[email protected] [email protected] HSN is a marketing company that promotes and sells...

Case3:14-cv-01034 Document1 Filed03/05/14 Pagel of 36

1 Farrah Mirabel (SBN 162933)LAW OFFICES OF FARRAH MIRABEL

2 4590 MacArthur Blvd., Suite 2803 Newport Beach, CA 92660

Tel. (949) 752-07074Fax (949) 752-0779

5 [email protected]

J. Kirk Donnelly (SBN 179401)7LAW OFFICES OF J. KIRK DONNELLY, APC

8 7668 El Camino Real, Suite 104-760

'9 Carlsbad, CA 92009Tel. (760) 634-5700

10 Fax (760) 634-570111 [email protected]

Counsel for PLAINTIFF ALLEN MOSHIRI13

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA-SAN FRANCISCIO DWISION

16 ALLEN MOSHIRI, individually, and Case No.:on behalf of all others similarly17 Assigned to:situated,

18 Plaintiffs,19

v20.

21 HSNi, LLC, dba Home Shopping Network, CLASS ACTION COMPLAINT22 a Delaware Limited Liability Company;

MARTHA STEWART LIVING23 OMNIMEDIA, INC., a Delaware24 Corporation; EMERIL'S HOMEBASE,25 LLC, a Louisiana Limited Liability

Company; EMERILS.COM, LLC, a26 Louisiana Limited Liability Company; and

JURY TRIAL DEMANDED27 DOES 1 through 20, inclusive,

28 Defendants.

1

CLASS ACTION COMPLAINT

Case3:14-cv-01034 Document1 Filed03/05/14 Page2 of 36

1 PlaintiffAllen Moshiri ("Plaintiff'), on behalf of himself and all others

2 similarly situated, alleges for his Complaint against HSNi, LLC dba Home

3 Shopping Network (hereafter "HSN"), Martha Stewart Living Omnimedia, Inc.

4 (hereafter "MSLO"), Emeril's Homebase, LLC (hereafter "Emeril's-HB"),5 Emerils.com LLC, and DOES 1-20, inclusive, (all defendants hereafter referred to

6 collectively as "Defendants") as follows:

7 NATURE OF THE ACTION

8 1. This class action involves Defendants' unfair, unlawful, and

9 fraudulent course of conduct in promoting, advertising, offering for sale, and

10 selling products through material misrepresentations and omissions as to the place11 of origin and quality of said products. More specifically, Defendants have

12 promoted, advertised and sold various kitchen knives and knife sets under the

13 "EMERILTM" brand name that Defendants represented were manufactured in

14 Solingen, Germany- an area world famous for producing high quality cutlery.15 Contrary to Defendants' representations, these knives and knife sets were

16 manufactured in China. The knives and knife sets in question (hereafter the

17 "Counterfeit Knives") bear on one side of the blade the "EMERILTm" mark and

18 the words "SOLINGEN GERIVIANY" but on the other side of blade is stamped thc

19 word "CHINA." Moreover, the Counterfeit Knives are not of the high quality20 associated with knives from Solingen, Germany, nor of the quality represented by21 Defendants. Many consumers have posted complaints and/or product reviews

22 stating that, inter alia, the knife blades rust easily, lose their edge, and that the

23 blades chip and break easily. Defendants' representations as to place of origin and

24 high quality of the Counterfeit Knives were made through multiple marketing and

25 advertising channels including television, Internet, phone sales, and, possibly at

26 brick and mortar stores. Upon information and belief, during the relevant time

27 period, Defendants promoted, advertised, offered for sale, and sold at least twelve

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1 different types of Counterfeit Knives through material misrepresentations and

2 material omissions common to the entire class.

3 2. Defendants' unfair, unlawful, and fraudulent practices have

4 significantly and substantially harmed Plaintiff and the Class, who have paid5 millions for poor quality products with a false designation of geographical origin6 that they likely would not have purchased but for Defendants' unlawful conduct.

7 JURISDICTION AND VENUE

8 3. This Court has jurisdiction over all causes of action asserted in this

9 complaint pursuant to 28 U.S.C. Section 1332(a). Plaintiff alleges there is

10 minimal diversity of citizenship among the parties, as Plaintiff is informed and

11 believes and thereon alleges that Defendants are incorporated or organized in the

12 States ofDelaware, Louisiana and Florida, and maintain their principal places of

13 business in New York, New York, St. Petersburg, Florida, and New Orleans,14 Louisiana. Plaintiff is a resident and citizen of California. There are more than

15 100 class members and the amount in controversy exceeds $5,000, 000.00,16 exclusive of interest and costs. The Court has personal jurisdiction over

17 Defendants, which have at least minimum contacts with the State of California18 because they have conducted business there and have availed themselves of

19 California's markets through their distribution, promotion, advertising and sales o

20 the Counterfeit Knives.

21 4. Venue is proper in this District pursuant to 28 U.S.C. Section

22 1391(a) because a substantial part of the wrongful acts, events and transaction

23 which form the basis of this complaint took place within this district.

