Nicole Crawford v. The Hain Celestial Group Inc et al

Filing 1

CLASS COMPLAINT against Defendants Does 1-10, inclusive, The Hain Celestial Group Inc. Case assigned to Judge George H Wu for all further proceedings. Discovery referred to Magistrate Judge Jacqueline Chooljian. (Filing fee $ 350 PAID.) Jury Demanded., filed by Plaintiff Nicole Crawford. (et) (ds).

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on information and belief except as where specifically so identified, which allegations

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are likely to have evidentiary support after an opportunity for further investigation

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and discovery:

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I. NATURE OF THE CASE
1.

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This action is brought as a class action seeking redress for Defendant’s

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deceptive practices in misrepresenting and/or omitting to disclose certain material

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facts relating to certain of its products reported to contain lead, including Earth’s

8

Best® Organics Apple Juice (collectively, the “Products”), in connection with

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marketing those products for consumption by children and other consumers, in

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violation of California law.
2.

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On June 9, 2010, Defendant was notified by the Environmental Law

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Foundation (a California non-profit organization) that its Products contained lead in

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excess of levels established pursuant to California’s Safe Drinking Water and Toxic

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Enforcement Act of 1986, California Health and Safety Code §§25249, et seq.

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(“Proposition 65”).
3.

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Defendant does not provide any warning as to the presence of lead in the

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Products as required by Proposition 65, in violation of Proposition 65’s provision that

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“No person in the course of doing business shall knowingly and intentionally expose

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any individual to a chemical known to the state to cause cancer or reproductive

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toxicity without first giving clear and reasonable warning to such individual. . . .”
4.

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Lead was reportedly found in children’s and baby foods manufactured

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and sold by Defendant, in amounts greater than the permissible daily exposure level

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set forth by Proposition 65 of 0.5 micrograms per day.
5.

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By the marketing and dissemination of such Products without providing

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a clear and reasonable warning of the presence of lead in those Products, Defendant

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has violated the laws of California, as described below.

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CLASS ACTION COMPLAINT

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II. JURISDICTION AND VENUE

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6.

Jurisdiction is proper in this Court pursuant to 28 U.S.C. §1332 because:

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a.

This is a civil action filed pursuant to Fed.R.Civ.P. 23 brought by one or

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more representative persons as a class action, with minimal diversity between the

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parties;

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7
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10
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b.

The amount in controversy of all class members in the aggregate exceeds

the sum or value of $5,000,000, exclusive of interest and costs;
c.

The members of the putative class are citizens of the State of California,

which is not the State of citizenship for Defendant; and
d.

All other factual conditions precedent necessary to empower this Court

with subject matter jurisdiction and personal jurisdiction are satisfied.
7.

Venue is proper in this Court pursuant to 28 U.S.C. §1391(a)(1) and (2).

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Substantial acts in furtherance of the alleged improper conduct occurred within this

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District. Plaintiff resides within this District and bought Defendant’s Products within

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this District.

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III. PARTIES
8.

On personal knowledge, Plaintiff, NICOLE CRAWFORD, is an

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individual consumer who, at all times material hereto, was a resident of the State of

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California and therefore is a “citizen” of California for purposes of diversity.

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Plaintiff repeatedly purchased the Products during the class period.

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9.

Defendant, THE HAIN CELESTIAL GROUP, INC. (“Hain”), is, and

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at all times herein referenced was, a Delaware corporation with its principal place of

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business located at 58 South Service Road, Suite 250, Melville, New York 11747

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based on the presence of its corporate offices and executive headquarters located

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there. Its registered agent, CT Corporation System, is located at 818 West Seventh

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Street, Los Angeles, California 90017. For purposes of diversity jurisdiction, Hain

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may be considered a “citizen” of either Delaware (its place of incorporation) or New

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York (where its executive headquarters are located). At all times relevant hereto,
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CLASS ACTION COMPLAINT

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Hain was and is doing business within this District either directly or indirectly

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through the sale of its products in this District. Earth’s Best® Organics Apple Juice

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is among Hain’s Products.
10.

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DOES 1-10 inclusive are named as fictitious defendants, whose names

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and roles in the controversy shall be included in the Complaint as they are

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ascertained. At all times herein mentioned, these DOE defendants, who may include

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the employees of Hain, its subsidiaries, affiliates and other related entities, were the

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agents, servants and employees of Hain, and at all times herein mentioned, each was

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acting within the purpose and scope of said agency and employment. Whenever

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reference in this Complaint is made to any act or transaction of Hain, such allegation

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shall be deemed to mean that the principals, officers, directors, employees, agents,

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and/or representatives of Hain committed, knew of, performed, authorized, ratified

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and/or directed such act or transaction on behalf of Hain while actively engaged in

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the scope of their duties.

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IV. FACTUAL ALLEGATIONS
A.

Children are More Susceptible to Chemical Toxicity Than are Adults
11.

The fact that children are more susceptible to chemical toxicity than

adults is widely recognized.
12.

The National Academy of Sciences published a report in 1993 entitled

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“Pesticides in the Diets of Infants and Children” (“NAS Report”). NAS explained

21

that children are not little adults with respect to potential chemical toxicities:

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A fundamental maxim of pediatric medicine is that children are not

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“little adults.” Profound differences exist between children and

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adults.

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metabolic rates are more rapid than those of adults.

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differences in their ability to activate, detoxify, and excrete xenobiotic

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compounds. All these differences can affect the toxicity of pesticides in

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infants and children, and for these reasons the toxicity of pesticides is

Infants and children are growing and developing.

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CLASS ACTION COMPLAINT

Their

There are

1

frequently different in children and adults.

2

[emphasis added].

3

13.

