WEN Lawsuit & Answer 110314

Case 2:14-cv-06009-ODW-AGR Document 34 Filed 11/03/14 Page 1 of 32 Page ID #:153
1 MICHAEL FLANNERY (SBN 196266)
mflannery@cuneolaw.com
2 CUNEO GILBERT & LADUCA, LLP
11620 Wilshire Blvd
3 Suite 900
Los Angeles, CA 90025
4 Telephone: (202) 789-3960

5
Fax: (202) 789-1813
6 Attorneys for Plaintiffs

7
8
[Additional Counsel on Signature Page]

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
10
11 AMY FRIEDMAN, JUDI MILLER,
and KRYSTAL HENRY-
12 MCARTHUR, on behalf of
themselves and all others similarly
13 situated,
Case No.: 2:14-cv-06009-ODW-AGR

CLASS ACTION COMPLAINT
FOR:
20
1. BREACH OF WARRANTY
2. VIOLATION OF CALIFORNIA
UNFAIR COMPETITION LAW,
Business & Professions Code
17200 et seq.
3. VIOLATION OF CALIFORNIA
FALSE ADVERTISING LAW,
Business & Professions Code
17500 et seq.
4. COMMON COUNTS/ASSUMPSIT
5. NEGLIGENCEFAILURE TO
WARN;
6. NEGLIGENCEFAILURE TO
TEST; and
7. STRICT PRODUCTS LIABILITY.
21
DEMAND FOR JURY TRIAL
14
Plaintiffs,
15 v.
16 GUTHY-RENKER LLC,
17
18
19
22
23
24
25
26
27
28
Defendant.
1
2
3
4
5
6
7
8
9
10
LEWIS WAGNER, LLP

Dina M. Cox (admitted pro hac vice)
dcox@lewiswagner.com
501 Indiana Avenue, Suite 200
Indianapolis, IN 46202
Telephone: 317-237-0500
Fax:
317-630-2799
LATHAM & WATKINS LLP
David J. Schindler (Bar No. 130490)
david.schindler@lw.com
Jonathan M. Jackson (Bar No# 257554)
jonathan.jackson@lw.com
355 South Grand Avenue
Telephone: 213-891-1234
Fax:
213-891-8763
Attorneys for Defendant
Guthy-Renker LLC
11
12
UNITED STATES DISTRICT COURT
13
CENTRAL DISTRICT OF CALIFORNIA
14
15
16
AMY FRIEDMAN and JUDI

MILLER, on behalf of themselves
and all others similarly situated,
17
Plaintiffs,
18
19
20
21
22
23
24
25
26
27
28
v.
GUTHY-RENKER LLC,
Defendant.
Case No. 2:14-cv-06009-ODW-AGR

DEFENDANT GUTHY-RENKER
LLCS ANSWER TO PLAINTIFFS
FIRST AMENDED CLASS ACTION
COMPLAINT
Judge:
Action filed:
Trial Date:
Hon. Otis D. Wright, II

July 31, 2014
Not Set
DEMAND FOR JURY TRIAL
Defendant Guthy-Renker LLC (Guthy-Renker), by counsel, hereby
responds to the First Amended Class Action Complaint and Demand for Jury Trial
filed by Plaintiffs Amy Friedman and Judi Miller (Plaintiffs) as follows. The
numbered paragraphs correspond to the numbering of the allegations in Plaintiffs
complaint.
ANSWER
NATURE OF THE ACTION
8
9
1.
Guthy-Renker admits that Plaintiffs purport to bring this matter as a
putative class action seeking the relief enumerated, but Guthy-Renker denies that
10
this matter is appropriate for class action treatment.
11
knowledge or information sufficient to form a belief as to the truth of all remaining
12
allegations contained in Paragraph 1 of Plaintiffs First Amended Complaint and
13
therefore must deny them.
Guthy-Renker lacks
14
2.
Guthy-Renker admits that the quoted language has appeared on its
15
website.
Guthy-Renker denies that this matter is appropriate for class action
16
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 2
17
of Plaintiffs First Amended Complaint.
18
19
20
21
22
3.
Guthy-Renker denies the allegations contained in Paragraph 3 of
Plaintiffs First Amended Complaint.

4.

5.
23
24
25
6.
26
27
28
7.
To the extent that Plaintiffs allegations in Paragraph 7 of the First
Amended Complaint reference insurance or settlement negotiations, Guthy-Renker
objects to those allegations because they are irrelevant and inadmissible. Guthy-
Renker admits that Plaintiff Friedman engaged in communications with Guthy-
Renkers customer service representatives, and that Guthy-Renker asked questions
of Friedman to gain more information about her experience with the product.
Guthy-Renker denies all remaining allegations contained in Paragraph 7 of
8.
Guthy-Renker admits that it has not recalled the WEN Cleansing
10
Conditioner.
11
customers have otherwise been damaged.
12
allegations contained in Paragraph 8 of Plaintiffs First Amended Complaint.
13
9.
Guthy-Renker denies that the product causes hair loss or that

Guthy-Renker denies all remaining
14
15
of Plaintiffs First Amended Complaint and therefore denies them.
16
10.
17
treatment. Guthy-Renker denies all remaining allegations contained in Paragraph
18
10 of Plaintiffs First Amended Complaint.
19
11.
Guthy-Renker admits that Plaintiffs purport to bring this matter as a
20
putative class action, but Guthy-Renker denies that this matter is appropriate for
21
class action treatment.
22
JURISDICTION AND VENUE
23
12.
24
treatment.
25
13.
26
treatment, and Guthy-Renker denies that it engaged in unlawful practices. Guthy-
27
28
Renker admits that venue is proper. Guthy-Renker denies all remaining allegations
contained in Paragraph 13 of Plaintiffs First Amended Complaint.
14.
Guthy-Renker admits that certain of its terms and conditions associated
with online purchases in the U.S. have dictated that the laws of the state of
California govern the purchase. Guthy-Renker denies all remaining allegations
7
8
9
10
11
PARTIES
15.
Guthy-Renker lacks knowledge or information sufficient to form a
belief as to the truth of the allegations contained in Paragraph 15 of Plaintiffs

Complaint and therefore must deny them.
16.
12
13
14
17.
Pursuant to the Courts February 27, 2015 Order Granting in Part and
15
Denying in Part Defendants Motion to Dismiss (Dkt. 41), Krystal Henry-
16
McArthurs claims were dismissed. No response to Paragraph 17 from Guthy-
17
Renker is necessary.
18
18.
Guthy-Renker admits that its principal place of business is located at
19
3340 Ocean Park Blvd, Santa Monica, California and that it has transacted business
20
in this judicial district. Guthy-Renker denies all remaining allegations contained in
21
Paragraph 18 of Plaintiffs First Amended Complaint.
22
19.
Guthy-Renker admits that certain of its terms and conditions associated
23
with online purchases in the U.S. have dictated that the laws of the state of
24
California govern the purchase. Guthy-Renker denies all remaining allegations
25
26
27
28
1
2
3
4
COMMON FACTS
20.
Guthy-Renker admits the allegations contained in Paragraph 20 of

21.
Guthy-Renker admits that the quoted language appears on its website
and that it has been in operation since 1988. Guthy-Renker denies all remaining
22.
Guthy-Renker admits that its website contains or has contained the
statements quoted in Paragraph 22. Guthy-Renker denies that its statements are
false or misleading.
Because Plaintiffs have failed to identify the marketing
10
material to which they refer, Guthy-Renker lacks knowledge or information
11
sufficient to form a belief as to the truth of the remaining allegations contained in
12
Paragraph 22 of Plaintiffs Complaint and therefore must deny them.
13
14
15
23.
The written instructions for use received by Plaintiffs speak for
themselves.
24.
To the extent the allegations of Paragraph 24 refer to written
16
instructions for use received by Plaintiffs, they speak for themselves. Guthy-
17
Renker denies that its instructions for use are false or misleading, or that the
18
product is dangerous or causes hair loss.
19
25.
20
21
22
26.
To the extent that Plaintiffs allegations in Paragraph 26 of the First
23
Amended Complaint pose a rhetorical question, Guthy-Renker objects to those
24
allegations because they are improper pleading allegations and irrelevant. Guthy-
25
Renker admits that its website references or has referenced the study results as
26
quoted. Guthy-Renker denies all remaining allegations contained in Paragraph 26
27
28
26.1 Guthy-Renker admits that the WEN Cleansing Conditioner is
manufactured and sold in multiple formulations. Guthy-Renker admits that the
study quoted in Paragraph 26 (the second Paragraph 26 referenced in Plaintiffs
First Amended Complaint) applies to the four WEN Cleansing Conditioner
formulations referenced by Plaintiffs.
contain some similar ingredients. Guthy-Renker denies all remaining allegations
contained in Paragraph 26 (the second Paragraph 26 referenced in Plaintiffs First
Amended Complaint).
27.
Guthy-Renker admits that the products
10
11
12
28.
Guthy-Renker admits that its product is free of defects in design or
13
manufacture and that it is safe and fit for its ordinary and intended use. Guthy-
14
Renker denies all remaining allegations contained in Paragraph 28 of Plaintiffs
15
First Amended Complaint.
16
17
29.
18
30.
19
20
21
PLAINTIFF FRIEDMANS EXPERIENCE
22
31.
Guthy-Renker admits that Plaintiff Amy Friedman purchased a WEN
23
Hair Care Basic Kit containing WEN Sweet Almond Mint Cleansing Conditioner
24
in January 2014 for $29.95. Guthy-Renker denies that the product is dangerous or
25
causes hair loss, and therefore no warning is or was required. Guthy-Renker lacks
26
27
Plaintiffs First Amended Complaint appears to have been numbered incorrectly, as the
preceding paragraph is numbered the same as this paragraph.
28
knowledge or information sufficient to form a belief as to the truth all remaining
allegations contained in Paragraph 31 of Plaintiffs First Amended Complaint and
therefore must deny them.
32.
Guthy-Renker denies that the product is dangerous or causes hair loss.
Guthy-Renker lacks knowledge or information sufficient to form a belief as to the
truth of all remaining allegations contained in Paragraph 32 of Plaintiffs First
Amended Complaint and therefore must deny them.
8
9
PLAINTIFF MILLERS EXPERIENCE

33.
Guthy-Renker admits that Plaintiff Judi Miller purchased WEN Hair
10
Care Basic Kits containing WEN Sweet Almond Mint Cleansing Conditioner in
11
June 2011 over the telephone. Guthy-Renker admits that Plaintiff Miller received
12
additional shipments of the product up until approximately 2014. Guthy-Renker
13
lacks knowledge or information sufficient to form a belief as to the truth of all
14
remaining allegations contained in Paragraph 33 of Plaintiffs First Amended
15
16
34.
17
18
19
20
35.
21
Guthy-Renker is informed and believes that Plaintiff Miller contacted the FDA.
22
23
24
25
26
27
28
1
2
PLAINTIFF HENRY-MCARTHURS EXPERIENCE

36.
McArthurs claims were dismissed. No response from Guthy-Renker is necessary.
37.
McArthurs claims were dismissed. No response from Guthy-Renker is necessary.
8
9
10
38.
Denying in Part Defendants Motion to Dismiss (Dkt. 41), Krystal HenryMcArthurs claims were dismissed. No response from Guthy-Renker is necessary.
11
12
ADDITIONAL COMMON FACTS

39.
To the extent Plaintiffs allegations in Paragraph 39 of the First
13
Amended Complaint reference unverifiable and purported internet statements by
14
alleged consumers, Guthy-Renker objects to those allegations as being irrelevant
15
and containing inadmissible hearsay statements. Guthy-Renker denies that the
16
product is dangerous or causes hair loss.
17
information sufficient to form a belief as to the truth of all remaining allegations
18
contained in Paragraph 39 of Plaintiffs First Amended Complaint and therefore
19
must deny them.
20
40.
Guthy-Renker lacks knowledge or
21
belief as to the truth of the allegations regarding blog complaints and YouTube
22
videos. Guthy-Renker denies that the product is dangerous or causes hair loss.
23
24
25
26
27
CLASS ALLEGATIONS
41.
Guthy-Renker repeats and incorporates its responses to Paragraphs 1-
40 above as if set forth fully herein.
28
1
2
3
42.
Guthy-Renker admits that Plaintiffs purport to bring this action on
behalf of a class, but denies that this case is appropriate for class action treatment.
43.
Guthy-Renker admits that Guthy-Renker, its affiliates, employees,
officers and directors, persons or entities that purchased WEN Cleansing
Conditioner for purposes of resale, and the Judge(s) assigned to this case would be
excluded from any definition of a class. Guthy-Renker denies that this case is
appropriate for class action treatment.
8
9
10
11
44.
Although Guthy-Renker admits that Plaintiffs have purportedly
reserved the right to amend or modify their proposed class definitions, GuthyRenker denies that this case is appropriate for class action treatment.
45.
Guthy-Renker denies that this case is appropriate for class action
12
13
14
46.
15
16
17
47.
18
Denying in Part Defendants Motion to Dismiss (Dkt. 41), Plaintiffs alleged claims
19
in assumpsit were dismissed. Guthy-Renker denies that this case is appropriate for
20
class action treatment. Guthy-Renker denies all remaining allegations contained in
21
22
48.
23
24
25
49.
26
27
28
50.
51.
VIOLATIONS ALLEGED
COUNT I
BREACH OF WARRANTY
10
11
12
52.

