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Case 0:13-cv-62650-MGC Document 1-4 Entered on FLSD Docket 12/05/2013 Page 6 of 45

THE P,?~TI~S

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representations concerning "Kids Relief Earache's" ingredients and suppcsed benefits to

the child detai3ed herein, but far which, Barber would not have purchased that product.

~. Defendant, NomeaLab USA, Inc., a Delaware Corporation registered with

the Florida Department of Staie as a ~areign Profit Corporation doing business in Florida,

has its offices and distribu#ian center in the City of Boca Raton, Florida, maintains a

registered agent in tha State of Florida pursuant to § 48.091 Fla, Stat., and markets,

advertises, distributes and sells products described herein in Brpward County, Florida,

where the cause of action conc~ming named Plaintiffs accrued, and where the property

in litigation was located, as well as throughout Florida, anti throughout the United States.

JUR1SdICT1~N AND VENUE

7. This Court has exclusive original jurisdiction pursuant to § 26.012, Fla. Stat.,

as the named Plaintiffs and Class members' damages, exclusive of interest and costs,

exceed the sum of $'5,OOO.dO. Venue is proper within this Circuif pursuant to § 48.D51,

Fla_ Stat., as the cause of action accrued and arose within this Circuit, tivhere the property

in litigation was located, and many of the acts and transactions, including advertising,

dis#ribution, sales and purchases giving rise to this action occurred wifhin this Circuit_

Defendank has ~i}intentionally availed itself of the consumer markets within tF~is Circuit by

promoting, marketing, advertising, distributing ancE selling products en Broward County;

(ii) does substan#ial business wi#hin Broward County; (iii) advertises to consumers

residing in Browarcf County; and (iv) is subject to persona{ jurisdiction in this jurisdiction.


FACTtJA~. ALLEGATIONS

I, THE PRODUCTS

A. "Kids aelief ~lui'

8. HomeoLab advertises that "Kids Reiie~ Flu" relieves "flu-like syrnptnms,'~

"fever aid chills," "aches and pains," and "feeling run-~4wn" in chi{drer, 2 years and over.'

HorneoLab's adwer6sing and packaging stale the product "provides safe, effective relief."

HomeoLab lists "Kids Relief Flu's' ingredients on packaging and advertising as follows:

Active Ingredients: Arias barbariae hepafrs et eordis extracturtt 200C(Autolysate of the heart and fiver of the duckJ: hei{~s relieve (lu-likesymptoms: fever, aches, pains, chills and feeling run-down.

Inactive Ingredients: Purified water, sarbikol, raspberry and grape flavor,sodium benzoate, ~atassium sorbate, Cikr~c acid.

9. But the hart and liver of a Muscory duck, at least at the dilutions claimed

(as alleged in Part fl of this section}, can be scientifiealiy and mathematically shown [o

have no medicinal value, no biological effect on humans, and are not "actiue ir:gredients."

10. HomeaLab markets "Kids Relief Flu° to consumers, who unwittingly spend

millions of dollars a year on worthless doses, retying ors representations HomeoLab has

made in its packaging, marketing and advertising that it is "effective" in relieving flu-like

syrrrptoms. Rlain~iffs and the Class read, believed and relied upon HomeoLab's claims.

11. The United States Center for Disease Control ("CDC"} estimates that as

many as 49,000 persons rrray die from flu in any single year when virulent strains appear_Z

' htta'llur~vw kidsrelie(.cam/flu relief.html

2 httq'llwww cdc govlfluJabpuVdiseaseJus flu-related deaths.htm#hew-n~anY-die

4


In April 2009, the virulent "swine flu" emerged, spreading fear as it swept into the United

States. In June 2009, the World Health Organization declared the outbreak a pandemic.

12. In October of 20'13, Plaintiff Medina purchased Kids Relief F!u" far her child

aver 2 suffering flu-like symptoms, after reading, believing and relying upon HomeoLab's

claims that it was effective in providing relief from "flu-tike symptoms," "`fever and chills,"

"aches and pains," and "feeling run-down." ExF~ibit A. f~~edina administered "Kids Relief

Flu" to her child as directed on HomeoLab's packaging, but the child obtained none of the

promised results. As HomeaLab's "Kids Relief Flu" has no staked or implied purpose

other than to relieve such symptoms, i#s lack of efficacy rendered tt~e product worthless_

13. Absent HomeoLab's Foregoing misstatements, Plaintiffs and khe Cass

would nvk have purchased "Kids Relief Flu." Ta Plaintiffs', similarly situated consumers',

and, significantly, their cf~ilciren`s detriment, the substance listed as the "active ingredient'

in "Kids Relief Flu" is not "active" at all in combating or relieving ar;y symptoms of the flu,

not only because a Muscovy duck's organs do not relieve flu s}<rr~ptams, but because,

given the numerous dilutions used in its preparation (as alleged in Part II of this section),

9t is not measurably present in the "Kids Relief Flu" sold to Medina ancf Cias$ members.

B. "Kids Relief Gough &Cold"

14. HomeoLab touts another product, "Kids Relief Cough & Go1d," as providing

"[eJifective relief that helps relieve dry cough, relieve chest congestion thin 8~ loosen

mucus, suppress cough, relieve pain and reduce fever" in children 2 years and over.'

HomeoLab lists "Kids Relief Cough & Cofd's" ingredients as follows:

3 hftp-!lwww.kidsrelief.comlcough cold medicine,F~tml

S


Active Ingredients: Drosera1C, Sundew, for Ury Cough, ArnicaMontana3C, Leopard's Bane, for Aches & F'ains, Chest Congestion,Bryonia3C, White Bryony, (ar Painful Cough, 1pecacuanha3C, Ipecac, forNight Cough, Cetraria IslandicalC, Iceland Mass, for Cough withExpectoration Befladonna3C, Deadly Nightshade, for Cold &fever,Coccus Cacti3C, Cochineal, for Cough with Expectoration, CoralfiumRubrum3C, Red Coral, for Painful Cough , Skannum Metallicum3C, Tin, forMucus, Cough &Chills

Inactive Ingredients: Purified Water, Sorbitol, Caramel, Sodium Benzoate,Potassium 5orhate, C+tric Acid

15. The common cold is caused by many different viruses.4 There is no knaw~

cure, nor any treatment to shorten the duration of the viruses causing the common cold.