(NAS Report, at 3-4)

The Natural Resources Defense Council (“NRDC”) issued a report in

4

1997 entitled “Our Children At Risk; The 5 Worst Environmental Threats To Their

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Health.” NRDC explained that children are relatively more susceptible to potential

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chemical toxicities:

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Pound for pound, children breathe more air, drink more water, and

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consume more food than adults. This higher rate of intake means that

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children will receive higher doses of whatever contaminants are

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present in the air, water, or food.

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International Programme on Chemical Safety, Principles for Evaluating

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Health Risks From Chemicals During Infancy and Early Childhood:

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The Need for a Special Approach, Environmental Health Criteria 59,

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World Health Organization, 1986) (emphasis added).

15

14.

(NRDC Report, Ch. 2) (citing

The United States Environmental Protection Agency (“EPA”) issued its

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“Supplemental Guidance for Assessing Susceptibility from Early-Life Exposure to

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Carcinogens,” (“EPA Supplemental Guidance”) in early 2005. EPA recognized that

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toxicokinetic and toxicodynamic differences between children and adults are greatest

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during the first two years of life. (EPA Supplemental Guidance, at 32) (citations

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omitted).

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15.

Later in 2005, the Intergovernmental Forum on Chemical Safety’s

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(“IFCS”) Children and Chemical Safety Working Group published a report titled

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“Chemical safety and children’s health: Protecting the world’s children from harmful

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chemical exposures: a global guide to resources” (“2005 IFCS Report”). IFCS

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concluded that children are uniquely prone to harmful chemical exposures and their

26

adverse health effects because:

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CLASS ACTION COMPLAINT

a.

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Children’s exposure begins at conception, as chemicals in a

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pregnant woman’s body cross the placenta and affect the embryo

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or fetus during critical periods of development. Some chemicals

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also accumulate in breast milk, compromising (though not

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negating) the benefits of this important food for infants.
b.

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Even after birth, children’s bodies remain immature, with

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underdeveloped detoxification mechanisms to protect them from

8

chemicals.

9

constantly

10

sensitivity to damage or disruption.
c.

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Their brains and other organ systems are
developing,

undergoing

periods

of

particular

Compared with adults, children breathe faster and eat and drink

12

more in proportion to their bodyweight, resulting in greater

13

exposure to chemicals in air, food, and water.
d.

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Children spend more time outdoors, and often play on the

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ground or the floor, where chemicals such as pesticides and heavy

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metals are present. In addition, young children frequently place

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their hands or other objects in their mouths, making ingestion

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of chemicals more likely. Pregnant women and young children

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are often at higher risk of inhaling or coming into contact with

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chemicals used indoors, such as cleaning solutions, paints,

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cosmetics, and other household and consumer products.
e.

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them, and are therefore less likely to avoid harmful exposures.

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24

Children are less aware of potential chemical risks around

(2005 IFCS Report, at 3) (emphasis in original) (footnote omitted).
16.

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Based on empirical data and the fact that Defendant’s conduct of selling

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the Products for consumption is directed at children who are more susceptible to such

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chemical exposures as Earth’s Best® Organics products are particularly marketed

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CLASS ACTION COMPLAINT

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toward children,1 Defendant needed to be particularly vigilant to ensure that its food

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products did not contain harmful chemicals that might potentially have both short and

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long term health effects.

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B.

17.

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6

The Products reportedly contain lead, which is widely recognized to act

as a reproductive toxin as well as other short term and long term deleterious effects.
18.

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8

The Products are Hazardous to Children’s Health

For example, the substance profile for lead and lead compounds

prepared by the National Toxicology Program (“NTP”) states, in part:
a.

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Lead and lead compounds are reasonably anticipated to be

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human carcinogens based on limited evidence from studies in

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humans and sufficient evidence from studies in experimental

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animals. Lead exposure has been associated with increased risk of

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lung, stomach, and bladder cancer in diverse human populations

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(Fu and Boffetta 1995, Steenland and Boffetta 2000, NTP 2003).
b.

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Absorption of lead is affected by age, the chemical form of the

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lead, and minerals in the diet (e.g., iron, calcium, and zinc)

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(ATSDR 1999). Gastrointestinal absorption of lead is greater

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in children than in adults (Hammad et al. 1996).

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absorbed, lead is distributed to blood plasma, the nervous system,

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and soft tissues. It subsequently is redistributed and accumulates

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in bone; approximately 75% to 90% of the lead body burden is

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found in bones and teeth. (emphasis added).
c.

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Once

Lead concentrations in U. S. drinking water generally are below 5

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μg/L. Lead also is found in food, cigarette smoke, and alcoholic

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beverages. Levels in food have declined since the elimination of

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lead-soldered food cans between 1979 and 1989 (ATSDR 1999).

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28

1

See http://www.earthsbest.com/ (accessed 7/7/10).
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CLASS ACTION COMPLAINT

1

In 1990, the estimated daily intake of lead from consumption of

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food, water, and beverages was approximately 4 μg for children 2

3

years of age and younger, 6 to 9 μg for children aged 14 to 16, 6

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to 9 μg for adults aged 25 to 30, and 2 to 8 μg for adults aged 60

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to 65.

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environmental lead exposure is direct ingestion of paint chips and

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lead-laden dusts and soils released from aging painted surfaces.

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These sources can contribute an additional daily intake of 5 μg for

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a toddler engaging in normal hand-to-mouth activity (CDC 1997,

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Lanphear et al. 1998).

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12
13

19.

For young children, the most common source of

A monograph prepared by the International Agency for Research on

Cancer (“IARC”) regarding lead states, in part:
a.

A considerable body of evidence suggests that children are

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more sensitive than adults to the neurotoxic properties of lead.

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Although clinical symptoms of toxicity generally become apparent

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at blood lead concentrations of 70 μg/dL, many important

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disturbance occur at much lower concentrations. These include

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electrophysiological anomalies of evoked brain potential in

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response to auditory stimuli and reduced peripheral nerve

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conduction.

