Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 1 of 23
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF IOWA
`EASTERN DIVISION
`
`
`
`RICHARD D. GARCIA, ERICA NICHOLS
`COOK, JENNIFER SPEER, on behalf of
`
`themselves and all others similarly situated,
`
`
`
`
`
` Plaintiffs,
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`
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`
` v.
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`
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`BEYOND MEAT, INC.,
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`
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`
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`Defendant.
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`)
`)
`)
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`)
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`)
`
`No.
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`JURY TRIAL DEMANDED
`
`
`CLASS ACTION COMPLAINT
`
`Plaintiffs Richard D. Garcia, Erica Nichols Cook, and Jennifer Speer (“Plaintiffs”) bring
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`this Class Action Complaint against Defendant Beyond Meat, Inc. (“Beyond Meat” or
`
`“Defendant”), individually and on behalf of all others similarly situated, and complain and allege
`
`upon personal knowledge as to their own acts and experiences and, as to all other matters, upon
`
`information and belief, including investigation conducted by Plaintiffs’ attorneys:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil class action lawsuit brought by Plaintiffs on behalf of all consumers
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`who purchased Defendant’s Beyond Meat products for personal or household use, including but
`
`not limited to: Beyond Meat Sausage Plant-Based Dinner Links Hot Italian 14 oz, Beyond Meat
`
`Beyond Sausage Plant-Based Dinner Sausage Links Brat Original 14 oz, Beyond Meat Beyond
`
`Beef Plant-Based 16oz Patties, Beyond Meat Beyond Beef Plant-Based Ground Beef, Beyond
`
`Meat Beyond Breakfast Sausage Plant-Based Breakfast Patties Classic 7.4 oz, Beyond Meat
`
`Beyond Breakfast Sausage Plant-Based Breakfast Patties Spicy 7.4 oz, Beyond Meat Beyond
`
`Chicken Plant-Based Breaded Tenders Classic 8 oz, Beyond Meat Beyond Meatballs Italian Style
`
`
`
`1
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 2 of 23
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`Plant-Based Meatballs 12 CT Classic 10 oz, Beyond Meat Beyond Breakfast Sausage Plant-Based
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`Breakfast Links Classic 8.3 oz (“Beyond Meat Products” or the “Products”).
`
`2.
`
`Amidst the growing consumer demand for meat substitutes, Defendant has, and
`
`continues to, design, manufacture, promote, market, advertise, package, label, distribute, and sell
`
`Beyond Meat Products.
`
`3.
`
`Beyond Meat Products’ labels, and Defendant’s related marketing claims, are false
`
`and misleading because Defendant: (1) miscalculates and overstates the Products’ protein content,
`
`which is measured in grams per serving determined by nitrogen testing; (2) miscalculates and
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`overstates the quality of the protein found in its products, which is represented as a percentage of
`
`daily value and calculated by the Protein Digestibility Amino Acid Corrected Score method
`
`(“PDCAAS”); and (3) misleads consumers into believing that the Products provide equivalent
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`nutritional benefits to that found in traditional meat-based products.
`
`4.
`
`By advertising protein content on the Beyond Meat Products’ front label, Defendant
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`misleads consumers into believing that they stand to benefit from the Products’ stated protein
`
`content.
`
`5.
`
`Defendant also makes numerous false and misleading claims and/or omissions on
`
`its website, in its promotional and marketing materials, and on the Products’ nutritional labels.
`
`6.
`
`Defendant has engaged in unfair and/or deceptive business practices by
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`intentionally misrepresenting the nature and quality of Beyond Meat Products on the Products’
`
`respective nutrition labels and by failing to follow federal regulations that set forth the appropriate
`
`testing methodologies for determining protein content. Defendant has been unjustly enriched as a
`
`result of these and related practices.
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`2
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 3 of 23
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`7.
