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DECLARATION OF SETH A. SAFIER IN SUPPORT OF REPLY MEMORANDUM ERROR! UNKNOWN DOCUMENT 

PROPERTY NAME.

DECLARATION OF SETH A. SAFIER ISO MOTIONS TO INTERVENE AND AMEND

1

GUTRIDE SAFIER LLP

ADAM J. GUTRIDE (State Bar No. 181446)

SETH A. SAFIER (State Bar No. 197427)

KRISTEN SIMPLICIO (State Bar No. 263291)

ANTHONY PATEK (State Bar No. 228964)

100 Pine Street, Suite 1250

San Francisco, California 94111

Telephone: (415) 639-9090

Facsimile: (415) 449-6469

adam@gutridesafier.com

seth@gutridesafier.com

kristen@gutridesafier.com

anthony@gutridesafier.com

Attorneys for Plaintiffs in-Intervention

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACKIE FITZHENRY-RUSSELL, on behalf 

of herself, the general public and those 

similarly situated,

 Plaintiff,

v.

THE COCA COLA COMPANY,

 Defendant.

CASE NO. 5:17-CV-00603-EJD

DECLARATION OF SETH A. SAFIER IN 

SUPPORT OF PLAINTIFFS-ININTERVENTION’S MOTION TO 

INTERVENE AND PLAINTIFF’S 

MOTION FOR LEAVE TO AMEND

Hon. Edward J. Davila

May 16, 2019 at 9:00 a.m.

San Jose Courthouse, Courtroom 4 - 5th Floor

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DECLARATION OF SETH A. SAFIER IN SUPPORT OF REPLY MEMORANDUM ERROR! UNKNOWN DOCUMENT 

PROPERTY NAME.

DECLARATION OF SETH A. SAFIER ISO MOTIONS TO INTERVENE AND AMEND

2

I, Seth A. Safier, declare:

1. I am an attorney licensed to practice before this Court. I am a partner in Gutride 

Safier LLP, counsel for plaintiff in this action. I make this declaration of my own personal 

knowledge, and if called to testify, I could and would competently testify hereto under oath.

2. Attached hereto as Exhibit 1 is a true and correct copy of a proposed second 

amended complaint in this action.

3. Attached hereto as Exhibit 2 is a true and correct copy of redline comparing the 

proposed second amended complaint to the first amended complaint in this action.

4. Attached hereto as Exhibit 3 is a true and correct copy of uncorrected testimony from 

Plaintiff Fitzhenry Russell. 

Executed this 29th day of January, 2019, at San Francisco, California. I declare under 

penalty of perjury under the laws of the United States that the foregoing is true and correct.

_______/s/ Seth A. Safier________ __ Seth A. Safier

Case 5:17-cv-00603-EJD Document 75-1 Filed 01/29/19 Page 2 of 94
Exhibit 1

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-1-

Class Action Complaint

GUTRIDE SAFIER LLP

ADAM J. GUTRIDE (State Bar No. 181446)

SETH A. SAFIER (State Bar No. 197427) 

MARIE A. MCCRARY (State Bar No. 262670) 

100 Pine Street, Suite 1250

San Francisco, CA 94111

Telephone: (415) 271-6469

Facsimile: (415) 449-6469

MATTHEW T. MCCRARY (admitted pro hac vice)

265 Franklin St, Suite 1702

Boston, MA 02110

Telephone: (214) 502-2171

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JACKIE FITZHENRY-RUSSELL, DAVID 

SWARTZ, ASHLEY SALCEDO, SCOTT 

MILLER, ISABELO PASCUAL, FLORIN 

CARLIN, and KRISTINA HOFFMAN, on 

behalf of themselves, the general public and 

those similarly situated,

 Plaintiff,

v.

THE COCA COLA COMPANY, and DOES 1-

50,

 Defendants.

CASE NO. 5:17-CV-00603-EJD

UNLIMITED CIVIL CASE

SECOND AMENDED COMPLAINT 

FOR VIOLATION OF THE 

CONSUMER PROTECTION ACTS OF 

50 STATES AND THE DISTRICT OF 

COLUMBIA; FRAUD, DECEIT, 

AND/OR MISREPRESENTATION; 

VIOLATION OF CALIFORNIA’S 

FALSE ADVERTISING AND UNFAIR 

COMPETITION LAWS

JURY TRIAL DEMANDED

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Class Action Complaint

INTRODUCTION

1. Plaintiffs Jackie Fitzhenry-Russell, David Swartz, Ashley Salcedo, Scott Miller, 

Isabelo Pascual, Florin Carlin, and Kristina Hoffman, by and through their counsel, bring this 

class action against Defendants The Coca Cola Company and Does 1-50, inclusive, on behalf of 

themselves, the general public, and those similarly situated, for violations of the Consumer 

Protection Acts of all 50 states and the District of Columbia; common law fraud, deceit, and/or 

misrepresentation; violations of California’s False Advertising Law; and violation of California’s

Unfair Competition Law. The following allegations are based upon information and belief, 

including the investigation of Plaintiffs’ counsel, unless stated otherwise. 

2. This case concerns Defendants’ false and deceptive labeling, advertising, 

marketing, and sale of all Seagram’s brand ginger ales labeled as “Made with Real Ginger”

(“Seagram’s or the “Products”).1 This representation leads consumers to reasonably believe that 

Defendants’ soft drink is made with, and contains, real ginger root—not chemically derived 

extracts of the ginger plant—and that consumers who drink the soft drink will receive the health 

benefits associated with consuming real ginger root. Indeed, consumer surveys demonstrate that 

more than 75% of people believe a drink claiming to be “Made with Real Ginger” is made using

actual ginger root and not extracts. Further consumer research demonstrates that when a marketer 

claims its product is made with an ingredient that is widely known to be healthy—such as ginger 

root, which has long been perceived as a natural remedy—then consumers will reasonably infer 

that the product is a healthier alternative to products that are not made with the ingredient.

3. In truth, Defendants’ soft drink is not made with real ginger root. Instead, 

Seagram’s Ginger Ale is made with carbonated water, high fructose corn syrup, citric acid, 

preservatives, and “natural flavors,” i.e., a flavor compound that is manufactured in a laboratorysetting using various chemicals and extraction processes. Although the flavor compound contains 

a miniscule amount of ginger flavor extract, reasonable consumers expect the drink to be made 

 1

 These include at least the following: Seagram’s Ginger Ale; Seagram’s Diet Ginger Ale; 

Seagram’s Ginger Ale, 25% Fewer Calories; Seagram’s Raspberry Ginger Ale; Seagram’s Diet 

Raspberry Ginger Ale. 

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Class Action Complaint

with ginger root, not a ginger flavor extract because the product states it is “Made with Real 

Ginger.” Further, the miniscule amount of flavor extract comprises barely three parts per million 

of the final beverage. When a manufacturer claims a product is “made with” a particular 

ingredient, reasonable consumers expect the product to be a “good source” of that ingredient. 

Here, that would require there to be enough “real ginger” to provide the health benefits 

consumers associate with the ingredient, or at least to impart a ginger flavor to the beverage. This 

microscopic amount of ginger flavor extract does neither. It provides none of the health benefits 

consumers associate with real ginger and even appears to fall below the threshold concentration at 

which the average consumer can perceive a “ginger” flavor, requiring the addition of other flavors 

to mimic or enhance the perceptibility of “ginger.”2 Defendants’ product labels never disclose 

that the ginger ale is made with a miniscule amount of a flavor compound manufactured to mimic 

the taste of real ginger root, rather than with real ginger root.

4. Throughout the Class Period, Defendants prominently made the claim “Made with 

Real Ginger” on the front label panel of all of its Seagram’s Ginger Ale cans and bottles, 

cultivating a wholesome and healthful image in an effort to promote the sale of its soft drink and 

to compete with small batch ginger ales that are made with real ginger root. Consumers rely on 

and value the representation “Made with Real Ginger” because studies have found that real ginger 

root has health benefits when consumed. The “Made with Real Ginger” claim caused consumers 

to pay a price premium of at least 6% of the purchase price.

PARTIES 

5. Jackie Fitzhenry-Russell is, and at all times alleged in this Class Action Complaint 

was, an individual and a resident of Santa Cruz, California. 

6. David Swartz is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Berkeley, California.

7. Ashley Salcedo is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Harrisburg, Pennsylvania.

 2 See Fisher, C. and Scott T., Food Flavours Biology and Chemistry (1997) (noting that the 

threshold concentration for tasting ginger compounds is between 7 and 17 parts per million).

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Class Action Complaint

8. Scott Miller is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Auburndale, Florida.

9. Isabelo Pascual is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Los Angeles, California.

10. Florin Carlin is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of St. Petersburg, Florida.

11. Kristina Hoffman is, and at all times alleged in this Class Action Complaint was, 

an individual and a resident of Medford, New Jersey. 

12. Defendant The Coca Cola Company is a corporation existing under the laws of the 

State of Delaware, having its principal place of business in Atlanta, Georgia.

13. The true names and capacities of Defendants sued as Does 1 through 50, inclusive, 

are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names pursuant to 

section 474 of the California Code of Civil Procedure. Plaintiff will seek leave of Court to amend 

this Class Action Complaint when said true names and capacities have been ascertained.

14. The Parties identified in paragraphs 13-14 of this Class Action Complaint are 

collectively referred to hereafter as “Defendants.” 

15. At all times herein mentioned, each of the Defendants was the agent, servant, 

representative, officer, director, partner or employee of the other Defendants and, in doing the 

things herein alleged, was acting within the scope and course of his/her/its authority as such 

agent, servant, representative, officer, director, partner or employee, and with the permission and 

consent of each Defendant.

16. At all times herein mentioned, each of the Defendants was a member of, and 

engaged in, a joint venture, partnership and common enterprise, and acted within the course and 

scope of, and in pursuance of, said joint venture, partnership and common enterprise.

17. At all times herein mentioned, the acts and omissions of each of the Defendants 

concurred and contributed to the various acts and omissions of each and all of the other 

Defendants in proximately causing the injuries and damages as herein alleged.

18. At all times herein mentioned, each of the Defendants ratified each and every act 

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Class Action Complaint

or omission complained of herein.

19. At all times herein mentioned, each of the Defendants aided and abetted the acts 

and omissions of each and all of the other Defendants in proximately causing the damages, and 

other injuries, as herein alleged.

JURISDICTION AND VENUE

20. This Court has jurisdiction over the subject matter of this action pursuant to 28 

U.S.C. § 1332(d)(2). Defendant averred on removal that the matter in controversy exceeds 

$5,000,000, exclusive of interest and costs, and this action is a class action in which at least one 

member of the class is a citizen of a State different from the Defendants. 

21. The injuries, damages and/or harm upon which this action is based, occurred or 

arose out of activities engaged in by Defendants within, affecting, and emanating from, the State 

of California. Defendants regularly conduct and/or solicit business in, engage in other persistent 

courses of conduct in, and/or derive substantial revenue from products provided to persons in the 

State of California. Defendants have engaged, and continue to engage, in substantial and 

continuous business practices in the State of California.

22. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a 

substantial part of the events or omissions giving rise to the claims occurred in the State of 

California, including within this District.

23. In accordance with California Civil Code Section 1780(d), Plaintiff concurrently 

files herewith a declaration establishing that, at various times throughout the class period, she 

purchased Seagram’s Ginger Ale in Santa Cruz, California and Capitola, California. (Plaintiff’s 

declaration is attached hereto as Exhibit A.)

24. Plaintiffs accordingly alleges that jurisdiction and venue are proper in this Court.

SUBSTANTIVE ALLEGATIONS

Defendants’ Ginger Ales. 

25. Defendants manufacture, distribute, market, advertise, and sell soft drinks in the 

United States under several brand names, including “Seagram’s.” Defendants’ packaging for the 

Seagram’s Ginger Ale predominately, uniformly, and consistently state on the principal display 

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Class Action Complaint

panel of the product labels that it is “Made with Real Ginger”.

26. The representation that the Product is “Made with Real Ginger” was uniformly 

communicated to Plaintiffs and every other person who purchased any of the Products. An 

exemplar the Product’s product label is attached hereto as Exhibit B. The same or substantially 

similar product label has appeared on each bottle or can sold (as those shown in Exhibit B) during 

the entirety of the Class Period. 

27. As described in detail below, Defendants’ advertising and labeling of the Product, 

as made with “Real Ginger” is false, misleading, and intended to induce consumers to purchase 

the ginger ales, at a premium price, while ultimately failing to meet consumer expectations. These 

representations deceive and mislead reasonable consumers into believing that the Product is made 

with, and contains, real ginger root—not chemically derived extracts of the ginger plant—and that 

consumers who drink the soft drink will receive the health benefits associated with consuming 

real ginger root. Indeed, consumer surveys demonstrate that more than 75% of people believe a 

drink claiming to be “Made with Real Ginger” is made using actual ginger root and not extracts.

Further consumer research demonstrates that when a marketer claims its product is made with an 

ingredient that is widely known to be healthy—such as ginger root, which has long been 

perceived as a natural remedy—then consumers will reasonably infer that the product is a 

healthier alternative to products that are not made with the ingredient.

28. In fact, the Product is not made with real ginger. Instead, Seagram’s is made with

carbonated water, high fructose corn syrup, citric acid, preservatives, and “natural flavors,” i.e., a 

flavor compound that is manufactured in a laboratory-setting using various chemicals and 

extraction processes. Although the flavor compound contains a miniscule amount of ginger flavor 

extract, reasonable consumers expect the drink to be made with ginger root, not a ginger flavor 

extract because the product states it is “Made with Real Ginger.” Further, the miniscule amount of 

flavor extract comprises barely three parts per million of the final beverage. 

29. When a manufacturer claims a product is “made with” a particular ingredient, 

reasonable consumers expect the product to be a “good source” of that ingredient. Here, that 

would require there to be enough “real ginger” to provide the health benefits consumers associate 

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Class Action Complaint

with the ingredient, or at least to impart a ginger flavor to the beverage. This microscopic amount 

of ginger flavor extract does neither. It provides none of the health benefits consumers associate 

with real ginger and even appears to fall below the threshold concentration at which the average 

consumer can perceive a “ginger” flavor, requiring the addition of other flavors to mimic or 

enhance the perceptibility of “ginger.”

Consumer Demand for Real Ginger

30. Many American consumers are health conscious and seek wholesome, natural 

foods to keep a healthy diet, so they routinely take nutrition information into consideration in 

selecting and purchasing food items. Product package labels convey nutrition information to 

consumers that they use to make purchasing decisions. As noted by FDA commissioner Margaret 

Hamburg during an October 2009 media briefing, “[s]tudies show that consumers trust and 

believe the nutrition facts information and that many consumers use it to help them build a 

healthy diet.” Consumers attribute a myriad of benefits to ginger and foods made with real ginger 

root.

31. Ginger root has been used for thousands of years for the treatment of numerous 

ailments, such as colds, nausea, arthritis, migraines, and hypertension. Scientific studies have 

confirmed that ginger has anti-inflammatory effects and aids in relaxing muscles, is effective in 

alleviating symptoms of nausea and vomiting, has anti-carcinogenic qualities, and appears to 

reduce cholesterol and improve lipid metabolism, thereby helping to decrease the risk of 

cardiovascular disease and diabetes. The benefits of consuming ginger have been widely 

publicized to consumers in the United States in recent years. 

Federal and State Regulations Governing Food Labeling

32. The Food and Drug Administration has defined “natural flavor” to mean “the 

essential oil, oleoresin, essence or extractive, protein hydrolysate, distillate, or any product of 

roasting, heating or enzymolysis, which contains the flavoring constituents derived from a spice, 

fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar 

plant material, meat, seafood, poultry, eggs, dairy Product, or fermentation products thereof, 

whose significant function in food is flavoring rather than nutritional.” 21 C.F.R. 501.22(a)(3). In 

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Class Action Complaint

other words, a “natural flavor” is one that contains some oil, protein, or essence from a plant or

animal. But it bears little resemblance to the actual plant or animal from which it is derived. 

Rather, natural flavors are made in a laboratory by scientists who make determinations on how to 

replicate a flavor using chemicals found in nature. 

33. While it may be that ginger root is used in the creation of the natural flavor, it is 

not ginger as a reasonable consumer would understand it. Rather, the scientists that created the 

“natural flavor” added to the Product would have isolated proteins from the cells and tissue of the 

ginger root or extracted oils or essences from the ginger root. But because those isolated 

compounds may not actually taste like ginger, the scientist would have then combined those 

extractions with any number of other extractions from other plants and animals to create a 

flavoring substance that tastes like ginger. See https://www.scientificamerican.com/article/whatis-the-difference-be-2002-07-29/ (describing the process for creating natural flavors) (last 

accessed October 21, 2016). 

34. Identical federal and California laws regulate the content of labels on packaged 

food and require truthful, accurate information on the labels of packaged foods. The requirements 

of the federal Food, Drug & Cosmetic Act (“FDCA”), and its labeling regulations, including 

those set forth in 21 C.F.R. §§ 101 and 102, were adopted by the California legislature in the 

Sherman Food Drug & Cosmetic Law (the “Sherman Law”). California Health & Safety Code § 

110100 (“All food labeling regulations and any amendments to those regulations adopted 

pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be 

the food labeling regulations of this state.”). The federal laws and regulations discussed below are 

applicable nationwide to all sales of packaged food Product. Additionally, no state imposes 

different requirements on the labeling of packaged food for sale in the United States. 

35. Under both the Sherman Law and FDCA section 403(a), food is “misbranded” if 

“its labeling is false or misleading in any particular,” or if it does not contain certain information 

on its label or in its labeling. California Health & Safety Code § 110660; 21 U.S.C. § 343(a). 

36. Under the FDCA, the term false has its usual meaning of “untruthful,” while the 

term misleading is a term of art that covers labels that are technically true, but are likely to 

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Class Action Complaint

deceive consumers. Under the FDCA, if any single representation on the labeling is false or 

misleading, the entire food is misbranded, and no other statement in the labeling can cure a 

misleading statement.

37. Further in addition to its blanket adoption of federal labeling requirements, 

California has also enacted a number of laws and regulations that adopt and incorporate specific 

enumerated federal food laws and regulations. See California Health & Safety Code § 110660 

(misbranded if label is false and misleading); California Health & Safety Code § 110705 

(misbranded if words, statements and other information required by the Sherman Law are either 

missing or not sufficiently conspicuous); and California Health & Safety Code § 110740 

(misbranded if contains artificial flavoring, artificial coloring and chemical preservatives but fails 

to adequately disclose that fact on label).

38. Under California law, a food product that is “misbranded” cannot legally be 

manufactured, advertised, distributed, sold, or possessed. Misbranded Product has no economic 

value and are legally worthless.

39. Representing that a soft drink is made with “real ginger” is a statement of fact, and 

use of this phrase on the labels of packaged food is limited by the aforementioned misbranding 

laws and regulations. 

Defendants’ Marketing and Labeling of its Ginger Ales Violates State and Federal Food 

Labeling Laws 

40. The Product is unlawful, misbranded and violates the Sherman Law, California 

Health & Safety Code § 110660, et seq., because the Product’s labels include the phrase “Made 

with Real Ginger,” even though they are not made using real ginger. Instead, the Product is

made with a complex flavoring compound (i.e., “natural flavors”) that is manufactured 

in a laboratory-setting using various chemicals and extraction processes and designed to mimic 

the taste of ginger. Although the flavor compound contains a miniscule amount of ginger flavor 

extract, reasonable consumers expect the drink to be made with ginger root, not a ginger flavor 

extract because the product states it is “Made with Real Ginger.” They also expect the beverage to 

be a good source of “real ginger” since Defendants highlighted that the beverage was “made 

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with” that ingredient. In truth, the miniscule amount of flavor extract Defendants use to make 

Seagram’s comprises barely three parts per million of the final beverage. Seagram’s is not made 

with, and does not contain, real ginger as a reasonable consumer would understand it, nor does it

provide any of the health benefits that would be obtained if real ginger root were used or present.

The microscopic amount of flavor extract even appears to fall below the threshold concentration 

at which the average consumer can perceive a “ginger” flavor, requiring the addition of other 

flavors to mimic or enhance the perceptibility of “ginger.”

41. Defendants’ marketing, advertising, and sale of the Product violates the false 

advertising provisions of the Sherman Law (California Health & Safety Code § 110390, et. seq.), 

including but not limited to:

a. Section 110390, which makes it unlawful to disseminate false or misleading food 

advertisements that include statements on products and product packaging or 

labeling or any other medium used to directly or indirectly induce the purchase of 

a food product;

b. Section 110395, which makes it unlawful to manufacture, sell, deliver, hold or 

offer to sell any falsely or misleadingly advertised food; and

c. Sections 110398 and 110400, which make it unlawful to advertise misbranded

food or to deliver or proffer for delivery any food that has been falsely or 

misleadingly advertised.

42. Defendants’ marketing, advertising, and sale of the Product violates the 

misbranding provisions of the Sherman Law (California Health & Safety Code § 110660, et. 

seq.), including but not limited to:

d. Section 110665 (a food is misbranded if its labeling does not conform with the 

requirements for nutrition labeling as set forth in 21 U.S.C. Sec. 343(q));

e. Section 110705 (a food is misbranded if words, statements and other information 

required by the Sherman Law to appear food labeling is either missing or not 

sufficiently conspicuous);

f. Section 110740 (a food is misbranded if it contains artificial flavoring, artificial 

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coloring and chemical preservatives but fail to adequately disclose that fact on 

their labeling);

g. Section 110760, which makes it unlawful for any person to manufacture, sell, 

deliver, hold, or offer for sale any food that is misbranded;

h. Section 110765, which makes it unlawful for any person to misbrand any food; 

and

i. Section 110770, which makes it unlawful for any person to receive in commerce 

any food that is misbranded or to deliver or proffer for delivery any such food.

