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CARLA CHRISTOFFERSON (S.B. #161111) cchristofferson@omm.com MARGARET A. MOESER (S.B. #253177) mmoeser@omm.com KATE IDES (S.B. # 274820) kides@omm.com OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 RANDALL W. EDWARDS (S.B. #179053) redwards@omm.com OMELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111-3823 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 Attorneys for Defendant Trader Joes Company UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TAMAR DAVIS LARSEN AND ARAN EISENSTAT, Plaintiffs, v. TRADER JOES COMPANY, Defendant. Case No. CV-11-5188-SI DEFENDANT TRADER JOES COMPANYS NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(6) AND 12(f); MEMORANDUM OF POINTS AND AUTHORITIES Hearing Date: June 15, 2012 Hearting Time: 9:00 a.m. Judge: Honorable Susan Illston Complaint Filed: October 24, 2011 Trial Date: None set

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TABLE OF CONTENTS Page NOTICE OF MOTION AND MOTION ........................................................ 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................ 2 INTRODUCTION........................................................................................... 2 BACKGROUND............................................................................................. 3 ARGUMENT .................................................................................................. 5 A. The Legal Standard ............................................................................... 5 B. The Magnuson-Moss Warranty Act Claim Fails Because Plaintiffs Have Not Alleged an Actionable Written Warranty............. 6 C. Plaintiffs Lack Article III Standing to Seek Injunctive Relief ........... 10 D. The Court Should Dismiss the CLRA Damages Claims as to Five Products for Which Plaintiffs Failed to Send the Required Pre-Litigation Notice........................................................................... 12 E. Plaintiffs Cannot Bring Claims Related to Products They Did Not Purchase. ...................................................................................... 14 F. There is No Claim for Unjust Enrichment in California. ................... 17 CONCLUSION ............................................................................................. 18

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TABLE OF AUTHORITIES Page

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ......................................................................................... 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................. 6 Birdsong v. Apple, Inc., 590 F.3d 955 (9th Cir. 2009) .............................................................................. 15 Boyter v. Wells Fargo Bank, N.A., Case No. C 11-03943 SI, 2012 WL 1144281 (N.D. Cal. Apr. 4, 2012) ............ 18 Campion v. Old Home Republic Home Protection Co., Case No. 09-cv-748-JMA, 2012 WL 992104 (S.D. Cal., Mar. 23, 2012)........................................10, 11, 12 Carrea v. Dreyers Grand Ice Cream, Inc., Case No. C 10-01044, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011) ................. 15 Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939 (S.D. Cal. 2007) ..............................................10, 12, 13, 14 Charles Schwab & Co. v. Bank of Am., No. C-10-4913-JL, 2011 WL 1753805 (N.D. Cal. May 9, 2011)................ 17, 18 Chavez v. Blue Sky Natural Beverage Co., 340 Fed. Appx. 359 (9th Cir. 2009) ................................................................... 16 Clear Channel Outdoor, Inc. v. Bently Holdings California LP, Case No. C112573 EMC, WL 6099394 (N.D .Cal. Dec. 7, 2011) ................ 18 Davis v. Chase Bank U.S.A., N.A., 650 F. Supp. 2d 1073 (C.D. Cal. 2009)..................................................12, 13, 14 Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........................................................................................... 14

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TABLE OF AUTHORITIES (continued) Page Dietz v. Comcast Corp., Case No. C 06-06352 WHA (N.D. Cal., Dec. 21, 2006) ............................. 10, 11 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993) .............................................................................. 6 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc, 528 U.S. 167 (2006) ........................................................................................... 14 Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) .............................................................................. 6 In re Actimmune Mktg. Litig., No. C-08-023786, 2009 WL 3740648 (N.D. Cal. Nov. 6, 2009) ...................... 16 In re GlenFed, Inc., Sec. Litig., 42 F.3d 1541 (9th Cir. 1994) .............................................................................. 17 In re Sears, Roebuck & Co. Tools Mktg. and Sales MDL No. 1703, 2012 WL 2011 1015806 (N.D. Ill. March 22, 2012)............................................................................ 7, 8, 9 Janda v. T-Mobile, USA, Inc., Case No. C 05-03729, 2008 WL 4847116 (N.D. Cal. Nov. 7, 2008) ..................................10, 11, 12, 13 Jogani v. Superior Court, 165 Cal. App. 4th 901 (2008)............................................................................. 17 Johns v. Bayer Corp., Case No. 09CV1935, 2010 WL 476688 (S.D. Cal. Feb. 9, 2010) ..................... 14 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ............................................................................ 17 Keilholtz v. Superior Fireplace Co., Case No. C 08-00836, 2009 WL 839076 (N.D. Cal. Mar. 30, 2009) ................ 13 Kelly v. Microsoft Corp., Case No. C07-0475MJP, 2007 WL 2600841 (W.D. Wash. Sept. 10, 2007)... 8, 9
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TABLE OF AUTHORITIES (continued) Page Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011)..........................................................................5, 6, 15, 16 Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181 (S.D. Cal. 2005) .............................................................. 13 Levine v. Blue Shield of Cal., 189 Cal. App. 4th 1117 (2010)........................................................................... 17 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................................... 5, 14 McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457 (2006)........................................................................... 17 Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779 (2003)............................................................................. 17 Meyer v. Sprint Spectrum, L.P. 45 Cal. 4th 634 (2009)........................................................................................ 15 Mlejnecky v. Olympus Imaging, Case No. 2:10-cv-02630 JAM KJN, 2011 WL 1497096 (E.D. Cal. Apr. 19, 2011) .................................................... 15 Outboard Marine Corp. v. Superior Court, 52 Cal. App. 3d 30 (1975) ...................................................................................... Oregon v. Legal Servs. Corp, 552 F. 3d 965 (9th Cir. 2009) ................................................................................. Pfizer, Inc. v. Superior Court, 182 Cal. App. 4th 622 (2010)............................................................................. 16 Skelton v. General Motors Corp., 500 F. Supp. 1181 (N.D. Ill. 1980)................................................................... 8, 9 Smith v. Ford Motor Company, Case No. 10-17321, 2011 WL 6322200 (9th Cir. Dec. 19, 2011) ..................... 17

