Britton v. Johnson & Johnson et al, No. 3:2010cv04450 - Document 18 (N.D. Cal. 2010)
Court Description: STIPULATION AND ORDER Granting leave to file first amended complaint. Signed by Judge Thelton E. Henderson on 12/21/10. (tmi, COURT STAFF) (Filed on 12/21/2010)
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Britton v. Johnson & Johnson et al 1 Doc. 18 Counsel of Record on Next Page 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 ) Case No. 3:10-cv-04450-TEH CHARLENE A. BRITTON, individually, and on behalf of all others ) similarly situated, ) CLASS ACTION 13 Plaintiff, 14 vs. 15 JOHNSON & JOHNSON, McNEILPPC, INC., and JOHNSON & JOHNSON CONSUMER PRODUCTS, INC., 16 17 18 19 Defendants. ) ) JOINT STIPULATION AND [PROPOSED] ) ORDER GRANTING LEAVE TO FILE FIRST ) AMENDED COMPLAINT ) ) ) ) ) ) ) ) ) 20 21 22 23 24 25 26 27 28 -1Joint Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 18 19 20 21 22 23 Scott Edward Cole, Esq. (S.B. #160744) Matthew R. Bainer, Esq. (S.B. #220972) Hannah R. Salassi, Esq. (S.B. #230117) SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Ninth Floor Oakland, California 94612 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 scole@scalaw.com mbainer@scalaw.com hsalassi@scalaw.com Web: www.scalaw.com Attorneys for Representative Plaintiff and the Plaintiff Classes Richard B. Goetz, Esq. (S.B. #115666) Carlos M. Lazatin, Esq. (S.B. #229650) Timothy P. Caballero, Esq. (S.B. #254599) O’MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 rgoetz@omm.com clazatin@omm.com tcaballero@omm.com Travis J. Tu, Esq. Ryan Sirianni, Esq. PATTERSON, BELKNAP, WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2765 Telephone: (212) 336-2561 Facsimile: (212)336-7966 tjtu@pbwt.com rsirianni@pbwt.com Attorneys for Defendants JOHNSON & JOHNSON, McNEIL-PPC, INC., and JOHNSON & JOHNSON CONSUMER PRODUCTS, INC. 24 25 26 27 28 -2Joint Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint 1 Representative Plaintiff Charlene Britton (“Plaintiff”) and defendants Johnson & 2 Johnson, McNeil-PPC, Inc., and Johnson & Johnson Consumer Products, Inc. (collectively, 3 “Defendants”), by and through their respective counsel of record named herein, hereby stipulate 4 as follows: 5 6 WHEREAS on October 1, 2010, Plaintiff filed a class action complaint on behalf of 7 herself and all others similarly situated who had purchased Johnson & Johnson’s Listerine Total 8 Care Anticavity Mouthwash; 9 WHEREAS Plaintiff wishes to file a First Amended Complaint which would add ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 putative class members Itak Moradi and Kathy Pahigian into the case as additional class 11 SCOTT COLE & ASSOCIATES, APC 10 representatives; 12 WHEREAS defendant Johnson & Johnson Consumer Products, Inc., has changed its 13 name to Johnson & Johnson Consumer Companies, Inc., and Plaintiff seeks to amend her 14 complaint to reflect the same; 15 16 17 18 WHEREAS Defendants have agreed that Plaintiff may file the First Amended Complaint in the form of Exhibit “A” attached hereto; and, WHEREAS the parties have attached a “redline” comparison of the operative Complaint and the First Amended Complaint as Exhibit “B;” 19 20 THEREFORE, the parties, through their undersigned respective counsel, stipulate and 21 request that the Court hereby enter an Order granting Plaintiff leave to file the First Amended 22 Complaint in the form attached hereto as Exhibit “A.” 23 24 IT IS SO STIPULATED. 25 26 27 28 -3Joint Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint 1 Dated: December 20, 2010 SCOTT COLE & ASSOCIATES, APC 2 3 By: 4 5 /s/ Molly A. DeSario, Esq. Attorneys for the Representative Plaintiffs and the Plaintiff Classes 6 7 Dated: December 20, 2010 O’MELVENY & MEYERS LLP 8 9 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 By: /s/ Richard B. Goetz, Esq. Carlos M. Lazatin, Esq. Timothy P. Caballero, Esq. Attorneys for Defendants JOHNSON & JOHNSON, McNEIL-PPC, INC., and JOHNSON & JOHNSON CONSUMER PRODUCTS, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4Joint Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint 1 Complaint in the form of Exhibit “A” attached hereto. 4 UNIT ED S IT IS SO ORDERED. 6 21 Dated: December ___, 2010 ______________________________ The Hon. Thelton E. Henderson United States District Court Judge 8 elton E udge Th J RT 10 rson . Hende NO 9 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 12 A H ER 11 R NIA 7 RT U O 5 S DISTRICT TE C TA FO 3 Good cause appearing, Plaintiff is hereby granted leave to file the First Amended LI 2 [PROPOSED] ORDER N F D IS T IC T O R C 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5Joint Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint 1 DECLARATION OF E-FILED SIGNATURE 2 I, Molly A. DeSario, Esq., am the ECF User whose ID and Password are being used to file 3 this Joint Stipulation and Proposed Order Granting Leave to File First Amended Complaint. In 4 compliance with General Order 45, X.B., I hereby declare that Carlos M. Lazatin, Esq. has read and 5 approved this Joint Stipulation and Proposed Order Granting Leave to File First Amended 6 Complaint and consents to its filing in this action. 7 8 SCOTT COLE & ASSOCIATES, APC Dated: December 20, 2010 9 10 By: ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 /s/ Molly A. DeSario, Esq. Attorneys for the Representative Plaintiffs And the Plaintiff Classes 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1Declaration of E-File Signature 1 2 3 4 5 6 7 8 Scott Edward Cole, Esq. (S.B. #160744) Matthew R. Bainer, Esq. (S.B. #220972) Hannah R. Salassi, Esq. (S.B. # 230117) SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Ninth Floor Oakland, California 94612 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 email: scole@scalaw.com email: mbainer@scalaw.com email: hsalassi@scalaw.com Web: www.scalaw.com Attorneys for Representative Plaintiffs and the Plaintiff Classes 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 CHARLENE A. BRITTON, ITAK MORADI, KATHY PAHIGIAN, individually, and on behalf of all others similarly situated, 14 15 16 17 18 Plaintiffs, vs. JOHNSON & JOHNSON, McNEILPPC, INC., and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendants. 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:10-cv-04450-TEH CLASS ACTION FIRST AMENDED COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF AND RESTITUTION [Jury Trial Demanded] 20 21 Representative Plaintiffs allege as follows: 22 23 PRELIMINARY STATEMENT 1. This is a class action, brought under Rule 23(b)(2) and/or (b)(3) of the Federal 24 Rules of Civil Procedure, seeking damages, restitution, interest thereon, injunctive and other 25 equitable relief and reasonable attorneys’ fees and costs on behalf of Representative Plaintiffs 26 and all other persons (hereinafter referred to as the “Class Members,” the “Plaintiff Classes” 27 and/or either of the Classes defined herein) who have purchased Listerine Total Care Anticavity 28 Mouthwash (hereinafter referred to as “Listerine Total Care” or “mouthwash”) from Defendants -1First Amended Complaint for Damages, Injunctive Relief and Restitution 1 Johnson & Johnson, McNEIL-PPC, Inc., and/or Johnson & Johnson Consumer Companies, Inc. 2 (hereinafter collectively referred to as “Defendants”), either directly therefrom or indirectly from 3 a distributor or retailer thereof within the United States at any time during the applicable 4 limitations period. The Representative Plaintiffs, on behalf of themselves and all Class Members, 5 also seek injunctive relief and restitution of all benefits Defendants have enjoyed from their 6 unlawful and/or deceptive business practices, as detailed herein. 7 8 9 JURISDICTION AND VENUE 2. Jurisdiction is proper in this Court under 28 U.S.C. § 1332 (diversity jurisdiction) ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 and/or 28 U.S.C. §1331 (controversy arising under United States law). Supplemental jurisdiction 11 SCOTT COLE & ASSOCIATES, APC 10 to adjudicate issues pertaining to state law is proper in this Court under 28 U.S.C. § 1367. 12 3. Venue is proper in this Court under 28 U.S.C. § 1391 because the events that give 13 rise to Plaintiffs’ claims took place within the Northern District of California and because 14 Defendants market, distribute, and sell their products within this District. 15 16 17 PLAINTIFFS 4. Charlene Britton, Itak Moradi, and Kathy Pahigian, the named/representative 18 Plaintiffs identified herein, were and are natural persons and, during the relevant time period, 19 purchased and used (or attempted to use) Johnson & Johnson Listerine Total Care Anticavity 20 Mouthwash, yet did not receive the full value of the product, as promised by Defendants. 21 5. As used throughout this Complaint, the term “Class Members” and/or the 22 “Plaintiff Classes” refers to the named plaintiffs herein as well as each and every person eligible 23 for membership in one or more of the classes of persons, as further described and defined herein. 24 25 26 27 6. At all times herein relevant, Representative Plaintiffs were and are persons within each of the classes of persons further described and defined herein. 7. Representative Plaintiffs bring this action on behalf of themselves and as a class action, pursuant to Rule 23(b)(2) and/or (b)(3) of the Federal Rules of Civil Procedure, on behalf 28 -2First Amended Complaint for Damages, Injunctive Relief and Restitution 1 of all persons similarly situated and proximately damaged by the unlawful conduct described 2 herein. 3 4 5 DEFENDANTS 8. At all times herein relevant, Defendant Johnson & Johnson was a corporation, 6 duly licensed in New Jersey and doing business in this Judicial District as well as throughout the 7 United States. Johnson & Johnson maintains its principal place of business in New Brunswick, 8 New Jersey. 9 9. Defendant McNeil-PPC, Inc. is a pharmaceutical company belonging to ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 Defendant Johnson & Johnson. At all times herein relevant, Defendant McNeil-PPC, Inc. was a 11 SCOTT COLE & ASSOCIATES, APC 10 corporation, duly licensed in New Jersey and doing business in this Judicial District as well as 12 throughout the United States. Defendant McNeil-PPC, Inc. maintains its principal place of 13 business in Fort Washington, Pennsylvania. 14 10. Defendant Johnson & Johnson Consumer Companies, Inc. is a division of 15 McNeil-PPC, Inc. At all times herein relevant, Defendant Johnson & Johnson Consumer 16 Companies, Inc. was a corporation, duly licensed in New Jersey and doing business in this 17 Judicial District as well as throughout the United States. Defendant Johnson & Johnson 18 Consumer Companies, Inc. maintains its principal place of business in Fort Washington, 19 Pennsylvania. 20 11. Representative Plaintiffs are informed and believe and, on that basis, allege that, 21 at all relevant times herein-mentioned, each of the Defendants either identified herein and/or who 22 may be identified in subsequent versions of this Complaint was the agent and/or employee of 23 each of the remaining Defendants and, in doing the acts herein alleged, was acting within the 24 course and scope of such agency and/or employment. 25 26 27 28 CLASS ACTION ALLEGATIONS 12. Representative Plaintiffs bring this action on behalf of themselves and as a class action on behalf of the following Plaintiff Classes: -3First Amended Complaint for Damages, Injunctive Relief and Restitution 1 2 3 4 California Class: “All persons who purchased, within the State of California, Listerine Total Care Anticavity Mouthwash.” National Class: “All persons who purchased, within the United States, Listerine Total Care Anticavity Mouthwash.” 5 6 7 8 13. Defendants and their officers and directors are excluded from both of the Plaintiff Classes. 14. This action has been brought and may properly be maintained as a class action community of interest in the litigation and membership in the proposed Classes is easily 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 under Federal Rule of Civil Procedure Rule 23(b)(2) and/or (b)(3) because there is a well-defined 10 SCOTT COLE & ASSOCIATES, APC 9 ascertainable: 12 a. Numerosity: A class action is the only available method for the fair and efficient adjudication of this controversy. The members of the Plaintiff Classes are so numerous that joinder of all members is impractical, if not impossible, insofar as the Representative Plaintiffs are informed and believe and, on that basis, allege that the total number of Class Members is in the thousands, if not millions, of individuals. Membership in the Classes will be determined by analysis of point of sale, electronic-mail and/or other transactional information, among other records maintained by Defendants. b. Commonality: The Representative Plaintiffs and the Class Members share a community of interests in that there are numerous common questions and issues of fact and law which predominate over questions and issues solely affecting individual members, including, but not necessarily limited to: 13 14 15 16 17 18 19 20 1) Whether Defendants knew or should have known of the ineffectiveness of the active ingredient contained in Listerine Total Care; 2) Whether Defendants had a duty to disclose to consumers the true effectiveness of the product; 3) Whether Defendants’ advertising of Listerine Total Care was false, deceptive, and/or misleading; 4) Whether Defendants violated California Business and Professions Code §17500, et seq. by engaging in misleading or deceptive advertising; 21 22 23 24 25 26 27 28 -4First Amended Complaint for Damages, Injunctive Relief and Restitution 5) Whether Defendants violated California Civil Code §1750, et seq. by engaging in unfair or deceptive trade practices; 6) Whether Defendants breached express warranties and/or implied warranties of merchantability and/or fitness regarding Listerine Total Care’s functionality and effectiveness; 7) Whether Defendants violated California Civil Code §1790, et seq. by breaching express and implied warranties; 8) Whether Defendants intentionally or negligently misrepresented Listerine Total Care’s functionality and effectiveness; 9) Whether Defendants’ engagement in false representations regarding Listerine Total Care’s functionality and effectiveness constituted a fraud on consumers; and 10) 1 Whether Defendants violated California Business and Professions Code §§ 17200, et seq. by engaging in unfair, unlawful and/or fraudulent business practices. 