43. Defendants have violated 21 U.S.C. § 343(a), and the standards set by FDA 

regulations, including but not limited to 21 C.F.R. §§ 101.3, 101.13, 101.14, 101.22, and 101.65 

which have been incorporated by reference in the Sherman Law, by failing to include on their 

product labels the nutritional information required by law.

Defendants’ Marketing and Labeling of its Ginger Ales is False, Deceptive and Misleading

44. A reasonable consumer would expect that the Products contain what Defendants 

identifies them to contain on the product labels. A reasonable consumer would expect that when 

Defendants label the Product as being “Made with Real Ginger,” the soft drinks are made with, 

and contain, real ginger, i.e., ginger root, and not chemically-derived flavor extracts.

45. Moreover, Defendants do not disclose on the product labels that the Product is

flavored with a chemical compound that was manufactured to mimic the flavor of ginger. 

Consumers lack the meaningful ability to test or independently ascertain the truthfulness of 

Defendants’ food labeling claims, especially at the point of sale. Consumers would not know the 

true nature of the ginger flavoring merely by reading the ingredient label; its discovery requires 

investigation beyond the grocery store and knowledge of food chemistry beyond that of the 

average consumer. An average consumer does not have the specialized knowledge necessary to 

ascertain that the ginger flavor in the soft drink is not from the presence of real ginger in the soft 

drink but instead comes from a flavor compound manufactured to make the drink taste like 

ginger. That, combined with Defendants’ active concealment in representing the Product as being 

“Made with Real Ginger,” and not disclosing otherwise, gave the average reasonable consumer 

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no reason to suspect that Defendants’ representations on the packages were not true, and therefore 

consumers had no reason to investigate whether the soft drinks contained real ginger. Thus, 

reasonable consumers relied on Defendants’ representations regarding the nature of the Products. 

Such reliance by consumers is also eminently reasonable, since food companies are prohibited 

from making false or misleading statements on their products under federal law. 

46. Defendants intend and know that consumers will and do rely upon food labeling 

statements in making their purchasing decisions. Label claims and other forms of advertising and 

marketing drive product sales, particularly if placed prominently on the front of product 

packaging, as Defendants have done with the “Made with Real Ginger” claim.

Defendants’ Website and Other Marketing Confirms That Defendants Intends to Deceive 

Consumers

47. Defendants’ own long standing advertising and marketing materials show that 

Defendants intended to deceive consumers into believing the false and deceptive packaging of the 

Product.

48. Defendants’ advertising campaign typically shows a picture of the bottle or can of 

the Product, where the words “Made with Real Ginger” Are prominently featured. The can with 

those words appears both on Defendants’ websites and in a variety of print advertisements.

49. Defendants also permit and encourage their marketing partners, including grocery 

stores, to advertise, market, advertise and sell the Product as a soft drink “Made with Real 

Ginger.” Defendants provide their marketing partners information, including posters, signs, end 

cap displays, etc., that specifically represent that the Product is “Made with Real Ginger.” 

Further, in sales sheets, sales presentations, and other marketing materials, Defendants state that 

the Product is “Made with Real Ginger.”

50. In short, Defendants’ advertising and marketing campaign confirms that 

Defendants intend to deceive consumers through misrepresentations on the Product’s product 

labels. More specifically, Defendants intend that consumers who read the Product’s labels 

believe that the Product is made with, and contains, real ginger, i.e., ginger root, and not 

chemically-derived flavor extracts.

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Defendants’ Employ Misleading Marketing Their Ginger Ales To Increase Profits and Gain 

a Competitive Edge

51. Defendants do not use real ginger in their Product as doing so is more expensive 

than using flavoring compound. In recent years, numerous studies have found the presence of 

lead in ginger, and manufacturers and retailers of other products containing ginger root, such as 

cookies and candies, have been sued by the California Attorney General. Thus, the diligent 

sourcing and testing procedures that would be required when using real ginger to ensure the 

product they sell is safe are more expensive to adopt than simply using “natural flavor.” In 

addition, the cost of real ginger has increased in recent years, due to changes in weather in China, 

which produces 75% of the world’s ginger. See http://www.producenews.com/news-depmenu/test-featured/9579-ginger-prices-skyrocket-on-shrinking-supply (last accessed October 21, 

2016).

52. In the last decade, in response to news reports about the dangers of high fructose 

corn syrup and soda’s role in contributing to the increased rates of obesity and diabetes in this 

country, many consumers are drinking less soda, and are seeking out instead, healthier beverages, 

like iced teas and flavored waters. See http://www.nytimes.com/2015/10/04/upshot/soda-industrystruggles-as-consumer-tastes-change.html?_r=0 (last accessed October 21, 2016). And while soda 

sales are declining, one segment of the category is on the rise – small companies and brands that 

emphasize their use of natural ingredients, such as Reed’s, Bruce Cost, Maine Root, and Grown 

Up Soda. In 2014, the Specialty Food Association noted that healthy beverages were growing in 

popularity, as was the market for more sophisticated, specialty sodas containing all natural 

ingredients. See https://www.specialtyfood.com/news/article/rise-healthy-beverages/ (last 

accessed October 21, 2016). Thus, many small craft soda companies are flourishing in response to 

increased consumer demand for alternatives to sodas made with high fructose corn syrup, 

artificial ingredients, and preservatives. Facing a public hostile to “Big Soda” and finding its sales 

dwindling due to the newer, healthier brands, Defendants have an incentive to emphasize the 

presence of ginger in the Product to appeal to consumers seeking real ingredients instead of a 

traditional soda. 

53. In making the false, misleading, and deceptive representations, Defendants 

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distinguish their ginger ales from their competitors’ Product. Defendants knew and intended that 

consumers would purchase, and pay a premium for, ginger ales labeled as being made with “Real 

Ginger,” over comparable ginger ales that do not contain these representations on the product 

labels. By using this branding strategy, Defendants are stating that their ginger ales are superior 

to, better than, and more nutritious and healthful than other brands of ginger ales that do not 

proclaim to be made with “Real Ginger.” For example, other brands of ginger ales that do not 

contain the false, misleading, and deceptive representation that they are made with “Real Ginger,” 

include brands such as Dr. Brown’s and Vernors. 

54. Further, Defendants knew and intended their representations to help them compete 

with small batch bottling companies that do make ginger ales using real ginger root. Defendants 

added the “Made with Real Ginger” representation to their product labels to compete with such 

small batch bottling companies that have increased in popularity in recent years. For example, 

Bruce Cost Ginger Ale is made with fresh whole ginger root and represents this fact to consumers 

in its advertising and on its product packaging. Likewise Reed’s is brewed using ginger root and 

represents this fact to consumer on its label.

55. Because consumers pay a price premium for products made with real ginger, by 

labeling their products as containing real ginger without actually using the expensive ingredient, 

Defendants are able to both increase their sales and retain more in profits. Studies have shown 

that the “Made with Real Ginger” representation caused consumers to pay a premium of at least 

6% of the purchase price for the Products.

56. Defendants engaged in the practices complained of herein to further their private 

interests of: (i) increasing sales of their ginger ales, while decreasing the sales of ginger ales that 

do not claim to be made with real ginger and those ginger ales that are truthfully offered as made 

with real ginger by Defendants’ competitors, and/or (ii) commanding a higher price for their 

ginger ales because consumers will pay more for these soft drinks due to the consumers’ demand 

for products containing real ginger because of the perceived benefits. 

Defendants Intend to Continue To Market Beverages as Being Made with “Real Ginger” 

that Do Not Contain Ginger. 

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57. Because of the growing market described above and because Defendants know 

consumers rely on representations about the presence of real ginger in beverages, Defendants 

have an incentive to continue to make such false representations. In addition, other trends suggest 

that Defendants have no incentive to change their labeling practices.

58. For example, ginger ale is a particularly strong growing flavor in the healthy soda 

category. In December 2015, a brand manager for a competing brand, Schweppes, described 

ginger as a “growing flavor trend.” See http://www.prnewswire.com/news-releases/schweppesintroduces-new-dark-ginger-ale-packed-with-a-refreshing-bolder-taste-300188635.html. 

59. Defendants are also likely seeking to diversify their beverage portfolio in response 

to the changing market, the booming craft soda market, and the decreased demand for traditional 

sodas from big manufacturers. Defendants, who have in the past acquired smaller companies that 

compete with their bigger brands (e.g. acquiring Blue Sky despite selling sodas under the Coca 

Cola and Sprite brand names), will likely desire to do the same to maintain their competitive edge 

and ensure they are offering ginger ales at all segments of the market.

PLAINTIFFS’ EXPERIENCES

Plaintiff Fitzhenry-Russell’s Experiences

60. Plaintiff Fitzhenry-Russell made several purchases of the Product from Safeway, 

located in Santa Cruz, CA, and a Lucky, located in Capitola, CA. She made each of her purchases 

of the Product after reading and relying on the truthfulness of Defendants’ product label that 

promised that the Products were “Made with Real Ginger.” Ms. Fitzhenry-Russell believed this 

meant that Seagram’s was made with ginger root and was, as a result, a healthier alternative to 

regular sodas. Ms. Fitzhenry-Russell has long known that ginger root is a natural remedy, and that 

it can soothe an upset stomach and reduce inflammation. She believed that a product claiming to 

be “Made with Real Ginger” would contain enough ginger to provide the health benefits she 

associated with real ginger. 

61. At the time of each purchase of Seagram’s, Ms. Fitzhenry-Russell did not know 

that the Products she purchased were not made with real ginger, but were instead made with a 

miniscule amount of a ginger flavor extract, which does not provide any of the health benefits of 

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real ginger. As a result of Defendants’ misrepresentations and omissions, the Products have no, 

or, at, a minimum, a much lower, value to Ms. Fitzhenry-Russell. As a result of Defendants’ 

misrepresentations and omissions, Ms. Fitzhenry-Russell was injured by paying more money for 

Seagram’s than she would have paid. Indeed, had Defendants not mispresented the true nature of 

Seagram’s, Ms. Fitzhenry-Russell would not have purchased Seagram’s or would have paid a 

lower price for it.

62. Ms. Fitzhenry-Russell continues to desire to purchase ginger ale made with real 

ginger, including brands marketed and sold by Defendants. If Defendants’ Products were 

reformulated to be made with real ginger, i.e., made with ginger root, Ms. Fitzhenry-Russell

would likely purchase Defendants’ Products again in the future. Ms. Fitzhenry-Russell regularly 

visit stores where Defendants’ Products and other ginger ale beverages are sold. Because Ms. 

Fitzhenry-Russell does not know the formula for Defendants’ Products and cannot test whether or 

not the beverages are made with ginger root before purchasing, Ms. Fitzhenry-Russell will be 

unable to rely on Defendants’ labels when shopping for ginger ales in the future absent an 

injunction that prohibits Defendants from labeling its Products with the phrase “Made with Real 

Ginger” unless the product is actually made with ginger root rather than a miniscule amount of a 

ginger flavor extract. Likewise, Because of changes in the market, Ms. Fitzhenry-Russell cannot 

know at any given time, which brands are owned by Defendants and whether its representations 

about “real ginger” are truthful. Thus, Ms. Fitzhenry-Russell is likely to be repeatedly presented 

with false or misleading information when shopping for ginger ale, making it difficult to make 

informed purchasing decisions. Should Defendants begin to market and sell a new brand of ginger 

ale, Ms. Fitzhenry-Russell could be at risk for buying another one of Defendants’ Products in 

reliance on the same or similar misrepresentation.

Plaintiff David Swartz’s Experiences

63. Plaintiff David Swartz frequently purchased the Products in California during the 

class period. He made each of his purchases of the Product after reading and relying on the 

truthfulness of Defendants’ product label that promised that the Products were “Made with Real 

Ginger.” Mr. Swartz believed this meant that Seagram’s was made with ginger root and was, as a 

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Class Action Complaint

result, a healthier alternative to regular sodas. Mr. Swartz purchased Seagram’s ginger ale 

because he believed that the real ginger in the beverage helped him and other persons in his 

family with stomach related issues. He believed that a product claiming to be “Made with Real 

Ginger” would contain enough ginger to provide the health benefits he associated with real 

ginger. 

64. At the time of each purchase of Seagram’s, Mr. Swartz did not know that the 

Products he purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Mr. Swartz. As a result of Defendants’ misrepresentations and 

omissions, Mr. Swartz was injured by paying more money for Seagram’s than he would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Mr. Swartz would 

not have purchased Seagram’s or would have paid a lower price for it.

65. Mr. Swartz continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Mr. Swartz would likely purchase 

Defendants’ Products again in the future. Mr. Swartz regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Mr. Swartz does not know the formula 

for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Mr. Swartz will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Mr. Swartz cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Mr. Swartz is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Mr. Swartz could be at risk for buying another one of Defendants’

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Products in reliance on the same or similar misrepresentation.

Plaintiff Salcedo’s Experiences

66. Plaintiff Salcedo has purchased Seagram’s for years at her local Walmart, and in 

other nearby stores in Harrisburg, Pennsylvania. She made each of her purchases of the Product 

after reading and relying on the truthfulness of Defendants’ product label that promised that the 

Products were “Made with Real Ginger.” Ms. Salcedo believed this meant that Seagram’s was 

made with ginger root and was, as a result, a healthier alternative to regular sodas. Ms. Salcedo

specifically purchased the Seagram’s ginger ale for the health properties of ginger, i.e., helping 

with stomach flu, cold, nausea, anti-inflammation, and digestive regulation. She believed that a 

product claiming to be “Made with Real Ginger” would contain enough ginger to provide the 

health benefits she associated with real ginger. 

67. At the time of each purchase of Seagram’s, Ms. Salcedo did not know that the 

Products she purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Ms. Salcedo. As a result of Defendants’ misrepresentations and 

omissions, Ms. Salcedo was injured by paying more money for Seagram’s than she would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Ms. Salcedo would 

not have purchased Seagram’s or would have paid a lower price for it.

68. Ms. Salcedo continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Ms. Salcedo would likely purchase 

Defendants’ Products again in the future. Ms. Salcedo regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Ms. Salcedo does not know the 

formula for Defendants’ Products and cannot test whether or not the beverages are made with 

ginger root before purchasing, Ms. Salcedo will be unable to rely on Defendants’ labels when 

shopping for ginger ales in the future absent an injunction that prohibits Defendants from labeling 

its Products with the phrase “Made with Real Ginger” unless the product is actually made with 

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Class Action Complaint

ginger root rather than a miniscule amount of a ginger flavor extract. Likewise, Because of 

changes in the market, Ms. Salcedo cannot know at any given time, which brands are owned by 

Defendants and whether its representations about “real ginger” are truthful. Thus, Ms. Salcedo is

likely to be repeatedly presented with false or misleading information when shopping for ginger 

ale, making it difficult to make informed purchasing decisions. Should Defendants begin to 

market and sell a new brand of ginger ale, Ms. Salcedo could be at risk for buying another one of 

Defendants’ Products in reliance on the same or similar misrepresentation.

Plaintiff Miller’s Experiences

69. Plaintiff Scott Miller was purchasing Seagram’s ginger ale every month until early 

2015. He made each of his purchases of the Product after reading and relying on the truthfulness 

of Defendants’ product label that promised that the Products were “Made with Real Ginger.” Mr. 

Miller believed this meant that Seagram’s was made with ginger root and was, as a result, a 

healthier alternative to regular sodas. Mr. Miller stopped purchasing Seagram’s in early 2015 

after he tried Fever Tree ginger ale, which made him question the veracity of Defendant’s “Made 

with Real Ginger” representation. 

70. At the time of each purchase of Seagram’s, Mr. Miller did not know that the 

Products he purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Mr. Miller. As a result of Defendants’ misrepresentations and 

omissions, Mr. Miller was injured by paying more money for Seagram’s than he would have paid. 

Indeed, had Defendants not mispresented the true nature of Seagram’s, Mr. Miller would not have 

purchased Seagram’s or would have paid a lower price for it.

71. Mr. Miller continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Mr. Miller would likely purchase 

Defendants’ Products again in the future. Mr. Miller regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Mr. Miller does not know the formula 

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Class Action Complaint

for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Mr. Miller will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Mr. Miller cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Mr. Miller is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Mr. Miller could be at risk for buying another one of Defendants’

Products in reliance on the same or similar misrepresentation.

Plaintiff Pascual’s Experiences

72. Plaintiff Isabelo Pascual frequently purchased two liter bottles of Seagram’s from 

Ralph’s grocery stores and 7-11 convenience stores in California during the class period. He

made each of his purchases of the Product after reading and relying on the truthfulness of 

Defendants’ product label that promised that the Products were “Made with Real Ginger.” Mr. 

Pascual believed this meant that Seagram’s was made with ginger root and was, as a result, a 

healthier alternative to regular sodas. He believed that a product claiming to be “Made with Real 

Ginger” would contain enough ginger to provide the health benefits he associated with real 

ginger. 

73. At the time of each purchase of Seagram’s, Mr. Pascual did not know that the 

Products he purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Mr. Pascual. As a result of Defendants’ misrepresentations and 

omissions, Mr. Pascual was injured by paying more money for Seagram’s than he would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Mr. Pascual would 

not have purchased Seagram’s or would have paid a lower price for it.

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74. Mr. Pascual continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Mr. Pascual would likely purchase 

Defendants’ Products again in the future. Mr. Pascual regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Mr. Pascual does not know the formula 

for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Mr. Pascual will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Mr. Pascual cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Mr. Pascual is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Mr. Pascual could be at risk for buying another one of Defendants’

Products in reliance on the same or similar misrepresentation.

75.

Plaintiff Carlin’s Experiences

76. Plaintiff Carlin purchased Seagram’s ginger ale approximately every two weeks 

from the Publix grocery store in her neighborhood in Florida for the past two years. Prior to that, 

she would occasionally purchase Seagram’s ginger ale. About two years ago, she switched from 

other carbonated soft drinks to Seagram’s because of the “Made with Real Ginger” 

representation. Ms. Carlin believed this meant that Seagram’s was made with ginger root and 

was, as a result, a healthier alternative to regular sodas. She bought Seagram’s for the antiinflammatory and stomach calming benefits associated with ingesting real ginger root. Ms. Carlin

believed that a product claiming to be “Made with Real Ginger” would contain enough ginger to 

provide the health benefits she associated with real ginger. However, she stopped purchasing 

Seagram’s recently when she learned the truth of the matter from news reports about litigation 

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Class Action Complaint

involving Canada Dry ginger ale.

77. At the time of each purchase of Seagram’s, Ms. Carlin did not know that the 

Products she purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Ms. Carlin. As a result of Defendants’ misrepresentations and 

omissions, Ms. Carlin was injured by paying more money for Seagram’s than she would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Ms. Carlin would 

not have purchased Seagram’s or would have paid a lower price for it.

78. Ms. Carlin continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Ms. Carlin would likely purchase 

Defendants’ Products again in the future. Ms. Carlin regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Ms. Carlin does not know the formula 

for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Ms. Carlin will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Ms. Carlin cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Ms. Carlin is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Ms. Carlin could be at risk for buying another one of Defendants’

Products in reliance on the same or similar misrepresentation.

Plaintiff Hoffman’s Experiences

79. Plaintiff Hoffman purchased Seagram’s ginger ale approximately every two weeks 

from the from the Acme and the Shoprite groceries stores in her neighborhood since she moved to 

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New Jersey a few years ago. She typically, but not exclusively, purchased the screw top bottle 

format, as opposed to cans. Before that time, she would occasionally purchase Seagram's ginger 

ale, among other ginger ales. Shortly after she returned to New Jersey from California a few 

years ago, she switched from other carbonated soft drinks to Seagram’s because of the “Made 

with Real Ginger” representation. Ms. Hoffman believed this meant that Seagram’s was made 

with ginger root and was, as a result, a healthier alternative to regular sodas. She bought 

Seagram’s for herself and for her two young daughters based upon the anti-inflammatory and 

stomach calming benefits associated with ingesting real ginger root. Ms. Hoffman believed that a 

product claiming to be “Made with Real Ginger” would contain enough ginger to provide the 

health benefits she associated with real ginger. However, she stopped purchasing Seagram’s 

recently when she learned the truth of the matter from news reports about litigation involving 

Canada Dry ginger ale.

80. At the time of each purchase of Seagram’s, Ms. Hoffman did not know that the 

Products she purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Ms. Hoffman. As a result of Defendants’ misrepresentations 

and omissions, Ms. Hoffman was injured by paying more money for Seagram’s than she would 

have paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Ms. Hoffman

would not have purchased Seagram’s or would have paid a lower price for it.

81. Ms. Hoffman continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Ms. Hoffman would likely purchase 

Defendants’ Products again in the future. Ms. Hoffman regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Ms. Hoffman does not know the 

formula for Defendants’ Products and cannot test whether or not the beverages are made with 

ginger root before purchasing, Ms. Hoffman will be unable to rely on Defendants’ labels when 

shopping for ginger ales in the future absent an injunction that prohibits Defendants from labeling 

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its Products with the phrase “Made with Real Ginger” unless the product is actually made with 

ginger root rather than a miniscule amount of a ginger flavor extract. Likewise, Because of 

changes in the market, Ms. Hoffman cannot know at any given time, which brands are owned by 

Defendants and whether its representations about “real ginger” are truthful. Thus, Ms. Hoffman is

likely to be repeatedly presented with false or misleading information when shopping for ginger 

ale, making it difficult to make informed purchasing decisions. Should Defendants begin to 

market and sell a new brand of ginger ale, Ms. Hoffman could be at risk for buying another one of 

Defendants’ Products in reliance on the same or similar misrepresentation.