53.
Guthy-Renker admits that it sold WEN Cleansing Conditioner in its
13
regular course of business, and that it sold at least one of several formulations of the
14
product to the named Plaintiffs. Guthy-Renker denies that this case is appropriate
15
for class action treatment. Guthy-Renker lacks knowledge or information sufficient
16
to form a belief as to the truth of all remaining allegations contained in Paragraph
17
53 of Plaintiffs First Amended Complaint and therefore must deny them.
18
54.
Guthy-Renker admits that WEN Cleansing Conditioner costs more
19
than five dollars. All remaining allegations of Paragraph 54 are legal conclusions
20
to which no response is required.
21
22
23
55.
The allegations of Paragraph 55 are legal conclusions to which no
response is required.
56.
As to the named Plaintiffs, Guthy-Renker admits that is was the
24
manufacturer and seller of the product at issue. However, Guthy-Renker denies
25
offering any warranties.
26
conclusions to which no response is required.
All remaining allegations of Paragraph 56 are legal
27
28
57.
4
5
6
58.

59.
Guthy-Renker admits that the WEN Cleansing Conditioner it sold to
the named Plaintiffs was merchantable, free from material defects, and fit for its
intended use. Guthy-Renker denies that this matter is appropriate for class action
10
11
12
13

60.

61.
14
15
16
62.
17
18
19
63.
20
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss or
21
other problems.
22
23
24
25
64.
Guthy-Renker denies all remaining allegations contained in

65.
26
27
28
10
66.
COUNT II
VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW,
BUSINESS AND PROFESSIONS CODE 17200, et seq.
7
8
9
67.

68.
Guthy-Renker states that the California Business & Professions Code
10
cited by Plaintiffs in Paragraph 68 speaks for itself as codified in 17200, et seq.
11
To the extent any of the allegations contained in Paragraph 68 are directed at
12
Guthy-Renker, Guthy-Renker denies such allegations in their entirety.
13
69.
14
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss.
15
16
17
18
19
70.

71.
20
21
22
23
72.
24
25
26
27
28
11
73.
Guthy-Renker denies that it has engaged in any unlawful, unfair, or
fraudulent practices, and Guthy-Renker denies that Plaintiffs are entitled to any
relief.
COUNT III
VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW,
7
8
9
10
11
12
13
14
15
16
74.

75.

76.

77.

78.
17
79.
18
treatment.
Guthy-Renker denies that it has made any false or misleading
19
statements, and Guthy-Renker denies that Plaintiffs are entitled to any relief.
20
21
22
80.
23
treatment. Guthy-Renker denies that it has engaged in false advertising, and Guthy-
24
Renker denies that Plaintiffs are entitled to any relief.
25
remaining allegations contained in Paragraph 80 of Plaintiffs First Amended
26
Complaint.
27
28
12
Guthy-Renker denies all
COUNT IV
COMMON COUNTS/ASSUMPSIT
81.
in assumpsit were dismissed. No response from Guthy-Renker is necessary.
82.
83.
10
11
12
84.
13
14
15
85.
16
17
18
86.
19
20
21
COUNT V
22
NEGLIGENCE - FAILURE TO WARN
23
24
25
87.

88.
26
treatment. Guthy-Renker admits that it was responsible for testing, manufacturing,
27
inspecting, distributing, marketing, supplying, and selling the product at issue to the
28
13
named Plaintiffs.
3
4
5
6
7
89.
Guthy-Renker denies all remaining allegations contained in

90.

91.
10
11

92.
12
13
14
93.
15
16
17
18
94.
19
treatment. Guthy-Renker denies that the product is dangerous or causes hair loss or
20
that Plaintiffs suffered damages. Guthy-Renker denies all remaining allegations
21
22
COUNT VI
23
NEGLIGENCE - FAILURE TO TEST
24
25
95.
26
27
28
14
96.
4
5
6
97.

98.
Guthy-Renker admits that it has a duty of reasonable care to its
customers as defined by the applicable law. All remaining allegations of Paragraph
98 are legal conclusions to which no response is required.
9
10
99.
11
100. Guthy-Renker denies that this case is appropriate for class action
12
13
14
15
101. Guthy-Renker denies that this matter is appropriate for class action
16
17
18
19
20
21
COUNT VII
22
STRICT PRODUCTS LIABILITY
23
24
25
26
103. Guthy-Renker repeats and incorporates its responses to Paragraphs 1102 above as if set forth fully herein.
104. Guthy-Renker admits that, with respect to the named Plaintiffs, it was
the manufacturer and supplier of the product at issue.
27
28
15
Guthy-Renker lacks
knowledge or information sufficient to form a belief as to the truth of the
3
4
5
6
105. Guthy-Renker denies the allegations contained in Paragraph 105 of

106. Guthy-Renker denies the allegations contained in Paragraph 106 of
treatment. Guthy-Renker denies that the product causes hair loss or that customers
have otherwise been damaged. Guthy-Renker denies all remaining allegations
10
11
108. Guthy-Renker lacks knowledge or information sufficient to form a
12
13
14
SEPARATE AND ADDITIONAL DEFENSES
15
In addition to the foregoing denials, Guthy-Renker reserves the right to rely
16
upon any of the following or any additional defenses to each claim asserted by
17
Plaintiffs to the extent that such defenses are supported by information developed
18
through discovery or by evidence at trial.
19
Plaintiffs alleged injuries resulted from or were in any way connected with any act,
20
omission, fault, conduct, or liability on the part of Guthy-Renker whether negligent,
21
careless, unlawful, or of any nature alleged or otherwise, and denies that Guthy-
22
Renker was in any way negligent, careless, reckless, wanton, or unlawful.
Guthy-Renker further denies that
23
By pleading these defenses, Guthy-Renker does not assume the burden of
24
proving any fact, issue, or element of a cause of action where such burden properly
25
belongs to Plaintiffs.
26
construed as a concession that any particular issue or subject matter is relevant to
27
Plaintiffs allegations.
Moreover, nothing stated herein is intended or shall be
28
16
FIRST AFFIRMATIVE DEFENSE

(failure to state a claim)
1
2
3
1.
Plaintiffs claims are barred, in whole or in part, because the
Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE

(other defenses/presumptions)
6
7
2.
Guthy-Renker is entitled to, and claims the benefit of, all defense and
presumptions set forth in or arising from any rule of law or statute in California
and/or any other law or statute that may be applicable.
10
THIRD AFFIRMATIVE DEFENSE

(lack of standing)
11
12
3.
Plaintiffs have no standing to assert any of the claims set forth in the
13
Complaint or to seek restitution, either on their own behalf or as representatives of
14
any purported class, by reason of Californias Proposition 64, Article III of the
15
United States Constitution, and other applicable law.
16
FOURTH AFFIRMATIVE DEFENSE

(legal compliance)
17
18
4.
Plaintiffs claims are barred, in whole or in part, because Guthy-
19
Renker has been in compliance with all statutes, regulations, and other laws in
20
effect at the time of the conduct allegedly giving rise to Plaintiffs claims.
21
FIFTH AFFIRMATIVE DEFENSE

(adequate remedies at law)
22
23
5.
Plaintiffs and the classes they purport to represent are not entitled to
24
equitable relief because they have adequate remedies at law, and no threat of harm
25
exists to support a grant of a temporary restraining order or injunctive relief.
26
27
28
17
SIXTH AFFIRMATIVE DEFENSE

(estoppel)
1
2
3
4
6.
estoppel.
SEVENTH AFFIRMATIVE DEFENSE

(waiver)
6
7
8
7.
EIGHTH AFFIRMATIVE DEFENSE

(laches)
10
12
8.
Plaintiffs claims are barred, in whole or in part, by the doctrine of
laches.
13
NINTH AFFIRMATIVE DEFENSE

(plaintiffs negligence and failure to mitigate)
14
15
Plaintiffs claims are barred, in whole in part, by the doctrine of
waiver.
11
Plaintiffs claims are barred, in whole or in part, by the doctrine of
9.
Plaintiffs alleged loss, damage, injury, harm, or deprivation alleged, if
16
any, was caused in whole or in part by Plaintiffs failure to exercise reasonable care
17
and diligence to mitigate these alleged damages.
18
TENTH AFFIRMATIVE DEFENSE

(comparative fault and lack of causation)
19
20
10.
Guthy-Renker avers that any award of damages in favor of Plaintiffs
21
must be decreased by the extent to which Plaintiffs own acts or omissions and by
22
the acts and omissions of their own principals and/or agents, or the subsequent,
23
superseding, or intervening acts or omissions of third parties, were a cause of said
24
damages. To the extent the foregoing is true, the damage alleged, if any, must be
25
diminished in whole or in part according to proof thereof at the time of trial.
26
27
28
18
ELEVENTH AFFIRMATIVE DEFENSE

(state of the art)
1
2
3
11.
Plaintiffs claims are barred in that WEN products were designed,
manufactured and labeled in a manner consistent with the state of the art at the
pertinent time.
TWELFTH AFFIRMATIVE DEFENSE

(Guthy-Renkers good faith)
7
8
12.
Each cause of action is barred, in whole or in part, because Guthy-
Renkers alleged actions, if any, respecting the matters alleged in the First
10
Amended Complaint, were at all times undertaken in good faith and in the absence
11
of malicious intent to injure Plaintiffs. Guthy-Renkers alleged actions, if any, were
12
completed with legitimate business justification, provided adequate warnings of all
13
known or reasonably known risk associated with the use of its products, and
14
constituted a lawful, proper, and justified means of furthering the business of
15
Guthy-Renker. Accordingly, Plaintiffs are barred from relief under any allegations
16
contained in the First Amended Complaint.
17
THIRTEENTH AFFIRMATIVE DEFENSE

