`
`Case 3:20-cv-16941-FLW-DEA Document 1 Filed 11/23/20 Page 1 of 40 PageID: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`
`TIFFANY GRIFFIN, individually and on behalf
`of all others similarly situated,
`
` Plaintiff,
` v.
`
`GSK CONSUMER HEALTH, INC.
`
` Defendant.
`
`
`
`
`
`
`Case No. ____________
`
`
` CLASS ACTION COMPLAINT
` JURY TRIAL DEMANDED
`
`
`CLASS ACTION COMPLAINT
`
`
`Plaintiff Tiffany Griffin (hereinafter, “Plaintiff”), individually and on behalf of all other
`
`persons similarly situated, by her undersigned attorneys, alleges the following based upon personal
`
`knowledge as to herself and her own actions, and, as to all other matters, alleges, upon information
`
`and belief and investigation of her counsel, as follows:
`
`NATURE OF THE ACTION
`
`This is a consumer class action brought individually by Plaintiff and on behalf of all
`
`
`1.
`
`persons in the below-defined proposed Classes, all of whom purchased GSK Consumer Health, Inc.’s
`
`(“Defendant”) Benefiber Original Prebiotic Powder and Benefiber Healthy Shape Prebiotic Powder
`
`(hereinafter, the “Product” or “Products”).
`
`2.
`
`Defendant manufactures, sells, and distributes these Products through a marketing and
`
`advertising strategy that emphasizes that these Products are “100% Natural,” which is a claim that
`
`appeals to health-conscious consumers.
`
`3.
`
`Defendant’s advertising and marketing campaign, however, is false, fraudulent,
`
`deceptive, and misleading. Unbeknownst, to Plaintiff and members of the Classes at the time of their
`
`purchase, and contrary to the express representations on the labels, these Products contain wheat
`1
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`

`

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`Case 3:20-cv-16941-FLW-DEA Document 1 Filed 11/23/20 Page 2 of 40 PageID: 2
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`dextrin, which is a non-natural synthetic ingredient.
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`4.
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`As a result of Defendant’s unlawful and highly deceptive conduct, Plaintiff and
`
`Members of the Classes have been and continue to be harmed by purchasing a product under false
`
`pretenses. Furthermore, Plaintiff and Members of the Classes paid a premium for the Products based
`
`on the misrepresentation made by Defendant that the Products were “100% Natural.” Accordingly,
`
`Plaintiff and Members of the Classes paid more for the Products than they otherwise would have, if
`
`at all, and suffered an injury in the amount of the premium paid.
`
`5.
`
`Plaintiffs and the Classes thus bring claims for consumer fraud, common law fraud,
`
`and unjust enrichment and seek damages, injunctive and declaratory relief, interest, costs, and
`
`reasonable attorneys’ fees.
`
`PARTIES
`
`Plaintiff Tiffany Griffin is a citizen of the State of Texas residing in the City of Desoto
`
`
`6.
`
`and is a member of the Class defined herein. Her current residence is 812 Princeton Drive, Desoto,
`
`Texas. She purchased the Products for her own use many times preceding the filing of this Complaint.
`
`She most recently made a purchase on May 3, 2020. Plaintiff and members of the Classes suffered
`
`an injury in fact caused by the false, fraudulent, unfair, deceptive, and misleading practices of
`
`Defendant set forth in this Complaint. Plaintiff and members of the Classes would not have purchased
`
`the Products had they been accurately labeled.
`
`7.
`
`Defendant, GSK Consumer Health, Inc., is a corporation with its principal place of
`
`business in Warren, New Jersey. Defendant’s corporate headquarters is located at 184 Liberty Corner
`
`Road, Warren, New Jersey. Defendant manufactures, markets, distributes, and advertises the
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`Products throughout the United States. Defendant developed and/or authorized the false, fraudulent,
`
`misleading, and deceptive advertisements and labeling of the Products from its New Jersey
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`headquarters.
`
`
`
`2
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`

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`
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`8.
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`JURISDICTION AND VENUE
`
`This Court has subject matter jurisdiction pursuant to the Class Action Fairness Act
`
`of 2005 (hereinafter referred to as “CAFA”) codified as 28 U.S.C. § 1332(d)(2) because the claims
`
`of the proposed Class members exceed $5,000,000 and because Defendant is a citizen of a different
`
`state than most Class members.
`
`9.
