CLASS ACTION ALLEGATION COMPLAINT 1 

Bonner C. Walsh, OSB 131716 

bonner@walshpllc.com 

WALSH LLC 

PO Box 7 

Bly, Oregon 97622 

Phone 541.359.2827 

Facsimile 866.503 8206 

Adam R. Gonnelli (pro hac vice pending) 

agonnelli@faruqilaw.com 

FARUQI AND FARUQI, LLP 

685 Third Avenue, 26th Floor 

New York, New York 10017 

Phone 212.983.9330 

Facsimile 212.983.9331 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

CHRISTOPHER HAMILTON, individually 

and on behalf of all others similarly situated, 

Plaintiff, 

v. 

GENERAL MILLS, INC., 

GENERAL MILLS SALES, INC.,

Defendants. 

CASE NO. 6:16-cv-382 

CLASS ACTION ALLEGATION 

COMPLAINT 

STATE AND COMMON LAW CLAIMS 

FOR DECEPTIVE ACTS 

DEMAND FOR JURY TRIAL

 

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CLASS ACTION ALLEGATION COMPLAINT 2 

1. This is a class action brought by Plaintiff Christopher Hamilton on behalf of a 

proposed class of consumers who purchased Mislabeled Cheerios (defined herein) against 

Defendants General Mills, Inc., and General Mills Sales, Inc. (together, “General Mills” or 

“Defendant”) based on General Mills’ unlawful sales and distribution of Mislabeled Cheerios that 

misled consumers by representing on the Mislabeled Cheerios that the product is “gluten free” 

when, in fact, they are not. 

2. In July 2015, General Mills began manufacturing, marketing, promoting, 

distributing and selling various varieties of “Gluten Free” labeled Cheerios, including original 

Cheerios and Honey Nut Cheerios. 

3. General Mills’ “Gluten Free” representations and use of “Gluten Free” designation 

on the Mislabeled Cheerios were false. The Food and Drug Administration (“FDA”) received 

reports of adverse events suffered by individuals who consumed “Gluten Free” labeled Cheerios. 

Results from testing showed that a sample contained 43 parts per million of gluten, which 

exceeded federal criteria for a food product to be labeled “Gluten Free.” 

4. On October 5, 2015, General Mills issued a recall of affected boxes of original 

Cheerios produced over 4 days in July and affected boxes of Honey Nut Cheerios produced over 

13 days made at General Mill’s Lodi, California, facility (the “Mislabeled Cheerios”). 

Approximately 150,000 cases or 1.8 million boxes of Mislabeled Cheerios subject to the recall 

were shipped nationally. 

5. In announcing the recall, General Mills also acknowledged and admitted that it 

erroneously introduced wheat flour into its gluten-free oat flour system at the Lodi facility, and 

that the Mislabeled Cheerios were “wrongly labeled gluten free.” 

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CLASS ACTION ALLEGATION COMPLAINT 3 

6. Plaintiff seeks relief in this action individually and on behalf of a nationwide Class 

and an Oregon Sub-Class (all defined herein) for violation of the Oregon Unlawful Trade 

Practices Act, Or. Rev. Stat. § 646.605, et. seq., and common law. 

THE PARTIES 

7. Plaintiff Christopher Hamilton is a citizen and resident of Marion County in the 

State of Oregon. 

8. Defendant General Mills, Inc. is a Delaware corporation with its principal place of 

business in Minneapolis, Minnesota, and is registered to do business in the State of Oregon. 

9. Defendant General Mills Sales, Inc., is a Delaware corporation with its principal 

place of business in Minneapolis, Minnesota, and is registered to do business in the State of 

Oregon. 

10. At all relevant times herein, Defendants General Mills, Inc., and General Mills 

Sales, Inc., manufactured, advertised, marketed, sold and distributed Mislabeled Cheerios in the 

State of Oregon and throughout the United States. 

JURISDICTION AND VENUE 

11. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 (d) because 

there are more than 100 class members and the aggregate amount in controversy exceeds 

$5,000,000.00, exclusive of interest, fees, and costs, and at least one class member is a citizen of 

a state different from Defendants. 

12. This Court has personal jurisdiction over Defendants because Defendants conduct 

substantial business within the State of Oregon, such that Defendants have significant, continuous 

and pervasive contacts with the State of Oregon. 

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CLASS ACTION ALLEGATION COMPLAINT 4 

13. Venue is proper in this District pursuant to 28 U.S.C. § 1391 (b) and (c), because: 

Defendants do business throughout this district, and a substantial part of the events giving rise to 

Plaintiff’s claims took place within this district, including his purchase and consumption of 

Mislabeled Cheerios. 

FACTS COMMON TO ALL CLAIMS 

14. Gluten is a mixture of proteins found in wheat and related grains, including barley 

and rye. Gluten helps dough rise by giving it elasticity, and gives the final product a chewy 

texture. 

15. However, “[n]early twenty million people contend that they regularly experience 

distress after eating products that contain gluten, and a third of American adults say that they are 

trying to eliminate it from their diets.”1

16. For individuals who suffer from celiac disease, the briefest exposure to gluten can 

trigger an immune reaction that is strong enough to damage the lining of the small intestine. 

17. According to the Food and Drug Administration, an estimated 3 million people 

suffers from celiac disease in the United States. 

18. For individuals with wheat allergy, these individuals run the risk of serious or lifethreatening allergic reaction if they eat wheat. 

19. There is also evidence that gluten is capable of causing illness in individuals who 

do not suffer from celiac disease. In a study published in 2011, a team of researchers conducted 

 

1

 Michael Specter, Against the Grain, Should You Go Gluten-Free? New Yorker, November 3, 

2014 Issue http://www.newyorker.com/magazine/2014/11/03/grain (last visited February 29, 

2016). 

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 4 of 41
CLASS ACTION ALLEGATION COMPLAINT 5 

a randomized controlled trial of 34 people and the findings showed that gluten can cause 

gastrointestinal symptoms in individuals without celiac disease.2

 

20. According to Mintel, a market research company, sales of “Gluten Free” labeled 

products reached about $10.5 billion in 2013. The number is expected to rise to $15 billion 

annually by 2016. 

21. On August 5, 2014, the FDA issued a final rule requiring all food manufacturers to 

be in compliance with a new labeling standard in order for their food products to be labeled 

“Gluten Free.” 

22. Under the rule, “gluten-free” is defined as food that is either inherently gluten free 

and any unavoidable presence of gluten in the food must be less than 20 parts per million (ppm); 

or does not contain an ingredient that is: 1) a gluten-containing grain, 2) derived from a glutencontaining grain that has not been processed to remove gluten, or 3) derived from a gluten 

containing grain that has been processed to remove gluten if the use of that ingredient results in 

the presence of 20 ppm or more gluten in the food. See 21 CFR § 101.91. 

23. While the final rule is aimed at protecting individuals with celiac disease, the FDA 

stated the definition “also benefits the food industry by establishing a level playing field among 

manufacturers of products labeled “gluten-free.”3

 

2

 Biesiekierski JR, et al., Gluten causes gastrointestinal symptoms in subjects without celiac 

disease: a double-blind randomized placebo-controlled trial, Am J. Gastroenterol. 2011 Mar; 

106(3):508-14.

3

 U.S. Food and Drug Administration, Questions and Answers: Gluten-Free Food Labeling Final 

Rule, 

http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/Aller

gens/ucm362880.htm (last visited February 29, 2016).

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 5 of 41
CLASS ACTION ALLEGATION COMPLAINT 6 

General Mills’ “Gluten Free” Cheerios 

24. With $994 million in 2014 sales, General Mill’s Cheerios branded cereal is the bestselling cereal brand in the United States.4

25. Recognizing that “1% of the population is celiac, and as much as 30% of the 

population is avoiding gluten,” General Mills began to manufacture and market “gluten free” 

versions of Cheerios so that “large groups could enjoy Cheerios too.”5 

26. General Mills represented that it “created a process that allows [it] to remove the 

wheat, rye and barley from the oats [it] purchase, making Cheerios gluten-free.” 

27. The sorting and testing process was conducted at General Mills’ Fridley flour mill 

where machines in the “cleaning house” are used to “weed out little bits of wheat, barley and rye 

– gluten-containing grains that sneak into shipments of oats from the farm.”6

28. General Mills also represented that “packages that are gluten-free will be labeled 

with a seal.” 

