Case 3:17-cv Document 1 Filed 02/08/17 Page 1 of 38 ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Case 3:17-cv Document 1 Filed 02/08/17 Page 1 of WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP BETSY C. MANIFOLD (182450) RACHELE R. RICKERT (190634) BRITTANY N. DEJONG (258766) 750 B Street, Suite 2770 San Diego, CA Telephone: Facsimile: manifold@whafh.com rickert@whafh.com dejong@whafh.com WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP JANINE L. POLLACK MATTHEW M. GUINEY MICHAEL M. LISKOW (243899) 270 Madison Avenue New York, NY Telephone: 212/ Facsimile: 212/ pollack@whafh.com guiney@whafh.com liskow@whafh.com Counsel for Plaintiff UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL GOLDMAN, on behalf of himself and all others similarly situated, v. Plaintiff, BAYER AG, BAYER CORPORATION, and BAYER HEALTHCARE, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CLASS ACTION COMPLAINT JURY TRIAL DEMANDED CLASS ACTION COMPLAINT

2 Case 3:17-cv Document 1 Filed 02/08/17 Page 2 of Plaintiff Daniel Goldman ( Plaintiff ), by his undersigned counsel and on behalf of himself and all others similarly situated, complaining of defendants Bayer AG, Bayer Corporation and Bayer HealthCare, LLC (collectively, Bayer ), alleges upon information and belief as follows: PRELIMINARY STATEMENT 2. This is a proposed class action seeking redress for Bayer s deceptive practices in connection with the sale of ONE A DAY VitaCraves multivitamins ( ONE A DAY VitaCraves ). 3. Bayer deceptively misrepresents the number of days worth of multivitamins in each bottle of ONE A DAY VitaCraves in violation of various state consumer protection laws. 4. The Company has affirmatively represented that each bottle of ONE A DAY VitaCraves provides a certain number of days worth of vitamins when, in fact, each bottle contains only half of that number of days worth of vitamins. 5. More specifically, the principal display panel prominently states ONE A DAY and also prominently displays the number of gummies or chews contained in each bottle. Consequently, reasonable consumers purchasing a bottle of ONE A DAY VitaCraves understand that they should take one ONE A DAY VitaCraves per day, and that each bottle contains the number of days worth vitamins equal to the number of gummies in the bottle. 6. Reasonable consumers purchasing a bottle of ONE A DAY VitaCraves containing 70 gummies, for example, understand that the bottle contains 70 days worth of vitamins by virtue of taking one ONE A DAY VitaCrave each day for 70 days. 7. In fact, contrary to the prominent representation on the principal display panel on each bottle, consumers must take two ONE A DAY VitaCraves per day in order to receive one daily serving size of vitamins. As a consequence, a bottle of ONE A DAY VitaCraves containing 70 gummies provides only 35 days worth of vitamins because the recommended serving size is two ONE A DAY VitaCraves per day. /// /// CLASS ACTION COMPLAINT CASE NO

3 Case 3:17-cv Document 1 Filed 02/08/17 Page 3 of Because the principal display panel causes consumers to believe that each bottle contains precisely twice as many days worth of vitamins as is actually provided, the label is illegal and deceptive and reasonable consumers are likely to be deceived. JURISDICTION AND VENUE 9. This Court has jurisdiction over the subject matter of this action pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. 1332(d), and 28 U.S.C. 1332(a), because the aggregate amount in controversy exceeds $5,000,000 and there is diversity between plaintiff and a defendant. 10. Venue is proper in this District pursuant to 28 U.S.C. 1391(b). Defendant conducts substantial business in this District, has significant contacts with this District, and otherwise purposely avails itself of the markets in this District, through the promotion, sale and marketing of its products in this district. PARTIES Plaintiff 11. Plaintiff Daniel Goldman is an individual residing in Oakland, California. On or about December 19, 2016, during the class period (as defined below), Plaintiff purchased ONE A DAY VitaCraves from one or more retailers in California, including CVS, for personal, family or household purposes. The principal display panel on the bottle of ONE A DAY VitaCraves purchased by Plaintiff prominently advertised ONE A DAY at the top of the label along with the numeral 1 prominently displayed behind the phrase ONE A DAY as follows: The principal display panel also prominently indicated that the bottle contained 70 Gummies in total. Plaintiff read these representations namely, that the bottle contained 70 days worth of vitamins and relied upon them when purchasing ONE A DAY VitaCraves. Plaintiff was injured as a consequence of the misleading and deceptive principal display panel because the bottle contained only half of the number of days worth of vitamins as advertised. 12. On or about December 1, 2016, during the class period (as defined below), Plaintiff Goldman purchased ONE A DAY VitaCraves from one or more retailers in New York, including CVS, for personal, family or household purposes. The principal display panel on the CLASS ACTION COMPLAINT -2 -

