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II Case3:12-cv-05170-NC Documentl Filed10/05/12 Pagel of 21

1 Benjamin M. Lopatin, Esq. I L 7 0

\.0CaL Bar No.: 281730 RIZ :1 -5 A 0: 514lopatinghwrlawoffice.corn3 THE LAW OFFICES OF

HOWARD W. RUBINSTEIN, P.A.-••LIFL, E., if"..4 One Embarcadero Center, Suite 500

San Francisco, CA 941115

(800) 436-64376 (415) 692-6607 (fax)

7 Attorneyfor PlaintiffMichael Robles

8and the Proposed Class

9

UNITED STATES DISTRICT COURT10 NORTHERN DISTRICT OF CALIFORNIA

11 SAN FRANCISCO DIVISION NC12 MICHAEL ROBLES, as an individual, and Oivil N. 2 r; 1 7 0

on behalf of all others similarly situated,13:CLASS ACTION COMPLAINT FOR:

'4

Plaintiff 1. Violations of Cal. Bus. & Prof C. 1720015 et seq.

vs. 2. Violations of Cal. Bus. & Prof C. 1750016 et seq.

173. Violations of Cal. Civ. C. 1750, et seq.

FRITO-LAY NORTH AMERICA, INC. a:

IS Texas corporation, Nationwide Class Representation

19Defendant. Jury Trial Requested

20

21

22Plaintiff, MICHAEL ROBLES, by and through his undersigned counsel, hereby files

23 this Class Action Complaint, individually, and on behalf of all others similarly situated—and

24 makes allegations based on information and belief and/or which are likely to have evidentiary25

support after reasonable opportunity for further investigation and discovery—against Defendant,

27FRITO-LAY NORTH AMERICA, INC. ("FRITO-LAY" or -Defendant"), as follows:

28

CLASS ACTION COMPLAINTPage 1 of 18

4 ICase3:12-cv-05170-NC Documentl Filed10/05/12 Page2 of 21

I. INTRODUCTION

21. Defendant has erroneously represented that its Smartfood Selects popcorn

3

products are "All Natural" on the product labeling and/or packaging. For example, see Exhibitl4

1, attached hereto and incorporated herein, Labeling/Packaging for All Natural Smartfbod5

6 Selects Cinnamon Brown Sugar Multigrain Popped Chips.

7 2, Specifically, Defendant mistakenly represents that the following products are

"All Natural, when in fact, they are not, because they contain Genetically Modified Organisms9

(-GMOs"), specifically in the form of corn and/or corn derivatives known to contain GMOs:10

a. All Natural Smartfood Selects Buffalo Cheddar Popcorn;

12 b. All Natural Smartfood Selects Cinnamon Brown Sugar Popcorn;

13 11 c. All Natural Smartfood Selects Parmesan Herb Popcorn;14

15

16

d. All Natural Smartfood Selects Sour Cream Onion Puffed Corn;

e. All Natural Smartfood Selects Feta Herb Hummus Popped Chips;

17 f. All Natural Smartfood Selects Garlic Tomato Basil Hummus Popped Chips;

18 g. All Natural Smartfood Selects Cinnamon Brown Sugar Multigrain Popped Chips;19 h. All Natural Smartfood Selects Italian Herb Multigrain Popped Chips;zo

i. All Natural Smartfood Selects Blueberry Almond Vanilla Granola Coated21

22 Popcorn; and

23 j. All Natural Smartfood Selects Honey Cinnamon Pecan Granola Coated Popcorn

24 (the "Products").25

3. Contrary to Defendant's representations, however, the Products use plants or

26

plant derivatives grown from GMOs, specifically in the form of corn and/or corn variations,27,

28 II among other ingredients, that are known to he derived from GMOs.


.'P Case3:12-cv-05170-NC Documentl Filed10/05/12 Page3 of 21

I 4• GMOs are plants that grow from seeds in which DNA splicing has been used to

2place genes from another source into a plant.

35. Plaintiff contends •that products containing GMOs should not be labeled "All

4

Natural" when they contain GMOs, and that Defendant's advertising and labeling is deceptive5

6 and likely to mislead the public as a result. Plaintiff would not have purchased the Product if he

7 had known that the Defendant could not support their claim that the Product is "All Natural"

because it contains GMOs.

10 IH. VENUE AND JURISDICTION

6. This Court has jurisdiction over the subject matter presented by this ComplaintI

12 because it is a class action arising under 28 U.S.C. 1332(d), which, under the Class Action

13 Fairness Act of 2005 ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (2005), which explicitly14 11

II provides for the original jurisdiction of the Federal Courts of any class action in which any15 I

16 IIII member of the plaintiff class is a citizen of a state different from any Defendant, and in which

17 the matter in controversy exceeds in the aggregate the sum of $5,000,000.00, exclusive of

18 interest and costs.

