Segarra v. The Clorox Company
COMPLAINT against The Clorox Company. Filing fee $ 350.00 receipt number 113C-4445554, filed by Jose Segarra. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s), # 3 Exhibit Opinion and Order)(Harke, Lance)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
JOSE SEGARRA, an individual, on behalf of
himself and all others similarly situated,
THE CLOROX COMPANY,
a Delaware corporation,
CLASS ACTION COMPLAINT
Plaintiff Jose Segarra (“Plaintiff”), hereby sues for himself and all others similarly
situated, the Defendant The Clorox Company (“CLOROX”), a Delaware corporation, and alleges
This is a consumer class action lawsuit brought on behalf of Plaintiff,
individually, and on behalf of persons within the state of Florida who purchased for personal use
and not resale, Defendant’s Fresh Step Cat Litter (“Fresh Step”). At all material times
CLOROX, through a standardized advertising, promotional, and marketing campaign hatched,
incubated, facilitated, and consummated by CLOROX in a uniform manner, has engaged in
unfair and deceptive marketing by purposefully misrepresenting that Fresh Step is more effective
at eliminating odors than other cat litters. It is not. CLOROX uniformly promotes this core yet
false message through the Fresh Step packaging, as well as on its website and other promotional
CLOROX’s actions constitute violations of Florida’s Deceptive and Unfair Trade
Practices Act (“FDUTPA”). § 501.201-501.213, Fla. Stats. Further, CLOROX has been
unjustly enriched as a result of its conduct.
As a result of this unfair and deceptive practice, CLOROX has sold millions of
dollars of Fresh Step which it would not have otherwise sold had it made accurate disclosures.
PARTIES, JURISDICTION AND VENUE
Plaintiff Segarra is a resident of Miami-Dade County, a citizen of the State of
Florida, and is otherwise sui juris. During the proposed class period, Plaintiff purchased Fresh
Step for personal use within the State of Florida.
CLOROX is a Delaware corporation with its principal place of business in
California. CLOROX manufactures consumer products. CLOROX advertises, distributes and
sells its products throughout the United States, including in Florida.
This Court has jurisdiction pursuant to 28 U.S.C. § 1332 because this is a class
action, as defined by 28 U.S.C. § 1332(d)(1)(B), in which a member of the putative class is a
citizen of a different state than the Defendant and the amount in controversy exceeds the sum or
value of $5,000,000. See 28 U.S.C. § 1332(d)(2).
This Court has jurisdiction over CLOROX because a substantial portion of the
wrongdoing alleged in this Complaint took place in Florida, CLOROX is authorized to do
business here, CLOROX has sufficient minimum contacts with Florida and/or otherwise
intentionally avails itself of the markets in Florida. CLOROX sells products or services within
the state of Florida and in Miami-Dade County, rendering the exercise of jurisdiction by Florida
courts permissible under traditional notions of fair play and substantial justice.
Venue is proper in this district because a substantial part of the events and/or
omissions giving rise to Plaintiff’s claims occurred in this district and/or CLOROX is subject to
personal jurisdiction in this district.
CLOROX manufactures “Fresh Step” cat litter products, which uses a carbon
based odor-fighting ingredient.
CLOROX markets its Fresh Step cat litter as being superior to other cat
litters based upon its carbon-based odor-fighting ingredient. CLOROX markets its carbon
based claims on the packaging as well as in various media.
CLOROX’s advertisements were in commercials depicting cats “choosing”
litter boxes filled with Fresh Step over litter boxes filled with other brands. While this
was occurring, the voiceover explained that “cats like boxes with Fresh Step litter inside
because Fresh Step’s scoopable litter with carbon is better at eliminating odors than Arm
In January and February of 2011, CLOROX began airing still another
commercial that displayed cats as being “smart enough” to choose the litter with less odor.
CLOROX’s entire marketing campaign is to market Fresh Step as a
superior odor-fighting product without any reliable scientific evidence supporting this
claim. CLOROX’s representations are false, misleading and deceptive.
The objective of CLOROX’s overarching marketing campaign was to
present Fresh Step as more effective at eliminating odors than other cat litters.
Recently, the Honorable Jed S. Rakoff, United States District Court Judge
for the Southern District of New York found that CLOROX’s testing “cannot reasonably
support the necessary implication that Clorox’s litter outperforms C & D’s products in
eliminating odor in cat litters.” See Opinion and Order (Jan. 3, 2012) (attached as Ex. 1).
Judge Rakoff concluded that “that the results of [CLOROX’s tests] are ‘not
sufficiently reliable to permit one to conclude with reasonable certainty that they established the
proposition for which they were cited’ in Clorox’s commercial. In short, because the Jar Test on
which Clorox based its claims is unreliable and, even if it were reliable, could not possibly
support Clorox’s implied claims about the relative merits of carbon and baking soda in cat litter,
the Court finds Clorox’s claims are literally false.” Id. at 11 [emphasis added].
CLOROX did not and does not have competent and reliable scientific evidence to
support its superiority claims. CLOROX’s representations are false and misleading and
reasonably likely to deceive the reasonable consumer.
