SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA

Transcription

1 BURSOR & FISHER, P.A. L. Timothy Fisher (State Bar No. ) Yeremey O. Krivoshey (State Bar No. 0) 0 North California Boulevard, Suite 0 Walnut Creek, CA Telephone: () 00- Facsimile: () ltfisher@bursor.com ykrivoshey@bursor.com Attorneys for Plaintiff-Intervenors (additional counsel appears on signature page) SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA 0 DANIEL GARCIA, on behalf of himself and all others similarly situated, Case No. 0 v. Plaintiff-Intervenors, AMENDED CLASS ACTION COMPLAINT IN INTERVENTION 0 IOVATE HEALTH SCIENCES U.S.A. INC., a Delaware corporation and DOES -0, Inclusive, Defendants. KEVIN BRANCA, an individual on behalf of himself and all others similarly situated, Intervenor. CHRIS LEATON and LINDSEY DUNN, on behalf of themselves and all others similarly situated, Plaintiff-Intervenors, Hon. Pauline Maxwell Dept.: SB AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

2 0 0 Plaintiff-Intervenors Dunn and Leaton ( Plaintiff-Intervenors ), by and through their attorneys bring this action on behalf of themselves and all others similarly situated against Defendant Iovate Health Sciences U.S.A., Inc. Plaintiff-Intervenors make the following allegations upon information and belief, except as to allegations specifically pertaining to themselves, which are based on their personal knowledge. SUMMARY OF THE ACTION. This is a class action on behalf of purchasers of Hydroxycut branded weight loss products (the Product(s) ). As the manufacturer and seller of America s # Selling Weight Loss Supplement Brand, a representation prominently plastered on nearly every Products label, Defendant has sold millions of the purported weight-loss Products touting false and misleading marketing buzzwords like Scientifically Researched and Clinically Proven - Key Ingredient. In fact, the purportedly scientifically researched and clinically proven key ingredients do not promote weight loss. As a result, Defendant s representations and advertising that the Products cause weight loss are false and misleading.. Plaintiff-Intervenors assert claims on behalf of themselves and a nationwide class of purchasers of Pro Clinical Hydroxycut for violation of Cal. Bus. & Prof. Code 00, the False Advertising Law ( FAL ), violation of the Cal. Bus. & Prof. Code 00, the Unfair Competition Law ( UCL ), violation of the Cal. Civil Code 0, the Consumer Legal Remedies Act ( CLRA ), violation of U.S.C. 0, et seq., the Magnuson Moss Warranty Act, and for breach of express and implied warranties. Products shall refer to Hydroxycut Pro Clinical, Hydroxycut Pro Clinical Drink mix; Hydroxycut Pro Clinical % Caffeine Free, Hydroxycut Pro Clinical Caffeine Free, Hydroxycut Pro Clinical Gummies, Hydroxycut Advanced, Hydroxycut Gummies, Hydroxycut Bars, Hydroxycut Lean Shakes, Hydroxycut Green Coffee, Hydroxycut Zero Weight Loss Protein, Hydroxycut Appetite Control, Hydroxycut Ultra, Hydroxycut Premium CLA, Hydroxycut All-in- One, Hydroxycut Results, Hydroxycut Black, Hydroxycut SX-, Hydroxycut SX Thermo Powder, Hydroxycut SX- Non-Stimulant, Hydroxycut SX- Black Onyx, Hydroxycut SX- Black Onyx Ultra Probiotic, Hydroxycut SX- Black Onyx Non-stimulant, Hydroxycut Maximo, Hydroxycut Max, Hydroxycut Max Pro Clinical, Hydroxycut Max SX- Black Onyx, Hydroxycut Hardcore, Hydroxycut Hardcore Next Gen, Hydroxycut Hardcore Pro Series Ignition Stix, Hydroxycut Hardcore Elite, Hydroxycut Hardcore Elite Sport, and Hydroxycut Hardcore Elite Non-Stimulant. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