CLASS ALLEGATIONS

82. Plaintiff brings this action against Defendants, on behalf of herself and all others 

similarly situated, as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 

Plaintiffs seek to represent the following groups of similarly situated persons, defined as follows: 

All persons who, between December 23, 2012 and the present, purchased any 

of the Defendants’ Product (the “Nationwide Class”).

83. Plaintiffs also seek certification of the following subclass: all members of the 

Nationwide Class who made their purchases in Alabama, Arizona, California, Connecticut, 

Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, 

Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, 

Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, 

Rhode Island, South Carolina, Vermont, Washington, West Virginia, or Wyoming (the 

“Consumer Unfairness/Unlawfulness Subclass”).

84. Plaintiffs Fitzhenry-Russell, Swartz, and Pascual also seek to represent a subclass 

of those members of the Nationwide Class who purchased any of Defendants’ Products in 

California (the “California Subclass”).

85. Plaintiff Salcedo also seeks to represent a subclass of those members of the 

Nationwide Class who purchased any of Defendants’ Products in Pennsylvania (the 

“Pennsylvania Subclass”).

86.

87. Plaintiff Hoffman also seeks to represent a subclass of those members of the 

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Nationwide Class who purchased any of Defendants’ Products in New Jersey (the “New Jersey

Subclass”).

88. Plaintiffs Miller and Carlin also seek to represent a subclass of those members of 

the Nationwide Class who purchased any of Defendants’ Products in Florida (the “Florida 

Subclass”).

89. The Nationwide Class, as well as the Subclasses are referred to collectively as the 

“Classes.”

90. Plaintiffs reserve the right to propose additional or further subclasses or narrowing 

of the above class and subclass definitions, based on the evidence adduced in discovery, or as 

necessary and appropriate.

91. In each of the causes of action pled below, a statement that the count is alleged on 

behalf of a particular class or subclass includes all subclasses thereof, including subclasses that 

may later be proposed as described in the prior paragraph.

92. Plaintiffs and members of the Classes have been economically damaged by their 

purchase of Seagram’s because the advertising for Seagram’s was and is untrue and/or misleading 

under applicable law; therefore, Seagram’s is worth less than what Plaintiffs and members of the 

Classes paid for it and/or Plaintiff and members of the Classes did not receive what they 

reasonably intended to receive.

93. As a direct and proximate result of Defendants’ unfair and wrongful conduct, as 

set forth herein, Plaintiffs and class members: (1) were misled into purchasing Seagram’s; (2) 

received a product that failed to meet their reasonable expectations and Defendants’ promises; (3) 

paid a premium sum of money for a product that was not as represented and, thus, were deprived 

of the benefit of the bargain because the purchased ginger ale had less value than what was 

represented by Defendants; and (4) ingested a substance that was other than what was represented 

by Defendants and that Plaintiff and class members did not expect.

94. This action is properly brought and may be maintained as a class action because it 

satisfies all of the prerequisites of Rule 23.

95. Numerosity: Plaintiffs do not know the exact size the Classes, but they far exceed

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100 persons. The persons in the Classes are so numerous that the joinder of all such persons is 

impracticable and the disposition of their claims in a class action rather than in individual actions 

will benefit the parties and the courts.

96. Typicality: Named Plaintiffs are all typical of the Classes because they were 

subject to the same fraudulent scheme of Defendants as every other class member. They 

purchased Seagram’s based on Defendants’ false representation that it was “Made from Real 

Ginger.” They, like all other class members, paid a premium as a result of that misrepresentation 

and suffered economic injury as a result. Thus, Plaintiffs and the class members sustained the 

same injuries and damages arising out of Defendants’ conduct in violation of the law. The 

injuries and damages of each class member were caused directly by Defendants’ wrongful 

conduct in violation of law as alleged.

97. Adequacy: Plaintiffs will fairly and adequately protect the interests of all class 

members because it is in their best interests to prosecute the claims alleged herein to obtain full 

compensation due to them for the unfair and illegal conduct of which they complain. Plaintiffs 

have no interests that are in conflict with, or antagonistic to, the interests of class members. 

Plaintiffs have retained highly competent and experienced class action attorneys to represent their 

interests and that of the class. By prevailing on their own claims, Plaintiffs will establish 

Defendants’ liability to all class members. Plaintiffs and their counsel have the necessary 

financial resources to adequately and vigorously litigate this class action, and Plaintiffs and 

counsel are aware of their fiduciary responsibilities to the class members and are determined to 

diligently discharge those duties by vigorously seeking the maximum possible recovery for class 

members.

98. Commonality and Predominance: This action involves common questions the 

common answers of which will drive the resolution of this case for all class members because 

each class member’s claim derives from the deceptive, unlawful and/or unfair statements and 

omissions that led consumers to believe that Seagram’s was made using ginger root. Defendants’

product label was the same on all Seagram’s products throughout the class period. Its formula 

likewise remained unchanged. Thus, all of the central issues in this case will be resolved via 

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common proof for all class members, establishing that common issues predominate over any 

individual issues. The questions of law and fact common to the Classes are:

a) whether the Product is “Made with Real Ginger;”

b) whether Defendants unfairly, unlawfully and/or deceptively misrepresented 

that the Product is “Made with Real Ginger;”

c) whether the use of the phrase “Made with Real Ginger” on the primary 

display panel of the Product violated Federal and/or California state law; 

d) whether the advertising of the product as Made with Real Ginger causes it 

to command a premium in the market as compared with similar products 

that do not make such a claim;

e) whether Defendants’ advertising and marketing regarding the Product sold 

to the class members was likely to deceive the class members and/or was 

unfair;

f) Whether a “Made with Real Ginger” claim on product packaging and 

advertising is material to a reasonable consumer;

g) whether Defendants engaged in the alleged conduct knowingly, recklessly, 

or negligently; 

h) the amount of profits and revenues earned by Defendants as a result of the 

conduct;

i) whether class members are entitled to restitution, injunctive and other 

equitable relief and, if so, what is the nature (and amount) of such relief; 

and

j) whether class members are entitled to payment of actual, incidental, 

consequential, exemplary and/or statutory damages plus interest thereon, 

and if so, what is the nature of such relief.

99. Superiority: There is no plain, speedy, or adequate remedy other than by 

maintenance of this class action. The prosecution of individual remedies by members of the 

classes will tend to establish inconsistent standards of conduct for Defendants and result in the 

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impairment of class members’ rights and the disposition of their interests through actions to 

which they were not parties. Class action treatment will permit a large number of similarly 

situated persons to prosecute their common claims in a single forum simultaneously, efficiently, 

and without the unnecessary duplication of effort and expense that numerous individual actions 

would engender. Furthermore, as the damages suffered by each individual member of the classes 

may be relatively small, the expenses and burden of individual litigation would make it difficult 

or impossible for individual members of the class to redress the wrongs done to them, while an 

important public interest will be served by addressing the matter as a class action.

100. Plaintiffs are unaware of any difficulties that are likely to be encountered in the 

management of this action that would preclude its maintenance as a class action. 

CAUSES OF ACTION

Plaintiffs do not plead, and hereby disclaim, causes of action under the FDCA and 

regulations promulgated thereunder by the FDA. Plaintiffs rely on the FDCA and FDA 

regulations only to the extent such laws and regulations have been separately enacted as state law 

or regulation or provide a predicate basis of liability under the state and common laws cited in the 

following causes of action. 

PLAINTIFFS’ FIRST CAUSE OF ACTION

(Violation of the Consumer Protection Acts of 50 States and the District of Columbia, Including, 

without limitation, the Consumers Legal Remedies Act (the “CLRA”), California Civil Code § 

1750, et seq.)

On Behalf of the Nationwide Class

101. Plaintiffs reallege and incorporates the above paragraphs of this Complaint as if 

fully set forth herein.

102. Plaintiffs bring this claim on behalf of the Classes for violation of the consumer 

protection acts of each of the States of the United States, and the District of Columbia.

103. Plaintiffs bring these statutory consumer protection claims pursuant to the 

substantially similar “Consumer Protection Acts” identified below, all of which were enacted and 

designed to protect consumers against unlawful, fraudulent, and/or unfair business acts and 

practices.

104. The following consumer protection acts are collectively referred to herein as the 

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“Consumer Protection Acts”:

a. ALA. CODE § 8-19-1 et seq. (Alabama);

b. ALASKA STAT. ANN. § 45.50.471 et seq. (Alaska);

c. ARIZ. REV. STAT. ANN. § 44-1521 et seq. (Arizona);

d. ARK. CODE ANN. § 4-88-101 et seq. (Arkansas);

e. CAL. CIV. CODE § 1750 et seq. (California);

f. COLO. REV. STAT. ANN. § 6-1-101 et seq. (Colorado);

g. CONN. GEN. STAT. ANN. § 42-110a et seq. (Connecticut);

h. DEL. CODE ANN. tit. 6, § 2511 et seq. (Delaware);

i. D.C. CODE ANN. § 28-3901 et seq. (District of Columbia);

j. FLA. STAT. ANN. § 501.201 et seq. (Florida);

k. GA. CODE ANN. § 10-1-370 et seq. and GA. CODE ANN. § 10-1-390 et 

seq. (Georgia);

l. HAW. REV. STAT. ANN. § 480-1 et seq. and HAW. REV. STAT. ANN. 

§ 481A-1 et seq. (Hawai’i);

m. IDAHO CODE ANN. § 48-601 et seq. (Idaho);

n. 815 ILCS 505/1 et seq. (Illinois);

o. IND. CODE ANN. § 24-5-0.5-0.1 et seq. (Indiana);

p. IOWA CODE § 714.16 et seq.

q. KAN. STAT. ANN. § 50-623 et seq. (Kansas);

r. KY. REV. STAT. ANN. § 367.110 et seq. (Kentucky);

s. LA. STAT. ANN. § 51:1401 et seq. (Louisiana);

t. ME. REV. STAT. tit. 5, § 205-A et seq. (Maine);

u. MD. CODE ANN., COM. LAW § 13-101 et seq. (Mary-land);

v. MASS. GEN. LAWS ANN. ch. 93A, § 1 et seq. (Massachusetts);

w. MICH. COMP. LAWS ANN. § 445.901 et seq. (Michigan);

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x. MINN. STAT. ANN. § 325F.68 et seq., MINN. STAT. ANN. § 325D.09 et 

seq., MINN. STAT. ANN. § 325D.43 et seq., and MINN. STAT. ANN. § 

325F.67 (Minnesota);

y. MISS. CODE ANN. § 75-24-1 et seq. (Mississippi);

z. MO. ANN. STAT. § 407.010 et seq. (Missouri);

aa. MONT. CODE ANN. § 30-14-101 et seq. (Montana);

bb. NEB. REV. STAT. ANN. § 59-1601 et seq. (Nebraska);

cc. NEV. REV. STAT. ANN. § 41.600 and NEV. REV. STAT. ANN. 

§598.0903 et seq. (Nevada);

dd. N.H. REV. STAT. ANN. § 358-A:1 et seq. (New Hampshire);

ee. N.J. STAT. ANN. § 56:8-1 et seq. (New Jersey);

ff. N.M. STAT. ANN. § 57-12-1 et seq. (New Mexico);

gg. N.Y. GEN. BUS. LAW. § 349 et seq. (New York);

hh. N.C. GEN. STAT. ANN. § 75-1 et seq. (North Carolina);

ii. N.D. CENT. CODE ANN. § 51-15-01 et seq. (North Dakota);

jj. OHIO REV. CODE ANN. § 1345.01 et seq. (Ohio);

kk. OKLA. STAT. ANN. tit. 15, § 751 et seq. (Oklahoma);

ll. OR. REV. STAT. ANN. § 646.605 et seq. (Oregon);

mm. 73 PA. STAT. ANN. § 201-1 et seq. (Pennsylvania);

nn. 6 R.I. GEN. LAWS ANN. § 6-13.1-1 et seq. (Rhode Island);

oo. S.C. CODE ANN. § 39-5-10 et seq. (South Carolina);

pp. S.D. CODIFIED LAWS § 37-24-1 et seq. (South Dakota);

qq. TENN. CODE ANN. § 47-18-101 et seq. (Tennessee);

rr. TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (Texas);

ss. UTAH CODE ANN. § 13-11-1 et seq. (Utah);

tt. VT. STAT. ANN. tit. 9, § 2451 et seq. (Vermont);

uu. VA. CODE ANN. § 59.1-196 et seq. (Virginia);

vv. WASH. REV. CODE ANN. § 19.86.010 et seq. (Washing-ton);

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ww. W.VA. CODE ANN. § 46A-6-101 et seq. (West Virginia);

xx. WIS. STAT. ANN. § 100.20 (Wisconsin); and

yy. WYO. STAT. ANN. § 40-12-101 et seq. (Wyoming).

105. Plaintiffs and members of the Classes have standing to assert claims under the 

Consumer Protection Acts because they are consumers within the meaning of the Consumer 

Protection Acts and Defendants’ practices were addressed to the market generally and otherwise 

implicate consumer protection concerns.

106. Defendants have engaged in and continue to engage in the unfair, unlawful and 

deceptive trade practices outlined in this Class Action Complaint. 

107. Throughout the class period, Defendants have unfairly and deceptively advertised 

and represented to Plaintiffs and class members that Seagram’s was “Made with Real Ginger.” 

But Defendants failed to inform Plaintiffs and class members that Seagram’s was not made with

real ginger but was instead made from a flavoring compound containing a miniscule amount of a 

ginger flavor extract, which was present in quantities too small to impart flavor to the beverage or 

provide any health benefits.

108. Defendants intended for Plaintiffs and the Class members to rely on the unlawful, 

fraudulent, and/or unfair business acts and practices alleged herein.

109. Plaintiffs and those similarly situated relied to their detriment on Defendants’

unfair, deceptive and unlawful business practices. Had Plaintiffs and those similarly situated 

been adequately informed and not deceived by Defendants, they would have acted differently by 

not purchasing (or paying less for) Defendants’ Products.

110. Defendants’ acts and omissions are likely to deceive the general public.

111. Defendants’ actions, which were knowing, willful, and wanton, constitute 

intentional violations of the Consumer Protection Acts.

112. Defendants engaged in these unfair practices to increase profits.

113. Accordingly, Defendants have engaged in unlawful trade practices, as defined and 

prohibited by the Consumer protection Acts.

114. The aforementioned practices, which Defendants have used to their significant 

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financial gain, also constitute unlawful competition and provide an unlawful advantage over 

Defendants’ competitors as well as injury to the general public.

115. Plaintiffs seek, on behalf of those similarly situated, full damages, as necessary 

and according to proof, to restore any and all monies acquired from Plaintiffs, the general public, 

or those similarly situated by means of the unfair and/or deceptive trade practices complained of 

herein, plus interest thereon. Plaintiffs also seek to recover attorneys’ fees, costs, and expenses to 

be assessed against Defendants, within the limits set forth by applicable law.

116. Plaintiffs seek, on behalf of those similarly situated, an injunction to prohibit 

Defendants from continuing to engage in the unfair trade practices complained of herein.

117. Plaintiffs and those similarly situated are further entitled to and do seek both a 

declaration that the above-described trade practices are unfair, unlawful and/or fraudulent, and 

injunctive relief restraining Defendants from engaging in any of such deceptive, unfair and/or 

unlawful trade practices in the future. Such misconduct by Defendants, unless and until enjoined 

and restrained by order of this Court, will continue to cause injury in fact to the general public 

and the loss of money and property in that Defendants will continue to violate Consumer 

Protection Acts, unless specifically ordered to comply with the same. This expectation of future 

violations will require current and future customers to repeatedly and continuously seek legal 

redress in order to recover monies paid to Defendants to which Defendants are not entitled.

Plaintiffs, those similarly situated and/or other consumers nationwide have no other adequate 

remedy at law to ensure future compliance with the Consumer Protection Acts alleged to have 

been violated herein.

118. As a direct and proximate result of such actions, Plaintiffs and the other members 

of the Classes have suffered and continue to suffer injury in fact and have lost money and/or 

property as a result of such deceptive, unfair and/or unlawful trade practices and unfair 

competition in an amount which will be proven at trial, but which is in excess of the jurisdictional 

minimum of this Court. Among other things, Plaintiffs and the Classes lost the amount they paid 

for the Products.

119. As a direct and proximate result of such actions, Defendants have enjoyed, and 

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continue to enjoy, significant financial gain in an amount which will be proven at trial, but which 

is in excess of the jurisdictional minimum of this Court.

120. Plaintiffs also requests that this Court award her costs and reasonable attorneys’ 

fees pursuant to the Consumer Protection Acts.

121. On December 29, 2016, Plaintiffs delivered a demand letter to Defendants by 

mailing, certified mail, return receipt requested, a demand letter to Defendant and its registered 

agent. Defendant acknowledged receipt on January 12, 2017.

122. The letters described the above-referenced unfair and deceptive acts and practices, 

set forth the nature of Plaintiff’s and the Classes’ injury, and requested relief from Defendants

within 30 days. 

123. Defendants did not respond to the letters within 30 days nor did Defendants tender 

any offer of settlement or other form of relief.

124. The demand letters satisfy any notification or presentment requirements under the 

Consumer Protection Acts.

125. Alternatively, providing notice to Defendants would have been futile in light of 

Defendants’ non-response to these letters, and Defendants’ failure to change its label despite 

nearly two years of litigation in California.

PLAINTIFFS’ SECOND CAUSE OF ACTION

(Fraud, Deceit and/or Misrepresentation)

On Behalf of the Nationwide Class

126. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

127. Throughout the last four years, at weekly and monthly intervals, Defendants 

fraudulently and deceptively informed Plaintiffs and class members that the Products were “Made 

with Real Ginger.” But Defendants failed to inform Plaintiffs and class members that Seagram’s

was not made with real ginger but was instead made from a flavoring compound containing a 

miniscule amount of a ginger flavor extract, which was present in quantities too small to impart 

flavor to the beverage or provide any health benefits.

128. These misrepresentations and omissions were known exclusively to, and actively 

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concealed by, Defendants, not reasonably known to Plaintiff, and material at the time they were 

made. Defendants knew the composition of the Product, and they knew that the soft drinks were 

made with a flavour compound containing miniscule amount of ginger flavor extracts, not ginger 

root. Defendants’ misrepresentations and omissions concerned material facts that were essential 

to the analysis undertaken by Plaintiffs as to whether to purchase Defendants’ ginger ales. In 

misleading Plaintiffs and not so informing Plaintiffs, Defendants breached their duty to them. 

Defendants also gained financially from, and as a result of, their breach.

129. Plaintiff and those similarly situated relied to their detriment on Defendants’ 

misrepresentations and fraudulent omissions. Had Plaintiffs and those similarly situated been 

adequately informed and not intentionally deceived by Defendants, they would have acted 

differently by, without limitation: (i) declining to purchase the Product, (ii) purchasing less of 

them, or (iii) paying less for the Product.

130. By and through such fraud, deceit, misrepresentations and/or omissions, 

Defendants intended to induce Plaintiff and those similarly situated to alter their position to their 

detriment. Specifically, Defendants fraudulently and deceptively induced Plaintiff and those 

similarly situated to, without limitation, to purchase the Product.

131. Plaintiff and those similarly situated justifiably and reasonably relied on 

Defendants’ misrepresentations and omissions, and, accordingly, were damaged by Defendants.

132. As a direct and proximate result of Defendants’ misrepresentations and/or 

omissions, Plaintiff and those similarly situated have suffered damages, including, without 

limitation, the amount they paid for the Product.

133. Defendants’ conduct as described herein was wilful and malicious and was 

designed to maximize Defendants’ profits even though Defendants knew that it would cause loss 

and harm to Plaintiff and those similarly situated.

PLAINTIFFS’ THIRD CAUSE OF ACTION

(False Advertising, Business and Professions Code § 17500, et seq. (“FAL”))

On Behalf the California Subclass

134. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

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135. Beginning at an exact date unknown to Plaintiffs, but within three (3) years 

preceding the filing of the Class Action Complaint, Defendants made untrue, false, deceptive 

and/or misleading statements in connection with the advertising and marketing of the Product.

136. Defendants made representations and statements (by omission and commission) 

that led reasonable customers to believe that the Product that they were purchasing were made 

with, and contained, real ginger root.

137. Plaintiffs and those similarly situated relied to their detriment on Defendants’ 

false, misleading and deceptive advertising and marketing practices, including each of the 

misrepresentations and omissions set forth in paragraphs 19-22, 29-39, and 50-55 above. Had 

Plaintiff and those similarly situated been adequately informed and not intentionally deceived by 

Defendants, they would have acted differently by, without limitation, refraining from purchasing 

Defendants’ ginger ales or paying less for them.

138. Defendants’ acts and omissions are likely to deceive the general public. 

139. Defendants engaged in these false, misleading and deceptive advertising and 

marketing practices to increase its profits. Accordingly, Defendants have engaged in false 

advertising, as defined and prohibited by section 17500, et seq. of the California Business and 

Professions Code. 

140. The aforementioned practices, which Defendants used, and continue to use, to 

their significant financial gain, also constitutes unlawful competition and provides an unlawful 

advantage over Defendants’ competitors as well as injury to the general public.

