 (Violation of New York General Business Law Section 349)   (Violations of New York General Business Law Section 350)   25.  The process undertaken by medical professionals in prescribing a custom  fit orthosis is detailed and complex.  According to the “Prescription Custom Foot  Orthoses Practice Guidelines, “ issued by the American College of Foot & Ankle  Orthopedics Medicine, the following evaluation and documentation are required to  successfully execute a treatment plan incorporating the use of custom fitted orthotics:   the assessment of the range and quality of motion and the position of the ankle  complex, the rear foot complex, and the forefoot/rear foot complex; the gross  assessment of muscle strength, with testing of specific muscles in certain pathologies;  an evaluation of the stance position; a clinical evaluation of the limb length; and a gait  evaluation.  For certain pathologies, assessment of the position, range and quality of  motion of the spine, hip complex, knee complex, fifth ray, first ray, first metatarsal- phalangeal joint, lesser metatarsal-phalangeal joints, and inter-phalangeal joints may be  necessary. See www.acfaom.org/pg1103.pdf.  Once the physical evaluation is  completed, the shape and contour of the patient’s foot are captured by either obtaining  a cast of the foot and/or by computer or mechanical imaging of the foot.  Moreover,  patient-specific information, including shoe size and width, heel height of shoe, heel lifts,  biomechanical data pertinent to the patient’s deformity, weight, age, activity level,  occupation, and diagnosis, are needed to create an appropriate custom fitted orthotic  prescription.  Id.    27.  The American Podiatric Medical Association explains the critical distinction  between a “shoe insert” and a “custom orthotic device: “Shoe inserts are any kind of non- prescription foot support designed to be worn inside a shoe.  Pre-packaged arch supports  are shoe inserts.  So are the ‘custom-made’ insoles and foot supports that you can order  online or at retail stores.  Unless the device has been prescribed by a doctor and crafted  for your specific foot, it’s a shoe insert, not a custom orthotic device – despite what the  ads might say.”  See www.apma.org/Learn/FootHealth.cfm?ItemNumber=988.   28.  Beginning in or about 2009, Defendants began marketing their Dr. Scholl’s  Custom Fit Orthotics.  Dr. Scholl’s Custom Fit Orthotic Inserts products are sold in New  York and nationwide at leading pharmacies, superstores, and other retailers, including,  among others, CVS, Walgreen’s, Walmart, K-Mart, and Bed, Bath & Beyond, as well as  are sold online directly by Amazon.com, Walgreens.com,  Walmart.com, and by many  other online sellers.     30.  The instructions on the Kiosk tell users to 1) Remove Shoes; 2) Step on  Mat; and 3) Touch Screen to Begin.  Once the user presses the touch screen to begin,  she is instructed to place her feet over the marked foot image.  By moving as directed,  the machine’s sensors purport to measure the user’s arch, pressure points, and foot  length.  After the machine takes the measurements, it usually takes less than two  minutes for the system to map the user’s data, obtain the analysis, and provide the  recommendations for the purported best custom fitted orthotics for the user’s feet.  A  variety of standardized Dr. Scholl’s orthotic inserts are stacked on shelves on the sides  of the kiosk, and the user is directed to purchase the specific model number  recommended by the machine.  The Dr. Scholl’s Custom Fit Orthotic Inserts are claimed  to reduce foot pain, knee pain, and lower back pain.   33.  Thus, although Defendants describe their product as Custom Fit Orthotic  Inserts, these inserts are nothing more than generic, pre-fabricated, mass-produced,  over-the-counter shoe inserts, and are not custom fit to a consumer’s unique physical  characteristics.   34.  The Dr. Scholl’s Custom Fit Orthotic Inserts are not inexpensive.  Rather,  a pair generally costs about $50 at discount retailers like Walmart and drugstore.com,  and as much as $70 per pair at other retailers.  Defendants assign designations not  found on their other products such as “CF440” to suggest a level of precision and  exactitude that is not present in the product.  Similar pre-fabricated shoe inserts typically  sell for about $10 at retail, such as Dr. Scholl’s own Massing Gel Work insoles, for  instance.   36.  Plaintiff purchased the Dr. Scholl’s Custom Fit Orthotic Inserts products for  his own personal use – i.e., to relieve his foot pain and aches.  Plaintiff purchased the  products because he believed, based upon the claims made on the products’ packaging  and PDPs, the Dr. Scholl’s Kiosk, and Defendants’ television commercials, that they  were actually custom fit orthotics rather than stock, manufactured shoe inserts, and he  paid a premium price for those products.    37.  Plaintiff and the class members have been and will continue to be  deceived or misled by Defendants’ deceptive representations.  Plaintiff purchased the  Dr. Scholl’s Custom Fit Orthotic Inserts products during the class period and in doing  so, read and considered the products’ PDPs and other packaging and the Dr. Scholl’s  Kiosk, and based his decision to purchase the products on the representations made on  the products’ packaging and the Kiosk, which are entirely consistent with Defendants’  nationally-run television ads for the products which Plaintiff also has viewed.   Defendants’ representations and omissions were a material factor in influencing  Plaintiff’s decisions to purchase the Dr. Scholl’s Custom Fit Orthotic Inserts products.   39.  As a result, Plaintiff and the class members have been injured in fact by  their purchase of the products they were deceived into purchasing and for which they  paid a premium price.   40.  Defendants, by contrast, have reaped enormous profits from their false  marketing and sale of the products.   41.  Plaintiff brings this action on behalf of himself and all other similarly  situated consumers.  Plaintiff expressly disclaims any intent to seek any recovery in this  action for personal injuries that he or any class member may have suffered through the  use of the Dr. Scholl’s Custom Fit Orthotic Inserts products.   