answer -- koh v sc johnson

8/6/2019 Answer -- Koh v SC Johnson

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Answer to Plaintiffs FirstAmended Class Action Complaint

Case No. 09-cv-00927 RMW

Nickolas A. Kacprowski, Bar No. 242684e-mail: [email protected] & ELLIS LLP555 California StreetSan Francisco, CA 94104Telephone: (415) 439-1400

Facsimile: (415) 439-1500

Jeffery L. Willian, P.C. (admitted Pro Hac Vice)e-mail: [email protected] B. Ellis, P.C. (admitted Pro Hac Vice)e-mail: [email protected] H. Weidenhammer (admitted Pro Hac Vice)e-mail: [email protected] & ELLIS LLP300 North LaSalle StreetChicago, IL 60654Telephone: (312) 862-2000Facsimile: (312) 862-2200

Attorneys for Defendant S.C. Johnson & Son, Inc.

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

WAYNE KOH, on behalf of himself and allothers similarly situated

Plaintiff,

vs.

S.C. JOHNSON & SON, INC.,

Defendant.

)

))))))))))

Case No.: 09-cv-00927 RMW

Judge Ronald M. Whyte

DEFENDANT S.C. JOHNSON & SON,INC.S ANSWER TO PLAINTIFFS FIRSTAMENDED CLASS ACTION COMPLAINT

NATURE OF THE CASE

1. This is a proposed class action against SC Johnson & Son, Inc. (SC Johnson orDefendant) for misleading consumers about the environmental safety and soundness of its leadinghousehold cleaning products the glass cleaner Windex and the stain remover Shout.

ANSWER: S. C. Johnson & Son, Inc. (SC Johnson or Defendant) admits that this suit isa proposed class action against SC Johnson, but denies that certification of plaintiffsproposed class is appropriate and denies the remainder of paragraph 1.

Case5:09-cv-00927-RMW Document49 Filed01/20/10 Page1 of 24


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2. 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, amovement has developed demanding consumer products that are made from natural ingredients andenvironmentally 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.

ANSWER: SC Johnson admits that many American consumers are concerned about theenvironmental effects of the products they use, but lacks knowledge or information sufficientto answer the specific allegations of this paragraph, and on that basis, denies the remainingallegations of paragraph 2.

3. Looking to profit off the growing environmental green movement, and to regain itsmarket share lost to truly Green products, starting in January, 2008 and continuing to the present(the Class Period), SC Johnson has prominently placed a deceptive seal of approval label on thefront of its Windex product as follows:

ANSWER: SC Johnson admits that it began placing the following Greenlist label on certainof its products that are marketed under the brand name Windex, including WindexOriginal Glass Cleaner (Windex), beginning in January 2008:

SC Johnson denies that remainder of paragraph 3.



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4. 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 ofenvironmentally responsible ingredients.

ANSWER: SC Johnson admits that one side of its label reads Greenlist is a rating systemthat promotes the use of environmentally responsible ingredients. For additional information,visit www.scjohnson.com. SC Johnson denies the remaining allegations of paragraph 4.

5. On information and belief, at some point after January 1, 2009, Defendant alsostarting placing the misleading Greenlist label on its Shout stain remover line of products.

ANSWER: SC Johnson denies that the Greenlist label was misleading, but admits that SCJohnson began placing the Greenlist label on certain Shout line of products. SC Johnsondenies the remaining allegations of paragraph 5.

6. By making these representations, Defendant represents that its products bearing theGreenlist label are made with natural ingredients and are environmentally safe and sound.

ANSWER: SC Johnson denies the allegations of paragraph 6.

7. Additionally, by making these representations on its products packaging, SC Johnsonconveys to Plaintiff and other consumers that the product has been subjected to a neutral, thirdpartys testing regime that had determined that the product is environmentally friendly.


8. Unfortunately for consumers, these representations by Defendant are false. Basedupon counsels investigation, the truth is that the Greenlist seal of approval is not a designationbestowed by a non-profit environmental group, or even a neutral third-party,but instead is thecreation of Defendant SC Johnson itself. In other words, the Greenlist seal of approval isnothing more than SC Johnson touting its own product.

ANSWER: SC Johnson admits that Greenlist is SC Johnsons rating system foringredients. SC Johnson denies the remaining allegations of paragraph 8.

9. Additionally, ingredients that constitute Windex are not environmentally sound nornatural, but rather pose a real risk to the environment. Despite the statement that Windex containsGreenlist ingredients, Defendant has not changed the ingredients of Windex to remove allenvironmentally harmful chemicals. Namely, one of the key ingredients of Windex ethylene glycoln-hexyl ether is not naturally derived and poses serious danger, including death, if ingested by

wildlife and small children. Moreover, because the taste of ethylene glycol n-hexyl ether is sweet,the risk of it being ingested by wildlife (or, again, small children) is multiplied.


10. The type of deception engaged in by Defendant here is becoming so rampant that theterm 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



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of consumers that they are being misled by a company regarding the environmental practices of thecompany or the environmental benefits of a product or service.).

ANSWER: SC Johnson denies that it engaged in any deception. SC Johnson lacksknowledge or information sufficient to form a belief as to the truth of plaintiffs assertionregarding the use of the alleged term Greenwash and, on that basis, denies the allegation.SC Johnson denies the remaining allegations of paragraph 10.

