Professional Documents
Culture Documents
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Plaintiffs,
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v.
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PRIVATE LABEL
)
NUTRACEUTICALS LLC d/b/a
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)
MRITZMAYER
)
LABORATORIES, a Georgia
)
limited liability company; and DOES )
)
1 through 10, inclusive,
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Defendants.
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)
HEATHER SCHOURUP, on behalf
of herself and on behalf of all others
similarly situated,
CASE NO.
CLASS ACTION
COMPLAINT FOR DAMAGES,
EQUITABLE, DECLARATORY AND
INJUNCTIVE RELIEF:
1. Breach of Express Warranty in
Violation of Commercial Code 2313;
2. Deceit in Violation of Civil Code
1710(2);
3. Concealment in Violation of Civil Code
1710;
4. Violation of the Unfair Competition
Law, Bus. & Prof. Code 17200, et
seq.;
5. Violation of the False Advertising Law,
Bus. & Prof. Code 17500, et seq.;
6. Violation of the Consumers Legal
Remedies Act, Civil Code 1750, et
seq.;
7. Breach of Implied Warranties;
8. Breach of Implied Warranty of Fitness;
9. Violation Of Magnuson Moss Warranty
Act, 15 U.S.C. 2301, et seq.; and,
10. Negligence
DEMAND FOR JURY TRIAL
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Complaint
Case No. _____
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Complaint
Case No. _____
who, within the last four (4) years, purchased Defendants green coffee
bean extract product. Defendants green coffee bean extract product is sold
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1.
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relevant was, a resident of San Dimas, California. Within the last four (4) years,
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2.
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Georgia. Plaintiff is informed and believes, and thereon alleges, that a substantial
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3.
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include and charge, both jointly and severally, not only the Defendants identified
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in this Complaint, but also all Defendants designated as DOES 1 through 10,
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inclusive, as though the term Defendants was followed in each and every
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instance throughout this Complaint with the phrase "and each of them jointly and
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severally, including all named Defendants and Defendants included herein and
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4.
Defendants, at all times herein mentioned, were the partners, joint venturers,
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Complaint
Case No. _____
and/or employees of each other Defendant and in doing the acts, omissions, and
things alleged herein were acting as such and within the scope of their authority as
such agents and employees and with the permission and consent of all other
Defendants.
Defendants have, and at all times herein mentioned had, a joint economic and
business interest, goal and purpose in the Private Labels Green Coffee Extract
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1332(d)(2), as amended by the Class Action Fairness Act of 2005, because the
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matter in controversy, exclusive of interest and costs, exceeds the sum or value of
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$5,000,000, and is a class action where Plaintiff and class members are from a
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citizens of a state different from Defendants. This Court also has original
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'1331 and 2310(d)(1)(b). This Court has supplemental jurisdiction over the state
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6.
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1332(a)(1) because Plaintiff and the putative class are citizens of the State of
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controversy exceeds the sum or value of $75,000, exclusive of interests and costs.
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7.
business within the State of California and within this judicial district.
8.
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because many of the acts and transactions occurred in this district and because
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Defendants:
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Complaint
Case No. _____
a.
intentionally availed themselves of the laws and markets within this district
this district;
b.
c.
d.
GENERAL ALLEGATIONS
9.
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seeds (beans) of Coffea fruits. In the typical roasting process of coffee beans, a
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acid may be responsible for the pharmacological effects of green coffee extract.
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10.
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http://www.privatelabelnutra.com/private-label-nutraceuticals-expands-top-
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2015)
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11.
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which purportedly contain green coffee extract. Such products include, but are
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not limited to: Mritzmayer Laboratories Green Coffee Bean Extract, Pure
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Ultra**Green Coffee Bean Extract, Pure Super Green Coffee Extract, Pure Green
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Coffee Bean Extract Lean, Super Green Coffee Bean Extra (Private Labels
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12.
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attempting to tap into the growing market for the perceived health benefits of
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"Green Coffee Extract" in order to promote the sale of Private Labels Green
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13.
omissions regarding the Private Label Green Coffee Extract Product Line of
that the Private Label Green Coffee Extract Product Line contains green coffee
extract. This representation is featured on the front label of all the products subject
to this litigation. The representation also appears on the side label of the
packaging for the Private Label Green Coffee Extract Product Line. The side
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represent and warrant that the product contains. The weight-loss benefits are
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reinforced with the imagery of a trim waist with a tape measure around it.