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TABLE OF AUTHORITIES (continued) Page South Tahoe Gas Co. v. Hofmann Land Improvement Co., 25 Cal. App. 3d 750 (1972) ................................................................................ 16 Stearns v. Select Comfort Retail Corp., Case No. 08-2746, 2009 WL 1635931 (N.D. Cal. June 5, 2009) ...................... 12 Stickrath v. Globalstar, Inc., 527 F. Supp. 2d 992 (N.D. Cal. 2007)................................................................ 12 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977 (9th Cir. 2002) .......................................................................... 5, 13 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................ 16 Walsh v. Nevada Department of Human Resources, 417 F.3d 1033 (9th Cir. 2006) ............................................................................ 10 Wang v. OCZ Technology Group, Inc., 276 F.R.D. 618 (N.D. Cal. 2011) ................................................................. 11, 15 Western Min. Council v. Watt, 643 F.2d 618 (9th Cir. 1981) ................................................................................ 6 STATUTES 15 U.S.C. 2301, et seq. ........................................................................................ 6 15 U.S.C. 2310(d)(1). .......................................................................................... 7 Cal. Bus. & Prof. Code 17200, et seq. .................................................................. 5 Cal. Bus. & Prof. Code 17500, et seq. .................................................................. 5 Cal. Civ. Code 1750, et seq. ................................................................................. 5 Cal. Civ. Code 1780(a) ......................................................................................... 15 Cal. Civ. Code 1782.......................................................................................... 1, 12

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TABLE OF AUTHORITIES (continued) Page 16 C.F.R. 700.3....................................................................................................... 7 Fed. R. Civ. P. 9(b) ................................................................................................ 1, 6 Fed. R. Civ. P. 12(b)(1) ..................................................................................... 1, 3, 5 Fed. R. Civ. P. 12(b)(6) ..................................................................................... 1, 3, 5 Fed. R. Civ. P. 12(f)........................................................................................... 2, 3, 6