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`Plaintiffs and members of the Proposed Class were injured by Defendants false,
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`fraudulent, unfair, deceptive, and misleading practices. Accordingly, Plaintiffs seek compensatory
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`damages and equitable remedies for themselves(s) and members of the Proposed Class.
`
`PARTIES
`
`8.
`
`Plaintiff Richard D. Garcia is a resident of Denver, Colorado and citizen of the
`
`United States. Plaintiff purchased Beyond Meatballs, among other Beyond Meat products, in
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`Denver, Colorado several times in 2022, and was deceived by Defendant’s acts as set forth herein.
`
`Plaintiff relied upon the representations regarding the %DV of the Products. Plaintiff also
`
`purchased the Products because of the claim on the label that the Products contain the stated
`
`amount of protein on the front of the Products' labels. Although the Products were more expensive
`
`than other choices he viewed, Plaintiff chose to pay the premium price based upon Beyond Meat’
`
`representations. All of the representations made by Beyond Meat regarding the product purchased
`
`by Plaintiff were false because the Products do not contain the stated %DV of protein, the stated
`
`amount of protein, or the adjusted protein content based upon the quality of the protein contained
`
`within the Products. As a result, Plaintiff did not receive the benefit of bargain or suffered an out-
`
`of-pocket loss.
`
`9.
`
`Plaintiff Erica Nichols Cooks is a resident of Des Moines, Iowa and citizen of the
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`United States. Plaintiff purchased Beyond Ground Beef and Beyond Sausage, among other Beyond
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`Meat products, at Target, Hy-Vee, and Walgreens stores in Iowa several times in 2022, and was
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`deceived by Defendant’s acts as set forth herein. Plaintiff also purchased the Products because of
`
`the claim on the label that the Products contain the stated amount of protein on the front of the
`
`Products' labels. Although the Products were more expensive than other choices she viewed,
`
`Plaintiff chose to pay the premium price based upon Beyond Meat’ representations. All of the
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`representations made by Beyond Meat regarding the product purchased by Plaintiff were false
`
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`3
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 4 of 23
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`because the Products do not contain the stated %DV of protein, the stated amount of protein, or
`
`the adjusted protein content based upon the quality of the protein contained within the Products.
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`As a result, Plaintiff did not receive the benefit of bargain or suffered an out-of-pocket loss.
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`10.
`
`Plaintiff Jennifer Speer is a resident of Pensacola, Florida and citizen of the United
`
`States. Plaintiff purchased Beyond Ground Beef, among other Beyond Meat products, at Winn-
`
`Dixie, Publix, Walmart, and Thrive Market stores in Florida several times in 2022 and was
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`deceived by Defendant’s acts as set forth herein. Plaintiff also purchased the Products because of
`
`the claim on the label that the Products contain the stated amount of protein on the front of the
`
`Products' labels. Although the Products were more expensive than other choices she viewed,
`
`Plaintiff chose to pay the premium price based upon Beyond Meat’ representations. All of the
`
`representations made by Beyond Meat regarding the product purchased by Plaintiff were false
`
`because the Products do not contain the stated %DV of protein, the stated amount of protein, or
`
`the adjusted protein content based upon the quality of the protein contained within the Products.
`
`As a result, Plaintiff did not receive the benefit of bargain or suffered an out-of-pocket loss.
`
`11.
`
`Defendant, BEYOND MEAT, INC. is a publicly traded Delaware Corporation with
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`its headquarters in El Segundo, California, and is registered as a foreign corporation in the State
`
`of California.
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`JURISDICTION AND VENUE
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`12.
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`This Court has personal jurisdiction over Defendant because Defendant
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`purposefully availed itself of the Iowa consumer market and distributes Beyond Meat Products to
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`nearly two dozen locations within this District and throughout Iowa, where the Product is
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`purchased by consumers every day.
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`13.
