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BURSOR & FISHER, P.A. 1 L. Timothy Fisher (State Bar No. 191626) Blair E. Reed (State Bar No. 316791) 2 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 3 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 4 E-mail: [email protected] [email protected] 5 REICH RADCLIFFE & HOOVER LLP 6 Marc G. Reich (State Bar No. 159936) 7 Adam T. Hoover (State Bar No. 243226) 4675 MacArthur Court, Suite 550 8 Newport Beach, CA 92660 Telephone: (949) 975-0512 9 Facsimile: (949) 975-0514 10 E-mail: [email protected] [email protected] 11 Attorneys for Plaintiff 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 ANDRE GALVAN, individually and on Case No. 2:19-cv-00993 16 behalf of all others similarly situated, 17 Plaintiff, CLASS ACTION COMPLAINT 18 19 v. JURY TRIAL DEMANDED 20 SMASHBURGER IP HOLDER LLC, 21 SMASHBURGER FRANCHISING LLC, and JOLLIBEE FOODS 22 CORPORATION, 23 Defendants. 24 25 26 27 28 CLASS ACTION COMPLAINT Case 2:19-cv-00993 Document 1 Filed 02/08/19 Page 2 of 23 Page ID #:2
1 Plaintiff Andre Galvan, by his undersigned attorneys, brings this class action 2 complaint against Smashburger IP Holder LLC, and Smashburger Franchising LLC. 3 (collectively, “Smashburger,”), and Jollibee Foods Corporation, collectively, 4 “Defendants”). Plaintiff’s allegations are based upon personal knowledge as to his 5 own acts and upon information and belief as to all other matters. 6 NATURE OF ACTION 7 1. This is a class action lawsuit on behalf of purchasers of Smashburger’s 8 Triple Double, Bacon Triple Double, and Pub Triple Double burgers (collectively, 9 the “Triple Double Burgers”). 10 2. Smashburger promotes its Triple Double Burgers as containing “Double 11 the Beef.” However, contrary to this statement, Triple Double Burgers actually 12 include two patties that are each half the size of the patties of Smashburger’s regular- 13 sized Classic Smash™ burgers. Therefore, Triple Double Burgers contain the same 14 amount of beef as Smashburger’s regular-sized Classic Smash™ burgers, not 15 “double” the beef. 16 3. Smashburger’s false and misleading use of its “Double the Beef” 17 taglines (such as “Triple the Cheese, Double the Beef in Every Bite,” “Triple the 18 Cheese, Double the Beef, Triple the Options,” and “Classic Smash™ Beef Build 19 with triple the cheese & double beef in every bite”) are thus likely to confuse and 20 mislead the consuming public by causing consumers to believe incorrectly that 21 Smashburger’s products sold under these slogans include twice the beef of 22 Smashburger’s regular-sized Classic Smash™ burgers, which they do not. 23 4. Plaintiff saw, read, and relied on Defendants’ false and misleading 24 representations that Smashburger’s Triple Double Burgers contained twice the beef, 25 when in fact they did not. Plaintiff brings this class action on behalf of himself and 26 other purchasers of Triple Double Burgers and assert claims against Defendants for 27 violations of the California’s Consumers Legal Remedies Act, California’s False 28 CLASS ACTION COMPLAINT 1
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1 Advertising Law, California’s Unfair Competition Law, fraud, breach of express 2 warranty, and unjust enrichment. 3 FACTUAL BACKGROUND 4 5. Smashburger is a worldwide fast-casual hamburger restaurant chain 5 with more than 370 corporate and franchise-owned restaurants in 37 states and 9 6 countries. The chain offers unique burgers in each city where its restaurants are 7 located, but serves its Triple Double Burgers, which purportedly include “triple the 8 cheese & double the beef in every bite” at all locations.1 9 6. All Triple Double Burgers include three slices of cheese and two beef 10 patties. 11 7. In a press release dated July 11, 2017 concerning the addition of Triple 12 Double Burgers to Smashburger’s national menu, Smashburger quoted its Co- 13 Founder and Chief Executive Tom Ryan as stating that the Triple Double Burger 14 contains “’[d]ouble the juicy, caramelized beef,’” that it “provide[s] three times the 15 cheese and double the beef in every bite,” and that it is “Smashburger’s beefiest […] 16 burger to date.” A true and correct copy of Smashburger’s July, 11, 2017 press 17 release is attached hereto as Exhibit A. 18 8. Smashburger has used its “Double the Beef” tagline in multiple 19 variations to advertise and sell its TRIPLE DOUBLE Burgers, including “Triple the 20 Cheese, Double the Beef in Every Bite,” “Triple the Cheese, Double the Beef, Triple