24 THE PARTIES

25 5. Plaintiff is an individual residing in and is a citizen of the State of

26 California. In and around July 2012, after being exposed to and relying on

27 Defendants' representations as to the place of origin and quality of the Counterfeit

28 Knives, Plaintiff purchased from Defendants a five inch "santoku" kitchen knife

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1 that Defendants represented was manufactured in Solingen, Germany but that

2 actually was manufactured in China. Moreover, the knife was not of the

3 represented high quality, as shortly after Plaintiff received the knife the blade

4 began to rust and the edge began to dull. Plaintiff would not have purchased the

5 knife had he known truth about Defendants'

representations as to the place of origin and quality of the knife. By purchasing7 the falsely advertised product, Plaintiff suffered injury-in-fact and lost money.8 6. Plaintiff is informed and believes and based thereon alleges that

9 Defendant HSN is a Delaware Limited Liability Company with its principal place10 ofbusiness in St. Petersburg, Florida. Defendant HSN conducts business in this

11 judicial district, including promoting, advertising, offering for sale and selling the

12 Counterfeit Knives.

13 7. Plaintiff is informed and believes and based thereon alleges that

14 Defendant MSLO is a Delaware Corporation with its principal place of business in

15 New York, New York. Defendant MSLO conducts business in this judicial16 district, including promoting, advertising, offering for sale and selling the

17 Counterfeit Knives.


19 Defendant Emeril's-HB is a Louisiana Limited Liability Company with its

20 principal place of business in New Orleans, Louisiana. Defendant Emeril's-HB

21 conducts business in this judicial district, including promoting, advertising,22 offering for sale and selling the Counterfeit Knives.


24 Defendant Emerils.com is a Louisiana Limited Liability Company with its

25 principal place of business in New Orleans, Louisiana. Defendant Emerils.com

26 conducts business in this judicial district, including promoting, advertising,27 offering for sale and selling the Counterfeit Knives.

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1 10. The true names and capacities of the defendants sued herein as DOES

2 one through twenty, inclusive, currently are unknown to Plaintiff, who therefore

3 sues such defendants by fictitious names. Each of the defendants designated4 herein as a DOE is legally responsible for the unlawful acts alleged herein.

5 Plaintiff will seek leave of court to amend this complaint to reflect the true names

6 and capacities of the DOE defendants when such identities become known.

7 11. At all relevant times, each and every Defendant was acting as the

8 agent and/or employee of each and every other Defendant, and was acting within

9 the course and/or scope of such agency and/or employment with the full

10 knowledge and consent of each of the Defendants. Each of the acts and/or

11 omissions complained of herein were alleged and made known to, and ratified by,12 each of the other Defendants.

13 FACTUAL ALLEGATIONS

14 12. Defendant MSLO is a diversified media and merchandising15 corporation founded by Martha Stewart, the television personality and lifestyle16 maven. Upon information and belief, in and around February 2008 MSLO signed17 an agreement with Emeril Lagasse, the famous celebrity chef, and his various

18 companies, including defendants Emeril's-BB and Emerils.com, assigning the

19 EMERILTm brand to MSLO. Accordingly, MSLO, at all relevant times, was and

20 is the current owner of the EIVIIERILTM brand, and MSLO is responsible for and in

21 •charge of the EMERILTm brand. Since the assignment to MSLO, various

22 companies owned and/or controlled by Lagasse and/or MSLO, including without

23 limitation defendants Emeril's-HB and Emerils.com, have promoted, advertised,24 offered for sale, and sold EMERrLTm branded products nationally through various

25 "Emeril" websites (including without limitation www.emeril.com,26 www.emerils.com, www.emerilstore.corn, www.emerilware.com (hereafter27 collectively referred to as the "Emeril Websites")), through advertising and sales

28 on the Internet, and, possibly, by telephone and other means.

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1 13. Defendant HSN is a marketing company that promotes and sells

2 products nationally, through television "infomercials" and advertising and sales oi

3 the internet and by telephone. HSN claims to offer an innovative, differentiated

4 retail experience on TV, online, via mobile, and in brick-and-mortar stores in

5 Florida. Upon information and belief, HSN sells assorted products and name

6 brands, and broadcasts live 24 hours a day, seven days a week, 364 days a year,

7 reaching approximately ninety-six million (96,000,000) homes. At all relevant

8 times, HSN regularly promoted, advertised, offered for sale, and sold EIVIERILTM

9 brand products (which brand was and is owned by MSLO) on the HSN website,10 through "infomercial" TV shows, by telephone, and possibly in other retail outlets

11 14. Upon information and belief, since at least 2010 and possibly earlier,12 Defendants individually and together have distributed, advertised, promoted,13 offered for sale, and sold EmerilTM brand cutlery marked "SOLINGEN

14 GERMANY" that was not manufactured in Solingen, Germany, but was actually15 made in China, i.e. the Counterfeit Knives. Upon information and belief, during16 the relevant time period, Defendants offered and sold at least twelve different

17 types of Counterfeit Knives, where the knives each are branded with the signature18 trademark "EMERILTm" and the words "SOLINGEN GERMANY" together on

19 one side of the blade, and the word "CHINA" on the other side of the blade. Upon20 information and belief, the Counterfeit Knives are made in China and shipped21 from China to the United States either directly or indirectly. Defendants have,22 individually and/or together, distributed, promoted, advertised, offered for sale,23 and sold the Counterfeit Knives to the consuming public, including Plaintiff and

24 the Class members, in interstate commerce.

25 15. Notwithstanding the fact that the Counterfeit Knives are marked

26 "SOLINGEN GERMANY" on one side of the product and "CHINA" on the other

27 side, Defendants represented to the public that the Counterfeit Knives were

28 certified as being made in Solingen, Germany, when in fact they were made in

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1 China. Defendants falsely represented to the public that the EMERILTM brand

2 Counterfeit Knives are made in Solingen, Germany though various means, with

3 the misrepresentations being made in advertisements, promotions, offers, and sale:

4 occurring over the Internet, during nationally televised promotional shows, and

5 through telephone sales. Upon information and belief, Lagasse personally has

6 appeared on the HSN website through playable video clips and in "infomercials"

7 sponsored and produced by HSN to promote and sell products, including the

8 Counterfeit Knives, and Lagasse has personally endorsed the Counterfeit Knives

9 on the HSN web site and in nationally televised infomercials aired on HSN.