`
`The Court has personal jurisdiction over Defendant because it is headquartered in
`
`this District, regularly conducts business in this District, and/or under the stream of commerce
`
`doctrine by causing its products to be disseminated in this District.
`
`10.
`
`Venue is proper in this District under 28 U.S.C. § 1391 because Defendant is
`
`headquartered here and conducts substantial business in this District.
`
`
`
`FACTUAL ALLEGATIONS
`A “100% Natural” Representation is Material to Consumers
`
`11.
`
`The use of the term “natural,” let alone “100% Natural,” is a powerful statement
`
`that is important to consumers.
`
`12.
`
`A study conducted by Consumer Reports1 in 2014 found that about two-thirds of
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`consumers believe that Products that are “natural” do not contain any “artificial ingredients,
`
`pesticides, or genetically modified organisms” and that 80% of consumers believe it should mean
`
`that.2
`
`
`1 Consumer Reports (CR), founded in 1936, is “an independent, nonprofit member organization that works side by
`side
`with
`consumers
`for
`truth,
`transparency,
`and
`fairness
`in
`the
`marketplace.”
`https://www.consumerreports.org/cro/about-us/what-we-do/index.html (last visited Nov. 20, 2020). It has six million
`members and tests tens of thousands of products annually to provide consumers with product reviews. See id. CR has
`a Survey Research department that conducts more than one hundred surveys per year. Its surveys are not
`commissioned or financed by industry. See https://www.consumerreports.org/cro/about-us/what-we-do/research-and-
`testing/index.html (last visited Nov. 20, 2020).
`
` Deborah Pike Olsen, Say No to ‘Natural’ on Food Labels, Consumer Reports (June 16, 2014, 6:00 AM),
`https://www.consumerreports.org/cro/news/2014/06/say-no-to-natural-on-food-labels/index.htm.
`
` 2
`
`
`
`3
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`
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`13.
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`According to one study, nearly three-quarters (73 percent) of global consumers
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`believe it is important their groceries are one hundred percent natural.3
`
`14.
`
`The shift in consumers actively looking for more natural products is associated with
`
`consumer preferences regarding health.4
`
`15.
`
`A 2015 Consumer Reports survey found that 62% of consumers purchase “natural”
`
`products, and that 87% of those purchasers are willing to pay more for products called “natural”
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`that meet their expectations regarding what “natural” means.5
`
`16.
`
`A 2016 survey found the number of consumers who purchase “natural” products to
`
`be as high as 73%.6
`
`17.
`
`Reflecting this trend, in 2011, the natural products industry was valued at
`
`approximately $91 billion.7
`
`18. Merely four years later the natural products industry had almost doubled in value
`
`to $180 billion.8
`
`19.
`
`Thus, seeking to capitalize on the booming natural products industry, Defendant
`
`
`3 Will Cowling, Consumers Continue to Seek Products with Natural Ingredients, Candy Industry (Jan. 22, 2020),
`https://www.candyindustry.com/articles/88953-consumers-continue-to-seek-products-with-natural-
`ingredients#:~:text=The%20research%20firm%20found%2036,of%20artificial%20and%20synthetic%20ingredients
`.&text=Nearly%20three%2Dquarters%20(73%20percent,groceries%20are%20100%20percent%20natural.
`
` 4
`
` Id.
`
` 5
`
` Andrea Rock, Peeling Back the ‘Natural’ Food Label, Consumer Reports (last updated: Jan. 27, 2016),
`https://www.consumerreports.org/food-safety/peeling-back-the-natural-food-label/.
`
` 6
`
` Consumer Reports Survey Show 73 Percent of Consumers Look for ‘Natural’ Labels at Grocery Stores- and Many
`are Unwittingly Misled, Consumer Reports, (May 10, 2016) https://www.consumerreports.org/media-room/press-
`releases/2016/05/consumer-reports-survey-show-73-percent-of-consumers-misled-by-natural-labels-at-the-grocery-
`store/.
`
` 7
`
` Nancy Wagner, Size of the Natural Products Industry, Chron, https://smallbusiness.chron.com/size-natural-products-
`industry-71266.html (last visited Nov. 19, 2020).
`
` 8
`
` Natural Products Industry Sales up 9.5% to $180bn Says NBJ, FOOD NAVIGATOR, http://www.foodnavigator-
`usa.com/Markets/EXPO-WEST-trendspotting-organics-natural-claims/(page)/6
`
`
`
`4
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`

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`
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`marketed, advertised and labeled its Products as “100% Natural”.
