1 ROBBINS GELLER RUDMAN
& DOWD LLP
2 SHAWN A. WILLIAMS (213113)
Post Montgomery Center
3 One Montgomery Street, Suite 1800
San Francisco, CA 94104
4 Telephone: 415/288-4545
415/288-4534 (fax)
5 shawnw@rgrdlaw.com
– and –
6 PAUL J. GELLER
STUART A. DAVIDSON
7 CULLIN A. O’BRIEN
MARK DEARMAN
8 CHRISTOPHER MARTINS
120 East Palmetto Park Road, Suite 500
LAW FIRST LLC
9 Boca Raton, FL 33432
MUNIZA BAWANEY
Telephone: 561/750-3000
RISHI V. VOHRA
30 South Wacker Drive, Suite 2200
10 561/750-3364 (fax)
pgeller@rgrdlaw.com
Chicago, IL 60606
Telephone: 312/860-3755
11 sdavidson@rgrdlaw.com
cobrien@rgrdlaw.com
312/753-5066 (fax)
mbawaney@lawfirst.com
12 mdearman@rgrdlaw.com
cmartins@rgrdlaw.com
rvohra@lawfirst.com
13
Attorneys for Plaintiff and the Class
14
UNITED STATES DISTRICT COURT
15
NORTHERN DISTRICT OF CALIFORNIA
16
BILAL ELSAKKA, Individually and on Behalf) No.
)
17 of All Others Similarly Situated,
) CLASS ACTION
)
18
Plaintiff,
) COMPLAINT FOR VIOLATIONS OF THE
19
vs.
) CONSUMERS LEGAL REMEDIES ACT,
) CIVIL CODE §1750 et seq., FALSE AND
20 PHARMAVITE LLC, OTSUKA AMERICA, ) MISLEADING ADVERTISING IN
INC. and OTSUKA PHARMACEUTICAL
) VIOLATION OF BUSINESS AND
21 CO., LTD.,
) PROFESSIONS CODE §17500 et seq.,
) VIOLATION OF THE UNFAIR
22
Defendants.
) COMPETITION LAW, BUSINESS AND
) PROFESSIONS CODE §17200 et seq.;
23
VIOLATIONS OF THE MAGNUSON-MOSS
WARRANTY ACT, 15 U.S.C. §2301 et seq.,
24
AND BREACH OF EXPRESS WARRANTY
OR, IN THE ALTERNATIVE, UNJUST
25
ENRICHMENT
26
27
28
DEMAND FOR JURY TRIAL
1
Plaintiff Bilal Elsakka (“plaintiff”), individually and on behalf of all others similarly situated,
2 brings this Class Action Complaint against the herein named defendants, and upon information and
3 belief, except as to the allegations within plaintiff’s personal knowledge, alleges as follows:
4
5
INTRODUCTION
1.
This consumer class action seeks redress for defendants Pharmavite LLC’s
6 (“Pharmavite”), Otsuka Pharmaceutical Co., Ltd’s, and Otsuka America, Inc.’s (together with
7 Otsuka Pharmaceutical Co., Ltd., “Otsuka”) (collectively, “defendants”) false, deceptive, and
8 misleading advertising of approximately five dozen of their popular dietary supplements, Nature
9 Made® (“Supplements”).
10
2.
The labels and ingredient lists contained on approximately 60 of defendants’
11 Supplements fail to indicate that the Supplements contain animal-based ingredients. Defendants’
12 Supplement labels are, thus, false, deceptive, and misleading, in violation of California law. Indeed,
13 contrary to the clear and unambiguous labeling (including the list of ingredients), defendants’
14 Supplements at issue in this action contain pork and/or beef gelatin. Accordingly, herein, plaintiff
15 asserts violations of California statutory and common law against defendants on behalf of plaintiff
16 and the proposed class, as defined infra (the “Class”).
17
3.
To make matters worse, not only do defendants conceal the fact that numerous
18 Supplements contain pork gelatin and other animal by-products, but defendants affirmatively
19 mislead consumers into believing that Nature Made® is a brand that consumers can trust, and that
20 consumers can fully rely upon the veracity of the Supplements’ labels to determine all of the
21 ingredients contained therein. Indeed, defendants have lured individuals who refrain from ingesting
22 pork and/or other animal-based foods, including vegans, vegetarians, and members of the Muslim,
23 Jewish, Hindu, and Sikh faiths (among other religious faiths), including plaintiff, to purchase and
24 consume their Supplements. Indeed, such consumers would never have purchased defendants’
25 Supplements had defendants’ ingredient lists been accurate and complete, thereby truthfully
26 informing consumers that the Supplements contained pork gelatin and other animal by-products.
27
4.
Due to defendants’ deception, plaintiff and the other members of the Class have
28 purchased products they would not have purchased. Moreover, defendants’ deception has more
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-1-
1 serious consequences for certain members of the Class, such as practicing members of the Muslim
2 and Jewish faiths, who believe that consuming pork or pork by-products (which are considered by
3 them to be “impure”) is a serious sin. For these consumers, such as plaintiff, defendants’ deceptive
4 assurances that Nature Made® is a brand consumers can trust, along with their motto that Nature
5 Made® is “purely made,” are all the more unconscionable.
6
5.
More specifically, defendants’ marketing campaign, disseminated via the Nature
7 Made® product labels and website, conveys to consumers the messages that: (1) defendants make
8 sure consumers can trust what they are putting into their bodies; (2) Nature Made® is a brand that
9 goes above and beyond to guarantee to consumers that only what is on the label is in the bottle; and
10 (3) defendants produce approximately 60 Nature Made® Supplements that contain no animal
11 by-products. As explained herein, these claims are false, deceptive, and misleading to a reasonable
12 consumer, including plaintiff and members of the Class, and thus, violate California law
13
6.
Defendants disseminate these false, deceptive, and misleading marketing claims
14 throughout the United States, including throughout the State of California.
