Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 1 of 21 1 2 3 4 5 6 7 8 Kazerouni Law Group, APC 9 10 11 12 13 14 15 KAZEROUNI LAW GROUP, APC Abbas Kazerounian, Esq. (SBN: 249203) ak@kazlg.com Jason A. Ibey, Esq. (SBN: 284607) jason@kazlg.com 245 Fischer Avenue, Suite D1 Costa Mesa CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 HYDE & SWIGART Joshua B. Swigart, Esq. (SBN: 225557) josh@westcoastlitigation.com 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Attorneys for Plaintiff, Gregory Montegna UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 16 17 18 19 20 GREGORY MONTEGNA, Individually and On Behalf of All Others Similarly Situated, Plaintiff, vs. 21 22 23 24 VEMMA NUTRITION COMPANY, Defendant. 25 '13CV2731 MMA RBB CLASS ACTION Case No.: COMPLAINT FOR: 1. VIOLATIONS OF CALIFORNIA CIVIL CODE §§ 1747 et seq.; 2. VIOLATIONS OF CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200 et seq.; AND, 3. VIOLATIONS OF CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17600 et seq. 26 27 JURY TRIAL DEMANDED 28 CLASS ACTION COMPLAINT Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 2 of 21 INTRODUCTION Kazerouni Law Group, APC 1 2 1. This is a California statewide class action complaint brought by 3 GREGORY MONTEGNA (“Mr. Montegna” or “Plaintiff”), individually 4 and on behalf of all others similarly situated, to challenge the actions of 5 VEMMA NUTRITION COMPANY (“Vemma” or “Defendant”) with 6 regard to Defendant’s fraudulent, deceitful and unfair business practices 7 regarding the sale of its consumable products to Plaintiff and others 8 similarly situated during the four years leading up to the filing of this 9 action. 10 2. Unless otherwise indicated, the use of any Defendant’s name in this 11 Complaint includes all agents, employees, officers, members, directors, 12 heirs, successors, assigns, principals, trustees, sureties, subrogees, 13 representatives and insurers of the named Defendant. 14 NATURE OF ACTION 15 3. Plaintiff is informed and believes, and thereupon alleges, that Vemma is a 16 company that is in this business of selling consumable liquids within the 17 class of beverages known in the beverage industry as “energy drinks,” 18 including Verve Energy Drink. 19 4. Vemma advertises and sells energy drinks and similar products called 20 “Verve” directly via its own website, including Verve Energy Drink, Bold 21 Energy, Partea, Zero Sugar and Energy Shot (“Verve Product”). 22 5. Vemma reportedly reached $20 million in sales in the month of July 2013. 23 See http://www.prnewswire.com/news-releases/vemma-doubles-sales-in-12- 24 months-218732251.html (“Vemma Nutrition Company announced that sales 25 reached $20 million per month in July, a first-ever record for the company. 26 After taking seven years to reach the $10 million monthly sales mark in July 27 2012, Vemma has now doubled that to $20 million a month just 12 months 28 later. In addition, Vemma monthly customer and Brand Partner enrollments CLASS ACTION COMPLAINT PAGE 1 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 3 of 21 1 reached the 30,000 mark for the first time in July. This growth continues to 2 be driven by the $100 million Verve healthy energy drink brand, including 3 the release of Verve Bold this past January, which sparked record-breaking 4 sales and became the most successful product launch in the company's 5 history, selling over four million cans in the first five months.”), accessed 6 November 5, 2013. 7 6. As part of Vemma’s business practice, once a consumer purchases its Verve 8 Product via Vemma’s online website, Vemma knowingly or negligently, and 9 without prior disclosure, charges consumers for additional Verve Product 10 that they did not purchase or agree to purchase. 11 7. The Federal Trade Commission has received numerous complaints about 12 Vemma, which include complaints of unauthorized credit card charges, 13 according to www.Truthinadvertising.com, published July 9, 2013. See 14 https://www.truthinadvertising.org/eight-things-you-should-know-about- 15 vemma/, accessed November 5, 2013. 16 8. Defendant’s conduct as alleged herein violates several California State laws. 17 9. This action seeks, among other things, equitable and injunctive relief; 18 restitution of all amounts illegally retained by Defendant; and disgorgement 19 of all ill-gotten profits from Defendant’s wrongdoing alleged herein. 20 JURISDICTION AND VENUE 21 22 23 24 25 26 27 28 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a), as the matter in controversy, exclusive of interest and costs, exceeds the sum or value of $75,000 and is a class action in which the named Plaintiff is a citizen of a State different from Defendant. 