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KEVIN P. RODDY (SBN 128283) WILENTZ, GOLDMAN & SPITZER, P.A. 2 90 Woodbridge Center Drive, Suite 900 3 Woodbridge, NJ 07095 Telephone: (732) 636-8000 4 Facsimile: (732) 726-6686 5 E-mail: [email protected]

6 TRACEY BUCK-WALSH (SBN 131254) LAW OFFICE OF TRACEY BUCK-WALSH 7 6 Reyes Court 8 Sacramento, CA 95831 Telephone: (916) 392-8990 9 Facsimile: (916) 393-1757 10 E-mail: [email protected]

11 Attorneys for Plaintiffs

12 UNITED STATES DISTRICT COURT 13 EASTERN DISTRICT OF CALIFORNIA 14

15 ROB STUTZMAN and JONATHAN Case No. WHEELER, on behalf of themselves and all 16 others similarly situated, CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE, 17 Plaintiffs EQUITABLE AND DECLARATORY 18 RELIEF BASED ON VIOLATIONS OF: vs. 1. Cal. Civ. Code § 1750 etseq.; 19 2. Cal. Bus. & Prof. Code § 17200 et seq. ; 20 LANCE ARMSTRONG; PENGUIN 3. Cal. Bus. & Prof. Code § 17500 et seq.; GROUP (USA), INC.; G.P. PUTNAM'S 4. Negligent Misrepresentation; and 21 SONS; THE BERKLEY PUBLISHING 5. Fraud & Deceit. GROUP; RANDOM HOUSE, INC.; 22 BROADWAY BOOKS; CROWN JURY TRIAL DEMANDED 23 PUBLISHING GROUP; and DOES 1-50, inclusive, 24

25 Defendants

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Plaintiffs, Rob Stutzman and Jonathan Wheeler, by their undersigned counsel and for 2

3 their Class Action Complaint (the "Complaint") against Defendants, Lance Armstrong,

4 Penguin Group (USA), Inc., G.P. Putnam's Sons, The Berkley Publishing Group, Random 5 House, Inc., Broadway Books, Crown Publishing Group, and Does 1-50, inclusive, hereby 6 allege and say as follows. All allegations made in this Complaint are based upon information 7

8 and belief, except those allegations pertaining to Plaintiffs, which are based upon personal

9 knowledge, and facts pertaining to this Court's subject matter jurisdiction. Plaintiffs' 10 information and belief are based upon, inter alia, Plaintiffs' own investigation, review of 11 reliable media sources and the investigation conducted by Plaintiffs' counsel. 12

13 I. THE NATURE OF THIS CLASS ACTION

14 1. Alleging claims under California law, this class action seeks relief against

15 Defendants for monetary, injunctive, equitable and declaratory relief on behalf of Plaintiffs 16 and the statewide Class of California consumers they seek to represent. Plaintiffs sue on 17

18 behalf of themselves and other residents of the State of California who have been exposed to

19 and victimized by Defendants' unlawful and/or wrongful business practices in violation of 20 (a) the Consumers Legal Remedies Act ("CLRA"), CAL. CIY. CODE § 1750 et seq.; (b) the 21 Unfair Competition Law ("UCL"), CAL. Bus. & PROF. CODE § 17200 et seq.; (c) the False 22

23 Advertising Law ("FAL"), CAL. Bus. & PROF. CODE § 17500 et seq.; (d) negligent

24 misrepresentation; and (e) fraud and deceit. 25

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2. This consumer protection class action arises from misrepresentations

2 contained in Lance Armstrong's books, IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO 3 LiFE and EVERY SECOND COUNTS, and advertisements and marketing for these books 4

5 (including the front and back cover and flyleafs of these books), as true and honest works of

6 nonfiction when, in fact, Defendants knew or should have known that these books were

7 works ofjiction. As alleged in this Complaint, Plaintiffs and the members of the Class were 8 misled by Defendants' statements and purchased Defendant Armstrong's books based upon 9

10 the false belief that they were true and honest works of nonfiction. Plaintiffs and Class

11 members would not have purchased the books had they known the true facts concerning

12 Armstrong's misconduct and his admitted involvement in a sports doping scandal that has 13 led to his recent and ignominious public exposure and fall from glory. 14

15 II. JURISDICTION AND VENUE

16 3. This Court has subject matter jurisdiction over this class action pursuant to the

17 Class Action Fairness Act of2005 ("CAFA"), 28 U.S.C. § 1332(d)(2)(A), because the 18 proposed Class consists of more than 100 members, the matter in controversy exceeds the 19

20 sum or value of $5 million, exclusive of interest and costs, and this is a class action in which

21 Plaintiffs and the members of the Class are citizens and residents of a State different from 22 any of the Defendants. 23 4. Venue is properly laid in this District pursuant to 28 U.S.C. § 1391(b)(2) 24

25 because a substantial part of the events giving rise to the claims asserted by Plaintiffs on

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behalf of themselves and the members of the Class, namely, Defendants' marketing and

2 advertising efforts and consumers' purchases of the subject books, occurred in this District 3 and throughout the State of California. 4

5 5. This Court may properly exercise personal jurisdiction over the Defendants

6 because each of them does and conducts substantial business in the State of California. Each

7 of the Defendants has sufficient minimum contacts with the State of California and otherwise 8 intentionally avails himself, herself and/or itself of the laws and markets of the State of 9

10 California, through the promotion, sale, marketing and distribution of products and services

11 in the State of California, including, but not limited to, the books that are the subject of this

12 class action, so as to render the exercise of personal jurisdiction by this Court permissible, 13 under traditional notions of fair play and substantial justice. 14

15 III. THE PARTIES

16 6. Plaintiff, Rob Stutzman ("Stutzman"), is a resident of the State of California

17 and the County of Sacramento who works as a public affairs consultant. Sometime between 18 2001 and 2003, Stutzman learned about the book, IT'S NOT ABOUT THE BIKE: My JOURNEY 19

20 BACK TO LIFE, Defendant Armstrong's supposedly truthful and compelling story of

21 overcoming a life-threatening cancer and staging an inspiring comeback to win the Tour de

22 France bicycle race and become one of the best athletes in the world. Stutzman bought the 23 book in California and read it cover to cover. Although Stutzman does not buy or read many 24

25 books, he found Armstrong's book incredibly compelling and recommended the book to

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several friends. In 2005, while working as Deputy Chief of Staff for Communications for 2 Governor Arnold Schwarzenegger, Stutzman had the opportunity to privately meet 3 Armstrong. At that time, Stutzman thanked Defendant Armstrong for writing his book and 4

5 told him it was very inspiring and that he had recommended it to friends who were fighting

6 cancer. In response, Armstrong thanked Stutzman.

7 7. Plaintiff, Jonathan Wheeler ("Wheeler"), is a resident of the State of California 8 and the County of Sacramento. Wheeler is a professional chef who, after a 20-year career 9

10 catering to Indy Car and LeMans auto racing teams and major movie studios, currently

11 teaches culinary arts as a high school instructor through the County of Sacramento Office of

12 Education. Wheeler is a life-long, avid cycling enthusiast and bike racer. He began riding 13 bikes in his hometown of Cupertino, California, while in kindergarten and got his first ten- 14

15 speed bike, a Peuguot, in the sixth grade whereupon he immediately began riding long

16 distances with his best friend. Soon he and his friend would ride over the mountains to Santa

17 Cruz and back. Wheeler began hanging out at the renowned Cupertino Bike Shop where he 18 became friendly with its owner, the legendary Spence Wolfe. Wheeler has competed in 19

20 century and double century rides. Wheeler followed Defendant Armstrong's early cycling

21 career and his cancer diagnosis and treatment and, shortly after it was published Wheeler 22 purchased a copy OfIT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE after learning 23 through the media about Armstrong's supposedly truthful and inspiring account of his 24

25 triumphant return to dominate the world of cycling after his devastating bout with testicular

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cancer. Plaintiff Wheeler was so impressed with IT'S NOT ABOUT THE BIKE: My JOURNEY

2 BACK TO LIFE that he bought Armstrong's follow-up book, EVERY SECOND COUNTS, 3 published in January 2003, which chronicles Armstrong's life after his first Tour de France 4

5 victory.

6 8. Defendant, Lance Armstrong ("Armstrong"), is a resident of Travis County,

7 Texas, whose address is 300 West 6th Street, Suite 2150, Austin, Texas. As set forth herein, 8 Armstrong was the principal author ofIT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO 9

10 LIFE and EVERY SECOND COUNTS.

II 9. Defendant, Penguin Group (USA) Inc. ("Penguin Group (USA)"), is the U.S.

12 affiliate of Penguin Group, one of the largest English language book publishers in the world. 13 Penguin Group (USA)'s principal place of business is located at 375 Hudson Street, New 14

15 York, New York 10014. Penguin Group (USA) publishes under a wide range of imprints

16 and trademarks, including G.P. Putnam's Sons ("Putnam"). As set forth herein, Defendants

17 Penguin Group (USA) and Putnam were the publishers of the hardcover edition OfIT'S NOT 18 ABOUT THE BIKE: My JOURNEY BACK TO LIFE, which was published in May 2000. Another 19

20 division of Penguin Group (USA), Defendant, The Berkley Publishing Group ("Berkley"),

21 published the paperback edition ofIT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE

22 in September 2001. Both Putnam and Berkley maintain their principal places of business at 23 375 Hudson Street, New York, New York 10014. 24

25

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10. Defendant, Random House, Inc. ("Random House"), is the world's largest

2 English-language general trade book publisher. Random House's principal place of business 3 is located at 1745 Broadway, New York, New York, 10019. Random House owns many 4

5 publishing groups including Defendant, Crown Publishing Group ("Crown"), which

6 publishes under a wide range of imprints and trademarks including that of Defendant,

7 Broadway Books ("Broadway"). As alleged herein, on January 1,2003, Defendants Random 8 House, Broadway and Crown were the publishers of the hardcover edition of Armstrong's 9

10 book EVERY SECOND COUNTS. As alleged herein, in or about June 2004, Defendants

11 Random House, Broadway and Crown were the publishers of the paperback edition of

12 Armstrong's book EVERY SECOND COUNTS. Both Broadway and Crown maintain their I3 principal places of business at 1745 Broadway, New York, New York 10019. 14

15 11. The true names and capacities, whether individual, corporate, associate or

16 otherwise of Defendants 1-50, inclusive, are unknown to Plaintiffs, who therefore sue said

17 Defendants by such fictitious names pursuant to CAL. CODE CIV. PROC. § 474. Plaintiffs 18 further allege that each of the said Defendants is in some manner responsible for the acts and 19

20 occurrences alleged in this Complaint. Plaintiffs will seek leave to amend this Complaint to

21 show their true names and capacities when same are ascertained, as well as the manner in

22 which each of the fictitious Defendants is responsible. 23 IV. FACTUAL ALLEGATIONS 24

25 A. The Publication And Promotion Of Defendant Armstrong's Books

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12. On or about May 22, 2000, Defendant Putnam, a member of Defendant

2 Penguin Group (USA), published the hardcover edition of Armstrong's book entitled IT'S 3 NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE. In September 2001, Defendant Berkley, 4

5 a division of Defendant Penguin Group (USA), published the paperback edition of this book.

