Chang v. Orgain Inc. Complaint
Chang v. Orgain Inc. Complaint
Chang v. Orgain Inc. Complaint
Document 1
Filed 03/06/14
Page
I 41
1 of 31
PagelD
DEARIE
SCANLON,
ALLAN
CHANG,
and others
on
M.J.
behalf of himself
similarly situated,,
Case No.:
Plaintiff,
ORGAIN, INC.
d/b/a ORGAIN,
a
California
corporation,
Defendant.
Plaintiff,
and
Allan
Chang ("Plaintiff'),
on
own
personal knowledge
and the
or
similarly situated, by
Class Action
"Defendant"),
Complaint against
and states
as
follows
Case 1:14-cv-01515-RJD-VMS
Filed 03/06/14
Document 1
Page
2 of 31
PagelD
1.
so
much
so
2.
Consumers
Department of
sugary drinks
too
they
as
can
Hygiene
lead to diabetes,
obesity
and
http://www.nyc.gov/htmlldoh/html/living/cdp_pan_pop.shtml
undoubtedly
have
disguised
choice
as
as to
something else,
beverages.
dangerous
But
to the
consumer.
3.
with
Defendant
campaign
using
engaged
the
www.drinkorgain.com,
consumers
"evaporated
is false and
about the
cane
juice"
misleading.
Orgain,
Inc.
demanding beverages
organic nutritional
packaging,
ingredients
on
its
Defendant also
provides
an
places
even
label
on
widespread,
websites
the
as
though
its
uniform
"the
marketing
www.orgain.com
Specifically,
and
Defendant lists
packaging
misleading.
provider of
products' packaging,
as
shake."
product
consumers
are
also
product
similarly
is
false
Case 1:14-cv-01515-RJD-VMS
5.
persons
proposed
on
for
in the
and/or
ingredients
making
PagelD
up to and
consumption
3 of 31
Page
including
the present
to antioxidants.
6.
During
purposefully misrepresent
evaporated
more
cane
name
juice
usual
as
7.
content
well
claims.
juice"
is not
"juice"
at allit is
lists ECJ
as an
nothing
ingredient
description
Orgain
antioxidant.
cane
on
use
of such
its nutritional
the Class
are
though "evaporated
as on
During
including children,
name
is false and
shakes,
an
to consumers,
even
continues to
common or
is
class action
consumer
as
Filed 03/06/14
Document 1
use
Orgain
of the
products
are
shakes do not
any of the
specify
name
names
"rich in antioxidants"
Federal
improper nutrient
of the
regulations require
Orgain's
349,
as
U.S.C.
343(a)(1))
deceptive
Drug
Deceptive
and unfair
or
practices and/or
Practices
consumer
Case 1:14-cv-01515-RJD-VMS
9.
Document 1
Filed 03/06/14
Columbia, that
are
designed
to
2)
protect
consumers
practices
and false
Page
fifty
4 of 31
PagelD
These statutes
fraudulent and
are:
44-1521, et seq.;
3) Arizona Consumer Fraud Act, Arizona Revised Statutes,
Trade
Practices
Ark.
Code
et seq.;
Arkansas
4-88-101,
Act,
Deceptive
4)
et seq., and
Remedies
Cal.
Civ.
Code
Consumer
California
1750,
Act,
Legal
5)
California's Unfair Competition Law, Cal. Bus. & Prof Code 17200, et seq.;
6) Colorado Consumer Protection Act, Colo. Rev. Stat. 6 1-101, et seq.;
7) Connecticut Unfair Trade Practices Act, Conn. Gen. Stat 42-110a, et seq.;
8) Delaware Deceptive Trade Practices Act, 6 Del. Code 2511, et seq.;
9) District of Columbia Consumer Protection Procedures Act, D.C. Code 28 3901, et seq.;
10) Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. 501.201, et seq.;
11) Georgia Fair Business Practices Act, 10-1-390 et seq.;
12) Hawaii Unfair and Deceptive Practices Act, Hawaii Revised Statues 480 1, et seq., and
Hawaii Uniform Deceptive Trade Practices Act, Hawaii Revised Statutes 481A-1, et
seq.;
505/1,
et
seq.;
24-5-0.5-0.1, et seq.;
15) Indiana Deceptive Consumer Sales Act, Indiana Code Ann.
Code
Consumer
Fraud
Iowa
et
Iowa
714.16,
Act,
seq.;
16)
50 626, et seq.;
17) Kansas Consumer Protection Act, Kan. Stat. Ann
Rev.
Ann.
Stat.
Protection
Consumer
367.110, et seq., and the
Act, Ky.
18) Kentucky
Ann
Practices
Rev.
Stat.
365.020, et seq.;
Act, Ky.
Kentucky Unfair Trade
19) Louisiana Unfair Trade Practices and Consumer Protection Law, La. Rev. Stat. Ann.