 

4

 Gabriel Beltrone, General Mills will introduce gluten free cheerios on the Emmys with this very 

sweet ad, Adweek (September 18, 2015) http://www.adweek.com/adfreak/general-mills-willintroduce-gluten-free-cheerios-emmys-very-sweet-ad-167011 (last visited February 29, 2016). 

5

https://web.archive.org/web/20150713030637/http://www.cheerios.com/Articles/Gluten%20Fre

e%20Cheerios.aspx (accessed by searching for 

http://www.cheerios.com/Articles/Gluten%20Free%20Cheerios.aspx in the Internet Archive 

index). 

6

 Mike Hughlett, Cheerios gluten-free misstep prompts quick actions by General Mills, Star 

Tribute (October 11, 2015) http://www.startribune.com/cheerios-gluten-free-misstep-promptsquick-actions-by-general-mills/331887101/ (last visited February 29, 2016).

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 6 of 41
CLASS ACTION ALLEGATION COMPLAINT 7 

29. General Mills aggressively marketed its new “Gluten Free” Cheerios by “planning 

massive merchandising event for the brand,” and “creating materials about its gluten-free 

products at point of sale areas in stores.”7

30. General Mills prominently displayed “Gluten Free” designations on the front, side 

and back of every purportedly “gluten free” variety, including the Mislabeled Cheerios. Images 

of the product packaging for the Mislabeled Cheerios are reproduced below: 

 

7

 Phil Wahba, General Mills places big bets on gluten-free Cheerios, Fortune (September 22, 2015) 

http://fortune.com/2015/09/22/cheerios-gluten-free-general-mills-growth-plan/ (last visited 

February 29, 2016). 

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CLASS ACTION ALLEGATION COMPLAINT 8 

 

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CLASS ACTION ALLEGATION COMPLAINT 9 

31. In early July 2015, General Mills began shipping gluten-free versions of five 

varieties of Cheerios.8

 Full distribution was expected by mid-September.9

False and Misleading Product Claims about Mislabeled Cheerios 

32. Despite General Mill’s “gluten free” labeling and representations, the FDA 

received complaints of “adverse reactions associated with eating original Cheerios and HoneyNut Cheerios labeled as gluten-free.”10

33. It was reported that the FDA received 125 reports of adverse health effects from 

consumers who ate “gluten free” labeled Cheerios.11

34. In response to these adverse reaction reports, the FDA tested 36 samples of “gluten 

free” labeled Cheerios products taken from different General Mills’ manufacturing facilities and 

lots. One sample of Honey Nut Cheerios tested as containing 43 parts ppm of gluten. Under the 

final rule that went into effect August 5, 2014, foods may be labeled “gluten free” if there is less 

than 20 ppm of protein. The tested sample far exceeds the criteria that the “gluten free” labeled 

food contain less than 20 ppm of gluten. 

35. On October 5, 2015, General Mills issued a recall of affected production of original 

Cheerios and Honey Nut Cheerios produced within a certain period in July 2015. 

 

8

 Beltrone, supra note 3. 

9

https://web.archive.org/web/20150713030637/http://www.cheerios.com/Articles/Gluten%20Fre

e%20Cheerios.aspx (accessed by searching for 

http://www.cheerios.com/Articles/Gluten%20Free%20Cheerios.aspx in the Internet Archive 

index). 

10

http://www.fda.gov/Food/RecallsOutbreaksEmergencies/SafetyAlertsAdvisories/ucm465984.ht

m (last visited February 29, 2016). 

11 Mike Hughlett, FDA says it received 125 complaints about gluten-free Cheerios before recall, 

Star Tribune, (October 7, 2015) http://www.startribune.com/fda-says-125-people-complainedabout-problems-from-gluten-free-cheerios/330957131/ (last visited February 29, 2016).

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 9 of 41
CLASS ACTION ALLEGATION COMPLAINT 10 

36. In a message posted on General Mills’ twitter page, the company acknowledged 

that the affected production of original Cheerios and Honey Nut Cheerios were “wrongly labeled 

gluten free.”12 A screenshot of the message is reproduced below: 

37. The recall includes 4 days of production of original Cheerios and 13 days of 

production of Honey Nut Cheerios made at General Mill’s Lodi, California, facility (“Lodi 

facility”) with the following “BETTER IF USED BY” code dates and the corresponding plant 

code “LD” that indicates the food product was produced at Lodi facility. 

Cheerios (original) 14JUL2016LD 

15JUL2016LD 

16JUL2016LD 

17JUL2016LD 

Honey Nut Cheerios 12JUL2016LD 

13JUL2016LD 

 

12 https://twitter.com/cheerios/status/651118420071612416/photo/1?ref_src=twsrc%5Etfw (last 

visited February 29, 2016). 

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 10 of 41
CLASS ACTION ALLEGATION COMPLAINT 11 

14JUL2016LD 

15JUL2016LD 

16JUL2016LD 

17JUL2016LD 

18JUL2016LD 

20JUL2016LD 

21JUL2016LD 

22JUL2016LD 

23JUL2016LD 

24JUL2016LD 

25JUL2016LD 

38. The recall affected approximately 150,000 cases or 1.8 million boxes of cereal 

made in July at the Lodi facility. 

39. In a press release, General Mills admitted that wheat flour was “inadvertently 

introduced” to the gluten-free oat flour system at the Lodi facility.13 

40. General Mills acknowledged that its oat flour was “contaminated” when its bulk 

rail cars full of oat flour was offloaded into bulk trucks to transport the oat flour supply to its Lodi 

facility during the affected production dates.14 The company also acknowledged that it has not 

been able to verify if the independently operated trucks were “thoroughly cleaned” according to 

its flour-handling protocols.15

41. At that time of production, General Mills did not conduct daily testing of finished 

products for gluten.16 Therefore, it failed to detect the gluten-tainted oat supply that breached the 

Lodi facility. 

 

13 General Mills issues voluntary recall of Cheerios and Honey Nut Cheerios cereal produced at 

its Lodi, California location on certain dates, 

http://www.generalmills.com/en/News/NewsReleases/Library/2015/October/cheerios-10-

5/645b5aaf-c2ec-4661-b968-391f41953bfc (last visited February 29, 2016). 

14 Hughlett, supra note 5. 

15 Id. 16 Id.

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CLASS ACTION ALLEGATION COMPLAINT 12 

42. The admitted “error” resulted in wheat being present in products labeled as gluten 

free at levels above the FDA gluten-free standard. 

43. On October 13, 2015, the FDA issued a safety alert that warned consumers with 

celiac disease or wheat allergy to avoid eating the recalled original Cheerios or Honey Nut 

Cheerios, and also cautioned consumers with gluten sensitivity to be aware of the recall. 

Plaintiff’s Experience 

44. Plaintiff purchased one twin pack of original Cheerios and one twin pack of Honey 

Nut Cheerios, both labeled and marketed as “Gluten Free,” from a Costco store in Salem, Oregon 

in late September 2015. Plaintiff paid approximately $15.98, excluding sales tax. 

45. Plaintiff purchased the Mislabeled Cheerios in reliance on Defendants’ 

representations that the product was “Gluten Free,” including those found on the product’s 

packaging. Specifically, Plaintiff chose to purchase the product at issue because the Mislabeled 

Cheerios were represented as safe for consumption by persons, such as Plaintiff, who have celiac 

disease. 

46. Defendants’ representation was a false promise because the Mislabeled Cheerios 

were “wrongly labeled as gluten free” and contained gluten that exceeded the criteria specified 

by the FDA for food products labeled as “gluten-free.” 

47. Plaintiff’s purchase was subject to General Mill’s recall issued on October 5, 2015. 

Below is a photograph of the Cheerios packaging that indicates the purchased product was subject 

to the recall: 

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CLASS ACTION ALLEGATION COMPLAINT 13 

48. Had Plaintiff been aware of Defendants’ misrepresentations, he would not have 

purchased Mislabeled Cheerios. 

CLASS ACTION ALLEGATIONS 

49. Plaintiff seeks to represent a class defined as all persons in the United States who 

purchased Mislabeled Cheerios (the “Class”). 

50. Plaintiff also seeks to represent a sub-class of all Class Members who purchased 

Mislabeled Cheerios in Oregon (the “Oregon Sub-Class”). 

