services in the United States, is
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`knowingly employing a nationwide false advertising campaign to steer patrons to its
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`partner restaurants by falsely declaring that its competitors are closed or not accepting
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`online orders when they are in fact open for business.
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`2.
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`While it is Plaintiffs’ information and belief that Grubhub's false advertising
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`tactics predate the COVID-19 pandemic, the impact of its nationwide practice is especially
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`damaging to restaurants that are struggling to keep afloat economically during the
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`pandemic.
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`3.
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`Defendant’s uniform conduct is equally applicable to the class. Plaintiffs
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`brings this class action against Defendant for its false advertising campaign against its
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`competitors and seeks an order requiring Defendant to, among other things: (1)
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`discontinue its false advertising campaign that suggests competitors’ restaurants as
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`closed or not open for online ordering when they are accepting orders and open for
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`business; and (2) pay damages and/or restitution to Plaintiffs and Class members.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §
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`1332(d)(2). The amount in controversy, exclusive of interest and costs, exceeds the sum
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`or value of $5,000,000 and is a class action in which there are numerous class members
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`who are citizens of states different from Defendant. The number of members of the
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`proposed class is in the aggregate greater than 100 and more than two-thirds of the class
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`members reside in states other than the states in which Defendant is a citizen.
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`5.
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`This Court has personal jurisdiction over Defendant because it conducts
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`significant, substantial, and not-isolated business activities in Colorado and a substantial
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`portion of the acts complained of took place in Colorado.
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`6. Venue is proper in the United States District Court of Colorado because
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`Defendant conducts business in this District and many of the events that gave rise to
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`Plaintiffs’ claims occurred in this District.
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`PARTIES
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`7.
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`Plaintiff Freshcraft was a Colorado Limited Liability Company operating as
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`a family owned neighborhood beer bar and restaurant located at 1530 Blake Street in
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`Denver, Colorado 80202 until ceasing operations on May 29, 2022.
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`8.
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`Plaintiff Piper Inn is a Colorado Limited Liability Company operating as a
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`family owned neighborhood beer bar and restaurant located at 2251 South Parker Road
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`in Denver, Colorado 80231.
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`9.
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`Grubhub Inc. is a corporation organized and existing under the laws of the
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`State of Delaware with its principal place of business located at 111 W. Washington
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`Street, Suite 2100, Chicago, Illinois 60602.
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`GENERAL ALLEGATIONS
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`10.
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`This action arises from Grubhub’s intentional use of a nationwide false
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`advertising campaign that misleads consumers to maximize its profits to the detriment of
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`restaurants that choose not to partner with Grubhub.
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`11.
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`In the second week of March 2020, COVID-19 was officially declared a
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`pandemic by the World Health Organization. Americans were told to engage in social
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`distancing and many people stopped going out to eat at restaurants. On March 13, 2020,
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`President Trump declared a national emergency as a result of the spread of the COVID-
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`19 virus.
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`12.
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`By April 6, 2020, 42 states issued stay at home orders which effectively
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`brought the dine-in restaurant experience to a sudden halt.
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`13.
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`The National Restaurant Association estimates that there are over 1 million
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`restaurants in the United States. Prior to the Covid-19 pandemic, the 2020 Industry sales
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`projection was $899 billion with a total economic impact of the restaurant industry at more
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`than $2.5 trillion. Before the Covid-19 pandemic, it was predicted that orders placed via
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`smartphone or mobile apps would become a $38 billion industry in 2020. Obviously that
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`number is now higher.
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`https://www.restaurant.org/research/restaurant-
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`statistics/restaurant-industry-facts-at-a-glance.
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`14. Many restaurants began offering their menus for delivery. According to
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`Eater, an online food and dining network, Yelp saw a sizable interest shift from dine-in
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`options to delivery and takeout during that time. (FN
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`https://www.eater.com/2020/3/24/21184301/restaurant-industry-data-impact-covid-19-
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`coronavirus).
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`15.
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`Consumer spending on meal delivery services was up 70% year-over-year
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`in
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`the
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`last week
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`of March. (https://www.barrons.com/articles/food-delivery-from-
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`doordash-uber-eats-and-grubhub-is-soaring-because-of-covid-19-51587752806).
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`16.
