Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Eric Schleyer and Emilyn Mishkan, on
`behalf of themselves and all others similarly
`situated,
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`CASE NO. 1:22-cv-10932
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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` Plaintiffs,
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`v.
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`Starbucks Corporation,
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`Defendant.
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`Plaintiffs Eric Schleyer and Emilyn Mishkan (“Plaintiffs”), on behalf of themselves
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`and all others similarly situated, by and through their attorneys, bring this Class Action
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`Complaint against Starbucks Corporation (“Defendant” or “Starbucks”), based upon personal
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`knowledge as to themselves, and upon information, investigation and belief of their counsel.
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`INTRODUCTION
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`1.
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`This class action seeks to challenge Defendant’s false and deceptive practices
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`in the marketing and sale of its Sprouted Grain bagel (the “Product”).
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`2.
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`Specifically, Defendant has marketed the Product as being a “Sprouted Grain”
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`bagel, a representation which misleads consumers into believing that sprouted grains are used
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`as the sole, or at least primary, source of grain in the Product.
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`3.
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`Unbeknownst to consumers however, the Product is made primarily with
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`traditional, non-sprouted grains.
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`------------------------------------------------------ x
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`Eric Schleyer and Emilyn Mishkan, on
`behalf of themselves and all others similarly
`situated,
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`CASE NO. 1:22-cv-10932
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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` Plaintiffs,
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`v.
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`Starbucks Corporation,
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`Defendant.
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`Plaintiffs Eric Schleyer and Emilyn Mishkan (“Plaintiffs”), on behalf of themselves
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`and all others similarly situated, by and through their attorneys, bring this Class Action
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`Complaint against Starbucks Corporation (“Defendant” or “Starbucks”), based upon personal
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`knowledge as to themselves, and upon information, investigation and belief of their counsel.
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`INTRODUCTION
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`1.
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`This class action seeks to challenge Defendant’s false and deceptive practices
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`in the marketing and sale of its Sprouted Grain bagel (the “Product”).
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`2.
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`Specifically, Defendant has marketed the Product as being a “Sprouted Grain”
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`bagel, a representation which misleads consumers into believing that sprouted grains are used
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`as the sole, or at least primary, source of grain in the Product.
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`3.
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`Unbeknownst to consumers however, the Product is made primarily with
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`traditional, non-sprouted grains.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 2 of 25
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`4.
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`Plaintiffs and other consumers purchased the Product and paid a premium price
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`based upon their reliance on Defendant’s advertising the Product as “Sprouted Grain.” Had
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`Plaintiffs and other consumers been aware that the Product is made primarily with traditional,
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`non-sprouted grains, they would not have purchased the Product or would have paid
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`significantly less for it. Accordingly, Plaintiffs and Class members have been injured by
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`Defendant’s deceptive business practices.
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` JURISDICTION AND VENUE
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`5.
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`This Court has subject matter jurisdiction pursuant to the Class Action Fairness
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`Act of 2005, 28 U.S.C. § 1332(d)(2), because this is a class action filed under Rule 23 of the
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`Federal Rules of Civil Procedure, there are thousands of proposed Class members, the
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`aggregate amount in controversy exceeds $5,000,000 exclusive of interest and costs, and
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`Defendant is a citizen of a state different from at least some members of the proposed Classes,
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`including Plaintiffs.
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`6.
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`This Court has personal jurisdiction over Defendant because Defendant has
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`sufficient minimum contacts in New York, or otherwise intentionally avails itself of the
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`markets within New York, through its sale of the Product and other products in New York to
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`New York consumers.
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`7.
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`Venue is proper in this judicial District pursuant to 28 U.S.C. § 1391(b)(2)
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`because a substantial part of the events or omissions giving rise to the claims alleged occurred
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`in this District. Specifically, Plaintiff Schleyer resides in this District and she purchased the
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`Product in this District.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 3 of 25
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`PLAINTIFFS
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`8.
