Case 3:17-cv-02132 Document 1 Filed 12/20/17 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

CVS PHARMACY, INC. Plaintiff,

CIVIL ACTION NO.

V.

HERO NUTRITIONALS, LLC Defendant.

DECEMBER 20, 2017

COMPLAINT Plaintiff, CVS Pharmacy, Inc. ("CVS"), by and through its undersigned counsel, for its Complaint, hereby alleges, on knowledge as to its own conduct and otherwise on information and belief, as follows: The Parties

1.

Plaintiff CVS is a corporation, formed under the laws of the State of

Rhode Island, with its principal place of business in Woonsocket, Rhode Island. CVS is a pharmacy health care provider that, among other things, operates over 9,000 retail stores that sell a wide assortment of merchandise. 2.

Defendant, Hero Nutritionals, LLC ("Hero Nutritionals" or

"defendant"), is a limited liability company, formed under the laws of the State of California, with its principal place of business in Santa Ana, California. Defendant produces a variety of vitamin products, which it sells in stores and on-line.

Case 3:17-cv-02132 Document 1 Filed 12/20/17 Page 2 of 5

Jurisdiction and Venue

3.

This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(l)

because this is an action between citizens of different states, and the amount in controversy exceeds $75,000, exclusive of interest and costs. 4.

Venue is appropriate in this Court pursuant to 28 U.S. C. §§

1391(a)(l) because Hero Nutritionals is subject to jurisdiction in this district, and is therefore deemed to reside here. The CVS-Hero Nutritionals Relationship

5.

Starting in or about 2014, CVS agreed to purchase certain Hero

Nutritionals' vitamin products from defendant, and to re-sell them in CVS's stores. 6.

As part of the parties' agreement, Hero Nutritionals further agreed

that, if CVS elected to discontinue sales of defendant's products, Hero Nutritionals would purchase back from CVS the Hero Nutritionals products not sold by CVS. 7.

In or about February 2016, CVS informed Hero Nutritionals that

CVS was discontinuing the sale of certain of its products. CVS asked Hero Nutritionals whether it would like CVS (a) to return the unsold products back to Hero Nutritionals (in which case, CVS needed Hero Nutritionals to provide it with a return authorization); (b) to mark down the price of all unsold products until the defendant's inventory was liquidated; or (c) to dispose of or donate Hero Nutritionals' unsold products. 8.

Hero Nutritionals responded by informing CVS that it wished to have

CVS return the unsold products to defendant. 2

Case 3:17-cv-02132 Document 1 Filed 12/20/17 Page 3 of 5

9.

Thereafter, CVS asked Hero Nutritionals, multiple times, for a return

authorization number, which CVS's returns processing vendor required in order to deliver the product back to defendant. 10.

Despite receiving CVS's request for a return authorization number on

multiple occasions, Hero Nutritionals failed and refused to provide a return authorization number, making it impossible for CVS to return the unsold product to defendant. 11.

Further, Hero Nutritionals failed to complete the re-purchase of its

unsold products by paying CVS for those products. First Claim (Breach of Contract)

12.

Paragraphs 1 through 11 above are incorporated herein by reference.

13.

Hero Nutritionals breached its agreement with CVS by failing to

accept the return of -- and pay CVS for -- the discontinued Hero Nutritionals' products that were not sold in CVS's stores. 14.

As a result of the foregoing, CVS has been damaged in an amount to

be proven at trial, but believed to be no less than $631,942. Second Claim (Promissory Estoppel, Pleaded in the Alternative)

15.

Paragraphs 1 through 5 above are incorporated herein by reference.

16.

At the time CVS agreed to sell Hero Nutritionals' products in its

stores, defendant promised that, if CVS decided to discontinue the sales of Hero Nutrionals' products, it would repurchase the Hero Nutritionals products not sold by CVS.

3

Case 3:17-cv-02132 Document 1 Filed 12/20/17 Page 4 of 5

17.

CVS relied on Hero Nutritionals' foregoing promise when CVS

agreed to sell defendant's products in its stores. 18.

In the absence of Hero Nutritionals' promise, CVS would not have

agreed to purchase Hero Nutritionals' products, nor would it have agreed to sell defendant's products in its stores. 19.

In or about February 2016, CVS informed Hero Nutritionals that

CVS was discontinuing the sale of certain of defendant's products. 20.

Despite Hero Nutritionals' earlier promise, defendant has failed and

refused to repurchase from CVS the defendant's unsold products. 21.

As a result of the foregoing, CVS has been damaged in an amount to

be proven at trial, but believed to be no less than $631,942. 22.

Under the circumstances, injustice can only be avoided by awarding

CVS the damages resulting from Hero Nutritionals' failure to honor its foregoing promise.

WHEREFORE, plaintiff CVS Pharmacy, Inc. demands judgment against defendant Hero Nutritionals, LLC as follows: (a)

money damages;

(b)

interest, pursuant to governing law; and

(c)

such further relief at law or in equity that the Court deems just

and proper.

4

Case 3:17-cv-02132 Document 1 Filed 12/20/17 Page 5 of 5

RESPECTFULLY SUBMITTED, PLAINTIFF, CVS PHARMACY, INC.

By:

cl~A, -Z2 .:::::::>

· Andrew M. Zeit19 Fed. Bar No. ct 21386 SHIPMAN & GOODWIN LLP 300 Atlantic Street, Third Floor Stamford, Connecticut 06901-3522 TEL: (203) 324-8100 FAX: (203) 324-8199 E-mail: - - ~ ' " ' - - - - -

6168799v2

5

Case 3:17-cv-02132 Document 1-1 Filed 12/20/17 Page 1 of 1

CIVIL COVER SHEET

JS 44 (Rev. 06/17)

The JS 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 as provided 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 the purpose of initiating the civil docket sheet (SEE INSlRUC!lONS ON NEXT PAGE OF THIS FORM)

I. (a) PLAINTIFFS

DEFENDANTS

CVS Pharmacy, Inc.

