Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 1 of 9 PageID: 1

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1 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 1 of 9 PageID: 1 Glenn S. Kerner, Esq. Carla Rose Karp, Esq. GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York Tel. (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com Attorneys for Defendant Supreme Protein, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY HAROLD M. HOFFMAN, individually and on behalf of those similarly situated, Case No. Plaintiff, v. NOTICE OF REMOVAL SUPREME PROTEIN, LLC, Defendant. Defendant Supreme Protein, LLC ( Supreme Protein ), by its attorneys, Goodwin Procter LLP, hereby removes the above-captioned action to the United States District Court for the District of New Jersey, pursuant to 28 U.S.C. 1332, 1441(a), 1446(a), and The grounds for removal are as follows: 1. This civil action was commenced in the Superior Court of the State of New Jersey, Bergen County Law Division, Docket No. BER-L-7843, in which plaintiff, Harold M. Hoffman, individually and on behalf of those similarly situated ( Plaintiff ), filed a nationwide class action Complaint against one defendant, Supreme Protein.

2 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 2 of 9 PageID: 2 2. This Notice of Removal is signed pursuant to Fed. R. Civ. P. 11. See 28 U.S.C. 1446(a). 3. Appended hereto as Exhibit A is a copy of all process, pleadings, and orders served upon Supreme Protein in the Superior Court of the State of New Jersey, Bergen County Law Division, namely, the summons, complaint, and civil case information statement. See 28 U.S.C. 1446(a). 4. The summons, complaint, and civil case information statement were received by Supreme Protein, via service upon The Corporation Trust Company, on October 15, Receipt of the summons, complaint, and case information statement by Supreme Protein was the first notice to Supreme Protein of this action. This Notice of Removal is being filed within thirty (30) days after receipt by Supreme Protein of the summons, complaint, and civil case information statement, and is, therefore, timely filed pursuant to 28 U.S.C. 1446(b). 5. In his Complaint, Plaintiff alleges that he and proposed class members suffered damages in purchasing Supreme Protein s Caramel Nut Chocolate Protein Bar (the Bar ). Specifically, Plaintiff alleges that the Bar s nutrition label under-represented the Bar s saturated fat and cholesterol content. He alleges that Supreme Protein is liable for purported violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. ( NJCFA ), and for purported common law fraud and unjust enrichment. (See Compl., Counts I-VII.) 6. The action filed by Plaintiff in the Superior Court of the State of New Jersey, Bergen County Law Division, is a class action as defined in 28 U.S.C. 1332(d)(1)(B). 7. Pursuant to 28 U.S.C. 1332, this Court has original jurisdiction over this action by reason of diversity of citizenship and an amount in controversy that exceeds the sum or value of five million dollars ($5,000,000), exclusive of interest and costs. 2

3 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 3 of 9 PageID: 3 8. This action may be removed to this Court pursuant to 28 U.S.C. 1441(a), which allows for the removal of any civil action brought in a state court of which the District Courts of the United States have original jurisdiction, by the defendant, to the District Court of the United States for the district and division embracing the place where such action is pending. 9. Pursuant to 1016 of the Judicial Improvements and Access to Justice Act of 1988 (the Act ), no bond is required in connection with this Notice of Removal. Pursuant to 1016 of the Act, this Notice need not be verified. 10. Appended hereto as Exhibit B is a copy of the Notice of Removal to All Adverse Parties, which will be promptly served upon counsel for Plaintiff Harold M. Hoffman, individually and on behalf of those similarly situated, pursuant to 28 U.S.C. 1446(d). 11. Appended hereto as Exhibit C is a copy of the Notice of Filing of Notice of Removal, which will be promptly filed with the Clerk of the Superior Court of the State of New Jersey, Bergen County Law Division, pursuant to 28 U.S.C. 1446(d). GROUNDS FOR REMOVAL 12. Supreme Protein removes this action pursuant to 28 U.S.C. 1332, 1441(a), 1446(a), and This Court has original jurisdiction over this action pursuant to 28 U.S.C. 1332(d)(2)(A). Specifically, this Court has jurisdiction over this putative class action under the Class Action Fairness Act of 2005 ( CAFA ), 28 U.S.C. 1332(d), because (1) the citizen of at least one putative class action member is different from the citizen of at least one defendant; (2) the putative class action consists of at least one hundred (100) putative class members; and (3) the amount in controversy, after aggregating the claims of the proposed class members, exceeds $5 million, exclusive of interests and costs. See 28 U.S.C. 1332(d). 3