10 16. Upon information and belief, "Solingen" is a name representative of

11 the finest quality of Germany cutlery and other German products. Manufactured

12 in Solingen, Germany, cutlery sold under the name "Solingen" certifies that the

13 goods sold under that brand are of a certain origin and comply with extremely higi14 and specific standards ofmanufacture. The products made in Solingen are of a

15 particularly high quality with high-grade materials, made by qualified workers,16 and known for excellence in craftsmanship. The products are renowned around the

17 world and are appreciated for their high quality. Special legislation in Germany,18 referred to as the "Solingen Decree, requires that goods marked with "Solingen"19 meet strict conditions regarding materials and quality ofmanufacture. The

20 Solingen Certification Mark also is federally registered with the United States

21 Patent and Trademark Office, having Registration No. 0987576. The SOLINGEN

22 Certification Mark registered on the Principal Register specifies that "[t]he mark

23 certifies both regional origin and also that the goods comply with statutory quality24 standards relating to raw materials and methods of manufacture."

25 17. Defendants' misrepresentations that the Counterfeit Knives were

26 made in Solingen, Germany, were designed to and did mislead consumers into

27 believing that the Counterfeit Knives were high quality German-made cutlery28 manufactured with high-grade materials by qualified workers known for

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1 excellence in craftsmanship. Upon information and belief, consumers have

2 submitted reviews and comments regarding the Counterfeit Knives wherein they,3 like Plaintiff, state they were misled by Defendants' representations regarding the

4 place of manufacture of the Counterfeit Knives, and that the belief that the

5 Counterfeit Knives were made in Germany, not China, was a key factor in their

6 decision to make the purchase, and/or they would not have purchased the

7 Counterfeit Knives had they known the truth.

8 18. Defendants' representations, express and implied, as to quality of the

9 Counterfeit Knives also were false and deceptive. The Counterfeit Knives do not,10 cannot, and will not perform as promised. The Counterfeit Knives actually are not

11 made of the high quality materials, nor made with the excellence of craftsmanship,12 required of cutlery from Solingen, Germany and made in accordance with the

13 Solingen Decree and the federally registered "Solingen" mark. Indeed, Plaintiffs

14 Counterfeit Knife began to rust after only a few weeks of use and, upon

15 information and belief, other consumers who purchased the Counterfeit Knives

16 also have complained that the knives rusted easily, that the blades chipped and

17 broke easily, that the blades broke in half; and/or that the cutting edge quickly18 dulled.

19 19. As distributors, promoters, advertisers and vendors of the Counterfeit

20 Knives, Defendants were in a superior position to know the actual place of

21 manufacture of the Counterfeit Knives, the actual quality of the materials used to

22 make the Counterfeit Knives, the actual level of craftsmanship used to make the

23 Counterfeit Knives, and whether the Counterfeit Knives would perform as

24 promised.25 20. Specifically, Defendants knew the Counterfeit Knives were made in

26 China but nevertheless still promoted, advertised and represented that the

27 Counterfeit Knives were made in Solingen, Germany. Additionally, the

28 Defendants knew that the Counterfeit Knives were not made with the same quality

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1 ofmaterials or craftsmanship required by the Solingen Decree and the federally2 registered "Solingen" mark, and associated with German-made cutlery.3 21. Plaintiff and the class members relied upon Defendants'

4 misrepresentations and would not have paid as much, if at all, for the Counterfeit

5 Knives but for Defendants' misrepresentations and/or omissions.

6 CLASS ALLEGATIONS

7 22. Class Definition. Plaintiff purchased from Defendants a

8 counterfeit five inch "santoku" kitchen knife that Defendants represented was

9 manufactured in Solingen, Germany but that actually was manufactured in

10 China. Upon information and belief, during the class period set forth below,11 Defendants marketed and sold in the United States at least twelve different

12 types of counterfeit knives and knife sets, all ofwhich Defendants represented13 were manufactured in Solingen, Germany but that actually were manufactured

14 in China. Plaintiff seeks to bring this lawsuit as a class action pursuant to

15 Federal Rule of Civil Procedure Rule 23. The class that Plaintiff seeks to

16 represent is defined as follows: "All consumers in the United States who

17 purchased from Defendants a counterfeit knife or knives that were represented18 by Defendants as having been manufactured in Germany but that in fact were

19 manufactured in China, at any time during the period commencing on the date

20 that is four years preceding the filing of the complaint."21 23. Ascertainable Class. The proposed class is ascertainable in that

22 class members can be identified and located using information contained in

23 Defendants' business records.

24 24. Common Questions of Fact or Law. This lawsuit is suitable for

25 class treatment because common questions of fact and law predominate over

26 individual issues. Common questions include, but are not limited to, the

27 following: (1) whether Defendants' representations as to the place of

28 manufacture of the Counterfeit Knives were false; (2) whether Defendants

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Case3:14-cv-01034 Document1 Filed03/05/14 Pagel0 of 36

1 knew that their representations as to the place ofmanufacture of the

2 Counterfeit Knives were false; (3) whether Defendants' representations,3 actual or implied, as to the quality of the Counterfeit Knives were false; (4)4 whether Defendants knew their representations, actual or implied, as to the

5 quality of the Counterfeit Knives were false; (5) whether Defendants' conduct

6 constitutes an unfair, unlawful and/or fraudulent business practice in violation

7 of California's false advertising law (Cal. Bus. & Prof. Code sections 17500,8 et seq.); (6) whether Defendants' conduct constitutes an unfair, unlawful

9 and/or fraudulent business practice in violation of California's unfair

10 competition law (Cal. Bus. & Prof. Code sections 17200, et seq.); (7) whether

11 Defendants' conduct constitutes a violation of California's Consumer Legal12 Remedies Act (Cal. Civil Code sections 1750, et seq.); (8) whether Plaintiff

13 and the class members are entitled to compensatory damages and, if so, the

14 nature of such damages; and (9) whether Plaintiff and the class members are

15 entitled to restitution.