`
`This Court has original subject-matter jurisdiction over this proposed class action
`
`pursuant to 28 U.S.C. § 1332(d), which, under the provisions of the Class Action Fairness Act
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`4
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 5 of 23
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`(“CAFA”), explicitly provides for the original jurisdiction of the federal courts in any class action
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`in which at least 100 members are in the proposed plaintiff class, any member of the plaintiff class
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`is a citizen of a State different from any defendant, and the matter in controversy exceeds the sum
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`of $5,000,000.00, exclusive of interest and costs. Plaintiff alleges that the total claims of individual
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`members of the proposed Class (as defined herein) are well in excess of $5,000,000.00 in the
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`aggregate, exclusive of interest and costs.
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`14.
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`Venue is proper in this District under 28 U.S.C. § 1391(b)(2)) because Plaintiffs
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`purchased the Products in this District, substantial acts in furtherance of the alleged improper
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`conduct, including the dissemination of false and misleading information regarding the nature,
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`quality, and/or ingredients of the products, occurred within this District, and the Defendant
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`conducts business in this District.
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`FACTS
`
`A.
`
`Background
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`15.
`
`Defendant BEYOND MEAT, INC. is a plant-based meat substitutes company that
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`was founded in 2009 and launched its initial product line in 2012.
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`16.
`
`As of December 2021, Beyond Meat had products available at approximately
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`130,000 retail and foodservice outlets in over 90 countries worldwide. In the United States,
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`Beyond Meat Products are available for purchase at 32,000 retail stores and 47,000 restaurants.
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`Beyond Meat Products are sold in all 50 states, and are available for purchase in major grocery
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`stores, big box stores, and other retail locations throughout the United States.
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`17.
`
`At all relevant times, Defendant has, and continues to, design, manufacture,
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`promote, market, advertise, package, label, and distribute Beyond Meat Products in a consistent
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`and uniform manner throughout the United States.
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`5
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 6 of 23
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`18.
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`Beyond Meat describes itself as a “leader in plant-based meat” and “Revolutionary
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`Plant-Based Protein Leader.”
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`19.
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`Beyond Meat exceeded $400 million in net revenue during 2020 and continues to
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`gain market share in the $1.4 trillion global meat industry.
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`20.
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`Beyond Meat has enlisted the help of many celebrities to advertise its Products as
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`an easy way to introduce protein into one’s diet and describes the Products as the “future of
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`protein” on its website and in its marketing materials.
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`21.
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`Beyond Meat also uses social media platforms to promote the Products and attract
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`potential consumers, and Defendant launched its #FutureofProtein marketing campaign on
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`Instagram, Twitter, and Facebook.
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`22.
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`In fact, Beyond Meat goes the extra mile to represent that the Products are the
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`“future of protein” and claims that eating the Products allows consumers to get high-quality protein
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`in their diet while simultaneously helping the environment.
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`6
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 7 of 23
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`23.
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`Beyond Meat explicitly represents that its Products have enough high-quality
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`protein to help build muscle.
`
`B.
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`Defendant misrepresents the protein contents in its products.
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`1. Protein is an essential part of a healthy diet and is necessary for normal
`bodily functions.
`
`24.
`
`According to the FDA, “[p]rotein is a component of every cell in the human body
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`and is necessary for proper growth and development, especially during childhood, adolescence,
`
`and pregnancy. [It] helps your body build and repair cells and body tissue, and is important for
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`many body processes, such as blood clotting, fluid balance, immune response, vision, and
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`production of hormones, antibodies, and enzymes.”
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`25.
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`A high-protein diet provides additional benefits, including appetite control, weight
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`and body composition management, muscle growth and maintenance, improved cardiometabolic
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`health, better strength, improved immune function, and faster tissue recovery.
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`26.
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`In light of these benefits, many consumers seek out high-protein products in order
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`to achieve a high-protein diet.
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`27.
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`Similarly,
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`individuals with specific health concerns,
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`including pregnant,
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`breastfeeding, or conditions that inhibit protein absorption, require more protein than the daily
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`recommended minimum.
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`28.
