1 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. …

Case 3:12-cv-00376-BTM-WMC Document 58 Filed 10/11/13 Page 1 of 82

1 LAW OFFICES OF RONALD

2 A. MARRON, APLC RONALD A. MARRON (SBN 175650)

3 ron@

4 ALEXIS WOOD (SBN 270200) alexis@

5 SKYE RESENDES (SBN 278511)

6 skye@ 651 Arroyo Drive

7 San Diego, California 92103

8 Telephone: (619) 696-9006 Facsimile: (619) 564-6665

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Attorneys for Plaintiffs and the Proposed Class

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

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KIM ALLEN, LAINIE RIDEOUT and KATHLEEN HAIRSTON, on

14 behalf of themselves, all others

Case No.: 3:12-cv-376-BTM (WMC) CLASS ACTION

Filed: February 10, 2012

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similarly situated, and the general public,

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Plaintiffs,

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THIRD AMENDED COMPLAINT FOR:

1) VIOLATION OF THE CONSUMERS LEGAL REMEDIES ACT, CAL. CIV. CODE ?? 1750, et seq.;

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SIMILASAN CORPORATION,

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Defendant.

2) VIOLATION OF THE UNFAIR COMPETITION LAW, CAL. BUS. & PR OF. CODE ?? 17200, et seq.;

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3) VIOLATION OF THE FALSE

ADVERTISING LAW, CAL. BUS. &

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PROF. CODE ?? 17500, et seq.;

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4) BREACH OF EXPRESS

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WARRANTY;

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5) BREACH OF IMPLIED

WARRANTY OF

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MERCHANTABILITY;

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Allen v. Similasan Corp., No. 3:12-cv-376-BTM (WMC) THIRD AMENDED COMPLAINT

Case 3:12-cv-00376-BTM-WMC Document 58 Filed 10/11/13 Page 2 of 82

6) VIOLATION OF MAGNUSON-

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MOSS ACT, 15 U.S.C. ?? 2301, et. seq.;

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7) VIOLATION OF FLORIDA

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DECEPTIVE AND UNFAIR TRADE

PRACTICES ACT, Fla. Stat. Ann ??

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501 201, et seq.;

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DEMAND FOR JURY TRIAL

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Allen v. Similasan Corp., No. 3:12-cv-376-BTM (WMC) THIRD AMENDED COMPLAINT

Case 3:12-cv-00376-BTM-WMC Document 58 Filed 10/11/13 Page 3 of 82

1

INTRODUCTION

2

1. Plaintiffs Kim Allen, Lainie Rideout and Kathleen Hairston ("Plaintiffs")

3 by and through their attorneys of record, bring this action on behalf of themselves, all

4 others similarly situated, and the general public, against Defendant Similasan

5 Corporation ("Defendant" or "Similasan").

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2. Defendant is the manufacturer and seller of homeopathic products that are

7 falsely or deceptively labeled in that the products do not work as advertised.

8 Nonetheless, Defendant claims its homeopathic products work effectively and have

9 provided healthy relief to millions of people for over 20 years. This complaint

10 concerns Defendant's homeopathic products known as "Stress & Tension Relief,"

11 "Anxiety Relief," "Sleeplessness Relief," "Ear Wax Relief," "Earache Relief," "Nasal

12 Allergy Relief," "Sinus Relief," "Allergy Eye Relief," "Dry Eye Relief" and "Pink

13 Eye Relief" (collectively the "Products").

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JURISDICTION AND VENUE

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3. This Court has original jurisdiction pursuant to 28 U.S.C. ?1332(d)(2), as

16 amended by the Class Action Fairness Act of 2005, because the matter in controversy,

17 exclusive of interest and costs, exceeds the sum or value of $5,000,000 and is a class

18 action in which some members of the Class of plaintiffs are citizens of states different

19 than Defendant. Further, greater than two-thirds of the Class members reside in states

20 other than the state in which Defendant is incorporated or has its principal place of

21 business.

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4. This Court has supplemental jurisdiction over the state law claims

23 pursuant to 28 U.S.C. ?1367.

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5. In addition, this Court has original jurisdiction over the federal claim

25 under the Magnuson-Moss Warranty Act pursuant to 28 U.S.C. ? 1331.

