porter v colgate

8/3/2019 Porter v Colgate

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Case 2:11-cv-00644-CEH-SPC Document 1 Filed 11/07/11 Page 1 of 23 PagelD 1

UNITED STATES DISTRICTCOURT.MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

'71NI POW11.7..E., on behalf of herselfand all others similarly situated,CASENO.:,

Plaintiff,CLASS ACTION COMPLAINT

v. JURY TRIAL DEMANDEDCOI.GAT11.-PALMOI.IVE COMPANY,a Delaware corporation. --c\/ L-S -FtMai95h,efendant.

CLASS ACTION COMPLAINTPlaintiff Irene Porter, by and through undersigned counsel, brings this action on her own

behalf and on behalf of a Class of persons defined below against Defendant, Colgate-PahnoliveCompany ("Colgate" or "Colgate-Palmolive" or "Defendant"), and for her Complaint alleges, uponinformation and belief and based on the investigation to date of her counsel, as follows:

NATURE OF THE ACTION1. This is a class action arising from Colgate's unfair, deceptive, Use, and otherwise

improper advertising, sales, and marketing of Softsoap Antibacterial hand soaps ("Softsoapkntibacterial" or the "Product")

2. As more fully alleged herein, Colgate falsely advertises that Softsoap Antibacterial ismore effective than ordinary liquid hand soap at killing germs when, in fact, Softsoap Antibacterial isnot any more effective than ordinary and less expensive liquid hand soap.

3. Unlike ordinary liquid hand soap, Softsoap Antibacterial contains "triclosan" as itsactive ingredient at a concentration of between 0.115% and 0.15%. Triclosan is a chlorophenol thatcan function as an antibacterial and antifungal agent in certain circumstances. I lowever, the United


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States Food and Drug Administration ("FDA") has not received evidence that triclosan added tohand soap provides an extra benefit to health and has further stated that "the agency does not haveevidence that triclosan in antibacterial soap and body washes provides any benefit over washing withregular soap and water."

4. If fact, due to studies showing that triclosan alters hormone regulation in animalsand may contribute to making bacteria resistant to antibiotics, the FDA ha s engaged in an ongoingscientific and regulatory review of the safety of triclosan in regulated products, including hand soaps.

5. By falsely claiming that Softsoap Antibacterial is more effective than ordinary liquidhand soap, and by disseminating these false claims to consumers nationwide through televisioncommercials, Internet websites, print advertisements, Product packaging, and through other formsof promotional media, Defendant intended to induce and did induce unsuspecting consumersto purchase triclosan-containing Softsoap Antibacterial or to pay more for Softsoap Antibacterialthan they othenvise would have, resulting in millions of dollars of revenue for Defendant.

6. Furthermore, to this day, Colgate ha s taken no meaningful steps to remedyconsumers' misconceptions regarding the effectiveness of Softsoap Antibacterial that Colgatecreated through its false advertising and marketing campaigns.

7. Since introducing the Product, Defendant's nationwide advertising campaign for theProduct ha s been extensive and Defendant has spent a significant amoun t of money to convey itsdeceptive messages to consumers throughout the United States.

8. Each person who purchased the Product was exposed to Defendant's false claimsregarding the allegedly greater effectiveness of Softsoap Antibacterial versus ordinary soap,purchased the Product in reliance on that false claim, and paid more for the Product than theyotherwise would have or would have not purchased the Product at all.

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9. As a result of Colgate's misrepresentations and/or omissions regarding SoftsoapAntibacterial, Plaintiff and the other Class members substantially overpaid for the Product becausethe value of the Product was diminished at the time it was sold to consumers. Had Plaintiff and theother Class members been made aware that the Softsoap Antibacterial provides no benefit overwashing with ordinary soap and water, contrary to what Colgate represented, and that the Productmay encourage growth of antibiotic-resistant bacteria, Plaintiff and the other Class Members wouldnot have purchased Softsoap Antibacterial at all or would have paid less for it.

10 . Plaintiff and the other members of the Class have sustained injuries in fact caused byDefendant's conduct as alleged herein.

11. Plaintiff brings this lawsuit against Defendant on behalf of herself and a class of allother similarly-situated Florida purchasers of Softsoap Antibacterial alleging violation of Floridastate law, breach of express warranty, unjust enrichment, and for injunctive and declaratory relief.

JURISDICTION AND VENUE12. This Court has original jurisdiction of this action pursuant to 28 U.S.C. 1332(d)(2),

in that (i) there is complete diversity (Plaintiff is a citizen of Florida and Defendant is incorporatedin Delaware, and, to the extent pertinent, maintains its principal place of business in New York), (ii)the amount in controversy exceeds $5,000,000 exclusive of interests and costs, and (iii) there arc 100or more members of thc proposed Plaintiff class.

13. This Court has jurisdiction over Defendant because a substantial portion of thewrongdoing alleged in this Complaint took place in the State of Florida and because Defendant isauthorized to do business in the State of Florida.