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NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 15, 2012, at 9:00 a.m., or as soon thereafter as this motion may be heard in the above-entitled court, located at 450 Golden Gate Ave., San Francisco, California, in Courtroom 10, 19th Floor, Defendant Trader Joes Company will, and hereby does, move the Court for an order dismissing certain causes of action set forth in the Class Action Complaint filed by Tamar Davis Larsen and Aran Eisenstat or, in the alternative, striking certain claims and remedies. Trader Joes Motion to Dismiss is made pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the entire file in this matter, and such other matters and argument as may properly come before the Court. In particular, Trader Joes seeks an order dismissing: (1) the first cause of action for violation of the Magnuson-Moss Warranty Act because Plaintiffs have failed to allege an actionable written warranty; (2) Plaintiffs claims for injunctive relief because Plaintiffs cannot demonstrate Article III standing as a matter of law; (3) the seventh cause of action for damages pursuant to the Consumers Legal Remedies Act, Cal. Civ. Code. 1782, as to particular products (Trader Joes Jumbo Cinnamon Rolls, Trader Joes Buttermilk Biscuits, Trader Joes Crescent Rolls, Trader Giottos 100% Natural Fat Free Ricotta Cheese, and Trader Joes Fresh Pressed Apple Juice) because Plaintiffs failed to comply with the required pre-suit notice provision; (4) all claims with respect to one product (Trader Joes Crescent Rolls) because Plaintiffs lack standing regarding that product and also failed to plead the elements with the required specificity under Rule 9(b); and (5) the eighth cause of action for unjust enrichment because California law recognizes no such cause of action.
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Alternatively, Trader Joes seeks an order under Rule 12(f) striking the request for injunctive relief based on a lack of standing, the CLRA damages claim for the identified products, and all claims as to Trader Joes Crescent Rolls. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiffs Second Amended Complaint (SAC) is improperly over-pled, including a product that they did not buy, products for which they did not give the required pre-suit notice before seeking damages under the Consumers Legal Remedies Act, an injunctive relief claim not justified by any likelihood of future harm to them, a federal breach of warranty claim where the food products did not come with a warranty, and even a claim that most courts do not recognize as an independent cause of action. A dismissal order is therefore warranted at the pleading stage to strip the SAC of deficient and otherwise improper claims. Plaintiffs cannot meet the requirements to state any claim under the Magnuson-Moss Warranty Act. Plaintiffs alleged that Trader Joes labels constitute a written warranty, but the All Natural or 100% Natural assertion is simply not a warranty as defined under the Act. Plaintiffs also cannot state a claim for injunctive relief because they cannot demonstrate any likelihood of future harm and therefore have no standing under Article III. Furthermore, Plaintiffs cannot maintain a claim for damages under the CLRA with respect to several products where the pleadings confirm that Plaintiffs did not send Trader Joes the legallyrequired pre-lawsuit CLRA notice letter. Plaintiffs failure to comply with the CLRA notice requirements in a timely way undermined the purpose the warning requirement and, under the case law, warrants dismissal of the CLRA damages claims with respect to those products. In addition, Plaintiffs cannot maintain a claim related to a product that neither of them purchased. This was no mere oversight in pleading. Plaintiffs initially sued Trader Joes regarding allegedly misleading labels on eight products,
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but Plaintiffs original Complaint, did not even allege that they purchased five of those products. See Complaint, D.E. 1. In the face of Trader Joes motion to dismiss asserting, among other things, Plaintiffs lack of standing on the other products, Plaintiffs amended their complaint (and later amended again). In the SAC, Plaintiffs dropped their allegations related to Trader Joes Fruit Jellies, but Plaintiff Larsen now alleges to suddenly remember purchasing several more of the products that had been identified in the original complaint with no allegation of any purchase by either Plaintiff. SAC 6. But even with the convenient memory gain alleged in the SAC, Plaintiffs still do not allege that either of them purchased Trader Joes Crescent Rolls. As such, any claim with respect to that product fails for lack of standing and also for failure to plead required elements with required specificity. Finally, Plaintiffs cannot state an independent claim for unjust enrichment because California law does not recognize such an independent cause of action. Trader Joes believes that a motion to dismiss under Rules 12(b)(1) and 12(b)(6) is the appropriate vehicle to challenge the deficient claims for injunctive relief, CLRA damages on certain products, and all claims with respect to Crescent Rolls. However, in the alternative, Trader Joes moves to strike those allegations under Rule 12(f). II. BACKGROUND Plaintiffs allege that Trader Joes labels certain food products as All Natural or 100% Natural and that this labeling misleads consumers because the food products contain one or more allegedly synthetic ingredients. See SAC 1-2. In the SAC, Plaintiffs allege that seven products have been misleadingly marketed: Joe-Joes Chocolate Vanilla Crme Cookies, Joe-Joes Chocolate Sandwich Cream Cookies, Trader Joes Jumbo Cinnamon Rolls, Trader Joes Buttermilk Biscuits, Trader Joes Crescent Rolls, Trader Giottos 100% Natural Fat Free Ricotta Cheese, and Trader Joes Fresh Pressed Apple Juice. These products
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allegedly are labeled All Natural or 100% Natural and contain one of more of the following allegedly synthetic ingredients: ascorbic acid; cocoa processed with alkali; sodium acid pyrophosphate; sodium citrate; xanthan gum; or vegetable mono- and diglycerides. SAC 1-2, 39. Plaintiffs admit that the labels on each product expressly disclosed the specific ingredients contained in the product. Plaintiffs nonetheless assert that the labels are still misleading because these ingredients are not specifically identified as synthetic or artificial. SAC 69. Plaintiffs alleged in their original complaint that they had purchased just three of the products (Joe-Joes Chocolate Sandwich Cream Cookies, Joe-Joes Vanilla Crme Cookies, and Trader Joes Fresh Pressed Apple Juice). After Trader Joes filed a motion to dismiss challenging their standing to assert claims related to other products, Plaintiffs filed a First Amended Complaint, and later the SAC. In the amended complaints, they now assert that they recall purchasing six of the products discussed in their complaint -- although they continue not to allege that either of them purchased Trader Joes Crescent Rolls, despite the fact that they discussed the product in the SAC and it appears to be a product as to which claims are asserted against Trader Joes. See SAC 39. Plaintiff Larsen alleges she purchased one box of Joe-Joes Chocolate Vanilla Crme Cookies about once every four months through the class period and three containers of Trader Joes Fresh Pressed Apple Juice in the last year; she also alleges she now recalls that she purchase Joe-Joes Chocolate Sandwich Cream Cookies slightly more often than Joe-Joes Chocolate Vanilla Crme Cookies, and that over the past three years she purchased three packages of Trader Joes Jumbo Cinnamon Rolls, two packages of Trader Joes Buttermilk Biscuits, and four packages of Trader Giottos 100% Natural Fat Free Ricotta. SAC 6. Plaintiff Larsen claims that these products were labeled All Natural or 100% Natural but contained allegedly synthetic ingredients. Plaintiff Eisenstat claims that he purchased Joe-Joes Chocolate Sandwich Cream Cookies at least five times during
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the class period. SAC 8. He asserts that this product was labeled All Natural but contained the allegedly synthetic ingredient cocoa processed with alkali. Id. Plaintiffs original complaint alleges that they sent a pre-lawsuit notice letter to Trader Joes, pursuant to the CLRA, identifying concerns and seeking remedies. That letter, which is referenced in the complaint, refers only to Joe-Joes Cookies.1 See Exhibit A. Plaintiffs nonetheless sought damages under the CLRA as to all products identified in the complaint. The SAC is somewhat more vague in its allegations about the pre-suit notice letter, but it does not allege that Plaintiffs properly provided notice to Trader Joes regarding any product other than Joe-Joes cookies before seeking damages under the CLRA. In the SAC, Plaintiffs assert causes of action for common-law fraud and unjust enrichment, as well as violations of the Magnuson-Moss Warranty Act, the CLRA, Cal. Civ. Code 1750 et seq.; the unfair, unlawful, and fraudulent prongs of the Unfair Competition Law, Cal. Bus. & Prof. Code 17200 et seq. (UCL); and the False Advertising Law, Cal. Bus. & Prof. Code 17500 et seq. (FAL). Plaintiffs seek damages and injunctive relief under these claims. III. ARGUMENT A. The Legal Standard Defendants may challenge a claim through a motion to dismiss when the court lacks subject matter jurisdiction or when plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(1), 12(b)(6). Article III of the United States Constitution confers subject-matter jurisdiction only where there is an actual case or controversy, which plaintiff must show by demonstrating that he suffered an injury in fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Injury in fact is an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or In assessing a motion to dismiss the Court may properly consider documents attached to the complaint and documents referenced by the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002).
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hypothetical. Id. (citations omitted); see also Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322 (2011). In this context, particularized means that the injury must affect the plaintiff in a personal and individual way. Lujan, 504 U.S. at 560 n.1. The plaintiff must also show that there is a casual connection between the injury and the conduct that is fairly traceable to defendants challenged action and that the injury is likely not merely speculative. Id. at 561 (citations omitted). If the plaintiff cannot demonstrate injury in fact, the claim cannot stand. The Court also should dismiss the complaint if it does not contain enough facts to establish the elements of a claim and is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In assessing a motion to dismiss, the Court need not accept conclusory allegations, Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009), unreasonable inferences, or legal conclusions set out in the form of factual allegations, Western Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). In addition, fraud-based claims such as those at issue here must be pleaded with particularly. Fed. R. Civ. P. 9(b). Finally, under Rule 12(f), the Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial ... . Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993) (marks, citation, and first alteration omitted), revd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). B. The Magnuson-Moss Warranty Act Claim Fails Because Plaintiffs Have Not Alleged an Actionable Written Warranty.