11. Plaintiff brings this suit to now end Defendants deceptive practice and to recover theill-gotten gains obtained by Defendant through this deception.

ANSWER: SC Johnson admits that plaintiff brought this suit, but denies knowledge orinformation sufficient to form a belief as to plaintiffs motive for doing so and, on that basis,denies the allegation. SC Johnson denies the remaining allegations of paragraph 11.

JURISDICTION AND VENUE

12. This Court has jurisdiction over all causes of action asserted herein pursuant to28 U.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 acitizen of California, and Defendant, which, as alleged below, is a citizen of Wisconsin.

ANSWER: SC Johnson admits that this Court has jurisdiction over this case, but deniesknowledge or information sufficient to form a belief as to plaintiffs citizenship. SC Johnsondenies the remaining allegations of paragraph 11.

13. 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 occurred within this District.

Plaintiff resides within this District and bought Defendants products within this District.

ANSWER: SC Johnson admits that venue is proper in this District pursuant to 28 U.S.C. 1391(a)(1) and (2). SC Johnson denies that any improper conduct occurred within this or anyother District. SC Johnson lacks knowledge or information sufficient to form a belief as to thetruth of plaintiffs residency or alleged purchase of any product in this District.

14. Defendant is authorized to do business in California, have sufficient minimumcontacts with California, and/or otherwise has intentionally availed itself of the markets in Californiathrough the promotion, marketing, and sale of Windex in California, to render the exercise ofjurisdiction by this Court permissible under traditional notions of fair play and substantial justice.

ANSWER: SC Johnson admits that it does business in California, and that this Court hasjurisdiction over this case. SC Johnson denies the remaining allegations of paragraph 14.

PARTIES

15. Plaintiff Wayne Koh (Plaintiff) is a resident of Santa Cruz, California. Plaintiffpurchased Defendants Windex product at its premium price on or about September, 2008 from aSafeway store on 41st Street in Soquel, California based upon the representations that Windex wasenvironmentally friendly with natural ingredients that had been given the Greenlist seal of approval.



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Plaintiff relied upon these misrepresentations in making his decision to purchase Windex. Plaintiffsuffered injury in that he would not have bought the Greenlist-labeled Windex at its premium pricehad he known the truth that Greenlist was the creation of SC Johnson, and not a neutral party, andthat Windex was not environmentally friendly.

ANSWER: SC Johnson denies knowledge or information sufficient to admit or denyplaintiffs place of residence or whether plaintiff has ever purchased Windex. SC Johnsondenies the remaining allegations of paragraph 15.

16. Defendant SC Johnson is a citizen of Racine County, Wisconsin. Defendant SCJohnson describes itself as one of the worlds leading manufacturers of household cleaningproducts and products for home storage, air care, personal care and insect control. In 2007,Defendant had more than $7.5 billion in sales.

ANSWER: SC Johnson admits that it is headquartered in Racine County, Wisconsin, that itdescribes itself as one of the worlds leading manufacturers of household cleaning productsand products for home storage, air care, personal care and insect control, and in 2007, it had

more than $7.5 billion in sales. SC Johnson denies the remaining allegations of paragraph 16.

SUBSTANTIVE ALLEGATIONS

The Green Movement

17. 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, amovement has developed demanding consumer products that contain natural ingredients and areenvironmentally 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.

ANSWER: SC Johnson admits that many American consumers are concerned about theenvironmental effects of the products they use, but lacks knowledge or information sufficientto answer the specific allegations of this paragraph, and on that basis, denies the remainingallegations of paragraph 17.

18. Unfortunately for consumers, false claims of environmental soundness have grownalong with the demand for green products. In a recently released study (available athttp://sinsofgreenwashing.org/), the environmental consulting group TerraChoice EnvironmentalMarketing found that 98% of more than 2,000 products it surveyed in North America made false andmisleading environmental claims by committing one or more of what it classified as the Seven Sinsof Greenwashing:

The Sin of the Hidden Trade-off committed by suggesting a product is greenbased on an unreasonably narrow set of attributes without attention to other importantenvironmental issues;

The Sin of No Proof committed by an environmental claim that cannot besubstantiated by easily accessible supporting information or by a reliable third-partycertification;



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The Sin of Vagueness committed by every claim that is so poorly defined or broadthat its real meaning is likely to be misunderstood by the consumer;

The Sin of Irrelevance committed by making an environmental claim that may betruthful but is unimportant or unhelpful for consumers seeking environmentallypreferable products;

The Sin of Lesser of Two Evils committed by claims that may be true within theproduct category but that risk distracting the consumer from the greaterenvironmental impacts of the category as a whole;

The Sin of Fibbing committed by making environmental claims that are simplyfalse; and

The Sin of Worshipping False Labels committed by a product that, through eitherwords or images, gives the impression of third-party endorsement where no suchendorsement actually exists; fake labels in other words.

ANSWER: SC Johnson lacks knowledge or information sufficient to answer the allegationsin this paragraph and, on that basis, denies the allegations of paragraph 18.

19. The TerraChoice study found that in response to calls for independent certification ofGreen claims due to widespread Greenwashing, false labeling that takes the form of an imagethat looks like an official stamp or seal of approval are on the rise.

