Vogtland v. The Dial Corporation

Filing 1

COMPLAINT against The Dial Corporation. Filing fee $ 350.00 receipt number 113C-3744400, filed by Sven P Vogtland. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s))(Chaikin, Jordan)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
SVEN P. VOGTLAND, on behalf of himself
and all others similarly situated,
CASE NO.:
Plaintiff,
CLASS ACTION COMPLAINT
v.
JURY TRIAL DEMANDED
THE DIAL CORPORATION, an Arizona
Corporation,
Defendant.
____________________________________
CLASS ACTION COMPLAINT
Plaintiff, SVEN P. VOGTLAND, by and through undersigned counsel, brings this action
on his own behalf and on behalf of a Class of persons defined below against Defendant, THE
DIAL CORPORATION, and for his Complaint alleges, upon information and belief and based on
the investigation to date of his counsel, as follows:
NATURE OF CASE
1.

This is a class action arising from the unfair, deceptive, and fraudulent practices by

Defendant THE DIAL CORPORATION with respect to the marketing, advertising and sale of
Dial Complete Antibacterial Hand Wash (“Dial Complete” or the “Product”), brought by Plaintiff
on his own behalf, and on behalf of a class of others similarly situated, those persons being all
residents of the State of Florida, during the Class Period defined below.
THE PARTIES
2.

At times material, Plaintiff was and is an individual residing in Miami, Dade County,

Florida and a citizen of the State of Florida. Plaintiff purchased Dial Complete from retail stores
located in Dade County, Florida on numerous occasions throughout the class period. Plaintiff

purchased and used Dial Complete because he saw and relied on the purported health benefits
described by Defendant’s website, advertising, and in-store media where he purchased Dial
Complete, including product labeling.
3.

Plaintiff, on behalf of himself and all Florida residents who purchased Dial

Complete (the "Class") during the Class Period, as further defined below, brings this class action
against Defendant, THE DIAL CORPORATION.
4.

Defendant, THE DIAL CORPORATION, is a foreign corporation incorporated in

the State of Delaware and maintains its principal place of business at 19001 N. Scottsdale Road,
Scottsdale, AZ 85255.
5.

Defendant, THE DIAL CORPORATION, is a subsidiary of Henkel AG & Co., a

Dusseldorf Germany-based, Fortune Global 500 Company.
JURISDICTION AND VENUE
6.

This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. § 1332(d)(2) (diversity jurisdiction), in that (i) there is complete diversity (Plaintiff is a citizen
of Florida and Defendant is incorporated in Delaware, and, to the extent pertinent, maintain its
principal place of business in Arizona), ii) the amount in controversy exceeds $5,000,000.00 (FiveMillion Dollars) exclusive of interests and costs, and (iii) there are 100 or more members of the
proposed Plaintiff class.
7.

Venue lies in this District, pursuant to 28 U.S.C. §1391, because Plaintiff resides in

this Judicial District, purchased the Product in this Judicial District, and a substantial part of the
events or omissions giving rise to Plaintiff’s claims occurred in this Judicial District. In addition,
Defendants do business and/or transact business in this Judicial District, and therefore, are subject
to personal jurisdiction in this Judicial District and reside here for venue purposes.

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COMMON FACTUAL ALLEGATIONS
8.

Plaintiff's allegations are based in part on the investigation of counsel, including

but not limited to reviews of advertising and marketing material, public filings, articles, journal
actions, and other publicly available information, and thus on information and belief, except as to
the individual actions of Plaintiff, as to which Plaintiff has personal knowledge.

Defendant’s Deceptive Message
9.

Defendant advertises, promotes and sells a broad range of branded products

throughout Florida and the United States, including body washes, bar soap, liquid hand soap and
hand sanitizers, including its Dial Complete line of products, that are the subject of this
lawsuit.
10.

The Product contains Triclosan as it’s active ingredient, which was originally

developed as a surgical scrub for medical professionals. In recent years, it has been added to many
consumer products such as soap and body washes, toothpaste, clothing, kitchenware, furniture and
toys.
11.

Triclosan is a chlorophenol, a class of chemicals that is suspected of causing

cancer in humans. While the companies that manufacture products containing Triclosan claim that
it is safe, the Environmental Protection Agency (“EPA”) has registered it as a pesticide and has
rated it high for human health risk and environmental risk.
12.