The Court should dismiss Plaintiffs first cause of action because Plaintiffs have failed to allege an actionable written warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. 2301 et seq. (Magnuson-Moss). Magnuson-Moss creates a federal cause of action for consumers who are damaged by a suppliers
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failure to comply with an obligation under a written warranty. 15 U.S.C. 2310 (d)(1). The crux of Plaintiffs Magnuson-Moss claim is that Trader Joes provided written warranties when it labeled the products at issue All Natural or 100% Natural, and that Trader Joes breached these written warranties by failing to supply those products with only non-synthetic and non-artificial ingredients. SAC 63-64. Under the relevant law, however, product assertions such as All Natural or 100% Natural do not constitute Magnuson-Moss written warranties. For a statement to constitute a written warranty under Magnuson-Moss, it must affirm or promise that the nature of the material or workmanship of the product at issue is defect free or that it will meet a specified level of performance over a specified period of time. 15 U.S.C. 2301(6)(A) & (B); 16 C.F.R. 700.3 (A production information disclosure without a specified time period to which the disclosure relates is []not a written warranty.).2 The statements All Natural and 100% Naturalthe only statements at issue in the SACdo not promise that Trader Joes Products are defect free, nor do they promise that Trader Joes Products will meet a specified level of performance over a specified period of time. First, Plaintiffs do not and cannot allege that Trader Joes promised that the products at issue will meet a specified level of performance over a specified period of time. The decision in In re Sears, Roebuck & Co. Tools Mktg. and Sales Practices Litig. is instructive and directly on point. MDL No. 1703, 2012 WL
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Magnuson-Moss also defines a written warranty as: . . . any undertaking in writing in connection with the sale by a supplier of a consumer production to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking . . .

15 U.S.C. 2301(6)(B). This alternative definition of written warranty is not at issue here, as Plaintiffs do not contend that Trader Joes undertook, in writing, to take any remedial action with respect to Trader Joes Products. -7TRADER JOES MOT. TO DISMISS SAC CV-11-5188-SI

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1015806 (N.D. Ill. March 22, 2012). In Sears, the court rejected plaintiffs argument that the Made in the USA designation on Craftsman tools was a written warranty within the meaning of Magnuson-Moss. Id. at *2-4. The court concluded that Made in the USA neither promises Craftsman tools are defect free nor promises that the product will meet a specified level of performance over a specified period of time. Id. Similarly, All Natural and 100% Natural do not promise a specified level of performance. Rather, like the phrase Made in the USA, which describes how Craftsman tools were manufactured, All Natural and 100% Natural describe how the products were made, not how they will perform once purchased. Moreover, the statements plainly do not promise that any specified level of performance that will be maintained for a specified period of time. Plaintiffs do not even allege that that All Natural and 100% Natural imply any specific duration of time. And the court in Sears expressly rejected an argument that a statement like Made in the USA promises a lifetime level of performance or otherwise specifies any period of time, as required by the plain language of section 2301(6). All Natural and 100% Natural similarly cannot satisfy that requirement. Other federal courts likewise have held that analogous statements do not constitute written warranties within the meaning of Magnuson-Moss because they do not contain a specified period of time. See e.g., Kelley v. Microsoft Corp., Case No. C07-0475MJP, 2007 WL 2600841, at *3-4 (W.D. Wash. Sept. 10, 2007) (holding Windows Vista Capable is not actionable as written warranty under section 2301(6) of Magnuson-Moss because it contains no temporal element); Skelton v. Gen. Mtrs. Corp., 500 F. Supp. 1181, 1185 (N.D. Ill. 1980) (holding that statement that certain vehicles would include THM 30 transmissions or transmissions of similar quality or performance is not written warranty actionable under Section 2301(6) of Magnuson-Moss because it is not limited in duration), revd on other grounds, 660 F.2d 311 (7th Cir. 1981).
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Plaintiffs attempt to rectify this fatal deficiency by asserting that the All Natural and 100% Natural statements intended to convey to purchasers[] a written promise that the ingredients in the products were free of a particular type of defect (i.e., that they were not synthetic or artificial). SAC 63. In essence, Plaintiffs claim that any statement about a product constitutes a promise that the product is defect free. Such a theory is unsupported by the case law or logic. If such a theory were sufficient, the similar Magnuson-Moss allegations in Sears and other cases would have survived, but they did not. See Sears, MDL No. 1703, 2012 WL 1015806; Kelley, Case No. C07-0475MJP, 2007 WL 2600841; Skelton, 500 F. Supp. 1181. The rejection of such claims makes logical sense. Permitting Plaintiffs theory would drastically expand coverage under Magnuson-Moss and allow any consumer to bring a breach of written warranty claim for any statement made regarding any product, essentially converting Magnuson-Moss into a federal false advertising statute. It cannot be the case that every affirmative statement regarding a product is transformed into a promise that the product is defect free with respect to that statement. Plaintiffs espoused reading of Magnuson-Moss would improperly read out the express requirement of section 2301(6) that a written warranty must actually affirm or promise that the nature of a material or workmanship of a product is defect free. See Skelton v. Gen. Motor Corp., 660 F.2d 311, 326, n.7 (7th Cir. 1981) (reasoning that the Magnuson-Moss authors may have defined written warranty so as to exclude general descriptions of consumer products or their components from the reach of the Act, since it would be excessively cumbersome to impose the Acts disclosure rules on every advertisement containing a description of a product or its component.). Because the challenged All Natural or 100% Natural statements do not constitute written warranties under section 2301(6) of Magnuson-Moss, Plaintiffs claim for violation of the Act must fail.
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C.