ANSWER: SC Johnson lacks knowledge or information sufficient to answer the allegationsin this paragraph and, on that basis, denies the allegations of paragraph 19.

20. In an effort to halt false environmental marketing claims, the Federal TradeCommission has issued Guides for the Use of Environmental Marketing Claims (the GreenGuides), 16 C.F.R. 260 et seq., to protect consumers from deceptive environmental marketing inlabeling and advertising.

ANSWER: SC Johnson admits that the Federal Trade Commission has issued GreenGuides. SC Johnson lacks knowledge or information sufficient to admit or deny theremaining allegations of paragraph 20.

21. The Green Guides provide that in order to avoid deception, [a]n environmentalmarketing claim should be presented in a way that makes clear whether the environmental attributeor benefit being asserted refers to the product, the products packaging, a service or to a portion or

component of the product, package or service, and that it does not overstate the environmentalattribute expressly or by implication. 16 C.F.R. 260.6(b), (c).

ANSWER: SC Johnson admits that the quoted language in paragraph 21 is an excerpt from16 CFR 260.6(b) and denies the remaining allegations of paragraph 21.

22. Further, the Green Guides provide that [i]t is deceptive to misrepresent, directly orby implication, that a product, package or service offers a general environmental benefit. In thisregard, the Green Guides provide that because [u]nqualified general claims of environmental



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benefit are difficult to interpret, and depending on their context, may convey a wide range ofmeanings to consumers . . . [i]n many cases, such claims may convey that the product, package orservice has specific and far-reaching environmental benefits when, in fact, this is not the case.16 C.F.R. 260.7(a). The Green Guides offer the following examples of deceptive environmentalproduct labeling:

Example 1:

A brand name like Eco-Safe would be deceptive if, in the context of the product sonamed, it leads consumers to believe that the product has environmental benefitswhich cannot be substantiated by the manufacturer. The claim would not bedeceptive if Eco-Safe were followed by clear and prominent qualifying languagelimiting the safety representation to a particular product attribute for which it could besubstantiated, and provided that no other deceptive implications were created by thecontext.

Example 5:

A product label contains an environmental seal, either in the form of a globe icon, ora globe icon with only the text Earth Smart around it. Either label is likely toconvey to consumers that the product is environmentally superior to other products.If the manufacturer cannot substantiate this broad claim, the claim would bedeceptive. The claims would not be deceptive if they were accompanied by clear andprominent qualifying language limiting the environmental superiority representationto the particular product attribute or attributes for which they could be substantiated,provided that no other deceptive implications were created by the context.

ANSWER: SC Johnson admits that the quoted language and examples from paragraph 22

are excerpts from 16 CFR Part 260.7, and denies the remaining allegations of paragraph 22.

SC Johnsons Greenwashing in Response to Growing Competition from IndependentlyCertified Green Products

23. 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 forthese products, Green products often command a premium price while simultaneously taking awaymarket share from products that serve similar functions but are not Green.

ANSWER: SC Johnson admits that SimpleGreen and Seventh Generation manufactureproducts for consumer use, but lacks knowledge or information sufficient to answer theremainder of this paragraph, and on that basis, denies the remaining allegations of paragraph23.

24. These new Green companies and products pose a threat to older establishedcompanies, like Defendant, that produce the same type of product only without being Green.




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25. 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.

ANSWER: Admit.

26. Windex is one of Defendants leading household cleaning products. Windex isadvertised as a multi-purpose cleaner that specializes in cleaning glass and other reflective and shinysurfaces.

ANSWER: SC Johnson admits that it advertises Windex for use on glass and other surfaces.SC Johnson denies the remaining allegation of paragraph 26.

27. Shout is also one of Defendants leading brands. Shout is advertised as a stainremover with powerful cleaning agents. Defendant refuses to make the ingredients of Shout knownto the public.

ANSWER: SC Johnson admits that Shout is advertised as a stain remover. SC Johnson

denies the remaining allegation of paragraph 27.

28. In recent years, Windex, and other SC Johnson products have faced stiff competitionfrom a number of Green products that claim to perform the same function as these products, but doso in an environmentally friendly fashion. These products include brands made by SimpleGreen andSeventh Generation.

ANSWER: SC Johnson admits that SimpleGreen and Seventh Generation manufactureproducts that purport to compete with Windex. SC Johnson denies the remaining allegationsof paragraph 28.

29. Starting in 2005, faced with this competition, Windex began to lose market share tothese and other eco-friendly cleaners. See http://findarticles.com/p/articles/mi_m0EIN/is_/ai_n27230492. Then in early January 2008, the threat to SC Johnson, its Windex brand and other SCJohnson products increased dramatically when its major competitor Clorox, Co. of Oakland,California announced that it was launching a line of Green Works cleaning products that hadreceived a seal of approval from the Sierra Club.

ANSWER: SC Johnson admits that Clorox launched its Green Works line of products in2008, and that Green Works products bear the Sierra Club logo. SC Johnson denies theremaining allegations of paragraph 29.