(lack of notice, reliance, satisfaction of conditions)
18
19
13.
Plaintiffs failed to give timely or any other proper notice of any
20
alleged breach of warranty to Guthy-Renker; Plaintiffs did not reasonably rely upon
21
any alleged warranty; Plaintiffs failed to satisfy all conditions precedent or
22
subsequent to the enforcement of such alleged warranty; and the alleged warranty
23
was appropriately disclaimed, excluded, fulfilled, or modified.
24
FOURTEENTH AFFIRMATIVE DEFENSE

(claims unconstitutional)
25
26
27
14.
Plaintiffs claims are barred in whole or in part by the applicable
provisions of the United States Constitution, the California Constitution, should it
28
19
apply, and/or applicable Constitution of any other State or Commonwealth of the
United States whose laws might be deemed controlling in this case.
provisions include, but are not limited to, the First Amendment to United States
Constitution, Article I, the Due Process Clause of the United States Constitution,
the Excessive Fines Clause of the United States Constitution, the Commerce Clause
of the United States Constitution, and Section 2 of the Constitution of the State of
California because Guthy-Renkers commercial speech regarding WEN was neither
false nor misleading.
FIFTEENTH AFFIRMATIVE DEFENSE

(other causes)
10
11
These
15.
Any verdict or judgment rendered against Guthy-Renker must be
12
reduced by those amounts that have been, or will, with reasonable certainty, replace
13
or indemnify Plaintiffs, in whole or in part, for any past or future claimed economic
14
loss, from any collateral source such as insurance, social security, worker's
15
compensation, or employee benefit programs.
16
SIXTEENTH AFFIRMATIVE DEFENSE

(idiosyncratic reaction)
17
18
16.
If Plaintiffs sustained injuries or losses as alleged in the First Amended
19
Complaint, such injuries or losses may have been caused by an individual,
20
idiosyncratic reaction.
21
SEVENTEENTH AFFIRMATIVE DEFENSE

(settlement credits)
22
23
17.
In the unlikely event that Guthy-Renker is found liable to Plaintiffs,
24
Guthy-Renker is entitled to a credit or offset for any and all sums that Plaintiffs
25
have received or may hereafter receive by way of any and all settlements arising
26
from Plaintiffs' claims and causes of action. Guthy-Renker alternatively asserts its
27
right to a proportionate reduction of any damages based on comparative fault or the
28
20
percentage of negligence attributable to Plaintiffs or to any settling tortfeasor under
California law and/or the laws of any other State or Commonwealth of the United
States whose laws might be deemed controlling in this case.
EIGHTEENTH AFFIRMATIVE DEFENSE

(pre-existing and unrelated conditions)
5
6
18.
If Plaintiffs sustained injuries or losses as alleged in the First Amended
Complaint, such injuries or losses resulted from Plaintiffs pre-existing and/or
unrelated medical, genetic, and/or environmental conditions, diseases, or illnesses,
subsequent medical conditions or natural courses of conditions for which Guthy-
10
Renker is not responsible.
11
NINETEENTH AFFIRMATIVE DEFENSE

(lack of causation)
12
13
19.
Any conduct on the part of Guthy-Renker allegedly causing Plaintiffs'
14
alleged injuries was not a substantial cause or factor of actual injury or damage, if
15
any.
16
TWENTIETH AFFIRMATIVE DEFENSE

(no breach of warranty)
17
18
20.
19
created by law.
20
TWENTY-FIRST AFFIRMATIVE DEFENSE

(no damages)
21
22
Guthy-Renker did not breach any implied warranties or any warranties
21.
To the extent that Plaintiffs purport to seek relief on behalf of any
23
person who has not suffered any damages, the Complaint violates Guthy-Renkers
24
right to due process under the United States and California Constitutions.
25
26
27
28
21
TWENTY-SECOND AFFIRMATIVE DEFENSE

(fees not recoverable)
1
2
3
22.
not recoverable.
To the extent Plaintiffs seek recovery of attorneys fees, such fees are
TWENTY-THIRD AFFIRMATIVE DEFENSE

(no punitive damages)
6
7
8
23.
Plaintiffs are not entitled to punitive damages because they cannot
meet the standard required for an award of such damages.
TWENTY-FOURTH AFFIRMATIVE DEFENSE

(not appropriate for class action treatment)
10
11
24.
The claims in the Complaint are barred, in whole or in part, because
12
this case is not appropriate for class or representative treatment for a variety of
13
reasons, including but not limited to the following: the purported class is not
14
ascertainable or certifiable as such; Plaintiffs claims are not typical of those of the
15
purported class; the named Plaintiffs are not adequate representatives of the alleged
16
class that Plaintiffs seek to represent; Plaintiffs claims do not present common
17
issues and individual issues will predominate; class treatment will not be
18
manageable or superior; and the purported class has not suffered class-wide injury.
19
TWENTY-FIFTH AFFIRMATIVE DEFENSE

(accord, satisfaction and prior release)
20
21
22
25.
prior release.
23
TWENTY-SIXTH AFFIRMATIVE DEFENSE

(no causal connection)
24
25
26
Some of Plaintiffs claims are barred by accord and satisfaction, or
26.
There is no causal connection between any conduct of Guthy-Renker
and any alleged loss or damage which Plaintiffs contends they have sustained.
27
28
22
TWENTY- SEVENTH AFFIRMATIVE DEFENSE

(statute of limitations or repose)
1
2
3
27.
Plaintiffs claims are barred, in whole or in part, by the applicable
statute of limitations and/or statutes of repose, including but not limited to
California Code of Civil Procedure 335.1, 338, and 343, California Civil Code
1783, and California Bus. & Prof. Code 17208.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE

(assumed risk)
8
9
28.
Plaintiffs have full knowledge of all the risks, dangers, and hazards, if
10
any there were, and nevertheless voluntarily and with full appreciation of the
11
amount of danger involved, assumed the risk of loss to themselves.
12
TWENTY-NINTH AFFIRMATIVE DEFENSE

(safe harbor)
13
14
29.
The cause of action for violation of California Business and
15
Professions Code Section 17200 et seq. is barred by the safe harbor provided by
16
Guthy-Renkers compliance with federal and/or state laws and regulations. See
17
Cel-Tech Comm., Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 182
18
(1999).
19
THIRTIETH AFFIRMATIVE DEFENSE

(nonjoinder of indispensable parties)
20
21
22
30.
indispensable parties.
23
THIRTY-FIRST AFFIRMATIVE DEFENSE

(other causes)
24
25
The First Amended Complaint should be dismissed for nonjoinder of
31.
If Plaintiffs suffered or sustained any loss, injury or damage, that loss,
26
injury or damage was proximately caused and contributed to by persons and entities
27
other than Guthy-Renker over whom Guthy-Renker exercised no control and had
28
23
no opportunity to anticipate or right to control, and with whom Guthy-Renker had
no legal relationship by which liability could be attributed to it, including Plaintiffs
themselves. Therefore the liability of all responsible parties, named or unnamed,
should be apportioned according to their proportionate degree of responsibility,
then the liability of Guthy-Renker, if any, should be reduced accordingly.
THIRTY-SECOND AFFIRMATIVE DEFENSE

(normal course of business)
7
8
32.
Guthy-Renker is not liable for the acts alleged in the First Amended
Complaint as their actions were carried out in the normal course of marketing and
10
manufacturing consumer products, and were necessarily incident to the rendition of
11
goods and services.
12
THIRTY-THIRD AFFIRMATIVE DEFENSE

(no damages)
13
14
33.
Guthy-Renker asserts that Plaintiffs have not been damaged in any
15
amount by the conduct, acts or omissions of Guthy-Renker. Furthermore, there are
16
no amounts to be restored to Plaintiffs in that Guthy-Renker has not taken or
17
retained any property or monies that they were not entitled to, nor have Plaintiffs
18
given up any property or monies to Guthy-Renker that they were entitled to keep.
19
THIRTY-FOURTH AFFIRMATIVE DEFENSE

(unjust enrichment)
20
21
34.
Guthy-Renker asserts that Plaintiff would be unjustly enriched if
22
allowed to recover any sums claimed to be due under the First Amended
23
Complaint.
24
THIRTY-FIFTH AFFIRMATIVE DEFENSE

(punitive damages barred)
25
26
27
35.
Any punitive damages claimed by Plaintiffs are in violation of and are
barred by the Constitution of the United States, including, but not limited to, the
28
24
Due Process and Equal Protection Clauses contained in the Fifth and Fourteenth
Amendments to the United States Constitution; the Excessive Fines Clause of the
Eighth Amendment to the United States; the Double Jeopardy Clause in the Fifth
Amendment to the United States Constitution; the Tenth Amendment to the United
States Constitution; and common law, public policy, and applicable statutes and
court rules.
THIRTY-SIXTH AFFIRMATIVE DEFENSE

(no oppressive, fraudulent or malicious acts)
8
9
36.
To the extent California law is held to apply, Guthy-Renker alleges
10
that to the extent that Plaintiffs seek punitive or exemplary damages for an alleged
11
act or omission of Guthy-Renker, no act or omission was oppressive, fraudulent, or
12
malicious, under California Civil Code 3294. Therefore, any award of punitive or
13
exemplary damages is barred. Any claim for punitive or exemplary damages is also
14
barred under California Civil Code 3294(b).
15
THIRTY-SEVENTHN AFFIRMATIVE DEFENSE

(speculative damages)
16
17
37.
The First Amended Complaint, and each purported claim contained
18
therein, is barred, in whole or in part, because the alleged sums to be restored to
19
allegedly injured parties, if any, are speculative, uncertain, and incapable of
20
calculation; thus, it is impossible to ascertain and allocate such alleged sums.
21
THIRTY-EIGHTH AFFIRMATIVE DEFENSE

(election of remedies)
22
23
24
38.
The doctrine of election of remedies bars Plaintiffs ability to recover
under all the causes of action alleged in the First Amended Complaint.
25
26
27
28
25
THIRTY-NINTH AFFIRMATIVE DEFENSE

(mootness)
1
2
3
4
39.
they have become moot.
FORTIETH AFFIRMATIVE DEFENSE

(failure to plead fraud with particularity)
6
7
8
40.
Plaintiffs have failed to plead their fraud claim with the particularity
required by Fed. R. Civ. P. 9(b).
FORTY-FIRST AFFIRMATIVE DEFENSE

(modification or alteration of product)
10
11
The claims of the First Amended Complaint are barred to the extent
41.
The proximate cause of Plaintiffs alleged injuries was a modification
12
or alteration of the products at issue, which was not reasonably expected by Guthy-
13
Renker. Any injuries or expenses incurred by Plaintiffs were not caused by Guthy-
14
Renker, but may have been proximately caused, in whole or part, by the unforeseen
15
alteration, unintended use, misuse, or abuse of the products referenced in Plaintiffs
16
17
FORTY-SECOND AFFIRMATIVE DEFENSE

(improper joinder)
18
19
42.
The Complaint improperly joins Plaintiffs in the causes of action
20
asserted against Guthy-Renker because Plaintiffs right to relief, if any, does not
21
arise out of the same transaction, occurrence, or series of transactions or
22
occurrences, and Plaintiffs do not involve common questions of fact or law.
23
FORTY-THIRD AFFIRMATIVE DEFENSE

(not misleading)
24
25
43.
The business practices and or marketing statements of which Plaintiffs
26
complain through their California Business & Professions Code 17200 and
27
17500 claims in the First Amended Complaint are not likely to mislead anyone.
28
26
FORTY-FORTH AFFIRMATIVE DEFENSE

