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GRANT & EISENHOFER P.A.
Jay W. Eisenhofer (Pro Hac Vice pending)
jeisenhofer@gelaw.com
Robert G. EisIer (Pro Hac Vice pending)
reisler@gelaw.com
John C. Kairis (Pro Hac Vice pending)
jkairis@gelaw.com
Kyle J. McGee (Pro Hac Vice pending)
kmcgee@gelaw.com
123 Justison Street
Wilmington, DE 19801
Telephone: (302) 622-7000

BLECHER & COLLINS, P.C.
Maxwell M. Blecher (State Bar No. 26202)
mblecher@blechercollins.com
Donald R. Pepperman (State Bar No. 109809)
dpepperman@blechercollins.com
515 S. Figueroa Street, Suite 1750
Los Angeles, CA 90071
Telephone: (213) 622-4222
Facsimile: (213) 622-1656

Attorneys for Plaintiff
JENNIFER NOWICKI CLARK

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

JENNIFER NOWICKI CLARK, on behalf of herself and all others similarly situated,

Plaintiff,

v.

HERBALIFE INTERNATIONAL, INC., HERBALIFE INTERNATIONAL OF AMERICA, INC., and HERBALIFE LTD.,

Defendants.

Case No. CV-

CV12-08982

CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR VIOLATIONS OF: 1) 47 U.S.C. § 227 (TELEPHONE CONSUMER PROTECTION ACT); AND 2) SECTIONS 17200 ET. SEQ. CALIFORNIA BUSINESS AND PROFESSIONS CODE (UNFAIR COMPETITION LAW)

(JURY TRIAL DEMANDED)

Plaintiff Jennifer Nowicki Clark (hereinafter referred to as “Plaintiff’), individually and on behalf of all others similarly situated, on personal knowledge, investigation of counsel, and on information and belief and demanding trial by jury, complains and alleges as follows:

I.
NATURE OF ACTION

1. Plaintiff brings this action for damages, and other legal and equitable remedies, resulting from the illegal actions ofHerbalife International, Inc., Herbalife International of America, Inc., and Herbalife Ltd. (collectively, “Herbalife,” the “Company,” or “Defendants”) in negligently, knowingly, and/or willfully contacting Plaintiff on her cellular telephone without her prior express consent within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Plaintiff seeks statutory damages for the TCPA violations committed by Herbalife. Plaintiff also alleges that Herbalife’s conduct violates the “unlawful” prong of Section 17200 et seq. of the California Business & Professions Code (“UCL”) and seeks injunctive relief to restrain and preclude continuing and future violations.
2. Herbalife is a business that maintains its headquarters at 800 West Olympic Boulevard, Suite 406, Los Angeles, CA 90015. Herbalife is a global nutrition, weight management, and skin care company. Herbalife Ltd.’s common stock is traded on the New York Stock Exchange under the symbol “HLF.”

II.
JURISDICTION AND VENUE

3. The matter in controversy exceeds $5,000,000, as each member of the proposed Class of tens of thousands is entitled to up to $1,500.00 in statutory damages for each call that was made in violation of the TCPA. Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2). Further, because Plaintiff resides in the State of Georgia and each of the Defendants are located in the State of California, at least one Class member belongs to a state different from the Defendants. Therefore, both elements of diversity jurisdiction under the Class Action Fairness Act (“CAFA”) are present, and this Court has jurisdiction over the claims asserted.
4. Venue is proper in the United States District Court for the Central District of California pursuant to 28 U.S.C. §§ 1391(b)-(c) and 1441(a) because Herbalife is a corporation that is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. Herbalife’s contacts with this District are sufficient to subject it to personal jurisdiction in this District. Venue is also proper in this District because Herbalife had, and continues to have, its principal place of business in this District at all times relevant to these claims such that a substantial part of the events giving rise to the claims asserted herein occurred in this District.

III.
PARTIES

5. Plaintiff Jennifer Nowicki Clark is an individual and was at all times mentioned herein a citizen and resident of Cumming, Georgia. Plaintiff is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C. § 153(10).
6. Defendant Herbalife International, Inc. is, and at all times mentioned herein was, a corporation incorporated under the laws of the State of Nevada and whose primary corporate headquarters are in Los Angeles, CA. Defendant Herbalife International, Inc. is responsible for the Company’s global operations, including manufacturing, marketing, and distribution, and does business throughout the United States, including in this District.
7. Defendant Herbalife International of America, Inc. is, and at all times mentioned herein was, a corporation incorporated under the laws of the State of Nevada and whose primary corporate headquarters are in Los Angeles, CA. Defendant Herbalife International of America, Inc. is a holding company responsible for managing the Company’s U.S.-based assets, and does business throughout the United States, including in this District.
8. Defendant Herbalife Ltd. is, and at all times mentioned herein was, a corporation incorporated under the laws of the Cayman Islands and whose primary corporate headquarters are in Los Angeles, CA. Defendant Herbalife Ltd. is the corporate parent of Defendants Herbalife International, Inc. and Herbalife International of America, Inc. and does business throughout the United States, including in this District.
9. Defendants Herbalife International, Inc., Herbalife International of America, Inc., and Herbalife Ltd. are, and at all times mentioned herein were, corporations and “persons” as defined by 47 U.S.C. § 153(10).
10. At all relevant times, Defendants Herbalife International, Inc., Herbalife International of America, Inc., and Herbalife Ltd. acted as agents for one another in marketing the Company’s products and services, including with respect to direct marketing through telephone calls and SMS messages distributed to Plaintiff and the Class.

IV.
THE TELEPHONE CONSUMER PROTECTION ACT OF 1991
((TCPA), 47 U.S.C. § 227)

11. To address consumer complaints regarding certain telemarketing practices, Congress enacted the TCPA, 47 U.S.C. § 227, in 1991. The TCPA regulates, inter alia, the use of automated telephone equipment or “autodialers.” Specifically, the TCPA prohibits the use of autodialers to make any call, including text messages or SMS messages, to a wireless number in the absence of an emergency or the prior express consent of the party called. 47 U.S.C. § 227(b )(1 )(A)(iii).
12. According to findings by the Federal Communication Commission (“FCC”), which is vested with authority to issue regulations implementing the TCPA, such autodialed calls are prohibited because automated or prerecorded telephone calls are a greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly and inconvenient. The FCC also recognized that wireless customers are charged for such incoming calls whether they pay in advance or after the minutes are used.

V.
FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS

13. Defendant Herbalife is a multi-level marketing business. Herbalife’s business model utilizes independent contractors and other affiliates to sell Herbalife’s products directly to consumers. As explained on the Herbalife website
(http://company.herbalife.com/faq/company): “Independent distributors purchase products from the company to sell to their own customers. In multi-level marketing, earnings are derived from an individual’s retail sales and, after they have reached the level of supervisor, from the sales of distributors they may have recruited.”