30. In response to these market threats, and to garner a corner of the Green market for

itself, on January 16, 2008, Defendant SC Johnson began marketing and selling Windex inpackaging that prominently displayed the Greenlist label on the front to represent that the productcontains natural ingredients and is environmentally sound:



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ANSWER: SC Johnson admits that it began placing the Greenlist label (reproduced in partabove in SC Johnsons Answer to paragraph 3) on certain of its Windex products beginning inJanuary 2008. SC Johnson denies the remaining allegations of paragraph 30.

31. Since January 16, 2008, Defendant has expanded its misleading labeling to other SCJohnson products, including, but not limited to, its Shout line of stain remover products.

ANSWER: SC Johnson admits that certain its products other than Windex bear theGreenlist label. SC Johnson denies the remaining allegations of paragraph 31.

32. The use of the word Greenlist is also meant to convey that the product has receivedthe approval of a non-profit environmental group or other neutral third party. In fact, severalenvironmental 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 thatposts a Greenlist of companies that have environmentally sound practices);http://www.greenlivingonline.com/tag/Green List/ (use of term Greenlist by the magazineGreenLiving to commemorate people who have dedicated their lives to protecting the environment).


33. Defendant is able to charge consumers a premium for its Greenlist products, as muchas 50% than its competitors products that are not falsely portrayed as green.


34. Unfortunately for consumers, however, the Greenlist designation used by SC Johnsonto describe Windex, Shout and other SC Johnson products has not been conferred by a non-profitenvironmental group or neutral third party as is conveyed by the label. Instead, it is merely thecreation of Defendant.

ANSWER: SC Johnson admits that it designed and administers the Greenlist rating system.

SC Johnson denies the remaining allegations of paragraph 34.

35. Furthermore, despite the representation on its label that Windex containsenvironmentally friendly Greenlist ingredients, Defendant has, in fact, not changed the ingredientsof Windex to remove all environmentally harmful ingredients. Namely, one of the key ingredientsof Windex is ethyl glycol n-hexyl ether. This chemical is not natural and poses serious danger,including death, if ingested by wildlife and small children. Moreover, because the taste of ethylglycol n-hexyl ether is sweet, the risk of it being ingested by wildlife and small children ismultiplied.



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36. In other words, Windex and other SC Johnson products bearing the Greenlist label arenot environmentally responsible or sound as the Greenlist labeling leads one to believe.


CLASS ALLEGATIONS

37. Plaintiff brings this action as a California statewide class action pursuant to Rule 23of the Federal Rules of Civil Procedure on behalf of all residents of California who purchased anyWindex or Shout product bearing the Greenlist label during the period January 17, 2008 to present(the Class). Excluded from the Class are officers and directors of the Defendant, members of theimmediate 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.

ANSWER: SC Johnson admits that the plaintiff purports to bring this action as a class

action, but denies that class certification is appropriate and denies the remaining allegations ofparagraph 37.

38. At this time, Plaintiff does not know the exact number of Class members; however,given the immense sales volume of Windex and Shout, Plaintiff believes that Class members are sonumerous that joinder of all members of the Class is impracticable.


39. 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 whichpredominate over questions which may affect individual Class members include:

(a) Whether Defendant labeled, marketed, advertised and/or soldits Windex and Shout products to Plaintiff and those similarly situatedusing false, misleading and/or deceptive statements or representations,including statements or representations concerning the environmentalsoundness of Windex and Shout;

(b) Whether Defendant misrepresented material facts in connectionwith the sales of its Windex and Shout products;

(c) Whether Defendant participated in and pursued the common

course of conduct complained of herein;

(d) Whether Defendants labeling, marketing, advertising and/orselling of its Windex and Shout products with a Greenlist labelconstitutes an unfair or deceptive consumer sales practice; and

(e) Whether Defendant was unjustly enriched.




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40. Plaintiffs claims are typical of those of the Class because Plaintiff, like all membersof the Class, purchased a SC Johnson product bearing the Greenlist label in a typical consumersetting and sustained damages from Defendants wrongful conduct.


41. 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 withthose of the Class.


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


43. 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 groundsgenerally applicable to the Class thereby making appropriate final injunctive or equitable relief withrespect to the Class as a whole.


44. The prosecution of separate actions by members of the Class would create a risk ofestablishing inconsistent rulings and/or incompatible standards of conduct for Defendant. Forexample, one court might enjoin Defendant from performing the challenged acts, whereas anothermight not. Additionally, individual actions may be dispositive of the interests of the Class, althoughcertain Class members are not parties to such actions.


45. 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, Defendantssystematic policies and practices make declaratory relief with respect to the Class as a wholeappropriate.


CAUSES OF ACTION

FIRST CAUSE OF ACTION

(Business and Professions Code 17200, et seq. Unlawful Business Acts and Practices)

46. Plaintiff repeats each and every allegation contained in the paragraphs above andincorporates such allegations by reference herein.



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ANSWER: SC Johnson incorporates and realleges its answers to the preceding paragraphsas if fully set forth herein.

47. As set forth above, the Greenlist label is false, deceptive and misleading because itcauses consumers to believe that Defendants products are from natural ingredients that areenvironmentally safer than the non-Greenlist label versions of these products and that productscarrying the Greenlist label have been independently tested and approved as such. In fact, however,as described above, Greenlist is nothing more than a deceptive marketing ploy designed byDefendant to increase sales of its products in this environmentally conscious time. Products bearingthe Greenlist label have not been independently tested and have not been reformulated to beenvironmentally friendly. To the contrary, products bearing the Greenlist label contain the samenon-natural toxic chemicals harmful to the environment and animals as are present in Defendantsproducts without the Greenlist label.

