Dream Water suit

- 1 -

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. _________________

CYNTHIA M. KIRKWOOD, Individually and on behalf of all others similarly situated, COMPLAINT CLASS ACTION Plaintiffs, vs. JURY TRIAL DEMANDED SARPES BEVERAGES, LLC, a Florida limited liability company doing business as DREAM PRODUCTS, LLC,

Defendant. __________________________________/

C L ASS A C T ION C O MPL AINT

Plaintiff Cynthia M. Kirkwood ("Plaintiff"), brings this action on behalf of herself and

all others similarly situated, against Defendant Sarpes Beverages, LLC, d/b/a Dream Products,

LLC (referred to herein as , and alleges as follows:

N A T UR E O F T H E A C T I O N

1. Defendant is a Florida company that manufactures, markets, and sells bottled

-natural

revolutionary sleep and relaxation beverage made up of a proprietary combination of three

natural relaxation ingredients: GABA, Melatonin and 5-htp. Through its advertising and

labeling, Defendant promises that its miraculous water works for anyone who needs to relax,

estful

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-2- Wites & Kapetan, P.A.

4400 North Federal Highway, Lighthouse Point, FL 33064 Phone: (954) 570-8989; Fax: (954) 354-0205

sleep benefits without making users feel groggy or drowsy the next day like other over-the-

counter and prescription sleep aids.

2. Defendant guarantees that Dream Water will work. Although Defendant used

or uses images and language to represent that these claims about its products have been

clinically proven and endorsed by medical organizations and professionals, the reality is that

representations are false. Defendant simply is and has been misrepresenting the effectiveness

of its products to the general public, in order to reap windfall profits. Dream Water really is

just over-priced water. Defendant has conveyed and continues to convey its deceptive claims

about Dream Water through a variety of media, including product packaging, the Internet

(including misleading testimonials) and point of sale displays. This deception is deliberate and

by design.

3. Defendant has succeeded in designing its advertising and marketing campaign

in Florida and disseminating its deceptive and false claims nationwide to cause consumers

throughout Florida and the rest of the United States to buy Dream Water as a result of this

deceptive message. Dream Water is now sold in airports throughout the country, over the

Internet, and through national retail giants, including Food4Less®, Safeway®, CVS,

Walgreens, K-Mart, Wal-Mart,and Winn-Dixie. . Dream Water is sold in flavors such as

, ,

twelve- costs $38.99.

4. Plaintiff was




Water, but received none of the intended benefits. Plaintiff brings this action on behalf of

herself and other similarly-situated consumers, who purchased Defendant's Dream Water

products in order to halt the dissemination of this false and misleading advertising message,

correct the false and misleading perception Defendant has created in the minds of consumers,

and to obtain redress for those who have purchased Defendant's products. Plaintiff alleges

violations of Florida's Deceptive and Unfair Trade Practices Act and breach of express

warranty created by ' advertising, including its labeling, and unjust enrichment.

JURISDI C T I O N A ND V E NU E

5. This Court has original jurisdiction pursuant to 28 U.S.C. §1332(d)(2). The

matter in controversy, exclusive of interest and costs, exceeds the sum or value of $5,000,000,

and is a class action in which members of the Class of plaintiffs are citizens of states different

from Defendant. Further, greater than two-thirds of the Class members reside in states other

than the state in which Defendant is a citizen.

6. Venue is proper in this Court pursuant to 28 U.S.C. §1391 in that many of the

acts and transactions giving rise to this action occurred in this District and because Defendant:

(a) is authorized to conduct business in this District and has intentionally

availed itself of the laws and markets within this District through the promotion, marketing,

distribution and sale of their products in and from this District;

(b) conducts substantial business in this District; and

(c) is subject to personal jurisdiction in this District.




PA R T I ES

7. At all times relevant to this matter, Plaintiff Cynthia M. Kirkwood resided in

Indian River County, Florida, and is a citizen of the state of Florida. During the class period,

Plaintiff was exposed to Defendant's deceptive and false advertising claims and packaging for

the Dream Water products, purchased the Dream Water products as a result of these claims,

and suffered injury in fact and lost money as a result of deception as alleged

herein.

8. Defendant Sarpes Beverages, LLC is a Florida limited liability company and

maintains its principal place of business in Miami, Florida. Defendant does business as Dream

Products, LLC.

9.

partners throughout the nation, from Florida, nearly all of the false and misleading marketing

messages at issue in this action.

10. Defendant promotes, markets, distributes and sells its Dream Water products

throughout the United States, including to tens of thousands of consumers in the State of

Florida.

