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MICHAEL FLANNERY (SBN 196266)[email protected] GILBERT & LADUCA, LLP11620 Wilshire BlvdSuite 900
Los Angeles, CA 90025Telephone: (202) 789-3960Fax: (202) 789-1813
Attorneys for Plaintiffs
[Additional Counsel on Signature Page]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
AMY FRIEDMAN, JUDI MILLER,and KRYSTAL HENRY-MCARTHUR, on behalf ofthemselves and all others similarlysituated,
Plaintiffs,
v.
GUTHY-RENKER LLC,
Defendant.
Case No.: 2:14-cv-06009-ODW-AGR
CLASS ACTION COMPLAINTFOR:
1.
BREACH OF WARRANTY 2. VIOLATION OF CALIFORNIA
UNFAIR COMPETITION LAW,Business & Professions Code§17200 et seq.
3.
VIOLATION OF CALIFORNIAFALSE ADVERTISING LAW,Business & Professions Code§17500 et seq.
4.
COMMON COUNTS/ASSUMPSI5. NEGLIGENCE — FAILURE TO
WARN;6.
NEGLIGENCE — FAILURE TOTEST; and
7.
STRICT PRODUCTS LIABILITY
DEMAND FOR JURY TRIAL
Case 2:14-cv-06009-ODW-AGR Document 34 Filed 11/03/14 Page 1 of 32 Page ID #:153
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LEWIS WAGNER, LLPDina M. Cox (admitted pro hac vice)[email protected] Indiana Avenue, Suite 200Indianapolis, IN 46202Telephone: 317-237-0500Fax: 317-630-2799
LATHAM & WATKINS LLPDavid J. Schindler (Bar No. 130490)[email protected] M. Jackson (Bar No# 257554)
[email protected] South Grand AvenueLos Angeles, CA 90071Telephone: 213-891-1234Fax: 213-891-8763
Attorneys for DefendantGuthy-Renker LLC
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
AMY FRIEDMAN and JUDIMILLER, on behalf of themselvesand all others similarly situated,
Plaintiffs,
v.
GUTHY-RENKER LLC,
Defendant.
Case No. 2:14-cv-06009-ODW-AGR
DEFENDANT GUTHY-RENKER
LLC’S ANSWER TO PLAINTIFF’S
FIRST AMENDED CLASS ACTION
COMPLAINT
Judge: Hon. Otis D. Wright, IIAction filed: July 31, 2014Trial Date: Not Set
DEMAND FOR JURY TRIAL
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Defendant Guthy-Renker LLC (“Guthy-Renker”), by counsel, hereby
responds to the First Amended Class Action Complaint and Demand for Jury Trial
filed by Plaintiffs Amy Friedman and Judi Miller (“Plaintiffs”) as follows. The
numbered paragraphs correspond to the numbering of the allegations in Plaintiffs’
complaint.
ANSWER
NATURE OF THE ACTION
1. Guthy-Renker admits that Plaintiffs purport to bring this matter as a
putative class action seeking the relief enumerated, but Guthy-Renker denies that
this matter is appropriate for class action treatment. Guthy-Renker lacks
knowledge or information sufficient to form a belief as to the truth of all remaining
allegations contained in Paragraph 1 of Plaintiffs’ First Amended Complaint and
therefore must deny them.
2. Guthy-Renker admits that the quoted language has appeared on its
website. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 2
of Plaintiffs’ First Amended Complaint.
3. Guthy-Renker denies the allegations contained in Paragraph 3 of
Plaintiffs’ First Amended Complaint.
4. Guthy-Renker denies the allegations contained in Paragraph 4 of
Plaintiffs’ First Amended Complaint.
5. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 5
of Plaintiffs’ First Amended Complaint.
6. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 6
of Plaintiffs’ First Amended Complaint.
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7. To the extent that Plaintiffs’ allegations in Paragraph 7 of the First
Amended Complaint reference insurance or settlement negotiations, Guthy-Renker
objects to those allegations because they are irrelevant and inadmissible. Guthy-
Renker admits that Plaintiff Friedman engaged in communications with Guthy-
Renker’s customer service representatives, and that Guthy-Renker asked questions
of Friedman to gain more information about her experience with the product
Guthy-Renker denies all remaining allegations contained in Paragraph 7 of
Plaintiffs’ First Amended Complaint.
8. Guthy-Renker admits that it has not recalled the WEN® Cleansing
Conditioner. Guthy-Renker denies that the product causes hair loss or that
customers have otherwise been damaged. Guthy-Renker denies all remaining
allegations contained in Paragraph 8 of Plaintiffs’ First Amended Complaint.
9. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 9
of Plaintiffs’ First Amended Complaint and therefore denies them.
10. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
10 of Plaintiffs’ First Amended Complaint.
11. Guthy-Renker admits that Plaintiffs purport to bring this matter as a
putative class action, but Guthy-Renker denies that this matter is appropriate for
class action treatment.
JURISDICTION AND VENUE
12. Guthy-Renker denies that this matter is appropriate for class action
treatment.
13. Guthy-Renker denies that this matter is appropriate for class action
treatment, and Guthy-Renker denies that it engaged in unlawful practices. Guthy-
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Renker admits that venue is proper. Guthy-Renker denies all remaining allegations
contained in Paragraph 13 of Plaintiffs’ First Amended Complaint.
14. Guthy-Renker admits that certain of its terms and conditions associated
with online purchases in the U.S. have dictated that the laws of the state of
California govern the purchase. Guthy-Renker denies all remaining allegations
contained in Paragraph 14 of Plaintiffs’ First Amended Complaint.
PARTIES
15. Guthy-Renker lacks knowledge or information sufficient to form a
belief as to the truth of the allegations contained in Paragraph 15 of Plaintiffs
Complaint and therefore must deny them.
16.
Guthy-Renker lacks knowledge or information sufficient to form a
belief as to the truth of the allegations contained in Paragraph 16 of Plaintiffs
Complaint and therefore must deny them.
17. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Krystal Henry-
McArthur’s claims were dismissed. No response to Paragraph 17 from Guthy-
Renker is necessary.
18. Guthy-Renker admits that its principal place of business is located at
3340 Ocean Park Blvd, Santa Monica, California and that it has transacted business
in this judicial district. Guthy-Renker denies all remaining allegations contained in
Paragraph 18 of Plaintiffs’ First Amended Complaint.
19. Guthy-Renker admits that certain of its terms and conditions associated
with online purchases in the U.S. have dictated that the laws of the state of
California govern the purchase. Guthy-Renker denies all remaining allegations
contained in Paragraph 19 of Plaintiffs’ First Amended Complaint.
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COMMON FACTS
20. Guthy-Renker admits the allegations contained in Paragraph 20 of
Plaintiffs’ First Amended Complaint.
21. Guthy-Renker admits that the quoted language appears on its website
and that it has been in operation since 1988. Guthy-Renker denies all remaining
allegations contained in Paragraph 21 of Plaintiffs’ First Amended Complaint.
22. Guthy-Renker admits that its website contains or has contained the
statements quoted in Paragraph 22. Guthy-Renker denies that its statements are
false or misleading. Because Plaintiffs have failed to identify the “marketing
material” to which they refer, Guthy-Renker lacks knowledge or information
sufficient to form a belief as to the truth of the remaining allegations contained in
Paragraph 22 of Plaintiffs’ Complaint and therefore must deny them.