ANSWER: SC Johnson admits that it designed and administers the Greenlist rating system.SC Johnson denies the remaining allegations of paragraph 47.

48. Defendant designed the false, misleading and deceptive Greenlist label with intent tosell, distribute and increase the consumption of its products bearing the Greenlist label includingWindex and Shout.


49. Defendant designed the false, misleading and deceptive Greenlist label with intent tosell, distribute and increase the consumption of its products bearing the Greenlist label includingWindex and Shout.


50. Defendants violation constitutes unlawful business acts and practices, which causedPlaintiff and Class members to suffer pecuniary loss. Specifically, Defendants false, deceptive andmisleading Greenlist label caused consumers to purchase Defendants products believing they wereenvironmentally friendly when, in fact, they were not.


51. In this regard, Defendants manufacturing, marketing, advertising, packaging,labeling, distributing and selling products bearing the Greenlist label violates Californias Businessand Professions Code.


52. The business acts and practices alleged above are unlawful under the ConsumersLegal Remedy Act, Cal. Civ. Code 1750, et seq. (CLRA), which forbids deceptive advertising.


53. The business acts and practices alleged above are unlawful under 17200, et seq. byvirtue of violating 17500, et seq., which forbids untrue advertising and misleading advertising.



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54. As a result of the business acts practices described above, Plaintiff and the Class,pursuant to Business and Professions Code 17203, are entitled to an order enjoining such futureconduct on the part of the Defendant and such other orders and judgments which may be necessaryto disgorge Defendants ill-gotten gains and to restore to any person in interest any money paid forproducts bearing the Greenlist label as a result of the wrongful conduct of the Defendant.


55. The above-described unlawful business acts and practices of the Defendant present athreat and reasonable likelihood of deception to Plaintiff and members of the Class in that Defendanthas systematically perpetrated and continue to perpetrate such acts or practices upon members of theClass by means of its misleading manufacturing, marketing, advertising, packaging, labeling,distributing and selling of products bearing the Greenlist label.


56. THEREFORE, Plaintiff prays for relief as set forth below.

ANSWER: SC Johnson denies that plaintiff is entitled to any of the relief set forth below.

SECOND CAUSE OF ACTION

(Business and Professions Code 17200, et seq. Unfair Business Acts and Practices)



58. Such acts of the Defendant, as described above, constitute unfair business acts andpractices.


59. Plaintiff, and other members of the Class who purchased Defendants Windex orShout products bearing the Greenlist label, suffered a substantial injury by virtue of buying a product

they would not have purchased absent Defendants unfair marketing, advertising, packaging andlabeling or by paying an excessive premium price for the unfairly marketed, advertised, packagedand labeled products bearing the Greenlist label.


60. There is no benefit to consumers or competition by deceptively marketing,advertising, packaging and labeling water beverages. Indeed, the harm to consumers and competitionis substantial.



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ANSWER: SC Johnson lacks knowledge or information sufficient to answer any allegationsrelated to the marketing, advertising, packaging, and labeling of water beverages. SCJohnson denies the remaining allegations of paragraph 60.

61. Plaintiff and other members of the Class who purchased Defendants productsbearing the Greenlist label had no way of reasonably knowing that the product they bought was notas marketed, advertised, packaged and labeled. Thus, they could not have reasonably avoided theinjury each of them suffered.


62. The gravity of the consequences of Defendants conduct as described aboveoutweighs any justification, motive or reason therefore, particularly considering the available legalalternatives which exist in the marketplace, and is immoral, unethical, unscrupulous, offendsestablished public policy or is substantially injurious to Plaintiff and other members of the Class.


63. As a result of the business acts and practices described above, Plaintiff and the Class,pursuant to Business and Professions Code 17203, are entitled to an order enjoining such futureconduct on the part of the Defendant, and such other orders and judgments which may be necessaryto disgorge Defendants ill-gotten gains and to restore to any person in interest any money paid forproducts bearing the Greenlist label as a result of the wrongful conduct of the Defendant.




THIRD CAUSE OF ACTION

(Business and Professions Code 17200, et seq. Fraudulent Business Acts and Practices)



66. Such acts of the Defendant, as described above, constitute fraudulent businesspractices under California Business and Professions Code sections 17200, et seq.


67. As more fully described above, Defendants misleading marketing, advertising,packaging and labeling of products bearing the Greenlist label is likely to deceive reasonableCalifornia consumers. Indeed, Plaintiff and other members of the Class were unquestionablydeceived regarding the characteristics of Defendants product, as Defendants marketing,



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advertising, packaging and labeling of products bearing the Greenlist label misrepresent and/or omitthe true nature and quality of its product. Said acts are fraudulent business acts and practices.


68. This fraud and deception caused Plaintiff and members of the Class to purchase moreof Defendants product than they would have or pay more than they would have for the product hadthey known the true nature and quality of its product.