14. Venue is proper in this Court pursuant to 28 U.S.C. 1391 because many of the actsand transactions giving rise to this action occurred in this District; because Defendant hasintentionally availed itself of the laws and markets within this District through the promotion,

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marketing, distribution and sale of its products in this District, including the Product that is thesubject of this suit; because Defendant does substantial business in this district; and becauseDefendant is subject to personal jurisdiction in this District.

PARTIESPlaintiff

15 . Plaintiff Irene Porter is a resident of Lee County, Florida. Plaintiff purchasedSoftsoap Antibacterial from retail stores located in Lee County, Florida on numerous occasionsthroughout the class period. Plaintiff was exposed to and saw multiple forms of Defendant'sadvertisements for Softsoap Antibacterial including Defendant's packaging for SoftsoapAntibacterial, all of which repeated, in substantially the same form, Colgate's false claims regardingSoftsoap Antibacterial's greater effectiveness than ordinary liquid hand soap. Plaintiff relied onDefendant's false claims, purchased Softsoap Antibacterial, and as a result suffered injury in fact andlost money.Defendant

16. Colgate is incorporated in the State of Delaware, with its principal place of businessand corporate headquarters in New York, New York. Colgate is a leading consumer productscompany whose products are marketed in over 200 countries and territories throughout the world.Colgate promotes, markets, distributes, and sells a broad range of well-known branded products,including toothpastcs, tooth brushes, liquid hand soaps, bar soaps, shower gels, deodorants,antiperspirants, dishwashing liquids, household cleaners, and pet foods throughout the UnitedStates, including to tens of thousands of consumers in the State of Florida.

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FACTUAL ALLEGATIONS

The Product17. Colgate advertises, promotes, and sells a wide range of branded products throughout

Florida and the United States, including body washes, bar soap, liquid hand soap, and handsanitizers, including its Softsoap Antibacterial line of products.

18. Softsoap Antibacterial Hand Soap contains "Triclosan 0.115%" as its active"antibacterial" ingredient.

19. Triclosan was originally developed as a pesticide, was later used as a surgical scrubfor medical professionals, and in recent years ha s been added to many consumer products, includingsoaps and toothpastes.

20. Triclosan is a chlorophenol. Chlorophenols are commonly used as pesticides,herbicides, and disenfectants; triclosan is specifically rcgistcrcd with the United StatesEnvironmental Protection Agency as a pesticide and has been given high scores by the EPA both asa human health risk and as an environmental risk.

21. Chlorophenols, including triclosan, are suspected of causing cancer in humans andtriclosan is specifically believed to be an endocrine disruptor that may interfere with thyroidhormone function.

22. The European Union recently banned triclosan from items expected to come intocontact with food and se t limits on the amount of triclosan that ca n be in cosmetics. In addition,several countries including Canada, Norway, Germany, Sweden, Finland, and Japan have eitherrestricted, required warning labels, or advised consumers against use of products containingtricolsan.

23. Ordinary liquid hand soaps do not contain triclosan.

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Defendant's False Advertisements. Marketing. and Promotion ofSoftsoap Antibacterial24. Defendant's false, misleading, and deceptive marketing campaign begins with the

name of the product at issue: "Softsoap An fibaciaial." This product name implies that SoftsoapAntibacterial will destroy more bacteria than ordinary hand soap. Defendant's exhaustiveadvertising campaign builds on this deception. In truth, Defendant has no independent, competent,and reliable support for these claims.

25. Throughout the class period defined below, Colgate ha s deceptively and unfairlypromoted Softsoap Antibacterial to consumers as having different special health benefits than

ordinary liquid hand soap, including, but no t limited to, being clinically proven to eliminate 99% ofthe germs your family encounters, and that it is Dermatologist tested.

26. Colgate repeats its false and deceptive claims regarding greater effectiveness thanordinary liquid hand soap on the packaging for Softsoap Antibacterial, by prominently indicatingthat Softsoap Antibacterial "eliminates 99% of germs" and that Softsoap Antibacterial Hand Soap is"clinically proven to eliminate 99% of the germs your family encounters." Examples of SoftsoapAntibacterial's packaging and label are reproduced below:

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Soft:soap.


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SoftsoV


ELIMINATES9% OF GERMS*

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ir : ....5.0ftsodd Ncontain iiOlt mai3.1urizeim in hdn leanfo y*or liar,di.y Soli lt.oap:0131:1)nd Antibitcter:al Fiend SwpNiaati away Ilia sorrila, fed the aortnaaactfo.clino sufi ard if;, c1H-1 c..Ay orovi:n to chlintitO 0....,0V; fthi 11%.-.}.CLI:r fzIm le ory..fmni...,..!5., Deur:M(09:53 rested.i Ii Drug Factsl Active ingredient PurposeTr 14..:2..r 0.115% Al IV.* ncr!d t

r

USE Id:Ai:kr in [Le Qeirr.s or !.axlsWarningsVIlim using Itt!s productmddcal= va i ries.b case ofDor=fILE:1 A ih.r.2'.., .r.I( ecp cu I c ruch of thidren, Exce,.1 ate,at t spre.sbi.lisribeeed.ridm1.:,1:1,..1? u c.,...-.=v. a Po scii CorldCent nct!nay.

