Hensley-Maclean et al v. Safeway, Inc.

Filing 73

STIPULATION AND ORDER FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND REVISE THE SCHEDULING ORDER. Signed by Judge Richard Seeborg on 4/8/13. (cl, COURT STAFF) (Filed on 4/8/2013)

ORDER

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EXHIBIT A

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DANIEL T. LEBEL, SBN 246169
CONSUMER LAW PRACTICE OF DANIEL T. LEBEL
601 Van Ness Avenue,
Opera Plaza, Suite 2080
San Francisco, CA 94102
[e-mail]
Tel: [phone]
Fax: [phone]

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STEPHEN GARDNER
CENTER FOR SCIENCE IN THE PUBLIC INTEREST
5646 Milton Street, Suite 211
Dallas, Texas 75206
Lead counsel for Plaintiffs
Attorneys for Plaintiffs and the proposed class
(additional counsel listed on signature page)

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UNITED STATES DISTRICT COURT FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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DEE HENSLEY-MACLEAN and
SARA DUNCAN, on behalf of themselves
and those similarly situated,

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Plaintiffs,
v.

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SAFEWAY, INC.,
Defendant`.

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Case No.: 4:11-CV-01230-RS
CLASS ACTION COMPLAINT
1. CONSUMERS LEGAL REMEDIES ACT;
2. UNFAIR & DECEPTIVE BUSINESS
PRACTICES (CAL. BUS. & PROF. CODE
§§ 17200 ET SEQ.);
3. BREACH OF DUTY TO WARN;
4. BREACH OF IMPLIED WARRANTY; AND
5. MONEY HAD AND RECEIVED
DEMAND FOR JURY TRIAL

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AMENDED CLASS ACTION COMPLAINT

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INTRODUCTORY STATEMENT

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1.

Plaintiffs Dee Hensley-Maclean and Sara Duncan (“Plaintiffs”), individually and on

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behalf of those similarly situated, bring this lawsuit because Defendant Safeway, Inc. (“Safeway”)

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fails to provide adequate notice of recalls of dangerous food items to its Club Card customers

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(“Customers”) who have purchased Recalled Products. 1

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2.

The Food and Drug Administration (“FDA”) and the United States Department of

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Agriculture (“USDA”) use three classes of recall: Class 1, Class 2, and Class 3. A Class 1 recall of

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a product occurs when there is a reasonable probability that use of the product will cause serious,

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adverse health consequences or death. 2 In this action, “Recalled Products” are those subject to a

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Class 1 recall.

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3.

Plaintiffs and those similarly situated suffered damage in that they paid for foods

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that could cause serious, adverse health consequences or death when consumed. Safeway failed

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and continues to fail to adequately inform its Customers that they are at risk of serious, adverse

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health consequences or death if they consume Recalled Products.

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The USDA represents the classes by the Roman numerals I, II, and III. This Complaint refers to
both FDA Class 1 recalls and USDA Class I recalls as “Class 1 Recalls” and to products subject to
Class 1 Recalls as “Recalled Products” or “Products.”

The FDA and the USDA have separate definitions of recall class, but both agencies follow the
same general rule of Class 1/I being the most dangerous, Class 2/II being potentially dangerous,
and Class 3/III being the least dangerous. The FDA’s guidelines define Class 1 recalls as
“Dangerous or defective products that predictably could cause serious health problems or death.”
FDA CONSUMER HEALTH INFO., U.S. FOOD AND DRUG ADMIN., FDA 101: PRODUCT
RECALLS 2 (Oct. 2009).
www.fda.gov/downloads/ForConsumers/ConsumerUpdates/UCM143332.pdf (last visited Jan. 28,
2011).
The USDA’s guidelines define Class I recalls as “[involving] a health hazard situation in which
there is a reasonable probability that eating the food will cause health problems or death.” Food
Safety and Inspection Serv., U.S. Dep’t of Agric., FSIS Food Recalls.
www.fsis.usda.gov/factsheets/FSIS_Food_Recalls/index.asp (last visited Jan. 28, 2011).
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www.fsis.usda.gov/OPPDE/rdad/FSISDirectives/8080.1Rev5.pdf (last visited Jan. 28, 2011).
This is USDA’s wording. FDA describes a Class 1 recall similarly:
“Dangerous or defective products that predictably could cause serious health problems or death.”
www.fda.gov/downloads/ForConsumers/ConsumerUpdates/UCM143332.pdf (last visited Jan. 28,
2011).
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AMENDED CLASS ACTION COMPLAINT

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4.

