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COMPLAINT for 16 All Others Similarly Situated, VIOLATIONS OF: 17 Plaintiff, • California Unfair Competition Law; 18 • California Consumer Legal Remedies Act; V

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COMPLAINT for 16 All Others Similarly Situated, VIOLATIONS OF: 17 Plaintiff, • California Unfair Competition Law; 18 • California Consumer Legal Remedies Act; V Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 1 of 65 Page ID #:133 1 THE WESTON FIRM LAW OFFICES OF RONALD A. GREGORY S. WESTON (239944) 2 MARRON, APLC [email protected] RONALD A. MARRON (175650) 3 JACK FITZGERALD (257370) ron@consumersadvocates,com [email protected] 4 SKYE RESENDES (278511) MELANIE PERSINGER (275423) [email protected] 5 mel@westonfirm. com 3636 4th Street,JSuite 202 COURTLAND CREEKMORE (182018) 6 San Diego, CA 921 0S£ 3 courtland@westonfirm. com Telephone: (61 9) 6®^90D5 7 1405 Morena Blvd., Suite 201 Facsimile: (61 9) 5&66S San Diego, CA 92110 >2S2 8 r Telephone: (619)798-2006 m o 9 Facsimile: (480) 247-4553 IE —« Fo r> •• o 10 a: en Counsel for Plaintiffs and the Proposed Classes ^J3 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 14 Case No: 2:12-cv-04936 GHK (VBKx) Pleading Type: Class Action 15 ALICE VINSON and LUCINA CALDERA, on behalfofherself and FIRST AMENDED COMPLAINT FOR 16 all others similarly situated, VIOLATIONS OF: 17 Plaintiff, • California Unfair Competition Law; 18 • California Consumer Legal Remedies Act; v. 19 • California False Advertising Law; THE J.M. SMUCKER COMPANY, • Ohio Consumer Sales Practice Act; 20 • Ohio Deceptive Trade Practices Act; and 21 Defendant. • Breach of Implied and Express Warranties 22 DEMAND FOR JURY TRIAL 23 24 25 26 27 28 Vinson, et al v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) First Amended Complaint Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 2 of 65 Page ID #:134 1 TABLE OF CONTENTS 2 I. JURISDICTION AND VENUE ................................................................................ 3 3 II. NATURE OF THIS ACTION ................................................................................... 3 4 5 III. PARTIES ................................................................................................................... 4 6 IV. FACTS ....................................................................................................................... 5 7 8 A. The Role of Cholesterol in Heart Disease ....................................................... 6 9 B. There is Overwhelming Scientific Evidence of the Debilitating and 10 Deadly Effects of Artificial Trans Fat Consumption ...................................... 8 11 i. Cardiovascular Disease ....................................................................... 11 12 13 ii. Type 2 Diabetes .................................................................................. 15 14 iii. Breast, Prostate, and Colorectal Cancer .............................................. 15 15 iv. Alzheimer’s Disease and Cognitive Decline ...................................... 17 16 17 v. There is No Safe Level of Artificial Trans Fat Consumption ............ 17 18 C. There is a Well-Established Scientific Consensus That Trans Fat is 19 Extremely Harmful ........................................................................................ 19 20 D. Artificial Trans Fat Is So Inherently Dangerous It Has Been 21 Banned by An Increasing Number of American States and 22 Governments Abroad. ................................................................................... 21 23 V. SPECIFIC MISREPRESENTATIONS, MATERIAL OMISSIONS, 24 AND DECEPTIVE ACTS ....................................................................................... 22 25 A. Crisco Original & Butter Flavor Shortening ................................................. 22 26 27 B. Uncrustables Sandwiches .............................................................................. 23 28 1 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 3 of 65 Page ID #:135 1 VI. RELIANCE AND INJURY ..................................................................................... 25 2 VII. DELAYED DISCOVERY ...................................................................................... 27 3 4 VIII. CLASS ACTION ALLEGATIONS ........................................................................ 28 5 A. The Nationwide Class ................................................................................... 28 6 B. The California Class ...................................................................................... 29 7 8 C. The Ohio Class .............................................................................................. 29 9 IX. FIRST CAUSE OF ACTION .................................................................................. 