Chang v. Orgain Inc. Complaint

Case 1:14-cv-01515-RJD-VMS
Document 1
LEE LITIGATION GROUP, PLLC

C.K. Lee (CL 4086)
30 East 39th Street, Second Floor
New York, NY 10016
Tel.: 212-465-1188
Fax: 212-465-1181
Attorneys for Plaintiff and the Class
Filed 03/06/14
Page
I 41
1 of 31
PagelD
DEARIE
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
SCANLON,
ALLAN
CHANG,
and others
on
M.J.
behalf of himself
similarly situated,,
Case No.:
Plaintiff,
CLASS ACTION COMPLAINT

v.
ORGAIN, INC.
d/b/a ORGAIN,
a
California
corporation,
Defendant.
Plaintiff,
and
Allan
Chang ("Plaintiff'),
on
behalf of himself and others
through his undersigned attorneys, hereby files this
Defendant, ORGAIN, INC. d/b/a ORGAIN ("Orgain"

based upon his
own
personal knowledge
and the
or
similarly situated, by
Class Action
"Defendant"),
Complaint against
and states
investigation of his counsel:
as
follows
Filed 03/06/14
Document 1
Page
2 of 31
PagelD
NATURE OF THE ACTION
Drinking beverages containing
1.
so
much
so
that the New York
2.
Consumers
much sugar has become
Department of
Health and Mental
sugary drinks
campaign warning against consuming

other chronic diseases. See
too
they
as
can
major health problem

has launched
Hygiene
lead to diabetes,
obesity
and
http://www.nyc.gov/htmlldoh/html/living/cdp_pan_pop.shtml
undoubtedly
when the sugar in the drink is
have
disguised
choice
as
as to
whether to drink sugary

that is unfair and
something else,
beverages.
dangerous
But
to the
consumer.
3.
Against this backdrop,
with
nutritional needs, in 2008, Defendant

world's first ready-to-drink, certified
4.
Defendant
campaign
using
engaged
the
www.drinkorgain.com,
consumers
"evaporated
is false and
about the
cane
juice"
misleading.
Orgain,
Inc.
demanding beverages
organic nutritional
packaging,
ingredients
on
its
Defendant also
provides
an
places
even
label
on
widespread,
websites
the
as
though
its
uniform
"the
marketing
www.orgain.com
Specifically,
and
Defendant lists
Defendant knows that the term
packaging
that states its
"antioxidant boost." Such terms
misleading.
provider of
Facebook and Twitter to mislead
in its nutritional shakes.
products' packaging,
as
shake."
in and continues to engage in
product
that fit their diet and
began marketing itself
and social media outlets such
"rich in antioxidants" and

and
consumers
are
also
product
similarly
is
false
Plaintiff brings this
5.
persons
proposed
evaporated cane juice ("ECJ")
on
for
in the
and/or
ingredients
making
PagelD
behalf of himself and all other
up to and
and not resale any of
consumption
3 of 31
Page
including
the present
Orgain's shakes listing
unlawful nutrient content claims
to antioxidants.
6.
the Class Period,
During
purposefully misrepresent
evaporated
more
cane
name
juice
usual
as
7.
content
well
claims.
juice"
is not
something healthier than

or even
"juice"
at allit is
lists ECJ
as an
nothing
it is. Further, ECJ is not the
any type of juice, and the
ingredient
description
that nutrient claims that
made and continues to make
Period, Orgain also
nutritional shakes state that the
Orgain
antioxidant.
cane
that its nutritional shakes contain
on
use
of such
its nutritional
its website located at http://www.drinkorgain.com/.
the Class
without any further
are
though "evaporated
misleading. Orgain uniformly
as on
During
including children,
of any type of sweetener,
name
is false and
shakes,
an
to consumers,
even
continues to
Orgain purposefully misrepresented and
than sugar, dressed up to sound like
common or
is
class action
consumer
nationwide, who, from the applicable limitations period
(the "Class Period"), purchased
as
Filed 03/06/14
Document 1
use
Orgain
of the
products
are
the term "antioxidant" disclose the
shakes do not
any of the
specify
name
names
"rich in antioxidants"
Federal
particular antioxidants present.
improper nutrient
of the
regulations require
specific nutrient that
of the antioxidants its shakes
purportedly "rich in."

8.
Orgain's
actions constitute violations of the federal Food
("FDCA") Section 403(a)(1) (21

Law, Gen. Bus. Law
349,
as
U.S.C.
343(a)(1))
well those similar
protection laws in other states.
and New York's
deceptive
Drug
Deceptive
and unfair
& Cosmetic Act

Acts
or
practices and/or
Practices
consumer
9.
Document 1
Filed 03/06/14
Defendant violated statutes enacted in each of the
Columbia, that
are
designed
to
unconscionable trade and business
2)
protect
consumers
practices
and false
Page
fifty
4 of 31
states and the District of
against unfair, deceptive,

advertising.
PagelD
These statutes
fraudulent and
are:
Alabama Deceptive Trade Practices Act, Ala, Statues Ann.

8-19-1, et seq.;
Alaska Unfair Trade Practices and Consumer Protection Act, Ak_ Code 45.50.471, et
seq.;
44-1521, et seq.;
3) Arizona Consumer Fraud Act, Arizona Revised Statutes,
Trade
Practices
Ark.
Code
et seq.;
Arkansas
4-88-101,
Act,
Deceptive
4)
et seq., and
Remedies
Cal.
Civ.
Code
Consumer
California
1750,
Act,
Legal
5)
California's Unfair Competition Law, Cal. Bus. & Prof Code 17200, et seq.;
6) Colorado Consumer Protection Act, Colo. Rev. Stat. 6 1-101, et seq.;
7) Connecticut Unfair Trade Practices Act, Conn. Gen. Stat 42-110a, et seq.;
8) Delaware Deceptive Trade Practices Act, 6 Del. Code 2511, et seq.;
9) District of Columbia Consumer Protection Procedures Act, D.C. Code 28 3901, et seq.;
10) Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. 501.201, et seq.;
11) Georgia Fair Business Practices Act, 10-1-390 et seq.;
12) Hawaii Unfair and Deceptive Practices Act, Hawaii Revised Statues 480 1, et seq., and
Hawaii Uniform Deceptive Trade Practices Act, Hawaii Revised Statutes 481A-1, et
seq.;
13) Idaho Consumer Protection Act, Idaho Code 48-601, et seq.;

14) Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505/1,
et
seq.;
24-5-0.5-0.1, et seq.;
15) Indiana Deceptive Consumer Sales Act, Indiana Code Ann.
Code
Consumer
Fraud
Iowa
et
Iowa
714.16,
Act,
seq.;
16)
50 626, et seq.;
17) Kansas Consumer Protection Act, Kan. Stat. Ann
Rev.
Ann.
Stat.
Protection
Consumer
367.110, et seq., and the
Act, Ky.
18) Kentucky
Ann
Practices
Rev.
Stat.
365.020, et seq.;
Act, Ky.
Kentucky Unfair Trade
19) Louisiana Unfair Trade Practices and Consumer Protection Law, La. Rev. Stat. Ann.
20)
21)
22)
23)
24)
25)
26)
27)
28)
29)
30)
31)
32)
33)
51:1401, et seq.;
Maine Unfair Trade Practices Act, 5 Me. Rev. Stat. 205A, et seq and Maine Uniform
Deceptive Trade Practices Act, Me. Rev. Stat. Ann. 10, 1211, et seq.,
Maryland Consumer Protection Act, Md. Com. Law Code 13-101, et seq.;
Massachusetts Unfair and Deceptive Practices Act, Mass. Gen. Laws ch. 93A;
445.901, et seq.;
Michigan Consumer Protection Act,
Minnesota Prevention of Consumer Fraud Act, Minn. Stat
325F.68, et seq.; and
Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. 325D.43, et seq.;
75-24-1, et seq.;
Mississippi Consumer Protection Act, Miss. Code Ann.
Missouri Merchandising Practices Act, Mo. Rev. Stat. 407.010, et seq.;
Montana Unfair Trade Practices and Consumer Protection Act, Mont. Code 30-14-101,
et seq.;
Nebraska Consumer Protection Act, Neb. Rev. Stat. 59 1601, et seq., and the Nebraska
Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. 87-301, et seq.;
Nevada Trade Regulation and Practices Act, Nev. Rev. Stat.
598.0903, et seq.;
N.H.
Rev.
Stat.
Consumer
Protection
New Hampshire
358-A:1, et seq.;
Act,
56:8 1, et seq.;
New Jersey Consumer Fraud Act, N.J. Stat. Ann.
57 12 1, et seq.;
New Mexico Unfair Practices Act, N.M. Stat. Ann.
New York Deceptive Acts and Practices Act, N.Y. Gen. Bus. Law
349, et seq.;
Document 1
Filed 03/06/14
Page
5 of 31
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51 15 01, et seq.;
34) North Dakota Consumer Fraud Act, N.D. Cent. Code
35) North Carolina Unfair and Deceptive Trade Practices Act, North Carolina General
37)
38)
39)
Statutes
75-1, et seq.;
4165.01. et seq.;
Ohio Deceptive Trade Practices Act, Ohio Rev. Code. Ann.
Oklahoma Consumer Protection Act, Okla. Stat. 15 751, et seq.;
Oregon Unfair Trade Practices Act, Rev. Stat 646.605, et seq.;
Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Penn. Stat. Ann.
40)
201-1, et seq.;
Rhode Island Unfair Trade Practices And Consumer Protection Act, R.I. Gen. Laws
36)
13.1-1,
6-
et seq.;
41) South Carolina Unfair Trade Practices Act, S.C. Code Laws 39-5-10, et seq.;
42) South Dakota's Deceptive Trade Practices and Consumer Protection Law, S.D. Codified
37 24], et seq.;
Tennessee Trade Practices Act, Tennessee Code Annotated
47-25-101, et seq.;
Trade
Practices
Act
Texas
Texas Stat. Ann.
et
Deceptive
17.41, seq.,
Ann.
Utah
Code
Utah Unfair Practices Act,
13-5-1, et seq.;
Vermont Consumer Fraud Act, Vt. Stat. Ann. tit.9, 2451, et seq.;
Virginia Consumer Protection Act, Virginia Code Ann. 59.1-196, et seq.;
Washington Consumer Fraud Act, Wash. Rev, Code 19.86.010, et seq.;
West Virginia Consumer Credit and Protection Act, West Virginia Code 46A-6-101, et
Laws
43)
44)
45)
46)
47)
48)
49)
seq.;
100. 18, et seq.;

50) Wisconsin Deceptive Trade Practices Act, Wis. Stat.
51) Wyoming Consumer Protection Act, Wyoming Stat. Ann. 40-12-101,
10.
unfair and
Orgain has
also been
unjustly
enriched
as a
result of its conduct. As
deceptive practices (including marketing
Nutrition"), Orgain
itself
as
"Doctor
et seq.
result of these
Developed Organic
has collected millions of dollars from the sale of its nutritional shakes with
ECJ that it would not have otherwise earned. While
healthy alternative, Orgain
simultaneously marketing
deceived the Plaintiff and other
consumers
its
product
nationwide
as a
by
shakes.
mischaracterizing the sugar and anti-oxidants comprising its nutritional

JURISDICTION AND VENUE
11. The Court has jurisdiction
is
class action,
class is
sum or
as
defined
by
over
28 U.S.0
citizen of a different state than
value of $5, 000, 000,
this matter pursuant to 28 U.S.C.
1332(d)(1)(B),
Defendant, and the
excluding interest and costs.
in which
amount
1332, because this
member of the
putative
in controversy exceeds the
See 28 U.S.C.
1332(d)(2).
Document 1
12. The Court has jurisdiction
over
Filed 03/06/14
the federal claims
Page
6 of 31
PagelD
alleged herein pursuant to 28
U.S.0
1331 because it arises under the laws of the United States.
jurisdiction
13. The Court has

same case or
14.
over
the state law claims because
form part of the
controversy under Article III of the Unites States Constitution.
Alternatively,
the Court has
jurisdiction over all
claims
1332 because the matter in controversy exceeds the
U.S.0
they
alleged herein pursuant to
sum or
value of
$75, 000
28
and is
between citizens of different states.

15. The Court has
EC.I
are
in the
personal jurisdiction
over
Orgain
because its nutritional shakes with
advertised, marketed, distributed, and sold throughout New York State; Orgain engaged
in this
wrongdoing alleged
York State;
Orgain is
Complaint throughout
the United States,
authorized to do business in New York State; and
minimum contacts with New York and/or otherwise has

markets in New York State,
traditional notions of fair

and not isolated
rendering the exercise
intentionally
of jurisdiction
to
has sufficient
availed itself of the
Court
permissible under
activity within New York State.
substantial part of the events
subject
Orgain
in New
play and substantial justice. Moreover, Orgain is engaged in substantial
16. Venue is proper in this district pursuant to 28 U.S.0
is
by the
including
giving
personal jurisdiction
nutritional shakes in
1391(a)
and
(b),
because
rise to Plaintiff's claims occuned in this District, and
Orgain
in this District. Plaintiff purchased and consumed Defendant's
Queens County.
PARTIES
17. Plaintiff is
citizen of the State of New York and resides in
Queens county.
For the
past six months, Plaintiff has purchased different Orgain nutritional shakes with evaporated
juice
as an
ingredient
for
personal consumption
within the State of New York.
cane
Plaintiff has
purchased Orgain
nutritional shakes with
Chocolate
Creamy
Page
7 of 31
shakes from stores located in New York
purchased
web site
Luckyvitamin.com,
which
Queens.
The
was
purchase price
PagelD
ECJ, including Orgain Organic Nutritional Shake
Iced Caf Mocha, Strawberries and Cream, and
Fudge,
Plaintiff
Chocolate.
Filed 03/06/14
Document 1
shipped Orgain
$4.34 for
an
nutritional shakes
individual shake and
Healthy
City
directly
to
Kids
and from the

his home in
approximately $42
for
12
pack of Orgain shakes.

18. Defendant
California.
Orgain is
Company organized
Orgain's headquarters
is
at
8122
and
existing under the laws

CA
Scholarship, Irvine,
of the state of
92612.
manufactured, advertised, marketed, and sold nutritional shakes containing ECJ

thousands of
consumers
company in the United States
growth rate of 2, 971%.
See
according
to Inc.
to tens of
It is the 121st fastest
nationwide, including New York.
Magazine, logging
Orgain
growing
explosive
three year
throughout
the United
an
http://www.inc.com/inc5000/list/2013.
FACTUAL ALLEGATIONS
19. Defendant manufactures, markets and sells
States, and proclaims them

20.
outlets
Orgain
to
be
shakes
"ready-to-drink nutritional shake."
nutritional shakes
throughout
Orgain
are
the United States,
available at most
including
supermarket
chains and
major
retail
but not limited to Whole Foods, Costco,
Foodtown, Wegmans, The Food Emporium, The Vitamin Shoppe, Walgreens and Rite Aid.
Defendant Makes Unlawful ECJ Claims
21. Defendant
term
"evaporated
deceptively
cane
advertises and markets all of its nutritional shakes
juice" (herein "ECJ"),
term
that is
false and
misleading
using
the
name
for
another less
cane
healthy
food
or
Filed 03/06/14
Document 1
ingredient that
has
a common or
Page
8 of 31
usual name,
namely
PagelD
sugar
dried
or
syrup.
Orgain uses the term "Organic Evaporated
22.
Cane Juice"
the term ECJ to make its shake appear healthier than
uses
and to
ingredient and to increase sales
23. Plaintiff and nationwide

ECJ
on
Defendant's
24.
Sugar
consumers were
cane
sucrose
"sugar" (21
168.130).
usage such
contains
"sugar"
mislead when they relied upon the
exist in many different
products
content
C.F.R.
Other sugar
as
product that
packaging. Orgain
as an
use
of
packaging, assuming it was more natural and healthier than regular sugar.
as
well
products are required by regulation (21

names,
all its
charge a premium.
syrups to refined sugar and molasses. These
molasses, and
on
molasses,
C.F.R.
101.4(b)(20)
cane
raw
are
differentiated
size and any
special
by
raw
sugars and
their moisture,
treatments.
Sugar
cane
101.4) to be described by their common or usual