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Inactive ingredients ids, sxbI tit.Oat wultn&CO..IgireClions v..3.51rai:Isar0 I lira III r

rI. V are.7., (1...:::L'.::i.-7,, -..-...2i.-_,

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rQuestionsor conunents?m Icn-rrEe 1-80-0-2 ss-7552.119 COLGATE-PALMOUVECrMtPANY No.t, 1^..)., ro, l 0172.2V,,,:l 11111111111111111141 1I;o 74182 29122 8

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which clinical studies Colgate purports to rely on for substantiation of its claims. Nor has Colgateotherwise indicated how it has substantiated its claims that Softsoap Antibacterial is "clinicallyproven to eliminate 99% of germs."

33. Colgate's nationwide advertising campaign for Softsoap Antibacterial has beenextensive and comprehensive. Colgate-Palmolive has spent millions of dollars to convey thedeceptive messages outlined above to consumers throughout the United States. Defendantconveyed and continues to convey deceptive claims about Softsoap Antibacterial through a varietyof media, including television, newspapers, Internet, promotional placements, point-of-sale displays,and on Softsoap Antibacterial labels and packaging.

34. Colgate's advertising and marketing campaign sends the unmistakably clear, butunconscionably deceptive and unfair message, that Softsoap Antibacterial is more effective ateliminating germs, protecting the consumer from germs, and thus preventing illness and promotinggood health, than washing with ordinary liquid hand soaps that do not carry the risks associated withtriclosan.

35. Colgate's advertising and marketing campaign is designed to cause consumers to buySoftsoap Antibacterial on the basis that it is more effective than washing with regular soap and waterand, thus, is worth purchasing at all or is worth purchasing for a highcr price than consumers wouldotherwise pay. As a result of this false and misleading campaign, Colgate has elevated SoftsoapAntibacterial to the number one seller in the antibacterial hand soap product category.

36. But despite the ubiquity of Colgate's claims and advertisements regarding thesuperior effectiveness of Softsoap Antibacterial, Softsoap Antibacterial does not eliminate moregerms and is not any more effective than ordinary, at times less expensive, non-triclosan containingliquid hand soap.

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Sofisoap Antibacterial is NOTMore Effective than OrdinaryLiquidHand Soap37. Colgate's advertising message ignores the well-supported fact that washing with

ordinary liquid hand soap is just as effective as washing with Softsoap Antibacterial regardless ofSoftsoap Antibacterial's triclosan content.

38. Colgate's claims about Softsoap Antibacterial's effectiveness and superiority are false,deceptive, unfair, and unconscionable because there is not sufficient, competent, and/or reliablescientific evidence and/or substantiation for Colgate's effectiveness and superiority claimsconcerning its Softsoap Antibacterial products.

39. Specifically, Colgate ha s no competent, credible, and reliable scientific evidence thatis sufficient in quality and quantity based on standards generally accepted in the relevant scientificfields, when considered in light of the entire body of relevant and reliable scientific evidence, tosubstantiate its claims regarding the superior effectiveness of Softsoap Antibacterial.

40. Rather, numerous scientific studies have reached the opposite conclusion thattriclosan containing soaps that are available in the consumer setting, such as Softsoap Antibacterial,are no more effective than ordinary liquid hand soaps that do not contain triclosan.

41. For example, the Council on Scientific Affairs of the American Medical Associationnoted in 2002 that "[d]espite the recent substantial increase in the use of antimicrobial ingredients inconsumer products, the effects of this practice have not been studied extensively. No data supportthe efficacy or necessity of antimicrobial agents in such products, and a growing number of studiessuggest increasing acquired bacterial resistance to them. Studies also suggest that acquired resistanceto the antimicrobial agents used in consumer products may predispose bacteria to resistance againsttherapeutic antibiotics, but further research is needed. Considering available data and the criticalnature of the antibiotic-resistance problem, it is prudent to avoid the use of antimicrobial agents inconsumer products." See Tan, Litjen el aZ , Use ofAntimimbialAgents in Consumer Products, Abstract,


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Archives of Dermatology 2002; 138: 1082-1086 (August 2008), available at http://archderm.ama-assn.org/cgi/content/abstract/138/8/1082/.

42. Researchers from the University of Michigan, Columbia University, and TuftsUniversity concluded that "Soaps containing triclosan within the range of concentrations commonlyused in the community setting (0.1%4).45% wt/vol) were no more effective than plain soap atpreventing infectious illness symptoms and reducing bacterial levels on the hands." See Aiello et al.,Consumer Antibacterial Soaps: Effective or Just Risky?, Clinical Infectious Diseases Supplement Article,2007:S45 (Suppl. 2) (2007) available at

http://www.tufts.edu/med/apua/practifioners/infection control 11 3141468025.pdf.43. Another double-blinded, randomized clinical trial involving more than 200 inner city

households by Columbia University researchers measured the effects of handwashing with a plain orantimicrobial (containing 0.2% Triclosan) soap on bacterial counts of the hands before and after asingle wash and before and after handwashing following a year of product use concluded that "therewas very little measurable effect of handwashing on microbial counts on hands. In fact, following asingle wash (i.e. the baseline sample) there was no significant reduction in CFU [(Colony FormingUnits, a microbial metric)] for persons using an antimicrobial soap" and "found little difference inmicrobial counts on hands of those using either product[l" See Larson, et al, Short- and Long-TermEjects of Handwashiug with Antimicrobthl or Plain Sol, in the Commun0,, J. Community Health, Vol. 28,No. 2, pp. 145, 148 (April 2003).