16. Coughs come in two types, and have many causes artd classificafions.

Coughs may be dry (no sputum) or productive (accompanied by sputum). Coughs may

be acute (sudden onset), subacute (lasting 3-8 weeks}, or chronic {longer than 8 weeks).

Coughs may be caused by irritants, viruses, bacteria, disease, choking, nasal drip,

tumors, heart failure, or medication, and may be noted as normal, hacking, barking. etc.

In children, the particular type of sough is morn indicative of the ~mderlying problem,

Despite the many causes of coughs, NomeaLab markets "Kids Relief Cough ~ Cold" as

medicine to relieve both types of cough (wet and dry), regardless of its cause or

classification, claiming that "Kids Relief Cough &Cold" treats both types of cough.

17. HomeoLab claims iks product, "Kids Relief Cough &Cold," treats each of

the aforementioned symptoms. HameoLab claims this product relieves: "dry cough,"

"cough with expectoration," "chest congestion," "aches and pains" and "fever."

4 The Center for Disease Control and Prevention reports over 204 viruses cause thecommon cold. http'/lwww cde qov /getsmart/antibiotic-use /urilcolds.htm!

6


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C. "Kids Relief Pain 8 Fever"

23. Another HomeoLab product containing some of lie above substances,

`Kids Relief Pain &Fever" is likewise no more than "snake ail" HomeoLab advertises as

having the ability to rafieve pain and reduce fever in children 2 years and aver.

HomaoLab's advertising and packaging says the product "provides safe, effective relief,"5

as does its FaceBook page.& HomeoLab !is's the "Kids Relief Pain &Fever" ingredients:

Active Ingredients. Arnica Montana (Montana Flower) (Fever, aches, pain,headache,sore throat), Ferrum Phosphor~cum (Iron Phosphate) 8X (fever,inflammafion), Hypericum Perfaratum 8X fpain in the extremities,toothache fever), Belladonna 8X ((ever,shaoting pain,headache,sorethroat}, Thuja Occidentalis (Cedar) 8X (sinus conjestion, headache, musclepain}, Ledum Palustre 8X (Ghifls and fever)

Inactive Ingredients: Purified Water, Sorbiiol, Cherry Flavor, SodiumBenzoate, Ro#assium Sorbate, Citric /lcitf

2A~. Like the ingredients of {previously mentioned} "Kids Relief Cough & Cald,"

which have no effect ai such extreme dilutions, Kids Relief Pain 8 Fever"' ingredients are

poisons (Belladonna, Arnica lVlortt~na) ~Mhich at higher doses may cause illness or death.

25. Fortunately (as the substances are highly toxic), the ingredients are diluted

1 part to 1,000,000, or 1 part to i,00Q,000,000,000. As discussed in Part II of this section,

the ingredients are diluted to the point they have ~o biological effect on the human body.

26. As "Kids Relief Pair: &Fever" has no stated or implied purpose other than

to relieve pain and fever, its lack of efficacy renders the product completely worthless,

5 h~/www.kidsrelief_Comlpain-relief.html

6 https•l/www facebook comfnotes/kids-0-9Jhomeofab-usa-develops-homeopathic-otc-p_ain-and-fever-rnedieine-far-childrenf 141502504Q5915093

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27. HomeoLab's "Kids Relief Pain 8~ Fever" sells foT aFproxima!ely $10.40 per

unit based an the above-described false, misleading, and deceptive advertising claims_

As a result. HameoLab has wrongfully taken millions of do{lars from cansum~rs.

28. Plaintiff Talmason purchasecS "'Kids Relief Pain &Fever' for his child over 2

suffering pain and fever. He purchased "Kids Relief Pain ~ Fever" after reading, believing

and relying upon HameoLab's packaging and advertising, including thak as to its efficacy

in providing a child relief from pain and fever. Exhibit C. Talmason gave "Kids Relief

Pain ~ Fever" to his child as directed by FfomeoLab, but the child did not receive the

prarrtised taenefits_ "`Kids Relief Pain &Fever' had no impact on fhe child's pain or fever.

D. "Kids F~elief Earache"

29. Ancther example of FlomeoLa~'s deception is "Kids Relief Earache."'

whose packaging and advertising claim gives "fast acting, effective relief that helps relieve

mild to severe ear pair, soothe throbbing pain and pressure, and reduce inflammation' in

children 0-~J yeses of age. Hc,meoLat~ lists the "Kids Relief Earache" inyredie:nts:

Active Ingredients: Ferrum Phosphoricum (Iron Phosphate) 307(inflammation and fever), Capsicum ~1nn~um 30X (acute pain and pressurein the ears), Pyroyer~ium 30X (infection ar~d fever), Arsenicum Album 30X(burning pain in the ears), Bel(ador~na 30X (tht'obbing pain andinflammation}

Inactive Ingredients: Purifed Water, Sorbitai, Grape Flavor, RaspberryFavor, Sodium Benzoate, Potassium Sorbate, Citric Acid

30. Though HameoLab claims "Kids Relief Earache" is "safe and effective" to

treat a child's earache, treatment without medical supervision is neither safe nor effective

7 htt~!/www,kidsrelief.comlearache so~ution.html7


for ear pain, as consUr'rters cannot distinguish its symptoms from more serious disorders

of the ear or adjacent tissues, which are not amenable to treatment without rnedicai

supervision, and can lead to serious injury if not accurately diagnosed and treated.$

3~. "Kids Relief Earache" also contains Belladonna (`Deadly Nightshade"), and

Arsenicum Album (arsenic trioxide), which in higher doses may cause illness ar death.

