233.3. (Dkt. 4th 310 (2011) and In re Tobacco II Cases, 46 Cal. "To demonstrate falsity within the meaning of the Lanham Act, a plaintiff may show that the statement was literally false, either on its face or by necessary implication, or that the statement was literally true but likely to mislead or confuse consumers." (Dkt. In addition, the complaint must state "what is false or misleading about a statement, and why it is false." 15 U.S.C. Nos. 15.) As a result of its false and misleading advertising practices, Defendant dupes the customers but also pulls sales away from Plaintiff and other honest retailers. Plaintiff disagrees. 20-cv-06703-TSH, 2021 WL 151978, at *10 (N.D. Cal. 24.) . 19.) District courts have also rejected Plaintiff's attempt to distinguish Sonner based on the procedural posture of the case. The hearing set on April 23, 2021 shall be vacated. Cosmetics stains (such as makeup, nail polish, nail polish remover, lipstick and body lotions). 1990). Damage from misuse (such as jumping on furniture). (Id. Hinojos v. Kohl's Corp., 718 F.3d 1098, 1103 (9th Cir. In fact, the State Attorney General for the State of Arizona initiated an action against Ashley's practice of using false, inaccurate and/or inadequate disclaimers about the terms of its sales in advertisements which resulted in a consent judgment regulating the manner in which Ashely advertises. This indicates that Ashley is fully aware of the unfair advantage by using misleading advertisement over ethical retailers. 20, FAC 8.) 18-CV-05286-PJH, 2020 WL 6544411, at *7 (N.D. Cal. We will charge or credit you for any difference in cost between the original and the re-selected mattress and you will be responsible for the delivery cost to exchange the mattresses. Yay! 15 U.S.C. This 9" foundation is the most popular choice, pairs well with most beds and has the added benefit of easy move-in. 1997); Tiffany Inc. v. eBay Inc., 600 F.3d 93, 112 (2d Cir. On February 17, 2021, Defendant filed the instant motion to dismiss all causes of action in the FAC which is fully briefed. 2009) (quotations omitted). No. 4th 298 (2009)). Guaranty Trust Co. of New York v. York, 326 U.S. 99 (1945). 2003) (applying Rule 9(b) to section 17500 claim); Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. See Teresa Adams v. Cole Haan, LLC, Case No. (Id. claim is and the grounds upon which it rests." In re GlenFed, Inc. Sec. 4th at 326 (citations omitted). Under the Lanham Act, a false advertising claim, "requires a showing that (1) the defendant made a false statement either about the plaintiff's or its own product; (2) the statement was made in commercial advertisement or promotion; (3) the statement actually deceived or had the tendency to deceive a substantial segment of its audience; (4) the deception is material; (5) the defendant caused its false statement to enter interstate commerce; and (6) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to the defendant, or by a lessening of goodwill associated with the plaintiff's product." Fed. Set the mood by choosing from five flame colors, five flame speeds, and five flame brightness levels. No. The salesperson explained that "PLUS" meant the second sales term was "another" sales option available but Plaintiff's representatives could not receive both. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. (Id. Entering a zipcode helps me customize your shopping experience by only showing products available in your area! No. Daos por mal uso (como saltar sobre los muebles). You can rest assured knowing that the foam has been put through a series of tests to ensure content, indoor emissions and durability meet the strict standards of the CertiPUR-US program. Ciertas manchas, olores y desgaste general: Problemas causados por mal uso o por el fabricante: Todos los reclamos deben ser reportados dentro de los 30 das posteriores al incidente. Id. (Dkt. 20-00268 BEN MSB, 2020 WL 6381987, at *4 (S.D. (citing IntegrityMessageBoards.com v. Facebook, Inc., No. In the unlikely event of an accident, tempered glass will only break into small pieces compared to the average piece of glass that could shatter into numerous pieces. In a rush? Plaintiff has plausibly alleged that Ashley made a literally false statement about the pricing of its own products. 1982) (citations omitted). 2015) ((quoting Kwikset Corp. v. Super. No. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 793 (9th Cir. 43-44.) Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. Scan the QR to download the app on your iOS or Android devices, Learn 2019) (on motion to dismiss because plaintiff alleged that the statement is literally false, actual deception can be presumed). No. . Damage to switch or cord (USB port not included). (Id. No. ), Defendant is also a retail seller of furniture since 1987 but in contrast to Plaintiff's no-haggle price, its business practices include false and misleading advertising intended to deceive customers into falsely believing that it offers prices and financing that cannot be beaten by Plaintiff or other competitors. If youre not happy after youve slept on it for 30 days, then don't hesitate to contact us! (Dkt. Corp. v. UIPS 856 F. Supp. However, the FAC alleges that when Plaintiff representatives visited Ashley stores, the sales representative told them that the promotion was a choice between a percentage off or extended payments without interest and they could not take advantage of both. However, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." In response, Plaintiff argues that its allegations about Mr. Lebenburger's email comments and the three federal regulations was not used to support the third factor. (Dkt. 53.) In line with this, the court held that a plaintiff must allege that she "lacks an adequate remedy at law before securing equitable restitution for past harm under the UCL and CLRA." TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825 (9th Cir. (Dkt. 1125(a)(1)(B); 2) unfair competition under California's Business and Professions Code section 17200 et seq. No. (Id. You can scan the room where you would like to keep the furniture. A plaintiff alleging competitive injury under the "false advertising" prong "need only believe that he [or she] is likely to be injured in order to bring a Lanham Act claim." Update: Shipping time may be affected. 24 at 27. Id. In Korea Supply, the California Supreme Court announced two theories to support a claim for restitution: first, the court looks at whether the plaintiff is seeking the return of money or property that was once in its possession. No. & Prof. Code 17200. Kwikset Corp., 51 Cal. (Dkt. Todas las manchas accidentales (excepto las custicas y sustancias corrosivas). (Dkt. 2009). We can only issue checks to the person(s) listed as the sold to party on the original sales order. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. Pvt. (Id. Even though the Court grants dismissal of the restitution claim under Sonner, it also considers Defendant's alternative argument on why dismissal of the restitution claim is warranted. *, Planes de proteccin son proporcionados por CNA Warranty Service, Inc. o uno de sus afiliados, y administrados por Guardin Protection Products, Inc. Hickory, NC (GuardianProducts.com)), Goof Proof te cubre sobre la mayora de daos y manchas accidentales *. The Court concludes that these allegations describe the who, what, when, where, and how of the alleged fraudulent conduct sufficient to put it on notice as to the allegations against it. The Court DENIES Defendant's motion to dismiss the three causes of action in the FAC and GRANTS Defendant's motion to dismiss the claim / / / / / / / / / / / / for restitution in the second and third causes of action. Defendant moves to dismiss the second and third causes of action for failing to establish standing, to establish it has no adequate remedy at law and that it is entitled to restitution. It is well known in the industry that higher volumes of "foot traffic" leads to higher sales. But where a UCL claim "sounds in fraud, [the plaintiff is] required to prove actual reliance on the allegedly deceptive or misleading statements, and that the misrepresentation was an immediate cause of [the] injury-producing conduct." 3d 905, 924 (N.D. Cal. Its common to experience an adjustment period with your new mattress. 9. the longer you wait the more you save, up to 40% off for 4 months." No. 49, 50.). 4, 10.) No. Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. (Dkt. Plaintiff avers that these advertisements mislead consumers into believing that Ashley will honor 40% off its regular advertised prices for all its merchandise and honor 60 months to pay off the 40% discounted purchase interest free with no down payment and no minimum purchase. Fading or discoloration that happens over time (such as from hair products). 2010) ("A claim of false advertising may be based on at least one of two theories: 'that the challenged advertisement is literally false, i.e., false on its face,' or 'that the advertisement, while not literally false, is nevertheless likely to mislead or confuse consumers.'"). Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. A company may purchase its competitor's products to conduct market research or, where the competitor's products are unprotected by intellectual property law, in an attempt to reverse engineer a particular feature. Recibir una copia de los documentos de su plan de proteccin a travs de la direccin de correo electrnico que proporcion al momento de la compra. See protection plan terms and conditions for details. (Dkt. 19.) (Id. Breakage and breakdowns of frames and mechanisms, including structural defects to metal frames, such as warping and frame breakage/cracking, and separation of frame components**. (Dkt. (Id. At the time, the promotion was "50% off plus 60 months no interest" which was in print advertisement and also on the door of Defendant's store. In opposition, Plaintiff argues that on injunctive relief, it has alleged its inability to readily ascertain money damages and that Sonner is distinguishable based on its unique procedural posture because damages claim was voluntarily dismissed on the eve of trial. All electric inserts feature ultra-realistic flames that dance on and behind the logs or crystals. ), For days before and after December 26, 2020, Defendant also ran a large billboard advertisement along the Interstate 15 freeway near the Ontario exit in Corona, California promoting a "New Year 2021 Super Sale" stating "50% OFF! "); Simpson Strong-Tie Co. Inc. v. MiTek Inc., Case No. Safer Sensor alerts you when the heater is obstructed and automatically shuts off to keep you and your family safe. 2013), as amended on denial of reh'g and reh'g en banc (July 8, 2013) (quotations omitted). 1994)). ), Finally, Plaintiff maintains that Defendant misleads by setting "time limits" on its sales. . Breakdown of wood & hard-surface furniture (including failure of mechanisms, motors, levers, drawer glides, tracks, & handles)**. Here, on the first factor, the FAC alleges that Defendant's advertisements made false statements about its own products. Case No. These ads are also misleading because the ads do not disclose that most of the merchandise at the Ashley stores are excluded from the advertised sale due to on site "manager's specials" and/or other exclusions discovered once a customer enters the stores. Breakdown of umbrella or umbrella mechanism**. (Dkt. (Id. Safer Plug continuously monitors the temperature of the plug during use and automatically shuts off the fireplace if unsafe conditions arise. (Dkt. 4th 1134, 1149, (2003). 2001). No. Food & beverage stains (such as wine, juice, baby formula). Mismatched bedding sets purchased from the Outlet must be accepted as a set at the time of delivery. "); see also Huynh v. Quora, Inc., No. Accessories include but are not limited to: rugs, lamps, bed protectors, pillows and pillow protectors. 3d 889, 911 (N.D. Cal. 3d 1068, 1086 (S.D. It is hard to imagine a scenario, though, in which a competitor plaintiff would rely on a competitor defendant's misleading advertisements and suffer injury. Its business model offers quality product and outstanding customer service at the lowest prices possible. Entering a zipcode helps me customize your shopping experience by only showing products available in your area! 2008) (quoting Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829 (9th Cir. 1996); Stauffer v. Exley, 184 F.2d 962, 966 (9th Cir. The UCL prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." On January 15, 2021, the Court granted Defendant's motion to dismiss the complaint with leave to amend. 11-13; id., Ex. 4th at 1151 (rejecting plaintiff's theory of damages not seeking disgorgement of all defendant's profits but seeking the amount it allegedly would have obtained as a commission it been awarded the contract); see also Tortilla Factory, LLC v Better Booch, LLC, Case No. Here, the FAC satisfies Rule 9(b). Apr. (Id.) 33.) (Dkt. Moreover, commercial injury is presumed "when defendant and plaintiff are direct competitors and defendant's misrepresentation has a tendency to mislead consumers." Cal. Instead, Plaintiff need only allege that it lost money or property as a result of the alleged misrepresentations. 24 at 25-29.). (Id. Bob's Goof Proof serviced by Guardian covers you for 5 full years for all stains and most accidental and unexpected damage that occur from a single incident. Moreover, the advertisement is misleading because Ashley does not disclose on the face of the ads that most of the merchandise in its stores are excluded from the terms of the promotion due to other promotions such as "manager's specials" already going on in the store and this disclaimer is buried in tiny fine print at the bottom of the ad. Again, in a November 24, 2020 internal communication, Mr. Lebensburger suggested to stores, "Raise prices, then offer a discount if willing to wait for delivery . at 826. Cal. ), On August 6, 2020, Plaintiff's representatives visited Defendant's store on Miramar Road in San Diego, California to determine if it would honor its advertised terms of sales within the stores. "Compensation for a lost business opportunity is a measure of damages and not restitution to the alleged victims." Second, the court considers whether the plaintiff has a "vested interest in the money it seeks to recover." 