Case 4:12-cv-00053-BAE-GRS Document 1

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UNITED STATES DISTRICT COURT SOUTHER DISTRICT OF GEORGIA SAVANNAH DIVISION

W. REX TEMPLETON, JR., Individually and on behalf all others similarly situated, Plaintiff,
V.

CV41253
Civil Action No.

POM WONDERFUL, Li .C, a Delaware corporation and ROLL INTERNATIONAL CORPORATION, a Delaware corporation, Defendants.

COMPLAINT COMES NOW Plaintiff,:. W, Rex Templeton, Jr,, individually and on behalf of all Georgia residents si:mi1ariy:sit.ated, in the above-styled caption and files this his Complaint against Defendants POM Wonderful, LLC ('"POM") and ROLL INTERNATIONAL CORPORATION ("Roll") (collectively, "Defendants") and shows the following:

I. 1.

INTRODUCTION

This is an action for damages arising from Defendants knowing and willful

deception of Georgia consumers with respect to its POM Wonderful pomegranate products, inciuding,.but not .limitedto, juices, pills, extracts, and concentrated liquids.

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2.

Specifically, this is an action forvioiationof the Georgia Uniform

Deceptive Trade Practices Act, O.C.G.A. : 10-1-370 et seq. in connection with Defendants' deceptive, misleading, false and/or misrepresentations of fact when selling to consumers, .POM Wonderful products which contain special health benefits where such products 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 pomegranate products. It would be inequitable for Defendants to retain the monies received from Georgia consumers as a result of Defendants' unfair, deceptive, and misleading business practices. 4. This action is brought on behalf of all Georgia consumers who from

September 29, 2006 to the present purchased POM Wonderful pomegranate products.

IL JURISDICTION, PARTIES AND VENUE 5... Plaintiff W. Rex Templeton, Jr. is a resident of the State of Georgia, Chatham County and is otherwise sui juris. Plaintiff purchased and paid for POM Wonderful pomegranate products during the class period. 6. Defendant POM WONDERFUL, LLC ("POM") is incorporated in the State

of Delaware and is headquartered in Los Angeles, California, POM promotes, markets,

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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, Defendant ROLL INTERNATIONAL CORPORATION ("Roil") is

incorporated 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 of consumers in Georgia. 8. This Court has jurisdiction pursuant to 28 U.S.C. 1332 because this is a

class action, as defined by 28 U.S.C. 1332(1)(B), in which member of the putative class is .a citizen of a different state than Defendants and the amount in controversy exceeds the sum or value of $5000,000. See 28 U.S.C. 1332(d)(2). 9, This Court has jurisdiction over Defendants because 'Defendants have

sufficient minimum contacts with Georgia and/or otherwise intentionally avail themselves of the markets in Georgia. Defendants sell products or services within the State of Georgia and in Chatham County, rendering the exercise ofjurisdicti.on by Georgia courts permissible under traditional notions of fair play and substhtial justice. 10. Venue is proper in this district because a substantial part of the events and/or omissions, giving rise to Plaintiffs claims occurred in this district, many key witnesses are located in this district, and Defendants have the means to defend this lawsuit in this district,

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III. NATURE OF THE ACTION 1 I . Since 2002. , POM and Roll have created advertising campaigns for,

marketed and sold POM Wonderful pomegranate products, including, but not limited to, juices, pills, extracts, and concentrated liquids. 12. Through an extensive and comprehensive nationwide public marketing

campaign and on: its various websites, among other places, Defendants have promoted the consumption of POM Wonderful pomegranate products to consumers as having
special health benefits, including but not limited to the prevention mitigation, and/or

treatment of the following: (a) Atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer; (d) Erectile Function; (e) Cardiovascular Disease; (f) Reduce LDL Cholesterol; (g) and other age-related medical conditions. 13. Defendants claim in their advertising and labeling that its products,

including POM Wonderful pomegranate, are "backed by $25 million in medical research," "backed by $25 million in bulletproof medieai : research," or that "POM is the only pomegranate company whose products are backed by $34 million in scientific research." 14. According to the market data firm Information Resources Inc annual sales

of POM juices have risen from $12 million in 2003 to $91 million in 2010. 15. In 2005, the National Advertising Division ("NAD") of the. Council of

Better Business Bureaus found that the medical research POM relied on was inadequate

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to sib.. thnU.*ePQM's claim that drinking eight ounces of POM pomegranate juice per day 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 its

claims that POM Wonderful pomegranate products contains "more naturally occurring antioxidants than any other drink," and that drinking its pomegranate juice can help prevent premature aging, cancer, heart disease, arterial plaque build-up, stroke, Alzheirner1s 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 benefits of pomegranate juice but concluded that it fell short of showing any direct relation between consuming the product and a longer life. As a result, the ASA found POM advertisements exaggerated the health benefits associated With drinking the products. 18. In 2010, the U.S. Food and Drug Administration ("FDA") sent a warning

letter to the president of POM declaring that the claims made by POM, through its labeling 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 of disease and these claims had not been substantiated through any reliable medical research. The FDA further found that POM's marketing was in direct violation of the FDA Act.

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19.