A DDI T I O N A L SUBST A T I V E A L L E G A T I O NS

Unfair and Deceptive C laims 11. In an article referenced www.drinkdreamwater.com,

the National Academy of Sciences Institute of Medicine estimates that 50 to 70 million

Americans chronically suffer from sleep disorders that adversely affect their daily lives and

long term health and cost the county billions of dollars a year. The Institute of Medicine goes


http://www.drinkdreamwater.com/



on to explain that the adverse health consequences of sleep disorders in the United States

include increased risk of hypertension, diabetes, obesity, depression, heart attack and stroke.

12. Preying on consumers attempting to deal with this serious and dangerous public

health problem, Defendant promises that merely by drinking its Dream Water products users

are guaranteed to relax, fall asleep, and improve the quality of their sleep. Through the use

of misleading and deceptive words, images, and testimonials, Defendant uniformly and

consistently represents to consumers throughout its marketing message that the Dream Water

products are proven to be a safe and effective cure for sleep disorders that are better than

FDA-evaluated and approved over-the-counter alternatives. Defendant promises, in bold

0-Calorie Sleep and Relaxation

13. In reality, Defendant is simply selling snake-oil as a purported cure for one of

the most important health problems faced by millions of Americans.

14. Defendant claims or claimed that D -

lead to daytime drowsiness, headaches, dizziness, stomach discomfort, short-lasting

depression symptoms, mild tremor, mild anxiety, irritability, and confusion. Melatonin may

interact negatively with a variety of common drugs, including blood-thinning medications

(anticoagulants), immunosuppressants, diabetes medications, and birth control pills. People

who are pregnant, breast-feeding, and younger than age 20 must be especially careful when

taking melatonin. Risks of taking melatonin are thought to increase over time. Upon




information and belief, melatonin was recently banned for over-the-counter use in Canada,

and has been banned for over the counter use in many European countries for some time.

Defend .

15.

- -occurring melatonin is a hormone appearing in humans and

animals. Defendant uses synthetic or manufactured melatonin.

16. Plaintiff and the Class were exposed to and

as a result.

Plaintiff and the Class drank

purported benefits whatsoever.

17.

orts and operations in Florida that

are directed to and impact consumers throughout the United States. These efforts include

creating, approving and intentionally disseminating from Florida to consumers throughout the

nation the false and misleading claims at issue in this case.

availment of Florida business, markets, infrastructure, and regulations in order to market and

sell Dream Water nationwide, Defendant can reasonably expect to be subjected to Florida law

for all of their activities.

18. Defendant's message to its customers was premeditated and deceptive as

Defendant intentionally displayed the false and misleading claims at issue here on the Dream

Water bottles and product packages, as well as on its website.




19. It is clear that Defendant is deceptively misleading the consumer by unfairly

conveying to the customer that Dream Water products are proven, all-natural, safe and

effective ways to address sleep disorders and problems. This deception is false, misleading and

reasonably likely to deceive the public.

C L ASS A C T I O N A L L E G A T I O NS

20. Plaintiff brings this lawsuit on behalf of herself and the proposed Class

members under Rule 23(b)(2) and (3) of the Federal Rules of Civil Procedure. The proposed

Class consists of:

(a) Nationwide Class: All persons, nationwide, except for persons within the State of California, who purchased Dream Water until the date notice is

Insiders and those who purchased Dream Water for the purpose of resale.

(b) F lorida Class: All persons who purchased Dream Water products within the State of F lorida until the date notice is disseminated. Excluded from

Insiders and those who purchased Dream Water for the purpose of resale.

21. Subject to additional information obtained through further investigation and

discovery, the foregoing definition of the Class may be expanded or narrowed by amendment

or amended complaint. Specifically excluded from the proposed Class are the Defendant, its

officers, directors, agents, trustees, parents, children, corporations, trusts, representatives,

employees, principals, servants, partners, joint venturers, or entities controlled by the

Defendant, and its heirs, successors, assigns, or other persons or entities related to or affiliated

with the Defendant and/or its officers and/or directors, or any of them (collectively,

; the Judge assigned to this action, and any member of the Judge's

immediate family.




22. Numerosity. The members of the Class are so numerous that their individual

joinder is impracticable. Plaintiff is informed and believes, and on that basis alleges, that the

proposed Class contains many thousands of members. The precise number of Class members

is unknown to Plaintiff. The true number of Class members is known by the Defendant.