(other affirmative defenses)
1
2
3
44.
Guthy-Renker presently has sufficient knowledge or information upon
which to form a belief as to whether Guthy-Renker may have other, as yet unstated,
affirmative defenses available. Therefore, Guthy-Renker reserves the right to assert
additional affirmative defenses in the event that discovery or any other investigation
indicates they would be appropriate.
PRAYER FOR RELIEF
Guthy-Renker denies that Plaintiffs or others are entitled to the relief sought
10
in the Prayer for Relief, or to any relief at all. Guthy-Renker further denies that this
11
case is appropriate for certification as a class action.
12
WHEREFORE, Guthy-Renker prays for judgment as follows:
13
1.
That Plaintiffs take nothing by the First Amended Complaint;
14
2.
That the Court enter judgment dismissing the First Amended
15
Complaint against Guthy-Renker, with prejudice;
16
3.
17
That the Court award Guthy-Renker its reasonable expenses and costs
incurred in the defense of the First Amended Complaint; and
18
4.
19
That the Court grant Guthy-Renker such relief as the Court may deem
proper.
20
//
21
//
22
//
23
//
24
//
25
//
26
//
27
//
28
27
JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure and Rule 38-1 of
the Local Rules for the Central District of California, Guthy-Renker hereby
demands a trial by jury.
DATED: March 27, 2015
6
7
8
9
10
Respectfully submitted,
By: /s/ Jonathan M. Jackson
LEWIS WAGNER, LLP
Dina M. Cox
LATHAM & WATKINS LLP
David J. Schindler
Jonathan M. Jackson
Attorneys for Defendant Guthy-Renker LLC
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28
NATURE OF THE ACTION
1
2
Plaintiffs Amy Friedman, Judi Miller, and Krystal Henry-McArthur
3 (collectively Plaintiffs), on behalf of themselves and all others similarly situated,

4 by their undersigned attorneys, allege as follows:
5
1.
This is a class action brought by Plaintiffs, on behalf of themselves
6 and other similarly situated persons, against Guthy-Renker LLC (Guthy-Renker

7 or Defendant). Plaintiffs seek damages and equitable remedies for themselves
8 and the Class (defined in 41, below), which includes consumers who have
9 purchased WEN Cleansing Conditioner haircare products, in the following
10 variations:
Sweet Almond Mint, Lavender, Pomegranate and Summer Honey
11 Peach (WEN Cleansing Conditioner or the Products).

12
2.
As described below, an inherent design and/or manufacturing defect
13 in Defendants WEN Cleansing Conditioner causes significant hair loss.

14 Defendant provides no warning about this consequence and, in fact, makes
15 numerous assertions about the gentle nature of the product. For example, on its
16 website, Defendant makes statements such as, WEN is gentle enough to use
17 every day and WEN isn't like an ordinary shampoo so you want to use more of
18 it, not less. You can never use too much! The more you use, the better the results.
19 These statements and others, which related uniformly to all the Products, were and
20 are false and have harmed Plaintiffs and the Class. In fact, WEN products use
21 numerous
harsh
chemicals
and
known
human
allergens,
such
as
22 Hydroxycitronellal. As a result of the defective nature of the Products, they were

23 and are unfit for their intended use and purpose.
24
3.
Once the hair loss caused by WEN Cleansing Conditioner begins, it
25 can often continue for weeks before abating, even if the consumer immediately
26 discontinues use of the product. The hair loss is not de minimusconsumers who
27 suffer hair loss often lose one quarter to one third of their hair, or more.
28
1
1 Plaintiffs have suffered injury in fact and loss of money or property as the result of
2 their use of WEN Cleansing Conditioner.
3
4.
This action arises from Defendants failure, despite its longstanding
4 knowledge of a material design defect, to disclose and/or warn Plaintiffs and other
5 consumers that WEN Cleansing Conditioner can and does cause substantial hair
6 loss. Indeed, not only did Defendant fail to warn consumers, it actively concealed
7 customers comments concerning hair loss, by blocking and/or erasing such
8 comments from the WEN Facebook page.
9
5.
Further, based on inherent defects in the formula and/or manufacture
10 of the WEN Cleansing Conditioner, Defendant knew or should have known that its
11 warranties were being breached by the hair loss caused by the Products. Defendant
12 knew or should have known that Plaintiffs and Class members would suffer
13 damages as the result of the hair loss caused by WEN Cleansing Conditioner.
14 Defendant concealed these facts from Class members, including Plaintiffs.
15 Defendants failure to disclose this defect about which it knew or should have
16 known constitutes both an actionable misrepresentation and an unfair, unlawful,
17 fraudulent, and deceptive business practice.
18
6.
Plaintiffs and other Class members have been damaged by
19 Defendants concealment and non-disclosure of the defective nature of the

20 Products, because they were misled into purchasing WEN Cleansing Conditioner
21 of a quality and value different than they were promised.
Guthy-Renker has
22 known about this issue for at least four years as the result of public complaints.
23 Guthy-Renker also knew or should have known about the hair loss issues caused
24 by WEN Cleansing Conditioner as the result of pre-release formulation and testing.
25 Notwithstanding these complaints, Defendant has failed and/or refused to provide
26 an adequate remedy.
27
28
2
7.
Perhaps most striking about this situation is Defendants clear and
2 unambiguous knowledge of the hair loss caused by WEN Cleansing Conditioner.

3 For example, after complaining about hair loss caused by WEN Cleansing
4 Conditioner to the United States Food and Drug Administration, Plaintiff Friedman
5 received
electronic
communications
from
Defendants
consumer
affairs
6 department. One of these emails included more than two-dozen comprehensive

7 questions concerning Plaintiff Friedmans use of WEN Cleansing Conditioner.
8 Discovery in this litigation will undoubtedly demonstrate that Defendant
9 formulated these questions long ago and has repeatedly used them with
10 complaining
consumers.
Plaintiff
Friedman
subsequently
received
11 communications from Defendants apparent insurer, Chubb. Rather than address

12 this systemic problem, Defendant is apparently attempting to payoff consumers on
13 the cheap, sweep this problem under the rug and continue its lucrative business
14 selling its defective WEN Cleansing Conditioner.
15
8.
Despite notice and knowledge of the problems caused by WEN
16 Cleansing Conditioner from the numerous consumer complaints it has received,

17 information from third parties (including the United States Food and Drug
18 Administration), Guthy-Renker has not recalled the WEN Cleansing Conditioner,
19 or offered its customers proper compensation for their damages.
20
9.
Had Plaintiffs and other Class members known about the problems
21 caused by WEN Cleansing Conditioner at the time of purchase, they would not
22 have purchased the product.
23
10.
As a result of Defendants practices, Plaintiffs and the other Class
24 members have suffered injury in fact, including economic damages.

25
11.
Plaintiffs therefore bring this action on behalf of themselves and a
26 proposed Class of similarly situated purchasers of Guthy-Renkers WEN Cleansing

27 Conditioner.
28
3
1
2
3
JURISDICTION AND VENUE
4
5
12.
This Court has subject matter jurisdiction of this action pursuant to 28
6 U.S.C. 1332 of the Class Action Fairness Act of 2005 because: (i) there are 100
7 or more class members, (ii) there is an aggregate amount in controversy exceeding
8 $5,000,000, exclusive of interest and costs, and (iii) there is minimal diversity
9 because at least one plaintiff and defendant are citizens of different states. This
10 Court has supplemental jurisdiction over any state law claims pursuant to 28
11 U.S.C. 1367.
12
13.
Venue is proper in this District pursuant to 28 U.S.C. 1391 inasmuch
13 as the unlawful practices are alleged to have been directed from this District.
14 Specifically, Defendant Guthy-Renker has its principal place of business in this
15 District, and Defendant regularly conducts and directs its business in and from this
16 District.
17
14.
According to Defendant Guthy-Renker, the laws of the state of
18 California are to govern all purchases of the products at issue.
PARTIES
19
20
15.
During all times relevant to this suit, Plaintiff, Amy Friedman
21 (Friedman or Plaintiff Friedman), has been a resident of the State of Florida,

22 and currently resides in St. Petersburg, Florida.
23
16.
During all times relevant to this suit, Plaintiff, Judi Miller (Miller or
24 Plaintiff Miller), has been a resident of the State of Maryland, and currently
25 resides in Glenwood, Maryland.
26
27
28
4
17.
During all times relevant to this suit, Plaintiff, Krystal Henry-
2 McArthur (Henry-McArthur or Plaintiff Henry-McArthur), has been a resident

3 of the State of Florida, and currently resides in Tampa, Florida.
4
18.
Defendant Guthy-Renker is an American corporation whose principal
5 place of business is located at 3340 Ocean Park Blvd, Santa Monica, California.
6 At all times relevant to this complaint Defendant has transacted business in this
7 judicial district and has directed its international operations from this district
8 throughout the United States and the world.
9
19.
According to Defendant Guthy-Renker, any and all claims regarding
10 its WEN Cleansing Conditioner are governed by the laws of the state of California.
COMMON FACTS
11
12
20.
At all relevant times herein, Defendant has developed, manufactured,
13 marketed, sold and distributed WEN Cleansing Conditioner throughout the United
14 States.
15
21.
On its website (www.guthy-renker.com) Defendant bills itself as
16 direct marketing pioneers and one of the largest and most respected direct
17 marketing companies in the world, with distribution in 68 countries. Defendants
18 website also indicates it has been in operation since 1988.
Defendant sells its
19 products predominantly through celebrity-driven infomercials.
The strong
20 majority of Defendants sales occur by phone. Guthy-Renker is best known for its
21 promotion and sale of Proactive Solution, but it sells six other beauty-related
22 productsincluding WEN haircare products.
23
22.
In its marketing materials and on the website for WEN haircare
24 products (www.wen.com), Defendant makes a variety of false and/or misleading

25 statements about WEN Cleansing Conditioner, including, but not limited to, the
26 following:
27
28
It seems like I'm using a lot of product. Can I use too much?
5
1
2
3
4
5
6
7
WEN isn't like an ordinary shampoo so you want to use more of it, not
less. You can never use too much! The more you use, the better the
results.
(emphasis added).
Should I use the Cleansing Conditioner every day?
That's up to you. Some people like to wash their hair daily. Others will go a
day or two between washings. Although WEN is gentle enough to use
every day, if you don't, you can combine 4-6 pumps of Cleansing
Conditioner with a quarter-size amount of Styling Creme in a spray bottle
with water. Shake vigorously to mix completely. Spritz it on 12-18 inches
above hair to provide a light mist. Shake out and restyle or fluff up your
hair!
8 (emphasis added).
9
10
11
12
13
14
Rinse hair thoroughly. Apply WEN into your palms and rub together. Use
10-16 pumps for short hair, 16-24 for medium length hair and 24-32 pumps
for long hair. If your hair is longer/thicker you may need to increase the
amount of pumps.
(emphasis added).
Apply to scalp and hair, adding a splash of water to evenly distribute.
WEN has no harsh detergents or sodium lauryl sulfate, so it won't lather.
Massage thoroughly into hair and leave on for the remainder of your
shower.
15 (emphasis added).
16
17
18
19
20
21
22
23
24
25
26
27
WEN Cleansing Conditioner is a revolutionary new concept in hair

care. A 5-in-1 formula, this one product takes the place of your shampoo,
conditioner, deep conditioner, detangler and leave-in conditioner. It cleanses
hair thoroughly without lathering or harsh ingredients. It's designed not
to strip your hair and scalp of natural oils, leaving your hair with more
strength, moisture, manageability and better color retention.
(emphasis added).
23. The instructions for using WEN Cleansing Conditioner does not vary
between scents, and states:
CLEANSING YOUR HAIR IN 3 EASY STEPS:
Step 1:
Rinse hair thoroughly. Apply WEN into your palms and rub together.
Use 10-16 pumps for short hair, 16-24 for medium length hair and 24-32
pumps for long hair. If your hair is longer/thicker you may need to
increase the amount of pumps.
28
6
Step 2:
Apply to scalp and hair, adding a splash of water to evenly distribute.
WEN has no harsh detergents or sodium lauryl sulfate, so it won't
lather. Massage thoroughly into hair and leave on for the remainder of
your shower.
1
2
3
4
Step 3:
Rinse thoroughly and completely, massaging scalp and running fingers
through to the ends.
5
6
7
ADDITIONAL USAGE TIPS:

Apply 1/2 to 1 pump depending on hair length and texture as a leave-in
conditioner to soaking wet hair. For best results, we highly suggest you
cleanse, rinse and repeat, using half the recommended pumps for the first
cleanse, and the remaining half for the second cleanse. Unlike many
ordinary shampoos, you may find you don't need to cleanse as often.
8
9
10
11
12
24.
The emphasized statements are false and/or misleading, and through
13 the instructions on the product, Defendant expressly instructs consumers to use

14 tremendous amounts of the product, reinforcing these statements with assertions
15 that the product is gentle and you cannot possibly use too much.
Defendant
16 encourages consumers to leave the product in their hair for long periods, but fails
17 to provide direct instructions concerning the duration of application.
Indeed,
18 Defendant also encourages consumers to leave small amounts of the product in

19 their hair as a leave-in conditioner and not wash it out at all. In reality, use of
20 Defendants product can and does cause significant hair loss when used in
21 accordance with Defendants limited instructions.
22
25.
Due to Defendants false and misleading statements, Class members
23 purchased WEN Cleansing Conditioner with no reason to suspect or know the

24 dangers occasioned by use of the Products, and used tremendous amounts of the
25 product on their hair as instructed. Not until hair loss began could a Class member
26 have any reason to suspect that WEN Cleansing Conditioner is defective, and even
27 then might not immediately make the connection.
28
7
26.
Rather than acknowledging the dangers of using WEN Cleansing
2 Conditioner, Defendant further reinforces its false statements with summary of a

3 patently misleading study. Defendants Features study states:
4
In a 3-week study of users of WEN Cleansing Conditioner, up to:
100% said hair was more moisturized!
97% noticed that WEN added more shine!
95% reported that hair became more manageable
8 However, Defendant goes on to state (in much smaller print) that these results are
9 not typical. If the results are not typical, what purpose does this information
10 serve, other than to mislead potential consumers into purchasing Defendants
11 defective product?
12
26.
Defendant sells its WEN Cleansing Conditioner in four different
13 scents: Sweet Almond Mint, Pomegranate, Lavender and Summer Honey Peach.
14 The study quoted above applies to all four scents.
In addition, the Key
15 Ingredients" listed for all four scents does not differ:

16
KEY INGREDIENTS
17
Glycerin: A humectant that provides moisturizing benefits to the hair.
18
Chamomile Extract: Used for its soothing and calming properties.
19
Wild Cherry Bark: Formulated to help condition the hair.
20
Rosemary Extract: Designed to soothe hair.
21
Panthenol: Designed to help strengthen hair and restore resilience.
22 As a result, there is no discernable difference between the four scents other than
23 the smell.
24
27.
As the direct and proximate result of Defendants false and misleading
25 statements, Plaintiffs and Class members have suffered injury in fact and a loss of
26 money or property through the out-of-pocket costs expended to purchase the WEN
27
28
8
1 Cleansing Conditioner, as well as the costs of mitigating the hair loss occasioned
2 by Defendants products.
3
28.
By marketing, selling and distributing WEN Cleansing Conditioner
4 from California to purchasers throughout the United States, Defendant made

5 actionable statements that WEN Cleansing Conditioner was free of defects in
6 design and/or manufacture, and that it was safe and fit for its ordinary intended use
7 and purpose.
8
29.
By marketing, advertising, selling and distributing WEN Cleansing
9 Conditioner from California to purchasers throughout the United States, Defendant

10 made actionable statements that the ordinary use of the WEN Cleansing
11 Conditioner would not involve undisclosed safety risks.
Further, Defendant
12 concealed what it knew or should have known about the safety risks resulting from
13 the material defects in design and/or manufacture.
14
30.
Defendant engaged in the above-described actionable statements,
15 omissions and concealments with knowledge that the representations were false
16 and/or misleading, and with the intent that consumers rely upon such concealment,
17 suppression and omissions. Alternatively, Defendant was reckless in not knowing
18 that these representations were false and misleading at the time they were made.
19 Defendant had exclusive access to data and research conducted prior and during
20 the design and manufacture phase of the development of WEN Cleansing
21 Conditioner that Plaintiffs and Class members could not and did not review.
PLAINTIFF FRIEDMANS EXPERIENCE
22
23
31.
After viewing advertisements for WEN Cleansing Conditioner
24 espousing its safe, innovative and gentle qualities, on or about January 29, 2014,
25 Plaintiff, Amy Friedman, purchased the Sweet Almond Mint basic kit directly from
26 Defendant for a price of $29.95. Plaintiff Friedman had previously used organic
27 shampoos and conditioners, which never caused abnormal hair loss. At no time
28
9
1 did Defendant provide Plaintiff Friedman any warnings concerning the potential
2 dangers of using WEN Cleansing Conditioner.
3
32.
Within two weeks of beginning use of her WEN Cleansing
4 Conditioner, Plaintiff Friedman began losing substantial and abnormal amounts of

5 hair.
Plaintiff Friedman discontinued use, but the hair loss continued for
6 approximately three more weeks. Ultimately, Plaintiff Friedman lost one quarter
7 to one third of the hair on her head.
As a result, Plaintiff Friedman, a nurse
8 practitioner by profession, was forced to expend substantial sums on vitamins and

9 supplements to attempt to regrow her very long hair.
Additionally, Plaintiff
10 Friedman was forced to undertake expensive cosmetic solutions, such as hair

11 extensions, to mask the hair loss.
PLAINTIFF MILLERS EXPERIENCE
12
13
33.
Plaintiff Miller first purchased WEN Cleansing Conditioners (Sweet
14 Almond Mint and Pomegranate) in June 2011. She purchased the WEN Cleansing
15 Conditioners by telephone after viewing Defendants advertisements regarding the
16 safe, innovative and gentle qualities of its WEN Cleansing Conditioners. After
17 initial purchases, Plaintiff Miller received automatic shipments of WEN Cleansing
18 Conditioners every few months, until January 21, 2014, when she called and
19 cancelled direct shipments.
Plaintiff Miller used the WEN products consistent
20 with the instructions, in some instances using the product as a so-called spa
21 treatment and leaving it in her hair for extended periods of time.
22
34.
Beginning in January 2013, Plaintiff Miller noticed that she was
23 losing abnormal amounts of hair. Not suspecting the WEN Cleansing Conditioner
24 was the culprit, Plaintiff Miller only stopped using the products in June 2014, when
25 she finally realized that she was losing substantial amounts of hair only in the areas
26 in which she applied WEN Cleansing Conditioner, among other places, on the
27 crown of her head.
28
10
35.
As a result of the hair loss caused by the WEN Cleansing
2 Conditioners, Plaintiff Miller was forced to expend substantial sums on vitamins,

3 supplements, and doctor visits to treat and attempt to regrow her hair and treat
4 other serious health issues caused by use of the products. Like Plaintiff Friedman,
5 Plaintiff Miller also contacted the FDA concerning her negative experience with
6 WEN haircare products.
PLAINTIFF HENRY-MCARTHURS EXPERIENCE
36.
Plaintiff Henry-McArthur is in the military (active duty), and
9 purchased WEN Cleansing Conditioner in June 2014 after seeing infomercials for
10 the products.
37.
11
A few weeks after she started using WEN Cleansing Conditioner,
12 Plaintiff Henry-McArthur began noticing substantial hair loss and ceased using the
13 product immediately.
38.
14
Plaintiff Henry-McArthurs hair loss is further accentuated as a result
15 of the limited hairstyles available due to her military service.
ADDITIONAL COMMON FACTS
16
39.
17
18 occurrences.
Plaintiffs experiences are by no means isolated or outlying

Indeed, the internet is replete with examples of blogs and other
19 websites where consumers have complained of the exact same issues with WEN
20 Cleansing Conditioner.
A very small sample1 of the numerous online
21 complaintsdating back several yearsappears below:
http://community.qvc.com/forums/wen/topic/305237/hair-loss-afterusing-wen-products.aspx
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Hair Loss After Using Wen Products

Started 07/08/2012 at 10:26 AM in WEN | Last reply 11/15/2013 at 4:03
AM byracerrn
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Typographical and grammatical errors in the excerpted complaints have not been
corrected
and remain as originally written.
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I'm posting this note after losing massive amounts of hair in patches mostly
at the crown of my head, with smaller bald patches all over my scalp. Early
this year (2012) I purchased the Wen introductory package (cleanser, deep
conditioner, styling creme, styling balm [stick] and a comb) with the auto
30-day refill. Almost immediately after using the product I noticed huge
amounts of hair caught in the drain (the water in my shower built up to my
ankles so I checked the drain and found a handful of hair -- much more than
I've EVER lost at one time). I didn't make the connection between the
natural Wen product and my hair loss and honestly didn't think anything of it
until I went to get my long, curly hair cut/shaped and was told by the stylist
that I had 'alopecia.' I've never had any problem with hair loss and only the
regular 'shedding.' This loss of hair was way behind the regular shedding.
The stylist showed me a 2" patch at the crown of my head with smaller
patches in the area. I located an additional 5 patches around my scalp. After
a tugging feeling that the Wen could be the root of my problem, I checked
the internet for 'hair loss after using wen' and found many reports of hair loss
similar to mine. And the majority of them sound like my experience. For the
record, I haven't had any medical issues, dietary changes, lifestyle changes
since the onset of hair loss and the only behavioral change I've made is
adding Wen to my hair care routine.
A word of warning to those of you about to purchase WEN Cleansing
Conditioner: Wen is a dangerous product.
http://womenshair.about.com/u/reviews/products/Wen-HaircareProducts/DO-NOT-BUY-WEN-Made-My-Hair-Fall-Out-With-OneUse.htm
My Review
My husband bought this as a birthday gift for me after he overheard me
talking to about a friend about it. I only used it once, but that was enough for
me. In my first use I lost 100x's the amount of hair than I do in an average
shower. I was literally pulling clumps of hair out of my head and I had hair
balls running down my legs into the shower drain.
I look online and found horror stories about people losing so much hair that
they were balding and lawsuits of people trying to recup costs from
dermatology appointments to try and get there hair back.
I called the mall kiosk where I bought it and the cashier said, "I've got to tell
you, this isn't the first time someone's returned the product and complained
that their hair was falling out.
I would NEVER recommend this product and I wonder how these people
can sleep at night with so many people complaining about this problem.
http://womenshair.about.com/u/reviews/products/Wen-HaircareProducts/Very-Angry-About-Hairloss-from-WEN.htm
My Review
I used Wen hair care for the first time and it was good till the next week. I
washed my hair and it was coming out. Wen hair thinned my hair and made
it frizzy. I noticed it right away. I'm so upset! I am African American with
long hair, untill I used this mess and thinned my hair!
http://womenshair.about.com/u/reviews/products/Wen-HaircareProducts/My-Hair-is-Lifeless-and-Thinning-After-Using-WEN.htm
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My Review
At first I really liked this product. Then I noticed my hair was feeling greasy
and heavy. Now my hair is falling out in gobs daily. I would not recommend
this product. My hair is now thinning so bad you can see my scalp. It is
lifeless and lusterless.
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http://womenshair.about.com/u/reviews/products/Wen-HaircareProducts/WEN-Caused-Immeidate-Hair-Loss-for-Me.htm
My Review
Note: I have very delicate hair!
The first wash was amazing! Then the next 3 times (without using any other
products) there was massive hair loss. I would put in the conditioner and
when I ran my fingers through it to distribute it took me a full minute to get
all the hair that had fallen out off my fingers. Then I would see random
FULL LENGTH hair floating around my car, my desk, and in my eyes.
I stopped using it after the 4th day. Today I received an email asking how I
like the product.
After reading other reviews I will be on the phone with them first thing in
the morning for a FULL refund. And if they dare try to charge me for the
membership....don't get me started.
https://getsatisfaction.com/wenbychazdean/topics/wen_causes_hair_to_f
all_out_that_cant_be_true
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mish 1 year ago
Craig,
YOU can contact me about my hair loss after using WEN! I have suffered
hair loss and breakage! I have been using WEN for about 8 months.
Thought I was using a safe & healthy product! Saw my Drs. and all tests
are normal, nothing in my recent blood work or physical that would point
to hair loss!
Never made the connection to WEN until I MADE my POOR husband use
it , thinking I was doing a good thing! THEN, he suffered hair loss!!!!!!!
So TODAY, I googled WEN & Hair loss! I was floored when I saw the
MANY complaints of Hair Loss and WEN! Many were told by
dermatologists that WEN causes blocked hair follicles. What is most
alarming is that people have reported that their hair still has not returned to
normal even after stopping the use of WEN! I find that disturbing! They
also said that reported that to the FDA
o
snucif@aol.com 1 year ago
Started using Wen cleansing Conditioner about 6 or 7 months ago, I
bought a package deal on QVC now my thin hair is even thinner and my
son says you can see a bald spot in the back! I am going to stop using it.
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http://wen-haircare.pissedconsumer.com/beware-using-wen-shampoohair-loss-20120818340078.html
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sunshine2daI've
Aug 18, 2012 seen the commercials and thought why not try it because it
seems to have a nice effect on hair and felt that my hair could even look
better.I was shocked to see after the first wash SO MUCH HAIR IN
THE SHOWER.
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I have never experienced that in my life. I immediately called company and