11. This Court has personal jurisdiction over Defendant because Defendant does business in the State of California, is incorporated in the State of Arizona, has sufficient minimum contacts with California, and otherwise CLASS ACTION COMPLAINT PAGE 2 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 4 of 21 1 purposely avails itself of the markets in California through the promotion, 2 sale, and marketing of its products in this state, to render the exercise of 3 jurisdiction by this Court permissible under traditional notions of fair play 4 and substantial justice. 5 12. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2), in that 6 Plaintiff resides within the judicial district and many of the acts and 7 transactions giving rise to this action occurred in this district because 8 Defendant: Kazerouni Law Group, APC 9 10 11 12 13 14 15 (a) is authorized to conduct business in this district and has intentionally availed itself of the laws and markets within this district; (b) does substantial business in this district; (c) is subject to personal jurisdiction in this district; (d) the harm to Plaintiff occurred within this district; and, (e) the product at issue was shipped to Plaintiff. 16 PARTIES 17 18 19 13. Plaintiff is, and at all relevant times was, a natural person residing in the State of California, County of San Diego. 20 14. Plaintiff is informed and believes, and thereon alleges, that Defendant is 21 incorporated under the laws of the State of Arizona with its principal place 22 of business in Arizona, and does business within the State of California and 23 within this judicial district. 24 25 FACTUAL ALLEGATIONS 26 15. On or about January 30, 2013, an individual authorized to conduct a credit 27 card transaction on Mr. Montegna’s behalf, purchased, under the name of 28 Salvador Valdez, twelve cans of Verve Energy Drink directly from CLASS ACTION COMPLAINT PAGE 3 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 5 of 21 1 Vemma’s online website for $50.04 ($38.00 for the product, and $12.04 in 2 shipping and taxes). 3 16. On March 1, 2013, Mr. Montegna was once again billed $50.04 for 4 Vemma product. Neither Plaintiff nor Mr. Valdez placed this order, nor did 5 either individual authorize such charge on Plaintiff’s credit card. 6 17. Shortly thereafter, Mr. Montegna emailed Defendant notifying Defendant 7 of the unauthorized additional charges. The email was sent to Defendant via 8 the Defendant’s own email notification system built within the Defendant’s 9 website. As of the date of the filing of this Complaint, Vemma has yet to 10 respond to Mr. Montegna’s email regarding the unauthorized purchases. 11 18. Defendant, while ignoring Mr. Montegna’s email, subsequently once again 12 billed Mr. Montegna $50.04 on March 30, 2013, and April 30, 2013, for 13 Vemma product that Mr. Montegna did not purchase or agree to purchase. 14 19. Mr. Montegna has suffered monetary damages as a direct and proximate 15 result of Defendant’s abusive and deceptive conduct. 16 20. Defendant seeks to capitalize on consumers’ ignorance in charging 17 consumers for additional Verve Product that they did not agree to purchase, 18 including Verve Energy Drink purchased by Plaintiff via Defendant’s 19 website. 20 21 22 23 I. FIRST CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CIVIL CODE §§ 1747.60 ET SEQ. 21. Plaintiff repeats, re-alleges and incorporates herein by reference the above allegations as if set forth fully herein. 24 22. California Civil Code § 1747.02(e) defines a “Retailer” as follows: “every 25 person other than a card issuer who furnished money, goods, services, or 26 anything else of value upon presentation of a credit card by a cardholder.” 27 23. Pursuant to California Civil Code § 1747.02(e), Vemma is a Retailer of a 28 class of beverages called “energy drinks.” CLASS ACTION COMPLAINT PAGE 4 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 6 of 21 1 24. California Civil Code § 1747.60(a) requires Retailers to “correct any 2 billing error made by the retailer within 60 days from the date on which an 3 inquiry concerning a billing error was mailed.” 4 25. As of the date of the drafting of this Complaint, Vemma has willfully or 5 negligently ignored Mr. Montegna’s requests for the billing errors described 6 above to be corrected. 7 26. According to California Civil Code § 1747.60(b), “Any retailer who fails 8 to correct a billing error made by the retailer within the period proscribed 9 by subdivision (a) shall be liable to the cardholder in the amount by which 10 the outstanding balance of the cardholder’s account is greater than the 11 correct balance, and any interest, finance charges, service charges, or other 12 charges on the obligation giving rise to the billing error. 