197. Plaintiff alleges that the total claims of the individual members of the Plaintiff

20Class in this action are in excess of $5,000,000.00 in the aggregate, exclusive of interest and

21

22costs, as required by 28 U.S.C. 1332(d)(2), (5).

23 8. As set forth below, Plaintiff is a citizen of California, and FRITO-LAY can be

24 considered a citizen of Texas. Therefore, diversity of citizenship exists under CAFA, as required25

by 28 U.S.C. 1332(d)(2)(A).26

9. Furthermore, Plaintiff alleges on information and belief that more than two-thirds27

28of all of the members of the proposed Plaintiff Class in the aggregate are citizens of a state other


II Case3:12-cv-05170-NC Documentl Filed10/05/12 Page4 of 21

I than California, where this action is originally being filed, and that the total number of members

2of the proposed Plaintiff Class is greater than 100, pursuant to 28 U.S.C. 1332(d)(5)(B).

310. Venue in this judicial district is proper pursuant to 28 U.S.C. §1391(a) because,

4

as set forth below, Defendant conducts business in, and may be found in, this district, and5

6 Plaintiff purchased the subject product of this action in this judicial district. The "Declaration of

7 Benjamin M. Lopatin, Esq., Pursuant to Civil Code §1780(c) of the Consumer Legal Remedies

8Act, Civil Code §§1750 et seq." regarding venue under the California Consumer Legal

9

Remedies Act ("CLRA") is submitted herewith and is incorporated herein by reference.it)

III. PARTIES

12 11, Plaintiff, Michael Robles is an individual more than 18 years oId, and is a citizen

13 I of California, who resides in the city and County of San Francisco. He respectfully requests a

14

jury trial on damage claims. Plaintiff has purchased several of the Products, including a

15

16pucrchase of Smartfood Selects Cinnamon Brown Sugar Multigrain Popped Chips during

17 September of 2012, from a Safeway Supermarket located at 2020 Market Street, San Francisco,

18 California 94114. See Exhibit 1, attached hereto and incorporated herein, Labeling/Packaging19

for All Natural Smartfood Selects Cinnamon Brown Sugar Multigrain Popped Chips.20

12. In purchasing the Products, Plaintiff saw and relied on the labeling and21

22 advertising for it displayed on the packaging, namely that they are "All Natural." Plaintiff has

23 been damaged by his purchase of the Products because the labeling and advertising for them

24 was and is false and/or misleading under California law; therefore, the Products are worth less

25than what Plaintiff paid for them and Plaintiff did not receive what he reasonably intended to

26

receive—an "All Natural" product that doesn't contain GMOs.27

28

CLASS ACTION COMPLAINTPage 4 of I 8

.1• II Case3:12-cv-05170-NC Documentl Filed10/05/12 Page5 of 21

1 13. The labeling and advertising for the Products relied upon by Plaintiff was

2prepared and/or approved by FRITO-LAY and its agents, and was disseminated by FRITO-

3LAY and its agents through labeling and advertising containing the misrepresentations alleged

4

herein. The labeling and advertising for the Products was designed to encourage consumers toI5

6 purchase the Product and reasonably misled the reasonable consumer. i.e. Plaintiff and the

7 Class.

814. FRITO-LAY is a corporation organized and existing under the laws of the state

9

of Delaware. FRITO-LAY lists with the California Secretary of State a principal place of10

business at 7701 Legacy Drive, Plano, Texas 75024, and a registered agent for service of

12 process as: CT Corporation System, 818 W. Seventh Street, Los Angeles, CA 90017. Directly

13 and through its retailers, distributors, and agents, FRITO-LA Y has substantial contacts with, and

14receives benefits and income from and through, the State of California.

15

15. FRITO-LAY is the owner, manufacturer and distributor of the Product, and is the16

17 company that created and/or authorized the false, misleading and deceptive labeling and

IS advertising for the Product.

19 16. Plaintiff alleges that, at all times relevant herein, FRITO-LAY and its

20

subsidiaries, affiliates, and other related entities, as well as their respective employees, were the21

22 agents, servants and employees of FRITO-LAY, and at all times relevant herein, each was

23 acting within the purpose and scope of that agency and employment.

24 17. Plaintiff further alleges on information and belief that at all times relevant herein,

25the distributors and retailers who delivered and sold the Product, as well as their respective

26

employees, also were FR1TO-LAY's agents, servants and employees, and at all times herein,27

Ileach was acting within the purpose and scope of that agency and employment.


II Case3:12-cv-05170-NC Documentl Filed10/05/12 Page6 of 21

18. Additionally, Plaintiff alleges that, in committing the wrongful acts alleged2

herein, FRITO-LAY, in concert with its subsidiaries, affiliates, and/or other related entities and3

their respective employees, planned, participated in and furthered a common scheme to induce4

members of the public to purchase the Product by means of false, misleading, deceptive and5

6 fraudulent representations, and that FRITO-LAY participated in the making of such

7 representations in that it disseminated those misrepresentations and/or caused them to be

8disseminated.