2 3 4 5 6 7 8 9 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 c. Typicality: The Representative Plaintiffs’ claims are typical of the claims of the Plaintiff Classes. Representative Plaintiffs and all members of the Plaintiff Classes sustained damages arising out of and caused by Defendants’ common course of conduct in violation of law, as alleged herein. d. Adequacy of Representation: The Representative Plaintiffs in this class action are adequate representatives of each of the Plaintiff Classes in that the Representative Plaintiffs have the same interest in the litigation of this case as the Class Members, are committed to vigorous prosecution of this case and have retained competent counsel who are experienced in conducting litigation of this nature. The Representative Plaintiffs are not subject to any individual defenses unique from those conceivably applicable to other Class Members or the Classes in their entirety. The Representative Plaintiffs anticipate no management difficulties in this litigation. e. Superiority of Class Action: Since the damages suffered by individual Class Members, while not inconsequential, may be relatively small, the expense and burden of individual litigation by each member makes or may make it impractical for members of the Plaintiff Classes to seek redress individually for the wrongful conduct alleged herein. Should separate actions be brought or be required to be brought, by each individual member of the Plaintiff Classes, the resulting multiplicity of lawsuits would cause undue hardship and expense for the Court and the litigants. The prosecution of separate actions would also create a risk of inconsistent rulings which might be dispositive of the interests of other Class Members who are not parties to the adjudications and/or may substantially impede their ability to adequately protect their interests. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5First Amended Complaint for Damages, Injunctive Relief and Restitution f. Rule 23(b)(2): In addition, Defendants have acted and/or refused to act on grounds that apply generally to the Plaintiff Classes, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. g. 1 Rule 23(b)(3): Questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior, in ways including, but not limited to, paragraph (e) herein, to other available methods for fairly and efficiently adjudicating the controversy. 2 3 4 5 6 7 8 9 COMMON FACTUAL ALLEGATIONS 15. For more than 120 years, the Johnson & Johnson brand-name has been associated with the innovation, development and marketing of home healthcare products. 16. As part of its “Oral Health Care” line, Defendants produce, manufacture, and ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 distribute Listerine Total Care in a variety of flavors and market the product to consumers 11 SCOTT COLE & ASSOCIATES, APC 10 nationwide. As such, Listerine Total Care has been purchased by thousands, if not millions, of 12 consumers, both in California and nationwide, all of whom are putative Class Members. 13 14 15 16 17 17. Listerine Total Care is a home healthcare product designed and marketed for consumer use as total oral healthcare. 18. Indeed, Listerine’s website (www.listerine.com) boasts that Listerine Total Care is the “most complete mouthwash” as compared to other over-the-counter mouthwashes. 19. Its multi-purpose functions are advertised as including, but are not necessarily 18 limited to, “help[ing] [to] prevent cavities, restor[ing] enamel, strengthen[ing] teeth, kill[ing] bad 19 breath germs, freshen[ing] breath,” and “fight[ing] unsightly plaque above the gum line.” 20 20. The sole active ingredient in Listerine Total Care is sodium fluoride. 21 21. The product packaging includes statements that Listerine Total Care will: “help[] 22 prevent cavities, restore[] enamel, strengthen[] teeth, kill[] bad breath germs, freshen[] breath” 23 and “fight[] unsightly plaque above the gum line.” 24 22. Listerine Total Care does not effectively fight plaque above the gum line. 25 23. Defendants placed Listerine Total Care into the stream of commerce and 26 marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 27 product had the approval of the Food and Drug Administration (“FDA”). In fact, Listerine Total 28 Care does not have FDA approval for all of the purposes for which it is marketed. -6First Amended Complaint for Damages, Injunctive Relief and Restitution 1 24. Despite their knowledge of the ingredient composition of the mouthwash, which 2 rendered it ineffective for the purposes conveyed to consumers, Defendants engaged in a long- 3 standing, nationwide marketing campaign promoting this product as “total” oral healthcare. 4 Defendants’ campaign included, but was not limited to, the following acts: 5 a. On or before May 7, 2009, Defendants released a commercial which advertised that Listerine Total Care provided “Six keys signs of a healthy mouth: tartar free teeth, no plaque build-up, healthy gums, no tooth decay, naturally white teeth, and fresh breath.” Defendants’ commercials were disseminated nationwide, including, but not necessarily limited to, on the internet. b. In approximately October 2009, Defendants launched a micro website for Listerine Total Care, advertising the following benefits: “Remove more plaque and then strengthen teeth for a cleaner, healthier mouth.” The microsite also touted that the product “finishes the job by fighting cavities and killing bad breath and germs.” c. In approximately October 2009, Defendants launched a Facebook page for Listerine Total Care, advertising the following benefits: “Whiter Teeth, Healthy Gums, Breath Protection, Kills Bacteria, Strengthens Teeth, Reduces Plaque.” d. Defendants also advertise the following benefits for Listerine Total Care on their general website for Listerine products: “Helps Prevent Cavities, Restores Minerals to Enamel, Strengthens Teeth, Kills Bad Breath Germs, Freshens Breath, Fights Unsightly Plaque Above the Gum Line.” 6 7 8 9 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 25. In approximately June 2010, Representative Plaintiff Charlene Britton purchased 18 Listerine Total Care, after viewing and relying on the product’s representations, on its packaging, 19 that it would, inter alia, whiten teeth, prevent cavities, restore enamel, strengthen teeth, kill bad 20 breath germs, freshen breath, and fight unsightly plaque above the gum line. If Representative 21 Plaintiff Britton had known of the product’s ineffectiveness, she would not have purchased the 22 product or would not have purchased it at the same price. 23 26. Plaintiff Itak Moradi purchased Listerine Total Care during the relevant time 24 period after viewing and relying on the product’s representations, on its packaging, that it would, 25 inter alia, whiten teeth, prevent cavities, restore enamel, strengthen teeth, kill bad breath germs, 26 freshen breath, and fight unsightly plaque above the gum line. If Representative Plaintiff Moradi 27 had known of the product’s ineffectiveness, she would not have purchased the product or would 28 not have purchased it at the same price. -7First Amended Complaint for Damages, Injunctive Relief and Restitution 27. 1 Plaintiff Kathy Pahigian purchased Listerine Total Care during the relevant time 2 period after viewing and relying on the product’s representations, on its packaging, that it would, 3 inter alia, whiten teeth, prevent cavities, restore enamel, strengthen teeth, kill bad breath germs, 4 freshen breath, and fight unsightly plaque above the gum line. If Representative Plaintiff 5 Pahigian had known of the product’s ineffectiveness, she would not have purchased the product 6 or would not have purchased it at the same price. 28. 7 Despite their legal obligations to do so, Defendants have taken no apparent steps 8 to inform either potential consumers or previous purchasers of the false promises detailed in this 9 Complaint. 29. 10 This action is brought to redress and end this pattern of unlawful conduct. Indeed, ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 without an award of damages and injunctive relief by this Court, Defendants are likely to 12 continue to injure consumers and harm the public interest. 30. 13 As a direct and proximate result of Defendants’ unlawful conduct, as set forth 14 herein, Representative Plaintiffs and Class Members were misled into purchasing Listerine Total 15 Care, unjustly enriching Defendants at the expense of these consumers. Defendants, at all times, 16 knew that Representative Plaintiffs and the Class Members would rely upon the 17 misrepresentations and/or omissions of Defendants. Defendants’ concealment, misbranding and 18 non-disclosure were intended to influence consumers’ purchasing decisions and were done with 19 reckless disregard for the rights of consumers. Representative Plaintiffs’ and Class Members’ 20 reliance, and resultant substantial monetary loss, were reasonably foreseeable by Defendants. 21 22 FIRST CAUSE OF ACTION Fraud (for the California and Nationwide Classes) 23 24 31. Representative Plaintiffs incorporate in this cause of action each and every 25 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 26 herein. 27 28 32. The conduct of Defendants constitutes a fraud against Representative Plaintiffs and members of each of the Classes. Defendants, directly and/or through their agents and -8First Amended Complaint for Damages, Injunctive Relief and Restitution 1 employees, made false representations to Representative Plaintiffs and members of each of the 2 Classes that were likely to deceive Representative Plaintiffs and members of each of the Classes. 3 Representative Plaintiffs and members of each of the Classes were misled by these false 4 representations into purchasing Listerine Total Care from Defendants. 5 33. Defendants’ false representations include, but are not limited to, the statements 6 that Listerine Total Care is “total care,” and “fights unsightly plaque above the gum line,” as 7 alleged herein. 8 34. Defendants placed Listerine Total Care into the stream of commerce and product had the approval of the FDA. In fact, Listerine Total Care does not have FDA approval 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 10 SCOTT COLE & ASSOCIATES, APC 9 for all of the purposes for which it is marketed. 12 35. Defendants knew, or reasonably should have known, of the false representations 13 alleged herein based on the ingredient composition of the mouthwash and intentionally 14 concealed information from Plaintiffs and members of each of the Classes. 15 16 17 36. The sole active ingredient of the mouthwash is listed as “sodium fluoride 0.0221%” - an ingredient which has not been shown to fight or prevent plaque. 37. Representative Plaintiffs and members of each of the Classes reasonably and 18 justifiably relied on Defendants’ misrepresentations when purchasing the mouthwash, were 19 unaware of the existence of facts that Defendants suppressed and failed to disclose and, had the 20 facts been known, would not have purchased the mouthwash and/or would not have purchased it 21 at the price at which it was offered. 22 38. Specifically, Representative Plaintiffs and members of each of the Classes viewed 23 Defendants’ product packaging, product commercials, and product specifications and, in reliance 24 on those representations, purchased the mouthwash for total oral care. 25 39. As a direct and proximate result of Defendants’ wrongful conduct, Representative 26 Plaintiffs and members of each of the Classes have suffered and continue to suffer economic 27 losses and other general and specific damages, including, but not necessarily limited to, the 28 monies paid to Defendants for a product which does not deliver the purported total oral care. -9First Amended Complaint for Damages, Injunctive Relief and Restitution 40. 1 Moreover, in that, at all times herein mentioned, Defendants intended to cause or 2 acted with reckless disregard of the probability of causing damage to Representative Plaintiffs 3 and members of each of the Classes, and because Defendants were guilty of oppressive, 4 fraudulent and/or malicious conduct, Representative Plaintiffs and members of each of the 5 Classes are entitled to an award of exemplary or punitive damages against Defendants in an 6 amount adequate to deter such conduct in the future. 7 8 SECOND CAUSE OF ACTION Intentional Misrepresentation (for the California and Nationwide Classes) 9 10 41. ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 Representative Plaintiffs incorporate in this cause of action each and every 12 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 13 herein. 14 42. At all times relevant herein, Defendants were engaged in the business of 15 designing, manufacturing, marketing, distributing and/or selling, among other products, home 16 healthcare products, as alleged herein. 