23. The written instructions for use received by Plaintiffs speak for
themselves.
24. To the extent the allegations of Paragraph 24 refer to written
instructions for use received by Plaintiffs, they speak for themselves. Guthy-
Renker denies that its instructions for use are false or misleading, or that the
product is dangerous or causes hair loss.
25. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
25 of Plaintiffs’ First Amended Complaint.
26. To the extent that Plaintiffs’ allegations in Paragraph 26 of the First
Amended Complaint pose a rhetorical question, Guthy-Renker objects to those
allegations because they are improper pleading allegations and irrelevant. Guthy-
Renker admits that its website references or has referenced the study results as
quoted. Guthy-Renker denies all remaining allegations contained in Paragraph 26
of Plaintiffs’ First Amended Complaint.
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26.1 Guthy-Renker admits that the WEN® Cleansing Conditioner is
manufactured and sold in multiple formulations. Guthy-Renker admits that the
“study” quoted in Paragraph 26 (the second Paragraph 26 referenced in Plaintiffs’
First Amended Complaint) applies to the four WEN® Cleansing Conditioner
formulations referenced by Plaintiffs. Guthy-Renker admits that the products
contain some similar ingredients. Guthy-Renker denies all remaining allegations
contained in Paragraph 26 (the second Paragraph 26 referenced in Plaintiffs’ First
Amended Complaint).
27. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
27 of Plaintiffs’ First Amended Complaint.
28. Guthy-Renker admits that its product is free of defects in design or
manufacture and that it is safe and fit for its ordinary and intended use. Guthy-
Renker denies all remaining allegations contained in Paragraph 28 of Plaintiffs’
First Amended Complaint.
29. Guthy-Renker denies the allegations contained in Paragraph 29 of
Plaintiffs’ First Amended Complaint.
30. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
30 of Plaintiffs’ First Amended Complaint.
PLAINTIFF FRIEDMAN’S EXPERIENCE
31. Guthy-Renker admits that Plaintiff Amy Friedman purchased a WEN®
Hair Care Basic Kit containing WEN® Sweet Almond Mint Cleansing Conditioner
in January 2014 for $29.95. Guthy-Renker denies that the product is dangerous or
causes hair loss, and therefore no warning is or was required. Guthy-Renker lacks
1 Plaintiffs’ First Amended Complaint appears to have been numbered incorrectly, as the preceding paragraph is numbered the same as this paragraph.
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knowledge or information sufficient to form a belief as to the truth all remaining
allegations contained in Paragraph 31 of Plaintiffs’ First Amended Complaint and
therefore must deny them.
32. Guthy-Renker denies that the product is dangerous or causes hair loss
Guthy-Renker lacks knowledge or information sufficient to form a belief as to the
truth of all remaining allegations contained in Paragraph 32 of Plaintiffs’ First
Amended Complaint and therefore must deny them.
PLAINTIFF MILLER’S EXPERIENCE
33. Guthy-Renker admits that Plaintiff Judi Miller purchased WEN® Hair
Care Basic Kits containing WEN® Sweet Almond Mint Cleansing Conditioner in
June 2011 over the telephone. Guthy-Renker admits that Plaintiff Miller received
additional shipments of the product up until approximately 2014. Guthy-Renker
lacks knowledge or information sufficient to form a belief as to the truth of all
remaining allegations contained in Paragraph 33 of Plaintiffs’ First Amended
Complaint and therefore must deny them.
34. Guthy-Renker denies that the product is dangerous or causes hair loss.
Guthy-Renker lacks knowledge or information sufficient to form a belief as to the
truth of all remaining allegations contained in Paragraph 34 of Plaintiffs’ First
Amended Complaint and therefore must deny them.
35. Guthy-Renker denies that the product is dangerous or causes hair loss.
Guthy-Renker is informed and believes that Plaintiff Miller contacted the FDA
Guthy-Renker lacks knowledge or information sufficient to form a belief as to the
truth of all remaining allegations contained in Paragraph 35 of Plaintiffs’ First
Amended Complaint and therefore must deny them.
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PLAINTIFF HENRY-MCARTHUR’S EXPERIENCE
36. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Krystal Henry-
McArthur’s claims were dismissed. No response from Guthy-Renker is necessary.
37. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Krystal Henry-
McArthur’s claims were dismissed. No response from Guthy-Renker is necessary.
38. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Krystal Henry-
McArthur’s claims were dismissed. No response from Guthy-Renker is necessary.
ADDITIONAL COMMON FACTS
39. To the extent Plaintiffs’ allegations in Paragraph 39 of the First
Amended Complaint reference unverifiable and purported internet statements by
alleged consumers, Guthy-Renker objects to those allegations as being irrelevant
and containing inadmissible hearsay statements. Guthy-Renker denies that the
product is dangerous or causes hair loss. Guthy-Renker lacks knowledge or
information sufficient to form a belief as to the truth of all remaining allegations
contained in Paragraph 39 of Plaintiffs’ First Amended Complaint and therefore
must deny them.
40. Guthy-Renker lacks knowledge or information sufficient to form a
belief as to the truth of the allegations regarding blog complaints and YouTube
videos. Guthy-Renker denies that the product is dangerous or causes hair loss.
Guthy-Renker denies all remaining allegations contained in Paragraph 40 of
Plaintiffs’ First Amended Complaint.
CLASS ALLEGATIONS
41. Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
40 above as if set forth fully herein.
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42. Guthy-Renker admits that Plaintiffs purport to bring this action on
behalf of a class, but denies that this case is appropriate for class action treatment.
43. Guthy-Renker admits that Guthy-Renker, its affiliates, employees
officers and directors, persons or entities that purchased WEN® Cleansing
Conditioner for purposes of resale, and the Judge(s) assigned to this case would be
excluded from any definition of a class. Guthy-Renker denies that this case is
appropriate for class action treatment.
44. Although Guthy-Renker admits that Plaintiffs have purportedly
reserved the right to amend or modify their proposed class definitions, Guthy-
Renker denies that this case is appropriate for class action treatment.
45.
Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
45 of Plaintiffs’ First Amended Complaint.
46. Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
46 of Plaintiffs’ First Amended Complaint.
47.
Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Plaintiffs’ alleged claims
in assumpsit were dismissed. Guthy-Renker denies that this case is appropriate for
class action treatment. Guthy-Renker denies all remaining allegations contained in
Paragraph 47 of Plaintiffs’ First Amended Complaint.
48. Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
48 of Plaintiffs’ First Amended Complaint.
49. Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
49 of Plaintiffs’ First Amended Complaint.
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50. Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
50 of Plaintiffs’ First Amended Complaint.
51. Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
51 of Plaintiffs’ First Amended Complaint.
VIOLATIONS ALLEGED
COUNT I
BREACH OF WARRANTY
52. Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
51 above as if set forth fully herein.
53. Guthy-Renker admits that it sold WEN® Cleansing Conditioner in its
regular course of business, and that it sold at least one of several formulations of the
product to the named Plaintiffs. Guthy-Renker denies that this case is appropriate
for class action treatment. Guthy-Renker lacks knowledge or information sufficient
to form a belief as to the truth of all remaining allegations contained in Paragraph
53 of Plaintiffs’ First Amended Complaint and therefore must deny them.