3 0 0 THE PARTIES. Plaintiff-Intervenor Leaton is a citizen of California, residing in Temecula. Mr. Leaton purchased Pro Clinical Hydroxycut several times between 00 and 00 from GNC and Vitamin Store locations based on Defendant s false representations that it would Significantly Reduce BMI, that the clinically proven ingredients in the Product would cause weight and fat loss, and that the formula was clinically proven in two studies. Plaintiff-Intervenor Leaton also purchased Hydroxycut Hardcore Liquid Caplets several times from GNC and Vitamin Store locations based on Defendant s false representations that it would cause him to lose weight and get ripped, and that the formula was clinically proven in two studies. Absent Defendant s weight loss and clinically proven representations, Mr. Leaton would not have purchased the Products. The price of the Products he purchased varied from $. and $.. Even though Mr. Leaton followed the directions on the labels of the Products, he did not experience the advertised weight loss.. Plaintiff-Intervenor Dunn is a citizen of California, residing in Ventura. Ms. Dunn purchased Pro Clinical Hydroxycut in late 00 from GNC in Camarillo based on Defendant s false representations that it would Significantly Reduce BMI, that the clinically proven ingredients in the Products would cause weight and fat loss, and that the formula was clinically proven in two studies. Absent Defendant s weight loss and clinically proven representations, Ms. Dunn would not have purchased the Product. The price of the Product she purchased was approximately $0.00 to $0.00. Even though Ms. Dunn followed the directions on the labels of the Products, she did not experience the advertised weight and fat loss.. Defendant Iovate Health Sciences U.S.A., is a Delaware corporation with its principal place of business in New York. Defendant participated in the marketing, development, and sale of the Products. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

4 0 0 A. Background FACTUAL BACKGROUND. According to a Federal Trade Commission Staff Report, the number of Americans who are overweight or obese have reached epidemic proportions; it afflicts six out of every ten Americans. At the same time, nearly % of men and % of women are trying to lose weight (an estimated million American adults). Consumers spent an estimated $. billion in 000 on weight-loss products and programs. The marketplace has responded with a proliferation of products and services, and many promise miraculous, quick-fix remedies. Indeed, the FTC found that [t]he use of false or misleading advertising claims in weight-loss advertising is rampant.. Prior to, weight-control products were regulated as drugs. Unless they were either generally recognized as safe and effective or an approved new drug, over-the-counter ( OTC ) products labeled for weight control were misbranded under Section 0 of the Food, Drug, and Cosmetic Act. With some limited exceptions not pertinent here, an OTC product labeled for weight control required some form of pre-market review and approval by the Food and Drug Administration ( FDA ) to determine safety and effectiveness. In, the passage of the Dietary Supplement Health and Education Act of (DSHEA) dramatically changed the regulatory framework for weight-loss supplements, shifting FDA s role from premarket clearance to post-market enforcement and shifting the responsibility from government to industry to ensure products were safe and effective. According to the FTC, this change in regulatory structure has coincided with a dramatic increase in the number of dietary supplement weight-loss products as well as the amount of weightloss product advertising.. America s epidemic of obesity finds consumers willing to try almost anything to lose weight. It is this desperate struggle with obesity that makes consumers so vulnerable to Defendant s miracle weight-loss Products. Defendant is taking advantage of the regulatory change to market its fat burning Products to consumers who are unable to decipher and debunk the junk science behind Richard L. Cleland, et al., Weight Loss Advertising: An Analysis of Current Trends, A Federal Trade Commission Staff Report, September 00 (hereafter, FTC Staff Report ), available at See FTC Staff Report at -. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