17 43. Defendants willfully, falsely, and knowingly misrepresented material facts 18 relating to the character and quality of the mouthwash, in ways including, but not limited to, the 19 statements that the mouthwash would provide “total [oral] care,” and “fight[] unsightly plaque 20 above the gum line,” as alleged herein. 21 44. Defendants placed Listerine Total Care into the stream of commerce and 22 marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 23 product had the approval of the FDA. In fact, Listerine Total Care does not have FDA approval 24 for all of the purposes for which it is marketed. 25 45. Defendants knew that the misrepresentations alleged herein were false at the time 26 they made them and/or acted recklessly in making such misrepresentations, based on 27 Defendants’ knowledge of the sole active ingredient intended to provide such benefits to 28 consumers. -10First Amended Complaint for Damages, Injunctive Relief and Restitution 46. 1 Defendants’ misrepresentations were the type of misrepresentations that are 2 material (i.e., the type of misrepresentations to which a reasonable person would attach 3 importance and would be induced to act thereon in making purchase decisions). The 4 misrepresentations were material in that Representative Plaintiffs and members of each of the 5 Classes purchased Listerine Total Care as a home healthcare product capable of providing total 6 oral healthcare benefits. 47. 7 Representative Plaintiffs and members of each of the Classes reasonably and unaware of the existence of facts that Defendants suppressed and failed to disclose and, had the 10 facts been known, would not have purchased the mouthwash and/or would not have purchased it 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 justifiably relied on Defendants’ misrepresentations when purchasing the mouthwash, were 9 SCOTT COLE & ASSOCIATES, APC 8 at the price at which it was offered. Representative Plaintiffs’ and each Class member’s reliance 12 was a substantial factor in making the purchase which led to the resulting injury, as alleged 13 herein. 48. 14 Specifically, Representative Plaintiffs and members of each of the Classes viewed 15 Defendants’ product packaging, product commercials, and product specifications, and, in 16 reliance on those representations, purchased Listerine Total Care for its purported total oral 17 health benefits. 49. 18 Defendants intended that Representative Plaintiffs and members of each of the 19 Classes rely on the misrepresentations alleged herein and purchase the mouthwash for the uses 20 advertised, including total oral healthcare. 50. 21 As a direct and proximate result of Defendants’ intentional misrepresentation, 22 Representative Plaintiffs and members of each of the Classes were injured in ways including, but 23 not limited to, the purchase of a product which does not deliver the total oral care it purports to 24 deliver. Damages resulting from such injury may, but do not necessarily include nor are limited 25 to, monetary damages in the amount of the difference in value between a mouthwash capable of 26 providing total oral healthcare benefits and the value paid to Defendants for a product which 27 Defendants represented would provide benefits it is incapable of providing. 28 /// -11First Amended Complaint for Damages, Injunctive Relief and Restitution 51. 1 Moreover, in that, at all times herein mentioned, Defendants intended to cause, or 2 acted with reckless disregard of the probability of causing, damage to Representative Plaintiffs 3 and members of each of the Classes, and because Defendants were guilty of oppressive, 4 fraudulent and/or malicious conduct, Representative Plaintiffs and members of each of the 5 Classes are entitled to an award of exemplary or punitive damages against Defendants in an 6 amount adequate to deter such conduct in the future. Specifically, despite knowledge that the 7 mouthwash product could not provide total oral healthcare and was not approved as an effective 8 means of fighting plaque, Defendants have refused, and continue to refuse, any response or 9 remedy. 10 THIRD CAUSE OF ACTION Negligent Misrepresentation (for the California and Nationwide Classes) ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 52. Representative Plaintiffs incorporate in this cause of action each and every 14 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 15 herein. 16 53. Defendants owed a duty to Representative Plaintiffs and members of each of the 17 Classes to exercise reasonable care in making representations about Listerine Total Care, which 18 they offered for sale thereto. 19 54. Defendants should have known of the ingredient composition of this product, as 20 detailed in this Complaint and, thus, should have known that their representations, as also 21 detailed, at least in part, in this Complaint, were false. In addition, given Defendants’ knowledge 22 of the sole active ingredient of Listerine Total Care, Defendants had no reasonable grounds to 23 believe their representations as to the effectiveness of the product were true. 24 55. Defendants’ representations were negligently and recklessly made to potential 25 consumers and the general public (including Representative Plaintiffs and members of each of 26 the Classes) through Defendants’ statement that the mouthwash provided “total care,” and was 27 effective in “fight[ing] unsightly plaque above the gum line.” 28 /// -12First Amended Complaint for Damages, Injunctive Relief and Restitution 56. 1 Defendants placed Listerine Total Care into the stream of commerce and 2 marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 3 product had the approval of the FDA. In fact, Listerine Total Care does not have FDA approval 4 for all of the purposes for which it is marketed. 57. 5 Representative Plaintiffs and members of each of the Classes viewed and 6 reasonably and justifiably relied on Defendants’ misrepresentations when purchasing the 7 mouthwash, were unaware of the existence of facts that Defendants suppressed and failed to 8 disclose and, had the facts been known, would not have purchased the mouthwash and/or would 9 not have purchased it at the price at which it was offered. 58. 10 As a direct and proximate result of these misrepresentations, Representative ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 Plaintiffs and members of each of the Classes have been damaged in an amount to be proven at 12 trial. The damages suffered by Representative Plaintiffs and members of each of the Classes 13 include, but are not limited to, the monies paid to Defendants for a product which does not 14 deliver the purported total oral care. 15 FOURTH CAUSE OF ACTION Deceptive Advertising Practices (California Business & Professions Code §§ 17500, et seq.) (for the California Class Only) 16 17 18 59. 19 Representative Plaintiffs incorporate in this cause of action each and every 20 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 21 herein. 60. 22 23 California Business & Professions Code § 17500 prohibits “unfair, deceptive, untrue or misleading advertising.” 61. 24 Defendants violated California Business & Professions Code § 17500 when they 25 represented that Listerine Total Care possessed characteristics and a value that it did not actually 26 have; these representations were made through Defendants’ statements that the mouthwash 27 would provide “total [oral] care,” and “fight[] unsightly plaque above the gum line,” as alleged 28 herein. -13First Amended Complaint for Damages, Injunctive Relief and Restitution 62. 1 Defendants’ deceptive practices were specifically designed to induce 2 Representative Plaintiffs and members of the California Class to purchase the mouthwash over 3 the mouthwashes of their competitors. Defendants engaged in broad-based marketing efforts, 4 including posting statements on Defendants’ website, releasing television commercials 5 nationwide, and establishing promotional websites on social networking sites, as alleged herein, 6 in order to reach Representative Plaintiffs and California Class members and induce them to 7 purchase this product. 63. 8 9 deceive a reasonable consumer. 64. 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 The content of the advertisements, as alleged herein, were of a nature likely to Defendants knew or, in the exercise of reasonable care, should have known that the representations were untrue or misleading and likely to deceive reasonable consumers. 65. 12 As a direct and proximate result of Defendants’ unlawful conduct in violation of 13 California Business & Professions Code § 17500, Defendants should be required to provide all 14 proper remedies to Representative Plaintiffs and members of the California Class. 15 FIFTH CAUSE OF ACTION Consumer Legal Remedies Act (California Civil Code §1750, et seq.) (for the California Class Only) 16 17 18 19 66. Representative Plaintiffs incorporate in this cause of action each and every 20 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 21 herein. 22 67. Representative Plaintiffs and the members of the California Class are consumers 23 who purchased Defendants’ Listerine Total Care, directly or indirectly from Defendants for 24 personal use. 25 68. Through Defendants’ statements that the mouthwash would provide “total [oral] 26 care,” and “fight[] unsightly plaque above the gum line,” Defendants represented that the 27 mouthwash had/has characteristics, uses and/or benefits which it did/does not have, which 28 constituted and continues to constitute an unfair or deceptive trade practice under the provisions -14First Amended Complaint for Damages, Injunctive Relief and Restitution 1 of California Civil Code § 1770(a)(5) (the “Consumers Legal Remedies Act”). Representative 2 Plaintiffs and members of the California Class viewed and reasonably and justifiably relied on 3 Defendants’ misrepresentations when purchasing the mouthwash, were unaware of the existence 4 of facts that Defendants suppressed and failed to disclose and, had the facts been known, would 5 not have purchased the mouthwash or would not have purchased it at the price at which it was 6 offered. 69. 7 Representative Plaintiffs and the members of the California Class have been the monies paid to Defendants for a product which does not deliver the total oral care it purports 10 to deliver. 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 directly and proximately injured by Defendants’ conduct in ways including, but not limited to, 9 SCOTT COLE & ASSOCIATES, APC 8 70. Insofar as Defendants’ conduct violated California Civil Code § 1770(a)(5), 12 Representative Plaintiffs and members of the California Class are entitled to (pursuant to 13 California Civil Code § 1780, et seq.) and do seek injunctive relief to end Defendants’ violations 14 of the California Consumers Legal Remedies Act. 71. 15 In addition, pursuant to California Civil Code § 1782(a), Representative Plaintiff 16 Charlene Britton on her own behalf and on behalf of members of the California Class, has 17 notified Defendants of the alleged violations of the Consumer Legal Remedies Act. If, after 30 18 days from the date of the notification letter, Defendants have failed to provide appropriate relief 19 for the violations, Representative Plaintiffs will amend this Complaint to seek compensatory, 20 monetary and punitive damages, in addition to equitable and injunctive relief, and will further 21 request that this Court enter such orders or judgments as may be necessary to restore to any 22 person in interest any money which may have been acquired by means of such unfair business 23 practices, and for such other relief as provided in California Civil Code § 1780 and the Prayer for 24 Relief. 25 72. As a direct and proximate result of Defendants’ unfair and deceptive trade 26 practice, Representative Plaintiffs and members of each of the Classes have been damaged in an 27 amount to be proven at trial. Representative Plaintiffs further request that this Court enter such 28 orders or judgments as may be necessary to restore to any person in interest any money which -15First Amended Complaint for Damages, Injunctive Relief and Restitution 1 may have been acquired by means of such unfair business practices, and for such other relief as 2 provided in California Civil Code § 1780 and the Prayer for Relief. 3 SIXTH CAUSE OF ACTION Unfair Business Practices Under The Unfair Competition Act (California Business & Professions Code §§ 17200-17208) (for the California Class Only) 4 5 6 7 73. Representative Plaintiffs incorporate in this cause of action each and every 8 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 9 herein. 10 74. Representative Plaintiffs further brings this cause of action seeking equitable and ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 injunctive relief to stop Defendants’ misconduct, as complained of herein, and to seek restitution 12 of the amounts Defendants acquired through the unfair, unlawful, and fraudulent business 13 practices described herein. 14 75. Defendants’ knowing conduct, as alleged herein, constitutes an unlawful and/or 15 fraudulent business practice, as set forth in California Business & Professions Code §§ 17200- 16 17208. Specifically, Defendants conducted business activities while failing to comply with the 17 legal mandates cited herein. 18 76. Defendants’ conduct was, and continues to be, unlawful in that it is a violation of 19 California Civil Code §1750, et seq. and California Business & Professions Code §§ 17500, et 20 seq., as alleged herein. 