16 25. Numerosity. The plaintiff class is so numerous that the

17 individual joinder of all members is impractical under the circumstances of

18 this case. While the exact number of class members is unknown to Plaintiff at

19 this time, Plaintiff alleges that the total number of Class members exceeds 100

20 and likely consists of thousands ofmembers. The number of Class members

21 can be readily determined by review ofDefendants' business records.

22 26. Typically and Adequate Representation. Plaintiff s claims are

23 typical of the claims of the class members. Plaintiff suffered a similar injury24 as the other class members as a result of Defendants' common actions in

25 misrepresenting the place ofmanufacture of the knives purchased by Plaintiff

26 and the class members and further misrepresenting the quality of the knives

27 purchased by Plaintiff and the class members. In addition, Plaintiffwill fairly28

10CLASS ACTION COMPLAINT


1 and adequately protect the interests of the members of the class. Plaintiff has

2 no interests that are adverse to the interests of the other class members.

3 27. Superiority. A class action is superior to other available means

4 for the fair and efficient adjudication of this controversy since individual

5 joinder of all members of the class is impractical. Class action treatment will

6 permit a large number of similarly situated persons to prosecute their common

7 claims in a single forum simultaneously, efficiently, and without the

8 unnecessary duplication of effort and expense that numerous individual

9 actions would engender. Furthermore, as the damages suffered by each

10 individual member of the class may be relatively small, the expenses and

11 burden of individual litigation would make it difficult or impossible for

12 individual members of the class to redress the wrongs done to them, while an

13 important public interest will be served by addressing the manner as a class

14 action. The cost to the court system of adjudication of such individualized

15 litigation would be substantial. Individualized litigation would also present16 the potential for inconsistent or contradictory judgments.17 CLAIMS FOR RELIEF

18 FIRST CAUSE OF ACTION

19 (VIOLATION OF CALIFORNIA'S FALSE ADVERTISING LAW)20 (CAL. BUS. & PROF. CODE SECTIONS 17500, et seq.)21 28. Plaintiff incorporates by this reference the allegations contained

22 in paragraphs above as though fully set forth herein.

23 29. Plaintiff has standing to pursue this cause of action because

24 Plaintiff suffered injury in fact and lost money as a result of Defendants'

25 actions as set forth herein. Plaintiff and the other Class members suffered

26 injury in fact and lost money as a result ofpurchasing the falsely advertised

27 Counterfeit Knives and Defendants' unlawful, unfair, and fraudulent practices.28

11CLASS ACTION COMPLAINT


1 30. Defendants engaged in false advertising as they disseminated false

2 and/or misleading advertising, marketing, and promotional representations about

3 the Counterfeit Knives including, inter alia, false representations as to their place4 of manufacture, their quality of materials and manufacture, and their superior5 performance.6 31. Defendants knew or, in the exercise of reasonable care, should have

7 known their representations regarding the Counterfeit Knives were false and/or

8 misleading. During the Class Period, Defendants engaged in false advertising in

9 violation of Cal. Bus. & Prof. Code sections 17500, et seq., by misrepresenting in

10 their labeling, advertising and marketing to Plaintiff and the Class and the

11 consuming public that the Counterfeit Knives were manufactured in Germany,12 were of the high quality materials and craftsmanship expected of German-made

13 cutlery, and would perform as such.

14 32. By disseminating and publishing these statements in connection with

15 the sale of the Counterfeit Knives, Defendants engaged in false advertising in

16 violation of Cal. Bus. & Prof. Code sections 17500, et seq.

17 33. As a direct and proximate result ofDefendants' conduct as set forth

18 herein, Defendants have received ill-gotten gains and/or profits, including but not

19 limited to money. Therefore, Defendants have been unjustly enriched. Pursuant

20 to Cal. Bus. & Prof. Code section 17535, Plaintiff requests restitution and

21 restitutionary disgorgement for all sums obtained by Defendants in violation of

22 Cal. Bus. & Prof. Code Sections 17500, et seq. Plaintiff seeks restitution, and

23 restitutionary disgorgement of Defendants' ill-gotten gains as specifically24 provided in Cal. Bus. & Prof. Code Section 17535, along with prejudgment25 interest, costs, and attorney's fees as permitted by law.

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1 SECOND CAUSE OF ACTION

2 (VIOLATION OF CALIFORNIA'S UNFAIR COMPETITION LAW1

3 (CAL. BUS. & PROF. CODE SECTIONS 17200, et seq.)4 34. Plaintiff incorporates by this reference the allegations contained


6 35. Plaintiff has standing to pursue this cause of action because Plaintiff

7 has suffered injury in fact and has lost money as a result ofDefendants' actions as

8 set forth herein. Specifically, Plaintiff purchased a Counterfeit Knife in reliance

9 upon Defendants' representations as to its place ofmanufacture, its quality of

10 materials and manufacture, and its superior performance. Plaintiff and the Class

11 members have suffered injury in fact and lost money as a result ofpurchasing the

12 falsely advertised Counterfeit Knives and Defendants' unlawful, unfair, and

13 fraudulent practices.14 36. Defendants' actions as alleged herein constitute unfair and/or

15 deceptive business practices with the meaning of Cal. Bus. & Prof. Code Sections

16 17200, et seq., the California Unfair Competition Law (hereafter "UCL"), in that

17 Defendants' actions as alleged herein are unfair, unlawful, and fraudulent, and

18 because Defendants have made unfair, deceptive, untrue, and/or misleading19 statements in advertising media, including the Internet, within the meaning of the

20 UCL.

21 37. Defendants knew or, in the exercise of reasonable care, should have

22 known that their representations and omissions were false and/or misleading.23 During the Class Period, Defendants engaged in unfair, unlawful and/or deceptive24 business practices by misrepresenting in their labeling, advertising and marketing25 to Plaintiff and the Class and the consuming public that the Counterfeit Knives

26 were manufactured in Germany, were of the high quality materials and

27 craftsmanship expected of German-made cutlery, and would perform as such.

