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CLASS ACTION COMPLAINT
CLARKSON LAW FIRM, P.C. Shireen M. Clarkson (SBN 237882) sclarkson@clarksonlawfirm.com Ryan J. Clarkson (SBN 257074) rclarkson@clarksonlawfirm.com Bahar Sodaify (SBN 289730) bsodaify@clarksonlawfirm.com Zach Chrzan (SBN 329159) zchrzan@clarksonlawfirm.com Nine Two Towers 9255 Sunset Blvd., Suite 804 Los Angeles, California 90069 Tel: (213) 788-4050 Fax: (213) 788-4070 Attorneys for Plaintiff and the Plaintiff Class
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA
Plaintiff Diane Hightree (“Plaintiff” or “Hightree”), individually and on behalf of all others
similarly situated, brings this class action complaint against Amplify, Ltd. (“Defendant” or
“Amplify”) and Does 1 through 10, inclusive (collectively referred to herein as “Defendants”) and
alleges as follows:
DIANE HIGHTREE, individually and on behalf of all others similarly situated,
Plaintiff,
vs.
AMPLIFY, LTD., and DOES 1 through 10, inclusive,
Defendants.
Case No. CLASS ACTION COMPLAINT 1. BREACH OF EXPRESS WARRANTY
2. BREACH OF IMPLIED WARRANTY
3. UNJUST ENRICHMENT
4. VIOLATION OF CALIFORNIA
CONSUMERS LEGAL REMEDIES ACT, CIVIL CODE § 1750, et seq.
5. VIOLATION OF CALIFORNIA FALSE ADVERTISING LAW, BUSINESS & PROFESSIONS CODE § 17500, et seq.
6. VIOLATION OF CALIFORNIA UNFAIR
COMPETITION LAW, BUSINESS & PROFESSIONS CODE § 17200, et seq.
DEMAND FOR JURY TRIAL
ELECTRONICALLY FILEDSuperior Court of CaliforniaCounty of Santa BarbaraDarrel E. Parker, Executive Officer3/20/2020 2:37 PMBy: Narzralli Baksh, Deputy
20CV01532
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1 CLASS ACTION COMPLAINT
SUMMARY OF THE ACTION
1. Defendant Amplify, Ltd. markets haircare products and skincare products under the
“Cel MD” brand.
2. Within the Cel MD brand, Defendant markets the Microstem Hair Stimulation
Formula, Microstem Shampoo, and Microstem Conditioner, and numerous other products which
claim to grow and repair hair as a purported hair loss solution, as well as a line of skin care products
advertised as anti-aging tools (collectively, the “Products”)1.
3. Defendant makes grand promises to men and women with thinning hair and/or hair
loss by claiming that its haircare Products “encourage new hair growth,” “fight hair loss,
“strengthen hair, “promote new hair growth, “use natural components [to] block the hormone DHT,
known to advance hair loss,” and “encourage high cell turnover to promote new hair growth.”
4. Defendant falsely touts its skincare Products as having the ability to “tighten,”
“rejuvenate,” and smooth lines from aging skin and lips, and the ability to “grow stronger, healthier
nails,” respectively.
5. These claims are false, misleading and deceptive.
6. The American Academy of Dermatology Association has concluded that topical
treatments such as Defendant’s haircare Products “cannot regrow hair or prevent hair from loss
from worsening.” The Products cannot prevent hair loss, nor can they re-grow hair where none
exists. The Products are incapable, when used either individually or collectively as “system,” of
producing the advertised results.
7. Defendant’s promises to change the texture and “age” of the skin and nails through
plant stem cells and collagen, among other things, in their skincare Products is patently falsely and
rejected by the scientific and medical communities.
8. Defendant intentionally misleads and shortchanges consumers by falsely and
deceptively misrepresenting the Products, when in reality, they are incapable of revitalizing or
restoring hair, skin and nails due to the aging process, or for any other chronic or acute reason. 1 The Products include the Microstem Hair Thickening Mask, Advanced Hair Supplement, Brow & Lash Booster, Nail Formula, Protective Skin & Lip Moisturizer, Complete Collagen + MCT, SPF 30 Skin Moisturizer, Stem Cell Face Mask, Neck & Decolletage Cream, and Nail & Cuticle Oil.
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9. This is a class action lawsuit brought on behalf of all purchasers (the “Class”) of the
Products, which are falsely and deceptively marketed and advertised in violation of California’s
consumer protection statutes.
PARTIES
10. Plaintiff Diane Hightree is, and at all times relevant hereto was, a citizen of California
residing in the county of Sacramento. Plaintiff purchased Defendant’s haircare Products in North
Highlands, California within the last two (2) years of the filing of this Complaint through
Defendant’s online website at www.cel.md. In making her purchase, Plaintiff relied upon
Defendant’s advertising claims that the Products “encourage new hair growth,” “fight hair loss,
“strengthen hair, “promote new hair growth, “use natural components [to] block the hormone DHT,
known to advance hair loss,” and “encourage high cell turnover to promote new hair growth,” as
set forth more fully below. These claims were prepared and approved by Defendant and their agents
and disseminated statewide and nationwide, to encourage consumers to purchase the Products. If
Plaintiff had known that the Products were in fact incapable of producing the advertised results, she
would not have purchased the Products.