21 77. Defendants’ conduct was, and continues to be fraudulent, because directly or 22 through their agents and employees, Defendants made false representations to Representative 23 Plaintiffs and members of the California Class that were likely to deceive Representative 24 Plaintiffs and members of the California Class. These false representations misled Representative 25 Plaintiffs and members of the California Class into purchasing Listerine Total Care. 26 78. Defendants’ false representations include, but are not limited to, the statements 27 that the mouthwash would provide “total [oral] care,” and “fight[] unsightly plaque above the 28 gum line,” as alleged herein. -16First Amended Complaint for Damages, Injunctive Relief and Restitution 79. 1 Representative Plaintiffs and members of the California Class reasonably and 2 justifiably relied on Defendants’ misrepresentations when purchasing Listerine Total Care, were 3 unaware of the existence of facts that Defendants suppressed and failed to disclose, and, had the 4 facts been known, would not have purchased the mouthwash and/or would not have purchased it 5 at the price at which it was offered. 80. 6 Specifically, Representative Plaintiffs and members of the California Class 7 viewed Defendants’ product packaging, product commercials, and product specifications and, in 8 reliance on those representations, purchased the mouthwash for total oral care. 81. 9 As a direct and proximate result of Defendants’ wrongful conduct, Representative ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 Plaintiffs and members of the California Class have suffered and continue to suffer economic 11 SCOTT COLE & ASSOCIATES, APC 10 losses and other general and specific damages, including, but not necessarily limited to, the 12 monies paid to Defendants for a product which does not deliver the purported total oral care. 82. 13 Defendants’ conduct in making the representations described herein, and failing 14 to disclose or remedy the problem despite their knowledge of the product limitations, constitutes 15 a knowing failure to adopt policies in accordance with and/or adhere to applicable laws, as set 16 forth herein, all of which are binding upon and burdensome to their competitors, engendering an 17 unfair competitive advantage for Defendants, thereby constituting an unfair business practice 18 under California Business & Professions Code §§ 17200-17208. 83. 19 Defendants have clearly established a policy of accepting a certain amount of 20 collateral damage, as represented by the damages to the Representative Plaintiffs and to 21 California Class Members herein alleged, as incidental to their business operations, rather than 22 accept the alternative costs of full compliance with fair, lawful, and honest business practices, 23 ordinarily borne by their responsible competitors and as set forth in legislation and the judicial 24 record. 84. 25 In addition, Defendants’ conduct was, and continues to be, unfair, in that their 26 injury to millions of purchasers of the mouthwash is substantial, and is not outweighed by any 27 countervailing benefits to consumers or to competitors. 28 /// -17First Amended Complaint for Damages, Injunctive Relief and Restitution 85. 1 Moreover, Representative Plaintiffs and members of the California Class could 2 not have reasonably avoided such injury given that Defendants failed to disclose the product’s 3 effectiveness limitations at any point, and Representative Plaintiffs and members of the 4 California Class purchased the mouthwash in reliance on the representations made by 5 Defendants, as alleged herein. 86. 6 Representative Plaintiffs and the members of the California Class have been 7 directly and proximately injured by Defendants’ conduct in ways including, but not necessarily 8 limited to, monies paid to Defendants for a product which does not deliver the purported total 9 oral care. 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 SEVENTH CAUSE OF ACTION Breach of Song-Beverly Consumer Warranty Act (California Civil Code § 1790, et seq.) (for the California Class only) 12 13 14 87. Representative Plaintiffs incorporate in this cause of action each and every 15 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 16 herein. 17 18 19 20 21 22 23 24 25 88. Listerine Total Care is a “consumer good” within the meaning of California Civil Code § 1791(a). 89. Representative Plaintiffs and each member of the California Class purchased Defendants’ Listerine Total Care in California. 90. Defendants’ express warranty and implied warranty of merchantability arose out of and/or were related to the sale of the mouthwash. 91. Defendants warranted to consumers, among other things, that Listerine Total Care would constitute “total” oral care and would “fight[] unsightly plaque above the gum line.” 92. Defendants’ sale of the mouthwash is also subject to an implied warranty of 26 merchantability (i.e. that the mouthwash passes without objection in the trade under the 27 descriptions and advertisements provided by Defendants, is fit for the ordinary purpose for which 28 -18First Amended Complaint for Damages, Injunctive Relief and Restitution 1 such goods are used, and conforms to the promises and affirmations of fact made on the 2 container and labels). 93. 3 Ordinary use of Listerine Total Care is for general oral healthcare namely, 4 fighting plaque in addition to preventing cavities, strengthening teeth, killing bad breath germs, 5 freshening breath, and restoring tooth enamel. 94. 6 When Defendants placed the mouthwash into the stream of commerce, they knew, 7 reasonably should have known, and/or were obligated to understand that the intended and 8 ordinary purpose of the mouthwash was to function as a total oral care product in providing 9 consumers with plaque-fighting properties. 95. 10 The mouthwash cannot perform its ordinary and represented purpose because it ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 contains a sole active ingredient not proven effective for providing the oral healthcare benefits 12 sought by consumers. 96. 13 As set forth herein, Defendants failed to comply with their obligations under their 14 express warranties and under their implied warranty of merchantability in that they did not 15 provide a product that functions as warranted, that serves its ordinary or intended purpose, or 16 functions in conformance with specifications as advertised. 97. 17 Representative Plaintiffs and the California Class Members have suffered and will 18 continue to suffer damages as a direct and proximate result of Defendants’ failure to comply with 19 their warranty obligations, and are entitled to judgment pursuant to California Civil Code §§ 20 1791.1(d) and 1794, as well as attorneys’ fees, costs and interest. 21 EIGHTH CAUSE OF ACTION Breach of Express Warranty (for the California and Nationwide Classes) 22 23 98. 24 Representative Plaintiffs incorporate in this cause of action each and every 25 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 26 herein. 27 28 99. Defendants, as the designers, manufacturers, distributors and sellers of the mouthwash, expressly warranted that the mouthwash being sold to the general public would -19First Amended Complaint for Damages, Injunctive Relief and Restitution 1 effectively provide total oral care and assist consumers in the fight against disease-inducing oral 2 ailments, as advertised. 100. 3 4 Defendants warranted to consumers that Listerine Total Care would constitute “total” oral care and would “fight[] unsightly plaque above the gum line.” 101. 5 In addition, Defendants’ promotional statements, representations and 6 demonstrations regarding the mouthwash became part of the basis of the bargain between 7 consumers and Defendants, creating express warranties that the product purchased by the 8 Representative Plaintiffs and members of each of the Classes would conform to Defendants’ 9 representations. 102. 10 Defendants’ breached their express warranties because Listerine Total Care does ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 not conform to the promises or affirmations made by Defendants to the Representative Plaintiffs 12 and members of each of the Classes. 103. 13 Representative Plaintiffs, on their own behalf and on behalf of members of each 14 of the Classes, have provided and/or will provide reasonable notice to Defendants of the breach 15 of warranty. 16 104. Representative Plaintiffs and the members of each of the Classes have been 17 directly and proximately injured by Defendants’ conduct in ways including, but not limited to, 18 the purchase of a product which does not deliver the total oral care it purports to deliver. 105. 19 As a direct and proximate result of Defendants’ unlawful conduct, as set forth 20 herein, Representative Plaintiffs and members of each of the Classes are entitled to monetary 21 damages in the amount of the difference in value between a mouthwash capable of providing 22 total oral healthcare benefits and the value paid to Defendants for a product which Defendants 23 represented would provide benefits it is incapable of providing. 24 /// 25 /// 26 /// 27 /// 28 /// -20First Amended Complaint for Damages, Injunctive Relief and Restitution NINTH CAUSE OF ACTION Breach of Implied Warranty (for the California and Nationwide Classes) 1 2 3 106. Representative Plaintiffs incorporate in this cause of action each and every 4 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 5 herein. 6 107. Defendants are merchants engaged in the business of selling, among other things, implied warranty of merchantability. Defendants breached said warranty by selling a product 9 which does not pass without objection in the trade under the descriptions and advertisements 10 provided by Defendants, is not fit for the ordinary purpose for which such goods are used, and 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 healthcare products to consumers. Defendants’ sale of Listerine Total Care is subject to an 8 SCOTT COLE & ASSOCIATES, APC 7 does not conform to the promises and affirmations of fact made on the container and labels. 12 108. Representative Plaintiffs and members of each of the Classes purchased the 13 mouthwash and used it for its ordinary and intended purposes which included fighting plaque, 14 preventing cavities, and providing general oral healthcare such as strengthening teeth, killing bad 15 breath germs, freshening breath, and restoring tooth enamel. 16 109. The mouthwash cannot perform its ordinary and represented purpose because it 17 contains a sole active ingredient not proven effective for providing the oral healthcare benefits 18 sought by consumers. 19 110. When Defendants placed the mouthwash into the stream of commerce, they knew, 20 reasonably should have known, and/or were obligated to understand that the intended and 21 ordinary purpose of the mouthwash was to function as a total oral care product in providing 22 consumers with plaque-fighting properties. 23 111. Representative Plaintiffs and members of each of the Classes reasonably expected 24 that the mouthwash they purchased would provide the described and warranted health care 25 benefits represented by Defendants, including, but not necessarily limited to, fighting plaque 26 above the gum line and supplying a mode of total oral healthcare. 27 /// 28 /// -21First Amended Complaint for Damages, Injunctive Relief and Restitution 112. 1 As a direct and proximate result of Defendants’ unlawful conduct, as set forth 2 herein, Representative Plaintiffs and members of each of the Classes were injured and are 3 entitled to damages in an amount to be proven at trial. 4 TENTH CAUSE OF ACTION Unjust Enrichment (for the California and Nationwide Classes) 5 6 7 113. 8 Representative Plaintiffs incorporate in this cause of action each and every 9 allegation of the preceding paragraphs, with the same force and effect as though fully set forth 10 herein. ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 114. As alleged herein, Defendants intentionally and/or recklessly made false 12 representations to Representative Plaintiffs and members of each of the Classes to induce them to 13 purchase Listerine Total Care. Representative Plaintiffs and members of each of the Classes 14 reasonably relied on these false representations when purchasing Listerine Total Care. 15 115. Representative Plaintiffs and members of each of the Classes did not receive all of 16 the benefits promised by Defendants, and paid more to Defendants for the mouthwash than they 17 otherwise would and/or should have paid. 18 116. It would be inequitable and unconscionable for Defendants to retain the profit, 19 benefit and/or other compensation they obtained from their deceptive, misleading, and unlawful 20 conduct alleged herein. 21 117. Representative Plaintiffs and members of each of the Classes are entitled to 22 restitution of, disgorgement of, and/or the imposition of a constructive trust upon, all profits, 23 benefits, and other compensation obtained by Defendants from their deceptive, misleading, and 24 unlawful conduct as alleged herein. RELIEF SOUGHT 25 26 WHEREFORE, the Representative Plaintiffs, on behalf of themselves and the 27 proposed Plaintiff Classes, pray for judgment and the following specific relief against 28 Defendants, as follows: -22First Amended Complaint for Damages, Injunctive Relief and Restitution 1. 1 That the Court declare, adjudge and decree that this action is a proper class action 2 and certify each of the proposed classes and/or any other appropriate subclasses under F.R.C.P. 3 Rule 23(b)(2) and/or (b)(3); 4 For the California Class Only: 5 2. That Defendants are found to have violated California Business & Professions 6 Code § 17200, et seq., and § 17500, et seq., California Civil Code §1750, et seq., and § 1790, et 7 seq., as to the Representative Plaintiffs and California Class members; 3. 8 That the Court order Defendants to pay restitution to the Representative Plaintiffs 9 and the California Class Members due to Defendants’ unlawful activities, pursuant to California 10 Business and Professions Code §§ 17200-17208; 4. ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 unlawful activities in violation of California Business and Professions Code §§ 17200, et seq.; 5. 13 14 That the Court further enjoin Defendants, ordering them to cease and desist from For reasonable attorneys’ fees, pursuant to California Code of Civil Procedure § 1021.5 and/or California Civil Code §§ 1780(d) and/or 1794(d); 15 For the California and National Classes: 16 6. 17 misrepresentations to Representative Plaintiffs and all Class members; 7. 18 19 An award to Representative Plaintiffs and members of both Classes of damages in an amount to be proven at trial; 8. 20 21 That Defendants are found to have made fraudulent and/or negligent For Punitive Damages in an amount appropriate to punish Defendants and to deter others from engaging in similar misconduct in the future; 9. 22 23 Complaint; 24 10. For all other Orders, findings and determinations identified and sought in this 25 For interest on the amount of any and all economic losses, at the prevailing legal rate; and 11. 26 27 proper. 28 For costs of suit and any and all other such relief as the Court deems just and /// -23First Amended Complaint for Damages, Injunctive Relief and Restitution 1 JURY DEMAND 2 Representative Plaintiffs and members of each of the Plaintiff Classes hereby demand 3 trial by jury on all issues triable of right by jury. 4 5 Dated: December 20, 2010 SCOTT COLE & ASSOCIATES, APC 6 7 8 9 By: /s/Matthew R. Bainer Matthew R. Bainer, Esq. Attorneys for Representative Plaintiffs and the Plaintiff Classes 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -24First Amended Complaint for Damages, Injunctive Relief and Restitution 1 2 3 4 5 6 7 8 Scott Edward Cole, Esq. (S.B. #160744) Matthew R. Bainer, Esq. (S.B. #220972) Hannah R. Salassi, Esq. (S.B. # 230117) SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Ninth Floor Oakland, California 94612 Telephone: (510) 891-9800 Facsimile: (510) 891-7030 email: scole@scalaw.com email: mbainer@scalaw.com email: hsalassi@scalaw.com Web: www.scalaw.com Attorneys for Representative PlaintiffPlaintiffs and the Plaintiff Classes 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 CHARLENE A. BRITTON, ITAK MORADI, KATHY PAHIGIAN, individually, and on behalf of all others similarly situated, 15 16 17 18 19 PlaintiffPlaintiffs , vs. JOHNSON & JOHNSON, McNEILPPC, INC., and JOHNSON & JOHNSON CONSUMER PRODUCTSCOMPANIES, INC., 20 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:10-cv-04450-TEH CLASS ACTION FIRST AMENDED COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF AND RESTITUTION [Jury Trial Demanded] 21 22 Representative Plaintiff allegesPlaintiffs allege as follows: 23 24 25 PRELIMINARY STATEMENT 1. This is a class action, brought under Rule 23(b)(2) and/or (b)(3) of the Federal 26 Rules of Civil Procedure, seeking damages, restitution, interest thereon, injunctive and other 27 equitable relief and reasonable attorneys’ fees and costs on behalf of Representative 28 PlaintiffPlaintiffs and all other persons (hereinafter referred to as the “Class Members,” the -1First Amended Complaint for Damages, Injunctive Relief and Restitution 1 “Plaintiff Classes” and/or either of the Classes defined herein) who have purchased Listerine 2 Total Care Anticavity Mouthwash (hereinafter referred to as “Listerine Total Care” or 3 “mouthwash”) from Defendants Johnson & Johnson, McNEIL-PPC, Inc., and/or Johnson & 4 Johnson Consumer ProductsCompanies, Inc. (hereinafter collectively referred to as 5 “Defendants”), either directly therefrom or indirectly from a distributor or retailer thereof within 6 the United States at any time during the applicable limitations period. The Representative 7 PlaintiffPlaintiffs, on behalf of herselfthemselves and all Class Members, also seeksseek 8 injunctive relief and restitution of all benefits Defendants have enjoyed from their unlawful 9 and/or deceptive business practices, as detailed herein. 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 JURISDICTION AND VENUE 2. Jurisdiction is proper in this Court under 28 U.S.C. § 1332 (diversity jurisdiction) 13 and/or 28 U.S.C. §1331 (controversy arising under United States law). Supplemental jurisdiction 14 to adjudicate issues pertaining to state law is proper in this Court under 28 U.S.C. § 1367. 15 3. Venue is proper in this Court under 28 U.S.C. § 1391 because the events that give 16 rise to Plaintiff’sPlaintiffs’ claims took place within the Northern District of California and 17 because Defendants market, distribute, and sell their products within this District. 18 19 PLAINTIFF 20 PLAINTIFFS 21 4. Charlene Britton, Itak Moradi, and Kathy Pahigian, the named/representative 22 PlaintiffPlaintiffs identified herein, waswere and is aare natural personpersons and, during the 23 relevant time period, purchased and used (or attempted to use) Johnson & Johnson Listerine 24 Total Care Anticavity Mouthwash, yet did not receive the full value of the product, as promised 25 by Defendants. 26 27 5. As used throughout this Complaint, the term “Class Members” and/or the “Plaintiff Classes” refers to the named plaintiffplaintiffs herein as well as each and every person 28 -2First Amended Complaint for Damages, Injunctive Relief and Restitution 1 eligible for membership in one or more of the classes of persons, as further described and 2 defined herein. 3 4 5 6. At all times herein relevant, Representative Plaintiff wasPlaintiffs were and is a personare persons within each of the classes of persons further described and defined herein. 7. Representative Plaintiff bringsPlaintiffs bring this action on behalf of 6 herselfthemselves and as a class action, pursuant to Rule 23(b)(2) and/or (b)(3) of the Federal 7 Rules of Civil Procedure, on behalf of all persons similarly situated and proximately damaged by 8 the unlawful conduct described herein. 9 7. 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 DEFENDANTS 8. At all times herein relevant, Defendant Johnson & Johnson was a corporation, 12 duly licensed in New Jersey and doing business in this Judicial District as well as throughout the 13 United States. Johnson & Johnson maintains its principal place of business in New Brunswick, 14 New Jersey. 15 9. Defendant McNeil-PPC, Inc. is a pharmaceutical company belonging to 16 Defendant Johnson & Johnson. At all times herein relevant, Defendant McNeil-PPC, Inc. was a 17 corporation, duly licensed in New Jersey and doing business in this Judicial District as well as 18 throughout the United States. Defendant McNeil-PPC, Inc. maintains its principal place of 19 business in Fort Washington, Pennsylvania. 20 10. Defendant Johnson & Johnson Consumer ProductsCompanies, Inc. is a division 21 of McNeil-PPC, Inc... At all times herein relevant, Defendant Johnson & Johnson Consumer 22 ProductsCompanies, Inc. was a corporation, duly licensed in New Jersey and doing business in 23 this Judicial District as well as throughout the United States. Defendant Johnson & Johnson 24 Consumer ProductsCompanies, Inc. maintains its principal place of business in Fort Washington, 25 Pennsylvania. 26 11. Representative Plaintiff isPlaintiffs are informed and believesbelieve and, on that 27 basis, allegesallege that, at all relevant times herein-mentioned, each of the Defendants either 28 identified herein and/or who may be identified in subsequent versions of this Complaint was the -3First Amended Complaint for Damages, Injunctive Relief and Restitution 1 agent and/or employee of each of the remaining Defendants and, in doing the acts herein alleged, 2 was acting within the course and scope of such agency and/or employment. 3 4 5 6 7 8 9 10 CLASS ACTION ALLEGATIONS 12. Representative Plaintiff bringsPlaintiffs bring this action on behalf of herselfthemselves and as a class action on behalf of the following Plaintiff Classes: California Class: “All persons who purchased, within the State of California, Listerine Total Care Anticavity Mouthwash.” National Class: “All persons who purchased, within the United States, Listerine Total Care Anticavity Mouthwash.” ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 18 13. Defendants and their officers and directors are excluded from both of the Plaintiff Classes. 14. This action has been brought and may properly be maintained as a class action under Federal Rule of Civil Procedure Rule 23(b)(2) and/or (b)(3) because there is a welldefined community of interest in the litigation and membership in the proposed Classes is easily ascertainable: a. Numerosity: A class action is the only available method for the fair and efficient adjudication of this controversy. The members of the Plaintiff Classes are so numerous that joinder of all members is impractical, if not impossible, insofar as the Representative Plaintiff isPlaintiffs are informed and believesbelieve and, on that basis, allegesallege that the total number of Class Members is in the thousands, if not millions, of individuals. Membership in the Classes will be determined by analysis of point of sale, electronic-mail and/or other transactional information, among other records maintained by Defendants. b. Commonality: The Representative PlaintiffPlaintiffs and the Class Members share a community of interests in that there are numerous common questions and issues of fact and law which predominate over questions and issues solely affecting individual members, including, but not necessarily limited to: 19 20 21 22 23 24 25 26 27 28 1) Whether Defendants knew or should have known of the ineffectiveness of the active ingredient contained in Listerine Total Care; -4- First Amended Complaint for Damages, Injunctive Relief and Restitution 2) Whether Defendants had a duty to disclose to consumers the true effectiveness of the product; 3) Whether Defendants’ advertising of Listerine Total Care was false, deceptive, and/or misleading; 4) Whether Defendants violated California Business and Professions Code §17500, et seq. by engaging in misleading or deceptive advertising; 5) Whether Defendants violated California Civil Code §1750, et seq. by engaging in unfair or deceptive trade practices; 6) Whether Defendants breached express warranties and/or implied warranties of merchantability and/or fitness regarding Listerine Total Care’s functionality and effectiveness; 7) Whether Defendants violated California Civil Code §1790, et seq. by breaching express and implied warranties; 8) Whether Defendants intentionally or negligently misrepresented Listerine Total Care’s functionality and effectiveness; 9) Whether Defendants’ engagement in false representations regarding Listerine Total Care’s functionality and effectiveness constituted a fraud on consumers; and 10) 1 Whether Defendants violated California Business and Professions Code §§ 17200, et seq. by engaging in unfair, unlawful and/or fraudulent business practices. 2 3 4 5 6 7 8 9 /// 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 18 19 20 21 c. Typicality: The Representative Plaintiff’sPlaintiffs’ claims are typical of the claims of the Plaintiff Classes. Representative PlaintiffPlaintiffs and all members of the Plaintiff Classes sustained damages arising out of and caused by Defendants’ common course of conduct in violation of law, as alleged herein. d. Adequacy of Representation: The Representative PlaintiffPlaintiffs in this class action is anare adequate representativerepresentatives of each of the Plaintiff Classes in that the Representative Plaintiff hasPlaintiffs have the same interest in the litigation of this case as the Class Members, isare committed to vigorous prosecution of this case and hashave retained competent counsel who isare experienced in conducting litigation of this nature. The Representative Plaintiff isPlaintiffs are not subject to any individual defenses unique from those conceivably applicable to other Class Members or the Classes in their entirety. The Representative 22 23 24 25 26 27 28 -5First Amended Complaint for Damages, Injunctive Relief and Restitution Plaintiff anticipatesPlaintiffs anticipate no management difficulties in this litigation. 1 2 e. Superiority of Class Action: Since the damages suffered by individual Class Members, while not inconsequential, may be relatively small, the expense and burden of individual litigation by each member makes or may make it impractical for members of the Plaintiff Classes to seek redress individually for the wrongful conduct alleged herein. Should separate actions be brought or be required to be brought, by each individual member of the Plaintiff Classes, the resulting multiplicity of lawsuits would cause undue hardship and expense for the Court and the litigants. The prosecution of separate actions would also create a risk of inconsistent rulings which might be dispositive of the interests of other Class Members who are not parties to the adjudications and/or may substantially impede their ability to adequately protect their interests. f. Rule 23(b)(2): In addition, Defendants have acted and/or refused to act on grounds that apply generally to the Plaintiff Classes, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. g. Rule 23(b)(3): Questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior, in ways including, but not limited to, paragraph (e) herein, to other available methods for fairly and efficiently adjudicating the controversy. 3 4 5 6 7 8 9 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMMON FACTUAL ALLEGATIONS 15. For more than 120 years, the JOHNSON & JOHNSONJohnson & Johnson brand- name has been associated with the innovation, development and marketing of home healthcare products. 