6 13. On or about January 1,2003, Defendant Broadway, a member of Defendants

7 Random House and Crown, published Defendant Armstrong's book entitled EVERY SECOND 8 COUNTS. In or about June 2004, these Defendants filed the paperback edition of EVERY 9

10 SECOND COUNTS.

II 14. Since the dates of publication, throughout the Class Period (as defined in this

12 Complaint) and continuing to the present date, Defendants Armstrong, Penguin Group 13 (USA), Putnam and Berkley have publicly and repeatedly represented Armstrong's book 14

15 entitled IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE as a "Biography and

16 Autobiography." Since the date of publication, throughout the Class Period and continuing

17 to the present date, Defendants Armstrong, Random House, Crown and Broadway have 18 publicly and repeatedly represented Armstrong's book entitled EVERY SECOND COUNTS as a 19

20 "Biography and Autobiography." Throughout the Class Period, Defendants have advertised,

21 marketed and sold these books as a works of nonfiction. Such false and misleading

22 representations were made in the books, on the books' cover, on the books' jackets and 23 flyleafs, in media press kits, during television and newspaper interviews, on Internet websites 24

25 and at personal appearances made by Armstrong. Defendants' misrepresentations to

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consumers located throughout the State of California continue to the present day, long after

2 the time that Defendants Armstrong, Penguin Group (USA), Putnam, Berkley, Random 3 House, Broadway and/or Crown knew or should have known that such statements were and 4

5 are false and misleading.

6 15. IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFEi'j is the supposed life

7 story of Defendant Armstrong, the world-famous cyclist, and his fight against cancer and 8 comeback to win his first Tour de France race title. In the book, he shares his journey 9

10 through triumph, tragedy, transformation and transcendence. It is the story of one of the most

11 talked-about and inspirational sports figures of all time, a world-famous cyclist and his fight

12 against cancer and the will to succeed despite overwhelming odds. Armstrong was named as 13 Sports Illustrated magazine's 2002 Sportsman of the Year and, after his record-shattering 14

15 string of Tour de France race victories, some proclaimed him as the greatest athlete of all

16 time.

17 16. Defendant Armstrong's book, IT'S NOT ABOUT THE BIKE: My JOURNEY BACK 18 TO LIFE, spent many weeks on the The New York Times bestseller list and was advertised by 19

20 Defendants Penguin Group (USA) and Putnam as having "legs as strong as its author's."

21 17. Defendants Armstrong, Penguin Group (USA), and Putnam and Berkley have

22 profited handsomely from publication of both hardcover and paperback editions OfIT'S NOT 23 ABOUT THE BIKE: My JOURNEY BACK TO LIFE, reaping millions of dollars in sales and 24

25 profits. With his co-authors, Defendant Armstrong also wrote THE LANCE ARMSTRONG

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PERFORMANCE PROGRAM, 7 WEEKS TO THE PERFECT RIDE, which was published on

2 September 1, 2000, and in which he sets forth a training program for success in bicycle 3 racing without using performance enhancing drugs. 4

5 18. Defendant Armstrong parlayed the success of IT'S NOT ABOUT THE BIKE: My

6 JOURNEY BACK TO LIFE into a subsequent book deal, which resulted in the publication in

7 January 2003 by Defendants Random House, Crown and Broadway of EVERY SECOND 8 COUNTS. This book was advertised by these Defendants as the follow-up story to the best- 9

10 selling book IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE. EVERY SECOND

11 COUNTS was advertised by Defendants Random House, Crown and Broadway as addressing

12 the equally daunting challenge of living in the aftermath of winning the Tour de France race 13 after beating cancer and making the most of every breath of life, of Armstrong's prickly 14

15 relationship with the French media and the ultimately disproved accusations of doping within

16 his Tour de France cycling team, and an intimate glimpse into how almost dying taught him

17 to really live. Defendant Armstrong also wrote LANCE ARMSTRONG, IMAGES OF A 18 CHAMPION, published on August 8, 2006, and My COMEBACK, UP CLOSE AND PERSONAL, 19

20 which chronicled his record-breaking seventh Tour de France race win, accomplished after

21 successfully battling the testicular cancer that very nearly killed him - to his decision in 22 September 2008 to return to professional cycling for his eighth Tour de France race. 23 B. Misrepresentations Contained In Armstrong's Books 24

25

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19. In his book, IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE, 2 Defendant Armstrong addressed the use of performance enhancing drugs that were and are 3 banned by the Dnion Cycliste Internationale ("DCI"), the governing body for sports cycling 4

5 which oversees international cycling events, their widespread use in the world of

6 professional cycling as well as the widespread suspicion that Armstrong's success was due to

7 his use of banned substances and practices such as blood transfusions. Throughout the book, 8 Defendant Armstrong repeatedly denies that he ever used banned substances before or during 9

10 his professional cycling career. Lamenting the use of drugs in cycling, Armstrong wrote in

II IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE:

12 Doping is an unfortunate fact of life in cycling, or any other endurance sport 13 for matter. Inevitably, some teams and riders feel it's like nuclear weapons­ that they have to do it to stay competitive within the peloton. I never felt that 14 way, and certainly after chemo the idea of putting anything foreign in my body 15 was especially repulsive. Overall, I had extremely mixed feelings about the 1998 Tour [de France race]: I sympathized with the riders caught in the 16 fire storm, some of whom I knew well, but I also felt the Tour [de France race] would be a more fair event from then on. 17

18 20. Knowing that the mere claim that his success was due to superior physical

19 training, proper diet and an extraordinary spirit and drive to succeed was not enough to quell 20 suspicions and rumors that he doped, Defendant Armstrong wrote lengthy passages in IT'S 21 NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE that were intended to convince readers 22

23 and consumers - including Plaintiffs and the members of the Class - that the rumors of

24 Armstrong's doping were unfair and untrue because of the extensive drug-testing regime 25 employed by the DCI and the organizers of the Tour de France: 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page II 90 Woodbridge Center Drive Woodbridge, NJ 07095

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I was making enemies in the Alps. My newly acquired climbing prowess aroused suspicion in the French press, still sniffing for blood after the scandal 2 of the previous summer. A whispering campaign began: "Armstrong must be 3 on something." Stories in L'Equipe and Le Monde insinuated, without saying it outright, that my comeback was a little too miraculous. 4

5 I knew there would be consequences for Sestriere - it was almost a tradition that any rider who wore the yellow jersey was subject to drug speculation. But 6 I was taken aback by the improbable nature of the charges in the French press: some reporters actually suggest that chemotherapy had been beneficial to my 7 racing. They speculated that I had been given some mysterious drug during 8 the treatments that was performance-enhancing. Any oncologist in the world, regardless of nationality, had to laugh himself silly at the suggestion. 9

10 I didn't understand it. How could anybody think for a second that somehow the cancer treatments had helped me? Maybe no one but a cancer patient 11 understands the severity of the treatment. For three straight months I was given some of the most toxic substances known to man, poisons that ravaged 12 my body daily. I still felt poisoned - and even now, three years after the fact, I 13 feel that my body isn't quite rid of it yet.

14 I had absolutely nothing to hide, and the drug tests proved it. It was no 15 coincidence that every time Tour [de France] officials chose a rider from our team for random drug testing, I was their man. Drug testing was the most 16 demeaning aspect of the Tour [de France]: right after I finished a stage I was whisked to an open tent, where I sat in a chair while a doctor wrapped a piece 17 of rubber tubing around my arm, jabbed me with a needle, and drew blood. As 18 I lay there, a battery of photographers flashed their cameras at me. We called the doctors the Vampires. 'Here come the Vampires.' we'd say. But the drug 19 tests became my best friend, because they proved I was clean. I had been 20 tested and checked, and retested.

21 In front of the media, I said, "My life and my illness and my career are open." As far as I was concerned, that should have been the end of it. There was 22 nothing mysterious about my ride at Sestriere: I had worked for it. I was lean, 23 motivated and prepared. Sestriere was a good climb for me. The gradient suited me, and so did the conditions - cold, wet, and rainy. If there was 24 something unusual in my performance that day, it was the sense of out-of­ 25 body effortlessness I rode with - and that I attributed to sheer exultation in

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being alive to make the climb. But the press didn't back off, and 1 decided to take a couple of days off from talking to them. 2

3

4 My fellow riders tested me on the bike every single day. I was tested off the 5 bike, too, as the scrutiny I underwent in the press intensified.

6 I decided to address the charges outright, and held a press conference in Saint­ Gaudens. "I have been on my deathbed, and I am not stupid," I said. 7 Everyone knew that use of EPO and steroids by healthy people can cause 8 blood disorders and strokes. What's more, I told the press, it wasn't so shocking that I won Sestriere; 1 was an established former world champion. 9

10 "1 can emphatically say 1 am not on drugs," I said. "I thought a rider with my history and my health situation wouldn't be such a surprise. I'm not a new 11 rider. I know there's been looking, and prying, and digging, but you've not going to find anything. There's nothing to find ... and once everyone has 12 done their due diligence and realizes they need to be professional and can't 13 print a lot of crap, they'll realize they're dealing with a clean guy."

14

15 Not long after I cross the finish line, a French TV journalist confronted me: 16 there were reports that I had tested positive for a banned substance. The report was wrong, of course. I returned to the team hotel, and pushed through a 17 throng of clamoring media, and called another press conference. All I could 18 do was assert my innocence each time there was a new wave of speculation in the papers - and there was one every three or four days. 19

20 Le Monde had published a story stating that a drug test had turned up minute traces of corticosteroid in my urine. I was using a cortisone cream to treat a 21 case of saddle sore - and I had cleared the cream with the Tour [de France] authorities before the race ever started. Immediately, Tour [de France] 22 authorities issued a statement affirming my innocence. "Le Monde was 23 looking for a drug story, and they got one on skin cream, " 1 said.

24 I was hurt and demoralized by the constant barrage from the press. I put forth 25 such effort, and had paid such a high price to tide again, and now that effort

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was being devalued. I tried to deal with the reports honestly and straightforwardly, but it didn't seem to do any good. 2

3 I began to notice something. The people who whispered and wrote that I was using drugs were the very same ones who, when I was sick, had said, "He's 4 finished. He'll never race again." They were the same ones who, when I 5 wanted to come back, said, "No, we don't want to give him a chance. He'll never amount to anything." 6 Now that I was in the lead of the Tour de France, wearing the yellow jersey, 7 and looking more and more like the eventual winner, the very same people 8 sent the very same message. "It's not possible," they said. "Can't be done. He can't do it. What's going on here? There must be another explanation, 9 something suspicious." They were consistent, the naysayers. 10 It's a good thing I didn't listen to them when I was sick. 11 It hurt me, too, that the Frenchjoumalists in the particular were so suspicious 12 of me. I live in France, and I loved the country. After the previous year's 13 problems during the Tour [de France], a number of top riders had stayed away from France in '99, but not me. While other riders were afraid of being 14 harassed by the police or investigated by the governmental authorities, I 15 trained there every day. France was the most severe place in the world to be caught using a performance enhancer, but I did all of my springtime racing in 16 France, and conducted my entire Tour [de France] preparation there. Under French law, the local police could have raided my house whenever they 17 wanted. They didn't have to ask, or know. They could have sorted through 18 my drawers, rifled my pockets, search my car, whatever they wanted, without a warrant or any sort of notice. 19

20 I said to the press, "I live in France. I spent the entire months of May and June in France, racing and training. If I was trying to hide something, I'd have been 21 in another country."