69. As a result of the business acts and practices described above, Plaintiff and the Class,pursuant to Business and Professions Code 17203, are entitled to an order enjoining such futureconduct on the part of the Defendant, and such other orders and judgments which may be necessaryto disgorge Defendants ill-gotten gains and to restore to any person in interest any money paid forproducts bearing the Greenlist label as a result of the wrongful conduct of the Defendant.




FOURTH CAUSE OF ACTION

(Business and Professions Code 17200, et seq. Misleading and Deceptive Advertising)

71. Plaintiff repeats each and every allegation contained in the paragraphs above and

incorporates such allegations by reference herein.


72. Plaintiff asserts this cause of action for violations of California Business andProfessions Code 17500, et seq. for misleading and deceptive advertising against the Defendant.


73. At all material times, the Defendant engaged in a scheme of offering its products

bearing the Greenlist label for sale to Plaintiff and other members of the Class by way of, inter alia,commercial marketing and advertising, product packaging and labeling and other promotionalmaterials. These materials misrepresented and/or omitted the true nature and quality of GreenlistWindex and Shout. Said advertisements and inducements were made within the State of Californiaand come within the definition of advertising as contained in Business and Professions Code17500, et seq. in that such promotional materials were intended as inducements to purchaseproducts bearing the Greenlist label and are statements disseminated by the Defendant to Plaintiffand the Class and were intended to reach members of the Class. Defendant knew, or in the exerciseof reasonable care should have known, that these statements were misleading and deceptive.



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ANSWER: SC Johnson admits that certain of its products sold in California bore theGreenlist label. SC Johnson denies the remaining allegations of paragraph 73.

74. In furtherance of said plan and scheme, Defendant has prepared and distributedwithin the State of California via commercial marketing and advertising, product packaging andlabeling, and other promotional materials, statements that misleadingly and deceptively represent theenvironmental soundness of Windex and Shout. Consumers, including Plaintiff, necessarily andreasonably relied on these materials, believing the products bearing the Greenlist label wereenvironmentally friendly when, in fact, they were not. Consumers, including Plaintiff and the Class,were among the intended targets of such representations.


75. The above acts of the Defendant, in disseminating said misleading and deceptivestatements throughout the State of California to consumers, including Plaintiff and members of theClass, were and are likely to deceive reasonable consumers, including Plaintiff and other members ofthe Class, by obfuscating the true nature and quality of Windex and Shout, all in violation of the

misleading prong of California Business and Professions Code 17500.


76. As a result of the above violations of the misleading prong of Business andProfessions Code 17500, et seq., Defendant has been unjustly enriched at the expense of Plaintiffand the other members of the Class. Plaintiff and the Class, pursuant to Business and ProfessionsCode 17535, are entitled to an order of this Court enjoining such future conduct on the part of theDefendant, and such other orders and judgments which may be necessary to disgorge Defendantsill-gotten gains and restore to any person in interest any money paid for products bearing theGreenlist label as a result of the wrongful conduct of the Defendant.




FIFTH CAUSE OF ACTION

(Business and Professions Code 17200, et seq. - Untrue Advertising)

78. Plaintiff repeats each and every allegation contained in the paragraphs above and

incorporates such allegations by reference herein.


79. Plaintiff asserts this cause of action for violations of California Business andProfessions Code 17500, et seq., for untrue advertising against the Defendant.




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80. At all material times, Defendant has engaged in a scheme of offering products bearingthe Greenlist label for sale to Plaintiff and other members of the Class by way of, inter alia,commercial marketing and advertising, product packaging and labeling, and other promotionalmaterials. These materials misrepresented and/or omitted the true nature of Windex and Shout. Saidadvertisements and inducements were made within the State of California and come within the

definition of advertising as contained in Business and Professions Code 17500, et seq. in that suchpromotional materials were intended as inducements to purchase products bearing the Greenlist labeland are statements disseminated by the Defendant to Plaintiff and the Class and were intended toreach members of the Class. Defendant knew, or in the exercise of reasonable care should haveknown, that these statements were untrue.

ANSWER: SC Johnson admits that certain of its products sold in California bore theGreenlist label. SC Johnson denies the remaining allegations of paragraph 80.

81. In furtherance of said plan and scheme, Defendant has prepared and distributedwithin the State of California via commercial marketing and advertising, the World Wide Web(Internet), product packaging and labeling, and other promotional materials, statements that falselyadvertise the environmental soundness of Windex and Shout. Consumers, including Plaintiff and theClass, are among the intended targets of such representations and would reasonably be deceived bysuch promotional materials.


82. The above acts of the Defendant in disseminating said untrue advertising throughoutthe State of California deceived Plaintiff and the other members of the Class by obfuscating thenature and quality of Windex and Shout, all in violation of the untrue prong of California Businessand Professions Code 17500.


83. As a result of the above violations of the untrue prong of Business and ProfessionsCode 17500, et seq., Defendant has been unjustly enriched at the expense of Plaintiff and the othermembers of the Class. Plaintiff and the Class, pursuant to Business and Professions Code 17535,are entitled to an order of this Court enjoining such future conduct on the part of the Defendant, andsuch other orders and judgments which may be necessary to disgorge Defendants ill-gotten gainsand restore to any person in interest any money paid for products bearing the Greenlist label as aresult of the wrongful conduct of the Defendant.