`
`GSK Falsely Markets the Products as 100% Natural
`
`20.
`
`As shown below, Defendant prominently marketed and labeled the Products as
`
`“100% Natural[.]”
`
`
`
`
`
`
`
`
`
`
`
`21.
`
`Defendant directs the “100% Natural” representation to consumers, like Plaintiff
`
`5
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`

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`and the members of the Classes, and Defendant intends that Plaintiff and members of the Classes
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`read and rely on its representations.
`
`22.
`
`However, contrary to the representations made through marketing, advertisements
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`and on each bottle of the Products, the Products actually contain wheat dextrin, a synthetic
`
`ingredient, which means that they are not “100% Natural[.]”
`
`23.
`
`Because Defendant falsely marketed, advertised and labeled the Products as “100%
`
`Natural,” Defendant’s competitor Procter & Gamble brought a case before the National
`
`Advertising Division—the advertising industry’s self-regulatory body—challenging Defendant’s
`
`assertion that the Products are “100% Natural[.]”
`
`24.
`
`Upon concluding its review of the matter, on May 14, 2020 the NAD concluded
`
`that Defendant deceptively labeled and misrepresented the Products.9 The NAD asserted that
`
`Defendants’ “100% Natural” representation on the Products was “inconsistent with the reasonable
`
`consumer takeaway” of what that “100% Natural” means.10 This decision was based on the NAD
`
`finding that wheat dextrin is actually a synthetic ingredient due to the complex chemical process
`
`required to produce it.
`
`25.
`
`The NAD made its determination by reviewing the complex chemical process used
`
`to produce the wheat dextrin in the Products. This process is explained below:11
`
`The process of manufacturing Benefiber is largely undisputed. It
`begins with wheat starch, a carbohydrate derived from wheat, which
`both parties agree is a natural ingredient. Wheat starch is digestible
`in the gut, contains no dietary fiber and no reducing sugars. Next,
`food-grade hydrochloric acid is added to the wheat starch, which
`aids in hydrolysis. Hydrolysis is the reaction of water with a
`substance, which causes water to split the bonds within that
`
`
`9 NAD’s Ruling is attached hereto and cited hereinafter as Exhibit A. See Exhibit A, at p. 7.
`
`10 Id.
`
`11 Id. at p. 2.
`
`
`
`6
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`

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`
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`substance. In food production, hydrolysis is induced when heat is
`applied to certain ingredients.
`
`After hydrochloric acid is combined with wheat starch, the starch is
`then heated to a high temperature, which creates new bonds between
`the glucose sugars. More specifically, new nondigestible bonds are
`created (bonds not found in wheat starch), the polysaccharide chain
`lengths are altered and their molecular weight is lowered, which
`increases the product’s solubility and creates less viscosity, so
`Benefiber is dissolved when mixed with water. This process also
`forms reducing sugars, which add sweetness to the Benefiber
`product. Next, an enzyme, α-amylase, is added to the mixture, which
`further reduces the molecular weight of the polymer chains. After
`the enzyme is added, the preferred polymers are selected, collected
`from the mixture, filtered to remove impurities, then concentrated to
`remove water and increase the concentration of polysaccharides to
`transform the solution into a dry powder.
`
`chromatography.
`to
`subjected
`is
`substance
`the
`Next,
`the manufacture
`to select specific
`Chromatography allows
`polysaccharides by molecular weight to alter the weight distribution
`of the mixture, which impacts its overall viscosity. Chromatography
`also allows for the removal of small sugar molecules, which further
`increases the fiber content of the mixture. Finally, the product is
`purified by ion exchange, evaporated and then spray dried to product
`the final wheat starch ingredient found in Benefiber.
`The process commences with wheat starch, a carbohydrate derived from wheat.
`
`26.
`
`High-grade hydrochloric acid is then added to the wheat starch. The starch is then heated to a high
`
`temperature, which creates new bonds between the glucose sugars. Next, an enzyme, α- amylase,
`
`is added to the mixture, which further reduces the molecular weight of the polymer chains. After
`
`the enzyme is added, the preferred polymers are selected, collected from the mixture, filtered to
`
`remove impurities, then concentrated to remove water and increase the concentration of
`
`polysaccharides to transform the solution into a dry powder. Then, the substance is subjected to
`
`chromatography which allows the manufacturer to select specific polysaccharides by molecular
`
`weight to alter the weight distribution of the mixture and allows for the removal of small sugar
`
`molecules, which further increases the fiber content of the mixture. Finally, the product is purified
`
`
`
`7
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`

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`by ion exchange, evaporated and then spray dried to produce the final wheat starch ingredient
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`found in the Products.
