templeton v pom wonderful

8/3/2019 Templeton v Pom Wonderful

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UNITED STATES DISTRICT COUR TSOUTHER DISTRICT OF GEORGIASAVANNA H DIVISION

W. REX TEM PLETON, JR.,Individually and on behalfall others similarly situated,Plaintiff,V41253V.ivil Action No.P O M W O NDE RF UL, L i . C, a D elaware

corporation and ROLL INTERNATIONALCORPORATION, a Delaware corporation,Defendants.

COMPLAINTCO M E S NO W Plaintiff, . W, R ex Te mpleton, Jr,, individually and on behalf of all

Georgia residents si:mi1ariy:sit.ated, in the above -styled caption and files this hisCom plaint against Defendants POM W onderful, LL C ( '"POM") and ROL LINTERN ATIONA L COR PORA TION ("Roll") (collectively, "Defendants") and showsthe following:

I.NTRODUCTION1 .his is an action for damages arising from D efendants knowing and willfuldeception of Georgia consumers with respect to its POM W onderful pomegranateproducts, inciuding,.but not .limitedto, juices, pills, extracts, and concentrated liquids.Case 4:12-cv-00053-BAE-GRS Document 1 Filed 02/16/12 Page 1 of 14


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2. Specifically, this is an action forvioiationof the Georgia UniformDeceptive Trade Practices Act, O.C.G.A. : 10-1-370 et seq. in connection withDefendants' deceptive, misleading, false and/or misrepresentations of fact when selling toconsumers, .POM Wonderful products which contain special health benefits where suchproducts do not, in fact, contain said benefits.

3. This is also an action for unjust enrichment, because Defendants directly(and wrongfully) benefitted financially from misrepresentations and false statements

regarding one of the essential characteristics of its POM Wonderful pomegranateproducts. It would be inequitable for Defendants to retain the monies received fromGeorgia consumers as a result of Defendants' unfair, deceptive, and misleading businesspractices.

4. This action is brought on behalf of all Georgia consumers who fromSeptember 29, 2006 to the present purchased POM Wonderful pomegranate products.

IL JURISDICTION, PARTIES AND VENUE5...Plaintiff W. Rex Templeton, Jr. is a resident of the State of Georgia,

Chatham Countyounty and is otherwise su i juris. Plaintiff purchased and paid for POMWonderful pomegranate products during the class period.

6.efendant POM WONDERFUL, LLC ("POM") is incorporated in the Stateof Delaware and is headquartered in Los Angeles, California, POM promotes, markets,Page -2-.Case 4:12-cv-00053-BAE-GRS Document 1 Filed 02/16/12 Page 2 of 14


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distributes and sells POM Wonderful pomegranate products throughout the United States,including to tens of thousands .of.Ec.o.nsurners in. the State of Georgia.

7,efendant ROLL INTERNATIONAL CORPORATION ("Roil") isincorporated in the State of Delaware and is headquartered in Los Angeles, California.Roll assists POM in its false and misleading advertising to tens Of thousands ofconsumers in Georgia.8 .his Court has jurisdiction pursuant to 28 U.S.C. 1332 because this is aclass action, as defined by 28 U.S.C. 1332(1)(B), in which member of the putativeclass is a citizen of a different state than Defendants and the amount in controversyexceeds the sum or value of $5000,000. See 28 U.S.C. 1332(d)(2).

9,his Court has jurisdiction over Defendants because 'Defendants havesufficient minimum contacts with Georgia and/or otherwise intentionally avail themselvesof the markets in Georgia. Defendants sell products or services within the State ofGeorgia and in Chatham County, rendering the exercise ofjurisdicti.on by Georgia courtspermissible under traditional notions of fair play and substhtial justice.

10. Venue is proper in this district because a substantial part of the eventsand/or omissions, giving rise to Plaintiffs claims occurred in this district, many keywitnesses are located in this district, and Defendants have the means to defend thislawsuit in this district,

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Case 4:12-cv-00053-BAE-GRS Document 1 Filed 02/16/12 Page 3 of 14


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III. NATURE OF THE ACTION1 I .ince 2002 , POM and Roll have created advertising cam paigns for,

marketed and sold POM W onderful pomegranate products, including, but not limited to ,juices, pills, extracts, and concentrated liquids.