23. Existence and Predominance of Common Questions of Law and F act.

Common questions of law and fact exist as to all members of the Class and predominate over

any questions affecting only individual Class members. These common legal and factual

questions include, but are not limited to, the following:

(a) Whether Plaintiff and the Class were consumers as defined by Section

501.203 Fla. Stat.;

(b)

Section 501.203, Fla. Stat.;

(c) Whether Defendant mislabeled Dream Water bottled water;

(d)

false;

(e) Whether Defendant conducted tests to determine the accuracy of Dream

(f)

misleading label is unfair and deceptive;

(g) Whether Defendant engaged in an unfair and deceptive practice by marketing

and selling Dream Water under a false and misleading label;

(h) Whether Defendant breached its express warranty with Plaintiff and the Class;




(i) Whether Defendant was unjustly enriched at the expense of Plaintiffs and the

Class

(j) Whether the alleged conduct constitutes violations of the laws asserted herein;

(k) Whether Plaintiff and Class members have sustained monetary loss and the proper

measure of that loss; and

(l) Whether Plaintiff and Class members are entitled to declaratory and injunctive relief.

24. Typicality. Plaintiff s claims are typical of the claims of the members of the

Class in that the Defendant deceived Plaintiff in the same way as they deceived each member

of the Class when they purchased Dream Water.

25. Adequacy of Representation. Plaintiff will fairly and adequately protect the

interests of the members of the Class. Plaintiff has retained counsel highly experienced in

complex consumer class action litigation, and Plaintiff intends to prosecute this action

vigorously. Plaintiff has no adverse or antagonistic interests to those of the Class.

26. Superiority. A class action is superior to all other available means for the fair

and efficient adjudication of this controversy. The damages or other financial detriment

suffered by individual Class members is relatively small compared to the burden and expense

that would be entailed by individual litigation of their claims against the Defendant. It would

thus be virtually impossible for the Class, on an individual basis, to obtain effective redress for

the wrongs done to them. Furthermore, even if Class members could afford such

individualized litigation, the court system could not. Individualized litigation would create the

danger of inconsistent or contradictory judgments arising from the same set of facts.

Individualized litigation would also increase the delay and expense to all parties and the court




system from the issues raised by this action. By contrast, the class action device provides the

benefits of adjudication of these issues in a single proceeding, economies of scale, and

comprehensive supervision by a single court, and presents no unusual management difficulties

under the circumstances here.

27. In the alternative, the Class may also be certified because:

(a) the prosecution of separate actions by individual Class members would

create a risk of inconsistent or varying adjudication with respect to individual Class members

that would establish incompatible standards of conduct for the Defendant;

(b) the prosecution of separate actions by individual Class members would

create a risk of adjudications with respect to them that would, as a practical matter, be

dispositive of the interests of other Class members not parties to the adjudications, or

substantially impair or impede their ability to protect their interests; and/or

(c) Defendant has acted or refused to act on grounds generally applicable to

the Class thereby making appropriate final declaratory and/or injunctive relief with respect to

the members of the Class as a whole.

28. The claims asserted herein are applicable to all customers throughout the State

of Florida and the United States who purchased the Dream Water products.

29. Adequate notice can be given to Class members directly using information

maintained in Defendant's or Defendant's direct purchasers' records, or through notice by

publication.

30. Damages may be calculated, in part, from the sales information maintained in

Defendant's records, so that the cost of administering a recovery for the Class can be




minimized. However, the precise amount of damages available to Plaintiff and the other

members of the Class (or lack thereof) is not a barrier to class certification.

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

its conduct that was taken from Plaintiff and proposed Class members. Unless a class-wide

injunction is issued, Defendant will continue to commit the violations alleged, and the

members of the Class will continue to be misled.

C O UNT I

F O R V I O L A T I O NS O F T H E F L O RID A D E C EPT I V E A ND UN F A IR T R A D E PR A C T I C ES A C T , F L O RID A ST A T U T ES SE C T I O N 501.201, ET SEQ .

32. Plaintiff re-alleges and incorporates by reference the allegations contained in

paragraphs 1 through 31 as if fully set forth herein.

33. This cause of action is brought on behalf of the Nationwide Class and Florida

Class pursuant to the Florida Deceptive and Unfair Trade Practices Act, Fla. stat. §§501.201,

et seq. (the "Act"). The stated purpose of the Act is to "protect the consuming public . . . from

those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair

acts or practices in the conduct of any trade or commerce." Fla. Stat. §501.202(2).

34. Plaintiff is a consumer as defined by Fla. Stat. §501.203. The Dream Water

products are goods within the meaning of the Act. Defendant is engaged in trade or commerce

within the meaning of the Act.

35. Fla. Stat. §501.204(1) declares unlawful "[u]nfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any

trade or commerce."




36. Defendant has violated the Act by engaging in the unfair and deceptive

practices as described here which offend public policies and are immoral, unethical,

unscrupulous and substantially injurious to consumers. Defendant lied about Dream Water.

