1. 	 the Muscle Milk RTD Products: C)'!osport Whey Isolate Protein  Drink; Monster Milk: Protein Power ShaKe; GenuIne Muscle Milk:  Protein Nutrition Shake; and Muscle MilK Pro Series 40: Mega  Protein Shake;   1. 	 the Muscle Milk RTD Products: CY1osport Whey Isolate Protein  Drink; Monster Milk: Protein Power Shake; GenuIne Muscle Milk:  Protein Nutrition Shake; and Muscle MilK Pro Series 40: Mega  Protein Shake;   15.  It is axiomatic that the amount of reported protein contained within  Defendant's Muscle Milk RID Products is material to any consumer seeking to  purchase a protein supplement. Accordingly, Defendant fortifies each Muscle Milk  RTD Product with Milk Protein Isolate as its primarily, and most important, ingredient.  Milk Protein Isolate differs from raw milk because it is processed to include a higher  concentration of protein and removes much of the fats and carbohydrates traditionally  found in milk and other naturally occurring beverages. Thus, the type of concentrated  protein within the Muscle Milk RID Product is particularly prized.   16.  Defendant labels and advertises all of its protein supplements, especially  its Muscle Milk RTD Products, in a manner that highlights the amount of added protein  contained within. Each Muscle Milk RTD Product lists its respective protein content on  each Product's front label, directly below the title ofthe Product, as well as on the back  nutritional label. Such representations constitute an express warranty regarding the  Muscle Milk R TD Products' protein content.   17.  For example, the Cytosport Whey Isolate Protein Drink's product label  states plainly that it fortified with 32 grams ofprotein on the front ofthe packaging and  also indicates that there are 32 grams ofprotein per bottle (15 grams per serving) in the  Nutrition Facts section I:  1 All product images contained within this complaint were taken from Defendant's  website.  6  2. 	 the Muscle Milk Powder Products: Muscle Milk: Lean Muscle  Protein Powder; Muscle Milk Light: Lean Muscle Protein Powder;  Muscle Milk Naturals: Nature's Ultimate Lean Muscle Proteini  Muscle Milk Gainer: High Protein Gainer Powder Drink Mix; ana  Muscle Milk Pro Series 50: Lean Muscle Mega Protein Powder; and   2. 	 the Muscle Milk Powder Products: Muscle Milk: Lean Muscle  Protein Powder; Muscle Milk Light: Lean Muscle Protein Powder;  Muscle Milk Naturals: Nature's Ultimate Lean Muscle Proteini  Muscle Milk Gainer: High Protein Gainer Powder Drink Mix; ana  Muscle Milk Pro Series )'0: Lean Muscle Mega Protein Powder; and   3. 	 the Lean Muscle Milk Products: Defendant's Muscle Milk: Lean  Muscle Protein Powder; Muscle Milk Light: Lean Muscle Protein  Powder; Muscle Milk Naturals: Nature's Ultimate Lean Muscle  Protein; Muscle Milk Pro Series 50: Lean Muscle Mega Protein  Powder; and Monster Milk: Lean Muscle Protein Supplement.  California Sub-Class:  All persons residing in California who, within  four (4) years of the filing ofthis Complaint, purchased:   3. 	 the Lean Muscle Milk Products: Defendant's Muscle Milk: Lean  Muscle Protein Powder; Muscle Milk Light: Lean Muscle Protein  Powder; Muscle Milk Naturals: Nature's Ultimate Lean Muscle  19  52. 	 Plaintiffs bring this action as a class action pursuant to Federal Rule of  Civil Procedure 23 for the following Class ofpersons:  Nationwide Class:  All persons in the United States who, within four (4)  years ofthe fIlIng of this Complaint, purchased:   60.  Plaintiffs hereby incorporate by reference the allegations contained in the  23  69.  Plaintiffs hereby incorporate by reference the allegations contained in the  preceding paragraphs of this Complaint.   70.  Defendant's Muscle Milk and Cytosport products are a "good" as defined  by California Civil Code §1761(a).  25  82.  Plaintiffs hereby incorporate by reference the allegations contained in the  preceding paragraphs of this Complaint.   83.  The Sherman Law, HEALTH & SAF. CODE §§ 109875 et seq., broadly  prohibits the misbranding ofany food products. The Sherman Law provides that food is  misbranded "if its labeling is false or misleading in any particular." HEALTH & SAF.  91.  Plaintiffs hereby incorporate by reference the allegations contained in the  preceding paragraphs ofthis Complaint.   92.  