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green coffee extract; (2) contain a sugar compound similar to Maltose; and (3) do
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15.
known, that the Private Label Green Coffee Extract Product Line of products did
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Complaint
Case No. _____
not contain chlorogenic acid and/or only contained trace amounts of chlorogenic
acid and did not truly contain green coffee extract as represented by Defendants
and Defendants purposely failed to disclose these material facts to its customers.
sugar compounds. Despite that Defendants knew, or should have known, that the
Private Labels Green Coffee Extract Product did not contain chlorogenic acid
and/or only contained trace amounts of chlorogenic acid and did not truly contain
advertised, and promoted the Private Label Green Coffee Extract Product line of
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products as containing "green coffee extract. To this day, Defendants have taken
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16.
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Green Coffee Extract Products were green coffee extract and contained 800mg
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of green coffee extract per serving. Instead, Defendants Green Coffee Extract
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Product did not contain green coffee extract and only contained trace amounts of
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party lab shows that the Private Label Green Coffee Extract Product Line
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17.
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green coffee extract and that the products contain 800 mg of green coffee
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representation to consumers.
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18.
qualities and ingredients, and companies such as Private Label intend and know
that consumers rely upon statements made on packaging and labels in making
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Private Label Green Coffee Extract Products as containing green coffee extract
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Cal. Unfair Competition Law (Bus. & Prof. Code 17200, et seq.);
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Cal. False Advertising Law (Bus. & Prof. Code 17500, et seq.);
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20.
Defendants selected the products name and designed the labels and
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Plaintiff and members of the Class. Federal laws and FDA regulations did not
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require Defendants to choose the phrase "Green Coffee Bean Extract" and place
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that phrase prominently on the packaging for the Private Label Green Coffee
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Extract products.
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strategy.
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consumers to buy the Private Label Green Coffee Extract Products as a result of
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Complaint
Case No. _____
companies are selling supplements that contain green coffee extract. Defendants
affirmative decision to label the subject products "Green Coffee Extract" was and
is misleading, given that the subject products contain a sugar compound similar to
Maltose and not green coffee extract. The FDA does not require Defendants to
make the affirmations of fact and label their products as Green Coffee Extract.
The foregoing affirmations of fact and statements of quality are voluntarily placed
21.
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Green Coffee Extract Product supplements are false, misleading and/or fail to
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disclose material facts. Defendants knew, or should have known, and/or were
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reckless in not knowing and disclosing, that the Private Label Green Coffee
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amounts of chlorogenic acid. Defendants knew, or should have known, that their
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and promises regarding the subject supplements were likely to deceive consumers
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into believing they were purchasing a supplement that contained green coffee
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extract.
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Within the last 4 years, Plaintiff purchased for personal use several
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bottles of Private Label Green Coffee Extract Product directly from Defendants.
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Such product was shipped from Defendants directly to her home in California.
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Prior to purchase, Plaintiff believed that Private Label Green Coffee Extract
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23.
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Product to be tested by two independent labs. The results of these studies confirm
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that the Private Label Green Coffee Extract Product do not conform to the
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Had Plaintiff known the truth, namely, that the Private Label Green
Coffee Extract Products contained only trace amounts of chlorogenic acid and
contained little to no green coffee extract, she would not have purchased the
Private Label Green Coffee Extract. As a consequence, Plaintiff has lost money
in the form of paying for the Private Label Green Coffee Extract Products rather
than not buying the product at all. Plaintiff did not receive the product for which
she bargained.
25.
practices as alleged in this Complaint, Plaintiff and members of the Class have
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purchased the Private Label Green Coffee Extract Products under the false
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impression that products contained green coffee extract. Each consumer has been
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and/or omissions which are displayed on the product packaging for the Private
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Label Green Coffee Extract Product line, prior to purchasing the product.
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26.
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the Private Label Green Coffee Extract Products, Plaintiff and members of the
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Class overpaid for the product because the value of the product was diminished at
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the time it was sold to consumers. Had Plaintiff and members of the Class been
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made aware that the product contained a sugar compound similar to Maltose and
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not green coffee extract, they would not have purchased the product, would have
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paid less for it, or would have purchased another competing product. For the
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reasons alleged in this Complaint, the Private Label Green Coffee Extract Product
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was worth less than what Plaintiff and members of the Class paid for it. Plaintiff
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and members of the Class purchased Private Label Green Coffee Extract Products
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receive what they paid for, and Plaintiff and the Class members have suffered an
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8
Complaint
Case No. _____
omissions.
