1. law, govt and politics

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Plaintiff JIMIN CHEN, individually and on behalf of all others similarly situated, hereby
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complains against Defendant HOME DEPOT U.S.A., INC. (“Home Depot”) and DOES 1 through
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50 (generally referred to collectively herein as “Defendants”), and alleges as follows:
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PRELIMINARY STATEMENT
1.
California’s “Civil Shoplifting Law,” Penal Code § 490.5, authorizes retail
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merchants to initiate civil actions to recover statutory damages of “not less than fifty dollars ($50)
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nor more than five hundred dollars ($500)” from customers and employees who shoplift from
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their stores. Many retailers have begun to use the Civil Shoplifting Law as a profit center. They
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contract with third party “recovery services” and law firms to send out standard form letters
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demanding shoplifting “damages” that they unilaterally determine and that are entirely arbitrary.
2.
The lawyers who operate these demand letter mills do not investigate the merits of
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the retailer’s claim, have neither the authority nor the intention to sue if the accused fails to pay,
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and do not initiate actions to determine and recover statutory damages. Instead, they utilize the
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demand letters to obtain quick payments from consumers, take what they can induce consumers to
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pay, split the proceeds with the merchants and move on. The demand letters are crafted to
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frighten consumers into believing that failure to pay the amount demanded may result in criminal
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prosecution, subject them to a civil suit, and put them at risk of liability for significant additional
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damages that the merchant has no legal right to recover. Consumers, fearful and ignorant of the
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falsity of these threats, pay millions of dollars each year in satisfaction of these misleading and
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unlawful demands.
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3.
Home Depot is a knowing participant in just such an unlawful scheme. In the four
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years preceding the filing of this action, Home Depot has collected money from consumers by
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using a Florida-based law firm, Law Offices of Palmer, Reifler & Associates, P.A. (“Palmer
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Reifler”), to act as its “demand letter mill.” Palmer Reifler sends more than a million letters a
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year to consumers in the United States, including California, accused of shoplifting by Home
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Depot. Although the demand letters sent to California consumers reference Penal Code § 490.5,
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1
COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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the letters are not tailored to California law, and demand damages and fees that are not authorized
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in California.
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4.
Home Depot’s demand letters utilize threats and a smoke screen of legalese to
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intimidate consumers into paying money to which Home Depot is not entitled. When they detain
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alleged shoplifters at the store, Home Depot employees give the accused a written Notice warning
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that they may “face both criminal charges and a civil claim” and be obligated to pay a “fine …
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and/or a civil penalty;” that “failure to honor the obligation may subject you to further liability;”
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and that they can expect to hear from its attorneys at Palmer Reifler. Days later, Palmer Reifler
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sends a form demand letter for an arbitrary sum threatening that if “payment [is] not made on
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time,” Home Depot may choose to make a higher request or institute litigation in which it “will
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likely seek any available attorneys’ fees, court costs, and other legal expenses.” Home Depot has
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no right to recover such fees and expenses under California law. If the consumer fails to respond,
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Home Depot through its agent Palmer Reifler, escalates the demand and informs the consumer
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that in order to “settle this matter,” s/he must pay an even higher amount that exceeds the
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maximum statutory damages available in an action under Penal Code § 490.5, or else risk further
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litigation and liability for (unauthorized) attorneys’ fees and other damages.
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5.
Home Depot’s demand letters are not protected by any litigation privilege because
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no litigation is contemplated in good faith and under serious consideration or, in fact, undertaken,
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regardless of whether the consumer succumbs to the demands.
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6.
Plaintiff Jimin Chen is one of the many California consumers victimized by these
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unlawful, unfair and fraudulent practices. After spending nearly $1,500 at Home Depot, Plaintiff
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was stopped by a Home Depot security guard, who falsely accused him of trying to shoplift two
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pairs of work gloves – together worth less than $8 – that he had used to load the merchandise into
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his cart. Plaintiff was taken into custody, and suffered an asthma attack in the small windowless
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“stew room” in which he was detained. Instead of providing medical attention or permitting
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Plaintiff to obtain his inhaler from his vehicle, the security guard placed him in handcuffs and
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refused to allow him to leave until he provided his contact information and signed an
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2
COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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“admission.” Why? So that Home Depot would know where to send its misleading demand
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letters.