Plaintiffs seek damages limited to the amount that they and those similarly situated

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paid for Recalled Products. Plaintiffs also seek declaratory and injunctive relief related to

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Safeway’s failure to inform Customers of their purchase of Recalled Products and their right to a

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refund. This is not an action for personal injury or bodily harm.

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5.

When Safeway learns that Recalled Products have been sold in its stores, it has a

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duty to disclose to Customers that they face serious health risks or even death if they eat the

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Recalled Products. Safeway chooses not to notify its Customers who purchased Recalled Products,

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thereby putting them at risk of substantial injury or death.

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6.

The form of notice and refund sought in this action will cost Safeway nothing,

because Safeway’s suppliers agree to reimburse all costs associated with notice and refunds.
7.

Plaintiffs seek to recover economic damages for themselves and for the members of

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the class, in the form of refunds of all purchases of Recalled Products for which Safeway has Club

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Card or other records showing the purchaser and the identity of the Recalled Product. Plaintiffs

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would never have knowingly bought a Recalled Product, because it has no economic value to

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them. In fact, a Recalled Product is worth less than zero because it is not safe for human

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consumption.

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In addition, Plaintiffs seek equitable relief to protect their own health and welfare,

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as well as the health and welfare of those similarly situated, by compelling Safeway to provide

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notice of Recalled Products to Customers. Plaintiffs ask the Court (1) to declare that Safeway’s

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practice of selling dangerous Products, and then failing to notify Club Card members of Recalled

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Products and issue them a refund, is an unfair and deceptive act and practice pursuant to the

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Consumer Legal Remedies Act and California’s Unfair Competition Law, violates Safeway’s duty

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warn its Customers, and is a breach of the warranty of merchantability; and (2) to compel Safeway

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to use the customer contact information and purchase history that it routinely collects to inform

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Customers of Recalled Products, and issue refunds of the purchase price of the Products. To

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effectuate this recall, Safeway should use, to the fullest extent possible, automated register

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printouts, telephone calls, letters, e-mails and text messaging, and prominent statements in

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AMENDED CLASS ACTION COMPLAINT

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Safeway stores on the home page (or another equally noticeable location) of its website,

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Safeway.com.

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THE PARTIES

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A.

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Plaintiffs
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Plaintiff Dee Hensley-Maclean is a resident of Ravalli County, Montana. Hensley-

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Maclean regularly shops at Safeway in Hamilton, Montana, and is a regular user of Safeway’s

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Club Card Program. Hensley-Maclean purchased Recalled Products (snack foods containing

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peanut butter) from Safeway during the Class Period (defined below).
10.

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Plaintiff Sara Duncan is a resident of Walnut Creek, California. Duncan regularly

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shops at Safeway in Walnut Creek, and is a regular user of Safeway’s Club Card Program. Duncan

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purchased Recalled Products (eggs) during the Class Period (defined below).

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B.

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11.

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California, 94588-3229.
12.

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Safeway operates 1,739 stores throughout the United States, including over 500

stores in California, its home state, and 12 stores in Montana. All Safeway stores promote the
same Club Card program benefits to consumers, and collect purchase information at the point of
sale from participating Customers.

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Safeway, Inc. is organized and incorporated under the laws of the State of

Delaware, with its principal place of business at 5918 Stoneridge Mall Road, Pleasanton,

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Defendant

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The true names and capacities of Defendants sued as Does 1 through 20 are

unknown to Plaintiffs at this time. Plaintiffs therefore sue said Defendants by such fictitious
names. Plaintiffs will amend this Complaint to allege the true names and capacities of Does 1
through 20 when ascertained. Plaintiff is informed and believes, and based thereon alleges, that
each Defendant is jointly and severally responsible in some manner for the damages alleged
herein.
///

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AMENDED CLASS ACTION COMPLAINT

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JURISDICTION AND VENUE

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14.

This Court has jurisdiction over this action pursuant to § 410.10 of the California

Code of Civil Procedure. Jurisdiction is also proper under California Civil Code § 17200 et seq.

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15.

Venue is appropriate in the County of Alameda pursuant to California Civil Code

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§ 1780(d) and California Code of Civil Procedure § 395, because Safeway’s principal place of

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business is in this county. Plaintiff Duncan is concurrently filing the Declaration as to Venue

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required by California Civil Code § 1780(d).

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16.

