1st Amended Complaint -- Koh v SC Johnson

8/6/2019 1st Amended Complaint -- Koh v SC Johnson

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REESE RICHMAN LLP

Michael R. Reese (Cal. State Bar No. 206773)Kim E. Richman875 Avenue of the Americas, 18

thFloor

New York, New York 10001Telephone: (212) 579-4625Facsimile: (212) 253-4272Email: [email protected]

[email protected]

-and-

WHATLEY DRAKE & KALLAS LLC

Deborah Clark-Weintraub1540 Broadway, 37

thFloor

New York, New York 10036Telephone: (212) 447-7070Facsimile: (212) 447-7077Email: [email protected]

Attorneys for Plaintiff and the Proposed Class

(additional counsel for Plaintiff on signature page)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

WAYNE KOH, on behalf of himself and all others

similarly situated,

Plaintiff,

vs.

SC JOHNSON & SON, INC.,

Defendant.

Case No.: 09-cv-00927 HRL

FIRST AMENDED COMPLAINT

(CLASS ACTION)

Cal. Bus. & Prof. Code 17200 et seq.and 17500 et seq., Cal. Civ. Code1750 et seq., Fraud, UnjustEnrichment.

Demand for Jury Trial

Case5:09-cv-00927-RMW Document8 Filed05/01/09 Page1 of 23


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Plaintiff Wayne Koh (Plaintiff), by and through his counsel, alleges the following

based upon his own personal knowledge and the investigation of his counsel. Plaintiff believes

that substantial evidentiary support will exist for the allegations set forth herein after a

reasonable opportunity for discovery.

NATURE OF THE CASE

1. This is a proposed class action against SC Johnson & Son, Inc. (SC Johnson orDefendant) for misleading consumers about the environmental safety and soundness of its

leading household cleaning products the glass cleaner Windex and the stain remover Shout.

2. In recent years, consumers have become significantly more aware and sensitive totheir impact on the environment through the products they purchase and use. As a result, a

movement has developed demanding consumer products that are made from natural ingredients

and environmentally sound, i.e. that do not harm the environment through the products

ingredients, manufacture, use or disposal. The term Green is commonly used to describe these

products, and the environmental movement that led to them.

3. Looking to profit off the growing environmental green movement, and to regainits market share lost to truly Green products, starting in January, 2008 and continuing to thepresent (the Class Period), SC Johnson has prominently placed a deceptive seal of approval

label on the front of its Windex product as follows:

4. Additionally, on the reverse side of the label that is read through the back of theWindex packaging it states that Greenlist is a rating system that promotes the use of

environmentally responsible ingredients.



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5. On information and belief, at some point after January 1, 2009, Defendant alsostarting placing the misleading Greenlist label on its Shout stain remover line of products.

6. By making these representations, Defendant represents that its products bearing theGreenlist label are made with natural ingredients and are environmentally safe and sound.

7. Additionally, by making these representations on its products packaging, SCJohnson conveys to Plaintiff and other consumers that the product has been subjected to a

neutral, third partys testing regime that had determined that the product is environmentally

friendly.

8. Unfortunately for consumers, these representations by Defendant are false. Basedupon counsels investigation, the truth is that the Greenlist seal of approval is not a designation

bestowed by a non-profit environmental group, or even a neutral third-party,but instead is the

creation of Defendant SC Johnson itself. In other words, the Greenlist seal of approval is

nothing more than SC Johnson touting its own product.

9. Additionally, ingredients that constitute Windex are not environmentally sound nornatural, but rather pose a real risk to the environment. Despite the statement that Windex

contains Greenlist ingredients, Defendant has not changed the ingredients of Windex to

remove all environmentally harmful chemicals. Namely, one of the key ingredients of Windex ethylene glycol n-hexyl ether is not naturally derived and poses serious danger, including

death, if ingested by wildlife and small children. Moreover, because the taste of ethylene gycol

n-hexyl ether is sweet, the risk of it being ingested by wildlife (or, again, small children) is

multiplied.

10. The type of deception engaged in by Defendant here is becoming so rampant that theterm Greenwash has been coined to describe this type of conduct. See e.g.

http://en.wikipedia.org/wiki/Greenwashing (Greenwash is a term used to describe the

perception of consumers that they are being misled by a company regarding the environmental

practices of the company or the environmental benefits of a product or service.).