15
7.
As a result of defendants’ false, deceptive, and misleading marketing campaign,
16 consumers have, in fact, come to rely on the Nature Made® brand as a name they can trust. Indeed,
17 it is no surprise that Nature Made® has been America’s number one supplement brand since 2005
18 and is the number one pharmacist-recommended brand in five key product segments – Letter
19 Vitamins, Omega-3/Fish Oil, Coenzyme Q10, Flax Seed Oil, and Herbal supplements.
20
8.
Defendants currently spend significant sums of money marketing their Supplements,
21 and, just as defendants intended, plaintiff and other Class members reasonably relied upon those
22 deceptive messages conveyed through said marketing. As such, plaintiff and the Class members
23 were deceived into purchasing Supplements that defendants led them to believe contained no animal
24 by-products, and as a result, plaintiff and the members of the Class were damaged.
25
9.
Despite defendants’ knowledge that many of their Supplements, although not labeled
26 as such, do contain porcine (pork) gelatin and/or other animal by-products, defendants continue to
27 mislead consumers by advertising and selling approximately 60 Nature Made® Supplements as not
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-2-
1 containing any animal by-products whatsoever, thereby continuing to profit off their false, deceptive,
2 and misleading marketing campaign with impunity.
3
JURISDICTION AND VENUE
4
10.
This Court has jurisdiction pursuant to 28 U.S.C. §1332(d)(2)(C) as modified by the
5 Class Action Fairness Act of 2005, because at least one member of the Class of plaintiffs is a citizen
6 of a state and one of the defendants is a citizen of a foreign state, there are more than 100 members
7 in the Class, and the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and
8 costs.
9
11.
Pursuant to 28 U.S.C. §1391(b), venue is proper in this District because a substantial
10 part of the events or omissions giving rise to the claims asserted herein occurred in this District.
11
12
INTRADISTRICT ASSIGNMENT
12.
A substantial part of the events or omissions which give rise to the claims in this
13 action occurred in the County of San Francisco, and as such, this action is properly assigned to the
14 San Francisco or Oakland divisions of this Court.
15
16
PARTIES
13.
Plaintiff Bilal Elsakka is a citizen of the State of California and an individual
17 consumer residing in Santa Clara County, California. Plaintiff adheres to certain dietary restrictions
18 pursuant to which he does not consume, among other things, animal-based gelatin, pork or pork
19 by-products. In or about February 2012, plaintiff purchased Nature Made® Vitamin C 500 mg
20 caplets from a Safeway grocery store in Santa Clara County for approximately $7.79 for a bottle of
21 100 caplets. In or about May 2012, plaintiff purchased Nature Made® Multi Complete Tablets for
22 approximately $13.39 for a bottle of 130 tablets and Nature Made® B-Complex with C Caplets for
23 approximately $11.99 for a bottle of 100 caplets from a Safeway grocery store in Santa Clara
24 County. At various other times throughout the relevant period, plaintiff made several other
25 purchases of Nature Made® Multi Complete Tablets, Nature Made® Vitamin C 500 mg Caplets, and
26 Nature Made® B-Complex with C Caplets. All of the aforementioned Nature Made® Supplements
27 that plaintiff regularly purchased contain pork-based gelatin but failed to disclose this fact anywhere
28 on the products’ labeling. Plaintiff is a practicing Muslim who strictly refrains from eating pork and
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-3-
1 any pork by-products. Thus, plaintiff would not have purchased Nature Made® Multi Complete
2 Tablets, Nature Made® Vitamin C 500 mg Caplets, or Nature Made® B-Complex with C Caplets
3 had he known of defendants’ deception.
4
14.
Defendant Pharmavite is, and at all relevant times was, a limited liability company
5 organized under the laws of the State of California, with its headquarters and principal place of
6 business located at 8510 Balboa Boulevard, Suite 100, Northridge, California 91325. Pharmavite
7 manufactures, markets and sells, inter alia, Nature Made® Supplements. Pharmavite is wholly
8 owned by defendants Otsuka America, Inc. and Otsuka Pharmaceutical Co., Ltd., and thus, is an
9 agent of Otsuka America, Inc. and Otsuka Pharmaceutical Co., Ltd.
10
15.
Defendant Otsuka America, Inc. is, and at all relevant times was, a corporation
11 organized under the laws of the State of Delaware, with its headquarters and principal place of
12 business located at One Embarcadero Center, Suite 2020, San Francisco, California 94111. Otsuka
13 wholly owns and controls Pharmavite. The parent company of Otsuka is Defendant Otsuka
14 Pharmaceutical Co., Ltd., a Japanese company. By virtue of its ownership and control of
15 Pharmavite, Otsuka was in a position to control, monitor, and regulate Pharmavite’s manufacturing,
16 marketing and sale of Nature Made® Supplements, and is thus, equally responsible for the false,
17 deceptive and misleading aspects of the marketing campaign of Nature Made® Supplements.
18
16.
Defendant Otsuka Pharmaceutical Co., Ltd. is, and at all relevant times was, a private
19 Japanese company with its headquarters and principal place of business located at 2-9 Kanda20 Tsukasamachi, Chiyoda-ku Tokyo 101-8535, Japan. Otsuka Pharmaceutical Co., Ltd. is the parent
21 company of defendants Otsuka America, Inc. and Pharmavite. By virtue of its ownership and
22 control of defendants Otsuka America, Inc. and Pharmavite, Otsuka Pharmaceutical Co., Ltd. was in
23 a position to control, monitor, and regulate Pharmavite’s manufacturing, marketing and sale of
24 Nature Made® Supplements, and is thus, equally responsible for the false, deceptive and misleading
25 aspects of the marketing campaign of Nature Made® Supplements.
26
17.
Defendants Otsuka America, Inc. and Otsuka Pharmaceutical Co., Ltd. are
27 collectively referred to herein as “Otsuka.”