Plaintiffs Lack Article III Standing to Seek Injunctive Relief.

Although Plaintiffs seek injunctive relief in the SAC ( 5), they cannot establish the Article III standing necessary to pursue injunctive relief in federal court. Plaintiffs have not and cannot allege facts showing a possibility they will be harmed by the challenged products in the future, which courts have recognized is an element required for standing. To have standing to assert a claim for injunctive relief in federal court, plaintiff must demonstrate that she is realistically threatened by a repetition of [the violation]. Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006); Campion v. Old Republic Home Protection Co., Case No. 09-cv-748-JMA, 2012 WL 992104, at *6 (S.D. Cal., Mar. 23, 2012) (same). Where a plaintiffs claim is based entirely on a past transaction, and a plaintiff has knowledge of the alleged misconduct, courts have held that plaintiff as a matter of law, can not establish that he is under any threat of suffering actual and imminent future harm and his claims for injunctive relief fail. Campion, 2012 WL 992104, at *9; see also Walsh v. Nevada Department of Human Resources, 471 F. 3d 1033, 1037 (9th Cir. 2006) (finding that plaintiff lacked standing to sue for injunctive relief on behalf of class of employees where she was no longer an employee of the company and there was no indication. . . that [plaintiff] has any interest in returning to work, so she would not stand to benefit from an injunction . . . .); Dietz v. Comcast Corp., Case No. C 06-06352 WHA, 2006 WL 3782902, at *3 (N.D. Cal. Dec. 21, 2006) (holding that plaintiff lacked standing to bring his claims for injunctive relief under the UCL and CLRA where he had already cancelled his cable service and had not expressed an intention to use the cable provider again); Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d 939, 951-52 (S.D. Cal. 2007) (expressing concern[] that Plaintiff may lack standing to seek injunctive or declaratory relief under the CLRA or any other statute where plaintiff had already purchased the product and there was no suggestion that she intended to buy the product again in the future); Janda
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v. T-Mobile, USA, Inc., No. C 05-03720 JSW, 2008 WL 4847116, at *4 (N.D. Cal. Nov. 7, 2008); Wang v. OCZ Technology Group, Inc., 276 F.R.D. 618, 626-27 (N.D. Cal. 2011). The recent decision in Campion is instructive. There plaintiff claimed he was fraudulently induced to purchase a warranty that he alleged defendants did not plan to honor. See 2012 WL 992104, at *2. He sought injunctive relief under the CLRA and UCL. Id. The court found that the plaintiff could not meet the requirements of Article III standing for injunctive relief as a matter of law because his claim was Based entirely on a past transaction, he did not intend to purchase another home warranty plan, and even if [he] were to purchase another home warranty plan he now has knowledge of Defendants alleged misconduct. Id. at *9. Thus, Plaintiff [could not] show he is realistically threatened by a repetition of the alleged violation and his claims for injunctive relief were denied. Id. And, as recognized in Dietz, the fact that Plaintiffs seek to bring this suit as a class action does not cure the defect. Dietz, 2006 WL 3782902, at *4 (finding that the class averments did not cure the defect in plaintiffs complaint because [u]nless the named plaintiff is himself entitled to seek injunctive relief, he may not represent a class seeking that relief.) (internal citations omitted); see also Campion, 2012 WL 992104 at *8-9 (holding that there was no standing for injunctive relief even though class action had been certified). Plaintiffs claims for injunctive relief fail for the same reasons as in those authorities. Both Plaintiffs Larsen and Eisenstat allege that they were misled by past purchases. SAC 6, 8. Plaintiff Larsen alleged that she has not purchased any of these products since learning in September 2011, and she alleged she would not have purchased the products had she known the (alleged) truth about them. Id. 6-7. Likewise, Plaintiff Eisenstat alleged in the First Amended Complaint (D.E. 23 at 8) that he has not purchased Joe-Joes Cookies since March 2011, and while he is silent on that issue in the SAC, he continues to allege that he would not
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have purchased the products had he known the truth, which he clams now to know. SAC 8. And even if Plaintiffs were to make future purchases of the product, they still would not have standing for injunctive relief. As the Campion court noted, once a plaintiff is on notice of the alleged misconduct, there is no realistic threat of a repetition of the alleged violation. Campion, 2012 WL 992104, at *9. Under Article III, plaintiffs thus lack standing to assert claims for injunctive relief. D. The Court Should Dismiss the CLRA Damages Claims as to Five Products For Which Plaintiffs Failed to Send the Required PreLitigation Notice.