21 the Options,” and “Classic Smash Beef Build with triple the cheese & double beef in 22 every bite.” Smashburger has used such taglines in, inter alia, menus and displays at 23 its restaurants. 24 // 25 // 26 // 27 1 See https://smashburger.com/menu/ (last visited February 8, 2019). 28 CLASS ACTION COMPLAINT 2
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1 9. Smashburger has advertised, and currently continues to advertise, Triple 2 Double Burgers on the homepage of its website as “Triple the Cheese, Double the 3 Beef, Triple the Options.” See http://smashburger.com/. 4 5 6 7 8 9 10 11 12 13 14
15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 3
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1 10. Smashburger has advertised and currently continues to advertise Triple 2 Double Burgers through its social media accounts as containing “Double the Beef.” 3 11. Smashburger also used its “Double the Beef” tagline in television 4 advertisements for its Triple Double Burger, stating that the Triple Double Burger 5 contains “Double the Beef in Every Bite” and has “2x Fresh 6 Never-Frozen Beef.” See https://vimeo.com/225485077; 7 https://vimeo.com/224690849. 8 12. In one such television advertisement, an actor says that the Triple 9 Double Burger is the “meatiest thing I’ve ever eaten,” while another holds up a 10 Triple Double burger and says, “this is a lot of meat.” 11 13. While Smashburger has advertised, and continues to advertise Triple 12 Double Burgers as containing “Double the Beef,” Triple Double Burgers actually 13 consist of two patties that together contain the same amount of beef as the single 14 patty in Smashburger’s regular-sized burgers, such as Smashburger’s Classic 15 Smash™. 16 14. Smashburger’s “Double the Beef” taglines are likely to influence, and 17 actually did influence, the purchasing decisions of consumers. 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 4
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1 15. Smashburger’s “Double the Beef” taglines actually deceived and had 2 the tendency to deceive a substantial segment of Smashburger’s customers into 3 thinking that Triple Double Burgers contain twice the amount of beef as 4 Smashburger’s regular-sized burgers. 5 16. Smashburger knew or should have known that its “Double the Beef” 6 taglines were false and misleading, yet it adopted and continued to use those taglines. 7 THE PARTIES 8 17. Defendants Smashburger IP Holder LLC and Smashburger 9 Franchising LLC are both Delaware limited liability companies, each having a 10 principal place of business at 3900 East Mexico Avenue, Suite 1200, Denver, 11 Colorado 80210. Defendants Smashburger IP Holder LLC and Smashburger 12 Franchising LLC operate and franchise a chain of fast casual restaurants specializing 13 in hamburger and cheeseburger sandwiches and other products and services. 14 18. Defendant Jollibee Foods Corporation is the parent company of 15 Smashburger IP Holder LLC and Smashburger Franchising LLC. Jollibee Foods 16 Corporation is a multinational company that owns multiple restaurant chains. 17 19. Plaintiff Andre Galvan is a California Citizen residing in Agoura Hills, 18 California. Mr. Galvan purchased approximately 10 Triple Double Burgers over the 19 last two years. Before purchasing Triple Double Burgers, Mr. Galvan saw, read, and 20 relied on the representation made on Smashburger’s menu and advertising materials 21 that the burger in fact contained “Double the Beef” as Smashburger’s regular Classic 22 Smash™ burger. Mr. Galvan would not have purchased Triple Double Burgers had 23 he known they did not contain “double” the beef compared to Smashburger’s regular 24 Classic Smash™ burger. 25 JURISDICTION AND VENUE 26 20. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 27 1332(d)(2)(A). There are more than 100 Class Members, and the aggregate claims 28 CLASS ACTION COMPLAINT 5