9

19. Whenever reference in this Complaint is made to any act by FRITO-LAY or its10

subsidiaries, affiliates, distributors, retailers and other related entities, such allegation shall be

12 deemed to mean that the principals, officers, directors, employees, agents, and/or representatives13 of FRITO-LAY committed, knew of, performed, authorized, ratified and/or directed that act or

14transaction on behalf of FRITO-LAY while actively engaged in the scope of their duties.

15

IV. FACTUAL ALLEGATIONS16

17 20. FRITO-LAY manufacturers, distributes, markets, advertises, and sells the

18 I I Smartfood Selects Products, which are mislabeled on their packaging, labeling, and through a

19variety of advertising as "All Natural."

2021. Specifically, Defendant mistakenly represents that the following products are

21

22"All Natural, when in fact, they are not, because they contain GMOs in the form of corn and/or

23 II corn derivatives:

24 a. All Natural Smartfood Selects Buffalo Cheddar Popcorn;25

b. All Natural Smartfood Selects Cinnamon Brown Sugar Popcorn;16

c. All Natural Smartfood Selects Parmesan Herb Popcorn;27

28d. All Natural SMartfood Selects Sour Cream Onion Puffed Corn;


t. 11 Case3:12-cv-05170-NC Documentl Filed10/05/12 Page7 of 21

e. All Natural Smartfood Selects Feta Herb Hummus Popped Chips;2

f. All Natural Smartfood Selects Garlic Tomato Basil Hummus Popped Chips;3

g. All Natural Smartfood Selects Cinnamon Brown Sugar Multigrain Popped Chips;4

5h. All Natural Smartfood Selects Italian Herb Multigrain Popped Chips;

6 i. All Natural Smartfood Selects Blueberry Almond Vanilla Granola Coated

7 Popcorn; and

8

j. All Natural Smartfood Selects Honey Cinnamon Pecan Granola Coated Popcorn9

I 0(the "Products")

22. Contrary to Defendant's representations, however, the Products use plants or11

12 plant derivatives grown from GMOs, specifically in the form of corn and/or corn variations,

13among other ingredients, that are known to be derived from GMOs.

1423. Plaintiff therefore brings this class action to secure, among other things, equitable

15

16relief and actual damages for the Class against FRITO-LAY for false and misleading advertising

17 in violation of California's Unfair Competition Law ("UCL"), Bus. & Prof. Code 17200 et

18 seq.; California's False Advertising Law ("FAL"), Bus. & Prof Code 17500 et seq.; and at

19this juncture, equitable relief only, pursuant California's Consumer Legal Remedies Act

20

("CLRA"), Cal. Civ. Code 1750 et seq.21

2224. Plaintiff contends that Defendant's "All Natural" statement is a material

23 misrepresentation because the Products contain GMOs. Plaintiff would not have purchased the

24 Products had he known they are not "All Natural."

2525. Therefore, Plaintiff and members of the putative Class have been damaged by

26

their purchase of the mislabeled Products.27

28


H Case3:12-cv-05170-NC Documentl Filed10/05/12 Page8 of 21

3

I I V. CLASS ACTION ALLEGATIONS

2 11 43. Plaintiff realleges and incorporates by reference the allegations set forth in each

of the preceding paragraphs of this Complaint.4

44. Pursuant to Cal. Civ. Code §1781, Cal. Code of Civil Procedure §382 and5

6 Federal Rule of Civil Procedure 23, Plaintiff brings this class action and seeks certification of

7 the claims and certain issues in this action on behalf of a Class defined as:

8all United States persons who have purchased, All Natural

9 Smartfood Selects Buffalo Cheddar Popcorn, All NaturalSmartfood Selects Cinnamon Brown Sugar Popcorn, All

10 Natural Smartfood Selects Parmesan Herb Popcorn, All

11 Natural Smartfood Selects Sour Cream Onion Puffed Corn,All Natural Smartfood Selects Feta Herb Hummus Popped

12 Chips, All Natural Smartfood Selects Garlic Tomato BasilHummus Popped Chips, All Natural Smartfood Selects

13 Cinnamon Brown Sugar Multigrain Popped Chips, All Natural

14 Smartfood Selects Italian Herb Multigrain Popped Chips, AllNatural Smartfood Selects Blueberry Almond Vanilla Granola

15 Coated Popcorn, or All Natural Smartfood Selects HoneyCinnamon Pecan Granola Coated Popcorn (the "Products"),

16 for personal use during the period extending from the date

17 Defendant first used the labeling representations on the

Products, through and to the tiling date of the original18 Complaint.19

45. Excluded from the Class are governmental entities, Defendant, any entity in

20which Defendant has a controlling interest, and Defendant's officers, directors, affiliates, legal

21

22 representatives, employees, co-conspirators, successors, subsidiaries, and assigns. Also

23 II excluded from the Class is any judge, justice, or judicial officer presiding over this matter and

24 I I the members of their immediate families and judicial staff

2546. Defendant's practices and omissions were applied uniformly to all members of

26

the Class, including any subclass arising out of the California statutory claims alleged herein, so

27

28 11 that the questions of law and fact are common to all members of the Class and any subclass.