27.
Civil Code 1750, et seq., notified Defendants of the matters alleged in this
Complaint, namely, that the Private Label Green Coffee Extract Products have
been falsely and misleadingly labeled as Green Coffee Bean Extract" and
written CRLA notice to Defendants requested that Defendants take the following
steps to cure this defect: remove the green coffee bean extract representations,
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provide an accounting of Defendants profits from the sale of Private Label Green
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Coffee Extract Products, pay restitution to Plaintiff and all other putative Class
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members, recall the mislabeled products, and agree not to promote, market,
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advertise, and/or label the Private Label Green Coffee Extract Products as
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containing green coffee bean extract. The statutory time period for Defendants to
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comply has not yet lapsed. Should Defendant fail to cure these defects, Plaintiff
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intends to amend her complaint in order to seek damages under the CLRA.
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Plaintiff's
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products and thus, satisfies any pre-suit filing notice requirements in relation to
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follows:
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///
9
Complaint
Case No. _____
Class:
(4) years of the date this Complaint is filed. Excluded from the Class
has a controlling interest; and (3) the judge(s) to whom this action is
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California Sub-Class:
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Private Labels Green Coffee Extract Products within four (4) years
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of the date this Complaint is filed. Excluded from the Class are
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has a controlling interest; and (3) the judge(s) to whom this action is
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30.
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class action pursuant to Fed. R. Civ. Pro. 23, and the case law thereunder.
31.
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32.
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questions affecting only individual members of the Classes. These common legal
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and factual questions include, but are not limited to, the following:
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a.
c.
d.
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e.
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f.
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h.
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i.
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j.
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entitled to equitable relief including, but not limited to, restitution and/or
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disgorgement.
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k.
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disgorgement.
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Complaint
Case No. _____
l.
33.
common to the members of the Classes predominate over any questions affecting
34.
of the Classes as all members of the Classes are similarly affected by Defendants
wrongful conduct. Plaintiff, like other members of the Classes, purchased Private
Label Green Coffee Extract Product after exposure to the same material
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received a product that contains a sugar compound instead of green coffee bean
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extract. Plaintiff is advancing the same claims and legal theories on behalf of
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35.
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behalf of the other members of the Classes. Plaintiff has no interests antagonistic
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to the interests of the other members of the proposed Classes and is subject to no
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actions.
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Classes and will fairly and adequately protect the interests of the Classes.
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36.
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the fair and efficient adjudication of this dispute. Joinder of all members is
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likely will be relatively small, especially given the relatively small cost of the
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supplements at issue and the burden and expense of individual prosecution of the
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the wrongs done to them. Moreover, even if members of the Classes could afford
Thus, it would be
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Complaint
Case No. _____
small cost of the products at issue and the burden and expense attendant to
litigating the claims at issue in this litigation, in the absence of class litigation, it
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37.
This suit may be maintained as a class action under Fed. R. Civ. Pro.
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Defendants to:
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a.
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coffee extract;
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b.
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c.
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///
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///
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Complaint
Case No. _____
(By Plaintiff and the Members of the Classes Against All Defendants)
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38.
omissions regarding the Private Label Green Coffee Extract Product line of
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that the Private Label Green Coffee Extract Product line of supplements is Green
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Coffee Bean Extract and contains green coffee bean extract. These
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Defendants that became part of the basis of the bargain between Defendants, on
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the one hand, and Plaintiff and all others similarly situated members of the
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40.
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buyer which relates to the goods and becomes part of the basis of
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(c) Any sample or model which is made part of the basis of the
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Complaint
Case No. _____
41.
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omissions regarding the Private Label Green Coffee Extract Product line of
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that the Private Label Green Coffee Extract Product line of supplements is a
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Green Coffee Bean Extract and contained green coffee bean extract. In fact, the
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Private Label Green Coffee Extract Product line of supplements contains a sugar
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compound similar to Maltose, does not contain or contains only trace amounts of
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chlorogenic acid and not green coffee bean extract. Defendants were aware of
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these defects in their Green Coffee Extract Product line of supplements and, at all
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determined at trial.