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`Plaintiff Schleyer is a citizen of New York and currently resides in Brooklyn,
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`New York. In 2021 and early 2022, Plaintiff Schleyer purchased the Product from Starbucks
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`in New York, New York. Based on the in-store advertising of the Product as a “Sprouted
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`Grain” bagel, Plaintiff Schleyer reasonably believed that sprouted grain was used as the sole,
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`or at least primary, source of grain in the Product. Had he known that Product was made
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`primarily with traditional, non-sprouted grains, he would not have purchased it, or would have
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`paid significantly less for it. As such, Plaintiff Schleyer has been injured as a direct result of
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`Defendant’s conduct.
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`9.
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`Plaintiff Mishkan is a citizen of California and currently resides in Los Angeles,
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`California. Throughout 2020 and 2021, Plaintiff Mishkan purchased the Product from a
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`Starbucks in Beverly Hills, California and Palisades, California. Based on the in-store
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`advertising of the Product as a “Sprouted Grain” bagel, Plaintiff Mishkan reasonably believed
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`that sprouted grain was used as the sole, or at least primary, source of grain in the Product. Had
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`she known that Product was made primarily with traditional, non-sprouted grains, she would
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`not have purchased it, or would have paid significantly less for it. As such, Plaintiff Mishkan
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`has been injured as a direct result of Defendant’s conduct.
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`DEFENDANT
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`10.
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`Defendant Starbucks Corporation is a Washington corporation with its principal
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`place of business in Seattle, Washington. Defendant owns and operates one of the world’s
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`largest coffee and beverage chains, which sell coffee, tea, pastries, and other breakfast items
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`such as the Product at issue here.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 4 of 25
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`FACTUAL ALLEGATIONS
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`11.
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`Starbucks is a national coffee, tea, and pastry chain, with over 15,000 brick and
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`mortar stores in the U.S. alone. Starbucks stores offer a variety of products, including coffees,
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`teas, pastries, bagels, and other breakfast items.
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`12.
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`13.
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`The Product challenged here is the Sprouted Grain bagel offered by Starbucks.
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`Unfortunately for consumers, Starbucks has resorted to false and deceptive
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`advertising to boost sales and increase profits from the Product, all at the expense of
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`unsuspecting consumers.
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`14.
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`Specifically, Starbucks has marketed the Product with in-store advertising
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`claiming that the Product is a “Sprouted Grain” bagel. See example below.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 5 of 25
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`15.
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`Based on this representation, reasonable consumers purchase the Product
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`believing that sprouted grains, such as sprouted wheat, are used as the sole, or at least primary
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`source of grain in the Product.
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`16.
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`Unbeknownst to consumers, the Product are made primarily with traditional,
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`non-sprouted grains.
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`17.
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`The ingredients of the Product are:
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`ENRICHED WHEAT FLOUR [WHEAT FLOUR, MALTED BARLEY FLOUR,
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`NIACIN, REDUCED IRON, THIAMINE MONONITRATE, RIBOFLAVIN, FOLIC ACID,
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`ASCORBIC ACID (DOUGH CONDITIONER), ENZYMES], WATER, SPROUTED
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`WHOLE WHEAT FLOUR, GRAIN BLEND [WHEAT SOURDOUGH (WATER,
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`FERMENTED WHEAT FLOUR), SPROUTED WHEAT GRAINS, SPROUTED RYE
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`GRAINS, SPROUTED TRITICALE GRAINS], SEEDS AND GRAINS BLEND [OATS,
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`BROWN FLAX, GOLDEN FLAX, SUNFLOWER SEEDS, WHEAT], LIQUID SUGAR,
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`MALTED BARLEY FLOUR, CONTAINS 2% OR LESS OF: SUNFLOWER SEEDS, FLAX
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`SEEDS, WHEAT GLUTEN, SOYBEAN AND/OR CANOLA OILS, SALT, YEAST,
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`CORNMEAL, WHEAT FLOUR, ENZYMES. CONTAINS: WHEAT.
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`18.
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`As such, the advertising of the Product as “Sprouted Grain” is false and
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`deceptive.