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7.
Plaintiff brings this class action to declare Home Depot’s practices unlawful,
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unfair, and fraudulent to halt the practices, and to obtain restitution for similarly-situated
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California consumers.
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PARTIES
8.
Plaintiff Jimin Chen (“Plaintiff”), is an individual over 18 years of age. He is and
at all relevant times was a resident of Alameda County, California.
9.
Defendant Home Depot U.S.A., Inc. is a corporation organized under the laws of
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the State of Delaware with its principal place of business in Atlanta, Georgia. Home Depot is
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registered to conduct business in California and has retail stores throughout the state, including in
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Alameda County.
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10.
Defendants DOES 1 through 50 are persons or entities whose true names and
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capacities are presently unknown to Plaintiff, who therefore sues them by such fictitious names.
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Plaintiff is informed and believes and on that basis alleges that each of the fictitiously named
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defendants perpetrated some or all of the wrongful acts alleged herein, is responsible in some
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manner for the matters alleged herein, and is jointly and severally liable to Plaintiff. Plaintiff will
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seek leave of court to amend this complaint to state the true names and capacities of such
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fictitiously named defendants when ascertained.
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11.
At all times mentioned herein, each named defendant and each DOE defendant
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was the agent or employee of each of the other defendants and was acting within the course and
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scope of such agency or employment and/or with the knowledge, authority, ratification and
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consent of the other defendants. Each defendant is jointly and severally liable to Plaintiff and to
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the members of the proposed Class.
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JURISDICTION AND VENUE
12.
This Court has jurisdiction over this controversy because Plaintiff resides in
California, Home Depot regularly conduct business in California, the claims asserted by Plaintiff
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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are governed by the laws of the State of California, and the injuries resulting from Defendants’
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wrongful conduct were suffered in California.
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13.
Venue is appropriate in this judicial district because Plaintiff resides in Alameda
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County, Home Depot demanded money from Plaintiff in Alameda County, and the Home Depot
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store at which Plaintiff suffered injuries is in Alameda County. Plaintiff is informed and believes
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and on that basis alleges that other class members reside in and suffered injury in Alameda
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County as well.
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14.
This Court also has jurisdiction over Plaintiff’s and the Class Members’ claims
because there is no federal question at issue in this action. Plaintiff is informed and believes, and
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on that basis alleges, that the individual claims of Plaintiff Chen and the members of the Class
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defined herein, including each putative Class Member’s pro-rata share of the requested attorneys’
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fees and all other requested relief, are under the $75,000 jurisdictional threshold for federal court,
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and the aggregate claims, including attorneys’ fees and all other requested relief, are less than the
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$5 million required to establish federal jurisdiction under the Class Action Fairness Act of 2005.
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ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
15.
On or about June 6, 2013, Plaintiff Chen and his friend were shopping at the Home
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Depot store located at 1933 Davis Street in San Leandro, California. Prior to loading lumber onto
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his cart, they each put on a pair of $3.99 work gloves in order to protect their hands. During
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checkout, the lines were extremely long and a Home Depot employee came through Plaintiff’s
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line ringing up customers with a wireless scanner. At this time, Plaintiff and his friend were still
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wearing the work gloves. Plaintiff and his friend had two carts, and assisted the employee in
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ringing up the items in the carts. When Plaintiff moved up to pay the cashier, he removed his
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gloves and placed them on top of the merchandise in his cart. The cashier asked Plaintiff if his
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items had all been scanned, and the employee who had scanned his items with the wireless
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scanner said yes. At all times, the gloves were open and visible to the Home Depot employees.