16. As part of its “Oral Health Care” line, Defendants produce, manufacture, and distribute Listerine Total Care in a variety of flavors and market the product to consumers nationwide. As such, Listerine Total Care has been purchased by thousands, if not millions, of consumers, both in California and nationwide, all of whom are putative Class Members. 17. Listerine Total Care is a home healthcare product designed and marketed for consumer use as total oral healthcare. 18. Indeed, Listerine’s website (www.listerine.com) boasts that Listerine Total Care is the “most complete mouthwash” as compared to other over-the-counter mouthwashes. 19. Its multi-purpose functions are advertised as including, but are not necessarily limited to, “help[ing] [to] prevent cavities, restor[ing] enamel, strengthen[ing] teeth, kill[ing] bad breath germs, freshen[ing] breath,” and “fight[ing] unsightly plaque above the gum line.” -6First Amended Complaint for Damages, Injunctive Relief and Restitution 1 20. The sole active ingredient in Listerine Total Care is sodium fluoride. 2 21. The product packaging includes statements that Listerine Total Care will: “help[] 3 prevent cavities, restore[] enamel, strengthen[] teeth, kill[] bad breath germs, freshen[] breath” 4 and “fight[] unsightly plaque above the gum line.” 5 22. Listerine Total Care does not effectively fight plaque above the gum line. 6 23. Defendants placed Listerine Total Care into the stream of commerce and 7 marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 8 product had the approval of the Food and Drug Administration (“FDA”). In fact, Listerine Total 9 Care does not have FDA approval for all of the purposes for which it is marketed. 10 24. Despite their knowledge of the ingredient composition of the mouthwash, which ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 rendered it ineffective for the purposes conveyed to consumers, Defendants engaged in a long- 12 standing, nationwide marketing campaign promoting this product as “total” oral healthcare. 13 Defendants’ campaign included, but was not limited to, the following acts: 14 a. On or before May 7, 2009, Defendants released a commercial which advertised that Listerine Total Care provided “Six keys signs of a healthy mouth: tartar free teeth, no plaque build-up, healthy gums, no tooth decay, naturally white teeth, and fresh breath.” Defendants’ commercials were disseminated nationwide, including, but not necessarily limited to, on the internet. b. In approximately October 2009, Defendants launched a micro website for Listerine Total Care, advertising the following benefits: “Remove more plaque and then strengthen teeth for a cleaner, healthier mouth.” The microsite also touted that the product “finishes the job by fighting cavities and killing bad breath and germs.” c. In approximately October, 2009, Defendants launched a Facebook page for Listerine Total Care, advertising the following benefits: “Whiter Teeth, Healthy Gums, Breath Protection, Kills Bacteria, Strengthens Teeth, Reduces Plaque.” d. Defendants also advertise the following benefits for Listerine Total Care on their general website for Listerine products: “Helps Prevent Cavities, Restores Minerals to Enamel, Strengthens Teeth, Kills Bad Breath Germs, Freshens Breath, Fights Unsightly Plaque Above the Gum Line.” 15 16 17 18 19 20 21 22 23 24 25 26 25. In approximately June 2010, Representative Plaintiff Charlene Britton purchased 27 Listerine Total Care, after viewing and relying on the product’s representations, on its packaging, 28 that it would, inter alia, whiten teeth, prevent cavities, restore enamel, strengthen teeth, kill bad -7First Amended Complaint for Damages, Injunctive Relief and Restitution 1 breath germs, freshen breath, and fight unsightly plaque above the gum line. If Representative 2 Plaintiff Britton had known of the product’s ineffectiveness, she would not have purchased the 3 product or would not have purchased it at the same price. 4 26. Plaintiff Itak Moradi purchased Listerine Total Care during the relevant time 5 period after viewing and relying on the product’s representations, on its packaging, that it would, 6 inter alia, whiten teeth, prevent cavities, restore enamel, strengthen teeth, kill bad breath germs, 7 freshen breath, and fight unsightly plaque above the gum line. If Representative Plaintiff Moradi 8 had known of the product’s ineffectiveness, she would not have purchased the product or would 9 not have purchased it at the same price. 10 27. Plaintiff Kathy Pahigian purchased Listerine Total Care during the relevant time ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 period after viewing and relying on the product’s representations, on its packaging, that it would, 12 inter alia, whiten teeth, prevent cavities, restore enamel, strengthen teeth, kill bad breath germs, 13 freshen breath, and fight unsightly plaque above the gum line. If Representative Plaintiff 14 Pahigian had known of the product’s ineffectiveness, she would not have purchased the product 15 or would not have purchased it at the same price. 16 26.28. Despite their legal obligations to do so, Defendants have taken no apparent steps 17 to inform either potential consumers or previous purchasers of the false promises detailed in this 18 Complaint. 19 27.29. This action is brought to redress and end this pattern of unlawful conduct. Indeed, 20 without an award of damages and injunctive relief by this Court, Defendants are likely to 21 continue to injure consumers and harm the public interest. 22 28.30. As a direct and proximate result of Defendants’ unlawful conduct, as set forth 23 herein, Representative PlaintiffPlaintiffs and Class Members were misled into purchasing 24 Listerine Total Care, unjustly enriching Defendants at the expense of these consumers. 25 Defendants, at all times, knew that Representative PlaintiffPlaintiffs and the Class Members 26 would rely upon the misrepresentations and/or omissions of Defendants. Defendants’ 27 concealment, misbranding and non-disclosure were intended to influence consumers’ purchasing 28 decisions and were done with reckless disregard for the rights of consumers. Representative -8First Amended Complaint for Damages, Injunctive Relief and Restitution 1 Plaintiff’sPlaintiffs’ and Class Members’ reliance, and resultant substantial monetary loss, were 2 reasonably foreseeable by Defendants. 3 4 FIRST CAUSE OF ACTION Fraud (for the California and Nationwide Classes) 5 6 7 29.31. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action 8 each and every allegation of the preceding paragraphs, with the same force and effect as though 9 fully set forth herein. 32. 10 The conduct of Defendants constitutes a fraud against Representative ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 PlaintiffPlaintiffs and members of each of the Classes. Defendants, directly and/or through their 12 agents and employees, made false representations to Representative PlaintiffPlaintiffs and 13 members of each of the Classes that were likely to deceive Representative PlaintiffPlaintiffs and 14 members of each of the Classes. 15 30. 16 these false representations into purchasing Listerine Total CarefromCare from Defendants. Representative PlaintiffPlaintiffs and members of each of the Classes were misled by 17 31.33. Defendants’ false representations include, but are not limited to, the statements 18 that Listerine Total Care is “total care,” and “fights unsightly plaque above the gum line,” as 19 alleged herein. 20 32.34. Defendants placed Listerine Total Care into the stream of commerce and 21 marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 22 product had the approval of the FDA. In fact, Listerine Total Care does not have FDA approval 23 for all of the purposes for which it is marketed. 24 33.35. Defendants knew, or reasonably should have known, of the false representations 25 alleged herein based on the ingredient composition of the mouthwash and intentionally 26 concealed information from PlaintiffPlaintiffs and members of each of the Classes. 27 28 34.36. The sole active ingredient of the mouthwash is listed as “sodium fluoride 0.0221%” - an ingredient which has not been shown to fight or prevent plaque. -9First Amended Complaint for Damages, Injunctive Relief and Restitution 1 35.37. Representative PlaintiffPlaintiffs and members of each of the Classes reasonably 2 and justifiably relied on Defendants’ misrepresentations when purchasing the mouthwash, were 3 unaware of the existence of facts that Defendants suppressed and failed to disclose and, had the 4 facts been known, would not have purchased the mouthwash and/or would not have purchased it 5 at the price at which it was offered. 6 36.38. Specifically, Representative PlaintiffPlaintiffs and members of each of the Classes 7 viewed Defendants’ product packaging, product commercials, and product specifications and, in 8 reliance on those representations, purchased the mouthwash for total oral care. 37.39. As a direct and proximate result of Defendants’ wrongful conduct, Representative 9 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 PlaintiffPlaintiffs and members of each of the Classes have suffered and continue to suffer 11 SCOTT COLE & ASSOCIATES, APC 10 economic losses and other general and specific damages, including, but not necessarily limited 12 to, the monies paid to Defendants for a product which does not deliver the purported total oral 13 care. 14 38.40. Moreover, in that, at all times herein mentioned, Defendants intended to cause or 15 acted with reckless disregard of the probability of causing damage to Representative 16 PlaintiffPlaintiffs and members of each of the Classes, and because Defendants were guilty of 17 oppressive, fraudulent and/or malicious conduct, Representative PlaintiffPlaintiffs and members 18 of each of the Classes are entitled to an award of exemplary or punitive damages against 19 Defendants in an amount adequate to deter such conduct in the future. 20 21 SECOND CAUSE OF ACTION Intentional Misrepresentation (for the California and Nationwide Classes) 22 23 24 25 26 39.41. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 27 28 -10First Amended Complaint for Damages, Injunctive Relief and Restitution 1 40.42. At all times relevant herein, Defendants were engaged in the business of 2 designing, manufacturing, marketing, distributing and/or selling, among other products, home 3 healthcare products, as alleged herein. 4 41.43. Defendants willfully, falsely, and knowingly misrepresented material facts 5 relating to the character and quality of the mouthwash, in ways including, but not limited to, the 6 statements that the mouthwash would provide “total [oral] care,” and “fight[] unsightly plaque 7 above the gum line,” as alleged herein. marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 10 product had the approval of the FDA. In fact, Listerine Total Care does not have FDA approval 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 42.44. Defendants placed Listerine Total Care into the stream of commerce and 9 SCOTT COLE & ASSOCIATES, APC 8 for all of the purposes for which it is marketed. 12 43.45. Defendants knew that the misrepresentations alleged herein were false at the time 13 they made them and/or acted recklessly in making such misrepresentations, based on 14 Defendants’ knowledge of the sole active ingredient intended to provide such benefits to 15 consumers. 16 44.46. Defendants’ misrepresentations were the type of misrepresentations that are 17 material (i.e., the type of misrepresentations to which a reasonable person would attach 18 importance and would be induced to act thereon in making purchase decisions). The 19 misrepresentations were material in that Representative PlaintiffPlaintiffs and members of each 20 of the Classes purchased Listerine Total Care as a home healthcare product capable of providing 21 total oral healthcare benefits. 22 45.47. Representative PlaintiffPlaintiffs and members of each of the Classes reasonably 23 and justifiably relied on Defendants’ misrepresentations when purchasing the mouthwash, were 24 unaware of the existence of facts that Defendants suppressed and failed to disclose and, had the 25 facts been known, would not have purchased the mouthwash and/or would not have purchased it 26 at the price at which it was offered. Representative Plaintiff’sPlaintiffs’ and each Class member’s 27 reliance was a substantial factor in making the purchase which led to the resulting injury, as 28 alleged herein. -11First Amended Complaint for Damages, Injunctive Relief and Restitution 1 46.48. Specifically, Representative PlaintiffPlaintiffs and members of each of the Classes 2 viewed Defendants’ product packaging, product commercials, and product specifications, and, in 3 reliance on those representations, purchased Listerine Total Care for its purported total oral 4 health benefits. 5 47.49. Defendants intended that Representative PlaintiffPlaintiffs and members of each 6 of the Classes rely on the misrepresentations alleged herein and purchase the mouthwash for the 7 uses advertised, including total oral healthcare. Representative PlaintiffPlaintiffs and members of each of the Classes were injured in ways 10 including, but not limited to, the purchase of a product which does not deliver the total oral care 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 48.50. As a direct and proximate result of Defendants’ intentional misrepresentation, 9 SCOTT COLE & ASSOCIATES, APC 8 it purports to deliver. Damages resulting from such injury may, but do not necessarily include 12 nor are limited to, monetary damages in the amount of the difference in value between a 13 mouthwash capable of providing total oral healthcare benefits and the value paid to Defendants 14 for a product which Defendants represented would provide benefits it is incapable of providing. 