11. Defendant Amplify, Ltd. is a limited company headquartered in New York, New
York. Amplify, Ltd. maintains its principal business office at 1375 Broadway, 15th Floor, New
York, New York, 10018. Amplify, Ltd. directly and through its agents, has substantial contacts with
and receives substantial benefits and income from and through the State of California. Amplify,
Ltd. is one of the owners, manufacturers, and distributors of the Products, and is one of the
companies that created and/or authorized the false, misleading, and deceptive packaging of the
Products.
12. The true names and capacities, whether individual, corporate, associate, or otherwise
of certain manufacturers, distributors, and/or their alter egos sued herein as DOES 1 through 10
inclusive are presently unknown to Plaintiff, who therefore sues these individuals and/or entities by
fictitious names. Plaintiff will seek leave of this Court to amend the Complaint to show their true
names and capacities when the same have been ascertained. Plaintiff is informed and believes and
based thereon alleges that DOES 1 through 10 were authorized to do and did business in Santa
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Barbara County. Plaintiff is further informed and believes and based thereon alleges that DOES 1
through 10 were and/or are, in some manner or way, responsible for and liable to Plaintiff for the
events, happenings, and unlawful and deceptive conduct hereinafter set forth below.
JURISDICTION AND VENUE
13. This Court has jurisdiction over all causes of action asserted herein pursuant to the
California Constitution, Article VI, section 10, because this case is a cause not given by statute to
other trial courts.
14. Plaintiff has standing to bring this action pursuant to the common law, as well as
California Consumers Legal Remedies Act, Civil Code section 1750, et seq.; California False
Advertising Law, Business and Professions Code section 17500, et seq.; and California Unfair
Competition Law, Business and Professions Code section 17200, et seq.
15. The Products are manufactured, labeled, advertised, distributed, and sold by
Defendants.
16. Out-of-state participants can be brought before this Court pursuant to the provisions
of California Code of Civil Procedure section 395.5.
17. Defendants are subject to personal jurisdiction in California based upon sufficient
minimum contacts which exist between them and California.
18. Venue is proper in this Court because Defendants conduct business in Santa Barbara
County, Defendants receive substantial compensation from sales in Santa Barbara County, and
Defendants made numerous misrepresentations that had a substantial effect in Santa Barbara
County, including distribution and sale of the Products throughout Santa Barbara, as well as
distribution of print media and internet advertisements.
FACTUAL ALLEGATIONS
19. Defendant claims that the Products are an efficacious means of delivering the
advertised haircare and skincare benefits.
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HAIRCARE
20. Defendant makes the following misrepresentations about the haircare Products both
on the Product’s packaging as well as on the official website for the Products at www.cel.md 2:
MICROSTEM HAIR STIMULATION FORMULA
“A concentrated oil-based blend of plant extracts, including Asparagus Stem Cells and Biotin, encourages new hair growth and fights hair loss” “Best for: thin, flat hair lacking volume” “Uses natural components [to] block the hormone DHT, known to advance hair loss” “Encourages high cell turnover to promote new hair growth” “Strengthens at the root to prevent breakages”
MICROSTEM SHAMPOO
“A powerful blend of scientifically-optimized plant extracts, including Ginseng and Biotin, cleanses and strengthens whilst promoting new hair growth.” “Best for: thin, flat hair lacking volume” “Strengthens each hair strand to prevent breakages” “Protects hair against day-to-day damage” “Encourages high cell turnover to promote new hair growth”
MICROSTEM CONDITIONER
“A powerful blend of scientifically-optimized plant extracts, including Ginseng and Biotin, strengthens and softens whilst promoting new hair growth.” “Best for: thin, flat hair lacking volume” “Strengthens each hair strand to prevent breakages” “Protects hair against day-to-day damage” “Encourages high cell turnover to promote new hair growth”
21. Defendant markets and sells an array of other substantially similar hair loss and hair
growth products which claim to be efficacious in their ability to deliver the advertised hair loss and
hair growth benefits, including, the Advanced Hair Supplement, Brow and Lash Booster, and
Microstem Hair Thickening Mask, (which are collectively included within the previously defined
“Products”).
22. The net impression of Defendant’s labeling and advertising is that the Products are a
hair loss solution which will stop hair loss and cause hair to grow.
2Statements have been taken from the Products’ packaging and Defendant’s official website: https://www.cel.md/hair-formula.php (last visited Mar. 11, 2020); https://www.cel.md/shampoo-conditioner.php (last visited Mar. 11, 2020).
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23. The Products are not advertised as able to restore and reactivate hair follicles at their
root which have been damaged by the aging process.
24. Defendants state that the Products stop hair loss and cause hair growth based on the
inclusion of several natural ingredients, including, asparagus stem cells, biotin, keratin, glycerin,
ginseng, and saw palmetto.
25. These ingredients cannot prevent hair loss or cause hair growth, either alone nor as
formulated within the Products, much less for all consumers regardless of age, health, skin, diet,
and other individual factors.
26. The Asparagus Stem Cell ingredient in the Products does not affect hair loss or hair
growth. Topical application of Asparagus Stem Cells will not prevent hair loss or cause hair to re-
grow. Leaders in the field of research on stem cells and hair loss agree that neither human stem
cells (derived from embryos or adult tissue) nor plant stem cells, including Asparagus Stem Cells,
can grow new hair follicles or help the quality of hair that is undergoing the influence of genetic
hair loss or any other kind of chronic or acute hair loss.