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1 of all members of the proposed Class exceed $5,000,000.00, exclusive of interest and 2 costs. At least one Class Member is a citizen of a state different than at least one 3 defendant. 4 21. This Court has supplemental jurisdiction over this action pursuant to 28 5 U.S.C. § 1367. 6 22. This Court has personal jurisdiction over Smashburger IP Holder LLC, 7 and Smashburger Franchising LLC because each conducts substantial business 8 within California and operates restaurants throughout the Central District of 9 California, including Orange County. 10 23. This Court has personal jurisdiction over Jollibee Foods Corporation 11 because it is registered to do business and does do business in the state of California. 12 24. Venue is proper in this Court under 28 U.S.C. § 1391(b) because 13 Defendants transact significant business within this District and because Plaintiff 14 Galvan purchased Smashburger’s Triple Double Burgers in this District. 15 CLASS ACTION ALLEGATIONS 16 25. Plaintiff Galvan seeks to represent a class defined as all persons in the 17 United States who purchased Smashburger’s Triple Double Burgers at any time from 18 February 8, 2015 to the present (the “National Class”). Excluded from the Class are 19 governmental entities, Defendants, Defendants’ affiliates, parents, subsidiaries, 20 employees, officers, directors, and co-conspirators, and anyone who purchased 21 Smashburger’s Triple Double Burgers for resale. Also excluded is any judicial 22 officer presiding over this matter and the members of their immediate families and 23 judicial staff. 24 26. Plaintiff also seeks to represent a subclass defined as all members of the 25 Class who purchased Smashburger’s Triple Double Burgers within the state of 26 California (the “California Subclass”) at any time from February 8, 2015 to the 27 present. 28 CLASS ACTION COMPLAINT 6
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1 27. Members of the Class and the California Subclass are so numerous that 2 their individual joinder herein is impracticable. The precise number of Class 3 Members and their identities are unknown to Plaintiff at this time but will be 4 determined through discovery of Defendants’ records. Class Members may be 5 notified of the pendency of this action by mail, email, and/or publication. 6 28. This suit seeks damages and equitable relief for recovery of economic 7 injury on behalf of the Class and California Subclass. Plaintiff reserves the right to 8 modify or expand the definition of the Class and Subclass to seek recovery on behalf 9 of additional persons as warranted as facts are learned in further investigation and 10 discovery. 11 29. Common questions of law and fact exist as to all Class Members and 12 predominate over questions affecting only individual Class Members. These 13 common legal and factual questions include, but are not limited to: 14 30. Whether the marketing and advertisements for the Triple Double 15 Burgers included false and/or misleading statements; 16 31. Whether Defendants’ conduct violated the CLRA; 17 (a) Whether Defendants’ conduct violated the FAL; 18 (b) Whether Defendants’ conduct violated the UCL; 19 (c) Whether Defendants were unjustly enriched; 20 (d) Whether Defendants’ conduct was fraudulent; and 21 (e) Whether Defendants’ conduct breached express warranties. 22 32. Plaintiff’s claims are typical of the claims of the proposed Class and of 23 the California Subclass he seeks to represent. Each Class Member was subjected to 24 the same illegal conduct, was harmed in the same way and has claims for relief under 25 the same legal theories. 26 33. Plaintiff Galvan is an adequate representative of the Class and of the 27 California Subclass he seeks to represent because his interests do not conflict with 28 CLASS ACTION COMPLAINT 7