22 But they didn't write that, or print that. 23

24

25 I cycled through the stage finish and dismounted, thoroughly exhausted but please to have protected my lead. But after five hours on the bike, I now had 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 14 90 Woodbridge Center Drive Woodbridge, NJ 07095

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to face another two-hour press conference. I was beginning to feel that the press was trying to break me mentally, because the other riders couldn't do it 2 physically. The media had become as much of an obstacle as the terrain itself. 3 That day, the International Cycling Union released all of my drug tests, which 4 were, in fact, clean. What's more, I had received a wonderful vote of 5 confidence from the race organizer, Jean-Marie Leblanc. "Armstrong beating his illness is a sign that the Tour [de France] can beat its own illness," he said. 6 Somehow, we had fended off all the attacks, both on the bike and off, and kept 7 the yellow jersey on my back. 8

9

10 I wanted to win the time trial. I wanted to make a final statement on the bike, to show the press and cycling rumormongers that I didn't care what they said 11 about me. I was through with press conferences (although not with drug tests; I was random-tested again after stage 17). 12

13

14 I was near the end of the journey. But there had been two journeys, really: the 15 journey to get to the Tour [de France], and then the journey of the Tour [de France] itself. In the beginning there was the Prologue and the emotional 16 high, and that first week, uneventful but safe. Then there were the strange out­ of-body experiences at Metz and Sestriere, followed by the demoralizing 17 attacks by the press. Now to finish with a victory gave me a sweet sense of 18 justification. I was going to Paris wearing the maillot jaune.

19 21. In his follow-up book, EVERY SECOND COUNTS, Armstrong again confronts his 20 critics who suspect he used banned substances. Again, Armstrong repeatedly denied every 21

22 doping accusation and repeatedly recited the fact that because he never tested positive for a

23 banned substance during his racing career, he raced "clean" and that the attacks on his 24 character were baseless and without merit. Armstrong again wrote at length about the 25 doping investigation in the 2000-2001 racing season, devoting almost the entire third chapter 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 15 90 Woodbridge Center Drive Woodbridge, NJ 07095

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of this book to the topic, including the following passages intended to impress the reader

2 with his "clean" history and the legitimacy of his victories: 3

4 That year saw the beginning of a long, hard defense of my character. I'm surely the most drug-tested man on the planet. I'm tested anywhere from 30 to 5 40 times a year, both in and out of competition, and I welcome it, because 6 frankly, it's the only proof! have of my innocence.

7

8 I've never once failed a test. Not one. Nor do I intend to, ever. You know why? Because the only thing you'll find evidence of is hard work, and there's 9 no test for that. 10 But no matter how many tests I took, there were still those who considered me II guilty, a doper-mastermind who outwitted scientific communities across the globe, and the suspicion reach a height in 2000-2001. 12

13 On Thanksgiving Day of 2000, shortly after I got back from the Olympics, 14 French authorities announced I was under criminal investigation for doping. 15 I was dumfounded. I wasn't just being called a cheat, I was being called a 16 felon, under formal investigation.

17

18 What happened was this: during the Tour [de France], someone surreptitiously videotaped two of our medical staff as they threw away a 19 couple of trash bags. The tape was sent anonymously to a government 20 prosecutor, as well as to the France 3 television station. Now the station was airing the tape while sensationally reporting our "suspicious behavior" as we 21 disposed of "medical waste." 22 French authorities had responded by launching a full-scale judicial inquiry. 23

24 The "medical waste consisted of some wrappers and cotton swabs and empty 25 boxes, nothing more.

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2 I immediately issued an angry denial through our [U.S. Postal Service cycling team] spokesman, Dan Osipow. Our team had "zero tolerance" for any form 3 of doping, we said. It sounded like a cliched statement, but we meant it. We 4 were absolutely innocent.

5

6 At first, I tried not to take it personally, and to understand the motives behind the investigation. When an athlete doped, the competitors, spectators, and 7 journalists were defrauded. International cycling had recently been through a 8 drug scandal, and the French were protective of the integrity of the Tour [de France], which was more than just a race, it was a national symbol, and they 9 didn't want it junked up by needles and vials. But I didn't like being accused 10 on no evidence.

II

12 Suspicion was the permanent state of affairs in the sport, and with reason. Unfortunately, cycling had a long history of doping. It had happened time and 13 again: athletes had lied, had cheated, had stolen. In the 1998 Tour [de 14 France], which I missed while recovering from illness, a drug scandal resulted in multiple arrests and suspensions when a team car was found to be carrying 15 large amounts of the blood-doping agent erythropoietin (EPO). Since then, Tour [de France] officials had worked with the International Cycling Union to 16 develop new drug tests, and to restore public confidence in the race. 17 Drug inspectors arrived at each team hotel between 7 and 9 A.M. on the day 18 that the Tour [de France] started and drew blood from the crooks of our arms. After that, there were surprise drug tests-you never knew when someone 19 would bang on your hotel-room door and ask for blood. There were also daily 20 urine tests in a mobile trailer after each stage ....

21 Even out of season, I was, and am, tested by the United States Anti-Doping Agency. It's a moment of wearying familiarity: I'm sitting in my kitchen 22 early one Texas morning in the off-season, sipping coffee and whispering so 23 as not to wake assorted children, when there's a loud ringing at the doorbell. Standing on the front step of my home is a representative from USADA, 24 coming on like John Wayne, holding out a piece of paper like a warrant and telling me to take a drug test, or risk being banned from my sport. 25

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The drug testers in Austin were the same people every time, a husband and wife. I didn't know their names, and wasn't especially cordial with them, 2 because they were never cordial with me. They would ring the bell, I'd open 3 the door, and they would announce, "Random drug control." And hand me a piece of paper instructing me on my rights. Or lack thereof: if I declined the 4 test it was considered an automatic positive, and I would be banned. 5

6 The head of the French Sports Ministry, Marie-George Buffet, announced that 7 all of our [U.S. Postal Service cycling] team's urine samples from the 2000 Tour would be turned over to the French judicial investigators and submitted 8 to forensic testing by law enforcement, and so would the garbage that we had 9 thrown away during the 2000 Tour [de France].

10 That was actually good news. I wanted all the tests, because I knew they would come back pure. They were my only means of vindication. "It's the 11 best news in a long time," I said. "Because I know I'm clean."

12 More good news came when the International Cycling Union announced it 13 would conduct its own tests. The ICU had quietly decided to preserve 91 frozen urine samples taken from the 2000 race, without the cyclists' 14 knowledge, in the hopes of eventually submitting them to a brand-new test for EPO. 15

16

17 Anyone who thought I would go through four cycles of chemo just to risk my life by taking EPO was crazy. It was one thing to seek to maximize 18 performance, or explore a pharmacological gray zone. It was another to court death. 19 I practiced another, more natural way to oxygenate my blood, and that was to 20 train or live at altitude. I stressed altitude training-it was a big part of my 21 regimen, and it was safe, but it was no fun. It was lung-searing, and dizzying, and inconvenient, but it was legal and it worked. 22

23 Meanwhile, the investigation threatened to seriously mess with my reputation. 24

25

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We wrote in anti-drug out-clause in our contracts: if! tested positive, I'd give the money back. 2

3

4 Finally, April came, and with it, what seemed to be good news. We heard via a reporter from Reuters that all of our tests were clean-exactly as we had 5 insisted all along.

6 In Chapter 7 of this book, Armstrong wrote:

7 Here are just a few things that happened after the summer of 2002. On 8 September 2, 2002, the French doping investigation was finally, officially closed .... After 21 months of inquiry, investigators admitted they'd found not a 9 shred of proof, and they issued just a small discourteous announcement from the prosecutor's office. The case was dropped for lack of evidence. 10

II

12 22. Despite Armstrong's, Penguin Group (USA)'s, Putnam's and Berkley's repeated

13 public representations that Armstrong's cycling comeback and successes were due to his

14 innate talent and athletic gifts, training, diet and his extraordinary will to succeed, and not 15 banned performance enhancing drugs, as detailed in IT'S NOT ABOUT THE BIKE: My 16

17 JOURNEY BACK TO LIFE, and despite Random House's, Crown's, and Broadway's repeated

18 public representations that Armstrong's cycling comeback and successes were due to his

19 innate talent and athletic gifts, training, diet and his extraordinary will to succeed and not 20 banned performance enhancing drugs, as detailed in EVERY SECOND COUNTS, both books 21

22 have now been exposed as frauds. In fact, as Armstrong now admits, he and his entire U.S.

23 Postal Service ("USPS") cycling team used banned substances. Armstrong now admits that

24 without his use of banned performance enhancing drugs beginning in the mid-1990's, he 25

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would not have won and continued to win cycling races, including seven consecutive Tour

2 de France races. 3

4 C. The Revelation Of Certain Facts Concerning Defendant Armstrong's Wrongdoing Bring Forth His Steadfast Denials, Attacks Upon Others 5 And Repeated Attempts To Hide The Truth 6 23. Suspicions that Armstrong used banned performance enhancing drugs in the Tour 7 de France, which were first mentioned by the French media in 1999, re-emerged in June 8

9 2004 with the appearance, right before the start of the Tour de France race, of a book entitled

10 "L.A. Confidentiel," co-authored by David Walsh and Pierre Ballester ("Walsh and

11 Ballester"). In this book, which was never published in the United States, Walsh and 12 Ballester reported that when Armstrong met with his doctors after being diagnosed with 13

14 testicular cancer, he admitted that he had previously taken banned performance enhancing

15 drugs. This book also revealed that one of Armstrong's former assistants was asked to

16 remove several used syringes and that Armstrong had asked to borrow her makeup in order 17 to cover up needle marks on his skin. During this time, Armstrong vehemently denied any 18

19 charges of doping. Later that summer, Armstrong won his sixth Tour de France cycling race.

20 24. As detailed in Armstrong's book, EVERY SECOND COUNTS, one month after 21 winning his first Tour de France race, Armstrong was accused of testing positive for 22

23 erythropoietin ("EPO") by L'Equipe, the French sports publication. This French paper

24 reported that there was indisputable evidence of Armstrong's guilt from drug tests performed 25 on six urine samples taken, and later frozen was later testing, during the 1999 Tour de France 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 20 90 Woodbridge Center Drive Woodbridge, NJ 07095

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race. On his Internet website, Armstrong denied that he had ever taken performance

2 enhancing drugs. Television network CNN reported that Armstrong had been "dogged by a 3 whispering campaign that his remarkable cycling achievements were aided by drugs despite 4

5 never failing a doping test." Despite L 'Equipe devoting four full pages to this Armstrong

6 doping scandal, Armstrong described it as a "witch hunt."