5 0 0 the Products. However, physicians, scientists, and dieticians agree long-lasting weight loss comes through a healthy diet and exercise, not fad diets and magic pills. B. Defendant s Common Marketing of the Products As Weight Loss Supplements. Defendant markets each of the Products with substantially similar advertising representations concerning the Products ability to promote or assist with weight loss. The Products are marketed via the same mediums, including but not limited to television, print media (newspapers and magazines), and the Internet. Further, each of the Products represents on its labeling that the product aids in weight loss. The following chart is illustrative of the statements concerning weight loss on each of the labels of each of the Products: Hydroxycut Pro Clinical Hydroxycut Pro Clinical Drink Mix Hydroxycut Pro Clinical % Caffeine Free Hydroxycut Pro Clinical Caffeine Free Hydroxycut Pro Clinical Gummies Hydroxycut Advanced Hydroxycut Gummies Hydroxycut Bars Hydroxycut Lean Shakes Hydroxycut Green Coffee America s # Selling Weight Loss Supplement Brand, Advanced Weight Loss, Powerful Weight Loss, Lose Weight. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. America s # Selling Weight Loss Supplement Brand, Advanced Weight Loss. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. America s # Selling Weight Loss Supplement Brand, Advanced Weight Loss. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. America s # Selling Weight Loss Supplement Brand, Lose More Weight Than Dieting Alone, Significantly Reduce BMI. The labels also contain a seal stating Weight Loss Clinically Proven Key Ingredient. America s # Selling Weight Loss Supplement Brand, Lose Weight. America s # Selling Weight Loss Supplement Brand, Lose Weight Fast, Clinically Research Primary Ingredient. America s # Selling Weight Loss Supplement Brand, Lose Weight. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. America s # Selling Weight Loss Supplement Brand, Satisfy Your Hunger. America s # Selling Weight Loss Supplement Brand, Satisfy Your Hunger. America s # Selling Weight Loss Supplement Brand, Helps Support Weight Loss. The labels also contain a seal stating Weight Loss Scientifically Researched Support. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

6 0 0 Hydroxycut Zero Weight Loss Protein Hydroxycut Appetite Control Hydroxycut Ultra Hydroxycut Premium CLA Hydroxycut All-in-One Hydroxycut Results Hydroxycut Black Hydroxycut SX- Hydroxycut SX- Thermo Powder Hydroxycut SX- Non- Stimulant Hydroxycut SX- Black Onyx Hydroxycut SX- Black Onyx Ultra Probiotic Hydroxycut SX- Black Onyx Non-stimulant Hydroxycut Maximo Hydroxycut Max Hydroxycut Max Pro Clinical Hydroxycut Max SX- Black Onyx Hydroxycut Hardcore Hydroxycut Hardcore Next Gen Hydroxycut Hardcore Pro Series Ignition Stix Hydroxycut Hardcore Elite America s # Selling Weight Loss Supplement Brand, Weight Loss. America s # Selling Weight Loss Supplement Brand, Helps Curb Hunger for Hours!, Lose Weight With Green Coffee. America s # Selling Weight Loss Supplement Brand, Powerful Weight Loss. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. America s # Selling Weight Loss Supplement Brand, Lose More Weight. The labels also contain a seal stating Weight Loss Clinically Proven Key Ingredients. America s # Selling Weight Loss Supplement Brand, Lose Weight. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. America s # Selling Weight Loss Supplement Brand, Weight Loss. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. America s # Selling Weight Loss Supplement Brand, Intense Weight Loss, Lose Weight Fast. The labels also contain a seal stating Weight Loss Scientifically Researched Key Ingredient. The Most Advanced Weight Loss & Clean Sensory Experience, Premium green Coffee for Weight Loss. The Most Advanced Weight Loss & Clean Sensory Experience, Premium Green Coffee for Weight Loss. The Most Advanced Non-Stimulant Clean Weight Loss Experience, Premium Green Coffee for Weight Loss. The Most Hardcore Weight Loss & Ultimate Sensory Experience. Scientifically Advanced Weight Loss Plus Probiotic Formula, Scientifically Studied Weight Loss, Weight Loss. Next Generation Non-Stimulant Weight Loss, Powerful Scientifically Tested Weight Loss. America s # Selling Weight Loss Supplement Brand (in Spanish), Lose Weight (in English). America s # Selling Weight Loss Supplement Brand, Powerful Weight Loss. America s # Selling Weight Loss Supplement Brand, Powerful Weight Loss. Scientifically Studied Weight Loss, Scientifically Backed Weight Loss You Can Trust, Double the Weight Loss. America s # Selling Weight Loss Supplement Brand, Hardcore Weight Loss. Next Generation Weight Loss, Advanced, Scientifically Tested Weight Loss. Lose Weight, Proven Weight-Loss Results in Clinical Studies. Lose Weight, Scientifically Tested Key Ingredient. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

