73.  Plaintiff brings this action as a class action pursuant to Federal Rule of Procedure  23(b)(2) and 23(b)(3) on behalf of the following “class:”    All persons in the United States since May 4, 2008 who purchased Eskimo Pie Dark  Chocolate with labels that state “No Sugar Added.”   74.  The following persons are expressly excluded from the class:  (1) Defendant and  its subsidiaries and affiliates; (2) all persons who make a timely election to be excluded from the  proposed class; (3) governmental entities; and (4) the Court to which this case is assigned and its  staff.   75.  This action can be maintained as a class action because there is a well-defined  community of interest in the litigation and the proposed class is easily ascertainable.   76.  Numerosity:  Based upon Defendant’s publicly available sales data with respect to  the misbranded products at issue, it is estimated that the class numbers in the thousands and that  joinder of all class members is impracticable.   77.  Common Questions Predominate:  This action involves common questions of law  and fact applicable to each class member that predominate over questions that affect only  individual class members.  Thus, proof of a common set of facts will establish the right of each  class member to recover.  Questions of law and fact common to each class member include, just  for example:  a.  Whether the Eskimo Pie is misbranded under the Sherman Law;  b.  Whether Defendants violated the Sherman Law;   c.  Whether Defendant made unlawful and/or misleading claims with respect  to its Eskimo Pie sold to consumers;  Case5:14-cv-00283-PSG   Document1   Filed01/17/14   Page14 of 25 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  84.  Plaintiff incorporates by reference each allegation set forth above.  Case5:14-cv-00283-PSG   Document1   Filed01/17/14   Page16 of 25 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  95.  Plaintiff incorporates by reference each allegation set forth above.   96.  Defendant’s conduct as set forth herein constitutes unfair business acts and  practices.   97.  Defendant sold Eskimo Pie in California and the United States during the Class  Period.   98.  Plaintiff and members of the class suffered a substantial injury by virtue of buying  Defendant’s Eskimo Pie that she would not have purchased absent Defendant’s illegal conduct.   99.  Defendant’s deceptive marketing, advertising, packaging and labeling of its  Eskimo Pie and its sale of unsalable misbranded products that were illegal to possess was of no  benefit to consumers, and the harm to consumers and competition is substantial.  100.  Defendant sold Plaintiff and the Eskimo Pie that were not capable of being legally  sold or held and that were legally worthless.  101.  Plaintiff and the class who purchased Defendant’s Eskimo Pie had no way of  reasonably knowing that the products were misbranded and were not properly  marketed,  advertised, packaged and labeled, and thus could not have reasonably avoided the injury each of  them suffered.  102.  The consequences of Defendant’s conduct as set forth herein outweigh any  justification, motive or reason therefore.  Defendant’s conduct is and continues to be immoral,  unethical, unscrupulous, contrary to public policy, and is substantially injurious to Plaintiff and  the class.  Plaintiff and the class paid a premium price for Eskimo Pie.  103.  As a result of Defendant’s conduct, Plaintiff and the class, pursuant to Business  and Professions Code § 17203, are entitled to an order enjoining such future conduct by  Defendant, and such other orders and judgments which may be necessary to disgorge Defendant’s  ill-gotten gains and restore any money paid for Defendant’s Eskimo Pie by Plaintiff and the class.    Case5:14-cv-00283-PSG   Document1   Filed01/17/14   Page18 of 25 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Business and Professions Code § 17200 et seq. - Fraudulent Business Acts and Practices  104.  Plaintiff incorporates by reference each allegation set forth above.  105.  Defendant’s conduct as set forth herein constitutes fraudulent business practices  under California Business and Professions Code sections § 17200 et seq.  106.  Defendant sold Eskimo Pie in California and the United States during the Class  Period.  107.  Defendant’s misleading marketing, advertising, packaging and labeling of Eskimo  Pie and misrepresentation that the products were salable, capable of possession and not  misbranded were likely to deceive reasonable consumers, and in fact, Plaintiff and members of  the class were deceived.  Defendant has engaged in fraudulent business acts and practices.  108.  Defendant’s fraud and deception caused Plaintiff and the class to purchase  Defendant’s Eskimo Pie that she would otherwise not have purchased had she known the true  nature of those products.  