184.1854)
and 21 C.F.R.
have
products
products
by crystal
as
forms, ranging from
common or
usual
"cane
or
names
syrup" (21
established
by
C.F.R.
common
sugar, brown sugar, turbinado sugar, muscovado sugar and
demerara sugar.
25. The FDA has instructed that sweeteners derived from sugar
listed in the
"dehydrated
that
ingredient declaration by
cane
"evaporated
false
and
juice"
cane
or
"evaporated
juice"
misleading
names
is
to
simply
dress
which suggest that the
cane
juice."
deceptive
up
In
fact, the
way of
sugar
as
syrup should not be
ingredients are juice,
FDA's
describing
a
cane
type
such
published policy
sugar, and
of
as
states
therefore, it is
"juice".
See
http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/Foo
dLabelingNutritionluem181491.html.
26.
Orgain
Filed 03/06/14
Document 1
sells all its shakes
using
the
Page
deceptive ingredient
9 of 31
name
PagelD
"evaporated
juice", including but not limited to the following products:
Orgain Creamy
Orgain
Chocolate
Mocha
Fudge
Iced Caf
Sweet
Orgain
Orgain
Strawberries
Vanilla Bean
and Cream
it
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Filed 03/06/14
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28. The
ingredients
shakes with the
in
exception
Orgain's regular
that the
29.
Unfortunately for
and nutritious
the added sugar in its
as
consumers
they purport
shakes
regular shakes
enhancer, and the Healthy Kids shakes have
healthy
q0S14:0t.:;;::1
to
an
identical to
also contain
potassium citrate,
children, Orgain nutritional shakes
Orgain willfully
products from nationwide
Orgain's Healthy
a
Kids
flavor
additional gram of sugar.
and their
be.
are
consumers.
11
and
purposefully
are not as
seeks to conceal
30. On Defendants website,

Dr. Andrew Abraham,
alternatives and who

states under the
drinkorgain.com, they
cancer
set out to
heading
The truth is,
world
was
state
Page
12 of 31
the most healthful
produce
"Founder" that his mission is to

offered
today
[and]
filled with sugar,
have
Orgain's products
shakes
are
are
healthier than other
sweetened with regular sugar just
nationwide
and
with
consumers
Orgain
as
syrup,
formulating
drink
to
sweetened with
misrepresents
as
truth that
"sugar." However, Orgain's
any other non-healthy
beverage.
website, drinkorgain.com, under FAQ, they further mislead
31. On Defendant's
when the
products
corn
complex carbs, fruit, veggies
Such narrative sells and
free from artificial sweeteners."
Dr. Abraham
the healthiest drink in the
Defendant's website continues to state that that Dr. Abraham spent years
meet his "strict standards" that had to be "low in sugar
healthy beverage
beverage possible.
"produce
are
12
PagelD
that the Founder of Orgain, Inc.,
survivor frustrated with the lack of
majority of drinks
Filed 03/06/14
Document 1
purposeful misrepresentations
shakes contain
significant
as
to
their
amounts of sugar and
products'
negligible
health benefits
amounts of fruits
vegetables:
Under "I Need to
that 2
each 11
gain healthy weight,
servings
ounce
can
help
serving
of
is
Orgain right
person increase their
Orgain packs
for me?", Defendant states
weight.
255 calories
This is
certainty
as
12 grams of
(including
sugar), more calories than a McDonald's hamburger (250 calories), Chipotle BBQ
Snack
or
not
Wrap Grilled (250 calories)
ounces
of Coca Cola
or
(95 calories).
piece
Chicken MeNuggets
Defendant's shake is
(237 calories)
recipe for obesity,
healthy weight.
Under "Can I lose
weight
if
they
weight with Orgain?"
drink
Orgain
if
Defendant states that
they replaced
12
"a meal
consumers can
or two
with
lose
serving
of
Orgain."
Such
asks
suggestion
unsatisfying liquid calorie

in
Filed 03/06/14
Document 1
consumers to
and sugar
Page
replace
13 of 31
filling
two
packed Orgain drink,
13
PagelD
meals with
an
only result
which will
binge eating and further obesity.
Under "I need energy,
can
Orgain help?",
provide "sustained energy without the

simply misleading
Such statement is
Defendant contends that
Orgain
can
sugar crash associated with energy drinks."
as
Orgain
also contains
significant
amounts
of sugar.
Under "Can children drink
kid
specific formula.
sugar
Defendant touts the
healthy benefits of
its
fact, its kid specific formula only increases the amount of
In
(13 grams) compared to its regular brand (12 grams).
Under "What's in
sweetened with
Such
Orgain?"
Orgain?"
organic
Defendant
cryptically states that
brown rice syrup and
description is misleading.
its shakes
organic evaporated
are
"lightly
cane
juice."
Defendant should just say it sweetens its
products
with plain old sugar, like other unhealthy drinks. Defendant also touts its blend of
vegetables (organic kale, beets, spinach,
carrots
and
tomatoes)
and fruits
(organic
blueberries, bananas, acai berry, apple and raspberries). However, each 11

drink
only
contains 50
milligrams of each
Thus, applying Orgain's 12
grams
of its blend of
of sugar
per 11 ounce
milligrams of each veggie blend and fruit blend

content is 240x its actual fruit or
Under "With all the

states that it
uses
should say that it
vegetable
healthy stuff,
"organic
uses
cocoa
means
to
the 50
that Orgain's sugar
organic
so
good?",
vanilla".
sugar to sweeten its drinks. It is further
13
serving
and fruits.
content.
how does it taste

and real
vegetables
ounce
In
Defendant
only
fact, Defendant
deceptive
because
Defendant touts the

that its
products
Filed 03/06/14
Document 1
of "5 different
use
are
organic
14 of 31
fruits in every
when
naturally sweetened,
Page
they
are
14
PagelD
package" implying
just sweetened
with
sugar.
Under
"Are
their[sicj preservatives, colorings, artificial flavors, artificial
sweeteners?"
Defendant
However, this
statement
disclose that the drinks

32. As detailed above,
different from other drinks that
Orgain's Creamy
twelve
as an
(12)
Chocolate
are
misleading by
ingredient
"sugar"
or
that it has thirteen
"dried
cane
an
product labels, despite
specifically
warned
shakes
purchased by
section fails to list
misleading;" (2)
its
grams of sugar, but the
Plaintiff state that it has
"sugar"
and
or
ingredient
the term
Drug
"dried
cane
syrup"
purchased by
section fails to list
products
"Evaporated
with the
as an
Administration
ingredient
common
in its
(herein "FDA") has
Cane Juice" because
is in violation of a number of labeling
that manufacturers label their
ingredients they use
no
ingredient.
not to use
use
should instead
The Nutrition Facts for
Kids chocolate nutritional shakes
the fact that the U.S. Food and
companies
they
not low in sugar and are
Rather, Defendant identifies "Organic Evaporated Cane Juice"
33.
"false and
syrup" as
(13)
are
sweetened with sugar.
artificially
Fudge nutritional
grams of sugar, but the
state
omission because
sweeteners.
flavored instead with sugar.
ingredient. Similarly, Orgain's Healthy
Plaintiff
ensure
is
Orgain's nutritional shakes

are
artificial
emphatically denies using
(1)
it is
regulations designed to
and usual
accurately describe the ingredients they utilize; and (3)
names
the
of the
ingredient in
question is not a juice.