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-4-
1
18.
At all relevant times, defendants Pharmavite and Otsuka included any and all parents,
2 subsidiaries, affiliates, divisions, franchises, partners, joint ventures, and organizational units of any
3 kind, their predecessors, successors and assigns, and their officers, directors, employees, agents and
4 representatives.
5
19.
At all relevant times, Pharmavite and Otsuka acted through their agents and
6 employees, and the acts of their agents and employees were within the scope of their agency and
7 employment. The policies and practices alleged in this Complaint were, on information and belief,
8 set or ratified at Pharmavite’s and Otsuka’s highest corporate levels.
9
20.
At all relevant times, Pharmavite and Otsuka were in the business of developing,
10 designing, manufacturing, licensing, marketing, distributing, selling and/or introducing Nature
11 Made® Supplements into interstate commerce throughout the United States, including throughout
12 the State of California and every other state, either directly or indirectly through third parties,
13 subsidiaries and/or related entities
14
15
SUBSTANTIVE ALLEGATIONS
21.
According to defendants, more than 150 million Americans consume dietary
16 supplements each year.
17
22.
Pharmavite is a global leader and manufacturer of dietary supplements, such as the
18 popular Nature Made® brand of Supplements, as well as the popular soy-based, all natural snack
19 bars, SOYJOY®. Pharmavite produces and distributes more than 120 dietary supplement products
20 in the United States and more than 100 internationally, throughout Japan, Taiwan, Mexico, South
21 Korea and Iran.
22
23.
Defendants’ national marketing campaign for their popular Nature Made®
23 Supplements conveys to consumers, including plaintiff and the Class, the messages that Nature
24 Made® is a brand that consumers can trust and that consumers can fully rely on the Supplements’
25 labels to determine the ingredients contained therein.
26
24.
As a result of defendants’ marketing campaign, consumers, including plaintiff and the
27 Class, have come to trust the Nature Made® brand, which has been America’s number one
28 supplement brand since 2005 and is the number one pharmacist-recommended brand in five key
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-5-
1 product segments: Letter Vitamins, Omega-3/Fish Oil, Coenzyme Q10, Flax Seed Oil, and Herbal
2 supplements.
3
25.
Defendants’ attempt to bolster their trustworthiness in the eyes of naïve consumers by
4 making “promises” and “guarantees” on the Pharmavite and Nature Made® websites with respect to
5 the quality of their Supplements, the “transparency” and “openness” of the brand, and Pharmavite’s
6 efforts to ensure that Nature Made® truly is a brand that consumers can trust:
7
8
9
10
11
12
13
As an industry leader, Nature Made®, manufactured by Pharmavite LLC, is
one example of a brand that goes above and beyond to guarantee to consumers
that what is on the label is in the bottle. Nature Made not only strictly adheres to
existing regulations, but also worked closely with legislators to enact DHEA and
develop the FDA requirements for dietary supplement GMPs.
For more than forty year [sic], Nature Made has led the industry in creating
self regulatory guidelines to protect the health and safety of American consumers.
Pharmavite ensures product quality by obtaining ingredients from quality suppliers,
verifying the quality of those ingredients through a set of purity and potency tests,
and conducting routine testing to ensure consistency and quality in each product.
Nature Made also adheres to manufacturing standards recommended by USP and
was the first company to obtain the USP Verified Dietary Supplement seal (a quality
seal of approval) and has obtained such approval for a majority of their products.
14
15
16
More than 53 Nature Made products have passed the rigorous tests conducted
to ensure product purity and quality to earn USP verification. Nature Made also
regularly passes other third-party testing, such as ConsumerLab.com, on purity,
potency and quality.
19
Nature Made continues to be a consistent, vocal advocate and supporter of
stronger safety legislation and adequate funding for FDA oversight of the industry.
Its government relations team works closely with trade association experts to educate
members of Congress about the value and health benefits of dietary supplements to
promote legislation that positively impacts and builds trust in the industry.
20
26.
17
18
Indeed, defendants claim on the home page of their Nature Made® website that
21 “Transparency” is one of the three “Guiding Principles” to which their brand is committed.
22
23
24
25
26
27
Specifically, defendants state on their Nature Made® website the following:
Everyday we make choices and take actions that ensure the scientific-basis
and quality of Nature Made® vitamins and supplements. Throughout, we have been
proud of our choices about our products, but in the past we have made many of these
decisions with less explanation than our consumers and customers would like.
We are making a commitment to change that. We are making a new
commitment to you on the transparency and openness of our decisions, our
actions, and the straight facts regarding the vitamin and supplement category as a
whole. As we take this new pledge to transparency, we have high expectations, but
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-6-
1
also know there is significant work ahead of us. We ask that you watch us, engage in
a dialogue with us, and help by challenging us to constantly improve.
2
3
For Nature Made as a vitamins and supplements company, we believe
transparency means three critical things:
4
Acting Openly & Honestly
5
We know that the first key step is communicating more of our choices and
actions regarding our products publicly, including potentially complex but
important details of our products. This will be challenging work, but we are in the
early stages of a progression toward more open and transparent communication of
our actions.
6
7
8
9
In the future, for example, we plan to share more detailed information about
our product sourcing and manufacturing choices and sustainable environmental
impact. We recognize that we have some work ahead still to share this kind of detail,
but we see this as the right commitment for us to make.
10
Open Dialogue & Debate
11
12
We are aware of the lively debate regarding the role of dietary supplements in
nutrition and health, and we are an active participant.
13
27.
Moreover, defendants’ marketing campaign for their Supplements conveys to
14 consumers, including plaintiff and the Class, the messages that “We make sure consumers can trust
15
16
what they’re putting into their body,” and that “Nature Made®, manufactured by Pharmavite
LLC, is one example of a brand that goes above and beyond to guarantee to consumers that what
17
18
19
is on the label is in the bottle.”