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1 38. As a result of their deception, Defendants have been able to reap2 unjust revenue and profit.3 39. Defendants' business practices, as alleged herein, are "unfair"

4 because they offend established public policy and/or are immoral, unethical,5 oppressive, unscrupulous, and/or substantially injurious to consumers in that

6 consumers are misled by the claims made with respect to the Counterfeit Knives a!

7 set forth herein. Plaintiff alleges violations of California's consumer protection8 and unfair competition laws resulting in harm to consumers. Plaintiff also asserts

9 violations ofpublic policies against engaging in unfair competition, and deceptive10 conduct towards consumers. There were reasonably available alternatives to

11 further Defendants' legitimate business interests other than Defendants' wrongful12 conduct described herein.

13 40. Defendants' above-described wrongful acts and practices also

14 constitute "unlawful" business acts and practices in violation of California's fraud

15 and deceit statutes, Cal. Civil Code Sections 1572-73, 1709 and 1711, Cal. Bus. &

16 Prof. Code Sections 17200, et seq., and 17500, et seq., and the common law,17 including breach of express warranty. Plaintiff and the Class members reserve the

18 right to allege other violations of law committed by Defendants constituting19 unlawful business acts or practices in violation of Cal. Bus. & Prof. Code sections

20 17200, et seq.

21 41. Defendants' business practices alleged herein constitute "fraudulent

22 business acts or practices" because, inter alia, their representations and omissions

23 ofmaterial facts were likely to, and did, deceive consumers including Plaintiff and

24 the Class members into believing that the Counterfeit Knives have characteristics,25 materials, and benefits they do not have.

26 42. Defendants' wrongful business practices constituted a continuing27 course of conduct of unfair competition since Defendant promoted, advertised and

28 sold their Counterfeit Knives in a manner likely to deceive the public.

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1 43. As a direct and proximate result of Defendants' wrongful business

2 practices in violation of Cal. Bus. & Prof. Code Sections 17200, et seq., Plaintiff

3 and the Class Members suffered economic injury by losing money as a result of

4 purchasing the Counterfeit Knives. Plaintiff and the Class members would not

5 have purchased the Counterfeit Knives, or would have paid less for them, had they6 known the Counterfeit Knives were not as represented.7 44. Pursuant to Cal. Bus. & Prof. Code Section 17203, Plaintiff and the

8 Class seek an order requiring Defendants to make full restitution of all moneys9 wrongfully obtained from Plaintiff and the Class, as well as prejudgment interest,

10 costs and attorney's fees as permitted by law.

11 THIRD CAUSE OF ACTION

12 (VIOLATION OF CALIFORNIA'S CONSUMERS LEGAL REMEDIES ACT)13 (CAL. CIV. CODE SECTIONS 1750, et seq.)14 45. Plaintiff incorporates by this reference the allegations contained


16 46. Plaintiff has standing to pursue this cause of action because Plaintiff

17 has suffered injury in fact and has lost money as a result of Defendants' actions as

18 set forth herein. Specifically, Plaintiff and the Class purchased Counterfeit Knives

19 in reliance upon Defendants' representations as to their place of manufacture, their

20 quality ofmaterials and manufacture, and their superior performance.21 47. Defendants engaged in business practices in violation ofCalifornia

22 Civil Code Sections 1750, et seq., the California Consumers Legal Remedies Act

23 (hereafter the "CLRA") by making false representations as to the Counterfeit

24 Knives' place ofmanufacture, their quality ofmaterials and manufacture, and their

25 superior performance.26 48. Defendants engaged in deceptive acts or practices intended to result

27 in the sale of Counterfeit Knives in violation of Cal. Civil Code Section 1770. As

28 described herein, Defendants knew or should have known that their

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1 misrepresentations of fact concerning the place of manufacture, quality of

2 manufacture, and performance of the Counterfeit Knives were material and likely3 to mislead the public, and that the omissions were ofmaterial fact Defendants

4 were obligated to disclose. Defendants affirmatively misrepresented that the

5 Counterfeit Knives were manufactured in Solingen, Germany and not China, and

6 made further affirmative and implied representations that the Counterfeit Knives

7 had quality and performance they do not have.

8 49. Defendants' conduct as alleged herein violated the CLRA including,9 but not limited to, the following provisions: (1) misrepresenting the source,

10 sponsorship, approval, or certification ofgoods or services in violation of Cal.

11 Civil Code Section 1770(a)(2); (2) using deceptive representations or designations12 of geographic origin in connection with goods or services in violation of Cal. Civil

13 Code Section 1770(a)(4); (3) representing that goods or services have sponsorship.14 approval, characteristics, ingredients, uses, benefits, or quantities they do not have

15 in violation of Cal. Civil Code Section 1770(a)(5); (4) representing that goods or

16 services are of a particular standard, quality, or grade... if they are of another in

17 violation of Cal. Civil Code Section 1770(a)(7); (5) advertising goods or services

18 with the intent not to sell them as advertised in violation of Cal. Civil Code

19 Section 1770(a)(9); and (6) representing that the subject of a transaction has been

20 supplied in accordance with a previous representation when it has not in violation

21 of Cal. Civil Code Section 1770(a)(16). As a direct and proximate result of

22 Defendants' conduct, as set forth herein, Defendant has received ill-gotten gains23 and/or profits including, but not limited to, money. Therefore, Defendants have

24 been unjustly enriched.