27. The Biotin ingredient in the Products does not affect hair loss or hair growth.
Consuming Biotin will only affect hair loss and hair re-growth if there is a deficiency, and only
when supplemented orally, in which case supplementing with Biotin may help reverse the hair loss
conditions. Topical application of Biotin, particularly in the absence of a deficiency, will not
prevent hair loss or cause hair to re-grow.
28. Keratin and Glycerin do not affect hair loss or hair growth. Keratin works by
smoothing down the cells that overlap to form individual hair strands, which may result in hair that
looks shiny and glossy. Glycerin is a humectant that helps hair retain moisture.
29. Ginseng cannot grow new hair follicles or help the quality of hair that is undergoing
the influence of genetic hair loss or any other kind of chronic or acute hair loss.
30. The Saw Palmetto ingredient in the Products does not affect hair loss or hair growth,
as advertised. To the extent it is “believed” that an extract of saw palmetto berries may block 5-
alpha-reductase, an enzyme that converts testosterone to DHT, which is the molecule responsible
for male pattern hair loss, such a benefit is not available through topical application, but rather only
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through oral supplementation. Nor would this have any effect females suffering from any type of
thinning or hair loss, which is generally not a result of DHY over-production.
31. According to the American Academy of Dermatology Association, topical treatments
such as the Products “cannot regrow hair or prevent hair from loss from worsening.”3
32. Experts within the field of dermatology and trichology confirm that topical treatments,
including the Products, which claim to prevent hair loss and regrow hair, do not work as advertised.
33. The Products cannot prevent hair loss and regrow hair that is thinning due to aging,
or other chronic or acute causes of hair loss.
34. The underlying causes of hair loss include a variety of factors, including but not
limited to, age, genetics, hormonal imbalance, malnutrition, disease, medications, infection, and
stress. None of these conditions can be “corrected” through topical application of the Products.
35. Defendant omitted material facts that the Products’ efficacy, to the extent there could
be any, would also depend upon individual factors, including, inter alia, age, genetics, hormone
balance, vitamin and nutrient levels, gender, diet, and prior existing health conditions.
36. The Food and Drug Administration (“FDA”) has found that products, like the
Products at issue, can be classified as a drug if they are intended to prevent hair loss and stimulate
hair growth.4 For example, the FDA sent a Warning Letter to the manufacturer of Soleo, stating
that products that are “labeled, represented, or promoted for external use as a hair grower or for hair
loss prevention are regarded as new drugs” and require FDA approval before they can be marketed.5
The Products are marketed as hair growers that combat hair loss and thus must satisfy FDA
guidelines before Defendant can make such claims.
37. The Products constitute a “drug” under the FDA guidelines, as Defendant explicitly
claims that they “encourage high cell turnover to promote new hair growth, and “use natural
components [to] block the hormone DHT, known to advance hair loss.” Products that are intended
3Thinning Hair and Hair Loss: Could it be Female Pattern Hair Loss?, AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION, https://www.aad.org/female (last visited Mar. 11, 2020). 4See, Is It a Cosmetic, a Drug, or Both? (Or is it Soap?) https://www.fda.gov/cosmetics/cosmetics-laws-regulations/it-cosmetic-drug-or-both-or-it-soap (last visited Mar. 11, 2020). 5Warning Letter Soleo, FDA (Dec. 13, 2018) https://www.fda.gov/inspections-compliance-enforcement-and-criminal-investigations/warning-letters/soleo-567046-12132018 (last visited Mar. 11, 2020).
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“for use in the cure, mitigation, treatment or prevention of disease and/or are intended to affect the
structure or any function of the human body” are rendered “drugs” under Section 201(g)(1)(cc) of
the Federal Food Drug and Cosmetic Act (“FDCA”).
SKINCARE
38. Defendant makes the following misrepresentations about the skincare Products both
on the Product’s packaging as well as on the official website for the Products at www.cel.md:
DECOLLETAGE & NECK CREAM
“Accelerated cell regeneration diminishes fine lines and wrinkles”
“Boosts cell activity to brighten, tighten and help skin appear more youthful” “Aging-prone skin, looking for a firming boost” “A rich and powerful moisturizer formulated specifically for the neck, jawline and decolletage area”
NAIL & CUTICLE OIL
“A powerful, nourishing oil formulated specifically to promote healthy nail growth and nourish cuticles” “Nourishes the cuticle to aid stronger nail growth” “Specific ingredients to rejuvenate dry, damaged nail beds” “Repairs and protects from fungus and other infections”
39. Defendant markets and sells an array of other substantially similar skincare and nail
products which claim to be efficacious in their ability to deliver the advertised anti-aging and
growth benefits, including, the Nail Formula, Protective Skin & Lip Moisturizer, Complete
Collagen + MCT, SPF 30 Skin Moisturizer, and Stem Cell Face Mask (which are collectively
included within the previously defined “Products”)
40. Plaintiff and the Class purchased the Products with the hope of tightening,
rejuvenating and smoothing their skin of wrinkles, as well as re-growing dry or damaged nails, due
to the aging process, based on the claims and promises Defendant makes with respect to the
Products.