11. Plaintiff brings this suit to now end Defendants deceptive practice and to recoverthe ill-gotten gains obtained by Defendant through this deception.



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JURISDICTION AND VENUE

12. This Court has jurisdiction over all causes of action asserted herein pursuant to 28U.S.C. 1332(d), because the aggregate claims of the Class exceed the sum or value of

$5,000,000.00, and there is diversity of citizenship between plaintiff, who, as alleged below, is a

citizen of California, and Defendant, which, as alleged below, is a citizen of Wisconsin.

13. Venue is proper in this District pursuant to 28 U.S.C. 1391(a)(1) and (2).Substantial acts in furtherance of the alleged improper conduct occurred within this District.

Plaintiff resides within this District and bought Defendants products within this District.

14. Defendant is authorized to do business in California, have sufficient minimumcontacts with California, and/or otherwise has intentionally availed itself of the markets in

California through the promotion, marketing, and sale of Windex in California, to render the

exercise of jurisdiction by this Court permissible under traditional notions of fair play and

substantial justice.

PARTIES

15. Plaintiff Wayne Koh (Plaintiff) is a resident of Santa Cruz, California. Plaintiffpurchased Defendants Windex product at its premium price on or about September, 2008from a

Safeway store on 41

st

Street in Soquel, California based upon the representations that Windexwas environmentally friendly with natural ingredients that had been given the Greenlist seal of

approval. Plaintiff relied upon these misrepresentations in making his decision to purchase

Windex. Plaintiff suffered injury in that he would not have bought the Greenlist-labeled Windex

at its premium price had he known the truth that Greenlist was the creation of SC Johnson, and

not a neutral party, and that Windex was not environmentally friendly.

16. Defendant SC Johnson is a citizen of Racine County, Wisconsin. Defendant SCJohnson describes itself as one of the world's leading manufacturers of household cleaning

products and products for home storage, air care, personal care and insect control. In 2007,

Defendant had more than $7.5 billion in sales.



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SUBSTANTIVE ALLEGATIONS

The Green Movement

17. In recent years, consumers have become significantly more aware and sensitive totheir impact on the environment through the products they purchase and use. As a result, a

movement has developed demanding consumer products that contain natural ingredients and are

environmentally sound, i.e. that do not harm the environment through the products ingredients,

manufacture, use or disposal. The term Green is commonly used to describe these products,

and the environmental movement that led to them.

18. Unfortunately for consumers, false claims of environmental soundness have grownalong with the demand for green products. In a recently released study (available at

http://sinsofgreenwashing.org/), the environmental consulting group TerraChoice Environmental

Marketing found that 98% of more than 2,000 products it surveyed in North America made false

and misleading environmental claims by committing one or more of what it classified as the

Seven Sins of Greenwashing:

The Sin of the Hidden Trade-off committed by suggesting a product is green

based on an unreasonably narrow set of attributes without attention to other

important environmental issues;The Sin of No Proof committed by an environmental claim that cannot be

substantiated by easily accessible supporting information or by a reliable third-

party certification;

The Sin of Vagueness committed by every claim that is so poorly defined or

broad that its real meaning is likely to be misunderstood by the consumer;

The Sin of Irrelevance committed by making an environmental claim that may

be truthful but is unimportant or unhelpful for consumers seeking environmentally

preferable products;

The Sin of Lesser of Two Evils committed by claims that may be true within the

product category but that risk distracting the consumer from the greater

environmental impacts of the category as a whole;



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The Sin of Fibbing committed by making environmental claims that are simply

false; and

The Sin of Worshipping False Labels committed by a product that, through

either words or images, gives the impression of third-party endorsement where no

such endorsement actually exists; fake labels in other words.

19. The TerraChoice study found that in response to calls for independent certificationof Green claims due to widespread Greenwashing, false labeling that takes the form of an

image that looks like an official stamp or seal of approval are on the rise.

20. In an effort to halt false environmental marketing claims, the Federal TradeCommission has issued Guides for the Use of Environmental Marketing Claims (the Green

Guides), 16 C.F.R. 260 et seq., to protect consumers from deceptive environmental marketing

in labeling and advertising.