20)
21)
22)
23)
24)
25)
26)
27)
28)
29)
30)
31)
32)
33)
51:1401, et seq.;
Maine Unfair Trade Practices Act, 5 Me. Rev. Stat. 205A, et seq and Maine Uniform
Deceptive Trade Practices Act, Me. Rev. Stat. Ann. 10, 1211, et seq.,
Maryland Consumer Protection Act, Md. Com. Law Code 13-101, et seq.;
Massachusetts Unfair and Deceptive Practices Act, Mass. Gen. Laws ch. 93A;
445.901, et seq.;
Michigan Consumer Protection Act,
Minnesota Prevention of Consumer Fraud Act, Minn. Stat
325F.68, et seq.; and
Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. 325D.43, et seq.;
75-24-1, et seq.;
Mississippi Consumer Protection Act, Miss. Code Ann.
Missouri Merchandising Practices Act, Mo. Rev. Stat. 407.010, et seq.;
Montana Unfair Trade Practices and Consumer Protection Act, Mont. Code 30-14-101,
et seq.;
Nebraska Consumer Protection Act, Neb. Rev. Stat. 59 1601, et seq., and the Nebraska
Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. 87-301, et seq.;
Nevada Trade Regulation and Practices Act, Nev. Rev. Stat.
598.0903, et seq.;
N.H.
Rev.
Stat.
Consumer
Protection
New Hampshire
358-A:1, et seq.;
Act,
56:8 1, et seq.;
New Jersey Consumer Fraud Act, N.J. Stat. Ann.
57 12 1, et seq.;
New Mexico Unfair Practices Act, N.M. Stat. Ann.
New York Deceptive Acts and Practices Act, N.Y. Gen. Bus. Law
349, et seq.;
Case 1:14-cv-01515-RJD-VMS
Document 1
Filed 03/06/14
Page
5 of 31
PagelD
51 15 01, et seq.;
34) North Dakota Consumer Fraud Act, N.D. Cent. Code
35) North Carolina Unfair and Deceptive Trade Practices Act, North Carolina General
37)
38)
39)
Statutes
75-1, et seq.;
4165.01. et seq.;
Ohio Deceptive Trade Practices Act, Ohio Rev. Code. Ann.
Oklahoma Consumer Protection Act, Okla. Stat. 15 751, et seq.;
Oregon Unfair Trade Practices Act, Rev. Stat 646.605, et seq.;
Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Penn. Stat. Ann.
40)
201-1, et seq.;
Rhode Island Unfair Trade Practices And Consumer Protection Act, R.I. Gen. Laws
36)
13.1-1,
6-
et seq.;
41) South Carolina Unfair Trade Practices Act, S.C. Code Laws 39-5-10, et seq.;
42) South Dakota's Deceptive Trade Practices and Consumer Protection Law, S.D. Codified
37 24], et seq.;
Tennessee Trade Practices Act, Tennessee Code Annotated
47-25-101, et seq.;
Trade
Practices
Act
Texas
Texas Stat. Ann.
et
Deceptive
17.41, seq.,
Ann.
Utah
Code
Utah Unfair Practices Act,
13-5-1, et seq.;
Vermont Consumer Fraud Act, Vt. Stat. Ann. tit.9, 2451, et seq.;
Virginia Consumer Protection Act, Virginia Code Ann. 59.1-196, et seq.;
Washington Consumer Fraud Act, Wash. Rev, Code 19.86.010, et seq.;
West Virginia Consumer Credit and Protection Act, West Virginia Code 46A-6-101, et
Laws
43)
44)
45)
46)
47)
48)
49)
seq.;
10.
unfair and
Orgain has
also been
unjustly
enriched
as a
Nutrition"), Orgain
itself
as
"Doctor
et seq.
result of these
Developed Organic
has collected millions of dollars from the sale of its nutritional shakes with
simultaneously marketing
consumers
its
product
nationwide
as a
by
shakes.
is
class action,
class is
sum or
as
defined
by
over
28 U.S.0
1332(d)(1)(B),
in which
amount
member of the
putative
See 28 U.S.C.
1332(d)(2).
Document 1
Case 1:14-cv-01515-RJD-VMS
over
Filed 03/06/14
Page
6 of 31
PagelD
U.S.0
jurisdiction
14.
over
Alternatively,
claims
U.S.0
they
sum or
value of
$75, 000
28
and is
are
in the
personal jurisdiction
over
Orgain
advertised, marketed, distributed, and sold throughout New York State; Orgain engaged
in this
wrongdoing alleged
York State;
Orgain is
Complaint throughout
intentionally
of jurisdiction
to
has sufficient
Court
permissible under
subject
Orgain
in New
is
by the
including
giving
personal jurisdiction
nutritional shakes in
1391(a)
and
(b),
because
Orgain
Queens County.
PARTIES
17. Plaintiff is
Queens county.