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`The average sedentary man needs 56 grams per day of protein and the average
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`sedentary woman needs 46 grams of protein per the Dietary Reference Intake.
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`2. Accepted methodologies exist for calculating protein content and daily value
`percentage.
`
`29.
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`Pursuant to the Food, Drug, and Cosmetics Act (“FDCA”) (as amended by the
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`Nutrition Labeling and Education Act), the United States Food and Drug Administration (“FDA”)
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`7
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 8 of 23
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`governs the nutritional labeling of food and requires manufacturers to provide information about
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`the level of certain nutrients, including protein. See 21 C.F.R. §101.9(c)(7).
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`30.
`
`The FDA requires manufacturers to publish a product’s protein content on its
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`nutritional label, which is “[a] statement of the number of grams of protein in a serving.” Id.
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`31.
`
`The “Nitrogen Content Method” is used to calculate a given food product’s protein
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`content. Under this methodology, protein content is calculated on the basis of the factor of 6.25
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`times the nitrogen content of the food as determined by the appropriate method of analysis as given
`
`in the ‘Official Methods of Analysis of the AOAC International’ . . . , except when the official
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`procedure for a specific food requires another factor.
`
`32.
`
`However, the FDCA requires disclosure of protein quality, which is determined
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`through a more rigorous testing methodology called the Protein Digestibility Amino Acid
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`Corrected Score (“PDCAAS”) to calculate the “corrected amount of protein per serving:” The
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`‘corrected amount of protein (gram) per serving’ . . . is equal to the actual amount of protein (gram)
`
`per serving multiplied by the amino acid score corrected for protein digestibility. . . .The protein
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`digestibility corrected amino acid score shall be determined by methods given in . . . ‘Protein
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`Quality Evaluation, Report of the Joint FAO/WHO Expert Consultation on Protein Quality
`
`Evaluation,’ Rome, 1990, except that when official AOAC procedures described in section (c)(7)
`
`of this paragraph require a specific food factor other than 6.25, that specific factor shall be used.
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`21 C.F.R. §101.9(c)(7)(ii).
`
`33.
`
`Beyond Meat is required to use the PDCAAS calculation for the Products rather
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`than some other non-sophisticated method. The regulation requires that for any product making a
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`protein claim (which is contained on the front panel of all of the Products), the product must
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`contain a statement of protein content as a percentage of the Daily Reference Value calculated
`
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 9 of 23
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`using the “corrected amount of protein”—an amount that is not calculated by simply multiplying
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`the amount of nitrogen by 6.25, but by taking into account the “protein quality value,” or “protein
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`digestibility-corrected amino acid score.” See 21 C.F.R. § 101.9(c)(7)(ii).
`
`34.
`
`So, for a product like the Products, the protein content may be calculated using the
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`nitrogen method, but it also must be stated as a percentage of the Daily Reference Value using
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`the corrected amount of protein. This alternative to the nitrogen method (PDCAAS) is only
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`required in the statement of percentage; it is not required for statements of absolute protein.
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`Moreover, the regulations implicitly acknowledge that the nitrogen method is not the most accurate
`
`way to describe protein content.
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`35.
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`Recently, the FDA reaffirmed these requirements.1
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`3. The Products do not contain accurate protein amounts on the front or back
`of the label.
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`36.
`
`43. Industry standard testing has revealed that despite the Products representing
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`certain amounts of protein, the Products contained less than the represented amount.
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`37.
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`As manufacturers, suppliers, wholesalers, distributors, and/or retailers, Defendant
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`tested, or should have tested, the Products prior to sale. As such, Defendant knows or should have
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`known that the claims are false and misleading on the Products.
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`38.
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`Defendant’s stated protein amount and protein DV% claims are false and
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`misleading. As independent lab testing reveals, the quantity of Protein determined by nitrogen in
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`all but four of the Products are less than what Defendant represented. Even worse, the DV% of
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`Protein for all of the Products is a small fraction compared to the DV% represented by Defendant.
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`39.