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The cashier processed a total amount of $1,445.90 for the items in Plaintiff’s carts and Plaintiff
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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paid using his Home Depot credit card. Both the Home Depot employee scanning Plaintiff’s
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items with the wireless scanner, and the cashier, failed to scan the gloves.
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16.
Immediately after Plaintiff paid for his merchandise, a Home Depot employee
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accosted Plaintiff from behind, identified himself as a store security guard, and stated that
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Plaintiff had failed to pay for the two pairs of gloves. The guard took Plaintiff and his friend into
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custody for about 30 minutes. No merchandise was ever removed from the store by Plaintiff or
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his friend.
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17.
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While in custody, Plaintiff attempted to explain what had occurred and, due to
stress and the lack of air in the room, suffered an asthma attack. The security guard refused to
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allow Plaintiff or anyone else to retrieve his prescribed inhaler from his vehicle. As panic set in
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due to Plaintiff’s asthma attack, Home Depot’s security guard placed Plaintiff, who weighs about
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115 pounds, in handcuffs.
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Home Depot’s security guard yelled at Plaintiff and his friend, emptied their
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pockets, and refused to let them speak. The security guard told them that they would be released
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only if they signed a document agreeing to stay out of the store for 90 days, and provided personal
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identifying information. Plaintiff and his friend initially refused to sign the document but, in
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order to end the confinement and out of fear of the security guard, eventually signed. Home
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Depot refused to provide Plaintiff with a copy of the document. Instead, it handed him a one-
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page document titled, “Notice of Intent to Exercise the Rights and Potential Remedies of Home
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Depot,” a true and correct copy of which is attached hereto as Exhibit A.
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Although Plaintiff was not arrested and the police were not called, the Notice
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warned that “You may face both criminal charges and a civil claim related to this incident.” The
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Notice is plainly a standard form used by Home Depot throughout the country without regard to
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applicable state law; for example, it states that “pursuant to your local state statute(s), you may be
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liable to pay The Home Depot a certain civil penalty demand including damages and/or a civil
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penalty amount for being involved in the act itself.” It also states that, “You will soon receive
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further information from The Home Depot’s attorneys (Law Offices of Palmer, Reifler, and
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5
COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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Associates, P.A.) regarding demand for the civil penalty…Failure to honor the obligation may
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subject you to further liability.”
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Home Depot’s Demands
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20.
On or about June 10, 2013, Home Depot, through its agent Palmer Reifler, sent
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Plaintiff a demand letter, a true and correct copy of which is attached hereto as Exhibit B. The
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letter, printed on Palmer Reifler letterhead, states that “[t]his Law Firm represents Home Depot
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concerning its civil claim against you in connection with an incident in their store 625 on
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6/6/2013.” The letter ( the “First Demand Letter”) demands that Mr. Chen pay $350 within the
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next 20 days, or else Home Depot may consider filing a lawsuit “[p]ursuant to California Penal
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Code Section 490.5, ‘Theft of retail merchandise; civil liability.’” The First Demand Letter goes
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on to threaten:
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Should full or partial payment not be made on time, we may review
the matter for the possibility of recommending that our client take
further civil action and depending on the state law, may choose to
make a higher settlement request on behalf of our client. Home Depot
may in the future consider filing a lawsuit, in which case it will likely
seek any available attorney’s fees, court costs and other legal
expenses throughout such litigation. Any defending party to such a
lawsuit would likely be served by a process server with a summons
requiring the party or the party’s attorney to respond and/or appear in
court to defend the action. If successful in any such litigation, we
estimate that Home Depot would be seeking a final judgment of
damages, court costs and/or attorney’s fees up to the maximum
amounts allowed by law which might exceed the amount demanded
above. [Emphasis added.]
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21.
Home Depot did not discuss the merits or value of any potential claim against Mr.