Defendant's misleading marketing campaign begins with a deceptive name – Dial

Complete—as it implies that it will completely protect you from germs. Defendant's exhaustive
advertising campaign builds on this deception. In truth, Defendant has no independent, competent
and reliable support for these claims.
13.

Since 2001, Dial has deceptively and unfairly promoted the usage of Dial

Complete to consumers as having special health benefits, including, but not limited to, being over

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1,000 times more effective at killing disease-causing germs than other antibacterial liquid hand soaps,
killing 99.99% of bacteria, kill 99.9% of illness-causing bacteria, reducing disease transmission by
50% compared to washing with a plain soap, and killing more germs than any other liquid hand
soap.

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14.

Dial deceptively and unfairly claims and implies that Dial Complete’s active

ingredient, Triclosan, enables Dial Complete to outperform other soap products, thus allowing Dial
Complete to perform at the levels indicated by Dial, to wit: killing 99.99% of bacteria, kill 99.9%
of illness-causing bacteria, being over 1,000 times more effective at killing disease- causing germs
than other antibacterial liquid hand soaps, and reducing transmission of diseases by 50%
compared to washing with a plain soap.

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15.

Dial deceptively and unfairly claims and implies that Dial Complete prevents and

protects consumers from diseases and illnesses, including but not limited to infectious disease,
diarrhea and nausea.

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http://www.dialcomplete.com/complete_facts.html

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16.

In addition, as shown above, Defendant Dial deceptively and unfairly claims and

implies that Dial Complete prevents and/or protects consumers from contracting: streptococcal
infections that can lead to illness through skin contact and cause fever, throat or skin infections;
among other symptoms; Salmonella, which can infect people and cause fever, diarrhea and
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abdominal cramps; E. coli leading to infection causing severe bloody diarrhea and abdominal
cramps; Staphylococcus aureus leading to food poisoning and can cause nausea, vomiting,
stomach cramps and diarrhea in as little as 30 minutes.
17.

Defendant Dial deceptively and unfairly claims and implies that the statements

about Dial Complete’s health benefits and the superiority in quality of Dial Complete are
backed by a competent, credible, and reliable study. The advertisements for Dial Complete fail to
disclose the specific limitations of the Dial study including: (a) that only 2 strains of bacteria
were tested and (b) there was no determination as to the development of immunity by the bacteria
after repeated use. Moreover, Defendant Dial’s study was performed by Dial itself or a related
entity, is not objective.
18.

In a promotional video targeting janitorial product suppliers, Defendant contends

that Dial Complete has the “highest level of germ killing action”, is the “#1 antibacterial foaming
hand soap”, and its “patented activated Triclosan formula” allows it to be “25x more effective
than other antibacterial soaps.” 2
19.

Dial’s marketing and advertising campaign sends an unmistakably clear, but an

unconscionably deceptive and unfair message: Dial Complete is more effective at killing germs,
protecting the consumer from germs, and thus preventing illness and promoting good health, than
washing with less expensive plain soap and water.

Defendant’s Message is False, Misleading, Deceptive, Unfair and Unconscionable
20.

Defendant’s advertising message ignores the well-supported fact that washing with

soap and water is just as effective as washing with Dial Complete, which contains Triclosan and is
more expensive than plain soap.
21.
2

Defendant Dial’s claims about Dial Complete’s effectiveness and superiority are

Dial Complete Foam promotional video, available at http://www.youtube.com/watch?v=TjmKuREfGmQ

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false, deceptive, unfair and unconscionable because there is not sufficient, competent and/or reliable
scientific evidence and/or substantiation for Dial Complete’s effectiveness and superiority claims.
22.

Specifically, Defendant has no competent, credible and reliable scientific evidence

that is sufficient in quality and quantity based on standards generally accepted in the relevant
scientific fields, when considered in light of the entire body of relevant and reliable scientific
evidence to substantiate the claims that Dial Complete is over 1,000 times more effective at killing
disease-causing germs that other antibacterial liquid hand soaps, killing 99.99% of bacteria, kill
99.9% of illness-causing bacteria, reducing disease transmission by 50% compared to washing with a
plain soap, and killing more germs than any other liquid hand soap.
23.
evidence.

Defendant’s purported scientific evidence is neither competent nor reliable scientific
Defendant does not possess any tests, analyses, research, or studies that have been

conducted and evaluated in an objective manner.
24.