12. Through an extensive and comprehensive nationwide public marketingcamp aign and on: its various websites, among other places, Defendants have prom oted theconsum ption of POM W onderful pomegranate products to consumers as havingspecial health benefits, including but not limited to the prevention mitigation, and/ortreatment of the following: (a) Atherosclerosis; (b) Blood Flow/Pressure; (c ) ProstateCancer; (d) Erectile Function; (e) Cardiovascular Disease; (f) Reduce L DLCholesterol; (g) and other ag e-related medical conditions.

13. Defendants claim in their advertising and labeling that its products,including POM W onderful pomegranate, are "backed by $25 million in medicalresearch," "backed by $25 million in bulletproof medieai : : research," or that "POM is theonly pomegranate com pany whose p roducts are backed by $34 m illion in scientificresearch."

14. According to the market data firm Information Resources Inc annual salesof POM juices have risen from $12 million in 2003 to $91 m illion in 2010.

15. In 2005, the N ational Advertising Division ("NAD ") of the. Council ofBetter Business Bureaus found that the medical research PO M relied on was inadequate

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to sib.. thnU.*ePQM's claim that drinking eight ounces of POM pomegranate juice perday can reduce arterial plaque by up to 30% or prevent plaque build-up in healthy people.

16 . Again, in 2006, NAD found that POMs research did not substantiate itsclaims that POM Wonderful pomegranate products contains "more naturally occurringantioxidants than any other drink," and that drinking its pomegranate juice can helpprevent premature aging, cancer, heart disease, arterial plaque build-up, stroke,Alzheirner 1 s disease, or any other disease.

17. In 2009, the United Kingdom's Advertising Standards Authority :(11ASA")considered the evidence submitted by POM Wonderful to support the antioxidant benefitsof pomegranate juice but concluded that it fell short of showing any direct relationbetween consuming the product and a longer life. As a result, the ASA found POMadvertisements exaggerated the health benefits associated With drinking the products.

18. In 2010, the U.S. Food and Drug Administration ("FDA") sent a warningletter to the president of POM declaring that the claims made by POM, through itslabeling and webs ite, violated the Federal Food, Drug, and Cosmetic Act ("FDA Act").The FDA cautioned that the claims made by POM established the product as a drug,because it appeared the intended use was for the mitigation, treatment or prevention ofdisease and these claims had not been substantiated through any reliable medicalresearch. The FDA further found that POM's marketing was in direct violation of theFDA Act.

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19.n or about: Fr ary3, 2010, the FDA further determined thatP()MWonderful pomegranate products are misleading because the product label bears.anutrient content claim but does not meet the requirements to make the claim.

20. On September 27, 201 0,. the Federal Trade Commission filed anadm inistrative com plaint, (' t FTC Complaint") against Defendants for their false andmisleading advertisements. According to.. the FTC Complaint, Defendants make thefollowing non-exclusive list of unfair, deceptive, and/or false claims, expressly or by

implication, to induce unwitting consumers into purchasing tbir POM Wonderfulpomegranate products:

Drinking eight ounces of POM Juice, or taking one POMx Pill 0 oneteaspoon of POMx Liquid, daily, prevents or reduces the risk of heartdisease, including by (1) decreasing arterial plaque, (2) lowering bloodpressure, and/or (3) improving blood flow to the heart;Drinking eight ounces of POM Jlic, or taking one POMx Pill or oneteaspoon of POMx Liquid, daily, treats heart disease, including by (1)decreasing arterial plaque, (2) lowering blood pressure, and/or (3)improving blood flow to the heart.Drinking eight ounces of POM Juice, or taking one POMx Pill, or oneteaspoon of POMx Liquid, daily, prevents or reduces the .. .risk of prostatecancer, including by prolonging prostate-specific antigen doubling time

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('P SAD 1")Drinking: eight ounces of POM Juice, or taking one POMx Pill or oneteaspoon of POMx Liquid, daily, treats prostate cancer, including byprolonging PSADT;Drinking eight ounces of POM Juice daily prevents or reduces the risk oferectile dysfunction;Drinking eight ounces of POM Juice daily treats erectile dysfunction.