41. Plaintiff and the Class made their purchasing decisions in reliance upon Defendant’s
advertised claims, including, but not limited to, that the Products will “tighten skin,” “brighten
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skin,” “rejuvenate skin,” “diminish dark circles,” “fight aging,” “diminish fine lines and wrinkles,”
and “help skin appear more youthful.”
42. Plaintiff reasonably and detrimentally relied upon the Products’ label indicating that
the Products were a solution to her aging skin and hair.
43. Plaintiff would not have purchased the Products had she known the Products were not
capable of producing the advertised benefits.
44. Defendants’ conduct threatens California consumers by using deceptive and
misleading labels. Defendants’ conduct also threatens other companies, large and small, who “play
by the rules.” Defendants’ conduct stifles competition, has a negative impact on the marketplace,
and reduces consumer choice.
45. There is no practical reason for the false or misleading labeling and advertising of the
Products, other than to mislead consumers as to the actual ingredients of the Products being
purchased by consumers.
46. Plaintiff makes the allegations herein upon personal knowledge as to herself and her
own acts and experiences, and as to all other matters, upon information and belief, including
investigation conducted by her attorneys.
CLASS ALLEGATIONS
47. Plaintiff brings this action on her own behalf and on behalf of all other persons
similarly situated. The Class which Plaintiff seeks to represent comprises: All persons who purchased the Products in the United States or, alternatively, the State of California, for personal use and not for resale during the time period of four years (4) prior to the filing of the complaint through the present.
Said definition may be further defined or amended by additional pleadings, evidentiary hearings, a
class certification hearing, and orders of this Court.
48. There is a well-defined community of interest in the questions of law and fact involved
affecting the parties to be represented. The questions of law and fact common to the Class
predominate over questions which may affect individual Class members. Common questions of law
and fact include, but are not limited to, the following:
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a. Whether Defendants’ conduct constitutes an unfair method of competition, or
unfair or deceptive act or practice, in violation of Civil Code section 1750, et seq.;
b. Whether Defendants used deceptive representations in connection with the
sale of the Products in violation of Civil Code section 1750, et seq.;
c. Whether Defendants represented the Products have characteristics or
quantities it does not have in violation of Civil Code section 1750, et seq.;
d. Whether Defendants advertised the Products with intent not to sell it as
advertised in violation of Civil Code section 1750, et seq.;
e. Whether Defendants’ labeling and advertising of the Products is untrue or
misleading in violation of Business and Professions Code section 17500, et seq.;
f. Whether Defendants knew or by the exercise of reasonable care should have
known their labeling and advertising was and is untrue or misleading in violation of Business and
Professions Code section 17500, et seq.;
g. Whether Defendants’ conduct is an unfair business practice within the
meaning of Business and Professions Code section 17200, et seq.;
h. Whether Defendants’ conduct is a fraudulent business practice within the
meaning of Business and Professions Code section 17200, et seq.;
i. Whether Defendants’ conduct is an unlawful business practice within the
meaning of Business and Professions Code section 17200, et seq.;
j. Whether Plaintiff and the Class paid more money for the Products than they
actually received; and
k. How much more money Plaintiff and the Class paid for the Products than they
actually received.
49. Plaintiff’s claims are typical of the claims of the Class, and Plaintiff will fairly and
adequately represent and protect the interests of the Class. Plaintiff has retained competent and
experienced counsel in class action and other complex litigation.
50. Plaintiff and the Class have suffered injury in fact and have lost money as a result of
Defendants’ false representations and material omissions. Plaintiff and the Class purchased the
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haircare Products under the false belief that they “encourage new hair growth,” “use natural
components [to] block the hormone DHT, known to advance hair loss,” and “encourage high cell
turnover to promote new hair growth.”
51. Plaintiff and the Class purchased the skincare Products under the false belief that they
“tighten skin,” “brighten skin,” “rejuvenate skin,” “diminish dark circles,” “fight aging,” “diminish
fine lines and wrinkles,” and “help skin appear more youthful.”
52. Plaintiff also relied upon the respective individual claims, including those about the
ingredients contained in the Products. Plaintiff relied upon Defendants’ label and advertising and
would not have purchased the Products if she had known that the Products were not capable of
providing the advertised benefits.
53. A class action is superior to other available methods for fair and efficient adjudication
of this controversy. The expense and burden of individual litigation would make it impracticable or
impossible for the Class to prosecute their claims individually.
54. The trial and litigation of Plaintiff’s claims are manageable. Individual litigation of
the legal and factual issues raised by Defendants’ conduct would increase delay and expense to all
parties and the court system. The class action device presents far fewer management difficulties
and provides the benefits of a single, uniform adjudication, economies of scale, and comprehensive
supervision by a single court.
55. Defendants have acted on grounds generally applicable to the entire Class, thereby
making final injunctive relief and/or corresponding declaratory relief appropriate with respect to
the Class as a whole. The prosecution of separate actions by individual Class members would create
the risk of inconsistent or varying adjudications with respect to individual Class members that
would establish incompatible standards of conduct for Defendants.
56. Absent a class action, Defendants will likely retain the benefits of their wrongdoing.
Because of the small size of the individual Class members’ claims, few, if any, Class members
could afford to seek legal redress for the wrongs complained of herein. Absent a representative
action, the Class will continue to suffer losses and Defendants will be allowed to continue these
violations of law and to retain the proceeds of their ill-gotten gains.
