complaint -- petlack v. sc johnson

8/6/2019 Complaint -- Petlack v. SC Johnson

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REESE RICHMAN LLP

Michael R. Reese875 Sixth Avenue, 18th FloorNew York, New York 10001Telephone: (212) 579-4625

Facsimile: (212) 253-4272Email: [email protected]

-and-

WHATLEY DRAKE & KALLAS LLC

Deborah Clark-Weintraub1540 Broadway, 37th FloorNew York, New York 10036Telephone: (212) 447-7070Facsimile: (212) 447-7077

Email: [email protected]

Counsel for Plaintiff and the Proposed Class

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

HOWARD PETLACK, on behalf of himself and allothers similarly situated,

Plaintiff,

vs.

SC JOHNSON & SON, INC.,

Defendant.

Case No.: _________________

CLASS ACTION

CLASS ACTION COMPLAINT FORDECEPTIVE SALES PRACTICES;UNJUST ENRICHMENT

DEMAND FOR JURY TRIAL

Case 2:08-cv-00820-CNC Filed 09/30/08 Page 1 of 12 Document 1


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Plaintiff Howard Petlack (Plaintiff), by and through his counsel, alleges the following

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

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

reasonable opportunity for discovery.

NATURE OF THE ACTION

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

cleaning product Windex.

2. Looking to profit off the growing environmental green movement, starting inJanuary, 2008 and continuing to the present (the Class Period), SC Johnson has prominently

placed a deceptive seal of approval label on the front of its Windex product as follows:

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

environmentally responsible ingredients.

4. By making these representations on Windex packaging, SC Johnson conveys toPlaintiff and other consumers that Windex has been subjected to a neutral, third partys testing

regime that had determined that Windex is environmentally friendly.

5. Unfortunately for consumers, these representations by SC Johnson are false.Based upon counsels investigation, the truth is that the Greenlist seal of approval is not the



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product of a neutral, third partybut instead the work of Defendant SC Johnson itself. Greenlist

is not a designation bestowed by a non-profit environmental group, or even a neutral third-party,

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

is nothing more than SC Johnson touting its own product.

6. Additionally, the ingredients that constitute Windex are not environmentallysound, but rather pose a real risk. Despite the statement that Windex contains Greenlist

ingredients, Defendant has not changed the ingredients of Windex to remove environmentally

harmful chemicals. Namely, one of the key ingredients of Windex ethyl glycol n-hexyl ether

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

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

(or, again, small children) is multiplied.

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

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

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

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

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

JURISDICTION AND VENUE

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

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

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



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

deceptive Greenlist label and the dissemination of false information regarding Windex, in

particular, that Windex is an environmentally friendly product, occurred within this District.

Defendant is headquartered within this District, with its main offices in Racine, Wisconsin.

PARTIES

11. Plaintiff Howard Petlack (Plaintiff) is a resident of Boynton Beach, Florida.Plaintiff purchased Defendants Windex product during the Class Period based upon the

representations that Windex was environmentally friendly and has the Greenlist seal of approval.

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

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

known the truth that Greenlist was the creation of SC Johnson, and not a neutral party, and that

Windex was not environmentally friendly.

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

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

Defendant had more than $7.5 billion in sales.

SUBSTANTIVE ALLEGATIONS

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

movement has developed demanding consumer products that are environmentally sound, i.e. that

do not harm the environment through the products ingredients, manufacture, use or disposal.

The term Green is commonly used to describe these products, and the environmental

movement that led to them.



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

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

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

15. These new Green companies and products pose a threat to older establishedcompanies like Defendant that produce the same type of, but non-Green, product.

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

17.

Windex is one of Defendants leading household cleaning products. Windex is

advertised as a multi-purpose cleaner that specializes in cleaning glass and other reflective and

shiny surfaces.

18. In recent years, Windex has faced stiff competition from a number of Green productsthat claim to perform the same function as Windex, but do so in an environmentally friendly

fashion. These products include brands made by SimpleGreen and Seventh Generation.

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

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

multiplied when its major competitor Clorox, Co. of Oakland, California announced that it was

launching a line of Green Works cleaning products that had received a seal of approval from the

Sierra Club.

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

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

product is environmentally sound:



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

several environmental groups use the term Greenlist to describe environmentally sound

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

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

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

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

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

environment).

22. Unfortunately for consumers, however, the Greenlist designation used by SCJohnson to describe Windex has not been conferred by a non-profit environmental group or

neutral third party as is conveyed by the label. Instead, it is merely the creation of Defendant.

23. Furthermore, despite the representation on its label that Windex containsenvironmentally friendly Greenlist ingredients, Defendants has, in fact, not changed the

ingredients of Windex to remove environmentally harmful ingredients. Namely, one of the key

ingredients of Windex is ethyl glycol n-hexyl ether. This chemical poses serious danger,

including death, if ingested by wildlife and small children. Moreover, because the taste of ethyl

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

multiplied.



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24. In other words, Windex is not environmentally responsible or sound as theGreenlist labeling leads one to believe.