21. The Green Guides provide that in order to avoid deception, [a]n environmentalmarketing claim should be presented in a way that makes clear whether the environmental

attribute or benefit being asserted refers to the product, the products packaging, a service or to a

portion or component of the product, package or service, and that it does not overstate the

environmental attribute expressly or by implication. 16 C.F.R. 260.6(b), (c).22. Further, the Green Guides provide that [i]t is deceptive to misrepresent, directly or

by implication, that a product, package or service offers a general environmental benefit. In

this regard, the Green Guides provide that because [u]nqualified general claims of

environmental benefit are difficult to interpret, and depending on their context, may convey a

wide range of meanings to consumers . . . [i]n many cases, such claims may convey that the

product, package or service has specific and far-reaching environmental benefits when, in fact,

this is not the case. 16 C.F.R. 260.7(a). The Green Guides offer the following examples of

deceptive environmental product labeling:



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Example 1:

A brand name like Eco-Safe would be deceptive if, in the context of the product

so named, it leads consumers to believe that the product has environmental

benefits which cannot be substantiated by the manufacturer. The claim would not

be deceptive if Eco-Safe were followed by clear and prominent qualifying

language limiting the safety representation to a particular product attribute for

which it could be substantiated, and provided that no other deceptive implications

were created by the context.

Example 5:

A product label contains an environmental seal, either in the form of a globe icon,

or a globe icon with only the text Earth Smart around it. Either label is likely to

convey to consumers that the product is environmentally superior to other

products. If the manufacturer cannot substantiate this broad claim, the claim

would be deceptive. The claims would not be deceptive if they were

accompanied by clear and prominent qualifying language limiting the

environmental superiority representation to the particular product attribute or

attributes for which they could be substantiated, provided that no other deceptiveimplications were created by the context.

SC Johnsons Geenwashing in Response to Growing Competition from Independently

Certified Green Products

23. A number of new companies, such as SimpleGreen and Seventh Generation, havestarted to provide Green products to consumers in recent years. Because of the high demand for

these products, Green products often command a premium price while simultaneously taking

away market share from products that serve similar functions but are not Green.

24. These new Green companies and products pose a threat to older establishedcompanies, like Defendant, that produce the same type of product only without being Green.

25. Defendant SC Johnson is one of the oldest manufacturers of household cleaningproducts in the United States. In 2007, Defendant SC Johnson had over $7.5 billion in sales.



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26. Windex is one of Defendants leading household cleaning products. Windex isadvertised as a multi-purpose cleaner that specializes in cleaning glass and other reflective and

shiny surfaces.

27. Shout is also one of Defendants leading brands. Shout is advertised as a stainremover with powerful cleaning agents. Defendant refuses to make the ingredients of Shout

known to the public.

28. In recent years, Windex, and other SC Johnson products have faced stiff competitionfrom a number of Green products that claim to perform the same function as these products, but

do so in an environmentally friendly fashion. These products include brands made by

SimpleGreen and Seventh Generation.

29. Starting in 2005, faced with this competition, Windex began to lose market share tothese and other eco-friendly cleaners. Seehttp://findarticles.com/p/articles/mi_m0EIN/is

_/ai_n27230492. Then in early January 2008, the threat to SC Johnson, its Windex brand and

other SC Johnson products increased dramatically when its major competitor Clorox, Co. of

Oakland, California announced that it was launching a line of Green Works cleaning products

that had received a seal of approval from the Sierra Club.

30.

In response to these market threats, and to garner a corner of the Green market foritself, on January 16, 2008, Defendant SC Johnson began marketing and selling Windex in

packaging that prominently displayed the Greenlist label on the front to represent that the

product contains natural ingredients and is environmentally sound:

31. Since January 16, 2008, Defendant has expanded its misleading labeling to other SCJohnson products, including, but not limited to, its Shout line of stain remover products.



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32. The use of the word Greenlist is also meant to convey that the product hasreceived the approval of a non-profit environmental group or other neutral third party. In fact,

several environmental groups use the term Greenlist to describe environmentally sound

products, programs or people. See e.g. http://latimesblogs.latimes.com/emeraldcity/

2007/10/greenlist-cali-.html (Los Angeles Times column Emerald City She Follows the Road

to Green Living that posts a Greenlist of companies that have environmentally sound

practices); http://www.greenlivingonline.com/tag/Green_List/(use of term Greenlist by the

magazine GreenLiving to commemorate people who have dedicated their lives to protecting the

environment).

33. Defendant is able to charge consumers a premium for its Greenlist products, as muchas 50% than its competitors products that are not falsely portrayed as green.