For the
past six months, Plaintiff has purchased different Orgain nutritional shakes with evaporated
juice
as an
ingredient
for
personal consumption
cane
Plaintiff has
purchased Orgain
Chocolate
Creamy
Page
7 of 31
purchased
web site
Luckyvitamin.com,
which
Queens.
The
was
purchase price
PagelD
Fudge,
Plaintiff
Chocolate.
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
shipped Orgain
$4.34 for
an
nutritional shakes
Healthy
City
directly
to
Kids
approximately $42
for
12
California.
Orgain is
Company organized
Orgain's headquarters
is
at
8122
and
Scholarship, Irvine,
of the state of
92612.
consumers
See
according
to Inc.
to tens of
Magazine, logging
Orgain
growing
explosive
three year
throughout
the United
an
http://www.inc.com/inc5000/list/2013.
FACTUAL ALLEGATIONS
19. Defendant manufactures, markets and sells
Orgain
to
be
shakes
nutritional shakes
throughout
Orgain
are
available at most
including
supermarket
chains and
major
retail
Foodtown, Wegmans, The Food Emporium, The Vitamin Shoppe, Walgreens and Rite Aid.
Defendant Makes Unlawful ECJ Claims
21. Defendant
term
"evaporated
deceptively
cane
term
that is
false and
misleading
using
the
name
for
Case 1:14-cv-01515-RJD-VMS
another less
cane
healthy
food
or
Filed 03/06/14
Document 1
ingredient that
has
a common or
Page
8 of 31
usual name,
namely
PagelD
sugar
dried
or
syrup.
22.
Cane Juice"
uses
and to
on
Defendant's
24.
Sugar
consumers were
cane
sucrose
"sugar" (21
168.130).
usage such
contains
"sugar"
products
content
C.F.R.
Other sugar
as
product that
packaging. Orgain
as an
use
of
packaging, assuming it was more natural and healthier than regular sugar.
as
well
all its
charge a premium.
molasses, and
on
molasses,
C.F.R.
101.4(b)(20)
cane
raw
are
differentiated
special
by
raw
sugars and
their moisture,
treatments.
Sugar
cane
and 21 C.F.R.
have
products
products
by crystal
as
common or
usual
"cane
or
names
syrup" (21
established
by
C.F.R.
common
demerara sugar.
25. The FDA has instructed that sweeteners derived from sugar
listed in the
"dehydrated
that
ingredient declaration by
cane
"evaporated
false
and
juice"
cane
or
"evaporated
juice"
misleading
names
is
to
simply
dress
cane
juice."
deceptive
up
In
fact, the
way of
sugar
as
FDA's
describing
a
cane
type
such
published policy
sugar, and
of
as
states
therefore, it is
"juice".
See
http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/Foo
dLabelingNutritionluem181491.html.
26.
Orgain
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
using
the
Page
deceptive ingredient
9 of 31
name
PagelD
"evaporated
Orgain Creamy
Orgain
Chocolate
Mocha
Fudge
Iced Caf
Sweet
Orgain
Orgain
Strawberries
Vanilla Bean
and Cream
it
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lig Nom
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Filed 03/06/14
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Case 1:14-cv-01515-RJD-VMS
11 of 31
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28. The
ingredients
in
exception
Orgain's regular
that the
29.
Unfortunately for
and nutritious
as
consumers
they purport
shakes
regular shakes
healthy
q0S14:0t.:;;::1
to
an
identical to
also contain
potassium citrate,
Orgain willfully
Orgain's Healthy
a
Kids
flavor
and their
be.
are
consumers.
11
and
purposefully
are not as
seeks to conceal
drinkorgain.com, they
cancer
set out to
heading
world
was
state
Page
12 of 31
produce
today
[and]
have
Orgain's products
shakes
are
are
nationwide
and
with
consumers
Orgain
as
syrup,
formulating
drink
to
sweetened with
misrepresents
as
truth that
beverage.
31. On Defendant's
when the
products
corn
Dr. Abraham
Defendant's website continues to state that that Dr. Abraham spent years
meet his "strict standards" that had to be "low in sugar
healthy beverage
beverage possible.
"produce
are
12
PagelD
majority of drinks
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
purposeful misrepresentations
shakes contain
significant
as
to
their
products'
negligible
health benefits
amounts of fruits
vegetables:
Under "I Need to
that 2
each 11
servings
ounce
can
help
serving
of
is
Orgain right
Orgain packs
weight.
255 calories
This is
certainty
as
12 grams of
(including
sugar), more calories than a McDonald's hamburger (250 calories), Chipotle BBQ
Snack
or
not
ounces
of Coca Cola
or
(95 calories).
piece
Chicken MeNuggets
Defendant's shake is
(237 calories)
healthy weight.
weight
if
they
drink
Orgain
if
they replaced
12
"a meal
consumers can
or two
with
lose
serving
of
Orgain."
Such
asks
suggestion
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
consumers to
and sugar
Page
replace
13 of 31
filling
two
13
PagelD
meals with
an
only result
which will
can
Orgain help?",
Such statement is
Orgain
can
as
Orgain
also contains
significant
amounts
of sugar.
