Jillian Michaels is being sued for falsely advertising that her “Jillian Michaels Maximum Strength Calorie Control” product will provide “automatic” weight loss if taken before meals. Michaels is one of the stars of NBC-TV’s reality show, “The Biggest Loser,” which tracks how morbidly obese people lose weight under her guidance. The product is a proprietary blend of herbal powders and extracts plus a few other ingredients. Three of the extracts provide caffeine. As noted below, plaintiff Christie Christensen maintains that although she took the product as directed, her appetite did not decrease, her caloric intake was not automatically restricted, and she did not lose any weight. She is seeking class-action status that includes all people in California who bought the product within the four years before the suit was filed. The suit also names Thinlife International and Basic Research LLC, which market her products.
Basic Research has an extensive history of legal and regulatory difficulty. In 2005, the FDA warned it to stop making claims for StriVectin-SD, StriVectin-SD Eye Cream, Dermalin-APg, Mamralin-ARa, and TestroGel. In 2006, the FTC ordered it to pay $3 million on behalf of six companies and three principals. The Commission’s order settled charges that their deceptive weight-loss claims violated federal law. The violations included claims that Akävar 20/50 lets users “eat all you want and still lose weight.” In 2009, the FTC charged the company with continuing to make false claims for Akävar and anoher products. The company and/or its subsidiaries have also been a plaintiff and/or defendant in more than 40 other suits filed in federal court between 2004 and 2009.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
WASSERMAN, COMDEN & CASSELMAN, L.L.P.
5567 Reseda Boulevard, Suite 330
Post Office Box 7033
Tarzana, California 91357-7033
Telephone: (818) 705-6800 • (323) 872-0995
Attorneys for Plaintiff
|CHRISTIE CHRISTENSEN, individually,
and on behalf of all others similarly situated,
JILLIAN M1CHAELS, an individual;
1) VIOLATION OF THE CONSUMERS
Defendant Jillian Michaels developed a reputation as a credible fitness instructor by emphasizing that weight loss requires hard work and discipline: indeed, she is fond of saying that long term weight loss requires “blood, sweat, and tears.” Regrettably, however, she has decided to squander her fame by lending her name to a worthless dietary supplement called “Jillian Michaels Maximum Strength Calorie Control.” Contrary to everything that Ms. Michaels has ever instructed, she and the companies peddling this product suggest it makes weight-loss effortless, falsely claiming: “Take Two Capsules Before Main Meals And You Lose Weight. That’s ft.”
Ms. Michaels knows better—taking two pills before eating does not miraculously cause weight loss. Plaintiff brings this lawsuit to enjoin these ongoing deceptions.
II. THE PARTIES
I. Plaintiff Christie Christensen (“Plaintiff’) is a resident of California who has
purchased “Jillian Michaels Maximum Strength Calorie Control” (“Calorie Control”) in January, 2010 at WalGreen’s.
B. The Defendants.
2. Defendant Jillian Michaels (“Michaels”) is a California resident who lives in Los Angeles County and is prominent in the weight loss and dietary supplement business. Plaintiff is informed and believes, and upon such information and belief alleges, that Michaels formulated, or was involved in the formulation, of Calorie Control.
3. Defendant Thin Care International, LLC (“Thin Care”) is a Utah limited liability company with its principal place of business in the state of Utah that does business in California. Plaintiff is informed and believes, and upon such information and belief alleges, that Thin Care is associated with Michaels and markets and promotes her dietary supplements and other weight loss-related products, including Calorie Control, throughout California and the United Stares.
4. Defendant Basic Research, LLC (“Basic Research”) is a Utah limited liability company with its principal place of business in the state of Utah that does business in California.
Plaintiff is informed and believes, and upon such information and belief alleges, that Basic Research is associated with Michaels and Thin Care in connection with the formulation, development, and marketing of Michaels’s dietary and weight-loss supplements, including Calorie Control.