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`For example, it has been reported that testing of Defendant’s Products show that
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`the Products do not contain the amount of stated protein amount and/or protein DV%. For example,
`
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`1 https://www.fda.gov/food/food-labeling-nutrition/industry-resources-changes-nutrition-facts-label#LabelClaims
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`9
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 10 of 23
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`Defendant’s Beyond Beef Plant-Based Ground 16oz Patties, which is labeled as “20G Per Serving”
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`and “40% DV” for protein, actually contains 19G Per Serving by nitrogen testing, and 7% DV for
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`protein. This represents an underfill of 5% for protein content and an underfill of 33% for %DV
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`for protein.
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`40.
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`Additional results are captured in the below chart:
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`Beyond Meat
`Product
`
`Protein
`Claim (per
`serving)
`
`DV %
`Claim
`
`Actual
`Protein
`Amount
`(per
`serving)
`
`Actual
`DV%
`
`%
`Difference
`Protein
`
`%
`Difference
`DV
`
`Sausage Plant-Based
`Dinner Links Hot Italian 14
`oz
`
`16G
`
`
`25%
`
`13G
`
`
`5%
`
`-18.75%
`
`-15%
`
`Beyond Sausage Plant-
`Based Dinner Sausage Links
`Brat
`Original 14 oz
`
`Beyond Beef Plant-Based
`16oz
`Patties
`
`Beyond Beef Plant-Based
`Ground Beef
`
`Beyond Breakfast Sausage
`Plant-Based Breakfast
`Patties
`Classic 7.4 oz
`
`Beyond Breakfast Sausage
`Plant-Based Breakfast
`Patties Spicy 7.4 oz
`
`Beyond Chicken
`Plant-Based Breaded
`Tenders Classic 8 oz
`
`Beyond Meatballs Italian
`Style Plant-Based Meatballs
`12 CT Classic 10 oz
`
`16G
`
`
`25%
`
`13G
`
`
`5%
`
`-18.75%
`
`-20%
`
`20G
`
`
`40%
`
`18G
`
`
`36%
`
`-10%
`
`-4%
`
`20G
`
`40%
`
`19G
`
`7%
`
`-5%
`
`-33%
`
`11G
`
`
`11G
`
`
`11G
`
`
`19G
`
`
`22%
`
`10G
`
`
`22%
`
`16%
`
`10G
`
`
`13G
`
`
`4%
`
`-10.1%
`
`-18%
`
`4%
`
`-10.1%
`
`-18%
`
`2%
`
`+18%
`
`-14%
`
`38%
`
`20G
`
`7%
`
`+5.2%
`
`-31%
`
`
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`10
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 11 of 23
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`Beyond Meat
`Product
`
`Protein
`Claim (per
`serving)
`
`DV %
`Claim
`
`Actual
`Protein
`Amount
`(per
`serving)
`
`Actual
`DV%
`
`%
`Difference
`Protein
`
`%
`Difference
`DV
`
`Beyond Breakfast Sausage
`Plant-Based Breakfast Links
`Classic 8.3 oz
`
`8G
`
`
`16%
`
`7G
`
`3%
`
`-12.5%
`
`-13%
`
`
`
`41.
`
`By permanently marking the Products with their purported protein amount and/or
`
`protein DV% claims, Defendant knew that the claims are false and misleading, yet still advertised,
`
`labeled, and packaged the Products with the false and misleading claims.
`
`42.
`
`Simply put, Defendant’s protein amount and/or protein DV% for the Products are
`
`a farce. Defendant knowingly prepared the material on their website and product labels to
`
`misrepresent the true protein amount and/or protein DV% for the Products.
`
`43.
`
`Plaintiffs and Class Members would not have purchased the Products or would have
`
`paid less for the Products if they were aware of the misleading labeling of the Products by
`
`Defendant.
`
`44.
`
`Defendants intended for Plaintiff and the Class members to be deceived or misled.