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`19.
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`The misleading perception that sprouted grains are used as the sole, or at least
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`primary, source of grain in the Product, is material to consumers purchasing decisions because
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`sprouted grains are more premium and desirable than traditional non-sprouted grains. As the
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`name suggests, sprouted grains are sprouted through a germination process prior to use in bread
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`and other food items. As a result, sprouted grains have less starch, a lower carb count, are
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 6 of 25
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`easier to digest, and have a lower glycemic index than regular grains. The sprouting process
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`also produces more key nutrients, including protein, fiber, and vitamins in the grains prior to
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`use. Lastly, sprouting breaks down phytic acid, which normally decreases absorption of
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`vitamins and minerals in the body. In contrast, processed white flour, which is what Starbucks
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`primarily uses in the Product, is stripped of its nutrients, such as fiber, vitamins and minerals,
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`and therefore has little nutritional value. As such, consumers value sprouted grains over
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`traditional non-sprouted grains.
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`20.
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`The belief that the Product is made with sprouted grain as the sole, or at least
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`primary source of grain in the Product is even more reasonable given that other sprouted bread
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`products on the market, including sprouted bagels, contain primarily sprouted grain. For
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`example, Silver Hills Organic Sprouted Power Bagels (depicted below) contain sprouted whole
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`wheat flour as the primary grain ingredient:1
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`1 https://www.target.com/p/silver-hills -bakery-organic-sprouted-power-bagels-everything-14oz-5ct/-/A-
`79848809?ref=tgt_adv_XS000000&AFID=google_pla_df&fndsrc=tgtao&DFA=71700000012732781&CPNG
`=PLA_Grocery%2BShopping_Local%7CGrocery_Ecomm_Food_Bev&adgroup=SC_Grocery&LID=7000000
`01170770pgs&LNM=PRODUCT_GROUP&network=g&device=c&location=9061121&targetid=aud-
`554348709499:pla-
`387040279092&ds_rl=1246978&gclid=Cj0KCQiAmaibBhCAARIsAKUlaKS1G2eibPdlFVxJhcEk-
`_eutEe8HNDJY1KNOYySmCK8jt-1Bu4GeAIaAi2wEALw_wcB&gclsrc=aw.ds
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`Case 1:22-cv-10932 Document1 Filed 12/28/22 Page 7 of 25
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`Ingredients:
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`Water, Organic Sprouted Whole Wheat Flour, Organic Wheat Flour, Organic Cane Sugar, Organic Sesame
`Seeds, Organic Minced Onion, Organic Vital Wheat Gluten, Organic Corn Meal, Organic Poppy Seeds,
`Yeast, Sea Salt, Cultured Wheat Flour, Organic SunflowerOil.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 8 of 25
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`21.
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`Another example is Alvarado St. Bakery’s Sprouted Sesame Seed Bagel, which
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`contains sprouted whole wheat as the first ingredient in the bagel:2
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`2https://www.instacart.com/landing?product_id=48643&retailer_id=457&utm_medium=sem_shopping&utm_s
`ource=instacart_google&utm_campaign=ad_demand_shopping_rp_food-all&utm_content=accountid-
`8145171519_campaignid-16692365446_adgroupid-134470738509_device-c&utm_term=targetid-pla-
`1391915632314&gclid=Cj0KCQiAmaibBhCAARIsAKUlaKTNe7PVngYul7iXjAe1dsKu-
`Y0mkjjBQ903NqdZY6g1J5_tJGSM6M0aAsByEALw_wcB
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 9 of 25
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`22.
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`Another example is Franz Organic Sprouted Grain Plan Bagel, which contains
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`sprouted whole wheat as the first ingredient in bagel.3
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`3 https://www.albertsons.com/shop/product-details.960459686.html
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 10 of 25
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`23.
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`As the entities responsible for the development, ingredients, manufacturing,
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`advertising, and sale of the Product, Defendant knew or should have known that the Product is
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`falsely and deceptively advertised. Moreover, Defendant knew or should have known that
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`Plaintiffs and other consumers, in purchasing the Product, would rely on Defendant’s
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`advertising and naming of the Product and be deceived.