This action was removed from California Superior Court by Safeway which alleges

this Court has jurisdiction pursuant to the “Class Action Fairness Act,” 28 U.S.C. §§ 1332(d),

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1435 (“CAFA”). At least one member of the proposed class is a citizen of a state other than where

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Safeway is incorporated and headquartered. The proposed class consists of more than 100

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members. Further, Safeway has alleged that the amount in controversy exceeds $5 million taking

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into account all damages and equitable relief on behalf of the proposed class, and excluding

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interest and costs.

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FACTUAL ALLEGATIONS

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A.

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Class 1 Recalls: Food Safety In Crisis
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Food safety is high on the national agenda, particularly in light of the many recent

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large-scale recalls. Following highly publicized recalls of spinach, peanut products, and other
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foods over the last several years, and the more recent massive, nationwide egg recall, there have
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been increasing calls for government and industry action to improve the safety of the American
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food supply. 3

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In response to these concerns, President Obama has declared that food safety is an

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important policy priority for his administration, stating that the current level of food safety “is a
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hazard to public health. It is unacceptable.” 4

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Hallman, W. K. & Cuite, C. L. (2010). Food Recalls and the American Public: Improving
Communications. (Publication number RR-0310-020). p.1, New Brunswick, New Jersey: Rutgers,
The State University of New Jersey, Food Policy Institute.
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http://www.whitehouse.gov/the_press_office/Weekly-Address-President-Barack-ObamaAnnounces-Key-FDA-Appointments-and-Tougher-F (last visited Jan. 28, 2011).
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AMENDED CLASS ACTION COMPLAINT

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19.

On January 4, 2011, President Obama signed into law the historic Food Safety

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Modernization Act which requires food manufacturers and farmers to implement plans aimed at

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preventing contaminated products, improves surveillance of outbreaks of food borne illnesses, and

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gives the U.S. Food and Drug Administration authority to recall potentially contaminated food

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from the marketplace. The requirements of the Food Safety Modernization Act will aid in the

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reduction of the number of outbreaks of foodborne illnesses, but the highest level of food safety

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requires that all players in the food production and distribution chain do their part.

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policy is embodied in statutes and regulations such as the Sherman Food, Drug, and Cosmetic Act.

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In addition, California maintains a strong public policy to promote food safety. The

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Approximately 48 million foodborne illnesses occur each year in the United States,

causing more than 128,000 hospitalizations, and 3,000 deaths. 5

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Every year, approximately 40,000 cases of salmonellosis are reported in the United

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States. 6 Because many milder cases are not diagnosed or reported, the actual number of infections

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may be thirty or more times greater. 7

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There are at least 70,000 E. coli O157 infections each year in the United States, not

counting the many more that go unidentified and unreported. 8

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24.

Recalled Products are health hazards and are unfit for human consumption because

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there is a reasonable probability that the use of the Product will cause serious, adverse health

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consequences or death.

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25.

Because a Recalled Product predictably could cause serious health problems or

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death, the Product is both “adulterated” and “misbranded” in violation of the Federal Food, Drug

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and Cosmetic Act, and California’s Sherman Law, California Health and Safety Code § 110660.

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www.cdc.gov/nczved/divisions/dfbmd/diseases/salmonellosis/#how_common (last visited Jan. 28,
2011).
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www.cdc.gov/foodborneburden/2011-foodborne-estimates.html (last visited Jan. 28,2011).

Id.

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www.cdc.gov/nczved/divisions/dfbmd/diseases/ecoli_o157h7/index.html#how_common (last
visited Jan. 28, 2011).
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AMENDED CLASS ACTION COMPLAINT

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Alerting consumers to the hazards of Recalled Products they purchased is key to

preventing serious illness or death from use of the products.

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Inadequate notice of food recalls causes unnecessary sickness, suffering, and death

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when a Recalled Product is consumed by people who do not hear about the recall or cannot

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identify the Products. 9

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likelihood that they will be consumed and cause illness or injury.

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The longer that Recalled Products remain on a customer’s shelf, the greater the

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The success of food recalls depends on getting individual consumers to take

appropriate actions. 10 The first step in getting consumers to take appropriate action with regard to
a Recalled Product is alerting them to the fact that a recall exists for a product they purchased.

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It is also important to issue prompt refunds to consumers for any Recalled Product,

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to avoid any need to use the Product, despite the Recall, due to economic distress or lack of

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transportation to return the Product. This problem disproportionately affects lower-income

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consumers.