Plaintiffs and other members of the Class and the and the California Sub­ Class who purchased Defendant's Muscle Milk and Cytosport products suffered a  substantial injury by virtue of buying a product that misrepresented and/or omitted the  true contents and benefits of its protein, L-glutamine, and fat contents. Had Plaintiffs  and members ofthe Class and the and the California Sub-Class known that Defendant's  materials, advertisement and other inducements misrepresented and/or omitted the true  contents and benefits of its Muscle Milk and Cytosport products, they would not have  purchased said products.   93.  Defendant's actions alleged herein violate the laws and public policies of  California and the federal government, as set out preceding paragraphs of this  Complaint.   94.  There is no benefit to consumers or competition by allowing Defendant to  deceptively market, advertise, package and label its Muscle Milk and Cytosport  products.   95.  Plaintiffs and Class and the and the California Sub-Class members who  purchased Defendant's Muscle Milk and Cytosport products had no way of reasonably  knowing that these products were deceptively marketed, advertised, packaged and  labeled. Thus, Class and the California Sub-Class members could not have reasonably  avoided the injury they suffered.  29  99. 	 Plaintiffs hereby incorporate by reference the allegations contained in the  30  A. 	 Misrepresentations Regarding Defendant's RTD Products' Protein  Content   Breach of Express Warranty (On Behalf of the Nationwide Class)  129. Plaintiffs hereby incorporate by reference the allegations contained in the  preceding paragraphs ofthis Complaint.  130. Plaintiffs and each member ofthe Class formed a contract with Defendant  at the time Plaintiff and the other members of the Class purchased one or more of the  Muscle Milk RTD Products and/or Muscle Milk Powder Products. The terms of that  contract include the promises and affirmations of fact made by Defendant on the  packaging ofthe Muscle Milk Powder Products regarding the Products' "Protein Blend"  and on the packaging ofthe Muscle Milk RID Products regarding the Products' protein  content.  131. The Muscle Milk and Cytosport products' packaging constitute express  warranties, became part of the basis of the bargain, and are part of a standardized  contract between Plaintiffs and the members of the Nationwide Class on the one hand,  and Defendant on the other.  132. All conditions precedent to Defendant's liability under this contract have  been performed by Plaintiffs and the Class.  133. Defendant breached the terms of this contract, including the express  warranties, with Plaintiffs and the Class by not providing the products that could provide  the benefits promised, i.e. that the Products contains a "Protein Blend" which included  L-glutamine and providing Products that include the warranted amount of protein, as  alleged above.  134. As a result of Defendant's breach of its contract, Plaintiffs and the Class  have been damaged in the amount of the different purchase price of any and all ofthe  Muscle Milk RID Products and Muscle Milk Powder Products they purchased and the  price ofa product which provides the benefits and contents as warranted.  III  36  Violation of FLA. STAT. §§ 501.201, et seq. ­ Deceptive and Unfair"Trade Practices  (On Behalf of the Florida Sub-Class)  104. Plaintiffs hereby incorporate by reference the allegations contained in the  preceding paragraphs ofthis Complaint.  105. Plaintiff Reichert is a consumer as defined by FLORIDA STATUTE § 501.203.  106. Defendant's Muscle Milk and Cytosport products are goods within the  meaning of FLORIDA STATUTE §§ 501.201, et seq.  107. Defendant engaged in trade or commerce, as defined by FLA. STAT. §  501.203, by advertising, soliciting, providing, offering, or distributing its Muscle Milk  and Cytosport products with the State of Florida.  108. FLORIDA STATUTE § 500.11(l)(a) deem food (including nutritional  supplements) misbranded when the labels contains a statement that is "false or  misleading in any particular" and adopts the federal labeling requirements as Florida law.  109. Federal/state statutes and regulations prohibit misleads consumers by  including an ingredient in each Muscle Milk and Cytosport product's nutritional labels  which is not actually included in the products themselves or overstating the amount of  certain nutritional ingredients.  110. Additionally, the word "lean" to may not be used to describe a food product  or dietary supplement unless it complies with definitional requirements of 21 C.F .R. §  101.62(e). If a food product is described as lean, and does not comply with 21 C.F.R. §  101.62(e), the food is considered misbranded. 21 C.F.R. § 101.62(f).  