7 0 0 Hydroxycut Hardcore Elite Sport Hydroxycut Hardcore Elite Non-Stimulant C. The Products Do Not Promote Weight Loss Ultimate Weight Loss Formula, Scientifically Researched Weight Loss. Premium Green Coffee for Weight Loss, Scientifically Tested Key Ingredient. 0. According to Defendant s advertising and labeling statements, the key ingredient in 0 of the Products that purportedly assists with the weight loss process is C. canephora robusta, a green coffee bean extract. The following Products contain C. canephora robusta as one of the purported key ingredients: Hydroxycut Pro Clinical, Hydroxycut Pro Clinical Drink mix; Hydroxycut Pro Clinical % Caffeine Free, Hydroxycut Pro Clinical Caffeine Free, Hydroxycut Advanced, Hydroxycut Gummies, Hydroxycut Bars, Hydroxycut Lean Shakes, Hydroxycut RTD, Hydroxycut Green Coffee, Hydroxycut Zero Weight Loss Protein, Hydroxycut Appetite Control, Hydroxycut Ultra, Hydroxycut All-in-One, Hydroxycut Results, Hydroxycut Black, Hydroxycut SX-, Hydroxycut SX Thermo Powder, Hydroxycut SX- Non-Stimulant, Hydroxycut SX- Black Onyx, Hydroxycut SX- Black Onyx Ultra Probiotic, Hydroxycut SX- Black Onyx Non-stimulant, Hydroxycut Maximo, Hydroxycut Max, Hydroxycut Max Pro Clinical, Hydroxycut Max SX- Black Onyx, Hydroxycut Hardcore, Hydroxycut Hardcore Next Gen, Hydroxycut Hardcore Pro Series Ignition Stix, Hydroxycut Hardcore Elite, Hydroxycut Hardcore Elite Sport, and Hydroxycut Hardcore Elite Non-Stimulant.. Defendant s substantiation for each of the Products efficacy claims is substantially similar and relies upon largely the same groups of evidence. Specifically, the substantiation for the Products that contain C. canephora robusta as a purported key ingredient rests entirely on two studies. According to Defendant s advertising and labeling of the Products, in the first study, subjects taking C. canephora robusta purportedly lost, on average, 0. lbs. versus the placebo group, which lost an average of.0 lbs., over a period of 0 days. Both groups followed a low-calorie diet. In the second study, subjects taking C. canephora robusta purportedly lost an average of. lbs. versus subject using a placebo, who lost an average of. lbs., over the course of eight weeks. Both groups followed a calorie-reduced diet and performed moderate exercise. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

8 0 0. Defendant s substantiation for the remaining Products that do not contain C. canephora robusta rests on two separate studies. In the first study, subjects taking the blend of active ingredients found in the relevant Products purportedly lost an average of 0. lbs. versus those using the placebo, who lost an average of.0 lbs., over the course of twelve weeks. Both groups followed a calorie-reduced diet. In the second study, subjects taking the blend of active ingredients found in the relevant Covered Products purportedly lost an average of.0 lbs. versus those using the placebo. Both groups followed a calorie-reduced diet.. Contrary to Defendant s representations, none of the ingredients in the Products cause weight or fat loss.. As the National Institutes of Health ( NIH ) explains, maintaining a healthy body weight requires balancing calories consumed with calories used for activities. The NIH also explicates that: Attention to energy balance over time is required for promoting health and maintaining a stable body weight. For overweight people, steps must be taken to stop weight gain and reduce weight to a healthy level, and then to maintain that healthy weight. Accomplishing these goals requires an understanding of energy balance that is, of the general concept of energy in and energy out. Individuals have direct control over both their food (calorie) intake and their physical activity level.. People are generally surprised to learn just how small a contribution of sedentary activities, such as watching TV or playing video games, make to daily calorie expenditures. On the other hand, any type of physical activity, from running or playing sports to walking or household work, increases the number of calories the body uses. As emphasized by the National Institute of Diabetes and Digestive and Kidney Disorders, the key to successful weight control and improved overall health is making physical activity a part of our daily routine. How much physical activity is necessary? The Dietary Guidelines for Americans recommends 0 minutes a day for adults and 0 minutes a day for children and adolescents. A new report from the National Academy of Sciences recommends a goal of one-hour-a-day total exercise for adults. Further, consuming caffeine, for example, does not constitute an effective strategy for weight loss. Indeed, exercise and controlled food intake are the only means to promote weight loss. That fact alone unambiguously shows that Defendant s representations about the Products are false. Id. at. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