37. Plaintiff, the Nationwide Class and the Florida Class have been aggrieved by

Defendant's unfair and deceptive practices in that they paid for the Dream Water products.

38. The damages suffered by Plaintiff, the Nationwide Class and the Florida Class

were directly and proximately caused by the deceptive, misleading and unfair practices of

Defendant, as more fully described above.

39. Pursuant to Fla. Stat. §501.211(1), Plaintiff, the Nationwide Class and the

Florida Class seek a declaratory judgment and court order enjoining the above-described

wrongful acts and practices of Defendant and for restitution and disgorgement.

40. Additionally, pursuant to Fla. Stat. §§501.211(2) and 501.2105, Plaintiff, the

Nationwide Class and the Florida Class make claims for damages, attorneys' fees and costs.

C O UN T I I

BR E A C H O F E XPR ESS W A RR A N T Y

41. Plaintiff re-alleges and incorporates by reference the allegations contained in

paragraphs 1 through 31 as if fully set forth herein.

42. Plaintiff, and each member of the Nationwide Class and the Florida Class,

formed a contract with Defendant at the time Plaintiff and the other members of the Class

purchased the Dream Water products. The terms of that contract include the promises and

affirmations of fact made by Defendant on their product labels and through

their marketing campaign, as described above. This product labeling and advertising




constitutes express warranties, became part of the basis of the bargain, and is part of a

standardized contract between Plaintiff and the members of the Class on the one hand, and

Defendant on the other.

43. All conditions precedent to Defendant's liability under this contract, including

notice, has been performed by Plaintiff and the Class.

44. Defendant breached the terms of this contract, including the express warranties,

with Plaintiff and the Class by not providing the product which could provide the benefits

described above.

45. As a result of Defendant's breach of its contract and warranties, Plaintiff and the

Class have been damaged in the amount of the purchase price of the Dream Water products

they purchased.

C O UN T I I I

UNJUST E NRI C H M E N T

46. Plaintiff hereby adopts and incorporates by reference paragraphs 1 through 31

as if fully set forth here.

47. This Count is brought in the alternative. See Fed. R. Civ, P. 8(e)(2).

48. Plaintiff, the Florida Class and Nationwide Class conferred a benefit upon

Defendant by paying for a product with benefits or characteristics that could not be provided

or delivered.

49. Defendant voluntarily accepted and retained the benefit of the monies paid by

Plaintiff, the Florida Class and Nationwide Class.




50. Defendant has been enriched, at the expense of Plaintiff, the Florida Class and

Nationwide Class, by retaining monies from Dream Water product purchasers for benefits or

characteristics which they did not provide.

51. Plaintiff and the other members of the Florida Class and Nationwide Class who

have paid for benefits that could not be provided or delivered by Defendant have been

damaged as a result of Defendant's unjust enrichment and are entitled to a refund, plus interest.

52. As a direct and proximate result of Defendant's misconduct, Plaintiff, the

Florida Class and the Nationwide Class have suffered injury and are entitled to reimbursement,

restitution, and disgorgement in the amount necessary to restore them to the position they

would have been in if Defendant had not retained monies for benefits which they could not

provide or deliver.

53. Plaintiff and the Class have no adequate remedy at law.

PR A Y E R F O R R E L I E F

Wherefore, Plaintiff prays for a judgment against Defendant as follows:

A. Certifying the Florida Class and the Nationwide Class as requested herein,

appointing Cynthia M. Kirkwood as Class Representative, and appointing her counsel as lead

counsel;

B. Awarding Plaintiff and the proposed Class members damages, including

punitive damages where appropriate;

C. Awarding restitution and disgorgement of Defendant's revenues to Plaintiff

and the proposed Class members;




D. Awarding declaratory and injunctive relief as permitted by law or equity,

including enjoining Defendant from continuing the unlawful practices as set forth above, and

directing Defendant to identify, with Court supervision, victims of its conduct and pay them

restitution and disgorgement of all monies acquired by Defendant by means of any act or

practice declared by this Court to be wrongful;

E. Awarding attorneys' fees and costs; and

F. Providing such further relief as may be just and proper.

JUR Y D E M A ND

Plaintiff demands a trial by jury on all issues so triable.

DATED: February ___, 2013

By: ___/s/ Marc A. Wites______ Marc A. Wites Fla. Bar No.: 24783 WITES & KAPETAN, P.A. 4400 North Federal Highway Lighthouse Point, FL 33064 Tel.: (954) 570-8989 Fax: (954) 428-3929 [email protected]


Dream Water suit

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