28.
Despite defendants’ “guarantee” to consumers, however, what is on the label of
20 Nature Made® Supplements is not what is in the bottle. Specifically, approximately 60 different
21 Nature Made® Supplements contain an ingredient that is not listed on the label: gelatin.
22
23
29.
Gelatin is a mixture of peptides and proteins produced by partial hydrolysis of
collagen extracted from the skin, boiled crushed bones, connective tissues, organs, and intestines of
24
animals such as domesticated cattle, chicken and pigs.
25
26
30.
As an example, Nature Made® Multi Complete Tablets, which plaintiff regularly
27 purchased at various times throughout the relevant period, contain pork-based gelatin but do not
28 even list any gelatin at all as an ingredient on the Supplement’s label:
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-7-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
31.
Nature Made® Vitamin C 500 mg Caplets, which plaintiff also regularly purchased at
17 various times throughout the relevant period, contain pork-based gelatin but do not list any gelatin at
18 all as an ingredient on the Supplement’s label:
19
20
21
22
23
24
25
26
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-8-
1
2
3
4
5
32.
Nature Made® B-Complex with C Caplets, which plaintiff also regularly purchased
at various times throughout the relevant period, contain pork-based gelatin but do not list any gelatin
at all as an ingredient on the Supplement’s label:
6
7
8
9
10
11
12
13
14
15
16
17
18
19
33.
Similarly, other Nature Made® Supplements, such as Nature Made® Vitamin D3
20 1000 IU Tablets, contain pork-based gelatin but do not list gelatin as an ingredient on the
21 Supplement’s label:
22
23
24
25
26
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
-9-
1
2
3
4
5
6
7
8
9
10
11
12
34.
Defendants are aware that the Supplements at issue contain pork gelatin and that the
13 labels for those Supplements do not list gelatin as an ingredient.
14
35.
First, to be sure, on the Nature Made® website, defendants claim to be “obsessed”
15 with the quality of Nature Made® Supplements and tout their painstakingly detailed production
16 process that would reveal the identity of all ingredients contained in Nature Made® Supplements:
17
Our Process
18
From the moment ingredients reach our US-based manufacturing facilities,
we are dedicated to some of the most demanding safety and quality standards in the
industry. Every step of our product development process is focused on delivering the
highest quality dietary supplements possible. When ingredients arrive, they are
tested for identity, and we continue verification at every stage of the manufacturing
process to ensure we meet or exceed industry standards – using techniques like
infrared scanning, high performance liquid chromatography and mass
spectrophotometry. As ingredients are weighed, blended, compressed, encapsulated,
inspected and finally packaged as different vitamin products, we test or inspect
appropriately to ensure quality.
19
20
21
22
23
24
25
26
36.
In fact, on information and belief, approximately 60 Nature Made® Supplements
contain pork or other animal-based gelatin yet fail to disclose this fact on the products’ labels.
37.
The undisclosed presence of pork or other animal-based gelatin in Nature Made®
Supplements renders defendants’ marketing of their Supplements false, deceptive and misleading to
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 10 -
1 a reasonable consumer, including plaintiff and the members of the Class, and thus, violates
2 California law.1
3
38.
To compound this deception, not only do defendants conceal the fact that many of
4 their Supplements contain pork or other animal by-products, but defendants deceived plaintiff and
5 the Class into believing that Nature Made® is a brand that consumers can trust, and that consumers
6 can fully rely on the Supplements’ labels to determine the ingredients contained therein.
7
39.
Moreover, defendants’ deception has more serious consequences for certain members
8 of the Class, such as practicing members of the Muslim and Jewish faiths, who believe that
9 consuming pork or pork by-products is a serious sin. Defendants’ deception also has serious
10 consequences for members of the Class that are practicing members of the Hindu faith, who believe
11 that consuming any animals or animal by-products is a grave sin. Since childhood, these consumers
12 have made it a strict habit to inspect the labels of every product they consume, and for them to
13 discover that they have unknowingly consumed pork and other animal by-products has caused
14 emotional distress to them. Defendants’ deceptive assurances that Nature Made® is a brand
15 consumers can trust are all the more unconscionable to these consumers.
40.
16
In or about February 2012, plaintiff purchased Nature Made® Vitamin C 500 mg
17 Caplets from a Safeway grocery store in Santa Clara County for approximately $7.79 for a bottle of
18 100 caplets. In or about May 2012, plaintiff purchased Nature Made® Multi Complete Tablets for
19 approximately $13.39 for a bottle of 130 tablets and Nature Made® B-Complex with C Caplets for
20 approximately $11.99 for a bottle of 100 caplets from a Safeway grocery store in Santa Clara
21 County. At various other times throughout the relevant period, plaintiff made several other
22
23
24
1
In addition to violating California law, defendants’ failure to list “gelatin” on the ingredient
list
of
approximately
60 Nature Made® Supplements also violates the U.S. Food and Drug
25 Administration’s (“FDA”)
regulation that requires a complete list of all ingredients (including
technical
additives
and
processing
aids such as gelatin) to appear on the label of all dietary
26 supplements. See Federal Register Final
Rule, 62 Fed. Reg. 49,826 (Sept. 23, 1997), available at
www.fda.gov/food/dietarysupplements/guidancecomplianceregulatoryinformation/regulations/
27 ucm107412.htm (last visited July 2, 2012).
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 11 -
1 purchases of Nature Made® Multi Complete Tablets, Nature Made® Vitamin C 500 mg Caplets, and
2 Nature Made® B-Complex with C Caplets.
3
41.