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Providing personalized recall messages to consumers regarding their previous

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purchases of Recalled Products and implementing an immediate credit or refund for the sale are

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the best ways to make sure consumers know about the risk of consuming Recalled Products and

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will not gamble on eating them despite the Recall. 11

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Supermarkets and club stores account for approximately 80% of food sold in this

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country. 12 Thus, large chain grocery stores (like Safeway) are usually the point of purchase of

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Recalled Products. From the information they collect under their club card programs, they have the

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ability to quickly and effectively identify and alert consumers that they have purchased a Recalled

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Product.

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Hallman & Cuite, at 2.

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Hallman & Cuite, at 3.

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Hallman & Cuite, at 14.

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www.ers.usda.gov/Briefing/FoodMarketingSystem/foodretailing.htm (last visited Jan. 28, 2011).
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AMENDED CLASS ACTION COMPLAINT

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B.

Safeway’s Club Card Customer Loyalty Program
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Safeway’s Club Card membership program encourages and entices Customers to

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return to Safeway through special promotions, pricing, and benefits. Online, Safeway touts its

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Club Card membership as providing “exclusive savings all across the store AND anytime

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[Customers] shop online at Safeway.com.”

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Consumers join Safeway’s Club Card program by completing an application in the

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store or online. The application asks for the consumer’s name, address, telephone number, and e-

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mail address. Safeway stores this contact information in a centralized database, and monitors and

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records Customers’ subsequent purchases made using the Club Card.

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At the cash register, Customers or cashiers enter Club Card information. Safeway

thereby captures each Customer’s purchasing history.
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Safeway requires Customers to use the Club Card to receive discounted prices on

their purchases thus ensuring a high level of compliance by Customers.
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Safeway analyzes the recorded information and uses it to provide Customers with

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special offers, promotions, and coupons tailored to each Customer’s purchasing habits. These

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special offers, promotions, and coupons are instrumental in making Club Card members repeat

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customers.

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Safeway can identify which Customers purchased Recalled Products, and warn

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them that consuming the Products puts them at risk of a serious illness or death. Safeway can also

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easily credit Customers for the cost of the Product if it was purchased with a credit or debit card.

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39.

Many of Safeway’s competitors already use their own customer data to notify their

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customers of Recalled Products and to offer refunds, reducing the risk of harm to their own

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customers. Ralphs (owned by Kroger), Walmart, Sam’s Club, Costco, Giant Food Supermarkets,

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Harris Teeter Food Markets, Wegmans Food Markets, and ShopRite Supermarkets (among others)

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all routinely issue food safety alerts directly to customers using a variety of methods.

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Safeway has engaged in unfair and deceptive acts and practices by knowingly

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failing to inform its Customers that that they purchased Recalled Products and by failing to refund

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the cost of the Product.
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AMENDED CLASS ACTION COMPLAINT

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C.

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Safeway’s Deliberate Disregard for Customers’ Safety
As the retailer of dangerous Recalled Products, Safeway is responsible for the

economic injury caused by its actions. 13
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Consumer injury occurs in three ways, when (1) a Customer purchases a Recalled

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Product, (2) Safeway fails to inform the Customer that she has purchased a Recalled Product in a

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meaningful manner, and (3) Safeway fails to refund the cost of the Recalled Product to easily

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ascertainable Customers.
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When a wholesaler or other supplier sells food to Safeway that is later found to be a

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Recalled Product, the supplier is responsible for all costs of the recall, including the cost of direct

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contacts with Customers and appropriate refunds as sought by this lawsuit. 14

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Thus, the cost to Safeway of notifying and making refunds to Customers is zero.

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Safeway entices consumers to join its Club Card Program in exchange for

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discounts, then uses purchase information collected by the Club Card program to encourage repeat

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visits to Safeway stores and to boost sales through special marketing initiatives. But Safeway

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inexplicably refuses to use the very same customer contact information to notify Customers and

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make refunds of Recalled Products, though the cost to Safeway is zero.

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D.

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Facts as to Plaintiff Hensley-Maclean
46.

Hensley-Maclean shops at her local Safeway store frequently, because she is a

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Safeway is also responsible for any physical injury caused by Recalled Products, but this
Complaint does not seek any form of monetary compensation for physical injury resulting from
persons physically injured by Recalled Products sold to them by Safeway.