13 27. California Civil Code § 1747.60(c) also allows “Any cardholder who is 14 injured by a willful violation of this section may bring an action for the 15 recovery of damages. Judgment may be entered for three times the amount 16 at which actual damages are assessed. The cardholder shall be entitled to 17 recover reasonable attorney's fees and costs incurred in the action.” 18 28. 28 U.S.C. § 1961 permits a plaintiff to recover postjudgment interest, as 19 “Interest shall be allowed on any money judgment in a civil case recovered 20 in a district court… Such interest shall be calculated from the date of the 21 entry of judgment, at a rate equal to the weekly average 1-year constant 22 maturity Treasury yield, as published by the Board of Governors of the 23 Federal Reserve System…” 24 29. As a proximate result of Defendant’s willful violations of California Civil 25 Code § 1747, Plaintiff is entitled to actual and statutory damages at three 26 times the amount at which such damages are assessed, statutory post- 27 judgment interest, attorney’s fees and costs, and such other relief as the 28 Court determines is reasonable and appropriate. CLASS ACTION COMPLAINT PAGE 5 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 7 of 21 1 II. SECOND CAUSE OF ACTION FOR VIOLATION OF CAL. BUS. & PROF. CODE §§ 17600 ET SEQ. 2 3 Kazerouni Law Group, APC 4 30. Plaintiff repeats, re-alleges and incorporates herein by reference the above allegations as if set forth fully herein. 5 31. California Business and Professions Code §§ 17600 et seq. prohibits 6 automatic renewal of consumer credit or debit cards without the consumer’s 7 explicit consent for ongoing shipments of a product or ongoing deliveries of 8 services. 9 32. “Automatic renewal” means a plan or arrangement in which a paid 10 subscription or purchasing agreement is automatically renewed at the end of 11 a definite term for a subsequent term. 12 33. California Business and Professions Code §§ 17600 et seq. requires 13 companies to clearly and conspicuously disclose the terms of the automatic 14 renewal offer in visual proximity to the request for consent to the offer. 15 Such terms should include information that the subscription will continue 16 until the consumer cancels, a description of the cancelation policy, 17 information about the recurring charges, the length of the renewal term, and 18 the minimum purchase obligation, if any. 19 34. California Business and Professions Code §§ 17600, et seq. also requires a 20 company to obtain a consumer’s affirmative consent to the terms of the 21 automatic renewal service and must provide a cost-effective, timely and 22 easy to use method for canceling the automatic renewal service. 23 35. Defendant has engaged in deceptive practices that are in direct violation of 24 California Business and Professions Code §§ 17600, et seq. by willfully or 25 negligently failing to not only obtain Plaintiff’s consent to the automatic 26 renewal subscription services, but 1) failing to notify Plaintiff that by way 27 of ordering Verve Energy Drink that Plaintiff was thereby subscribing to 28 Vemma’s automatic renewal services; 2) failing to provide an easy way for CLASS ACTION COMPLAINT PAGE 6 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 8 of 21 1 customers to opt out of the subscription, and 3) willfully or negligently 2 ignoring Plaintiff’s request for the subscription to cease. 3 36. Defendant has willfully or negligently ignored Mr. Montegna’s request for 4 the automatic renewal of Verve Energy Drink to discontinue being shipped 5 to Mr. Montegna and charged to Mr. Montegna’s credit card. 6 37. Defendant has willfully or negligently shipped and charged Mr. Montegna 7 for at least two additional cases of Verve Energy Drink that Mr. Montegna 8 did not consent to purchasing. Pursuant to California Business and 9 Professions Code § 17603, said products are therefore deemed an 10 “unconditional gift.” 11 38. Such conduct by Defendant was part of its business policy and/or practice 12 to rapidly increase its profits, and therefore, Defendant was not acting in 13 good faith. 14 39. As a proximate result of Defendant’s willful violations of California 15 Business and Professions Code §§ 17600, et seq., including § 17535, which 16 applies to § 17600, Plaintiff is entitled to all relief permitted under 17 California Business and Professions Code, including but not limited to 18 “…such orders or judgments…which may be necessary to restore any 19 person in interest any money or property, real or personal, which may have 20 been acquired by means of any practice in this chapter declared to be 21 unlawful.” 