4 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 4 of 9 PageID: 4 A. Diversity of Citizenship 13. Plaintiff is, and at the time the action was filed was, domiciled in the State of New Jersey. (Complaint 1 (Ex. A).) As such, Plaintiff is a citizen of the State of New Jersey for diversity purposes pursuant to 28 U.S.C Defendant Supreme Protein is a limited liability company. The sole member of Defendant Supreme Protein is Dymatize Enterprises, LLC, a limited liability company. The members of Dymatize Enterprises, LLC are: a. Dymatize Management Holdings, Inc., a corporation duly organized under the laws of the State of Delaware, with its principal place of business located in the State of Texas; b. TA/DEI-A Acquisition Corp., a corporation duly organized under the laws of the State of Delaware, with its principal place of business located in the State of Massachusetts; c. TA/DEI-B3 Acquisition Corp., a corporation duly organized under the laws of the State of Delaware, with its principal place of business located in the State of Massachusetts; d. TA/DEI-B2 Acquisition Corp., a corporation duly organized under the laws of the State of Delaware, with its principal place of business located in the State of Massachusetts; e. TA/DEI-B1 Acquisition Corp., a corporation duly organized under the laws of the State of Delaware, with its principal place of business located in the State of Massachusetts; and 4

5 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 5 of 9 PageID: 5 f. Dymatize Enterprises Equity Plan, LLC, which is a limited liability company. The members of Dymatize Enterprises Equity Plan, LLC are: i. Doug Fox, a resident of New York; ii. Brad Casper, a resident of Arizona; iii. Marc Mollere, a resident of Texas; iv. Gary Wilks, a resident of Texas; v. Brad Cooke, a resident of Texas; vi. Tim Batterson, a resident of Texas; vii. Robert Wildman, a resident of Texas; viii. Greg Venner, a resident of Texas; and ix. Rick Zuroweste, a resident of Texas. 15. As such, Supreme Protein is a citizen of the States of Delaware, Massachusetts, New York, Arizona, and Texas for diversity purposes pursuant to 28 U.S.C Accordingly, there exists minimal diversity of citizenship of the parties pursuant to 28 U.S.C. 1332(d)(2)(C) both at the time of filing of the action in the Superior Court of the State of New Jersey, Bergen County Law Division, and at the time of the filing of this Notice of Removal, in that at least one member of the putative, potential nationwide class of plaintiffs, including Plaintiff, is a citizen of a different state than is Supreme Protein. B. Number of Proposed Class Members 17. Plaintiff s Complaint states that the proposed Class presently consists of all nationwide purchasers of Supreme Protein Caramel Nut Chocolate Protein Bar for the six year period preceding the filing of this suit. (Compl., Overview.) The number of members of the putative nationwide class action brought by Plaintiff exceeds one hundred. See 28 U.S.C. 5