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Chen with Palmer Reifler or any other attorney. Rather, the amount of Home Depot’s demand
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was an arbitrarily preset amount unilaterally determined by Home Depot and demanded by
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Palmer Reifler from all individuals accused of shoplifting from Home Depot stores, without
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regard to the circumstances of the alleged theft or the value or condition of the merchandise at
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issue.
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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22.
The First Demand Letter is unfair and misleading. It significantly overstates the
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relief to which Home Depot might legally be entitled. Among other things, the letter states that if
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the consumer fails to pay, s/he could be liable for Home Depot’s attorneys’ fees, whereas neither
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Penal Code § 490.5 nor any other potentially applicable California law authorizes the court to
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award attorneys’ fees in connection with the litigation of a civil shoplifting claim. The First
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Demand Letter also fails to disclose that the consumer has the right to dispute the basis of the
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claims and the amount demanded.
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23.
The First Demand Letter is a standard form letter that has been and continues to be
sent to hundreds, if not thousands, of individuals accused by Home Depot of shoplifting from its
stores in California.
24.
Home Depot sent Plaintiff a Second Demand Letter dated July 5, 2013, a true and
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correct copy of which is attached hereto as Exhibit C. This letter asserts that Mr. Chen has “failed
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to make full payment after written demand to do so,” and that as a consequence the demand has
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been increased to $625.00 – which is 25% greater than the maximum statutory damages available
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under Penal Code § 490.5. The Second Demand Letter repeats the threats in the First Demand
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Letter; warns that if payment is not made, the matter will be referred back to the client (Home
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Depot); and asserts that if it “is successful in any such litigation, we estimate that Home Depot
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would be seeking a final judgment of damages, attorney’s fees and court costs up to the maximum
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amounts allowed by law which could possibly, exceed the amount demanded above.”
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25.
Home Depot’s practice of sending the Second Demand Letter is unlawful, unfair
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and fraudulent for the same reasons as the First Demand Letter. In addition, the second demand
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letter is unlawful, unfair and fraudulent because:
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the increased demand is punitive in nature;
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the demand exceeds the maximum statutory damages available under Penal Code
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§ 490.5; and
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Home Depot asserts a right to higher damages despite the fact that its claim is
based on the identical circumstances, and no additional injury had been sustained.
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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26.
Plaintiff is informed and believes, and on that basis alleges, that this Second
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Demand Letter is also a standard form document that has been sent to hundreds, if not thousands,
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of California consumers on behalf of Home Depot.
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27.
The Second Demand Letter states that the $625.00 is due within 10 days, but that it
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may be paid in three installments, the first within ten days of the date on the letter and the
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remaining two 30 and 60 days thereafter, respectively. However, the proffered installment plan is
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contingent on Mr. Chen’s paying a $10.00 installment fee for each partial payment, which would
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bring the total “due” to $655. In the event Plaintiff elected to pay by credit card, an additional
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“convenience fee” of $14.50 per transaction would be charged, bringing the total “due” to
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$698.50.
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The Civil Shoplifting Law
28.
California’s Civil Shoplifting Law, Penal Code § 490.5, authorizes merchants to
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bring a civil action to recover (1) the value of any merchandise unlawfully removed from the
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premises “if not recovered in merchantable condition,” and (2) “damages of not less than fifty
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dollars ($50.00) nor more than five hundred dollars ($500.00) plus costs.” The statute provides
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that such actions “may be brought in small claims court if the total damages do not exceed the
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jurisdictional limit of such court, or in any other appropriate court.”
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29.
The statutory damages available under Penal Code § 490.5 are within the
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jurisdiction of the small claims court. (Code Civ. Proc. § 116.220.) Parties suing in small claims
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court in California cannot be represented by an attorney. (Code Civ. Proc. § 116.530(a).) There
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is no right to recover attorneys’ fees in an action filed in small claims court.
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30.
To maintain an action under Penal Code § 490.5 subsection (c), the merchant
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“must establish at a minimum (1) the unlawful taking (2) of merchandise (3) from the premises
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(4) by an adult or emancipated minor.” (69 Ops. Cal. Att. Gen. 271, 1986 WL 193433.)