32. Fortunately (as the substances are highly toxic), the ingredients are diluted

1 part to 1,Q~0,00{l, or 1 part to 1,QOO,000,OQO,OQO. As discussed in Park II of this section,

the ingredients are diluted fa the point they have no biological effect on the human body.

33. As "Kids Relief Earache" has no stated or implied .purpose other khan to

relieve a child's earache, its lack of efficacy renders the product completely worthless.

34. HomeoLab's "Kids Relief Earache" sells for approximately $10,00 der unit

based on each of the aboue-described false, rrrisleading and deceptive advertising claims.

As ~ result, HomcoLab has wrongfully taken millions of dollars from consumers.

35. Plaintiff Barber purchased "Kids Relief Earache" fir her child of the

indicated age suffering from pain and fever. Ills. Barber purchased "K~ds Relief Earache"

after reading, belieuing and relying upon HomeoLab's advertising, including its

representations as to the efficacy of ''Kids Relief Earache'" in providing a child relief fr€~m

the pain associated with are earache. Exhibit D. Ms. Barber subsequently administered

~ Indeed, an September 19, 2U13, the FDA issued HorneaLab a warning letter concerning"Kids Relief Earache," finding its "labeling is false ar misleading because it represents theprpduct as suitable for use by consumers to treat a condition which the Agency has foundnot appropriate far 07C drug treatment, and because it encourages C?TC treatment forear pain, but fads to distinguish among conditions that manifest with ear pain and that canI~ad to serious injury if not accurately diagnosed and treated by a licensed physician."http'l/www fda govJicecilenforcementaction~/warningletfers120'13/ucm369655.htm

10


"Kids Relief Earache" to her child as directed by HomeoLab, but the child obtained none

of the promised benefits. "Kids Relief Earache" had no impact on the child's earache.

E. The Nature 8 Effect of HomeaLab's Misleading Marketing

36. HomeoLab's misrepreseniations in marketing its products' ingredients,

efficacy and benefits--including that they have been approved by the FDA--were designed

to, and did, induce reliance by reasonable consumers, including Plaintiffs and the Class.s

HomeoLab's inters! behind its rnisrepresentatians escaped weU before the class period,in the April 8, 1996 issue of Chairr Drug Review, which quoted President Michele Bvisvert:"Drug chains need to recoup the revenues that are disappearing from other cakegories.. But pharmacisks want products with clear claims.'" During the class period,HomeoLab's intent to increase its sales by making increasingly "clear claims" escalated.First, a February 18, 2Q10 ariide for HomeoLab in the Chain Drug Review claimed:"Homeopathy Bakes beck to ~6Q B.C., and is considered safe and effective over-the-c;ounter medicine try 1h~ Food and 17rUq Administration." A February 22, 2010 article inMass Markef Retailers reported, "[e}xeeutives emphasize that HorneQlab's f~omeapathieremec)ies are rr~a~e from only khe Finest of natural ingredients, and all are manufacturedin strict accordance with the ~ufdelines of .the Food and Drug Administration."FUll~winc~ pth~r child drug recalls: ti~1arch 1, 2010's Chain C~rug Review quoted Bnisvert:"With recent FD/1 concerns regarding cough and cold products for children, ii seems ;hattie category is allowir;g far tnorc homeopathic penetration." June 7, 2010's Chain DrugRevie;u: "All HomeoLab products are manufactured in strict accordance with FDAguidelines." February 2.8, 201 1's Chain Drug Review: "Boisvert, preside~lt of Kids ReliefmarKeter Homeolab USA, says the company features 'bright, crisp and simple packagingwhich resonates with the consumer."" June 18, 2072"s Mass Market Retailers quoted her:`(~Jur medicines are manufactured from only the finest ofi natural ingredients in strict~ccQrdance with tho regulations and guidelines of the Food and Drug Administration_"HomeoLab's "goal is to reach $~~0 miil;on in sales within the next five years." Id. TheAugust 19, 2013 Chain Drug Review notes Homeolab "plans to run a television campaignin the fall that wilt air an such popular shows as 'Dr. Oz' and 'Nickelodeon Mom' and NLand network. The company has also mounted an extensive print campaign that includesParents magazine, Working Mather and other publications." In pursuit of its sales goal,HomeoLab marketer Lau Machin stated in 2Q12: "Homeolab USA is an innovative 25 year

old m8nufacturer o€ Homeopathic FDA approved safe and effective remedies. Top itemsinclude Kids Relief children's medicines and innovative Real Relief adulk remedies." See:http:llwwv~.linkedin comlpr~fi~elview~id=110131778authType=NAME SEARCH&authToken=7M1K81ocals=en US&srchid=1424498071382467668455&srchindex=l~srchtotat -11&trk=vsrp peaple_res name&trklnfo=VSRPse~chld%3A1424498071382467668455° Io2CVSRPtar etkd° fo3A11a13177° /a2CVSRPcmpt°Io3a~rimary

ti


Homeolab disseminates the same misleading Claims in i4s packaging on its "Kids Relief'

website,~0 HomeoLab website," FaceBook," YouTu~e,13 and television commercials.'''

37. A~ the direct and proximate result of NomeoLab's false and misleading

representations, reasonable consumers, including named Plaintiffs and Class members,

were led to believe HomeoLab products would relieve their children's medical symptoms.

based an the false beliefs induced by HomeaLab's false and misleading representations,

named Plaintiffs and Class members purchased HomeoLab products far their children.

38. but far HomeoLab's misrepresentations, Plaintiffs and Class rteembers

would not have purchased HomeoLab's "Kids Relief` products far their chikdren.

39. HomeoLab's advertising is consistently false, misleading, and deceptive.

Aq of its products advance the same false and d~eptive advertising in the same manner.

During the class period, HomeoLab sold the same products under the name Kids Q-9.' '''

Horn~o~ab's misrepresentations of ils "Kids Relief" products' efficacy were designed to.

and did, lead consumers to believe the products would relieve their children's symptoms.