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`24.
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`As outlined above, consumers are willing to pay more for the Product based on
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`the belief that sprouted grains are used as the sole, or at least primary, source of grain in the
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`Product. Plaintiffs and other consumers would have paid significantly less for the Product, or
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`would not have purchased it at all, had they known that the truth about it. Thus, through the
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`use of misleading representations, Defendant commands a price that Plaintiffs and the Classes
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`would not have paid had they been fully informed.
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`25.
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`Therefore, Plaintiffs and other consumers purchasing the Product have suffered
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`injury in fact and lost money as a result of Defendant’s false and deceptive practices, as
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`described herein.
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`CLASS ACTION ALLEGATIONS
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`26.
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`Plaintiffs bring this class action pursuant to Fed. R. Civ. P 23 and all other
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`applicable laws and rules, individually, and on behalf of all members of the following Classes:
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`Nationwide Class
`All residents of the U.S. who purchased the Product within the applicable statute of
`limitation (“Nationwide Class”).
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`California Class
`All residents of California who purchased the Product within the applicable statute of
`limitation (“California Class”).
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 11 of 25
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`California Consumer Subclass
`All residents of California who purchased the Product for personal, family, or
`household purposes, within the applicable statute of limitations period (“California
`Consumer Subclass”)
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`New York Class
`All residents of New York who purchased the Product within the applicable statute of
`limitation (“New York Class”) (together with the Nationwide Class, the California
`Class, and the California Consumer Subclass, the “Classes”).
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`27.
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`Excluded from the Classes are the following individuals and/or entities:
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`Defendant and its parents, subsidiaries, affiliates, officers and directors, current or former
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`employees, and any entity in which Defendant has a controlling interest; all individuals who
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`make a timely election to be excluded from this proceeding using the correct protocol for
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`opting out; and all judges assigned to hear any aspect of this litigation, as well as their
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`immediate family members.
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`28.
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`Plaintiffs reserve the right to modify or amend the definition of the proposed
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`Classes and/or add subclasses before the Court determines whether class certification is
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`appropriate.
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`29.
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`Numerosity: Members of each Class are so numerous and geographically
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`dispersed that individual joinder of all Class members is impracticable. The precise number of
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`Class members is unknown to Plaintiffs but is likely to be ascertained by the Defendant’s
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`records. At a minimum, there likely are at least tens of thousands of Class members.
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`30.
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`Commonality: There are questions of law and fact common to the proposed
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`class(es). Common questions of law and fact include, without limitations:
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`a. whether Defendant’s course of conduct alleged herein violates the statutes
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`and other laws that are pled in this Complaint;
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 12 of 25
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`b. whether reasonable consumers would rely upon the “Sprouted Grain”
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`representation and reasonably believe the Product is made solely or at least
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`predominantly with sprouted grain;
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`c. whether Defendant knew or reasonably should have known that the
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`“Sprouted Grain” name was false or misleading;
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`d. whether Defendant was unjustly enriched by retaining monies from the sale
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`of the Product;
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`e. whether certification of each Class is appropriate under Rule 23;
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`f. whether Plaintiffs and the members of each Class are entitled to declaratory,
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`equitable, and/or other relief, and the scope of such relief; and
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`g. the amount and nature of the relief to be awarded to the Plaintiffs and the
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`Classes.
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`31.
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`Typicality: Plaintiffs’ claims are typical of the other Class members because
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`Plaintiffs, as well as Class members, purchased the Product. Plaintiffs and members of the
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`Classes relied on the “Sprouted Grain” representation about the Product prior to purchasing it.
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`Plaintiffs and the members of each Class paid for Defendant’s Product and would not have
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`purchased them (or would have paid substantially less for them) had they known that the
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`“Sprouted Grain” representation was misleading.
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`32.