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See Safeway, Inc. Continuing Commodity Guaranty And Indemnity Agreement, Section IX:
Recalls and Tainted Products: “If Goods, because of a condition which existed at the time of
delivery (or which results from such condition), are the subject of a recall (or safety notice)
initiated by [Safeway], Seller, or a government or consumer protection agency, Seller shall be
responsible for all reasonable costs and expenses associated with the recall or notice and shall
reimburse [Safeway] for all reasonable costs and expenses incurred by [Safeway] in recalling,
publishing notices about, shipping and/or destroying such Goods (and, where applicable, any
products with which such Goods have been packaged, consolidated or commingled) at
[Safeway’s] net landed cost therefor, including refunds to customers. (Emphasis Supplied).

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http://suppliers.safeway.com/usa/forms/CCG_Revised_cln.pdf (Last visited Jan. 28, 2011).

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AMENDED CLASS ACTION COMPLAINT

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mother to two growing teens: a son, age 13, and a daughter, age 16. She regularly uses a Club Card

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when she shops there.

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47.

In 2008, Hensley-Maclean purchased peanut butter crackers and Nutter Butter

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Sandwich Cookies from Safeway. These were Recalled Products. She only learned that Safeway

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had sold her Recalled Products by chance while watching a local news program.

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48.

Safeway did not notify Hensley-Maclean about the Class 1 recall of the Products, or

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about her right to a refund of the purchase price, despite the fact that Safeway was well aware of

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the Class 1 recall, had knowledge of Hensley-Maclean’s purchase of the Recalled Products, and

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had linked those purchases to the Club Card.

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49.

Hensley-Maclean also purchased other snack foods containing peanut butter at her

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local Costco store. Costco uses a card system similar to that used by Safeway. Unlike Safeway,

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Costco contacted Hensley-Maclean directly, via mail, to alert her to the fact that she had purchased

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Recalled Products from Costco, and to notify her that she was entitled to return the Recalled

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Products to Costco for a full refund of the purchase price.

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50.

Upon learning that the peanut butter crackers and Nutter Butter Sandwich Cookies

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were dangerous and defective and subject to a Class 1 recall, Hensley-Maclean immediately

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disposed of the products. She would never have purchased the products if she had known they

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were Recalled Products. Because they were a danger to her and her family, they were no longer fit

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for consumption, and therefore had no monetary or other value to her.

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E.
51.

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Facts as to Plaintiff Duncan
Duncan shops at her local Safeway store, located at 1972 Tice Valley Boulevard in

Walnut Creek. She regularly uses a Club Card when she shops there.
52.

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In 2010, Duncan purchased eggs at Safeway. Duncan consumed some of the eggs

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before she learned that they had been recalled and Duncan was hospitalized for Salmonellosis.

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These were Recalled Products. Duncan only learned that Safeway had sold her Recalled Products

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after she was infected with Salmonella bacteria through news coverage of this proposed class

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action.

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AMENDED CLASS ACTION COMPLAINT

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53.

Safeway did not notify Duncan about the Class 1 recall from Safeway, or about her

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right to a refund of the purchase price, despite the fact that Safeway was well aware of the Class 1

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recall, had knowledge of Duncan’s purchase of Recalled Products, and had linked those purchases

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to the Club Card.

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54.

Duncan would never have purchased or consumed the eggs if she had known they

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were Recalled Products because they were a danger to her, no longer fit for consumption, and

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therefore had no monetary or other value to her.

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CLASS ALLEGATIONS
55.

Plaintiffs seek to certify a nationwide class of: All Customers who bought Recalled

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Products, and whom Safeway did not advise that they had bought Recalled Products, for a period

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beginning four years prior to the date this complaint is filed until the date of class certification

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(“Class Period”).

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56.

Safeway has acted (by selling Recalled Products) and refused to act (by failing to

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notify and refund Customers who had purchased Recalled Products) on grounds generally

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applicable to the class.

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57.

The disposition of Plaintiffs’ claims in a class action will benefit both the parties

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and the Court, because Plaintiffs’ claims are identical to those of the proposed class and claims

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and defenses by the representative party are identical.

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58.

The class is composed of hundreds of thousands of persons. Safeway has sold and

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continues to sell to class members hundreds of thousands of food products daily in California and

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throughout the United States. Thus the class is so numerous as to make joinder impracticable, if

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not impossible.

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59.