4 Case 3:17-cv Document 1 Filed 02/08/17 Page 4 of bottle of ONE A DAY VitaCraves purchased by Plaintiff prominently advertised ONE A DAY at the top of the label along with the numeral 1 prominently displayed behind the phrase ONE A DAY as follows: The principal display panel also prominently indicated that the bottle contained 70 Gummies in total. Plaintiff read these representations namely, that the bottle contained 70 days worth of vitamins and relied upon them when purchasing ONE A DAY VitaCraves. Plaintiff was injured as a consequence of the misleading and deceptive principal display panel because the bottle contained only half of the number of days worth of vitamins as advertised. Defendants 13. Defendant Bayer AG is a German multinational chemical and pharmaceutical company headquartered in Leverkusen, Germany. 14. Defendant Bayer Corporation is an Indiana corporation and is wholly owned by Bayer AG and maintains its principle place of business at 100 Bayer Road, Pittsburgh, PA Defendant Bayer HealthCare, LLC is a Delaware limited liability company and wholly owned by Bayer Corporation. Bayer HealthCare, LLC s registered agent is located at 2711 Centerville Road, Suite 400, Wilmington, DE. Bayer HealthCare, LLC is responsible for the marketing, distribution, and sale of ONE A DAY VitaCraves to millions of consumers throughout the United States. Bayer HealthCare, LLC owns the trademark for both ONE A DAY and VitaCraves marks. 16. Bayer AG, Bayer Corporation and Bayer HealthCare, LLC are collectively referred to herein as Bayer. GENERAL ALLEGATIONS 17. Bayer markets and sells numerous multivitamin products under the ONE A DAY brand name. 18. Bayer s website explains that ONE A DAY multivitamins are designed specifically for men, women, children, the elderly and pregnant women. CLASS ACTION COMPLAINT -3 -

5 Case 3:17-cv Document 1 Filed 02/08/17 Page 5 of Bayer s ONE A DAY brand multivitamins come in a variety of forms (pill, small pill, gummy, chocolate-flavored chew or fruit-flavored chew) and purportedly provide a variety of health supports (eye health, heart health, bone health, immune health, physical energy, skin health, metabolism and prenatal). 20. One particular line of ONE A DAY multivitamins is Bayer s VitaCraves line of multivitamins. 21. As Bayer s website explains, You re always looking for new ways to enjoy a healthy lifestyle. ONE A DAY VitaCraves give you the nutritional support of a complete multivitamin in either a fruity, tasty gummy or ChewyBites, a hard-shelled, chocolatey, chewy bite. There s a flavor and a formula for everyone. Find the VitaCraves multivitamin that s right for you. One A Day VitaCraves Multivitamins, ONEADAY.COM, (last visited Feb. 7, 2017). 22. Bayer sells at least ten different ONE A DAY VitaCraves products including: ONE A DAY Women s VitaCraves Gummies; ONE A DAY Men s VitaCraves Gummies; ONE A DAY VitaCraves Gummies With Healthy Metabolism Support; ONE A DAY Teen for Her VitaCraves Gummies; ONE A DAY Teen for Him VitaCraves Gummies; ONE A DAY VitaCraves Gummies with Immunity Support; ONE A DAY VitaCraves Gummies With Omega- 3 DHA; ONE A DAY VitaCraves Regular Gummies; ONE A DAY VitaCraves Gummies with Energy Support; and ONE A DAY VitaCraves ChewyBites. 23. Bayer markets each of these ONE A DAY VitaCraves by prominently displaying the phrase ONE A DAY with the numeral 1 behind the ONE A DAY phrase on the principal display panel of each bottle. 24. Bayer also displays the number of gummies contained in each bottle prominently on the bottom right corner of the principal display panel. 25. An example is below: /// /// /// CLASS ACTION COMPLAINT -4 -