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`Grubhub is one of the largest meal delivery services in the United States.
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`On March 27, 2020, Grubhub posted a new advertisement to its Youtube channel that
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`was also broadcast across the country on different media platforms. That ad stated
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`“Restaurants are our family, the cornerstone of our communities, and our family needs
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`help. Right now they are facing a crisis. And they are counting on your takeout and
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`delivery orders to help them through. Because if we don’t treat restaurants like family
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`today, they might not be around to treat us like family tomorrow. Grubhub, together we
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`can help save the restaurants we love.” https://www.youtube.com/watch?v=SkKct-8TrBc.
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`17. While Grubhub was promoting a message of unity and suggesting that
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`people would be helping their favorite restaurants by ordering carry out and by using
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`Grubhub's delivery services, Grubhub continued to employ a false advertising campaign
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`that purposefully led consumers to believe that its competitors were closed or not
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`accepting online orders when they were.
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`18.
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`For most restaurants in major metropolitan cities, Grubhub has spent time
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`and effort to create restaurant landing pages with menu items for all restaurants, including
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`those that do not do business with Grubhub that can be accessed through its different
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`platforms.
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`19.
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`Grubhub intentionally constructs the metadata of these restaurant landing
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`pages so that Google search results prioritize Grubhub-created landing pages
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`constructed with the following template: “[Restaurant] delivery” will identify the Grubhub
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`landing site created for that restaurant and advertise that “Order delivery or pickup from
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`[Restaurant] in [City]! View [Restaurant]'s [Month,Year] deals and menus. Support your
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`local restaurants with Grubhub!”
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`20.
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`Until Grubhub finally removed the false listing, a Google search for
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`Freshcraft’s restaurant online, more specifically, “Freshcraft delivery” brings the following
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`Grubhub restaurant landing page as the first listing on Google search results, even before
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`the restaurant’s own website:
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`21.
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`The metadata on the listing advertised to the potential consumer: “Order
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`delivery or pickup from Freshcraft in Denver! View Freshcraft's March 2020 deals and
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`menus. Support your local restaurants with Grubhub!”
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`22.
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`Clicking the listing on a webpage browser brought the potential consumer
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`to the Grubhub landing page where they were told: “This restaurant is not taking online
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`orders. Try a similar restaurant nearby.” The potential consumer was then directed
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`towards one of several Grubhub partners so that Grubhub can steer consumers to
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`restaurants who produce revenue for Grubhub by using their delivery service.
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`23.
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`Similarly, clicking on that same link in a mobile browser would automatically
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`open the Grubhub Application if the user had it downloaded and prominently display that
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`the restaurant is “Closed.”
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`24.
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`This online advertisement falsely claimed that Freshcraft was closed when
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`it was not. In reality, Freshcraft was not only open, but also delivering its food to its
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`customers using a different delivery platform. At no point did Freshcraft work with
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`Grubhub and there were never discussions between the two regarding establishment of
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`a business relationship.
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`25.
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`Grubhub additionally listed Piper Inn as available for delivery on their
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`website and mobile app, despite having no business relationship with Piper Inn. Only after
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`multiple requests did Grubhub agree to remove their unauthorized Piper Inn listing from
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`their website.
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`26.
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`Despite appearing on Grubhub’s website, Piper Inn did not and does not
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`offer delivery services through Grubhub.
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`27.
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`Due to the lack of business relationship between Grubhub and Piper Inn,
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`the information that Grubhub improperly listed on their platforms for Piper Inn was
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`demonstrably incorrect.
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`28.
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`Grubhub falsely represented that Piper Inn delivered using Grubhub, their
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`delivery times, and menu availability.
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`29.
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`Due to Grubhub’s false representations using information appropriated from
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`Piper Inn, customers could place an order for Piper Inn delivery, yet receive nothing.
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`30.
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`As a result of Grubhub listing false information for Piper Inn, potential
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`customers were given incorrect expectations regarding Piper Inn’s prices and delivery
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`capabilities, which put Piper Inn’s business reputation at risk.
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`31.
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`Erik Riggs opened Freshcraft in 2019. The restaurant was situated in
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`Denver’s lower downtown neighborhood. Rent in that neighborhood was and is still very
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`high and Freshcraft did everything it could to survive the Covid-19 pandemic. Since
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`dining-in was not an option for Freshcraft during the pandemic, the revenue garnered from
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`orders requesting delivery was the only way the restaurant could generate revenue to stay
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`in business.