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1 the interests of the Class Members he seeks to represent, he has retained counsel 2 competent and experienced in prosecuting class actions, and he intends to prosecute 3 this action vigorously. The interests of Class and Subclass Members will be fairly 4 and adequately protected by Plaintiff and his counsel. 5 34. The class mechanism is superior to other available means for the fair 6 and efficient adjudication of the claims of Class Members. Each individual Class 7 Member may lack the resources to undergo the burden and expense of individual 8 prosecution of the complex and extensive litigation necessary to establish 9 Defendants' liability. Individualized litigation increases the delay and expense to all 10 parties and multiplies the burden on the judicial system presented by the complex 11 legal and factual issues of this case. Individualized litigation also presents a 12 potential for inconsistent or contradictory judgments. In contrast, the class action 13 device presents far fewer management difficulties and provides the benefits of single 14 adjudication, economy of scale, and comprehensive supervision by a single court on 15 the issue of a defendant’s liability. Class treatment of the liability issues will ensure 16 that all claims and claimants are before this Court for consistent adjudication of the 17 liability issues. 18 COUNT I 19 Express Warranty 20 35. Plaintiff repeats the allegations contained in the paragraphs above as if 21 fully set forth herein. 22 36. Plaintiff brings this Count individually and on behalf of the members of 23 the Class and Subclass. 24 37. In connection with the sale of Triple Double Burgers, Defendants 25 expressly warranted that Triple Double Burgers contained “Double the Beef.” 26 38. Defendants’ affirmations of fact and promises made to Plaintiff and the 27 Class on Defendants’ menus and other advertising and marketing materials became 28 CLASS ACTION COMPLAINT 8
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1 part of the basis of the bargain between Defendants on the one hand, and Plaintiff 2 and the Class Members on the other, thereby creating express warranties that Triple 3 Double Burgers would conform to Defendants’ affirmations of fact, representations, 4 promises, and descriptions. 5 39. Defendants breached their express warranties because Triple Double 6 Burgers do not in fact contain “double” the beef. In short, Triple Double Burgers do 7 not contain the quantity expressly warranted. 8 40. Plaintiff and the Class Members were injured as a direct and proximate 9 result of Defendants’ breach because: (a) they would not have purchased Triple 10 Double Burgers if they had known the true facts; (b) they paid for Triple Double 11 Burgers due to the mislabeling; and (c) Triple Double Burgers did not have the 12 quantity or value as promised. As a result, Plaintiff and the Class have been 13 damaged. 14 COUNT II 15 Violation on California’s Consumers Legal Remedies Act (“CLRA”), 16 California Civil Code § 1750, et seq. 17 (Injunctive Relief Only) 18 41. Plaintiff Galvan incorporates by reference and re-alleges each and every 19 allegation set forth above as though fully set forth herein. 20 42. Plaintiff Galvan brings this claim individually and on behalf of the 21 members of the proposed Class and Subclass against Defendants. 22 43. Civil Code § 1770(a)(5) prohibits “[r]epresenting that goods or services 23 have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities 24 which they do not have or that a person has a sponsorship, approval, status, 25 affiliation, or connection which he or she does not have.” Civil Code § 1770(a)(7) 26 prohibits “[r]epresenting that goods or services are of a particular standard, quality, 27 or grade, or that goods are of a particular style or model, if they are of another.” 28 CLASS ACTION COMPLAINT 9
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1 Civil Code § 1770(a)(9) prohibits “[a]dvertising goods or services with intent not to 2 sell them as advertised.” 3 44. Defendants violated Civil Code § 1770(a)(5), (a)(7), and (a)(9) by 4 making false, and misleading statements by holding out Smashburger’s Triple 5 Double Burgers as containing “Double the Beef,” when in fact they did not. 6 Specifically, Defendants controlled statements on the packaging and the marketing 7 of Smashburger’s Triple Double burgers as well as disseminated these statements in 8 media advertisements and in Smashburger restaurants. 