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SIXTH CAUSE OF ACTION

(Consumers Legal Remedies Act - Cal.Civ.Code 1750, et seq.)

85. Plaintiff realleges and incorporates by reference the paragraphs stated above in thisClass Action Complaint as if set forth herein.


86. This cause of action is brought pursuant to the California Consumers Legal RemediesAct, Cal. Civ. Code 1750, et seq. (the CLRA).

ANSWER: SC Johnson admits that plaintiff brings this cause of action pursuant to theCLRA, but denies the remaining allegations of paragraph 86.

87. Defendants actions, representations and conduct have violated, and continue to

violate the CLRA, because they extend to transactions that are intended to result, or which haveresulted, in the sale or lease of goods or services to consumers.


88. Plaintiff and other Class Members are consumers as that term is defined by theCLRA in Cal. Civ. Code 1761(d).

ANSWER: SC Johnson lacks knowledge or information sufficient to answer the allegationsof this paragraph, and on that basis, denies the allegations of paragraph 88.

89. The products bearing the Greenlist label that Plaintiff and other members of the Class

purchased from Defendant were goods within the meaning of Cal. Civ. Code 1761(a).

ANSWER: SC Johnson admits that certain of its products are goods within the meaningof Cal. Civ. Code 1761 (a). SC Johnson lacks sufficient knowledge or information to answerthe remaining allegations of this paragraph, and on that basis, denies the remaining allegationsof paragraph 89.

90. By engaging in the actions, misrepresentations and misconduct set forth in this ClassAction Complaint, Defendant has violated, and continues to violate, 1770(a)(7) of the CLRA.Specifically, in violation of Cal. Civ. Code 1770(a)(7), Defendants acts and practices constituteunfair methods of competition and unfair or fraudulent acts or practices in that they misrepresent the

particular standard, quality or grade of the goods.


91. By engaging in the actions, misrepresentations and misconduct set forth in this ClassAction Complaint, Defendant has violated, and continues to violate, 1770(a)(16) of the CLRA.Specifically, in violation of Cal. Civ. Code 1770(a)(16), Defendants acts and practices constituteunfair methods of competition and unfair or fraudulent acts or practices in that they represent that asubject of a transaction has been supplied in accordance with a previous representation when theyhave not.



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92. Plaintiff requests that this Court enjoin the Defendant from continuing to employ theunlawful methods, acts and practices alleged herein pursuant to Cal. Civ. Code 1780(a)(2). IfDefendant is not restrained from engaging in these types of practices in the future, Plaintiff and othermembers of the Class will continue to suffer harm.


93. CLRA 1782 NOTICE. On March 20, 2009, Plaintiffs sent Defendants a CLRAnotice letter that provided notice of Defendants violation of the CLRA and demanded that withinthirty (30) days from that date, Defendants correct, repair, replace or otherwise rectify the unlawful,unfair, false and/or deceptive practices complained of herein. The letter also stated that ifDefendants refused to do so, Plaintiffs would amend their complaint to seek damages in accordancewith the CLRA. Defendants failed to comply with the letter and rectify the practices.

ANSWER: SC Johnson admits that it received a letter from plaintiffs sent on March 20,

2009, purporting to be notice letter pursuant to the CLRA. SC Johnson denies the remainingallegations of paragraph 93.

94. Pursuant to California Civil Code 1780(a)(3), Plaintiffs, on behalf of themselvesand all other members of the Classes, seek compensatory damages, punitive damages and restitutionof any ill-gotten gains due to Defendants acts and practices.

ANSWER: SC Johnson denies that plaintiff or any purported class members are entitled toany relief and denies the remaining allegations of paragraph 94.

95. Plaintiffs also request that this Court award their costs and reasonable attorneys fees

pursuant to Cal. Civ. Code 1780(d).

ANSWER: SC Johnson denies that plaintiff or any purported class members or theirattorneys are entitled to any relief and denies the remaining allegations of paragraph 95.



SEVENTH CAUSE OF ACTION

(Fraud, Deceit and/or Misrepresentation)



98. Defendant, through its labeling, advertising and marketing of products bearing theGreenlist label, make uniform representations and offers regarding the nature and quality of Windexand Shout as described above. Defendant engaged in, and continues to engage in, such fraudulent,



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misrepresentative, false and/or deceptive acts with full knowledge that such acts were, and are, infact, misrepresentative, false or deceptive.


99. The aforementioned fraud, misrepresentations, deceptive, and/or false acts andomissions concern material facts that are essential to the analysis undertaken by Plaintiff, and thosesimilarly situated, in deciding whether to purchase Defendants products bearing the Greenlist label.


100. Plaintiff, and those similarly situated, would have acted differently had they not beenmisled i.e. they would not have paid money for the product in the first place.


101. Defendant has a duty to correct the misinformation it disseminated through its

advertising of products bearing the Greenlist label. By not informing Plaintiff, and those similarlysituated, Defendant has breached this duty. Defendant also gained financially from, and as a resultof this breach.


102. By and through such fraud, deceit, misrepresentations and/or omissions, Defendantintended to induce Plaintiff, and those similarly situated, to alter their position to their detriment.


103. Plaintiff and those similarly situated, justifiably and reasonably relied on Defendants

misrepresentations, and, as such, were damaged by Defendant.