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6. Venue is proper in this Court pursuant to 28 U.S.C. ? 1391(b)(2) because

27 many of the acts and transactions, including the purchases and sales giving rise to this

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Allen v. Similasan Corp., No. 3:12-cv-376-BTM (WMC)

THIRD AMENDED COMPLAINT

Case 3:12-cv-00376-BTM-WMC Document 58 Filed 10/11/13 Page 4 of 82

1 action, occurred in this district and because Defendant (i) is authorized to conduct

2 business in this district, (ii) has intentionally availed themselves of the laws and

3 markets within this district through the promotion, marketing, distribution and sale of

4 its products in this district; (iii) does substantial business in this district; (iv) advertises

5 to consumers residing in this district, and (v) is subject to personal jurisdiction in this

6 district. See Dkt. No. 34 (Order); see also Venue Affidavits pursuant to California

7 Civil Code ? 1780(d), attached after attorney signature page.

8

THE PARTIES

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7. Plaintiff Kim Allen is a resident of Sarasota, Florida.

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8. Plaintiff Lainie Rideout is a resident of Hesperia, California.

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9. Plaintiff Kathleen Hairston is a resident of Alta Loma, California.

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10. Defendant Similasan Corporation is a Colorado corporation with

13 headquarters in Colorado, that produces, markets, and sells homeopathic products

14 throughout the United States. Defendant does substantial business in California,

15 including, but not limited to, extensive on-the-shelf presence of the Products in

16 hundreds of retail stores in California, including major chain stores such as

17 Walgreens, Target, CVS, Rite-Aid, and Walmart, among others; online marketing

18 through their website, , intended to reach consumers in

19 California, and, based on Plaintiffs' information and belief, print advertisements

20 directed at California consumers.

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11. Plaintiffs are informed and believe and thereon allege that at all times

22 herein mentioned each of the Defendant's employees was the agent, servant and

23 employee of Defendant, acting within the purpose and scope of said agency and

24 employment.

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INTRODUCTION

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12. Homeopathy seeks to stimulate the body's ability to heal itself by giving

27 very small doses of highly diluted substances. However, there is "little evidence" that

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Allen v. Similasan Corp., No. 3:12-cv-376-BTM (WMC)

THIRD AMENDED COMPLAINT

Case 3:12-cv-00376-BTM-WMC Document 58 Filed 10/11/13 Page 5 of 82

1 homeopathy is effective, much less that people understand homeopathic dilution

2 principles. See nccam.sites/nccam.files/ homeopathy.pdf.

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13. Homeopathy is premised on two main principles; the principle of similars

4 and the principle of dilutions. Under the "principle of similars" a disease can be cured

5 by a substance that produces similar symptoms in healthy people. Id. Thus,

6 homeopathic drugs are intended to work by causing "aggravation," or a temporary

7 worsening of symptoms initially, a fact that is not communicated to consumers. See

8 id. & Ex. 1.

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14. Under the "principle of dilutions" the more diluted an ingredient is, the

10 more effective it becomes. nccam.sites/nccam.files/ homeopathy.pdf.

11 There is a very low probability that even a single molecule of the original substance is

12 present in the Product, but Defendant does not inform consumers of this material fact.

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15. The potency of the active ingredients in the Products, or dilution levels,

14 are marked by "X"s and "C"s. The dilution ratio of 6X, see, e.g., Ex. 1, is one part of

15 the original mother tincture to one million parts of the diluting material. Accordingly,

16 12X is one part to 1,000,000,000,00. "C" potencies are even more diluted than "X"

17 potencies.

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16. Homeopathic remedies are not marketed and sold in the United States in

19 the same manner as when they first originated, approximately 200 years ago. When

20 homeopathic drugs first originated, people would typically consult with a licensed

21 homeopathic practitioner, who would compound his or her own homeopathic remedy,

22 or provide a prescription to the patient. Food and Drug Administration ("FDA")

23 Compliance Policy Guide ("CPG") ? 400.400.

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17. Also, historically, homeopathic drugs were not labeled and there was no

25 direct-to-consumer advertising. Id. Instead, homeopathic remedies were primarily

26 marketed to licensed homeopathic practitioners. Id.

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Allen v. Similasan Corp., No. 3:12-cv-376-BTM (WMC)

THIRD AMENDED COMPLAINT

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