22 23 24 25 26 III. THIRD CAUSE OF ACTION FOR VIOLATION OF CAL. BUS. & PROF. CODE §§ 17200 ET SEQ. (California’s Unfair Competition Law) 40. Plaintiff repeats, re-alleges and incorporates herein by reference the above allegations as if fully stated herein. 27 41. “Unfair competition” is defined in Business and Professions Code Section 28 § 17200 as encompassing any one of the five types of business “wrongs,” CLASS ACTION COMPLAINT PAGE 7 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 9 of 21 1 three of which are at issue here: (1) an “unlawful” business act or practice; 2 (2) an “unfair” business act or practice; and (3) a “fraudulent” business act 3 or practice. The definitions in § 17200 are disjunctive, meaning that each of 4 these five “wrongs,” of which Plaintiff alleges three of them, operates 5 independently from the others. 6 42. Plaintiff and Defendant are both “person[s]” as defined by California 7 Business & Professions Code § 17201. Section 17204 authorizes a private 8 right of action on both an individual and representative basis. a. “Unlawful” Prong Kazerouni Law Group, APC 9 10 43. Because Defendant has violated California Civil Code § 1747.60 and 11 California Business & Professions Code § 17600, as described below, 12 Defendant has violated California’s Unfair Competition Law, Business & 13 Professions Code §§ 17200 et seq., which provides a cause of action for an 14 “unlawful” business act or practice perpetrated on members of the 15 California public. 16 44. There were reasonably available alternatives to further Defendant’s 17 legitimate business interest, other than the conduct described herein, such as 18 expressly and clearly indicating in its advertising and on its website that it 19 intended to and would charge consumers for additional product after the 20 consumers one-time purchase of Verve Product from Defendant’s website 21 prior to making such charges, or alternatively, by not charging consumers 22 for additional Verve Product that the consumers did not purchase or agree 23 to purchase. 24 45. Plaintiff and the putative class reserve the right to allege other violations of 25 law, which constitute other unlawful business practices or acts, as such 26 conduct is ongoing and continues to this date. 27 /// 28 /// CLASS ACTION COMPLAINT PAGE 8 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 10 of 21 1 2 3 4 Kazerouni Law Group, APC 5 b. “Unfair” Prong 46. Defendant’s actions and representations constitute an “unfair” business act or practice under § 17200, in that Defendant’s conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct outweighs any 6 alleged benefits attributable to such conduct. Without limitation, it is an 7 unfair business act or practice for Defendant to knowingly or negligently 8 charge consumers for product that they did not purchase or agree to 9 purchase. 10 47. Such conduct by Defendant is “unfair” because it offends established 11 public policy and/or is immoral, unethical, oppressive, unscrupulous and/or 12 substantially injurious to consumers in that consumers are charged for 13 product they did not purchase or agree to purchase for Defendant’s 14 economic gain, at the expense of Plaintiff and the consuming public at 15 large. 16 48. At a date presently unknown to Plaintiff, but at least four years prior to the 17 filing of this action, and as set forth above, Defendant has committed acts of 18 unfair competition as defined by Business & Professions Code §§ 17200 et 19 seq., by charging consumers without prior disclosure or warning for 20 additional product that the consumers did not purchase or agree to purchase, 21 as described herein. 22 49. Plaintiff and other members of the class could not reasonably have avoided 23 the injury suffered by each of them. Plaintiff reserves the right to allege 24 further conduct that constitutes other unfair business acts or practices. Such 25 conduct is ongoing and continues to this date. 26 50. Defendant could have and should have furthered its legitimate business 27 interests by expressly and clearly indicating in its advertising and on its 28 website that it intended to and would charge consumers for additional CLASS ACTION COMPLAINT PAGE 9 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 11 of 21 1 Verve Product after the consumers one-time purchase of verve from 2 Defendant’s website prior to making such charges, or alternatively, by not 3 charging consumers for additional Verve Product the consumers did not 4 purchase or agree to purchase. c. “Fraudulent” Prong Kazerouni Law Group, APC 5 6 51. Defendant’s representations and omissions were false, misleading and/or 7 likely to deceive the consuming public within the meaning of § 17200. 