`
`Defendants’ deceptive and misleading practices proximately caused harm to the Plaintiffs and the
`
`Class.
`
`45.
`
`Plaintiffs and Class members would not have purchased the Products, or would
`
`have not paid as much for the Products, had they known the truth about the mislabeled and falsely
`
`advertised Products
`
`4. Defendant mislabels the protein content of The Beyond Meat Products.
`
`46.
`
`By way of example only, Beyond Meat advertises the Beyond Beef Plant-Based
`
`16oz Patties as being “Plant-Based Patties” with “20G of Plant Protein Per Serving”.
`
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`11
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`47.
`
`The Products are made with “Pea Protein” as their basis for the “20G of Plant
`
`Protein Per Serving” claim.
`
`48.
`
`Beyond meat claims the 20G of Plant Protein Per Serving is 40% of the Daily Value
`
`for protein on the Nutrition Facts for the patties.
`
`
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`
`
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`49.
`
`Defendant does the same with the rest of its Products. Because it advertises a
`
`protein content claim on the front of its labels, it must use the PDCAAS method of testing on its
`
`Products but did not.
`
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`12
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 13 of 23
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`50.
`
`Plaintiffs and members of the putative Class were harmed and they would not have
`
`purchased or would have paid substantially less for the Products had they been advertised correctly
`
`– which is to say that they would have been advertised as providing protein amounts in amounts
`
`less than what was advertised (for the Products described above) and %DV protein amounts in
`
`amounts less than what was represented; however, they were not advertised as such.
`
`CLASS ACTION ALLEGATIONS
`
`51.
`
`Plaintiffs bring this action individually and as representative of all those similarly
`
`situated, pursuant to Federal Rule of Civil Procedure 23, on behalf of the below-defined Class:
`
`All persons in the United States who purchased one or more of the following products for
`personal use and not for resale within the United States: Beyond Meat Sausage Plant-
`Based Dinner Links Hot Italian 14 oz, Beyond Meat Beyond Sausage Plant-Based Dinner
`Sausage Links Brat Original 14 oz, Beyond Meat Beyond Beef Plant-Based 16oz Patties,
`Beyond Meat Beyond Beef Plant-Based Ground Beef, Beyond Meat Beyond Breakfast
`Sausage Plant-Based Breakfast Patties Classic 7.4 oz, Beyond Meat Beyond Breakfast
`Sausage Plant-Based Breakfast Patties Spicy 7.4 oz, Beyond Meat Beyond Chicken
`Plant-Based Breaded Tenders Classic 8 oz, Beyond Meat Beyond Meatballs Italian Style
`
`Plant-Based Meatballs 12 CT Classic 10 oz, Beyond Meat Beyond Breakfast Sausage
`Plant-Based Breakfast Links Classic 8.3 oz
`
`52. Members of the Class described are referred to as “Class Members” or members of
`
`the “Class.”
`
`53.
`
`The following are excluded from the Class: (1) any Judge presiding over this action
`
`and members of his or her family; (2) Defendant, Defendant’s subsidiaries, parents, successors,
`
`predecessors, and any entity in which Defendant or its parent has a controlling interest (as well as
`
`current or former employees, officers, and directors); (3) persons who properly execute and file a
`
`timely request for exclusion from the Class; (4) persons whose claims in this matter have been
`
`finally adjudicated on the merits or otherwise released; (5) Plaintiffs’ counsel and Defendant’s
`
`counsel; and (6) the legal representatives, successors, and assigns of any such excluded persons.
`
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`54.
`
`Certification of Plaintiffs’ claims for class-wide treatment is appropriate because
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`Plaintiff can prove the elements of her claims on a class-wide basis using the same evidence as
`
`would be used to prove those elements in individual actions alleging the same claims.
`
`55.