9 45. Plaintiff and the members of the California Subclass have suffered harm 10 as a result of these violations of the CLRA because they have incurred charges 11 and/or paid monies for Smashburger’s Triple Double Burgers that they otherwise 12 would not have incurred or paid. 13 46. On February 8, 2019, prior to the filing of this Complaint, a CLRA 14 notice letter was sent to Defendants that complies in all respects with California Civil 15 Code §1782(a). Plaintiff’s counsel sent Defendants the letters via certified mail, 16 return receipt requested, advising Defendants that they are in violation of the CLRA 17 and demanding that they cease and desist from such violations and make full 18 restitution by refunding the monies received therefrom. A true and correct copy of 19 Plaintiff’s CLRA letter is attached hereto as Exhibit B. 20 COUNT III 21 Unlawful Business Practices In Violation of California’s Unfair Competition 22 Law (“UCL”) 23 Business & Professions Code §§ 17200 et seq. 24 47. Plaintiff incorporates by reference and re-alleges each and every 25 allegation set forth above as though fully set forth herein. 26 48. Plaintiff brings this claim individually and on behalf of the members of 27 the proposed Class and Subclass. 28 CLASS ACTION COMPLAINT 10
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1 49. Defendants violated the unlawful prong of the UCL by violating Civil 2 Code § 1770(a)(5) and Business & Professions Code § 17500 as described above. 3 50. Defendants’ misrepresentations and other conduct, described herein, 4 violated the “unfair” prong of the UCL in that Defendants’ conduct is substantially 5 injurious to consumers and offends public policy. 6 51. Plaintiff and the members of the Class and California Subclass have 7 suffered harm as a result of the violations of the UCL because they have incurred 8 charges and/or paid monies for Triple Double Burgers they otherwise would not 9 have incurred or paid. 10 COUNT IV 11 Unlawful Practices In Violation of California’s False Advertising Law 12 Business & Professions Code §§ 17500 et seq. 13 52. Plaintiff repeats the allegations contained in the paragraphs above as if 14 fully set forth herein. 15 53. Plaintiff Galvan brings this claim individually and on behalf of the 16 members of the proposed Class against Defendants and on behalf of the California 17 Subclass against Defendants. 18 54. California’s FAL (Bus. & Prof. Code §§17500, et seq.) makes it 19 “unlawful for any person to make or disseminate or cause to be made or 20 disseminated before the public in this state, . . . in any advertising device . . . or in 21 any other manner or means whatever, including over the Internet, any statement, 22 concerning . . . personal property or services, professional or otherwise, or 23 performance or disposition thereof, which is untrue or misleading and which is 24 known, or which by the exercise of reasonable care should be known, to be untrue or 25 misleading.” 26 55. Throughout the Class Period, Defendants committed acts of false 27 advertising, as defined by the FAL, by using false and misleading statements to 28 CLASS ACTION COMPLAINT 11
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1 promote the sale of Triple Double Burgers, as described above, and including, but 2 not limited to, representing that Triple Double Burgers contain “Double the Beef.” 3 56. Defendants knew or should have known, through the exercise of 4 reasonable care, that their statements were untrue and misleading. 5 57. Defendants’ actions in violation of the FAL were false and misleading 6 such that the general public is and was likely to be deceived. 7 58. As a direct and proximate result of these acts, consumers have been and 8 are being harmed. Plaintiff and members of the Class have suffered injury and actual 9 out-of-pocket losses as a result of Defendant’s FAL violation because: (a) Plaintiff 10 and the Class would not have purchased Triple Double Burgers if they had known 11 the true facts regarding the quantity of beef; (b) Plaintiff and the Class paid an 12 increased price due to the misrepresentations about Triple Double Burgers; and (c) 13 Triple Double Burgers did not have the promised quantity or value. 