Hero Nutritionals, LLC

(b) County of Residence of First Listed Plaintiff

_P_r_o_v_id_e_n_c_e______

County of Residence of First Listed Defendant

(EXCEPT IN US. PLAIN11 FF CASES)

_O_r=a~n~g~e_____

(IN U.S. PLAINTIFF CASES ONU) NOTE:

IN LAND CONDEMN A TJON CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

( C) Attorneys (Firm Name, Address, and Telephone Numher) Shipman & Goodwin LLP, 300 Atlantic Street, Stamford, CT 06901 (203) 324-8100

II. BASIS OF JURISDICTION (Place an "X" in One Box On/;)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box/hr Plai111iff (For Diversity Cases Only)

0 I

U.S. Government Plaintiff

0 3

0 2 U.S. Government

~ 4

Defendant

Federal Question (US Government Not a Party)

Diversity (Indicate Citi=enship of Parties in Item Ill)

IV NATURE OF SUIT (Place an I

ofVeteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

PERSONAL IN,JlJRY

0 310 Airplane 0 315 Airplane Product 0 0 0 0 0 0 0 0

REAL PROPERTY

I

0 0 0 0 0 0

Citizen of1l1is State

O

I

O

Citizen of Another State

c,:

2

0

2

Citizen or Subject of a Forei rn Countrv

0 3

0

3

CIVIL RIGHTS

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

0 0 0 0

440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 0 445 Amer. w/Disabilities Employment 0 446 Amer. wiDisabilities Other 0 448 Education

DEF 0 4

Incorporated and Principal Place of Business In Another State

0 5

C,:5

Foreign Nation

0 6

0 6

C

FORFEITURE/PENALTY

PERSONAL INJURY

0 625 Drug Related Seizure

0 365 Personal Injury -

Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor \'chicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Maloractice

PTF O 4

Incorporated or Principal Place of Business In 1l1is State

Cl IC kb ere t,or: Nature ofS lilt Cd o e Descrmt1ons.

TORTS

1 IO Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of.Judgment 0 151 Medicare Act 0 152 Recove1y of Defaulted Student Loans (Excludes Veterans) 0 153 Recovery of Overpayment

0 IX 0 0

DEF

"X" in One Box Onfv)

CONTRACT

0 0 0 0 0

and One Box for Defendant)

PTF

Product Liability 0 367 Health Care/ Phannaceutical Personal Injury Product Liability 0 368 Asbestos Personal Inj u,y Product Liability

of Property 2 I

use 88 I

0 690 Other

422 Appeal 28 0 423 Withdrawal 28 USC 157

New Drug Application

PERSONAL PROPERTY 0 370 Other Fraud 0 710 Fair Labor Standards 0 371 Truth in Lending Act 0 380 Other Personal 0 720 Labor/Management Property Damage

Relations

Product Liability

use 158

o

PROPERTY RJ• CHTS 0 820 Copyrights 0 830 Patent 0 835 Patent - Abbreviated

Amm

0 385 Property Damage

BANKRUPTCY

0 740 Railway Labor Act 0 751 Family and Medical

0 840 Trademark SOCIAi,'" !R y 0 861 HIA (1395ft) 0 862 Black Lung (923) 0 863 DIWC/DJWW (405(g)) 0 864 SSID Title XVI 0 865 RSI (405(g))

Leave Act

PRISONER PETITIONS Habeas Corpus: 0 463 Alien Detainee 0 510 Motions to Vacate

0 790 Other Labor Litigation 0 79 I Employee Retirement Income Security Act

Sentence

0 530 General 0 535 Death Penalty Other: 0 540 Mandamus & Other 0 550 Civil Rights 0 555 Prison Condition 0 560 Civil Detainee -

FEDERAL TAX SUITS 0 870 Taxes (U.S. Plaintiff or Defendant) 0 871 IRS-Third Party 26 USC 7609

OTHER STATUTES

I

0 375 False Claims Act 0 376 Qui Tam (31 USC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

0 IMMIGRATION

3729(a)) 400 State Reapportinnment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Com,pt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 89 I Agricultural Acts 893 Environmental Matters 895 Freedom of Infonnation Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

0 462 Naturalization Application 0 465 Other Immigration Actions

Conditions of Confinement

V. 0 RIG IN (Place an ~

I Original Proceeding

"X" in One Box On/;)

O 2 Removed from

State Court

0

3

Remanded from Appellate Court

0 4 Reinstated or

Reopened

0 5 Transferred from Another District (;pec/fy)

Cite the U.S. Civil Statute under which you are filing

0 6 Multidistrict Litigation Transfer

0 8 Multidistrict Litigation Direct File

(Do 1101 citej11ristlictio11a/ statutes 1111/ess diversity):

32=a,.,_1 VI. CAUSE OF ACTION l-'2=-=8c...::~"""·8:::..:·.::::;C.:....1.:.::3c::::. '-'----------------------------Bnet descnptlon of cause:

Breach of Contract

VII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F R Cv P COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY

CHECK YES only if demanded in complaint: 0 Yes )?!No

DEMAND$

JURY DEMAND:

DOCKET NUMBER

DATE

12/20/2017 FOR OFFICE USE ONLY RECEIPT#

AMOUNT

APPL YING lFP

JUDGE

MAG. JUDGE