51. Excluded from the Class and Sub-Class are persons who made such purchase for 

the purpose of resale, Federal judges and members of their families within the first degree of 

consanguinity, Defendant, any entity in which Defendant has a controlling interest, and any of its 

subsidiaries, affiliates, and officers, directors of the entity Defendant, or employees, and any legal 

representative, heir, successor, or assignee of Defendant. 

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CLASS ACTION ALLEGATION COMPLAINT 14 

52. Members of the Class and Oregon Subclass will be jointly referred to as “Class 

Members.” 

53. The requirements of Federal Rule of Civil Procedure 23 are satisfied. 

54. Members of the Class and Subclasses are so numerous that their individual joinder 

herein is impracticable. On information and belief, members of the Class and Subclasses number 

in the tens of thousands. The precise number of Class Subclass members and their identities are 

unknown to Plaintiff at this time but may be determined through discovery. Class and Sub-Class 

Members may be notified of the pendency of this action by mail and/or publication through the 

distribution records of Defendants and third party retailers and vendors. 

55. Common questions of law and fact exist as to all Class Members and predominate 

over questions affecting only individual Class Members. Common legal and factual questions 

include, but are not limited to: 

(a) whether Defendants’ labeling, marketing and promotion of Mislabeled 

Cheerios is false and misleading; 

(b) Whether, by the misconduct set forth in this Complaint, Defendant engaged 

in unfair, fraudulent or unlawful business practices with respect to labeling, 

marketing, promotion and sales of Mislabeled Cheerios; 

(c) whether Defendants were unjustly enriched by their conduct; 

(d) whether Defendants’ conduct violated the state laws asserted herein; 

(e) whether Class Members suffered an ascertainable loss as a result of the 

Defendants’ misrepresentations; and 

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CLASS ACTION ALLEGATION COMPLAINT 15 

(f) whether, as a result of Defendants’ misconduct as alleged herein, Plaintiff 

and Class members are entitled to restitution, injunctive and/or monetary 

relief and, if so, the amount and nature of such relief 

56. The claims of the named Plaintiff is typical of the claims of the Class and Sub-Class 

in that the named Plaintiff was exposed to, and relied on Defendants’ false and misleading 

marketing of Mislabeled Cheerios and suffered a loss as a result of his Mislabeled Cheerios 

purchase. 

57. Plaintiff is an adequate representative of the Class and Sub-Class because his 

interest does not conflict with the interests of the Class Members he seeks to represent, he has 

retained competent counsel experienced in prosecuting class actions, and they intend to prosecute 

this action vigorously. The interests of Class Members will be fairly and adequately protected by 

Plaintiff and his counsel. 

58. The class mechanism is superior to other available means for the fair and efficient 

adjudication of the claims of Plaintiff and Class Members. Each individual Class member may 

lack the resources to undergo the burden and expense of individual prosecution of the litigation. 

Individualized litigation increases the delay and expense to all parties and multiplies the burden 

on the judicial system. Individualized litigation also presents the potential for inconsistent or 

contradictory judgments. In contrast, the class action device presents far fewer management 

difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive 

supervision by a single court. 

59. Questions of law and fact common to the Class and Sub-Class predominate over 

any questions affecting only individual Class Members. Injuries sustained by Plaintiff and Class 

Members flow, in each instance, from a common nucleus of operative facts i.e., Defendants’ 

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CLASS ACTION ALLEGATION COMPLAINT 16 

misconduct. In each case, Defendants manufactured, marketed, distributed or sold Mislabeled and 

deceived Plaintiff and Class Members as to the characteristics or benefits of the product. The 

resolution of these central issues will be the focus of the litigation and predominate over any 

individual issues. 

CAUSES OF ACTIONS 

Count I 

(Violation of the Oregon Unlawful Trade Practices Act, Or. Rev. Stat. § 646.605, et seq.)

60. Plaintiff and Class Members reallege and incorporate by reference each of the 

allegations set forth above and further allege as follows. 

61. This Count is brought on behalf of the Oregon Sub-Class under Oregon law. 

62. Defendants are liable to the Plaintiff for violating portions of the Oregon Unlawful 

Trade Practices Act (the “Act”). 

63. Each Defendant is a “person” within the meaning of the Act because each 

Defendant is a corporation as set forth above. 

64. Plaintiff purchased Mislabeled Cheerios for personal use. 

65. Defendants represented to Plaintiff and Class Members that the Mislabeled 

Cheerios with its “gluten free” label on the product packaging was free of gluten and safe for 

consumption for individuals sensitive to gluten, when, in fact, the Mislabeled Cheerios were not 

gluten free nor were they safe for consumption for individuals sensitive to gluten. 

66. Defendants violated the Act in at least the following respects: 

(a) O.R.S. § 646.608 (e): by representing that the Mislabeled Cheerios had 

characteristics which they did not have; and 

(b) O.R.S. § 646.608 (g): by representing that the Mislabeled Cheerios had a particular 

standard, quality or grade, which they were not. 

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CLASS ACTION ALLEGATION COMPLAINT 17 

Count II 

(Quantum Meruit) 

67. Plaintiff and Class Members reallege and incorporate by reference each of the 

allegations set forth above and further allege as follows. 

68. This Count is brought on behalf of the nationwide Class under Oregon law. 

69. Plaintiff and Class Members conferred a benefit on Defendants by purchasing 

Mislabeled Cheerios. Defendants were aware of this benefit, and at the same time were aware of 

the fact that the Mislabeled Cheerios did not deliver the promised benefits of a gluten free cereal 

that Plaintiff and Class Members expected. 

70. Defendants were unjustly enriched in retaining the revenues derived from Class 

Members’ purchases of Mislabeled Cheerios, which retention under these circumstances is unjust 

and inequitable because Defendants represented that the Mislabeled Cheerios were “gluten free” 

when they were not free of gluten, which caused injuries to Plaintiff and Class Members because 

they would not have purchased the Mislabeled Cheerios if the true facts concerning the product 

had been known. 

71. Because Defendants’ retention of the non-gratuitous benefit conferred on it by 

Plaintiff and Class Members was unjust and inequitable, Defendants must pay restitution to 

Plaintiff and Class Members for its unjust enrichment, as ordered by the Court. 

Count III 

(Unfair and Deceptive Acts and Practices Under the Various States Laws in Which Class 

Members Reside, If the Court Eventually Determines The Laws of A Consumers’ 

Residence Apply to Defendants’ Wrongful, Unfair and Deceptive Acts) 

72. Plaintiff and Class Members reallege and incorporate by reference each of the 

allegations set forth above and further allege as follows. 

73. As the choice of law question cannot be conclusively addressed at this point in the 

litigation, Plaintiff states the following alternative causes of action under the laws of the states of 

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CLASS ACTION ALLEGATION COMPLAINT 18 

residence of Class members, if it is later determined by the Court that the choice of law rules 

require the application of these state laws. 

74. The practices discussed above, including, but not limited to, Defendant’s 

Defendants’ misrepresentations, all constitute unfair competition or unfair, unconscionable, 

deceptive, fraudulent, or unlawful acts or business practices in violation of the state consumer 

protection statutes listed in ¶¶ 75-122 below. 

75. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Alaska Statutes § 45.50.471, et seq. In particular, Alaska law provides: 

(a) Unfair methods of competition and unfair or deceptive acts or practices in the 

conduct of trade or commerce are declared to be unlawful. (b) The terms “unfair 

methods of competition” and “unfair or deceptive acts or practices” include, but are 

not limited to, the following acts: . . . (4) representing that goods or services have 

sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that 

they do not have . . . ; . . . (6) representing that goods or services are of a particular 

standard, quality, or grade, or that goods are of a particular style or model, if they 

are of another; . . . (8) advertising goods or services with intent not to sell them as 

advertised; . . . (11) engaging in any other conduct creating a likelihood of 

confusion or of misunderstanding and which misleads, deceives or damages a buyer 

or a competitor in connection with the sale or advertisement of goods or services; 

(12) using or employing deception, fraud, false pretense, false promise, 

misrepresentation, or knowingly concealing, suppressing, or omitting a material 

fact with intent that others rely upon the concealment, suppression, or omission in 

connection with the sale or advertisement of goods or services whether or not a 

person has in fact been misled, deceived or damaged; . . . (15) knowingly making 

false or misleading statements concerning the need for parts, replacement, or repair 

service . . . 