5. Plaintiff does not know the true names or capacities of the persons or entities sued herein as DOES 1 to 250, inclusive, and therefore sues such defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of the DOE defendants is in some manner legally responsible for the damages suffered by Plaintiff and all members of the class as alleged herein. Plaintiff will amend this Complaint to set forth the true names and capacities of these defendants when they have been ascertained, along with appropriate charging allegations, as may be necessary.
III. JURISDICTION AND VENUE
6. This Court has jurisdiction over all causes of action asserted herein. The amount in controversy is substantial but is not believed to exceed $5,000,000.
7. Venue is proper in this Court because Defendants have received substantial
compensation from sales in this County and because Defendant Michaels is a resident of this County. Specifically, each Defendant knowingly engages in activities directed at consumers in this County, and each Defendant obtains substantial benefits from the Defendants’ common scheme perpetrated in this County. Plaintiff has filed concurrently herewith the declaration of venue required by Civil Code Section I 780(d).
8. All out-of-state defendants can be brought before this Court pursuant to California’s “long-arm” jurisdictional statute.
9. Defendant Jillian Michaels is a popular and prominent weight loss celebrity who appears regularly on television and other media promoting weight loss and, most particularly, her own line of weight loss supplements and related products. She has been most prominently associated with the “Biggest Loser” reality TV show, which features morbidly obese contestants and depicts their efforts, under Michaels’s supervision, to lose substantial amounts of weight.
10. Sadly, Michaels has decided to exploit her fame and goodwill by collaborating with Thin Care and Basic Research to promote a weight loss supplement that purportedly will cause weight Joss by itself, without any additional effort on the part of the consumer. Michaels, Thin Care and Basic Research have formulated and developed Calorie Control, which they claim will “restrict your caloric intake automatically.” Indeed, they claim: “Two Capsules Before Main Meals And You Lose Weight. That’s It.” An accurate copy of the advertising and packaging containing these claims is attached as Exhibit I. Michaels goes even further on her website, www.jillianweightloss.com, where she makes the remarkable claim that Calorie Control is “like an
automatic diet. What could be easier!”
11. The United States Food and Drug Administration has warned consumers to be wary of claims like the ones being made by the defendants: “[M]any people look for quick and easy solutions to their weight problems. They find it hard to believe in this age of scientific innovations and medical miracles that an effortless weight-loss method doesn’t exist. Any claims that YOU con lose weight effortlessly are false.”
12. Plaintiff first saw the packaging for Calorie Control (attached as Exhibit 1) in December 2009 at WalGreen’s. Having struggled with weight loss her entire life and relying upon the credibility established by Michaels, Plaintiff was intrigued by the claims made by Defendants to peddle Calorie Control. She visited Michaels’ website and reviewed the claims referenced above. She then decided to purchase Calorie Control in January 2010 after reviewing, believing, and relying upon the claims set forth above. She took Calorie Control as directed, but her appetite did not decrease. her caloric intake was not automatically restricted, and she did not lose any weight. Calorie Control was worthless to her.
13. Plaintiff is informed and believes that the false claims for Calorie Control were personally approved in the summer of 2009 in Los Angeles, California by Michaels and two managing agents of Basic Research and Thin Care: Dennis Gay and Nathalie Chevreau. Each of these individuals knew in the summer of 2009 that the challenged claims were false based upon their experience in the weight-loss and supplement industry.
V. CLASS ACTION ALLEGATIONS
14. Plaintiff brings this class action on behalf of the following class:
All persons located within California who purchased Calorie Control for personal use within four years before the filing of this action (the “Class”).
15. Excluded from the Class are governmental entities, Defendants, any entity in which defendants have a controlling interest, and Defendants’ officers, directors, affiliates, legal representatives, employees, co-conspirators, successors, subsidiaries, and assigns. Also excluded from the Class is any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff.
16. The proposed Class is so numerous that individual joinder of all its members is impracticable. Due to the nature of the trade and commerce involved, however, Plaintiff believes that the total number of Class members is in the thousands and members of the Class as numerous and geographically dispersed across California. The disposition of the claims of the Class members in a single class action will provide substantial benefits to all parties and to the Court.