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FIRST CAUSE OF ACTION:
Breach of Express Warranty
(By Plaintiff against all Defendants)
57. Plaintiff repeats and realleges the allegations of the previous paragraphs and
incorporates the same as if set forth herein at length.
58. Defendants expressly warranted to consumers with thinning hair and/or hair loss that
their haircare Products “encourage new hair growth,” “fight hair loss, “strengthen hair, “promote
new hair growth, “use natural components [to] block the hormone DHT, known to advance hair
loss,” and “encourage high cell turnover to promote new hair growth.”
59. Defendants expressly warranted to consumers with thinning hair and/or hair loss that
their skincare Products “tighten skin,” “brighten skin,” “rejuvenate skin,” “diminish dark circles,”
“fight aging,” “diminish fine lines and wrinkles,” and “help skin appear more youthful.”
60. Defendants’ claims constitute an affirmation of fact, promise, and/or description of the
goods, the Products, that became part of the basis of the bargain. This created an express warranty
that the Products would conform to the stated promise and that consumers would receive advertised
benefits. Plaintiff placed importance on Defendants’ hair loss, hair growth, anti-aging, and other
claims.
61. All conditions precedent to Defendants’ liability under this contract have been performed
by Plaintiff and the Class.
62. Defendants breached the terms of this contract, including the express warranties, with
Plaintiff and the Class by not providing products that conform to the hair loss prevention, hair
growth, anti-aging, and other advertisements.
63. Defendants’ express warranty that the Products can deliver hair loss prevention, hair
growth, anti-aging and other advertised benefits was breached because consumers did not in fact
receive the advertised benefits.
64. Defendants therefore breached the terms of their express warranty with Plaintiff and the
Class by not delivering the advertised hair loss prevention, hair growth, anti-aging, and other
benefits.
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65. As a result of Defendants’ breach of express warranty, Plaintiff and the Class have been
damaged in an amount to be determined at trial. SECOND CAUSE OF ACTION:
Breach of Implied Warranty
(By Plaintiff against all Defendants)
66. Plaintiff repeats and realleges the allegations of the previous paragraphs and
incorporates the same as if set forth herein at length. 67. Plaintiff bought the Products manufactured, advertised, sold, and distributed by
Defendants.
68. At the time of her purchase, Defendants knew or had reason to know that Plaintiff
intended to use the Products for a particular purpose, i.e. to aid hair growth, prevent hair loss, and
rejuvenate aging skin.
69. At the time of her purchase, Defendants knew or had reason to know that Plaintiff was
relying on her skill and judgment to select or provide a hair loss/growth/skincare product that was
suitable for that particular purpose.
70. Plaintiff justifiably relied on Defendants’ skill and judgment to be able to provide the
advertised hair loss prevention, hair growth, anti-aging, and other benefits.
71. The Products were not suitable for their particular purpose, specifically to prevent hair
loss, aid in hair growth, rejuvenate aging skin, or as otherwise advertised.
THIRD CAUSE OF ACTION:
Unjust Enrichment
(By Plaintiff against all Defendants)
72. Plaintiff repeats and realleges the allegations set forth above, and incorporates the same
as if set forth herein at length.
73. By means of Defendants’ wrongful conduct alleged herein, Defendants knowingly
manufactured, advertised, sold, and distributed the Products advertised as hair loss prevention/ hair
growth products and anti-aging skincare products to Plaintiff and members of the Class in a manner
that was unfair, unconscionable, and oppressive.
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74. Defendants knowingly received and retained wrongful benefits and funds from Plaintiff
and members of the Class. In so doing, Defendants acted with conscious disregard for the rights of
Plaintiff and members of the Class.
75. As a result of Defendants’ wrongful conduct as alleged herein, Defendants have been
unjustly enriched at the expense of, and to the detriment of, Plaintiff and members of the Class.
76. Defendants’ unjust enrichment is traceable to, and resulted directly and proximately
from, the conduct alleged herein.
77. Under the common law doctrine of unjust enrichment, it is inequitable for Defendants to
be permitted to retain the benefits it received, without justification, from selling the Products to
Plaintiff and members of the Class in an unfair, unconscionable, and oppressive manner.
Defendants’ retention of such benefits under such circumstances constitutes unjust enrichment.
78. The financial benefits derived by Defendants rightfully belong to Plaintiff and members
of the Class. Defendants should be compelled to return, in a common fund for the benefit of Plaintiff
and members of the Class, all wrongful or inequitable proceeds received by Defendants.
79. Plaintiff and members of the Class have no adequate remedy at law.
FOURTH CAUSE OF ACTION:
VIOLATION OF CALIFORNIA CONSUMERS LEGAL REMEDIES ACT,
CALIFORNIA CIVIL CODE § 1750, et seq.
(By Plaintiff Against all Defendants)
80. Plaintiff repeats and realleges all allegations of the previous paragraphs, and
incorporates the same as if set forth herein at length.
81. Plaintiff brings this cause of action pursuant to Civil Code section 1750, et seq., the
Consumers Legal Remedies Act (“CLRA”), on her own behalf and on behalf of all other persons
similarly situated. Plaintiff seeks to represent a Class consisting of “All persons who purchased the
Products in the United States or, alternatively, the State of California, for personal use and not for
resale during the time period of three (3) years prior to the filing of the complaint through the
present.” Excluded from the Class are Defendants’ officers, directors, and employees, and any
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individual who received remuneration from Defendants in connection with that individual’s use or
endorsement of the Products.