gal I spoke with advised to keep using with the conditioner as she had lost
hair too the first time as it was just kicking out old stuff. I wanted to believe
and used again with the conditioner and gobs of hair falling out. I stopped
and it has been a month and shedding,shedding, shedding.
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I hate to wash my hair as there is so much fall out and now I'm stressed
which doesn't help.I only wish I would have read all the other people that are
losing their hair with this horrible product.
HumbleOpinion Jun 02
I have very thick, healthy, never-colored hair. My overall health is excellent
and I am not on any medications. I can confirm that Wen causes hair loss!
Just Friday, after a limited trial of Wen, I had hair falling out in the shower. I
have never exerienced anything like this in my life. I have not washed my
hair since Friday and am frankly fearful of showering! Wen is an awful
product - do not tell someone with handfuls of lost hair how much you love
Wen!!!
Thinning Jan 09
Loved the product at first, but after 8 months, I have lost hair in two spots as
well as at the front hairline. I am sad, my hair has always been thick and
pretty. I can only pray that after discontinuing usage, maybe it will grow
back. Be aware, not a good thing to use.
hate deception Oct 20, 2013Winston Salem, North Carolina
I used wen on the advice of a family member. I started getting sores on my
scalp and my hair came out. There is something in it that causes an infection
of the hair follicles, thus the hair falls out. stop using and see a
dermatologist.
http://www.consumeraffairs.com/cosmetics/wen.html
Sherry of Sumter, SC on July 5, 2014
I have tried two different types (mint, fig) and the first couple of days my
hair was soft, and after a week, my hair was falling out in clumps. My
husband always would ask me "are you okay, I keep finding your hair in the
bathroom"..
I promise you as I was washing my hair, clumps would come out in my
hands. I called and cancelled and even told them I didn't want a refund
(didn't want to go through the hassle of refunds with them after reading
reviews). I still had to pay for the next shipment and called American
express and they had any new payments after my initial shipment stopped. I
am the type of person that I don't believe everything I read without proof and
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I am telling you the reader this is the honest truth. This was my experience
with Wen and the last. I hope this will help somebody even if it's just one.
Thank You for your attention...
Nancy of Dunsford, ON
I started using the WEN Sweet Almond Cleansing Conditioner about 6
weeks ago. I have naturally curly hair that is very fine, just past my
shoulders. I used the conditioner as directed 3-4 times a week. Soon after I
noticed considerable hair loss. I comb my hair when wet in shower which
was filled with hair. My drain full. I thought maybe it was a nutritional
imbalance. However, I supplement with Biotin for hair growth and never
had a problem with hair loss in past. I spoke to a friend who mentioned she
heard that Wen users were complaining of the same. Coincidence? I think
not.
cheryl of Youngstown, OH
I order 5 bottles of wen cleansing conditioners because my aunt got me one
for Christmas and at first it worked great so I got more. Then my hair started
just falling out. I mean bad. I'm bald in spots. I stopped using it and hair still
not quite right. There's got to be something done. My hair was so nice and
long now it looks like **. I'm going to talk to a lawyer because I don't even
want to leave the house anymore. Thanks to wen by Chaz Dean.
http://www.complaintsboard.com/complaints/wen-hair-carec523263.html
I purchased this product and after 2 weeks my hair started falling out, let me
first say I have no medical issues and this is not normal hair shedding, I
didn't connect the hair loss to the wen at first, until a friend said do you think
it's the wen, so I googled wen hair loss and there are many women that have
had the same reaction, and before some of you wen lovers comment, some
women after several months are now having the same results (hair loss), I
have contacted the fda and you need to call this number to report it 1-800332-1088, I went to the wen facebook page and women posting they have
hair loss was removed and blocked from commenting, if I would of seen
some of these comments my hair would be on my head and not in the trash,
it was healthy now it's like straw and brittle, I have stopped using wen over a
week now, the hair loss is not as bad, but the damage is done and over half
my hair is gone ...please report to the fda and the BBB, don't let them keep
selling this to others, save someone from this, wish I had found web sites
before I started using it!!!
http://katieelizabethchicago.blogspot.com/2013/12/back-wen.html
Until... my hair started falling out. At first, I had no idea what it was from.
It wasn't alarmingly falling out so I just figured I was just "shedding" more
than normal. When it continued for quite a while, I decided it had to be
something I was using. I'm always trying new products so I cut out every
single styling product that I was using to see if that made a difference.
When it didn't and all I was using was the Wen, I decided to do some
research. All you have to do is Google Wen and you'll find tons of articles
on Wen + hair loss. And sadly, it's true for me. As soon as I stopped using
my beloved Wen, the hair stopped coming out in handfuls.
So this is my warning to women - it's NOT worth it!! I know not everyone
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has this problem when they use Wen, but why risk it? There are so many
other great options out there that WON'T possibly make your hair fall out!!
Check out these articles on Wen hair loss if you're considering trying it:
Wen Shampoo Causes Hair Loss. Do Not Use!
QVC Community on Wen Hair Loss
Wen Products Caused Hair Loss and Damage
http://forum.purseblog.com/the-beauty-bar/wen-hair-carethoughts-466693.html
I used it for a while, and it did make my hair feel soft. However, I SWEAR
it felt like I was loseing hair. I know we all lose a certain amount through out
the day, but this felt like a lot. I was in the shower rinseing (keep in mind
you have to do a TON of rinseing with this stuff) and I felt something hit my
thigh. I looked down, and I kid you not, it was a HUGE wad of my hair!!! I
FREAKED after that, and have not touched it since!
http://forum.purseblog.com/the-beauty-bar/wen-hair-carethoughts-466693.html
OK - SAME for me. I was using the fig. At first it was great. My hair was
softer, color held longer (I have fairly thick red color-treated past shoulder
length hair). Then I noticed tons of hair by the drain, clumps of it on my
skin, just like the quote above. My hair was definitely thinner around my
bangs - I freaked out. I wrote to WEN, they answered me with some bs
quote - you lose up to 100 hairs a day, medication use (I don't), ageing (I'm
not that old). I told them I wasn't looking for compensation, just giving them
information and they should quite defending themselves. I was using the Fig
because I really like that smell. I am back to my Pureology and am hoping
my hair will be restored to its original awesomeness before the Wen.
http://forum.purseblog.com/the-beauty-bar/wen-hair-carethoughts-466693-2.html
I've been scouring my life and focusing on staying calm while I try to figure
out why I, someone with thick hair who has to get it thinned (and my mother
still does at the age of 67!), have lost 50% of my hair in the past two weeks!
I'm a bit baffled as I am, in general, feeling pretty good.
Out of my research, it says to consider what medication and actions one has
done in the past four months. Well, one thing is I started using this all
"Natural" WEN Cleansing Conditioner almost exactly four months ago! I
come here and see that some others are also describing the same kinds of
sudden, significant and scary amounts of hair falling out.
Two weeks ago, I was using the stuff, combing it through my hair in the
shower and was shocked to see how much hair I saw in the drain and in the
comb and for the past two weeks have been trying to figure out this
miserable corundum.
Unfortunately I had just ordered a new supply, but I will never use the stuff
again! This has been an unnecessary and very stressful experience. And I'm
going to submit this to the FDA as this is a very rough side effect for
women.
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I started using Wen a few months ago and started noticing my hair falling
out out in handfuls. I also started noticing a significant amount of hair
breakage. I have a lot of hair normally and the amount of hair loss is quite
noticeable. I stopped using the product when I suspected that it was what
might be causing the thinning hair and hair loss. As soon as I stopped the
Wen the hair stopped falling. I am waiting to see when hair will start
growing back.
It also happened to my daughter, and when she stopped using it it started
growing back.
I tried it also and at first loved it, but then my hair started falling out as well.
I didnt realize until the second time that, that was what was making my hair
fall out. Stopped using it and my hair has stopped falling out. I am glad I
googled my hunch and found this forum, because I thought something was
wrong with me! I also had a painful to the touch lump on my head.
40.
In addition to blog complaints, YouTube features numerous videos
also documenting hair loss caused by WEN Cleansing Conditioner. The problems
experienced by Plaintiff s are neither isolated, nor unique. Indeed, this problem is
rampant, and rather than acknowledge this serious issue, Defendant is concealing it
in order to continue selling the product and reaping windfall profits.
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CLASS ALLEGATIONS
41.
Plaintiffs repeat and re-allege the allegation in paragraphs 1-39 above
as if set forth herein in full.

42.
Plaintiffs bring this action on their own behalf, and on behalf of the
following Class pursuant to Fed. R. Civ. P. 23(a), 23(b)(2), and/or 23(b)(3).

Specifically, the Class is defined as:
All persons or entities in the United States who purchased WEN
Cleansing Conditioner from August 1, 2009 to the present.
23
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43.
Excluded from the Class are Defendant, its affiliates, employees,
25 officers and directors, persons or entities that purchased the WEN Cleansing
26 Conditioner for purposes of resale, and the Judge(s) assigned to this case.
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44.
Plaintiffs reserve the right to amend or modify the Class definitions in
2 connection with a motion for class certification or as warranted by discovery.

