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Nestle Complaint Here Case3:15-cv-01963 Document1 Filed04/30/15 Page1 of 31 1 THE WESTON FIRM GREGORY S. WESTON (239944) 2 [email protected] PAUL K. JOSEPH (287057) 3 [email protected] 4 1405 Morena Blvd., Suite 201 San Diego, CA 92110 5 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 6 Counsel for Plaintiff and the Proposed Class 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 Case No:_________________________ 11 TROY BACKUS, on behalf of himself and all others similarly situated, COMPLAINT FOR VIOLATIONS OF: 12 CAL. BUS. & PROF. CODE §§17200 et seq.; Plaintiff, CAL. BUS. & PROF. CODE §§17500 et seq.; 13 CAL. CIV. CODE §§ 1750 et seq.; v. BREACH OF EXPRESS WARRANTIES; AND 14 BREACH OF IMPLIED WARRANTIES. 15 NESTLE USA INC., DEMAND FOR JURY TRIAL 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Case3:15-cv-01963 Document1 Filed04/30/15 Page2 of 31 1 TABLE OF CONTENTS 2 I. JURISDICTION AND VENUE ......................................................................................................3 3 II. INTRADISTRICT ASSIGNMENT.................................................................................................3 III. NATURE OF THE ACTION ..........................................................................................................3 4 IV. PARTIES .........................................................................................................................................4 5 V. NATURE OF TRANS FAT.............................................................................................................4 6 A. There is a Well-Established Scientific Consensus That Trans Fat is Extremely Harmful ................................................................................................................................6 7 B. Artificial Trans Fat Is So Inherently Dangerous It Has Been Banned by an 8 Increasing Number of American and European Jurisdictions .............................................8 9 C. The Artificial Trans Fat in the Trans Fat Creamers Causes Cardiovascular Disease ..........9 D. The Artificial Trans Fat in the Trans Fat Creamers Causes Type-2 Diabetes ...................11 10 E. The Artificial Trans Fat in the Trans Fat Creamers Causes Breast, Prostate, and 11 Colorectal Cancer ...............................................................................................................12 12 F. The Artificial Trans Fat in the Trans Fat Creamers Causes Alzheimer’s Disease and Cognitive Decline........................................................................................................13 13 G. The Artificial Trans Fat in the Trans Fat Creamers Causes Damage to Vital 14 Organs ................................................................................................................................14 VI. PLAINTIFF’S PURCHASES OF THE TRANS FAT CREAMERS ............................................14 15 VII. SPECIFIC MISREPRESENTATIONS, MATERIAL OMISSIONS, AND DECEPTIVE 16 ACTS .............................................................................................................................................15 17 VIII. THE TRANS FAT CREAMERS UNNECESSARILY CONTAIN PHO AND ARTIFICIAL TRANS FAT ...........................................................................................................17 18 IX. DEFENDANT’S PRACTICES ARE “UNFAIR” WITHIN THE MEANING OF THE 19 CALIFORNIA UNFAIR COMPETITION LAW .........................................................................17 X. RELIANCE AND INJURY ...........................................................................................................18 20 XI. DELAYED DISCOVERY .............................................................................................................18 21 XII. CLASS ACTION ALLEGATIONS ..............................................................................................19 22 XIII. CAUSES OF ACTION ..................................................................................................................21 23 First Cause of Action .....................................................................................................................21 24 Second Cause of Action .................................................................................................................24 Third Cause of Action ....................................................................................................................25 25 Fourth Cause of Action ..................................................................................................................26 26 Fifth Cause of Action .....................................................................................................................27 