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children have found impairments in cognition, attention, and

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language function at concentrations of lead previously thought to

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be harmless.

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b.

Both cross-sectional and prospective studies of

In studies with larger samples, better measures of lead burden and

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neuro-behavioural function, and more advanced statistical

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techniques, effects are detectable at blood lead concentrations

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below 10 μg/dL. The relative effect is greater below 10 μg/dL

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than above this level. Recently, attention has shifted from the
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CLASS ACTION COMPLAINT

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impact of lead on cognition to its effects on behaviour. Exposure

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to lead has been found to be associated with attentional

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dysfunction, aggression and delinquency.
c.

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Exposure to lead is associated with cardiovascular effects and with
changes in endocrine and immune functions.

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d.

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Many of the effects of lead exposure in humans have been

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confirmed in experimental systems. At the cellular level, lead has

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mitogenic properties; it affects various regulatory proteins,

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including those that depend on the presence of zinc.
e.

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Inorganic lead compounds are probably carcinogenic to humans

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(Group 2A). Organic lead compounds are not classifiable as to

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their carcinogenicity to humans (Group 3).
f.

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Organic lead compounds are metabolized, at least in part, to ionic

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lead both in humans and animals. To the extent that ionic lead,

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generated from organic lead, is present in the body, it will be

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expected to exert the toxicities associated with inorganic lead.2
20.

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The Agency for Toxic Substances and Disease Registry (“ATSDR”)

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published a Case Study in Environmental Medicine (“CSEM”) concerning lead

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toxicity that was released on August 20, 2007. The CSEM’s environmental alert

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states:
a.

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Children of all races and ethnic origins are at risk of lead toxicity
throughout the U. S.

22

b.

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Lead may cause irreversible neurological damage, as well as renal
disease, cardiovascular effects, and reproductive toxicity.

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c.

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Blood lead levels once considered safe are now considered
hazardous, with no known threshold.

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27
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2

IARC Monograph Volume 87, pp. 375 - 378.
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CLASS ACTION COMPLAINT

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d.

Lead poisoning is a wholly preventable disease.3

2

21.

The CSEM also states that lead exposure in the general population

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(including children) occurs primarily through ingestion4 and further explains:
a.

4

Because of their behavior and physiology, children are more
affected by exposure to lead than are adults.

5
6

b.

Children absorb more ingested lead than do adults.

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c.

In addition, the percent of lead absorbed in the gut, especially in

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an empty stomach, is estimated to be as much as five to 10 times

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greater in infants and young children than in adults. (Alexander et

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al. 1974; Chamberlain et al. 1978; James et al. 1985; Ziegler et al.

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1978 as cited in ATSDR 1999).
d.

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Gastrointestinal absorption of lead in children is increased by iron,

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calcium, zinc, and ascorbate deficiency. (Mahaffey et al. 1990 as

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cited in AAP 1993).
e.

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Children are more sensitive than adults are to elevated blood

16

lead levels ("BLLs"). Children’s developing brains and nervous

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system (and other organ systems) are very sensitive to lead.
f.

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Childhood lead exposure has been associated with:

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i.

higher absenteeism in high school;

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ii.

lower class rank;

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iii.

poorer vocabulary and grammatical reasoning scores;

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iv.

longer reaction time;

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v.

poorer hand-eye coordination (AAP, 1993);

24

vi.

The incomplete development of the blood-brain barrier in
fetuses and in very young children (up to 36 months of age)

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26
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3

CSEM, p.1.

4

Id., p. 16.
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CLASS ACTION COMPLAINT

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increases the risk of lead’s entry into the developing

2

nervous system, which can result in prolonged or permanent

3

neurobehavioral disorders;
vii.

4

Children’s renal, endocrine, and hematological systems may
also be adversely affected by lead exposure.

5

g.

6

There is no known safe threshold exposure level (as indicated

7

by BLLs) for many of these effects. No blood lead threshold for

8

adverse health effects has been identifie[d] in children.
h.

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Children suffer neurological effects at much lower exposure

10

levels.

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i.

Neurological effects may begin at low (and, relatively

12

speaking, more widespread) BLLs, at or below 10 μg/dL in

13

some cases, and it may not be possible to detect them on

14

clinical examination.
ii.

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Some studies have found, for example, that for every 10

16

μg/dL increase in BLL, children’s IQ was found to be lower

17

by four to seven points. (Yule et al., 1981; Schroeder et al.,

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1985; Fulton et al., 1987; Landsdown et al., 1986; Hawk et

19

al., 1986; Winneke et al., 1990 as cited in AAP 1993).
iii.

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There is a large body of evidence that associates decrement

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in IQ performance and other neuropsychological defects

22

with lead exposure.
iv.

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There is also evidence that attention deficit hyperactivity

24

disorder (ADHD) and hearing impairment in children

25

increase with increasing BLLs, and that lead exposure may

26

disrupt balance and impair peripheral nerve function.

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(ATSDR 2005).

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CLASS ACTION COMPLAINT

v.

1

Some of the neurological effects of lead in children may
persist into adulthood.5

2

22.

3

Several States have specifically recognized the dangers posed by lead.

4

For example, in California, lead was one of the first items placed in the Governor’s

5

list of chemicals known to the State of California to cause reproductive toxicity on

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February 27, 1987.

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“developmental reproductive toxicity,” which means harm to the developing fetus,

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“female reproductive toxicity,” which means harm to the female reproductive system,

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and “male reproductive toxicity,” which means harm to the male reproductive

10

system. (Cal. Code Regs., tit. 22, §12000, subd. (c))

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was placed in the Governor’s list of chemicals known to the State of California to

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cause cancer on October 1, 1992. (Cal. Code Regs., tit. 22, §12000, subd. (b))
23.