141. As a direct and proximate result of such actions, Plaintiffs and the other class 

members have suffered, and continue to suffer, injury in fact and have lost money and/or property 

as a result of such false, deceptive and misleading advertising in an amount which will be proven 

at trial, but which is in excess of the jurisdictional minimum of this Court.

142. Plaintiffs seeks, on behalf of themselves and those similarly situated, full 

restitution of monies, as necessary and according to proof, to restore any and all monies acquired 

by Defendants from Plaintiffs, the general public, or those similarly situated by means of the 

false, misleading and deceptive advertising and marketing practices complained of herein, plus 

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interest thereon.

143. Plaintiffs seek, on behalf of themselves and those similarly situated, a declaration 

that the above-described practices constitute false, misleading and deceptive advertising.

144. Plaintiffs seek, on behalf of themselves and those similarly situated, an injunction 

to prohibit Defendants from continuing to engage in the false, misleading and deceptive 

advertising and marketing practices complained of herein. Such misconduct by Defendants, 

unless and until enjoined and restrained by order of this Court, will continue to cause injury in 

fact to the general public and the loss of money and property in that Defendants will continue to 

violate the laws of California, unless specifically ordered to comply with the same. This 

expectation of future violations will require current and future consumers to repeatedly and 

continuously seek legal redress in order to recover monies paid to Defendants to which they are 

not entitled. Plaintiffs, those similarly situated and/or other consumers nationwide have no other 

adequate remedy at law to ensure future compliance with the California Business and Professions 

Code alleged to have been violated herein.

PLAINTIFFS’ FOURTH CAUSE OF ACTION

(Unlawful, unfair, and fraudulent trade practices in violation of Business and Professions Code § 

17200, et seq. and similar state laws)

On Behalf of the Consumer Unfairness/Unlawfulness Subclass

145. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

146. Within four (4) years preceding the filing of this lawsuit, and at all times 

mentioned herein, Defendants have engaged, and continues to engage, in unlawful, unfair, and 

fraudulent trade practices in California and other states by engaging in the unlawful, unfair, and 

fraudulent business practices outlined in this complaint.

147. In particular, Defendants have engaged, and continue to engage, in unlawful 

practices by, without limitation, violating the following state and federal laws: (i) the CLRA as 

described herein; (ii) the FAL as described herein; (iii) the Consumer Protection Acts of every 

state; (iv) the advertising provisions of the Sherman Law (Article 3), including without limitation, 

California Health & Safety Code §§ 110390, 110395, 110398 and 110400; (v) the misbranded 

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food provisions of the Sherman Law (Article 6), including without limitation, California Health & 

Safety Code §§ 110660, 110665, 110705, 110740, 110760, 110765, and 110770; and (vi) and 

federal laws regulating the advertising and branding of food in 21 U.S.C. § 343(a), et seq. and 

FDA regulations, including but not limited to 21 C.F.R. 101.3, 101.4, 101.13, 101.14, and 101.22, 

which are incorporated into the Sherman Law (California Health & Safety Code §§ 110100(a), 

110380, and 110505).

148. In particular, Defendants have engaged, and continue to engage, in unfair and 

fraudulent practices by, without limitation, the following: (i) misrepresenting that the Product is

“made with real ginger;” and (ii) failing to inform Plaintiff, and those similarly situated, that the 

Products that they purchased are made with a flavor compound manufactured to mimic the taste

of ginger by using miniscule amounts of ginger flavour extracts, rather than real ginger root.

149. Plaintiff and those similarly situated relied to their detriment on Defendants’ 

unlawful, unfair, and fraudulent business practices. Had Plaintiff and those similarly situated been 

adequately informed and not deceived by Defendants, they would have acted differently by, 

without limitation: (i) declining to purchase the Product, (ii) purchasing less of the Product, or 

(iii) paying less for the Product.

150. Defendants’ acts and omissions are likely to deceive the general public. 

151. Defendants engaged in these deceptive and unlawful practices to increase their 

profits. Accordingly, Defendants have engaged in unlawful trade practices, as defined and 

prohibited by section 17200, et seq. of the California Business and Professions Code. 

152. The aforementioned practices, which Defendants have used to their significant 

financial gain, also constitute unlawful competition and provide an unlawful advantage over 

Defendants’ competitors as well as injury to the general public.

153. As a direct and proximate result of such actions, Plaintiff and the other class 

members, have suffered and continue to suffer injury in fact and have lost money and/or property 

as a result of such deceptive and/or unlawful trade practices and unfair competition in an amount 

which will be proven at trial, but which is in excess of the jurisdictional minimum of this Court. 

Among other things, Plaintiffs and the class members lost the amount they paid for the Product.

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154. As a direct and proximate result of such actions, Defendants have enjoyed, and 

continues to enjoy, significant financial gain in an amount which will be proven at trial, but which 

is in excess of the jurisdictional minimum of this Court.

155. Plaintiffs seek, on behalf of themselves and those similarly situated, full restitution 

of monies, as necessary and according to proof, to restore any and all monies acquired by 

Defendants from Plaintiffs, the general public, or those similarly situated by means of the 

deceptive and/or unlawful trade practices complained of herein, plus interest thereon.

156. Plaintiffs seek, on behalf of those similarly situated, a declaration that the abovedescribed trade practices are fraudulent, unfair, and/or unlawful.

157. Plaintiffs seek, on behalf of those similarly situated, an injunction to prohibit 

Defendants from continuing to engage in the deceptive and/or unlawful trade practices 

complained of herein. Such misconduct by Defendants, unless and until enjoined and restrained 

by order of this Court, will continue to cause injury in fact to the general public and the loss of 

money and property in that Defendants will continue to violate the laws of California, unless 

specifically ordered to comply with the same. This expectation of future violations will require 

current and future consumers to repeatedly and continuously seek legal redress in order to recover 

monies paid to Defendants to which they were not entitled. Plaintiffs, those similarly situated 

and/or other consumers nationwide have no other adequate remedy at law to ensure future 

compliance with the California Business and Professions Code alleged to have been violated 

herein. 

PLAINTIFFS’ FIFTH CAUSE OF ACTION

(Unjust Enrichment)

On Behalf of the Nationwide Class

158. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

159. By means of Defendant’s wrongful conduct alleged herein, Defendant knowingly 

caused Seagram’s to be sold to Plaintiffs and members of the Nationwide Class in a manner that 

was unfair, unconscionable, and oppressive.

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160. Defendant knowingly received and retained wrongful benefits and funds from 

Plaintiffs and members of the Nationwide Class. In so doing, Defendant acted with conscious 

disregard for the rights of Plaintiffs and members of the Nationwide Class.

161. As a result of Defendant’s wrongful conduct as alleged herein, Defendant has been 

unjustly enriched at the expense of, and to the detriment of, Plaintiffs and members of the

Nationwide Class.

162. Defendant’s unjust enrichment is traceable to, and resulted directly and 

proximately from, the conduct alleged herein.

163. Under the common law doctrine of unjust enrichment, it is inequitable for 

Defendant to be permitted to retain the benefits it received, without justification, from causing 

Seagram’s to be sold to Plaintiffs and members of the Nationwide Class in an unfair, 

unconscionable, and oppressive manner. Defendant’s retention of such funds under such 

circumstances making it inequitable to do so constitutes unjust enrichment.

164. The financial benefits derived by Defendant rightfully belong to Plaintiffs and 

members of the Nationwide Class. Defendant should be compelled to return in a common fund 

for the benefit of Plaintiffs and members of the Nationwide Class all wrongful or inequitable 

proceeds received by them.

165. Plaintiffs and members of the Nationwide Class have no adequate remedy at law.

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff, on behalf of himself and those similarly situated, respectfully 

requests that the Court enter judgment against Defendants as follows:

A. Certification of the proposed Nationwide Class, and California, Pennsylvania, New 

York, New Jersey, and Florida Subclasses, including appointment of Plaintiff’s 

counsel as class counsel;

B. An order temporarily and permanently enjoining Defendants from continuing the 

unlawful, deceptive, fraudulent, and unfair business practices alleged in this 

Complaint;

C. An award of compensatory damages in an amount to be determined at trial;

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D. An award of statutory damages in an amount to be determined at trial;

E. An award of punitive damages in an amount to be determined at trial;

F. An award of treble damages;

G. An award of restitution in an amount to be determined at trial;

H. An order requiring Defendants to pay both pre- and post-judgment interest on any 

amounts awarded;

I. For reasonable attorney’s fees and the costs of suit incurred;

J. For such further relief as this Court may deem just and proper;

JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury.

Dated: January 29, 2018 GUTRIDE SAFIER LLP

Adam J. Gutride, Esq.

Seth A. Safier, Esq.

Marie A. McCrary, Esq.

Matthew T. McCrary, Esq.

 100 Pine Street, Suite 1250

San Francisco, CA 94111

Attorneys for Plaintiff

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Exhibit 2

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GUTRIDE SAFIER LLP

ADAM J. GUTRIDE (State Bar No. 181446)

SETH A. SAFIER (State Bar No. 197427) 

MARIE A. MCCRARY (State Bar No. 262670) 

100 Pine Street, Suite 1250

San Francisco, CA 94111

Telephone: (415) 271-6469

Facsimile: (415) 449-6469

MATTHEW T. MCCRARY (admitted pro hac vice)

265 Franklin St, Suite 1702

Boston, MA 02110

Telephone: (214) 502-2171

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JACKIE FITZHENRY-RUSSELL, DAVID 

SWARTZ, ASHLEY SALCEDO, SCOTT 

MILLER, ISABELO PASCUAL, FLORIN 

CARLIN, and KRISTINA HOFFMAN, on 

behalf of themselves, the general public and 

those similarly situated,

 Plaintiff,

v.

THE COCA COLA COMPANY, and DOES 1-

50,

 Defendants.

CASE NO. 5:17-CV-00603-EJD

UNLIMITED CIVIL CASE

SECOND AMENDED COMPLAINT 

FOR VIOLATION OF THE 

CONSUMER PROTECTION ACTS OF 

50 STATES AND THE DISTRICT OF 

COLUMBIA; FRAUD, DECEIT, 

AND/OR MISREPRESENTATION; 

VIOLATION OF CALIFORNIA’S 

FALSE ADVERTISING AND UNFAIR 

COMPETITION LAWS

JURY TRIAL DEMANDED

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Deleted: MATTHEW T. MCCRARY (admitted 

pro hac vice)

Deleted: an individual

Deleted: FIRST

Deleted: herself

Deleted: CALIFORNIA CONSUMERS 

LEGAL REMEDIES ACT; FALSE 

ADVERTISING

Deleted: BUSINESS PRACTICES

Deleted: -

Deleted: -

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INTRODUCTION

1. Plaintiffs Jackie Fitzhenry-Russell, David Swartz, Ashley Salcedo, Scott Miller, 

Isabelo Pascual, Florin Carlin, and Kristina Hoffman, by and through their counsel, bring this 

class action against Defendants The Coca Cola Company and Does 1-50, inclusive, on behalf of 

themselves, the general public, and those similarly situated, for violations of the Consumer 

Protection Acts of all 50 states and the District of Columbia; common law fraud, deceit, and/or 

misrepresentation; violations of California’s False Advertising Law; and violation of California’s

Unfair Competition Law. The following allegations are based upon information and belief, 

including the investigation of Plaintiffs’ counsel, unless stated otherwise. 

2. This case concerns Defendants’ false and deceptive labeling, advertising, 

marketing, and sale of all Seagram’s brand ginger ales labeled as “Made with Real Ginger”

(“Seagram’s or the “Products”).1 This representation leads consumers to reasonably believe that 

Defendants’ soft drink is made with, and contains, real ginger root—not chemically derived 

extracts of the ginger plant—and that consumers who drink the soft drink will receive the health 

benefits associated with consuming real ginger root. Indeed, consumer surveys demonstrate that 

more than 75% of people believe a drink claiming to be “Made with Real Ginger” is made using

actual ginger root and not extracts. Further consumer research demonstrates that when a marketer 

claims its product is made with an ingredient that is widely known to be healthy—such as ginger 

root, which has long been perceived as a natural remedy—then consumers will reasonably infer 

that the product is a healthier alternative to products that are not made with the ingredient.

3. In truth, Defendants’ soft drink is not made with real ginger root. Instead, 

Seagram’s Ginger Ale is made with carbonated water, high fructose corn syrup, citric acid, 

preservatives, and “natural flavors,” i.e., a flavor compound that is manufactured in a laboratorysetting using various chemicals and extraction processes. Although the flavor compound contains 

a miniscule amount of ginger flavor extract, reasonable consumers expect the drink to be made 

 1

 These include at least the following: Seagram’s Ginger Ale; Seagram’s Diet Ginger Ale; 

Seagram’s Ginger Ale, 25% Fewer Calories; Seagram’s Raspberry Ginger Ale; Seagram’s Diet 

Raspberry Ginger Ale. 

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Deleted: Plaintiff

Deleted: her

Deleted: s

Deleted: herself

Deleted: Legal Remedies Act and Unfair 

Competition Law

Deleted: false advertising,

Deleted: .

Deleted: the soft drink, 

Deleted: Ginger Ale,

Deleted: MADE FROM REAL GINGER.”

Deleted: from

Deleted: , 

Deleted: from 

Deleted: from

Deleted: a chemical flavor compound that is 

manufactured to mimic the taste of ginger, but 

provides none of the health benefits of real ginger 

root.

Deleted: -

Deleted: -

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with ginger root, not a ginger flavor extract because the product states it is “Made with Real 

Ginger.” Further, the miniscule amount of flavor extract comprises barely three parts per million 

of the final beverage. When a manufacturer claims a product is “made with” a particular 

ingredient, reasonable consumers expect the product to be a “good source” of that ingredient. 

Here, that would require there to be enough “real ginger” to provide the health benefits 

consumers associate with the ingredient, or at least to impart a ginger flavor to the beverage. This 

microscopic amount of ginger flavor extract does neither. It provides none of the health benefits 

consumers associate with real ginger and even appears to fall below the threshold concentration at 

which the average consumer can perceive a “ginger” flavor, requiring the addition of other flavors 

to mimic or enhance the perceptibility of “ginger.”2 Defendants’ product labels never disclose 

that the ginger ale is made with a miniscule amount of a flavor compound manufactured to mimic 

the taste of real ginger root, rather than with real ginger root.

4. Throughout the Class Period, Defendants prominently made the claim “Made with 

Real Ginger” on the front label panel of all of its Seagram’s Ginger Ale cans and bottles, 

cultivating a wholesome and healthful image in an effort to promote the sale of its soft drink and 

to compete with small batch ginger ales that are made with real ginger root. Consumers rely on 

and value the representation “Made with Real Ginger” because studies have found that real ginger 

root has health benefits when consumed. The “Made with Real Ginger” claim caused consumers 

to pay a price premium of at least 6% of the purchase price.

PARTIES 

5. Jackie Fitzhenry-Russell is, and at all times alleged in this Class Action Complaint 

was, an individual and a resident of Santa Cruz, California.

6. David Swartz is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Berkeley, California.

7. Ashley Salcedo is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Harrisburg, Pennsylvania.

 2 See Fisher, C. and Scott T., Food Flavours Biology and Chemistry (1997) (noting that the 

threshold concentration for tasting ginger compounds is between 7 and 17 parts per million).

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Deleted: MADE FROM REAL GINGER

Deleted: do use

Deleted: MADE FROM REAL GINGER

Deleted: Defendants’ Seagram’s Ginger Ale

product labels did not disclose that the soft drink 

contains no real ginger and that the ginger flavor in 

the soft drink was manufactured through an artificial 

process to create a chemical substance that tastes like 

ginger root. The result is a labeling scheme that is 

designed to mislead consumers, and which does so 

effectively. 

Deleted: (“Plaintiff”) 

Deleted: -

Deleted: -

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8. Scott Miller is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Auburndale, Florida.

9. Isabelo Pascual is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of Los Angeles, California.

10. Florin Carlin is, and at all times alleged in this Class Action Complaint was, an 

individual and a resident of St. Petersburg, Florida.

11. Kristina Hoffman is, and at all times alleged in this Class Action Complaint was, 

an individual and a resident of Medford, New Jersey.

12. Defendant The Coca Cola Company is a corporation existing under the laws of the 

State of Delaware, having its principal place of business in Atlanta, Georgia.

13. The true names and capacities of Defendants sued as Does 1 through 50, inclusive, 

are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names pursuant to 

section 474 of the California Code of Civil Procedure. Plaintiff will seek leave of Court to amend 

this Class Action Complaint when said true names and capacities have been ascertained.

14. The Parties identified in paragraphs 13-14 of this Class Action Complaint are 

collectively referred to hereafter as “Defendants.” 

15. At all times herein mentioned, each of the Defendants was the agent, servant, 

representative, officer, director, partner or employee of the other Defendants and, in doing the 

things herein alleged, was acting within the scope and course of his/her/its authority as such 

agent, servant, representative, officer, director, partner or employee, and with the permission and 

consent of each Defendant.

16. At all times herein mentioned, each of the Defendants was a member of, and 

engaged in, a joint venture, partnership and common enterprise, and acted within the course and 

scope of, and in pursuance of, said joint venture, partnership and common enterprise.

17. At all times herein mentioned, the acts and omissions of each of the Defendants 

concurred and contributed to the various acts and omissions of each and all of the other 

Defendants in proximately causing the injuries and damages as herein alleged.

18. At all times herein mentioned, each of the Defendants ratified each and every act 

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Deleted: -

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or omission complained of herein.

19. At all times herein mentioned, each of the Defendants aided and abetted the acts 

and omissions of each and all of the other Defendants in proximately causing the damages, and 

other injuries, as herein alleged.

JURISDICTION AND VENUE

20. This Court has jurisdiction over the subject matter of this action pursuant to 28 

U.S.C. § 1332(d)(2). Defendant averred on removal that the matter in controversy exceeds 

$5,000,000, exclusive of interest and costs, and this action is a class action in which at least one 

member of the class is a citizen of a State different from the Defendants. 

21. The injuries, damages and/or harm upon which this action is based, occurred or 

arose out of activities engaged in by Defendants within, affecting, and emanating from, the State 

of California. Defendants regularly conduct and/or solicit business in, engage in other persistent 

courses of conduct in, and/or derive substantial revenue from products provided to persons in the 

State of California. Defendants have engaged, and continue to engage, in substantial and 

continuous business practices in the State of California.

22. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a 

substantial part of the events or omissions giving rise to the claims occurred in the State of 

California, including within this District.

23. In accordance with California Civil Code Section 1780(d), Plaintiff concurrently 

files herewith a declaration establishing that, at various times throughout the class period, she 

purchased Seagram’s Ginger Ale in Santa Cruz, California and Capitola, California. (Plaintiff’s 

declaration is attached hereto as Exhibit A.)

24. Plaintiffs accordingly alleges that jurisdiction and venue are proper in this Court.

SUBSTANTIVE ALLEGATIONS

Defendants’ Ginger Ales. 

25. Defendants manufacture, distribute, market, advertise, and sell soft drinks in the 

United States under several brand names, including “Seagram’s.” Defendants’ packaging for the 

Seagram’s Ginger Ale predominately, uniformly, and consistently state on the principal display 

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Deleted: This action is brought by Plaintiff

pursuant, inter alia, to the California Business and 

Professions Code, section 17200, et seq. Plaintiff

and Defendants are “persons” within the meaning of 

the California Business and Professions Code, 

section 17201.

Deleted: Plaintiff

Deleted: its

Deleted: -

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panel of the product labels that it is “Made with Real Ginger”.

26. The representation that the Product is “Made with Real Ginger” was uniformly 

communicated to Plaintiffs and every other person who purchased any of the Products. An 

exemplar the Product’s product label is attached hereto as Exhibit B. The same or substantially 

similar product label has appeared on each bottle or can sold (as those shown in Exhibit B) during 

the entirety of the Class Period. 

27. As described in detail below, Defendants’ advertising and labeling of the Product, 

as made with “Real Ginger” is false, misleading, and intended to induce consumers to purchase 

the ginger ales, at a premium price, while ultimately failing to meet consumer expectations. These 

representations deceive and mislead reasonable consumers into believing that the Product is made 

with, and contains, real ginger root—not chemically derived extracts of the ginger plant—and that 

consumers who drink the soft drink will receive the health benefits associated with consuming 

real ginger root. Indeed, consumer surveys demonstrate that more than 75% of people believe a 

drink claiming to be “Made with Real Ginger” is made using actual ginger root and not extracts.

Further consumer research demonstrates that when a marketer claims its product is made with an 

ingredient that is widely known to be healthy—such as ginger root, which has long been 

perceived as a natural remedy—then consumers will reasonably infer that the product is a 

healthier alternative to products that are not made with the ingredient.

28. In fact, the Product is not made with real ginger. Instead, Seagram’s is made with

carbonated water, high fructose corn syrup, citric acid, preservatives, and “natural flavors,” i.e., a 

flavor compound that is manufactured in a laboratory-setting using various chemicals and 

extraction processes. Although the flavor compound contains a miniscule amount of ginger flavor 

extract, reasonable consumers expect the drink to be made with ginger root, not a ginger flavor 

extract because the product states it is “Made with Real Ginger.” Further, the miniscule amount of 

flavor extract comprises barely three parts per million of the final beverage. 

29. When a manufacturer claims a product is “made with” a particular ingredient, 

reasonable consumers expect the product to be a “good source” of that ingredient. Here, that 

would require there to be enough “real ginger” to provide the health benefits consumers associate 

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Deleted: MADE FROM REAL GINGER” 

(referred to herein as the “Product”).