Plaintiff and the class have been damaged by CLOROX’s deceptive and unfair
CLASS ACTION ALLEGATIONS
Plaintiff brings this case as a class action pursuant to FDUTPA. §§501.201-
501.213, Fla. Stats. Plaintiff seeks certification of the following class: All individuals who
purchased Fresh Step for personal use and not resale in the state of Florida after January 31, 2007
up to and including the present. Excluded from this Class are employees, officers, and directors
of CLOROX. Plaintiff Segarra is a member of the class in that he purchased Fresh Step for his
personal consumption within the class period.
This action is proper for class treatment under Rules 23(b)(1)(B) and 23(b)(3) of
the Federal Rules of Civil Procedure. The proposed class is so numerous that individual joinder
of all members is impracticable. While the exact number and identities of the class members are
unknown to Plaintiff at this time, Plaintiff is informed and believes that the class numbers in the
thousands, and likely tens of thousands.
Questions of law and fact arise from Defendant’s conduct described herein. Such
questions are common to all Class members and predominate over any questions affecting only
individual Class members. The myriad questions of law and fact common to the Class include:
a. whether Fresh Step actually is more effective at eliminating odors than other
b. whether CLOROX markets and misrepresents Fresh Step as more effective at
eliminating odors than other cat litters;
c. whether CLOROX failed to disclose to consumers that there is no competent
and reliable scientific evidence that Fresh Step is more effective at eliminating
odors than other cat litters;
d. whether CLOROX engaged in a marketing practice intended to deceive
consumers regarding the benefits of Fresh Step;
e. whether CLOROX’s marketing practices violate FDUTPA;
f. whether CLOROX has been unjustly enriched at the expense of Plaintiff and
the class members by its misconduct;
g. whether CLOROX must disgorge any and all profits it has made as a result of
its misconduct; and
h. whether CLOROX should be barred from marketing Fresh Step in a deceptive
and uniform manner.
Plaintiff will fairly and adequately represent and pursue the interests of class
members. Plaintiff’s counsel has vast experience in consumer class action cases. Plaintiff
understands the nature of his claims herein, has no disqualifying conditions, and will vigorously
represent the interests of the Class.
COUNT I- VIOLATION OF FLORIDA’S
DECEPTIVE AND UNFAIR TRADE PRACTICES ACT
Plaintiff realleges and incorporates herein by reference paragraphs 1-21 herein
and further alleges as follows:
This is a claim for violation of Florida’s Deceptive and Unfair Trade Practices
Act. §§ 501.201-501.213, Fla. Stats.
FDUTPA provides that unfair methods of competition, unconscionable acts and
practices, and unfair or deceptive acts or practices in the conduct “of any trade or commerce” are
unlawful. § 501.204, Fla. Stats. Under FDUTPA, “trade or commerce” is defined to include any
advertisement or solicitation relating to any “thing of value.” § 501.203(8), Fla. Stats.
Plaintiff and the class members are consumers as defined and construed under the
FDUTPA. § 501.203(7), Fla. Stats.
The practices employed by Defendant, whereby Defendant advertises, promotes,
and markets that Fresh Step is more effective at eliminating odors than other cat litters are unfair,
deceptive and misleading.
Plaintiff and the class members suffered actual damages as a result of CLOROX’s
deceptive and unfair trade acts. Specifically, as a result of CLOROX’s deceptive and unfair
trade acts and practices, Plaintiff and the class members suffered monetary losses associated with
the purchase of Fresh Step which itself is unfit for its advertised purpose, i.e., the purchase price
of the product.
Further, CLOROX should be enjoined from marketing Fresh Step in the deceptive
and unfair fashion described above pursuant to section 501.211(1), Florida Statutes.
WHEREFORE, Plaintiff and the class members demand an award against CLOROX for
actual and/or compensatory damages, in addition to the costs of this proceeding and attorney’s
fees, as provided by section 501.2105, Florida Statutes, injunctive relief, and such other relief as
this Court deems just and proper.
COUNT II- UNJUST ENRICHMENT
Plaintiff repeats and realleges the allegations contained in paragraphs 1-21 herein
and further alleges as follows:
CLOROX received certain monies in response to its uniform deceptive marketing
of Fresh Step which are excessive and unreasonable.
As a result, Plaintiff and the Class have conferred a benefit on CLOROX, and
CLOROX has knowledge of this benefit and has voluntarily accepted and retained the benefit
conferred on it.
CLOROX will be unjustly enriched if it is allowed to retain such funds, and each
class member is entitled to an amount equal to the amount each class member enriched
CLOROX and for which CLOROX has been unjustly enriched.
WHEREFORE, Plaintiff and class members demand an award against CLOROX for the
amounts equal to the amount each class member enriched CLOROX and for which CLOROX
has been unjustly enriched, and such other relief as this Court deems just and proper.
DEMAND FOR TRIAL BY JURY
Plaintiff, individually and on behalf of all others similarly situated, hereby
demands a jury trial on all claims so triable.
Dated: February 7, 2012
s/ Lance A. Harke
Lance A. Harke, P.A.
Florida Bar No. 863599
Sarah Clasby Engel, P.A.
Florida Bar No. 991030
Howard M. Bushman, P.A.
Florida Bar No. 0364230
HARKE CLASBY & BUSHMAN LLP
9699 NE Second Avenue
Miami Shores, FL 33138
Telecopier: (305) 536-8229
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