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`Adequacy: Plaintiffs will fairly and adequately protect the interests of the
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`proposed Classes as their interests do not conflict with the interests of the members of the
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`proposed Classes they seek to represent, and they have retained counsel competent and
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`experienced in class action litigation. Thus, the interests of the members of the Classes will be
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`fairly and adequately protected by Plaintiffs and their counsel.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 13 of 25
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`33.
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`Predominance: Pursuant to Rule 23(b)(3), the common issues of law and fact
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`identified in this Complaint predominate over any other questions affecting only individual
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`members of the Classes. Class issues fully predominate over any individual issue because no
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`inquiry into individual conduct is necessary; all that is required is a narrow focus on
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`Defendant’s misconduct detailed at length in this Complaint.
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`34.
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`Superiority: A class action is superior to all other available methods for the
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`fair and efficient adjudication of this litigation because individual litigation of each claim is
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`impractical. It would be unduly burdensome to have individual litigation of hundreds of
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`thousands of individual claims in separate lawsuits, every one of which would present the
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`issues presented in the Complaint/lawsuit. Further, because of the damages suffered by any
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`individual Class member may be relatively modest in relation to the cost of litigation, the
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`expense and burden of individual litigation make it difficult, if not impossible. Furthermore,
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`many of the Class members may be unaware that claims exist against the Defendant.
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`FIRST CLAIM FOR RELIEF
`Violation of New York’s General Business Law § 349
`(For the New York Class)
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`35.
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`Plaintiff Schleyer repeats the allegations contained in paragraphs 1-34 above
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`as if fully set forth herein.
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`36.
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`Plaintiff Schleyer brings this claim individually and on behalf of the members
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`of the proposed New York Class against Defendant.
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`37.
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`New York General Business Law (“GBL”) § 349 prohibits “[d]eceptive acts or
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`practices in the conduct of any business, trade, or commerce or in the furnishing of any service
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`in this state.”
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 14 of 25
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`38.
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`The conduct of Defendant alleged herein constitutes “unlawful” deceptive acts
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`and practices in violation of GBL § 349, and as such, Plaintiff Schleyer and the New York
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`Class members seek monetary damages.
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`39.
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`Defendant misleadingly, inaccurately, and deceptively advertised and marketed
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`its Product as “Sprouted Grain” to consumers.
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`40.
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`Defendant’s improper consumer-oriented conduct—including naming and
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`advertising the Product as “Sprouted Grain”— is misleading in a material way in that it, inter
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`alia, induced Plaintiff Schleyer and the New York Class members to purchase and pay a
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`premium for the Products when they otherwise would not have paid the same price had they
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`known the truth. Defendant made these untrue and/or misleading statements and
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`representations willfully, wantonly, and with reckless disregard for the truth.
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`41.
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`Plaintiff Schleyer and the New York Class members have been injured
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`inasmuch as they paid a premium for the Product that contained primarily traditional, non-
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`sprouted grain, contrary to the representation made about it. Accordingly, Plaintiff Schleyer
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`and the New York Class members received less than what they bargained and/or paid for.
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`42.
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`Defendant’s deceptive and misleading practices constitute a deceptive act and
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`practice in the conduct of business in violation of New York General Business Law §349(a)
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`and Plaintiff Schleyer and the New York Class members have been damaged thereby.
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`43.
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`As a result of Defendant’s “unlawful” deceptive acts and practices, Plaintiff
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`Schleyer and the New York Class are entitled to monetary, compensatory, statutory, treble and
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`punitive damages, restitution and disgorgement of all moneys obtained by means of
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`Defendant’s unlawful conduct, interest, and attorneys’ fees and costs.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 15 of 25
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`SECOND CLAIM FOR RELIEF
`Violation of New York’s General Business Law § 350
`(For the New York Class)
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`44.
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`Plaintiff Schleyer repeats the allegations contained in paragraphs 1-34 above
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`as if fully set forth herein.
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`45.
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`Plaintiff Schleyer brings this claim individually and on behalf of the members
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`of the proposed New York Class against Defendant.