Ill. Plaintiff Reichert and other members of the Florida Sub-Class who  purchased Defendant's Muscle Milk and Cytosport products suffered substantial injury  by virtue of buying a product that misrepresented and/or omitted the true nature of its  protein, L-glutamine, and fat content. Had Plaintiff Reichert and other reasonable  consumers known that Defendant's materials, advertisements and other inducements  misrepresented and/or omitted the true contents and benefits of its Muscle Milk and  32  Violation of CAL. Bus. & PROF. CODE §§ 17200, et seq. ­ Unlawful Business Acts and Practices  (On Behalf of the Nationwide Class and the California Sub-Class)   Violation of M.C.L. §§ 445.901, et seq. ­ Deceptive and Unfair Trade Practices  (On Behalf of the Michigan Sub-Class)  118. Plaintiffs hereby incorporate by reference the allegations contained in the  preceding paragraphs ofthis Complaint.  119. Plaintiff Ehrlichman and Defendant are persons as defined by M.C.L. §  445.902(d).  120. Defendant engaged in trade or commerce, as defined by M.C.L. §  445.902(g), by advertising, soliciting, providing, offering, or distributing its Muscle  Milk and Cytosport products with the State of Michigan.  121. MICHIGAN FOOD LAW ACT 92 of 2000 deem food (including nutritional  supplements) misbranded when the labels contains a statement that is "false or  misleading in any particular" and adopts the federal labeling requirements as Michigan  law.  122. Federal/state statutes and regulations prohibit misleading consumers by  including an ingredient in each Muscle Milk and Cytosport product's nutritional labels  that is not actually included in the products themselves or overstating the amount of  certain nutritional ingredients.  123. Additionally, the word "lean" may not be used to describe a food product  or dietary supplement unless it complies with definitional requirements of 21 C.F .R. §  101.62(e). Ifa food product is described as lean, and does not comply with 21 C.F.R. §  101.62(e), the food is considered misbranded. 21 C.F.R. § 101.62(f).  34  Violation of 15 U.S.C. §§ 2301 et seq. ­ Breach of Written Warranty  (On Behalf of the Nationwide C1ass)  135. Plaintiffs hereby incorporate by reference the allegations contained in the  preceding paragraphs ofthis Complaint.  136. This claim is brought by Plaintiffs on behalf of themselves and the  nationwide Class solely for breach of federal law. This claim is not based on any  violation of state law.  137. The Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq., creates a  private federal cause ofaction for breach of a "written warranty" as defined by the Act.  15 U.S.C. § 2301(6) and § 2310(d)(1).  138. The Muscle Milk Powder Products and Muscle Milk RTD Products are  "consumer products" as that term is defined by 15 U.S.C. § 2301(1), as they constitute  tangible personal property which is distributed in commerce and which is normally used  for personal, family or household purposes.  139. Plaintiffs and members of the Class are "consumers" as defined by 15  U.S.C. § 2301(3), since they are buyers of Muscle Milk Powder Products and Muscle  Milk RTD Products for purposes other than resale.  140. Defendant is an entity engaged in the business of making and selling  dietary supplements available, either directly or indirectly, to consumers such as  Plaintiffs and the Class. As such, Defendant is a "supplier" as defined in 15 U.S.C. §  2301(4).  141. Through its labeling, Defendant gave and offered a written warranty to  consumers relating to the nature and quantity ofL-glutamine contains within the Muscle  Milk Powder Products and the protein contents ofthe Muscle Milk RID Products. As a  result, Defendant is a "warrantor" within the meaning of 15 U.S.C. § 2301(5).  142. Defendant provided a "written warranty" within the meaning of 15 U.s.C.  2301(6) for the Muscle Milk Powder Products by labeling its products as containing L­ 37  Violation of CAL. Bus. & PROF. CODE §§ 17500, et seq.­  Untrue, Misleading and Deceptive Advertising  (On Behalf of the Nationwide Class and the California Sub-class)   Violation of CAL. Bus. & PROF. CODE SS 17200, et seq. ­ Fraudulent Business Acts and Yractices  (On Behalf of the Nationwide Class and the California Sub-class)   Violation of CAL. CIY. CODE §§ 1750, et seq.­  Misrepresentation of a Product's standard, guality, sponsorship approval, and/or certificatIOn  (On Behajf ofthe California Subclass)   Violation of CAL. Bus. & PROF. CODE §§ 17200, et seq. ­ Unfair Business Acts and Practices  (On Behalf of the Nationwide Class and the California Suh-class)  