44. Similarly, the FDA noted that it "does not have evidence that triclosan inantibacterial soaps and body washes provides any benefit over washing with regular soap and water"and "does not have evidence that triclosan added to antibacterial soaps and body washes providesextra health benefits over soap and water." FDA Consumer Health Information, Triclosan: Irhal

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Consumers Shoffld Know, (April 2010) available athttp:I/www. fda.gov/downloads/ForConsumers /Con sumerUpdates /UCM206222.pdf.

45. In this same consumer update, the FDA further noted that "several scientific studieshave come out since the last time FDA reviewed [triclosan] that merit further review, that "Animalstudies have shown that triclosan alters hormone regulation" and that "In light of questions raisedby recent animal studies of triclosan, FDA is reviewing all of the available evidence on thisingredient's safety in consumer products. FDA will communicate the findings of its review to thepublic in spring 2011." ki. Although thc FDA indicated it would communicate new findings in

spring 2011, it ha s delayed doing so.46. Furthermore, on April 8, 2010, Representative Edward J. Markey, chairman of the

Housc Energy and Commerce Subcommittee on Energy and the Environment urged a ban on manyapplications of triclosan, including in consumer soaps and hand washes, stating that "There is clearevidence that many consumer products that contain [triclosan] are no more effective than those thatdo not . However, triclosan continues to be used in products that saturate the marketplace.Consumers especially parents need to know that many of these products arc not only ineffective,they may also be dangerous." Statements available ath ttp: /markey.house.gov/index.php?option content&task=view&id=3964& I temid 125 (lastvisited Aug. 23, 2011).

47. On May 21, 2010, Andrew D. Hendry, Colgate-Palmolive's Senior Vice President,issued a response to Representative Edward J. Markey's concerns . Mr. Hendry stated that Colgate-Palmolive does no t specifically market products that contain triclosan to children. Further, Mr.Hendry stated that Colgate-Palmolive plans to introduce antibacterial dishwashing formula that doesnot contain triclosan as a result of consumer preference.

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48. Despite this growing anti-triclosan consumer preference and the above mentionedstudies, Colgate-Palmolive continues to sell and market Softsoap AntibacterialHand Soap.

49. Moreover, despite the overwhelming scientific evidence contrary to Colgate's falseclaims regarding the superior effectiveness of Softsoap Antibacterial, Colgate continues to makethese claims in order to induce consumers, including Plaintiff and the other Class members, topurchase Softsoap Antibacterial at all or to have purchased Softsoap Antibacterial for a greater pricethan they otherwise would have paid.

CLASS ACTION ALLEGATIONS50. Plaintiff brings this action on behalf of herself and as a class action, pursuant to the

provisions of Rules 23(a), (b)(2), and/or (bX3) of the Federal Rules of Civil Procedure on behalf of aClass ("Class") defined as :

All Florida residents who purchased Softsoap Antibacterial products withinthe statutory limitations periods applicable to the herein-alleged causes ofaction including, without limitation, the period following the filing of thisaction.Excluded from thc Class are Defendant and its subsidiaries and affiliates; all persons who make atimely election to be excluded from the Class; governmental entities; and the judges to whom thiscase is assigned and any immediate family members thereof.

51. Certification of Plaintiffs claims for class-wide t reatment is appropriate becausePlaintiff can prove thc elements of her claims on a class-wide basis using the same evidence aswould be used to prove those elements in individual actions alleging the same claims.

52. Numerosity Federal Rule of Civil Procedure 23(a)(1). The members of theClass are so numerous that individual joinder of all Class members is impracticable. Plaintiff isinformed and believes that there are not less than tens of thousands of purchasers of SoftsoapAntibacterial products in the State of Florida. The precise number of Class members and theiraddresses is unknown to Plaintiff, bu t may be ascertained from Defendant's books and records.

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Class members may be notified of the pendency of this action by recognized, Court-approved noticedissemination methods, which may include U.S. mail, electronic mail, Internet postings, and/orpublished notice.

53. Commonality and Predominance Federal Rule of Civil Procedure 23(a)(2)and 23(b)(3). This action involves common questions of law or fact which predominate over anyquestions affecting individual Class members. Common questions of law or fact, include, withoutlimitation:

a. whether Defendant's claims regarding Softsoap Antibacterial arc false, deceptive,and/or misleading;

b. whether Defendant engaged in false, deceptive, and/or misleading advertising;c. whether Defendant's conduct as alleged herein violates the Florida Deceptive and

Unfair trade Practices Act;d. whether Defendant's conduct as alleged herein constitutes a breach of warranty;e. whether Defendant's conduct as alleged herein constitutes unjust enrichment;f. whether Defendant knew or should it have known that its representations and

advertisements regarding Softsoap Antibacterial were unsubstantiated, false,deceptive, and/or misleading;

g. whether Plaintiff and the other Class members who purchased SoftsoapAntibacterial suffered monetary damages and the proper measure of that loss;

h. whether the Plaintiff and the other Class members are entitled to an award ofpunitive damages; and

i. whether the Plaintiff and the other Class members arc entitled to declaratory and/orinjunctive relief.