In fact the competent and reliable scientific evidence indicates that Defendant’s

claims are false, deceptive, unfair and unconscionable.
25.

A study published on July 13, 2000 reported that Triclosan acts by inhibiting one

of the highly conserved enzymes (enoyl-ACP reductase, or FabI) of bacterial fatty-acid
biosynthesis. Several key pathogenic bacteria do not have FabI. This study described a
Triclosan resistance flavoprotein, FabK such as Streptococcus pneumonia, which can cause
pneumonia or the infection that causes meningitis. Richard J. Heath & Charles O. Rock,
Nature Journal, No. 406, pp. 145-146, 7/13/00.
26.

Defendant Dial’s advertising and messaging fails to mention and/or warn

Plaintiff that repeated use of Dial Complete may cause her to develop bacteria immune to
Tricliosan.
27.

The Journal of the Annual Meeting of the American Medical Association in 2000

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included the following:
Conclusions. The use of common antimicrobials [i.e Triclosan] for which acquired
resistance has been demonstrated in bacteria as ingredients in consumer products should be
discontinued, unless data emerge to conclusively show that such resistance has no impact on
public health and that such products are effective at preventing infection. Scientific
research on the issue of antimicrobial resistance must continue to elucidate gaps in
knowledge, particularly with respect to the use of common antimicrobials as ingredients in
consumer products and its impact on the major public health problem of antibiotic
resistance.
28.

In 2010 the AMA voted to retain this recommendation as still relevant.

29.

On March 20, 2001 Defendant received Patent No. US 6,204,230: An antibacterial

composition that has a 99% reduction in Gram positive and Gram negative bacteria. According to the patent
application the composition including Triclosan was tested against only four bacteria, nowhere near
99% of the bacteria that is known to exist.
30.

In March 2004, a study published in the American Journal of Infection Control concluded

that, after testing the efficacy of 14 different hand hygiene agents including a hand wash with 1%
Triclosan, washing with plain soap and water was more effective than Triclosan after one wash.
Sickert-Bennett, Weber, Gergen-Teague, Sobsey, Samsa, Rutala. American Journal of Infection
Control; pp. 67-77.
31.

An August 2004 study published in Antimicrobial Agents and Chemotherapy collected

hand cultures in houses using liquid hand soap containing 0.2% Triclosan (Dial Complete contains
0.2% Triclosan) to observe the presence of bacteria. The study found that little evidence supported
the notion that 0.2% Triclosan soap affords any benefit in the reduction of infectious symptoms,
bacterial counts, or types of bacteria on the hands of individuals within the household setting in the
developed world.
32.

In reviewing 27 studies conducted over the past 30 years, scientists from the

University of Michigan, Columbia University, and Tufts University determined that soaps

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containing added ingredients such as Triclosan in liquid soap and Triclocarban in bar soap do not
show a benefit above and beyond plain soap in the consumer environment. The scientists
concluded that “[t]he lack of an additional health benefit associated with the use of Triclosancontaining consumer soaps over regular soap, coupled with laboratory data demonstrating
potential risk of selecting for drug resistance, warrants further evaluation by the government.”
(Allison Aiello, Consumer Antibacterial Soaps: Effective or Just Risky? Clinical Infectious Diseases 2007;
45; S137-47).
33.

In 2005, the FDA concluded that antimicrobial soaps and sanitizers do not

reduce the risk of illness and infection in the home.

The Canadian Pediatric Society and the

American Medical Association have concluded similarly.
34.

In an April 8, 2010 “Consumer Update”, the FDA stated that it does not have

evidence that Triclosan-containing antibacterial soaps and body washes provide any extra health
benefit over soap and water alone.
35.

Despite all evidence to the contrary, Dial continues to aggressively advertise Dial

Complete as having substantial health benefits and being more effective in its use than ordinary
soap and water. This aggressive advertisement containing these deceptive, unfair, misleading, and
unconscionable statements effectively induced millions of consumers in the U.S. to purchase Dial
Complete in hopes of realizing these false gains. These consumers exchange their money for a
product that they were misled by Dial into purchasing for more money than plain soap. This was
Dial’s intention, and the deceptive, misleading, unfair, and unconscionable advertisements and
messages were the means by which Dial sought to achieve its end: persuading consumers to
purchase Dial Complete at a price premium compared to ordinary soap.