9 0 0. Defendant s representations that the Products are clinically proven is also false and misleading. As the FTC has explained: The world of weight-loss advertising is a virtual fantasy land where pounds melt away while you continue to eat your favorite foods ; amazing pills seek and destroy enemy fat And for those [consumers] who remain skeptical, there is an answer. The products are backed by clinical studies or are clinically tested Phrases like the clinically proven healthy way to lose weight, clinically tested, scientifically proven, and studies confirm bestow products with an aura of scientific legitimacy and aim to persuade consumers that they should feel confident that the product will work. (emphasis added).. In fact, the studies that supposedly prove Defendant s weight loss claims are flawed and biased. While the studies are advertised as scientifically rigorous, as including a control group and a group given the product (along with misleading bar graphs showing significant weight loss with the Products), there were less than 0 total participants in some of the studies. Because the participant population was miniscule, the results of the studies are not generalizable to the population, are not scientifically rigorous, are not the gold standard of research, and certainly do not prove that the Products cause weight loss. In other words, the human participant populations of each of the studies are too small to show any statistical significance. In short, like Defendant s weight loss claims, Defendant s scientific studies are false and misleading. CLASS ACTION ALLEGATIONS. Plaintiff-Intervenors seek to represent a class defined as all persons in the United States who purchased one or more of the Products at any time from May, 00 through the date that class notice is disseminated (the Class ). Excluded from the Class are any officers, directors, or employees of Defendant, and the immediate family member of any such person. Also excluded is any judge who may preside over this case.. Plaintiff-Intervenors also seek to represent a subclass defined as all members of the Class who purchased the Products from within the state of California (the California Subclass ). Federal Trade Commission Staff Report, Weight-Loss Advertising: An Analysis of Current Trends (Sept. 00). AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

10 0 0. Members of the Class and California Subclass are so numerous that their individual joinder herein is impracticable. The precise number of Class members and their identities are unknown to Plaintiff-Intervenors at this time but will be determined through discovery of Defendant s records. Class members may be notified of the pendency of this action by mail, and/or publication. 0. Common questions of law and fact exist as to all Class members and predominate over questions affecting only individual Class members. These common legal and factual questions include, but are not limited to: (a) Whether the marketing and advertisements for the Products included false and misleading statements; (b) Whether Defendant s conduct violated the CLRA; (c) Whether Defendant s conduct violated the FAL; (d) Whether Defendant s conduct violated the UCL s unlawful, unfair, and fraudulent and deceptive prongs. (e) Whether Defendant s conduct violated the Magnuson-Moss Warranty Act, U.S.C. 0, et seq.; (f) Whether Defendant breached an express warranty made to Plaintiff-Intervenors and the Classes;. Plaintiff-Intervenors claims are typical of the claims of the proposed Class and California Subclass. Each class member was subjected to the same illegal conduct, was harmed in the same way and has claims for relief under the same legal theories.. Plaintiff-Intervenors are adequate representatives of the Class and California Subclass because their interests do not conflict with the interests of the Class members they seek to represent, they have retained counsel competent and experienced in prosecuting class actions, and they intend to prosecute this action vigorously. The interests of Class members will be fairly and adequately protected by Plaintiff-Intervenors and their counsel. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

11 0 0. The class mechanism is superior to other available means for the fair and efficient adjudication of the claims of Class members. Each individual Class member may lack the resources to undergo the burden and expense of individual prosecution of the complex and extensive litigation necessary to establish defendant s liability. Individualized litigation increases the delay and expense to all parties and multiplies the burden on the judicial system presented by the complex legal and factual issues of this case. Individualized litigation also presents a potential for inconsistent or contradictory judgments. In contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court on the issue of defendant s liability. Class treatment of the liability issues will ensure that all claims and claimants are before this Court for consistent adjudication of the liability issues.. Unless a class is certified, Defendant will retain monies received as a result of its conduct that were taken from Plaintiff-Intervenors and the proposed Class members. Unless a classwide injunction is issued, Defendant will continue to commit the violations of law alleged, and the members of the Class and the general public will continue to be harmed thereby. COUNT I Violation of California s Consumer Legal Remedies Act, California Civil Code 0, et seq.. Plaintiff-Intervenors incorporate by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of the members of the proposed California Subclass against Defendant.. Plaintiff-Intervenors and the members of the California Subclass are consumers as defined by Civil Code (d).. Defendant violated Civil Code 0(a)(), () and () by making false and misleading statements regarding the Products. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION 0 CASE NO. 0