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`46.
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`GBL § 350-a(1) provides, in part, as follows:
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`The term “false advertising” means advertising, including
`labeling, of a commodity, or of the kind, character, terms or
`conditions of any employment opportunity if such advertising is
`misleading in a material respect. In determining whether any
`advertising is misleading, there shall be taken into account
`(among other things) not only representations made by
`statement, word, design, device, sound or any combination
`thereof, but also the extent to which the advertising fails to
`reveal facts material in the light of such representations with
`respect to the commodity or employment to which the
`advertising relates under the conditions prescribed in said
`advertisement, or under such conditions as are customary or
`usual. …
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`Defendant’s naming and advertising of the Product as “Sprouted Grain” are
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`47.
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`materially misleading inasmuch as they misrepresent the Product’s primary ingredients.
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`48.
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`Plaintiff Schleyer and the New York Class members have been injured
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`inasmuch as they relied upon the naming and advertising of the Product and paid a premium
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`for a product in that they would not have paid the same price for the Product had they known
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`the truth about it. Accordingly, Plaintiff Schleyer and the New York Class members received
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`less than what they bargained and/or paid for.
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 16 of 25
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`49.
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`Defendant’s naming and advertising of the Product induced Plaintiff Schleyer
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`and the New York Class members to buy Defendant’s Product. Thus, Defendant made a
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`material misrepresentation about the Product.
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`50.
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`Defendant made the misleading “Sprouted Grain” representation willfully,
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`wantonly, and with reckless disregard for the truth.
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`51.
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`Defendant’s material misrepresentation was substantially uniform in content,
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`presentation, and impact upon consumers at large. Moreover, all consumers purchasing the
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`Product were exposed to Defendant’s material misrepresentation.
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`52.
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`As a result of Defendant’s “unlawful” deceptive acts and practices, Plaintiff
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`Schleyer and the New York Class are entitled to monetary, compensatory, statutory, treble and
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`punitive damages, restitution and disgorgement of all moneys obtained by means of
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`Defendant’s unlawful conduct, interest, and attorneys’ fees and costs.
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`THIRD CLAIM FOR RELIEF
`Violation of California’s Consumers Legal Remedies Act
`California Civil Code § 1750, et seq.
`(For the California Consumer Subclass)
`
`53.
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`Plaintiff Mishkan repeats the allegations contained in paragraphs 1-34 above as
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`if fully set forth herein.
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`54.
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`Plaintiff Mishkan brings this claim individually and on behalf of the members
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`of the proposed California Consumer Subclass against Defendant.
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`55.
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`The Product is a “good” within the meaning of Cal. Civ. Code § 1761(a), and
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`the purchases of the Product by Plaintiff Mishkan and members of the California Consumer
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`Subclass constitute “transactions” within the meaning of Cal. Civ. Code § 1761(e).
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`56.
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`Cal. Civ. Code § 1770(a)(5) prohibits “[r]epresenting that goods or services
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`have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they
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`16
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 17 of 25
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`do not have…” By representing the Product as a “Sprouted Grain” bagel, Defendant has
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`represented that the Product has certain characteristics (i.e., is made solely or predominantly
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`with sprouted grain) that it does not have. Therefore, Defendant has violated section 1770(a)(5)
`
`of the CLRA.
`
`57.
`
`Cal. Civ. Code § 1770(a)(7) prohibits “[r]espresenting that goods or services
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`are of a particular standard, quality, or grade, or that goods are of a particular style or model,
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`if they are of another.” By representing the Product as a “Sprouted Grain” bagel, Defendant
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`has represented that the Product is of a particular standard (i.e., is made solely or predominantly
`
`with sprouted grain) that it does not meet. Therefore, Defendant has violated section 1770(a)(7)
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`of the CLRA.
`
`58.
`
`Cal. Civ. Code § 1770(a)(9) prohibits “[a]dvertising goods or services with
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`intent not to sell them as advertised.” By representing the Product as a “Sprouted Grain” bagel,
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`Defendant has represented the Product with characteristics it intended not to provide to
`
`consumers. As such, Defendant has violated section 1770(a)(9) of the CLRA.