Under "Can children drink
kid
specific formula.
sugar
healthy benefits of
its
In
Under "What's in
sweetened with
Such
Orgain?"
Orgain?"
organic
Defendant
description is misleading.
its shakes
organic evaporated
are
"lightly
cane
juice."
products
with plain old sugar, like other unhealthy drinks. Defendant also touts its blend of
carrots
and
tomatoes)
and fruits
(organic
only
contains 50
milligrams of each
grams
of its blend of
of sugar
per 11 ounce
uses
vegetable
healthy stuff,
"organic
uses
cocoa
means
to
the 50
organic
so
good?",
vanilla".
13
serving
and fruits.
content.
vegetables
ounce
In
Defendant
only
fact, Defendant
deceptive
because
Case 1:14-cv-01515-RJD-VMS
products
Filed 03/06/14
Document 1
of "5 different
use
are
organic
14 of 31
fruits in every
when
naturally sweetened,
Page
they
are
14
PagelD
package" implying
just sweetened
with
sugar.
Under
"Are
sweeteners?"
Defendant
However, this
statement
Orgain's Creamy
twelve
as an
(12)
Chocolate
are
misleading by
ingredient
"sugar"
or
"dried
cane
an
specifically
warned
shakes
purchased by
misleading;" (2)
its
"sugar"
and
or
ingredient
the term
Drug
"dried
cane
syrup"
purchased by
products
"Evaporated
with the
as an
Administration
ingredient
common
in its
no
ingredient.
not to use
use
should instead
companies
they
33.
"false and
syrup" as
(13)
are
artificially
Fudge nutritional
state
omission because
sweeteners.
Plaintiff
ensure
is
artificial
(1)
it is
regulations designed to
and usual
names
the
of the
ingredient in
Evaporated
industry as
14
follows:
as
Case 1:14-cv-01515-RJD-VMS
Filed 03/06/14
Document 1
Page
15 of 31
PagelD
[The term "evaporated cane juice" has started to appear as an ingredient on food
labels, most commonly to declare the presence of sweeteners derived from sugar
cane syrup. However, FDA's current policy is that sweeteners derived from
sugar cane syrup should not be declared as "evaporated cane juice" because
that term falsely suggests that the sweeteners are juice...
"Juice" is defined by 21 CFR 120.1(a) as "the aqueous liquid expressed or
extracted from one or more fruits or vegetables, purees of the edible portions of
one or more fruits or vegetables, or any concentrates of such liquid or puree."...
Sugar cane products with common or usual names defined by regulation are sugar
(21 CFR 101.4(b)(20)) and cane sirup (alternatively spelled "syrup") (21 CFR
168.130). Other sugar cane products have common or usual names established by
common usage (e.g., molasses, raw sugar, brown sugar, turbinado sugar,
muscovado sugar, and demerara sugar)...
The intent of this draft guidance is to advise the regulated industry of FDA's
view that the term "evaporated cane juice" is not the common or usual name
of any type of sweetener, including dried cane syrup. Because cane syrup has
a standard of identity defined by regulation in 21 CFR 168.130, the common
or usual name for the solid or dried form of cane syrup is "dried cane
syrup."...
Sweeteners derived from sugar cane syrup should not be listed in the
ingredient declaration by names which suggest that the ingredients are juice,
such as "evaporated cane juice." FDA considers such representations to be
false and misleading under section 403(a)(1) of the Act (21 U.S.C. 343(a)(1))
because they fail to reveal the basic nature of the food and its characterizing
properties (i.e., that the ingredients are sugars or syrups) as required by 21
CFR 102.5. Furthennore, sweeteners derived from sugar cane syrup are not juice
and should not be included in the percentage juice declaration on the labels of
beverages that are represented to contain fruit or vegetable juice (see 21 CFR
101.30).
http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/Guidance
Documents/FoodLabelingNutrition/ucm181491.h bill (emphasis added)
15
15
position
meaning of "untruthful,
reaches not
only
misleading.
If any
reference to "the
one
ignorant,
labeling
the
cures a
unthinking
v.
misleading
El-O-Pathic
or
undesirable
38. Several of
ingredients
Orgain's
or
for
is
labels
16
PagelD
are
"false and
the
not remove
be
was
consumers
Misbranding
technically true,
but still
statement.
"Misleading"
192 F.2d
Pharmacy,
of art.
term
Orgain's
might
juice"
(herein "FDCA"),
"misleading"
to
cane
16 of 31
Drug
stop
Page
not
"evaporated
misleading." Despite
unlawful and
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
making
62,
75
judged
in
purchase,
do
is
(9th
Cir.
1951).
actually misled.
into
standards established
by
paying
products
and for
nutritional shakes
are
and marketed to
packaging
with the
on some
of its shakes
phrase "Healthy
prominently displays
Kids" in
an
effort to
picture
of
simultaneously target
marketing
image
of
to
"Healthy
uses
cartoon-like
packaging displays
colorful
white flowers.