To bring a claim for damages under the CLRA, thirty days or more prior to filing a complaint, a consumer must send a written notice by certified or registered mail to the person alleged to have committed violations of the CLRA and demand that the person correct those violations. Cal. Civ. Code 1782; Davis v. Chase Bank U.S.A., N.A., 650 F. Supp. 2d 1073, 1089 (C.D. Cal. 2009) (compliance with the notice requirement is necessary to state a claim). The purpose of this notice is to give the manufacturer or vendor sufficient notice of the alleged defects to permit appropriate corrections or replacements of the allegedly defective product. Stickrath v. Globalstar, Inc., 527 F. Supp. 2d 992, 1001 (N.D. Cal. 2007). To fulfill this purpose, the notice must identify the product with enough specificity to permit the manufacturer the opportunity to cure the alleged defect. Where a plaintiff has not complied with the notice requirement before filing a lawsuit seeking damages under the CLRA for the alleged violation, the Court should dismiss the plaintiffs CLRA damages claim with prejudice. Cattie, 504 F. Supp. 2d 939, 950 (S.D. Cal. 2007) (failure to give notice before seeking damages necessitates dismissal with prejudice, even if a plaintiff later gives notice and amends); Davis, 650 F. Supp. 2d at 1089 (this requirement is strictly adhered to by dismissing a claim with prejudice); Stearns v. Select Comfort Retail Corp., Case No. 08-2746, 2009 WL 1635931, at *15 (N.D. Cal. June 5, 2009) (dismissing
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without leave to amend for failure to give notice); Janda v. T-Mobile USA, Inc., Case No. C 05-03729, 2008 WL 4847116, at *6 (N.D. Cal. Nov. 7, 2008) (same); Laster v. T-Mobile USA, Inc., 407 F. Supp. 2d 1181, 1195-96 (S.D. Cal. 2005) (same). Although a few courts have held that dismissing a CLRA damages claim without prejudice is the appropriate remedy for failure to provide adequate notice,3 such an approach does not further the intent of the CLRA. As Cattie explains, [p]ermitting Plaintiff to seek damages first and then later, in the midst of a lawsuit, give notice and amend would destroy the notice requirements utility. 504 F. Supp. 2d at 950. The only way to accomplish the CLRAs goals is [s]trict adherence to the statutes notice provision and dismissal with prejudice where this provision is not followed. Laster, 407 F. Supp. 2d at 1196. Dismissal with prejudice is warranted even if defendant had actual notice of the CLRA damages claim. Davis, 650 F. Supp. 2d at 1089 (actual notice is not sufficient substitute). On April 1, 2011, Plaintiff Eisenstat sent Trader Joes a letter claiming that Trader Joes labeling of Joe Joes cookies as All Natural despite the presence of the allegedly synthetic ingredient alkalized cocoa or cocoa processed with alkali constitutes a violation of the CLRA. See SAC 42-44. This letter is attached as Exhibit A to this Motion and may properly be considered by the Court. See Van Buskirk, 284 F.3d at 980 (court may properly consider documents referenced by the complaint when assessing a motion to dismiss). The notice letter identifies only Joe Joes Cookies as allegedly violating the CLRA. See Exhibit A. It in no way identifies any alleged violations with respect to Trader Joes Jumbo Cinnamon Rolls, Buttermilk Biscuits, Crescent Rolls, Fresh Pressed Apple Juice, or Trader Giottos 100% Natural Fat Free Ricotta Cheese. Id. Plaintiffs SAC confirms that their original April 2011 letter only addresses Joe-Joes Cookies. SAC 42. In their Complaint, Plaintiffs asserted that they See, e.g., Keilholtz v. Superior Fireplace Co., Case No. C 08-00836, 2009 WL 839076, at *3 (N.D. Cal. Mar. 30, 2009).
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would send a supplemental letter to Trader Joes that sets forth these additional violations that were identified since the filing of the original notification. Compl. 75. In the SAC, Plaintiffs confirm that they sent their second notification in January 2012, after the filing of both the Complaint and the First Amended Complaint. See SAC 44. In other words, Plaintiffs admit that they did not provide Trader Joes with the requisite CLRA notice before filing the Complaint. Sending a supplemental notice after filing a complaint does not comply with the CLRAs strict notice requirements. Davis, 650 F. Supp. 2d at 1089. To the extent Plaintiffs wished to bring a claim for CLRA damages, they were required to provide the requisite notice before filing the Complaint. Cattie, 504 F. Supp. 2d at 950; Davis, 650 F. Supp. 2d at 1089. Plaintiffs failure to provide the requisite notice warrants the dismissal with prejudice of their claim for CLRA damages with respect to the following products: Trader Joes Jumbo Cinnamon Rolls, Buttermilk Biscuits, Crescent Rolls, Fresh Pressed Apple Juice, and Trader Giottos 100% Natural Fat Free Ricotta Cheese. E. Plaintiffs Cannot Bring Claims Related to Products They Did Not Purchase.