As a practicing Muslim, plaintiff adheres to certain dietary restrictions pursuant to
4 which he does not consume, among other things, animal based gelatin, pork, or pork by-products. In
5 order to ensure that the Nature Made® Supplements plaintiff consumed did not contain any animal
6 based gelatin, pork or by-products, plaintiff read and relied on the Supplements’ ingredient lists,
7 which did not list gelatin or any other pork or animal-based by-product. Although not disclosed on
8 the label, the Supplements that plaintiff purchased did, in fact, contain pork gelatin. Thus, plaintiff
9 was deceived into purchasing defendants’ Supplements because defendants (falsely) led him to
10 believe the Supplements contained no animal products. As such, plaintiff did not receive the benefit
11 of his bargain in each purchase of Nature Made® Supplements he made, and thus, was damaged by
12 defendants’ conduct. Plaintiff would not have purchased defendants’ Nature Made® Supplements
13 had he known of defendants’ deception.
14
42.
Despite defendants’ knowledge that many of their Supplements, although not labeled
15 as such, do contain pork and other animal by-products, defendants continue to mislead the American
16 public by advertising and selling approximately 60 of their Supplements as, essentially, not
17 containing any animal by-products whatsoever, thereby continuing to profit off their false, deceptive,
18 and misleading marketing campaign with impunity.
19
43.
Indeed, plaintiff and the members of the Class relied on defendants’ specific
20 representations that the Supplements contained only the ingredients that were listed on the label,
21 which did not include any animal by-products, and thus, were deceived into purchasing defendants’
22 Supplements. Plaintiff and the members of the Class would not have purchased defendants’
23 Supplements were it not for defendants’ false, deceptive, and misleading misrepresentations.
24 Plaintiff and the members of the Class were, thus, damaged as a result of defendants’ conduct
25 described herein.
26
44.
By this lawsuit, plaintiff seeks to recover damages from defendants on behalf of
27 himself and all purchasers of Nature Made® Supplements in the form of the entire purchase price of
28 the Supplements, or in the alternative, for whatever other relief this Court deems to be just and
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 12 -
1 proper. Plaintiff also seeks other damages and equitable and injunctive relief as further described
2 herein.
3
4
CLASS ACTION ALLEGATIONS
45.
Plaintiff brings this lawsuit pursuant to Rule 23(b)(2) and (3) of the Federal Rules
5 of Civil Procedure on behalf of himself and the following proposed Class:
6
7
8
9
All persons and entities in the State of California who purchased any Nature Made®
dietary supplement that contained any animal by-product that was not disclosed on
the product’s label.
46.
Subject to additional information obtained through further investigation and
discovery, the foregoing definition of the Class may be expanded or narrowed by amendment or
10
11
12
amended complaint.
47.
Specifically excluded from the Class are defendants, their officers, directors, agents,
13 trustees, parents, children, corporations, trusts, representatives, employees, principals, servants,
14 partners, joint venturers, or entities controlled by defendants, and their heirs, successors, assigns, or
15 other persons or entities related to or affiliated with defendants and/or their officers and/or directors,
16
the judge assigned to this action, and any member of the judge’s immediate family.
17
48.
Numerosity. The members of the Class are so numerous that individual joinder is
18
19
impracticable. Upon information and belief, plaintiff alleges that the Class contains many thousands
20 of members. The precise number of Class members is unknown to plaintiff. The true number of
21 Class members is known by defendants, however, and thus, may be notified of the pendency of this
22 action by first class mail, electronic mail and/or published notice.
23
24
49.
Existence and predominance of common questions of law and fact. Common
questions of law and fact exist as to all members of the Class and predominate over any questions
25
26
27
affecting only individual Class members. These common legal and factual questions include, but
are not limited to, the following:
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 13 -
(a)
1
whether defendants represented that certain Nature Made® Supplements
2 contained no animal products;
3
4
(b)
whether certain Nature Made® Supplements, in fact, contained undisclosed
animal by-products;
5
6
7
8
(c)
whether defendants’ claims are false, deceptive, and misleading;
(d)
whether defendants’ claims are likely to deceive a reasonable consumer;
(e)
whether defendants had knowledge that their claims were false, deceptive, and
(f)
whether defendants continue to disseminate their claims despite knowledge
9 misleading;
10
11
that those claims are false, deceptive, and misleading;
12
(g)
whether defendants engaged in false or deceptive advertising;
(h)
whether defendants violated California Civil Code §1750 et seq.;
(i)
whether defendants violated California Business and Professions Code
13
14
15
16 §17500 et seq.;
17
(j)
whether defendants violated California Business and Professions Code
18 §17200 et seq.;
19
(k)
whether defendants violated 15 U.S.C. §2301 et seq.;
(l)
whether defendants breached an express warranty to plaintiff and the Class;
(m)
whether defendants were unjustly enriched;
(n)
whether plaintiff and the Class have sustained monetary loss and the proper
20
21
22
23
24 measure of that loss;
25
26
(o)
whether plaintiff and the Class are entitled to punitive damages; and
(p)
whether plaintiff and Class are entitled to declaratory and injunctive relief.
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 14 -
50.
1
Typicality. Plaintiff’s claims are typical of the claims of the members of the Class in
2 that defendants deceived plaintiff in the very same manner as they deceived each member of the
3
4
Class.
51.
Adequacy of representation. Plaintiff will fairly and adequately protect the interests
5
6
7
of the Class. Plaintiff has retained counsel highly experienced in complex consumer class action
litigation, and plaintiff intends to vigorously prosecute this action. Further, plaintiff has no interests
8 that are antagonistic to those of the Class.
9
52.
Superiority. A class action is superior to all other available means for the fair and
10 efficient adjudication of this controversy. The damages or other financial detriment suffered by
11
individual Class members is relatively small compared to the burden and expense that would be
12
entailed by individual litigation of their claims against defendants. It would thus be virtually
13
14
impossible for the Class, on an individual basis, to obtain effective redress for the wrongs committed
15 against them. Furthermore, even if Class members could afford such individualized litigation, the
16 court system could not. Individualized litigation would create the danger of inconsistent or
17 contradictory judgments arising from the same set of facts. Individualized litigation would also
18 increase the delay and expense to all parties and the court system from the issues raised by this
19
action. By contrast, the class action device provides the benefits of adjudication of these issues in a
20
21
22
23
24
single proceeding, economies of scale, and comprehensive supervision by a single court, and
presents no unusual management difficulties under the circumstances here.