82. The Class consists of thousands of persons, the joinder of whom is impracticable.
83. There are questions of law and fact common to the Class, which questions are
substantially similar and predominate over questions affecting the individual Class members, as set
forth herein.
84. The CLRA prohibits certain “unfair methods of competition and unfair or deceptive
acts or practices” in connection with a sale of goods.
85. The practices described herein, specifically Defendants’ packaging, advertising, and
sale of the Products were intended to result and did result in the sale of the Products to the
consuming public and violated and continue to violate the CLRA by (1) using deceptive
representations in connection with the Products; and (2) advertising and packaging the Products
with intent not to sell them as advertised.
86. Defendants fraudulently deceived Plaintiff and the Class by misrepresenting the
Products as having characteristics which they do not have, e.g., advertising the haircare Products as
a hair loss solution which will prevent hair loss and promote hair growth when they are incapable
of doing so, and advertising the skincare Products as anti-aging tools that will tighten, rejuvenate
and smooth aging skin. In doing so, Defendants misrepresented and concealed material facts from
Plaintiff and the Class. Said misrepresentations and concealment were done with the intention of
deceiving Plaintiff and the Class and depriving them of their legal rights and money.
87. Defendants fraudulently deceived Plaintiff and the Class by labeling and advertising
the Products with intent not to sell them as advertised. Specifically, Defendants intentionally labeled
and misrepresented the haircare Products as hair loss solutions that prevent hair loss and promote
hair growth and the skincare Products as anti-aging tools that rejuvenate aging skin. In doing so,
Defendants intentionally misrepresented and concealed material facts from Plaintiff and the Class.
Said misrepresentations and concealment were done with the intention of deceiving Plaintiff and
the Class and depriving them of their legal rights and money.
88. Defendants knew or should have known, through the exercise of reasonable care, that
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the Products’ labeling and advertising were misleading.
89. Defendants’ actions as described herein were done with conscious disregard of
Plaintiff’s rights, and Defendants were wanton and malicious in their concealment of the same.
90. Defendants’ labeling and advertising of the Products were a material factor in
Plaintiff’s and the Class’s decisions to purchase the Products. Based on Defendant’s labeling and
advertising of the Products, Plaintiff and the Class reasonably believed that the Products were a hair
loss and aging solution when in fact the Products are incapable of preventing hair loss or hair
thinning or rejuvenating aging skin by tightening, brightening or smoothing wrinkles. Had they
known the truth of the matter, Plaintiff and the Class would not have purchased the Products.
91. Plaintiff and the Class have suffered injury in fact and have lost money as a result of
Defendants’ unfair, unlawful, and fraudulent conduct. Specifically, Plaintiff paid for the Products
which were different from what she was reasonably expecting to receive when she decided to make
her purchase. Plaintiff would not have purchased the Products had she known the Products were
incapable of producing the advertised benefits.
92. Defendants’ false and misleading labeling and advertising should be enjoined due to
its false, misleading, and/or deceptive nature.
93. By letter dated November 12, 2019, Plaintiff advised Defendant of its false and
misleading claims pursuant to California Civil Code Section 1782(a).
94. Pursuant to Section 1780(a) of the Act, Plaintiff seeks injunctive relief in the form of
an order enjoining the above-described wrongful acts and practices of Defendant, including, but not
limited to, an order enjoining Defendant from continuing to make the label and advertising claims
challenged herein. Plaintiff also requests an order awarding Plaintiff and the Class restitution of the
money wrongfully acquired by the Defendants.
95. Plaintiff and the Class shall be irreparably harmed if such an order is not granted.
FIFTH CAUSE OF ACTION:
VIOLATION OF CALIFORNIA FALSE ADVERTISING LAW,
BUSINESS & PROFESSIONS CODE § 17500, et seq.
(By Plaintiff Against all Defendants)
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96. Plaintiff repeats and realleges the allegations set forth in the preceding paragraphs,
and incorporates the same as if set forth herein at length.
97. Plaintiff brings this cause of action pursuant to Business and Professions Code Section
17500, et seq., on her own behalf and on behalf of all other persons similarly situated. Plaintiff
seeks to represent a Class consisting of “All persons who purchased the Products in the United
States or, alternatively, the State of California, for personal use and not for resale during the time
period of four (4) years prior to the filing of the complaint through the present.” Excluded from the
Class are Defendants’ officers, directors, and employees, and any individual who received
remuneration from Defendants in connection with that individual’s use or endorsement of the
Products.
98. California’s False Advertising Law, California Business and Professions Code
Section 17500, et seq., makes it “unlawful for any person to make or disseminate or cause to be
made or disseminated before the public in this state, in any advertising device or in any other manner
or means whatever, including over the Internet, any statement, concerning personal property or
services, professional or otherwise, or performance or disposition thereof, which is untrue or
misleading and which is known, or which by the exercise of reasonable care should be known, to
be untrue or misleading.”
99. Defendants knowingly disseminated misleading claims regarding the Products as a
means to mislead the public about the capabilities of the Products, namely, that they are able to
prevent hair loss, promote hair growth, and rejuvenate aging skin, respectively.