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31.
Penal Code § 490.5 does not authorize any self-help remedies, and does not
authorize the merchant or its agents to recover late payment fees, credit card fees, installment
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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fees, convenience fees, or interest. Nor does it authorize an award of attorneys’ fees to a
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prevailing party in an action under the statute.
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The Relationship Between Palmer Reifler and Home Depot
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32.
Plaintiff is informed and believes, and on that basis alleges, that clients such as
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Home Depot enter into a contract with Palmer Reifler to act as their agent for the recovery of
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amounts from consumers in exchange for a percentage of the money paid in response to its
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demand letters. In the demand letters, Palmer Reifler acknowledges and represents that it is
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acting on behalf of Home Depot. At all times and in connection with all of the acts alleged
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herein, Palmer Reifler was the agent of Home Depot.
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33.
Plaintiff is further informed and believes, and on that basis alleges: (a) that Home
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Depot never discussed with Palmer Reifler, and never contemplated, filing suit against Plaintiff
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for the $350 demanded in the First Demand Letter , the $625 demanded in the Second Demand
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Letter, or any other amount; (b) that Home Depot never asked Palmer Reifler to evaluate the
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circumstances of Plaintiff, or any other class member to determine whether there was a good faith
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basis for any claim or the amount thereof and (c) that in the four years preceding the filing of the
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action, Home Depot did not file an action against any California consumer under Penal Code §
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490.5.
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CLASS ACTION ALLEGATIONS
34.
Pursuant to California Code of Civil Procedure § 382, Plaintiff brings this class
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action on behalf of himself and all other persons similarly situated. Plaintiff brings this action in
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a representative capacity to remedy and put an end to the ongoing unlawful, unfair and fraudulent
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business practices alleged herein, and to seek redress on behalf of all those persons who have
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been affected thereby.
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35.
The proposed class is comprised of all residents of California who, at any time
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within the four years prior to the filing of this Complaint, were sent one or more letters from
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Home Depot that demanded payment of damages pursuant to California Penal Code § 490.5, and
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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who made any payment to Home Depot or its agents including but not limited to Palmer, Reifler
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& Associates, P.A.
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36.
Plaintiff is unable to state the precise number of members of the class because that
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information is in the sole possession of Home Depot. Plaintiff estimates that the class consists of
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hundreds, if not thousands, of individuals throughout the State of California, and is so numerous
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that joinder of all members would be impracticable. The exact size of the class, and the identity
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of the members thereof, will be readily ascertainable from the business records of Home Depot
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and/or its agents.
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37.
There is a community of interest among the members of the class in that there are
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questions of law and fact common to the class that predominate over questions affecting only
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individual members. Proof of a common set of facts will establish the liability of Defendants, and
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the right of each member of the class to recover.
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38.
Plaintiff’s claims are typical of those of the class he seeks to represent, and he will
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fairly and adequately represent the interests of the class. Plaintiff is represented by counsel
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competent and experienced in both consumer protection and class action litigation.
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39.
A class action is superior to other methods for the fair and efficient adjudication of
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this controversy. Because the damages suffered by the individual class members are small
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compared to the expense and burden of litigation, it would be impracticable and economically
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unfeasible for class members to seek redress individually. The prosecution of separate actions by
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the individual class members, even if possible, would create a risk of inconsistent or varying
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adjudications with respect to individual class members against Defendants, and would establish
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incompatible standards of conduct. Further, a class action is in the interests of justice because
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many class members are likely unaware that Home Depot’s conduct is illegal, and lack the
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financial and informational resources to protect their rights.
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//
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10
COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
FIRST CAUSE OF ACTION
Violations of Business and Professions Code § 17200, et seq.
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40.
Plaintiff incorporates each of the foregoing paragraphs as though fully set forth
herein, and further alleges as follows.
41.