7 25. Armstrong sued the authors of "L.A. Confidentiel" and The Sunday Times of 8

9 London for £1 ,000,000 after the newspaper reprinted claims from the "L.A. Confidentiel"

10 book that Armstrong took performance enhancing drugs. Also named in Armstrong's suit 11 was Emma O'Reilly ("O'Reilly"), Armstrong's former masseuse and a major source of 12 information for the authors of "L.A. Confidentiel." The Sunday Times ofLondon settled the 13

14 case in 2006, paying Armstrong £300,000. O'Reilly settled with Armstrong after enduring

15 two and one-half years of litigation. Armstrong reportedly went on a litigation spree against 16 his critics and those who sought to uncover the truth about his doping, boasting in 2006: "I 17 think we're 10-0 in lawsuits right now." 18

19 26. In April 2009, after being accused by France's anti-doping agency of not 20 cooperating with a drug tester, Armstrong again denied any wrongdoing. Nevertheless, 21

22 Armstrong was subsequently cited for not remaining "under the direct and permanent

23 observation" of those administering the drug test, pursuant to the established rules. A 20- 24 minute delay in administering the drug test occurred when Armstrong declared that he had 25

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been given permission to shower following a race. While he was showering, Armstrong's

2 assistants checked the credentials of the drug tester. 3

4 27. In June 2009, Walsh and Ballester wrote a second book entitled "Ie sale tour."

5 They have stated that they purposely did not put the title of their in capital letters because of 6 their disgust with what had happened with the sport of cycling. When asked why he was 7 always "after" Armstrong, Walsh explained, "If he doped to win the Tour de France, which I 8

9 believe he did, he's not a genuine champion."

JO 28. On May 20,2010, The New York Times reported that Armstrong and other 11

12 team members of the USPS cycling team had been accused of using banned performance

13 enhancing drugs by former team member Floyd Landis ("Landis"). Landis sent this 14 information to cycling officials via electronic mail ("e-mail"). Because Landis had spent the 15 previous four years vehemently denying these very same charges, his admission came as a 16

17 surpnse. One cycling official confirmed that the information provided by Landis was

18 detailed. Landis revealed that his own doping had begun in 2002, the first year he became a 19 teammate of Defendant Armstrong. In response to these revelations, Armstrong vehemently 20 and publicly denied teammate Landis's assertions. 21

22 29. On September 10,2010, Betsy Andreu ("Andreu"), the wife of former 23 Armstrong cycling teammate Frankie Andreu, advised that she spoke to federal agents 24

25 regarding the use of banned performance enhancing drugs in professional cycling. Andreu

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stated that while Armstrong was battling cancer, he told her that he had used performance 2 enhancing drugs, including EPO, human growth hormone, steroids and testosterone. Andreu 3 told federal agents that Armstrong was in his hospital room when he made this revelation. 4

5 On September 11, 2010, it was revealed that Andreu had received several threatening

6 telephone voicemail messages left by an Armstrong friend and it was stated that those

7 voicemail recordings would be used as evidence in a federal investigation into Armstrong's 8 acti vities. 9

10 30. On January 24, 2011, Sports Illustrated magazine reported that in 1995 11 Armstrong cycling teammate Stephen Swart had called Armstrong "the instigator," and that 12 Armstrong encouraged his cycling teammates to use EPO, which is a banned performance 13

14 enhancing drug. In response, Armstrong's lawyer publicly denied these accusations. The

15 Sports Illustrated article explicated many of the prior doping accusations made against 16 Armstrong. Most importantly, Sports Illustrated pointed out that because the cycling team 17 was sponsored by the USPS and involved the use of government resources, a federal 18

19 investigation into such wrongdoing would be necessary.

20 31. On May 23, 2011, the CBS television network aired the show "60 Minutes," 21

22 which investigated the allegations surrounding Armstrong and included an interview with

23 former Armstrong cycling teammate Tyler Hamilton ("Hamilton"). During the broadcast, 24 Hamilton asserted that he and Armstrong had taken EPO during 1999-2001. The television 25 show also reported that two other teammates had observed Armstrong using EPO. Hamilton 26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 23 90 Woodbridge Center Drive Woodbridge, NJ 07095

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stated that he saw the drug in the refrigerator, that he and other teammates saw Armstrong 2 use the drug. 3

4 D. The USADA Brings Charges Against Armstrong And Publishes Its Report Detailing Armstrong's Wrongdoing 5 32. On June 12,2012, Armstrong was charged with doping and the trafficking of 6

7 drugs by the United States Anti-Doping Agency ("USADA"). At the same time, Armstrong

8 was suspended from competing in any cycling-related events. Armstrong was also banned 9 from participating in triathlons. The IS-page letter sent to Armstrong by the USADA alleged 10 that his blood samples from 2009 and 2010 were "fully consistent with blood manipulation, II

12 including EPO use and/or blood transfusions."

13 33. On July 9, 2012, Armstrong responded to the USADA's letter by filing a 14

15 lawsuit against the USADA and its Chief Executive Officer, Travis Tygart, in the U.S.

16 District Court for the Western District of Texas, entitled Lance Armstrong v. Us. Anti-

17 Doping Agency, Case No. A-12-CA-606-SS. That same day, Judge Sam Sparks issued an 18 Order dismissing Armstrong's complaint and motion for temporary restraining order against 19

20 the USADA. In the Order, Judge Sparks stated that "[t]his Court is not inclined to indulge

21 Armstrong's desire for publicity, self-aggrandizement, or vilification of [the USADA]." Dkt. 22 No. 17 at 2-3. Armstrong responded to Judge Sparks' Order by filing an amended complaint 23 on July 10,2012. In his filings, Armstrong asserted that the USADA did not have the ability 24

25 to file charges against him because his contracts were with the UCI. On August 20,2012,

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Armstrong's lawsuit against the USADA and Tygart was again dismissed, leaving Armstrong

2 three days to decide if he wished to arbitrate his case in accordance with USADA rules. Dkt. 3 Nos. 56-57. On August 23,2012, Armstrong declined to arbitrate the USADA's charges, 4

5 stating on his personal LIVESTRONG Internet webpage: "There comes a point in every

6 man's life when he has to say, 'Enough is enough.'" However, Armstrong continued to

7 publicly deny any doping charges, claiming that he was weary of dealing with such 8 accusations. By avoiding USADA arbitration, Armstrong knew he would be banned for life 9

10 from the sport of cycling and stripped of all of his race wins.

11 34. On August 24, 2012, the USADA imposed a lifetime ban on Armstrong and 12 stripped him of all his Tour de France race medals, thereby eliminating all of Armstrong's 13

14 achievements from the record books.

15 35. On October 12,2012, the USADA forwarded to the UCI, the World Anti- 16 Doping Agency (WADA), and the World Triathlon Corporation (WTC) its 202-page edited 17

18 version of a report entitled "Reasoned Decision of the United States Anti-Doping Agency on

19 Disqualification and Ineligibility" (the "USADA Report"). The USADA Report concluded 20 that Armstrong had engaged in a sophisticated doping conspiracy "designed in large part to 21 benefit Armstrong," and that Armstrong took various performance enhancing drugs during 22

23 all of his Tour de France race victories.

24 36. The USADA Report provided a year-by-year breakdown of Defendant 25 Armstrong's doping, starting in 1998, in a race in Spain where Armstrong's teammate, 26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 25 90 Woodbridge Center Drive Woodbridge, NJ 07095

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Jonathan Vaughters ("Vaughters"), alleged that Armstrong injected himself with EPO in 2 front of him and was open about his performance enhancing drug use. According to the 3 USADA Report, seven witnesses (including four riders and a team employee) testified about 4

5 performance enhancing drug use on Armstrong's USPS cycling team, including the use of

6 EPO, testosterone, human growth hormone and cortisone.

7 37. According to the USADA Report, in 1999 Armstrong's USPS cycling team 8 ousted the team doctor, Pedro Celaya, because he "had not been aggressive enough for 9

10 Armstrong in providing banned products." That same year, according to the USADA

II Report, Armstrong "got serious" with Italian doping doctor Michele Ferrari ("Dr. Ferrari"). 12 In one instance, according to Andreu (the wife of USPS cycling team rider Frankie Andreu), 13

14 she, Armstrong and Armstrong's then-wife met Dr. Ferrari on the side of the road outside

15 Milan, Italy, and that on that occasion, Armstrong met alone with Dr. Ferrari for an hour.

16 Hamilton, Armstrong's training partner in 1999, told the USADA that Dr. Ferrari had 17 injected him with EPO that year. During the 1999 Tour de France race, Armstrong tested 18

19 positive for a cortisone that he didn't have medical authorization to use. A cover-up

20 allegedly ensued; in the words of the USADA report:

21 Emma O'Reilly was in the room giving Armstrong a massage when 22 Armstrong and team officials fabricated a story to cover the positive test. 23 Armstrong and the team officials agreed to have Dr. del Moral backdate a prescription for cortisone cream for Armstrong which they would claim had 24 been prescribed in advance of the Tour to treat a saddle sore. O'Reilly 25 understood from Armstrong, however, that the positive had not come from a topical cream but had really come about from a cortisone injection Armstrong 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 26 90 Woodbridge Center Drive Woodbridge, NJ 07095

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received around the time of the Route du Sud a few weeks earlier. After the meeting between Armstrong and the team officials concluded, Armstrong told 2 O'Reilly, 'Now, Emma, you know enough to bring me down.'" 3 38. The USADA Report alleges that the USPS cycling team was delivered EPO 4 during the 1999 Tour de France race by a skilled, drug-smuggling motorcyclist that the team 5

6 members called "Motoman." Hamilton states that riders also took testosterone in 1999 via an

7 olive oil based solution that was sprayed in their mouths. However, as Defendant Armstrong

8 wrote in his books, IT'S NOT ABOUT THE BIKE, My JOURNEY BACK TO LIFE and EVERY 9 SECOND COUNTS, he attributed the above-referenced positive drug test to an approved 10

11 cortisone skin cream used for saddle soreness.

12 39. In 2000, when the organizers of the Tour de France race started testing for 13

14 EPO, Hamilton asserts that the USPS cycling team moved on to blood doping. Hamilton

15 states that he, Armstrong and teammate Livingston went to Valencia, Spain, and had blood

16 extracted and later re-infused to boost their performance. Another Armstrong teammate, 17 George Hincapie ("Hincapie"), asserts that Armstrong also used testosterone in 2000, and 18

19 that Armstrong dropped out of a cycling race in Spain after Hincapie warned him that there

20 would be drug testing. Hamilton states that USPS cycling team riders were re-infused with

21 blood during the 2000 Tour de France race at a hotel room, and that they joked about whose 22 body was absorbing the blood the fastest. 23

24 40. Hincapie states that Dr. Ferrari visited the USPS team training camp at the 25 beginning of 200 1 and his services were offered to any rider who wanted them for $15,000. 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer. P.A. 27 Page 27 90 Woodbridge Center Drive Woodbridge, NJ 07095

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Also in 2001, Vaughters reports that he went out on a bike ride with Armstrong where 2 Armstrong "demonstrated a detailed knowledge of the EPO test," and told him how to skirt a 3 positive drug test. Armstrong told Vaughters that he had sources in the testing world who 4

5 told him how it works.