34. In October of
Evaporated
2009, the FDA issued Guidance for Industry: Ingredients Declared
Cane Juice, which advised
industry as
14
follows:
as
Filed 03/06/14
Document 1
Page
15 of 31
PagelD
[The term "evaporated cane juice" has started to appear as an ingredient on food
labels, most commonly to declare the presence of sweeteners derived from sugar
cane syrup. However, FDA's current policy is that sweeteners derived from
sugar cane syrup should not be declared as "evaporated cane juice" because
that term falsely suggests that the sweeteners are juice...
"Juice" is defined by 21 CFR 120.1(a) as "the aqueous liquid expressed or
extracted from one or more fruits or vegetables, purees of the edible portions of
one or more fruits or vegetables, or any concentrates of such liquid or puree."...
provided in 21 CFR 101.4(a)(1), "Ingredients required to be declared on the

label or labeling of a food... shall be listed by common or usual name...." The
common or usual name for an ingredient is the name established by common
usage or by regulation (21 CFR 102.5(d)). The common or usual name must
accurately describe the basic nature of the food or its characterizing properties or
ingredients, and may not be "confusingly similar to the name of any other food
that is not reasonably encompassed within the same name" (21 CFR 102.5(a))...
As
Sugar cane products with common or usual names defined by regulation are sugar
(21 CFR 101.4(b)(20)) and cane sirup (alternatively spelled "syrup") (21 CFR
168.130). Other sugar cane products have common or usual names established by
common usage (e.g., molasses, raw sugar, brown sugar, turbinado sugar,
muscovado sugar, and demerara sugar)...
The intent of this draft guidance is to advise the regulated industry of FDA's
view that the term "evaporated cane juice" is not the common or usual name
of any type of sweetener, including dried cane syrup. Because cane syrup has
a standard of identity defined by regulation in 21 CFR 168.130, the common
or usual name for the solid or dried form of cane syrup is "dried cane
syrup."...
Sweeteners derived from sugar cane syrup should not be listed in the
ingredient declaration by names which suggest that the ingredients are juice,
such as "evaporated cane juice." FDA considers such representations to be
false and misleading under section 403(a)(1) of the Act (21 U.S.C. 343(a)(1))
because they fail to reveal the basic nature of the food and its characterizing
properties (i.e., that the ingredients are sugars or syrups) as required by 21
CFR 102.5. Furthennore, sweeteners derived from sugar cane syrup are not juice
and should not be included in the percentage juice declaration on the labels of
beverages that are represented to contain fruit or vegetable juice (see 21 CFR
101.30).
http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/Guidance
Documents/FoodLabelingNutrition/ucm181491.h bill (emphasis added)
15
15
35. The FDA's
position
is thus clear that
meaning of "untruthful,
reaches not
only
misleading.
If any
reference to "the
while the term
one
ignorant,
labeling
the
cures a
unthinking
analyze." United States
v.
misleading
El-O-Pathic
products that do not satisfy the minimum

inferior
or
undesirable
38. Several of
ingredients
Orgain's
or
for
is
labels
16
PagelD
are
"false and
the
not remove
the term "false"
be
was
consumers
Misbranding
technically true,
but still
the entire food is misbranded.
statement.
"Misleading"
192 F.2d
Pharmacy,
of art.
term
and the credulous who, when
nutritional shakes mislead
Orgain's
might
representation in the labeling is misleading,
Under the FDCA, it is not necessary to prove that anyone

37.
juice"
(herein "FDCA"),
"misleading"
false claims, but also those claims that
No other statement in the
to
cane
16 of 31
Guidance, Orgain did
and Cosmetic Act
Drug
has its usual
stop
Page
misleading food labeling ingredient from their misbranded nutritional shakes.
36. Under the Federal Food
not
"evaporated
the issuance of the 2009 FDA
misleading." Despite
unlawful and
Filed 03/06/14
Document 1
making
62,
75
judged
in
purchase,
do
is
(9th
Cir.
1951).
actually misled.
into
standards established
by
paying
premium price for
law for those
products
and for
products that contain ingredients not listed on the label.
nutritional shakes
are
specifically designed for
and marketed to
children, making the deception that much more pernicious.

39. Defendant's
bright monkey along
packaging
with the
on some
of its shakes
phrase "Healthy
prominently displays
Kids" in
an
effort to
picture
of
simultaneously target
children and health conscious parents.

40. For each
marketing
image
of
to
"Healthy
Kids" nutritional shake flavor, Defendant
uses
cartoon-like
target children. The "Healthy Kids" vanilla shake packaging displays
smiling monkey carrying
packaging displays
colorful
white flowers.
The
"Healthy
image of a smiling monkey carrying
16
Kids"
bright
colorful
strawberry shake
red
strawberry
and
the
"Healthy
Filed 03/06/14
Document 1
Kids" chocolate shake
packaging displays
Page
17 of 31
17
PagelD
image of a smiling monkey
colorful
carrying a large chocolate square.

41. Defendant also
markets its
deceptively
"Healthy
Kids" nutritional shakes to parents
seeking healthy alternatives for their children.

42. Given the
options
of obesity in the United States, parents
supermarket aisles.
in the
provide perfectly
Defendant is
prevalence
In
touting their
balanced nutrition..." while
nutritional shakes
intentionally failing
misleading parents into purchasing Orgain nutritional
43. One
consumer
Zelman commented the
stated that she
gives
her
son an
to
are
as
desperate
for healthy
"doctor-formulated to
list sugar
as an
ingredient,
shakes.
Orgain
shake every
day. Monique
following on Orgain's Facebook page:
[M]y son is small and not a big eater so I give him one every day. I try to find deals b/c
they are expensive but definitely worth the price. (Monique Zelman, December 10, 2013)
(See Recent Posts by Others at https://www.facebook.com/drinkorgain, as appeared on
2/20/14)
44. Even
consumer
as
who
expectant mothers
are
being
purchased Defendant's product
misled
by Orgain's deceptive practices.
and reviewed it
on
One
Orgain's facebook page stated
follows:
Orgain. I have had a rough pregnancy and it has helped me a

and nutrients inside me. Waiting to hear about the next sale
food
getting
so I can place another bulk order (I am tight with money, but always try to keep a
stash on hand and catch all of the sales)! Thanks again Orgain! (Amanda K.
Upton, December 11, 2013 at 2:14pm)
am so
thankful for
lot with
Orgain's reply:
Thank you Amanda! We are so happy to be providing organic nourishment for
you and your baby. We will definitely keep you posted. In the meantime, please
email us and we'll send you some coupons as a token of our appreciation.
Info@drinkorgain.com (December 12,

(See
Recent Posts
by
Others at
appeared on 2/20/14)
17
2013 at
8:07pm)
https://www.facebook.com/drinkorgain,
as
Document 1
45.
Orgain's
Facebook page further misleads
gain life." Several
energy.
Filed 03/06/14
are
18 of 31
under the
18
PagelD
health.
by stating "gain
consumers
Amazon.com
consumers on
Page
gain
impression that the Orgain
nutritional shakes do not contain added sugar:

"These are the perfect alternative to Ensure. Orgain is not another sugar filled
nutrition drink" (Sophi, 12/27/13)
(http ://www. amazon. com/Orgain-Creamy-Cho colate-11 -Ounce-Container/product-
reviews/B003FDG4K4?pageNumbei=48, as appeared on 2/20/14)

bought this organic product for my wife who is having difficulty eating, thus
achieving sufficient nutrition levels, because of advanced stage cancer. We have both
tried the competitive products Boost and Ensure and find Orgain far superior, not
only because it tastes better, but because it is not full of sugar--which cancer grows
and
chemicals"
no
in--and
has
1/9/14)
(Wayne,
preservatives
(http ://www. amazon. com/Orgain-Organic-Vanilla-11-Ounce-Container/productreviews/B003FDC2I2?pageNumber=4, as appeared on 2/20/14)
"I
46.
Orgain's false, unlawful,
and
misleading product descriptions
render these nutritional shakes misbranded under New York Law.