Deleted: MADE FROM REAL GINGER

Deleted: Plaintiff

Deleted: in California.

Deleted: from “REAL GINGER

Deleted: from

Deleted: .

In fact, the Product is not made from real 

Deleted: . The Product is made from carbonated 

water, high fructose corn syrup, citric acid, 

preservatives, and “natural flavor,” which is a 

chemical flavoring compound that is manufactured 

to mimic the taste of ginger, but does not contain

ginger as a reasonable consumer understands it to 

mean and contains none of the health benefits of real 

ginger root. 

Deleted: -

Deleted: -

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with the ingredient, or at least to impart a ginger flavor to the beverage. This microscopic amount 

of ginger flavor extract does neither. It provides none of the health benefits consumers associate 

with real ginger and even appears to fall below the threshold concentration at which the average 

consumer can perceive a “ginger” flavor, requiring the addition of other flavors to mimic or 

enhance the perceptibility of “ginger.”

Consumer Demand for Real Ginger

30. Many American consumers are health conscious and seek wholesome, natural 

foods to keep a healthy diet, so they routinely take nutrition information into consideration in 

selecting and purchasing food items. Product package labels convey nutrition information to 

consumers that they use to make purchasing decisions. As noted by FDA commissioner Margaret 

Hamburg during an October 2009 media briefing, “[s]tudies show that consumers trust and 

believe the nutrition facts information and that many consumers use it to help them build a 

healthy diet.” Consumers attribute a myriad of benefits to ginger and foods made with real ginger 

root.

31. Ginger root has been used for thousands of years for the treatment of numerous 

ailments, such as colds, nausea, arthritis, migraines, and hypertension. Scientific studies have 

confirmed that ginger has anti-inflammatory effects and aids in relaxing muscles, is effective in 

alleviating symptoms of nausea and vomiting, has anti-carcinogenic qualities, and appears to 

reduce cholesterol and improve lipid metabolism, thereby helping to decrease the risk of 

cardiovascular disease and diabetes. The benefits of consuming ginger have been widely 

publicized to consumers in the United States in recent years. 

Federal and State Regulations Governing Food Labeling

32. The Food and Drug Administration has defined “natural flavor” to mean “the 

essential oil, oleoresin, essence or extractive, protein hydrolysate, distillate, or any product of 

roasting, heating or enzymolysis, which contains the flavoring constituents derived from a spice, 

fruit or fruit juice, vegetable or vegetable juice, edible yeast, herb, bark, bud, root, leaf or similar 

plant material, meat, seafood, poultry, eggs, dairy Product, or fermentation products thereof, 

whose significant function in food is flavoring rather than nutritional.” 21 C.F.R. 501.22(a)(3). In 

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other words, a “natural flavor” is one that contains some oil, protein, or essence from a plant or

animal. But it bears little resemblance to the actual plant or animal from which it is derived. 

Rather, natural flavors are made in a laboratory by scientists who make determinations on how to 

replicate a flavor using chemicals found in nature. 

33. While it may be that ginger root is used in the creation of the natural flavor, it is 

not ginger as a reasonable consumer would understand it. Rather, the scientists that created the 

“natural flavor” added to the Product would have isolated proteins from the cells and tissue of the 

ginger root or extracted oils or essences from the ginger root. But because those isolated 

compounds may not actually taste like ginger, the scientist would have then combined those 

extractions with any number of other extractions from other plants and animals to create a 

flavoring substance that tastes like ginger. See https://www.scientificamerican.com/article/whatis-the-difference-be-2002-07-29/ (describing the process for creating natural flavors) (last 

accessed October 21, 2016). 

34. Identical federal and California laws regulate the content of labels on packaged 

food and require truthful, accurate information on the labels of packaged foods. The requirements 

of the federal Food, Drug & Cosmetic Act (“FDCA”), and its labeling regulations, including 

those set forth in 21 C.F.R. §§ 101 and 102, were adopted by the California legislature in the 

Sherman Food Drug & Cosmetic Law (the “Sherman Law”). California Health & Safety Code § 

110100 (“All food labeling regulations and any amendments to those regulations adopted 

pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be 

the food labeling regulations of this state.”). The federal laws and regulations discussed below are 

applicable nationwide to all sales of packaged food Product. Additionally, no state imposes 

different requirements on the labeling of packaged food for sale in the United States. 

35. Under both the Sherman Law and FDCA section 403(a), food is “misbranded” if 

“its labeling is false or misleading in any particular,” or if it does not contain certain information 

on its label or in its labeling. California Health & Safety Code § 110660; 21 U.S.C. § 343(a). 

36. Under the FDCA, the term false has its usual meaning of “untruthful,” while the 

term misleading is a term of art that covers labels that are technically true, but are likely to 

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deceive consumers. Under the FDCA, if any single representation on the labeling is false or 

misleading, the entire food is misbranded, and no other statement in the labeling can cure a 

misleading statement.

37. Further in addition to its blanket adoption of federal labeling requirements, 

California has also enacted a number of laws and regulations that adopt and incorporate specific 

enumerated federal food laws and regulations. See California Health & Safety Code § 110660 

(misbranded if label is false and misleading); California Health & Safety Code § 110705 

(misbranded if words, statements and other information required by the Sherman Law are either 

missing or not sufficiently conspicuous); and California Health & Safety Code § 110740 

(misbranded if contains artificial flavoring, artificial coloring and chemical preservatives but fails 

to adequately disclose that fact on label).

38. Under California law, a food product that is “misbranded” cannot legally be 

manufactured, advertised, distributed, sold, or possessed. Misbranded Product has no economic 

value and are legally worthless.

39. Representing that a soft drink is made with “real ginger” is a statement of fact, and 

use of this phrase on the labels of packaged food is limited by the aforementioned misbranding 

laws and regulations. 

Defendants’ Marketing and Labeling of its Ginger Ales Violates State and Federal Food 

Labeling Laws 

40. The Product is unlawful, misbranded and violates the Sherman Law, California 

Health & Safety Code § 110660, et seq., because the Product’s labels include the phrase “Made 

with Real Ginger,” even though they are not made using real ginger. Instead, the Product is

made with a complex flavoring compound (i.e., “natural flavors”) that is manufactured

in a laboratory-setting using various chemicals and extraction processes and designed to mimic 

the taste of ginger. Although the flavor compound contains a miniscule amount of ginger flavor 

extract, reasonable consumers expect the drink to be made with ginger root, not a ginger flavor 

extract because the product states it is “Made with Real Ginger.” They also expect the beverage to 

be a good source of “real ginger” since Defendants highlighted that the beverage was “made 

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Deleted: MADE WITH REAL GINGER

Deleted: flavored

Deleted: chemical 

Deleted: to mimic the taste of ginger, and was 

created not by using actual ginger root, but in a 

laboratory through the isolation of proteins, 

essences, and oils from the cells and tissues of plants 

and animals and combining them in such a way as to 

mimic the taste of ginger as a consumer would 

recognize it. The Product is not made from, and do 

not contain, real ginger as a reasonable consumer 

would understand it to mean

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with” that ingredient. In truth, the miniscule amount of flavor extract Defendants use to make 

Seagram’s comprises barely three parts per million of the final beverage. Seagram’s is not made 

with, and does not contain, real ginger as a reasonable consumer would understand it, nor does it

provide any of the health benefits that would be obtained if real ginger root were used or present.

The microscopic amount of flavor extract even appears to fall below the threshold concentration 

at which the average consumer can perceive a “ginger” flavor, requiring the addition of other 

flavors to mimic or enhance the perceptibility of “ginger.”

41. Defendants’ marketing, advertising, and sale of the Product violates the false 

advertising provisions of the Sherman Law (California Health & Safety Code § 110390, et. seq.), 

including but not limited to:

a. Section 110390, which makes it unlawful to disseminate false or misleading food 

advertisements that include statements on products and product packaging or 

labeling or any other medium used to directly or indirectly induce the purchase of 

a food product;

b. Section 110395, which makes it unlawful to manufacture, sell, deliver, hold or 

offer to sell any falsely or misleadingly advertised food; and

c. Sections 110398 and 110400, which make it unlawful to advertise misbranded

food or to deliver or proffer for delivery any food that has been falsely or 

misleadingly advertised.

42. Defendants’ marketing, advertising, and sale of the Product violates the 

misbranding provisions of the Sherman Law (California Health & Safety Code § 110660, et. 

seq.), including but not limited to:

d. Section 110665 (a food is misbranded if its labeling does not conform with the 

requirements for nutrition labeling as set forth in 21 U.S.C. Sec. 343(q));

e. Section 110705 (a food is misbranded if words, statements and other information 

required by the Sherman Law to appear food labeling is either missing or not 

sufficiently conspicuous);

f. Section 110740 (a food is misbranded if it contains artificial flavoring, artificial 

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coloring and chemical preservatives but fail to adequately disclose that fact on 

their labeling);

g. Section 110760, which makes it unlawful for any person to manufacture, sell, 

deliver, hold, or offer for sale any food that is misbranded;

h. Section 110765, which makes it unlawful for any person to misbrand any food; 

and

i. Section 110770, which makes it unlawful for any person to receive in commerce 

any food that is misbranded or to deliver or proffer for delivery any such food.

43. Defendants have violated 21 U.S.C. § 343(a), and the standards set by FDA 

regulations, including but not limited to 21 C.F.R. §§ 101.3, 101.13, 101.14, 101.22, and 101.65 

which have been incorporated by reference in the Sherman Law, by failing to include on their 

product labels the nutritional information required by law.

Defendants’ Marketing and Labeling of its Ginger Ales is False, Deceptive and Misleading

44. A reasonable consumer would expect that the Products contain what Defendants 

identifies them to contain on the product labels. A reasonable consumer would expect that when 

Defendants label the Product as being “Made with Real Ginger,” the soft drinks are made with, 

and contain, real ginger, i.e., ginger root, and not chemically-derived flavor extracts.

45. Moreover, Defendants do not disclose on the product labels that the Product is

flavored with a chemical compound that was manufactured to mimic the flavor of ginger. 

Consumers lack the meaningful ability to test or independently ascertain the truthfulness of 

Defendants’ food labeling claims, especially at the point of sale. Consumers would not know the 

true nature of the ginger flavoring merely by reading the ingredient label; its discovery requires 

investigation beyond the grocery store and knowledge of food chemistry beyond that of the 

average consumer. An average consumer does not have the specialized knowledge necessary to 

ascertain that the ginger flavor in the soft drink is not from the presence of real ginger in the soft 

drink but instead comes from a flavor compound manufactured to make the drink taste like 

ginger. That, combined with Defendants’ active concealment in representing the Product as being 

“Made with Real Ginger,” and not disclosing otherwise, gave the average reasonable consumer 

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Deleted: Product contains

Deleted: MADE WITH REAL GINGER

Deleted: as commonly understood and would not 

be contrary to the policies or regulations of the State 

of California and/or the FDA.

Deleted: the chemical compounded added to 

Deleted: to make it 

Deleted: MADE FROM REAL GINGER

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no reason to suspect that Defendants’ representations on the packages were not true, and therefore 

consumers had no reason to investigate whether the soft drinks contained real ginger. Thus, 

reasonable consumers relied on Defendants’ representations regarding the nature of the Products.

Such reliance by consumers is also eminently reasonable, since food companies are prohibited 

from making false or misleading statements on their products under federal law. 

46. Defendants intend and know that consumers will and do rely upon food labeling 

statements in making their purchasing decisions. Label claims and other forms of advertising and 

marketing drive product sales, particularly if placed prominently on the front of product 

packaging, as Defendants have done with the “Made with Real Ginger” claim.

Defendants’ Website and Other Marketing Confirms That Defendants Intends to Deceive 

Consumers

47. Defendants’ own long standing advertising and marketing materials show that 

Defendants intended to deceive consumers into believing the false and deceptive packaging of the 

Product.

48. Defendants’ advertising campaign typically shows a picture of the bottle or can of 

the Product, where the words “Made with Real Ginger” Are prominently featured. The can with 

those words appears both on Defendants’ websites and in a variety of print advertisements.

49. Defendants also permit and encourage their marketing partners, including grocery 

stores, to advertise, market, advertise and sell the Product as a soft drink “Made with Real 

Ginger.” Defendants provide their marketing partners information, including posters, signs, end 

cap displays, etc., that specifically represent that the Product is “Made with Real Ginger.” 

Further, in sales sheets, sales presentations, and other marketing materials, Defendants state that 

the Product is “Made with Real Ginger.”

50. In short, Defendants’ advertising and marketing campaign confirms that 

Defendants intend to deceive consumers through misrepresentations on the Product’s product 

labels. More specifically, Defendants intend that consumers who read the Product’s labels 

believe that the Product is made with, and contains, real ginger, i.e., ginger root, and not 

chemically-derived flavor extracts.

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Deleted: .

Deleted: MADE WITH REAL GINGER

Deleted: MADE WITH REAL GINGER

Deleted: .

Deleted: MADE FROM REAL GINGER

Deleted: MADE FROM REAL GINGER

Deleted: MADE FROM REAL GINGER.”

Deleted: that

Deleted: be effectively deceived by Defendants’

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Defendants’ Employ Misleading Marketing Their Ginger Ales To Increase Profits and Gain 

a Competitive Edge

51. Defendants do not use real ginger in their Product as doing so is more expensive 

than using flavoring compound. In recent years, numerous studies have found the presence of 

lead in ginger, and manufacturers and retailers of other products containing ginger root, such as 

cookies and candies, have been sued by the California Attorney General. Thus, the diligent 

sourcing and testing procedures that would be required when using real ginger to ensure the 

product they sell is safe are more expensive to adopt than simply using “natural flavor.” In 

addition, the cost of real ginger has increased in recent years, due to changes in weather in China, 

which produces 75% of the world’s ginger. See http://www.producenews.com/news-depmenu/test-featured/9579-ginger-prices-skyrocket-on-shrinking-supply (last accessed October 21, 

2016).

52. In the last decade, in response to news reports about the dangers of high fructose 

corn syrup and soda’s role in contributing to the increased rates of obesity and diabetes in this 

country, many consumers are drinking less soda, and are seeking out instead, healthier beverages, 

like iced teas and flavored waters. See http://www.nytimes.com/2015/10/04/upshot/soda-industrystruggles-as-consumer-tastes-change.html?_r=0 (last accessed October 21, 2016). And while soda 

sales are declining, one segment of the category is on the rise – small companies and brands that 

emphasize their use of natural ingredients, such as Reed’s, Bruce Cost, Maine Root, and Grown 

Up Soda. In 2014, the Specialty Food Association noted that healthy beverages were growing in 

popularity, as was the market for more sophisticated, specialty sodas containing all natural 

ingredients. See https://www.specialtyfood.com/news/article/rise-healthy-beverages/ (last 

accessed October 21, 2016). Thus, many small craft soda companies are flourishing in response to 

increased consumer demand for alternatives to sodas made with high fructose corn syrup, 

artificial ingredients, and preservatives. Facing a public hostile to “Big Soda” and finding its sales 

dwindling due to the newer, healthier brands, Defendants have an incentive to emphasize the 

presence of ginger in the Product to appeal to consumers seeking real ingredients instead of a 

traditional soda. 

53. In making the false, misleading, and deceptive representations, Defendants 

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distinguish their ginger ales from their competitors’ Product. Defendants knew and intended that 

consumers would purchase, and pay a premium for, ginger ales labeled as being made with “Real 

Ginger,” over comparable ginger ales that do not contain these representations on the product 

labels. By using this branding strategy, Defendants are stating that their ginger ales are superior 

to, better than, and more nutritious and healthful than other brands of ginger ales that do not 

proclaim to be made with “Real Ginger.” For example, other brands of ginger ales that do not 

contain the false, misleading, and deceptive representation that they are made with “Real Ginger,” 

include brands such as Dr. Brown’s and Vernors. 

54. Further, Defendants knew and intended their representations to help them compete 

with small batch bottling companies that do make ginger ales using real ginger root. Defendants 

added the “Made with Real Ginger” representation to their product labels to compete with such 

small batch bottling companies that have increased in popularity in recent years. For example, 

Bruce Cost Ginger Ale is made with fresh whole ginger root and represents this fact to consumers 

in its advertising and on its product packaging. Likewise Reed’s is brewed using ginger root and 

represents this fact to consumer on its label.

55. Because consumers pay a price premium for products made with real ginger, by 

labeling their products as containing real ginger without actually using the expensive ingredient, 

Defendants are able to both increase their sales and retain more in profits. Studies have shown 

that the “Made with Real Ginger” representation caused consumers to pay a premium of at least 

6% of the purchase price for the Products.

56. Defendants engaged in the practices complained of herein to further their private 

interests of: (i) increasing sales of their ginger ales, while decreasing the sales of ginger ales that 

do not claim to be made with real ginger and those ginger ales that are truthfully offered as made 

with real ginger by Defendants’ competitors, and/or (ii) commanding a higher price for their 

ginger ales because consumers will pay more for these soft drinks due to the consumers’ demand 

for products containing real ginger because of the perceived benefits. 

Defendants Intend to Continue To Market Beverages as Being Made with “Real Ginger” 

that Do Not Contain Ginger. 

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Deleted: from “REAL GINGER

Deleted: from “REAL GINGER

Deleted: from “REAL GINGER

Deleted: MADE WITH REAL GINGER

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57. Because of the growing market described above and because Defendants know 

consumers rely on representations about the presence of real ginger in beverages, Defendants 

have an incentive to continue to make such false representations. In addition, other trends suggest 

that Defendants have no incentive to change their labeling practices.

58. For example, ginger ale is a particularly strong growing flavor in the healthy soda 

category. In December 2015, a brand manager for a competing brand, Schweppes, described 

ginger as a “growing flavor trend.” See http://www.prnewswire.com/news-releases/schweppesintroduces-new-dark-ginger-ale-packed-with-a-refreshing-bolder-taste-300188635.html. 

59. Defendants are also likely seeking to diversify their beverage portfolio in response 

to the changing market, the booming craft soda market, and the decreased demand for traditional 

sodas from big manufacturers. Defendants, who have in the past acquired smaller companies that 

compete with their bigger brands (e.g. acquiring Blue Sky despite selling sodas under the Coca 

Cola and Sprite brand names), will likely desire to do the same to maintain their competitive edge 

and ensure they are offering ginger ales at all segments of the market.

PLAINTIFFS’ EXPERIENCES

Plaintiff Fitzhenry-Russell’s Experiences

60. Plaintiff Fitzhenry-Russell made several purchases of the Product from Safeway, 

located in Santa Cruz, CA, and a Lucky, located in Capitola, CA. She made each of her purchases 

of the Product after reading and relying on the truthfulness of Defendants’ product label that 

promised that the Products were “Made with Real Ginger.” Ms. Fitzhenry-Russell believed this 

meant that Seagram’s was made with ginger root and was, as a result, a healthier alternative to 

regular sodas. Ms. Fitzhenry-Russell has long known that ginger root is a natural remedy, and that 

it can soothe an upset stomach and reduce inflammation. She believed that a product claiming to 

be “Made with Real Ginger” would contain enough ginger to provide the health benefits she 

associated with real ginger. 

61. At the time of each purchase of Seagram’s, Ms. Fitzhenry-Russell did not know 

that the Products she purchased were not made with real ginger, but were instead made with a 

miniscule amount of a ginger flavor extract, which does not provide any of the health benefits of 

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Deleted: in paragraph 45

Deleted: <#>To capitalize on the market, 

Defendants may not only continue to misleading 

advertise the Product, but they could seek to 

replicate the misrepresentation in other ways. For 

example, Defendant currently markets a Diet Ginger 

Ale, but does not advertise it as being made with real 

ginger. Given the trends in the market, Defendant 

could decide it to be more profitable to start doing 

so. Defendants also recently purchased the small 

soda brands of Blue Sky and Hansen’s, which both 

make ginger ales, and Defendants could decide to 

start falsely advertising those Product. Finally, 

Defendants own other brands of soda, such as Coca 

Cola, Barq’s, Fanta, and for which there are a variety 

of flavors. While Defendant does not currently sell 

any ginger ale under these brand names, the booming 

market for ginger ales creates an incentive to do so Deleted: diversity .

Deleted: PLAINTIFF’S

Deleted: has purchased 

Deleted: cases

Deleted: Over the last two years, Plaintiff

purchased approximately one case each year. For the 

two years prior to that, she purchased approximately 

two cases of the Product every month.

Plaintiff

Deleted: labels 

Deleted: Product

Deleted: MADE WITH REAL GINGER.” 

Deleted: , Plaintiff saw, read and relied on the 

“MADE WITH REAL GINGER” statement on the 

front Deleted: package

Deleted: the ginger ale. She was attracted to the 

Product because, when given

Deleted: choice, she prefers to consume soft drinks 

made with real 

Deleted: for health benefits, namely stomach 

calming or relaxation. But on each of the Product

purchased by Fitzhenry-Russell, Defendants 

misrepresented the contents of the product as being 

“MADE WITH REAL GINGER” when they were 

not. Plaintiff believed that the statement meant that 

each of the Product that she purchased was made 

with, and contained, real ginger. She reasonably 

relied on the labels and advertising Defendants 

placed on the primary display panel of the product.