`
`27.
`
`In its ruling, the NAD stated, “the process of manufacturing Benefiber transforms
`
`the source ingredient – wheat starch – which is digestible and has 0% dietary fiber, into a new
`
`ingredient – wheat dextrin – which is non-digestible and has 85% dietary fiber.”12
`
`28.
`
`Based on this, the NAD determined that a reasonable consumer would not deem
`
`Defendants’ Products to be “100% Natural” because “ingredients that are derived from nature and
`
`undergo significant chemical alterations are often not ‘natural’ in the way that consumers expect
`
`them to be.”13
`
`29.
`
`Though a reasonable consumer likely understands many products undergo some
`
`degree of processing, claiming the Products are “100% Natural” conveys to consumers minimal
`
`or even no processing.
`
`30.
`
`This would not be accurate with Defendants’ Products as the creation of wheat
`
`dextrin in the Products involve significant processing that changes the biological properties of the
`
`natural ingredient.14
`
`31. Moreover, this complex process to create wheat dextrin is essential to providing the
`
`Products’ benefits and characteristics, including its high fiber content, viscosity, solubility, and
`
`sweetness.15
`
`32.
`
`The NAD similarly rejected Defendant’s argument that wheat dextrin is “natural”
`
`12 Id.
`
`13 Id. at p. 3.
`
`14 Id. at p. 4.
`
`15 Id. at p. 5.
`
`
`
`
`
`
`8
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`

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`
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`according to the FDA and Federal Trade Commission (“FTC”).16 In particular, the NAD cited the
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`FDA’s Review of the Scientific Evidence on the Physiological Effects of Certain Non- Digestible
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`Carbohydrates which expressly calls wheat dextrin a “synthetic” non-digestible carbohydrate.17
`
`33.
`
`Furthermore, the conclusion made by the NAD, that wheat dextrin is synthetic, is
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`validated by U.S. Department of Agriculture (“USDA”) guidance.
`
`34.
`
`A 2016 document produced by the USDA, titled “Draft Guidance Decision Tree
`
`for Classification of Materials as Synthetic or Nonsynthetic,” outlines how to determine whether
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`a substance is synthetic or natural.
`
`35.
`
`According to the USDA, a substance is classified as natural based upon the
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`following guidelines: (a) it is produced or extracted from a natural source; (b) it has not undergone
`
`a chemical change that chemically or structurally altered it to be different than how it naturally
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`occurs in the source material; or (c) the chemical change was created by a “naturally occurring
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`biological process such as composting, fermentation, or enzymatic digestion or by heating or
`
`burning biological matter.”18
`
`36.
`
`In addition, Congress has also defined what “synthetic” means. According to
`
`Congress, synthetic is “a substance that is formulated or manufactured by a chemical process or
`
`by a process that chemically changes a substance extracted from naturally occurring plants,
`
`animals, or mineral sources.” 7 U.S.C. § 6502 (21).
`
`37.
`
`Based on this analysis, the NAD recommended that Defendant discontinue its claim
`
`
`
`16 Id.
`
`17 Id.
`18 See Guidance Decision Tree for Classification of Materials as Synthetic or Nonsynthetic, Agriculture Marketing
`Service, USDA (Dec. 2, 2016), https://www.ams.usda.gov/sites/default/files/media/NOP-Synthetic-NonSynthetic-
`DecisionTree.pdf.
`
`
`
`
`9
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`

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`of “100% Natural” on the Products.19
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`38.
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`Defendant knew or should have known that the “100% Natural Claim” prominently
`
`featured on the front of the label of the Products was not accurate and that the labeling, advertising
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`and/or marketing was false and misleading.
`
`39.
`
`Nevertheless, Defendant falsely and misleadingly marketed, advertised, packaged
`
`and/or sold the Products to the general public as a “100 % Natural[.]”
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`40.
`
`The only conceivable purpose for falsely and deceptively making these claims
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`about the Products is to stimulate sales and enhance Defendant’s profits based on the booming
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`natural products industry.
`
`41.