53.
In the alternative, the Class may also be certified because:
(a)
the prosecution of separate actions by individual Class members would create
25 a risk of inconsistent or varying adjudication with respect to individual Class members that would
26
establish incompatible standards of conduct for the defendants;
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 15 -
(b)
1
the prosecution of separate actions by individual Class members would create
2 a risk of adjudications with respect to them that would, as a practical matter, be dispositive of the
3
4
interests of other Class members not parties to the adjudications, or substantially impair or impede
their ability to protect their interests; and/or
5
(c)
6
7
defendants have acted or refused to act on grounds generally applicable to the
Class as a whole, thereby making appropriate final declaratory and/or injunctive relief with respect
8 to the members of the Class as a whole.
9
54.
Certification of the case as a class action under the laws of California is appropriate
10 because:
11
(a)
defendants are corporations conducting substantial business in and from
(b)
defendants’ principal and executive offices, as well as their corporate
12
California;
13
14
15 headquarters, are located in California, where they employ hundreds of people;
16
(c)
defendants promote, market, distribute and sell Nature Made® Supplements in
17 and from California;
18
19
(d)
decisions regarding defendants’ advertising and sale of Nature Made®
Supplements were made in California;
20
21
22
23
(e)
defendants’ marketing, promotional activities and literature are coordinated in,
emanate from, and/or are developed at their California headquarters;
(f)
plaintiff’s claims under California’s Unfair Competition Law, California
24 Business and Professions Code §17200 et seq. (the “UCL”) and other claims asserted in this
25 Complaint on behalf of the Class may be appropriately brought on behalf of California and out-of26
27
state Class members; and
(g)
a significant number of members of the Class reside in the State of California.
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 16 -
1
55.
The claims asserted herein are applicable to all customers throughout the State of
2 California who were deceived into purchasing Nature Made® Supplements.
3
4
56.
Adequate notice can be given to Class members directly using information
maintained in defendants’ or their direct purchasers’ records, or through notice by publication.
5
6
7
57.
Damages may be calculated, in part, from the sales information maintained in
defendants’ records, so that the cost of administering a recovery for the Class can be minimized.
8 However, the precise amount of damages available to plaintiff and the Class is not a barrier to class
9 certification.
10
11
58.
Unless a class is certified, defendants will retain monies received as a result of their
conduct that was taken from plaintiff and the Class. Unless a class-wide injunction is issued,
12
defendants will continue to commit the violations alleged herein, and the Class will continue to be
13
14
deceived.
15
COUNT I
16
Violations of the Consumer Legal Remedies Act,
California Civil Code §1750 et seq.
17
18
19
20
21
22
23
24
25
26
59.
Plaintiff realleges and incorporates by reference the allegations contained in the above
paragraphs as if fully set forth herein.
60.
This cause of action is brought pursuant to the California Consumers Legal Remedies
Act (“CLRA”). Plaintiff and the other Class members are consumers as defined by California Civil
Code §1761(d). The product is a good within the meaning of the CLRA.
61.
Defendants violated and continue to violate the CLRA by engaging in the following
practices proscribed by California Civil Code §1770(a) in transactions that were intended to result in,
and did result in, the sale of the product:
(a)
representing that Nature Made® Supplements have characteristics and
benefits which they do not have;
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 17 -
1
(b)
representing that Nature Made® Supplements are of a particular standard,
2 quality or grade, which they are not;
3
(c)
advertising Nature Made® Supplements with intent not to sell them as
4 advertised; and
5
(d)
representing that Nature Made® Supplements have been supplied in
6 accordance with previous representations when they have not.
7
62.
Defendants knew, or should have known, that their representations and
8 advertisements regarding Nature Made® Supplements were false and misleading.
9
63.
Defendants’ conduct is malicious, fraudulent and wanton, and provides misleading
10 information.
11
64.
Pursuant to California Civil Code §1782(d), plaintiff seeks a court order enjoining the
12 above-described wrongful acts and practices of defendants and for restitution and disgorgement.
13
65.
Pursuant to California Civil Code §1782, notice to defendants was satisfied when, on
14 July 12, 2012, plaintiff sent a notice letter by certified mail to defendants’ Chief Executive Officers,
15 Hiromi Yoshikawa (Otsuka America, Inc.) and Doug MacLean (Pharmavite) and Otsuka
16 Pharmaceutical Co., Ltd.’s President, Taro Iwamoto. Plaintiff sent defendants a letter advising that
17 defendants are in violation of the CLRA and must correct, repair, replace or otherwise rectify the
18 goods alleged to be in violation of California Civil Code §1770. Defendants were further advised
19 that in the event the relief requested has not been provided within 30 days, plaintiff would seek
20 monetary damages pursuant to the CLRA.
21
66.
Pursuant to California Code of Civil Procedure §2012 and 28 U.S.C. §1746, plaintiff
22 has prepared and attached a declaration stating facts showing this action has been commenced in a
23 court described as a proper place for the trial of the action. See Ex. A.
24
67.
If defendants fail to rectify or agree to rectify the problems associated with the actions
25 detailed above or give notice to all affected consumers within 30 days of the date of written notice
26 pursuant to California Civil Code §1782, or 30 days from the date of this Complaint, whichever is
27 later, plaintiff will seek actual, punitive and statutory damages, as appropriate.
28
68.
Plaintiff seeks attorneys’ fees and costs as allowed by law.
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 18 -
1
COUNT II
2
False and Misleading Advertising in Violation of
California Business and Professions Code §17500 et seq.
3
69.