13

It is specifically identified under three subcategories:

“Lead and lead compounds”

The Colorado Department of Public Health and Environment conducted

14

a survey of blood lead levels among children during 1995 and published its Final

15

Report entitled “Denver Childhood Blood Lead Survey” in January, 1996, in which

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the Department recognized potential adverse health effects to children associated with

17

exposure to lead, including:

18

a.

“Lead is a poison that affects virtually every system in the body.”

19

b.

“It is particularly harmful to the developing brain and nervous
system of fetuses and young children.”

20

c.

21

“Lower levels cause adverse effects on the central nervous system,
kidney, and hematopoietic system.”

22

d.

23

“Blood lead levels as low as 10 μg/dL, which do not cause

24

distinctive symptoms, are associated with decreased intelligence

25

and impaired neurobehavioral development.”

26

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28

5

Id., pp. 18 – 31 [emphasis added].
12

CLASS ACTION COMPLAINT

e.

1

“Many other effects begin at these low blood lead levels,

2

including decreased stature or growth, decreased hearing acuity,

3

and decreased ability to maintain a steady posture.”
24.

4
5

New Jersey’s Department of Health and Senior Services has published a

Right to Know Hazardous Substance Fact Sheet that states in part:

6

a.

Lead can affect you when inhaled or swallowed.

7

b.

Lead is a CARCINOGEN and may be a TERATOGEN[…].

8

c.

Lead may damage the nervous system.

9

d.

Exposure may cause kidney and brain damage, and anemia.

10

e.

Lead is a PROBABLE CARCINOGEN in humans and may be a

11

TERATOGEN in humans.

12

exposure to a carcinogen, so all contact should be reduced to the

13

lowest possible level.
f.

14

There may be no safe level of

Lead is a PROBABLE CARCINOGEN in humans. There is some

15

evidence that Lead and Lead compounds cause lung, stomach,

16

brain and kidney cancers in humans and they have been shown to

17

cause kidney cancer in animals.
g.

18

Many scientists believe there is no safe level of exposure to a
carcinogen.

19

25.

20

New York, Connecticut, and Georgia (among other States) also

21

recognize that lead is hazardous.

22

C.

23

Defendant Either Was Aware or Reasonably Should Have Known the
Food Products were Defective and Potentially Unsafe for Children.
26.

24

At all relevant times, Defendant was in a superior position (relative to

25

consumers) to know, or reasonably should have known, that certain of its food

26

products contained lead in amounts that could harm children and/or require a

27

Proposition 65 warning.

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CLASS ACTION COMPLAINT

27.

1
2

Defendant consistently promotes the quality and safety, excellence and

reliability of its Products.
28.

3

However, Defendant does not adequately disclose, if at all, the material

4

fact that the Products contained lead or provided any clear and reasonable warning

5

concerning the potential adverse health effects associated with ingestion of lead.
29.

6

For example, Hain warrants and advertises on its Earth’s Best® website:

7

“Earth’s Best produces food with the highest degree of attention to quality and safety.

8

Each ingredient is tested for pesticides and potentially harmful residues. No product

9

is released until our quality assurance department approves laboratory results,

10

ensuring we meet the strict standards for organic certification.”6 As indicated by the

11

presence of lead in the Products, however, Hain failed to properly test and screen the

12

Products during and after the manufacturing process in a manner that ensures the

13

Products were safe before placing the Products into the stream of commerce, and as a

14

result, to the extent such Products contained lead sold adulterated and mislabeled

15

food products to the consumer public targeted by such products, as that term is

16

defined by, inter alia, Cal. Health & Safety Code §§110545 et seq. and 113732.

17

D.

Plaintiff’s Allegations
30.

18

On personal knowledge, Plaintiff purchased the Products for herself and

19

her child regularly during the class period from various stores, including Toys R Us

20

and Ralph’s, in Ventura County, California.
31.

21

On personal knowledge, concerned about her child’s safety having heard

22

reports on the potential presence of lead in the Products, Plaintiff had a test conducted

23

on her child for traces of lead. The first test was performed April 8, 2010 and

24

resulted in a lead level of six (6) µg/dl. It is commonly accepted that lead poisoning

25

occurs at levels above five (5) µg/dl. As a result of the test results, Plaintiff stopped

26

feeding her baby products manufactured by Defendant. Subsequently, Plaintiff had

27
28

6

http://www.earthsbest.com/why-earths-best/product-testing (accessed 7/7/10).
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CLASS ACTION COMPLAINT

1

another lead test conducted on June 14, 2010, which resulted in a significantly

2

decreased lead level in her child of three (3) µg/dl.
32.

3

As a result of Defendant’s deceptive acts and practices, Plaintiff was

4

misled into purchasing the Products, thereby resulting in her suffering injury in fact

5

and a loss of money or property as a result of Defendant’s conduct. Had adequate

6

warnings concerning the presence and levels of lead in the Products been provided by

7

Defendant in proximity to the placement of the Products, which they were not,

8

Plaintiff would not have purchased the Products and would have been a substantial

9

factor in her decision making process as to whether to purchase the Products.

10

E.

11
12
13

Defendant’s Actionable Practices
33.

Defendant advertised, marketed, and caused to be packaged, labeled,

distributed and sold Products that were intended to be consumed by children.
34.

However, Defendant did not disclose the presence of lead in the

14

Products in a clear and reasonable manner in its stores, even where it was obligated

15

by the law to do so.

16

35.

Defendant also did not disclose the presence of lead in the Products in

17

any of the promotional or advertising materials it disseminated to the consuming

18

public. Such conduct is on-going and continues to this date.

19
20

V. CLASS ALLEGATIONS
36.

Pursuant to Fed.R.Civ.P. 23, Plaintiff brings this action on behalf of

21

herself and a Class of persons comprised of all consumers who purchased the

22

Products for personal, family or household purposes in California from Defendant

23

during the past four years (the “Class”).

24

37.