14 59. Plaintiff brings this action pursuant to Bus. & Prof. Code § 17535 for 15 injunctive relief to enjoin the practices described herein and to require Defendants to 16 issue corrective disclosures to consumers. Plaintiff and the Class are therefore 17 entitled to: (a) an order requiring Defendants to cease the acts of unfair competition 18 alleged herein; (b) full restitution of all monies paid to Defendants as a result of their 19 deceptive practices; (c) interest at the highest rate allowable by law; and (d) the 20 payment of Plaintiff’s attorneys’ fees and costs pursuant to, inter alia, California 21 Code of Civil Procedure §1021.5. 22 COUNT V 23 Fraud 24 60. Plaintiff incorporates by reference and re-alleges herein all paragraphs 25 alleged above. 26 61. Plaintiff brings this claim individually and on behalf of the members of 27 the proposed Class and Subclasses against Defendants. 28 CLASS ACTION COMPLAINT 12
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1 62. As discussed above, Defendants provided Plaintiff and Class members 2 with false or misleading material information and failed to disclose material facts 3 about Triple Double Burgers, including but not limited to the fact that Triple Double 4 Burgers do not contain “double” the beef. 5 63. The misrepresentations and omissions made by Defendants, upon which 6 Plaintiff and Class members reasonably and justifiably relied, were intended to 7 induce and actually induced Plaintiff and Class members to purchase Triple Double 8 Burgers. 9 64. The fraudulent actions of Defendants caused damage to Plaintiff and 10 Class members, who are entitled to damages and other legal and equitable relief as a 11 result. 12 COUNT VI 13 Unjust Enrichment 14 65. Plaintiff incorporates by reference and re-allege herein all paragraphs 15 alleged above. 16 66. Plaintiff brings this claim individually and on behalf of the members of 17 the proposed Class and Subclasses against Defendants. 18 67. Plaintiff and Class members conferred benefits on Defendants by 19 purchasing the Triple Double Burgers. 20 68. Defendants hve been unjustly enriched in retaining the revenues derived 21 from Plaintiff and Class members’ purchases of Triple Double Burgers. Retention of 22 those moneys under these circumstances is unjust and inequitable because Defendant 23 misrepresented that Triple Double Burgers contained “Double the Beef.” These 24 misrepresentations caused injuries to Plaintiff and Class members because they 25 would not have purchased Triple Double Burgers if the true facts were known. 26 69. Because Defendants’ retention of the non-gratuitous benefits conferred 27 on them by Plaintiff and Class members is unjust and inequitable, Defendants must 28 CLASS ACTION COMPLAINT 13
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1 pay restitution to Plaintiff and Class members for its unjust enrichment, as ordered 2 by the Court. 3 PRAYER FOR RELIEF 4 WHEREFORE, Plaintiff, individually and on behalf of all others similarly 5 situated, seek judgment against Defendants, as follows: 6 a. For an order certifying the nationwide Class and the Subclass under 7 Rule 23 of the Federal Rules of Civil Procedure and naming Plaintiff as 8 representative of the Class and Subclasses and Plaintiff’s attorneys as 9 Class Counsel to represent the members of the Class and Subclass; 10 b. For an order declaring the Defendants’ conduct violates the statutes 11 referenced herein; 12 c. For an order finding in favor of Plaintiff, the nationwide Class, and the 13 Subclass on all counts asserted herein; 14 d. For compensatory and punitive damages in amounts to be determined 15 by the Court and/or jury; 16 e. For prejudgment interest on all amounts awarded; 17 f. For an order of restitution and all other forms of equitable monetary 18 relief; 19 g. For an order requiring Defendants to undertake a corrective advertising 20 campaign; 21 h. For injunctive relief as pleaded or as the Court may deem proper; 22 i. For an order awarding Plaintiff and the Class and Subclass their 23 reasonable attorneys’ fees and expenses and costs of suit; and 24 j. Granting such other and further relief as may be just and proper. 25 DEMAND FOR TRIAL BY JURY 26 Plaintiff demands a trial by jury of all issues so triable. 27 28 CLASS ACTION COMPLAINT 14
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1 Dated: February 8, 2019 BURSOR & FISHER, P.A.