There are questions of fact and law that are common to all members of the class,

including:
a.
Whether Safeway's representations regarding the safety of foods it sold were false
and misleading and unlawfully, unfairly, fraudulently, or unconscionably deceived class
members into believing that the foods sold at Safeway are characteristically safe for
consumption and of a particular quality when those foods were not;
b.
Whether the marketing of Safeway’s stores using the Club Card program to record
class members’ contact information and track purchases in order to engage in targeted
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AMENDED CLASS ACTION COMPLAINT

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marketing to boost its sales and revenue, without using that same information for the
benefit of the health and welfare of class members is unfair, fraudulent, and
unconscionable;

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c.
Whether Safeway negligently failed to adequately notify class members that they
purchased a Recalled Product, negligently failed to advise them not to consume the
Recalled Product for fear of a serious health hazard or death, and negligently failed to offer
a full refund of the amount paid for the Recalled Product;

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d.
Whether Safeway breached the warranty of merchantability implied at the time of
sale in that class members did not receive goods that were beneficial or that had the
beneficial characteristics represented and thus, the goods were not merchantable as fit for
the ordinary purposes for which such goods are used or as promoted, marketed, advertised,
packaged, labeled or sold; and

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e.
Whether the class has been damaged and, if so, the appropriate measure of
damages, including the nature of the equitable relief to which the class is entitled.

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60.

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These common issues of fact and law predominate over any arguable individualized

61.

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Plaintiffs' claims are typical of the claims of the other members of the class because

issues.

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Plaintiffs' and all of the class members' damages arise from and were caused by purchasing

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Recalled Products. As a result, the facts and the law regarding Safeway’s alleged wrongful conduct

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are identical for Plaintiffs and all of the class members.

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62.

Plaintiffs will fairly and adequately protect the interests of the members of the

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class, and Plaintiffs have no interests that are contrary to or in conflict with those of the class they

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seek to represent. Plaintiffs have retained competent counsel experienced in class action litigation

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to prosecute this action vigorously.

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63.

The prosecution of separate actions by individual members of the class would

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create a risk of inconsistent or varying adjudications with respect to individual members of the

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class, which would establish incompatible standards of conduct for the party opposing the class

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and would lead to repetitious trials of the numerous common questions of facts and law.

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64.

Plaintiffs are not aware of any difficulty that will be encountered in the

management of this litigation that would preclude its maintenance as a class action.
65.

The monetary value of individual claims is limited to refunds for Recalled Products
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AMENDED CLASS ACTION COMPLAINT

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and is minuscule in relation to the costs of an individual suit. A class action is the only proceeding

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in which class members can, as a practical matter, recover.

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66.

As a result a class action is superior to other available methods for the fair and

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efficient adjudication of this controversy. Proper and sufficient notice of this action may be

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provided to the class members using Club Card information and any other customer contact

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information in Safeway’s possession or control.

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67.

Plaintiffs and the members of the class have suffered irreparable harm and damages

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as a result of Safeway’s wrongful conduct as alleged herein. Absent a representative action,

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Plaintiffs and the members of the class will continue to suffer losses, thereby allowing these

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violations of law to proceed without remedy.
FIRST CAUSE OF ACTION FOR RESTITUTION AND INJUNCTIVE RELIEF
(Violation of the Consumers Legal Remedies Act, California Civil Code § 1750 et seq.)
68.

Safeway’s representations regarding the safety of foods it sold unlawfully, unfairly,

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and unconscionably deceived Customers into believing that the foods sold at Safeway are safe for

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consumption and of a particular quality when those foods were not. Safeway’s practices as alleged

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herein violate the California Legal Remedies Act in that Safeway:

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(a) “represent[ed] that goods . . . have . . . characteristics, ingredients, uses,

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benefits, or quantities which they do not have;” (§ 1770(a)(5)) and
(b) “represent[ed] that goods or services are of a particular standard, quality, or

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grade. . . if they are of another.” (§ 1770(a)(7)).

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69.

As a direct result of Safeway’s unfair and deceptive business practices, Rosen and

those California residents similarly situated have been, and continue to suffer injuries.
70.

Plaintiff has provided notice to Safeway of its violations of the Consumers Legal

Remedies Act concurrent with filing of this Complaint.
71.

Pursuant to California Civil Code § 1780, Rosen and those similarly situated are

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entitled to restitution of the purchase price of Recalled Products sold, are entitled to obtain an

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order requiring Safeway to inform Customers — by automated register printouts, telephone calls,

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letters, e-mails and text messaging , and prominent statements in Safeway stores on the home page
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AMENDED CLASS ACTION COMPLAINT

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(or another equally noticeable location) of its website, Safeway.com — that Safeway sold

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Customers Recalled Products and that Customers will receive or are entitled to receive a refund of

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the purchase price of Recalled Products, and to recover her reasonable attorneys’ fees and costs.