`
`Consumers are particularly vulnerable to these kinds of false and deceptive labeling
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`and marketing practices. Most consumers are unable to verify that products such as Defendant’s
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`Products are accurately labeled.
`
`42.
`
`As set forth above, the decision to purchase a product that is 100% Natural is
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`material to consumers.
`
`43.
`
`44.
`
`The difference between the Products promised and the Products sold is significant.
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`As set forth above, consumers willingly pay more for products that are labeled “100
`
`% Natural” such as Defendant’s Products.
`
`45.
`
`Because of Defendant’s deceptive advertising practices, consumers were and
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`continue to be fraudulently induced to purchase and pay a premium for the Products.
`
`Plaintiff Relied Upon the Products’ Label to Purchase the Products
`Plaintiff was herself a victim of Defendants’ mislabeling of the Products. On
`
`46.
`
`several occasions, she purchased one of the products, Benefiber Original Prebiotic Powder, most
`
`19 See Exhibit A at p. 7.
`
`
`
`
`
`10
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`recently in May of 2020 at a Walgreens in City of Desoto, Texas.
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`47.
`
`Prior to each purchase of the Product, Plaintiff viewed the “100% Natural”
`
`representation prominently featured on the Product’s label.
`
`48.
`
`Plaintiff chose to purchase the Product over cheaper alternatives because the
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`Product was prominently labeled and advertised as “100% Natural”.
`
`49.
`
`50.
`
`Plaintiff purchased the Product believing they were “100% Natural.”
`
`Plaintiff would not have purchased and consumed the Product had she known they
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`were not “100% Natural” and instead contained synthetic ingredients.
`
`51.
`
`Plaintiff is in the same Class as all other consumers who purchased Defendant’s
`
`Products during the relevant time period. Plaintiff and the Class Members were in fact misled by
`
`Defendant’s misrepresentations with respect to the Products. Plaintiff and Class Members would
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`have purchased other nutritional supplements, if any at all, if they had not been deceived by the
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`misleading and deceptive labeling and advertising of the Products by Defendant.
`
`GSK’s Marketing and Sale of the Products Violates Federal Law
`
`52.
`
`Section 5(a) of the Federal Trade Commission (“FTC”) Act, 15 U.S.C. § 45(a),
`
`prohibits “unfair or deceptive acts or practices in or affecting commerce.”
`
`53. Misrepresentations or deceptive omissions of material fact constitute deceptive acts
`
`or practices prohibited by Section 5(a) of the FTC Act.
`
`54.
`
`Section 12 of the FTC Act, 15 U.S.C. § 52, prohibits the dissemination of any false
`
`advertisement in or affecting commerce for the purpose of inducing, or which is likely to induce,
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`the purchase of food, drugs, devices, services, or cosmetics. For the purposes of Section 12 of the
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`FTC Act, 15 U.S.C. § 52, the Products are either “foods” or “drugs” as defined in Section 15(b)
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`and (c) of the FTC Act, 15 U.S.C. §§ 55(b), (c). Under these provisions, companies must have a
`
`
`
`11
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`reasonable basis for making objective product claims.
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`55.
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`As alleged herein, Defendant has represented the Products as “100% Natural.”
`
`However, these representations are false, deceptive, and misleading as the Product contains wheat
`
`dextrin, a synthetic ingredient. The making of such misrepresentations by Defendant constitutes a
`
`deceptive act or practice and the making of false advertisements in violation of Sections 5(a) and
`
`12 of the FTC Act, 15 U.S.C. §§ 45(a), 52.
`
`New Jersey’s Substantive Law Applies to the Proposed Class
`
`56.
`
`New Jersey’s substantive laws should apply to the proposed nationwide class. New
`
`Jersey’s substantive laws may be constitutionally applied to the claims of Plaintiff and the
`
`nationwide class under the Due Process Clause, 14th Amend., § 1, and the Full Faith and Credit
`
`Clause, art. IV., § 1, of the U.S. Constitution.
`
`57.
`
`New Jersey has significant contact, or significant aggregation of contacts, to the
`
`claims asserted by Plaintiff and Members of the Class. Defendant’s principal place of business is
`
`located in New Jersey and Defendant also owns property and conducts substantial business in New
`
`Jersey. New Jersey has an interest in regulating Defendant’s conduct under its laws. These
`
`considerable state interests ensure that applying New Jersey state law is not unfair or arbitrary.