12 0 0. Plaintiff-Intervenors and the members of the California Subclass have suffered harm as a result of these violations of the CLRA because they have incurred charges and/or paid monies for the Products that they otherwise would not have incurred or paid. 0. Pursuant to Civil Code, Defendant was notified of its violations of the CLRA more than 0 days prior to the commencement of this action and has not taken any remedial action to correct the violations identified herein.. Pursuant to Civil Code 0, Plaintiff-Intervenors seek an order of this Court permanently enjoining Defendant from continuing to engage in its unlawful conduct as alleged herein. Plaintiff-Intervenors also seek an order of this Court requiring Defendant to: (a) Pay damages according to proof; (b) Immediately cease the conduct alleged herein; (c) Make full restitution of all monies wrongfully obtained; (d) Disgorge all ill-gotten revenues and/or profits; and (e) Punitive damages. COUNT II Violation of California s False Advertising Law ( FAL ), Business & Professions Code 00 et seq.. Plaintiff-Intervenors incorporates by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of the members of the proposed California Subclass against Defendant.. Defendant violated Business & Professions Code 00 by publicly disseminating false and misleading advertisements regarding the Products.. Defendant s false and misleading advertisements were disseminated to increase the sales of the Products.. Defendant knew or should have known that its advertisements for the Products were false and misleading and that those advertisements would induce consumers to purchase the Products. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

13 0 0. Furthermore, Defendant publicly disseminated the false and misleading advertisements as part of a plan or scheme and with the intent to sell unproven, ineffective, and worthless products.. Plaintiff-Intervenors and the members of the California Subclass have suffered harm as a result of these violations of the FAL because they have incurred charges and/or paid monies for the Products that they otherwise would not have incurred or paid.. Pursuant to Bus. & Prof. Code 00, Plaintiff-Intervenors seek an order of this Court permanently enjoining Defendant from continuing to publicly disseminate false or misleading advertisements for the Products as alleged herein. Plaintiff-Intervenors also seek an order requiring Defendant to: (a) (b) make full restitution for all monies wrongfully obtained; and disgorge all ill-gotten revenues and/or profits. COUNT III Unlawful Business Practices In Violation Of California s Unfair Competition Law ( UCL ), Business & Professions Code 00 et seq. (Unlawful Practices) 0. Plaintiff-Intervenors incorporate by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of the members of the proposed California Subclass against Defendant.. Defendant violated the unlawful prong of the UCL by violating Civil Code 0(a) (), () and () and Business & Professions Code 00 as described above.. Defendant also violated the unlawful prong of the UCL by violating the FTC Act, U.S.C. (n), because false and misleading claims concerning the clinically proven efficacy of the Products are likely to deceive reasonable consumers and are likely to cause injury to consumers by enticing them to purchase worthless and ineffective products and to incur charges and/or pay monies for the Products that they otherwise would not have incurred or paid. These injuries are substantial, and are not reasonably avoidable by consumers who in most cases would be unable to debunk Defendant s bogus claims about the purported efficacy of the Products. Furthermore, The FTC AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

14 0 0 typically requires claims about the efficacy or safety of dietary supplements to be supported with competent and reliable scientific evidence, defined in FTC cases as tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results. Such support was lacking here, thus Defendant s claims concerning the efficacy of the Products were unsupported and deceptive in violation of the FTC Act.. Plaintiff-Intervenors and the members of the California Subclass have suffered harm as a result of these violations of the unlawful prong of the UCL because they have incurred charges and/or paid monies for the Products they otherwise would not have incurred or paid.. Pursuant to Bus. & Prof. Code 0, Plaintiff-Intervenors seek an order of this Court permanently enjoining Defendant from continuing to engage in its unlawful conduct as alleged herein. Plaintiff-Intervenors also seek an order requiring Defendant to: (a) (b) (c) immediately cease the conduct described herein; make full restitution of all monies wrongfully obtained; and disgorge all ill-gotten revenues and/or profits. COUNT IV Unlawful Business Practices In Violation Of California s Unfair Competition Law ( UCL ), Business & Professions Code 00 et seq. (Unfair Practices). Plaintiff-Intervenors incorporate by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of the members of the proposed Class and California Subclass against Defendant.. Defendant s conduct, described herein, violated the unfair prong of the UCL because such conduct violated various laws and policies recognized by the California Legislature and the Federal Trade Commission, Dietary Supplements: An Adverting Guide for Industry, p., available at ( FTC Advertising Guide ). AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