6 41. During the 2001 Tour du Suisse race, Armstrong informed his teammates that 7 he had tested positive for EPO; however, after having a conversation with UCI officials, 8

9 Armstrong told his teammates "everything was going to be okay." Cycling teammate Landis

10 stated that Armstrong told him he (Armstrong) had made a "financial agreement" with UCI 11 officials to keep the results from the positive drug test hidden. 12

13 42. During 2002, the USADA Report states that Armstrong become good friends 14 and training partners with cycling teammate Landis, who asserts that he and Armstrong 15 shared doping advice and drugs. According to the USADA Report, "Armstrong also 16

17 describe[d] how much he enjoyed Landis' boyish antics, gregarious personality and love for

18 the American rock band ZZ Top." Landis had keys to Armstrong's apartment. The USADA 19 Report states that the agency has evidence that $150,000 was paid by Armstrong to Dr. 20 Ferrari during 2002, even though Dr. Ferrari was then under investigation for doping. 21

22 43. After the 2002 Tour de France race, USPS team member Christan Vande 23 Velde ("Vande Velde") states that Armstrong threatened to kick him off the team if he didn't 24

25 step up his doping program; as the USADA report states: "Armstrong told Vande Velde that

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if he wanted to continue to ride for the [USPS cycling] team he 'would have to use what Dr.

2 Ferrari had been telling [Vande Velde] to use and would have to follow Dr. Ferrari's 3 program to the letter.'" According to the USADA Report, Vande Velde stated that "the 4

5 conversation left me with no question that I was in the doghouse and that the only way

6 forward with Armstrong's team was to get fully on Dr. Ferrari's doping program." Vande

7 Velde acquiesced to Armstrong's demand. 8

9 44. According to records uncovered by the USADA, during 2003 Armstrong paid

10 Dr. Ferrari the sum of$475,000. Cycling teammate Landis was hurt during 2003, but when 11 Armstrong went out of town he asked Landis to stay at his apartment and keep an eye on his 12 blood-doping equipment. "Landis agreed to babysit the blood," the USADA Report says. 13

14 Both Landis and Hincapie state that Armstrong blood-doped in 2003, and during every other

15 Tour de France race held from 2001 to 2005. Landis states that Armstrong gave him a box 16 of six pre-measured syringes ofEPO after he (Armstrong) got two liters of blood extracted in 17 2003. 18

19 45. During 2004, Armstrong continued to work with Dr. Ferrari and, on the day 20 before the 2004 Tour de France race, Armstrong wire transferred $100,000 to Dr. Ferrari. 21

22 Cycling teammate Landis states that he saw Armstrong on a massage table with a

23 testosterone patch on his shoulder. During the 2004 Tour de France race, both Landis and 24 Hincapie assert that the entire USPS cycling team got blood transfusions on the team bus 25 after a stage of the race. In late 2004, Dr. Ferrari was convicted of sporting fraud for 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz. Goldman & Spitzer. P.A. 27 Page 29 90 Woodbridge Center Drive Woodbridge, NJ 07095

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advising a group of Italian riders about EPO and other drugs. According to the USADA

2 report, it was only at that point that Armstrong publicly broke off his relationship with Dr. 3 Ferrari. 4

5 46. In 2005, Hincapie asserts that Armstrong gave him EPO following the latter's 6 seventh-straight Tour de France race win. Also in 2005, the USADA Report states that 7 Armstrong's supposedly-finished relationship with Dr. Ferrari was "business as usual." 8

9 Armstrong and Dr. Ferrari met in Italy and Armstrong wire transferred $100,000 to Dr.

10 Ferrari. II

12 47. During 2009, the US ADA Report states that Armstrong retained a professional

13 relationship with Dr. Ferrari by soliciting advice from him through Dr. Ferrari's son, Stefano. 14 Here is an example of an e-mail exchange between Armstrong, Dr. Ferrari and Stefano 15 ("Schumi" is Ferrari): On November 4,2009, Stefano inquires: "Schumi asks if you'd like 16

17 [t] 0 continue the cooperation for next year too - if so, then it [w] ould be good to start

18 thinking about some specifics already (gym + [s]ome bike)." On November 15,2009, when 19 Armstrong is looking ahead to the next year's Tour de France race, he writes: "Yes, let's 20 continue ... what we have started. I'm curious to know what Schumi [t]hinks for 2010 and 21

22 what we need to do differently in terms of training .... " Stefano responds, "Great! Schumi

23 says it's obviously a [T]our for light climbers .... " The USADA Report states that the

24 chances that Armstrong's blood levels during the 2009 Tour de France occurred naturally 25 were "less than one in a million." 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 30 90 Woodbridge Center Drive Woodbridge, NJ 07095

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48. According to the USADA Report, Armstrong avoided positive drug tests by

2 engaging in a variety of deceptive activities, including: 3

4 (a) Avoiding the testers. Cycling teammate Hamilton states that they would

5 take the EPO injections at night and never answer the door when the testers came by. Teams 6 commonly had lookouts to inform a rider when a tester was approaching, according to an 7 independent review of the 2010 Tour de France. The USADA Report states that the USPS 8

9 cycling team also seemed to have inside information on when the tests would come.

10 (b) Using undetectable drugs. From 1998-2005, cycling authorities could 11

12 not test for blood doping or HGH. In addition, EPO is hard to test for and wasn't even

13 testable until 2000. Testosterone is notoriously hard to detect as well. 14

15 (c) Next-level methods. The USADA Report states that the USPS cycling

16 team had an understanding of how testing worked, and that team members used methods that

17 would result in negative tests. These included methods like testosterone patches and 18 injecting EPO directly into the vein. The USADA report states that the team "literally 19

20 smuggled" saline solution into camp in 1998 to water down test results.

21 49. As the USADA Report concluded: "The evidence is overwhelming that Lance 22

23 Armstrong did not just use performance enhancing drugs, he supplied them to his teammates.

24 He did not merely go alone to Dr. Michele Ferrari for doping advice, he expected that others

25 would follow. It was not enough that his teammates give maximum effort on the bike, he 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer. P.A. 27 Page 31 90 Woodbridge Center Drive Woodbridge, NJ 07095

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also required that they adhere to the doping program outlined for them or be replaced. He 2 was not just a part of the doping culture on his team, he enforced and re-enforced it. 3 Armstrong's use of drugs was extensive, and the doping program on his team, designed in 4

5 large part to benefit Armstrong, was massive and pervasive."

6 E. Armstrong's Admissions During His Televised Interview With Oprah 7 Winfrey 8 50. On January 17,2013, Defendant Armstrong admitted to well-known television

9 personality Oprah Winfrey ("Winfrey"), in an interview which was broadcast nationwide on 10 The Oprah Network, that he began using banned performance enhancing drugs in the mid- II 1990's, before he was diagnosed with cancer, and used them throughout his cycling career, 12

13 including during each of his seven Tour de France race victories. Armstrong admitted to

14 Winfrey that his story "was so perfect for so long," that the "myth" of his perfect story was 15 "not true," and that "a lot of people helped paint that (untrue) picture." Annstrong admitted 16 that his cocktail of banned performance enhancing drugs and procedures consisted of "EPa, 17

18 transfusions and testosterone," and that he was not afraid of getting caught despite the testing

19 program because of the testing protocols and because the UCI did not test for EPa until 20 2006. Armstrong stated that until 2005, cyclists were tested only at or during the races at 21 which time the banned performance enhancing drugs were no longer detectable because most 22

23 of the use of banned performance enhancing drugs occurred during the off-competition

24 training season. Armstrong admitted to Winfrey that he was a "ruthless, relentless, 'win-at- 25 all-costs' bully" who hid the truth in order to "perpetuate the story" and in order to win. 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 32 90 Woodbridge Center Drive Woodbridge, NJ 07095

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51. Armstrong admitted in his televised interview with Winfrey that the positive 2 EPO tests from samples of his 1999 blood were, in fact, accurate, despite his prior denials, 3 which had been repeatedly stated both publicly and in his books. Armstrong also admitted 4

5 that in 1999 he had convinced a doctor to back-date a prescription for a cortisone cream in

6 order to explain his positive test result for steroids. During the interview, Armstrong

7 admitted that the "Motoman" story was true. 8 F. Plaintiffs' Lack Of Knowledge Concerning Armstrong's Fraud And Their 9 Efforts To Learn The Truth 10 52. Plaintiff Stutzman remembers seeing news reports shortly after May 2010 11 regarding Armstrong teammate Landis's allegations. For the first time, Plaintiff Stutzman 12

13 began to seriously wonder if Armstrong had lied about never using banned substances. But

14 Armstrong's continued and vehement protests that he was innocent, the fact that it was 15 widely reported that Armstrong had never tested positive for a banned substance, and the fact 16 that Armstrong had successfully sued accusers for defamation, led Plaintiff Stutzman to 17

18 believe that Armstrong was telling the truth. It was not until August to October 2012, when

19 Armstrong was stripped of all seven of his Tour de France race titles and the USADA Report 20 was issued, that Plaintiff Stutzman felt certain that Armstrong had lied all along. When 21 Armstrong confessed doping to Winfrey during the interview broadcast on television on 22

23 January 17-18,2013, Plaintiff Stutzman felt duped, cheated and betrayed.

24 53. Plaintiff Wheeler, who had followed Armstrong's cycling career from the 25 beginning, was convinced of Armstrong's veracity because he supposedly continued to test 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spit7.er, P.A. 27 Page 33 90 Woodbridge Center Drive Woodbridge, NJ 07095

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"clean" for drugs. After all, Plaintiff Wheeler believed that given the fact of widespread

2 testing for banned substances, if other cyclists were testing "dirty," getting caught and 3 disciplined by cycling authorities, and Armstrong was not, then surely Armstrong was 4

5 "clean." Plaintiff Wheeler even formed the opinion that Greg LeMond ("LeMond"), a three-

6 time winner of the Tour de France race (and the only previous American winner), was a

7 "whiner" when LeMond suggested in 2001 that Armstrong was one of the greatest "frauds" 8 in the history of cycling. Plaintiff Wheeler was so proud of Armstrong's first Tour de France 9

10 race win that he purchased a 2000 "maillot jaune" (yellow jersey) symbolizing the race

I I winner. Plaintiff Wheeler came to believe that Armstrong was probably lying when, during

12 August-October 2012, the USADA Report was issued and Armstrong was stripped of his 13 seven Tour de France titles. The disappointed Wheeler felt cheated and betrayed. 14

15 v. ADDITIONAL FACTS REGARDING DEFENDANTS' UNLA WFUL CONDUCT 16 54. Throughout the Class Period, Defendant Armstrong fraudulently represented 17

18 his books, IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE and EVERY SECOND

19 COUNTS, to be a true and honest works of nonfiction during personal appearances, in print, 20 on the Internet and on television. 21 55. From May 2000 to the present, Defendants Armstrong, Penguin Group (USA), 22

23 Putnam and Berkley fraudulently and/or negligently represented and promoted the book, IT'S

24 NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE, to be a true and honest work of 25 nonfiction, on the book's front and back covers, on the flyleafs, through press kits, 26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 34 90 Woodbridge Center Drive Woodbridge, NJ 07095

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promotions, press releases and communications made via various other media channels

2 including, but not limited to, The New York Times, USA Today, Amazon, Borders Books and 3 Barnes & Noble. Such promotional and marketing efforts continued after January 2011, by 4

5 which point Defendants Penguin Group (USA), Putnam and Berkley knew or should have

6 known that Armstrong's book was not an honest work of nonfiction.