Markets Law
and
ingredient listings
Specifically,
N.Y.
Agric.
and
201 states:
Food shall be deemed to be misbranded: ...unless its label bears (a) the common
See N.Y. AGM. LAW
or usual name of the food, if any there be....
201,
Misbranding of Food.
Thus, similar
common
to the federal
and usual
law, New York law requires that ingredients be listed under their
Otherwise, they are misbranded.
name.
47. Plaintiff and the Class

EU.
an
paid
Through its deceptive practice
ingredient, Orgain
consumers
for
thereby increasing
its
purchased
no
premium price
of marketing and
able to command
was
attributes of its shakes and

mislead
distinguishing
other
own
reason
profits.
and $42.00 for every 12
for their
selling
Orgain nutritional
its nutritional shakes with EC.1
premium price by deceiving
itself from similar
paid $4.34
pack purchased.
18
consumers
products. Orgain
than to take away market share from
Plaintiff
was
ready
as
about the
motivated to
competing products,
for each individual
Similar
shakes with
Orgain
shake
to drink nutritional shakes
such
are
Boost
as
Original
sold for $19.97 for
are
16
sold for $14.99 for
had
they purchased
12
pack
at
Page
Target
19 of 31
PagelD
19
and Ensure Nutrition shakes
pack at Walmart.
48. Plaintiff and the Class have been

in that
Filed 03/06/14
Document 1
misbranded
product
Orgain not misrepresented the nutritional
damaged by Orgain's deceptive

paid prices they
or
shakes'
and unfair conduct
otherwise would not have
paid
ingredients.
Defendant Makes Unlawful Antioxidant Claims
49. On its
and
are
product labels, Orgain touts that its nutritional
"Perfect for:... Sustained
shakes
Energy and Antioxidant Boost."
FltU4441$0gles
.77
.1...
3:1*.itaniin-ancliirineral3
I_ tree of
preservatives, 4rtificio
sweet& .rs) comeyrup

v
--77:.
.-:::".n
Andrew Ab*tiom HA
REKENisoseu
rwo:
tMN
willoY AND
tit OPOST
.1. I4AHAEMENT
"7.. LiFES1Y4:.
19
A copy of the
reproduced below:
mi...ww.c.g.r.priegi:prigaratc
are
product label is
50. Federal
claim.
use
regulations regulate
Specifically,
21 C.F.R.
antioxidant claims
101.54(g)
contains
as a
Page
20 of 31
particular type
special requirements
20
PagelD
of nutrient content
for nutrient claims that
the term "antioxidant":
of the antioxidant must be disclosed;
(1)
The
(2)
There must be
name
an
established Referenced
antioxidant, and if not,
(3)
(4)
vitamins C and
21 C.F.R.
The nutrient that is the

antioxidant
eaten
participates
free radicals
in
101.54(g)(2);
activity, i.e.,
be made about it;
name
of the nutrient that is
(e.g., "high
biochemical
gastrointestinal tract,
or
an
in antioxidant
the substance
cellular processes that inactivate
prevent free radical-initiated chemical reactions,
see
21 C.F.R.
and
"high" claim,
Reference Value
the label does not
for that
there must be scientific evidence that
and absorbed from the
claims in 21 C.F.R.
51. The antioxidant
("RDI")
of the antioxidant claim must also have
The antioxidant nutrient must meet the
use a
Intakes
101.54(g)(4);
subject
physiological,
or
specific
can
say "antioxidants"
simply
E"), see
Daily
"antioxidant" claim
antioxidant and cannot
after it is
(5)
no
The label claim must include the
recognized
(1)
Filed 03/06/14
Document 1
101.54(b)
for
requirements
"high" or
for nutrient content
"rich in" claims. For
the food would have to contain 20%
or more
example, to
of the
Daily
("DRy") or RDI per serving.
labeling for
Defendant's
specify which antioxidants the
Orgain shakes
shakes
are
violate federal law because
allegedly
"rich in" and
(2)
since
the antioxidant is not
specified, Defendant lacks adequate evidence that the unknown antioxidant
nutrients
in
participate
physiological, biochemical
20
or
cellular processes that inactivate free
Page
prevent free radical-initiated chemical reactions after they
radicals
or
from the
gastrointestinal tract.
52. As stated above, there

ounce
Filed 03/06/14
Document 1
Orgain
drink.
50
milligyams
50
only
are
is
equal
milligrams
21 of 31
are
eaten and
each of fruits and
to 5% of I gram.
PagelD
21
absorbed
vegetables
per 11
The health benefits of such
antioxidant blend is non-existent.

53. For these reasons, Defendant's antioxidant claims at issue in this
misleading
and in violation of 21 C.F.R.
misbranded
as a
matter of law. Misbranded
Complaint
are
101.54 and the nutritional shakes at issue
are
products
cannot
be
legally manufactured, advertised,
distributed, held or sold in the United States.

CLASS ACTION ALLEGATIONS
54.
Plaintiff brings this action
Civil Procedure
on
behalf of the
as a
class action pursuant Rule 23 of the Federal Rules of
following class (the "Class"):
All persons or entities in the United States who made retail

purchases of Orgain nutritional shakes during the applicable
limitations period, and/or such subclasses as the Court may deem
appropriate. Excluded from the Class are current and former
officers and directors of Defendant, members of the immediate
families of the officers and directors of Defendant, Defendant's
legal representatives, heirs, successors, assigns, and any entity in
which they have or have had a controlling interest. Also excluded
from the Class is the judicial officer to whom this lawsuit is
assigned.
55. Plaintiff reserves the
course
right
to revise the Class definition based on facts learned in the
of litigating this matter.

56. This action is proper for class treatment under Rules
23(b)(1)(B)
and
23(b)(3)
of the
Federal Rules of Civil Procedure. While the exact number and identities of other Class members
are
unknown to Plaintiff at this
time, Plaintiff is informed and believes
21
that there
are
thousands
of Class members.
Filed 03/06/14
Document 1
Thus, the Class is
so numerous
Page
22 of 31
PagelD
22
that individual joinder of all Class members is
impracticable.
57.
questions
law and fact arise from Defendant's conduct described herein. Such
Questions of
all Class members and
are common to
predominate
over
any
questions affecting only
individual Class members and include:

ECT
products is false and misleading;
its
a.
whether
listing sugar as
b.
whether
listing the ingredient "evaporated
not
c.
on
cane
juice"
is
misleading because
it is
"juice";
whether
identifying
as
sugar
ECJ renders the nutritional shakes at issue
misbranded;
d. whether
is
e.
Orgain
failed to disclose to
merely sugar or dried
whether
Orgain engaged
by substituting the term

f.
whether
h. whether
whether
an
unlawful term that
syrup;
marketing practice
intended to deceive
labeling
on
Orgain
consumers
shakes;
nutritional shakes violates
federal,
law;
Orgain has made deceptive nutrient content and anti-oxidant claims;
Orgain
has been
other Class members

i.
in
that ECJ is
ECJ for sugar in their nutritional
whether the antioxidant

state or common
g.
cane
consumers
Orgain
must
unjustly
enriched at the expense of Plaintiff and the
by its misconduct;
disgorge
any and all
profits
it has made
as a
result of its
misconduct;
j.
whether
ECJ
Orgain
as an
should be barred from
ingredient;
and
22
marketing
its nutritional shakes
as
listing
k.
whether
Filed 03/06/14
Document 1
should be barred from
Orgain
marketing
Page
23 of 31
23
PagelD
being rich
its nutritional shakes
in anti-oxidants.
58. Plaintiff's claims
other Class members sustained
of those of the Class members because Plaintiff and the
typical
are
damages arising
of the
out
herein. Plaintiff purchased Defendant's nutritional shakes

similar
injuries arising
described herein
Class
were
directly by
thread of misconduct
arise from the
same
of the Class and
Defendant's
are
based
on
resulting
and
practices
59. Plaintiff will

has retained
they occurred
of Defendant's misconduct is
underpiiming
common
of where
irrespective
caused
during
as
detailed
the Class Period and sustained
out of Defendant's conduct in violation of New York State law.
unlawful, unfair and fraudulent actions
Defendant's
wrongful conduct,
same
the
fairly
course
same
and
in
concern
or were
injury
to
same
experienced.
misconduct.
wrongful
common
the
In
business
The
practices
injuries of the
addition, the factual
all Class members and represents
all members of the Class. Plaintiffs claims
to
of conduct that
give rise
to the claims of the
members
legal theories.
adequately represent
and pursue the interests of the Class and
competent counsel experienced in prosecuting nationwide class actions. Plaintiff
understands the nature of his claims
herein, has
no
disqualifying conditions,
and will
vigorously
represent the interests of the Class.
Neither Plaintiff nor Plaintiffs counsel have any interests
that conflict with
to
or are
antagonistic
the interests of the Class. Plaintiff has retained
competent and experienced class action attorneys
to
represent his interests and those of the Class.
Plaintiff and Plaintiff s counsel have the necessary financial
vigorously litigate
responsibilities
maximum
this class action, and Plaintiff and counsel
to the Class and will
possible recovery for the
diligently discharge
Class.
23
highly
resources
are
those duties
aware
to
adequately
of their
and
fiduciary
by vigorously seeking
the
60. A class action is
small
to
make it
economically
suffered
damages
feasible for
potentially
no
adjudication
inconsistent and
by
24 of 31
24
PagelD
any individual class member
individual class member
an
action, and it is desirable for judicial efficiency

forum. Furthermore, the
Page
to other available methods for the fair and efficient
superior
of this controversy. The
adjudication
Filed 03/06/14
Document 1
the
to concentrate
of this controversy
conflicting adjudications
through
prosecute
to
are
separate
litigation of the claims

a
too
in this
class action will avoid the
of the claims asserted herein. There will be
difficulty in the management of this action as a class action.