At the time of each purchase of the Product, Plaintiff

did not know that the Product that she purchased 

were not made with real ginger, but instead were 

made with a chemical flavoring compound derived 

from ginger and manufactured to mimic the 

Deleted: of ginger and

Deleted: contain

Deleted: -

Deleted: -

... [1]

... [2]

... [3]

... [4]

... [5]

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real ginger. As a result of Defendants’ misrepresentations and omissions, the Products have no, 

or, at, a minimum, a much lower, value to Ms. Fitzhenry-Russell. As a result of Defendants’ 

misrepresentations and omissions, Ms. Fitzhenry-Russell was injured by paying more money for 

Seagram’s than she would have paid. Indeed, had Defendants not mispresented the true nature of 

Seagram’s, Ms. Fitzhenry-Russell would not have purchased Seagram’s or would have paid a 

lower price for it.

62. Ms. Fitzhenry-Russell continues to desire to purchase ginger ale made with real 

ginger, including brands marketed and sold by Defendants. If Defendants’ Products were 

reformulated to be made with real ginger, i.e., made with ginger root, Ms. Fitzhenry-Russell

would likely purchase Defendants’ Products again in the future. Ms. Fitzhenry-Russell regularly 

visit stores where Defendants’ Products and other ginger ale beverages are sold. Because Ms. 

Fitzhenry-Russell does not know the formula for Defendants’ Products and cannot test whether or 

not the beverages are made with ginger root before purchasing, Ms. Fitzhenry-Russell will be 

unable to rely on Defendants’ labels when shopping for ginger ales in the future absent an 

injunction that prohibits Defendants from labeling its Products with the phrase “Made with Real 

Ginger” unless the product is actually made with ginger root rather than a miniscule amount of a 

ginger flavor extract. Likewise, Because of changes in the market, Ms. Fitzhenry-Russell cannot 

know at any given time, which brands are owned by Defendants and whether its representations 

about “real ginger” are truthful. Thus, Ms. Fitzhenry-Russell is likely to be repeatedly presented 

with false or misleading information when shopping for ginger ale, making it difficult to make 

informed purchasing decisions. Should Defendants begin to market and sell a new brand of ginger 

ale, Ms. Fitzhenry-Russell could be at risk for buying another one of Defendants’ Products in 

reliance on the same or similar misrepresentation.

Plaintiff David Swartz’s Experiences

63. Plaintiff David Swartz frequently purchased the Products in California during the 

class period. He made each of his purchases of the Product after reading and relying on the 

truthfulness of Defendants’ product label that promised that the Products were “Made with Real 

Ginger.” Mr. Swartz believed this meant that Seagram’s was made with ginger root and was, as a 

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Deleted: Product has

Deleted: Plaintiff.

Deleted: <#>Plaintiff not only purchased the 

Product because their label said that they were 

“MADE WITH REAL GINGER,” but she also paid

more money for the ginger ales than she would have 

paid for other a similar soft drink that was not 

labeled as containing real ginger.

<#>Had Defendants not misrepresented (by omission 

and commission) the true nature of the Product,

Plaintiff would not have purchased them or, at a very 

minimum, she would have paid less for the soft 

drink. 

<#>Plaintiff and members of the Class have been 

economically damaged by their purchase of the 

Product because the advertising for the Product was 

and is untrue and/or misleading under California 

law; therefore, the Product is worth less than what 

Plaintiffs and members of the Class paid for them 

and/or Plaintiff and members of the Class did not 

receive what they reasonably intended to receive.

<#>As a direct and proximate result of Defendants’ 

unfair and wrongful conduct, as set forth herein, 

Plaintiffs and the class members: (1) were misled 

into purchasing the Product; (2) received a product 

that failed to meet their reasonable expectations and 

Defendants’ promises; (3) paid a premium sum of 

money for a product that was not as represented and, 

thus, were deprived of the benefit of the bargain 

because the purchased ginger ale had less value than 

what was represented by Defendants; and (4) 

ingested a substance that was other than what was 

represented by Defendants and that Plaintiffs and 

class members did not expect.

Plaintiff continues to desire to purchase ginger ale

made with real ginger root, including brands 

marketed and sold by Defendants. Plaintiff regularly 

visits stores such as Safeway where Defendants’ 

Product and other ginger ale beverages are sold.

Deleted: Plaintiff does 

Deleted: their

Deleted: as to the presence of

Deleted: Plaintiff

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result, a healthier alternative to regular sodas. Mr. Swartz purchased Seagram’s ginger ale 

because he believed that the real ginger in the beverage helped him and other persons in his 

family with stomach related issues. He believed that a product claiming to be “Made with Real 

Ginger” would contain enough ginger to provide the health benefits he associated with real 

ginger. 

64. At the time of each purchase of Seagram’s, Mr. Swartz did not know that the 

Products he purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Mr. Swartz. As a result of Defendants’ misrepresentations and 

omissions, Mr. Swartz was injured by paying more money for Seagram’s than he would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Mr. Swartz would 

not have purchased Seagram’s or would have paid a lower price for it.

65. Mr. Swartz continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Mr. Swartz would likely purchase 

Defendants’ Products again in the future. Mr. Swartz regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Mr. Swartz does not know the formula 

for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Mr. Swartz will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Mr. Swartz cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Mr. Swartz is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Mr. Swartz could be at risk for buying another one of Defendants’

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Products in reliance on the same or similar misrepresentation.

Plaintiff Salcedo’s Experiences

66. Plaintiff Salcedo has purchased Seagram’s for years at her local Walmart, and in 

other nearby stores in Harrisburg, Pennsylvania. She made each of her purchases of the Product 

after reading and relying on the truthfulness of Defendants’ product label that promised that the 

Products were “Made with Real Ginger.” Ms. Salcedo believed this meant that Seagram’s was 

made with ginger root and was, as a result, a healthier alternative to regular sodas. Ms. Salcedo

specifically purchased the Seagram’s ginger ale for the health properties of ginger, i.e., helping 

with stomach flu, cold, nausea, anti-inflammation, and digestive regulation. She believed that a 

product claiming to be “Made with Real Ginger” would contain enough ginger to provide the 

health benefits she associated with real ginger. 

67. At the time of each purchase of Seagram’s, Ms. Salcedo did not know that the 

Products she purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Ms. Salcedo. As a result of Defendants’ misrepresentations and 

omissions, Ms. Salcedo was injured by paying more money for Seagram’s than she would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Ms. Salcedo would 

not have purchased Seagram’s or would have paid a lower price for it.

68. Ms. Salcedo continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Ms. Salcedo would likely purchase 

Defendants’ Products again in the future. Ms. Salcedo regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Ms. Salcedo does not know the 

formula for Defendants’ Products and cannot test whether or not the beverages are made with 

ginger root before purchasing, Ms. Salcedo will be unable to rely on Defendants’ labels when 

shopping for ginger ales in the future absent an injunction that prohibits Defendants from labeling 

its Products with the phrase “Made with Real Ginger” unless the product is actually made with 

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ginger root rather than a miniscule amount of a ginger flavor extract. Likewise, Because of 

changes in the market, Ms. Salcedo cannot know at any given time, which brands are owned by 

Defendants and whether its representations about “real ginger” are truthful. Thus, Ms. Salcedo is

likely to be repeatedly presented with false or misleading information when shopping for ginger 

ale, making it difficult to make informed purchasing decisions. Should Defendants begin to 

market and sell a new brand of ginger ale, Ms. Salcedo could be at risk for buying another one of 

Defendants’ Products in reliance on the same or similar misrepresentation.

Plaintiff Miller’s Experiences

69. Plaintiff Scott Miller was purchasing Seagram’s ginger ale every month until early 

2015. He made each of his purchases of the Product after reading and relying on the truthfulness 

of Defendants’ product label that promised that the Products were “Made with Real Ginger.” Mr. 

Miller believed this meant that Seagram’s was made with ginger root and was, as a result, a 

healthier alternative to regular sodas. Mr. Miller stopped purchasing Seagram’s in early 2015 

after he tried Fever Tree ginger ale, which made him question the veracity of Defendant’s “Made 

with Real Ginger” representation. 

70. At the time of each purchase of Seagram’s, Mr. Miller did not know that the 

Products he purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Mr. Miller. As a result of Defendants’ misrepresentations and 

omissions, Mr. Miller was injured by paying more money for Seagram’s than he would have paid. 

Indeed, had Defendants not mispresented the true nature of Seagram’s, Mr. Miller would not have 

purchased Seagram’s or would have paid a lower price for it.

71. Mr. Miller continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Mr. Miller would likely purchase 

Defendants’ Products again in the future. Mr. Miller regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Mr. Miller does not know the formula 

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for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Mr. Miller will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Mr. Miller cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Mr. Miller is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Mr. Miller could be at risk for buying another one of Defendants’

Products in reliance on the same or similar misrepresentation.

Plaintiff Pascual’s Experiences

72. Plaintiff Isabelo Pascual frequently purchased two liter bottles of Seagram’s from 

Ralph’s grocery stores and 7-11 convenience stores in California during the class period. He

made each of his purchases of the Product after reading and relying on the truthfulness of 

Defendants’ product label that promised that the Products were “Made with Real Ginger.” Mr. 

Pascual believed this meant that Seagram’s was made with ginger root and was, as a result, a 

healthier alternative to regular sodas. He believed that a product claiming to be “Made with Real 

Ginger” would contain enough ginger to provide the health benefits he associated with real 

ginger. 

73. At the time of each purchase of Seagram’s, Mr. Pascual did not know that the 

Products he purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Mr. Pascual. As a result of Defendants’ misrepresentations and 

omissions, Mr. Pascual was injured by paying more money for Seagram’s than he would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Mr. Pascual would 

not have purchased Seagram’s or would have paid a lower price for it.

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74. Mr. Pascual continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Mr. Pascual would likely purchase 

Defendants’ Products again in the future. Mr. Pascual regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Mr. Pascual does not know the formula 

for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Mr. Pascual will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Mr. Pascual cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Mr. Pascual is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Mr. Pascual could be at risk for buying another one of Defendants’

Products in reliance on the same or similar misrepresentation.

75.

Plaintiff Carlin’s Experiences

76. Plaintiff Carlin purchased Seagram’s ginger ale approximately every two weeks 

from the Publix grocery store in her neighborhood in Florida for the past two years. Prior to that, 

she would occasionally purchase Seagram’s ginger ale. About two years ago, she switched from 

other carbonated soft drinks to Seagram’s because of the “Made with Real Ginger” 

representation. Ms. Carlin believed this meant that Seagram’s was made with ginger root and 

was, as a result, a healthier alternative to regular sodas. She bought Seagram’s for the antiinflammatory and stomach calming benefits associated with ingesting real ginger root. Ms. Carlin

believed that a product claiming to be “Made with Real Ginger” would contain enough ginger to 

provide the health benefits she associated with real ginger. However, she stopped purchasing 

Seagram’s recently when she learned the truth of the matter from news reports about litigation 

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involving Canada Dry ginger ale.

77. At the time of each purchase of Seagram’s, Ms. Carlin did not know that the 

Products she purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Ms. Carlin. As a result of Defendants’ misrepresentations and 

omissions, Ms. Carlin was injured by paying more money for Seagram’s than she would have 

paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Ms. Carlin would 

not have purchased Seagram’s or would have paid a lower price for it.

78. Ms. Carlin continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Ms. Carlin would likely purchase 

Defendants’ Products again in the future. Ms. Carlin regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Ms. Carlin does not know the formula 

for Defendants’ Products and cannot test whether or not the beverages are made with ginger root

before purchasing, Ms. Carlin will be unable to rely on Defendants’ labels when shopping for 

ginger ales in the future absent an injunction that prohibits Defendants from labeling its Products 

with the phrase “Made with Real Ginger” unless the product is actually made with ginger root 

rather than a miniscule amount of a ginger flavor extract. Likewise, Because of changes in the 

market, Ms. Carlin cannot know at any given time, which brands are owned by Defendants and 

whether its representations about “real ginger” are truthful. Thus, Ms. Carlin is likely to be 

repeatedly presented with false or misleading information when shopping for ginger ale, making 

it difficult to make informed purchasing decisions. Should Defendants begin to market and sell a 

new brand of ginger ale, Ms. Carlin could be at risk for buying another one of Defendants’

Products in reliance on the same or similar misrepresentation.

Plaintiff Hoffman’s Experiences

79. Plaintiff Hoffman purchased Seagram’s ginger ale approximately every two weeks 

from the from the Acme and the Shoprite groceries stores in her neighborhood since she moved to 

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New Jersey a few years ago. She typically, but not exclusively, purchased the screw top bottle 

format, as opposed to cans. Before that time, she would occasionally purchase Seagram's ginger 

ale, among other ginger ales. Shortly after she returned to New Jersey from California a few 

years ago, she switched from other carbonated soft drinks to Seagram’s because of the “Made 

with Real Ginger” representation. Ms. Hoffman believed this meant that Seagram’s was made 

with ginger root and was, as a result, a healthier alternative to regular sodas. She bought 

Seagram’s for herself and for her two young daughters based upon the anti-inflammatory and 

stomach calming benefits associated with ingesting real ginger root. Ms. Hoffman believed that a 

product claiming to be “Made with Real Ginger” would contain enough ginger to provide the 

health benefits she associated with real ginger. However, she stopped purchasing Seagram’s 

recently when she learned the truth of the matter from news reports about litigation involving 

Canada Dry ginger ale.

80. At the time of each purchase of Seagram’s, Ms. Hoffman did not know that the 

Products she purchased were not made with real ginger, but were instead made with a miniscule 

amount of a ginger flavor extract, which does not provide any of the health benefits of real ginger. 

As a result of Defendants’ misrepresentations and omissions, the Products have no, or, at, a 

minimum, a much lower, value to Ms. Hoffman. As a result of Defendants’ misrepresentations 

and omissions, Ms. Hoffman was injured by paying more money for Seagram’s than she would 

have paid. Indeed, had Defendants not mispresented the true nature of Seagram’s, Ms. Hoffman

would not have purchased Seagram’s or would have paid a lower price for it.

81. Ms. Hoffman continues to desire to purchase ginger ale made with real ginger, 

including brands marketed and sold by Defendants. If Defendants’ Products were reformulated to 

be made with real ginger, i.e., made with ginger root, Ms. Hoffman would likely purchase 

Defendants’ Products again in the future. Ms. Hoffman regularly visit stores where Defendants’

Products and other ginger ale beverages are sold. Because Ms. Hoffman does not know the 

formula for Defendants’ Products and cannot test whether or not the beverages are made with 

ginger root before purchasing, Ms. Hoffman will be unable to rely on Defendants’ labels when 

shopping for ginger ales in the future absent an injunction that prohibits Defendants from labeling 

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its Products with the phrase “Made with Real Ginger” unless the product is actually made with 

ginger root rather than a miniscule amount of a ginger flavor extract. Likewise, Because of 

changes in the market, Ms. Hoffman cannot know at any given time, which brands are owned by 

Defendants and whether its representations about “real ginger” are truthful. Thus, Ms. Hoffman is

likely to be repeatedly presented with false or misleading information when shopping for ginger 

ale, making it difficult to make informed purchasing decisions. Should Defendants begin to 

market and sell a new brand of ginger ale, Ms. Hoffman could be at risk for buying another one of 

Defendants’ Products in reliance on the same or similar misrepresentation.

CLASS ALLEGATIONS

82. Plaintiff brings this action against Defendants, on behalf of herself and all others 

similarly situated, as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 

Plaintiffs seek to represent the following groups of similarly situated persons, defined as follows: 

All persons who, between December 23, 2012 and the present, purchased any 

of the Defendants’ Product (the “Nationwide Class”).

83. Plaintiffs also seek certification of the following subclass: all members of the 

Nationwide Class who made their purchases in Alabama, Arizona, California, Connecticut, 

Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, 

Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, 

Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, 

Rhode Island, South Carolina, Vermont, Washington, West Virginia, or Wyoming (the 

“Consumer Unfairness/Unlawfulness Subclass”).

84. Plaintiffs Fitzhenry-Russell, Swartz, and Pascual also seek to represent a subclass 

of those members of the Nationwide Class who purchased any of Defendants’ Products in 

California (the “California Subclass”).

85. Plaintiff Salcedo also seeks to represent a subclass of those members of the 

Nationwide Class who purchased any of Defendants’ Products in Pennsylvania (the 

“Pennsylvania Subclass”).

86.

87. Plaintiff Hoffman also seeks to represent a subclass of those members of the 

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margin,Ctrl+1,Body Text - 1",Body,m,

Justified, Indent: Left: 0.75", Right: 0.55",

Space Before: 6 pt, Line spacing: single,

No bullets or numbering, Tabs: 0", Left +

1", List tab + Not at 0.5" + 1.5" + 3"

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Deleted: section 1781

Deleted: California 

Deleted: Code. Plaintiff 

Deleted: the 

Deleted: .

This action has been brought and may 

properly be maintained as a class action 

against Defendants because there is a welldefined community of interest in 

Deleted: litigation and the proposed class is 

easily ascertainable.

Deleted: <#>Numerosity: Plaintiff does not know

the exact size the Class, but they are estimated that it 

is composed of more than 100 persons. The persons 

in the Class are so numerous that the joinder of all 

such persons is impracticable and the disposition of 

their claims in a class action rather than in individual 

actions will benefit the parties and the courts.

<#>Common Questions Predominate: This action 

involves common questions of law and fact to the 

potential classes because each class member’s claim 

derives from the deceptive, unlawful and/or unfair 

statements and omissions that led consumers to 

believe that the Product was made with, and 

contained, real ginger. The common questions of law

and fact predominate over individual questions, as 

proof of a common or single set of facts will 

establish the right of each member of the Class to 

recover. The questions of law and fact common to 

the Class are:

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Nationwide Class who purchased any of Defendants’ Products in New Jersey (the “New Jersey

Subclass”).

88. Plaintiffs Miller and Carlin also seek to represent a subclass of those members of 

the Nationwide Class who purchased any of Defendants’ Products in Florida (the “Florida 

Subclass”).

89. The Nationwide Class, as well as the Subclasses are referred to collectively as the 

“Classes.”

90. Plaintiffs reserve the right to propose additional or further subclasses or narrowing 

of the above class and subclass definitions, based on the evidence adduced in discovery, or as 

necessary and appropriate.

91. In each of the causes of action pled below, a statement that the count is alleged on 

behalf of a particular class or subclass includes all subclasses thereof, including subclasses that 

may later be proposed as described in the prior paragraph.

92. Plaintiffs and members of the Classes have been economically damaged by their 

purchase of Seagram’s because the advertising for Seagram’s was and is untrue and/or misleading 

under applicable law; therefore, Seagram’s is worth less than what Plaintiffs and members of the 

Classes paid for it and/or Plaintiff and members of the Classes did not receive what they 

reasonably intended to receive.

93. As a direct and proximate result of Defendants’ unfair and wrongful conduct, as 

set forth herein, Plaintiffs and class members: (1) were misled into purchasing Seagram’s; (2) 

received a product that failed to meet their reasonable expectations and Defendants’ promises; (3) 

paid a premium sum of money for a product that was not as represented and, thus, were deprived 

of the benefit of the bargain because the purchased ginger ale had less value than what was 

represented by Defendants; and (4) ingested a substance that was other than what was represented 

by Defendants and that Plaintiff and class members did not expect.

94. This action is properly brought and may be maintained as a class action because it 

satisfies all of the prerequisites of Rule 23.

95. Numerosity: Plaintiffs do not know the exact size the Classes, but they far exceed

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100 persons. The persons in the Classes are so numerous that the joinder of all such persons is 

impracticable and the disposition of their claims in a class action rather than in individual actions 

will benefit the parties and the courts.

96. Typicality: Named Plaintiffs are all typical of the Classes because they were 

subject to the same fraudulent scheme of Defendants as every other class member. They 

purchased Seagram’s based on Defendants’ false representation that it was “Made from Real 

Ginger.” They, like all other class members, paid a premium as a result of that misrepresentation 

and suffered economic injury as a result. Thus, Plaintiffs and the class members sustained the 

same injuries and damages arising out of Defendants’ conduct in violation of the law. The 

injuries and damages of each class member were caused directly by Defendants’ wrongful 

conduct in violation of law as alleged.

97. Adequacy: Plaintiffs will fairly and adequately protect the interests of all class 

members because it is in their best interests to prosecute the claims alleged herein to obtain full 

compensation due to them for the unfair and illegal conduct of which they complain. Plaintiffs 

have no interests that are in conflict with, or antagonistic to, the interests of class members. 

Plaintiffs have retained highly competent and experienced class action attorneys to represent their 

interests and that of the class. By prevailing on their own claims, Plaintiffs will establish 

Defendants’ liability to all class members. Plaintiffs and their counsel have the necessary 

financial resources to adequately and vigorously litigate this class action, and Plaintiffs and 

counsel are aware of their fiduciary responsibilities to the class members and are determined to 

diligently discharge those duties by vigorously seeking the maximum possible recovery for class 

members.