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`32.
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`Jed Levin operates Piper Inn and the restaurant provides delivery services
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`for their food independently. However, due to Grubhub’s misrepresentations of Piper Inn’s
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`delivery availability and menu on their website, Piper Inn has suffered detrimental impacts
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`to their business reputation regarding their delivery capabilities and menu availability.
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`33.
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`Grubhub has willfully and knowingly employed its online false advertising
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`campaign to the detriment of its competitors. It is Plaintiffs’ information and belief that a
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`search for many restaurants that do not use Grubhub's delivery service across the country
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`provides the same results. Grubhub is purposefully listing restaurants as closed or not
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`taking online orders even though both assertions are completely false.
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`34.
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`Grubhub did not contact Plaintiffs to determine if their respective restaurants
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`were open or delivering before falsely advertising to unwitting consumers that Plaintiffs
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`were closed.
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`35.
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`Grubhub's intentional and willful false advertising campaign is not limited to
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`mom and pop restaurants; it has also been used on popular, nationwide restaurant
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`chains.
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`36.
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`A Google search for a popular restaurant with hundreds of locations brings
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`up a Grubhub listing in the results with the address of the nearest location. Clicking on
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`the link in a mobile browser will automatically open the Grubhub App, if the user has it
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`downloaded, and prominently display that the restaurant is “Closed.”
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`37.
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`Performing the same search on a computer as opposed to a mobile device
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`will display the message that the restaurant is not taking online orders and direct the
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`consumer to other restaurants that do contract with Grubhub.
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`38.
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`Again, a direct search of the restaurant where the user follows a direct link
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`to the restaurant's webpage reveals that the restaurant is in fact open for business. The
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`restaurant is open for pickup and delivery, just not through Grubhub.
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`39.
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`The false messages informing customers thar the restaurants are closed or
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`not taking online orders are posted intentionally, fraudulently and with conscious
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`disregard for the truth of whether the restaurant is actually closed, whether it is open for
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`takeout, or whether it is supplying delivery orders with a Grubhub competitor.
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`40.
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`Grubhub benefits economically from its willful and false advertising
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`campaign as consumers are steered to restaurants that use Grubhub’s delivery service.
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`The willfulness of Grubhub's false advertising campaign is established by the fact that
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`only restaurants that do not partner with it are falsely advertised as being closed or not
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`accepting online delivery orders when they are in fact open for business.
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`41.
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`Grubhub's willful and false advertising campaign has directly harmed its
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`competitors; restaurants that choose to offer their own delivery or use another delivery
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`service that is not Grubhub.
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`CLASS ALLEGATIONS
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`42.
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`Plaintiffs bring this class action under Rule 23 and seeks certification of the
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`claims and issues in this action pursuant to the applicable provisions of Rule 23. The
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`proposed class is defined as:
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`All restaurants in the United States or territories that were listed or otherwise
`included by Grubhub on Grubhub platforms that did not have an unterminated
`contract, partnership, or other agreement to be listed or otherwise included on
`Grubhub platforms at any time from May 11, 2016, to the present. Excluded from
`the Class are (a) all persons who are employees, directors, officers, and agents of
`either Defendant; (b) governmental entities; and (e) the Court, the Court’s
`immediate family, and Court staff.
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`43.
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`Plaintiffs reserve the right to amend or modify the Class definitions with
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`greater specificity or division into subclasses after having had an opportunity to conduct
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`discovery.
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`44.
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`Numerosity. Fed. R. Civ. P. 23(a)(1). Defendant is one of the largest food
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`delivery services in the country. There are more than one million restaurants in the
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`United States. At a minimum, there are tens of thousands of Class Members but very
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`likely many more. The exact size of the proposed class and the identity of all class
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`members can be readily ascertained from Defendant’s records.
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`45.