Based on the annual sales of the Products, the number of purchasers of

25

the Products would likely be in the many thousands, thereby making it so numerous

26

that individual joinder is impossible. Questions of law and fact detailed herein are

27

also common to all members of the Class. All Class members were and are similarly

28

affected by having purchased the Products for their intended and foreseeable purpose
15
CLASS ACTION COMPLAINT

1

as promoted, marketed, advertise, packaged and labeled by Defendant and as set forth

2

in detail above.

3

predominate over questions affecting only individual members, including, inter alia:

4

(a)

Questions of law and fact common to the Class exist and

Whether

Defendant’s

practices

in

connection

with

the

5

manufacturing, marketing, distribution, and sale of the Products

6

were illegal, deceptive or unfair in any respect, thereby violating

7

California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.

8

Code §§17200, et seq.;

9

(b)

its marketing, distribution, and sale of the Products;

10
11

(c)

Whether Defendant breached warranties in the sale of the
Products;

12
13

Whether Defendant concealed the material risks associated with

(d)

Whether Defendant’s acts and practices in connection with the

14

promotion, marketing, advertising, packaging, labeling and sale of

15

the Products unjustly enriched Defendant at the expense of, and to

16

the detriment of, Plaintiff and other Class members; and

17

(e)

consumers and if so, the extent of such injury.

18
19

Whether Defendant’s conduct as set forth above injured

38.

The claims asserted by Plaintiff in this action are typical of the claims of

20

other Class members as her claims arise from the same course of conduct by

21

Defendant as detailed above in terms of purchasing the Products without being aware

22

of the material undisclosed fact of the presence of lead in such Products, and the

23

relief she seeks for all Class members is common.

24

39.

Plaintiff will fairly and adequately represent and protect the interests of

25

the Class members. Plaintiff has retained counsel competent and experienced in both

26

consumer protection and class action litigation.

27
28

40.

Certification of this class action is appropriate under F.R.C.P. 23(b)(2)

and (3) because the questions of law or fact common to the Class members as
16
CLASS ACTION COMPLAINT

1

detailed above predominate over questions of law or fact affecting only individual

2

members. This predominance makes class litigation superior to any other methods

3

available for the fair and efficient group-wide adjudication of these claims. Absent a

4

class action remedy, it would be highly unlikely that other Class members would be

5

able to protect their own interests because the cost of litigation through individual

6

lawsuits would exceed any expected recovery.

7

because Defendant has acted or refused to act, and continues to act, on grounds

8

generally applicable to the Class, thereby making appropriate final injunctive relief

9

with respect to the Class as a whole. Further, given the large number of consumers of

10

the Products, allowing individual actions to proceed in lieu of a class action would

11

run the risk of yielding inconsistent and conflicting adjudications.

12

41.

Certification is also appropriate

A class action is an appropriate method for the group-wide adjudication

13

of this controversy in that it will permit a large number of claims to be resolved in a

14

single forum simultaneously, efficiently, and without the unnecessary hardship that

15

would result from the prosecution of numerous individual actions and the duplication

16

of discovery, effort, expense and burden on the courts that such individual actions

17

would engender. The benefits of proceeding as a class action, including providing a

18

method for obtaining redress for claims that would not be practical to pursue

19

individually, outweigh any difficulties that might be claimed with regard to the

20

management of this action.

21

VI. CAUSES OF ACTION

22

FIRST CAUSE OF ACTION

23

(Violation of Cal. Bus. & Prof. Code §§17200, et seq.)

24
25
26

42.

Plaintiff repeats and realleges all preceding paragraphs as if fully set

forth herein.
43.

This cause of action is brought on behalf of Plaintiff pursuant to Cal.

27

Bus. & Prof. Code §§17200, et seq., which provides that “unfair competition shall

28

mean and include any unlawful, unfair or deceptive business act or practice and
17
CLASS ACTION COMPLAINT

1

unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter

2

I (commencing with this Section) as Part of the Division of the Business and

3

Professions Code.” Defendant committed unfair business acts and/or practices as the

4

utility of Defendant’s practices related to the marketing, distribution and sale of the

5

Products without disclosing the material fact of the presence of

6

Products, is negligible, if any, when weighed against the potential harm to the

7

general public, Plaintiff, and members of the Class.

8

44.

lead in such

The harmful impacts upon members of the general public and members

9

of the Class who purchased such Products for their intended and foreseeable purpose

10

far outweighs any reasons or justifications by Defendant for its practices related to

11

the marketing, and distribution of the Products, as set forth in detail above,

12

particularly considering the reasonably available alternatives of disclosing the

13

presence of lead. Disclosures of such material facts is tied to a legislatively declared

14

policy adopted by the People of the State of California that compels the disclosure the

15

presence of toxic chemicals in the products they consume or provide to their children

16

for consumption.

17

45.

The utilization of such unfair business acts and practices was and is

18

under the sole control of Defendant, and was concealed from the general public such

19

that it could not be reasonably discovered by them prior to the purchase and

20

consumption of such Products.

21

46.

As a purchaser and consumer of Defendant’s Products who was injured

22

in fact and lost money or property as a result of the purchase of such Products absent

23

disclosure of the material facts detailed herein, Plaintiff has standing to bring these

24

clams seeking all available remedies under the UCL, including declaratory,

25

injunctive, restitutionary and other equitable relief.

26

47.

Defendant also committed unlawful and/or deceptive business acts or

27

practices by failing to make known the presence of lead in its Products as set forth in

28

detail above. Such conduct violates Proposition 65, and other provisions of the
18
CLASS ACTION COMPLAINT

1

Health and Safety Code including Cal. Health & Safety Code §§110545 et seq. and

2

113732, the California Food, Drug and Cosmetic Act, including but not limited to

3

Health & Safety Code §110620, et seq. and analogous laws that prohibit the sale of

4

adulterated or misbranded food products, as well as principles or warranty that

5

prohibit the sales of adulterated or mislabeled food products or products that would

6

not pass without objection in the trade or industry. Such business acts and practices

7

also have a capacity, tendency, and/or likelihood to deceive or mislead reasonable

8

consumers in that such consumers had a good faith basis for believing the Products

9

would not be disseminated for sale to the public without containing harmful

10

chemicals, including lead.