25 50. On behalfof the Plaintiff and all others similarly situated, Plaintiff's

26 counsel mailed to all Defendants, via certified mail, return receipt requested, the

27 written notice of the violations set forth herein as required by Cal. Civil Code Section

28 1782(a). Copies of these letters are attached hereto as Exhibits A through D.

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1 51. Defendants have failed to provide complete and appropriate relief to

2 Plaintiff and all others similarly situated for Defendants' violations of the CLRA.

3 Accordingly, pursuant to Cal. Civ. Code Section 1780, Plaintiff and the Class

4 Members are entitled to recover actual damages, punitive damages, costs of

5 litigation, attorneys' fees, and such other relief as the court deems proper.

6 52. The declaration of venue required by Cal. Civil Code Section 1780(d)7 is filed herewith and is attached hereto as Exhibit E.

8 PRAYER FOR RELIEF

9 WHEREFORE, Plaintiff and the Class members request that the Court enter

10 an order or judgment against Defendants as follows:

11 1. For an Order certifying the Class, appointing Plaintiff and his counsel

12 to represent the Class, and for notice to the Class to be paid for by Defendants;13 2. For damages suffered by Plaintiff and the Class members;14 3. For restitution to Plaintiff and the Class members of all monies

15 wrongfully obtained by Defendants;16 4. For both prejudgment and postjudgment interest at the maximum rate

17 permitted by law on any amounts awarded;18 5. For costs of suit;19 6. For reasonable attorneys' fees as allowed by law; and

20 7. For such other and further relief as the Court may deem just and

21 proper.

22

23 Dated: March 5, 2014 LAW OFFICES OF FARRAH MIRABEL

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25 7 zr //x,Farrah Mirabel,

26 ATTORNEYS FOR PLAINTIFF ALLEN27 11 MOSHIRI

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1DEMAND FOR JURY TRIAL

2

3Plaintiff hereby demands a trial by jury of all claims and causes of action so

4triable.

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6Dated: March 5, 2014 LAW OFFICES Cr FARRAH MIRABEL

7

9 Farrah abel, q.ATTORNEYS FOR PLAINTIFF ALLEN

10MOSHIRI

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Exhibit ATo Class Action Complaint


NOTICE OF VIOLATION OFCONSUMER LEGAL REMEDIES ACT ("CLRA")

VIA CERTIFIED MAIL

Return Receipt Requested

ALLEN MOSHIRI1070 Stradella RoadLos Angeles, CA 90077Phone: (310) 699-7957

December 6, 2012

HSNi, LLC, a limited liability companyd/b/a Home Shopping Network ("HSN")1 HSN DriveSt. Petersburg, Florida

RE: Purchase of Emeril "Santuku" Knife

Violation of Consumer Legal Remedies Act

Dear SED International Holdings, Inc.:

PLEASE TAKE NOTICE that this letter constitutes notice under theCalifornia Consumer Legal Remedies Act, ("CLRA") California Civil Code Section1750, et seq., (the "ACT") pursuant specifically to Civil Code Section 1782notifying you of violations of the Act and of my demand that you remedy suchviolation within 30 days from your receipt of this letter.

On or about July 8, 2012, I purchased a 5-inch Santuku Knife with a knifesharpener under the brand name Emeril Santuku Knife from the Home ShoppingNetwork. I purchased the knife after learning it was (supposedly) a Solingenknife, which is known for its high quality and durability.

After receiving the knife in the mail, I used it for a short while and found itto be very poor quality. Furthermore, it did not function as marketed and/orotherwise advertised under the "Emeril" label or brand. In fact, the bottom of myemail receipt (attached to this letter) stated as follows with regard to the intendedquality of both the knife and the Emeril label:


"What do you get when you combine the spice of legendary chef EmerilLagasse with the expertise of culinary industry leaders? You get a recipefor gourmet cookware, appliances, cutlery and dinnerware that will kick upyour kitchen a notch or two. As passionate about cooking as you are,Emeril brings quality and style to every piece he designs."

This is not the case as the knife does not function with superior quality.The blade is dull and is not sharp. It rusted after two weeks. It does not sharpenusing its own sharpener. It is lightweight, which gives less control to the user.

Moreover, had I known the knife was not actually a Solingen knife, I would nothave purchased it. I later learned that the knife was made in China.

Please be advised that the alleged deceptive acts or practices in violationof the CLRA include, but are not necessarily limited to your actions orinactions as indicated above and also in representing that the Emeril SantukuKnife has characteristics, uses, and benefits which it does not have and also thatit is of a high quality which it is not.

Based upon the above, demand is hereby made that you refund the$21.44 charge incurred by me for purchase of the Emeril Santuku Knife, aswell as to all others who similarly purchased a Emeril Santuku Knife, eitheron HSN or other retail outlet.

Please be advised that your failure to comply with this request within thirty(30) days may subject you to the following remedies, which are available for aviolation of the Consumer Legal Remedies Act.

(1) The actual damages suffered by me;

(2) The actual damages suffered by other consumers similarly situated,including others who purchased an Emeril Santuku Knife and/or otherpotential class members;

(3) An order enjoining you for such methods, act or practices;

(4) Punitive Damages;

(5) Any other relief which the court deems proper; and(6) Court costs and attorneys' fees for myself and all other consumers, users

of your services and/or potential class members.