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54. Typicality Federal Rule of Civil Procedure 23(a)(3). Plaintiff's claims aretypical of the claims of the other members of the Class because, among other things, all Classmembers purchased the Softsoap Antibacterial products after exposure to the same fundamentalmisrepresentation that Softsoap Antibacterial is more effective than ordinary liquid hand soap,whether that misrepresentation was disseminated through Defendant's product packaging, productwebsite, or through other advertisements or marketing.

55. Adequacy of Representation Federal Rule of Civil Procedure 23(a)(4).Plaintiff is an adequate Class representative because her interests do not conflict with the interests ofthe other members of the Class she seeks to represent; she has retained counsel competent and

experienced in complex class action litigation; and Plaintiff intends to prosecute this actionvigorously. Plaintiff and her counsel will fairly and adequately protect the Class' interests.

56. Declaratory and Injunctive Relief Federal Rule of Civil Procedure 23(b)(2).Defendant ha s actcd or refused to act on grounds generally applicable to Plaintiff and the othermembers of the Class, thereby making appropriate final injunctive relief and declaratory relief, asdescribed below, with respect to the members of the Class as a whole.

57. Superiority Federal Rule of Civil Procedure 23(b)(3). A class action is superiorto any other available means for the fair and efficient adjudication of this controversy, and nounusual difficulties are likely to be encountered in the management of this class action. The damagesor other financial detriment suffered by Plaintiff and the othcr members of the Class are relativelysmall compared to the burden and expense that would be required to individually litigate their claimsagainst Defendant, so it would be impracticable for Class members to individually seek redress forDefendant's wrongful conduct. Even if Class members could afford individual litigation, the courtsystem could not . Individualized litigation creates a potential for inconsistent or contradictoryjudgments, and increases the delay and expense to all parties and the cour t system. By contrast, the

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class action device presents far fewer management difficulties, and provides the benefits of singleadjudication, economy of scale, and comprehensive supervision by a single court.

CLAIMS FOR RELIEFCOUNT I

VIOLATION OF THE FLORIDA DECEPTIVE ANDUNFAIR TRADE PRACTICES ACT

FLORIDA STATUTES 501.201 et seq.58. Plaintiff readopts and incorporates by reference each of the above paragraphs of this

Complaint as though fully stated herein.59. Plaintiff and all class members are "consumers" and the transactions at issue in this

Complaint constitute "trade or commerce" as defined by Florida Statutes 501.203 (7) and (8 )respectively.

60. Florida Statutes 501.201 et seq. was enacted to protect the consuming public andlegitimate business enteTrises from those who engagc in unfair methods of competition, orunconscionable, deceptive or unfair acts or practices in the conduct of any trade or commerce.Defendant's actions and/or omissions as described herein violate this statute in that Defendantmisrepresented and omitted material information regarding the Product. Defendant also engaged infalse advertising as se t forth herein with respect to the Product in violation of this statute.

61. As a result of the wrongful conduct described herein, Plaintiff and members of theclass suffered damages.

62. Plaintiff and members of the class are entitled to compensatory damages, equitableand declaratory relief, costs, and reasonable attorneys' fees.

COUNT IIVIOLATION OF FLORIDA STATUTES 817.41

63. Plaintiff readopts and incorporates by reference each of the above paragraphs of thisComplaint as though fully stated herein.

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64. Florida Statutes 817.41 declares it "unlawful for any person to disseminate or causeto be made or disseminated before the general public of the state, or any portion thereof, anymisleading advertisement."

65. Florida Statutes 817.40 defmes a "misleading advertisement" as including "anystatements made, or disseminated, in oral, written, or printed form or otherwise, to or before thepublic, or any portion thereof, which are known, or through the exercise of reasonable care orinvestigation could or might have been ascertained, to be untrue or misleading, and which are orwere so made or disseminated with the intent or purpose, either directly or indirectly, of selling or

disposing of real or personal property, services of any nature whatever, professional or otherwise, orto induce the public to enter into any obligation relating to such property or services."

66. Defendants disseminated misleading advertisements to the general public of the Stateof Florida regarding the health benefits and effectiveness of Softsoap Antibacterial in violation of817.41 with the intent and purpose of inducing members of the public to purchase productsprovided by Defendant. Indeed, at the time Defendant disseminated such misleadingadvertisements, Defendant knew such advertisements to be false and intended for members of thegeneral public, including Plaintiff and class members, to rely on such misleading advertisements.

67. Plaintiff and class members relied upon the misleading advertisements disseminatedby Defendant when purchasing Softsoap Antibacterial.