2002)). 18.) (Dkt. From July 28, 2020 through August 10, 2020, Defendant distributed print advertisements throughout San Diego County and southern California stating "40% OFF PLUS! Old mattresses/foundations must be in safe and sanitary condition. Make your practice more effective and efficient with Casetexts legal research suite. . The FAC seeks restitution. Accessories may be returned for a full refund within 3 days of receipt provided they are in like-new condition. Id. 2021), this Court found that the plaintiffs plausibly alleged there was no adequate remedy at law for the injunctive relief they sought to end the defendants' business practices because the plaintiffs sought "an order preventing Defendants from using the allegedly fraudulent or unlawful business practices in the future, or in other words, from causing future harm for which damages are not calculable." 2011). (Dkt. (Dkt. Cal. All stains, rips, cuts, punctures, or burns to fabric or vinyl upholstered areas & umbrellas. 20-cv-06957-VKD, 2021 WL 1253803, at *6 (N.D. Cal. Todas los reclamos deben ser reportadas dentro de los primero 30 das del incidente.. Estas son algunas excepciones que no estn cubiertas*. Distinct from this case, Sateriale, Kwikset and In re Tobacco II Cases involved UCL and/or FAL claims brought by consumer plaintiffs and not competitor plaintiffs. Therefore, Defendant's argument is belied by this allegation. P. 12(b)(6). This section does not void your rights under any state law in the event of a late or nonconforming delivery. 4th at 326. (Id.) On the second factor and fifth factor, without explanation, Defendant summarily argues that Plaintiff fails to allege that Defendant's "statement was made in a commercial advertisement or promotion, and that the statement entered interstate commerce." Shipping fees are included in the price for these products. Plaintiff claims it has alleged that Defendant's false and misleading advertisements have diverted its customers to Ashley and Plaintiff should be entitled to profits it would have earned from those customers that were diverted to Defendant's stores. 21-1 at 17.) 16, 22.) 21-1 at 15-16.) Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 140 (2014). Bob-O-Pedic Gel Memory Foam features state-of-the-art temperature sensitive memory foam that is infused with gel for temperature regulation and pressure relief. (Id. (Dkt. (Id. 2007) ("[T]he Internet is an instrumentality and channel of interstate commerce.") (Id. No. Some exclusions apply. While in the store, Plaintiff's representatives noted that nearly all items within Defendant's upholstery and dining department and all "14-piece packages" were already marked down with "manager's special"; therefore, the promotion was not applicable to those items. Si tiene alguna pregunta, comunquese con Guardian en lnea o al (800) 538-9500. 3d --, 2021 WL 347687, at *20 n. 16 (S.D. Therefore, Defendant's argument is not persuasive. No. Stains that build up over time (such as dirt or general soiling). The FAC alleges that the false advertisements actually deceive or have a tendency to deceive an appreciable number of relevant customers. 21-1 at 15.) The language of both statutes is "'broad' and 'sweeping' to 'protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.'" (Dkt. (Id. Visualize this product in your own space through our AR app! A party must set forth "the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation." at 1548. (Dkt. The FAC presents a print advertisement that was distributed within San Diego County and beyond offering 40% off PLUS 60 months interest free payment, no down payment and no minimum purchase that ran from July 28, 2020 through August 10, 2020. All electric inserts have tempered glass fronts that are cool to the touch. 24 at 35.). 20, 21.) These representations are made despite the fact it routinely refuses to honor both features of the sale and many items are excluded from the offer. 21.) Bus. Dec. 21, 2020) ("Cases in this Circuit have held that Sonner extends to claims for injunctive relief.") 1127. 14, 18.) Stains from corrosive materials that erode or strip the finish or color. 