11 Case3:12-cv-05170-NC Documentl Filed10/05/12 Page9 of 21

47. All members of the Class and any subclass were and are similarly affected by the

2deceptive labeling of the Product, and the relief sought herein is for the benefit of Plaintiff and

3

members of the Class and any subclass.4

48. Based on the annual sales of the Product and the popularity of the Product, it is5

6 apparent that the number of consumers in both the Class and any subclass is so large as to make

7 joinder impractical, if not impossible.8

49. Questions of law and fact common to the Plaintiff Class and any subclass exist9

that predominate over questions affecting only individual members, including, inter afia:10

a. Whether Defendant's practices and representations related to the marketing,

12 labeling and sales of the Product in the United States were unfair, deceptive

13 and/or unlawful in any respect, thereby violating Cal. Bus. & Prof Code

1417200 et seq.;

15

16b. Whether Defendant's practices and representations related to the marketing,

17 labeling and sales of the Product in the United States were unfair, deceptive

18 and/or unlawful in any respect, thereby violating Cal. Bus. & Prof Code

19 11 17500 et seq.;20

c. Whether Defendant violated Cal. Civ. Code 1750 et seq. with its practices21

22and representations related to the marketing, labeling and sales of the Product

23 within California; and

24 d. Whether Defendant's conduct as set forth above injured consumers and if so,

25the extent of the injury.

26

50. The claims asserted by Plaintiff in this action are typical of the claims of the27

28members of the Plaintiff Class and any subclass, as the claims arise from the same course of


T1 .1, 11Case3:12-cv-05170-NC Documentl Filed10/05/12 Page10 of 21

Ilconduct by Defendant, and the relief sought within the Class and any subclass is common to the

members of each.3

51. Plaintiff will fairly and adequately represent and protect the interests of the4

members of the Plaintiff Class and any subclass.5

6 II 52. Plaintiff has retained counsel competent and experienced in both consumer

7 protection and class action litigation.8

53. Certification of this class action is appropriate under Cal. Civ. Code §1781, Cal.9

Code of Civil Procedure §382 and Federal Rule of Civil Procedure 23 because the questions of10

I law or fact common to the respective members of the Class and any subclass predominate over

12 llquestions of law or fact affecting only individual members.

13 11 54. This predominance makes class litigation superior to any other method available

14 Ilfor the fair and efficient adjudication of these claims.15

1655. Absent a class action, it would be highly unlikely that the representative Plaintiff

17 or any other members of the Class or any subclass would be able to protect their own interests

18 II because the cost of litigation through individual lawsuits might exceed expected recovery.

19 I I 56. Certification also is appropriate because Defendant acted, or refused to act, on

20

grounds generally applicable to both the Class and any subclass, thereby making appropriate the21

22relief sought on behalf of the Class and any subclass as respective wholes.

23 57. Further, given the large number of consumers of the Product, allowing individual

24 actions to proceed in lieu of a class action would run the risk of yielding inconsistent and

25conflicting adjudications.

26

58. A class action is a fair and appropriate method for the adjudication of the27

28 controversy, in that it will permit a large number of claims to be resolved in a single forum


Case3:12-cv-05170-NC Documentl Filed10/05/12 Pagell of 21

I simultaneously, efficiently, and without the unnecessary hardship that would result from the

2prosecution of numerous individual actions and the duplication of discovery, effort, expense and

3

burden on the courts that individual actions would engender.4

559. The benefits of proceeding as a class action, including providing a method for

6 obtaining redress for claims that would not be practical to pursue individually, outweigh any

7 difficulties that might be argued with regard to the management of this class action.

VI. FIRST CAUSE OF ACTION:9 VIOLATIONS OF CAL. BUS & PROF. CODE 17200 ETSEQ.

10 60. Plaintiff re-alleges and incorporates by reference the allegations set forth in each

11of the preceding paragraphs of this Complaint.

12

61. This cause of action is brought on behalf of Plaintiff and members of the general13

14 public pursuant to Cal. Bus. & Prof. Code 17200 et seq., which provides that "unfair

15 competition shall mean and include any unlawful, unfair or deceptive business act or practice

16 and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter17

(commencing with Section 17500) as Part 3 of Division 7 of the Business and Professions18

Code."19

20 26. Defendant has violated the Act by engaging in the unfair and deceptive practices

21 described above, which offend public policies and are immoral, unethical, unscrupulous and

22substantially injurious to consumers. Specifically, Defendant have represented that the Products

23

are "All Natural, when they are not because they contain GMOs.24

2562. Plaintiff alleges that Defendant committed unfair business acts and/or practices,

26 as set forth in detail above. The utility of Dekndant's practices related to the deceptive labeling

27

28

CLASS ACTION COMPLAINTPage ll of 18

H 11 Case3:12-cv-05170-NC Documentl Filed10/05/12 Pagel2 of 21

1 and advertising of the Product is negligible, if any, when weighed against the harm to the

2general public.