Business and Professions Code § 17200 et seq., often referred to as the “Unfair
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Competition Law” or “the UCL,” defines unfair competition to include any unlawful, unfair, or
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fraudulent business act or practice. The UCL provides that a court may order injunctive relief and
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restitution as remedies for any violations of the UCL.
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42.
Beginning on an exact date unknown to Plaintiff, but at all times relevant herein
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and during the four years preceding the filing of the Complaint in this action, Home Depot
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committed and it continues to commit acts of unfair competition proscribed by the UCL,
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including the practices alleged herein in connection with the Notice, the First Demand Letter, the
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Second Demand Letter and the collection of amounts pursuant thereto.
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43.
The business acts and practices alleged herein constitute unfair business practices
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in that said acts and practices offend public policy and are substantially injurious to the public.
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The acts and practices of Home Depot violate California public policy that is tethered to
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regulations governing persons engaged in the practice of collection. For example, the Rosenthal
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Fair Debt Collection Practices Act, which declares that it was enacted in response to the “need to
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ensure that debt collectors and debtors exercise their responsibilities to one another with fairness,
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honesty and due regard for the rights of the other,” has as its purpose, “to prohibit debt collectors
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from engaging in unfair or deceptive acts or practices in the collection of consumer debts and to
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require debtors to act fairly in entering into and honoring such debts…” Civil Code § 1788.1.
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Home Depot’s acts and practices have no utility that outweighs their substantial harm to
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consumers. Furthermore, Home Depot’s practices violate public policy as expressed in (i) Civil
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Code § 1788.13(c), which prohibits debt collectors from falsely representing the debt may be
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increased by the amount of attorneys’ fees, service fees, and/or “convenience fees,” where such
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fees or charges may not legally be assessed; and (ii) Civil Code § 1788.13(j), which prohibits “the
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
1
false representation that a legal proceeding has been, is about to be, or will be instituted unless
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payment of a consumer debt is made.”
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44.
The business acts and practices alleged herein constitute unlawful business
practices in that they violated Penal Code § 490.5.
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45.
The business acts and practices alleged herein constitute fraudulent business
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practices in that said acts and practices are likely to deceive members of the public as to their
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legal rights and obligations, and by use of such deception, may preclude such individuals from
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exercising legal rights to which they are entitled. In particular, Home Depot’s demand letters are
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intended and likely to deceive a consumer into believing (i) that it has retained an attorney to sue
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him; (ii) that a lawsuit has been or is likely to be filed; (iii) that he has a legal obligation to pay
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the amount of damages set forth in the demand; (iv) that failure to pay is likely to result in an
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expensive lawsuit and judgment against him; and (v) that failure to pay is likely to result in a
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significantly higher judgment against him; and (vi) that he is liable for attorneys’ fees – none of
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which is true.
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46.
The unlawful, unfair and fraudulent business acts and practices of Home Depot
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described herein present a continuing threat to the public in that Home Depot is currently
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engaging in such acts and practices, and will persist and continue to do so unless and until an
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injunction is issued by this Court.
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47.
Based on the language of the communications he received from Home Depot and
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Palmer Reifler, Plaintiff believed Home Depot would sue him to collect money, including
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attorneys’ fees and costs. Relying on the threats made in the letters, Plaintiff has lost money or
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property, including the amounts paid to Home Depot and the amounts he paid to protect his
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interests, as the direct result of Home Depot’s unlawful, unfair, and fraudulent practices alleged
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herein.
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48.
As a direct and proximate result of the acts and practices described herein, Home
Depot and its agent have received and collected money from Plaintiff and class members. Home
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
1
Depot should be ordered to provide full and complete restitution of all amounts collected from
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class members.
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49.
Pursuant to Business and Professions Code § 17203, Plaintiff seeks an order
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enjoining Home Depot from engaging in such acts and practices as hereinabove alleged, and
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providing appropriate restitution to Plaintiff and members of the class.
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50.