54. Guthy-Renker admits that WEN® Cleansing Conditioner costs more
than five dollars. All remaining allegations of Paragraph 54 are legal conclusions
to which no response is required.
55. The allegations of Paragraph 55 are legal conclusions to which no
response is required.
56. As to the named Plaintiffs, Guthy-Renker admits that is was the
manufacturer and seller of the product at issue. However, Guthy-Renker denies
offering any warranties. All remaining allegations of Paragraph 56 are legal
conclusions to which no response is required.
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57. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
57 of Plaintiffs’ First Amended Complaint.
58. Guthy-Renker denies the allegations contained in Paragraph 58 of
Plaintiffs’ First Amended Complaint.
59. Guthy-Renker admits that the WEN® Cleansing Conditioner it sold to
the named Plaintiffs was merchantable, free from material defects, and fit for its
intended use. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
59 of Plaintiffs’ First Amended Complaint.
60.
Guthy-Renker denies the allegations contained in Paragraph 60 of
Plaintiffs’ First Amended Complaint.
61. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
61 of Plaintiffs’ First Amended Complaint.
62. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
62 of Plaintiffs’ First Amended Complaint.
63. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss or
other problems. Guthy-Renker denies all remaining allegations contained in
Paragraph 63 of Plaintiffs’ First Amended Complaint.
64. Guthy-Renker denies the allegations contained in Paragraph 64 of
Plaintiffs’ First Amended Complaint.
65. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
65 of Plaintiffs’ First Amended Complaint.
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66. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
66 of Plaintiffs’ First Amended Complaint.
COUNT II
VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW,
BUSINESS AND PROFESSIONS CODE § 17200, et seq.
67. Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
66 above as if set forth fully herein.
68. Guthy-Renker states that the California Business & Professions Code
cited by Plaintiffs in Paragraph 68 speaks for itself as codified in § 17200, et seq.
To the extent any of the allegations contained in Paragraph 68 are directed at
Guthy-Renker, Guthy-Renker denies such allegations in their entirety.
69. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss
Guthy-Renker denies all remaining allegations contained in Paragraph 69 of
Plaintiffs’ First Amended Complaint.
70.
Guthy-Renker denies the allegations contained in Paragraph 70 of
Plaintiffs’ First Amended Complaint.
71. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss
Guthy-Renker denies all remaining allegations contained in Paragraph 71 of
Plaintiffs’ First Amended Complaint.
72. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
72 of Plaintiffs’ First Amended Complaint.
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73. Guthy-Renker denies that it has engaged in any unlawful, unfair, or
fraudulent practices, and Guthy-Renker denies that Plaintiffs are entitled to any
relief.
COUNT III
VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW,
BUSINESS AND PROFESSIONS CODE § 17500, et seq.
74. Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
73 above as if set forth fully herein.
75. Guthy-Renker denies the allegations contained in Paragraph 75 of
Plaintiffs’ First Amended Complaint.
76.
Guthy-Renker denies the allegations contained in Paragraph 76 of
Plaintiffs’ First Amended Complaint.
77. Guthy-Renker denies the allegations contained in Paragraph 77 of
Plaintiffs’ First Amended Complaint.
78. Guthy-Renker denies the allegations contained in Paragraph 78 of
Plaintiffs’ First Amended Complaint.
79.
Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that it has made any false or misleading
statements, and Guthy-Renker denies that Plaintiffs are entitled to any relief.
Guthy-Renker denies all remaining allegations contained in Paragraph 79 of
Plaintiffs’ First Amended Complaint.
80. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that it has engaged in false advertising, and Guthy-
Renker denies that Plaintiffs are entitled to any relief. Guthy-Renker denies all
remaining allegations contained in Paragraph 80 of Plaintiffs’ First Amended
Complaint.
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COUNT IV
COMMON COUNTS/ASSUMPSIT
81. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Plaintiffs’ alleged claims
in assumpsit were dismissed. No response from Guthy-Renker is necessary.
82. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Plaintiffs’ alleged claims
in assumpsit were dismissed. No response from Guthy-Renker is necessary.
83. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Plaintiffs’ alleged claims
in assumpsit were dismissed. No response from Guthy-Renker is necessary.
84. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Plaintiffs’ alleged claims
in assumpsit were dismissed. No response from Guthy-Renker is necessary.
85. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Plaintiffs’ alleged claims
in assumpsit were dismissed. No response from Guthy-Renker is necessary.
86. Pursuant to the Court’s February 27, 2015 Order Granting in Part and
Denying in Part Defendant’s Motion to Dismiss (Dkt. 41), Plaintiffs’ alleged claims
in assumpsit were dismissed. No response from Guthy-Renker is necessary.
COUNT V
NEGLIGENCE - FAILURE TO WARN
87. Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
86 above as if set forth fully herein.
88. Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker admits that it was responsible for testing, manufacturing
inspecting, distributing, marketing, supplying, and selling the product at issue to the
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named Plaintiffs. Guthy-Renker denies all remaining allegations contained in
Paragraph 88 of Plaintiffs’ First Amended Complaint.
89. Guthy-Renker denies the allegations contained in Paragraph 89 of
Plaintiffs’ First Amended Complaint.
90. Guthy-Renker denies the allegations contained in Paragraph 90 of
Plaintiffs’ First Amended Complaint.
91. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss
Guthy-Renker denies all remaining allegations contained in Paragraph 91 of
Plaintiffs’ First Amended Complaint.
92.
Guthy-Renker denies that the product is dangerous or causes hair loss.
Guthy-Renker denies all remaining allegations contained in Paragraph 92 of
Plaintiffs’ First Amended Complaint.
93. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss
Guthy-Renker denies all remaining allegations contained in Paragraph 93 of
Plaintiffs’ First Amended Complaint.
94. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss or
that Plaintiffs suffered damages. Guthy-Renker denies all remaining allegations
contained in Paragraph 94 of Plaintiffs’ First Amended Complaint.
COUNT VI
NEGLIGENCE - FAILURE TO TEST
95. Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
94 above as if set forth fully herein.
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96. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
96 of Plaintiffs’ First Amended Complaint.
97. Guthy-Renker denies the allegations contained in Paragraph 97 of
Plaintiffs’ First Amended Complaint.
98. Guthy-Renker admits that it has a duty of reasonable care to its
customers as defined by the applicable law. All remaining allegations of Paragraph
98 are legal conclusions to which no response is required.
99. Guthy-Renker denies the allegations contained in Paragraph 99 of
Plaintiffs’ First Amended Complaint.
100.
Guthy-Renker denies that this case is appropriate for class action
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss
Guthy-Renker denies all remaining allegations contained in Paragraph 100 of
Plaintiffs’ First Amended Complaint.
101. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
101 of Plaintiffs’ First Amended Complaint.
102. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
102 of Plaintiffs’ First Amended Complaint.
COUNT VII
STRICT PRODUCTS LIABILITY
103. Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
102 above as if set forth fully herein.
104. Guthy-Renker admits that, with respect to the named Plaintiffs, it was
the manufacturer and supplier of the product at issue. Guthy-Renker lacks
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knowledge or information sufficient to form a belief as to the truth of the
allegations contained in Paragraph 104 of Plaintiffs’ First Amended Complaint.