42.  Plaintiff brings this action on behalf of himself and all other similarly  situated consumers in the State of New York pursuant to Rule 23 of the Federal Rules  of Civil Procedure, and seeks certification of the following class:  All consumers who, within the applicable statute of limitations period,  purchased in the State of New York any of Defendants’ Dr. Scholl’s  Custom Fit Orthotics Inserts.  Excluded from the class are Defendants,  their parents, subsidiaries, affiliates, officers and directors, and those who  purchased Dr. Scholl’s Custom Fit Orthotics Inserts products for resale.   44.  Existence and Predominance of Common Questions of Law and  Fact.  This action involves questions of law and fact common to the class.  In marketing  the Dr. Scholl’s Custom Fit Orthotics Inserts products, Defendants have engaged in an  untrue and systematic course of misrepresenting the products to consumers.  The  common legal and factual questions include, but are not limited to, the following:  •  Whether Defendants made false or misleading representations  regarding the nature and efficacy of the products;  •  Whether Defendants represented that the products were of a  particular standard or quality when they were not;  •  Whether the claims made by Defendants regarding the products  discussed above are true, or are misleading, or objectively are  reasonably likely to deceive;     •  Whether the alleged conduct constitutes violations of the law  asserted;  •  Whether Defendants engaged in false or misleading advertising;  •  Whether the class members obtained the benefits that Defendants  represented the products have;  •  Whether Plaintiff and class members have sustained monetary loss  and the proper measure of that loss; and  •  Whether, as a result of Defendants’ misconduct, the class is  entitled to monetary and statutory damages, as well as equitable  and injunctive relief.   46.  Adequacy of Representation.  Plaintiff will fairly and adequately protect  the interests of the members of the class.  Plaintiff purchased the Dr. Scholl’s Custom  Fit Orthotics Inserts; and he relied upon the deceptive representations that were made  in Defendants’ marketing and advertising campaign, and on the labels on each and  every package.  As a result, Plaintiff has suffered an injury in fact as a result of  Defendants’ conduct, as did all class members who purchased the Dr. Scholl’s Custom  Fit Orthotics Inserts products.  Plaintiff has retained counsel 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.     48.  Plaintiff seeks monetary damages, including statutory damages on behalf  of the entire class, and other equitable relief on grounds generally applicable to the  entire class, to enjoin and prevent Defendants from engaging in the acts described.  Unless a class is certified, Defendants will be allowed to profit from their deceptive  practices, while Plaintiff and the members of the class will have suffered damages.   Unless a class-wide injunction is issued, Defendants will continue to commit the  violations alleged, and the members of the class and the general public will continue to  be deceived.   49.  Defendants have acted and refused to act on grounds generally applicable  to the class, making final injunctive relief appropriate with respect to the class as a  whole.  50.  On behalf of himself and the members of the New York Class, as defined  in Paragraph 42 above, Plaintiff hereby realleges, and incorporates by reference as  though set forth fully herein, the allegations contained in Paragraphs 1 through 49  above.   52.  Defendants have deceptively advertised, marketed, promoted, distributed,  and sold their Custom Fit Orthotics Inserts products.   53.  Plaintiff and the Class have been aggrieved by and have suffered losses  as a result of Defendants’ violations of Section 349 of the New York General Business  Law.  By virtue of the foregoing unfair, unconscionable, and deceptive acts in the  conduct of trade or commerce, Plaintiff and the members of the Class have been  substantially injured in the amount of the purchase prices for the Dr. Scholl’s Custom Fit  Orthotics Inserts products that they paid, or in the alternative, have been damaged by  paying more for the Custom Fit Orthotics Inserts products that they purchased than for  other similar cushioning products.   54.  Defendants continue to violate Section 349 of the New York General  Business Law, and continue to aggrieve the members of the Class.   56.  Plaintiff further demands injunctive relief enjoining Defendants from  continuing to engage in, use, or employ any act, including advertisements, packaging,  or other representations, prohibited by Section 349 of the New York General Business  Law.    57.  On behalf of himself and the members of the New York Class, as defined  in Paragraph 42 above, Plaintiff hereby realleges, and incorporates by reference as  though set forth fully herein, the allegations contained in Paragraphs 1 through 56  above.   58.  New York’s General Business Law Section 350 prohibits “[f]alse  advertising in the conduct of any business, trade or commerce or in the furnishing of  any service.”   60.  Defendants’ labeling, marketing, and advertising of the Dr. Scholl’s  Custom Fit Orthotic Inserts are “misleading in a material respect,” and thus “false  advertising,” as they falsely represent the products to be Custom Fit Orthotic Inserts  when, in reality, they are nothing more than generic, pre-fabricated, mass-produced,  over-the-counter shoe inserts and are not custom fit to a consumer’s unique physical  characteristics.    61.  Defendants continue to violate Section 350 of the New York General  Business Law, and continue to aggrieve the members of the Class.   62.  By reason of the foregoing, Defendants’ conduct, as alleged herein,  constitutes deceptive acts and practices in violation of Section 350 of the New York  General Business Law, and Defendants are liable to Plaintiff and the Class for the  actual damages that they have suffered as a result of Defendants’ actions, the amount  of such damages to be determined at trial, statutory damages, plus treble damages, and  attorneys' fees and costs.    