Alaska Stat. § 45.50.471. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants violated Alaska Statutes Annotated § 45.50.471. 

76. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Arizona Revised Statutes § 44-1521, et seq. Particularly, Arizona law 

prohibits “[t]he act, use or employment by any person of any deception, deceptive act or practice, 

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CLASS ACTION ALLEGATION COMPLAINT 19 

fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission 

of any material fact with intent that others rely upon such concealment, suppression or omission, 

in connection with the sale or advertisement of any merchandise whether or not any person has in 

fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.” Ariz. Rev. 

Stat. Ann. § 44-1522(A). By engaging in the practices discussed above, including, but not limited 

to, Defendants’ misrepresentations, Defendants violated Arizona Revised Statute Annotated § 44-

1522(A). 

77. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Arkansas Code Annotated § 4-88-101, et seq. In particular, Arkansas law 

provides: 

Deceptive and unconscionable trade practices made unlawful and prohibited by this 

chapter include, but are not limited to, the following: (1) Knowingly making a false 

representation as to the characteristics, ingredients, uses, benefits, alterations, 

source, sponsorship, approval, or certification of goods or services or as to whether 

goods are original or new or of a particular standard, quality, grade, style, or model; 

. . . (3) Advertising the goods or services with the intent not to sell them as 

advertised; . . . (10) Engaging in any other unconscionable, false, or deceptive act 

or practice in business, commerce, or trade. . . . 

Ark. Code Ann. § 4-88-107. 

Arkansas law further provides, 

“[w]hen utilized in connection with the sale or advertisement of any goods, 

services, or charitable solicitation, the following shall be unlawful: (1) The act, use, 

or employment by any person of any deception, fraud, or false pretense; or (2) The 

concealment, suppression, or omission of any material fact with intent that others 

rely upon the concealment, suppression, or omission.” 

Ark. Code Ann. § 4-88-108. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants violated Arkansas Code Annotated §§ 4-88-107, 4-88-108. 

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CLASS ACTION ALLEGATION COMPLAINT 20 

78. Defendant has engaged in unfair competition, unfair or deceptive acts or practices 

and false advertising in violation of CAL.BUS. & PROF CODE §17200, et seq., § 17500, et seq. 

Specifically, Section 17200 provides that unfair competition shall mean and include any unlawful, 

unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading 

advertising.” Plaintiff and the Class seek injunctive relief, including restitution, under the UCL. 

Plaintiff and the Class also seek injunctive relief under California’s Consumers Legal Remedies 

Act and will seek monetary relief once that statute’s notice requirements have been satisfied. 

79. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices or have made false representations in violation of Colorado Revised Statutes § 6-1-101, 

et seq. In particular, Colorado law provides: 

A person engages in a deceptive trade practice when, in the course of such person’s 

business, vocation, or occupation, such person: . . . (e) Knowingly makes a false 

representation as to the characteristics, ingredients, uses, benefits, alterations, or 

quantities of goods, food, services, or property or a false representation as to the 

sponsorship, approval, status, affiliation, or connection of a person therewith; . . . 

(g) Represents that goods, food, services, or property are of a particular standard, 

quality, or grade, or that goods are of a particular style or model, if he knows or 

should know that they are of another; . . . (i) Advertises goods, services, or property 

with intent not to sell them as advertised; . . . (u) Fails to disclose material 

information concerning goods, services, or property which information was known 

at the time of an advertisement or sale if such failure to disclose such information 

was intended to induce the consumer to enter into a transaction . . . . 

Colo. Rev. Stat. § 6-1-105. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Colorado Revised Statutes § 6-1-105. 

80. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of the General Statutes of Connecticut § 42-110a, et seq. In particular, 

Connecticut law provides that “[n]o person shall engage in unfair methods of competition and 

unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat. 

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 20 of 41
CLASS ACTION ALLEGATION COMPLAINT 21 

§ 42-110b(a). By engaging in the practices discussed above, including, but not limited to, 

Defendants’ misrepresentations, Defendants have violated the General Statutes of Connecticut § 

42-110b. 

81. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Delaware Code Annotated Title 6, § 2511, et seq. In particular, Delaware 

law provides that “[t]he act, use or employment by any person of any deception, fraud, false 

pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any 

material fact with intent that others rely upon such concealment, suppression or omission, in 

connection with the sale, lease or advertisement of any merchandise, whether or not any person 

has in fact been misled, deceived or damaged thereby, is an unlawful practice.” Del. Code Ann. 

tit. 6, § 2513(a). By engaging in the practices discussed above, including, but not limited to, 

Defendants’ misrepresentations, Defendants have violated Delaware Code Annotated Title 6, § 

2513(a). 

82. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices or made false representations in violation of District of Columbia Code § 28-3901, et 

seq. Particularly, District of Columbia law provides: 

It shall be a violation of this chapter, whether or not any consumer is in fact misled, 

deceived or damaged thereby, for any person to: (a) represent that goods or services 

have a source, sponsorship, approval, certification, accessories, characteristics, 

ingredients, uses, benefits, or quantities that they do not have; . . . (d) represent that 

goods or services are of particular standard, quality, grade, style, or model, if in fact 

they are of another; (e) misrepresent as to a material fact which has a tendency to 

mislead; . . . (f) fail to state a material fact if such failure tends to mislead; . . . (h) 

advertise or offer goods or services without the intent to sell them or without the 

intent to sell them as advertised or offered . . . . 

D.C. Code § 28-3904. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated District of Columbia Code § 28-3904. 

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CLASS ACTION ALLEGATION COMPLAINT 22 

83. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Florida Statutes § 501.201, et seq. In particular, Florida law provides, 

“[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or 

practices in the conduct of any trade or commerce are hereby declared unlawful.” Fla. Stat. § 

501.204(1). By engaging in the practices discussed above, including, but not limited to, 

Defendants’ misrepresentations, Defendants have violated Florida Statutes § 501.204(1). 

84. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Georgia Code Annotated §10-1-390, et seq. In particular, Georgia law 

provides: 

(a) A person engages in a deceptive trade practice when, in the course of his 

business, vocation, or occupation, he: . . . (5) Represents that goods or services have 

sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that 

they do not have . . . ; . . . (7) Represents that goods or services are of a particular 

standard, quality, or grade or that goods are of a particular style or model, if they 

are of another; . . . (9) Advertises goods or services with intent not to sell them as 

advertised. 

Ga. Code Ann. § 10-1-372. 

Georgia law further provides: 

(a) Unfair or deceptive acts or practices in the conduct of consumer transactions 

and consumer acts or practices in trade or commerce are declared unlawful. (b) By 

way of illustration only and without limiting the scope of subsection (a) of this 

Code section, the following practices are declared unlawful: . . . (5) Representing 

that goods or services have sponsorship, approval, characteristics, ingredients, uses, 

benefits, or quantities that they do not have . . . . ; . . . (7) Representing that goods 

or services are of a particular standard, quality, or grade or that goods are of a 

particular style or model, if they are of another; . . . (9) Advertising goods or 

services with intent not to sell them as advertised . . . . 

Ga. Code Ann. § 10-1-393(a). 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Georgia Code Annotated §§ 10-1-372, 10-1-393(a). 

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CLASS ACTION ALLEGATION COMPLAINT 23 

85. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Hawaii Revised Statutes § 480-1, et seq. In particular, Hawaii law 

provides, “(a) Unfair methods of competition and unfair or deceptive acts or practices in the 

conduct of any trade or commerce are unlawful.” Haw. Rev. Stat. § 480-2. Hawaii law further 

provides: 

(a) A person engages in a deceptive trade practice when, in the course of the 

person’s business, vocation, or occupation, the person: . . . (5) Represents that goods 

or services have sponsorship, approval, characteristics, ingredients, uses, benefits, 

or quantities that they do not have . . . ; . . . (7) Represents that goods or services 

are of a particular standard, quality, or grade, or that goods are of a particular style 

or model, if they are of another; . . . (9) Advertises goods or services with intent not 

to sell them as advertised; . . . (12) Engages in any other conduct which similarly 

creates a likelihood of confusion or of misunderstanding. 

Haw. Rev. Stat. § 481A-3. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Hawaii Revised Statutes §§ 480-2, 481A-3. 

86. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Idaho Code Annotated § 48-601, et seq. In particular, Idaho law provides: 

The following unfair methods of competition and unfair or deceptive acts or 

practices in the conduct of any trade or commerce are hereby declared to be 

unlawful, where a person knows, or in the exercise of due care should know, that 

he has in the past, or is: . . . (5) Representing that goods or services have 

sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that 

they do not have . . . . ; . . . (7) Representing that goods or services are of a particular 

standard, quality, or grade, or that goods are of a particular style or model, if they 

are of another; . . . (9) Advertising goods or services with intent not to sell them as 

advertised; . . . (17) Engaging in any act or practice which is otherwise misleading, 

false, or deceptive to the consumer . . . . 

Idaho Code Ann. § 48-603. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Idaho Code Annotated § 48-603. 

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CLASS ACTION ALLEGATION COMPLAINT 24 

87. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of 815 Illinois Compiled Statutes 505/1, et seq. In particular, Illinois law 

provides: 

Unfair methods of competition and unfair or deceptive acts or practices, including 

but not limited to the use or employment of any deception, fraud, false pretense, 

false promise, misrepresentation or the concealment, suppression or omission of 

any material fact, with intent that others rely upon the concealment, suppression or 

omission of such material fact, or the use or employment of any practice described 

in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, approved August 5, 

1965, [footnote] in the conduct of any trade or commerce are hereby declared 

unlawful whether any person has in fact been misled, deceived or damaged thereby. 

. . . 

815 Ill. Comp. Stat. 505/2. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated 815 Illinois Compiled Statutes 505/2. 

88. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Indiana Code § 24-5-0.5-1, et seq. In particular, Indiana law provides: 

(a) The following acts or representations as to the subject matter of a consumer 

transaction, made orally, in writing, or by electronic communication, by a supplier, 

are deceptive acts: (1) That such subject of a consumer transaction has sponsorship, 

approval, performance, characteristics, accessories, uses, or benefits it does not 

have which the supplier knows or should reasonably know it does not have. (2) 

That such subject of a consumer transaction is of a particular standard, quality, 

grade, style, or model, if it is not and if the supplier knows or should reasonably 

know that it is not. . . . (11) That the consumer will be able to purchase the subject 

of the consumer transaction as advertised by the supplier, if the supplier does not 

intend to sell it. 

Ind. Code § 24-5-0.5-3. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Indiana Code § 24-5-0.5-3. 

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 24 of 41
CLASS ACTION ALLEGATION COMPLAINT 25 

89. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Kansas Statutes Annotated § 50-623, et seq. In particular, Kansas law 

provides: 

(a) No supplier shall engage in any deceptive act or practice in connection with a 

consumer transaction; (b) Deceptive acts and practices include, but are not limited 

to, the following, each of which is hereby declared to be a violation of this act, 

whether or not any consumer has in fact been misled: (1) Representations made 

knowingly or with reason to know that: (A) Property or services have sponsorship, 

approval, accessories, characteristics, ingredients, uses, benefits or quantities that 

they do not have; . . . (D) property or services are of particular standard, quality, 

grade, style or model, if they are of another which differs materially from the 

representation; . . . (F) property or services has uses, benefits or characteristics 

unless the supplier relied upon and possesses a reasonable basis for making such 

representation; or (G) use, benefit or characteristic of property or services has been 

proven or otherwise substantiated unless the supplier relied upon and possesses the 

type and amount of proof or substantiation represented to exist; (2) the willful use, 

in any oral or written representation, of exaggeration, falsehood, innuendo or 

ambiguity as to a material fact; (3) the willful failure to state a material fact, or the 

willful concealment, suppression or omission of a material fact . . . . 

Kan. Stat. Ann. § 50-626. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Kansas Statutes Annotated § 50-626. 

90. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Kentucky Revised Statutes Annotated § 367.110, et seq. In particular, 

Kentucky law provides, “(1) Unfair, false, misleading, or deceptive acts or practices in the conduct 

of any trade or commerce are hereby declared unlawful. (2) For the purposes of this section, unfair 

shall be construed to mean unconscionable.” Ky. Rev. Stat. Ann. § 367.170. By engaging in the 

practices discussed above, including, but not limited to, Defendants’ misrepresentations, 

Defendants have violated Kentucky Revised Statutes Annotated § 367.170. 

91. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Louisiana Revised Statutes Annotated § 51:1401, et seq. Particularly, 

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CLASS ACTION ALLEGATION COMPLAINT 26 

Louisiana law provides, “Unfair methods of competition and unfair or deceptive acts or practices 

in the conduct of any trade or commerce are hereby declared unlawful.” La. Rev. Stat. Ann. § 

51:1405A. By engaging in the practices discussed above, including, but not limited to, 

Defendants’ misrepresentations, Defendants have violated Louisiana Revised Statutes Annotated 

§ 51:1405A. 

92. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Maine Revised Statutes Annotated Title 5, § 205-A, et seq. In particular, 

Maine law provides, “Unfair methods of competition and unfair or deceptive acts or practices in 

the conduct of any trade or commerce are declared unlawful.” Me. Rev. Stat. Ann. tit. 5, § 207. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Maine Revised Statutes Annotated Title 5, § 207. 

93. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Maryland Code Annotated, Commercial Law § 13-101, et seq. In 

particular, Maryland law provides: 

Unfair or deceptive trade practices include any: (1) False, falsely disparaging, or 

misleading oral or written statement, visual description, or other representation of 

any kind which has the capacity, tendency, or effect of deceiving or misleading 

consumers; (2) Representation that: (i) Consumer goods, consumer realty, or 

consumer services have a sponsorship, approval, accessory, characteristic, 

ingredient, use, benefit, or quantity which they do not have; . . . or . . . (iv) Consumer 

goods, consumer realty, or consumer services are of a particular standard, quality, 

grade, style, or model which they are not; (3) Failure to state a material fact if the 

failure deceives or tends to deceive; . . . (5) Advertisement or offer of consumer 

goods, consumer realty, or consumer services: (i) Without intent to sell, lease, or 

rent them as advertised or offered; . . . (9) Deception, fraud, false pretense, false 

premise, misrepresentation, or knowing concealment, suppression, or omission of 

any material fact with the intent that a consumer rely on the same in connection 

with: (i) The promotion or sale of any consumer goods, consumer realty, or 

consumer service . . . . 

Md. Code Ann., Com. Law § 13-301. 

Case 6:16-cv-00382-MC Document 1 Filed 02/29/16 Page 26 of 41
CLASS ACTION ALLEGATION COMPLAINT 27 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Maryland Code Annotated, Commercial Law § 13-

301. 

94. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of the General Laws of Massachusetts Chapter 93A, § 1, et seq. In particular, 

Massachusetts law provides, “(a) Unfair methods of competition and unfair or deceptive acts or 

practices in the conduct of any trade or commerce are hereby declared unlawful.” Mass. Gen. 

Laws Ch. 93A, § 2. By engaging in the practices discussed above, including, but not limited to, 

including, but not limited to, Defendants’ misrepresentations, Defendants have violated the 

General Laws of Massachusetts Chapter 93A, § 2. 

95. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Michigan Compiled Laws § 445.901, et seq. In particular, Michigan law 

provides: 

(1) Unfair, unconscionable, or deceptive methods, acts, or practices in the conduct 

of trade or commerce are unlawful and are defined as follows: . . . (c) Representing 

that goods or services have sponsorship, approval, characteristics, ingredients, uses, 

benefits, or quantities that they do not have . . . . (e) Representing that goods or 

services are of a particular standard, quality, or grade, or that goods are of a 

particular style or model, if they are of another. . . . (g) Advertising or representing 

goods or services with intent not to dispose of those goods or services as advertised 

or represented. . . . . (s) Failing to reveal a material fact, the omission of which tends 

to mislead or deceive the consumer, and which fact could not reasonably be known 

by the consumer. . . . . (bb) Making a representation of fact or statement of fact 

material to the transaction such that a person reasonably believes the represented or 

suggested state of affairs to be other than it actually is. . . . (cc) Failing to reveal 

facts that are material to the transaction in light of representations of fact made in a 

positive manner. 

Mich. Comp. Laws § 445.903. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Michigan Compiled Laws § 445.903. 