98. Commonality and Predominance: This action involves common questions the 

common answers of which will drive the resolution of this case for all class members because 

each class member’s claim derives from the deceptive, unlawful and/or unfair statements and 

omissions that led consumers to believe that Seagram’s was made using ginger root. Defendants’

product label was the same on all Seagram’s products throughout the class period. Its formula 

likewise remained unchanged. Thus, all of the central issues in this case will be resolved via 

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common proof for all class members, establishing that common issues predominate over any 

individual issues. The questions of law and fact common to the Classes are:

a) whether the Product is “Made with Real Ginger;”

b) whether Defendants unfairly, unlawfully and/or deceptively misrepresented 

that the Product is “Made with Real Ginger;”

c) whether the use of the phrase “Made with Real Ginger” on the primary 

display panel of the Product violated Federal and/or California state law; 

d) whether the advertising of the product as Made with Real Ginger causes it 

to command a premium in the market as compared with similar products 

that do not make such a claim;

e) whether Defendants’ advertising and marketing regarding the Product sold 

to the class members was likely to deceive the class members and/or was 

unfair;

f) Whether a “Made with Real Ginger” claim on product packaging and 

advertising is material to a reasonable consumer;

g) whether Defendants engaged in the alleged conduct knowingly, recklessly, 

or negligently; 

h) the amount of profits and revenues earned by Defendants as a result of the 

conduct;

i) whether class members are entitled to restitution, injunctive and other 

equitable relief and, if so, what is the nature (and amount) of such relief; 

and

j) whether class members are entitled to payment of actual, incidental, 

consequential, exemplary and/or statutory damages plus interest thereon, 

and if so, what is the nature of such relief.

99. Superiority: There is no plain, speedy, or adequate remedy other than by 

maintenance of this class action. The prosecution of individual remedies by members of the 

classes will tend to establish inconsistent standards of conduct for Defendants and result in the 

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Deleted: MADE WITH REAL GINGER;”

Deleted: MADE WITH REAL GINGER;”

Deleted: MADE WITH REAL GINGER

Deleted: MADE WITH REAL GINGER

Deleted: <#>Typicality: Plaintiff’s claims are 

typical of the Class because she purchased at least 

eight cases of the Product – in reliance on 

Defendants’ misrepresentations and omissions that 

they were “MADE WITH REAL GINGER.” Thus, 

Plaintiff and the class members sustained the same 

injuries and damages arising out of Defendants’ 

conduct in violation of the law. The injuries and 

damages of each class member were caused directly 

by Defendants’ wrongful conduct in violation of law 

as alleged. 

<#>Adequacy: Plaintiff will fairly and adequately 

protect the interests of all class members because it 

is in her best interests to prosecute the claims alleged 

herein to obtain full compensation due to her for the 

unfair and illegal conduct of which she complains. 

Plaintiff also has no interests that are in conflict 

with, or antagonistic to, the interests of class 

members. Plaintiff has retained highly competent 

and experienced class action attorneys to represent 

her interests and that of the classes. By prevailing on 

her own claims, Plaintiff will establish Defendants’ 

liability to all class members. Plaintiff and her 

counsel have the necessary financial resources to 

adequately and vigorously litigate this class action, 

and Plaintiff and counsel are aware of their fiduciary 

responsibilities to the class members and are 

determined to diligently discharge those duties by 

vigorously seeking the maximum possible recovery 

for class members. 

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impairment of class members’ rights and the disposition of their interests through actions to 

which they were not parties. Class action treatment will permit a large number of similarly 

situated persons to prosecute their common claims in a single forum simultaneously, efficiently, 

and without the unnecessary duplication of effort and expense that numerous individual actions 

would engender. Furthermore, as the damages suffered by each individual member of the classes 

may be relatively small, the expenses and burden of individual litigation would make it difficult 

or impossible for individual members of the class to redress the wrongs done to them, while an 

important public interest will be served by addressing the matter as a class action.

100. Plaintiffs are unaware of any difficulties that are likely to be encountered in the 

management of this action that would preclude its maintenance as a class action. 

CAUSES OF ACTION

Plaintiffs do not plead, and hereby disclaim, causes of action under the FDCA and 

regulations promulgated thereunder by the FDA. Plaintiffs rely on the FDCA and FDA 

regulations only to the extent such laws and regulations have been separately enacted as state law 

or regulation or provide a predicate basis of liability under the state and common laws cited in the 

following causes of action. 

PLAINTIFFS’ FIRST CAUSE OF ACTION

(Violation of the Consumer Protection Acts of 50 States and the District of Columbia, Including, 

without limitation, the Consumers Legal Remedies Act (the “CLRA”), California Civil Code § 

1750, et seq.)

On Behalf of the Nationwide Class

101. Plaintiffs reallege and incorporates the above paragraphs of this Complaint as if 

fully set forth herein.

102. Plaintiffs bring this claim on behalf of the Classes for violation of the consumer 

protection acts of each of the States of the United States, and the District of Columbia.

103. Plaintiffs bring these statutory consumer protection claims pursuant to the 

substantially similar “Consumer Protection Acts” identified below, all of which were enacted and 

designed to protect consumers against unlawful, fraudulent, and/or unfair business acts and 

practices.

104. The following consumer protection acts are collectively referred to herein as the 

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control, Don't keep with next, Tabs:Not at

0.5" + 1" + 1.5" + 3"

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Deleted: Plaintiff does not 

Deleted: s

Deleted: Plaintiff relies

Deleted: PLAINTIFF’S

Deleted: 

Deleted: Plaintiff and the 

Deleted: Plaintiff realleges and incorporate the

Deleted: Class Action 

Deleted: <#>Defendants’ actions, representations 

and conduct have violated, and continue to violate

the CLRA, because they extend to transactions that 

are intended to result, or which have resulted, in the 

sale or lease of goods or services to consumers. 

<#>Plaintiff and other class members are 

“consumers” as that term is defined by the CLRA in 

California Civil Code § 1761(d).

<#>The Product that Plaintiff (and other similarly 

situated class members) purchased from Defendants

were “goods” within the meaning of California Civil 

Code § 1761(a). 

<#>Defendants’ acts and practices, set forth in this 

Class Action Complain, led customers to falsely 

believe that the Product were made with, and 

contained, real ginger. By engaging in the actions, 

representations and conduct set forth in this Class 

Action Complaint, Defendants have violated, and 

continues to violate, § 1770(a)(2), § 1770(a)(5), 

§ 1770(a)(7), § 1770(a)(8), and § 1770(a)(9) of the 

CLRA. In violation of California Civil Code 

§1770(a)(2), Defendants’ acts and practices 

constitute improper representations regarding the 

source, sponsorship, approval, or certification of the 

goods they sold. In violation of California Civil 

Code §1770(a)(5), Defendants’ acts and practices 

constitute improper representations that the goods 

they sell have sponsorship, approval, characteristics, 

ingredients, uses, benefits, or quantities, which they

do not have. In violation of California Civil Code 

§1770(a)(7), Defendants’ acts and practices 

constitute improper representations that the goods 

they sell are of a particular standard, quality, or 

grade, when they are of another. In violation of 

California Civil Code §1770(a)(8), Defendants have 

disparaged the goods, services, or business of 

another by false or misleading representation of fact. 

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“Consumer Protection Acts”:

a. ALA. CODE § 8-19-1 et seq. (Alabama);

b. ALASKA STAT. ANN. § 45.50.471 et seq. (Alaska);

c. ARIZ. REV. STAT. ANN. § 44-1521 et seq. (Arizona);

d. ARK. CODE ANN. § 4-88-101 et seq. (Arkansas);

e. CAL. CIV. CODE § 1750 et seq. (California);

f. COLO. REV. STAT. ANN. § 6-1-101 et seq. (Colorado);

g. CONN. GEN. STAT. ANN. § 42-110a et seq. (Connecticut);

h. DEL. CODE ANN. tit. 6, § 2511 et seq. (Delaware);

i. D.C. CODE ANN. § 28-3901 et seq. (District of Columbia);

j. FLA. STAT. ANN. § 501.201 et seq. (Florida);

k. GA. CODE ANN. § 10-1-370 et seq. and GA. CODE ANN. § 10-1-390 et 

seq. (Georgia);

l. HAW. REV. STAT. ANN. § 480-1 et seq. and HAW. REV. STAT. ANN. 

§ 481A-1 et seq. (Hawai’i);

m. IDAHO CODE ANN. § 48-601 et seq. (Idaho);

n. 815 ILCS 505/1 et seq. (Illinois);

o. IND. CODE ANN. § 24-5-0.5-0.1 et seq. (Indiana);

p. IOWA CODE § 714.16 et seq.

q. KAN. STAT. ANN. § 50-623 et seq. (Kansas);

r. KY. REV. STAT. ANN. § 367.110 et seq. (Kentucky);

s. LA. STAT. ANN. § 51:1401 et seq. (Louisiana);

t. ME. REV. STAT. tit. 5, § 205-A et seq. (Maine);

u. MD. CODE ANN., COM. LAW § 13-101 et seq. (Mary-land);

v. MASS. GEN. LAWS ANN. ch. 93A, § 1 et seq. (Massachusetts);

w. MICH. COMP. LAWS ANN. § 445.901 et seq. (Michigan);

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x. MINN. STAT. ANN. § 325F.68 et seq., MINN. STAT. ANN. § 325D.09 et 

seq., MINN. STAT. ANN. § 325D.43 et seq., and MINN. STAT. ANN. § 

325F.67 (Minnesota);

y. MISS. CODE ANN. § 75-24-1 et seq. (Mississippi);

z. MO. ANN. STAT. § 407.010 et seq. (Missouri);

aa. MONT. CODE ANN. § 30-14-101 et seq. (Montana);

bb. NEB. REV. STAT. ANN. § 59-1601 et seq. (Nebraska);

cc. NEV. REV. STAT. ANN. § 41.600 and NEV. REV. STAT. ANN. 

§598.0903 et seq. (Nevada);

dd. N.H. REV. STAT. ANN. § 358-A:1 et seq. (New Hampshire);

ee. N.J. STAT. ANN. § 56:8-1 et seq. (New Jersey);

ff. N.M. STAT. ANN. § 57-12-1 et seq. (New Mexico);

gg. N.Y. GEN. BUS. LAW. § 349 et seq. (New York);

hh. N.C. GEN. STAT. ANN. § 75-1 et seq. (North Carolina);

ii. N.D. CENT. CODE ANN. § 51-15-01 et seq. (North Dakota);

jj. OHIO REV. CODE ANN. § 1345.01 et seq. (Ohio);

kk. OKLA. STAT. ANN. tit. 15, § 751 et seq. (Oklahoma);

ll. OR. REV. STAT. ANN. § 646.605 et seq. (Oregon);

mm. 73 PA. STAT. ANN. § 201-1 et seq. (Pennsylvania);

nn. 6 R.I. GEN. LAWS ANN. § 6-13.1-1 et seq. (Rhode Island);

oo. S.C. CODE ANN. § 39-5-10 et seq. (South Carolina);

pp. S.D. CODIFIED LAWS § 37-24-1 et seq. (South Dakota);

qq. TENN. CODE ANN. § 47-18-101 et seq. (Tennessee);

rr. TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (Texas);

ss. UTAH CODE ANN. § 13-11-1 et seq. (Utah);

tt. VT. STAT. ANN. tit. 9, § 2451 et seq. (Vermont);

uu. VA. CODE ANN. § 59.1-196 et seq. (Virginia);

vv. WASH. REV. CODE ANN. § 19.86.010 et seq. (Washing-ton);

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ww. W.VA. CODE ANN. § 46A-6-101 et seq. (West Virginia);

xx. WIS. STAT. ANN. § 100.20 (Wisconsin); and

yy. WYO. STAT. ANN. § 40-12-101 et seq. (Wyoming).

105. Plaintiffs and members of the Classes have standing to assert claims under the 

Consumer Protection Acts because they are consumers within the meaning of the Consumer 

Protection Acts and Defendants’ practices were addressed to the market generally and otherwise 

implicate consumer protection concerns.

106. Defendants have engaged in and continue to engage in the unfair, unlawful and 

deceptive trade practices outlined in this Class Action Complaint. 

107. Throughout the class period, Defendants have unfairly and deceptively advertised 

and represented to Plaintiffs and class members that Seagram’s was “Made with Real Ginger.” 

But Defendants failed to inform Plaintiffs and class members that Seagram’s was not made with

real ginger but was instead made from a flavoring compound containing a miniscule amount of a 

ginger flavor extract, which was present in quantities too small to impart flavor to the beverage or 

provide any health benefits.

108. Defendants intended for Plaintiffs and the Class members to rely on the unlawful, 

fraudulent, and/or unfair business acts and practices alleged herein.

109. Plaintiffs and those similarly situated relied to their detriment on Defendants’

unfair, deceptive and unlawful business practices. Had Plaintiffs and those similarly situated 

been adequately informed and not deceived by Defendants, they would have acted differently by 

not purchasing (or paying less for) Defendants’ Products.

110. Defendants’ acts and omissions are likely to deceive the general public.

111. Defendants’ actions, which were knowing, willful, and wanton, constitute 

intentional violations of the Consumer Protection Acts.

112. Defendants engaged in these unfair practices to increase profits.

113. Accordingly, Defendants have engaged in unlawful trade practices, as defined and 

prohibited by the Consumer protection Acts.

114. The aforementioned practices, which Defendants have used to their significant 

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financial gain, also constitute unlawful competition and provide an unlawful advantage over 

Defendants’ competitors as well as injury to the general public.

115. Plaintiffs seek, on behalf of those similarly situated, full damages, as necessary 

and according to proof, to restore any and all monies acquired from Plaintiffs, the general public, 

or those similarly situated by means of the unfair and/or deceptive trade practices complained of 

herein, plus interest thereon. Plaintiffs also seek to recover attorneys’ fees, costs, and expenses to 

be assessed against Defendants, within the limits set forth by applicable law.

116. Plaintiffs seek, on behalf of those similarly situated, an injunction to prohibit 

Defendants from continuing to engage in the unfair trade practices complained of herein.

117. Plaintiffs and those similarly situated are further entitled to and do seek both a 

declaration that the above-described trade practices are unfair, unlawful and/or fraudulent, and 

injunctive relief restraining Defendants from engaging in any of such deceptive, unfair and/or 

unlawful trade practices in the future. Such misconduct by Defendants, unless and until enjoined 

and restrained by order of this Court, will continue to cause injury in fact to the general public 

and the loss of money and property in that Defendants will continue to violate Consumer 

Protection Acts, unless specifically ordered to comply with the same. This expectation of future 

violations will require current and future customers to repeatedly and continuously seek legal 

redress in order to recover monies paid to Defendants to which Defendants are not entitled.

Plaintiffs, those similarly situated and/or other consumers nationwide have no other adequate 

remedy at law to ensure future compliance with the Consumer Protection Acts alleged to have 

been violated herein.

118. As a direct and proximate result of such actions, Plaintiffs and the other members 

of the Classes have suffered and continue to suffer injury in fact and have lost money and/or 

property as a result of such deceptive, unfair and/or unlawful trade practices and unfair 

competition in an amount which will be proven at trial, but which is in excess of the jurisdictional 

minimum of this Court. Among other things, Plaintiffs and the Classes lost the amount they paid 

for the Products.

119. As a direct and proximate result of such actions, Defendants have enjoyed, and 

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continue to enjoy, significant financial gain in an amount which will be proven at trial, but which 

is in excess of the jurisdictional minimum of this Court.

120. Plaintiffs also requests that this Court award her costs and reasonable attorneys’ 

fees pursuant to the Consumer Protection Acts.

121. On December 29, 2016, Plaintiffs delivered a demand letter to Defendants by 

mailing, certified mail, return receipt requested, a demand letter to Defendant and its registered 

agent. Defendant acknowledged receipt on January 12, 2017.

122. The letters described the above-referenced unfair and deceptive acts and practices, 

set forth the nature of Plaintiff’s and the Classes’ injury, and requested relief from Defendants

within 30 days. 

123. Defendants did not respond to the letters within 30 days nor did Defendants tender 

any offer of settlement or other form of relief.

124. The demand letters satisfy any notification or presentment requirements under the 

Consumer Protection Acts.

125. Alternatively, providing notice to Defendants would have been futile in light of 

Defendants’ non-response to these letters, and Defendants’ failure to change its label despite 

nearly two years of litigation in California.

PLAINTIFFS’ SECOND CAUSE OF ACTION

(Fraud, Deceit and/or Misrepresentation)

On Behalf of the Nationwide Class

126. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

127. Throughout the last four years, at weekly and monthly intervals, Defendants 

fraudulently and deceptively informed Plaintiffs and class members that the Products were “Made 

with Real Ginger.” But Defendants failed to inform Plaintiffs and class members that Seagram’s

was not made with real ginger but was instead made from a flavoring compound containing a 

miniscule amount of a ginger flavor extract, which was present in quantities too small to impart 

flavor to the beverage or provide any health benefits.

128. These misrepresentations and omissions were known exclusively to, and actively 

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Deleted: PLAINTIFF’S

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concealed by, Defendants, not reasonably known to Plaintiff, and material at the time they were 

made. Defendants knew the composition of the Product, and they knew that the soft drinks were 

made with a flavour compound containing miniscule amount of ginger flavor extracts, not ginger 

root. Defendants’ misrepresentations and omissions concerned material facts that were essential 

to the analysis undertaken by Plaintiffs as to whether to purchase Defendants’ ginger ales. In 

misleading Plaintiffs and not so informing Plaintiffs, Defendants breached their duty to them. 

Defendants also gained financially from, and as a result of, their breach.

129. Plaintiff and those similarly situated relied to their detriment on Defendants’ 

misrepresentations and fraudulent omissions. Had Plaintiffs and those similarly situated been 

adequately informed and not intentionally deceived by Defendants, they would have acted 

differently by, without limitation: (i) declining to purchase the Product, (ii) purchasing less of 

them, or (iii) paying less for the Product.

130. By and through such fraud, deceit, misrepresentations and/or omissions, 

Defendants intended to induce Plaintiff and those similarly situated to alter their position to their 

detriment. Specifically, Defendants fraudulently and deceptively induced Plaintiff and those 

similarly situated to, without limitation, to purchase the Product.

131. Plaintiff and those similarly situated justifiably and reasonably relied on 

Defendants’ misrepresentations and omissions, and, accordingly, were damaged by Defendants.

132. As a direct and proximate result of Defendants’ misrepresentations and/or 

omissions, Plaintiff and those similarly situated have suffered damages, including, without 

limitation, the amount they paid for the Product.

133. Defendants’ conduct as described herein was wilful and malicious and was 

designed to maximize Defendants’ profits even though Defendants knew that it would cause loss 

and harm to Plaintiff and those similarly situated.

PLAINTIFFS’ THIRD CAUSE OF ACTION

(False Advertising, Business and Professions Code § 17500, et seq. (“FAL”))

On Behalf the California Subclass

134. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

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Deleted: Class

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135. Beginning at an exact date unknown to Plaintiffs, but within three (3) years 

preceding the filing of the Class Action Complaint, Defendants made untrue, false, deceptive 

and/or misleading statements in connection with the advertising and marketing of the Product.

136. Defendants made representations and statements (by omission and commission) 

that led reasonable customers to believe that the Product that they were purchasing were made 

with, and contained, real ginger root.

137. Plaintiffs and those similarly situated relied to their detriment on Defendants’ 

false, misleading and deceptive advertising and marketing practices, including each of the 

misrepresentations and omissions set forth in paragraphs 19-22, 29-39, and 50-55 above. Had 

Plaintiff and those similarly situated been adequately informed and not intentionally deceived by 

Defendants, they would have acted differently by, without limitation, refraining from purchasing 

Defendants’ ginger ales or paying less for them.

138. Defendants’ acts and omissions are likely to deceive the general public. 

139. Defendants engaged in these false, misleading and deceptive advertising and 

marketing practices to increase its profits. Accordingly, Defendants have engaged in false 

advertising, as defined and prohibited by section 17500, et seq. of the California Business and 

Professions Code. 

140. The aforementioned practices, which Defendants used, and continue to use, to 

their significant financial gain, also constitutes unlawful competition and provides an unlawful 

advantage over Defendants’ competitors as well as injury to the general public.

141. As a direct and proximate result of such actions, Plaintiffs and the other class 

members have suffered, and continue to suffer, injury in fact and have lost money and/or property 

as a result of such false, deceptive and misleading advertising in an amount which will be proven 

at trial, but which is in excess of the jurisdictional minimum of this Court.

142. Plaintiffs seeks, on behalf of themselves and those similarly situated, full 

restitution of monies, as necessary and according to proof, to restore any and all monies acquired 

by Defendants from Plaintiffs, the general public, or those similarly situated by means of the 

false, misleading and deceptive advertising and marketing practices complained of herein, plus 

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Deleted: from

Deleted: Plaintiff

Deleted: Plaintiff seek

Deleted: herself

Deleted: -

Deleted: -

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interest thereon.

143. Plaintiffs seek, on behalf of themselves and those similarly situated, a declaration 

that the above-described practices constitute false, misleading and deceptive advertising.

144. Plaintiffs seek, on behalf of themselves and those similarly situated, an injunction 

to prohibit Defendants from continuing to engage in the false, misleading and deceptive 

advertising and marketing practices complained of herein. Such misconduct by Defendants, 

unless and until enjoined and restrained by order of this Court, will continue to cause injury in 

fact to the general public and the loss of money and property in that Defendants will continue to 

violate the laws of California, unless specifically ordered to comply with the same. This 

expectation of future violations will require current and future consumers to repeatedly and 

continuously seek legal redress in order to recover monies paid to Defendants to which they are 

not entitled. Plaintiffs, those similarly situated and/or other consumers nationwide have no other 

adequate remedy at law to ensure future compliance with the California Business and Professions 

Code alleged to have been violated herein.

PLAINTIFFS’ FOURTH CAUSE OF ACTION

(Unlawful, unfair, and fraudulent trade practices in violation of Business and Professions Code § 

17200, et seq. and similar state laws)

On Behalf of the Consumer Unfairness/Unlawfulness Subclass

145. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

146. Within four (4) years preceding the filing of this lawsuit, and at all times 

mentioned herein, Defendants have engaged, and continues to engage, in unlawful, unfair, and 

fraudulent trade practices in California and other states by engaging in the unlawful, unfair, and 

fraudulent business practices outlined in this complaint.