7 56. From January 2003 to the present, Defendants Armstrong, Random House, 8 Broadway and Crown fraudulently and/or negligently represented and promoted the book, 9

10 EVERY SECOND COUNTS, to be a true and honest work of nonfiction, on the book's front and

11 back covers, on the flyleafs, through press kits, promotions, press releases and

12 communications made by various other media channels including, but not limited to, The 13 New York Times, USA Today, Amazon, Borders Books and Barnes & Noble. Such 14

15 promotional and marketing efforts continued after January 2011, by which point Defendants

16 Random House, Broadway and Crown knew or should have known that Armstrong's book

17 was not an honest work of nonfiction. 18 57. Throughout the Class Period, Defendant Armstrong actively and fraudulently 19

20 concealed the material fact that he used banned performance enhancing drugs in his cycling

21 career. Armstrong carried out this concealment and deception by various means, including

22 holding press conferences to declare that he had never failed a drug test and by suing his 23 detractors for defamation and other torts. 24

25 VI. CLASS ACTION ALLEGATIONS

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58. Under Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs bring this 2 action, on behalf of themselves and all others similarly situated, as a class action. The Class 3 (or subclasses) which Plaintiffs seek to represent is (are) defined as follows: (a) All 4

5 consumers residing in the State of California who purchased the book, IT'S NOT ABOUT THE

6 BIKE: My JOURNEY BACK TO LIFE from its initial publication date in May 2000 through the

7 present, and (b) all consumers residing in the State of California who purchased the book 8 EVERY SECOND COUNTS from its initial publication date in January 2003 through the present 9

10 (the "Class" and the "Class Period").

II 59. Excluded from the Class are each of the Defendants identified in this

12 Complaint, any entity in which Defendants have a controlling interest, any officers or 13 directors of Defendants, their legal representatives, heirs, successors and assigns, and any 14

15 judicial officer assigned to this case.

16 60. Plaintiffs reserve the right, upon completion of discovery with respect to the

17 scope of the Class and the Class Period, to amend the definitions set forth above. 18 61. The members of the Class are so numerous and geographically diverse that 19

20 joinder of all of them is impracticable. Plaintiffs allege that there are thousands of members

21 in the Class who reside throughout the State of California. 22 62. Plaintiffs, who are members of the Class, have suffered monetary injury, are 23 committed to prosecute this case, and have retained competent counsel who are experienced 24

25 in class action litigation. Accordingly, Plaintiffs are adequate representatives of the Class

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because they have the same interests as the members of the Class, their claims are typical of

2 the claims of Class members, and they will fairly and adequately protect the interests of 3 Class members. 4

5 63. There are questions of law or fact common to members of the Class that

6 predominate over any questions affecting individual members including, but not limited to:

7 (a) Whether Defendants' false and/or misleading statements of fact and 8 concealment of material facts to Plaintiffs and Class members were likely to deceive them; 9

10 (b) Whether Defendants, by their conduct alleged in this Complaint, have

11 engaged in unfair, deceptive, untrue and/or misleading statements about the truthfulness of

12 IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE and/or EVERY SECOND COUNTS; 13 (c) Whether Defendants' conduct caused damages to Plaintiffs and the 14

15 members of the Class for which Defendants may be held liable under California law; and

16 (d) Whether, as a result of Defendants' misconduct, Plaintiffs and the

17 members of the Class are entitled to recover compensatory damages, restitution, injunctive, 18 equitable and/or other types of relief, and the amount and nature of such relief. 19

20 64. The likelihood that individual members of the Class will prosecute separate

21 and individual actions is remote due to the relatively small- albeit substantial in the

22 aggregate - actual and potential damages sustained by each Class member, when compared 23 to the losses suffered by the Class as a whole compared to the burden and expense of 24

25

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prosecuting litigation of this nature and magnitude. Thus, a class action is superior to other 2 available methods for the fair and efficient adjudication of this controversy. 3 VII. DELA YED DISCOVERY AND/OR FRAUDULENT CONCEALMENT 4

5 65. Plaintiffs' causes of action against Defendants, as alleged in Part VIn of this

6 Complaint infra, did not accrue until Plaintiffs discovered, or had reason to discover, each

7 such cause of action. As set forth herein, until at least August 2012, when the USADA 8 imposed a lifetime ban on Defendant Armstrong and stripped him of all his Tour de France 9

10 medals, and/or October 2012, when the USADA Report was published, and/or January 2013,

11 when Armstrong made his televised disclosures to Winfrey, Plaintiffs did not have

12 knowledge of the causes of action against Armstrong and the other Defendants. Until those 13 public disclosures made during 2012-2013, Plaintiffs lacked means of obtaining such 14

15 knowledge; that is, in the exercise of reasonable diligence, Plaintiffs could not have

16 uncovered the truth about Armstrong's wrongdoing at an earlier date. As alleged in this

17 Complaint, until at least August 2012, Plaintiffs were unable to discover the fraudulent 18 scheme carried out by Armstrong and the other Defendants. 19

20 66. As alleged in this Complaint, from at least May 2000 to January 2013,

21 Armstrong fraudulently concealed the truth from the American public, including Plaintiffs 22 and the members of the Class. As alleged in this Complaint, Plaintiffs did not discover the 23 truth about Armstrong's fraudulent scheme until July 2012, at the earliest or January 2013, at 24

25 the latest. Plaintiffs gradually discovered the truth when, in August 2012, the USADA

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imposed a lifetime ban on Defendant Armstrong and stripped him of all his Tour de France

2 medals, and/or in October 2012, when the USADA Report was published, and/or January 3 2013, when Armstrong made his televised disclosures to Winfrey. Prior to this series of 4

5 public disclosures, Plaintiffs had no actual or presumptive knowledge of facts sufficient to

6 put them on inquiry.

7 VIII. CAUSES OF ACTION 8 FIRST CAUSE OF ACTION 9

10 (Violations of the Consumers Legal Remedies Act - Injunctive Relief Only As To Defendants Armstrong, Penguin Group (USA), Putnam And Berkley) II 67. Plaintiffs incorporate by reference all previous paragraphs of this Complaint as 12

13 if fully set forth and further alleges as follows. This cause of action, which alleges violations

14 of the CLRA, is brought against Defendants Armstrong, Penguin Group (USA), Putnam and 15 Berkley. 16 68. The CLRA, CAL. ClY. CODE § 1750 et seq., provides California consumers 17

18 with a comprehensive procedure for redressing Defendants' violations of various statutory

19 rights.

20 69. Defendants' misrepresentations ofIT'S NOT ABOUT THE BIKE: My JOURNEY 21 BACK TO LIFE, which is a "good" under Section 1761(a), as a true and honest work of non- 22

23 fiction has violated, and continues to violate, the CLRA in at least the following respects:

24 (a) In violation of Section 1770(a)(2) of the CLRA, Defendants have 25 misrepresented the sponsorship, approval, or certification of the goods in question; 26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 39 90 Woodbridge Center Drive Woodbridge, NJ 07095

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(b) In violation of Section 1770( a)( 5) of the CLRA, Defendants' acts and 2 practices constitute representations that the goods in question have approval, characteristics, 3 uses, or benefits which they do not have or that a person has sponsorship, approval, status, 4

5 affiliation, or connection which he or she does not have;

6 (c) In violation of Section 1770(a)(7) ofthe CLRA, Defendants' acts and

7 practices constitute representations that the goods in question are of a particular standard, 8 quality or grade, when they are not; 9

10 (d) In violation of Section 1770(a)(9) of the CLRA, Defendants' acts and

11 practices constitute the advertisement of goods in questions without the intent to sell them as

12 advertised; 13 (e) In violation of Section 1770( a)( 16) of the CLRA, Defendants' acts and 14

15 practices constitute representations that the subject of the transaction has been supplied in

16 accordance with previous representations when it has not.

17 70. By reason of the foregoing, Plaintiffs and Class members have been 18 irreparably harmed, entitling them to both injunctive relief and restitution. 19

20 71. Pursuant to Section 1782 of the CLRA, Plaintiffs have notified Defendants in

21 writing of the particular violations of Section 1770 of the CLRA. Plaintiffs demanded that

22 Defendants rectify the actions described above by providing complete monetary relief, 23 agreeing to be bound by their legal obligations and give notice to all affected customers of 24

25

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their intent to do so. Plaintiffs sent this notice by certified mail, return receipt requested, to 2 Defendants' residence and/or principal places of business. 3 72. If Defendants fail to respond to Plaintiffs' demand within 30 days of the letter 4

5 pursuant to Section 1782 of the CLRA, Plaintiffs will amend this Complaint to add claims

6 for actual, punitive and statutory damages. Plaintiffs are already entitled to the relief set

7 forth above, along with costs, attorneys' fees and any other relief which the Court deems 8 proper. 9

10 SECOND CAUSE OF ACTION

II (Violations of the Consumers Legal Remedies Act - Injunctive Relief Only As To Defendants Armstrong, Random House, Broadway And Crown) 12

13 73. Plaintiffs incorporate by reference all previous paragraphs of this Complaint as

14 if fully set forth and further alleges as follows. This cause of action, which alleges violations 15 of the CLRA, is brought against Defendants Armstrong, Random House, Broadway and 16 Crown. 17

18 74. The CLRA, CAL. CIV. CODE § 1750 et seq., provides California consumers

19 with a comprehensive procedure for redressing Defendants' violations of various statutory 20 rights. 21 75. Defendants' misrepresentations of EVERY SECOND COUNTS, which is a "good" 22

23 under Section 1761 (a), as a true and honest work of non-fiction has violated, and continues

24 to violate, the CLRA in at least the following respects: 25

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(a) In violation of Section 1770(a)(2) of the CLRA, Defendants have 2 misrepresented the sponsorship, approval, or certification of the goods in question; 3 (b) In violation of Section 1770(a)(5) of the CLRA, Defendants' acts and 4

5 practices constitute representations that the goods in question have approval, characteristics,

6 uses, or benefits which they do not have or that a person has sponsorship, approval, status,

7 affiliation, or connection which he or she does not have; 8 (c) In violation of Section 1770( a )(7) of the CLRA, Defendants' acts and 9

10 practices constitute representations that the goods in question are of a particular standard,

11 quality or grade, when they are not;

12 (d) In violation of Section 1770(a)(9) of the CLRA, Defendants' acts and 13 practices constitute the advertisement of goods in questions without the intent to sell them as 14

15 advertised;

16 (e) In violation of Section 1770(a)(16) of the CLRA, Defendants' acts and

17 practices constitute representations that the subject of the transaction has been supplied in 18 accordance with previous representations when it has not. 19

20 76. By reason of the foregoing, Plaintiffs and Class members have been

21 irreparably hanned, entitling them to both injunctive relief and restitution. 22 77. Pursuant to Section 1782 of the CLRA, Plaintiffs have notified Defendants in 23 writing of the particular violations of Section 1770 of the CLRA. Plaintiffs demanded that 24

25 Defendants rectify the actions described above by providing complete monetary relief,

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agreeing to be bound by their legal obligations and give notice to all affected customers of 2 their intent to do so. Plaintiffs sent this notice by certified mail, return receipt requested, to 3 Defendants' residence and/or principal places of business. 4

5 78. If Defendants fail to respond to Plaintiffs' demand within 30 days of the letter

6 pursuant to Section 1782 of the CLRA, Plaintiffs will amend this Complaint to add claims

7 for actual, punitive and statutory damages. Plaintiffs are already entitled to the relief set 8 forth above, along with costs, attorneys' fees and any other relief which the Court deems 9

10 proper.