`
`Further, Defendant’s decision to reside in New Jersey and avail itself of New Jersey’s laws renders
`
`the application of New Jersey law to the claims herein constitutionally permissible.
`
`58.
`
`Defendant’s misconduct emanated from New Jersey because Defendant’s
`
`marketing and any testing efforts relating to the deceptive Products, were likely undertaken and
`
`orchestrated from its headquarters in New Jersey.
`
`59.
`
`Due to its choice-of-law rules, interest in applying its own laws, and considerable
`
`contacts to the claims of the Plaintiff and the Members of the Class, New Jersey law is appropriate
`
`
`
`12
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`

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`and should be applied in this case.
`
`CLASS ACTION ALLEGATIONS
`Plaintiff brings this action individually and on behalf of all other persons similarly
`
`60.
`
`situated pursuant to Federal Rule of Civil Procedure 23. The class definition(s) may depend on the
`
`information obtained throughout discovery. Notwithstanding, at this time, Plaintiffs bring this
`
`action and seek certification of the following Classes:
`
`National Class: All persons within the United States who purchased the Products
`
`labeled as “100% Natural” for personal consumption from the beginning of any
`
`applicable limitations period through the date of class certification (the “National
`
`Class” or the “Class”).
`
`Texas Sub-Class: All persons within the State of Texas who purchased the
`
`Products labeled as “100% Natural” for personal consumption from the beginning
`
`of any applicable limitations period through the date of class certification (the
`
`“Texas Sub-Class”).
`
`61.
`
`Excluded from the Classes are the Defendant, and any entities in which the
`
`Defendant has a controlling interest, any Judge to whom this action is assigned and any member
`
`of such Judge’s staff and immediate family, and Plaintiff’s counsel, their staff members, and their
`
`immediate family.
`
`62.
`
`Plaintiff reserves the right to amend the Class definitions or add a Class if further
`
`information and discovery indicate that the Class definitions should be narrowed, expanded, or
`
`otherwise modified.
`
`63.
`
`Certification of Plaintiff’s claims for class-wide treatment is appropriate because
`
`Plaintiff can prove the elements of her claims on a class-wide basis using the same evidence as
`
`would be used to prove those elements in individual actions alleging the same claims.
`
`
`
`13
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`64.
`
`Numerosity – Federal Rule of Civil Procedure 23(a)(1). The members of the
`
`Classes are so numerous that their individual joinder herein is impracticable. On information and
`
`belief, members of the Classes number in the thousands to hundreds of thousands. The number of
`
`members of the Classes is presently unknown to Plaintiff but may be ascertained from Defendant’s
`
`books and records. Members of the Classes may be notified of the pendency of this action by mail,
`
`email, Internet postings, and/or publication.
`
`65.
`
`Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2) and
`
`23(b)(3). Common questions of law and fact exist as to all members of the Classes and predominate
`
`over questions affecting only individual members of the Classes. Such common questions of law
`
`or fact include, but are not limited to, the following:
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`a.
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`b.
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`Whether the Products are “100% Natural,” as claimed on the labels;
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`Whether Defendant had a reasonable basis for claiming that the Products
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`are “100% Natural”;
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`c.
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`Whether the marketing, advertising, packaging, labeling, and other
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`promotional materials for the Product are deceptive;
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`e. Whether Defendant’s actions violate the state consumer fraud statute
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`invoked below;
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`f.
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`g.
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`Whether Defendant’s actions constitute common law fraud;
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`Whether Plaintiff and the members of the Classes were damaged by
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`Defendant’s conduct;
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`h.
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`Whether Defendant was unjustly enriched at the expense of Plaintiff and
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`Class Members; and
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`i.
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`Whether Plaintiff and Class Members are entitled to injunctive relief.
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`66.
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`Defendant engaged in a common course of conduct giving rise to the legal rights
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`Plaintiff seeks to enforce, on behalf of herself and the other Members of the Classes. Similar or
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`identical statutory and common law violations, business practices, and injuries are involved.
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`Individual questions, if any, pale in comparison, in both quality and quantity, to the numerous
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`common questions that dominate this action.
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`67.
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`Typicality – Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s claims are typical
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`of the claims of the other Members of the Classes because, among other things, all Members of
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`the Classes were comparably injured through Defendant’s uniform misconduct described above.
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`Further, there are no defenses available to Defendant that are unique to Plaintiff or to any particular
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`Members of the Classes.