100. Defendants controlled the labeling, packaging, production, and advertising of the
Products. They knew or should have known, through the exercise of reasonable care that their
representations and omissions about the efficacy of the Products were untrue, deceptive and
misleading.
101. Defendants’ action of displaying misleading claims and omissions about the Products
in prominent type face on each Product’s front label as well as on the official website for the
Products is likely to deceive the general public.
102. Defendants’ actions in violation of Section 17500 were false and misleading such that
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the general public is and was likely to be deceived.
103. Pursuant to Business and Professions Code Sections 17203 and 17535, Plaintiff and
the Class seek an order of this Court enjoining Defendants from continuing to engage, use, or
employ their practice of falsely advertising that the haircare Products “encourage new hair growth,”
“use natural components [to] block the hormone DHT, known to advance hair loss,” and “encourage
high cell turnover to promote new hair growth,” and deliberately omitting that hair loss depends
upon other factors, which cannot be rectified by the low concentration of the ingredients contained
in the Products.
104. Pursuant to Business and Professions Code Sections 17203 and 17535, Plaintiff and
the Class seek an order of this Court enjoining Defendants from continuing to engage, use, or
employ their practice of falsely advertising that the skincare Products “tighten skin,” “brighten
skin,” “rejuvenate skin,” “diminish dark circles,” “fight aging,” “diminish fine lines and wrinkles,”
and “help skin appear more youthful.”
105. Plaintiff also requests an order awarding Plaintiff and the Class restitution of the
money wrongfully acquired by the Defendants.
SIXTH CAUSE OF ACTION:
VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW,
BUSINESS & PROFESSIONS CODE § 17200, et seq.
(By Plaintiff Against all Defendants)
106. Plaintiff repeats and realleges the allegations set forth above, and incorporates the
same as if set forth herein at length.
107. Plaintiff brings this cause of action pursuant to Business and Professions Code section
17200, et seq., on her own behalf and on behalf of all other persons similarly situated. Plaintiff
seeks to represent a Class consisting of “All persons who purchased the Products in the United
States or, alternatively, the State of California, for personal use and not for resale during the time
period of four (4) years prior to the filing of the complaint through the present.” Excluded from the
Class are Defendants’ officers, directors, and employees, and any individual who received
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remuneration from Defendants in connection with that individual’s use or endorsement of the
Products.
108. The UCL prohibits unfair competition and provides, in pertinent part, that “unfair
competition shall mean and include unlawful, unfair or fraudulent business practices and unfair
deceptive, untrue or misleading advertising.” Cal. Bus & Prof. Code § 17200.
A. “Unfair” Prong
109. Under California’s False Advertising Law, Cal. Bus. & Prof. Code Section 17200, et
seq., a challenged activity is “unfair” when “any injury it causes outweighs any benefits provided
to consumers and the injury is one that the consumers themselves could not reasonably avoid.”
Camacho v. Auto Club of Southern California, 142 Cal. App. 4th 1394, 1403 (2006).
110. Defendants’ false and deceptive advertising as alleged in the preceding paragraphs,
causes injuries to consumers, who do not receive a product consistent with their reasonable
expectations. false, deceptive, misleading and unreasonable and constitutes unfair conduct.
111. Consumers cannot avoid any of the injuries caused by the Defendants’ false and
deceptive advertising.
112. The injuries caused by the Defendants’ false and deceptive advertising outweighs any
benefits.
113. Defendants’ advertising of the Products, as alleged in the preceding paragraphs, are
false, deceptive, misleading and unreasonable and constitutes unfair business practice within the
meaning of California Business and Professions Code Section 17200.
114. Defendants could have furthered its legitimate business interests in ways other than
reasonably available alternatives to further Defendants’ legitimate business interests, other than the
conduct described herein.
115. Defendants’ conduct threatens consumers by using deceptive and misleading hair
loss/hair re-growth claims. Defendant’s conduct also threatens other companies, large and small,
who play by the rules. Defendants’ conduct stifles competition and has a negative impact on the
marketplace, and reduces consumer choice.
116. All of the conduct alleged herein occurs and continues to occur in Defendants’
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business. Defendants’ wrongful conduct is part of a pattern or generalized course of conduct
repeated on thousands of occasions daily.
117. As alleged in the preceding paragraphs, the misrepresentations by Defendants of the
material facts detailed above constitute an unfair business practice within the meaning of California
Business & Professions Code Section 17200.
118. In addition, Defendants’ use of various forms of advertising media to advertise, call
attention to, or give publicity to the sale of goods or merchandise that are not as represented in any
manner constitutes unfair competition, unfair, deceptive, untrue or misleading advertising, and an
unlawful business practice within the meaning of Business & Professions Code Sections 17200 and
17531, which advertisements have deceived and are likely to deceive the consuming public, in
violation of Business & Professions Code Section 17500.
119. Plaintiff and the Class have suffered injury in fact and have lost money as a result of
Defendants’ false representations. Plaintiff purchased the Products in reliance upon the claims by
Defendants that the Products reflected the representations made in Defendants’ labeling and
advertising. Plaintiff would not have purchased the Product if she had known that the claims and
advertising as described herein were false.