3
45.
This action has been brought and may properly be maintained on
4 behalf of the Class proposed herein under the criteria set forth in Federal Rule of
5 Civil Procedure 23.
6
46.
Numerosity: Plaintiffs do not know the exact size or identities of the
7 proposed Class, however, Plaintiffs believe that the Class encompasses many
8 thousands or tens of thousands of individuals who are dispersed geographically
9 throughout the United States. Therefore, the proposed Class is so numerous that
10 joinder of all members is impracticable. Class members may be notified of the
11 pendency of this action by mail and/or electronic mail, supplemented if deemed
12 necessary or appropriate by the Court by published notice.
13
47.
Existence and Predominance of Common Questions of Fact and Law:
14 There are questions of law and fact that are common to the Class, and predominate
15 over any questions affecting only individual members of the Class. The damages
16 sustained by Plaintiffs and the other members of the Class flow from the common
17 nucleus of operative facts surrounding Defendants misconduct.
The common
18 questions include, but are not limited to the following:

19
a.
whether Defendants failed to comply with their warranties;
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b.
whether WEN Cleansing Conditioner causes hair loss;
21
c.
whether WEN Cleansing Conditioner contains a design defect;
22
d.
whether and when Defendant had exclusive knowledge of but
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failed to disclose the existence and cause of the defect in WEN
24
Cleansing Conditioner;
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e.
whether Defendants conduct violated the California Unfair

Competition Law;
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f.
whether Defendants conduct violated the California False

Advertising Law;
g.
whether Defendants conduct constituted a breach of applicable

warranties and/or gives rise to claims in assumpsit;
h.
whether, as a result of Defendants omissions and/or
misrepresentations of material facts, Plaintiffs and members of
the Class have suffered an ascertainable loss of monies and/or
property and/or value;

i.
whether Plaintiffs and Class members are entitled to monetary
10
damages and/or other remedies and, if so, the nature of any
11
such relief.
12
48.
Typicality: All of Plaintiffs claims are typical of the claims of the
13 Class since each Class member was subject the same common inherent defect in
14 the Products.
Furthermore, Plaintiffs and all members of the Class sustained
15 monetary and economic injuries including, but not limited to, ascertainable loss
16 arising out of Defendants wrongful conduct. Plaintiffs are advancing the same
17 claims and legal theories on behalf of themselves and all absent Class members.
18
49.
Adequacy: Plaintiffs will fairly and adequately represent the interests
19 of the Class. They are committed to the vigorous prosecution of the Class claims
20 and have retained attorneys who are qualified to pursue this litigation and are
21 experienced in class action litigation.
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50.
Superiority: A class action is superior to other methods for the fair
23 and efficient adjudication of this controversy.
While substantial, the damages
24 suffered by each individual Class member do not justify the burden and expense of
25 individual prosecution of the complex and extensive litigation necessitated by
26 Defendants conduct. Further, it would be virtually impossible for the members of
27 the Class to individually and effectively redress the wrongs done to them. A class
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1 action regarding the issues in this case does not create any problems of
2 manageability. The class action device presents far fewer management difficulties
3 than alternative methods of adjudication, and provides the benefits of single
4 adjudication, economy of scale, and comprehensive supervision by a single court.
5
51.
In the alternative, the Class may be certified because:

a.
the prosecution of separate actions by the individual members
of the Class would create a risk of inconsistent or varying
adjudication with respect to individual Class members which
would establish incompatible standards of conduct for

Defendant;
10
b.
11
The prosecution of separate actions by individual Class
12
members would create a risk of adjudications with respect to
13
them which would, as a practical matter, be dispositive of the
14
interests of the other Class members not parties to the
15
adjudications, or substantially impair or impede the ability to
16
protect their interests; and

c.
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Defendant has acted or refused to act on grounds generally
18
applicable to the Class, thereby making appropriate final and
19
injunctive relief with respect to the members of the Class as a
20
whole.
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VIOLATIONS ALLEGED
22
COUNT I
23
BREACH OF WARRANTY
24
52.
Named Plaintiffs repeat and re-allege every allegation in paragraphs
25 1-50, as if set forth herein in full.

26
53.
Defendant sold WEN Cleansing Conditioner in its regular course of
27 business. Plaintiffs and Class members purchased the Products.

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20
54.
The Products are consumer products within the meaning of the
2 Magnuson-Moss Warranty Act, 15 U.S.C. 2301(1), and California law. WEN

3 Cleansing Conditioner costs more than five dollars.
4
55.
Plaintiffs and Class members are consumers and buyers within
5 the meaning of the Magnuson-Moss Act, 15 U.S.C. 2301(3) and California law.
6
56.
Defendant is a supplier and warrantor within the meaning of the
7 Magnuson-Moss Warranty Act, 15 U.S.C. 2301(4) (5). Defendant is also a

8 manufacturer and seller within the meaning of California law.
9
57.
Defendant made promises and representations in an express warranty
10 provided to all consumers, which became the basis of the bargain between
11 Plaintiffs, Class members and Defendant.
12
58.
Defendants written affirmations of fact, promises and/or descriptions
13 as alleged are each a written warranty.
The affirmations of fact, promises
14 and/or descriptions constitute a written warranty within the meaning of the

15 Magnuson-Moss Act, 15 U.S.C. 2301(6).
16
59.
By placing such products into the stream of commerce, by operation
17 of law including Section 2314 of the California Commercial Code, and the
18 Magnuson-Moss Warranty Act, 15 U.S.C. 2301 et. seq., Defendant also
19 impliedly warranted to Plaintiffs and Class members that WEN Cleansing
20 Conditioner were of merchantable quality (i.e., a product of a high enough quality
21 to make it fit for sale, usable for the purpose it was made, of average worth in the
22 marketplace, or not broken, unworkable, contaminated or flawed or containing a
23 defect affecting the safety of the product), would pass without objection in the
24 trade or business, and were free from material defects, and reasonably fit for the
25 use for which they were intended.
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60.
Defendant breached all applicable warranties because WEN
27 Cleansing Conditioner suffers from a latent and/or inherent defect that causes it to
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1 produce substantial hair loss, rendering WEN Cleansing Conditioner unfit for its
2 intended use and purpose. This defect substantially impairs the use, value and
3 safety of WEN Cleansing Conditioner.
4
61.
The latent and/or inherent defect at issue herein existed when the
5 WEN Cleansing Conditioner left Defendants possession or control and was sold
6 to Plaintiffs and Class members. The defect was undiscoverable by Plaintiffs and
7 the Class members at the time of purchase of the WEN Cleansing Conditioner.
8
62.
All conditions precedent to seeking liability under this claim for
9 breach of express and implied warranty have been performed by or on behalf of

10 Plaintiffs and others in terms of paying for the goods at issue. Defendant having
11 been placed on reasonable notice of the defect in the Products and breach of the
12 warranties, and has had an opportunity for years to cure the defect for Plaintiffs
13 and all Class members, but has failed to do so.
14
63.
Defendant was on notice of the problems with the WEN Cleansing
15 Conditioner based on the complaints it received directly from Plaintiffs and Class
16 members, and from the plethora of public complaints.
17
64.
Defendant breached its express and implied warranties, as WEN
18 Cleansing Conditioner did not contain the properties Defendant represented.

19
65.
Defendants breaches of warranty have caused Plaintiffs and Class
20 members to suffer injuries, paying for defective products, and entering into
21 transactions they would not have entered into for the consideration paid. As a
22 direct and proximate result of Defendants breaches of warranty, Plaintiffs and
23 Class members have suffered damages and continue to suffer damages, including
24 economic damages in terms of the cost of WEN Cleansing Conditioner and the
25 cost of efforts to mitigate the damages caused by same.
26
66.
As a result of the breach of these warranties, Plaintiffs and Class
27 members are entitled to legal and equitable relief including damages, costs,
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1 attorneys fees, rescission, and/or other relief as deemed appropriate, for an amount
2 to compensate them for not receiving the benefit of their bargain.
3
COUNT II
VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW,
67.
7 1-50 as though fully set forth at length herein.

8
68.
Business & Professions Code 17200, et seq. prohibits acts of
9 unfair competition, which is defined by Business & Professions Code 17200

10 as including any any unlawful, unfair or fraudulent business act or practice . . . .
11
69.
Defendant has engaged in unfair competition and unfair, unlawful or
12 fraudulent business practices by the conduct, statements, and omissions described

13 above, and by concealing from Plaintiffs and Class members the material fact that
14 WEN Cleansing Conditioner causes substantial hair loss. Defendant should have
15 disclosed this information because it was in a superior position to know the true
16 facts related to this defect, and Plaintiffs and Class members could not reasonably
17 be expected to learn or discover the true facts related to the defect prior to their
18 purchases.
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70.
Separate and distinct from the unfair and fraudulent practices
20 involving the hair loss, Defendant has engaged in an unfair and fraudulent practice
21 of intentionally instructing consumers to use amounts of the product far in excess
22 of the amount reasonably necessary to Condition the hair for the purpose of
23 supporting its automatic re-purchase agreement. By instructing its customers to:
24 Use 10-16 pumps for short hair, 16-24 for medium length hair and 24-32 pumps
25 for long hair, Defendant caused consumers to use substantially more product than
26 reasonably necessary without any additional benefit to the hair. This unfair and
27 deceptive practice caused consumers to use excessive amounts of WEN Cleansing
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1 Conditioner which, in turn, required them to purchase more of the product at

2 regular monthly intervals through Defendants automatic repurchase plan.
The
3 monthly repurchases would not have been necessary but for Defendants specific
4 instructions to use excessive amounts of the product thereby necessitating the
5 monthly purchase.
6
71.
These acts and practices have also deceived Plaintiffs and are likely
7 to deceive reasonable consumers targeted by such statements and omissions. In

8 failing to disclose this material defect and suppressing other material facts from
9 Plaintiffs and Class members, Defendant breached its duties to disclose these
10 facts, violated the UCL, and caused injuries to Plaintiffs and Class members. The
11 omissions and acts of concealment by Defendant pertained to information material
12 to Plaintiffs and Class members in that it would have been likely to deceive them
13 based on reasonable consumers expectations and assumptions based on the
14 safety-related nature of this defect.
15
72.
The injuries suffered by Plaintiffs and Class members are also greatly
16 outweighed by any potential countervailing benefit to consumers or to

17 competition. Nor are they injuries that Plaintiffs and Class members should or
18 could have reasonably avoided.
19
73.
Plaintiffs seek to enjoin further unlawful, unfair and/or fraudulent
20 acts or practices by Defendant, to obtain restitutionary disgorgement of all monies

21 and revenues generated as a result of such practices, and all other relief allowed
22 under Cal. Bus. & Prof. Code 17200.
23
COUNT III
24
VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW,
25
26
74.

28
24
75.
In violation of California Business & Professions Code 17500, et
2 seq., Defendant has disseminated or caused to be disseminated deceptive

3 advertising misrepresentations, omissions and practices, including the statements
4 referenced, inter alia, in paragraph 22, supra. These statements are actionable
5 violations of 17500 in that Defendant expressly states that WEN Cleansing
6 Conditioner have attributes, which they do not possess.
7
76.
Defendants advertising misrepresentations, omissions, and practices
8 made in connection with the sale of WEN Cleansing Conditioner are unfair,
9 deceptive and/or misleading within the meaning of California Business &
10 Professions Code 17500, et seq. These representations are likely to deceive
11 reasonable consumers.
12
77.
In making and disseminating the statements alleged herein, Defendant
13 knew or should have known that the statements were and are misleading or likely
14 to mislead for the reasons set forth above.
15
78.
As detailed above, Plaintiffs suffered injuries in fact and losses of
16 money or property as a result of Defendants acts and practices, which violate

17 17500, et seq.
18
79.
Pursuant to California Business & Professions Code 17535,
19 Plaintiffs and members of the Class seek, and are entitled to:
20
a.
an order enjoining Defendant from continuing to make false
21
and misleading statements concerning WEN Cleansing
22
Conditioner;
23
b.
24
restitution and disgorgement of any and all excessive amounts

paid to Defendant or its agents;
25
c.
equitable relief pursuant to Cal. Code of Civil Procedure 384;
26
d.
pre- and post-judgment interest at the highest rate allowable by
27
law; and
28
25
e.
payment of attorneys fees and costs pursuant to, inter alia, Cal.
Code of Civ. Proc. 1021.5, the common fund and private
attorney general doctrines.
80.
As a result of Defendants violations of the false advertising statute,
5 Plaintiffs and Class members are entitled to equitable relief as the Court deems
6 appropriate.
7
COUNT IV
COMMON COUNTS/ASSUMPSIT
81.