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72.

Rosen, on behalf of those similarly situated, seeks restitution and injunctive relief

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pursuant to California Civil Code § 1780. The Consumers Legal Remedies Act, Civil Code § 1750

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et seq., is designed to protect consumers against unfair and deceptive business practices. It applies

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to Safeway’s conduct because it covers transactions that are intended to result or that result in the

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sale or lease of goods and services to consumers.

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SECOND CAUSE OF ACTION FOR EQUITABLE RELIEF
(Violation of the Unfair Competition Law,
California Business and Professions Code § 17200 et seq.)

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73.

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Under the Unfair Competition Law (“UCL”), unfair competition includes any

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“unlawful,” “unfair,” or “fraudulent” business act or practice. 15 The Law authorizes equitable relief

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for violations. 16
74.

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Safeway’s sale of Recalled Products is a business practice covered by the UCL. At

all relevant times, Safeway acted, and continues to act, as alleged herein.
75.

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Plaintiffs, individually and on behalf of those similarly situated, seek equitable

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relief pursuant to the UCL, California Business and Professions Code § 17200 et seq., requiring

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Safeway to inform Customers — by automated register printouts, telephone calls, letters, e-mails

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and text messaging, and prominent statements in Safeway stores on the home page (or another

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equally noticeable location) of its website, Safeway.com — that Safeway sold the Customers

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products subject to Class 1 recalls.
76.

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Safeway’s course of conduct with respect to Recalled Products — selling Recalled

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Products; failing to advise its Customers not to eat any Recalled Products; and failing to offer

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refunds for the Recalled Products — is deceptive, unfair, and unconscionable.

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15

Cal. Bus. & Prof. Code § 17200 et seq.

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16

Id. § 17203.
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AMENDED CLASS ACTION COMPLAINT

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77.

As a result of Safeway’s unfair and deceptive business practices, Plaintiffs and class

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members have suffered damage and lost money or property in that they paid for adulterated and

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unsafe food products that were not as represented and suffered the risk of serious illness or death

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due to Safeway’s failure to adequately notify Customers of Class 1 recalls.

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6

78.

Plaintiffs seek both restitution in the form of refunds and an injunction to force

Safeway to notify its Customers when it sells Recalled Products in the future.

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THIRD CAUSE OF ACTION
(Breach of Duty to Warn)

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79.

As a seller of foods, Safeway has a duty to Plaintiffs and to those similarly situated

to notify them that they have purchased a Recalled Product, to advise them not to consume the
Product, and to offer them a full refund of the amount paid for the Recalled Product.
80.

Safeway knows or reasonably should know of Class 1 recalls of foods it sells, and

knows that consumption of Recalled Products can result in serious illness or death.
81.

Without receiving notice of Class 1 recalls, Customers are unaware of the danger

they face from Recalled Products they have purchased from Safeway.
82.

Safeway has a duty to provide a warning after the time of sale of any Recalled

Product, because: (1) Safeway knew or reasonably should have known that the product poses a
substantial risk of harm to persons or property; (2) its Customers can be identified and can
reasonably be assumed to be unaware of the risk of harm; (3) a warning can be effectively
communicated to and acted on by its Customers; and (4) the risk of harm is sufficiently great to
justify the burden of providing a warning.
83.

Safeway breached its duty to Plaintiffs and to those similarly situated by failing to

advise its Customers not to eat any Recalled Products and by failing to credit the amount paid for
the product if possible or, in the case of cash purchases, offer a refund.
84.

As a direct and proximate cause of Safeway’s failure to notify Plaintiffs and those

similarly situated that they had purchased Recalled Products from Safeway, Plaintiffs and those
similarly situated were exposed to the risk of serious illness or death.

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AMENDED CLASS ACTION COMPLAINT

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85.

As a direct and proximate result of Defendant’s misconduct as set forth above,

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Defendant has been unjustly enriched. Defendant should not be permitted to keep sums as a result

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of its unjust actions.

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86.

Plaintiffs and those similarly situated have been and will continue to be harmed by

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Safeway’s failure to notify them of their purchase of Recalled Products, and of their right to a

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credit or refund of the purchase price of Recalled Products.

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FOURTH CAUSE OF ACTION
(Breach of Implied Warranty of Merchantability)

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87.