68. As a proximate result of Defendants' dissemination of misleading advertisements inviolation of 817.41, Plaintiff and class members sustained injury and damagc.

69. Plaintiff and class members arc entitled to attorneys' fees under Florida Statutes817.41(6).

70. Plaintiff and members of the class are entitled to compensatory damages, equitable anddeclaratory relief, costs, and reasonable attorneys' fees.

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COUNT III(BREACH OF EXPRESS WARRANTY).71. Plaintiff readopts and incorporates by reference each of the above paragraphs of this

Complaint as though fully statcd herein.72. Plaintiff, and each of the other Class members, formed a contract with Colgate at thc

time thcy purchased the Softsoap Antibacterial product(s). The terms of that contract include thepromises and affirmations of fact made by Colgate on the Softsoap Antibacterial labels and throughthe advertising and marketing campaign, as alleged above. Colgate's Product labeling andadvertising constitute express warranties, became part of the basis of the bargain, and are part of astandardized contract between Plaintiff and the other members of the Class, on the one hand, andColgate, on the other.

73 . All conditions precedent to Colgate's liability under the warranty have beenperformed by Plaintiff and each of the other members of the Class.

74. Colgate breached the terms of the express warranty by no t providing to Plaintiff andthe other Class members benefits promised and represented with respect to thc SoftsoapAntibacterial products.

75. As a result of Colgate's breach of warranty, Plaintiff and the other Class membershave been damaged in the amount of the purchase price of the Softsoap Antibacterial products theypurchased.

COUNT IV(UNJUST ENRICHMENT)76. Plaintiff readopts and incorporates by reference each of the above paragraphs of this

Complaint as though fully stated herein.

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77. This claim is asserted in the alternative on behalf of Plaintiff and the other Classmcmbers to the extent that any contracts do not govern the entirety of the subject matter of thedispute with Colgate.

78. Plaintiff and the other Class members conferrcd a tangible economic benefit uponColgate by purchasing Softsoap Antibacterial products. Plaintiff and the other Class memberswould have expected remuneration from Colgate at the time this benefit was conferred had theyknown that the Product did no t perform as promiscd and ha s been widely criticized by governmentofficials and scientists.

79. As a direct and proximate result of Colgate's misconduct as se t forth above, Colgatehas been unjustly enriched at thc expense of Plaintiff and the other Class members.

80. It would be inequitable for Defendant to retain the profits, benefits and othercompensation obtained by its wrongful conduct in selling its Softsoap Antibacterial products.

81. Plaintiff, on behalf of herself and the other Class members, seeks restitution fromColgate, and an order of this Court disgorging all profits, benefits, and other compensation obtainedby Colgate from its wrongful conduct.

REQUEST FOR RELIEFWHEREFORE, Plaintiff, Irene Porter, individually and on behalf of the Class proposed in

this Complaint, respectfully requests:A. the Court certify the Class pursuant to Fed. R. Civ. P. 23(b)(2), and 23(b)(3),

and adjudge Plaintiff to be an adequate representative thereof;B. the Court enter an Order requiting Defendant to pay Plaintiff's and the other

Class members' actual damages (including multiple damages) or statutory damages,whichever is greater;

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C. the Court enter an Order awarding declaratory :md injunctive relief aspermitted by law or equirv, including: enjoining Defendant from continuing the unlawfulpractices se t forth above, including all unlawful false advertising practices; directingDefendant to retrieve existing false and misleading advertising and promotional materials;directing Defendant to engage in a corrective advertising canIpaign; and directing Defendantto identify, with Court supervision, victims of its conduct and pay them restitution and/ordisgorgement of gains from any unlawful conduct as alleged herein;

1. the Court enter an Order awarding Plaintiff and the other members of theClass their expenses and costs of suit, including reasonable attorneys' fees, to the extentproyitled by law; and

F. fo r such other and further relief as may be just and proper.JURY DEMAND

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of allclaims in this Complaint so triable.Dated: November 7, 2011 Bv: 12)pIordan L. Chaikinlorida Bar Number 0878421

PARKER WAICHMAN ALONSO LLP3301 Bonita Beach Road, Suite 101Bonita Springs, Florida 34134Telephone: (239) 390-101)0Facsimile: (239) 390-0055jchaikin(i)yourlawyer.comdam J. 1.evitt (ARDC# 6216433)Edrilund ronowitz RD( 6304587)

WOLF HALDENSTEIN ADLERFREEMAN & HERZ LLC55 West Monroe Street, Suite 1111Chicago, Norida 60603Telephone: (312) 984-0000Facsimile: (312) 984-0001levittai_lwhafh.com

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aronowit7Mwhafh.comRichard j. ArsenaultNEBLETT, BEARD & ARSENAULTPost Office Box 1190Alexandria, Louisiana 71309Telephone: (318) 487-9874Facsimile: (318) 561-2591rarsenaultOnhalawfirm.com