6 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 6 of 9 PageID: (d)(5)(B). C. Amount in Controversy 18. The aggregate value of the amount in controversy based on Plaintiff s allegations exceeds five million dollars ($5,000,000), exclusive of interest and costs. a. Plaintiff purports to disclaim in the Complaint that the amount in controversy is less than the $5,000,000 jurisdictional threshold required for diversity jurisdiction under CAFA. (Compl. 22.) However, removal is proper here after a fair reading of the Complaint and Notice of Removal. It appears to a legal certainty that Plaintiff and the class members can recover more than the CAFA jurisdictional amount of $5,000,000. b. Plaintiff s statement in the Complaint that [a]s to the putative plaintiff class, the amount in controversy in this action, including, without limitation, compensatory, treble, and/or punitive damages and counsel fees, is less than $5 million is a mere conclusory statement, without stating an exact sum sought in this action. Therefore, the Court must independently evaluate the amount in controversy, and, in so doing, may rely upon facts set forth in Supreme Protein s Notice of Removal as well as those alleged in Plaintiff s Complaint. c. Plaintiff does not specify the exact size of the proposed class, but he alleges that the class comprises all nationwide purchasers of Defendant s Supreme Protein Caramel Nut Chocolate Protein Bar for the six year period preceding the filing of this suit, (Compl., Overview) and is so numerous that joinder of all members is impracticable. (Id. 23.) Accordingly, the proposed class includes all 6

7 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 7 of 9 PageID: 7 nationwide purchasers of the Bar from approximately October 11, 2007 to October 11, d. Plaintiff alleges ascertainable loss in the form of actual out of pocket payment and expenditure for the purchase of the Supreme Protein Caramel Nut Chocolate Protein Bar. (Compl. 19.) e. From October 11, 2007 to October 11, 2013, Supreme Protein s total United States sales amount of the Bar exceeded $5 million. (See Exhibit D, Mollere Cert. 3.) f. Plaintiff also seeks punitive damages for alleged common law fraud. (See Compl., Count VI.) g. Plaintiff s Complaint alleges an ascertainable loss in the form of out of pocket payment and expenditures, and seeks judgment against [Supreme Protein] for treble damages together with pre-judgment and post-judgment interest, fees, costs, attorney s fees, [and] civil penalties under each of the five counts asserted under the NJFCA, and under the common law fraud count. Plaintiff also seeks [a]ll monies paid by class members to [Supreme Protein] for purchase of [the Bar], including all interest earned on by [Supreme Protein] on such monies under the unjust enrichment count. Based upon Supreme Protein s sales during the applicable time period, Plaintiff s damages sought, trebled under the NJFCA, far exceed the CAFA jurisdictional threshold minimum amount in controversy of $5 million. 7

8 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 8 of 9 PageID: 8 WHEREFORE, this action should proceed in the United States District Court for the District of New Jersey, as an action properly removed thereto. Dated: November 14, 2013 GOODWIN PROCTER LLP By: /s/glenn S. Kerner Glenn S. Kerner, Esq. Carla Rose Karp, Esq. The New York Times Building 620 Eighth Avenue New York, New York Tel. (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com Attorneys for Defendant Supreme Protein, LLC 8

9 Case 2:13-cv WJM-MF Document 1 Filed 11/14/13 Page 9 of 9 PageID: 9 LOCAL CIVIL RULE 11.2 CERTIFICATION Pursuant to L. Civ. R. 11.2, the undersigned attorney for Defendant, Supreme Protein, LLC, certifies that, to the best of his knowledge, the matter in controversy is not the subject of another action pending in any court or of any arbitration or administrative proceeding. CERTIFICATION OF NON-ARBITRABILITY Pursuant to L. Civ. R (d)(2), the undersigned attorney for Defendant, Supreme Protein, LLC, certifies that this action is not eligible for arbitration under Local Civil Rule because the relief sought in the Complaint involves complex legal issues and includes a demand for damages in excess of $5,000,000.00, exclusive of interest, costs, and any claim for punitive damages. By: /s/ Glenn S. Kerner Glenn S. Kerner, Esq. Carla Rose Karp, Esq. The New York Times Building 620 Eighth Avenue New York, New York Tel. (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com Attorneys for Defendant Supreme Protein, LLC 9