6 Case 3:17-cv Document 1 Filed 02/08/17 Page 6 of The principal display panel on each product line of ONE A DAY VitaCraves is identical to the multivitamin purchased by Plaintiff because each multivitamin line prominently bears the identical ONE A DAY direction and also prominently displays the number of gummies or chews contained in each bottle in precisely the same manner. 27. Attached hereto as Exhibits A - J are the principal display panels for each type of ONE A DAY VitaCraves. 28. Reasonable consumers purchasing a bottle of ONE A DAY VitaCraves understand that they should take one ONE A DAY VitaCraves gummy per day, and, consequently, that each bottle contains the number of days worth of vitamins equal to the number of gummies in each bottle. CLASS ACTION COMPLAINT -5 -

7 Case 3:17-cv Document 1 Filed 02/08/17 Page 7 of Reasonable consumers purchasing a bottle of ONE A DAY VitaCraves containing 70 gummies, for example, understand that the bottle contains 70 days worth of vitamins. Specifically, reasonable consumers understand that there are 70 days worth of gummies in each bottle by virtue of taking one ONE A DAY per day for 70 days. 30. In fact, contrary to the prominent representation on the front principal display panel on each bottle of ONE A DAY VitaCraves vitamins, consumers must take two ONE A DAY VitaCraves multivitamins per day to receive a single daily serving of vitamins. 31. A bottle of ONE A DAY VitaCraves vitamins containing 70 gummies provides just 35 days worth of vitamins because the serving size is two gummies or chews per day for each ONE A DAY VitaCraves product line. 32. Consequently, each bottle of ONE A DAY VitaCraves vitamins advertising a particular number of days worth of vitamins in fact contains only one half that number of days worth of vitamins. 33. ONE A DAY VitaCraves vitamins do not prominently display the actual days worth of vitamins per container on the front-facing principal display panel. Rather, each bottle of ONE A DAY VitaCraves vitamins advertises that it contains precisely double the actual days worth of vitamins as a consequence of the deceptive and misleading ONE A DAY terminology prominently displayed on the front-facing principal display panel facing customers on the shelves of a store. 34. Bayer only discloses the number of days worth of vitamins in each bottle of ONE A DAY VitaCraves vitamins on the supplemental facts panel on the back of the bottle the part of the label that consumers do not see when viewing ONE A DAY VitaCraves on the shelves of a store. 35. But reasonable customers should not be expected to look behind the misleading representations on the front of the bottle to discern the truth from the nutritional panel in small print on the back of the bottle. 36. Because the principal display panel causes consumers to believe that each bottle of ONE A DAY VitaCraves contains precisely twice as many days worth of vitamins as is CLASS ACTION COMPLAINT -6 -

8 Case 3:17-cv Document 1 Filed 02/08/17 Page 8 of actually provided, the label is illegal and deceptive and reasonable consumers are likely to be deceived. 37. For example, an article on Business Insider recounted one consumer s experience: A reader noticed that the bottle of One A Day VitaCraves (for adults) gummies that he bought actually instruct you to take two each day. There are 50 total gummies in a bottle, so it lasts for less than a month if used as instructed. He felt like he was completely misled. Kim Bhasin, One A Day Vitamin Gummies Instruct You to Take Two A Day, BUSINESS INSIDER (Sep. 6, 2012), (last visited Feb. 7, 2017) (emphasis in original). 38. Consequently, ONE A DAY VitaCraves front-facing principal display panels are false, misleading, unfair and deceptive because they advertise the number of gummies in each bottle along with the direction to take ONE A DAY. 39. To the best of Plaintiff s knowledge, every other line of ONE A DAY vitamins requires consumers to take just one vitamin pill or capsule per day to receive the recommended daily allowance of vitamins. 40. As a consequence of the front-facing principal display panels that misleadingly disclosed to buyers they needed to take just one gummy per day to receive a full serving size, Plaintiff and the Class paid, at the very least, precisely twice as much for the product in reliance on the misrepresentations about the quantity of product being purchased. 41. Indeed, Bayer s ONE A DAY VitaCraves gummy vitamins cost between $0.26 and $0.34 per serving whereas Bayer s other vitamin products, such as ONE A DAY Women s and ONE A DAY Men s Health Formula cost approximately $0.09 per serving. 42. The principal display panel causes consumers to believe that they are purchasing a number of days worth of vitamins equal to the number of gummies enclosed in each bottle. In fact, consumers are purchasing only half of that amount. Consequently, Bayer s claims are illegal and deceptive and reasonable consumers are likely to be deceived. 43. Plaintiff and the class incurred a financial injury upon purchasing ONE A DAY VitaCraves vitamins based upon Bayer s deceptive statements. CLASS ACTION COMPLAINT -7 -