17. There is a well-defined community of interest ill the questions of law and fact involved affecting the plaintiff class and these common questions predominate over any questions that may affect individual Class members. Common questions of fact and law include, but are not limited to, the following:
(a) Whether Defendants’ claims are accurate;
(b) Whether Defendants’ claims are properly substantiated;
(c) Whether Defendants’ have falsely represented that Calorie Control has benefits which it does not; and
(d). Whether Defendants knew that these claims were false.
18. Plaintiff’s claims are typical of the claims of the members of the Class. Plaintiff and all members of the Class have been similarly affected by Defendants’ common course of conduct since they all relied on Defendants’ representations concerning Calorie Control and purchased the product based on those representations.
19. Plaintiff will fairly and adequately represent and protect (he interests of the Class. Plaintiff has retained counsel with substantial experience in handling complex class action litigation. The firm has also been certified as lead class counsel in similar class actions.
20. Plaintiff and the members of the Class suffered, and will continue to suffer, harm as a result of Defendants’ unlawful and wrongful conduct. A class action is superior to other available methods for the fair and efficient adjudication of the present controversy. Individual joinder of all members of the class is impracticable. Even individual class members had the resources to pursue individual litigation, it would be unduly burdensome to the courts in which the individual Litigation would proceed. Individual litigation magnifies the delay and expense to all parties in the court system of resolving the controversies engendered by Defendants’ common course of conduct. The class action device allows a single court to provide the benefits of unitary adjudication, judicial economy, and the [air and efficient handling of all class members’ claims in
a single forum. The conduct of this action as a class action conserves the resources of the parties and of the judicial system and protects the rights of the class members. Furthermore, for many, if not most, a class action is the only feasible mechanism that allows an opportunity for legal redress
21. Adjudication of individual class members’ claims with respect to the Defendants would, as a practical matter, be dispositive of the interests of other members not parties to the adjudication, and Gould substantially impair or impede the ability of other class members to protect their interests.
VI. CAUSES OF ACTION
FIRST CAUSE OF ACTION
VIOLATION OF CALIFORNIA LEGAL REMEDIES ACT
(By Class Against All Defendants)
22. Plaintiff incorporates by reference all the above allegations as if fully set forth herein.
23. Plaintiff has standing to pursue this claim as she has suffered injury in fact and has lost money or property as a result of Defendants’ actions as set forth herein. Specifically, prior to the filing of this action, Plaintiff purchased Caloric Control for her own personal use. In so doing, she reviewed, believed, and relied upon each of the preceding marketing claims. She has consumed Calorie Control as directed, but the product has not worked as advertised, nor did she experience any of the promised benefits.
24. Concurrently with filing this action, Plaintiff’s counsel mailed to Defendants, by certified mail, return receipt requested, the written notice required by Civil Code Section 1782(a).
25. Plaintiff has filed concurrently herewith the declaration of venue required by Civil Code Section 1780(d).
26. Defendants’ wrongful business practices constituted, and constitute, a continuing course of conduct in violation of the California Consumer Legal Remedies Act since Defendants are still representing that their products have characteristics and abilities which are false and misleading, and have injured Plaintiff and the Class.
27. Pursuant to Section 1770 of the California Civil Code, Plaintiff and the Class seek an order of this court enjoining Defendants from continuing to engage in unlawful, unfair, or deceptive business practices and any other act prohibited by law, including those set forth in [he complaint.
28. Notice Pursuant to Civil Code section 1782: As a direct and proximate result of Defendant’s violations of law, Plain1iff and the Putative Class have been injured. Pursuant to the provisions of Civil Code section 1782, Plaintiff demands that within thirty (30) days from service of this Complaint, Defendant adequately correct, repair, replace or otherwise rectify the deceptive practices described in this Complaint for the entire Class, pursuant to Civil Code section 1770. This includes providing notice and full compensation to consumers who have purchased the Product within the Class Period. If Defendant fails to do so, Plaintiff will amend this Complaint to seek damages pursuant to Civil Code section] 782.