105. Guthy-Renker denies the allegations contained in Paragraph 105 of
Plaintiffs’ First Amended Complaint.
106. Guthy-Renker denies the allegations contained in Paragraph 106 of
Plaintiffs’ First Amended Complaint.
107. Guthy-Renker denies that this matter is appropriate for class action
treatment. Guthy-Renker denies that the product causes hair loss or that customers
have otherwise been damaged. Guthy-Renker denies all remaining allegations
contained in Paragraph 107 of Plaintiffs’ First Amended Complaint.
108.
Guthy-Renker lacks knowledge or information sufficient to form a
belief as to the truth of the allegations contained in Paragraph 108 of Plaintiffs
First Amended Complaint.
SEPARATE AND ADDITIONAL DEFENSES
In addition to the foregoing denials, Guthy-Renker reserves the right to rely
upon any of the following or any additional defenses to each claim asserted by
Plaintiffs to the extent that such defenses are supported by information developed
through discovery or by evidence at trial. Guthy-Renker further denies tha
Plaintiffs’ alleged injuries resulted from or were in any way connected with any act
omission, fault, conduct, or liability on the part of Guthy-Renker whether negligent
careless, unlawful, or of any nature alleged or otherwise, and denies that Guthy-
Renker was in any way negligent, careless, reckless, wanton, or unlawful.
By pleading these defenses, Guthy-Renker does not assume the burden of
proving any fact, issue, or element of a cause of action where such burden properly
belongs to Plaintiffs. Moreover, nothing stated herein is intended or shall be
construed as a concession that any particular issue or subject matter is relevant to
Plaintiffs’ allegations.
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FIRST AFFIRMATIVE DEFENSE(failure to state a claim)
1. Plaintiffs’ claims are barred, in whole or in part, because the
Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE(other defenses/presumptions)
2. Guthy-Renker is entitled to, and claims the benefit of, all defense and
presumptions set forth in or arising from any rule of law or statute in California
and/or any other law or statute that may be applicable.
THIRD AFFIRMATIVE DEFENSE
(lack of standing)
3. Plaintiffs have no standing to assert any of the claims set forth in the
Complaint or to seek restitution, either on their own behalf or as representatives of
any purported class, by reason of California’s Proposition 64, Article III of the
United States Constitution, and other applicable law.
FOURTH AFFIRMATIVE DEFENSE(legal compliance)
4. Plaintiffs’ claims are barred, in whole or in part, because Guthy-
Renker has been in compliance with all statutes, regulations, and other laws in
effect at the time of the conduct allegedly giving rise to Plaintiffs’ claims.
FIFTH AFFIRMATIVE DEFENSE(adequate remedies at law)
5. Plaintiffs and the classes they purport to represent are not entitled to
equitable relief because they have adequate remedies at law, and no threat of harm
exists to support a grant of a temporary restraining order or injunctive relief.
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SIXTH AFFIRMATIVE DEFENSE(estoppel)
6. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of
estoppel.
SEVENTH AFFIRMATIVE DEFENSE(waiver)
7. Plaintiffs’ claims are barred, in whole in part, by the doctrine of
waiver.
EIGHTH AFFIRMATIVE DEFENSE(laches)
8.
Plaintiffs’ claims are barred, in whole or in part, by the doctrine of
laches.
NINTH AFFIRMATIVE DEFENSE(plaintiffs’ negligence and failure to mitigate)
9. Plaintiffs’ alleged loss, damage, injury, harm, or deprivation alleged, if
any, was caused in whole or in part by Plaintiffs’ failure to exercise reasonable care
and diligence to mitigate these alleged damages.
TENTH AFFIRMATIVE DEFENSE(comparative fault and lack of causation)
10. Guthy-Renker avers that any award of damages in favor of Plaintiffs
must be decreased by the extent to which Plaintiffs’ own acts or omissions and by
the acts and omissions of their own principals and/or agents, or the subsequent,
superseding, or intervening acts or omissions of third parties, were a cause of said
damages. To the extent the foregoing is true, the damage alleged, if any, must be
diminished in whole or in part according to proof thereof at the time of trial.
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ELEVENTH AFFIRMATIVE DEFENSE(state of the art)
11. Plaintiffs’ claims are barred in that WEN® products were designed,
manufactured and labeled in a manner consistent with the state of the art at the
pertinent time.
TWELFTH AFFIRMATIVE DEFENSE(Guthy-Renker’s good faith)
12. Each cause of action is barred, in whole or in part, because Guthy-
Renker’s alleged actions, if any, respecting the matters alleged in the First
Amended Complaint, were at all times undertaken in good faith and in the absence
of malicious intent to injure Plaintiffs. Guthy-Renker’s alleged actions, if any, were
completed with legitimate business justification, provided adequate warnings of all
known or reasonably known risk associated with the use of its products, and
constituted a lawful, proper, and justified means of furthering the business of
Guthy-Renker. Accordingly, Plaintiffs are barred from relief under any allegations
contained in the First Amended Complaint.
THIRTEENTH AFFIRMATIVE DEFENSE(lack of notice, reliance, satisfaction of conditions)
13. Plaintiffs failed to give timely or any other proper notice of any
alleged breach of warranty to Guthy-Renker; Plaintiffs did not reasonably rely upon
any alleged warranty; Plaintiffs failed to satisfy all conditions precedent or
subsequent to the enforcement of such alleged warranty; and the alleged warranty
was appropriately disclaimed, excluded, fulfilled, or modified.
FOURTEENTH AFFIRMATIVE DEFENSE(claims unconstitutional)
14. Plaintiffs’ claims are barred in whole or in part by the applicable
provisions of the United States Constitution, the California Constitution, should it
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apply, and/or applicable Constitution of any other State or Commonwealth of the
United States whose laws might be deemed controlling in this case. These
provisions include, but are not limited to, the First Amendment to United States
Constitution, Article I, the Due Process Clause of the United States Constitution,
the Excessive Fines Clause of the United States Constitution, the Commerce Clause
of the United States Constitution, and Section 2 of the Constitution of the State of
California because Guthy-Renker’s commercial speech regarding WEN was neither
false nor misleading.
FIFTEENTH AFFIRMATIVE DEFENSE(other causes)
15.
Any verdict or judgment rendered against Guthy-Renker must be
reduced by those amounts that have been, or will, with reasonable certainty, replace
or indemnify Plaintiffs, in whole or in part, for any past or future claimed economic
loss, from any collateral source such as insurance, social security, worker's
compensation, or employee benefit programs.
SIXTEENTH AFFIRMATIVE DEFENSE(idiosyncratic reaction)
16. If Plaintiffs sustained injuries or losses as alleged in the First Amended
Complaint, such injuries or losses may have been caused by an individual,
idiosyncratic reaction.
SEVENTEENTH AFFIRMATIVE DEFENSE(settlement credits)
17. In the unlikely event that Guthy-Renker is found liable to Plaintiffs
Guthy-Renker is entitled to a credit or offset for any and all sums that Plaintiffs
have received or may hereafter receive by way of any and all settlements arising
from Plaintiffs' claims and causes of action. Guthy-Renker alternatively asserts its
right to a proportionate reduction of any damages based on comparative fault or the
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percentage of negligence attributable to Plaintiffs or to any settling tortfeasor under
California law and/or the laws of any other State or Commonwealth of the United
States whose laws might be deemed controlling in this case.