8 Without limitation, it is a fraudulent act or business act or practice for 9 Defendant to knowingly charge consumers for additional product that the 10 consumers did not purchase or agree to purchase, without prior disclosure 11 or warning of any kind that the consumers would be opted into Defendant’s 12 automatic renewal program by making a one-time purchase via Defendant’s 13 website for Verve Product. 14 52. Defendant’s calculated decision to enroll consumers in its automatic 15 renewal program without their knowledge or consent was for Defendant’s 16 economic gain at the expense of Plaintiff and the consuming public at large, 17 and is the means by which Defendant is able to boast of sales as high as $20 18 million dollars in the month of July 2013. 19 53. Defendant counted on its individual customers’ failure to review monthly 20 credit card billing statements for repeat orders of Verve Product that the 21 individual consumers did not purchase or agree to purchase. 22 54. Even after Plaintiff had informed Defendant in writing that that certain 23 repeat charges for Verve Energy Drink on Plaintiff’s credit card were not 24 authorized, Defendant chose not to respond to Plaintiff or correct 25 Defendant’s misconduct. 26 55. Plaintiff reserves the right to allege further conduct that constitutes other 27 fraudulent business acts or practices. Such conduct is ongoing and 28 continues to this date. CLASS ACTION COMPLAINT PAGE 10 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 12 of 21 1 56. The fraudulent, unlawful and unfair business practices of Defendant, as 2 described above, presents a continuing threat to consumers in that they will 3 continue to be charged for additional product that the consumers did not 4 purchase or agree to purchase. 5 57. As a direct and proximate result of the aforementioned acts and 6 representations of Defendant, Defendant received and continues to hold 7 monies rightfully belonging to Plaintiff and other similarly situated 8 consumers who were charged for additional product that the consumers did 9 not purchase or agree to purchase from Defendant. 10 58. Thus, Defendant caused Plaintiff and other members of the Class to be 11 charged for Verve Product the consumers did not purchase or agree to 12 purchase during the Class Period. 13 59. Defendant has engaged in unlawful, unfair and fraudulent business acts or 14 practices, entitling Plaintiff to judgment and equitable relief against 15 Defendant, as set forth in the Prayer for Relief. Pursuant to Business & 16 Professions Code § 17203, as a result of each and every violation of the 17 UCL, which are continuing, Plaintiff is entitled to restitution and injunctive 18 relief against Defendant, as set forth in the Prayer for Relief. 19 60. Similarly, Cal. Bus. & Prof. Code § 17535 “authorizes injunctive relief and 20 restitution for violations of the false advertising provision,”1 specifically § 21 17200. 22 61. Plaintiff and members of the putative class have suffered injury in fact and 23 have lost money or property as a result of Defendant’s unfair competition, 24 as more fully set forth herein. Plaintiff and members of the putative class 25 have been injured because they were charged, by Defendant, for additional 26 Verve Product the consumers did not purchase or agree to purchase. 62. Defendant, through its acts of unfair competition, has unfairly acquired 27 28 1 Freedman v. Time, Inc., 68 F.3d 285, 288-89 (9th Cir. 1995). CLASS ACTION COMPLAINT PAGE 11 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 13 of 21 1 money from Plaintiff and members of the putative class. It is impossible for 2 the Plaintiff to determine the exact amount of money that Defendant has 3 obtained without a detailed review of the Defendant’s books and records. 4 Plaintiff requests that this Court restore this money to compensate Plaintiff 5 and the putative class members and deter Defendant from continuing to 6 violate California Business & Professions Code § 17200 et seq., as 7 discussed above. 8 63. Unless Defendant is enjoined from continuing to engage in the unlawful, 9 unfair, fraudulent, untrue, and deceptive business acts and practices as 10 described herein, consumers residing within California, will continue to be 11 exposed to and damaged by Defendant’s unfair competition. 12 64. Plaintiff also seeks an order requiring Defendant to undertake a public 13 information campaign to inform members of the putative class of its prior 14 acts or practices in violation of the law as alleged herein. 15 65. Plaintiff further seeks an order requiring Defendant to make full restitution 16 of all moneys wrongfully obtained and disgorge all ill-gotten revenues 17 and/or profits, together with interest thereupon. 