9 Case 3:17-cv Document 1 Filed 02/08/17 Page 9 of Plaintiff and the class personally viewed the misrepresentations on the frontfacing principal display panel of each bottle of ONE A DAY VitaCraves gummy vitamins, were deceived by them, and were financially damaged as a result. 45. The Plaintiff and the Class would not have otherwise purchased ONE A DAY VitaCraves gummy vitamins absent the false and misleading representations or, at the very least, would not have paid as much as they did. 46. Bayer continues to advertise, distribute, label, manufacture market and sell ONE A DAY VitaCraves gummy vitamins in the false, misleading unfair and deceptive manner described herein. PLAINTIFF S CLASS ACTION ALLEGATIONS 47. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure ( Fed. R. Civ. P. ) 23. Plaintiff seeks to represent the following classes: a. National: All persons in the United States who purchased Bayer s ONE A DAY VitaCraves vitamins at any time during the applicable limitations period (the National Class or Class during the National Class Period ). Excluded from the Class are Defendants officers and directors and the immediate families of Defendants officers and directors. Also excluded from the National Class are the Defendants and their subsidiaries, parents, affiliates, joint venturers, and any entity in which Defendants have or have had a controlling interest. b. California: All persons who purchased Bayer ONE A DAY VitaCraves vitamins in the state of California within four years of the date of the filing of this complaint (the California Class ). Excluded from the California Class are Defendants officers and directors and the immediate families of Defendants officers and directors. Also excluded from the California Class are the Defendants and their subsidiaries, parents, affiliates, joint venturers, and any entity in which Defendants have or have had a controlling interest. c. New York: All persons who purchased Bayer ONE A DAY VitaCraves vitamins in the state of New York within three years of the date of filing of this CLASS ACTION COMPLAINT -8 -

10 Case 3:17-cv Document 1 Filed 02/08/17 Page 10 of complaint (the New York Class ). Excluded from the New York Class are Defendants officers and directors and the immediate families of Defendants officers and directors. Also excluded from the New York Class are the Defendants and their subsidiaries, parents, affiliates, joint venturers, and any entity in which Defendants have or have had a controlling interest. 48. For purposes of the complaint, the term Class refers collectively to the National, New York and California Classes, the phrase Class Members refers to all members of the Class, including the named Plaintiff, and the term Class Periods refers collectively to the National, New York and California Class Periods. 49. This action has been brought and may properly be maintained as a class action against Bayer pursuant to the provisions of Fed. R. Civ. P. 23 because there is a well defined community of interest in the litigation and there is an administratively feasible way to identify Class members. 50. Numerosity: Plaintiff does not know the exact size of the Class, but given the nature of the claims and Bayer s sales of ONE A DAY VitaCraves vitamins nationally, Plaintiff believes that Class Members are so numerous that joinder of all members of the Class is impracticable as Bayer sold hundreds of millions of dollars worth of ONE A DAY VitaCraves vitamins during the Class Period. 51. Common Questions Predominate: This action involves common questions of law and fact because each Class Member s claim derives from the same deceptive practices. The common questions of law and fact involved predominate over questions that affect only Plaintiff or individual Class Members. Thus, proof of a common or single set of facts will establish the right of each member of the Class to recover. Among the questions of law and fact common to the Class are: a. Whether Bayer marketed and sold ONE A DAY VitaCraves vitamins to Plaintiff, and those similarly situated, using deceptive statements or representations; b. Whether Bayer omitted or misrepresented material facts in connection with the marketing and sale of ONE A DAY VitaCraves vitamins; CLASS ACTION COMPLAINT -9 -