EIGHTEENTH AFFIRMATIVE DEFENSE(pre-existing and unrelated conditions)
18. If Plaintiffs sustained injuries or losses as alleged in the First Amended
Complaint, such injuries or losses resulted from Plaintiffs’ pre-existing and/or
unrelated medical, genetic, and/or environmental conditions, diseases, or illnesses,
subsequent medical conditions or natural courses of conditions for which Guthy-
Renker is not responsible.
NINETEENTH AFFIRMATIVE DEFENSE(lack of causation)
19. Any conduct on the part of Guthy-Renker allegedly causing Plaintiffs
alleged injuries was not a substantial cause or factor of actual injury or damage, if
any.
TWENTIETH AFFIRMATIVE DEFENSE(no breach of warranty)
20. Guthy-Renker did not breach any implied warranties or any warranties
created by law.
TWENTY-FIRST AFFIRMATIVE DEFENSE(no damages)
21. To the extent that Plaintiffs purport to seek relief on behalf of any
person who has not suffered any damages, the Complaint violates Guthy-Renker’s
right to due process under the United States and California Constitutions.
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TWENTY-SECOND AFFIRMATIVE DEFENSE(fees not recoverable)
22. To the extent Plaintiffs seek recovery of attorney’s fees, such fees are
not recoverable.
TWENTY-THIRD AFFIRMATIVE DEFENSE(no punitive damages)
23. Plaintiffs are not entitled to punitive damages because they cannot
meet the standard required for an award of such damages.
TWENTY-FOURTH AFFIRMATIVE DEFENSE(not appropriate for class action treatment)
24.
The claims in the Complaint are barred, in whole or in part, because
this case is not appropriate for class or representative treatment for a variety of
reasons, including but not limited to the following: the purported class is not
ascertainable or certifiable as such; Plaintiffs’ claims are not typical of those of the
purported class; the named Plaintiffs are not adequate representatives of the alleged
class that Plaintiffs seek to represent; Plaintiffs’ claims do not present common
issues and individual issues will predominate; class treatment will not be
manageable or superior; and the purported class has not suffered class-wide injury.
TWENTY-FIFTH AFFIRMATIVE DEFENSE(accord, satisfaction and prior release)
25. Some of Plaintiffs’ claims are barred by accord and satisfaction, or
prior release.
TWENTY-SIXTH AFFIRMATIVE DEFENSE(no causal connection)
26. There is no causal connection between any conduct of Guthy-Renker
and any alleged loss or damage which Plaintiffs contends they have sustained.
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TWENTY- SEVENTH AFFIRMATIVE DEFENSE(statute of limitations or repose)
27. Plaintiffs’ claims are barred, in whole or in part, by the applicable
statute of limitations and/or statutes of repose, including but not limited to
California Code of Civil Procedure §§ 335.1, 338, and 343, California Civil Code §
1783, and California Bus. & Prof. Code § 17208.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE(assumed risk)
28. Plaintiffs have full knowledge of all the risks, dangers, and hazards, if
any there were, and nevertheless voluntarily and with full appreciation of the
amount of danger involved, assumed the risk of loss to themselves.
TWENTY-NINTH AFFIRMATIVE DEFENSE(safe harbor)
29. The cause of action for violation of California Business and
Professions Code Section 17200 et seq. is barred by the safe harbor provided by
Guthy-Renker’s compliance with federal and/or state laws and regulations. See
Cel-Tech Comm., Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 182
(1999).
THIRTIETH AFFIRMATIVE DEFENSE(nonjoinder of indispensable parties)
30. The First Amended Complaint should be dismissed for nonjoinder of
indispensable parties.
THIRTY-FIRST AFFIRMATIVE DEFENSE(other causes)
31. If Plaintiffs suffered or sustained any loss, injury or damage, that loss,
injury or damage was proximately caused and contributed to by persons and entities
other than Guthy-Renker over whom Guthy-Renker exercised no control and had
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no opportunity to anticipate or right to control, and with whom Guthy-Renker had
no legal relationship by which liability could be attributed to it, including Plaintiffs
themselves. Therefore the liability of all responsible parties, named or unnamed
should be apportioned according to their proportionate degree of responsibility,
then the liability of Guthy-Renker, if any, should be reduced accordingly.
THIRTY-SECOND AFFIRMATIVE DEFENSE(normal course of business)
32. Guthy-Renker is not liable for the acts alleged in the First Amended
Complaint as their actions were carried out in the normal course of marketing and
manufacturing consumer products, and were necessarily incident to the rendition of
goods and services.
THIRTY-THIRD AFFIRMATIVE DEFENSE(no damages)
33. Guthy-Renker asserts that Plaintiffs have not been damaged in any
amount by the conduct, acts or omissions of Guthy-Renker. Furthermore, there are
no amounts to be restored to Plaintiffs in that Guthy-Renker has not taken or
retained any property or monies that they were not entitled to, nor have Plaintiffs
given up any property or monies to Guthy-Renker that they were entitled to keep.
THIRTY-FOURTH AFFIRMATIVE DEFENSE(unjust enrichment)
34. Guthy-Renker asserts that Plaintiff would be unjustly enriched if
allowed to recover any sums claimed to be due under the First Amended
Complaint.
THIRTY-FIFTH AFFIRMATIVE DEFENSE(punitive damages barred)
35. Any punitive damages claimed by Plaintiffs are in violation of and are
barred by the Constitution of the United States, including, but not limited to, the
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Due Process and Equal Protection Clauses contained in the Fifth and Fourteenth
Amendments to the United States Constitution; the Excessive Fines Clause of the
Eighth Amendment to the United States; the Double Jeopardy Clause in the Fifth
Amendment to the United States Constitution; the Tenth Amendment to the United
States Constitution; and common law, public policy, and applicable statutes and
court rules.
THIRTY-SIXTH AFFIRMATIVE DEFENSE(no oppressive, fraudulent or malicious acts)
36. To the extent California law is held to apply, Guthy-Renker alleges
that to the extent that Plaintiffs seek punitive or exemplary damages for an alleged
act or omission of Guthy-Renker, no act or omission was oppressive, fraudulent, or
malicious, under California Civil Code § 3294. Therefore, any award of punitive or
exemplary damages is barred. Any claim for punitive or exemplary damages is also
barred under California Civil Code § 3294(b).
THIRTY-SEVENTHN AFFIRMATIVE DEFENSE(speculative damages)
37.
The First Amended Complaint, and each purported claim contained
therein, is barred, in whole or in part, because the alleged sums to be restored to
allegedly injured parties, if any, are speculative, uncertain, and incapable of
calculation; thus, it is impossible to ascertain and allocate such alleged sums.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE(election of remedies)
38. The doctrine of election of remedies bars Plaintiffs’ ability to recover
under all the causes of action alleged in the First Amended Complaint.
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THIRTY-NINTH AFFIRMATIVE DEFENSE(mootness)
39. The claims of the First Amended Complaint are barred to the extent
they have become moot.