61. The
prerequisites
pursuant to Rule 23(b)(2)
applicable
to
the Class,
respect to the Class

62. The
pursuant
over
any
to
as a
maintaining
met,
are
as
to
Additionally,
are
met,
prosecution
as
relief
equitable
on
injunctive
equitable relief
or
grounds generally
with
injunctive relief or equitable relief
class action for
questions
of law
or
fact
individual members, and
individual actions may be
by
common
to the Class
class action is
predominate
superior
and
members of the Class would create
are
not
dispositive
parties to
to
other
practices
make
24
risk of
of conduct for Defendant.
such actions.
to
to the
the Class
Class
as a
as a
whole and Plaintiff
whole. As such, Defendant's
declaratory relief with respect
appropriate.
of the interest of all members of the Class,
generally applicable
alia, equitable remedies with respect
systematic policies
final
relief or
refused to act
rulings and/or incompatible standards
64. Defendant's conduct is

inter
of separate actions
although certain Class members
seeks,
or
injunctive
fairly and efficiently adjudicating the controversy.
inconsistent
establishing
Defendant has acted
maintaining
questions affecting only
63. The
class action for
whole.
23(b)(3)
available methods for
thereby making appropriate
prerequisites
Rule
to
to
the Class
as a
whole
Filed 03/06/14
Document 1
Page
25 of 31
25
PagelD
CAUSES OF ACTION
COUNT I
INJUNCTION FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW
(DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)
65. Plaintiff realleges and
further alleges
as
Law
an
349
brings
this claim
injunction for violations
349
business, trade or commerce
bring
an
actual
Any person
action in his
damages
individually
and
of New York's
or
provides
in the
or
up to
fifty dollars,
to
one
deceptive
acts or
injured by
enjoin
69. The
or
and
said nutritional shakes
and
as
being
NY GBL
practice,
are
and
are
are
unlawful.
an
action to
recover
his
exceed three times the actual
thousand dollars, if the court finds the defendant
misleading
in the conduct of any
both such actions. The court may, in its
willfully
or
knowingly
attorney's fees to a prevailing plaintiff.
practices employed by Defendant, whereby
Orgain
or
to an amount not to
marketed that its nutritional shakes contain ECJ and
70.
Gen. Bus.
of any violation of the NY GBL may
such unlawful act
whichever is greater,
practices
service in this state
reason
violated this section. The court may award reasonable
deceptive,
behalf of the other members of the
on
Deceptive Acts or Practices Law,
furnishing of any
who has been
own name
that
discretion, increase the award of damages
damages
64 herein and
("NY GBL")
67. NY GBL
68.
paragraphs
follows:
66. Plaintiff
Class for
reference
incorporates herein by
349
Defendant advertised,
are
in violation of the N.Y.
promoted,
Agric.
and Markets Law
are
and
unfair,
201 in that
misbranded.
should be
enjoined
from
marketing
"rich in antioxidants" without further
349.
25
their nutritional shakes
specification as
as
containing
ECJ
described above pursuant to
71.
Plaintiff,
on
Filed 03/06/14
Document 1
costs
26
PagelD
similarly situated, respectfully demands
behalf of himself and all others
judgment enjoining Orgain's conduct, awarding
26 of 31
Page
of this
proceeding
and
attorneys' fees,
as
provided by NY GBL, and such other relief as this Court deems just and proper.
COUNT II
VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW 349
(DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)
72. Plaintiff realleges and
further
incorporates herein by reference paragraphs
71 herein and
alleges as follows:
73. Plaintiff
brings
this claim
Class for violations of New York's

74.
By
and practices
the acts and conduct
alleged herein,
as
Agric.
and Markets Law
foregoing deceptive acts
are
practices,
Specifically,
as a
Defendant
deceptive
and practices
acts
advertised, promoted, and
201 in that said products
result of
or
349.
unfair, deceptive, and misleading and
were
77. Plaintiff and the other Class members suffered
and unfair trade acts.
Gen. Bus. Law
containing EU.
practices employed by Defendant, whereby
violation of the N.Y.
behalf of the other members of the
Defendant committed unfair
shakes
marketed that its nutritional shakes contain ECJ
76. The
on
Deceptive Acts or Practices Law,
by misbranding their nutritional
75. The
and
individually
directed at
loss
as a
are
in
misbranded.
consumers.
result of Orgain's
Orgain's deceptive
are
deceptive
and unfair trade acts and
Plaintiff and the other Class members suffered monetary losses associated with the
purchase of Orgain nutritional
shakes with
ECJ, i.e.,
the
purchase price
premium paid by Plaintiff and the Class for said products.
26
of the
product and/or the
Filed 03/06/14
Document 1
Page
27 of 31
27
PagelD
COUNT III
NEGLIGENT MISREPRESENTATION
(All States)
78. Plaintiff
this
and
realleges
incorporates
herein
by
reference
paragraphs
through
77 of
Complaint, as if fully set forth herein.

79.
Defendant, directly
or
through its agents
and
employees,
made false
representations,
concealments, and nondisclosures to Plaintiff and members of the Class.

80. In
making
the
representations
herein, Defendant has failed

direct and
proximate
of fact to Plaintiff and members of the Class described
to fulfill its duties to disclose the material facts set forth above. The
cause
of this failure to disclose
negligence
and
omissions, and in doing the
acts
was
Defendant's
carelessness.
81. Defendant, in
knew
alleged above,
or
making
the
reasonably
Defendant made and intended the
misrepresentations
and
should have known that the
misrepresentations
representations
were
not true.
to induce the reliance of Plaintiff and
members of the Class.
representations
and
nutritional shakes, which reliance
was
82. Plaintiff and members of the Class relied upon these false
nondisclosures
by
Defendant when
purchasing Orgain
justified and reasonably foreseeable.

83. As
result of Defendant's
wrongful conduct,
Plaintiff and members of the Class have
suffered and continue to suffer economic losses and other
including
but not limited to the amounts
would have been accrued

at
on
those
paid for Orgain
monies,
all in
time of trial.
27
an
general
and
specific damages,
nutritional shakes, and any interest that
amount to
be determined
according
to
proof
Filed 03/06/14
Document 1
Page
28 of 31
28
PagelD
COUNT IV
BREACH OF EXPRESS WARRANTIES
(All States)
84. Plaintiff
this
Complaint, as
realleges
incorporates
herein
provided
warranties, including, but
mention sugar
not
as an
were
proximate
among other
value
had
promised
deprived
or
who
are
"lightly
requires liquid
by providing
nutritional shakes that fail to
damages
to
Plaintiff and the other members of the Class who

the
goods as warranted
in that the
products were
appear to be.
result of Defendant's breach of
Class members have suffered
Defendant
83 of
ingredient and making improper nutrient content claims as to antioxidants.
healthy as they
that,
through
"organic nutrient dense energy any time."
bought Defendant's products but did not receive
88. As
limited to, warranties that its nutritional shakes
87. This breach resulted in
in
paragraphs
Plaintiff and other members of the Class with written express
86. Defendant breached these warranties
as
reference
with...organic evaporated cane juice" and are perfect for "anyone
nutrition" and
not
by
if fully set forth herein.
85. Defendant
sweetened
and
damages
in
an
things, they purchased

in its
warranties, Plaintiff and the other
amount to be determined
and
paid
for
products
by
that did not conform to what
promotion, marketing, advertising, packaging
of the benefit of their
bargain
had less value than warranted
or
and spent money
products
they known the true facts about them.
28
that
they
on
the Court and/or jury,
and
labeling,
products that did
would not have
and
they
not have any
purchased
and used
Filed 03/06/14
Document 1
Page
29 of 31
29
PagelD
COUNT V
UNJUST ENRICHMENT
(All States)
89. Plaintiff
realleges
and
herein
incorporates
by
reference
paragraphs
88 of this

90.
Orgain
received certain monies
as a
result of its uniform
deceptive marketing
of its
nutritional shakes with ECJ that are excessive and unreasonable.