`
`59.
`
`At all relevant times, Defendant has known or reasonably should have known
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`that the “Sprouted Grain” representation is misleading or likely to mislead reasonable
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`consumers, and that Plaintiff Mishkan and other members of the California Consumer Subclass
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`would reasonably and justifiably rely on it when purchasing the Product. Nonetheless,
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`Defendant deceptively advertised the Product as such in order to deceive consumers into
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`believing it is a healthier, more premium bagel.
`
`60.
`
`Plaintiff Mishkan and members of the California Consumer Subclass have
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`justifiably relied on Defendant’s misleading representation when purchasing the Product.
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`Moreover, based on the materiality of Defendant’s misleading and deceptive conduct, reliance
`
`
`
`
`
`17
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`
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 18 of 25
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`may be presumed or inferred for Plaintiff Mishkan and members of California Consumer
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`Subclass.
`
`61.
`
`Plaintiff Mishkan and members of the California Consumer Subclass have
`
`suffered injuries caused by Defendant because they would have paid significantly less for the
`
`Product, or would not have purchased it at all, had they known the truth about it.
`
`62.
`
`Under Cal. Civ. Code § 1782, on September 27, 2022, Plaintiff Mishkan sent a
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`notice letter by certified mail to Defendant, notifying Defendant of her intent to pursue a claim
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`for damages under the CLRA (as well as other statutes and laws) on behalf of herself and all
`
`others similarly situated, and gave Defendant an opportunity to cure, consistent with Cal. Civ.
`
`Code § 1782. More than 30 days has passed since Defendant’s receipt of the notice letter, yet
`
`Defendant has not cured it deceptive conduct on a class-wide basis. As such, Plaintiff Mishkan
`
`seeks damages under the CLRA, as well all other available remedies.
`
`FOURTH CLAIM FOR RELIEF
`Violation of California’s False Advertising Law
`California Business & Professions Code § 17500, et seq
`(For the California Class)
`
`Plaintiff Mishkan repeats the allegations contained in paragraphs 1-34 above as
`
`63.
`
`if fully set forth herein.
`
`64.
`
`Plaintiff Mishkan brings this claim individually and on behalf of the members
`
`of the proposed California Class against Defendant.
`
`65.
`
`The FAL makes it “unlawful for any person to make or disseminate or cause to
`
`be made or disseminated before the public . . . in any advertising device . . . or in any other
`
`manner or means whatever, including over the Internet, any statement, concerning . . . personal
`
`property or services professional or otherwise, or performance or disposition thereof, which is
`
`
`
`
`
`18
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`
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 19 of 25
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`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.
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`66.
`
`Defendant has represented to the public, including Plaintiff Mishkan and
`
`members of the proposed California Class, through its deceptive naming and advertising, that
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`the Product is a “Sprouted Grain” bagel. However, this representation is misleading because
`
`the Product contains primarily traditional, non-sprouted grain. Because Defendant has
`
`disseminated misleading information regarding the Product, and Defendant knows, knew, or
`
`should have known through the exercise of reasonable care that the representation is false and
`
`misleading, Defendant has violated the FAL.
`
`67.
`
`As a result of Defendant’s misleading advertising, Defendant has unlawfully
`
`obtained money from Plaintiff Mishkan and members of the California Class. Plaintiff
`
`Mishkan therefore requests that the Court cause Defendant to restore this fraudulently obtained
`
`money to her and members of the proposed California Class, to disgorge the profits Defendant
`
`made on these transactions, and to enjoin Defendant from violating the FAL or violating it in
`
`the same fashion in the future as discussed herein. Otherwise, Plaintiff Mishkan and members
`
`of the proposed California Class may be irreparably harmed and/or denied an effective and
`
`complete remedy.
`
`FIFTH CLAIM FOR RELIEF
`Violation of California’s Unfair Competition Law (“UCL”),
`California Business & Professions Code § 17200, et seq.