FORTIETH AFFIRMATIVE DEFENSE(failure to plead fraud with particularity)
40. Plaintiffs have failed to plead their fraud claim with the particularity
required by Fed. R. Civ. P. 9(b).
FORTY-FIRST AFFIRMATIVE DEFENSE(modification or alteration of product)
41.
The proximate cause of Plaintiffs’ alleged injuries was a modification
or alteration of the products at issue, which was not reasonably expected by Guthy-
Renker. Any injuries or expenses incurred by Plaintiffs were not caused by Guthy-
Renker, but may have been proximately caused, in whole or part, by the unforeseen
alteration, unintended use, misuse, or abuse of the products referenced in Plaintiffs
First Amended Complaint.
FORTY-SECOND AFFIRMATIVE DEFENSE(improper joinder)
42. The Complaint improperly joins Plaintiffs in the causes of action
asserted against Guthy-Renker because Plaintiffs’ right to relief, if any, does not
arise out of the same transaction, occurrence, or series of transactions or
occurrences, and Plaintiffs’ do not involve common questions of fact or law.
FORTY-THIRD AFFIRMATIVE DEFENSE(not misleading)
43. The business practices and or marketing statements of which Plaintiffs
complain through their California Business & Professions Code §§ 17200 and
17500 claims in the First Amended Complaint are not likely to mislead anyone.
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FORTY-FORTH AFFIRMATIVE DEFENSE(other affirmative defenses)
44. Guthy-Renker presently has sufficient knowledge or information upon
which to form a belief as to whether Guthy-Renker may have other, as yet unstated
affirmative defenses available. Therefore, Guthy-Renker reserves the right to assert
additional affirmative defenses in the event that discovery or any other investigation
indicates they would be appropriate.
PRAYER FOR RELIEF
Guthy-Renker denies that Plaintiffs or others are entitled to the relief sought
in the Prayer for Relief, or to any relief at all. Guthy-Renker further denies that this
case is appropriate for certification as a class action.
WHEREFORE, Guthy-Renker prays for judgment as follows:
1. That Plaintiffs take nothing by the First Amended Complaint;
2. That the Court enter judgment dismissing the First Amended
Complaint against Guthy-Renker, with prejudice;
3. That the Court award Guthy-Renker its reasonable expenses and costs
incurred in the defense of the First Amended Complaint; and
4. That the Court grant Guthy-Renker such relief as the Court may deem
proper.
//
//
//
//
//
//
//
//
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JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure and Rule 38-1 of
the Local Rules for the Central District of California, Guthy-Renker hereby
demands a trial by jury.DATED: March 27, 2015 Respectfully submitted,
By: /s/ Jonathan M. Jackson
LEWIS WAGNER, LLPDina M. Cox
LATHAM & WATKINS LLPDavid J. SchindlerJonathan M. Jackson
Attorneys for Defendant Guthy-Renker LLC
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NATURE OF THE ACTION
Plaintiffs Amy Friedman, Judi Miller, and Krystal Henry-McArthur
(collectively “Plaintiffs”), on behalf of themselves and all others similarly situated
by their undersigned attorneys, allege as follows:
1. This is a class action brought by Plaintiffs, on behalf of themselves
and other similarly situated persons, against Guthy-Renker LLC (“Guthy-Renker ”
or “Defendant”). Plaintiffs seek damages and equitable remedies for themselves
and the Class (defined in ¶ 41, below), which includes consumers who have
purchased WEN Cleansing Conditioner haircare products, in the following
variations: Sweet Almond Mint, Lavender, Pomegranate and Summer HoneyPeach (“WEN Cleansing Conditioner” or the “Products”).
2. As described below, an inherent design and/or manufacturing defect
in Defendant’s WEN Cleansing Conditioner causes significant hair loss
Defendant provides no warning about this consequence and, in fact, makes
numerous assertions about the gentle nature of the product. For example, on its
website, Defendant makes statements such as, “WEN® is gentle enough to use
every day” and “WEN® isn't like an ordinary shampoo so you want to use more of
it, not less. You can never use too much! The more you use, the better the results. ”
These statements and others, which related uniformly to all the Products, were and
are false and have harmed Plaintiffs and the Class. In fact, WEN products use
numerous harsh chemicals and known human allergens, such as
Hydroxycitronellal. As a result of the defective nature of the Products, they were
and are unfit for their intended use and purpose.
3. Once the hair loss caused by WEN Cleansing Conditioner begins, it
can often continue for weeks before abating, even if the consumer immediately
discontinues use of the product. The hair loss is not de minimus — consumers who
suffer hair loss often lose one quarter to one third of their hair, or more.
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Plaintiffs have suffered injury in fact and loss of money or property as the result of
their use of WEN Cleansing Conditioner.
4. This action arises from Defendant’s failure, despite its longstanding
knowledge of a material design defect, to disclose and/or warn Plaintiffs and other
consumers that WEN Cleansing Conditioner can and does cause substantial hair
loss. Indeed, not only did Defendant fail to warn consumers, it actively concealed
customers’ comments concerning hair loss, by blocking and/or erasing such
comments from the WEN Facebook page.
5. Further, based on inherent defects in the formula and/or manufacture
of the WEN Cleansing Conditioner, Defendant knew or should have known that itswarranties were being breached by the hair loss caused by the Products. Defendant
knew or should have known that Plaintiffs and Class members would suffer
damages as the result of the hair loss caused by WEN Cleansing Conditioner
Defendant concealed these facts from Class members, including Plaintiffs
Defendant’s failure to disclose this defect about which it knew or should have
known constitutes both an actionable misrepresentation and an unfair, unlawful
fraudulent, and deceptive business practice.
6. Plaintiffs and other Class members have been damaged by
Defendant’s concealment and non-disclosure of the defective nature of the
Products, because they were misled into purchasing WEN Cleansing Conditioner
of a quality and value different than they were promised. Guthy-Renker has
known about this issue for at least four years as the result of public complaints.
Guthy-Renker also knew or should have known about the hair loss issues caused
by WEN Cleansing Conditioner as the result of pre-release formulation and testing
Notwithstanding these complaints, Defendant has failed and/or refused to provide
an adequate remedy.
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7. Perhaps most striking about this situation is Defendant’s clear and
unambiguous knowledge of the hair loss caused by WEN Cleansing Conditioner.
For example, after complaining about hair loss caused by WEN Cleansing
Conditioner to the United States Food and Drug Administration, Plaintiff Friedman
received electronic communications from Defendant’s consumer affairs
department. One of these emails included more than two-dozen comprehensive
questions concerning Plaintiff Friedman’s use of WEN Cleansing Conditioner
Discovery in this litigation will undoubtedly demonstrate that Defendant
formulated these questions long ago and has repeatedly used them with
complaining consumers. Plaintiff Friedman subsequently receivedcommunications from Defendant’s apparent insurer, Chubb. Rather than address
this systemic problem, Defendant is apparently attempting to payoff consumers on
the cheap, sweep this problem under the rug and continue its lucrative business
selling its defective WEN Cleansing Conditioner.
8. Despite notice and knowledge of the problems caused by WEN
Cleansing Conditioner from the numerous consumer complaints it has received
information from third parties (including the United States Food and Drug
Administration), Guthy-Renker has not recalled the WEN Cleansing Conditioner,
or offered its customers proper compensation for their damages.