10 Case 2:13-cv WJM-MF Document 1-1 Filed 11/14/13 Page 1 of 20 PageID: 10 EXHIBIT A

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30 Case 2:13-cv WJM-MF Document 1-2 Filed 11/14/13 Page 1 of 3 PageID: 30 EXHIBIT B

31 Case 2:13-cv WJM-MF Document 1-2 Filed 11/14/13 Page 2 of 3 PageID: 31 Glenn S. Kerner, Esq. Carla Rose Karp, Esq. GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York Tel. (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com Attorneys for Defendant Supreme Protein, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY HAROLD M. HOFFMAN, individually and on behalf of those similarly situated, Case No. v. SUPREME PROTEIN, LLC, Plaintiff, Defendant. NOTICE OF REMOVAL TO ALL ADVERSE PARTIES PLEASE TAKE NOTICE, that on November 14, 2013, Defendant Supreme Protein, LLC filed a Notice of Removal of this action to the United States District Court for the District of New Jersey. A true and correct copy of the Notice of Removal is annexed hereto. This Notice is served upon you as counsel of record for Plaintiff Harold M. Hoffman, individually and on behalf of those similarly situated, in compliance with 28 U.S.C Dated: November 14, 2013 GOODWIN PROCTER LLP By: /s/glenn S. Kerner Glenn S. Kerner, Esq. Carla Rose Karp, Esq. The New York Times Building

32 Case 2:13-cv WJM-MF Document 1-2 Filed 11/14/13 Page 3 of 3 PageID: Eighth Avenue New York, New York (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com Attorneys for Defendant Supreme Protein, LLC 2

33 Case 2:13-cv WJM-MF Document 1-3 Filed 11/14/13 Page 1 of 3 PageID: 33 EXHIBIT C

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36 Case 2:13-cv WJM-MF Document 1-4 Filed 11/14/13 Page 1 of 3 PageID: 36 EXHIBIT D

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39 Case 2:13-cv WJM-MF Document 1-5 Filed 11/14/13 Page 1 of 3 PageID: 39 Glenn S. Kerner, Esq. Carla Rose Karp, Esq. GOODWIN PROCTER LLP The New York Times Building 620 Eighth Avenue New York, New York Tel. (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com Attorneys for Defendant Supreme Protein, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY HAROLD M. HOFFMAN, individually and on behalf of those similarly situated, Case No. Plaintiff, v. SUPREME PROTEIN, LLC, CERTIFICATION PURSUANT TO LOCAL CIVIL RULE 10.1(a) Defendant. Pursuant to Local Civil Rule 10.1(a), attached hereto as Exhibit A is a Service List that sets forth the names and addresses of each party, as well as counsel for each of the parties, in the above-captioned action. Dated: November 14, 2013 GOODWIN PROCTER LLP By: /s/glenn S. Kerner Glenn S. Kerner, Esq. Carla Rose Karp, Esq. The New York Times Building 620 Eighth Avenue New York, New York Tel. (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com

40 Case 2:13-cv WJM-MF Document 1-5 Filed 11/14/13 Page 2 of 3 PageID: 40 Attorneys for Defendant Supreme Protein, LLC 2

41 Case 2:13-cv WJM-MF Document 1-5 Filed 11/14/13 Page 3 of 3 PageID: 41 Plaintiff / Plaintiff s Counsel Harold M. Hoffman, Esq. 240 Grand Avenue Englewood, New Jersey Tel. (201) hoffman.esq@verizon.net Attorney for Plaintiff Harold M. Hoffman, individually and on behalf of those similarly situated EXHIBIT A Defendant Supreme Protein, LLC 2517 Hwy 35 Bldg J, Suite 201 Manasquan, NJ Defendant s Counsel Glenn S. Kerner, Esq. Carla Rose Karp, Esq. The New York Times Building 620 Eighth Avenue New York, New York Tel. (212) gkerner@goodwinprocter.com ckarp@goodwinprocter.com Attorneys for Defendant Supreme Protein, LLC 3

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