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CLASS ACTION ALLEGATION COMPLAINT 28 

96. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Minnesota Statutes § 8.31, et seq. In particular, Minnesota law provides: 

A person engages in a deceptive trade practice when, in the course of business, 

vocation, or occupation, the person: . . . (5) represents that goods or services have 

sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that 

they do not have . . . ; . . . (7) represents that goods or services are of a particular 

standard, quality, or grade, or that goods are of a particular style or model, if they 

are of another; . . . (9) advertises goods or services with intent not to sell them as 

advertised; . . . or (13) engages in any other conduct which similarly creates a 

likelihood of confusion or of misunderstanding. 

Minn. Stat. § 325D.44, sub. 1. 

Minnesota law further provides: 

Any person, firm, corporation, or association who, with intent to sell or in anywise 

dispose of merchandise, securities, service, or anything offered by such person, 

firm, corporation, or association, directly or indirectly, to the public, for sale or 

distribution, or with intent to increase the consumption thereof, or to induce the 

public in any manner to enter into any obligation relating thereto, or to acquire title 

thereto, or any interest therein, makes, publishes, disseminates, circulates, or places 

before the public, or causes, directly or indirectly, to be made, published, 

disseminated, circulated, or placed before the public, in this state, in a newspaper 

or other publication, or in the form of a book, notice, handbill, poster, bill, label, 

price tag, circular, pamphlet, program, or letter, or over any radio or television 

station, or in any other way, an advertisement of any sort regarding merchandise, 

securities, service, or anything so offered to the public, for use, consumption, 

purchase, or sale, which advertisement contains any material assertion, 

representation, or statement of fact which is untrue, deceptive, or misleading, shall, 

whether or not pecuniary or other specific damage to any person occurs as a direct 

result thereof, be guilty of a misdemeanor, and any such act is declared to be a 

public nuisance and may be enjoined as such. 

Minn. Stat. § 325F.67. 

Minnesota law provides as well that 

“[t]he act, use, or employment by any person of any fraud, false pretense, false 

promise, misrepresentation, misleading statement or deceptive practice, with the 

intent that others rely thereon in connection with the sale of any merchandise, 

whether or not any person has in fact been misled, deceived, or damaged thereby, 

is enjoinable . . . .” 

Minn. Stat. § 325F.69, sub. 1. 

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CLASS ACTION ALLEGATION COMPLAINT 29 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Minnesota Statutes §§ 325D.44, sub. 1, 325F.67, 

325F.69, sub. 1. 

97. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Missouri Revised Statutes § 407.010, et seq. In particular Missouri law 

provides, “The act, use or employment by any person of any deception, fraud, false pretense, false 

promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any 

material fact in connection with the sale or advertisement of any merchandise in trade or commerce 

. . . , in or from the state of Missouri, is declared to be an unlawful practice. . . .” Mo. Rev. Stat. § 

407.020.1. By engaging in the practices discussed above, including, but not limited to, 

Defendants’ misrepresentations, Defendants have violated Missouri Revised Statutes § 407.020.1. 

98. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Montana Code Annotated § 30-14-101, et seq. In particular, Montana law 

provides, “Unfair methods of competition and unfair or deceptive acts or practices in the conduct 

of any trade or commerce are unlawful.” Mont. Code Ann. § 30-14-103. By engaging in the 

practices discussed above, including, but not limited to, Defendants’ misrepresentations, 

Defendants have violated Montana Code Annotated § 30-14-103. 

99. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Nebraska Revised Statutes § 59-1601, et seq. In particular, Nebraska law 

provides, “Unfair methods of competition and unfair or deceptive acts or practices in the conduct 

of any trade or commerce shall be unlawful.” Neb. Rev. Stat. § 59-1602. Nebraska law further 

provides: 

(a) A person engages in a deceptive trade practice when, in the course of his or her 

business, vocation, or occupation, he or she: . . . (5) Represents that goods or 

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CLASS ACTION ALLEGATION COMPLAINT 30 

services have sponsorship, approval, characteristics, ingredients, uses, benefits, or 

quantities that they do not have . . . ; . . . (9) Advertises goods or services with intent 

not to sell them as advertised; . . . (c) This section does not affect unfair trade 

practices otherwise actionable at common law or under other statutes of this state. 

Neb. Rev. Stat. § 87-302. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Nebraska Revised Statutes §§ 59-1602, 87-302. 

100. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Nevada Revised Statutes § 598.0903, et seq. Nevada law provides in 

particular: 

A person engages in a “deceptive trade practice” if, in the course of his business or 

occupation, he: . . . 5. Knowingly makes a false representation as to the 

characteristics, ingredients, uses, benefits, alterations or quantities of goods or 

services for sale or lease or a false representation as to the sponsorship, approval, 

status, affiliation or connection of a person therewith. . . . 7. Represents that goods 

or services for sale or lease are of a particular standard, quality or grade, or that 

such goods are of a particular style or model, if he knows or should know that they 

are of another standard, quality, grade, style or model. . . . 9. Advertises goods or 

services with intent not to sell or lease them as advertised. . . . 15. Knowingly makes 

any other false representation in a transaction. . . . 

Nev. Rev. Stat. § 598.0915. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Nevada Revised Statutes § 598.0915. 

101. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of New Hampshire Revised Statutes Annotated § 358-A:1, et seq. 

Particularly, New Hampshire law provides: 

It shall be unlawful for any person to use any unfair method of competition or any 

unfair or deceptive act or practice in the conduct of any trade or commerce within 

this state. Such unfair method of competition or unfair or deceptive act or practice 

shall include, but is not limited to, the following: . . . V. Representing that goods or 

services have sponsorship, approval, characteristics, ingredients, uses, benefits, or 

quantities that they do not have . . . ; . . . VII. Representing that goods or services 

are of a particular standard, quality, or grade, or that goods are of a particular style 

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CLASS ACTION ALLEGATION COMPLAINT 31 

or model, if they are of another; . . . IX. Advertising goods or services with intent 

not to sell them as advertised . . . . 

N.H. Rev. Stat. Ann. § 358-A:2. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated New Hampshire Revised Statutes Annotated § 358-

A:2. 

102. Defendants have engaged in unfair competition or unfair, unconscionable, or 

deceptive acts or practices in violation of New Jersey Statutes Annotated § 56:8-1, et seq. 

Particularly, New Jersey law provides: 

The act, use or employment by any person of any unconscionable commercial 

practice, deception, fraud, false pretense, false promise, misrepresentation, or the 

knowing, concealment, suppression, or omission of any material fact with intent 

that others rely upon such concealment, suppression or omission, in connection 

with the sale or advertisement of any merchandise or real estate, or with the 

subsequent performance of such person as aforesaid, whether or not any person has 

in fact been misled, deceived or damaged thereby, is declared to be an unlawful 

practice . . . . 

N.J.S.A. § 56:8-2. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated New Jersey Statutes Annotated § 56:8-2. 

103. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of New Mexico Statutes § 57-12-1, et seq. In particular, New Mexico law 

provides: 

D. “unfair or deceptive trade practice” means an act specifically declared unlawful 

pursuant to the Unfair Practices Act, a false or misleading oral or written statement, 

visual description or other representation of any kind knowingly made in 

connection with the sale, lease, rental or loan of goods or services or in the 

extension of credit or in the collection of debts by a person in the regular course of 

his trade or commerce, which may, tends to or does deceive or mislead any person 

and includes: . . . (5) representing that goods or services have sponsorship, approval, 

characteristics, ingredients, uses, benefits or quantities that they do not have . . . ; . 

. . (7) representing that goods or services are of a particular standard, quality or 

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CLASS ACTION ALLEGATION COMPLAINT 32 

grade or that goods are of a particular style or model if they are of another; . . . (14) 

using exaggeration, innuendo or ambiguity as to a material fact or failing to state a 

material fact if doing so deceives or tends to deceive; . . . E. “unconscionable trade 

practice” means an act or practice in connection with the sale, lease, rental or loan, 

or in connection with the offering for sale, lease, rental or loan, of any goods or 

services . . . : (1) takes advantage of the lack of knowledge, ability, experience or 

capacity of a person to a grossly unfair degree; or (2) results in a gross disparity 

between the value received by a person and the price paid. 

N.M. Stat. § 57-12-2. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated New Mexico Statutes § 57-12-2. 

104. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of New York General Business Law § 349, et seq. In particular, New York 

law provides, “Deceptive acts or practices in the conduct of any business, trade or commerce or in 

the furnishing of any service in this state are hereby declared unlawful.” N.Y. Gen. Bus. Law § 

349. By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated New York General Business Law § 349. 

105. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of North Carolina General Statutes § 75-1.1, et seq. In particular, North 

Carolina law provides, “Unfair methods of competition in or affecting commerce, and unfair or 

deceptive acts or practices in or affecting commerce, are declared unlawful.” N.C. Gen. Stat. § 

75-1.1(a). By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated North Carolina General Statutes § 75-1.1(a). 

106. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of North Dakota Century Code § 51-15-01, et seq. In particular, North 

Dakota law provides: 

The act, use, or employment by any person of any deceptive act or practice, fraud, 

false pretense, false promise, or misrepresentation, with the intent that others rely 

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CLASS ACTION ALLEGATION COMPLAINT 33 

thereon in connection with the sale or advertisement of any merchandise, whether 

or not any person has in fact been misled, deceived, or damaged thereby, is declared 

to be an unlawful practice. 

N.D. Cent. Code § 51-15-02. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated North Dakota Century Code § 51-15-02. 

107. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Ohio Revised Code Annotated § 1345.01, et seq. In particular, Ohio law 

provides, “No supplier shall commit an unfair or deceptive act or practice in connection with a 

consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section 

whether it occurs before, during, or after the transaction.” Ohio Rev. Code Ann. § 1345.02(a). By 

engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Ohio Revised Code Annotated § 1345.02(a). 

108. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices or made false representations in violation of Oklahoma Statutes Title 15, § 751, et seq. 

In particular, Oklahoma law provides: 

As used in the Oklahoma Consumer Protection Act: . . . 13. “Deceptive trade 

practice” means a misrepresentation, omission or other practice that has deceived 

or could reasonably be expected to deceive or mislead a person to the detriment of 

that person. Such a practice may occur before, during or after a consumer 

transaction is entered into and may be written or oral; 14. “Unfair trade practice” 

means any practice which offends established public policy or if the practice is 

immoral, unethical, oppressive, unscrupulous or substantially injurious to 

consumers. . . . 

Okla. Stat. Tit. 15, § 752. 

Oklahoma law further provides: 

A person engages in a practice which is declared to be unlawful under the 

Oklahoma Consumer Protection Act, Section 751 et seq. of this title, when, in the 

course of the person’s business, the person: . . . 5. Makes a false representation, 

knowingly or with reason to know, as to the characteristics, ingredients, uses, 

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CLASS ACTION ALLEGATION COMPLAINT 34 

benefits, alterations, or quantities of the subject of a consumer transaction . . . ; . . . 

7. Represents, knowingly or with reason to know, that the subject of a consumer 

transaction is of a particular standard, style or model, if it is of another; 8. 

Advertises, knowingly or with reason to know, the subject of a consumer 

transaction with intent not to sell it as advertised; . . . 20. Commits an unfair or 

deceptive trade practice as defined in Section 752 of this title . . . . 

Okla. Stat. Tit. 15, § 753. 

It continues to provide: 

A. A person engages in a deceptive trade practice when in the course of business, 

vocation, or occupation, the person: . . . 5. Knowingly makes a false representation 

as to the characteristics, ingredients, uses, benefits or quantities of goods or services 

or a false representation as to the sponsorship, approval, status, affiliation, or 

connection of a person therewith; . . . 7. Represents that goods or services are a 

particular standard, quality, or grade, or that goods are a particular style or model, 

if they are another; . . . C. The deceptive trade practices listed in this section are in 

addition to and do not limit the types of unfair trade practices actionable at common 

law or under other statutes of this state. 

Okla. Stat. Tit. 78, § 53. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Oklahoma Statutes Titles 15, §§ 752 and 753, 78, § 

53. 

109. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of 73 Pennsylvania Statutes Annotated Title 73, § 201-1, et seq. In particular, 

Pennsylvania law provides: 

(4) “Unfair methods of competition” and “unfair or deceptive acts or practices” 

mean any one or more of the following: . . . (v) Representing that goods or services 

have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities 

that they do not have . . . ; . . . (vii) Representing that goods or services are of a 

particular standard, quality or grade, or that goods are of a particular style or model, 

if they are of another; . . . (ix) Advertising goods or services with intent not to sell 

them as advertised; . . . (xxi) Engaging in any other fraudulent or deceptive conduct 

which creates a likelihood of confusion or of misunderstanding. 

Pa. Stat. Ann. Tit. 73, § 201-2. 

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CLASS ACTION ALLEGATION COMPLAINT 35 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Pennsylvania Statutes Annotated Title 73, § 201-2. 

110. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Rhode Island General Laws § 6-13.1-1, et seq. In particular, Rhode Island 

law provides: 

As used in this chapter: . . . (6) “Unfair methods of competition and unfair or 

deceptive acts or practices” means any one or more of the following: (v) 

Representing that goods or services have sponsorship, approval, characteristics, 

ingredients, uses, benefits, or quantities that they do not have . . . ; . . . (vii) 

Representing that goods or services are of a particular standard, quality, or grade, 

or that goods are of a particular style or model, if they are of another; . . . (ix) 

Advertising goods or services with intent not to sell them as advertised; . . . (xii) 

Engaging in any other conduct that similarly creates a likelihood of confusion or of 

misunderstanding; (xiii) Engaging in any act or practice that is unfair or deceptive 

to the consumer; (xiv) Using any other methods, acts or practices which mislead or 

deceive members of the public in a material respect; . . . (xvii) Advertising claims 

concerning safety, performance, and comparative price unless the advertiser, upon 

request by any person, the consumer council, or the attorney general, makes 

available documentation substantiating the validity of the claim . . . . 

R.I. Gen. Laws § 6-13.1-1. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Rhode Island General Laws § 6-13.1-1. 

111. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of South Carolina Code Annotated § 39-5-10, et seq. In particular, South 

Carolina law provides, “Unfair methods of competition and unfair or deceptive acts or practices in 

the conduct of any trade or commerce are hereby declared unlawful. . . .” S.C. Code Ann. § 39-5-

20. By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated South Carolina Code Annotated § 39-5-20. 

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CLASS ACTION ALLEGATION COMPLAINT 36 

112. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of South Dakota Codified Laws § 37-24-1, et seq. In particular, South Dakota 

law provides: 

It is a deceptive act or practice for any person to: (1) Knowingly and intentionally 

act, use, or employ any deceptive act or practice, fraud, false pretense, false 

promises, or misrepresentation or to conceal, suppress, or omit any material fact in 

connection with the sale or advertisement of any merchandise, regardless of 

whether any person has in fact been misled, deceived, or damaged thereby. 

S.D. Codified Laws § 37-24-6(1). 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated South Dakota Codified Laws § 37-24-6(1). 

113. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Tennessee Code Annotated § 47-18-101, et seq. In particular, Tennessee 

law provides: 

(b) Without limiting the scope of subsection (a), the following unfair or deceptive 

acts or practices affecting the conduct of any trade or commerce are declared to be 

unlawful and in violation of this part . . . (5) Representing that goods or services 

have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities 

that they do not have . . . ; . . . (7) Representing that goods or services are of a 

particular standard, quality or grade, or that goods are of a particular style or model, 

if they are of another; . . . (9) Advertising goods or services with intent not to sell 

them as advertised; . . . (21) Using statements or illustrations in any advertisement 

which create a false impression of the grade, quality, quantity, make, value, age, 

size, color, usability or origin of the goods or services offered, or which may 

otherwise misrepresent the goods or services in such a manner that later, on 

disclosure of the true facts, there is a likelihood that the buyer may be switched 

from the advertised goods or services to other goods or services; . . . (27) Engaging 

in any other act or practice which is deceptive to the consumer or to any other 

person . . . . 

Tenn. Code Ann. § 47-18-104. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Tennessee Code Annotated § 47-18-104. 

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CLASS ACTION ALLEGATION COMPLAINT 37 

114. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of TEX. BUS. & COM. CODE ANN. § 17.41, et seq. Specifically 

Defendants violated the following sections of the Texas Deceptive Trade Practices Act (“DTPA”): 

Tex. Bus. & Com. Code §17.50(1): the use or employment of a false, misleading, 

or deceptive acts or practices as defined in §17.46(b)(5), §17.46(b)(7), 

§17.46(b)(20), and §17.46(b)(24) of the DTPA that were detrimentally relied upon 

by Plaintiff and each member of the Texas Class; and 

Tex. Bus. & Com. Code §17.50(3): an unconscionable action or course of action as 

defined by §17.45(5). 