`(For the California Class)
`
`68.
`
`Plaintiff Mishkan repeats the allegations contained in paragraphs 1-34 above as
`
`if fully set forth herein.
`
`
`
`
`
`19
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`
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 20 of 25
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`69.
`
`Plaintiff Mishkan brings this claim individually and on behalf of the members
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`of the proposed California Class against Defendant.
`
`70.
`
`The UCL, Cal. Bus. & Prof Code § 17200, provides, in pertinent part, that
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`“unfair competition shall mean and include unlawful, unfair or fraudulent business practices
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`and unfair, deceptive, untrue or misleading advertising . . . .”
`
`71.
`
`Under the UCL, a business act or practice is “unlawful” if it violates any
`
`established state or federal law. Defendant’s false and misleading advertising of the Product
`
`was “unlawful” because it violates the CLRA, the FAL, the GBL and other applicable laws as
`
`described herein. As a result of Defendant’s unlawful business acts and practices, Defendant
`
`have unlawfully obtained money from Plaintiff Mishkan and members of the proposed
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`California Class.
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`72.
`
`Under the UCL, a business act or practice is “unfair” if its conduct is
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`substantially injurious to consumers, offends public policy, and is immoral, unethical,
`
`oppressive, and unscrupulous, as the benefits for committing such acts or practices are
`
`outweighed by the gravity of the harm to the alleged victims. Defendant’s conduct was of no
`
`benefit to purchasers of the Product, as it is misleading, unfair, unlawful, and is injurious to
`
`consumers who rely on the naming and advertising of the Product. Deceiving unsuspecting
`
`consumers into believing the Product is made solely or primarily with sprouted grain is of no
`
`benefit to consumers. Therefore, Defendant’s conduct was “unfair.” As a result of Defendant’s
`
`unfair business acts and practices, Defendant has unfairly obtained money from Plaintiff
`
`Mishkan and members of the proposed California Class.
`
`73.
`
`Under the UCL, a business act or practice is “fraudulent” if it actually deceives
`
`or is likely to deceive members of the consuming public. Defendant’s conduct here was
`
`
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`
`
`20
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`
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`Case 1:22-cv-10932 Document 1 Filed 12/28/22 Page 21 of 25
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`fraudulent because it has the effect of deceiving consumers into believing the Product is made
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`solely or primarily with sprouted grain. Because Defendant has misled Plaintiff Mishkan and
`
`members of the California Class, Defendant’s conduct was “fraudulent.” As a result of
`
`Defendant’s fraudulent business acts and practices, Defendant has fraudulently obtained
`
`money from Plaintiff Mishkan and members of the California Class.
`
`74.
`
`Plaintiff Mishkan requests that the Court cause Defendant to restore this
`
`unlawfully, unfairly, and fraudulently obtained money to her, and members of the proposed
`
`California Class, to disgorge the profits Defendant made on these transactions, and to enjoin
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`Defendant from violating the UCL or violating it in the same fashion in the future as discussed
`
`herein. Otherwise, Plaintiff Mishkan and members of the proposed California Class may be
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`irreparably harmed and/or denied an effective and complete remedy.
`
`SIXTH CLAIM FOR RELIEF
`Breach of Implied Warranty
`Cal. Com. Code § 2314;
`(For the California Class and New York Class)
`
`75.
`
`Plaintiffs repeat the allegations contained in paragraphs 1-34 above as if fully
`
`set forth herein.
`
`76.
`
`Plaintiffs bring this claim individually and on behalf of the members of the
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`California Class and New York Class against Defendant.
`
`77.
`
`California’s and New York’s implied warranty of merchantability statutes
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`provide that “a warranty that the goods shall be merchantable is implied in a contract for their
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`sale if the seller is a merchant with respect to goods of that kind.” Cal. Com. Code § 2314(1);
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`N.Y. U.C.C. Law § 2-314(1).
`
`78.
`
`California’s and New York’s implied warrant
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