Plaintiff’s Reliance
36.

At all times relevant, Plaintiff heard, saw and relied upon various Dial on

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product claims, promotions, commercials and advertisements for Dial Complete in making the
decision to purchase said products.
37.

In reliance on the false, unfair, deceptive and/or unconscionable and unfair

promotional, label and advertising claims Plaintiff purchased Dial Complete. However,
unbeknownst to Plaintiff at the time of purchase, there was and still is no reasonable basis in fact or
substantiation for Dial’s claims that Dial Complete “kills 99.99% of germs, is the “#1 Doctor
Recommended” liquid hand wash, “kills more germs than any other liquid hand soap, is “over
1,000 times more effective at killing disease-causing germs than other antibacterial liquid hand
soaps”, and is “over 10x more effective at killing disease-causing germs than ordinary liquid soaps.”
38.

Defendant’s false statements of product quality and effectiveness would cause a

reasonable person to believe such statements, and did, in fact, cause the Plaintiff to believe and rely
upon such statements in making the decision to purchase Dial Complete.
39.

Plaintiff specifically relied on Defendant Dial’s false, unfair, deceptive, and/or

unconscionable claim that Dial Complete “kills 99.99% of germs, is the “#1 Doctor
Recommended” liquid hand wash, “kills more germs than any other liquid hand soap, is “over
1,000 times more effective at killing disease-causing germs than other antibacterial liquid
hand soaps”, and is “over 10x more effective at killing disease-causing germs than ordinary
liquid soaps.” But for the false, misleading, deceptive, unfair and unconscionable statement,
Plaintiff would not have purchased Dial Complete at a price premium, but instead, purchased the
less expensive ordinary soap.
40.

Because Plaintiff relied upon the false, misleading, deceptive, unfair and

unconscionable claims made by the Defendant, Plaintiff has been damaged in that he purchased
Dial Complete and has lost the money he spent purchasing such products, including paying a
price premium, while being misled about the Product benefits and he either would not have

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purchased such products or would not have purchased them for the price that he paid but for
his belief in their health benefits as advertised and claimed by Dial.
CLASS ACTION ALLEGATIONS
41.

Plaintiff seeks to represent the Class defined below or class or classes further

refined by the Court.
42.

Plaintiff brings the claims asserted herein on behalf of a Class defined as:
All Florida residents who purchased Dial Complete products
primarily for personal, family, or household use, within the
statutory limitations periods applicable to the herein- alleged
causes of action (including, without limitation, the period
following the filing of this action). Excluded from the Class are
any judicial officers presiding over this action, and Defendants,
including their officers, directors and employees. ("Class").

43.

Defendant's representations and omissions were material, were relied upon by

Plaintiff and intended to be relied upon by the putative class, and resulted in damage to each and
every member of the Class as alleged.
44.

The exact number of Members in the Class identified above is not known, but it is

reasonable to presume that the class is so numerous that joinder of individual Members is
impracticable. Dial has sold millions of soap products, including Dial Complete soaps, using the
misrepresentations complained of herein and all of these consumers are presumed to have relied
upon Dial’s uniform written misrepresentations concerning the efficacy of Triclosan containing
antibacterial soaps and body washes. It is estimated that the class will be composed of at least 10,000
individuals.
45.

There are questions of law and fact that are common to the proposed Class,

including, but not limited to, the following:
a.

are the claims that Dial made and is making regarding Dial Complete false,
unfair, deceptive and/or unconscionable;

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b.

is Dial making claims that Dial Complete have certain performance
characteristics, uses or benefits that they do not have;

c.

is Dial making claims that Dial Complete are of a particular standard, quality
and/or grade, when they are not;

d.

is Dial supplying Dial Complete not in accordance with its representations;

e.

has Dial engaged in false, unfair, deceptive and/or unconscionable acts or
practices in connection with a consumer transaction;

f.

did Dial know at the time the consumer transaction took place that the
consumer would not receive the benefit from the consumer product that Dial
was claiming the consumer would receive;

g.

did Dial know or should it have known that the representations and
advertisements regarding Dial Complete were unsubstantiated, false and
misleading;

h.

did Dial engage in false, unfair, deceptive and/or unconscionable
advertising;

i.