Under Article III of the U.S. Constitution, Plaintiffs must have suffered a cognizable legal injury to bring claims in federal court. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). This requirement applies to each cause of action. Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (plaintiff must demonstrate standing for each claim he seeks to press). Plaintiffs must identify a particularized injury in fact that affected them personally to have standing to bring their claim. Lujan, 504 U.S. at 560-61. As a matter of law, they cannot do that with respect to a product that they did not purchase. E.g., Johns v. Bayer Corp., No. 09-cv-1935 DMS (JMA), 2010 WL 476688, at *5 (S.D. Cal. Feb. 9, 2010) (plaintiff cannot expand the scope of his
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claims to include a product he did not purchase or advertisements relating to a product that he did not rely upon.); Carrea v. Dreyers Grand Ice Cream, Inc., Case No. C 10-01044, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011) (no standing where plaintiff did not purchase products); Mlejnecky v. Olympus Imaging, Case No. 2:10-cv-02630 JAM KJN, 2011 WL 1497096 *4 (E.D. Cal. Apr. 19, 2011) (dismissing claims regarding a camera model she had never purchasedeven though the plaintiff alleged that it had the same underlying defects as a model she did purchase and the defendant used the same advertisement for all Stylus cameras).4 In the SAC, Plaintiffs still do not allege that they purchased Trader Joes Crescent Rolls. See SAC 6, 8. Plaintiffs cannot suffer injury from a product they did not purchase and have no standing to bring claims as to that product. In addition, injury is a required element of the California causes of action asserted by Plaintiffs. As the California Supreme Court recently held, the voters of California explicitly incorporated the federal standing requirements into the standing test for the UCL and FAL. Kwikset, 51 Cal. 4th at 320-22; see also Birdsong v. Apple, Inc., 590 F.3d 955, 960 (9th Cir. 2009) ([T]o plead a UCL claim, the plaintiffs must show, consistent with Article III, that they suffered a distinct and palpable injury as a result of the alleged unlawful or unfair conduct). Under that requirement, Plaintiffs must demonstrate some form of economic injury resulting from the alleged violation in order to have standing to pursue a UCL or FAL claim. Kwikset, 51 Cal. 4th at 323-24, 336 n.2. Likewise, Plaintiffs must demonstrate that they suffered damage as a result of the alleged unlawful practice or fraud to demonstrate standing under the CLRA and common-law fraud. See Cal. Civ. Code 1780(a); Meyer v. Sprint Spectrum, L.P., 45 Cal. 4th 634, 638 (2009) And in Wang v. OCZ Technology Group, Inc., the court declined to grant the defendants motion to strike on a similar argument but acknowledged that [plaintiffs] inability to allege injury based on products that he did not purchase may ultimately subject those claims to proper dismissal pursuant to a Rule 12(b) motion or motion for summary judgment . 276 F.R.D. at 63233.
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(no standing to sue under the CLRA without some allegation that he or she has been damaged by an alleged unlawful practice); In re Actimmune Mktg. Litig., No. C-08-023786, 2009 WL 3740648, at *16 (N.D. Cal. Nov. 6, 2009) (CLRA); Chavez v. Blue Sky Natural Beverage Co., 340 Fed. Appx. 359, 361 (9th Cir. 2009) (common-law fraud); South Tahoe Gas Co. v. Hofmann Land Improvement Co., 25 Cal. App. 3d 750, 765 (1972) (fraud). Plaintiffs here fail the simple test for because they have not and cannot truthfully allege they were deceived by a products label into spending money to purchase the product, and would not have purchased it otherwise. Kwikset, 51 Cal. 4th at 317. If a consumer did not purchase a product, they have no standing to sue. See also Pfizer Inc. v. Superior Court, 182 Cal. App. 4th 622, 632 (2010) (consumers who were not exposed to the allegedly misleading advertisements did not have standing to bring a claim because they could not have parted with their money as a result of the alleged UCL violation). Plaintiffs do not even allege that they parted with their money or were damaged by the purportedly misleading labels on Trader Joes Crescent Rolls at any time. If Plaintiffs did not purchase the product, then they did not lose money or property as a result of the allegedly false labeling of the product. Indeed, Plaintiffs do allege that they saw additional products labeled All Natural after filing suit (presumably because their attorneys reviewed the claims with them) but still do not allege that they suffered injury as a result of purchasing Crescent Rolls in reliance on their labels. Finally, any claim with respect Crescent Rolls also fails because the alleged fraud on Plaintiffs is not pleaded with the specificity required by Rule 9(b) -- or any specificity at all since they did not buy the product. The gravamen of Plaintiffs CLRA, UCL, FAL, and common-law fraud claims is that Trader Joes deceived consumers through misleading labeling of certain products. SAC 2. All these claims sound in fraud and therefore must meet the exacting pleading requirements of Federal Rule of Civil Procedure 9(b). See Vess v. Ciba-Geigy Corp. USA, 317
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F.3d 1097, 1103 (9th Cir. 2003); Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (applying Rule 9(b) to UCL and CLRA claims where plaintiff alleges that the defendant engaged in a fraudulent course of conduct). To meet this standard, a plaintiff must identify the circumstances of the fraud -- the who, where, what, when and how -- including the reliance on the allegedly fraudulent conduct. See In re GlenFed., 42 F.3d at 1547 n.7. Plaintiffs allegations do not meet these standards. Plaintiffs allege no details regarding the circumstances of the purchase of Trader Joes Crescent Rolls. Indeed, they do not allege that they purchased Trader Joes Crescent Rolls, much less when or where they purchase the product, which statements they personally relied upon, or how they were damaged by the product. In addition to the standing issues discussed above, those claims must be dismissed because Plaintiffs failure to assert any details regarding their purchase of Trader Joes Crescent Rolls does not meet the stringent pleading standards for claims sounding in fraud. F. There is No Claim for Unjust Enrichment in California.