15 0 0 California courts, including without limitation, the CLRA and FAL, because the utility of Defendant s conduct is significantly outweighed by the gravity of the harms it imposed on consumers, and because Defendant s business practices described herein are oppressive, unscrupulous or substantially injurious to consumers.. Plaintiff-Intervenors and the members of the California Subclass have suffered harm as a result of these violations of the unfair prong of the UCL because they have incurred charges and/or paid monies for the Products they otherwise would not have incurred or paid. 0. Pursuant to Bus. & Prof. Code 0, Plaintiff-Intervenors seek an order of this Court permanently enjoining Defendant from continuing to engage in its unfair and unlawful conduct as alleged herein. Plaintiff-Intervenors also seek an order requiring Defendant to: (a) (b) (c) immediately cease its unfair and unlawful acts and practices; make full restitution of all monies wrongfully obtained; and disgorge all ill-gotten revenues and/or profits. COUNT V Unlawful Business Practices In Violation Of California s Unfair Competition Law ( UCL ), Business & Professions Code 00 et seq. (Fraudulent and Deceptive Practices). Plaintiff-Intervenors incorporate by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of the members of the proposed Class and California Subclass against Defendant.. Defendant violated the fraudulent and deceptive prong of the UCL by disseminating false and misleading advertisements and marketing materials regarding the effectiveness of the Products.. Plaintiff-Intervenors and the members of the California Subclass have suffered harm as a result of these violations of the fraudulent and deceptive prong of the UCL because they have incurred charges and/or paid monies for the Products they otherwise would not have incurred or paid. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

16 0 0. Pursuant to Bus. & Prof. Code 0, Plaintiff-Intervenors seek an order permanently enjoining Defendant from continuing to engage in its fraudulent and deceptive conduct alleged herein. Plaintiff-Intervenors also seek and order requiring Defendant to: (a) (b) (c) immediately cease its fraudulent and deceptive acts and practices; make full restitution of all monies wrongfully obtained; and disgorge all ill-gotten revenues and/or profits. COUNT VI (Magnuson-Moss Warranty Act, U.S.C. 0, et seq.). Plaintiff-Intervenors incorporate by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of members of the Class against Defendant. 0().. The Products are consumer products as defined in U.S.C. 0().. Plaintiff-Intervenors and Class members are consumers as defined in U.S.C. 0. Defendant is a supplier and warrantor as defined in U.S.C. 0() and ().. Defendant issued written warranties as defined in U.S.C. 0(), by making statements about the efficacy of the Products.. In fact, the Products do not conform to the written warranties because the statements Defendant made about the Products are false and misleading. Indeed, competent and reliable scientific evidence proves that each representation is false.. By reason of Defendants breach of warranties, Defendants violated the statutory rights due Plaintiff-Intervenors and Class members pursuant to the Magnuson-Moss Warranty Act, U.S.C. 0, et seq., thereby damaging Plaintiff-Intervenors and Class members.. Plaintiff-Intervenors and Class members were injured as a direct and proximate result of Defendants breach because they would not have purchased the Products if the true facts had been known concerning their efficacy. AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