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Plaintiffs and other class members purchased foods from Safeway, which Safeway

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promoted, marketed, advertised, packaged and labeled as being fit for consumption. Safeway

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impliedly warranted that the food products it sold would be merchantable and fit for the ordinary

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purposes for which such goods are used.
88.

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Plaintiffs and those similarly situated purchased foods from Safeway, relying on

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Safeway’s representations that the foods it sold were fit for consumption when, in fact, they were

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not fit for consumption in that they were tainted with Salmonella or other bacteria.
89.

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Safeway breached the warranties implied at the time of sale in that Plaintiffs and

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those similarly situated did not receive goods that were fit for consumption. Accordingly, the

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goods were not merchantable as fit for the ordinary purposes for which such goods are used, or as

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promoted, marketed, advertised, packaged, labeled or sold.
90.

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As a proximate result of these breaches of warranty by Safeway, Plaintiffs and

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those similarly situated have suffered damages in an amount to be determined at trial in that,

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among other things, they purchased and paid for products that were not fit for consumption and did

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not receive a refund for the purchase price. They were deprived of the benefit of their bargain and

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spent money on products at Safeway that did not have any value, had less value than warranted, or

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that they would not have purchased and used had they known the true facts about them – the health

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hazards associated with consumption.

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///

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///
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AMENDED CLASS ACTION COMPLAINT

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FIFTH CAUSE OF ACTION
(Money Had and Received)

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91.

Safeway received money belonging to Plaintiffs when it sold them Recalled

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Products. Safeway benefited from the receipt of their money and retained it. Safeway is obligated

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to make restitution to Plaintiffs for their purchases of Recalled Products.

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92.

Safeway received money belonging to the other class members when it sold them

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Recalled Products. Safeway benefited from receipt of their money and retained it. Safeway is

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obligated to make restitution to the class members for their purchases of Recalled Products.
PRAYER FOR RELIEF

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THEREFORE, Plaintiffs pray that the Court:

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1.

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Certify this matter as a class action with the class defined as set forth above,

appoint Plaintiffs as representatives of the Class, and appoint their attorneys as Class Counsel;
2.

Declare that Safeway’s practice of choosing not to notify Customers who have

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purchased Recalled Products and issue refunds or credits for the purchase price of those products

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violates the Consumer Legal Remedies Act, Unfair Competition Law, and other causes of action

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pleaded herein;

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3.

Preliminarily and permanently order Safeway to (1) post a readily accessible and

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visible warning online at Safeway.com; (2) post signs in the stores that sold Recalled Products;

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and (3) to contact each Customer — by telephone, letter, and (when possible) e-mail and text

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messaging — to advise them not to consume the product and credit the amount paid for the

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product if possible or, in the case of cash purchases, offer a refund;

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4.

Award monetary damages to Customers who did not receive a refund or credit for

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Recalled Products, plus any available statutory or punitive damages, costs and attorney’s fees, in

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an amount to be determined at trial.

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5.

Enter an order for restitution and disgorgement of all profits from the sale of

Recalled Products;
6.

Award Plaintiffs and those similarly situated, reasonable attorney’s fees and costs

of suit; and

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AMENDED CLASS ACTION COMPLAINT

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7.

Award Plaintiffs and those similarly situated such other and further relief as the

Court may deem appropriate, just, and proper.

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Dated: April 4, 2013
Respectfully submitted,

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Consumer Law Practice of Daniel T. LeBel
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________________________________
Daniel T. LeBel
601 Van Ness Avenue, Suite 2080
San Francisco, CA 94102
Telephone: [phone]
Fascimile: [phone]
- and -

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Center for Science in the Public Interest
Stephen Gardner
Amanda Howell
5646 Milton Street, Suite 211
Dallas, TX 75206
Telephone: [phone]
Facsimile: [phone]

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Lead Counsel for Plaintiffs

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- and Mehri & Skalet, PLLC
Steven A. Skalet
Craig L. Briskin
1250 Connecticut Ave., N.W., Suite 300
Washington, DC 20036
Telephone: [phone]
Facsimile: [phone]

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- and –

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AMENDED CLASS ACTION COMPLAINT

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THE STURDEVANT LAW FIRM, PC
James C. Sturdevant
354 Pine Street, Fourth Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
- and RUKIN HYLAND DORIA & TINDALL LLP
Whitney Stark
100 Pine Street #2150
San Francisco, California 94111
Telephone: [phone] Ext. 212
Facsimile: [phone]

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Counsel for Plaintiffs and the Proposed Class

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AMENDED CLASS ACTION COMPLAINT