2 By: /s/ Blair E. Reed 3 L Timothy Fisher (State Bar No. 191626) 4 Blair E. Reed (State Bar No.316791) 1990 North California Blvd., Suite 940 5 Walnut Creek, CA 94596 Telephone: (925) 300-4455 6 Facsimile: (925) 407-2700 E-mail: [email protected] 7 [email protected]
8 REICH RADCLIFFE & HOOVER LLP 9 Marc G. Reich (State Bar No. 159936) Adam T. Hoover (State Bar No. 243226) 10 4675 MacArthur Court, Suite 550 Newport Beach, CA 92660 11 Telephone: (949) 975-0512 Facsimile: (949) 975-0514 12 E-mail: [email protected] 13 [email protected]
14 Attorneys for Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 15
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1 CLRA Venue Declaration Pursuant to California Civil Code Section 1780(d) 2 I, Blair E. Reed, declare as follows: 3 1. I am an attorney at law licensed to practice in the State of California and 4 a member of the bar of this Court. I am an Associate at Bursor & Fisher, P.A., 5 counsel of record for Plaintiff Andre Galvan in this action. Plaintiff Andre Galvan 6 resides in Agoura Hills, California. I have personal knowledge of the facts set forth 7 in this declaration and, if called as a witness, I could and would competently testify 8 thereto under oath. 9 2. The Complaint filed in this action is filed in the proper place for trial 10 under Civil Code Section 1780(d) in that a substantial portion of the events alleged 11 in the Complaint occurred in the Central District of California. 12 I declare under the penalty of perjury under the laws of the State of California 13 and the United States that the foregoing is true and correct and that this declaration 14 was executed at Walnut Creek, California this 8th day of February, 2019. 15
16 /s/ Blair E. Reed
17 Blair E. Reed 18
19 20 21 22 23 24 25 26 27 28
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EXHIBIT A 2/8/2019 Case 2:19-cv-00993 DocumentSmashburger 1 Filed Launches 02/08/19 "Triple Double"Page Burger 19 of 23 Page ID #:19
Smashburger Launches "Triple Double" Burger
NEWS PROVIDED BY Smashburger Jul 11, 2017, 09:00 ET
DENVER, July 11, 2017 /PRNewswire/ -- It's the stuff burger dreams are made of … two layers of juicy beef, three layers of melted cheese, wrapped up in an artisan bun. Smashburger is making dreams come true, adding the all-new Triple Double to its national menu on July 11, 2017.
SMASHBURGER LAUNCHES “TRIPLE DOUBLE” BURGER It’s the stuff burger dreams are made of … two layers of juicy beef, three layers of melted cheese, wrapped up in an artisan bun. Smashburger is making dreams come true, adding the all- new Triple Double to its national menu on July 11, 2017.
The Triple Double will feature two of Smashburger's famous fresh never frozen beef patties, two slices of American cheese and one slice of aged cheddar, delivering maximum burger happiness in every bite. It's Smashburger's bee est, cheesiest burger to date and will quickly become a favorite for burger lovers everywhere.
"We're giving people more of what they love. Double the juicy, caramelized beef, made-to-order and seared to perfection. And triple the cheesy goodness," said Smashburger Co-Founder & Chief Executive Of cer, Tom Ryan. "This will be Smashburger's new iconic menu item, providing three times the cheese and double the beef in every bite."
The Triple Double starts with fresh, never frozen, beef. Smashed and seared on a hot, buttered griddle, locking in the avor and juices. The highest quality cheeses are added and topped with toasted artisan buns. As with any Smashburger, you can add your favorite fresh produce, toppings and high-quality condiments. And it pairs perfectly with their incredible sides and hand-spun shakes. https://www.prnewswire.com/news-releases/smashburger-launches-triple-double-burger-300485900.html 1/2 T2/8/2019he Triple DoCaseuble w 2:19-cv-00993ill be available a Documentt all full mSmashburgere 1n u FiledUS S Launchesm 02/08/19ashb "Turiplerg e Double"rPage loca tBurger 20ion ofs o 23n J u lPagey 11, 2 0ID17 #:20. For more information on Smashburger, please visit www.smashburger.com or check us out on Facebook, Twitter, or Instagram.
About Smashburger Smashburger is a leading fast casual better burger restaurant known for its fresh never frozen, beef burgers that are smashed on the grill to sear in the juices and seal in the avor. In addition to burgers, Smashburger offers grilled or crispy chicken sandwiches, black bean burgers, fresh salads, signature side items such as Haystack onions and Veggie Frites, and hand-spun Haagen-Dazs® shakes. On each market menu, Smashburger offers locally inspired items like the regional burger, as well as regional sides and local craft beer. Smashburger began in 2007 with the vision of Rick Schaden and funding by Consumer Capital Partners—the private equity rm that Rick and his father Richard own. There are currently more than 370 corporate and franchise restaurants operating in 38 states and nine countries. To learn more, visit www.smashburger.com.