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`Commonality. Fed. R. Civ. P. 23(a)(2) and (b)(3). There are questions of
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`law and fact common to the class, which questions predominate over any questions
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`affecting only individual class members. Common issues include:
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`a) Whether Defendant's advertising campaign was targeted at restaurants
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`that did not have a contract with Grubhub;
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`b) Whether Defendant purposefully and knowingly created landing pages
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`to falsely advertise its customers’ competitors' services to derive a
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`financial benefit for it and its customers;
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`c) Whether Defendant is required to compensate the restaurants that
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`suffered as a result of Defendant's advertising campaign that rerouted
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`potential consumers to restaurants that do contract with Grubhub.
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`46.
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`The nature of the relief, including equitable relief, to which Plaintiffs and the
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`class are entitled.
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`47.
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`Typicality. Fed. R. Civ. P. 23(a)(3). Plaintiffs’ claims are typical of the claims
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`of the Class it seeks to represent. Plaintiffs and all Class members similarly suffered from
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`Defendant's willful and false advertising campaign that deprived them of revenue from
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`consumers.
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`48.
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`Adequacy of Representation. Fed. R. Civ. P. 23(a)(4). Plaintiffs will fairly and
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`adequately represent and protect the interests of the members of the Class. Further,
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`Plaintiffs’ counsel is competent and experienced in litigating class actions.
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`49.
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`Superiority. Fed. R. Civ. P. 23(b)(3). A class action is superior to any other
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`available means for the fair and efficient adjudication of this controversy. The claims of
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`Plaintiffs and individual class members are small compared to the burden and expense
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`that would be required to separately litigate their claims against Defendant, and it would
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`be impracticable for class members to seek redress individually. Litigating claims
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`individually would also be wasteful to the resources of the parties and the judicial system
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`and create the possibility of inconsistent or contradictory judgments. Class treatment
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`provides manageable judicial treatment which will bring an orderly and efficient
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`conclusion to all claims arising from Defendant’s misconduct. Class certification is
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`therefore appropriate under Rule 23(b)(3).
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`50.
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`Class certification is also appropriate under Rule 23(b)(1), as the prosecution
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`of separate actions by individual members of the class would create the risk of
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`adjudications with respect to individual class members that would, as a practical matter,
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`be dispositive of the interests of other members not parties to the adjudication and
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`substantially impair their ability to protect those interests.
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`51.
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`Class certification is also appropriate under Rule 23(b)(2), as Defendant has
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`acted and/or refused to act on grounds generally applicable to the class, thereby making
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`final injunctive relief or corresponding declaratory relief appropriate for the class.
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`FIRST CAUSE OF ACTION
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`False Advertising Under Lanham Act § 43(a), 15 U.S.C. 1125(a)
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`Plaintiffs incorporate herein all allegations set forth above.
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`Upon information and belief, Defendant has made and distributed, in
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`52.
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`53.
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`interstate commerce and in this District, advertisements that contain false or misleading
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`statements of fact regarding their services and the services of many restaurants, including
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`those of the Plaintiffs.
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`54.
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`These commercial advertisements contain actual misstatements and/or
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`misleading statements and failures to disclose, including, among others:
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`a. Advertising that consumers can use Grubhub to order delivery or pickup
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`from restaurants and/or omitting that Grubhub is not contracted or
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`authorized to do so;
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`b. Advertising that consumers can use Grubhub to find monthly deals for
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`restaurants and/or omitting that Grubhub is not authorized to and does
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`not actually display any monthly deals from these restaurants; and
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`c. Providing false information about the status of restaurants as “Closed”
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`or “Not currently taking online orders” and/or omitting that those
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`restaurants are open and taking online orders outside the Grubhub
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`platform.
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`55. With thousands of restaurants affected nationwide by Grubhub, a publicly
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`traded company, these false advertisements have a profound effect on interstate
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`commerce.
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`56.
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`The above referenced false advertisements are material because they are
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`likely to influence the ordering decisions of potential consumers to whom they are
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`advertised.
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`57.
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`Upon information and belief, these false statements actually deceive, or
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`have a tendency to deceive, a substantial segment of Plaintiffs’ customers and potential
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`customers. This deception is material in that it is likely to influence the ordering decisions
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`of Plaintiffs’ customers and potential customers.
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`58.
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`These statements are likely to cause Plaintiffs injury because once a
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`potential customer believes that Plaintiffs’ restaurant is closed and not taking online
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`orders, that customer is:
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`a) Less likely to ever seek food delivery or takeout from Plaintiffs, believing
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`that the restaurant is closed and not taking online orders; and
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`b) More likely to spend money with competing restaurants that Grubhub
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`identifies as open and taking online orders instead.