D. HollandHOLLAND, GROVES, SCHNELLER& STOLLE, LLC300 North Tucker, Suite 801St Louis, :Missouri 63101Telephone: (314) 241-8111Facsimile: (314)[email protected] N. SchafferLEVIN, FISHBEIN, SEDRAN & BERMAN510 Walnut Street, Suite 500Philadelphia, Pennsylvania 19106Telephone: (215) 592-1500Facsimile: (215) [email protected] R. Climacoir)ho :1. PecaCLIMACO, WILCOX, PECA,TARANTINO & GAROFOLI CO., L.P.A.55 Public Square, Suite 1950Cleveland, Ohio 44113Telephone: (216) 621-8484Facsimile: (216) 771-1632jrclim(iklimacolaw.comianecaOclimacolaw.comPatrick G. \VarnerCLIMACO,WILCOX, PECA,TARANTINO & GAROFOLI CO., L.P.A.35 North Fourth Street, SuiteColumbus, Ohio 43215Telephone: (614) 437-2522Facsimile: (614) 386- 1 029pgwariclimacokiw.comloseph Siprut

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SIPRUT PC122 South Michigan Avenue, Suite 1850Chicago, Florida 60603Telephone: (312) 588-1440Facsimile: (312) [email protected] for Plaint if f

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Case 2:11-cv-00644-CEH-SPC Document 1-1 Filed 11/07/11 Page 1 of 1 PagelD 244.1(12, 124171 CIVIL COVER SHEET

.1.helS -14 civil cover sheet uncl lhe information concamed herein liettiter tepInce no r supplement the [-ding and service oi-pJeadinis or other papers as reltpii.ir.ed bylaw, except as providliv local roles of court. This form. approved by the Judicial Con1renee 01 the Uniied States in September 197-I. is required fbr lie .m.s: of tfuSaerrarnurliiinie purpose iuthe Civil doaet sheet. (SFr INS RuCT]oNS (.0.: 111E REVERSE OE THE L.I. (a ) PLAINTIFFS DEFENDANTS

PORTER, on behalf of herself and all others similarly COLGATE-PALMOLIVE COMPANYr--:-] 1). 1. Ii(b) County of Residence of First Listed Platirtiff LEE County of Residence of First LktedHelendulit

{EXCEPT IN r.S. PLAINTIFF CASES] TIN U.S. PL5IN4.1FT CASEV.1,NIA) r,NOM: IN 1..AND CONDE NILN.Vr.r?NETV-S-:1;;FP/--6P,-VITIRVE.V4111cLAND INVULVED. ct A

(e) Attorney's I.Fii in Nr;:ine...), Idoo,:s.:ind Teleptiono. l'sinit'ber Attorneys ot km-m.151WAICHMAN ALONSO LLP 3301 Bonita Beach Road,

101 Bonita Springs, Florida 34134 T: 239.390.1000 11:1II. BASIS OF JURISDICTION [Place an -LN" in ((ne Ehos OnN i III. CITIZENSHIP OF PRINCIPAL PARFIEStiu, C an 2., in One 13ms. tlor Plai

or Div-croity Cave-i Only) and One the x for De tltudrant)7 l C S Go% emmenc CI 3 Federal Question PT F DEF 1 1 IDEE

Pliiintilf (1.J.S. Goveininent Not a Pony r Citioen ollTlik Slale X 1 1 I /ricoli>or.iirOd or Niiwipal Place 7 4 17 4of Business In This State

7 2 I. S Government X .1 Div ersily (iti/en of Aninher Stale 7 2 7 2 hicorporaled ezo0 Principal Pl.w2 7 5 X 5Defendant of Business In Another ScaleEiribeate Citieeriship of Prinie, rit liein 11E)

Citrien or Suhreel rilir 713 73 Eurehrin Naiion I 6 Li 6F41101,0 1111111TIM

I CrONTIt. trr. TORTS FORFEITURE/PENALTY i l .km at l -vrey nri.HER STATUTESI [10 !nom:ince PERSONAL 15141 BY PERSONAL INIUR`r. 1 hIO Airrieulture 7 122 Appeal 28 USC 1511 1 400 Stale Reapportiourricor7 120 Alanne 7 310 Airplane 7 352 Personal Injury 7 6200liter l'ood ile Dim!. il 423 Wohdrawal 1 1111 Aso1rru41 1:10 Miller A ir 1 1 15 Airplane Praduat Sled. Malpmetice 7 025 Drug Relatc3 Seizure 20 1:5C 157 1 Ll.11fJ kiAS and I3rinkuir40 140 Negotiable livslniinenc Liability 1 365 Personal Injury olTropeity 2 I USC SN I 1 150 COrnIllerer71 150 Recrt ery of Chenpay merit 7 320 Aosrmlt, Libel & l'rlIfilICI Lialiilit^ 1 030 Liquor 1 aus i vuorERTY RICHTS 7 VA) Deportation

&Enforcement ofhtdpnent Slaniler 7 368 Asbestos Personal 1 11.10 R.R. & Tru..d. 1 5120 Cop....ri?...Ints 7 470 Rac4.erecr hilt tieneed and7 151 Medicnre Act 7 330 Federal Employers.' !Rimy Pi oduet 7 650 Airline Reus. 7J 830 Parent Corrupt,t/r.e;ntiaritiorts7 152 Recovery of Oct:B.11[M Liabilily Liabillty 1 W410upaltirrial 7 S lo Tr adrrinark 1 411II Crinsumer CwilitSiiiiieiii Loans 7 340 Martrie PERSONAL PROPERTY SafetylieallIr 1 400 Cable'SatlIN