On or about: Fr ary3, 2010, the FDA further determined thatP()M

Wonderful pomegranate products are misleading because the product label bears.a nutrient content claim but does not meet the requirements to make the claim. 20. On September 27, 201 :0,. the Federal Trade Commission filed an administrative complaint, (' tFTC Complaint") against Defendants for their false and misleading advertisements. According to.. the FTC Complaint, Defendants make the following non-exclusive list of unfair, deceptive, and/or false claims, expressly or by implication, to induce unwitting consumers into purchasing tbir POM Wonderful pomegranate products: Drinking eight ounces of POM Juice, or taking one POMx Pill 0 one teaspoon of POMx Liquid, daily, prevents or reduces the risk of 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 Jlic, or taking one POMx Pill or one teaspoon 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 one teaspoon of POMx Liquid, daily, prevents or reduces the . .risk of prostate cancer, 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 one teaspoon of POMx Liquid, daily, treats prostate cancer, including by prolonging PSADT; Drinking eight ounces of POM Juice daily prevents or reduces the risk of erectile dysfunction; Drinking eight ounces of POM Juice daily treats erectile dysfunction. 21. Defendants did not possess or rely on any reasonable basis that

substantiated tberepresentations, making the representation both false and misleading. 22 Defendants' disease prevention and disease mitigation claims at issue in this

case are deceptive, and misleading because they had no reasonable basis that substantiated 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 Wonderful pomegranate. 24, Defendants' actions above were specifically perpetrated to deceive the

Plaintiff, class members, and general public, and are in violation of the Georgia Deceptive Trade Practices Act (OC.G.A. 10-1-370 et seq.).

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IV. CLASS REPRESENTATION ALLEGATIONS 25. 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 identities of the class members are unknown to Plaintiff at this time, Plaintiff is informed, and believes that the number of class members is in the thousands. 26. 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, Plaintiff brings this action on his own behalf and on behalf of the following

upon information and belief, there are hundreds of thousands of consumers statewide who
ar.. putative class members, and Plaintiff does not anticipate a challenge to this

approximation by Defendants. Joinder of all consumers with similar claims would be impractical. The proposed class size satisfies the requirement of Federal Rule of Civil Procedure 23. 28. Plaintiff is a member of the class defined herein. Plaintiff purchased POM

Wonderful pomegranate products during, the class period. 29. Plaintiff's claim are typical of the claims of all class members in that all

putative class members purchased POM Wonderful pomegranate products.

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30.

No antagonism or conflict exist between the interests of the representative

Plaintiff and the interests of other class members, and Plaintiff is fully prepared to diligently pursue this case on behalf of all class members.. 31. Plaintiff's counsel is experienced in class action litigation and

well-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 questions affecting 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 pomegranate products;
C.

Whether Defendants violated Georgia Uniform Deceptive Trade Practice Act in connection with Defendants' deceptive, unfair,, false and misleading practice of selling to consumers POM Wonderful pomegranate products which did not contain the health benefits as marketed and advertised by Defendants;

d.

Whether Defendants omitted or misrepresented material information

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regarding the actual health benefits of their POM Wonderful pomegranate products; e. Whether Defendants have been unjustly enriched as a. result of the deceptive, unfair and misleading business practices described herein; f. Whether Plaintiff and Class members have sustained monetary loss and the proper measure of that loss; g. Whether Plaintiff and Class members are entitled to an award of punitive damages; and h. Whether Plaintiff and Class members are entitled to declaratory and injunctive relief as to whether Defendant has adequate substantiation for its claims prior to making them. 34. Pursuant to Federal Rule of Civil Procedure 23, a class action is superior to

the other available methods for the fair and efficient adjudication of the controversy because, among other things, it is desirable to concentrate the litigation of the class members' claims to one forum, since it will conserve party and judicial resources and facilitate the consistency of adjudications. Furthermore, as the damages suffered by individual class members may be relatively modest,. their interest in maintaining separate actions is questionable and the expense and burden of individual litigation makes it impracticable for them to seek individual redress for the wrongs done to them. Plaintiff knows 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.

V.

CAUSES OF ACTION

COUNT 1 VIOLATIONS OF THE GEORGIA UNIFORM DECEPTIVE TRADE PRACTICES ACT 35. 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 have sponsorship, approval., characteristics ingredients, uses, or benefits that they do not have, .O.C.G.A. 1.0-1-372(a)(5). 37. Georgia's Uniform Deceptive Trade Practices Act provides that false or

fraudulent statements in advertising are prohibited. O.C.G.A. 10-1-421. 38. Plaintiff and the class members are persons," as defined and construed

under Georgia Uniform Deceptive Trade Practices Act, O.C.G.A. 10-1-371. 39. The practices employed..by Defendants in marketing and selling their POM

Wonderful pomegranate products are deceptive, misleading, false and/or a misrepresentation of fact. 40 Specifically, Defendants' practice of selling to consumers POM Wonderful

pomegranate products under the guise that they contain certain health benefits described above 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.

Defendants. committed these acts in connection with the conduct of trade or

commerce 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 Class members suffered monetary losses associated with the purchase of the PO M Wonderful pomegranate 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 this proceeding and: attorney's fees, and such other relief as this Court deems just and proper.

COUNT Ti.. UNJUST ENRICHMENT 44. Defendants received from Plaintiff and Class members certain monies as a

result: of Defendants' conduct listed above which are excessive and unreasonable, and are the 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 and retained 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 class member enriched Defendants and for which Defendants have been unjustly . enriched, WHEREFORE, Plaintiff and Class members demand an award against Defendants for the .amounts equal to the amount each class member enriched Defendants and for

which Defendants have been unjustly enriched, and such other relief as this Court deems
just and proper. JURY DEMAND 47, Plaintiff demands a trial by jury on all issues so triable.

This 16' day of February, 2012.

TATE LAW GROUP, ..LLC

Is! Mark A. Tate

Mark A. Tate Georgia Bar No.: 698820 C. Dorian Britt Georgia Bar No.: 083259

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

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

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