34. Unfortunately for consumers, however, the Greenlist designation used by SCJohnson to describe Windex, Shout and other SC Johnson products has not been conferred by a

non-profit environmental group or neutral third party as is conveyed by the label. Instead, it is

merely the creation of Defendant.

35. Furthermore, despite the representation on its label that Windex containsenvironmentally friendly Greenlist ingredients, Defendant has, in fact, not changed theingredients of Windex to remove all environmentally harmful ingredients. Namely, one of the

key ingredients of Windex is ethyl glycol n-hexyl ether. This chemical is not natural and poses

serious danger, including death, if ingested by wildlife and small children. Moreover, because

the taste of ethyl gycol n-hexyl ether is sweet, the risk of it being ingested by wildlife and small

children is multiplied.

36. In other words, Windex and other SC Johnson products bearing the Greenlist labelare not environmentally responsible or sound as the Greenlist labeling leads one to believe.

CLASS ALLEGATIONS

37. Plaintiff brings this action as a California statewide class action pursuant to Rule 23of the Federal Rules of Civil Procedure on behalf of all residents of California who purchased

any Windex or Shout product bearing the Greenlist label during the period January 17, 2008 to



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present (the "Class"). Excluded from the Class are officers and directors of the Defendant,

members of the immediate families of the officers and directors of the Defendant, and their legal

representatives, heirs, successors or assigns and any entity in which they have or have had a

controlling interest.

38. At this time, Plaintiff does not know the exact number of Class members; however,given the immense sales volume of Windex and Shout, Plaintiff believes that Class members are

so numerous that joinder of all members of the Class is impracticable.

39. There is a well-defined community of interest in the questions of law and factinvolved in this case. Questions of law and fact common to the members of the Class which

predominate over questions which may affect individual Class members include:

(a) Whether Defendant labeled, marketed, advertised and/or sold its Windexand Shout products to Plaintiff and those similarly situated using false,

misleading and/or deceptive statements or representations, including statements

or representations concerning the environmental soundness of Windex and

Shout;

(b) Whether Defendant misrepresented material facts in connection with thesales of its Windex and Shout products;

(c) Whether Defendant participated in and pursued the common course ofconduct complained of herein;

(d) Whether Defendants labeling, marketing, advertising and/or selling of itsWindex and Shout products with a Greenlist label constitutes an unfair or

deceptive consumer sales practice; and

(e) Whether Defendant was unjustly enriched.40. Plaintiffs claims are typical of those of the Class because Plaintiff, like all members

of the Class, purchased a SC Johnson product bearing the Greenlist label in a typical consumer

setting and sustained damages from Defendant's wrongful conduct.



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41. Plaintiff will adequately protect the interests of the Class and has retained counselwho are experienced in litigating complex class actions. Plaintiff has no interests that conflict

with those of the Class.

42. A class action is superior to other available methods for the fair and efficientadjudication of this controversy.

43. The prerequisites to maintaining a class action for injunctive or equitable reliefpursuant to Fed. R. Civ. P. 23(b)(2) are met as Defendant has acted or refused to act on grounds

generally applicable to the Class thereby making appropriate final injunctive or equitable relief

with respect to the Class as a whole.

44. The prosecution of separate actions by members of the Class would create a risk ofestablishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For

example, one court might enjoin Defendant from performing the challenged acts, whereas

another might not. Additionally, individual actions may be dispositive of the interests of the

Class, although certain Class members are not parties to such actions.

45. Defendants conduct is generally applicable to the Class as a whole and Plaintiffseeks, inter alia, equitable remedies with respect to the Class as a whole. As such, Defendants

systematic policies and practices make declaratory relief with respect to the Class as a wholeappropriate.

CAUSES OF ACTION

FIRST CAUSE OF ACTION

(Business and Professions Code 17200, et seq.

Unlawful Business Acts and Practices)

46. Plaintiff repeats each and every allegation contained in the paragraphs above andincorporates such allegations by reference herein.

47. As set forth above, the Greenlist label is false, deceptive and misleading because itcauses consumers to believe that Defendants products are from natural ingredients that are

environmentally safer than the non-Greenlist label versions of these products and that products

carrying the Greenlist label have been independently tested and approved as such. In fact,



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however, as described above, Greenlist is nothing more than a deceptive marketing ploy

designed by Defendant to increase sales of its products in this environmentally conscious time.