The majority of California courts hold that unjust enrichment is not an independent cause of action. E.g., Smith v. Ford Motor Co., Case No. 10-17321, 2011 WL 6322200, at *3 (9th Cir. Dec. 19, 2011); Levine v. Blue Shield of Cal., 189 Cal. App. 4th 1117, 1138 (2010) ([T]here is no cause of action in California for unjust enrichment); Jogani v. Superior Court, 165 Cal. App. 4th 901, 911 (2008) ([U]njust enrichment is not a cause of action); McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1490 (2006) (dismissing unjust enrichment claim but allowing UCL and breach of contract claims); Charles Schwab & Co. v. Bank of Am., No. C-10-4913-JL, 2011 WL 1753805, at *5 (N.D. Cal. May 9, 2011). Instead, the concept of unjust enrichment describes a general principle, underlying various legal doctrines and remedies. Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779, 793 (2003) (dismissing unjust enrichment claim but allowing claims for breach of contract, declaratory relief, and accounting). Courts that have allowed
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claims of unjust enrichment to go forward are in the minority. Charles Schwab, 2011 WL 1753805, at *5. Trader Joes appreciates that the Court has on some occasions permitted an unjust enrichment claim where some other viable theory existed, e.g., Boyter v. Wells Fargo Bank, N.A., Case No. C 11-03943 SI, 2012 WL 1144281 *7 (N.D. Cal. Apr. 4, 2012). But Trader Joes believes that a different result is appropriate here. First, the prevailing trend is for courts not to recognize an independent cause of action for what is, at most, a theory of recovery based some other claim, and no purpose is served by permitting plaintiffs to assert theories of recovery as separate claims. Second, as the Court stated in Boyter, [c]ourts in this District have held that unjust enrichment claims lie either (1) in lieu of breach of contract damages, where an asserted contract is found to be unenforceable or ineffective, or (2) where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct, but the plaintiff has chosen not to sue in tort. Id. (citing Clear Channel Outdoor, Inc. v. Bently Holdings California LP, No. C112573 EMC, WL 6099394, at * 9 (N.D .Cal. Dec. 7, 2011)). But there is no asserted contract here, and Plaintiffs have chosen to sue in tort, so the exceptions noted are inapplicable. For these reasons, Trader Joes urges the Court to follow the authorities cited above and to reject Plaintiffs attempt to assert as an independent claim the nonexistent cause of action for unjust enrichment. IV. CONCLUSION For the reasons stated above, Trader Joes respectfully requests that this Court dismiss (1) the Magnuson-Moss warranty claim in its entirety; (2) the unjust enrichment claim in its entirety; (3) all claims for injunctive relief because Plaintiffs cannot demonstrate Article III standing; (4) the claim for damages under the CLRA as to the five products for which Plaintiffs did not provide the required notice; and (5) all claims as to Trader Joes Crescent Rolls, which Plaintiffs did not purchase.
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Dated: April 20, 2012 OMELVENY & MYERS LLP

By: /s/ Margaret A. Moeser Margaret A. Moeser Attorneys for Defendant Trader Joes Company

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OMM_US:70663406.4

CERTIFICATE OF SERVICE I hereby certify that on April 20, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the Electronic Mail Notice List. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on April 20, 2012. OMELVENY & MYERS LLP

/s/ Margaret A. Moeser Margaret A. Moeser Attorneys for Defendant Trader Joes Company

By:

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EXHIBIT A

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CARLA CHRISTOFFERSON (S.B. #161111) cchristofferson@omm.com MARGARET A. MOESER (S.B. #253177) mmoeser@omm.com KATE IDES (S.B. # 274820) kides@omm.com OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 RANDALL W. EDWARDS (S.B. #179053) redwards@omm.com OMELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111-3823 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 Attorneys for Defendant Trader Joes Company UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TAMAR DAVIS LARSEN AND ARAN EISENSTAT, Plaintiffs, v. TRADER JOES COMPANY, Defendant. Case No. CV-11-5188-SI [PROPOSED] ORDER GRANTING DEFENDANT TRADER JOES COMPANYS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(6) AND 12(f) Hearing Date: June 15, 2012 Hearing Time: 9:00a.m. Judge: Honorable Susan Illston Complaint Filed: October 24, 2011 Trial Date: None set

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On June 15, 2012, Defendant Trader Joes Companys Motion to Dismiss Plaintiffs Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 12(f) came on regularly for hearing before the Court, the Honorable Susan Illston presiding. Having considered Defendants Motion to Dismiss and all other supporting and opposing arguments and papers, and good cause appearing: IT IS HEREBY ORDERED that Trader Joes Companys Motion to Dismiss is GRANTED. The Complaint is dismissed with prejudice in its entirety for lack of standing as to the following products: Trader Joes Crescent Rolls. Plaintiffs claims for injunctive relief are dismissed with prejudice because Plaintiffs cannot demonstrate the required Article III standing. The First Cause of Action for violation of the Magnuson-Moss Warranty Act is dismissed with prejudice because Plaintiffs have failed to allege an actionable written warranty. The Seventh Cause of Action for Damages under the Consumer Legal Remedies Act, Cal. Civ. Code 1782 is dismissed with prejudice as to Trader Joes Jumbo Cinnamon Rolls, Trader Joes Buttermilk Biscuits, Trader Joes Crescent Rolls, Trader Giottos 100% Natural Fat Free Ricotta Cheese, and Trader Joes Fresh Pressed Apple Juice for failure to comply with the pre-litigation notice requirements. The Eighth Cause of Action for Unjust Enrichment is dismissed with prejudice because there is no cause of action for unjust enrichment in California. IT IS SO ORDERED.

DATED: HONORABLE SUSAN ILLSTON UNITED STATES DISTRICT JUDGE

[PROPOSED] ORDER GRANTING TRADER JOES MOTION TO DISMISS SAC CV-11-5188-SI

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OMM_US:70666710.1

CERTIFICATE OF SERVICE I hereby certify that on April 20, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the Electronic Mail Notice List. I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on April 20, 2012.

OMELVENY & MYERS LLP

/s/ Margaret A. Moeser Margaret A. Moeser Attorneys for Defendant Trader Joes Company

By:

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