The
"Healthy
16
Kids"
bright
colorful
strawberry shake
red
strawberry
and
the
"Healthy
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
packaging displays
Page
17 of 31
17
PagelD
colorful
markets its
deceptively
"Healthy
options
supermarket aisles.
in the
provide perfectly
Defendant is
prevalence
In
touting their
nutritional shakes
intentionally failing
43. One
consumer
gives
her
son an
to
are
as
desperate
for healthy
"doctor-formulated to
list sugar
as an
ingredient,
shakes.
Orgain
shake every
day. Monique
[M]y son is small and not a big eater so I give him one every day. I try to find deals b/c
they are expensive but definitely worth the price. (Monique Zelman, December 10, 2013)
(See Recent Posts by Others at https://www.facebook.com/drinkorgain, as appeared on
2/20/14)
44. Even
consumer
as
who
expectant mothers
are
being
misled
and reviewed it
on
One
follows:
am so
thankful for
lot with
Orgain's reply:
Thank you Amanda! We are so happy to be providing organic nourishment for
you and your baby. We will definitely keep you posted. In the meantime, please
email us and we'll send you some coupons as a token of our appreciation.
Recent Posts
by
Others at
appeared on 2/20/14)
17
2013 at
8:07pm)
https://www.facebook.com/drinkorgain,
as
Document 1
Case 1:14-cv-01515-RJD-VMS
45.
Orgain's
energy.
Filed 03/06/14
are
18 of 31
under the
18
PagelD
health.
by stating "gain
consumers
Amazon.com
consumers on
Page
gain
46.
and
and
ingredient listings
Specifically,
N.Y.
Agric.
and
201 states:
Food shall be deemed to be misbranded: ...unless its label bears (a) the common
See N.Y. AGM. LAW
or usual name of the food, if any there be....
201,
Misbranding of Food.
Thus, similar
common
to the federal
and usual
law, New York law requires that ingredients be listed under their
name.
paid
ingredient, Orgain
consumers
for
thereby increasing
its
purchased
no
premium price
of marketing and
able to command
was
distinguishing
other
own
reason
profits.
for their
selling
Orgain nutritional
paid $4.34
pack purchased.
18
consumers
products. Orgain
Plaintiff
was
ready
as
about the
motivated to
competing products,
Similar
shakes with
Orgain
shake
Case 1:14-cv-01515-RJD-VMS
such
are
Boost
as
Original
are
16
had
they purchased
12
pack
at
Page
Target
19 of 31
PagelD
19
pack at Walmart.
Filed 03/06/14
Document 1
misbranded
product
or
shakes'
paid
ingredients.
49. On its
and
are
shakes
FltU4441$0gles
.77
.1...
3:1*.itaniin-ancliirineral3
I_ tree of
preservatives, 4rtificio
--77:.
.-:::".n
Andrew Ab*tiom HA
REKENisoseu
rwo:
tMN
willoY AND
tit OPOST
.1. I4AHAEMENT
"7.. LiFES1Y4:.
19
"rich in antioxidants"
A copy of the
reproduced below:
mi...ww.c.g.r.priegi:prigaratc
are
product label is
50. Federal
claim.
use
regulations regulate
Specifically,
21 C.F.R.
antioxidant claims
101.54(g)
contains
as a
Page
20 of 31
particular type
special requirements
20
PagelD
of nutrient content
(1)
The
(2)
There must be
name
an
established Referenced
(3)
(4)
vitamins C and
21 C.F.R.
participates
free radicals
in
101.54(g)(2);
activity, i.e.,
name
(e.g., "high
biochemical
gastrointestinal tract,
or
an
in antioxidant
the substance
see
21 C.F.R.
and
"high" claim,
Reference Value
for that
claims in 21 C.F.R.
("RDI")
use a
Intakes
101.54(g)(4);
subject
physiological,
or
specific
can
say "antioxidants"
simply
E"), see
Daily
"antioxidant" claim
after it is
(5)
no
recognized
(1)
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
101.54(b)
for
requirements
"high" or
or more
example, to
of the
Daily
labeling for
Defendant's
Orgain shakes
shakes
are
allegedly
(2)
since
nutrients
in
participate
physiological, biochemical
20
or
Page
radicals
or
from the
gastrointestinal tract.
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
Orgain
drink.
50
milligyams
50
only
are
is
equal
milligrams
21 of 31
are
eaten and
to 5% of I gram.
PagelD
21
absorbed
vegetables
per 11
misleading
misbranded
as a
Complaint
are
are
products
cannot
be
Civil Procedure
on
behalf of the
as a
assigned.
55. Plaintiff reserves the
course
right
23(b)(1)(B)
and
23(b)(3)
of the
Federal Rules of Civil Procedure. While the exact number and identities of other Class members
are
21
that there
are
thousands
of Class members.