did Dial use false, unfair deceptive and/or unconscionable representations in
connection with the sale of goods;

j.

did Dial’s representations concerning the purported supporting study cause a
likelihood of confusion or misunderstanding as to the source, sponsorship,
approval or certification of goods;

k.

did Dial represent that goods have a certain sponsorship, approval,
characteristic, ingredient, use or benefit that they do not have;

l.

did Dial represent that goods are of a particular standard, quality or grade
when they are of another;
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m.

did Dial represent that the goods were available to the consumer for a reason
that did not exist;

n.

did Dial advertise goods with the intent not to sell them as advertised;

o.

did Dial disparage the goods of another by false representations of fact;

p.

did the Plaintiff and the Class Members that purchased Dial Complete suffer
monetary damages and, if so, what is the measure of said damages;

q.

are the Plaintiff and Class Members entitled to an award of punitive damages;
and

r.
46.

are the Plaintiff and Class Members entitled to declaratory and injunctive relief?

Plaintiff's claims are typical of the claims of the proposed Class. Indeed,

Plaintiff's claims are identical or nearly identical to Class Member's claims.
47.

Plaintiff will fairly and adequately represent and protect the interest of the

proposed Class because, inter alia, Plaintiff's interests are not antagonistic to those of the Class,
and Plaintiff has retained counsel competent and experienced in the prosecution of this type of
litigation.
48.

The questions of law and fact common to the Class Members, some of which are

set forth above, predominate over any questions affecting only individual Class Members. Clearly,
the predominate issues are whether Dial has sufficient substantiation for its claims concerning the
efficacy of Dial Complete to remove 99.99% of germs through washing and whether Dial’s
marketing materials misrepresented the efficacy of Dial Complete at removing germs during
washing. Those issues are focused on the Defendants and predominate over any questions that may
arise concerning individual Class Members.
49.

Adjudicating this matter as a class action is superior to other available methods for

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adjudication because, inter alia, the expense and burden of requiring consumers to individually litigate
these claims would make it impracticable or impossible for them to bring their claims.
50.

This matter is manageable as a class action. At most, the effective management of

this case as a class action may require one or more simple sub-classes. However, the use of subclasses to manage class action litigation is a common practice, and this Court is very adept at the
use of sub-classes to manage class action litigation.
51.

Unless a class is certified, Defendant will retain monies received as a result of its

conduct that were taken from Plaintiff and proposed Class Members.

Unless a classwide

injunction is ordered, Defendant will continue to commit the violations alleged, and the
Members of the Class and the general public will continue to be misled.
52.

Defendant Dial’s unlawful conduct, including the unlawful acts described herein,

and its continuing unlawful acts, are generally applicable to the Class as a whole making final
injunctive relief appropriate.
COUNT I
VIOLATION OF THE FLORIDA DECEPTIVE AND
UNFAIR TRADE PRACTICES ACT
FLORIDA STATUTES §§ 501.201 et seq.
53.

Plaintiff, JEN SVEN P. VOGTLAND, individually and on behalf of all others

similarly situated, adopts and incorporates by reference all allegations contained in paragraphs 1
through 52 as though fully set forth herein.
54.

Plaintiff and all class members are “consumers” and the transactions at issue in this

Complaint constitute “trade or commerce” as defined by Florida Statutes § 501.203 (7) and (8)
respectively.
55.

Florida Statutes § 502.301, et seq. was enacted to protect the consuming public and

legitimate business enterprises from those who engage in unfair methods of competition, or

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unconscionable, deceptive or unfair acts or practices in the conduct of any trade or commerce.
Defendant’s actions and/or omissions as described herein violate this statute in that Defendant
misrepresented and omitted material information regarding the Product. Defendant also engaged in
false advertising as set forth herein with respect to the Product in violation of this statute.
56.

As a result of the wrongful conduct described herein, Plaintiff and members of the

class suffered damages.
57.

Plaintiff and members of the class are entitled to compensatory damages, equitable

and declaratory relief, costs, and reasonable attorneys’ fees.
COUNT II
VIOLATION OF FLORIDA STATUTES § 817.41
58.

Plaintiff, SVEN P. VOGTLAND, individually and on behalf of all others similarly

situated, adopts and incorporates by reference all allegations contained in paragraphs 1 through 52 as
though fully set forth herein.
59.