Products bearing the Greenlist label have not been independently tested and have not been

reformulated to be environmentally friendly. To the contrary, products bearing the Greenlist

label contain the same non-natural toxic chemicals harmful to the environment and animals as

are present in Defendants products without the Greenlist label.

48. Defendant designed the false, misleading and deceptive Greenlist label with intent tosell, distribute and increase the consumption of its products bearing the Greenlist label including

Windex and Shout.

49. Defendant designed the false, misleading and deceptive Greenlist label with intent tosell, distribute and increase the consumption of its products bearing the Greenlist label including

Windex and Shout.

50. Defendants violation constitutes unlawful business acts and practices, which causedPlaintiff and Class members to suffer pecuniary loss. Specifically, Defendants false, deceptive

and misleading Greenlist label caused consumers to purchase Defendants products believing

they were environmentally friendly when, in fact, they were not.

51.

In this regard, Defendants manufacturing, marketing, advertising, packaging,labeling, distributing and selling products bearing the Greenlist label violates Californias

Business and Professions Code.

52. The business acts and practices alleged above are unlawful under the ConsumersLegal Remedy Act, Cal. Civ. Code 1750, et seq. ("CLRA"), which forbids deceptive

advertising.

53. The business acts and practices alleged above are unlawful under 17200, et seq. byvirtue of violating 17500, et seq., which forbids untrue advertising and misleading advertising.

54. As a result of the business acts practices described above, Plaintiff and the Class,pursuant to Business and Professions Code 17203, are entitled to an order enjoining such

future conduct on the part of the Defendant and such other orders and judgments which may be

necessary to disgorge Defendants ill-gotten gains and to restore to any person in interest any



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money paid for products bearing the Greenlist label as a result of the wrongful conduct of the

Defendant.

55. The above-described unlawful business acts and practices of the Defendant present athreat and reasonable likelihood of deception to Plaintiff and members of the Class in that

Defendant has systematically perpetrated and continue to perpetrate such acts or practices upon

members of the Class by means of its misleading manufacturing, marketing, advertising,

packaging, labeling, distributing and selling of products bearing the Greenlist label.

56. THEREFORE, Plaintiff prays for relief as set forth below.

SECOND CAUSE OF ACTION


Unfair Business Acts and Practices)


58. Such acts of the Defendant, as described above, constitute unfair business acts andpractices.

59.

Plaintiff, and other members of the Class who purchased Defendants Windex orShout products bearing the Greenlist label, suffered a substantial injury by virtue of buying a

product they would not have purchased absent Defendants unfair marketing, advertising,

packaging and labeling or by paying an excessive premium price for the unfairly marketed,

advertised, packaged and labeled products bearing the Greenlist label.

60. There is no benefit to consumers or competition by deceptively marketing,advertising, packaging and labeling water beverages. Indeed, the harm to consumers and

competition is substantial.

61. Plaintiff and other members of the Class who purchased Defendants productsbearing the Greenlist label had no way of reasonably knowing that the product they bought was

not as marketed, advertised, packaged and labeled. Thus, they could not have reasonably

avoided the injury each of them suffered.



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62. The gravity of the consequences of Defendants conduct as described aboveoutweighs any justification, motive or reason therefore, particularly considering the available

legal alternatives which exist in the marketplace, and is immoral, unethical, unscrupulous,

offends established public policy or is substantially injurious to Plaintiff and other members of

the Class.

63. As a result of the business acts and practices described above, Plaintiff and theClass, pursuant to Business and Professions Code 17203, are entitled to an order enjoining

such future conduct on the part of the Defendant, and such other orders and judgments which

may be necessary to disgorge Defendants ill-gotten gains and to restore to any person in interest

any money paid for products bearing the Greenlist label as a result of the wrongful conduct of

the Defendant.


THIRD CAUSE OF ACTION


Fraudulent Business Acts and Practices)

65.

Plaintiff repeats each and every allegation contained in the paragraphs above andincorporates such allegations by reference herein.

66. Such acts of the Defendant, as described above, constitute fraudulent businesspractices under California Business and Professions Code sections 17200, et seq.