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
so numerous
Page
22 of 31
PagelD
22
impracticable.
57.
questions
law and fact arise from Defendant's conduct described herein. Such
Questions of
are common to
predominate
over
any
its
a.
whether
listing sugar as
b.
whether
not
c.
on
cane
juice"
is
misleading because
it is
"juice";
whether
identifying
as
sugar
misbranded;
d. whether
is
e.
Orgain
failed to disclose to
whether
Orgain engaged
whether
h. whether
whether
an
syrup;
marketing practice
intended to deceive
labeling
on
Orgain
consumers
shakes;
federal,
law;
Orgain
has been
in
that ECJ is
g.
cane
consumers
Orgain
must
unjustly
by its misconduct;
disgorge
profits
it has made
as a
result of its
misconduct;
j.
whether
ECJ
Orgain
as an
ingredient;
and
22
marketing
as
listing
k.
whether
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
Orgain
marketing
Page
23 of 31
23
PagelD
being rich
in anti-oxidants.
58. Plaintiff's claims
typical
are
damages arising
of the
out
injuries arising
described herein
Class
were
directly by
thread of misconduct
same
Defendant's
are
based
on
resulting
and
practices
they occurred
of Defendant's misconduct is
underpiiming
common
of where
irrespective
caused
during
as
detailed
Defendant's
wrongful conduct,
same
the
fairly
course
same
and
in
concern
or were
injury
to
same
experienced.
misconduct.
wrongful
common
the
In
business
The
practices
injuries of the
to
of conduct that
give rise
members
legal theories.
adequately represent
herein, has
no
disqualifying conditions,
and will
vigorously
to
or are
antagonistic
to
vigorously litigate
responsibilities
maximum
diligently discharge
Class.
23
highly
resources
are
those duties
aware
to
adequately
of their
and
fiduciary
by vigorously seeking
the
small
to
make it
economically
suffered
damages
feasible for
potentially
no
adjudication
inconsistent and
by
24 of 31
24
PagelD
an
Page
superior
adjudication
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
the
to concentrate
of this controversy
conflicting adjudications
through
prosecute
to
are
separate
too
in this
prerequisites
applicable
to
the Class,
pursuant
over
any
to
as a
maintaining
met,
are
as
to
Additionally,
are
met,
prosecution
as
relief
equitable
on
injunctive
equitable relief
or
grounds generally
with
questions
of law
or
fact
by
common
to the Class
class action is
predominate
superior
and
are
not
dispositive
parties to
to
other
practices
make
24
risk of
such actions.
to
to the
the Class
Class
as a
as a
appropriate.
generally applicable
systematic policies
final
relief or
refused to act
of separate actions
seeks,
or
injunctive
inconsistent
establishing
maintaining
63. The
whole.
23(b)(3)
prerequisites
Rule
to
to
the Class
as a
whole
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
Page
25 of 31
25
PagelD
CAUSES OF ACTION
COUNT I
INJUNCTION FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW
(DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)
65. Plaintiff realleges and
further alleges
as
Law
an
349
brings
this claim
349
bring
an
actual
Any person
action in his
damages
individually
and
of New York's
or
provides
in the
or
up to
fifty dollars,
to
one
deceptive
acts or
injured by
enjoin
69. The
or
and
and
as
being
NY GBL
practice,
are
and
are
are
unlawful.
an
action to
recover
his
misleading
willfully
or
knowingly
Orgain
or
to an amount not to
70.
Gen. Bus.
whichever is greater,
practices
reason
deceptive,
on
furnishing of any
own name
that
damages
64 herein and
("NY GBL")
67. NY GBL
68.
paragraphs
follows:
66. Plaintiff
Class for
reference
incorporates herein by
349
Defendant advertised,
are
promoted,
"rich in antioxidants"
Agric.
are
and
unfair,
201 in that
misbranded.
should be
enjoined
from
marketing
349.
25
specification as
as
containing
ECJ
Case 1:14-cv-01515-RJD-VMS
71.
Plaintiff,
on
Filed 03/06/14
Document 1
costs
26
PagelD
26 of 31
Page
of this
proceeding
and
attorneys' fees,
as
provided by NY GBL, and such other relief as this Court deems just and proper.
COUNT II
VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW 349
(DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)
72. Plaintiff realleges and
further
71 herein and
alleges as follows:
73. Plaintiff
brings
this claim
By
and practices
alleged herein,
as
Agric.
are
practices,
Specifically,
as a
Defendant
deceptive
and practices
acts
result of
or
349.
were
containing EU.
shakes
76. The
on
75. The
and
individually
directed at
loss
as a
are
in
misbranded.
consumers.
result of Orgain's
Orgain's deceptive
are
deceptive
Plaintiff and the other Class members suffered monetary losses associated with the
shakes with
ECJ, i.e.,
the
purchase price
26
of the
Case 1:14-cv-01515-RJD-VMS
Filed 03/06/14
Document 1
Page
27 of 31
27
PagelD
COUNT III
NEGLIGENT MISREPRESENTATION
(All States)
78. Plaintiff
this
and
realleges
incorporates
herein
by
reference
paragraphs
through
77 of
Defendant, directly
or
and
employees,
made false
representations,
making
the
representations
proximate
to fulfill its duties to disclose the material facts set forth above. The
cause
negligence
and
acts
was
Defendant's
carelessness.