15 /// 16 49.51. Moreover, in that, at all times herein mentioned, Defendants intended to cause, or 17 acted with reckless disregard of the probability of causing, damage to Representative 18 PlaintiffPlaintiffs and members of each of the Classes, and because Defendants were guilty of 19 oppressive, fraudulent and/or malicious conduct, Representative PlaintiffPlaintiffs and members 20 of each of the Classes are entitled to an award of exemplary or punitive damages against 21 Defendants in an amount adequate to deter such conduct in the future. Specifically, despite 22 knowledge that the mouthwash product could not provide total oral healthcare and was not 23 approved as an effective means of fighting plaque, Defendants have refused, and continue to 24 refuse, any response or remedy. 25 26 27 THIRD CAUSE OF ACTION Negligent Misrepresentation (for the California and Nationwide Classes) 28 -12First Amended Complaint for Damages, Injunctive Relief and Restitution 1 50.52. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action 2 each and every allegation of the preceding paragraphs, with the same force and effect as though 3 fully set forth herein. 4 51.53. Defendants owed a duty to Representative PlaintiffPlaintiffs and members of each 5 of the Classes to exercise reasonable care in making representations about Listerine Total Care, 6 which they offered for sale thereto. detailed in this Complaint and, thus, should have known that their representations, as also 9 detailed, at least in part, in this Complaint, were false. In addition, given Defendants’ knowledge 10 of the sole active ingredient of Listerine Total Care, Defendants had no reasonable grounds to 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 52.54. Defendants should have known of the ingredient composition of this product, as 8 SCOTT COLE & ASSOCIATES, APC 7 believe their representations as to the effectiveness of the product were true. 12 53.55. Defendants’ representations were negligently and recklessly made to potential 13 consumers and the general public (including Representative PlaintiffPlaintiffs and members of 14 each of the Classes) through Defendants’ statement that the mouthwash provided “total care,” 15 and was effective in “fight[ing] unsightly plaque above the gum line.” 16 /// 17 54.56. Defendants placed Listerine Total Care into the stream of commerce and 18 marketed it as a drug. By doing so, Defendants necessarily represented to consumers that the 19 product had the approval of the FDA. In fact, Listerine Total Care does not have FDA approval 20 for all of the purposes for which it is marketed. 21 55.57. Representative PlaintiffPlaintiffs and members of each of the Classes viewed and 22 reasonably and justifiably relied on Defendants’ misrepresentations when purchasing the 23 mouthwash, were unaware of the existence of facts that Defendants suppressed and failed to 24 disclose and, had the facts been known, would not have purchased the mouthwash and/or would 25 not have purchased it at the price at which it was offered. 26 56.58. As a direct and proximate result of these misrepresentations, Representative 27 PlaintiffPlaintiffs and members of each of the Classes have been damaged in an amount to be 28 proven at trial. The damages suffered by Representative PlaintiffPlaintiffs and members of each -13First Amended Complaint for Damages, Injunctive Relief and Restitution 1 of the Classes include, but are not limited to, the monies paid to Defendants for a product which 2 does not deliver the purported total oral care. 3 /// FOURTH CAUSE OF ACTION Deceptive Advertising Practices (California Business & Professions Code §§ 17500, et seq.) (for the California Class Only) 4 5 6 7 57.59. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action 8 each and every allegation of the preceding paragraphs, with the same force and effect as though 9 fully set forth herein. 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 58.60. California Business & Professions Code § 17500 prohibits “unfair, deceptive, untrue or misleading advertising.” 12 59.61. Defendants violated California Business & Professions Code § 17500 when they 13 represented that Listerine Total Care possessed characteristics and a value that it did not actually 14 have; these representations were made through Defendants’ statements that the mouthwash 15 would provide “total [oral] care,” and “fight[] unsightly plaque above the gum line,” as alleged 16 herein. 17 60.62. Defendants’ deceptive practices were specifically designed to induce 18 Representative PlaintiffPlaintiffs and members of the California Class to purchase the 19 mouthwash over the mouthwashes of their competitors. Defendants engaged in broad-based 20 marketing efforts, including posting statements on Defendants’ website, releasing television 21 commercials nationwide, and establishing promotional websites on social networking sites, as 22 alleged herein, in order to reach Representative PlaintiffPlaintiffs and California Class members 23 and induce them to purchase this product. 24 25 26 27 61.63. The content of the advertisements, as alleged herein, were of a nature likely to deceive a reasonable consumer. 62.64. Defendants knew or, in the exercise of reasonable care, should have known that the representations were untrue or misleading and likely to deceive reasonable consumers. 28 -14First Amended Complaint for Damages, Injunctive Relief and Restitution 1 63.65. As a direct and proximate result of Defendants’ unlawful conduct in violation of 2 California Business & Professions Code § 17500, Defendants should be required to provide all 3 proper remedies to Representative PlaintiffPlaintiffs and members of the California Class. 4 /// FIFTH CAUSE OF ACTION Consumer Legal Remedies Act (California Civil Code §1750, et seq.) (for the California Class Only) 5 6 7 8 64.66. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action 9 each and every allegation of the preceding paragraphs, with the same force and effect as though 10 fully set forth herein. ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 65.67. Representative PlaintiffPlaintiffs and the members of the California Class are 12 consumers who purchased Defendants’ Listerine Total Care, directly or indirectly from 13 Defendants for personal use. 14 66.68. Through Defendants’ statements that the mouthwash would provide “total [oral] 15 care,” and “fight[] unsightly plaque above the gum line,” Defendants represented that the 16 mouthwash had/has characteristics, uses and/or benefits which it did/does not have, which 17 constituted and continues to constitute an unfair or deceptive trade practice under the provisions 18 of 19 PlaintiffRepresentative Plaintiffs and members of the California Class viewed and reasonably 20 and justifiably relied on Defendants’ misrepresentations when purchasing the mouthwash, were 21 unaware of the existence of facts that Defendants suppressed and failed to disclose and, had the 22 facts been known, would not have purchased the mouthwash or would not have purchased it at 23 the price at which it was offered. California Civil Code § 1770(a)(5) (the “Consumers Legal Remedies Act”). 24 67.69. Representative PlaintiffPlaintiffs and the members of the California Class have 25 been directly and proximately injured by Defendants’ conduct in ways including, but not limited 26 to, the monies paid to Defendants for a product which does not deliver the total oral care it 27 purports to deliver. . 28 -15First Amended Complaint for Damages, Injunctive Relief and Restitution 1 68.70. Insofar as Defendants’ conduct violated California Civil Code § 1770(a)(5), 2 Representative PlaintiffPlaintiffs and members of the California Class are entitled to (pursuant to 3 California Civil Code § 1780, et seq.) and do seek injunctive relief to end Defendants’ violations 4 of the California Consumers Legal Remedies Act. Charlene Britton on her own behalf and on behalf of members of the California Class, has 7 notified Defendants of the alleged violations of the Consumer Legal Remedies Act. If, after 30 8 days from the date of the notification letter, Defendants have failed to provide appropriate relief 9 for the violations, Representative PlaintiffPlaintiffs will amend this Complaint to seek 10 compensatory, monetary and punitive damages, in addition to equitable and injunctive relief, and 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 69.71. In addition, pursuant to California Civil Code § 1782(a), Representative Plaintiff 6 SCOTT COLE & ASSOCIATES, APC 5 will further request that this Court enter such orders or judgments as may be necessary to restore 12 to any person in interest any money which may have been acquired by means of such unfair 13 business practices, and for such other relief as provided in California Civil Code § 1780 and the 14 Prayer for Relief. 15 70.72. As a direct and proximate result of Defendants’ unfair and deceptive trade 16 practice, Representative PlaintiffPlaintiffs and members of each of the Classes have been 17 damaged in an amount to be proven at trial. Representative PlaintiffPlaintiffs further request that 18 this Court enter such orders or judgments as may be necessary to restore to any person in interest 19 any money which may have been acquired by means of such unfair business practices, and for 20 such other relief as provided in California Civil Code § 1780 and the Prayer for Relief. 21 22 23 24 SIXTH CAUSE OF ACTION Unfair Business Practices Under The Unfair Competition Act (California Business & Professions Code §§ 17200-17208) (for the California Class Only) 25 71.73. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action 26 each and every allegation of the preceding paragraphs, with the same force and effect as though 27 fully set forth herein. 28 -16First Amended Complaint for Damages, Injunctive Relief and Restitution 1 72.74. Representative PlaintiffPlaintiffs further brings this cause of action seeking 2 equitable and injunctive relief to stop Defendants’ misconduct, as complained of herein, and to 3 seek restitution of the amounts Defendants acquired through the unfair, unlawful, and fraudulent 4 business practices described herein. 5 73.75. Defendants’ knowing conduct, as alleged herein, constitutes an unlawful and/or 6 fraudulent business practice, as set forth in California Business & Professions Code §§ 17200- 7 17208. Specifically, Defendants conducted business activities while failing to comply with the 8 legal mandates cited herein. 9 74.76. Defendants’ conduct was, and continues to be, unlawful in that it is a violation of ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 California Civil Code §1750, et seq. and California Business & Professions Code §§ 17500, et 11 SCOTT COLE & ASSOCIATES, APC 10 seq., as alleged herein. 12 75.77. Defendants’ conduct was, and continues to be fraudulent, because directly or 13 through their agents and employees, Defendants made false representations to Representative 14 PlaintiffPlaintiffs and members of the California Class that were likely to deceive Representative 15 PlaintiffPlaintiffs and members of the California Class. These false representations misled 16 Representative PlaintiffPlaintiffs and members of the California Class into purchasing Listerine 17 Total Care. 18 76.78. Defendants’ false representations include, but are not limited to, the statements 19 that the mouthwash would provide “total [oral] care,” and “fight[] unsightly plaque above the 20 gum line,” as alleged herein. 21 77.79. Representative PlaintiffPlaintiffs and members of the California Class reasonably 22 and justifiably relied on Defendants’ misrepresentations when purchasing Listerine Total Care, 23 were unaware of the existence of facts that Defendants suppressed and failed to disclose, and, 24 had the facts been known, would not have purchased the mouthwash and/or would not have 25 purchased it at the price at which it was offered. 26 78.80. Specifically, Representative PlaintiffPlaintiffs and members of the California 27 Class viewed Defendants’ product packaging, product commercials, and product specifications 28 and, in reliance on those representations, purchased the mouthwash for total oral care. -17First Amended Complaint for Damages, Injunctive Relief and Restitution 1 79.81. As a direct and proximate result of Defendants’ wrongful conduct, Representative 2 PlaintiffPlaintiffs and members of the California Class have suffered and continue to suffer 3 economic losses and other general and specific damages, including, but not necessarily limited 4 to, the monies paid to Defendants for a product which does not deliver the purported total oral 5 care. to disclose or remedy the problem despite their knowledge of the product limitations, constitutes 8 a knowing failure to adopt policies in accordance with and/or adhere to applicable laws, as set 9 forth herein, all of which are binding upon and burdensome to their competitors, engendering an 10 unfair competitive advantage for Defendants, thereby constituting an unfair business practice 11 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 80.82. Defendants’ conduct in making the representations described herein, and failing 7 SCOTT COLE & ASSOCIATES, APC 6 under California Business & Professions Code §§ 17200-17208. 12 81.83. Defendants have clearly established a policy of accepting a certain amount of 13 collateral damage, as represented by the damages to the Representative PlaintiffPlaintiffs and to 14 California Class Members herein alleged, as incidental to their business operations, rather than 15 accept the alternative costs of full compliance with fair, lawful, and honest business practices, 16 ordinarily borne by their responsible competitors and as set forth in legislation and the judicial 17 record. 