363. The harmful impact upon members of the general public who purchased and used

4

the Product outweighs any reasons or justifications by Defendant for the deceptive labeling and5

6 advertising practices employed to sell the Products that misleadingly claim to be "All Natural."

7 64. Defendant had an improper motive (profit before accurate marketing) in its

8practices related to the deceptive labeling and advertising of the Products, as set forth above.

9

65. The use of such unfair business acts and practices was and is under the sole10

1I I control of Defendant, and was deceptively hidden from members of the general public in1

12 Defendant's marketing, advertising and labeling of the Products.

13 66. Defendant committed a deceptive act or practice by making the labeling and

14

advertising representations set forth in detail above. These deceptive acts and practices had a

15

16capacity, tendency, and/or were likely to deceive or confuse reasonable consumers.

17 67. Defendant also committed an unlawful business practice by violating the FAL

18 II and CLRA as set forth in detail below. These violations serve as predicate violations of this I19

prong of the UCL.

20

68. As a purchaser and consumer of Defendant's Products, and as a member of the21

22 general public who purchased and used the Product, Plaintiff is entitled to and does bring this

23 class action seeking all available remedies under the UCL.

24 69. Defendant's labeling and advertising practices, as set forth above, were intended

25to promote the sale of the Product and constitute unfair, deceptive and/or unlawful business

26

practices within the meaning of California Bus. & Prof. Code 17200 et seq.27

28 II


Case3:12-cv-05170-NC Documentl Filed10/05/12 Pagel3 of 21

1 II 70. Pursuant to California Bus. & Prof. Code 17203, Plaintiff, on behalf of himself

2and members of the general public, seeks an order of this Court requiring Defendant to restore

3

to Plaintiff and other California purchasers of the Products all monies that may have been4

acquired by Defendant as a result of such unfair, deceptive and/or unlawful business acts or5

6 I I practices, along with requiring Defendant to cease labeling the Products "All Natural" when

7 they contain GMOs.

87 L Plaintiff and purchasers of the Products will be denied an effective and complete

9

remedy in the absence of such an order.to 1111 I I 72. As a result of Defendant's violations of the UCL, Plaintiff and purchasers of the

12 HProducts are entitled to restitution for out-of-pocket expenses and economic harm.

13 I I 73. Pursuant to Civil Code 3287(a), Plaintiff and purchasers of the Products are

14further entitled to pre-judgment interest as a direct and proximate result of Defendant's

15

wrongful conduct.16

17 II 74. The amount on which interest is to be calculated is a sum certain and capable of

18 Mcalculation, and Plaintiff and purchasers of the Products are entitled to interest in an amount

19according to proof.

20VII. SECOND CAUSE OF ACTION:

21 VIOLATIONS OF CAL. BUS. & PROF. CODE 17500 ET SEQ.22

75. Plaintiff re-alleges and incorporates by reference the allegations set forth in each

23

of the preceding paragraphs of this Complaint.24

2527. In violation of California Bus. & Prof. Code 17500, Defendant disseminated, or

26 caused to be disseminated, the deceptive Product labeling and advertising representations that

27

28



I misleadingly claim that the Products are -All Natural, when they are not, because they contain

GMOs.

3

76. Defendant's product labeling and advertising representations are misleading4

because it cannot support its claim that the Products are "All Natural."5

6 77. Defendant's labeling and advertising representations for the Product are by their

7 very nature unfair, deceptive and/or unlawful within the meaning of California Bus. & Prof.

8Code 17500 et seq. The representations were likely to deceive reasonable consumers.

9

78. In making and disseminating the deceptive representations alleged herein,10

Defendant knew or should have known that the representations were misleading, and acted in11

12 violation of California's Bus. & Prof. Code §§17500 et seq,

13 79. As a direct and proximate result of Defendant's wrongful conduct, Plaintiff and

14

purchasers of the Products have suffered substantial monetary and non-monetary damage.15

80. Pursuant to Bus. & Prof. Code 17535, Plaintiff, on behalf of himself and other16

17 purchasers of the Products, seeks an order of this Court requiring Defendant to restore to

18 purchasers of the Products all monies that may have been acquired by Defendant as a result of

19such unfair, deceptive and/or unlawful acts or practices, along with requiring Defendant to cease

20

labeling the Products "All Natural" when they contain GMOs.21

81. As a result of Defendant's violations of the FAL, Plaintiff and purchasers of the22

23 Products are entitled to restitution for out-of-pocket expenses and economic harm.

24 82. Pursuant to Civil Code 3287(a), Plaintiff and purchasers of the Products are