11

48.

Defendant’s practices related to the marketing, distribution and sale of

12

the Products in such manner as set forth in detail above, therefore constitute unlawful,

13

unfair and/or deceptive business practices within the meaning of California Bus. &

14

Prof. Code §§17200, et seq.

15

49.

Pursuant to California Bus. & Prof. Code §17203, Plaintiff, on behalf of

16

herself and members of the Class and for the benefit of the general public, seeks an

17

order of this Court:

18

(a)

Enjoining Defendant from continuing to engage, use, or employ

19

any unlawful, unfair and/or deceptive business acts or practices

20

related to the marketing, distribution and sale of the Products for

21

the purpose of selling its Products without disclosing the material

22

facts set forth in detail above; and

23

(b)

Restoring all monies that have been acquired by Defendant as a

24

result of its committing such unlawful, unfair and/or deceptive

25

acts or practices.

26

50.

Plaintiff and members of the Class and the general public may be

27

irreparably harmed and/or denied an effective and complete remedy if such an order

28

is not granted.
19
CLASS ACTION COMPLAINT

51.

1

As a result of Defendant’s violation of the UCL, Plaintiff and members

2

of the Class are entitled to pre-and post- judgment interest in an amount according to

3

proof.
52.

4

Plaintiff and their counsel also seek an award of compensation,

5

attorneys’ fees and costs pursuant to the common fund and private Attorney General

6

doctrines as well as C.C.P. § 1021.5.
53.

7
8

Plaintiff seeks such other and further relief as the Court may deem

appropriate at time of trial based on the full use and extent of its equitable powers.

9

SECOND CAUSE OF ACTION

10

(Breach of Warranty)
54.

11
12

Plaintiff repeats and realleges all preceding paragraphs, as if fully set

forth herein.
55.

13

By virtue of its advertising and labeling of the Products in question,

14

Defendant provided Plaintiff and other members of the Class with written express

15

warranties indicating that the Products were safe for human consumption, including

16

consumption by children.

17

consumers with implied warranties imposed by operation of law that they were

18

merchantable and would pass without objection in the trade or industry. However, as

19

detailed above, these Products breached such warranties because the Products contain

20

lead and are not safe for human consumption, especially not for consumption by

21

children. Demands have been made and notice has been provided of such breaches,

22

but have not been fully responded to by the time this action was filed.
56.

23

As foodstuffs, the Products were also provided to

By virtue of the breach of the above warranties, Plaintiff and other

24

members of the Class have been damaged in an amount to be determined at trial in

25

that, among other things, they purchased and overpaid for products that did not

26

conform to what was promised as promoted, marketed, advertised, packaged and

27

labeled by Defendant, and were deprived of the benefit of their bargain.

28

///
20
CLASS ACTION COMPLAINT

1

THIRD CAUSE OF ACTION

2

(Assumpsit and Common Counts/Unjust Enrichment)

3
4
5

57.

Plaintiff repeats and realleges all preceding paragraphs, as if fully set

forth herein.
58.

By virtue of its sales of the Products, Defendant entered into a series of

6

implied at law contractual obligations. In purchasing the Products, plaintiff and the

7

Class members conferred a benefit on Defendant. Defendant has benefitted from its

8

unlawful acts pursuant to those obligations by receiving excessive revenue derived

9

from the sales of the Products. Defendant appreciated and/or knew the benefit of the

10

receipt of such excessive revenue. This excessive revenue has been had and received

11

by Defendant at the expense of Plaintiff and other members of the Class. Defendant

12

under the circumstances detailed above retained such benefits at the expense of

13

plaintiff and the class. Under such circumstances it would be unjust for Defendant to

14

be permitted to retain such benefits.

15

59.

The monies, revenues and profits derived from the sale of the Products

16

were unlawfully had and received by Defendant to the detriment of Plaintiff and the

17

Class. These excessive revenues and profits have been received by Defendant at its

18

request based on the promotion of the Products based on and resulting from monies

19

paid, laid out and expended by Plaintiff and other members of the Class, under

20

circumstances in which it would be unjust for Defendant to be permitted to retain

21

these benefits based on its misleading and deceptive conduct as detailed above.

22

Defendant did not provide Plaintiff or other members of the Class what they

23

bargained for, either explicitly or implicitly in terms of a product that was free from

24

toxic chemical contaminants. The Products were worthless when compared to what

25

Plaintiff and other members of the Class paid for them because the Products

26

contained lead.

27

60.

28

Plaintiff and other members of the Class are entitled to an order

requiring Defendant to return all monies by which it was unjustly enriched and to the
21
CLASS ACTION COMPLAINT

1

establishment of a constructive trust consisting of the benefit conferred upon

2

Defendant in the form of its excessive revenue derived from the sale of the Products

3

from which Plaintiff and other Class members may make claims for restitution.

4

FOURTH CAUSE OF ACTION

5

(Injunctive and Declaratory Relief)

6
7
8

61.

Plaintiff repeats and realleges all preceding paragraphs, as if fully set

forth herein.
62.

As set forth above, through the improper practices described above,

9

Defendant has misrepresented the content of the Products to Plaintiff and other

10

members of the Class.

11

63.

A dispute has arisen between the parties as to the scope of their

12

respective obligations, rights and responsibilities. Defendant’s practices described

13

herein are unlawful and against public policy. Therefore, Defendant’s practices

14

should be declared to be unlawful and Defendant should be prohibited and enjoined

15

from engaging in these practices and from failing and refusing to pay full restitution

16

and damages, as warranted under the law.