Plaintiffs and the Class relied to their detriment an HomeoLab's misrepresentations, and

would not have run ou! and paid far the products but for those misrepresentations.

1° httu:l/www.kidsrelief_comf

" http:l/www.homeolab corn/

"~ https•l/www facebook coml~ages/Kids-Q-9I39144803481?v=wal!

"E.g., http:l/youlu.be18se9vjuT6hw and http:Ilyoutu.be1M29maWRhd s [VIDEpSJ

" E.g., http'l/Youtu.be/Pc~75srb.uaEE and htt :ll outu.belWzJM1lmle [VIDEaS]

'' http'llwww.kidsrelief.cQmfnevus.htm!

lz


Ii. THE NOMEOPATNfG PRETEXT

40. Each of fhe foregoing products, like alf HomeoLab products, are suk~stances

used in what calls itself "homeopathic medicine": a matter mentioned in the finest of print

m HomeoLab's packaging anrf advertising, yet never explained. Homeopathic drugs ire

not held to the standards of non-homeopathic over-the-counter ("OTC"} drugs, which

require approval by the Food and Dreg Adrrtinistraiiort (° FDA") after a detailed drug

application, with evidence of adequate, well-controlled investigations and clinical trials by

experts qualified by scientific training and experience to evaluate the drug's effectiveness

on a basis from which such experts could fairly and responsibly conclude the drug wiCl

have the effect it is represe~led to have under the conditions of use prescribed,

recommended or suggested in its labeling or proposed labeling. 21 U.S.C. § 355.

41. Unlike non-homeopathic OTC drugs, Homeopathic drugs--including those

F1ere at issue--are not evaluated by the FDA, which his led to co~fusian. Here, this

confusion crosses the line into decepfron. Homeol~a~ is not aniy taking advantage of

consumers' desire far natural medicine, but also deceiving consumers into 'rselievi~g that

HomecaLab's produc#s are effective, regulated drugs fha# are held to the same standards

as true medical drugs and non-hameo~athi~ OYC drugs, claiming on its website that alt

of its Products are "manufac#ured in strict accordance with FDA ...guidelines":

our commitment to quality and purity assure that you are getting the finestproducts available, All Homeolab products are manufactured in skrictaccordance with FDA and I~PUS guidelines,76

i~ httQ:!/www_kidsre{ief_com/about.htm! (See also Footnote 3, supra].

1.3


~l2_ Fiomeopathiccirugs are riot classified by demonstrated effectiveness, but by

homeopathic "provings" in the 1$d0's and early 1900's, which did nat show effectiveness

in curing an ailrr~ent, but That the substance caused symptoms similar to the ailment. phis

was based on a homeopathic 'law of similars"--the notion that symptoms Qf a disease:

ailment ar condition could be cured by extremely small doses of substances that produce

similar symptoms in healthy people in larger doses. After "provings," homeopathic drugs

were included in the "Homeopathic Pharmacopeia of the United States" ("HPUS"}.

43. The FDA does not recognize homeopathic drugs as "ef#ecfive" for anything.

44_ Indeed, the HPUS does not list its drugs as effective to treat ar~y symptom,

ailment or condition, but descries only haw d~ùgs are prepared for homeopathic use,

leaving decisions abut homeopathic drugs' use up to the practitioner {or manufacturer).

45. The FDA has stated s "product's compliance with requiremenks of the HPUS

... does not establish that it has been shown by appropriate means to be safe, effective,

and not misbranded for its intended use." FDA Compliance Policy Guides § 40Q.400.

46. though "studies" have claimed such remedies effective, none has survived

scrutiny. The 2005 Swiss Government s comprehensive placebo-controlled homeopathy

trials found any positive clinical effects of homeopathy are no more than p#acebo ertfects,

echoing a British medical review finding homeopathic treatment "placebo therapy at best

and quackery at worst."" The American Medical Association and (~akianal Health Service

have issued statements that r+o scientific evidence supports homeopathic treatments.

47. As indicated below, scientific evidence conkradicts and refutes such claims.

'' Emst, E.; Pittler, MI-I (1998), "~f€icacy cif Homeopathic Arnica: A Systematic Review ofPlacebo-Ca~trofied Clinical Trials," Archr`ves of Surgery 133 (11 }: 1187-90.

14


48. Homeopathic remedies are prepared by seria!fy diluting "natural"

ingredRents, and repeatedly shaking and striking there to increase their "effectiveness."

49. Homeopathy uses logarithmic dilution scales. The "centesimal" or "C scale"

dilutes a substance by a factor of 100 each time. A "2G" dilution is a substance diEuted to

one part in 100, and then 1 % of that dilution is diluted by a factor of 100. This equals one

part of the original substance in 10,Q00 parts of the solution. A "6C" dilution repeats

dilution six times, ending up with the arig~nal substance diluted by a factor of 1a0-6=10-i2

{one part in one tritlion ar 1/1,000,000,00 ,400). Higher dil~tiorts follow the same pattern.

A decimal potency scale (noted "X" or "Q") means dilution by a factor of 10 at each stage.

The product is so diluted it is indistinguishable from the dilutan! (water, sugar or alcohol).

g0, HvmeoLab claims its products' homeopathic ingredients include flowers,

animal organs, vegetables, insects, metals and poisons, and that (apparently so as not

to poison the consumer's child}, the ciifutions in HomeoLab's products arc up io 206 .

51 The dilution of Muscovy d~ek heat and liver stated on the packaging and

Internet marketing of hlomeoLab's "Kids Relief Fever," supra, fiar example, is 2dOC.

52. As there are about 10 0 a!oms in the entire observable universe, a dilution

of 1 molecule into that universe would be about 40C. "Kids Relief Fever" would thus need

10~2tl more universes than are known to exist to have 1 molecule in the final substance.'B

53. The ~~~~~of chemistry skate tE~ere is a limit to dilution+ without losing the

original substance entirely, known as Avagadro's number (about 6.023 x 10-23), a dilution

at which there is less than a 50° lo chance that even a single molecule of material remains.