91. Plaintiff and the Class conferred
nutritional shakes with ECJ, and
accepted and retained the benefits

92.
Orgain will
member is entitled to
has been
be
an
Orgain
has
conferred
on
unjustly
amount
benefit
knowledge
on
Orgain through purchasing
of this benefit and has
its
voluntarily
it.
enriched if it is allowed to retain such funds, and each Class
equal
to the amount
they enriched Orgain and for which Orgain
unjustly enriched.
COUNT VI
Magnuson-Moss Act (15

93. Plaintiff
realleges
and
incorporates
U.S.C.
herein
by
2301,
et seq.)
reference
paragraphs
92 of this

94. Plaintiff and the Class
95. Defendant is
are
"supplier"
96. Defendant's food
"consumers"
as
and "warrantor"
products
are
defined
as
"consumer
by
defined
15 U.S.C.
by
2301(3).
15 U.S.C.
products"
as
defined
2301(4)
by
and
15 U.S.C.
2301(1).
97. Defendant's nutrient and health content claims constitute
29
(5).
"express warranties."
98. Defendant,
through
affirmation of fact and
regulations under federal

99.
Despite
Filed 03/06/14
Document 1
its
package labels,
promising
Page
create express
that its nutritional shakes
30 of 31
warranties
comply
30
PagelD
by making
with food
the
labeling
and New York law.
Defendant's express warranties
regarding
its nutritional shakes,
they
do not
comply with food labeling regulations under federal and New York law.
Defendant breached its express warranties
100.
violation of 15 U.S.C.
its nutritional shakes in
et seq.
Defendant sold Plaintiff and the Class nutritional shakes that
101.
being sold
2301,
regarding
or
and which
legally held,
were
legally
worthless.
were
not
capable
Plaintiff and the Class
paid
of
a
premium price for the nutritional shakes.

102.
have suffered
As
direct and
proximate result
of Defendant's
damages in an amount to be proven
at
actions, Plaintiff and the Class
trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and
judgment against Defendant,

A.
For
an
order
as
certifying the nationwide
and Plaintiff s attorneys

For
an
behalf of all others
similarly situated, seek
follows:
Rules of Civil Procedure and
B.
on
as
Class and under Rule 23 of the Federal
naming Plaintiff as representative
of the Class and
Class Counsel to represent members of the Class;

conduct violates the statutes referenced
order
declaring the Defendant's
order
finding in favor of Plaintiff and the nationwide Class;
herein;
C.
For
D.
For compensatory and
an
punitive damages in amounts to be determined by the
30
Document 1
Filed 03/06/14
Page
31 of 31
PagelD
31
Court and/or jury;

all amounts
E.
For prejudgment interest
F.
For
an
G.
For
injunctive relief as pleaded
H.
For
an
on
awarded;
order of restitution and all other forms of equitable monetary
order
or as
relief;
the Court may deem proper;
awarding Plaintiff and the Class their reasonable attorneys' fees and
expenses and costs of suit; and

I.
Any other relief the Court may deem appropriate.
DEMAND FOR TRIAL BY JURY
Plaintiff, individually
jury trial on all claims
so
and
on
behalf of all others
similarly situated, hereby demands
triable.
Dated: March 6, 2014
Respectfully submitted,
LEE LITIGATION
GROUP, PLLC
C.K. Lee (CL 4086)

30 East 39th Street, Second Floor
New York, NY 10016
Tel.: 212-465-1188
Fax: 212-465-1181
Class
Attorneys for Plaint', an,
By:
Lee
31
Case
.15 44
1:1449A01515-RJD-VMS Document
(Rev. 1/2013)
1-1
Filed 03/06/14
CIVIL COVER
SHEV
11
fili4and
Page
1 of 2
32
PagelD
1'
S_-:';!.,other
;provided
t--
Orgain,
Chang
(b) County of Residence of First Listed Plaintiff

(EXCEPT IN U.S.
Queens
PLAINTIFF
DEAR Ety.
County
Orgain,
Inc. d/b/a
CASES),
NOTE:
Orange County
sidence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY).

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c)
Attorneys OfKnown)
etems, fing .N,rgedi tiff-661410MM,Nnird
30 East 39th Street, Second Floor, New York NY 10016
M .9.3
sci\NLO
(212) 4654188
II. BASIS OF JURISDIC
O 1
(P
0
U.S. Government
Plaintiff
e an
Ftderal
II. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" Or One Boxfar Plaintrff

and One Box for Defendant)
(For Diversity Cases Only)
"X" in One Box Only)
tian
(U.S. Go
PTF
rnment
Nor a
IX 1
Citizen ofThis State
Party)
PIE
DEF
Incorporated
or
Principal Place
DEP
0 4
0 4
ofBusiness In This State
I
0 2
(I
US. Government
Defendant
/4
Diversity
(Indicate
Arenship
Citizen of Another State
0 2
Incorporated
CitizeiiorSubjcctofn
0 3
Foreign Nation
0 6
and Principal Place

of Business In Another State
of Parties in Item 111)
Foreign Country
IV. NATURE OF
Stitt
(Place an "X"
inle
Box
Only)
PERSONAL INJURY
0 310 Airplane
0 315 Airplane Product
0 120 Marine
O 130 Miller Act

O 140 Negotiable Instrument
0 150 Recovery of Overpayment
3.c
0 190
er
0 196 F
LABOR
c
PERSONAL PROPERTY 0 710 Fair Labor Standards
I'
0 370 Other Fraud
Act
0 371 Truth in Lending
0 720 Labor/Management
CP 380 Other Personal
Relations
0 740 Railway Labor Act
Property Damage
0 385 Property Damage
0 751 Family ang Medical
Product Liability
Leave Act
C/ 790 Other Labor Litigation
0 791 Employee Retirement
PRISONER PETITIONS
Liability
0 350 Motor Vehick
0 355 Motor Vehicle
Product Liability
0 360 Other Personal
Contract
t Product Liability
Injury
chise
0 362 Personal Injury.