25further entitled to pre-judgment interest as a direct and proximate result of Defendant's

26

wrongful conduct.27

28


11 Case3:12-cv-05170-NC Documentl Filed10/05/12 Pagel5 of 21

I I I 83. The amount on which interest is to be calculated is a sum certain and capable of

2calculation, and Plaintiff and California purchasers of the Product are entitled to interest in an

3

amount according to proof.4

VIII. THIRD CAUSE OF ACTION:5

FOR VIOLATIONS OF CAL. CIV. CODE 1750 ET SEQ.6 (CLAIM FOR INJUNCTIVE RELIEF ONL19

7 84. Plaintiff re-alleges and incorporates by reference the allegations set forth in each

8of the preceding paragraphs of this Complaint.

9

85. This cause of action is brought pursuant to Cal. Civ. Code 1750 et seq.10

86. Plaintiff and each California purchaser of the Products are "consurners" withinit

12 lithe meaning of Civil Code §1761(d).

13 11 87. The purchases of the Products by Plaintiff and California purchasers of the

14Product were and are "transactions" within the meaning of Civil Code §1761(e).

15

88. Defendant has represented that the Products are "All Natural, when they are not,16

17 because they contain GMOs, which violated the CLRA in at least the following respects as set

8 forth in detail above:

19a. In violation of Civil Code §1770(a)(5), FRITO-LAY represented that the

20Products have characteristics, ingredients, uses. and benefits which they do

21

22not have; and

23 b. In violation of Civil Code §1770(a)(7), FRITO-LAY represented that the

24 Products are of a particular standard, quality, or grade, which they are not;

25c. In violation of Civil Code §1770(a)(9), FRITO-LAY advertised the Products

26

with an intent not to sell the Products as advertised;27

28


1, II Case3:12-cv-05170-NC Documentl Filed10/05/12 Pagel6 of 21

d. In violation of Civil Code §1770(a)(14), FRITO-LAY represented that the

2purchase of the Products confers or involves rights, remedies, or obligations

3which it does not have or involve, or which are prohibited by law; and

4

e. In violation of Civil Code §1770(a)(16), FRITO-LAY represented that the5

6 subject of the sale of the Products has been supplied in accordance with a

7 previous representation when it has not.

889. Plaintiff seeks and is entitled to equitable relief in the form of an order requiring

9

Defendant to make full restitution to California purchasers of the Product of all monies1.)

wrongfully obtained as a result of the conduct described above, along with requiring Defendantit

12 to cease labeling the Products "All Natural- when they contain GMOs.

13 90. Plaintiff, by and through counsel, has notified Defendant in writing of the

14

particular violations of Section 1770 of the CLRA, and has demanded that it take certain15

16corrective actions within the period prescribed by the CLRA for such demands.

17 91. In the event that Defendant fails to adequately respond to the demands for

18 corrective action within the time prescribed by the CLRA, Plaintiff intends to amend this

19pleading to request statutory and actual damages, as well as punitive damages, interest and

20

attorneys' fees as authorized by Section 1780(a) of the CLRA, along with this claim for21

22 injunctive relief.

23 92. Regardless of an award of damages, however. Plaintiff seeks and is entitled to,

24 pursuant to Section 1780(a)(2) of the CLRA, an order for the equitable relief described above,

25as well as costs, attorney's fees and any other relief which the Court deems proper.

26

27

28



IX. PRAYER FOR RELIEF

2WHEREFORE, Plaintiff, individually, and on behalf of all others similarly situated,

3

prays for relief pursuant to each cause of action set forth in this Complaint as follows:4

1. For an order certifying that the action may be maintained as a class action,5

6 certifying Plaintiff as representative of the Class, and designating his attorneys Class counsel.

7 2. For an award of equitable relief as follows:

8(a) Enjoining Defendant from making any claims for the Products found to violate

9

the UCL, FAL, or CLRA as set forth above;10

(b) Requiring Defendant to make full restitution of all monies wrongfully obtainedI

12 as a result of the conduct described in this Complaint; and

13 (c) Requiring Defendant to disgorge all ill-gotten gains flowing from the conduct

14described in this Complaint.

15

163. For an award of attorney's fees pursuant to, inter alia, §1780(d) of the CLRA

17 and Code of Civil Procedure §1021.5.

18 4. For actual damages in an amount to be determined at trial (not for CLRA

19violations).

205. For actual and punitive damages as may be provided for by statute for violations

21

of the CLRA, upon the filing of a First Amended Complaint, should the demanded corrections22

23 Ma take place within the thirty (30) day notice period.

24 6. For an award of costs and any other award the Court might deem appropriate;25

7. For pre- and post-judgment interest on any amounts awarded; and26

8. Providing such further relief as may be just and proper.27

28


11 Case3:12-cv-05170-NC Documentl Filed10/05/12 Pagel8 of 21

X. JURY DEMAND

2Plaintiff respectfully demands a trial by jury on all issues so triable.