18 19 66. Plaintiff also seeks attorneys’ fees and costs pursuant to, inter alia, California Civil Code § 1021.5. 20 21 22 23 24 25 26 CLASS ACTION ALLEGATIONS 67. Plaintiff repeats, re-alleges and incorporates herein by reference the above allegations as if set forth fully herein. 68. Plaintiff and the members of the Class have all suffered injury in fact as a result of the Defendant’s unlawful and misleading conduct. 69. The “Class Period” means four years prior to filing of the Complaint in this action. 27 70. The term “Builder Pack” refers to large quantity packs containing Verve 28 Energy Drink (48 cans), Bold Energy (48 cans), Partea (24 cans), Zero CLASS ACTION COMPLAINT PAGE 12 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 14 of 21 1 Sugar (24 cans) and Energy Shot (24 bottles), as well as a single Vemma 2 Success Kit, which packs are intended for retail sales and subject to 3 Defendant’s disclosed “Auto-delivery” program. 4 71. Plaintiff brings this lawsuit on behalf of himself and other California 5 consumers similarly situated under Rule 23(b)(2) and (b)(3) of the Federal 6 Rules of Civil Procedure for violation of California Civil Code § 1747.60 et 7 seq. and California Business & Professions Code § 17200 et seq. Subject to 8 additional information obtained through further investigation and/or 9 discovery, the proposed “Class” consists of: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 All persons in California who purchased Verve Product from Defendant’s online website, other than a Builder Pack, who were subsequently charged for additional Verve Product without placing a subsequent order and/or consenting to subsequent charge/s, within four years prior to the filing of the Complaint in this action. 72. Excluded from the Class are Defendant and any of its officers, directors, and employees, or anyone who purchased Verve Product for the purposes of resale, such as the Builder Pack. Plaintiff reserves the right to modify or amend the Class definition before the Court determines whether certification is appropriate. 73. Plaintiff and the members of the Subclass have all suffered injury in fact as a result of the Defendant’s unlawful and misleading conduct. 74. Plaintiff also brings this lawsuit on behalf of himself and the other California consumers similarly situated under Rule 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure for violation of California Business & Professions Code § 17600 et seq. and § 17200 et seq. Subject to additional information obtained through further investigation and/or discovery, the proposed “Subclass” consists of: All persons in California who purchased Verve Product CLASS ACTION COMPLAINT PAGE 13 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 15 of 21 1 2 3 4 5 6 from Defendant’s online website, other than a Builder Pack, who were subsequently charged for additional Verve Product without placing a subsequent order and/or consenting to subsequent charge/s, and who requested in writing that Defendant refund such charges and/or correct such billing error, which charges were not refunded within sixty days of the mailing and/or electronic submission of the written request, within four years prior to the filing of the Complaint in this action. Kazerouni Law Group, APC 7 8 75. Excluded from the Subclass are Defendant and any of its officers, 9 directors, and employees, or anyone who purchased Verve Product for the 10 purposes of resale, such as the Builder Pack. Plaintiff reserves the right to 11 modify or amend the Subclass definition before the Court determines 12 whether certification is appropriate. 13 76. Ascertainability. The members of the Class are readily ascertainable by 14 resort to Defendant’s records and/or Defendant’s agent’s records regarding 15 retail and online sales, as well as through public notice. 16 77. Numerosity. The members of the Class and Subclass are so numerous that 17 their individual joinder is impracticable. Plaintiff is informed and believes, 18 and on that basis alleges, that the proposed class contains tens of thousands 19 of members. 