SECOND CAUSE OF ACTION
VIOLATION OF CALIFORNIA
BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.
(On Behalf of the Class against all Defendants)
29. Plaintiff incorporates by reference all the above allegations as if fully set forth herein.
30. As alleged hereinabove, Plaintiff has standing to pursue this claim as she has suffered injury in fad and has lost money or property as a result of Defendants’ actions as set forth herein. Specifically, prior to the filing of this action, Plaintiff purchased Calorie Control for her own personal use. In so doing, she relied upon the false representations referenced above. She has consumed Calorie Control, but the product has not worked as advertised and was worthless.
31. Defendants’ actions as alleged in this Complaint constitute an unfair or deceptive business practice within the meaning of California Business and Professions Code section 17200 in that Defendants’ actions are unfair, fraudulent, and misleading. Their actions are offensive to established public policy and/or are immoral, unethical, unscrupulous, and injurious to consumers.
32. Defendants’ wrongful business practices constituted. and constitute, a continuing course of conduct of fraudulent, illegal and unfair competition since Defendants are marketing and selling their products in a manner likely to deceive the public.
33. Defendants’ wrongful business practices have caused injury to Plaintiff and the Class.
34. Pursuant to section 17203 of the California Business and Professions Code,
Plaintiff and the Class seek an order of this court enjoining Defendan1s from continuing to engage in unlawful, unfair, or deceptive business practices and any other act prohibited by law, including those set forth in the complaint. Plaintiff and the Class also seek an order requiring Defendants to make full resolution of all moneys they wrongfully obtained from Plaintiff and the Class.
THIRD CAUSE OF ACTION
VIOLATION OF’ CALIFORNIA BUSINESS AND PROFESSIONS
CODE SECTIONS 17500 ET SEQ.
(On Behalf of the Class against all Defendants)
35. Plaintiff incorporates by reference all the above allegations as if fully set forth herein.
36. As alleged hereinabove, Plaintiff has standing to pursue this claim as she has suffered injury in fact and has lost money or properly as a result of Defendants’ actions as set forth herein. Specifically, prior to the filing of this action, Plaintiff purchased Calorie Control for her own personal use. 1n so doing, she relied upon the false representations referenced above. She has consumed Calorie Control, but tl1e product has not worked as advertised and was worthless
37. Defendants made a series of common representations disseminated to the public as to the uses of Calorie Control in advertisements, product descriptions and other sales materials. These representations were made to induce the public to purchase Calorie Control. The representations were false.
38. Defendants’ misleading advertising constituted, and constitute, a continuing course of conduct since Defendants are still marketing and selling Calorie Control in a manner likely to deceive the public.
33. Defendants’ misleading advertisements have caused injury to Plaintiff and the Class.
40. Pursuant to Bus. & Prof. Code section 17535, Plaintiff and members of the Class are entitled to remedies as set forth below.
VII. PRAYER FOR RELIEF
Wherefore, Plaintiff and members of the Class request that the Court enter an order or judgment against Defendants as follows:
1. Certification of the proposed classes and notice thereto to be paid by Defendants;
2. Adjudge and decree that Defendants have engaged in the conduct alleged herein;
3. For injunctive relief available under the First Cause of Action.
4. For all remedies available under the Second and Third Causes of Action, including injunctive relief, penalties, compensatory, general, statutory, exemplary, and any other damages;
5. For both pre and post-judgment interest at the maximum allowable rate on any amounts awarded under the Second Cause of Action;
6. Costs of the proceedings herein;
7. Reasonable attorneys’ fees as allowed by statute; and
8. Any and all such other and further relief that this Court may deem just and proper.
DATED: February 9, 2010
WASSERMAN, COMDEN &
MELISSA M. HARNETT
JESSE B. LEVIN
MELISSA M. HARNETT
Attorneys for CHRISTIE CHRISTENSEN
and the Class
This page was posted on February 14, 2009.