~ a Robert L. Park ~20a8), "Supersti~~on: Belief in the Age of Science," Princeton University

Press, pp. 145-146. ISBN 0-691-1335-7.

15


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flu-tike symptoms, fever, chills, aches, pains, and feeling run-down; (?_} chat "Kids Relief

Cough & Coid" could relieve a child s dry cough or chest congestion, thin or loosen mucus,

suppress cough, relieve pain, or reduce fever, (3) #hat "Kids Relief Pain 8~ Fever" could

relieve a child's pain and reduce fever; (4) that "Kids Relief Earache" could provide "fast

acting, effective relief that helps relieve mild to severe ear fain, soothe throbbing pain

and pressure, and reduce inflammation"; (S) that ingredients are present in the products,

or present in sufficient amounts ko comprise "active" ingredients; (6) that other NQmeoLab

products relieve the symptoms claimed; (7) that HomeoLab products are manufactured

under FDA guidelines; and (8) that they are considered safe and effective by the FDA.

~0. In fact, the products: (1) had no effect on the symptoms that MameoLab

claimed; (2) are so diluted as to be completely inactive; and {3) were neither manufactured

under FDA guidetirles, nor considered safe or effective by the FDA.

f1. HomeoLab made the material misrepresentations, intentional omissions,

and non-disclosures detailed herein cantinuoi~sly throughout the class period.

62, HomeaLab m~cie each of the material misrepresentations, omissions and

ion-disclosures alleged herein on the products' packaging and other media, and made

misrepresentations an the ° HomeoLab" website, and "Kids Relief" website which were

designed ko, and did, mislead Plaintiffs and Class members to purchase the products.

63 HomeoLab made the material misrepresentations,- intentions! omissions,

artd non-disclosures detailed herein for the express purpose of inducing the Plaintiffs,

Class members and other reasonable consumers to purchase and give their children

"Kids Relief Flu," "Kids Relief Cough & Cald," "Kids Relief Pain &Fever," and "Kids Relief

Earache," based an the false belief that the products would relieve their child's symptoms.

17


CLASS REPRESENTATION ALLEGATIONS

I, Class Definitions

64. Plaintiffs bring this Nationwide Class Artior~ for deciaratary and injunctive

relief, damages and other monetary relief, an behalf of the following Class:

All persons 18 years of age or older wha, while residing in the lJnited States,purchased in the United States. {a) "Kids RelieF Flu," ° Kids Relief Cough &Gold,"andlar "Kids Relief Pain &Fever." For their children) 2 years of age a over; and(or(b) "Kids Relief Earache," for children} between- 0 - 9 years of age, and/or (c) thesame under "0-9 Kids" {abets, during the 4 years preceding the filing of this action.

65. Alternatively, Plaintiffs bring a Statewide CIaSs Action for declaratory and

injunctive relief, damages end other monetary relief, on behalf of the falowing Class:

All persons 1 S years of age or older who, while residing in the State of Florida,purchased in Florida: {a) "Kids Relief Flu," "Kids Relief Cough & Coid," and/or

"Kids Relief Pain ~ Fever." for their children} from 2 years of age ar over; and/or(b) "Kids Relief Earache," for their chEld(rer~y 0 - 9 years of age, andlar (c) the

same :ender 0-9 Kids" labels. during the 4 years ~recedinc~ the filing of this action.

66. Excluded from the Class are governmental entities, HomeoLab, any entity

in which HomeoLab has a controlling interest, HomeoLab's officers, directors, affiliates,

legal counsel, employees, co-conspirators, successors, subsidiaries, and assigns. Also

excluded are the Gourt, its staff and officers, and members of their immediate families.

IL Numerosi#y

67. The Class is so numerous individual joinder of all members is irnpractiGable.

Due to the nature of the trade and Commerce and HomevLab's sizeable market share of

the sale of homeopathic products, the number of Class members is at least in the

hundreds of thousands and geographically dispersed. Whereas the exact number and

18


precise identit+es of all Class members are unknown ~t this time, such information may

b~ ascertained through discovery. The disposition of tie Class mernbers~ claims in a

single class action will provide substantial benefiks to all Parties artd to the Court.

tll. Commonality

fib. C2uestions of fact and law common to Class members predominate over any

questions affecting only individual memk~ers, including, but not Jimited to:

a. Whether HomeoLab communicated a message kha! the products at issue

were ef#ective in treating the identified symptoms;

b. W hether HomeoLab`s efficacy claims can be scientifically s~rown to be false;

c. Wheiher HomeoLab has falsely represented that the HomeoLab products

at issue have bene#its which they do not -have;

d. Whe#her Home~Lab knew or shor~ld have known its claims were false;

e. Whether HorraeaLab's efficacy claims were unfair and deceptive;

f. Whether HomeoLab's conduct constitutes the alleged violations ofi law;

g. Whether Plaintiffs and Class rrtembers have sustained (oss, injury n Fact,

actual damages, and the proper measure of those damages;

h. Whether Plaintiffs ancf the Glass are entitled to cornpensator~ damages,

including actual and statutory damages plus interest thereon, andlor monetary restitu#ion,

i. Whether HomeoLab acted wipfut~y~ recklessly, andlor with gross negligence

in committing the violations of the !aw alleged herein;

j. Whether Plaintiffs and Class members are anti#led to .punitive damages;

k. Whether Plaintiffs and the Glass are entitled to declaratory/injunctive relief.

19


IV. Typicality

69. Pla+ntiffs~ claims are typical of those of the Class as all purchased end

administered to their ailing ehild(ren) products HomeaLab misrepresented as effective in

relieving their children}'s symptoms, but did not receive the promised benefits. Plaintiffs

and the Ciass alf sustained fhe same injury from HomeoLab's common course of conduct.