67. As more fully described above, Defendants misleading marketing, advertising,packaging and labeling of products bearing the Greenlist label is likely to deceive reasonable

California consumers. Indeed, Plaintiff and other members of the Class were unquestionably

deceived regarding the characteristics of Defendants product, as Defendants marketing,

advertising, packaging and labeling of products bearing the Greenlist label misrepresent and/or

omit the true nature and quality of its product. Said acts are fraudulent business acts and

practices.



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68. This fraud and deception caused Plaintiff and members of the Class to purchasemore of Defendants product than they would have or pay more than they would have for the

product had they known the true nature and quality of its product.

69. As a result of the business acts and practices described above, Plaintiff and theClass, pursuant to Business and Professions Code 17203, are entitled to an order enjoining

such future conduct on the part of the Defendant, and such other orders and judgments which

may be necessary to disgorge Defendants ill-gotten gains and to restore to any person in interest

any money paid for products bearing the Greenlist label as a result of the wrongful conduct of

the Defendant.


FOURTH CAUSE OF ACTION


Misleading and Deceptive Advertising)


72.

Plaintiff asserts this cause of action for violations of California Business andProfessions Code 17500, et seq. for misleading and deceptive advertising against the

Defendant.

73. At all material times, the Defendant engaged in a scheme of offering its productsbearing the Greenlist label for sale to Plaintiff and other members of the Class by way of, inter

alia, commercial marketing and advertising, product packaging and labeling and other

promotional materials. These materials misrepresented and/or omitted the true nature and

quality of Greenlist Windex and Shout. Said advertisements and inducements were made within

the State of California and come within the definition of advertising as contained in Business and

Professions Code 17500, et seq. in that such promotional materials were intended as

inducements to purchase products bearing the Greenlist label and are statements disseminated by

the Defendant to Plaintiff and the Class and were intended to reach members of the Class.



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Defendant knew, or in the exercise of reasonable care should have known, that these statements

were misleading and deceptive.

74. In furtherance of said plan and scheme, Defendant has prepared and distributedwithin the State of California via commercial marketing and advertising, product packaging and

labeling, and other promotional materials, statements that misleadingly and deceptively represent

the environmental soundness of Windex and Shout. Consumers, including Plaintiff, necessarily

and reasonably relied on these materials, believing the products bearing the Greenlist label were

environmentally friendly when, in fact, they were not. Consumers, including Plaintiff and the

Class, were among the intended targets of such representations.

75. The above acts of the Defendant, in disseminating said misleading and deceptivestatements throughout the State of California to consumers, including Plaintiff and members of

the Class, were and are likely to deceive reasonable consumers, including Plaintiff and other

members of the Class, by obfuscating the true nature and quality of Windex and Shout, all in

violation of the misleading prong of California Business and Professions Code 17500.

76. As a result of the above violations of the misleading prong of Business andProfessions Code 17500, et seq., Defendant has been unjustly enriched at the expense of

Plaintiff and the other members of the Class. Plaintiff and the Class, pursuant to Business andProfessions Code 17535, are entitled to an order of this Court enjoining such future conduct on

the part of the Defendant, and such other orders and judgments which may be necessary to

disgorge Defendants ill-gotten gains and restore to any person in interest any money paid for

products bearing the Greenlist label as a result of the wrongful conduct of the Defendant.




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FIFTH CAUSE OF ACTION

(Business and Professions Code 17500, et seq. - Untrue Advertising)


79. Plaintiff asserts this cause of action for violations of California Business andProfessions Code 17500, et seq., for untrue advertising against the Defendant.

80. At all material times, Defendant has engaged in a scheme of offering productsbearing the Greenlist label for sale to Plaintiff and other members of the Class by way of, inter

alia, commercial marketing and advertising, product packaging and labeling, and other

promotional materials. These materials misrepresented and/or omitted the true nature of Windex

and Shout. Said advertisements and inducements were made within the State of California and

come within the definition of advertising as contained in Business and Professions Code 17500,

et seq. in that such promotional materials were intended as inducements to purchase products

bearing the Greenlist label and are statements disseminated by the Defendant to Plaintiff and the

Class and were intended to reach members of the Class. Defendant knew, or in the exercise of

reasonable care should have known, that these statements were untrue.

81.

In furtherance of said plan and scheme, Defendant has prepared and distributedwithin the State of California via commercial marketing and advertising, the World Wide Web

(Internet), product packaging and labeling, and other promotional materials, statements that

falsely advertise the environmental soundness of Windex and Shout. Consumers, including

Plaintiff and the Class, are among the intended targets of such representations and would

reasonably be deceived by such promotional materials.