11 Case 3:17-cv Document 1 Filed 02/08/17 Page 11 of c. Whether Bayer engaged in a common course of conduct as described in this Complaint; d. Whether Bayer s marketing and sales of ONE A DAY VitaCraves vitamins constitutes a deceptive practice; and e. Whether, and to what extent, injunctive relief should be imposed on Bayer to prevent such conduct in the future. 52. Typicality: Plaintiff s claims are typical of the Class because all Class Members purchased products bearing Bayer s deceptive claims. Bayer s deceptive actions concern the same business practices described in this Complaint, irrespective of where they occurred or were received. The injuries and damages of each Class Member were caused directly by Bayer s illegal conduct as alleged in this Complaint. 53. Adequacy: Plaintiff will fairly and adequately protect the interests of all Class Members because it is in their best interests to prosecute the claims alleged in this Complaint to obtain full compensation they are due for Bayer s illegal conduct. 54. Plaintiff also has no interests that conflict with or are antagonistic to the interests of Class Members. Plaintiff has retained highly competent and experienced class action attorneys to represent their interests and that of the Class. No conflict of interest exists between Plaintiff and Class Members because all questions of law and fact regarding liability of Bayer are common to Class Members and predominate over the individual issues that may exist, such that by prevailing on their own claims, Plaintiff necessarily will establish Bayer s liability to all Class Members. Plaintiff and his counsel have the necessary financial resources to adequately and vigorously litigate this class action, and Plaintiff and counsel are aware of their fiduciary responsibilities to the Class Members and are determined to diligently discharge those duties seeking the maximum possible recovery for the Class Members. 55. Superiority: There is no plain, speedy, or adequate remedy other than by maintenance of this class action. The prosecution of individual remedies by members of the Class will tend to establish inconsistent standards of conduct for Bayer and result in the impairment of Class Members rights and disposition of their interests through actions to which CLASS ACTION COMPLAINT -10 -

12 Case 3:17-cv Document 1 Filed 02/08/17 Page 12 of they were not parties. Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of effort and expense that numerous individual actions would engender. Furthermore, as the damages suffered by each individual member of the Class may be relatively small, the expenses and the burden of individual litigation would make it difficult or impossible for individual members of the Class to redress the wrongs done to them, while an important public interest will be served by addressing the matter as a class action. 56. The prerequisites to maintaining a class action for injunctive or equitable relief pursuant to Fed. R. Civ. P. 23(b)(2) are met as Bayer has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive or equitable relief with respect to the Class as a whole. 57. The prerequisites to maintaining a class action for damages pursuant to Fed. R. Civ. P 23(b)(3) are met as the questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. 58. Plaintiff is unaware of any difficulties that are likely to be encountered in the management of this action that would preclude its maintenance as a class action. FIRST CAUSE OF ACTION Violations of California s Consumer Legal Remedies Act, California Civil Code 1750, et seq. (On Behalf of the California Class) 59. Plaintiff incorporates and re alleges the allegations set forth in paragraphs 1 through 58 above. 60. Plaintiff brings this claim individually and on behalf of the other members of the California Class. 61. This cause of action is brought pursuant to the California Consumers Legal Remedies Act, Cal. Civ. Code 1750, et seq. (the CLRA ). /// /// CLASS ACTION COMPLAINT -11 -