Pursuant to Code of Civil Procedure § 1021.5, Plaintiff seeks recovery of
attorneys’ fees, costs and expenses incurred in the filing and prosecution of this action.
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WHEREFORE, Plaintiff prays for relief as set forth below.
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SECOND CAUSE OF ACTION
Declaratory Relief
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51.
Plaintiff incorporates each of the foregoing paragraphs as though fully set forth
herein, and further alleges as follows.
52.
An actual controversy has arisen between Plaintiff and the members of the
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proposed class, on the one hand, and Home Depot on the other hand, as to their respective rights,
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remedies and obligations. Specifically, Plaintiff alleges that the acts and practices of Home Depot
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as herein alleged are unlawful, unfair, and fraudulent, and that Plaintiff and members of the class
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are therefore not liable for the inflated civil damages demanded by Home Depot, and are entitled
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to restitution for any and all amounts paid on such demands, and any other such amounts of
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restitution or other relief as the court may order. Plaintiff further contends that Home Depot must
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be enjoined from continuing to send out and attempting to collect upon demand letters that violate
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California law, as hereinabove alleged.
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53.
Plaintiff further contends that Home Depot has been unjustly enriched at the
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expense and to the detriment of class members by collecting monies to which it is not entitled and
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has wrongfully collected.
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54.
Home Depot disputes all of Plaintiff’s contentions and contends to the contrary.
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Accordingly, Plaintiff seeks a declaration as to the respective rights, remedies, and obligations of
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the parties.
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
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WHEREFORE, Plaintiff prays for relief as set forth below.
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PRAYER FOR RELIEF
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Plaintiff respectfully prays for relief as follows:
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1.
For an order certifying the proposed class;
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2.
For an order finding and declaring that Home Depot’s acts and practices as
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challenged herein are unlawful, unfair and fraudulent;
3.
For an order preliminarily and permanently enjoining Home Depot from engaging
in the practices challenged herein;
4.
For an order against Home Depot of restitution and/or disgorgement in an amount
to be determined at trial;
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5.
For an accounting;
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6.
For pre-judgment interest to the extent permitted by law;
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7.
For an award of attorneys’ fees, costs and expenses incurred in the investigation,
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filing and prosecution of this action under any applicable provision of law;
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8.
For declaratory relief; and
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9.
For such other and further relief as the Court deems proper.
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Dated: September 5, 2013
CHAVEZ & GERTLER LLP
KLECZEK LAW OFFICE
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By:
Nance F. Becker
Attorneys for Plaintiff
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COMPLAINT FOR UNLAWFUL, UNFAIR AND DECEPTIVE BUSINESS PRACTICES
and DECLARATORY RELIEF
EXHIBIT A
NOTICE OF INTENT TO EXERCISE THE RIGHTS AND
POTENTIAL REMEDIES OF HOME DEPOT
You were apprehended at our store for the unlawful act of attempting to take or
taking goods, merchandise, cash or other property from one of our stores without
permission or paying for it. You may face both criminal charges and a civil claim related to
this incident. The purpose of this notice is to provide you with some general information as
to what may happen to you from this point.
Regarding any possible criminal charges, based solely upon the determination of the
local authorities, you may be ordered to appear before a local court to answer these charges.
Included in any criminal proceedings may be an order to pay a fine to the court. Further,
pursuant to your local state statute(s), you may be liable to pay The Home Depot a certain
civil penalty demand including damages and/or a civil penalty amount for being involved in
the act itself. This civil penalty demand is totally separate and apart from any fines that may
be levied upon you for your criminal act(s).
You will soon receive further information from The Home Depot's attorneys (Law
Offices of Palmer, Reifler, and Associates, P. A.) regarding demand for the civil penalty.
Upon receipt of the demand, you are expected to promptly respond to the phone number
provided to you at that time. Failure to honor the obligation may subject you to further
liability. If you have any questions regarding civil demand, you may contact our attorneys at
572-5637.
10/2010
EXHIBIT B
EXHIBIT C