3

4

Respectfully Submitted,5

6 Dated: October 3, 2012 By: /s/ Benjamin M. LopatinBenjamin M. Lopatin, Esq.

7 Cal. Bar No.: 281730

8 lopatinghwrlawoffice.cornTHE LAW OFFICES OF

9 HOWARD W. RUBINSTEIN, P.A.One Embarcadero Center, Suite 500

10 San Francisco, CA 94111

11 (800) 436-6437(415) 692-6607 (fax)

12

Attorneyfor PlaintiffMichael Robles13 and the Proposed Class

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Case3:12-cv-05170-NC Document1 Filed10/05/12 Pagel9 of 21

EXHIBIT

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Nutrition FactsServing Size 1 cz (28g/About 22 chips)Servinus Per CorMiner Aboui

I Miliksunt Per Serviro_

Calories 130 Calories

frol.ii rat,40

Daily Value*

r;.;..Tr. 1.! (1 7%Satura:ed Fat Cg 0%Trans Fat Og

Cholesterol 0mg 0%

Sodium 95mg 4%Total Carbohydrate 219 7-ZCA;

Dietary Fiber 1n 5%

Sugars ligProtein 2,i

.to!'''.-:.::'::;:::' NRIWIIIMIIIIIMIIIMIIIIIIIIIIII-.......i.,:-A.': v't, nin A 0% Vitamin C 0%

Calcium, 0% iron 2%

Percent Daily Values are based on a 2, 000calorie diet. Your daily values may be higheror lower depending on your calorie needs:

Calories: 00O 2.500

Total Fiir--Less than—T5-6sat Fat Less than 2C'7, fi:54)

Choleste(ol Less ilk4..ri :w_p-: 300mgv, .E Soidium Le.Lzs tfLan 2,400mg 2,400-rn

Total Carhohyd, .1',e 30Cig 375ci1)1I, I., r 25g 20g

11116:ii,:L;::;;, p—er gram:Fat 9 Carbohydrate 4 Protein 4

Ingredients; Mole Meat rim, Wholn Viillow rtiii.l'

...'1..), af171/111' Canola Oil, Bite Elruir, Coni Slmir: cioStArai4. j:, Mriilotle, x1110 (rviade f 10T, Con) I L.. -..;41..b.ittminilk

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San Francisco, CA 94111

JS 44 (Re't 09/1 Lin Case3:12-cv-05170-KviloveisTalshid310/05/12 Pagel of 1

The JS 44 eivttrover sheet and the information contained herein neither replace nor supplement the tiling and service ofpleadings or other papers as required by law, except as providedby local rufes ofcourt. This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use of the Clerk of Court for thc purpose of initiatingthe civil docket sheet. (SEE INSTRUCILIONS ON NEXT PAGE OF MIS FORM.)

PLAINTIFFS I DEFENDANTSMichael Robles, on behalf of himself and all others similarly situated, Frito-Lay North America, Inc.

(b) County of Residence of First Listed Plaintiff San.francisco County, CA county of Residence of First Listed Defendant Collin Courly,Texas(EXCEPT IN LS PLAINTIFF C4SES) (IN US PLAINTIFF CASES ONLY)

NOTE:ft ElE ACT OF LAND INVOLVED.

1N LAND CONDEMNATION CASES, USE THE LOCATION Ol:

Attorneys(c•t.mh,. 9-,,,

Ben amin M.-Lopatin, The aw 0 ices of award W. Rubinstein, P.A. Andrewli /Fils11, Ntiral .A,,is, GyfibfArt'plmny,goln/VI'l Attorrli?uqt Ka., 1M1P9 :u.. NClumello, Gibson, Dunn, & Crutcher, 100 necticut Ave,,

One Embarcadero Center, Suite 500 N, W., Washington, DC 20036

II. BASIS OF JURISDICTION (Haw an "X" in One Hax Only) III. CITIZENSHIP OF PRINCIPAL PARTIES,,,, -.1.'" in One Box Ibr Plaintiff;(Pot' DivOrs4v ('ases Only) and One Boxfar Dejenaan0

1 1 U.S. Government ii 3 Federal Question rrF DEE PTF DEEP/aintiff ((_t.S. Governmenl .Nor a Paro) Citizen of This State X I 71 I Incorporated or Principal Place 1 4 1 4

of Business In This Stale

71 2 U.S. Government X 4 Diversity Citizen of Another State 1 2 1 2 Incorporated and Principal Place 1 5 X 51)etendant (Indicate Cia2enship ofPurties 171.'171ln) of Husiness In Another State