120. Pursuant to Business & Professions Code Sections 17203 and 17535, Plaintiff and the
members of the Class seek an order of this Court enjoining Defendants from continuing to engage,
use, or employ their unfair practice of advertising the sale and use of the Products. Additionally,
Plaintiff and the members of the Class seek and request an order awarding Plaintiff and the Class
restitution of the money wrongfully acquired by Defendants by means of Defendants’ misleading
hair loss prevention and hair re-growth representations.
B. “Fraudulent” Prong
121. California Business and Professions Code Section 17200, et. seq., prohibits fraudulent
conduct, defined as conduct that is likely to deceive members of the public. A business practice is
“fraudulent” if it actually deceives members of the consuming public.
122. Members of the public base their purchasing decisions on the advertised benefits and
claims made by Defendants about the Products, as stated in the preceding paragraphs.
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123. Defendants’ conduct in labeling and advertising the Products, as alleged in the
preceding paragraphs, is false, deceptive, misleading and unreasonable and constitutes a fraudulent
business practice in violation of California Business and Professions Code Section 17200.
124. Defendants knew or should have known of this fraudulent conduct.
125. Defendants could have furthered its legitimate business interests in ways other than
by advertising the Products fraudulently.
126. As alleged in the preceding paragraphs, the misrepresentations by Defendants of the
material facts detailed above constitute a fraudulent business practice within the meaning of
California Business & Professions Code Section 17200.
127. All of the conduct alleged herein occurs and continues to occur in Defendants’
business. Defendants’ wrongful conduct is part of a pattern or generalized course of conduct
repeated on thousands of occasions daily.
128. Plaintiff and the Class have suffered injury in fact and have lost money as a result of
Defendants’ false representations. Indeed, Plaintiff purchased the Products in reliance upon the
claims by Defendants that the Products reflected the representations made in Defendants’ labeling
and advertising. Plaintiff would not have purchased the Products if she had known that the claims
and advertising as described herein were false.
129. Pursuant to Business and Professions Code Section 17203, Plaintiff and the Class seek
an order of this Court enjoining Defendants from continuing to engage, use, or employ their
fraudulent business practices. Additionally, Plaintiff and the members of the Class seek and request
an order awarding Plaintiff and the Class restitution of the money wrongfully acquired by
Defendants by means of Defendants’ misleading hair loss prevention, hair growth, and skin
rejuvenation representations.
C. “Unlawful” Prong
130. California Business and Professions Code Section 17200, et seq. identifies violations
of any state or federal law as “unlawful practices that the unfair competition law makes
independently actionable.” Velazquez v. GMAC Mortg. Corp., 605 F. Supp. 2d 1049, 1068 (C.D.
Cal. 2008).
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131. Defendants’ advertising and claims about the Products, as well as its failure to receive
approval for marketing and selling the Products which are rendered “drugs” by virtue of their
marketed purpose, as alleged in the preceding paragraphs, violates the California Civil Code Section
1750, et seq., California Business and Professions Code Section 17500, et seq., California’s
Sherman Law, and the California Business and Professions Code Section 12606.2, et seq.
132. Defendants’ labeling and advertising the Products, as alleged in the preceding
paragraphs, is false, deceptive, misleading and unreasonable and constitutes unlawful conduct.
133. Defendants knew or should have known of this unlawful conduct.
134. As alleged in the preceding paragraphs, the misrepresentations by Defendants of the
material facts detailed above constitute an unlawful business practice within the meaning of
California Business & Professions Code Section 17200.
135. There were reasonably available alternatives to further Defendants’ legitimate
business interests, other than the conduct described herein.
136. All of the conduct alleged herein occurs and continues to occur in Defendants’
business. Defendants’ wrongful conduct is part of a pattern or generalized course of conduct
repeated on thousands of occasions daily.
137. Plaintiff and the Class have suffered injury in fact and have lost money as a result of
Defendants’ false representations. Indeed, Plaintiff purchased the Products in reliance upon the
claims by Defendants that the Products reflected the representations made in Defendants’ labeling
and advertising. Plaintiff would not have purchased the Products if she had known that the claims
and advertising as described herein were false.
138. Pursuant to Business and Professions Code Section 17203, Plaintiff and the Class seek
an order of this Court enjoining Defendants from continuing to engage, use, or employ their
unlawful business practices. Additionally, Plaintiff and the members of the Class seek and request
an order awarding Plaintiff and the Class restitution of the money wrongfully acquired by
Defendants by means of Defendants’ misleading hair loss prevention, hair re-growth, and skin
rejuvenation representations.
///
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CL
AR
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ON
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, P.C
. 92
55 S
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04
Los
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22 CLASS ACTION COMPLAINT
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, prays
for judgment and relief on all Causes of Action as follows:
A. An order enjoining Defendants from continuing to label and advertise the
Products as challenged herein;
B. An order for Defendants to pay restitution and damages to Plaintiff and all
members of the Class in an amount to be determined at trial;
C. Reasonable attorneys’ fees;
D. Costs of this suit; and
E. Such other and further relief as the Court may deem necessary or appropriate.
JURY TRIAL DEMANDED
Plaintiff demands a jury trial on all triable issues.
DATED: March 20, 2020 CLARKSON LAW FIRM, P.C.
___________________________ Shireen M. Clarkson, Esq. Ryan J. Clarkson, Esq. Bahar Sodaify, Esq. Zach Chrzan, Esq.
Attorneys for Plaintiff and the Plaintiff Class