This letter will constitute FURTHER NOTICE that the actions as set forthabove also constitute violations of California's Business and Professions Code


Sections 17200 and 17500 (Unfair Business Practices and False Advertising) asunfair business acts and practices.

I look forward to receiving my refund. Thank you for your time andconsideration in this matter.

Sincerely,

ALLEN MOSHIRI

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Exhibit BTo Class Action Complaint



VIA CERTIFIED MAIL



December 6, 2012

Martha Stewartc/o Martha Stewart Living Omnimedia, Inc.20 West 43rd StreetNew York, NY10036-7400



Dear Ms. Stewart:





'What do you get when you combine the spice of legendary chef EmerilLagasse with the expertise of culinary industry leaders? You get a recipefor gourmet cookware, appliances, cutlery and dinnerware that will kick upyour kitchen a notch or two. As passionate about cooking as you are,Emeril brings quality and style to every piece he designs."




Based upon the above, demand is hereby made that you refund the$2144 charge incurred by me for purchase of the Emeril Santuku Knife, aswell as to all others who similarly purchased a Emeril Santuku Knife, eitheron HSN or other retail outlet.









CONTPLETfr THIS SECTION ON DELIVE"fly

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Case3:14-cv-01034 Document1 Filed03/05/14 Page26 of 36,

Sections 17200 and 17500 (Unfair Business Practices and False Advertising)as,unfair business acts and practices.

I look fotward to receiving my refund. Thank you for your time andconsideration in this matter.

Sincerely,.,

i.

ALLEN MOSHIRI

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Exhibit CTo Class Action Complaint



VIA CERTIFIED MAIL


ALLEN MOSHIRI1070 Stradella RoadLos Angeles, GA 90077Phone: (310) 699-7957

December 6, 2012

Martha Stewart Living Omnimedia, Inc.20 West 43rd StreetNew York, NY10036-7400



Dear Martha Stewart LMng Omnimedia, Inc.:





"What do you get when you combine the spice of legendary chef EmerHLagasse with the expertise of culinary industry leaders? You get a recipefor gourmet cookware, appliances, cutlery and dinnerware that will kick upyour kitchen a notch or two. As passionate about cooking as you are,Emeril brings quality and style to every piece he designs."This is not the case as the knife does not function with superior quality.The blade is dull and is not sharp, It rusted after two weeks. It does not sharpenusing its own sharpener. It is lightweight, which gives less control to the user.











This letter will constitute FURTHER NOTICE that the actions as set forthabove also constitute violations of California's 'Business and Professions Code

f-11.5'SECT.10;1.1,:0141 DELI-VE/3Y


Sections 17200 and 17500 (Unfair Businesb Iractices and False Advertising) asunfair business acts and practices.

1 look forward to receiving my refund. Thank you for your time andconsideration in this matter.

incerely,

ALLEN MOSH1R1

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Exhibit DTo Class Action Complaint



VIA CERTIFIED MAIL



December 6, 2012

Emeril Lagasse829 St. Charles Ave.New Orleans, Louisiana 7013

RE: Purchase of Emern "Santuku" Knife


Dear Mr. Lagasse:

PLEASE TAKE NOTICE that this letter constitutes notice under theCalifornia Consumer Legal Remedies Act, ("CLRA") California Civil Code Section1750, et seq., (the "ACT") pursuant specifically to CMI Code Section 1782notifying you of violations of the Act and of my demand that you remedy suchviolation within 30 days from your receipt of this letter.

On or about July 8, 2012, I purchased a 5,?nch S'antuku Knife with a knifesharpener under the brand name Emeril Santuku Knife from the Home ShoppingNetwork. I purchased the knife after learning it was (supposedly) a Solingenknife, which is known for its high quality and durability.



"What do you get when you combine the spice of legendary chef EmerilLagasse with the expertise of culinary industry leaders? You get a recipefor gourmet cookware, appliances, cutlery and dinnerware that will kick upyour kitchen a notch or two. As passionate about cooking as you are,Erneril brings quality and style to every piece he designs."










(5) Any other relief which the court deems proper; and

(6) Court costs and attorneys' fees for myself and all other consumers, usersof your services and/or potential class members.



Sections 17200 and 17500 (Unfair Business Practices and False Advertising) asunfair business acts and practices.

I look forward to receiving my refund. Thank you for your time andconsideration in this matter.

Sincerely.

ALLEN MOSHIRI

90/N 3911d KIJ OILEZLPOTE LE:6T TIO2/9Z/E0•-^-r.,1.^•

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Exhibit ETo Class Action Complaint


1 I, Allen Moshiri, hereby declare as follows:

2 1. I am the plaintiff is this action, and I am a citizen and resident of

3 California. If called as a witness, I would and could competently testify as to

4 within facts.

5 2. The complaint in this action, filed concurrently herewith, is filed in a

6 proper place for trial under Cal. Civil Code Section I780(d) in that San Francisco

7 County is a county in which Defendants are doing business and/or in which a

8 substantial part of the transactions at issue occurred.

9 I declare under penalty ofperjury under the laws of the State of California

10 that the foregoing is true and correct.

11 _...00.11111.1111111111111116—12 'Dated: February 2014.11113AllerrMosh,Fr-

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DECLARATION R-E VENUE

IX. DIVISIONAL ASSIGNMENT (Civil L.R. 3-2)

Foreign Country

ELEET,AET.iTiV77.1F.'+! z31.7.11.717MENIFLOTRELTEMICIfitirnl.PINIZ ojamizniTiojwfiiivigzu r bEi mcluci-amg2

Case3:14-cv-01034 DocERIL1cMeignparfage1 of 1JS 44 (Rev. 12/12) eand rev (1/15/13)

The IS 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 asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ONNEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTSALLEN MOSHIR1, individually, and on behalf of all others similarly HSN1, LLC, dba Home Shopping Network, a Delaware Limited Liabilitysituated Company; et al.