TEX. BUS. & COM. CODE ANN. § 17.41. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Texas Business & Communication Code Annotated 

§ 17.41. 

115. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Utah Code Annotated § 13-11-1, et seq. In particular, Utah law provides: 

(1) A deceptive act or practice by a supplier in connection with a consumer 

transaction violates this chapter whether it occurs before, during, or after the 

transaction. (2) Without limiting the scope of Subsection (1), a supplier commits a 

deceptive act or practice if the supplier knowingly or intentionally: (a) indicates 

that the subject of a consumer transaction has sponsorship, approval, performance 

characteristics, accessories, uses, or benefits, if it has not; (b) indicates that the 

subject of a consumer transaction is of a particular standard, quality, grade, style, 

or model, if it is not; . . .(e) indicates that the subject of a consumer transaction has 

been supplied in accordance with a previous representation, if it has not; . . . (j) . . . 

(ii) fails to honor a warranty or a particular warranty term . . . . 

Utah Code Ann. § 13-11-4. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Utah Code Annotated § 13-11-4. 

116. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Vermont Statutes Annotated Title 9, § 2451, et seq. In particular, Vermont 

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CLASS ACTION ALLEGATION COMPLAINT 38 

law provides, “(a) Unfair methods of competition in commerce, and unfair or deceptive acts or 

practices in commerce, are hereby declared unlawful.” Vt. Stat. Ann. tit. 9, § 2453. By engaging 

in the practices discussed above, including, but not limited to, Defendants’ misrepresentations, 

Defendants have violated Vermont Statutes Annotated Title 9, § 2453. 

117. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Virginia Code Annotated § 59.1-196, et seq. In particular, Virginia law 

provides: 

A. The following fraudulent acts or practices committed by a supplier in connection 

with a consumer transaction are hereby declared unlawful: . . . 5. Misrepresenting 

that goods or services have certain quantities, characteristics, ingredients, uses, or 

benefits; 6. Misrepresenting that goods or services are of a particular standard, 

quality, grade, style, or model; 7. Advertising or offering for sale goods that are 

used, secondhand, repossessed, defective, blemished, deteriorated, or 

reconditioned, or that are “seconds,” irregulars, imperfects, or “not first class,” 

without clearly and unequivocally indicating in the advertisement or offer for sale 

that the goods are used, secondhand, repossessed, defective, blemished, 

deteriorated, reconditioned, or are “seconds,” irregulars, imperfects or “not first 

class”; 8. Advertising goods or services with intent not to sell them as advertised, 

or with intent not to sell at the price or upon the terms advertised. . . . 14. Using any 

other deception, fraud, false pretense, false promise, or misrepresentation in 

connection with a consumer transaction . . . . 

Va. Code Ann. § 59.1-200. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Virginia Code Annotated § 59.1-200. 

118. Defendants have engaged in unfair competition or unfair, deceptive or fraudulent 

acts or practices in violation of Washington Revised Code. § 19.86.010, et seq. Particularly, 

Washington law provides, “Unfair methods of competition and unfair or deceptive acts or practices 

in the conduct of any trade or commerce are hereby declared unlawful.” Wash. Rev. Code § 

19.86.020. By engaging in the practices discussed above, including, but not limited to, 

Defendants’ misrepresentations, Defendants have violated Washington Revised Code § 19.86.020. 

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CLASS ACTION ALLEGATION COMPLAINT 39 

119. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of West Virginia Code § 46A-6-101, et seq. In particular, West Virginia law 

provides: 

(7) “Unfair methods of competition and unfair or deceptive acts or practices” means 

and includes, but is not limited to, any one or more of the following: . . . (E) 

Representing that goods or services have sponsorship, approval, characteristics, 

ingredients, uses, benefits or quantities that they do not have . . . ; . . . (G) 

Representing that goods or services are of a particular standard, quality or grade, or 

that goods are of a particular style or model if they are of another; . . . (I) Advertising 

goods or services with intent not to sell them as advertised; . . . (L) Engaging in any 

other conduct which similarly creates a likelihood of confusion or of 

misunderstanding; . . . (M) The act, use or employment by any person of any 

deception, fraud, false pretense, false promise or misrepresentation, or the 

concealment, suppression or omission of any material fact with intent that others 

rely upon such concealment, suppression or omission, in connection with the sale 

or advertisement of any goods or services, whether or not any person has in fact 

been misled, deceived or damaged thereby . . . . 

W. Va. Code § 46A-6-102. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated West Virginia Code § 46A-6-102. 

120. Defendants have engaged in unfair competition or unfair, deceptive, or fraudulent 

acts or practices in violation of Wisconsin Statutes § 100.20, et seq. Particularly, Wisconsin law 

provides, “Methods of competition in business and trade practices in business shall be fair. Unfair 

methods of competition in business and unfair trade practices in business are hereby prohibited.” 

Wis. Stat. § 100.20(1). By engaging in the practices discussed above, including, but not limited 

to, Defendants’ misrepresentations, Defendants have violated Wisconsin Statutes § 100.20(1). 

121. Defendants have engaged in unfair competition or unfair, deceptive, or fraudulent 

acts or practices in violation of Wyoming Statutes Annotated § 40-12-101, et seq. In particular, 

Wyoming law provides: 

(a) A person engages in a deceptive trade practice unlawful under this act when, in 

the course of his business and in connection with a consumer transaction, he 

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CLASS ACTION ALLEGATION COMPLAINT 40 

knowingly: (i) Represents that merchandise has a source, origin, sponsorship, 

approval, accessories or uses it does not have; . . . (iii) Represents that merchandise 

is of a particular standard, grade, style or model, if it is not; . . . (x) Advertises 

merchandise with intent not to sell it as advertised; . . . or . . . (xv) Engages in unfair 

or deceptive acts or practices. 

Wyo. Stat. Ann. § 40-12-105. 

By engaging in the practices discussed above, including, but not limited to, Defendants’ 

misrepresentations, Defendants have violated Wyoming Statutes Annotated § 40-12-105. 

122. Plaintiff and Class Members have been injured by reason of Defendants’ unfair and 

deceptive acts and practices in regard to its sale of the Mislabeled Cheerios that are not free from 

gluten, a labeling without which consumers would not have bought Mislabeled Cheerios or would 

have been unwilling to pay the price they, in fact, purchased them for. These injuries are of the 

type that the above state consumer protection statutes were designed to prevent and are the direct 

result of Defendants’ unlawful conduct. 

PRAYER FOR RELIEF 

Plaintiff, individually and on behalf of all others similarly situated, seeks judgment against 

Defendants, as follows: 

A. For an order certifying the nationwide Class and Oregon Sub-Class under Rule 23 

of the Federal Rules of Civil Procedure and naming Plaintiff as representative of the Class and 

Sub-Class and Plaintiff’s attorneys as Class Counsel to represent the Class and Subclass members; 

B. For an order declaring the Defendants’ conduct violates the statute(s) referenced 

herein; 

C. For an order finding in favor of Plaintiff, the nationwide Class, and the Sub-Class 

on all counts asserted herein; 

D. For compensatory and punitive damages in amounts to be determined by the Court 

or jury; 

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CLASS ACTION ALLEGATION COMPLAINT 41 

E. For prejudgment interest on all amounts awarded 

F. For an order of restitution and all other forms of equitable monetary relief; 

G. For injunctive relief as the Court may deem proper; and 

H. For an order awarding Plaintiff, the Class and Sub-Class their reasonable attorneys’ 

fees and expenses and costs of suit. 

DEMAND FOR JURY TRIAL 

Plaintiff demands a trial by jury on all causes of action and issues so triable. 

Dated: February 29, 2016 

By: /s/ Bonner C. Walsh 

Bonner C. Walsh, Oregon Bar No. 131716 

WALSH LLC 

PO Box 7 

Bly, Oregon 97622 

Telephone: (541) 359-2827 

Facsimile: (866) 503-8206 

Email: bonner@walshpllc.com 

Adam R. Gonnelli 

 FARUQI & FARUQI, LLP 

685 Third Avenue, 26th Floor 

New York, New York 10017 

Telephone: (212) 983-9330 

 Facsimile: (212) 983-9331 

 Email: agonnelli@faruqilaw.com 

 Pending pro hac vice

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