Florida Statutes Section 817.41 declares it “unlawful for any person to disseminate or

cause to be made or disseminated before the general public of the state, or any portion thereof, any
misleading advertisement.”
60.

Florida Statutes Section 817.40 defines a “misleading advertisement” as including

“any statements made, or disseminated, in oral, written, or printed form or otherwise, to or before
the public, or any portion thereof, which are known, or through the exercise of reasonable care or
investigation could or might have been ascertained, to be untrue or misleading, and which are or
were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or
disposing of real or personal property, services of any nature whatever, professional or otherwise, or
to induce the public to enter into any obligation relating to such property or services.”
61.

Defendants disseminated misleading advertisements to the general public of the State

of Florida regarding the health benefits and effectiveness of Dial Complete in violation of Section
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817.41 with the intent and purpose of inducing members of the public to purchase products
provided by Defendant. Indeed, at the time Defendant disseminated such misleading
advertisements, Defendant knew such advertisements to be false and intended for members of the
general public, including Plaintiff and class members, to rely on such misleading advertisements.
62.

Plaintiff and class members relied upon the misleading advertisements disseminated

by Defendant when purchasing Dial Complete.
63.

As a proximate result of Defendants’ dissemination of misleading advertisements in

violation of Section 817.41, Plaintiff and class members sustained injury and damage.
64.

Plaintiff and class members are entitled to attorneys’ fees under Florida Statutes

Section 817.41(6).
65.

Plaintiff and members of the class are entitled to compensatory damages, equitable

and declaratory relief, costs, and reasonable attorneys’ fees.
COUNT III
BREACH OF CONTRACT
66.

Plaintiff, SVEN P. VOGTLAND, individually and on behalf of all others similarly

situated, adopts and incorporates by reference all allegations contained in paragraphs 1 through 52 as
though fully set forth herein.
67.

Plaintiff and each member of the Class formed a contract with Defendant. The

terms of that contract include the promises and affirmations of fact made by Defendant in its
marketing and sales materials as described above, that became part of the basis of the bargain, and
are part of a standardized contract between Plaintiff and members of the Class on the one hand, and
Defendant on the other.
68.

Defendant breached the terms of its sales contract with Plaintiff and members of

the Class by promising to provide a Dial Complete product that conformed to the promises and

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affirmations of fact replete throughout Defendant’s aggressive sales and marketing materials, but
then failed to provide a product measuring up to these promises and affirmations of fact.
69.

As a result of Defendant’s breach of their contract, Plaintiff and the other

members of the Class have been damaged.
COUNT IV
BREACH OF EXPRESS WARRANTY
70.

Plaintiff, SVEN P. VOGTLAND, individually and on behalf of all others similarly

situated, adopts and incorporates by reference all allegations contained in paragraphs 1 through 52 as
though fully set forth herein.
71.

Defendant asserts promises and affirmations of fact throughout its advertisement of

Dial Complete. The Statements described in detail in the previous paragraphs were each designed
to induce in Plaintiff a belief that the Dial Complete was superior in both quality and effectiveness.
The specific statements and facts prevalent throughout Defendant’s advertisements were more than
just mere puffery; they were orchestrated to produce a reliance in Plaintiff on these
misrepresentations when deciding to purchase the Dial Complete. Moreover, these promises and
affirmations of fact were not merely Defendant’s opinion on its own product; rather, these
promises and affirmations allegedly are the product of a scientific study and conclusive evidence.
These promises and affirmations are precisely the sort that create an express warranty.
72.

Plaintiff’s reliance on and belief of these promises and affirmations of fact,

considering the circumstances surrounding the sale, the reasonableness of the Plaintiff in believing
the Defendant, and the reliance placed on Defendant’s statement to Plaintiff, these promises and
affirmations were intended to form part of the basis of the bargain, and thus are express warranties.
Furthermore, Defendant asserts these promises and affirmations as facts, not just sales talk.
73.

Defendant Dial breached the expressed warranty by failing to provide a

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product that conformed to its promises and affirmations; specifically, a product that kills 99.99% of
bacteria, kill 99.9% of illness-causing bacteria, is over 1,000 times more effective at killing diseasecausing germs than other antibacterial liquid hand soaps, reduces transmission of diseases by 50%
compared to washing with a plain soap, and otherwise prevents and protects consumers from
contracting illnesses and diseases.
74.