9. Had Plaintiffs and other Class members known about the problems
caused by WEN Cleansing Conditioner at the time of purchase, they would not
have purchased the product.
10.
As a result of Defendant’s practices, Plaintiffs and the other Class
members have suffered injury in fact, including economic damages.
11. Plaintiffs therefore bring this action on behalf of themselves and a
proposed Class of similarly situated purchasers of Guthy-Renker ’s WEN Cleansing
Conditioner.
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JURISDICTION AND VENUE
12. This Court has subject matter jurisdiction of this action pursuant to 28
U.S.C. §1332 of the Class Action Fairness Act of 2005 because: (i) there are 100
or more class members, (ii) there is an aggregate amount in controversy exceeding
$5,000,000, exclusive of interest and costs, and (iii) there is minimal diversity
because at least one plaintiff and defendant are citizens of different states. This
Court has supplemental jurisdiction over any state law claims pursuant to 28U.S.C. § 1367.
13. Venue is proper in this District pursuant to 28 U.S.C. §1391 inasmuch
as the unlawful practices are alleged to have been directed from this District.
Specifically, Defendant Guthy-Renker has its principal place of business in this
District, and Defendant regularly conducts and directs its business in and from this
District.
14. According to Defendant Guthy-Renker, the laws of the state of
California are to govern all purchases of the products at issue.
PARTIES
15. During all times relevant to this suit, Plaintiff, Amy Friedman
(“Friedman” or “Plaintiff Friedman”), has been a resident of the State of Florida,
and currently resides in St. Petersburg, Florida.
16.
During all times relevant to this suit, Plaintiff, Judi Miller (“Miller” or
“Plaintiff Miller”), has been a resident of the State of Maryland, and currently
resides in Glenwood, Maryland.
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17. During all times relevant to this suit, Plaintiff, Krystal Henry-
McArthur (“Henry-McArthur” or “Plaintiff Henry-McArthur”), has been a resident
of the State of Florida, and currently resides in Tampa, Florida.
18.
Defendant Guthy-Renker is an American corporation whose principal
place of business is located at 3340 Ocean Park Blvd, Santa Monica, California
At all times relevant to this complaint Defendant has transacted business in this
judicial district and has directed its international operations from this district
throughout the United States and the world.
19. According to Defendant Guthy-Renker, any and all claims regarding
its WEN Cleansing Conditioner are governed by the laws of the state of California.COMMON FACTS
20. At all relevant times herein, Defendant has developed, manufactured
marketed, sold and distributed WEN Cleansing Conditioner throughout the United
States.
21. On its website (www.guthy-renker.com) Defendant bills itself as
“direct marketing pioneers” and “one of the largest and most respected direct
marketing companies in the world, with distribution in 68 countries.” Defendant’s
website also indicates it has been in operation since 1988. Defendant sells its
products predominantly through celebrity-driven infomercials. The strong
majority of Defendant’s sales occur by phone. Guthy-Renker is best known for its
promotion and sale of Proactive Solution, but it sells six other beauty-related
products — including WEN haircare products.
22.
In its marketing materials and on the website for WEN haircare
products (www.wen.com), Defendant makes a variety of false and/or misleading
statements about WEN Cleansing Conditioner, including, but not limited to, the
following:
It seems like I'm using a lot of product. Can I use too much?
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http://www.guthy-renker.com/http://www.guthy-renker.com/http://www.guthy-renker.com/http://www.wen.com/http://www.wen.com/http://www.wen.com/http://www.wen.com/http://www.guthy-renker.com/
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WEN® isn't like an ordinary shampoo so you want to use more of it, notless. You can never use too much! The more you use, the better theresults.
(emphasis added).
Should I use the Cleansing Conditioner every day?That's up to you. Some people like to wash their hair daily. Others will go aday or two between washings. Although WEN® is gentle enough to useevery day, if you don't, you can combine 4-6 pumps of CleansingConditioner with a quarter-size amount of Styling Creme in a spray bottlewith water. Shake vigorously to mix completely. Spritz it on 12-18 inchesabove hair to provide a light mist. Shake out and restyle or fluff up yourhair!
(emphasis added).
Rinse hair thoroughly. Apply WEN® into your palms and rub together. Use10-16 pumps for short hair, 16-24 for medium length hair and 24-32 pumps
for long hair. If your hair is longer/thicker you may need to increase theamount of pumps.
(emphasis added).
Apply to scalp and hair, adding a splash of water to evenly distribute.WEN® has no harsh detergents or sodium lauryl sulfate, so it won't lather.Massage thoroughly into hair and leave on for the remainder of yourshower.
(emphasis added).
“WEN® Cleansing Conditioner is a revolutionary new concept in haircare. A 5-in-1 formula, this one product takes the place of your shampoo,conditioner, deep conditioner, detangler and leave-in conditioner. It cleanseshair thoroughly without lathering or harsh ingredients. It's designed notto strip your hair and scalp of natural oils, leaving your hair with morestrength, moisture, manageability and better color retention.
(emphasis added).
23. The instructions for using WEN Cleansing Conditioner does not vary between scents, and states:
CLEANSING YOUR HAIR IN 3 EASY STEPS:Step 1:Rinse hair thoroughly. Apply WEN® into your palms and rub together.Use 10-16 pumps for short hair, 16-24 for medium length hair and 24-32
pumps for long hair. If your hair is longer/thicker you may need toincrease the amount of pumps.
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Step 2:Apply to scalp and hair, adding a splash of water to evenly distribute.WEN® has no harsh detergents or sodium lauryl sulfate, so it won'tlather. Massage thoroughly into hair and leave on for the remainder ofyour shower.
Step 3:Rinse thoroughly and completely, massaging scalp and running fingersthrough to the ends.
ADDITIONAL USAGE TIPS:Apply 1/2 to 1 pump depending on hair length and texture as a leave-inconditioner to soaking wet hair. For best results, we highly suggest youcleanse, rinse and repeat, using half the recommended pumps for the first
cleanse, and the remaining half for the second cleanse. Unlike manyordinary shampoos, you may find you don't need to cleanse as often.
24. The emphasized statements are false and/or misleading, and through
the instructions on the product, Defendant expressly instructs consumers to use
tremendous amounts of the product, reinforcing these statements with assertions
that the product is gentle and you cannot possibly use too much. Defendant
encourages consumers to leave the product in their hair for long periods, but failsto provide direct instructions concerning the duration of application. Indeed
Defendant also encourages consumers to leave small amounts of the product in
their hair as a “leave-in conditioner ” and not wash it out at all. In reality, use of
Defendant’s product can and does cause significant hair loss when used in
accordance with Defendant’s limited instructions.
25. Due to Defendant’s false and misleading statements, Class members
purchased WEN Cleansing Conditioner with no reason to suspect or know the
dangers occasioned by use of the Products, and used tremendous amounts of the
product on their hair as instructed. Not until hair loss began could a Class member
have any reason to suspect that WEN Cleansing Conditioner is defective, and even
then might not immediately make the connection.
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26. Rather than acknowledging the dangers of using WEN Cleansing
Conditioner, Defendant further reinforces its false statements with summary of a
patently misleading “study”. Defendant’s “Features” study states:
In a 3-week study of users of WEN® Cleansing Conditioner, up to:
100% said hair was more moisturized!