81. Defendant, in
knew
alleged above,
or
making
the
reasonably
misrepresentations
and
misrepresentations
representations
were
not true.
representations
and
was
82. Plaintiff and members of the Class relied upon these false
nondisclosures
by
Defendant when
purchasing Orgain
result of Defendant's
wrongful conduct,
including
on
those
monies,
all in
time of trial.
27
an
general
and
specific damages,
amount to
be determined
according
to
proof
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
Page
28 of 31
28
PagelD
COUNT IV
BREACH OF EXPRESS WARRANTIES
(All States)
84. Plaintiff
this
Complaint, as
realleges
incorporates
herein
provided
mention sugar
not
as an
were
proximate
among other
value
had
promised
deprived
or
who
are
"lightly
requires liquid
by providing
damages
to
goods as warranted
in that the
products were
appear to be.
Defendant
83 of
healthy as they
that,
through
88. As
in
paragraphs
as
reference
nutrition" and
not
by
85. Defendant
sweetened
and
damages
in
an
amount to be determined
and
paid
for
products
by
bargain
or
products
28
that
they
on
and
labeling,
and
they
purchased
and used
Filed 03/06/14
Document 1
Case 1:14-cv-01515-RJD-VMS
Page
29 of 31
29
PagelD
COUNT V
UNJUST ENRICHMENT
(All States)
89. Plaintiff
realleges
and
herein
incorporates
by
reference
paragraphs
88 of this
Orgain
as a
deceptive marketing
of its
Orgain will
member is entitled to
has been
be
an
Orgain
has
conferred
on
unjustly
amount
benefit
knowledge
on
its
voluntarily
it.
equal
to the amount
unjustly enriched.
COUNT VI
realleges
and
incorporates
U.S.C.
herein
by
2301,
et seq.)
reference
paragraphs
92 of this
are
"supplier"
"consumers"
as
and "warrantor"
products
are
defined
as
"consumer
by
defined
15 U.S.C.
by
2301(3).
15 U.S.C.
products"
as
defined
2301(4)
by
and
15 U.S.C.
2301(1).
97. Defendant's nutrient and health content claims constitute
29
(5).
"express warranties."
Case 1:14-cv-01515-RJD-VMS
98. Defendant,
through
Despite
Filed 03/06/14
Document 1
its
package labels,
promising
Page
create express
30 of 31
warranties
comply
30
PagelD
by making
with food
the
labeling
regarding
they
do not
comply with food labeling regulations under federal and New York law.
Defendant breached its express warranties
100.
violation of 15 U.S.C.
et seq.
101.
being sold
2301,
regarding
or
and which
legally held,
were
legally
worthless.
were
not
capable
paid
of
a
As
direct and
proximate result
of Defendant's
at
trial.
For
an
order
as
an
follows:
B.
on
as
order
order
herein;
C.
For
D.
an
30
Case 1:14-cv-01515-RJD-VMS
Document 1
Filed 03/06/14
Page
31 of 31
PagelD
31
E.
F.
For
an
G.
For
H.
For
an
on
awarded;
order
or as
relief;
awarding Plaintiff and the Class their reasonable attorneys' fees and
Plaintiff, individually
so
and
on
triable.
Respectfully submitted,
LEE LITIGATION
GROUP, PLLC
By:
Lee
31
Case
.15 44
1:1449A01515-RJD-VMS Document
(Rev. 1/2013)
1-1
Filed 03/06/14
CIVIL COVER
SHEV
11
fili4and
Page
1 of 2
32
PagelD
1'
S_-:';!.,other
;provided
t--
Orgain,
Chang
Queens
PLAINTIFF
DEAR Ety.