33 10 11 X. SECOND CAUSE OF ACTION ............................................................................. 34 12 XI. THIRD CAUSE OF ACTION ................................................................................. 36 13 XII. FOURTH CAUSE OF ACTION ............................................................................. 37 14 15 XIII. FIFTH CAUSE OF ACTION .................................................................................. 40 16 XIV. SIXTH CAUSE OF ACTION ................................................................................. 41 17 18 XV. SEVENTH CAUSE OF ACTION ........................................................................... 42 19 XVI. EIGHTH CAUSE OF ACTION .............................................................................. 43 20 21 XVII. NINTH CAUSE OF ACTION ................................................................................ 44 22 XVIII.TENTH CAUSE OF ACTION ............................................................................... 45 23 XIX. ELEVENTH CAUSE OF ACTION ........................................................................ 47 24 25 XX. TWELFTH CAUSE OF ACTION .......................................................................... 48 26 XXI. PRAYER FOR RELIEF .......................................................................................... 49 27 28 XXII. JURY DEMAND ..................................................................................................... 50 2 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 4 of 65 Page ID #:136 1 Plaintiffs Alice Vinson and Lucina Caldera, on behalf of themselves, all others 2 similarly situated, and the general public, by and through undersigned counsel, hereby 3 sue Defendant The J.M. Smucker Company (“Smucker”) and, upon information and 4 belief and investigation of counsel, allege as follows: 5 I. JURISDICTION AND VENUE 6 1. This Court has original jurisdiction over this action under 28 U.S.C. § 7 1332(d)(2) (The Class Action Fairness Act) because the matter in controversy exceeds 8 the sum or value of $5,000,000 exclusive of interest and costs and because more than 9 two-thirds of the members of the Classes reside in states other than the state of which 10 Defendant is a citizen. 11 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Lucina 12 Caldera resides in and suffered injuries as a result of Defendant’s acts in this District, 13 many of the acts and transactions giving rise to this action occurred in this District, a 14 related action is pending in this District and Defendant (1) is authorized to conduct 15 business in this District and has intentionally availed itself of the laws and markets of this 16 District through the promotion, marketing, distribution, and sale of its products in this 17 District; (2) resides in this District; and (3) is subject to personal jurisdiction in this 18 District. 19 II. NATURE OF THIS ACTION 20 3. Plaintiffs Alice Vinson and Lucina Caldera repeatedly purchased Crisco 21 Original and Butter Flavor Shortening (together, “Crisco”), and Uncrustables Sandwiches 22 (together with Crisco, the “Products”) made by Smucker throughout the Class Periods 23 defined herein. 24 4. Smucker uses various methods to falsely represent the Products as healthful 25 and not harmful to the cardiovascular system; however all of the Products contain 26 dangerous levels of partially hydrogenated vegetable oil (“PHVO”), a food additive 27 28 3 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 5 of 65 Page ID #:137 1 banned in many parts of the world due to its high content of artificial trans fat, a highly 2 toxic carcinogen for which there are many safe and commercially equivalent substitutes. 3 5. Although Smucker has safe substitutes available, including alternative 4 formulations without artificial trans fat, for the Products, it chooses not to use such 5 formulations to increase profit. 6 6. Artificial trans fat raises the risk of coronary heart disease more than any 7 known nutritive product. 8 7. Artificial trans fat causes heart disease by raising the level of “bad” LDL 9 cholesterol and lowering the level of “good” HDL cholesterol. 10 8. Artificial trans fat also causes cancer and type-2 diabetes. 11 9. The proposed class action is necessary to remedy Defendant’s unlawful 12 conduct. Plaintiffs bring class claims for Defendant’s violations of the California Unfair 13 Competition Law, California Consumer Legal Remedies Act, California False 14 Advertising Law, Ohio Consumer Sales Practices Act, Ohio Deceptive Trade Practices 15 Act, and for breach of implied and express warranties. 16 10. Plaintiffs seek an order compelling Smucker to: (1) cease marketing and 17 selling the Products using the false, misleading,
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