II THIRD CAUSE OF ACTION

12 (Violations of the Unfair Competition Law - 13 Defendants Armstrong, Penguin Group (USA), Putnam And Berkley)

14 79. Plaintiffs' incorporate by reference all previous paragraphs of this Complaint 15 as if fully set forth, and further alleges as follows. This cause of action, which asserts 16 violations of the UCL, is brought against Defendants Armstrong, Penguin Group (USA), 17

18 Putnam and Berkley.

19 80. Plaintiffs assert this claim against Defendants for unlawful practices pursuant 20 to the DCL, Bus. & PROF. CODE § 17200 et seq., which prohibits all unlawful or unfair 21 business practices and/or acts. 22

23 81. Plaintiffs assert their claim as a member of an aggrieved Class of persons who

24 have expended funds that Defendants should be required to reimburse under the 25 restitutionary remedy specified in Section 17203 of the UCL. 26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 43 90 Woodbridge Center Drive Woodbridge, NJ 07095

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82. Defendants represented IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO 2 LIFE, to be a true and honest work of non-fiction, which it is not, rendering Defendants' 3 representations unfair, untrue, misleading and/or likely to deceive Plaintiffs and the members 4

5 of the Class.

6 83. Defendants' practices deceived consumers who trusted Defendants'

7 representations that IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE, is a true a 8 honest work of non-fiction, which it is not. As such, Defendants' representations are 9

10 unlawful and constitute an "unfair business practice."

11 84. By acting as alleged herein, Defendant employed unconscionable commercial

12 practices, deception, false advertising, false promises and misrepresentations to lure 13 consumers to purchase IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE. 14

IS 85. The practices of the Defendants have injured Plaintiffs and the members of the

16 Class by causing them to spend money on a book they otherwise would not have purchased

17 and/or, in the alternative, by decreasing the value and enjoyment of the purchased book. 18 86. The unlawful acts and practices of Defendant as alleged above constitute 19

20 unlawful business practices within the meaning of Section 17200.

21 FOURTH CAUSE OF ACTION 22 (Violations of the Unfair Competition Law­ 23 Defendants Armstrong, Random House, Broadway And Crown)

24 87. Plaintiffs' incorporate by reference all previous paragraphs of this Complaint 25 as if fully set forth, and further alleges as follows. This cause of action, which asserts 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 44 90 Woodbridge Center Drive Woodbridge, NJ 07095

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violations of the UCL, is brought against Defendants Armstrong, Random House, Broadway

2 and Crown. 3 88. Plaintiffs assert this claim against Defendants for unlawful practices pursuant 4

5 to the UCL, Bus. & PROF. CODE § 17200 et seq., which prohibits all unlawful or unfair

6 business practices and/or acts.

7 89. Plaintiffs assert their claim as a member of an aggrieved Class of persons who 8 have expended funds that Defendants should be required to reimburse under the 9

10 restitutionary remedy specified in Section 17203 of the UCL.

II 90. Defendants represented EVERY SECOND COUNTS to be a true and honest work

12 of non-fiction, which it is not, rendering Defendants' representations unfair, untrue, 13 misleading and/or likely to deceive Plaintiffs and the members of the Class. 14

15 91. Defendants' practices deceived consumers who trusted Defendants'

16 representations that EVERY SECOND COUNTS is a true a honest work of non-fiction, which it

17 is not. As such, Defendants' representations are unlawful and constitute an "unfair business 18 practice. " 19

20 92. By acting as alleged herein, Defendant employed unconscionable commercial

21 practices, deception, false advertising, false promises and misrepresentations to lure

22 consumers to purchase EVERY SECOND COUNTS. 23

24

25

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93. The practices of the Defendants have injured Plaintiffs and members of the 2 Class by causing them to spend money on a book they otherwise would not have purchased 3 and/or, in the alternative, by decreasing the value and enjoyment of the purchased book. 4

5 94. The unlawful acts and practices of Defendant as alleged above constitute

6 unlawful business practices within the meaning of Section 17200.

7 FIFTH CAUSE OF ACTION 8 (Violations of the False Advertising Law - Defendants Armstrong, Penguin Group 9 (USA), Putnam And Berkley) 10 95. Plaintiffs incorporate by reference all previous paragraphs of the Complaint as 11 if fully set forth, and further alleges as follows. This cause of action, which alleges 12

13 violations of the FAL, is brought against Defendants Armstrong, Penguin Group (USA) and

14 Berkley. 15 96. During the Class Period, Defendants have committed acts of untrue and 16 misleading advertising, as defined in the F AL, CAL. Bus. & PROF. CODE § 17500, by 17

18 engaging in acts and practices with intent to induce consumers to purchase IT'S NOT ABOUT

19 THE BIKE: My JOURNEY BACK TO LIFE. The following acts and practices, among others, 20 created a likelihood of confusion and misunderstanding in connection with the sale ofIT'S 21 NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE: 22

23 (a) Defendant Armstrong fraudulently represented his book IT'S NOT

24 ABOUT THE BIKE: My JOURNEY BACK TO LIFE to be a true and honest work of non-fiction at 25 personal appearances, in print and on television; and 26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spit7.er, P.A. 27 Page 46 90 Woodbridge Center Drive Woodbridge, NJ 07095

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(b) Defendants Penguin Group (USA), Putnam and Berkley represented

2 and promoted the book IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE to be to be a 3 true and honest work of non-fiction on the book's covers and flyleafs, through press kits, 4

5 promotions, press releases and various other media channels. These Defendants have

6 continued to advertise, market and sell the subject book as a work of nonfiction even after

7 they knew or should have known that Armstrong's book contained false and misleading 8 statements. 9

10 97. Plaintiffs and other members of the Class relied on and were deceived by

II Defendants' false and deceptive advertisements and practices as set forth above, and as a

12 direct and proximate result of the afore-mentioned acts, Defendants received and continue to 13 hold ill-gotten gains belonging to Plaintiffs and members of the Class. 14

15 98. In addition to the relief requested in the Prayer for Relief, Plaintiffs seek the

16 imposition of a constructive trust over, and restitution and disgorgement of, the monies

17 collected and profits realized by Defendants, and each of them, as well as injunctive relief, 18 including an order requiring them to cease from false and misleading advertising oflT'S NOT 19

20 ABOUT THE BIKE: My JOURNEY BACK TO LIFE.

21 SIXTH CAUSE OF ACTION 22 (Violations of the False Advertising Law - Defendants Armstrong, Random House, 23 Broadway And Crown)

24 99. Plaintiffs incorporate by reference all previous paragraphs of the Complaint as 25 if fully set forth, and further alleges as follows. This cause of action, which alleges 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 47 90 Woodbridge Center Drive Woodbridge, NJ 07095

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violations of the FAL, is brought against Defendants Armstrong, Random House, Broadway 2 and Crown. 3 100. During the Class Period, Defendants have committed acts of untrue and 4

5 misleading advertising, as defined in the F AL, CAL. Bus. & PROF. CODE § 17500, by

6 engaging in acts and practices with intent to induce consumers to purchase EVERY SECOND

7 COUNTS. The following acts and practices, among others, created a likelihood of confusion 8 and misunderstanding in connection with the sale of EVERY SECOND COUNTS. 9

10 (a) Defendant Armstrong fraudulently represented his book EVERY

11 SECOND COUNTS to be a true and honest work of non-fiction at personal appearances, in print

12 and on television; and 13 (b) Defendants Random House, Broadway and Crown represented and 14

15 promoted the book EVERY SECOND COUNTS to be to be a true and honest work of non-fiction

16 on the book's covers and fly leafs, through press kits, promotions, press releases and various

17 other media channels. These Defendants have continued to advertise, market and sell the 18 subject book as a work of nonfiction even after they knew or should have known that 19

20 Armstrong's book contained false and misleading statements.

21 10 1. Plaintiffs and other members of the Class relied on and were deceived by 22 Defendants' false and deceptive advertisements and practices as set forth above, and as a 23 direct and proximate result of the aforementioned acts, Defendants received and continue to 24

25 hold ill-gotten gains belonging to Plaintiffs and members of the Class.

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102. In addition to the relief requested in the Prayer for Relief, Plaintiffs seek the 2 imposition of a constructive trust over, and restitution and disgorgement of, the monies 3 collected and profits realized by Defendants, and each of them, as well as injunctive relief, 4

5 including an order requiring them to cease from false and misleading advertising of EVERY

6 SECOND COUNTS.

7 SEVENTH CAUSE OF ACTION 8 (Negligent Misrepresentation - 9 Defendants Armstrong, Penguin Group (USA), Putnam And Berkley) 10 103. Plaintiffs incorporate by reference all previous paragraphs of this Complaint as 11 if fully set forth, and further alleges as follows. This cause of action, which asserts a claim 12

13 for negligent misrepresentation, is brought against Defendants Armstrong, Penguin Group

14 (USA), Putnam and Berkley. 15 104. Defendants recklessly or negligently misrepresented or concealed facts 16 relating to the fictional nature oflT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE 17

18 and represented it as a true and honest work of nonfiction.

19 105. The facts misrepresented or omitted by Defendants were and are material. 20 106. Plaintiffs and the members of the Class, believing Defendants' representations 21 that IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE was a true and honest work of 22

23 nonfiction, and without means to know otherwise, reasonably relied upon Defendants'

24 misrepresentations, omissions and other practices, directly or indirectly, and purchased said 25 book. 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 49 90 Woodbridge Center Drive Woodbridge, NJ 07095

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107. Plaintiffs and the members of the Class have thereby been damaged, the exact 2 amount of which is presently unknown, but is capable of being ascertained. 3 108. As a result of Defendants' practices as set forth herein, Defendants are liable 4

5 to Plaintiffs and the members of the Class for compensatory damages, interest and costs.

6 EIGHTH CAUSE OF ACTION

7 (Negligent Misrepresentation - Defendants Armstrong, Random House, 8 Broadway And Crown)

9 109. Plaintiffs incorporate by reference all previous paragraphs of this Complaint as 10 if fully set forth, and further alleges as follows. This cause of action, which asserts a claim II for negligent misrepresentation, is brought against Defendants Armstrong, Random House, 12

13 Broadway and Crown.

14 110. Defendants recklessly or negligently misrepresented or concealed facts 15 relating to the fictional nature of EVERY SECOND COUNTS and represented it as a true and 16 honest work of nonfiction. 17

18 111. The facts misrepresented or omitted by Defendants were and are material.

19 112. Plaintiffs and the members of the Class, believing Defendants' representations 20 that EVERY SECOND COUNTS was a true and honest work of nonfiction, and without means to 21 know otherwise, reasonably relied upon Defendants' misrepresentations, omissions and other 22

23 practices, directly or indirectly, and purchased said book.