Plaintiffs' .and Glass member's injury was caused directly by HomeoLab's uniform

wrongful, illegal conduct. Each Class member has sustained, and continues to sustain,

damages in the same manner as Plaintiffs as a result of Horneot_ab's wrongful conduct.

V. Adequacy of Representation

70. Plai~i~ffs will fairly end adequately represent and protect the interests of the

Class, and have retained counsel with substantial experience handling romplex Utigatio~

in general and scientific cf~ims in particular. Plaintiffs and their counsel are committed to

vigorously prosecuting #his action on behalf df the Glass and have the resources to do sa.

VI. Provisions of Fla_ R. Civ. P. 1.220(b)~3y

71. The present action is appropriate far adjudication as a lass action pursuant

to the provisions of Rule 23(b){3), Federal Rules of Civil Procedure.

72. Questions of law or fact common to class members predominate over any

questions of law or fact affecting only individual members.

VII. Superiority

73. The class action mechanism is superior to other available methods for fairly

and efficiently adjudicating the controversy, in part because:

zo


(a) Joinder of all individual Class memt~ers would create extreme hardship and

inconvenience for the affected consumers, as they are geographically dispersed;

(b~ {ndividual claims are impractical as the costs of pursuing individual claims

would exceed the value of what any one class member would have at stake. As a result,

individual class members have no interest in prosecuting and controlling separate actions;

(c) There are no known individual class members vuho are inkerestecf in

individually cantrolting the prosecu#ian of separate actions;

(d) The interests of justice would best be served by resolving the common

disputes of potential class members in one forum;

(e} Individual lawsuits would not be cost effective or economically maintainable:

{f) This action is manageable as a class action.

74. Plaintiff is uraware of any difficulty likely to he encountered in management

of a class action that wnuld preclude its m~ir~ter~ance as a class action.

Vfll. Pr~~ision~ of Fia. R. Civ. i'. 1.220(b)(1) 8 (2}

75. Prosecuting separate actions by ar against individual class members would

create a risk of inconsistent or varying adjudfeations with respect to individual class

members that would establish incompatible standards of conduct for HomeoLab.

7fi. HomeoLab acted or failed to act in a way generally applicable to the Class,

making appropriate dedara[ory and injunGive relief with respect tc~ the Giass as a whale.

77. HomeoLab's wrongful conduct, if not en}Dined, wi11 subject Class members

and other members of khe public to substantial continuing harm; causing irreparable injury

to Plaintiffs, Class members and other consumers damaged by such conduct.

21


CAUSES OF ACTION

COUNT 1UNJUST ENRICHMENT

78_ Plaintiffs a~?d the Class (collectively "Plaintiffs") re-allege and incorporate

paragraphs 1 through 77, supra, as though fully set forth herein, and further allege:

79. Through misrepresentations #hat its products were effective in relieving

child~ren}'s medical symptoms, HameoLab received monetary profits from Plaintiffs.

80. H~meoLab misled Plaintiffs to believe tt~al its products contained active

ingredients capable of treating symptoms suffered by Plaintiffs' child(ren)_

81. to Fact, HomeoLab's products had no effect an humans, and were worthless.

82. HomeoLab collected money from Plaintiffs well in excess of what Plaintiffs

would have paid for a useless product.

83. The aforementioned money c~arectly benefited Homec~L~b, and was taken to

the detriment of Plaintiffs, as Gvell ~s their children.

84. F'Iafntiiffs believed they were paying far ingredients effective in relieving their

children}'s medical symptoms, but were, in fact, inert substances with no value.

85. HomeoLab received financial benefits in the form of unjusf profits_

86. As a result, Plaintiffs have conferred a benefit on HomeoLab.

87. Homea~ab knew of this benefit, yet voluntarily accepted and retained it.

$8. HomeoLab would be unjustly enriched if allowed to retain such benefits.

WHEREFORE, Plaintiffs, on their own behalf and nn beha~f of those similar{y

situated, demand award in sums by which Homeol.ab has been unjustly enriched at

Plaintiffs' expense and such other and further Belie€ as tv the Court seems just and proper.

~2


courvT i~FLORIDA DECEPTIVE AND UNFAlR TRADE PRACTICES ACT

89. Plaintiffs and the Class (collectively "Plaintiffs") re-allege and incorporate


9Q. The Florida Deceptive and UnfairTrade Pract~ce~ Act ("FDUTPA"), prohibits

"unàir methods of compet+tion, unconscionable aci$ or practices, and unfair ar deceptive

acts or practices in the conduct of any Trade or commerce." ~ 501.2Q4, Fla. Stat.

91, Plaintiffs are "consumers," defined in § 50~t.203(7), Fla. Stat.

92. Plaintiffs have standing to pursue this claim as they have suffered inyury in

fact end have Lost money or property as a result of HQrneoLab's actions.

93. HomeoLab teas engaged in, and continues ko engage in, unconscionable

ac#s or practices, and unfair or deceptive acts in the conduct of its trade andlor commerce.

94. HomeoLab's practices are unfa+r, offend public policy, are immoral,

unethical, unscrupulous; injurious ka Consumers, end vial~te the ~DUTPA.

95. HomeaLab misled Plaintiffs to believe its products had active ingredients

capable of relieving sympkoms suffered bytheir children, despite evidenceta the conkrary.

96. HorneoLab's prarkices are "deceptive" because they are likely to, and did,

deceive reasonable consumes, including Plaintiffs.

97. HomeoLab`s acts intended to and did obtain unfair/unlawful compensation.

58. Plaintiffs and Class rr~embers relied on HomeoLab's misrepresentations.

99. HomeaLab's actions violate the FDUTPA, and were conceived, devised,

planned, irnpleme~ted, approved and executed from within the State of Florida.

10Q. Horneol.ab's practice of packaging and marketing its products as containing

active ingredients capable of relieving the symptoms of childrer:'s diseases, ailments or

23


condit,ans comprises a per se violation of FDUTPA pursuant to § ~01.Z03(3}(c}, Ala. Slat.,

as such practice itself violates the Florida Drug and Cosmetic Act, § 499.007(1 }. Fla. Stat.