`
`Numerosity – Federal Rule of Civil Procedure 23(a)(1). The members of the Class
`
`are so numerous that individual joinder of all Class Members is impracticable. On information and
`
`belief, Class Members number in the thousands to millions. The precise number or identification
`
`of members of the Class are presently unknown to Plaintiffs but may be ascertained from
`
`Defendant’s books and records or from information maintained by retailers. Class Members may
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`be notified of the pendency of this action by recognized, Court-approved notice dissemination
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`methods, which may include U.S. mail, electronic mail, Internet postings, and/or published notice.
`
`56.
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`Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2) and
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`23(b)(3). Common questions of law and fact exist as to all members of the Class, which
`
`predominate over any questions affecting individual members of the Class. These common
`
`questions of law or fact include, but are not limited to, the following:
`
`a.
`
`b.
`
`Whether the Products’ contents are mislabeled pursuant to the FDCA;
`
`Whether Defendant knowingly made misleading statements in connection
`
`with consumer transactions that reasonable consumers were likely to rely upon to
`
`their detriment;
`
`c.
`
`Whether Defendant knew or should have known that the representations and
`
`advertisements regarding the Products was false and misleading;
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`d.
`
`e.
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`Whether Defendant’s conduct violates public policy;
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`Whether Defendant’s acts and omissions violate state law;
`
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 15 of 23
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`f.
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`Whether Plaintiffs and the Class Members did not receive the benefit of
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`their bargain when purchasing the Products;
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`h.
`
`Whether the Plaintiffs and the Class Members suffered monetary damages,
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`and, if so, what is the measure of those damages;
`
`i.
`
`Whether Plaintiffs and the Class Members are entitled to an injunction,
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`damages, restitution, equitable relief, and other relief deemed appropriate, and, if
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`so, the amount and nature of such relief.
`
`57.
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`Defendant engaged in a common course of conduct giving rise to the legal rights
`
`sought to be enforced by Plaintiffs, on behalf of herself and the other Class Members. Similar or
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`identical statutory and common law violations, business practices, and injuries are involved.
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`Individual questions, if any, pale by comparison, in both quality and quantity, to the numerous
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`common questions that dominate this action.
`
`58.
`
`Typicality – Federal Rule of Civil Procedure 23(a)(3). Plaintiffs’ claims are typical
`
`of the claims of the other Class Members, as each class member was subject to the same omission
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`of material fact and misrepresentations regarding the Products’ illegal ingredients and unlawful
`
`implied disease claims. Plaintiffs share the aforementioned facts and legal claims or questions
`
`with Class Members, and Plaintiffs and all Class Members have been similarly affected by
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`Defendant’s common course of conduct alleged herein. Plaintiffs and all Class Members sustained
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`monetary and economic injuries.
`
`59.
`
`Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4). Plaintiffs
`
`are adequate representatives of the Class because they are a member of the Class and their interests
`
`do not conflict with the interests of the Class Members they seek to represent. Plaintiffs have also
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`retained counsel competent and experienced in complex commercial and class action litigation.
`
`
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 16 of 23
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`Plaintiffs and their counsel intend to prosecute this action vigorously for the benefit of all Class
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`Members. Accordingly, the interests of the Class Members will be fairly and adequately protected
`
`by Plaintiffs and their counsel.
`
`60.
`
`Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2).
`
`Defendant has acted or refused to act on grounds generally applicable to Plaintiffs and all Class
`
`Members, thereby making appropriate final injunctive relief and declaratory relief, as described
`
`below, with respect to the Class as a whole.
`
`61.
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`Superiority – Federal Rule of Civil Procedure 23(b)(3). A class action is superior
`
`to any other available means for the fair and efficient adjudication of this controversy, and no
`
`unusual difficulties are likely to be encountered in the management of this class action. The
`
`damages or other financial detriment suffered by Plaintiff and the Class Members are relatively
`
`small compared to the burden and expense that would be required to individually litigate their
`
`claims against Defendant, so it would be impracticable for Class Members to individually seek
`
`redress for Defendant’s wrongful conduct. Even if Class Members could afford individual
`
`litigation, the court system could not. Individualized litigation creates a potential for inconsistent
`
`or contradictory judgments and increases the delay and expense to all parties and the court system.