17
18
19
20
21
22

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment as follows, as applicable to the
particular Cause of Action:
(a)

Certification of the Class, certifying Plaintiff as representative of the

Class, and designating her counsel as counsel for the Class;

23

(b)

24

alleged herein;

25

(c)

26

alleged herein;

27

(d)

28

For a declaration that Defendant has committed the violations of law
For an injunction prohibiting Defendant from engaging in the conduct
For damages based on the violations of law alleged herein, the amount of

which is to be determined at trial;
22
CLASS ACTION COMPLAINT

1

(e)

For restitution;

2

(f)

For all other available forms of equitable monetary relief;

3

(g)

For pre- and post-judgment interest at the legal rate on the foregoing

4
5

sums; and
(h)

For such further relief as this Court may deem just and proper.

6
7
8

DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury on all claims so triable.
DATED: December 21, 2010

9

THE CONSUMER LAW GROUP
By:

10

ALAN M. MANSFIELD
[e-mail]
9466 Black Mountain Rd., Suite 225
San Diego, CA 92126
Tel: [phone]
Fax: [phone]

11
12
13

Joe R. Whatley, Jr. (NY SBN 4406088)
WHATLEY DRAKE & KALLAS
1540 Broadway, 37th Floor
New York, NY 10036
Tel: [phone]
Fax: [phone]
[e-mail]
(pro hac vice pending)

14
15
16
17
18

Marian S. Rosen (TX SBN 17263000)
MARIAN S. ROSEN & ASSOCIATES
5065 Westheimer Road, Suite 840
Houston, TX 77056
Tel: [phone]
Fax: [phone]
[e-mail]
(pro hac vice pending)

19
20
21
22

Attorneys for Plaintiff

23
24
25
26
27
28

23
CLASS ACTION COMPLAINT

Name & Address:

THE CONSUMER LAW GROUP
Alan M. Mansfield (SEN 125998)/[e-mail]

9466 Black Mountain Rd., Suite 225
San Diego, CA 92126
Tel: [phone] / Fax: [phone]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NICOLE CRAWFORD, on behalf of herself and all
CASE NUMBER
others similarly situated,

CVin

PLAINTIFF(S)
V.

THE HAIN CELESTIAL GROUP, INC., and DOES
1-10, inclusive,
SUMMONS
DEFEND ANT(S).

TO:

DEFENDANT(S): THE HAIN CELESTIAL GROUP, INC.

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it), you
must serve on the plaintiff an answer to the attached H complaint D
amended complaint
D counterclaim D cross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer
or motion must be served on the plaintiffs attorney, Alan M. Mansfield
, whose address is
9466 Black Mountain Road, Suite 225, San Diego, CA 92126
If you fail to do so,
judgment by default will be entered against you for the relief demanded in the complaint. You also must file
your answer or motion with the court.
Clerk, U.S. District Court
Dated:

2 8 DEC 2QM

By:

\/louL
Deputy Clerk
(Seal of the Court)

[Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee of the United States. Allowed
60 days by Rule 12(a)(3)].

CV-01A(12/07)

SUMMONS

ORIGINAL

UNITED STATb—>ISTRICT COURT, CENTRAL DISTRICT ^CALIFORNIA
CIVIL COVER SHEET
I (a) PLAINTIFFS (Check box if you are representing yourself D)

DEFENDANTS

NICOLE CRAWFORD

THE HAIN CELESTIAL GROUP, INC.

(b) Attorneys (Firm Name, Address and Telephone Number. If you are representing
yourself, provide same.)

Attorneys (If Known)

THE CONSUMER LAW GROUP/Alan M. Mansfield ([e-mail]
9466 Black Mountain Rd., Ste 225, San Diego, CA 92126
Tel: [phone] / Fax: [phone]
II. BASIS OF JURISDICTION (Place an X in one box only.)
O 1 U.S. Government Plaintiff

IIL CITIZENSHIP OF PRINCIPAL PARTIES- For Diversity Cases Only
(Place an X in one box for plaintiff and one for defendant)

D 3 Federal Question (U.S.
Government Not a Party)

0 2 U.S. Government Defendant

Citizen of This State

B4 Diversity (Indicate Citizenship Citizen of Another State
of Parties in Item III)

'F DEF
1 D1

Incorporated or Principal Place
of Business in this State

PTF DEF
D4 Q4

O2

D2

Incorporated and Principal Place D 5
of Business in Another State

H5

Citizen or Subject of a Foreign Country 133

D3

Foreign Nation

D6

D6

IV. ORIGIN (Place an X in one box only.)
H i Original
Proceeding

D 2 Removed from D 3 Remanded from
State Court
Appellate Court

V. REQUESTED IN COMPLAINT:

D 4 Reinstated or D 5 Transferred from another district (specify):
Reopened

D 6 MultiD 7 Appeal to District
District
Judge from
Litigation
Magistrate Judge

JURY DEMAND: S^Yes D No (Check'Yes'only if demanded in complaint.)