As a result of Defendant’s breach of the express warranties with Plaintiff and

Class members, Plaintiff and the Class members suffered damages to be determined according to
proof at the time of trial.
COUNT V
UNJUST ENRICHMENT
75.

Plaintiff, SVEN P. VOGTLAND, individually and on behalf of all others similarly

situated, adopts and incorporates by reference all allegations contained in paragraphs 1 through 52 as
though fully set forth herein.
76.

Plaintiff argues, in the alternative to a finding of breach of contract, that it is

unjust to allow Defendant to retain the profits from its deceptive, misleading, and, unlawful
conduct alleged herein without providing compensation to Plaintiff and the Class Members.
77.

Defendant’s deceptive, misleading, and unlawful advertisements, commercials, and

other media communications wrongly induced Plaintiff into purchasing Defendant’s Dial
Complete, the proceeds of which went unjustly to Defendant. Defendant retained the benefits of
this (these) purchase(s) without compensating Plaintiff, who conferred this (these) benefits on
Defendant.
78.

Defendant’s conduct created between Defendant and Plaintiff a quasi-contract,

through which Defendant received a benefit from Plaintiff without providing compensation to
Plaintiff in exchange.

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79.

Plaintiff sustained a loss because Plaintiff did not receive the benefit for which he

paid – an antibacterial hand soap that conformed to the performance promised throughout
Defendant’s advertisements, commercials, and other media communications. Defendant received
a gain because it accepted payment; this gain is unjust because Defendant did not provide in
exchange for the payment a product that conformed to Defendant’s promises.
80.

Plaintiff and the Class Members are entitled to restitution of, disgorgement of,

and/or the imposition of a constructive trust upon, all profits, benefits, and other compensation
obtained by the Defendants from their deceptive, misleading, and unlawful conduct.
COUNT VI
TORTIOUS BREACH OF WARRANTY
81.

Plaintiff, SVEN P. VOGTLAND, individually and on behalf of all others similarly

situated, adopts and incorporates by reference all allegations contained in paragraphs 1 through 52 as
though fully set forth herein
82.

At all times material, Defendants manufactured, marketed and sold Dial Complete,

and represented and impliedly warranted that Dial Complete was of good merchantable quality and
fit for their intended use as superior and more effective hand soaps that killed 99.99% of bacteria,
kill 99.9% of illness-causing bacteria, with over 1,000 times greater effectiveness in killing diseasecausing germs than other antibacterial liquid hand soaps, 50% greater effectiveness in preventing
disease transmissions as compared to washing with a plain soap and water and that Dial Complete
otherwise prevents or protects consumers from contracting illnesses and disease better than less
expensive ordinary soap.
83.

The Dial Complete was defective in design and/or formulation, in that they

were not properly made and fit for their ordinary and intended purposes as superior and more
effective hand soaps the killed far more bacteria and significantly reduced rates for disease
transmission as compared to washing with plain soap. Defendants in fact misrepresented the
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superiority and effectiveness of Dial Complete when they knew or should have known that Dial
Complete did not actually provide the advantages they purported to offer.
84.

At the time Plaintiff and other Class members purchased them, the Dial Complete

was defective in design and/or formulation, in that they were unfit for their intended use as superior
and more effective hand soaps, and Plaintiff and other Class members were directly and proximately
injured as a result of Defendants’ tortious breach of this warranty.
85.

As a direct and proximate result of Defendants’ warranty breach, Plaintiff and

other members of the Class have been injured and suffered damages, in part for losses attributable
to the decreased value of Dial Complete, the cost they each incurred to purchase Dial Complete,
and other damages to be determined according to proof at the time of trial.
COUNT VII
NEGLIGENT DESIGN AND FAILURE TO WARN
86.

Plaintiff, SVEN P. VOGTLAND, individually and on behalf of all others similarly

situated, adopts and incorporates by reference all allegations contained in paragraphs 1 through 52 as
though fully set forth herein
87.

At all times material, Defendant manufactured, marketed and sold Dial Complete,

and represented and impliedly warranted that Dial Complete was of good merchantable quality and
fit for their intended use as superior and more effective hand soaps that killed 99.99% of bacteria,
kill 99.9% of illness-causing bacteria, with over 1,000 times greater effectiveness in killing diseasecausing germs than other antibacterial liquid hand soaps, and 50% greater effectiveness in
preventing disease transmissions as compared to washing with a plain soap and water.
88.