17 0 0. Pursuant to U.S.C. 0(d)(), Plaintiff-Intervenors and the Class members are entitled to recover the damages caused to them by Defendant s breaches of written and implied warranties. In addition, pursuant to U.S.C. 0(d)(), Plaintiff-Intervenors and the Class members are entitled to recover a sum equal to the aggregate amount of costs and expenses (including attorneys fees based on actual time expended) determined by the Court to have been reasonably incurred by Plaintiff-Intervenors and the Class members in connection with the commencement and prosecution of this action. COUNT VII (Breach of Express Warranty). Plaintiff-Intervenors incorporate by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of members of the Class against Defendant.. Defendant, as the designer, manufacturer, marketer, distributor, and/or seller issued written warranties by making statements about the efficacy of the Products.. Each of these warranties is false and misleading, as proven by competent and reliable scientific evidence, as detailed above. 0. Plaintiff-Intervenors and Class members were injured as a direct and proximate result of Defendant s breaches because they would not have purchased the Products if the true facts concerning their efficacy had been known. COUNT VIII Breach of The Implied Warranty Of Merchantability. Plaintiff-Intervenors incorporate by reference and re-allege each and every allegation set forth above as though fully set forth herein.. Plaintiff-Intervenors bring this claim individually and on behalf of members of the Class against Defendant.. Defendant is and was at all relevant times merchants within the meaning of the Uniform Commercial Code ( UCC ). Defendant manufactured, distributed, and marketed the AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

18 0 0 Products, which are goods within the meaning of the UCC. Consequently, Defendant impliedly warranted that the Products were merchantable, including that they could pass without objection in the trade under the contract description, that they were fit for the ordinary purposes for which such goods are used, that they were of fair average quality within the description, that they were adequately labeled, and that they would conform to the promises or affirmations of fact made on their containers or labels. However, each of these implied warranties was false with respect to the goods of the kind sold to Plaintiff-Intervenors and members of the Class.. In reliance upon Defendant s skill and judgment and the implied warranties of fitness for the purpose, Plaintiff-Intervenors and the Class members purchased the Products for the purpose of losing weight.. The Products were not altered by Plaintiff-Intervenors or the Class members.. The Products were defective when they left Defendant s exclusive control.. Defendant knew the Products would be purchased and consumed by Plaintiff- Intervenors and the Class members. The Products were unfit for their intended purpose, and Plaintiff- Intervenors and the Class members did not receive the goods as warranted.. More specifically, Defendant breached its implied warranty of merchantability to Plaintiff-Intervenors and the Class members because the Products would not pass without objection in the trade because they were incapable of performing the functions they were intended to perform.. As a direct and proximate cause of Defendant s breach of the implied warranty, Plaintiff-Intervenors and the Class members were injured because (a) they would not have purchased the Products if they had known that the Products were not effective for weight loss. As a result, Plaintiff-Intervenors and the Class members have been damaged either in the full amount of the purchase prices of the Products. PRAYER FOR RELIEF WHEREFORE, Plaintiff-Intervenors pray for judgment and relief as follows: A. An order certifying that this lawsuit is properly maintainable as a class action and certifying Plaintiff-Intervenors as the representative of the Class and California Subclass; AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

19 0 B. For all forms of relief set forth above; C. Damages against Defendant in an amount to be determined at trial, together with preand post-judgment interest at the maximum rate allowable by law on any amounts awarded; D. Restitution and/or disgorgement in an amount to be determined at trial; E. Punitive damages; F. An order enjoining Defendant from continuing to engage in the unlawful conduct and practices described herein; G. Reasonable attorneys fees and costs; H. Granting such other and further relief as may be just and proper. DEMAND FOR TRIAL BY JURY Plaintiff-Intervenors demand a trial by jury of all issues so triable. 0 Dated: May, 0 BURSOR & FISHER, P.A. By: L. Timothy Fisher L. Timothy Fisher (State Bar No. ) Yeremey O. Krivoshey (State Bar No. 0) 0 North California Boulevard, Suite 0 Walnut Creek, CA Telephone: () 00- Facsimile: () ltfisher@bursor.com ykrivoshey@bursor.com BURSOR & FISHER, P.A. Scott A. Bursor (State Bar No. 00) Seventh Avenue New York, NY 00 Telephone: () - Facsimile: () - scott@bursor.com AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0

20 CLARKSON LAW FIRM Ryan J. Clarkson (State Bar No. 0) S. Hill St., Suite 0 Los Angeles, CA 00 Telephone: () -0 Facsimile: () rclarkson@clarksonlawfirm Attorneys for Plaintiff-Intervenors 0 0 AMENDED CLASS ACTION COMPLAINT IN INTERVENTION CASE NO. 0