Plaintiff realleges and incorporates by reference the allegations contained in ¶¶1-58 as
4
if fully set forth herein.
5
70.
Defendants’ acts and practices as described herein have deceived and/or are likely to
6
deceive members of the Class and the public. Specifically, defendants advertise, including through
7
their website on the Internet, that over 60 of their Nature Made® Supplements contain no animal
8
products, when in fact, that representation is false.
9
71.
By their actions, defendants are disseminating uniform advertising concerning their
10
products that by its nature is unfair, deceptive, untrue or misleading within the meaning of California
11
Business and Professions Code §17500 et seq. Such advertisements are likely to deceive, and
12
continue to deceive, the consuming public for the reasons detailed above.
13
72.
The above-described false, misleading and deceptive advertising defendants
14
disseminated continues to have a likelihood to deceive in that defendants have failed to disclose that
15
over 60 of their Nature Made® Supplements do contain animal products. Defendants have failed to
16
instigate a public information campaign to alert consumers of the animal products contained in the
17
Supplements at issue, which continues to create a misleading perception of the ingredients contained
18
in those Supplements.
19
73.
In making and disseminating the statements alleged herein, defendants should have
20
known their advertisements were untrue and misleading in violation of California Business and
21
Professions Code §17500 et seq. Plaintiff and the other Class members based their decisions to
22
purchase Nature Made® Supplements in substantial part on defendants’ misrepresentations and
23
omitted material facts. The revenues to defendants attributable to products sold in those false and
24
misleading advertisements amount to millions of dollars. Plaintiff and the Class were injured in fact
25
and lost money or property as a result.
26
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 19 -
1
74.
The misrepresentations and non-disclosures by defendants of the material facts
2 detailed above constitute false and misleading advertising and, therefore, constitute a violation of
3 California Business and Professions Code §17500 et seq.
4
75.
As a result of defendants’ wrongful conduct, plaintiff and the Class request that this
5 Court enjoin defendants from continuing to violate California Business and Professions Code
6 §17500 et seq. Such conduct is ongoing and continues to this date. Plaintiff and the Class are,
7 therefore, entitled to the relief described below as appropriate for this Count.
8
COUNT III
9
Violations of California’s Unfair Competition Law,
California Business and Professions Code §17200 et seq.
10
76.
Plaintiff realleges and incorporates by reference the allegations contained in ¶¶1-58 as
11
if fully set forth herein.
12
77.
The UCL prohibits any “unlawful . . . business act or practice.” Defendants violated
13
the UCL’s prohibition against engaging in unlawful acts and practices by, inter alia, engaging in
14
false and misleading advertising and omitting material facts, as set forth more fully herein, and
15
violating California Civil Code §§1572-1573, 1709-1711 and 1770, and the common law.
16
78.
Plaintiff reserves the right to allege other violations of law, which constitute other
17
unlawful business acts or practices. Such conduct is ongoing and continues to this date.
18
79.
The UCL also prohibits any “unfair or fraudulent business act or practice.”
80.
Defendants’ acts, omissions, misrepresentations, practices, and non-disclosures
19
20
alleged herein also constitute “unfair” business acts and practices within the meaning of the UCL in
21
that their conduct is substantially injurious to consumers, offends public policy, and is immoral,
22
unethical, oppressive, and unscrupulous as the gravity of the conduct outweighs any alleged benefits
23
attributable to such conduct.
24
81.
As stated in this Complaint, plaintiff alleges violations of consumer protection, unfair
25
competition, and truth in advertising laws in California resulting in harm to consumers. Plaintiff
26
asserts violations of the public policy of engaging in false and misleading advertising, unfair
27
competition, and deceptive conduct towards consumers. The conduct constitutes violations of the
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 20 -
1 unfair prong of the UCL. There were reasonably available alternatives to further defendants’
2 legitimate business interests, other than the conduct described herein.
3
82.
Defendants’ claims, non-disclosures and misleading statements, as more fully set
4 forth above, were false, misleading and/or likely to deceive the consuming public within the
5 meaning of the UCL.
6
83.
Defendants’ conduct caused and continues to cause substantial injury to plaintiff and
7 the other Class members. Plaintiff has suffered injury in fact and has lost money as a result of
8 defendants’ unfair conduct.
9
84.
Defendants have, thus, engaged in unlawful, unfair, and fraudulent business acts and
10 practices in false advertising, entitling plaintiff and the other Class members to judgment and
11 equitable relief against defendants as set forth in the Prayer for Relief.
12
85.
Additionally, pursuant to California Business and Professions Code §17203, plaintiff
13 seeks an order requiring defendants to immediately cease such acts of unlawful, unfair, and
14 fraudulent business practices and requiring defendants to engage in a corrective marketing campaign.
15
COUNT IV
16
Violations of the Magnuson-Moss Warranty Act,
15 U.S.C. §2301 et seq.
17
86.
Plaintiff realleges and incorporates by reference the allegations contained in ¶¶1-58 as
18
if fully set forth herein.
19
87.
Plaintiff and Class members are “consumers” within the meaning of the Magnuson-
20
Moss Warranty Act (“MMWA”).
21
88.
Defendants are “suppliers” and “warrantors” within the meaning of the MMWA.
89.
Nature Made® Supplements are a “consumer product” within the meaning of the
22
23
MMWA.
24
90.
Defendants’ written affirmations of fact, promises, and/or descriptions as alleged
25
herein are each a “written warranty” as to the ingredients contained in Nature Made® Supplements
26
and/or there exists an implied warranty for the sale of such products within the meaning of the
27
MMWA.
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 21 -
1
91.
For the reasons detailed above, defendants breached these express and implied
2 warranties, as over 60 Nature Made® Supplements do contain animal products, contrary to
3 defendants’ representations, or were not fit for their intended use. Defendants have refused to
4 remedy such breaches, and their conduct caused damages to plaintiff and members of the Class.
5
92.