21.efendants did not possess or rely on any reasonable basis thatsubstantiated tberepresentations, making the representation both false and misleading.

22efendants' disease prevention and disease mitigation claims at issue in thiscase are deceptive, and misleading because they had no reasonable basis thatsubstantiated these representation at the time the representations were made. Therefore,these representations are false, misleading and reasonably likely to deceive the public.

23. As a result of the misleading messages conveyed through its campaign,P.OM has been able to charge a significant price premium for POM Wonderfulpomegranate.

24,efendants' actions above were specifically perpetrated to deceive thePlaintiff, class members, and general public, and are in violation of the GeorgiaDeceptive Trade Practices Act (OC.G.A. 10-1-370 et seq.).

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IV. CLASS REPRESENTATION ALLEGATIONS25. This action is proper for, class treatment under Rules 23(b)(1)(8) and

23(b)(3) of the Federal Rules of Civil Procedure. The proposed class is so numerous that.individual joinder of all members is impracticable. While the exact number and identitiesof the class members are unknown to Plaintiff at this time, Plaintiff is informed, andbelieves that the number of class members is in the thousands.

26. Plaintiff brings this action on his own behalf and on behalf of the following

class:All Georgia consumers who, from September 29, 2006 to the present,purchased Defendants' POM Wonderful pomegranate products.27. Although the precise number of members of the class is presently unknown,

upon information and belief, there are hundreds of thousands of consumers statewide whoar..putative class members, and Plaintiff does not anticipate a challenge to thisapproximation by Defendants. Joinder of all consumers with similar claims wouldbe impractical. The proposed class size satisfies the requirement of Federal Rule ofCivil Procedure 23.

28 . Plaintiff is a member of the class defined herein. Plaintiff purchased POMWonderful pomegranate products during, the class period.

29 . Plaintiff's claim are typical of the claims of all class members in that allputative class members purchased POM Wonderful pomegranate products.

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30.o antagonism or conflict exist between the interests of the representativePlaintiff and the interests of other class members, and Plaintiff is fully prepared todiligently pursue this case on behalf of all class members..

31. Plaintiff's counsel is experienced in class action litigation andwell-qualified to conduct this litigation.

32. Questions of law and fact arise from. Defendants' conduct described herein.Such questions are common to all Class members and predominate over any questionsaffecting only individual Class members.

33. Common questions of law or fact here include, without limitation:a. Whether POM Wonderful pomegranate products contain the health

benefits as marketed by the Defendants:b. Whether Defendants relied upon proper science in making the health

benefit claims associated with their POM Wonderful pomegranateproducts;

C.hether Defendants violated Georgia Uniform Deceptive TradePractice Act in connection with Defendants' deceptive, unfair,, falseand misleading practice of selling to consumers POM Wonderfulpomegranate products which did not contain the health benefits asmarketed and advertised by Defendants;

d.hether Defendants omitted or misrepresented material informationPage -9-Case 4:12-cv-00053-BAE-GRS Document 1 Filed 02/16/12 Page 9 of 14


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regarding the actual health benefits of their POM Wonderfulpomegranate products;

e. Whether Defendants have been unjustly enriched as a. result of thedeceptive, unfair and misleading business practices described herein;

f. Whether Plaintiff and Class members have sustained monetary lossand the proper measure of that loss;

g. Whether Plaintiff and Class members are entitled to an award ofpunitive damages; and

h. Whether Plaintiff and Class members are entitled to declaratory andinjunctive relief as to whether Defendant has adequate substantiationfor its claims prior to making them.