(1.:xci. Veterans) .7 345 Shrine Product 7 370 Other Fraud 7 f.L'ur Other 7 SIO Se/ccliv e Service7 133 Recur. cry 01-Overpayment Lialiilily 1 371 Tnith in Lcinclitt: IA RUIZ SOCIAL SECURITY 1 85111Sectwitic5 Cornmoiliricof Veftrarl.ti Benefits 7 350 Sloror Nrchick 1 3110 Other Personal 1 7 1.0 Fair Labor SM.:lank 7 861 II1.1 (13)511). E t. clLama:7 160 srodltolders' Siiit, 1 355 "doter Vellick Property Dar i irlp.: At.; -1 10, 2 R!.,1.: I tam 0.123.1 1 5115 Customer Clialknirc3 100 triher Contra.:t Proatiet LiabIlnly 7 385 Pt Lperty Daniagc ri 720 Labor/Al:0M. Relation.: 7 grr.l. DIVC.'411.-..VW (405(0} 12 USC 3-31.07 105 Coins:Lt Produet Lialritit:. 7 3601 trhoi Per-vmal Pr. oduzi I rrOulit:, 1 75-It Labor.:Mgml Repoctin); n :to SS D litie 7.:,. I 31 5190 OcItur Stiituwiy Actions1 1'15 lrauchiscr Minn: & Disclomre .Aet ..1 81,6 551005101 :7 091 Agricultural .Vots.

I RE.11. PROrrii.n. civnAucilTs PRISONER PETITIONS 1 7 ill rz;iat, ay Labor Ael ET DERAL.rxx SUlTS 17 892 Economic Stabiliwritton7 2 /0 1 did COINICIIII1:111M1 3 .141 Volire!. 1 310 Shin:on. to V.Leate 1 740 011lur Labor 1 iii.i.lik'll 1 '711.i-aNea (l S. PLA:flifirt- .1 1193 Ecnirorimml.tl Statteis.1 2214 Toreclolure 1 .1421rmplin anent Seim:nee il 71.+1 Eitipl. Itet. Inc or Ilvfetuvlattl) 1 519-i [nein' .NIII0i:.:It1011. AO3 230 Reet I two .fe Eieelment 3 .143 110,r-qt.:: Habeas Corpus: Security Ac t 7 071 IRS -Thud Pans 1 5105 Freedom of Infbrimition7 2-10 Tons to LMiil Aceerminorlationis 7 530 General 26 I 'SC 7000 Aci1 245 fon Pt oduet Liabilip. 7 143 Welfare 7 535 Death Penalty 151...711014.ATION 7 9.1)0Appeal of Fee DclerminnCI 290 All Other Real ItiopQrty 1 -145 Amer v.-Hicabilities 1 5111 Mandan105.11.: Other 1 402 Nall:rah:an...iv Appheation Ender Equal AccessEmployment .7 550 Err1Riphts 1 403 If Areas Corpus. to Juslicc

7 -1-16 Artier w.1)iS11.11liticS 1 555 Prison Condition Arco D:tainnee 7 950 ConstinitionalnyofInher -1 165 Other lurnoriel anon State Slrilttle;

1 401 r(Ser Civil R4-.1rto .Aetiints

V. ORIGIN (Place :iii LLN" in Clue Box t tidy) Appeal, to l)ist1 Oriamai 1 Removed from 71 3 Remanded from 1 4 Reinstared or 71 5 1 ransfertedielll Ti 6 mulndi, Inc, :--1 7 Judge Iron)anotherdistrict, MuaistrateProCeedim: SLite. Court Ai-Tell:Ile I.OLII1 I cop.: [led t.itipttonI snrcifv) Judament

C;istb.1, ..Scfilli.;mt; tilleAt.v.tillAiiigiNdiiig.Ayin algedrAtliATh,.tatelsAtiless diversity)VI. CAUSE OF Act-ION,:Etna' cescr,ption of cause.Defendant's false, misleadIng and deceptive advertising, marketing and sales ct Sottsoao AntibacterVII. REQUESTED IN 0 ci ia.K. nr f ins is A CLASS ACTION DEMAND S CHECK YES only 11-demanded in complaint:

COMPLAINT: UNDER F.R.C.1'. 23 5, 000, 000.00 JURY DEMAND: 0 YeN 1 NoVIII. RELATED CASE(S) i See un..tructruns]:IF ANY 21 D ;12._ DOCKIIT NUMBERDAIE SI .ATI:RE IF XI 11.1..Ey 0, 114.1011.0Hu.EOR OFEICE.4^,T.,YA 1r...A 9\ tel11IVEIPTr1 c i4101) . . . APPLI IMI HT RIDC ift 54 M i. 41.11.Cdt

porter v colgate

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