{"A drug or device is misbranded .. _ (i]f its labeling is in any way false or misleading.").

101. Misbranded products cannot be legally sold, and are thus legally worthless.

i02. Plaintiffs sustained damages as the proximate result crf such practices.

103. § 501211(2), Fla Stai. creates a private right of action against Plaintiff.

104. As a result of HomeoLab's deceptive and unfair practices, plaintiffs have

been damaged, as they spent money an products for which they received na value.

105. HarneoLaG's practices comprise a continuing course of unfair competition,

as it marketed its ~roduUs i~ a manner that offends public policy, andlQr in a manner that

is immoral, unethical, oppressive, unscrupulous, of substantsaliy injurious to consumers.

146. Plaintiffs and the Class have been damaged by HomeoLab's decep#ive and

unfair conduct as they purchased a misbranded and worthless produ:.t for their child{ren j,

or paid prices they would not have paid had HomeoLab not misrepresented the ~ro~uct.

"i07. The Plaintiff Class has 5u(fered and will continue to suffer irreparabke harm

if HomeoLab continues engaging nits deceptive, ~jnfair and unreasonable practices.

WHEREFORE, Plaintiffs, on their awn behalf and an behalf of ail those similarly

situated, demand judgment for compensatory damages, pre- and past-judgment interest,

attorney fees, injunctive and declaratory relief, and the casts of bringing this action

COUNT IIINEG LIGEN7 lUl ISREPR~SEMTATION

1Q8. Plaintiffs and the Class fcalleciivety "Plaintiffs"} fie-allege and incorporate


24


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.t'~.~t~.~i. F. ~ ti:tlt Jil~.q.?CT ~;~it r i1~,.'i'~~ F.~ t.~b~ ~sJ -;- ~~"~ ;if, ull. ~ _ ~ ~. 5 f, d3~ ?f:~ .


PRAYER FOR RELIEF

UVNEREFORE, Plaintiffs, on their own behalf, and on beha{f of a14 those simiiarfy

situated, demand judgment against Defendant H~meoLab:

(1~ Gertify~ng this suit a class ac~ion per Rule 1.220(a), (b}(1} and (2), or (b)(3),

Fla. R_ Civ, P., and declaring Plainliifs and their counsel representatives of the Ctass;

(2) Enjoining HameoLab from continuing Uie practices described herein;

{3) Awarding dam8ges sustained by Plaintiffs and the members of the Class as

a result of NomeaLah's eanduct, together with pre- and post-judgment interest;

(4) Finding HomeoLab has been unjustly enriched;

(5) finding NomeoLab's acts unfair methods of competition; unconscionable

acts or practices, and unfair or deceptive acts or practices in trade or cpmmerce;

(6) Finding HomeoLab's conduct constituted negligen# misrepresentation;

(7) Requiring NomeoLab refund all ur~jusl henefiis to Plainti`fs and the Class,

tether with pre- and post-judgment interest:

(8) Awarding Plaintiffs and the Class costs and disbursements, reasonable

expert and attorney fees, and reimbursement of ~;xpenses; anc~

(9) Awarding such other and further relief as the Court deems just and prayer.

GIEMAND FOR JI~RY TRIAL

PlaintEffs and the Class request trial by jury as to all such issues so triable.

Submitted this 6i" day of November, 2013.

26


SHEILA ZOLNOOR, ESQUIRE746 Northeas( Third Avenuefort Lauderdale, Florida 33304Telephone: (954} 224-9652

B: f5 eila Zolncror, Es .Florida Bar No. 43039Sheila~CoinoarLaw.com

~o

THC?MAS P. U'~ONNELL, P.A.75Q Southeast Third Avenus, Suite 204Fort Lauderdale, Florida 33316Telephone: (954) 527-1092Facsimile: (954) X27-'1766