109.  Defendant sold Plaintiff and the class Eskimo Pie that were not capable of being  sold or held legally and that were legally worthless.  Plaintiff and the class paid a premium price  for the Eskimo Pie.  110.  As a result of Defendant’s conduct as set forth herein, Plaintiff and the class,  pursuant to Business and Professions Code § 17203, are entitled to an order enjoining such future  conduct by Defendant, and such other orders and judgments which may be necessary to disgorge  Defendant’s ill-gotten gains and restore any money paid for Defendant’s Eskimo Pie by Plaintiff  and the class.    Business and Professions Code § 17500 et seq. - Untrue Advertising  119.  Plaintiff incorporates by reference each allegation set forth above.  120.  Plaintiff asserts this cause of action against Defendant for violations of California  Business and Professions Code § 17500 et seq., regarding untrue advertising.  121.  Defendant sold Eskimo Pie in California and the United States during the Class  Period.   122.  Defendant engaged in a scheme of offering Defendant’s Eskimo Pie for sale to  Plaintiff and the class by way of product packaging and labeling, and other promotional materials.   These materials misrepresented and/or omitted the true contents and nature of Defendant’s  Eskimo Pie.  Defendant’s advertisements and inducements were made in California and come  within the definition of advertising as contained in Business and Professions Code §17500 et seq.  in that the product packaging and labeling, and promotional materials were intended as  inducements to purchase Defendant’s Eskimo Pie, and are statements disseminated by Defendant  to Plaintiff and the class.  Defendant knew, or in the exercise of reasonable care should have  known, that these statements were untrue.  123.  In furtherance of its plan and scheme, Defendant prepared and distributed in  California and nationwide via product packaging and labeling, and other promotional materials,  statements that falsely advertise the composition of Defendant’s Eskimo Pie, and falsely  misrepresented the nature of those products.  Plaintiff and the class were the intended targets of  such representations and would reasonably be deceived by Defendant’s materials.  124.  Defendant’s conduct in disseminating untrue advertising throughout California  deceived Plaintiff and members of the class by obfuscating the contents, nature and quality of  Defendant’s Eskimo Pie in violation of the “untrue prong” of California Business and Professions  Code § 17500.  Case5:14-cv-00283-PSG   Document1   Filed01/17/14   Page21 of 25 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Business and Professions Code § 17500 et seq. - Misleading and Deceptive Advertising  111.  Plaintiff incorporates by reference each allegation set forth above.  112.  Plaintiff asserts this cause of action for violations of California Business and  Professions Code § 17500 et seq. for misleading and deceptive advertising against Defendant.  Case5:14-cv-00283-PSG   Document1   Filed01/17/14   Page19 of 25 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Business and Professions Code § 17200 et seq. - Unlawful Business Acts and Practices   Business and Professions Code § 17200 et seq. - Unfair Business Acts and Practices   Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.  127.  Plaintiff incorporates by reference each allegation set forth above.  128.  This cause of action is brought pursuant to the CLRA. Defendant’s violations of  the CLRA were and are willful, oppressive and fraudulent, thus supporting an award of punitive  damages.  129.  Plaintiff and the class are entitled to actual and punitive damages against  Defendant for its violations of the CLRA. In addition, pursuant to Cal. Civ. Code § 1782(a)(2),  Plaintiff and the class are entitled to an order enjoining the above-described acts and practices,  providing restitution to Plaintiff and the class, ordering payment of costs and attorney’s fees, and  any other relief deemed appropriate and proper by the Court pursuant to Cal. Civ. Code § 1780.  130.  Defendant’s actions, representations and conduct have violated, and continue to  violate the CLRA, because she extend to transactions that are intended to result, or which have  resulted, in the sale of goods or services to consumers.  131.  Defendant sold Eskimo Pie in California and in the United States during the Class  Period.  132.  Plaintiff and members of the class are “consumers” as that term is defined by the  CLRA in Cal. Civ. Code §1761(d).  133.  Defendant’s Eskimo Pie were and are “goods” within the meaning of Cal. Civ.  Case5:14-cv-00283-PSG   Document1   Filed01/17/14   Page22 of 25 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28 