82. The above acts of the Defendant in disseminating said untrue advertising throughoutthe State of California deceived Plaintiff and the other members of the Class by obfuscating the

nature and quality of Windex and Shout, all in violation of the untrue prong of California

Business and Professions Code 17500.

83. As a result of the above violations of the untrue prong of Business and ProfessionsCode 17500, et seq., Defendant has been unjustly enriched at the expense of Plaintiff and the



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other members of the Class. Plaintiff and the Class, pursuant to Business and Professions Code

17535, are entitled to an order of this Court enjoining such future conduct on the part of the

Defendant, and such other orders and judgments which may be necessary to disgorge

Defendants ill-gotten gains and restore to any person in interest any money paid for products

bearing the Greenlist label as a result of the wrongful conduct of the Defendant.


SIXTH CAUSE OF ACTION

(Consumers Legal Remedies Act - Cal. Civ. Code 1750, et seq.)

85. Plaintiff realleges and incorporates by reference the paragraphs stated above in thisClass Action Complaint as if set forth herein.

86. This cause of action is brought pursuant to the California Consumers LegalRemedies Act, Cal. Civ. Code 1750, et seq. (the CLRA).

87. Defendants actions, representations and conduct have violated, and continue toviolate the CLRA, because they extend to transactions that are intended to result, or which have

resulted, in the sale or lease of goods or services to consumers.

88.

Plaintiff and other Class Members are consumers as that term is defined by theCLRA in Cal. Civ. Code 1761(d).

89. The products bearing the Greenlist label that Plaintiff and other members of theClass purchased from Defendant were goods within the meaning of Cal. Civ. Code 1761(a).

90. By engaging in the actions, misrepresentations and misconduct set forth in this ClassAction Complaint, Defendant has violated, and continues to violate, 1770(a)(7) of the CLRA.

Specifically, in violation of Cal. Civ. Code 1770(a)(7), Defendants acts and practices

constitute unfair methods of competition and unfair or fraudulent acts or practices in that they

misrepresent the particular standard, quality or grade of the goods.

91. By engaging in the actions, misrepresentations and misconduct set forth in this ClassAction Complaint, Defendant has violated, and continues to violate, 1770(a)(16) of the CLRA.

Specifically, in violation of Cal. Civ. Code 1770(a)(16), Defendants acts and practices



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constitute unfair methods of competition and unfair or fraudulent acts or practices in that they

represent that a subject of a transaction has been supplied in accordance with a previous

representation when they have not.

92. Plaintiff requests that this Court enjoin the Defendant from continuing to employ theunlawful methods, acts and practices alleged herein pursuant to Cal. Civ. Code 1780(a)(2). If

Defendant is not restrained from engaging in these types of practices in the future, Plaintiff and

other members of the Class will continue to suffer harm.

93. CLRA 1782 NOTICE. On March 20, 2009, Plaintiffs sent Defendants a CLRAnotice letter that provided notice of Defendants violation of the CLRA and demanded that

within thirty (30) days from that date, Defendants correct, repair, replace or otherwise rectify the

unlawful, unfair, false and/or deceptive practices complained of herein. The letter also stated

that if Defendants refused to do so, Plaintiffs would amend their complaint to seek damages in

accordance with the CLRA. Defendants failed to comply with the letter and rectify the practices.

94. Pursuant to California Civil Code 1780(a)(3), Plaintiffs, on behalf of themselvesand all other members of the Classes, seek compensatory damages, punitive damages and

restitution of any ill-gotten gains due to Defendants acts and practices.

95.

Plaintiffs also request that this Court award their costs and reasonable attorneys feespursuant to Cal. Civ. Code 1780(d).


SEVENTH CAUSE OF ACTION

(Fraud, Deceit and/or Misrepresentation)


98. Defendant, through its labeling, advertising and marketing of products bearing theGreenlist label, make uniform representations and offers regarding the nature and quality of

Windex and Shout as described above. Defendant engaged in, and continues to engage in, such



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fraudulent, misrepresentative, false and/or deceptive acts with full knowledge that such acts

were, and are, in fact, misrepresentative, false or deceptive.

99. The aforementioned fraud, misrepresentations, deceptive, and/or false acts andomissions concern material facts that are essential to the analysis undertaken by Plaintiff, and

those similarly situated, in deciding whether to purchase Defendants products bearing the

Greenlist label.