y. /Thomas P. O'Conn sq.Florida Bar No. 9312924TrialTom2@ao{.com


f~EE 4ROPl~F~H~xar:ga~hit ~4~-3nne

~ ~ ~

~~~~E'~

ItN}~s rc~t~e ~1~~1ii~esY~~t~~;• Eevei and th~~~• J~ct~es and gams• ~ee~i~g ~~~~~~~~~

,~

•/

~CH~BIT A

28


'~' ~ ~ iC:1 S ~h'~:~~~~ef~.::fo

Kids2~+~

~ 1 ~ ~ ~ ~f

that he{ n& ~~ective relief ~~~ .~•Relieve dry ~p~gh'Relieve chest congestionThin and 1posen mucusSuppress cough• Rei~eve pain anG reduce fever

i:.

~, ,

`~Q~eopat~c hlediane

.~ `-. ~ ~71~tEoti;4 g

EXHIBIT B

29


R~~ief`..~.,..FQsX~dS

_ 2k

Fist utin ~~~~ik~t ~elp~ e~ettive retiet~clieve gain

'reduce lever

~xHiB~T c

30


_~/~r'

1 ~, ~~~li+~~ ~Qt~«..° -g

East acki~y effe~tire rdi~ftnAt helps:• Relieve mild to severe ear painSoothe thrah~ng pain a~ ptessareRrdntr intlammatias~

~~:to

FREE ORdPPfBFtareopathic a1.~c~rxaasflui

~CNiBiT D

3]


Casc N~nnber: CACL-13=02~tGK I Division: 03~:irciruni~;~lly Fitcd 1 I.'i)bi2t11 i 03:-1 x:35 I'M C:7.

FORM 1.997. CIVIL COVER SHEET

The civil cover sheet and the i~formaiion contained herein neither replace nar supplement the filing and service of~ pleadings or other papers as required by law. This Corm shall be filed by the plaintiff or petitioner for the use of the Cterkc' o(the Court for the purpose of reportins~ judicial workload data pursuant to Florida Statues section 25A75.

rt

-. 1. CASE STYLE~, ~N THE C~RCuiT COURT of SEVENTEENTH THE JUDICIAL CIRCUIT,

IN AND FOR _BROW/~RD COUNTY, FLORIDA

Case Noj Judge: _

Jr:;~ic,a P. Medina Carla Klcinuhin~ t3:rvid Taln~ason, ~~~~~~~BarberC Plainiiflu- vs.~ t IU;1~I~ULA13

DefendantOz

~`: IL TYPE OF CASE

'~.

~ ! ' Condominium~ I 'Contrasts and indebtedness=r i !Eminent cioma+n

C _Auto negligence ""'~° `"~~5 i Negligence —other

Business governance

`` J Business torts=`- ~~~~~~~~~~~~~~~~~~~~~tort=~ Third party inciernni6catfun

i ~ Construction defecti 1 Mass tort. I Negligent security

i Nursing home negligencePremises liability -commercial

[ Premises liability —residential

G~ Products liability

D Real PropertylMortgage foreclosure

i_ l Commercial foreclosure $0 - $50,000

-] Commercial foreclosure $50.001 - $249,999Commercial foreclosure $250,000 or more

[ I Homestead residential foreclosure $0 — 50,000

L.1 Homestead residential foreclosure $50,Q01 -5249,999

i_I Homestead residential foreclosure $25Q,OOfl ormore

~J Nan-homestead residential foreclosure $0$50,OOfl

_J Non-homestead residential foreclosure $50,001--- - $249.999

Non-homestead residenfial foreclosure $250,00or more

,~ Other real property actions $0 - $50,000

J Other real property actions $50,001 - $249,959~ Other real property actions $25{1,~U0 or more

_~ Professional malpractice- f> Malpractice —business

~_ ; Maipraciice —medicalMalpractice —other profess~ona!

=1 01herAntitrustlTr~cie Regulation

] Business Transactioni 1 Circuit Civil -Not Applicable

1 Constitutional challenge-statute orordinance

f ! Constitutional challenge-proposedamendment

L7 Corporate TrustsJ Discrimination-employment or other❑ Insurance claimsU Intellectual property❑ Libel/Slanderi I Shareholder derivative action

i Securities IiUgationU Trade secretsCI Trust litigation


III. REMEDIES SOUGHT (cheek all that apply):~ Monetary;G~ Non-monetary~ Nan-monetary declaratory or injunctive relief;~ Punitive

IV. NUMBER OF CAUSES OF ACTION: {(specify)

3

V. IS THIS CASE A CLASS ~4GTION LAWSUIT?

f~l Yes❑ No

VI. HAS NOTICE QF ANY KNdWN RELATED CASE BEEN FILED?

Na❑ Yes — If "Xes" list all related cases by name, case number and court:

VII. IS JURY TRIAL DEMANDED IN COMPLAINT?

D Yes _n No

CERTIFY that the infon~~atiun I have provided in this cover sheet is accurate to the best of my knowledge

and belief.

Signature s/ Thomas P O'cunneli_ _ ___ _ __ __ FL Bar No.: f)312i)2

Attorney ~r party {Bar number, if altomey}

Thomas P O`connell __ 1 1/{x;2O13

(Type or print name) Date


1N THE CIRCUIT COURT OF THE17TH JUDICIAL CIRCUIT IN ANDFOR BROWARD COUNTY, FLORIDA

CASE NO. LACE-13-024681 Division: 03

JESSICA MEDINA, CARLA KLEINUBING,DAVID TALMASON, and LAURABARBER, Individually and on behalf of allthose similarly situated,

Plaintiffs,v.

HOMEOLAB U.S.A, INC., a foreign fullprofit corporation,

Defendant.

NOTICE OF FILINGNOTICE OF REMOVAL OF CIVIL ACTION

TO: Clerk of the Circuit Court of Broward County, Florida:

You are hereby notified that Defendant HomeoLab U.S.A., Inc. has, on this 5th day of

December 2013, filed in the United States District Court for the Southern District of Florida, a Notice

of Removal to Federal Court of the above-entitled cause, a copy of which is attached hereto as Ea~hibit

A and made a part of the Notice to Clerk, for your information and guidance. This Notice serves to

effect full removal of this. case pursuant to 28 U.S.C. § 1446(d), thereby precluding this state court from

proceeding further in this case, unless and until this case is remanded hereto by the United States

District Court.

Dated: December 5, 2013

Alina Alonso Rodriguez (FBN 178985)Email: arodri~uez(a~carltonfields.comGary Pappas (FBN 705853)CARLTON FIELDS, P.ASuite 4200, Miami Tower100 Southeast Second StreetMiami, Florida 33131Telephone: (305) 530-0050Facsimile: (305) 530-0055

28619409.1


D. Matthew Allen (FBN 866326)Email: mallen(a~carltonfields.comCARLTON FIELDS, P.A4221 West Boy Scout Blvd., Suite 1000Tampa, Florida 33607Telephone No. (813) 223-7000Facsimile No. (813.) 229-4133

Attorneys for Defendant

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Filing

Notice of Removal was served via Email this 5th day of December, 2013 to: Thomas P.

O'Connell, Esq. (TrialTom2(a~aol.com), Thomas P O'Connell, P.A., 750 S.E. 3rd Avenue, Suite

204, Ft. Lauderdale, FL 33316 and Sheila Zolnoor, Esq. (Sheila(c~ZolnoorLaw.com), 746 N.E.

3rd Avenue, Fort Lauderdale,. FL 33304, Attorneys for Plainti fs.

By:ALINA ALONSO RODRIGUEZFlorida Bar No. 178985

28619409.1


Documents

Case 0:13-cv-62650-MGC Document 1-4 Entered on FLSD Docket ... · Case 0:13-cv-62650-MGC Document 1-4 Entered on FLSD Docket 12/05/2013 Page 9 of 45. In April 2009, the virulent "swine