13 Case 3:17-cv Document 1 Filed 02/08/17 Page 13 of Bayer s actions, representations and conduct have violated, and continue to violate, the CLRA because they extend to transactions that are intended to result, or which have resulted, in the sale or lease of goods or services to consumers. 63. Plaintiff and the other California Class Members are consumers as that term is defined by the CLRA in California Civil Code section 1761(d). 64. The products that Plaintiff and other members of the California Class purchased from Defendant were goods within the meaning of California Civil Code section 1761(a). 65. Bayer intended to sell the product to, inter alia, Plaintiff and the members of the California Class. 66. Bayer has made and continues to make deceptive, false and misleading statements concerning the number of servings of ONE A DAY VitaCraves vitamins in each bottle. 67. Bayer violated the CLRA in at least the following respects: a. In violation of section 1770(a)(5), in that Bayer represented that each bottle of ONE A DAY VitaCraves has quantities which they do not have; and b. In violation of section 1770(a)(9), in that Bayer advertised ONE A DAY VitaCraves with intent not to sell them as advertised. 68. The acts and omissions of Bayer constitute unfair, deceptive and misleading business practices in violation of California Civil Code section 1770(a). 69. On December 29, 2016, Plaintiff sent notice to Bayer in writing, by certified mail, of the violations alleged herein and demanded that Bayer remedy those violations. 70. As of February 8, 2017, Bayer has not ceased the challenged conduct or responded to Plaintiff s demand letter. 71. As a result, Plaintiff now seeks actual, punitive, and statutory damages pursuant to the CLRA for the California Class. 72. The conduct by Bayer was malicious, fraudulent, and wanton in that Bayer intentionally and knowingly provided misleading information to the public. /// /// CLASS ACTION COMPLAINT -12 -

14 Case 3:17-cv Document 1 Filed 02/08/17 Page 14 of SECOND CAUSE OF ACTION Violation of California s Business & Professions Code, 17200, et seq. Unlawful, Unfair and Deceptive Business Acts and Practices (On Behalf of the California Class) 73. Plaintiff incorporates and re allege the allegations as set forth in paragraphs 1 through 72 above. 74. Defendants conduct as set forth herein constitutes unlawful, unfair and deceptive business acts and practices within the meaning of the California Business & Professions Code section 17200, et seq. 75. Defendants sold the Product in California during the relevant class period applicable to Plaintiff and the members of the California Class. 76. Defendants are each a person within the meaning of the Sherman Food Drug & Cosmetic Law, California Health & Safety Code section , et seq. (the Sherman Law ). 77. Defendants business practices, as described herein, are unlawful, unfair and deceptive under section 17200, et seq. by virtue of Defendants violations of the advertising provisions of Article 3 of the Sherman Law and the misbranded food provisions of Article 6 of the Sherman Law. 78. Defendants business practices are unlawful, unfair and deceptive under section 17200, et seq. by virtue of Defendants violations of section 17500, et seq., which forbids untrue and misleading advertising. 79. Defendants business practices are unlawful, unfair and deceptive under section 17200, et seq. by virtue of Defendants violations of the Consumers Legal Remedies Act, California Civil Code section 1750, et seq. 80. Defendants sold Plaintiff and the members of the California class the ONE A DAY VitaCraves, which were worth less than advertised, and Plaintiff and the members of the California Class paid a premium price for the multivitamins. 81. As a result of Defendants illegal, unfair and deceptive business practices, Plaintiff and the members of the California Class, pursuant to California Business and Professions Code section 17203, are entitled to an order enjoining such future conduct and such CLASS ACTION COMPLAINT -13 -

15 Case 3:17-cv Document 1 Filed 02/08/17 Page 15 of other orders and judgments which may be necessary to disgorge Defendants ill-gotten gains and to restore to Plaintiff and members of the California Class any money paid for ONE A DAY VitaCraves. THIRD CAUSE OF ACTION Violations of New York General Business Law 349 (On Behalf of the New York Class) 82. Plaintiff incorporates and re alleges the allegations as set forth in paragraphs 1 through 58 above. 83. Plaintiff brings this claim individually and on behalf of the other members of the New York Class for violations of New York s Deceptive Acts or Practices Law, Gen. Bus. Law Defendants have made and continue to make deceptive, false and misleading statements concerning the number of days worth of vitamins in each bottle of ONE A DAY VitaCraves vitamins, namely manufacturing, selling, marketing, packaging and advertising the products with false and misleading statements concerning the number of days worth of vitamins in each bottle. 85. Defendants intend to create consumer confusion by causing purchasers to believe they were purchasing double the number of days worth of vitamins than they were actually purchasing. 86. By the acts and conduct alleged herein, Defendants committed unfair or deceptive acts and practices. 87. The foregoing deceptive acts and practices were directed at consumers. 88. Plaintiff and the other Class members suffered a loss as a result of Defendants deceptive and unfair trade acts. FOURTH CAUSE OF ACTION (In the alternative) Unjust Enrichment (On Behalf of the National Class) 89. Plaintiff incorporates and re alleges the allegations set forth in paragraphs 1 through 58 above. CLASS ACTION COMPLAINT -14 -