County
Orgain,
Inc. d/b/a
CASES),
NOTE:
Orange County
(c)
Attorneys OfKnown)
M .9.3
sci\NLO
(212) 4654188
II. BASIS OF JURISDIC
O 1
(P
0
U.S. Government
Plaintiff
e an
Ftderal
tian
(U.S. Go
PTF
rnment
Nor a
IX 1
Party)
PIE
DEF
Incorporated
or
Principal Place
DEP
0 4
0 4
I
0 2
(I
US. Government
Defendant
/4
Diversity
(Indicate
Arenship
0 2
Incorporated
CitizeiiorSubjcctofn
0 3
Foreign Nation
0 6
Foreign Country
IV. NATURE OF
Stitt
(Place an "X"
inle
Box
Only)
PERSONAL INJURY
0 310 Airplane
0 315 Airplane Product
0 120 Marine
3.c
0 190
er
0 196 F
LABOR
c
PERSONAL PROPERTY 0 710 Fair Labor Standards
I'
0 370 Other Fraud
Act
0 371 Truth in Lending
0 720 Labor/Management
CP 380 Other Personal
Relations
0 740 Railway Labor Act
Property Damage
0 385 Property Damage
0 751 Family ang Medical
Product Liability
Leave Act
C/ 790 Other Labor Litigation
0 791 Employee Retirement
PRISONER PETITIONS
Liability
0 350 Motor Vehick
0 355 Motor Vehicle
Product Liability
0 360 Other Personal
Contract
t Product Liability
Injury
chise
REAL PROPERTY
0 442
0 443
Rights
Habeas
Income
Corpus:
Voting
Employment
Housing/
Accommodations
Other:
Employment
CI 446 Anter. w/Disabilities
Other
0 448 Education
tiiiiiiast BANKRUPTCY,
Security Act
1"4"`
P.;-strOTFIER STATUTES
:Corrupt Ownizations
-:-..7
-.4
Injury Product
Liability
Vetetans)
overy of Overpayment
o Veteran's Benefits
0 160 S
kholders' Suits
1 690 Other
Product Liability
0 367 Health Care/..
1
Pharmaceutical
Personal Injury
Product Liability
0 368 Asbestos Personal
Liability
0 153
0 625
X 195 C
1 `..-FORFEITURFJPENALTYanl
lititserra, INJURY
O 110 Insurance
xeludes
r--,
SOCLAUSECURITY"...
0 861 HIA (1395E117'
0 862 Black Lung.(923)-)
0 86.3 DIWOD1WW
0 864 SSID Title XVI
11 865 RSI (405(g))
.....r.
(405(g))
0 460ConsurtierCrat
0 490 Cable/SD
0
reit--
g500SecuriiiEsCommoditics/
Exchanket:::
FEDERALTAX SUITS'1,
0 896 Arbitration
0 899 Administrative Procedure
(U.S. Plaintiff
Defendant)
IRSThird Party
or Appeal of
Agency Decision
0 950 Constitutionality of
0 870 Taxes
or
0 871
Act/Review
26 USC 7609
State Statutes
IMMIGRATION,
Actions
Conditions of
Confmement
Original
Proceeding
Onk)
0 2 Removed from
State Court
0 3
Remanded from
0 4 Reinstated
Appellate Court
or
Reopened
28 U.S.C.
1332(d)
REQUESTED
IN
COMPLAINT:
VIII. RELATED
you
are
0 5 Transferred from
Another District
(specify)
0 6
Multidistrict
Litigation
Claims based
VII.
on
CASE(S)
IF ANY
DATE
(See instructions):
JUDGE
DEMAND S
i 0J 000 000
CHECK YES
JURY DEMAND:
Yes
0 No
DOCKET NUMBER
SIGNATURE OF ATTORNE
03105/2014
FOLP
RECEIPT a
as
DEFENDANTS
(a) PLAINTIFFS
Allan
service of pleadings or
papers as required by.law, except
September 1974, is required for the use of the Clerk of Court for the
The
AMOUNT
APPLYING
AVP*110P---4VEY3gfi
JUDGE
tia-t)
MAG. JUDGE
V 16
I 61-C
Case
1:111ree431515-RJD-VMS
Document 1-1
Filed 03/06/14
Page
2 of 2
PagelD
33
15
C K Lee,
IEI
is
excess
do hereby
amount not
presumed to be below
certify
in
excess
of $150,000,
DISCLOSURE STATEMENT
Identify any parent corporation and any publicly held corporation that owns
on
10%
or more or
its stocks:
Formi
that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a)
civil case is "related" to another civil case for purposes of this guideline whcn, because of the similarity of facts and legal issues or
because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the
A civil case shall not be deemed "related" to another civil case merely because the civil
same judge and magistrate judge?' Rule 50.3.1 (b) provides that
case: (A) involves identical legal issues, or (B) involves the same parties." Rule 50.3.1 (c) further provides that "Presumptively, and subject to the power
of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be "related" unless both cases are still pending before the
court."
cases
1.)
County:
being
50.1(d)(2)
or
Suffolk
No
2.)
answer to
events
of omissions
claim
or
claims,
or a
substantial part
or
claims,
or a
occur
in the Eastern
Yes
question 2 (b) is "No, does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or
an interpleader action, does the claimant (or a majority ofthe claimants, if there is more than one) reside in Nassau
(Note:
cmoration shall be considered a resident of the County in which it has the most significant contacts).
BAR ADMISSION
am
currently admitted in the Eastern District of New York and currently a member
gl
Are you
Yes
in
No
cuffently the subject of any disciplinary action (s) in this or any other state or federal court?
(If yes, please explain)
El Yes
El No
Signature:
Ivided above.