Citizen or Subject of a 1 3 1 3 Foreign Nation 1 6 ri 6Forth EM Countts

IV. NATURE OF 11100. l';01, (hal

1 CONTRACT. TORTS FORFEITURE/PENALTY. BANKRUPTCY. OTHER STATUTES

1 110 Insurance PERSONAL INJURY PERSONAL INJURN 1 625 Drug Related Sereure 71 422 Appeal 28 USC 158 11 375 False Claims Act1 120 Marine 1 310 Airplane 1 365 Personal Injury of Property 21 LISC 881 1 423 Withdrawal 71 -100 State Reappon ionment1 130 Miller Act 1 315 Airplane Product Product Liability 1 690 Other 28 USC 157 1 410 A ntitrust1 140 Negotiable Instrument Liability cl 367 HealthCam,11 430 Banks and Banking1 150 Recovery of Overpayment 1 320 Assault, Libel & Pharmaceutical I PROPERTY RJGHTS 450 Commerce

& EnIhreeintini of ludgmeot Slander Personal Injury 1 830 il opyrglr!, '1 460 Deportation1 151 Medicare Act 1 3311 Federal Employers' Product Liability 1 830 Patent 71 470 Racketeer Influenced and1 152 Recovery of Defaulted Liability 11 368 Asbestos Personal 1 840 trademark Corrupt Organizations

Student Loans 11 340 Marine Injury Product 1 480 Consumer Credit(Excl. Veterans) .1 3-15 Marine Product Liability LABOR SOCIAL SECURITY 71 490 CableSat .1-V

71 153 Recovety ofOverpayment Liability PERSONAL PROPERTY 1 7 to Fite' t ilbo; sindard.; :1 S61 IIIA (1)950) 1 85u Securities/Commodities;of Veteran's Benefits 1 350 Motor Vehicle CI 370 Other Fraud Act 1 862 lilack I .Ling 0231 Exchange

n rio slockholders. Suits 1 355 Motor Vehicle 1 371 Truth in Lending 71 720 LaborMgml. Relations 71 863 DIWt DI WW (41.1:q0) 1 890 Other Statutory ACtiorIS101111x Contract Product Liability 1 380 Other Personal 1 740 Rai IA ay Labor Act 1 864 SSID itle XVI 1 801 Agricultural Acts

14 19 ComIract Product Liability 1 360 Other Personal Property Damage fl 751 Family and Medical 1 865 RS1 (405(0 1 893 hnsironrilerital Matters1 19 Franchise Injury 1 385 Property Damage Leave Act 1 845 Freedom of Information

1 362 Personal htjory Product Liability 1 790 Other Labor Litigation Act

Med. Malgractiee 1 791 Empl. Ret. Inc. 1 806 Arbitration

1.. M. PROPERTY CIVIL RIGHTh PRISONER PETMONS. Security Act ELDERAL TAX SUITS 1 849 Administrative Proceduret

71 2_10 Land COildenntalion 1 4-40 Oilier Civil Right, F.) 51 ti Motion,: fii Vacato 1 570 I'ase,; (ti.s. Nairturf AcuRcview or Appeal of

1 220 Foreclosure (1 441 Voting Sentence or Defendant) Agency Decision1 230 Rent Lease & Ejectment 1 442 Employment Habeas Carpus: 1 871 IRS Third Party 71 950 Constitutionality of1 240 Torts to Land 1 443 Housing' .1 530 (ieneral 36 USC 71)119 State Statutes1 245 Tort Product Liability Accommodations 71 535 Death Penalty IMMIGRATION,1 290 All Other Real Property 11 445 Amer w;Disabililies 1 540 Mandamus & Other 1-1 402 Natunilizai ion Application

Employment 1 550 Civil Rights 1 463 Habeas Corpus'3 -146 Amer. w,DisabilitMs 1 555 Prison Condition Alien Detainee

Other 1 560 Civil Detainee (Prisoner Petition)71 448 Education Conditions or 1 465 Other Immigration

Cori fineinent Actions

V. ORIGIN (P/uce an "X" in One dos Ontry) ILitilsrerred thm)X I Original 171 2 Removed from II 3 Remanded ttom 1 4 Reinstated or 171 5 1 6 Multidistrictanother district

PrueeLaiirg State Court Appellate Court Reopened Lit Litigationf,00 r

Cite the U.S. Civil Soule tinder which you arc il I ing WO not eite jurisdirriented made!, unless direrdiy):28 U.S.C. 13320)(2)

VI CAUSE OF ACTION,,,or:01.oeseription of cause:

Claims based on false, deceptive, unfair, and misleading statements in advertising or labeling of consumer productVII. REQUESTED IN 21 CHECK IF l'HIS IS A CLASS ACTION DEMAND S CHECK YES only it' demanded in complaint:

COMPLAINT: UNDER E.R.C.P. 23 5, 0 0 0,000,00 JURY DEMAND: X Yes I No

VIII. RELATED CASE(S)t.cite nurtruchionsz:

IF ANY JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

10/0312012 /s/ Benjamin M. LopatinFOR OFFICE USE ONLY

RECEIPT a A MOI.N4 APPLYING IEP JUDGE MAG.1 DcF.

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