Medical Malpractice
CIVIL RIGHTS
REAL PROPERTY
CI 210 Land Condemnation

0 220 Foreclosure
0 230 Rent Lease & Ejecnnent
0 240 Torts to Land
0 245 Ton Product Liability
0 290 All Other Real Property
0 440 Other Civil

0 441
0 442
0 443
Rights
Habeas
Income
Corpus:
0 463 Alien Detainee

0 510 Motions to Vacate
Sentence
0 530 General
0 535 Death Penalty.
Voting
Employment
Housing/
Accommodations
0 445 Amer. wiDisabilities
Other:
Employment
CI 446 Anter. w/Disabilities
0 540 Mandamus & Other

0 550 Civil Rights
0 555 Prison Condition
CI 560 Civil Detainee
Other
0 448 Education
tiiiiiiast BANKRUPTCY,
Security Act
1"4"`
P.;-strOTFIER STATUTES
in 422 Appeal 28 USC 158

0 375 False Claims Act
.0 400 Se Reapportionment
0423 Withdrawal
1..., .1.
0 4RK:sa8i:rust
28 USC 157
b 431:11ranks and Banking
rk,
0 450-6ommeme
itvPROPERTY-RIGHTS
0 460 diporcation
73 820 Copyrights _77..:- rri
0 47-0 Racketeer Influenced and
0 830 Patent
0 840 Trademark
:Corrupt Ownizations
-:-..7
-.4
Injury Product
Liability
0 345 Marine Product
Vetetans)
overy of Overpayment
o Veteran's Benefits
0 160 S
kholders' Suits
Drug Related Seizure

of Property 21 USC 881
1 690 Other
Product Liability
0 367 Health Care/..
1
Pharmaceutical
Personal Injury
Product Liability
0 368 Asbestos Personal
Liability
0 153
0 625
0 365 Personal Injury
0 320 Assault, Libel &

Slander
& Enforcement ofJudgment
0 330 Federal Employers'
O 151 Medicare Act
CI 152 Recovery of Defaulted
Liability
0 340 Marine
Student Loans
X 195 C
1 `..-FORFEITURFJPENALTYanl
lititserra, INJURY
O 110 Insurance
xeludes
r--,
SOCLAUSECURITY"...
0 861 HIA (1395E117'
0 862 Black Lung.(923)-)
0 86.3 DIWOD1WW
0 864 SSID Title XVI
11 865 RSI (405(g))
.....r.
(405(g))
0 460ConsurtierCrat
0 490 Cable/SD
0
reit--
g500SecuriiiEsCommoditics/
Exchanket:::
0 IWO Other Statutory Actions

0 891 Agricultural Acts
0-4110 Environmental Matters
COW Freedom of Information
Act
FEDERALTAX SUITS'1,
0 896 Arbitration
0 899 Administrative Procedure
(U.S. Plaintiff
Defendant)
IRSThird Party
or Appeal of
Agency Decision
0 950 Constitutionality of
0 870 Taxes
or
0 871
Act/Review
26 USC 7609
State Statutes
IMMIGRATION,
0 462 Naturalization Application

0 465 Other Immigration
Actions
Conditions of
Confmement
V. ORIGIN 6Place a"
Original
Proceeding
''X" in One Box
Onk)
0 2 Removed from
State Court
0 3
Remanded from
0 4 Reinstated
Appellate Court
or
Reopened
Lite me U.S. (Aim statute under which
VI. CAUSE OF ACTION
28 U.S.C.
1332(d)
REQUESTED
IN
COMPLAINT:
VIII. RELATED
you
are
0 5 Transferred from
Another District
(specify)
0 6
Multidistrict
Litigation
tiling (Do not cite jurisdktional statutes unless diversity):
Brief description of cause:
Claims based
VII.
on
false, deceptive, unfair and misleading statements in labeling of consumer products
tRI CHECK IF THIS Is A CLASS ACTION

UNDER RULE 23, F.R.Cv.P.
CASE(S)
IF ANY
DATE
(See instructions):
JUDGE
DEMAND S
i 0J 000 000
CHECK YES
only ifdemanded in complaint:
JURY DEMAND:
Yes
0 No
DOCKET NUMBER
SIGNATURE OF ATTORNE
03105/2014
FOLP
CbrV1IC lice nous V
RECEIPT a
as
DEFENDANTS
(a) PLAINTIFFS
Allan
service of pleadings or
papers as required by.law, except
September 1974, is required for the use of the Clerk of Court for the
information contained herein neither replace nor supplement the

by local rules of court. This form, approved by the Judicial Conference of the United States in
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
JS*1 civil cover sheet and the
The
AMOUNT
APPLYING
AVP*110P---4VEY3gfi
JUDGE
tia-t)
MAG. JUDGE
V 16
I 61-C
Case
1:111ree431515-RJD-VMS
Document 1-1
Filed 03/06/14
Page
2 of 2
PagelD
33
CERTIFICATION OF ARBITRATION ELIGIBILITY

Leta! Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an
exclusive of interest and costs, are eligible for
certification to the contrary is filed.
Esq, counsel for Alan Chang

ineligible for compulsory arbitration for the following reason(s):
15
C K Lee,
IEI
monetary damages-sought are in

the
is
compulsory arbitration. The amount of damages
excess
do hereby
amount not
presumed to be below
certify
that the above
in
excess
of $150,000,
the threshold amount unless
captioned civil action is
of $150,000, exclusive of interest and costs,
complaint seeks injunctive relief,
the matter is otherwise
ineligible for the following reason
DISCLOSURE STATEMENT
FEDERAL RULES CIVIL PROCEDURE 7.1
Identify any parent corporation and any publicly held corporation that owns
RELATED CASE STATEMENT (Section VIII
on
10%
or more or
the Front of this
its stocks:
Formi
that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a)
civil case is "related" to another civil case for purposes of this guideline whcn, because of the similarity of facts and legal issues or
because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the
A civil case shall not be deemed "related" to another civil case merely because the civil
same judge and magistrate judge?' Rule 50.3.1 (b) provides that
case: (A) involves identical legal issues, or (B) involves the same parties." Rule 50.3.1 (c) further provides that "Presumptively, and subject to the power
of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be "related" unless both cases are still pending before the
court."
Please list all
cases
provides that "A
NY-E DIVISION OF BUSINESS RULE

Is the civil action
1.)
County:
being
filed in the Eastern District removed from
50.1(d)(2)
New York State Court located in Nassau
or
Suffolk
No
If you answered "no" above:
2.)
a) Did the events or omissions giving rise to the

County? N
b) Did the
District?
If your
answer to
events
of omissions
thereof, occur in Nassau or Suffolk
claim
or
claims,
or a
substantial part
giving rise to the claim
or
claims,
or a
substantial part thereof,
occur
in the Eastern
Yes
question 2 (b) is "No, does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or
an interpleader action, does the claimant (or a majority ofthe claimants, if there is more than one) reside in Nassau
Suffolk County, or, in

or Suffolk County?
(Note:
cmoration shall be considered a resident of the County in which it has the most significant contacts).
BAR ADMISSION
am
currently admitted in the Eastern District of New York and currently a member
gl
Are you
Yes
in
good standing of the bar of this court.
No
cuffently the subject of any disciplinary action (s) in this or any other state or federal court?
(If yes, please explain)
El Yes
El No
certify the accuracy of all inform.
Signature:
Ivided above.

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Chang v. Orgain Inc. Complaint

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Case 1:14-cv-01515-RJD-VMS

LEE LITIGATION GROUP, PLLC

UNITED STATES DISTRICT COURT

CLASS ACTION COMPLAINT

behalf of himself and others

through his undersigned attorneys, hereby files this

Defendant, ORGAIN, INC. d/b/a ORGAIN ("Orgain"

investigation of his counsel:

NATURE OF THE ACTION

Drinking beverages containing

that the New York

much sugar has become

Health and Mental

campaign warning against consuming

major health problem

when the sugar in the drink is

whether to drink sugary

Against this backdrop,

nutritional needs, in 2008, Defendant

Defendant knows that the term

that states its

"antioxidant boost." Such terms

Facebook and Twitter to mislead

in its nutritional shakes.

in and continues to engage in

that fit their diet and

began marketing itself

and social media outlets such

"rich in antioxidants" and

Plaintiff brings this

evaporated cane juice ("ECJ")

behalf of himself and all other

and not resale any of

Orgain's shakes listing

unlawful nutrient content claims

the Class Period,

something healthier than

it is. Further, ECJ is not the

any type of juice, and the

that nutrient claims that

made and continues to make

Period, Orgain also

nutritional shakes state that the

that its nutritional shakes contain

its website located at http://www.drinkorgain.com/.

without any further

misleading. Orgain uniformly

of any type of sweetener,

Orgain purposefully misrepresented and

than sugar, dressed up to sound like

nationwide, who, from the applicable limitations period

(the "Class Period"), purchased

the term "antioxidant" disclose the

particular antioxidants present.

specific nutrient that

of the antioxidants its shakes

purportedly "rich in."

actions constitute violations of the federal Food

("FDCA") Section 403(a)(1) (21

well those similar

protection laws in other states.

and New York's

& Cosmetic Act

Defendant violated statutes enacted in each of the