147. In particular, Defendants have engaged, and continue to engage, in unlawful 

practices by, without limitation, violating the following state and federal laws: (i) the CLRA as 

described herein; (ii) the FAL as described herein; (iii) the Consumer Protection Acts of every 

state; (iv) the advertising provisions of the Sherman Law (Article 3), including without limitation, 

California Health & Safety Code §§ 110390, 110395, 110398 and 110400; (v) the misbranded 

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Deleted: Plaintiff

Deleted: herself

Deleted: Plaintiff seeks

Deleted: herself

Deleted: PLAINTIFF’S THIRD

Deleted: (Fraud, Deceit and/or 

Misrepresentation)

Deleted: Plaintiff and 

Deleted: Class

Deleted: Plaintiff realleges

Deleted: <#>Throughout the last four years, at 

weekly and monthly intervals, Defendants 

fraudulently and deceptively informed Plaintiff that 

the Product was “MADE WITH REAL GINGER.” 

Further, at weekly and monthly intervals over the 

last four years, Defendants failed to inform Plaintiff 

that the Product was not made with real ginger but 

instead were made from a chemical compound 

manufactured to mimic the flavor of ginger. 

<#>These misrepresentations and omissions were 

known exclusively to, and actively concealed by, 

Defendants, not reasonably known to Plaintiff, and 

material at the time they were made. Defendants 

knew the composition of the Product, and they knew 

that the soft drinks were flavored with a chemical 

compound intended to mimic the taste of ginger. 

Defendants’ misrepresentations and omissions 

concerned material facts that were essential to the 

analysis undertaken by Plaintiff as to whether to 

purchase Defendants’ ginger ales. In misleading 

Plaintiffs and not so informing Plaintiff, Defendants 

breached their duty to her. Defendants also gained 

financially from, and as a result of, their breach.

<#>Plaintiff and those similarly situated relied to 

their detriment on Defendants’ misrepresentations 

and fraudulent omissions. Had Plaintiffs and those 

similarly situated been adequately informed and not 

intentionally deceived by Defendants, they would 

have acted differently by, without limitation: (i) 

declining to purchase the Product, (ii) purchasing 

less of them, or (iii) paying less for the Product.

<#>By and through such fraud, deceit, 

misrepresentations and/or omissions, Defendants 

intended to induce Plaintiff and those similarly 

situated to alter their position to their detriment. 

Specifically, Defendants fraudulently and 

deceptively induced Plaintiff and those similarly 

situated to, without limitation, to purchase the 

Product.

<#>Plaintiff and those similarly situated justifiably 

and reasonably relied on Defendants’ 

misrepresentations and omissions, and, accordingly, 

were damaged by Defendants.

<#>As a direct and proximate result of Defendants’ 

misrepresentations and/or omissions, Plaintiff and 

those similarly situated have suffered damages, 

including, without limitation, the amount they paid 

for the Product.

<#>Defendants’ conduct as described herein was 

wilful and malicious and was designed to maximize 

Defendants’ profits even though Defendants knew 

that it would cause loss and harm to Plaintiff and 

Deleted: -

Deleted: -

... [8]

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food provisions of the Sherman Law (Article 6), including without limitation, California Health & 

Safety Code §§ 110660, 110665, 110705, 110740, 110760, 110765, and 110770; and (vi) and 

federal laws regulating the advertising and branding of food in 21 U.S.C. § 343(a), et seq. and 

FDA regulations, including but not limited to 21 C.F.R. 101.3, 101.4, 101.13, 101.14, and 101.22, 

which are incorporated into the Sherman Law (California Health & Safety Code §§ 110100(a), 

110380, and 110505).

148. In particular, Defendants have engaged, and continue to engage, in unfair and 

fraudulent practices by, without limitation, the following: (i) misrepresenting that the Product is

“made with real ginger;” and (ii) failing to inform Plaintiff, and those similarly situated, that the 

Products that they purchased are made with a flavor compound manufactured to mimic the taste

of ginger by using miniscule amounts of ginger flavour extracts, rather than real ginger root.

149. Plaintiff and those similarly situated relied to their detriment on Defendants’ 

unlawful, unfair, and fraudulent business practices. Had Plaintiff and those similarly situated been 

adequately informed and not deceived by Defendants, they would have acted differently by, 

without limitation: (i) declining to purchase the Product, (ii) purchasing less of the Product, or 

(iii) paying less for the Product.

150. Defendants’ acts and omissions are likely to deceive the general public. 

151. Defendants engaged in these deceptive and unlawful practices to increase their 

profits. Accordingly, Defendants have engaged in unlawful trade practices, as defined and 

prohibited by section 17200, et seq. of the California Business and Professions Code. 

152. The aforementioned practices, which Defendants have used to their significant 

financial gain, also constitute unlawful competition and provide an unlawful advantage over 

Defendants’ competitors as well as injury to the general public.

153. As a direct and proximate result of such actions, Plaintiff and the other class 

members, have suffered and continue to suffer injury in fact and have lost money and/or property 

as a result of such deceptive and/or unlawful trade practices and unfair competition in an amount 

which will be proven at trial, but which is in excess of the jurisdictional minimum of this Court. 

Among other things, Plaintiffs and the class members lost the amount they paid for the Product.

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154. As a direct and proximate result of such actions, Defendants have enjoyed, and 

continues to enjoy, significant financial gain in an amount which will be proven at trial, but which 

is in excess of the jurisdictional minimum of this Court.

155. Plaintiffs seek, on behalf of themselves and those similarly situated, full restitution 

of monies, as necessary and according to proof, to restore any and all monies acquired by 

Defendants from Plaintiffs, the general public, or those similarly situated by means of the 

deceptive and/or unlawful trade practices complained of herein, plus interest thereon.

156. Plaintiffs seek, on behalf of those similarly situated, a declaration that the abovedescribed trade practices are fraudulent, unfair, and/or unlawful.

157. Plaintiffs seek, on behalf of those similarly situated, an injunction to prohibit 

Defendants from continuing to engage in the deceptive and/or unlawful trade practices 

complained of herein. Such misconduct by Defendants, unless and until enjoined and restrained 

by order of this Court, will continue to cause injury in fact to the general public and the loss of 

money and property in that Defendants will continue to violate the laws of California, unless 

specifically ordered to comply with the same. This expectation of future violations will require 

current and future consumers to repeatedly and continuously seek legal redress in order to recover 

monies paid to Defendants to which they were not entitled. Plaintiffs, those similarly situated 

and/or other consumers nationwide have no other adequate remedy at law to ensure future 

compliance with the California Business and Professions Code alleged to have been violated 

herein. 

PLAINTIFFS’ FIFTH CAUSE OF ACTION

(Unjust Enrichment)

On Behalf of the Nationwide Class

158. Plaintiffs reallege and incorporate by reference the paragraphs of this Class Action 

Complaint as if set forth herein.

159. By means of Defendant’s wrongful conduct alleged herein, Defendant knowingly 

caused Seagram’s to be sold to Plaintiffs and members of the Nationwide Class in a manner that 

was unfair, unconscionable, and oppressive.

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Deleted: Plaintiff seeks

Deleted: Plaintiff seeks

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160. Defendant knowingly received and retained wrongful benefits and funds from 

Plaintiffs and members of the Nationwide Class. In so doing, Defendant acted with conscious 

disregard for the rights of Plaintiffs and members of the Nationwide Class.

161. As a result of Defendant’s wrongful conduct as alleged herein, Defendant has been 

unjustly enriched at the expense of, and to the detriment of, Plaintiffs and members of the

Nationwide Class.

162. Defendant’s unjust enrichment is traceable to, and resulted directly and 

proximately from, the conduct alleged herein.

163. Under the common law doctrine of unjust enrichment, it is inequitable for 

Defendant to be permitted to retain the benefits it received, without justification, from causing 

Seagram’s to be sold to Plaintiffs and members of the Nationwide Class in an unfair, 

unconscionable, and oppressive manner. Defendant’s retention of such funds under such 

circumstances making it inequitable to do so constitutes unjust enrichment.

164. The financial benefits derived by Defendant rightfully belong to Plaintiffs and 

members of the Nationwide Class. Defendant should be compelled to return in a common fund 

for the benefit of Plaintiffs and members of the Nationwide Class all wrongful or inequitable 

proceeds received by them.

165. Plaintiffs and members of the Nationwide Class have no adequate remedy at law.

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff, on behalf of himself and those similarly situated, respectfully 

requests that the Court enter judgment against Defendants as follows:

A. Certification of the proposed Nationwide Class, and California, Pennsylvania, New 

York, New Jersey, and Florida Subclasses, including appointment of Plaintiff’s 

counsel as class counsel;

B. An order temporarily and permanently enjoining Defendants from continuing the 

unlawful, deceptive, fraudulent, and unfair business practices alleged in this 

Complaint;

C. An award of compensatory damages in an amount to be determined at trial;

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Deleted: prays for judgment as follows:

A. ON C A USE

Deleted: A CTION NUMBER 1 

(FOR VIOLATION OF 

Deleted: CONSUMERS LEGAL REMEDIES 

A CT), 2 (FOR 

VIOLATION OF THE 

F ALSE 

ADVER TISING LA W)

AND 4 (FOR VIOLATION OF 

THE UNF AIR COMPETITION 

LA W)

Deleted: AND IN 

F A VOR OF PLAINTIFF 

AND THE O THER 

MEMBERS OF THE CLASS

Deleted: 1. Declaring that Defendants’ 

use of the phrase “Made with Real Ginger”

on the Product is unlawful and likely to 

deceive reasonable consumers;

2. Enjoining Defendants, directly or 

through any corporation, partnership, 

subsidiary, division, trade name, or other 

device, in connection with the 

manufacturing, labeling, packaging, 

advertising, promotion, offering for sale, 

sale, or distribution of any ginger beverage

from making a “Made with Real Ginger” 

claim unless the product contains real 

ginger; 

3. Enjoining Defendants, directly or 

through any corporation, partnership, 

subsidiary, division, trade name, or other 

device, in connection with the 

manufacturing, labeling, packaging, 

advertising, promotion, offering for sale, 

sale, or distribution of any ginger beverage 

from making other claims about the 

inclusion of real ginger in the product (such 

as “contains real ginger”) unless the 

representation is non-misleading; and

4. ENJOINING 

DEFEND ANTS, 

DIRECTLY OR 

THR OUGH 

ANY CORPORATION, 

P AR TNERSHIP, 

SUBSIDIARY , 

DIVISION, OR 

O THER 

Deleted: -

Deleted: -

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D. An award of statutory damages in an amount to be determined at trial;

E. An award of punitive damages in an amount to be determined at trial;

F. An award of treble damages;

G. An award of restitution in an amount to be determined at trial;

H. An order requiring Defendants to pay both pre- and post-judgment interest on any 

amounts awarded;

I. For reasonable attorney’s fees and the costs of suit incurred;

J. For such further relief as this Court may deem just and proper;

JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury.

Dated: January 29, 2018 GUTRIDE SAFIER LLP

Adam J. Gutride, Esq.

Seth A. Safier, Esq.

Marie A. McCrary, Esq.

Matthew T. McCrary, Esq.

 100 Pine Street, Suite 1250

San Francisco, CA 94111

Attorneys for Plaintiff

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Level: 1 + Numbering Style: A, B, C, ... +

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Deleted: the purposes of this paragraph, 

“means and instrumentalities” means any 

information, including, but not necessarily 

limited to, any advertising, labeling, or 

promotional, sales training, or purported 

substantiation materials, for use by trade 

customers in their marketing of such product 

or service. 

B. On Cause of Action Number 1 (for 

violation of the Consumers Legal Remedies 

Act) against Defendants and in favor of 

Plaintiffs and the other members of the Class as 

follows:

1. An award of actual damages, the amount 

of which is to be determined at trial; 

2. An award of punitive damages, the 

amount of which is to be determined at trial; 

and

3. An award of statutory damages as 

provided by Civil Code section 1780(b), the 

amount of which is to be determined at trial.

C. On Causes of Action Numbers 2 (for 

violation of the False Advertising Law) and 

4 (for violation of the Unfair Competition 

Law) against Defendants and in favor of 

Plaintiff and the other members of the Class: 

1. For restitution pursuant to, without 

limitation, the California Business & 

Professions Code §§ 17200, et seq. and 

17500, et seq.;

2. For injunctive relief pursuant to, without 

limitation, the California Business & 

Professions Code §§ 17200, et seq. and 

17500, et seq.; and

3. For a declaration that Defendants’ 

above-described trade practices are

fraudulent and/or unlawful.

D. On Cause of Action Number 3 (for fraud, 

deceit and/or misrepresentation) against 

Defendants and in favor of Plaintiff and the 

other members of the Class:

1. An award of compensatory damages, the 

amount of which is to be determined at trial; 

and

2. An award of punitive damages, the 

amount of which is to be determined at trial.

D. On all Causes of Action against 

Defendants and in favor of Plaintiff and the 

other members of the Class:

For

Deleted: attorneys’

Deleted: according to proof pursuant to, 

without limitation, 

Deleted: California Legal Remedies Act 

and California Code of Civil Procedure § 

1021.5; 

FODeleted: R AND

Deleted: .

Deleted: 5

Deleted: <sp>

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Deleted: -

... [10]

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Exhibit 3

Case 5:17-cv-00603-EJD Document 75-1 Filed 01/29/19 Page 85 of 94
HIGHLY CONFIDENTIAL

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 SAN JOSE DIVISION

4 -oOo5

6

7 JACKIE FITZHENRY-RUSSELL, )

 )

8 Plaintiff, )

 )

9 vs. ) Case No: 5:17-cv-00603-EJD

 )

10 THE COCA-COLA COMPANY, )

 )

11 Defendants. )

___________________________ )

12

13

14

15

16

17 ** HIGHLY CONFIDENTIAL **

18 VIDEOTAPED DEPOSITION OF JACKIE FITZHENRY-RUSSELL

19 San Francisco, California

20 Thursday, September 27, 2018

21

22 Reported by:

23 LISA R. TOW

24 CSR No. 6629

25

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HIGHLY CONFIDENTIAL

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 SAN JOSE DIVISION

4 -oOo5

6

7 JACKIE FITZHENRY-RUSSELL, )

 )

8 Plaintiff, )

 )

9 vs. ) Case No: 5:17-cv-00603-EJD

 )

10 THE COCA-COLA COMPANY, )

 )

11 Defendants. )

___________________________ )

12

13

14

15 Deposition of JACKIE FITZHENRY-RUSSELL, taken on

16 behalf of Defendant, at the Offices of Shook Hardy & Bacon

17 1 Montgomery St #2700, San Francisco, California, 94104,

18 beginning at 10:09 A.M. and ending at 2:37 p.m. on Thursday,

19 September 27, 2018, before LISA R. TOW, Certified Shorthand

20 Reporter No. 6629.

21

22

23

24

25

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1 ginger ale before you buy it?

2 A. I do now.

3 Q. When did that practice start?

4 A. 2014.

5 Q. Why did you start doing that in 2014?

6 A. Because it says -- it says "made with real

7 ginger." But, if you turn it around, the Canada

8 Dry, on the back of it, it doesn't have ginger in

9 the ingredients.

10 Q. So, you started in 2014, looking at the

11 ingredient list on Canada Dry?

12 A. Yeah.

13 MR. SAFIER: Jackie, you have to give me a sec.

14 Misstates prior testimony. Lacks foundation.

15 BY MS. COHEN:

16 Q. And was it in 2014 that you discovered

17 that there was no ginger in Canada Dry?

18 MR. SAFIER: Lacks foundation. Misstates prior

19 testimony.

20 THE WITNESS: Yes.

21 BY MS. COHEN:

22 Q. But, you continued to purchase it after

23 2014?

24 A. No.

25 Q. So you stopped purchasing Canada Dry in

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1 MR. SAFIER: Yes.

2 THE WITNESS: Yeah. I think.

3 Do it again.

4 BY MS. COHEN:

5 Q. Sitting here today, you cannot recall,

6 specifically, whether you saw the "made with real

7 ginger" claim on that one pack that you purchased in

8 2014, when you first bought it?

9 MR. SAFIER: Lacks foundation. Misstates prior

10 testimony.

11 THE WITNESS: Yes. I think that it did. But,

12 I can't absolutely say.

13 MR. SAFIER: Can we take a break?

14 MS. COHEN: Sure.

15 THE VIDEOGRAPHER: Going off the record.

16 The time is 11:58 a.m.

17 (Whereupon a break was had)

18 THE VIDEOGRAPHER: Back on the record.

19 The time is 12:13 p.m.

20 BY MR. COHEN:

21 Q. Mrs. Russell, during the break did you

22 speak to your lawyer about the substance of your

23 testimony?

24 MR. SAFIER: I am going to caution you that you

25 can answer this question, but you are not to tell

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1 please.

2 THE WITNESS: Okay.

3 BY MS. COHEN:

4 Q. Can you answer the question?

5 A. Can you state it again?

6 MR. SAFIER: She answered it.

7 BY MS. COHEN:

8 Q. You're testifying now, if I understand it,

9 that you must have looked at the front of the

10 cardboard box that was enclosing the 12 cans of

11 ginger ale; is that right?

12 A. Right.

13 Q. Do you actually remember looking at that

14 cardboard box?

15 A. Well, I remember that there was Canada Dry

16 here and there was Seagram's here.

17 Now, the Canada Dry was all gone. It was

18 empty. So I went over to Seagram's, I looked at the

19 front of it. Okay, it's got ginger root. Got it.

20 Q. So, it is now your testimony after meeting

21 with your lawyer for 15 minutes, that you

22 specifically remember when you picked that 12-pack

23 up, you specifically remember at that point in time

24 that you read "made with real ginger"?

25 A. No.

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1 A. Oh, because I was tired this morning and I

2 just had a rough morning. I don't think I was

3 paying close enough attention to her.

4 Q. Okay.

5 A. I'm sorry.

6 Q. Do you recall that you were asked if you

7 paid -- what you paid for -- strike that.

8 Do you recall that you were asked how much you

9 paid for the Seagram's you purchased at Safeway in

10 2014?

11 A. Yes.

12 Q. Is it correct that you said you don't

13 think you paid too much or too little?

14 A. Well, if I knew that it didn't have ginger

15 in it, I paid way too much. But I didn't know that,

16 so compared to everything else, yes.

17 Q. Okay. I am going to try to ask you what

18 you meant by your testimony.

19 You previously said that you paid too much --

20 you didn't pay too much or too little.

21 What did you mean by that?

22 A. For the product that I thought I was

23 getting, I would have been right in there. Because

24 all of them were -- a lot of them were that price.

25 It wasn't outrageously priced, that's why I took it.

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1 And then I read it and it's got real ginger in

2 it, and: Yay, that's even better. The front label.

3 Q. You are saying that you read the front

4 label and then you purchased the product --

5 A. Absolutely.

6 MR. SAFIER: -- is that correct?

7 MS. COHEN: Objection. Misstates testimony.

8 The lawyer is coaching the witness.

9 BY MR. SAFIER:

10 Q. And what I want to know is: By stating

11 you paid too much or too little, what did you mean?

12 A. I meant it was right in there with the

13 rest of them. If it -- if I had known that it did

14 not have anything in it, but I didn't know that. I

15 didn't know.

16 BY MR. SAFIER:

17 Q. So, when you say: "Right in there with

18 the rest of them," do you mean that the price was

19 right in there with the rest of them?

20 A. Yeah.

21 Q. Right. And now that you know that the

22 Seagram's product did not contain real ginger root,

23 going back in time would you have purchased that

24 product?

25 A. No.

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1 Q. I get it. Let me see if I can clarify

2 this.

3 A. Okay. Say it again.

4 Q. When you were recalling about starting to

5 read labels in 2014, did you start to read labels --

6 when you refer to that, are you talking about the

7 back of the label that you referred to in 2014?

8 MS. COHEN: Objection to form.

9 THE WITNESS: Yes.

10 BY MR. SAFIER:

11 Q. Okay. But you later testified that the

12 date was mistake; is that correct?

13 A. Right. I never looked at any labels until

14 2016.

15 Q. And when you say "looked at labels," you

16 mean the back of the labels?

17 A. I mean the back of the label. I don't

18 mean like when you see the product in the store.

19 That's the front of the label.

20 Q. So, you are talking about the ingredients;

21 correct?

22 A. Yes.

23 Q. And how do you know that you started

24 looking at the ingredients on the back of the label

25 of ginger ale cans in 2016? Why was that date

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1 significant?

2 MS. COHEN: Objection. Lacks foundation.

3 Misstates evidence.

4 THE WITNESS: Because that's what I talked to

5 you guys.

6 BY MR. SAFIER:

7 Q. And why is that important that it would be

8 after when you talked to us?

9 A. Oh, because now I really read them. I

10 read the ingredients on almost everything pretty

11 much now. I have learned you can't go with what

12 they say in the front.

13 Q. And before you spoke with attorneys from

14 my firm in sometime late in 2016, was it always your

15 practice to read the front of the ginger ale labels

16 before you purchased them?

17 A. Yeah.

18 Q. That includes Seagram's Ginger Ale?

19 A. Yes.

20 Q. And Canada Dry Ginger Ale?

21 A. Yes.

22 MR. SAFIER: No further questions.

23 FURTHER EXAMINATION

24 BY MS. COHEN:

25 Q. Mrs. Russell, on the break that you and

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