16 Case 3:17-cv Document 1 Filed 02/08/17 Page 16 of As a result of Bayer s deceptive marketing and labeling of its ONE A DAY VitaCraves vitamins, as described above, Bayer was enriched, at the expense of Plaintiff and those similarly situated, through the payment of the purchase price for ONE A DAY VitaCraves vitamins. 91. Under the circumstances, it would be against equity and good conscience to permit Bayer to retain the ill gotten benefits that it received from Plaintiff and those similarly situated, in light of the fact that Plaintiff believed he was purchasing double the number of days worth of vitamins as they were actually purchasing but instead, Plaintiff received only half of what he believed he was purchasing. Thus, it would be unjust or inequitable for Bayer to retain the benefit without restitution to Plaintiff, and those similarly situated, for monies paid to Bayer for ONE A DAY VitaCraves vitamins. FIFTH CAUSE OF ACTION (In the alternative) California Common Law Regarding Breach of Express Warranty (On Behalf of the California Class) 92. Plaintiff incorporates and re alleges the allegations as set forth in paragraphs 1 through 58 above. 93. By operation of California law, Defendants entered into a contract with each member of the California class when the member purchased ONE A DAY VitaCraves vitamins in California. 94. By operation of California law, the terms of this contract included an express warranty incorporating the identical affirmation, promise and description by Defendants regarding ONE A DAY VitaCraves vitamins, made in writing on the label, that the Product contained the number of days worth of vitamins as the number of gummies in each bottle by virtue of advertising that the customer should take ONE A DAY. 95. The relevant terms and language of the express warranty between Defendants and each member of the California class are identical. 96. Defendants have breached the terms of this express warranty in an identical manner for each member of the California class because ONE A DAY VitaCraves vitamin CLASS ACTION COMPLAINT -15 -

17 Case 3:17-cv Document 1 Filed 02/08/17 Page 17 of bottles actually only one half of the number of days worth of vitamins in each bottle as advertised. 97. As a direct and proximate result of this breach of express warranty by Defendants, each member of the California class has suffered economic loss. CLASS ACTION COMPLAINT PRAYER FOR RELIEF THEREFORE, Plaintiff asks the Court to enter the following judgment: a. Approving of the Class, certifying Plaintiff as a representative of the Class, and designating his counsel as counsel for the Class; b. Declaring that Bayer has committed the violations alleged herein; c. Granting damages, restitution, or disgorgement to Plaintiff and the Class; d. Granting declaratory and injunctive relief to enjoin Defendant from engaging in the unlawful practices described in this Complaint; Procedure. e. Granting compensatory damages, the amount of which is to be determined at trial; f. Granting punitive damages; g. Granting pre and post judgment interest; h. Granting attorneys fees and costs; and i. Granting further relief as this Court may deem proper. JURY TRIAL DEMANDED Plaintiff hereby demands a trial by jury pursuant to Rule 38 of the Federal Rules of Civil DATED: February 8, 2017 Respectfully Submitted, WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP BETSY C. MANIFOLD RACHELE R. RICKERT BRITTANY N. DEJONG /s/ Rachele R. Rickert RACHELE R. RICKERT 750 B Street, Suite 2770 San Diego, California Telephone: 619/ Facsimile: 619/

18 Case 3:17-cv Document 1 Filed 02/08/17 Page 18 of manifold@whafh.com rickert@whafh.com dejong@whafh.com WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP JANINE L. POLLACK MATTHEW M. GUINEY MICHAEL M. LISKOW 270 Madison Avenue New York, New York Telephone: 212/ Facsimile: 212/ pollack@whafh.com guiney@whafh.com liskow@whafh.com Counsel for Plaintiff BAYER23668v2 CLASS ACTION COMPLAINT -17 -

19 Case 3:17-cv Document 1 Filed 02/08/17 Page 19 of 38 EXHIBIT A

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21 Case 3:17-cv Document 1 Filed 02/08/17 Page 21 of 38 EXHIBIT B