18 82.84. In addition, Defendants’ conduct was, and continues to be, unfair, in that their 19 injury to millions of purchasers of the mouthwash is substantial, and is not outweighed by any 20 countervailing benefits to consumers or to competitors. 21 /// 22 83.85. Moreover, Representative PlaintiffPlaintiffs and members of the California Class 23 could not have reasonably avoided such injury given that Defendants failed to disclose the 24 product’s effectiveness limitations at any point, and Representative PlaintiffPlaintiffs and 25 members of the California Class purchased the mouthwash in reliance on the representations 26 made by Defendants, as alleged herein. 27 28 86. Representative PlaintiffPlaintiffs and the members of the California Class have been directly and proximately injured by Defendants’ conduct in ways including, but not -18First Amended Complaint for Damages, Injunctive Relief and Restitution 1 necessarily limited to, monies paid to Defendants for a product which does not deliver the 2 purported total oral care. 84. 3 4 SEVENTH CAUSE OF ACTION Breach of Song-Beverly Consumer Warranty Act (California Civil Code § 1790, et seq.) (for the California Class only) 5 6 7 85.87. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action 8 each and every allegation of the preceding paragraphs, with the same force and effect as though 9 fully set forth herein. 10 86.88. Listerine Total Care is a “consumer good” within the meaning of California Civil ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 Code § 1791(a). 12 /// 13 14 15 16 87.89. Representative PlaintiffPlaintiffs and each member of the California Class purchased Defendants’ Listerine Total Care in California. 88.90. Defendants’ express warranty and implied warranty of merchantability arose out of and/or were related to the sale of the mouthwash. 17 89.91. Defendants warranted to consumers, among other things, that Listerine Total 18 Care, would constitute “total” oral care and would “fight[] unsightly plaque above the gum line.” 19 90.92. Defendants’ sale of the mouthwash is also subject to an implied warranty of 20 merchantability (i.e. that the mouthwash passes without objection in the trade under the 21 descriptions and advertisements provided by Defendants, is fit for the ordinary purpose for which 22 such goods are used, and conforms to the promises and affirmations of fact made on the 23 container and labels). 24 91.93. Ordinary use of Listerine Total Care is for general oral healthcare namely, 25 fighting plaque in addition to preventing cavities, strengthening teeth, killing bad breath germs, 26 freshening breath, and restoring tooth enamel. 27 92.94. When Defendants placed the mouthwash into the stream of commerce, they knew, 28 reasonably should have known, and/or were obligated to understand that the intended and -19First Amended Complaint for Damages, Injunctive Relief and Restitution 1 ordinary purpose of the mouthwash was to function as a total oral care product in providing 2 consumers with plaque-fighting properties. 3 93.95. The mouthwash cannot perform its ordinary and represented purpose because it 4 contains a sole active ingredient not proven effective for providing the oral healthcare benefits 5 sought by consumers. 6 94.96. As set forth herein, Defendants failed to comply with their obligations under their 7 express warranties and under their implied warranty of merchantability in that they did not 8 provide a product that functions as warranted, that serves its ordinary or intended purpose, or 9 functions in conformance with specifications as advertised. ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 95.97. Representative PlaintiffPlaintiffs and the California Class Members have suffered 11 SCOTT COLE & ASSOCIATES, APC 10 and will continue to suffer damages as a direct and proximate result of Defendants’ failure to 12 comply with their warranty obligations, and are entitled to judgment pursuant to California Civil 13 Code §§ 1791.1(d) and 1794, as well as attorneys’ fees, costs and interest. 14 EIGHTH CAUSE OF ACTION Breach of Express Warranty (for the California and Nationwide Classes) 15 16 17 96.98. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action 18 each and every allegation of the preceding paragraphs, with the same force and effect as though 19 fully set forth herein. 20 97.99. Defendants, as the designers, manufacturers, distributors and sellers of the 21 mouthwash, expressly warranted that the mouthwash being sold to the general public would 22 effectively provide total oral care and assist consumers in the fight against disease-inducing oral 23 ailments, as advertised. 24 98.100. 25 26 Defendants warranted to consumers that Listerine Total Care would constitute “total” oral care and would “fight[] unsightly plaque above the gum line.” 99.101. In addition, Defendants’ promotional statements, representations and 27 demonstrations regarding the mouthwash became part of the basis of the bargain between 28 consumers and Defendants, creating express warranties that the product purchased by the -20First Amended Complaint for Damages, Injunctive Relief and Restitution 1 Representative PlaintiffPlaintiffs and members of each of the Classes would conform to 2 Defendants’ representations. 100.102. 3 Defendants’ breached their express warranties because Listerine Total 4 Care does not conform to the promises or affirmations made by Defendants to the Representative 5 PlaintiffPlaintiffs and members of each of the Classes. 101.103. 6 Representative PlaintiffPlaintiffs, on hertheir own behalf and on behalf of 7 members of each of the Classes, hashave provided and/or will provide reasonable notice to 8 Defendants of the breach of warranty. 102.104. 9 Representative PlaintiffPlaintiffs and the members of each of the Classes ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 have been directly and proximately injured by Defendants’ conduct in ways including, but not 11 SCOTT COLE & ASSOCIATES, APC 10 limited to, the purchase of a product which does not deliver the total oral care it purports to 12 deliver. 13 /// 103.105. 14 As a direct and proximate result of Defendants’ unlawful conduct, as set 15 forth herein, Representative PlaintiffPlaintiffs and members of each of the Classes are entitled to 16 monetary damages in the amount of the difference in value between a mouthwash capable of 17 providing total oral healthcare benefits and the value paid to Defendants for a product which 18 Defendants represented would provide benefits it is incapable of providing. 19 /// 20 /// 21 /// 22 /// 23 /// 24 NINTH CAUSE OF ACTION Breach of Implied Warranty (for the California and Nationwide Classes) 25 26 27 28 104.106. Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. -21First Amended Complaint for Damages, Injunctive Relief and Restitution 105.107. 1 Defendants are merchants engaged in the business of selling, among other 2 things, healthcare products to consumers. Defendants’ sale of Listerine Total Care is subject to 3 an implied warranty of merchantability. Defendants breached said warranty by selling a product 4 which does not pass without objection in the trade under the descriptions and advertisements 5 provided by Defendants, is not fit for the ordinary purpose for which such goods are used, and 6 does not conform to the promises and affirmations of fact made on the container and labels. 106.108. 7 Representative PlaintiffPlaintiffs and members of each of the Classes 8 purchased the mouthwash and used it for its ordinary and intended purposes which included 9 fighting plaque, preventing cavities, and providing general oral healthcare such as strengthening 10 teeth, killing bad breath germs, freshening breath, and restoring tooth enamel. 107.109. ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 The mouthwash cannot perform its ordinary and represented purpose 12 because it contains a sole active ingredient not proven effective for providing the oral healthcare 13 benefits sought by consumers. 108.110. 14 When Defendants placed the mouthwash into the stream of commerce, 15 they knew, reasonably should have known, and/or were obligated to understand that the intended 16 and ordinary purpose of the mouthwash was to function as a total oral care product in providing 17 consumers with plaque-fighting properties. 109.111. 18 Representative PlaintiffPlaintiffs and members of each of the Classes 19 reasonably expected that the mouthwash they purchased would provide the described and 20 warranted health care benefits represented by Defendants, including, but not necessarily limited 21 to, fighting plaque above the gum line and supplying a mode of total oral healthcare. 22 /// 23 /// 24 110.112. As a direct and proximate result of Defendants’ unlawful conduct, as set 25 forth herein, Representative PlaintiffPlaintiffs and members of each of the Classes were injured 26 and are entitled to damages in an amount to be proven at trial. 27 28 TENTH CAUSE OF ACTION Unjust Enrichment -22First Amended Complaint for Damages, Injunctive Relief and Restitution (for the California and Nationwide Classes) 1 2 111.113. 3 4 5 action each and every allegation of the preceding paragraphs, with the same force and effect as though fully set forth herein. 112.114. 6 7 8 9 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 18 19 20 Representative Plaintiff incorporatesPlaintiffs incorporate in this cause of As alleged herein, Defendants intentionally and/or recklessly made false representations to Representative PlaintiffPlaintiffs and members of each of the Classes to induce them to purchase Listerine Total Care. Representative PlaintiffPlaintiffs and members of each of the Classes reasonably relied on these false representations when purchasing Listerine Total Care. 113.115. Representative PlaintiffPlaintiffs and members of each of the Classes did not receive all of the benefits promised by Defendants, and paid more to Defendants for the mouthwash than they otherwise would and/or should have paid. 114.116. It would be inequitable and unconscionable for Defendants to retain the profit, benefit and/or other compensation they obtained from their deceptive, misleading, and unlawful conduct alleged herein. 115.117. Representative PlaintiffPlaintiffs and members of each of the Classes are entitled to restitution of, disgorgement of, and/or the imposition of a constructive trust upon, all profits, benefits, and other compensation obtained by Defendants from their deceptive, misleading, and unlawful conduct as alleged herein. RELIEF SOUGHT 21 22 WHEREFORE, the Representative PlaintiffPlaintiffs, on behalf of herselfthemselves 23 and the proposed Plaintiff Classes, prayspray for judgment and the following specific relief 24 against Defendants, as follows: 25 1. That the Court declare, adjudge and decree that this action is a proper class action 26 and certify each of the proposed classes and/or any other appropriate subclasses under F.R.C.P. 27 Rule 23(b)(2) and/or (b)(3); 28 For the California Class Only: -23First Amended Complaint for Damages, Injunctive Relief and Restitution 2. 1 That Defendants are found to have violated California Business & Professions 2 Code § 17200, et seq., and § 17500, et seq., California Civil Code §1750, et seq., and § 1790, et 3 seq., as to the Representative PlaintiffPlaintiffs and California Class members; 3. 4 That the Court order Defendants to pay restitution to the Representative 5 PlaintiffPlaintiffs and the California Class Members due to Defendants’ unlawful activities, 6 pursuant to California Business and Professions Code §§ 17200-17208; 4. 7 8 unlawful activities in violation of California Business and Professions Code §§ 17200, et seq.; 5. 9 10 That the Court further enjoin Defendants, ordering them to cease and desist from For reasonable attorneys’ fees, pursuant to California Code of Civil Procedure § 1021.5 and/or California Civil Code §§ 1780(d) and/or 1794(d); ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 For the California and National Classes: 12 6. 13 misrepresentations to Representative PlaintiffPlaintiffs and all Class members; 7. 14 15 An award to Representative PlaintiffPlaintiffs and members of both Classes of damages in an amount to be proven at trial; 8. 16 17 That Defendants are found to have made fraudulent and/or negligent For Punitive Damages in an amount appropriate to punish Defendants and to deter others from engaging in similar misconduct in the future; 9. 18 19 Complaint; 20 For all other Orders, findings and determinations identified and sought in this /// 10. 21 22 For interest on the amount of any and all economic losses, at the prevailing legal rate; and 11. 23 24 proper. 25 For costs of suit and any and all other such relief as the Court deems just and /// 26 JURY DEMAND 27 Representative PlaintiffPlaintiffs and members of each of the Plaintiff Classes hereby 28 demand trial by jury on all issues triable of right by jury. -24First Amended Complaint for Damages, Injunctive Relief and Restitution 1 2 Dated: October 1December 20, 2010 SCOTT COLE & ASSOCIATES, APC 3 4 By: /s/Matthew R. Bainer 5 6 7 Scott Edward ColeMatthew R. Bainer, Esq. Attorneys for Representative PlaintiffPlaintiffs and the Plaintiff Classes 8 9 10 ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR OAKLAND, CA 94612 TEL: (510) 891-9800 SCOTT COLE & ASSOCIATES, APC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -25First Amended Complaint for Damages, Injunctive Relief and Restitution
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