At all times material, Defendant knew, or by exercise of reasonable care,

should have known, that Dial Complete was defectively designed and/or formulated, in that they
were not properly made and fit for their ordinary and intended purposes as superior and more
effective hand soaps the killed far more bacteria and significantly reduced rates for disease

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transmission as compared to washing with plain soap. Defendant in fact misrepresented the
superiority and effectiveness of Dial Complete when they knew or should have known that Dial
Complete did not actually provide the advantages they purported to offer.
89.

Defendant knew that Plaintiff and other members of the Class would likely

purchase and use Dial Complete for their intended purposes as superior and more effective hand
soaps that offered increased health benefits, and it was therefore highly foreseeable that Plaintiff and
other Class members would wrongfully incur expenses and other costs and damages as the result of
their purchasing and using the defectively designed and/or formulated Dial Complete.
90.

At the time Defendant formulated, manufactured, distributed and/or sold Dial

Complete, they owed a non-delegable duty to persons like Plaintiff and other members of the Class
to exercise ordinary and reasonable care to properly design and formulate Dial Complete, and owed
a continuing duty to warn Plaintiff and other Class members about design/formulation defects that
made Dial Complete fail to perform as intended in reducing bacterial health risks, and exposed
purchasers to the risk of incurring unnecessary cost and other financial disadvantage.
91.

Defendant had a pre-sale duty to warn Plaintiff and other potential purchasers that

Dial Complete did not, in fact, diminish bacterial health risks and failed to provided benefits the
ordinary consumer would expect when using Dial Complete in their intended and reasonably
foreseeable purposes.
92.

In fact, any alleged health benefits that Dial Complete killed more bacteria and

reduced disease transmission were outweighed by the inherent risks that Plaintiff and other Class
members would falsely believe that Dial Complete provided superior protection against disease
causing bacteria, and thereby incur unnecessary and unjustified costs to purchase those products.
93.

Defendant failed to appropriately and reasonably design and formulate Dial

Complete prior to marketing and selling them to Plaintiff and other Class members, and
thereby recklessly, carelessly and negligently breached their duties to Plaintiff and other
members of the Class.

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94.

Defendant failed to warn Plaintiff that repeated use of Dial Complete may cause

bacteria develop immunity to Tricliosan.
95.

As a direct and proximate result of Defendants recklessness, carelessness, and

negligence, Plaintiff and other members of the Class have been injured and suffered damages, in
part for losses attributable to the decreased value of Dial Complete, the cost they each incurred to
purchase Dial Complete, and other damages to be determined according to proof at the time of
trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, SVEN P. VOGTLAND, individually and on behalf of the
proposed class, prays for the Court to:
A.

Enter an order certifying a class action pursuant to Federal Rules Civil Procedure

Rule 23 (a), (b) (2) and (b)(3) consisting of the class defined herein and directing that appropriate
notice to class members be delivered;
B.

Designate Plaintiff as representative of the proposed class and designate his counsel

as class counsel;
C.

Enter judgment in favor of Plaintiff and the class and against Defendant THE DIAL

CORPORATION;
D.

Award Plaintiff and the class members’ restitution, disgorgement, actual, statutory

and punitive damages, and attorneys’ fees and costs, including pre-judgment and post-judgment
interest thereon;
E.

Enter a temporary, preliminary and permanent order for injunctive relief enjoining

Defendants from continuing to engage in the business practices complained of herein;

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F.

Provide such further relief as the Court deems just and proper.
JURY DEMAND

Plaintiff, SVEN P. VOGTLAND, individually and on behalf of the Plaintiff Class Members,
hereby demands a trial by jury as to all issues so triable.

DATED: May 10, 2011

By:

/s/ Jordan L. Chaikin
Jordan L. Chaikin
Florida Bar Number 0878421
PARKER WAICHMAN ALONSO LLP
3301 Bonita Beach Road, Suite 101
Bonita Springs, Florida 34134
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Richard J. Arsenault
NEBLETT, BEARD & ARSENAULT
2220 Bonaventure Court
P.O. Box 1190
Alexandria, Louisiana 71309
Telephone: [phone]
Facsimile: 216.771.1632
Email: [e-mail]

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