34.ursuant to Federal Rule of Civil Procedure 23, a class action is superior tothe other available methods for the fair and efficient adjudication of the controversybecause, among other things, it is desirable to concentrate the litigation of the classmembers' claims to one forum, since it will conserve party and judicial resources andfacilitate the consistency of adjudications. Furthermore, as the damages suffered byindividual class members may be relatively modest,. their interest in maintaining separateactions is questionable and the expense and burden of individual litigation makes itimpracticable for them to seek individual redress for the wrongs done to them. Plaintiffknows of no difficulty that would be encountered in the management of this case that

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would preclude its maintenance as a class action.VCAUSES OF ACTION

COUNT 1 VIOLATIONS OF THE GEORGIAUNIFORM DECEPTIVE TRADE PRACTICES ACT35. This: is a claim for violation of Georgia's Uniform Deceptive Trade

Practices Act O.C.G.A 10-1-3 70 et seq.36. Georgia's Deceptive Trade Practices Act provides that a person engaged in

deceptive trade practice when in the course of business . he represents that goods havesponsorship, approval., characteristics ingredients, uses, or benefits that they do nothave, .O.C.G.A. 1.0-1-372(a)(5).

37. Georgia's Uniform Deceptive Trade Practices Act provides that false orfraudulent statements in advertising are prohibited. O.C.G.A. 10-1-421.

38. Plaintiff and the class members are persons," as defined and construedunder Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. 10-1-371.

39. The practices employed..by Defendants in marketing and selling their POMWonderful pomegranate products are deceptive, misleading, false and/or amisrepresentation of fact.

40pecifically, Defendants' practice of selling to consumers POM Wonderfulpomegranate products under the guise that they contain certain health benefits describedabove where such products do not in fact contain said health benefits is deceptive,misleading, false and/or a misrepresentation of fact.

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41.efendants. committed these acts in connection with the conduct of trade orcommerce in the advertisement of consumer products.42. Plaintiff and the class members suffered actual damages as a result of

Defendants' deceptive and unfair trade acts. Specifically, as a result. of Defendants'deceptive, misleading, false and unfair trade acts and practices, Plaintiff and the Classmembers suffered monetary losses associated with the purchase of the PO M Wonderfulpomegranate products. i.e. the purchase price of the products.

43. Defendants should be enjoined from continuing said conduct.WHEREFORE Plaintiff and the Class members demand an award against

Defendants for actual andior compensatory damages, in addition to the costs of thisproceeding and: attorney's fees, and such other relief as this Court deems just and proper.

COUNT Ti . . UNJUST ENRICHMENT44. Defendants received from Plaintiff and Class members certain monies as a

result: of Defendants' conduct listed above which are excessive and unreasonable, and arethe result of overcharging and overreaching.

45. As a result, Plaintiff and the Class have, conferred a benefit on Defendants,and Defendants have knowledge of this benefit and have voluntarily accepted andretained the benefit conferred on them.

46 . Defendants will be unjustly enriched if they are allowed to retain such_

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funds, and each Class member is entitled to an amount equal to the amount each classmember enriched Defendants and for which Defendants have been unjustly .. enriched,

WHEREFORE, Plaintiff and Class members demand an award against Defendantsfor the .amounts equal to the amount each class member enriched Defendants and forwhich Defendants have been unjustly enriched, and such other relief as this Court deemsjust and proper.

JURY DEMAND47 ,laintiff demands a trial by jury on all issues so triable.This 16' day of February, 2012.

T AT E L AW GR OU P , ..L L C

Is! Mark A. TateMark A. TateGeorgia Bar No.: 698820C. Dorian BrittGeorgia Bar No.: 083259

2 East Brya n Street. , Suite. 600Post Office Box 9060Savannah, Georgia 31412T. (912)F. (912) 234-9700

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OF COUNSEL:John R. Climaco, Esq.Clirnaco, Wilcox,. Pe.caTarantino & Garofoli Co. L.P.A.55 Public Square, Suite 1950Cleveland, Ohio 44113T: (912) 62I-844, Ext. 2265F.: 216-771-1632

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templeton v pom wonderful

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