11
82.
As Plaintiffs and the Class show just grounds for recovering money
12 to pay for benefits Defendant received from them, they have a right to restitution
13 at law through an action derived from the common-law writ of assumpsit by
14 implying a contract at law, or a quasi-contract as an alternative to a claim for
15 breach of contract.
16
83.
Plaintiffs and members of the Class conferred a benefit upon
17 Defendant by purchasing WEN Cleansing Conditioner from Defendant.

18
84.
Defendant had knowledge that this benefit was conferred upon it.
19
85.
Defendant, having received such benefits, is required to make
20 restitution as the circumstances here are such that, as between the two, it is unjust
21 for Defendant to retain such monies based on the illegal conduct described above.
22 Such money or property belongs in good conscience to Plaintiffs and the Class
23 members and can be traced to funds or property in Defendants possession.
24 Plaintiffs and Class members have unjustly enriched Defendant through payments
25 and the resulting profits enjoyed by Defendant as a direct result of such payments.
26 Plaintiffs and Class members detriment and Defendants enrichment were
27 related to and flowed from the conduct challenged in this Complaint.
28
26
86.
An entity that has been unjustly enriched at the expense of another is
2 required to make restitution to the other.
Under common law principles
3 recognized in claims of common counts, assumpsit, and quasi-contract, as well as

4 principles of unjust enrichment, under the circumstances alleged herein it would
5 be inequitable for Defendant to retain such benefits without paying restitution or
6 damages therefor.
Defendant should not be permitted to retain the benefits
7 conferred via payments to be received from and/or paid by Plaintiffs and Class
8 members as a result of such transactions, and other remedies and claims may not
9 permit them to obtain such relief, leaving them without an adequate remedy at
10 law.
11
COUNT V
12
NEGLIGENCE FAILURE TO WARN
13
87.

15
88.
16 designing,
At all times referenced herein, Defendant was responsible for

formulating,
testing,
manufacturing,
inspecting,
distributing,
17 marketing, supplying and/or selling WEN Cleansing Conditioner to Plaintiffs and

18 the Class.
19
89.
At all times material hereto, the use of WEN Cleansing Conditioner
20 in a manner that was intended and/or reasonably foreseeable by Defendant

21 involved substantial risk of hair loss.
22
90.
At all times the risk of substantial hair loss was known or knowable
23 by Defendant, in light of the generally recognized and prevailing knowledge

24 available at the time of manufacture and design, as described herein.
25
91.
Defendant, as the manufacturer, distributor and/or seller of WEN
26 Cleansing Conditioner, had a duty to warn Plaintiffs and the Class of all dangers
27 associated with the intended use.
28
27
92.
Defendant was negligent and breached its duty of care by negligently
2 failing to give adequate warnings to purchasers and users of WEN Cleansing

3 Conditioner, including Plaintiffs, about the risks, potential dangers and defective
4 condition of the Products.
5
93.
Defendant knew, or by the exercise of reasonable care, should have
6 known of the inherent design defects and resulting dangers associated with using
7 WEN Cleansing Conditioner as described herein, and knew that Plaintiffs and
8 Class members could not reasonably be aware of those risks. Defendant failed to
9 exercise reasonable care in providing the Class with adequate warnings.
10
94.
As a direct and proximate result of Defendants failure to adequately
11 warn consumers about the risks and dangers of using WEN Cleansing
12 Conditioner, Plaintiffs and the Class have suffered damages as set forth herein.
13
14
COUNT VI
15
NEGLIGENCE FAILURE TO TEST
16
95.

18
96.
Defendant did not perform adequate testing on WEN Cleansing
19 Conditioner, which was defectively designed, formulated, tested, manufactured,

20 inspected, distributed, marketed, supplied and/or sold to Plaintiffs and the Class.
21
97.
Adequate testing would have revealed the serious deficiencies in the
22 WEN Cleansing Conditioner in that it would have revealed the substantial hair
23 loss occasioned by use of the Products.
24
98.
Defendant had, and continues to have, a duty to exercise reasonable
25 care to properly designincluding the duty to testWEN Cleansing Conditioner

26 that it introduces into the stream of commerce.
27
99.
Defendant breached these duties by failing to exercise ordinary care
28
28
1 in the design and testing of WEN Cleansing Conditioner, which it introduced into
2 the stream of commerce, because Defendant knew or should have known that
3 WEN Cleansing Conditioner cause substantial hair loss.
4
100. Defendant knew or reasonably should have known that Class
5 members such as Plaintiffs would foreseeably suffer economic damages or injury

6 and/or be at an increased risk of suffering damage and injury, as a result of its
7 failure to exercise ordinary care in the design of WEN Cleansing Conditioner by
8 failing to conduct appropriate testing.
9
101. By reason of the foregoing, Plaintiffs and the Class experienced
10 and/or are at risk of experiencing financial damage and injury.

11
102. As a direct and proximate result of Defendants failure to test WEN
12 Cleansing Conditioner designed, formulated, manufactured, inspected, distributed,

13 marketed, warranted, advertised, supplied and/or sold by the Defendant, Plaintiffs
14 and the Class have suffered damages.
15
COUNT VII
16
STRICT PRODUCTS LIABILITY
17
103. Named Plaintiffs repeat and re-allege every allegation in paragraphs

19
104. Defendant was the manufacturer or supplier of WEN Cleansing
20 Conditioner.
21
105. As described herein, the Products possessed a defect in
22 manufacturing.
23
106. The defect in the Products existed at the time the Products left
24 Defendants possession.
25
107. The Products caused harm and injury to Plaintiff and the proposed
26 Class in that, inter alia, it caused and causes hair loss.

27
28
29
108. Plaintiffs use of the Cleansing Conditioner occurred in a manner that
2 was reasonably foreseeable to Defendant.
PRAYER FOR RELIEF
3
4
WHEREFORE, Named Plaintiffs respectfully requests the following relief:
a.
Determine that the claims alleged herein may be maintained as a
class action under Rule 23 of the Federal Rules of Civil Procedure,
and issue an order certifying one or more Classes as defined above;
b.
counsel as Class counsel;
9
10
Appoint Plaintiffs as the representatives of the Class and their
c.
Award all actual, general, special, incidental, statutory, and
11
consequential damages to which Plaintiffs and Class members are
12
entitled;
13
d.
relief;
14
15
Award pre-judgment and post-judgment interest on such monetary
e.
Grant appropriate injunctive and/or declaratory relief, including,
16
without limitation, an order that requires Defendant to replace the
17
WEN Cleansing Conditioner with non-defective products, and/or
18
repay Plaintiffs and Class members, or, at a minimum, to provide
19
Plaintiffs and Class members with appropriate curative notice
20
regarding the existence and cause of the defect;
21
f.
Award reasonable attorneys fees and costs; and
22
g.
Grant such further relief that this Court deems appropriate.

JURY TRIAL DEMANDED
23
24
Named Plaintiffs demand a trial by jury on all issues so triable.
25
26 Dated November 3, 2014.
27
28
/s/ Michael Flannery

MICHAEL FLANNERY (SBN 196266)
mflannery@cuneolaw.com
CUNEO GILBERT & LADUCA, LLP
30
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3
4
5
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10
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11620 Wilshire Blvd

Suite 900
Telephone: (202) 789-3960
Fax: (202) 789-1813
Charles J. LaDuca (Pro Hac Vice)
charlesl@cuneolaw.com
8120 Woodmont Ave.
Suite 810
Bethesda, MD 20814
Telephone: (202) 789-3960
Fax: (202) 789-1813
William Anderson (Pro Hac Vice)
wanderson@cuneolaw.com
507 C Street, NE
Washington, DC 20002
Telephone: (202) 789-3960
Fax: (202) 789-1813
Brian W. Warwick (Pro Hac Vice)
bwarwick@varnellandwarwick.com
Janet R. Varnell (Pro Hac Vice)
jvarnell@varnellandwarwick.com
P.O. Box 1870
Lady Lake, FL 32158
Telephone: (352) 753-8600
Fax: (352) 753-8606
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WEN Lawsuit & Answer 110314

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Case 2:14-cv-06009-ODW-AGR Document 34 Filed 11/03/14 Page 1 of 32 Page ID #:153

1 MICHAEL FLANNERY (SBN 196266)

2 CUNEO GILBERT & LADUCA, LLP

11620 Wilshire Blvd

Los Angeles, CA 90025

4 Telephone: (202) 789-3960

Fax: (202) 789-1813

6 Attorneys for Plaintiffs

[Additional Counsel on Signature Page]

CENTRAL DISTRICT OF CALIFORNIA

11 AMY FRIEDMAN, JUDI MILLER,

and KRYSTAL HENRY-

themselves and all others similarly

Case No.: 2:14-cv-06009-ODW-AGR

DEMAND FOR JURY TRIAL

Case 2:14-cv-06009-ODW-AGR Document 49 Filed 03/27/15 Page 1 of 29 Page ID #:325

LEWIS WAGNER, LLP

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

AMY FRIEDMAN and JUDI

Case No. 2:14-cv-06009-ODW-AGR

Hon. Otis D. Wright, II

DEMAND FOR JURY TRIAL

Case 2:14-cv-06009-ODW-AGR Document 49 Filed 03/27/15 Page 2 of 29 Page ID #:326

Defendant Guthy-Renker LLC (Guthy-Renker), by counsel, hereby

numbered paragraphs correspond to the numbering of the allegations in Plaintiffs

NATURE OF THE ACTION

Guthy-Renker admits that Plaintiffs purport to bring this matter as a

this matter is appropriate for class action treatment.

knowledge or information sufficient to form a belief as to the truth of all remaining

allegations contained in Paragraph 1 of Plaintiffs First Amended Complaint and

therefore must deny them.

Guthy-Renker admits that the quoted language has appeared on its

Guthy-Renker denies that this matter is appropriate for class action

treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 2

of Plaintiffs First Amended Complaint.

Guthy-Renker denies the allegations contained in Paragraph 3 of

Plaintiffs First Amended Complaint.

Guthy-Renker denies the allegations contained in Paragraph 4 of

Plaintiffs First Amended Complaint.

Guthy-Renker denies that this matter is appropriate for class action

treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 5

of Plaintiffs First Amended Complaint.

Guthy-Renker denies that this matter is appropriate for class action

treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 6

of Plaintiffs First Amended Complaint.

Case 2:14-cv-06009-ODW-AGR Document 49 Filed 03/27/15 Page 3 of 29 Page ID #:327

To the extent that Plaintiffs allegations in Paragraph 7 of the First

Amended Complaint reference insurance or settlement negotiations, Guthy-Renker

Renker admits that Plaintiff Friedman engaged in communications with Guthy-

Renkers customer service representatives, and that Guthy-Renker asked questions

Guthy-Renker denies all remaining allegations contained in Paragraph 7 of

Plaintiffs First Amended Complaint.

Guthy-Renker admits that it has not recalled the WEN Cleansing

customers have otherwise been damaged.

allegations contained in Paragraph 8 of Plaintiffs First Amended Complaint.

Guthy-Renker denies that the product causes hair loss or that

Guthy-Renker denies that this matter is appropriate for class action

treatment. Guthy-Renker denies all remaining allegations contained in Paragraph 9

of Plaintiffs First Amended Complaint and therefore denies them.

Guthy-Renker denies that this matter is appropriate for class action

treatment. Guthy-Renker denies all remaining allegations contained in Paragraph

10 of Plaintiffs First Amended Complaint.