The amount in controversy meets or exceeds the sum or value of $50,000 (exclusive
6 of interest and costs) computed on the basis of all claims to be determined in this suit.
7
93.
Resorting to any informal dispute settlement procedure and/or affording defendants
8 another opportunity to cure these breaches of warranties is unnecessary and/or futile. Any remedies
9 available through any informal dispute settlement procedure would be inadequate under the
10 circumstances, as defendants have failed to remedy the misleading labeling of over 60 Nature
11 Made® Supplements and, as such, indicated they have no desire to participate in such a process at
12 this time. Any requirement under the MMWA, or otherwise, that plaintiff resorts to any informal
13 dispute settlement procedure and/or afford defendants a reasonable opportunity to cure the breach of
14 warranties described above is excused and/or has been satisfied.
15
94.
As a result of defendants’ breaches of warranty, plaintiff and the other Class members
16 have sustained damages and other losses in an amount to be determined at trial. Plaintiff and the
17 other Class members are entitled to recover damages, specific performance, costs, attorneys’ fees,
18 rescission and/or other relief as is deemed appropriate.
19
COUNT V
20
Breach of Express Warranty
21
95.
Plaintiff realleges and incorporates by reference the allegations contained in ¶¶1-58 as
22 if fully set forth herein.
23
96.
Plaintiff and each member of the Class formed a contract with defendants at the time
24 plaintiff and the other members of the Class purchased Nature Made® Supplements. The terms of
25 that contract include, inter alia, the promises and affirmations of fact made by defendants on their
26 product labels and through their marketing campaign, as described above. Defendants’ product
27 labeling and advertising constitute express warranties, became part of the basis of the bargain, and is
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 22 -
1 part of a standardized contract between plaintiff and the members of the Class on the one hand, and
2 defendants on the other.
3
97.
All conditions precedent to defendants’ liability under this contract, including notice,
4 have been satisfied.
5
98.
Defendants breached the terms of this contract, including the express warranties, with
6 plaintiff and the Class by not providing a product which conformed to defendants’ representations,
7 as described herein.
8
99.
As a result of defendants’ breach of their express warranties with plaintiff and the
9 Class, plaintiff and the Class have been damaged in the amount of the purchase price of the Nature
10 Made® Supplements they purchased.
11
100.
All conditions precedent to defendants’ liability under this express contract, including
12 notice, as described above, have been performed by plaintiff and the Class.
13
COUNT VI
14
Unjust Enrichment
15
101.
Plaintiff realleges and incorporates by reference the allegations contained in ¶¶1-58 as
16 if fully set forth herein.
17
102.
This Count is brought in the alternative. See Fed. R. Civ. P. 8(d)(2).
18
103.
Plaintiff and the Class conferred a benefit upon defendants by paying money in
19 exchange for Nature Made® Supplements.
20
104.
Defendants voluntarily accepted and retained the benefit of monies paid by plaintiff
21 and Class.
22
105.
Defendants have, thus, been enriched at the expense of plaintiff and the Class by
23 retaining monies paid to them in exchange for Nature Made® Supplements that did not conform to
24 defendants’ representations.
25
106.
Under the circumstances, it would be inequitable for defendants to retain their ill-
26 gotten gains. Plaintiff and the other members of the Class paid for a product that did not conform to
27 defendants’ representations, and as a result, have been damaged by defendants’ misconduct.
28 Accordingly, plaintiff and the Class are entitled to a refund, plus interest thereupon.
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 23 -
1
107.
As a direct and proximate result of defendants’ misconduct, plaintiff and the Class
2 have suffered damages and are entitled to reimbursement, restitution, and disgorgement in the
3 amount necessary to restore them to the position they would have been in had defendants not
4 retained monies for products that did not conform to defendants’ representations.
5
108.
Plaintiff and the Class have no adequate remedy at law.
6
PRAYER FOR RELIEF
7
Wherefore, plaintiff prays for a judgment against defendants as follows:
8
A.
Certifying the Class as requested herein, appointing plaintiff as Class Representative,
9 and appointing Robbins Geller Rudman & Dowd LLP and Law First LLC as class counsel;
10
B.
Awarding plaintiff and the Class members damages, including punitive damages;
11
C.
Awarding restitution and disgorgement of defendants’ revenues to plaintiff and the
D.
Awarding declaratory and injunctive relief as permitted by law or equity, including
12 Class;
13
14 enjoining defendants from continuing the unlawful practices described herein, and directing
15 defendants to identify, with Court supervision, victims of their conduct and pay them restitution and
16 disgorgement of all monies acquired by defendants by means of any act or practice declared by this
17 Court to be wrongful;
18
E.
Ordering defendants to engage in a corrective advertising campaign;
19
F.
Awarding attorneys’ fees and costs; and
20
G.
Providing such further relief as the Court may deem just and proper.
21
22
JURY DEMAND
Plaintiff hereby demands a jury trial on all issues so triable.
23 DATED: July 12, 2012
24
ROBBINS GELLER RUDMAN
& DOWD LLP
SHAWN A. WILLIAMS
25
26
SHAWN A. WILLIAMS
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 24 -
1
2
3
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: 415/288-4545
415/288-4534 (fax)
4
5
6
7
8
9
ROBBINS GELLER RUDMAN
& DOWD LLP
PAUL J. GELLER
STUART A. DAVIDSON
CULLIN A. O’BRIEN
MARK DEARMAN
CHRISTOPHER MARTINS
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: 561/750-3000
561/750-3364 (fax)
10
11
12
13
LAW FIRST LLC
MUNIZA BAWANEY
RISHI V. VOHRA
30 South Wacker Drive, Suite 2200
Chicago, IL 60606
Telephone: 312/860-3755
312/753-5066 (fax)
14
Attorneys for Plaintiff and the Class
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT FOR VIOLATIONS OF THE CONSUMERS LEGAL REMEDIES ACT
- 25 -