27 Sixth Cause of Action ....................................................................................................................27 28 XIV. PRAYER FOR RELIEF ................................................................................................................29 1 CLASS ACTION COMPLAINT Case3:15-cv-01963 Document1 Filed04/30/15 Page3 of 31 1 XV. JURY DEMAND ...........................................................................................................................29 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 CLASS ACTION COMPLAINT Case3:15-cv-01963 Document1 Filed04/30/15 Page4 of 31 1 Plaintiff Troy Backus, on behalf of himself, all others similarly situated, and the general public, 2 by and through his undersigned counsel, hereby sues Defendant Nestle USA, Inc. (“Nestle” or 3 “Defendant”), and upon information and belief and investigation of counsel, alleges as follows: 4 I. JURISDICTION AND VENUE 5 1. This Court has original jurisdiction over this action under 28 U.S.C. § 1332(d)(2) (The 6 Class Action Fairness Act) because the matter in controversy exceeds the sum or value of $5,000,000 7 exclusive of interest and costs and because more than two-thirds of the members of the class defined 8 herein reside in states other than the states of which Defendant is a resident. 9 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Plaintiff resides in 10 this District and suffered injuries as a result of Defendant’s acts in this District; many of the acts and 11 transactions giving rise to this action occurred in this District; and Defendant (1) is authorized to 12 conduct business in this District and has intentionally availed itself of the laws and markets of this 13 District through the distribution and sale of its products in this District, and (2) is subject to personal 14 jurisdiction in this District. 15 II. INTRADISTRICT ASSIGNMENT 16 3. This civil action arises out of the events and omissions of Defendant, which occurred in 17 Marin County, California. Pursuant to Civil Local Rule 3-2(c), this action should be assigned to the San 18 Francisco or Oakland Division. Plaintiff requests the San Francisco Division as it is closer to his home 19 in Marin County. 20 III. NATURE OF THE ACTION 21 4. Nestle manufactures, markets, and sells a line of coffee creamer products (collectively 22 the “Trans Fat Creamers” or “Products”) that contain partially hydrogenated oil (“PHO”). 23 5. The Trans Fat Creamers containing PHO include multiple varieties sold under the label 24 of Coffee-Mate. 25 6. PHO is a food additive banned in many parts of the world due to its artificial trans fat 26 content. Artificial trans fat is a toxic carcinogen for which there are many safe and commercially viable 27 substitutes. The FDA last year issued a tentative determination that PHO is unfit for use in food. 28 3 CLASS ACTION COMPLAINT Case3:15-cv-01963 Document1 Filed04/30/15 Page5 of 31 1 7. Nestle falsely markets and falsely represents the Trans Fat Creamers as free of trans fat; 2 however all of the Trans Fat Creamers contain dangerous levels of trans fat. 3 8. Although safe, low-cost, and commercially acceptable alternatives to PHO exist, 4 including those used in competing brands and even in a few other Nestle coffee creamers, Nestle 5 unfairly elects not to use safe alternatives in the Trans Fat Creamers, in order to increase its profits at 6 the expense of the health of its customers. 7 9. Additionally, Defendant misleadingly marketed its Trans Fat Creamers with an 8 unauthorized health claim. This false advertising deceives consumers into purchasing a product that is 9 harmful to their health. 10 10. Plaintiff repeatedly purchased and consumed the Trans Fat Creamers during the Class 11 Period defined herein. 12 11. This action is brought to remedy Defendant’s unlawful conduct. On behalf of the class 13 as defined herein, Plaintiff seeks an order compelling Defendant to, inter alia: (1) cease marketing and 14 selling the Trans Fat Creamers using the false and unauthorized nutrient content claim “0g trans fat”; 15 (2) conduct a corrective advertising campaign; (3) destroy all misleading and deceptive materials and 16 Products; (4) award Plaintiff and other Class members restitution under the UCL and FAL; and (5) pay 17 costs, expenses, and reasonable attorneys’ fees. 18 IV. PARTIES 19 12. Defendant Nestle is a Delaware corporation with its principal place of business in 20 California. Nestle owns, manufactures, and sells the Trans Fat Creamers. 21 13. Plaintiff Troy Backus is a resident of Marin County, California who repeatedly 22 purchased the Trans Fat Creamers for personal and household consumption. 23 V. NATURE OF TRANS FAT 24 14. Artificial
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