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(By Plaintiff and the Members of the Classes Against All Defendants)
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43.
44.
advertising, and promotions, that the Private Label Green Coffee Extract Product
bean extract. In fact, the Private Label Green Coffee Extract Product line of
trace amounts of chlorogenic acid and does not contain green coffee bean extract.
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Defendants knew that their assertions were false, but asserted such
Had Plaintiff and the members of the Classes known that Defendants
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assertion was untrue, Plaintiff and the members of the Classes would not have
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supplements.
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47.
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Plaintiff and each members of the Classes purchased Defendants Green Coffee
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proven at trial.
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oppression, and/or in conscious disregard for Plaintiff's and the members of the
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(By Plaintiff and the Members of the Classes Against All Defendants)
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49.
50.
omissions regarding the Private Label Green Coffee Extract Product line of
that the Private Label Green Coffee Extract Product line of supplements is Green
Defendants Private Label Green Coffee Extract Products contain only trace
amounts of chlorogenic acid (or less), contains a sugar compound and does not
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contain green coffee extract. Defendants were aware of these defects in their
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Green Coffee Extract Product line of supplements and, at all relevant times, chose
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Instead,
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the Classes with the intent to reap the financial windfall from the sale of
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represented.
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Plaintiff and each member of the Classes purchased Defendants Green Coffee
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oppression, and/or in conscious disregard for Plaintiffs and the members of the
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VIOLATION OF CALIFORNIA
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(By Plaintiff and the Members of the Classes Against All Defendants)
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54.
the Classes.
56.
57.
unlawful, unfair and/or fraudulent business acts and practices. By engaging in the
acts and practices alleged in this Complaint, Defendants have committed one or
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more acts of unfair competition within the meaning of California Business &
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58.
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Code 17204 as defined by Business & Professions Code 17201 and therefore,
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she has standing to sue for any violation of Business & Professions Code 17200,
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unlawful, unfair, and fraudulent business practices by selling Private Label Green
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coffee extract.
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60.
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unlawful business practices by, inter alia, making the representations (which also
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constitutes advertising within the meaning of the UCL) and omissions of material
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61.
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"unfair" because they offend established public policy and/or are immoral,
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alleged in this Complaint. Among other things, consumers are led to believe that
the Private Label Green Coffee Extract Products contain green coffee bean extract
which is a quality and characteristic that they do not have. Defendants acts and
omissions violate and offend California public policy against engaging in false,
Label Green Coffee Extract Products are Green Coffee Bean Extract and
contain green coffee bean extract when, in fact, the products contain a sugar
compound similar to Maltose, contains trace amounts (or less) of chlorogenic acid
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and do not contain green coffee bean extract. The injury to Plaintiff and members
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of the Classes and consumers greatly outweighs any alleged countervailing benefit
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circumstances.
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62.
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fraudulent, false, misleading and likely to deceive the consuming public within the
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Private Label Green Coffee Extract Products was unlawful, deceptive, untrue,
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misleading and likely to deceive the public and/or has deceived the Plaintiff and
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members of the Classes by representing that the product was Green Coffee Bean
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Extract and contained green coffee bean extract. Defendants knew and failed to
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disclose that the Private Label Green Coffee Extract Products contain a sugar
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compound similar to Maltose, contain only trace amounts (or less) of chlorogenic
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acid and do not contain green coffee extract. Defendants conduct misleads and
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deceives consumers.
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63.
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Coffee Bean Extract and as containing green coffee bean extract, violates the
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21 CFR 1.21
Cal. Unfair Competition Law (Bus. & Prof. Code 17200, et seq.);
Cal. False Advertising Law (Bus. & Prof. Code 17500, et seq.);
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64.
Plaintiff and the Classes reserve the right to allege other violations of
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law, which constitute other unlawful business acts or practices. Such conduct is
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65.
legitimate business interests, other than the conduct alleged in this Complaint.
66.
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Plaintiff and members of the Classes have been injured because they overpaid for
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Private Label Green Coffee Extract Products labeled as Green Coffee Bean
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Extract and as containing green coffee bean extract. Since the value of the
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product was diminished at the time of sale, Plaintiff and members of the Classes
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have been injured because had they been made aware that the subject product did
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not contain green coffee bean extract, they would not have purchased the product,
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would have paid less for it, or purchased another similar product.