97% noticed that WEN® added more shine!
95% reported that hair became more manageable
However, Defendant goes on to state (in much smaller print) that these results are
“not typical.” If the results are not typical, what purpose does this information
serve, other than to mislead potential consumers into purchasing Defendant’sdefective product?
26. Defendant sells its WEN Cleansing Conditioner in four different
scents: Sweet Almond Mint, Pomegranate, Lavender and Summer Honey Peach
The “study” quoted above applies to all four scents. In addition, the “Key
Ingredients" listed for all four scents does not differ:
KEY INGREDIENTS
Glycerin: A humectant that provides moisturizing benefits to the hair.
Chamomile Extract: Used for its soothing and calming properties.
Wild Cherry Bark: Formulated to help condition the hair.
Rosemary Extract: Designed to soothe hair.
Panthenol: Designed to help strengthen hair and restore resilience.
As a result, there is no discernable difference between the four scents other than
the smell.
27. As the direct and proximate result of Defendant’s false and misleading
statements, Plaintiffs and Class members have suffered injury in fact and a loss of
money or property through the out-of-pocket costs expended to purchase the WEN
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Cleansing Conditioner, as well as the costs of mitigating the hair loss occasioned
by Defendant’s products.
28. By marketing, selling and distributing WEN Cleansing Conditioner
from California to purchasers throughout the United States, Defendant made
actionable statements that WEN Cleansing Conditioner was free of defects in
design and/or manufacture, and that it was safe and fit for its ordinary intended use
and purpose.
29. By marketing, advertising, selling and distributing WEN Cleansing
Conditioner from California to purchasers throughout the United States, Defendant
made actionable statements that the ordinary use of the WEN CleansingConditioner would not involve undisclosed safety risks. Further, Defendant
concealed what it knew or should have known about the safety risks resulting from
the material defects in design and/or manufacture.
30. Defendant engaged in the above-described actionable statements,
omissions and concealments with knowledge that the representations were false
and/or misleading, and with the intent that consumers rely upon such concealment,
suppression and omissions. Alternatively, Defendant was reckless in not knowing
that these representations were false and misleading at the time they were made.
Defendant had exclusive access to data and research conducted prior and during
the design and manufacture phase of the development of WEN Cleansing
Conditioner that Plaintiffs and Class members could not and did not review.
PLAINTIFF FRIEDMAN’S EXPERIENCE
31.
After viewing advertisements for WEN Cleansing Conditioner
espousing its safe, innovative and gentle qualities, on or about January 29, 2014,
Plaintiff, Amy Friedman, purchased the Sweet Almond Mint basic kit directly from
Defendant for a price of $29.95. Plaintiff Friedman had previously used organic
shampoos and conditioners, which never caused abnormal hair loss. At no time
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did Defendant provide Plaintiff Friedman any warnings concerning the potential
dangers of using WEN Cleansing Conditioner.
32. Within two weeks of beginning use of her WEN Cleansing
Conditioner, Plaintiff Friedman began losing substantial and abnormal amounts of
hair. Plaintiff Friedman discontinued use, but the hair loss continued for
approximately three more weeks. Ultimately, Plaintiff Friedman lost one quarter
to one third of the hair on her head. As a result, Plaintiff Friedman, a nurse
practitioner by profession, was forced to expend substantial sums on vitamins and
supplements to attempt to regrow her very long hair. Additionally, Plaintiff
Friedman was forced to undertake expensive cosmetic solutions, such as hairextensions, to mask the hair loss.
PLAINTIFF MILLER’S EXPERIENCE
33. Plaintiff Miller first purchased WEN Cleansing Conditioners (Sweet
Almond Mint and Pomegranate) in June 2011. She purchased the WEN Cleansing
Conditioners by telephone after viewing Defendant’s advertisements regarding the
safe, innovative and gentle qualities of its WEN Cleansing Conditioners. After
initial purchases, Plaintiff Miller received automatic shipments of WEN Cleansing
Conditioners every few months, until January 21, 2014, when she called and
cancelled direct shipments. Plaintiff Miller used the WEN products consistent
with the instructions, in some instances using the product as a so-called “spa
treatment” and leaving it in her hair for extended periods of time.
34. Beginning in January 2013, Plaintiff Miller noticed that she was
losing abnormal amounts of hair. Not suspecting the WEN Cleansing Conditioner
was the culprit, Plaintiff Miller only stopped using the products in June 2014, when
she finally realized that she was losing substantial amounts of hair only in the areas
in which she applied WEN Cleansing Conditioner, among other places, on the
crown of her head.
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35. As a result of the hair loss caused by the WEN Cleansing
Conditioners, Plaintiff Miller was forced to expend substantial sums on vitamins,
supplements, and doctor visits to treat and attempt to regrow her hair and treat
other serious health issues caused by use of the products. Like Plaintiff Friedman
Plaintiff Miller also contacted the FDA concerning her negative experience with
WEN haircare products.
PLAINTIFF HENRY-MCARTHUR’S EXPERIENCE
36. Plaintiff Henry-McArthur is in the military (active duty), and
purchased WEN Cleansing Conditioner in June 2014 after seeing infomercials for
the products.37. A few weeks after she started using WEN Cleansing Conditioner
Plaintiff Henry-McArthur began noticing substantial hair loss and ceased using the
product immediately.
38. Plaintiff Henry-McArthur’s hair loss is further accentuated as a result
of the limited hairstyles available due to her military service.
ADDITIONAL COMMON FACTS
39. Plaintiffs’ experiences are by no means isolated or outlying
occurrences. Indeed, the internet is replete with examples of blogs and other
websites where consumers have complained of the exact same issues with WEN
Cleansing Conditioner. A very small sample1 of the numerous online
complaints — dating back several years — appears below:
http://community.qvc.com/forums/wen/topic/305237/hair-loss-after-
using-wen-products.aspxHair Loss After Using Wen Products Started 07/08/2012 at 10:26 AM in WEN | Last reply 11/15/2013 at 4:03AM byracerrn
1 Typographical and grammatical errors in the excerpted complaints have not beencorrected and remain as originally written.
Case 2:14-cv-06009-ODW-AGR Document 34 Filed 11/03/14 Page 12 of 32 Page ID #:164
http://community.qvc.com/forums/wen/topic/305237/hair-loss-after-using-wen-products.aspxhttp://community.qvc.com/forums/wen/topic/305237/hair-loss-after-using-wen-products.aspxhttp://community.qvc.com/forums/wen/index.aspxhttp://community.qvc.com/forums/wen/topic/305237/viewlast/hair-loss-after-using-wen-products.aspx#lastreplyhttp://community.qvc.com/communitymember/userid/602686/racerrn.aspxhttp://community.qvc.com/communitymember/userid/602686/racerrn.aspxhttp://community.qvc.com/forums/wen/topic/305237/viewlast/hair-loss-after-using-wen-products.aspx#lastreplyhttp://community.qvc.com/forums/wen/index.aspxhttp://community.qvc.com/forums/wen/topic/305237/hair-loss-after-using-wen-products.aspx
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I'm posting this note after losing massive amounts of hair in patches mostlyat the crown of my head, with smaller bald patches all over my scalp. Earlythis year (2012) I purchased the Wen i