21-1 at 20.) The FAL prohibits "untrue or misleading" statements. SA CV 17-1551-DOC (JDEx), 2017 WL 10526121, at *13 (C.D. 23andMe, Inc., 356 F. Supp. more about our warranty and shipping policies. It has built its brand and customer goodwill through "Jerry's price" which the consumers have come to recognize as a no-haggle price where the customer can expect to purchase furniture and home furnishings with confidence that the stated price reflects a fair and honest price with no hidden fees or terms. It is not until the customer is on the sales floor and after they have selected merchandise to buy that they learn that the offer is either 40% off already inflated prices or 60 months interest free payments. No. Cal. "Competitor plaintiffs are concerned with the loss of sales and market share as a result of the deceptive activity. Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. P. 9(b). Protection plans provided by CNA Warranty Services, Inc. or one of its affiliates and administered by Guardian Protection Products Inc. Hickory, NC | GuardianProducts.com | LC-GDBSTAINSBB 05/2022, Los servicios de Goof Proof de Bobs son provedos por Guardian y lo cubre durante 5 aos completos contra todo tipo de manchas y la mayora de daos accidentales e inesperados que se produzcan cmo resultado de un solo incidente. Under the Lanham Act, a false advertising claims requires a plaintiff to allege: (1) an "injury to a commercial interest in sales or business reputation" (2) "proximately caused by the defendant's misrepresentations." 21-1 at 21-22.) Fed. In the bedroom section, while none of the items were marked down with "manager's specials" all were marked up to roughly double Plaintiff's prices for similar pieces. 36.) No. Accordingly, because the FAC alleges that the billboards ads are used throughout the country and Ashley uses the misleading ads on its website, the FAC has alleged that Defendant caused its false statements to enter interstate commerce. (Dkt. Accordingly, the sixth factor has been alleged. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 20, FAC 25, 27, 55.) Value Express items ship via FedEx when purchased alone or in combination with each other. No. 36-42.) 538, 542 (N.D. Cal. Defendant moves to dismiss the first cause of action arguing that Plaintiff has failed to allege facts to state a false advertising claim under the Lanham Act. Plaintiff alleges the ad is one of many examples of misleading and false advertisement in both print advertising and on Defendant's website to confuse and deceive consumers. Therefore, "the word 'commerce' as used in the Lanham Act [also] includes intrastate commerce which affects interstate commerce." Before the Court is Defendant's motion to dismiss the first amended complaint pursuant to Federal Rule of Civil Procedure 9(b) and 12(b)(6). Oct. 13, 2020) ("[N]umerous courts in this circuit have applied Sonner to injunctive relief claims.")). (Dkt. Ltd. Business and Professions Code section 17200, Business and Professions Code section 17500. (Dkt. Sept. 13, 2018) (dismissing restitution damages as it was based diverted profits to the defendant and did not demonstrate plaintiff was once in "possession of property wrongfully acquired by [the defendant], or that it had a vested interest in [the defendant's] allegedly wrongfully obtained profits."). 3d 1087, 1095 (S.D. Cal. A. Breakage or breakdown of damage of frames, springs, & sleeper, reclining, inclining, heating, and vibrating mechanisms (including motors, levers, connectors, handles, pull cords & remote control components)**, Breakdown of electronic components (such as cords, USB charging ports, & internal lighting)**. Once you accept your furniture it cannot be returned with a few exceptions We want you to be thrilled with its comfort! Duncan v. Stuezle, 76 F.3d 1480, 1489 n.14 (9th Cir. In Sonner, the Ninth Circuit, relying on United States Supreme Court precedent, held that "traditional principles governing equitable remedies in federal courts, including the requisite inadequacy of legal remedies, apply when a party requests restitution under the UCL and CLRA in a diversity action." You'll need to open the merchandise, assemble it, and discard all packing material. If your new mattress/foundation is delivered via BOBtastic White Glove Delivery, the team will remove your old mattress/foundation! 2016) ("The FAL prohibits any unfair, deceptive, untrue, or misleading advertising."). The FAC seeks restitution and injunctive relief. Jan. 18, 2021) ("A non-consumer plaintiff can allege false advertising claims under the UCL and FAL without alleging its own reliance, as long as the plaintiff has alleged a sufficient causal connection. 