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68.
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to reap unjust revenue and profit, and have unfairly acquired money from Plaintiff
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and the Classes. Plaintiff requests that this Court restore this money, with interest,
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Complaint
Case No. _____
69.
appropriate.
70.
practices.
71.
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Plaintiff also seeks attorneys fees and costs pursuant to, inter alia,
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(By Plaintiff and the Members of the Classes Against All Defendants)
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72.
of the Classes.
74.
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the material facts alleged in this Complaint constitute false and misleading
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75.
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regarding Private Label Green Coffee Extract Product was untrue, misleading and
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likely to deceive the public and/or has deceived the Plaintiff and consumers by
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representing that the product contained green coffee bean extract. Defendants
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knew and failed to disclose that the Private Label Green Coffee Extract Products
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contain a sugar compound similar to Maltose, contain only trace amounts (or less)
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Complaint
Case No. _____
Coffee Bean Extract and as containing green coffee bean extract violates the laws
77.
Coffee Bean Extract and/or as containing green coffee bean extract but which
actually contain a sugar compound similar to Maltose, contain trace amounts (or
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less) of chlorogenic acid and do not contain green coffee bean extract.
78.
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herein, Defendants knew or should have known that the statements and/or
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79.
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members of the Classes have suffered injury in fact and have lost money or
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more fully set forth herein. Plaintiff and members of the Classes have been
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injured Green Coffee Bean Extract and/or as containing green coffee extract, but
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containing green coffee bean extract, since the value of the product was
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diminished at the time of sale. Plaintiff and members of the Classes have been
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injured because had they been made aware that the subject product did not contain
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green coffee bean extract they would not have purchased the product, would have
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80.
to reap unjust revenue and profit, and have unfairly acquired money from Plaintiff
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Complaint
Case No. _____
and the Classes. Plaintiff requests that this Court restore this money, with interest,
81.
appropriate.
82.
practices.
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83.
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Plaintiff also seeks attorneys fees and costs pursuant to, inter alia,
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(By Plaintiff and the Members of the Classes Against All Defendants)
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84.
Legal Remedies Act, California Civil Code 1750, et seq. (the "CLRA").
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86.
21
Code 1761(d).
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87.
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herein because it extends to transactions that are intended to result, or which have
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resulted, in the sale of goods to consumers for personal, family or household use.
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Complaint
Case No. _____
unfair and deceptive business practices. To this end, the CLRA sets forth a list of
91.
construed and applied to promote its underlying purposes, which are to protect
consumers against unfair and deceptive business practices and to provide efficient
92.
10
detriment of Plaintiff and members of the Classes. Plaintiff and members of the
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Classes have suffered harm as a proximate result of the violations of law and
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93.
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a.
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represented that the Private Label Green Coffee Extract Products have
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b.
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represented that the Private Label Green Coffee Extract Products are of a
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c.
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advertised the Private Label Green Coffee Extract Products with an intent
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d.
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represented that the Private Label Green Coffee Extract Products have been
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94.
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causing injury.
95.
engage in such violations of the CLRA, other consumers will be damaged by its
acts and practices in the same way as have Plaintiff and members of the Classes.
96.
enjoin Defendants from continuing to employ the unlawful methods, acts and
1780(a)(2).
10
97.
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letter dated February 11, 2015, by certified mail, of the particular violations of
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Civil Code 1770. The Notice requested that Defendants rectify the problems
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associated with the actions alleged in this Complaint, and give notice to all
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affected consumers of its intent to so act. Defendants have failed to cure these
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problems within the statutory time period. Accordingly, Plaintiff seeks damages
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for such deceptive practices pursuant to Civil Code 1782 and restitution,
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98.
Plaintiff and members of the Classes request the Court to award them
their costs and reasonable attorneys' fees pursuant to Civil Code 1780(d).
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99.
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and other means, made statements and representations of the standards, qualities,
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Public, the Plaintiff, and the Classes, that Private Label Green Coffee Extract
certain ingredients, and without certain ingredients, namely, that Private Label
Green Coffee Extract Products did or do contain green coffee bean extract among
101. Defendants were and are merchants with respect to the Private Label
Green Coffee Bean Products, which were sold to Plaintiff and members of the
Classes, and there was, in the sale in the stream of commerce to Plaintiff and
members of the Classes, an implied warranty that the subject products were of a
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certain standard, quality, nature, characteristic, grade, with certain ingredients, and
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without certain ingredients, specifically, that Private Label Green Coffee Extract
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Products contain green coffee bean extract among other statements and
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representations.