24 113. Plaintiffs and the members of the Class have thereby been damaged, the exact 25 amount of which is presently unknown, but is capable of being ascertained. 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief WiIentz, Goldman & Spitzer, I>.A. 27 Page 50 90 Woodbridge Center Drive Woodbridge, NJ 07095

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114. As a result of Defendants' practices as set forth herein, Defendants are liable 2 to Plaintiffs and the members of the Class for compensatory damages, interest and costs. 3 NINTH CAUSE OF ACTION 4

5 (Fraud and Deceit - Defendants Armstrong, Penguin Group (USA), Putnam And Berkley) 6 115. Plaintiffs incorporate by reference all previous paragraphs of this Complaint as 7

8 if fully set forth, and further alleges as follows. This cause of action, which asserts a claim

9 for fraud and deceit, is brought against Defendants Armstrong, Penguin Group (USA), 10 Putnam and Berkley. As set forth herein, this cause of action for fraud and deceit seeks to 11 recover compensatory damages and punitive damages against Defendant Armstrong only; as 12

13 to Defendants Penguin Group (USA), Putnam and Berkley, which Plaintiffs allege to have

14 aided and abetted Armstrong's fraud and deceit, Plaintiffs seek to recover compensatory 15 damages only. 16 116. Defendant Armstrong carried out a fraudulent scheme in which he made 17

18 representations that IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE was a true and

19 honest work of nonfiction including, but not limited to, through the media. 20 117. When Armstrong made such representations he knew them to be false and 21 misleading. 22

23 118. When Armstrong made these false representations he made them with the

24 intention to induce consumers, including Plaintiffs and the members of the Class, to act in 25 reliance on the representations made, or with the expectation that they would so act. 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 51 90 Woodbridge Center Drive Woodbridge, NJ 07095

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119. Plaintiffs and the members of the Class purchased IT'S NOT ABOUT THE BIKE:

2 My JOURNEY BACK TO LIFE based upon Defendant Armstrong's representations it was a true 3 and honest work of nonfiction. As such, Armstrong's representations were material. 4

5 120. Defendant Armstrong had exclusive knowledge of material facts not known to

6 the Plaintiffs or the members of the Class.

7 121. Plaintiffs and the members of the Class were ignorant of the falsity of 8 Defendant Armstrong's representations and believed them to be true. In reliance of these 9

IO representations, Plaintiffs and Class members were induced to and did purchase IT'S NOT

11 ABOUT THE BIKE: My JOURNEY BACK TO LIFE. Had Plaintiffs and the members of the Class

12 known the actual facts, they would not have purchased the book. Plaintiffs' and Class 13 members' reliance on Armstrong's representations was justified because Armstrong, aided 14

15 and abetted by Defendants Penguin Group (USA), Putnam and Berkley, continued his

16 fraudulent scheme of misrepresenting the true nature OfIT'S NOT ABOUT THE BIKE: My

17 JOURNEY BACK TO LIFE throughout the Class Period. As early as January 2011 and certainly 18 not later than June 2012, Defendants Penguin Group (USA), Putnam and Berkley knew that 19

20 Defendant Armstrong was engaged in fraudulent activities and violations of California law,

21 yet continued to give him substantial assistance or encouragement by continuing to publish,

22 market, promote and/or sell IT'S NOT ABOUT THE BIKE: My JOURNEY BACK TO LIFE. 23

24

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122. As a direct and proximate result of Defendants' fraudulent conduct, Plaintiffs

2 and the members of the Class have suffered damages and economic loss in an amount to be 3 proven at trial. 4

5 123. In perpetrating the fraud alleged herein, Defendant Armstrong acted in a

6 willful, wanton and malicious manner, in callous, conscious and intentional disregard for the

7 rights of Plaintiffs and members of the Class, and with knowledge that his actions and 8 conduct were substantially likely to vex, annoy and injure Plaintiffs and the members of the 9

]0 Class. As a result thereof, Plaintiffs and members of the Class are entitled to an award of

II punitive and exemplary damages against Defendant Armstrong, pursuant to CAL. CIY. CODE

12 § 3294, in an amount according to proof at trial. 13 TENTH CAUSE OF ACTION 14

15 (Fraud and Deceit - Defendants Armstrong, Random House, Broadway And Crown) 16 124. Plaintiffs incorporate by reference all previous paragraphs of this Complaint as 17

18 if fully set forth, and further alleges as follows. This cause of action, which asserts a claim

19 for fraud and deceit, is brought against Defendants Armstrong, Random House, Broadway 20 and Crown. As set forth herein, this cause of action for fraud and deceit seeks to recover 21 compensatory damages and punitive damages against Defendant Armstrong only; as to 22

23 Defendants Random House, Broadway and Crown, which Plaintiffs allege to have aided and

24 abetted Defendant Armstrong's fraud and deceit, Plaintiffs seek to recover compensatory 25 damages only. 26 #6716116vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 53 90 Woodbridge Center Drive Woodbridge, NJ 07095

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125. Defendant Armstrong carried out a fraudulent scheme in which he made 2 representations that EVERY SECOND COUNTS WAS a true and honest work of nonfiction 3 including, but not limited to, through the media. 4

5 126. When Armstrong made such representations he knew them to be false and

6 misleading.

7 127. When Armstrong made these false representations he made them with the 8 intention to induce consumers, including Plaintiffs and the members of the Class, to act in 9

10 reliance on the representations made, or with the expectation that they would so act.

11 128. Plaintiffs and the members of the Class purchased EVERY SECOND COUNTS

12 based upon Defendant Armstrong's representations it was a true and honest work of 13 nonfiction. As such, Armstrong's representations were material. 14

15 129. Defendant Armstrong had exclusive knowledge of material facts not known to

16 the Plaintiffs or the members of the Class.

17 130. Plaintiffs and the members of the Class were ignorant of the falsity of 18 Defendant Armstrong's representations and believed them to be true. In reliance of these 19

20 representations, Plaintiffs and Class members were induced to and did purchase EVERY

21 SECOND COUNTS. Had Plaintiffs and the members of the Class known the actual facts, they 22 would not have purchased the book. Plaintiffs' and Class members' reliance on Defendant 23 Armstrong's representations was justified because Armstrong, aided and abetted by 24

25 Defendants Random House, Broadway and Crown, continued his fraudulent scheme of

26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spit7.er, P.A. 27 Page 54 90 Woodbridge Center Drive Woodbridge, N.I 07095

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misrepresenting the true nature of EVERY SECOND COUNTS throughout the Class Period. As 2 early as January 2011 and certainly not later than June 2012, Defendants Random House, 3 Broadway and Crown knew that Defendant Armstrong was engaged in fraudulent activities 4

5 and violations of California law, yet continued to give him substantial assistance or

6 encouragement by continuing to publish, market, promote and/or sell EVERY SECOND

7 COUNTS. 8 131. As a direct and proximate result of Defendants' fraudulent conduct, Plaintiffs 9

10 and the members of the Class have suffered damages and economic loss in an amount to be

11 proven at trial.

12 132. In perpetrating the fraud alleged herein, Defendant Armstrong acted in a 13 willful, wanton and malicious manner, in callous, conscious and intentional disregard for the 14

15 rights of Plaintiffs and members of the Class, and with knowledge that his actions and

16 conduct were substantially likely to vex, annoy and injure Plaintiffs and members of the

17 Class. As a result thereof, Plaintiffs and members of the Class are entitled to an award of 18 punitive and exemplary damages against Defendant Armstrong, pursuant to CAL. CIV. CODE 19

20 § 3294, in an amount according to proof at trial.

21 IX. PRAYER FOR RELIEF 22 149. WHEREFORE, on behalf of themselves and the members of the Class, 23 Plaintiffs demand judgment against Defendants, and each of them as follows: 24

25

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A. Ordering that this action be maintained as a class action, certifying the Class, 2 and appointing Plaintiffs and their undersigned counsel of record and any additional Class 3 representatives necessary to adequately represent the Class; 4

5 B. Restoring and awarding Plaintiffs and Class members all ascertainable

6 amounts, losses, refunds, including the purchase price paid for IT'S NOT ABOUT THE BIKE:

7 My JOURNEY BACK TO LIFE and EVERY SECOND COUNTS, any statutorily permissible 8 damages, attorneys' fees, expenses and costs; 9

10 C. Mandating Defendants to disgorge and then restore and/or make restitution of

11 any money to Plaintiffs and to the members of the Class which may have been acquired by

12 Defendants by means of its unlawful conduct alleged in this Complaint; 13 D. Enjoining Defendants from engaging in similar unlawful acts or practices in 14

15 the future.

16 E. A warding Plaintiffs and the members of the Class damages in an amount

17 necessary to compensate them fully for their losses, together with interest; 18 F. For an award of attorneys' fees and costs of suit; and 19

20 G. For such other and further relief which the Court deems necessary, just and

21 proper.

22 x. DEMAND FOR JURY TRIAL 23 Plaintiff hereby demands a trial by jury on all claims so triable. 24

25

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DATED: January 22,2013 WILENTZ, GOLDMAN & SPITZER, P.A. 2

3

4 By__ ~~~/=~=e~Vl~·n~P~.~R=o~d=d~y ______5 KEVIN P. RODDY (SBN 128283)

6 90 Woodbridge Center Drive, Suite 900 Woodbridge, NJ 07095 7 Telephone: (732) 636-8000 8 Facsimile: (732) 726-6686 E-mail: [email protected] 9

10 TRACEY BUCK-WALSH (SBN 131254) LAW OFFICE OF TRACEY BUCK-WALSH 11 6 Reyes Court Sacramento, CA 95831 12 Telephone: (916) 392-8990 13 Facsimile: (916) 393-1757 E-mail: [email protected] 14

15 Attorneys for Plaintiffs

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26 #67l6ll6vl Class Action Complaint for Damages and Injunctive, Equitable and Declaratory Relief Wilentz, Goldman & Spitzer, P.A. 27 Page 57 90 Woodbridge Center Drive Woodbridge, NJ 07095

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AFFIDA VIT OF ROB STUTZMAN

I, Rob Stutzman, hereb:>, declare as follows based upon persona! knowledge If caHc<.i

as a witness, I could and would testifY as follows:

1. r am a Plaintiff in this class action.

2. (n accordance with Section I 780(d) of the California Consumers Legal

Remedies Act, I commenced this action in the U.S, District Court for the Eastern District of

California, locaied in the County of Sacramento, because the Defendanrs against vi/horn J

bring this action do business in the County of Sacramento, or the transaction(s) at issue or a

substantial portion of the tnmsaction(s) at issue took ptHce in the County of Sacramento, or at

lea.">{ some members of the Class reside in the County of Sacramento.

Executed this the ;).,:;;..:- day of January , 2013. Case 2:13-cv-00116-MCE-KJN Document 1 Filed 01/22/13 Page 59 of 59

AFFIDA VIT OF JONATHAN WHEELER '

I~ JOllathan Wheeler, hereby declare as follows based upon pers~)Ual knowledge. If

called as a.witness, I could and would testify as follows: 4 1. I am a Plaintiff in this class action.

2. In accordance with Section 1780(d) of t1te. CaHf()mia Consumers Legal

7 Remedies Act, I commenced this action in the U.S •. Di$trict Court for the Easte.rh District of

California, located in the County of Sacram.ento, because the Defendaqts against whom I 9

10 bring this actio11 do business in the County of Sacramento, or ~he transactj<0n(s) at issue or a 11 substantial portion ofthe transaction(s) at issue took place in the County of Sacramento, or at 12 least some members of the Class reside in the County of Sacramento; . 13 Executed this the ...::Z:;..,;\~_ day of January, 2013. 14

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25 26 21 #6716116\11 . Class Action Cqmplaint for Damages and Injunctive, Equitable and Declaratory ReJief Wilenb:, Golt:lll)an 8l Spitzer,P.A, Page I 90 Woodbridge eenu,',\, DriVe Woodbridge, NJ 07095