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`59.
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`Defendant’s false and misleading advertising statements and omissions
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`injure both consumers and the restaurants.
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`60.
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`Defendant’s false and misleading advertising statements and omissions
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`violate the Lanham Act § 43(a), 15 U.S.C. § 1125(a).
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`61.
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`Defendant has caused, and will continue to cause, immediate and
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`irreparable injury to Plaintiff Piper Inn, including injury to their business, reputation, and
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`goodwill, for which there is no adequate remedy at law. As such, Piper Inn is entitled to
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`an injunction under 15 U.S.C. §1116 restraining Defendant, its agents, employees,
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`representatives and all persons acting in concert with them from engaging in further acts
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`of false advertising, and ordering removal of all Defendant’s false advertisements.
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`62.
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`Pursuant to 15 U.S.C. §1117, Plaintiffs are entitled to recover from
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`Defendant the damages sustained by Plaintiffs as a result of Defendant’s acts in violation
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`of the Lanham Act 15 U.S.C. § 1125(a). Plaintiffs are at present unable to ascertain the
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`full extent of the monetary damages they have suffered by reason of Defendant’s acts.
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`63.
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`Pursuant to 15 U.S.C. §1117, Plaintiffs are further entitled to recover from
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`Defendant the gains, profits and advantages that they have obtained as a result of
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`Defendant’s acts. Plaintiffs are at present unable to ascertain the full amount of the
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`gains, profits and advantages Defendant has obtained by reason of its acts.
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`64.
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`Pursuant to 15 U.S.C. §1117, Plaintiffs are further entitled to recover the
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`costs of this action. Defendant’s conduct was undertaken willfully and with the intention
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`of causing confusion, mistake or deception, making this a case entitling Plaintiffs to recover
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`a multiplier of actual damages, additional damages and reasonable attorneys’ fees and
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`costs.
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`REQUEST FOR RELIEF
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`WHEREFORE, Plaintiffs, on behalf of themselves and the class of similarly
`situated individuals, requests the Court to:
`1.
`Certify the case as a class action pursuant to Rule 23 of the Federal Rules
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`of Civil Procedure, designate Plaintiffs as representatives of the class and designate
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`counsel of record as class counsel;
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`2.
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`Order Defendant to provide actual damages and equitable monetary
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`relief (including restitution) to Plaintiffs and class members and/or order Defendant to
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`disgorge profits they realized as a result of their unlawful conduct;
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`3.
`4.
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`Awarding treble damages pursuant to the Lanham Act;
`Declare Defendant’s conduct unlawful and enter an order enjoining
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`Defendant from continuing to engage in the conduct alleged herein;
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`5.
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`For both pre and post-judgment interest at the maximum allowable rate
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`on any amounts awarded;
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`6.
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`7.
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`For costs of the proceedings herein;
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`For reasonable attorneys’ fees as allowed by law; and
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`8.
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`Award such other relief as the Court deems appropriate under the
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`circumstances.
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`JURY DEMAND
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`Plaintiffs, on behalf of themselves and the Class of all others similarly situated,
`hereby demands a trial by jury on all issues so triable pursuant to Rule 38 of the Federal
`Rules of Civil Procedure.
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`DATED: September 19, 2022
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`Respectfully submitted,
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`
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`
`
`THE LAW OFFICES OF ROSS ZIEV, P.C.
`
`By:
`
` /s/ Ross Ziev
`Ross Ziev, #43181
`6795 East Tennessee Avenue,
`Suite 210
`Denver, CO 80224
`Phone: (303) 351-2567
`Fax: (720) 669-6992
`ross@helpincolorado.com
`
`LIDDLE SHEETS COULSON P.C.
`
`By:
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`/s/ Laura L. Sheets
`Laura L. Sheets, #P63270 (Admitted
`Pro Hac Vice)
`975 East Jefferson Avenue
`Detroit, Michigan 48207
`Phone: (313) 392-0015
`Fax: (313) 392-0025
`lsheets@lsccounsel.com
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`Attorneys for Plaintiffs and the Putative Class
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