(h) County of Residence of First Listed Plaintiff San Francisco County ofResidence of First Listed Defendant Pinellas County(EXCEPTIN US. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED,

(c) Attorneys (Finn Name, Address, and Telephone Number) Attorneys (IfKnown)Farrah Mirabel (SBN 162933) LAW OFFICES OF FARRAH MIRABEL4590 MacArthur Blvd., Suite 280, Newport Beach, CA 92660Tel. (949) 752-0707

II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X' in One Boxfor Plaintiff(For Diversity Cases Only) and One Boxfor Defendant)

0 1 U.S. Government 0 3 Federal Question PTF DEI7 PTF DEFPlaintiff (U.S. Goveniment Not a Party) Citizen ofThis State X 1 CI 1 Incorporated or Principal Place CI 4 0 4

ofBusiness In This State

O 2 U.S. Government,3 4 Diversity Citizen ofAnother State 0 2 0 2 Incorporated and Principal Place in 5 X 5Defendant (Indicate Citizenship ofParties in Item III) ofBusiness In Another State

Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6

IV. NATURE OF SUIT (Place an "X" in One Box Only)

rr 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure CP 422 Appeal 28 USC 158 0 375 False Claims ActO 120 Marine CI 310 Airplane CI 365 Personal Injury ofProperty 21 USC 881 CI 423 Withdrawal 0 400 State ReapportionmentO 130 Miller Act CI 315 Airplane Product Product Liability 0 690 Other 28 USC 157 0 410 Antitnistin 140 Negotiable Instrument Liability ri 367 Health Care/ 0 430 Banks and BankingO 150 Recovery ofOverpayment CI 320 Assault, Libel & Pharmaceutical 1g.'.10 F.r.T57:,1173 :AMYi.P.13114 0 450 Commerce

& Enforcement of Judgment Slander Personal Injury 0 820 Copyrights 0 460 DeportationO 151 Medicare Act 0 330 Federal Employers' Product Liability CI 830 Patent 0 470 Racketeer Influenced andO 152 Recovely ofDefaulted Liability CI 368 Asbestos Personal 0 840 Trademark Corrupt Organizations

Student Loans 0 340 Marine Injury Product 0 489 Consumer Credit

(Excludes Veterans) CI 345 Marine Product Liability ffinOlEtIV:BirrufOr27.ZET:c7MT,IiI5inIlif.R.Vill i 0 talEINIi. 0 490 Cable/Sat TVCI 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards CI 861 HIA (1395ff) 0 850 Securities/Commodities/

of Veteran's Benefits. in '3.,10 Motor Vehicle,r S 370 Other Fraud Act 0 862 Black Lung (923) ExchangeCI 160 Stockholders' Suits 0 355 Motor Vehicle. 0 371 Truth in Lending 0 720 Labor/Management CI 863 DIWODIWW(405(g)) 0 890 Other Statutory ActionsO 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI CI 891 Agricultural ActsO 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 0 893 Environmental MattersO 196 Franchise Injury 0 385 Property Damage CI 751 Family and Medical 0 895 Freedom of Information

0 362 Personal Injury Product Liability Leave Act ActMedical Mal iractice 0 790 Other Labor Litigation 0 896 Arbitration

at2. lilrf731:B.Y......DIRWMPT.I.711.HarrOTTE,TITETiv:IgilleI, CI 791 Employee Retirement lab._-A1.--TATI-5W,I.MITEI.Mfg 0 899 Administrative Procedure3 210 Land Condemnation CI 440 Other Civil Rights Habeas Corpus: Income Security Act CP 870 Taxes (U.S. Plaintiff Act/Review or Appeal of3 220 Foreclosure CI 441 Voting 0 461 AlienDetainee. or Defendant) Agency Decision0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate CI 871 IRS—Third Party 0 950 Constitutionality of0 240 Torts to Land CI 443 Housing/ Sentence 26 USC 7609 State Statutes0 245 Tort Product Liability Accommodations CI 530 General0 290 All Other Real Property 0 445 Amer. w/Disabilities CI 535 Death Penalty 'ff:-.61f.i.F.I.MITa''''fflTillaiifa,

Employment Other: 0 462 Naturalization Application0 446 Amer. w/Disabilities CI 540 Mandamus & Other 0 465 Other Immigration,

Other ri 550 Civil Rights Actions0 448 Education 0 555 Prison Condition

CI 560 Civil DetaineeConditions ofConfinement

V. ORIGIN (Place an "X" in One Box Only)At 1 Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict

Proceeding State Court Appellate Court Reopened Another District Litigation(specift)

Cite the U.S. Civil Statute under which you are filing (Do not citejurisdic(ional statutes unless diversi0):28 U.S.C. Section 1332(a)VI. CAUSE OP' ACTION Briefdescription of cause:

Defendants' fraud in selling products through misrepresentations & omissions as to the place of origin & quality.VII. REQUESTED IN SI CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only ifdemanded in complaint:

COMPLAINT: UNDER RULE 23, F.R.Cv.P. 5,000,000.00 JURY DEMAND: )1 Yes 0 No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBER

DATE SIGNA_;7/0)-RD517T ..............›..0703/05/2014

(Place an "X" in One Box Only) SAN FRANCISCO/OAKLAND DAN JOSE E EUREKA

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