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`68.
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`Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4). Plaintiff
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`is an adequate Class representative because her interests do not conflict with the interests of the
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`other Members of the Classes she seeks to represent; she has retained counsel competent and
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`experienced in complex class action litigation; and she will prosecute this action vigorously. The
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`Classes’ interests will be fairly and adequately protected by Plaintiff and undersigned counsel.
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`69.
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`Insufficiency of Separate Actions – Federal Rule of Civil Procedure 23(b)(1).
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`Absent a representative class action, Members of the Classes would continue to suffer the harm
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`described herein, for which they would have no remedy. Even if separate actions could be brought
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`by individual consumers, the resulting multiplicity of lawsuits would cause undue burden and
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`expense for both the Court and the litigants, as well as create a risk of inconsistent rulings and
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`adjudications that might be dispositive of the interests of similarly situated purchasers,
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`substantially impeding their ability to protect their interests, while establishing incompatible
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`standards of conduct for Defendant. The proposed Classes thus satisfy the requirements of Fed. R.
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`Civ. P. 23(b)(1).
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`70.
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`Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2).
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`Defendant has acted or refused to act on grounds generally applicable to Plaintiff and the other
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`Members of the Classes, thereby making appropriate final injunctive relief and declaratory relief,
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`as described below, with respect to the members of the Classes as a whole. In particular, Plaintiff
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`seeks to certify a Class to enjoin Defendant from selling or otherwise distributing the Products as
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`labeled until such time that Defendant can demonstrate to the Court’s satisfaction that the Products
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`confer the advertised health or medicinal benefits.
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`71.
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`Superiority – Federal Rule of Civil Procedure 23(b)(3). A class action is superior
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`to any other available means for the fair and efficient adjudication of this controversy, and no
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`unusual difficulties are likely to be encountered in the management of this class action. The
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`damages or other financial detriment suffered by Plaintiff and the other Members of the Classes
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`are relatively small compared to the burden and expense that would be required to individually
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`litigate their claims against Defendant, so it would be impracticable for Members of the Classes to
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`individually seek redress for Defendant’s wrongful conduct. Even if Members of the Classes could
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`afford individual litigation, the court system could not. Individualized litigation would create a
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`potential for inconsistent or contradictory judgments and increase the delay and expense to all
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`parties and the court system. By contrast, the class action device presents far fewer management
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`difficulties, and provides the benefits of single adjudication, economy of scale, and comprehensive
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`supervision by a single court.
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`CAUSES OF ACTION
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`Count I
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`Violations of New Jersey Consumer Fraud Act (“CFA”)
`N.J.S.A. § 56:8-1, et seq. (On Behalf of the National Class)
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`72.
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`Plaintiff, individually and on behalf of the Members of the Class, incorporates by
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`reference all of the foregoing paragraphs of this Complaint, as if fully alleged herein.
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`73.
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`The CFA was enacted and designed to protect consumers against unfair, deceptive
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`and fraudulent business practices. N.J. Stat. Ann. §56:8-1, et seq.
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`74.
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`N.J. Stat. Ann. §56:8-2 provides:
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`The act, use or employment by any person of any unconscionable
`commercial practice, deception, fraud, false pretense, false promise,
`misrepresentation, or the knowing concealment, suppression, or
`omission of any material fact with intent that others rely upon such
`concealment, suppression or omission, in connection with the sale
`or advertisement of any merchandise or real estate, or with the
`subsequent performance of such person as aforesaid, whether or not
`any person has in fact been misled, deceived or damaged thereby, is
`declared to be an unlawful practice . . . .
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`Plaintiff, other members of the Class, and Defendant are “persons” within the
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`75.
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`meaning of the CFA.
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`76.
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`The mislabeled Product sold by Defendant is “merchandise” within the meaning of
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`the CFA, and Plaintiffs and other members of the Class are “consumers” within the meaning of
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`the CFA and, thus, are entitled to the statutory remedies made available in the CFA.
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`77.
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`Defendant, through its advertisements and labeling, used unconscionable
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`commercial practices, deception, fraud, concealment, false promises, and misrepresentations, in
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`violation of the CFA, in connection with the marketing and sale of the Products.
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`78.
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`Further, Defendant knowingly concealed and omitted material facts to the Plaintiff
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`and Members of the Class regarding the ingredients in the Products. These deceptive acts and
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`omissions caused Plaintiff and Members of the Class to s