104. As a direct and proximate result of Defendants fraud, deceit and/ormisrepresentations, Plaintiff, and those similarly situated, have suffered damages in an amount equalto the amount they paid for Defendant products bearing the Greenlist label. The exact amount ofthis difference will be proven at trial.


105. Defendant acted with intent to defraud, or with reckless or negligent disregard of therights of, Plaintiff, and those similarly situated.


106. Plaintiff, and those similarly situated, are entitled to punitive damages.





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- For declaratory and injunctive relief pursuant to, without limitation, the CaliforniaBusiness & Professions Code 17200, et seq. and 17500, et seq.;

- For restitution and disgorgement pursuant to, without limitation, the CaliforniaConsumers Legal Remedies Act, Cal. Civ. Code 1750, et seq.;

- For declaratory and injunctive relief pursuant to, without limitation, the CaliforniaConsumers Legal Remedies Act, Cal. Civ. Code 1780;

- An award of compensatory damages, the amount of which is to be determined at trial;

- For punitive damages;

- For interest at the legal rate on the foregoing sums;

- For their costs and reasonable attorneys fees pursuant to, without limitation, Cal. Civ.Code 1780(d); and

- For such further relief as this Court may deem just and proper.

ANSWER: SC Johnson denies that plaintiff is entitled to any of the relief set forth above.

AFFIRMATIVE DEFENSES

1. Plaintiff has failed to state a claim upon which relief may be granted.

2. Plaintiffs claims and the claims of any purported class members are barred to the extent that the

doctrines of waiver and/or estoppel apply.

3. To the extent Plaintiff or any purported class member seeks recovery for alleged conduct

occurring beyond any applicable statute of limitations, such recovery is time-barred.

4. Plaintiffs claims and the claims of any purported class member are barred for lack of standing to

assert such claims.

5. Plaintiffs claims and the claims of any purported class member are barred to the extent that they

are preempted.

6. Plaintiffs claims and the claims of any purported class member for damages, which Defendant

denies, are too speculative to permit recovery.

7. Plaintiffs claims and the claims of any purported class member for damages are barred on the

grounds that Plaintiff and any purported class members have not incurred any damages.



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8. Plaintiffs claims and the claims of any purported class member are barred to the extent that he

or any purported class member has or in the future fails to mitigate his or her alleged damages.

9. Plaintiffs claims and the claims of any purported class member for equitable relief are barred by

the availability of an adequate legal remedy.

10. Plaintiffs claims and the claims of any purported class member are barred because there is no

causal connection between the alleged wrongdoing and any alleged harm.

11. Plaintiffs or any purported class members cause of action for alleged unlawful, unfair,

fraudulent, misleading, deceptive or untrue acts are barred because Defendants business

practices and acts were not unlawful, unfair, fraudulent, misleading, deceptive or untrue within

the meaning of the California Business and Professions Code 17200.

12. Plaintiffs claims and the claims of any purported class members are barred by the doctrine of

unclean hands.

13. Defendant reserves the right to assert additional affirmative and other defenses which become

apparent through the course of discovery and investigation in these proceedings.

Date: January 20, 2010

s/Nickolas A. Kacprowski

KIRKLAND & ELLIS LLPNickolas A. Kacprowski, Bar No. 242684555 California StreetSan Francisco, CA 94104Telephone: (415) 439-1400Facsimile: (415) 439-1500

Jeffery L. Willian, P.C.Robert B. Ellis, P.C.Bradley H. Weidenhammer300 North LaSalle StreetChicago, IL 60654Telephone: (312) 862-2000Facsimile: (312) 862-2200

Attorneys for S.C. Johnson & Son, Inc.



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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who have consented to electronic

service are being served with a copy of the foregoing document either via the CM/ECF system and

Electronic Mail on January 20, 2010, or via overnight delivery (Federal Express) to the non-

CM/ECF participants.

Michael R. ReeseKim E. RichmanREESE RICHMAN LLP875 Avenue of the Americas, 18th FloorNew York, New York 10001Telephone: (212) 579-4625Facsimile: (212) 253-4272Attorneys for Plaintiff Koh and

the Proposed Class

Deborah Clark-WeintraubWHATLEY DRAKE & KALLAS LLC1540 Broadway, 37 FloorNew York, New York 10036Telephone: (212) 447-7070Facsimile: (212) 447-7077Attorneys for Plaintiff Koh and

the Proposed Class

Sheptim AdemiADEMI & OREILLY LLP3620 East Lyton AvenueCudahy, Wisconsin 53110Telephone: (414) 482-8000Facsimile: (414) 482-8001Attorneys for Plaintiff Koh and

the Proposed Class

Date: January 20, 2010

s/Nickolas A. Kacprowski

KIRKLAND & ELLIS LLPNickolas A. Kacprowski, Bar No. 242684555 California StreetSan Francisco, CA 94104Telephone: (415) 439-1400Facsimile: (415) 439-1500

Jeffery L. Willian, P.C.Robert B. Ellis, P.C.Bradley H. Weidenhammer300 North LaSalle StreetChicago, IL 60654Telephone: (312) 862-2000Facsimile: (312) 862-2200Attorneys for S.C. Johnson & Son, Inc.


answer -- koh v sc johnson

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