`
`By contrast, the class action device presents far fewer management difficulties, and provides the
`
`benefits of single adjudication, economy of scale, and comprehensive supervision by a single
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`court.
`
`FIRST CAUSE OF ACTION
`
`Violation Of The State Consumer Fraud Acts
`
`62.
`
`Plaintiffs incorporate by reference all of the foregoing paragraphs of this Complaint
`
`as if fully set forth herein.
`
`
`
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 17 of 23
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`63.
`
`The Consumer Fraud Acts of the states prohibit the use of unfair or deceptive
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`business practices in the conduct of trade or commerce.
`
`64.
`
`Plaintiffs and the other Class Members have standing to pursue a cause of action
`
`for violation of the Consumer Fraud Acts of the states have suffered an injury in fact and lost
`
`money as a result of Defendant’s actions set forth herein.
`
`65.
`
`Defendant engaged in unfair and/or deceptive conduct, including, but not limited
`
`to, making representations in violation of the FDCA.
`
`66.
`
`Defendant intended that Plaintiffs and each of the other Members of the Class
`
`would rely upon its unfair and deceptive conduct and a reasonable person would in fact be misled
`
`by this deceptive conduct described above.
`
`67.
`
`As a result of Defendant’s use or employment of unfair or deceptive acts or business
`
`practices, Plaintiffs and each of the other Members of the Class have sustained damages in an
`
`amount to be proven at trial.
`
`68.
`
`In addition, Defendant’s conduct showed malice, motive, and the reckless disregard
`
`of the truth such that an award of punitive damages is appropriate.
`
`SECOND CAUSE OF ACTION
`
`Violation Of Magnuson-Moss Warranty Act
`
`15 U.S.C. § 2301, et seq.
`
`69.
`
`70.
`
`Plaintiffs repeat and re-allege all previous paragraphs, as if fully included herein.
`
`As previously alleged, this Court has original jurisdiction over this matter based
`
`upon the requirements of CAFA; therefore, the Court has alternate jurisdiction over Plaintiffs’
`
`Magnuson-Moss claim.
`
`71.
`
`The Products are consumer products as defined in 15 U.S.C. § 2301(1).
`
`
`
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`Case 4:22-cv-00297-SHL-SBJ Document 1 Filed 09/09/22 Page 18 of 23
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`72.
`
`Plaintiffs and Class Members are consumers as defined in 15 U.S.C. § 2301(3) and
`
`utilized the Products for personal and household use and not for resale or commercial purposes.
`
`73.
`
`Plaintiffs purchased the Products costing more than $5 and their individual claims
`
`are greater than $25 as required by 15 U.S.C. §§ 2302(e) and 2310(d)(3)(A).
`
`74.
`
`75.
`
`Defendant is a supplier and warrantor as defined in 15 U.S.C. §§ 2301(4) and (5).
`
`The federal Magnuson-Moss Warranty Act (“MMWA” or “Act”), 15 U.S.C. §§
`
`2301-2312, is a consumer protection regime designed to supplement state warranty law.
`
`76.
`
`The MMWA provides a cause of action for breach of warranty, including the
`
`violation of express and implied warranty of merchantability, or other violations of the Act. 15
`
`U.S.C. § 2310(d)(1).
`
`77.
`
`The Defendant has the implied warranties of merchantability by failing to provide
`
`merchantable goods. The Products at issue are not merchantable or fit for their ordinary purposes
`
`because the Products do not contain the represented DV% amount for protein, thus a person
`
`seeking an amount of that protein, cannot consume Defendant’s Products to consume the amount
`
`of stated protein.
`
`78.
`
`Therefore, Defendant’s Products are not merchantable or fit for their ordinary
`
`purposes because the %DV in protein/and or amount of protein is underfilled within the Products
`
`because a consumer, and Plaintiffs, are not consuming the amount of stated