CLASS ACTION under F.R.C.P. 23: l/Yes 13 No

sfMONEY DEMANDED IN COMPLAINT: $ To Be Determined

VL CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.)
CAFA, 28 U.S.C. Section 1332, Consumer Class Action
m NATURE OF SUIT (Place an X in one box only.)
OTHERSTATUTES
D400 State Reapportionment
D410 Antitrust
D430 Banks and Banking
D450 Commerce/ICC
Rates/etc.
D460 Deportation
Q 470 Racketeer Influenced
and Corrupt
Organizations
D480 Consumer Credit
D490 Cable/Sat TV
D810 Selective Service
D 850 Securities/Commodities/
Exchange
D875 Customer Challenge 12
USC 3410
H890 Other Statutory Actions
D 891 Agricultural Act
D 892 Economic Stabilization
Act
D 893 Environmental Matters
D 894 Energy Allocation Act
D 895 Freedom of Info. Act
D900 Appeal of Fee Determination Under Equal
Access to Justice
D 950 Constitutionality of
State Statutes

CONTRACT
D 110 Insurance
D 120 Marine
O130 Miller Act
D 140 Negotiable Instrument
D 150 Recovery of
Overpayment &
Enforcement of
Judgment
D 151 Medicare Act
D 152 Recovery of Defaulted
Student Loan (Excl.
Veterans)
D 153 Recovery of
Overpayment of
Veteran's Benefits
D 160 Stockholders' Suits
3 190 Other Contract
D 195 Contract Product
Liability
D 196 Franchise
REALPROPERrHBI
3210 Land Condemnation
3 220 Foreclosure
D230 Rent Lease & Ejectment
3240 Torts to Land
Q245 Tort Product Liability
D290 All Other Real Property

TORTS
:
PERSONAL INJURY
O 3 10 Airplane
Q 3 1 5 Airplane Product
Liability
D320 Assault, Libel &
Slander
D330 Fed. Employers'
Liability
D340 Marine
D345 Marine Product
Liability
D350 Motor Vehicle
D355 Motor Vehicle
Product Liability
D 360 Other Personal
Injury
3 362 Personal InjuryMed Malpractice
O36S Personal InjuryProduct Liability
O 368 Asbestos Personal
Injury Product
Liabih'1
3 462 Naturalization
Application
D 463 Habeas CorpusAlien Detainee
(3465 Other Immigration
Actions

;
TORTS
.
PERSONAL
PROPERTY
Motions to
D370 Other Fraud
Vacate Sentence
D371 Truth in Lending
Habeas Corpus
D 380 Other Personal O 530 General
Property Damage D 535 Death Penalty
D385 Property Damage D 540 Mandamus/
Product Liabilii
Other
D 550 Civil Rights
D422 Appeal 28 USC D 555 Prison Condition
158
Q 423 Withdrawal 28
USC 157
D6IO Agriculture
IHTS . D620 Other Food &
Voting
Drug
D625 Drug Related
Employment
Seizure of
Housing/Accommodations
Property 21 USC
D444 Welfare
881
D630 Liquor Laws
D445 American with
Disabilities D640 R.R.& Truck
Employment
D650 Airline Regs
D 660 Occupational
D446 American with
Safety /Health
Disabilities D690 Other
Other
D 440 Other Civil
Rights

D710 Fair Labor Standards
Act
O720 Labor/Mgmt.
Relations
D730 Labor/Mgmt.
Reporting &
Disclosure Act
D740 Railway Labor Act
D790 Other Labor
Litigation
D791 Empl. Ret Inc.

Act
JC53TS
D820 Copyrights
D830 Patent
D84Q Trademark
D 861 HIA(1395ff)
D862 Black Lung (923)
D 863 DrWC/DIWW
(405(g))
D 864 SSID Title XVI
D 865 RSI(405

MBiL-

D870 Taxes (U.S. Plaintiff
or Defendant)
Q 871 IRS-Third Party 26
USC 7609

JL

FOR OFFICE USE ONLY:

Case Number:.

CVlU 99QQ

AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.
CV-71 (05/08)

CIVIL COVER SHEET

Page 1 of2

UNITED STA^i^ISTRICT COURT, CENTRAL DISTRICT^ CALIFORNIA
CIVIL COVER SHEET
VIII(»). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? [/No
If yes, 1 ist case numbers):

VHI(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? sftlo
If yes, list case numbers):

D Yes

D Yes

Civil cases are deemed related if a previously filed case and the present case:
(Check all boxes that apply) D A. Arise from the same or closely related transactions, happenings, or events; or
D B. Call for determination of the same or substantially related or similar questions of law and fact; or
D C. For other reasons would entail substantial duplication of labor if heard by different judges; or
D D. Involve the same patent, trademark or copyright, and one of the factors identified above in a, b or c also is present.
K. VENUE: (When completing the following information, use an additional sheet if necessary.)
(a) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named plaintiff resides.
D Check here if the government, its agencies or employees is a named plaintiff. If this box is checked, go to item (b).
County in this District:*

California County outside of this District; State, if other than California; or Foreign Country

Ventura

(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.
D Check here if the government, its agencies or employees is a named defendant. If this box is checked, go to item (c).
County in this District: *

California County outside of this District; State, if other than California; or Foreign Country

Delaware and New York

(c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose,
Note: In land condemnation cases, use the location of the tract of land involved.
California County outside of this District; State, if other than California; or Foreign Country

County in this District:*

All counties throughout California

* Los Angeles, Orange, San Bernardino, Riverside, Ventura, Santa Barbara, or San Luis Obispo Counties
Note: In land condemnation cases, use the location of the tract of land involved

x. SIGNATURE OF ATTORNEY (OR PRO PER):

J L • \«*

* s

Date

December 21. 2010

_

Notice to Counsel/Parties: The CV-71 (JS-44) Civil Cover Sheet and the information contained herein neither replace nor supplement the filing and service of pleadings
or other papers as required by law. This form, approved by the Judicial Conference of the United States in September 1 974, is required pursuant to Local Rule 3- 1 is not filed
but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)
Key to Statistical codes relating to Social Security Cases:
Nature of Suit Code

Abbreviation

Substantive Statement of Cause of Action

ggl

HIA

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended.
Also, include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the
program. (42U.S.C. 1935FF(b))

g62

BL

All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969.
(30 U.S.C. 923)

gg3

DFWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as
amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405(g))

gg3

DIWW

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security
Act, as amended. (42 U.S.C. 405(g))

gg4

SSID

All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security
Act, as amended.

865

RSI

All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42
U.S.C. (g))

CV-71 (05/08)

'

~~

CIVIL COVER SHEET

Page 2 of 2