20 78. Existence and Predominance of Common Questions of Law and Fact. 21 Common questions of law and fact exist as to all members of the Class and 22 Subclass predominate over any questions affecting only individual Class 23 and Subclass members. All members of the Class and Subclass have been 24 subject to the same conduct and their claims are based on the standardized 25 practice of charging consumers for additional product they did not purchase 26 or agree to purchase. The common legal and factual questions include, but 27 are not limited to, the following: 28 (a) Whether Defendant disclosed that it intended to or would CLASS ACTION COMPLAINT PAGE 14 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 16 of 21 1 charge consumers for additional Verve Product after the 2 consumers purchased Verve Product via Defendant’s online 3 website; 4 Whether Defendant charged consumers for Verve Product they 5 did not purchase or agree to purchase after the consumers 6 made a one-time purchase of Verve Product via Defendant’s 7 online website, other than a Builder Pack; 8 Kazerouni Law Group, APC (b) (c) Whether Defendant charged consumers for Verve Product that 9 they did not purchase or agree to purchase after the consumers 10 made a one-time purchase of Verve Product via Defendant’s 11 online website, other than a Builder Pack, and then failed to 12 refund such charges after consumers made a written request to 13 refund such charges or correct such billing error, within sixty 14 days of the mailing or electronic submission of such writing; 15 (d) Whether Defendant’s conduct is an unlawful act or practice 16 within the meaning of California Business & Professions Code 17 § 17200; 18 (e) Whether Defendant’s conduct is a deceptive act or practice 19 within the meaning of California Business & Professions Code 20 § 17200; 21 (f) Whether Defendant’s conduct is an unfair act or practice 22 within the meaning of California Business & Professions Code 23 § 17200; 24 (g) 1747.60; 25 26 (h) Whether Defendant’s conduct violated Business & Professions Code § 17600; 27 28 Whether Defendant’s conduct violated California Civil Code (i) Whether Defendant, through its conduct, received money that, CLASS ACTION COMPLAINT PAGE 15 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 17 of 21 1 in equity and good conscience, belongs to Plaintiff and 2 members of the Class and Subclass; 3 Whether Plaintiff and proposed members of the Class and 4 Subclass are entitled to actual and compensatory damages at 5 three times the amount at which actual damages are assessed. 6 (k) Whether Plaintiff and proposed members of the Class and 7 Subclass are entitled to equitable relief, including but not 8 limited to restitution and/or disgorgement; and 9 Kazerouni Law Group, APC (j) (l) Subclass are entitled to injunctive relief sought herein. 10 11 Whether Plaintiff and proposed members of the Class and (m) Whether Plaintiff and proposed members of the Class and 12 Subclass are entitled to punitive damages as a result of 13 Defendant’s unlawful acts and/or conduct. 14 (n) Whether Plaintiff and proposed members of the Class and 15 Subclass are entitled to attorneys’ fees and costs incurred in the 16 action. 17 (o) Whether Plaintiff and proposed members of the Class and 18 Subclass are entitled to post-judgment interest. 19 79. Typicality. Plaintiff’s claims are typical of the claims of the members of 20 the Class and Subclass in that Plaintiff is a member of the Class and 21 Subclass Plaintiff seeks to represent. Plaintiff, like members of the 22 proposed Class, purchased Verve Product via Defendant’s online website 23 and was subsequently charged for Verve Product that he did not purchase or 24 agree to purchase. Also, Plaintiff, like members of the proposed Subclass, 25 purchased Verve Product via Defendant’s online website and was 26 subsequently charged for Verve Product that he did not purchase or agree to 27 purchase, and was not refunded those charges after requesting in writing a 28 refund or correction of the billing error within sixty days of the mailing or CLASS ACTION COMPLAINT PAGE 16 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 18 of 21 1 submission of the writing. Thus, Plaintiff is advancing the same claims and 2 legal theories on behalf of himself and all absent members of the Class and 3 Subclass. Defendant has no defenses unique to the Plaintiff. 4 80. Adequacy of Representation. Plaintiff will fairly and adequately protect 5 the interests of the members of the Class and Subclass. Plaintiff has retained 6 counsel experienced in consumer protection law, including consumer class 7 action lawsuits. Plaintiff has no adverse or antagonistic interest to those in 8 the Class and Subclass, and will fairly and adequately protect the interests 9 of the Class and Subclass. Plaintiff’s attorneys are aware of no interests 10 adverse or antagonistic to those of the Plaintiff and proposed Class and 11 Subclass. 