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102. Defendants were and are merchants with respect to the Private Label
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Green Coffee Products that were sold to Plaintiff and members of the Classes, and
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there was in the sale in the stream of commerce to Plaintiff and members of the
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Green Coffee Extract Products contain green coffee bean extract and are not
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determined at trial.
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///
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///
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///
26
Complaint
Case No. _____
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108. Defendants,
in
marketing,
promoting,
advertising,
labeling,
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and promises to the Public, the Plaintiff, and the Classes, that the Private Label
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characteristic, grade, with certain ingredients, namely, that Private Label Green
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Coffee Extract Products contained green coffee bean extract among other
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109. Defendants were and are merchants with respect to the Private Label
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Green Coffee Extract Products, which were sold to Plaintiff and members of the
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Classes, and there was in the sale in the stream of commerce to Plaintiff and
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members of the Classes an implied warranty that the subject products were of a
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certain standard, quality, nature, characteristic, grade, with certain ingredients, and
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without certain ingredients, and conformed to the promise on the label that the
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Green Coffee Extract Products do not conform to the label as they do not contain
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green coffee bean extract and contain only trace amounts of chlorogenic acid as
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of fitness, Plaintiff and members of the Classes have been damaged in an amount
to be determined at trial.
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et seq., creates a private federal cause of action for breach of a "written warranty"
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115. The subject products are "consumer products" as that term is defined
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household purposes.
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15 U.S.C. 2301(3), since they are buyers of subject products for purposes other
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than resale.
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117. Defendants are entities engaged in the business of making its food
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2301(4).
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warranty to consumers relating to the nature and quality of the ingredients in the
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Complaint
Case No. _____
subject products, as well as the overall quality of the subject products. As a result,
15 U.S.C. 2301(6) for the subject product by stating affirmations of fact and
written promises prominently on the labels and packaging that the subject
products contained green coffee bean extract for a specific period of time (as
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regarding the Private Label Green Coffee Extract Products constituted, and were
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green coffee bean extract and were of a certain standard (pure). As such,
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Private Label Green Coffee Extract Products, were written promises and were part
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of the basis of Plaintiff's and the Classes' bargain with Defendants in purchasing
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Defendants failed to provide green coffee bean extract in its products until the
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expiration date listed on the product. Defendants likewise failed to provide and
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supply a pure supplement for the time period ending with the expiration date
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did not have the requisite qualities and character promised by Defendants written
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warranties for the specified period of time, the subject products did not comply
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with Defendants obligation under the written warranty to supply pure green
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Specifically,
121. Plaintiff and the Classes therefore for this claim seek and are entitled
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Complaint
Case No. _____
to recover damages and other legal and equitable relief and costs and expenses
15 U.S.C. 2310(d).
cure the defects in the subject products and remedy the harm to Plaintiff and the
failure to comply with its obligations under the written warranties, since Plaintiff
and members of the Classes paid for products that did not have the promised
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ingredients, qualities and nature, paid a premium for the subject products when
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they could have instead purchased other less expensive alternative products, and
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lost the opportunity to purchase and consume other products which truly
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NEGLIGENCE
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otherwise releasing into the stream of commerce Private Label Green Coffee Bean
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Product.
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126. Defendants, and each of them, breached their duty of reasonable care
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to Plaintiff and the members of the Classes in that they negligently designed,
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labeled and/or sold Private Label Green Coffee Bean Product. Specifically,
Defendants failed to exercise reasonable care in ways which included, but were
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b.
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c.
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d.
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127. Defendants, and each of them, knew or should have known that
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Bean Product, Plaintiff and the members of the Classes suffered pecuniary loss.
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damages;
3.
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all members of the Classes and to restore to the Plaintiff and members of the
Classes all funds acquired by means of any act or practice declared by this Court
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5.
Classes via fluid recovery or cy pres recovery where necessary and as applicable,
to prevent Defendants from retaining the benefits of their wrongful conduct;
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6.
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Such other and further relief as the Court may deem necessary or
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appropriate.
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Complaint
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JURY DEMAND
Plaintiff demands a trial by jury on all issues so triable.
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Complaint
Case No. _____