100.Plaintiff, and those similarly situated, would have acted differently had they not beenmisled i.e. they would not have paid money for the product in the first place.

101.Defendant has a duty to correct the misinformation it disseminated through itsadvertising of products bearing the Greenlist label. By not informing Plaintiff, and those

similarly situated, Defendant has breached this duty. Defendant also gained financially from,

and as a result of this breach.

102.By and through such fraud, deceit, misrepresentations and/or omissions, Defendantintended to induce Plaintiff, and those similarly situated, to alter their position to their detriment.

103.Plaintiff and those similarly situated, justifiably and reasonably relied onDefendants misrepresentations, and, as such, were damaged by Defendant.

104.As a direct and proximate result of Defendants fraud, deceit and/or

misrepresentations, Plaintiff, and those similarly situated, have suffered damages in an amount

equal to the amount they paid for Defendant products bearing the Greenlist label. The exact

amount of this difference will be proven at trial.

105.Defendant acted with intent to defraud, or with reckless or negligent disregard of therights of, Plaintiff, and those similarly situated.

106.Plaintiff, and those similarly situated, are entitled to punitive damages.107.THEREFORE, Plaintiff prays for relief as set forth below.



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EIGHTH CAUSE OF ACTION

(Unjust Enrichment)

108.Plaintiff repeats each and every allegation contained in the paragraphs above andincorporates such allegations by reference herein.

109.As a result of Defendants deceptive, fraudulent and misleading labeling,advertising, marketing and sales of products bearing the Greenlist label, Defendant was enriched,

at the expense of Plaintiff, and all others similarly situated, through the payment of the purchase

price of Defendants products.

110.Under the circumstances, it would be against equity and good conscience to permitthe Defendant to retain the ill-gotten benefits that it received from Plaintiff, and all others

similarly situated, in light of the fact that the products bearing the Greenlist label purchased by

Plaintiff, and all others similarly situated, were not what the Defendant purported them to be.

Thus, it would be unjust or inequitable for Defendant to retain the benefit without restitution to

Plaintiff, and all others similarly situated, for the monies paid to Defendant for such products

bearing the Greenlist label.111.Accordingly, equity and good conscience demand that Defendant should return the

benefit conferred by Plaintiff and Class members.

112.THEREFORE, Plaintiff prays for relief as set forth below.



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PRAYER FOR RELIEF

THEREFORE, Plaintiff prays for judgment as follows:

- Certification of the Class, certifying Plaintiff as representative of the Class, and

designating his counsel as counsel for the Class;

- A declaration that Defendant has committed the violations alleged herein;

- For restitution and disgorgement pursuant to, without limitation, the

California Business & Professions Code 17200, et seq. and 17500, et seq.;

- For declaratory and injunctive relief pursuant to, without limitation, the California

Business & Professions Code 17200, et seq. and 17500, et seq.;

- For restitution and disgorgement pursuant to, without limitation, the California

Consumers Legal Remedies Act, Cal. Civ. Code 1750, et seq.;

- For declaratory and injunctive relief pursuant to, without limitation, the California

Consumers Legal Remedies Act, Cal. Civ. Code 1780;

- An award of compensatory damages, the amount of which is to be determined at

trial;

- For punitive damages;

- For interest at the legal rate on the foregoing sums;- For their costs and reasonable attorneys fees pursuant to, without limitation, Cal.

Civ. Code 1780(d); and

- - For such further relief as this Court may deem just and proper.



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JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury.

Dated: May 1, 2009 REESE RICHMAN LLP

/s/ Michael R. ReeseMichael R. ReeseKim E. Richman875 Avenue of the Americas, 18

thFloor

New York, New York 10001Telephone: (212) 579-4625Facsimile: (212) 253-4272

- and -

WHATLEY DRAKE & KALLAS, LLC

Deborah Clark-Weintraub1540 Broadway 37th

FloorNew York, New York 10036Telephone: (212) 447-7070Facsimile: (212) 447-7077

ADEMI & O'REILLY, LLPShpetim Ademi3620 East Layton AvenueCudahy, Wisconsin 53110Telephone: (414) 482-8000Facsimile: (414) 482-8001

Attorneys for Plaintiff and the Proposed Class


Documents

1st Amended Complaint -- Koh v SC Johnson