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23 Case 3:17-cv Document 1 Filed 02/08/17 Page 23 of 38 EXHIBIT C

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25 Case 3:17-cv Document 1 Filed 02/08/17 Page 25 of 38 EXHIBIT D

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27 Case 3:17-cv Document 1 Filed 02/08/17 Page 27 of 38 EXHIBIT E

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29 Case 3:17-cv Document 1 Filed 02/08/17 Page 29 of 38 EXHIBIT F

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31 Case 3:17-cv Document 1 Filed 02/08/17 Page 31 of 38 EXHIBIT G

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33 Case 3:17-cv Document 1 Filed 02/08/17 Page 33 of 38 EXHIBIT H

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35 Case 3:17-cv Document 1 Filed 02/08/17 Page 35 of 38 EXHIBIT I

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37 Case 3:17-cv Document 1 Filed 02/08/17 Page 37 of 38 EXHIBIT J

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39 JS-CAND 44 (Rev. 07/16) Case 3:17-cv Document 1-1 Filed 02/08/17 Page 1 of 2 CIVIL COVER SHEET The JS-CAND 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, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS Daniel Goldman, on behalf of himself and all others similarly situated (b) County of Residence of First Listed Plaintiff Alameda County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) Rachele R. Rickert (190634) WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770, San Diego, CA Tel: 619/ ; Fax: 619/ II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an X in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC False Claims Act 120 Marine 310 Airplane 365 Personal Injury of Property 21 USC Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC (a)) 140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust Of Veteran s Benefits Slander Personal Injury 820 Copyrights 430 Banks and Banking 151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation Student Loans 340 Marine Injury Product 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit of Veteran s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV 160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/ 190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange 195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions 196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts 362 Personal Injury - Product Liability Leave Act 893 Environmental Matters Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration 220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure 230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS Third Party Act/Review or Appeal of 240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision 245 Tort Product Liability Accommodations 530 General 950 Constitutionality of 290 All Other Real Property 445 Amer. w/disabilities 535 Death Penalty IMMIGRATION State Statutes Employment Other: 462 Naturalization Application 446 Amer. w/disabilities 540 Mandamus & Other 465 Other Immigration Other 550 Civil Rights Actions 448 Education 555 Prison Condition 560 Civil Detainee Conditions of Confinement V. ORIGIN (Place an X in One Box Only) 1 Original Proceeding VI. CAUSE OF ACTION 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened Bayer AG, Bayer Corporation, and Bayer HealthCare, LLC 5 Transferred from Another District (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Cal. Civ. Code 1750, et seq.; Cal. Bus. & Prof. Code 17200; NY Gen. Bus. Law Multidistrict Litigation Transfer 8 Multidistrict Litigation Direct File Brief description of cause: Violations of: CA's Consumer Legal Remedies Act; Unlawful Business Acts and Practices; NY Deceptive Acts or Practices Law; Unjust Enrichment; Breach of Express Warranty VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, Fed. R. Civ. P. JURY DEMAND: Yes No VIII. RELATED CASE(S), IF ANY (See instructions): JUDGE DOCKET NUMBER IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2) (Place an X in One Box Only) SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE DATE: 02/08/2017 SIGNATURE OF ATTORNEY OF RECORD: /s/ Rachele R. Rickert

40 JS-CAND 44 (rev. 07/16) Case 3:17-cv Document 1-1 Filed 02/08/17 Page 2 of 2 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44 Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the defendant is the location of the tract of land involved.) c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section (see attachment). II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an X in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. (1) United States plaintiff. Jurisdiction based on 28 USC 1345 and Suits by agencies and officers of the United States are included here. (2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an X in this box. (3) Federal question. This refers to suits under 28 USC 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. (4) Diversity of citizenship. This refers to suits under 28 USC 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an X in one of the six boxes. (1) Original Proceedings. Cases originating in the United States district courts. (2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC When the petition for removal is granted, check this box. (3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. (4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. VI. (5) Transferred from Another District. For cases transferred under Title 28 USC 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. (6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC When this box is checked, do not check (5) above. (8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket. Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553. Brief Description: Unauthorized reception of cable service. VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Federal Rule of Civil Procedure 23. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated. Date and Attorney Signature. Date and sign the civil cover sheet.