SOURCE Smashburger
Related Links http://www.smashburger.com
https://www.prnewswire.com/news-releases/smashburger-launches-triple-double-burger-300485900.html 2/2 Case 2:19-cv-00993 Document 1 Filed 02/08/19 Page 21 of 23 Page ID #:21
EXHIBIT B Case 2:19-cv-00993 Document 1 Filed 02/08/19 Page 22 of 23 Page ID #:22
1990 N. CALIFORNIA BLVD. L. T IMOTHY F ISHER SUITE 940 Tel: 925.300.4455 WALNUT CREEK, CA 94596 Fax: 925.407.2700 www.bursor.com [email protected]
February 8, 2019
Via Certified Mail - Return Receipt Requested
Smashburger IP Holder, LLC 3900 E. Mexico Ave., Ste. 1200 Denver CO 80210
Smashburger Franchising, LLC 3900 E. Mexico Ave., Ste. 1200 Denver CO 80210
Jollibee Foods Corp. 16125 East Valley Blvd. City of Industry, CA 91744
Re: Notice Letter Concerning Smashburger's “Triple Double” Burger
To Whom It May Concern:
This letter serves as a preliminary notice and demand for corrective action by Smashburger IP Holder, LLC, Smashburger Franchising, LLC and Jollibee Foods Corp. (collectively “Smashburger”), on behalf of our client Andre Galvan, and all other similarly situated persons. This letter serves as notice of breaches of warranty pursuant to U.C.C. § 2- 607(3)(A), U.C.C. §§ 2-313 & 2-314, and California warranty law. This letter also serves as notice pursuant to the California Consumers Legal Remedies Act, California Civil Code § 1782, as well as the consumer protection statutes of all other states in the United States.
In 2017, Smashburger introduced a new product to its menu: the “Triple Double” burger. Smashburger has advertised the Triple Double burger using the phrase “Double the Beef” on menus, in-store displays, and advertisements as well as on its website and social media accounts. Unfortunately, Smashburger’s “Double the Beef” representation is false. Smashburger’s regular burger, the “Classic Smash,” is made with one 5.0 ounce beef patty. The Triple Double burger, which is advertised as having “Double the Beef,” is made with two 2.5 ounce beef patties. Our client Mr. Galvan has purchased the Triple Double burger approximately 10 times in the last two years. He has seen and relied upon the representation that the Triple Double burger contains “Double the Beef.” If he had known that the “Double the Beef” representation was false, he would not have purchased the Triple Double burger.
Smashburger’s conduct with respect to the promotion and marketing of the Triple Double burger is false and misleading. By falsely representing the amount of beef in the Triple Double Case 2:19-cv-00993 Document 1 Filed 02/08/19 Page 23 of 23 Page ID #:23
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burger, Smashburger has violated and continues to violate the Consumers Legal Remedies Act, Civil Code § 1770, including but not limited to subsections (a)(5), (a)(7) and (a)(9), which prohibits representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have, representing that goods or services are of a particular standard, quality or grade, and advertising goods or services with intent not to sell them as advertised.
On behalf of our client and all other purchasers of the Triple Double burger, we hereby demand that Smashburger immediately (1) cease and desist from representing that its Triple Double burger contains “Double the Beef” and (2) make full restitution to all purchasers of the Triple Double burger of all money obtained from sales thereof.
We also demand that Smashburger preserve all documents and other evidence which refer or relate to any of the above-described practices including, but not limited to, the following:
1. All documents concerning the advertising and marketing of the Triple Double burger;
2. All documents concerning the formulation, recipe and/or ingredients of the Triple Double burger and the Classic Smash burger;
3. All documents concerning the pricing and sale of the Triple Double burger and the Classic Smash burger;
5. All communications with customers concerning complaints or comments concerning the Triple Double burger and the “Double the Beef” claim.
If you contend that any statement in this letter is inaccurate in any respect, please provide us with your contentions and supporting documents immediately upon receipt of this letter. This letter also serves as a thirty (30) day notice and demand requirement under California Civil Code § 1782 for damages. Accordingly, should Smashburger fail to rectify the situation on a class-wide basis within 30 days of receipt of this letter, we will seek actual damages, plus punitive damages, interest, attorneys’ fees and costs.
Please contact me immediately if you wish to discuss an appropriate way to remedy this matter. If I do not hear from you promptly, I will take that as an indication that you are not interested in doing so.
Very truly yours,
L. Timothy Fisher