CLASS ALLEGATIONS

25. Plaintiff brings this action as a nationwide class action pursuant to Rule 23 of theFederal Rules of Civil Procedure on behalf of all persons who purchased any Windex product

bearing the Greenlist label during the period January 16, 2008 to present (the "Class"). Excluded

from the Class are officers and directors of the Defendant, members of the immediate families of

the officers and directors of the Defendant, and their legal representatives, heirs, successors or

assigns and any entity in which they have or have had a controlling interest.

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

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

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

predominate over questions which may affect individual Class members include:

(a) Whether Defendant labeled, marketed, advertised and/or sold its Windexproducts to Plaintiff and those similarly situated using false, misleading and/or deceptive

statements or representations, including statements or representations concerning the

environmental soundness of Windex;

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

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



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

practice; and

(e) Whether Defendant was unjustly enriched.28. Plaintiffs claims are typical of those of the Class because Plaintiff, like all

members of the Class, purchased Windex bearing the Greenlist label in a typical consumer

setting and sustained damages from Defendant's wrongful conduct.

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

with those of the Class.

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

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

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

with respect to the Class as a whole.

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

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

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

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

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



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

appropriate.

COUNT I

VIOLATION OF THE DECEPTIVE TRADE PRACTICES ACT,

WIS. STAT. 100.18(1)

34. Plaintiff incorporates and realleges the paragraphs above as if fully set forthherein.

35. Defendants Greenlist label constitutes false, deceptive and misleadingadvertising in violation of Wisconsins Deceptive Trade Practices Act (DTPA).

36. As set forth above, the Greenlist label is false, deceptive and misleading becauseit causes consumers to believe that Defendants products are environmentally safer than the non-

Greenlist label versions of these products and that products carrying the Greenlist label have

been independently tested and approved as such. In fact, however, as described above, Greenlist

is nothing more than a marketing program designed by Defendant to increase sales of its

products in this environmentally conscious time. Products bearing the Greenlist label have not

been independently tested and have not been reformulated to be environmentally friendly. To

the contrary, products bearing the Greenlist label contain the same toxic chemicals harmful to the

environment and animals as are present in Defendants products without the Greenlist label.

37. Defendant designed the false, misleading and deceptive Greenlist label with intentto sell, distribute and increase the consumption of its products bearing the Greenlist label

including Windex.

38. Defendants violation of the DTPA caused Plaintiff and Class members to sufferpecuniary loss. Specifically, Defendants false, deceptive and misleading Greenlist label caused



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consumers to purchase Defendants products believing they were environmentally friendly when,

in fact, they were not.

39. Because Defendants Greenlist marketing program was devised, implemented anddirected from Defendants headquarters in Racine, Wisconsin, the DTPA applies to a class of

purchasers of Defendants products bearing the Greenlist label, both within and outside of

Wisconsin, who have been harmed as a result. Moreover, Wisconsin has a substantial interest in

preventing false, deceptive and misleading practices within the State which may have an effect

both in Wisconsin and throughout the rest of the country.

COUNT II

UNJUST ENRICHMENT

40. Plaintiff incorporates and realleges the paragraphs above as if fully set out herein.41. Plaintiff and Class members conferred a benefit on Defendant when they

purchased products carrying the false, deceptive and misleading Greenlist label.

42. Defendant appreciated and had knowledge of the benefit conferred by Plaintiffand Class members.

43. Defendants acceptance and retention of the benefit conferred by Plaintiff andClass members would be inequitable under the circumstances.

44. Accordingly, equity and good conscience demand that Defendant should returnthe benefit conferred by Plaintiff and Class members.



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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

A. Declaring this action to be a proper class action pursuant to F.R.C.P. 23 of a classof all persons who purchased Windex products bearing the Greenlist label during the Class

Period and appointing Plaintiff as representative for the Class and his counsel as Class Counsel;

B. Awarding Plaintiff and the members of the Class compensatory damages in anamount in excess of $5,000,000.00 and all monetary relief referenced in this Complaint;

C. Ordering Defendant to pay restitution to Plaintiff and members of the Class anamount that is the equivalent of the amount acquired by means of any unfair, deceptive,

fraudulent, unconscionable, or negligent act as referenced in this Complaint;

D. Ordering Defendant to disgorge any ill-gotten benefits received from Plaintiff andmembers of the Class as a result of Defendants false, deceptive or misleading labeling,

marketing and advertising of its Windex Greenlist labeled products;

E. Awarding reasonable costs and attorneys' fees;F. Awarding applicable pre-judgment or post-judgment interest; and

G. Awarding such equitable/injunctive or other relief as the Court may deem just and proper



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JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury.

September 29, 2008 REESE RICHMAN LLP

/s/ Michael R. ReeseMichael R. Reese875 Sixth Avenue, 18th FloorNew York, New York 10001Telephone: (212) 579-4625Facsimile: (212) 253-4272

- and -

WHATLEY DRAKE & KALLAS, LLCDeborah Clark-Weintraub1540 Broadway, 37

thFloor

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

Counsel for Plaintiff and the Proposed Class



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complaint -- petlack v. sc johnson

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