12 81. Superiority. A class-action is superior to all other available means for the 13 fair and efficient adjudication of this controversy. Individualized litigation 14 would create the danger of inconsistent or contradictory judgments arising 15 from the same set of facts. Individualized litigation would also increase the 16 delay and expense to all parties and court system and the issues raised by 17 this action. The damages or other financial detriment suffered by individual 18 Class and Subclass members may be relatively small compared to the 19 burden and expense that would be entailed by individual litigation of the 20 claims against the Defendant. The injury suffered by each individual 21 member of the proposed class is relatively small in comparison to the 22 burden and expense of individual prosecution of the complex and extensive 23 litigation necessitated by Defendant’s conduct. It would be virtually 24 impossible for members of the proposed Class to individually redress 25 effectively the wrongs to them. Even if the members of the proposed Class 26 and Subclass could afford such litigation, the court system could not. 27 Individualized litigation increases the delay and expense to all parties, and 28 to the court system, presented by the complex legal and factual issues of the CLASS ACTION COMPLAINT PAGE 17 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 19 of 21 1 case. By contrast, the class action device presents far fewer management 2 difficulties, and provides the benefits of single adjudication, economy of 3 scale, and comprehensive supervision by a single court. Therefore, a class 4 action is maintainable pursuant to Fed. R. Civ. P. 23(b)(3). 5 82. Unless a Class and Subclass is certified, Defendant will retain monies 6 received as a result of Defendant’s unlawful and deceptive conduct alleged 7 herein. Unless a class-wide injunction is issued, Defendant will also likely 8 continue to charge consumers for Verve Product that the consumers did not 9 purchase or agree to purchase, and members of the Class and Subclass will 10 continue to be misled, harmed, and denied their rights under California law. 11 83. Further, Defendant has acted or refused to act on grounds that are generally 12 applicable to the class so that declaratory and injunctive relief is appropriate 13 to the Class and Subclass as a whole, making class certification appropriate 14 pursuant to Fed. R. Civ. P. 23(b)(2). 15 PRAYER FOR RELIEF 16 WHEREFORE, Plaintiff prays that judgment be entered against Defendant, and 17 Plaintiff, the Class and Subclass members be awarded damages from Defendant as 18 follows: 19 a. Certifying the Class and Subclass as requested herein; 20 b. A temporary, preliminary and/or permanent order for injunctive relief 21 requiring Defendant to: (i) discontinue its practice of charging 22 consumers for Verve Product that they did not purchase or agree to 23 purchase; and (ii) undertake an immediate public information campaign 24 to inform members of the proposed class as to their prior practices; 25 c. An order requiring imposition of a constructive trust and and/or 26 disgorgement of Defendant’s ill-gotten gains and to pay restitution to 27 Plaintiff and all members of the Class and Subclass and to restore to the 28 plaintiff and members of the class all funds acquired by means of any act CLASS ACTION COMPLAINT PAGE 18 OF 20 Kazerouni Law Group, APC Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 20 of 21 1 or practice declared by this court to be an unlawful, fraudulent or unfair 2 business act or practice, in violation of laws, statutes or regulations, or 3 constituting unfair competition; 4 d. Distribution of any monies recovered on behalf of members of the Class 5 and Subclass via fluid recovery or cy pres recovery were necessary and as 6 applicable, to prevent Defendant from retaining the benefits of their 7 wrongful conduct; 8 e. Statutory post-judgment interest pursuant to 28 U.S.C. § 1961; 9 f. Special, general, and compensatory damages to Plaintiff and the Class and Subclass; 10 g. Exemplary and/or punitive damages for fraudulent conduct pursuant to, 11 inter alia, Cal. Civ. Code § 3294; 12 13 h. Treble damages for willful violation of California Civil Code § 1747.60; 14 i. Costs of this suit; 15 j. Reasonable attorneys’ fees pursuant to, inter alia, California Code of Civil Procedure § 1021.5, and § 1747.60; and 16 k. Awarding any and all other relief that this Court deems necessary or 17 appropriate. 18 19 Dated: November 13, 2013 KAZEROUNI LAW GROUP, APC 20 BY: /S/ ABBAS KAZEROUNIAN ABBAS KAZEROUNIAN, ESQ. 21 ATTORNEYS FOR PLAINTIF 22 23 /// 24 /// 25 /// 26 27 /// 28 /// CLASS ACTION COMPLAINT PAGE 19 OF 20 Case 3:13-cv-02731-MMA-RBB Document 1 Filed 11/14/13 Page 21 of 21 TRIAL BY JURY 1 2 84. Pursuant to the seventh amendment to the Constitution of the United 3 States of America, Plaintiff is entitled to, and demands, a trial by jury. 4 5 Dated: November 13, 2013 6 KAZEROUNI LAW GROUP, APC BY: /S/ ABBAS KAZEROUNIAN ABBAS KAZEROUNIAN, ESQ. 7 ATTORNEYS FOR PLAINTIFF 8 Kazerouni Law Group, APC 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT PAGE 20 OF 20