14.) Ashley misleads consumers to believe they may receive both 40% off and 60 months of free interest in order create foot traffic into their stores. NO interest NO down payment NO minimum purchase." (Id.) Cal. Fact: There is no such thing as 'free' delivery. Each distressed piece is one-of-a-kind! 24 at 35.) No. 23, 24.) My dual feel option allows you to have it both ways one side plush, one side firm. By promoting its false and misleading advertisement for a "limited time only" it creates a false sense of urgency as those who will respond to the ad believes they need to "act fast" and visit the stores before the sale ends. No. 20, FAC 15, 23, 29, 37.) The Act defines "commerce" as "all commerce which may lawfully be regulated by Congress." By grossly inflating the regular price of its products, it misleads consumers into believing that its goods are of higher quality than they really are. Seam separation, cracking & peeling of leather, & loss of foam resiliency. 3d at 910-11. (Id. (Id.) This service is not available for mattresses/foundations that are delivered via BOBtastic Threshold Delivery, No-Contact Delivery and FedEx. 48.) Finally, the time limits placed on advertisements, for a "limited time only" are also false or misleading because the material terms of the sale do not materially change. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Mar. Flame effects can be operated with or without heat, providing the ambiance of a gentle rolling fire all year long. 2009) (applying Rule 9(b) particularity requirement to UCL claim grounded in fraud). The app will show you a 3D version of the product to place in your room. 2017) ("As to this threshold matter, the Court agrees with the weight of authority that Rule 9(b) applies to Lanham Act claims that are grounded in fraud."). (Id. (Id. 17 at 29-30.). 2007) (internal quotation marks omitted). After a careful review of the recent caselaw and the California legislative's intent that the substantive reach of the claims under UCL and FAL be "expansive", Kwikset Corp., 51 Cal. Co. v. Thompson, 693 F.2d 991, 992-93 (9th Cir. ("UCL")' and 3) violation of California's False Advertising Law ("FAL") under Business and Professions Code section 17500 et seq. Therefore, the Court concludes that Plaintiff has plausibly alleged that it does not have an adequate remedy at law for injunctive relief and DENIES Defendant's motion to dismiss the injunctive relief claim. Because Congress may regulate the channels and instrumentalities of interstate commerce, and activities that, Furthermore, some courts in this Circuit have presumed both consumer deception and materiality when a, Full title:JEROME'S FURNITURE WAREHOUSE, a California Corporation, Plaintiff, v, Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. Daos de animales o mascotas (como daos causados por picos, garras o mandbulas). Nov. 6, 2020) (holding that plaintiffs had adequately alleged they lacked an adequate remedy at law for future harm sought to be remedied by injunctive relief). Grease, shoe polish, grass, and gum stains. "The phrase 'as a result of' in its plain and ordinary sense means 'caused by' and requires a showing of a causal connection or reliance on the alleged misrepresentation." "Rule 9(b) would clearly be superfluous if its only function were to ensure that defendants are provided with that degree of notice which is already required by Rule 8(a)." Tempered glass is stronger than your average piece of glass and also offers safety benefits. No. Plaintiff does not appear to challenge the restitution argument brought by Defendant. ), Defendant argues that Plaintiff has failed to allege standing to sue under the UCL and FAL because it failed to allege its actual reliance on the alleged false advertisements rather than reliance by third parties as the Court concluded in its prior order. Under Federal Rule of Civil Procedure 8(a)(2), the plaintiff is required only to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," and "give the defendant fair notice of what the . Cal. 24 at 27-28.). Defendant further argues that Plaintiff has not alleged any facts that it is entitled to restitution under the UCL or FAL because it has no direct or vested ownership interest in the diverted profits from Plaintiff to Defendant. v. DIRECTV, Inc., 319 F. Supp. This creates foot traffic to its stores through false and/or misleading statements. Cal. (Id. Id. In contrast, consumer plaintiffs are concerned with the deceptive activity itself and suffer a wholly different type of harm from competitorsgetting hoodwinked into purchasing a product or service. A complaint may survive a motion to dismiss only if, taking all well-pleaded factual allegations as true, it contains enough facts to "state a claim to relief that is plausible on its face."
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