Dream Water Suit

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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.
__________________________________/

CLASS ACTI ON COMPL AI NT
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 'Dream Products or 'DeIendant), and alleges as follows:
NATURE OF T HE AC TI ON

1. Defendant is a Florida company that manufactures, markets, and sells bottled
water known as 'Dream Water. DeIendant claims Dream Water is an all-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,
Iall asleep or stay asleep and that Dream Water will 'transport |users| to a sound and restful
sleep. Dream Water, according to DeIendant, has no side eIIects and provides its amazing
!ase 1:13-cv-20625-KMW Document 1 Entered on FLSD Docket 02/21/2013 Page 1 of 15
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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
DeIendant has no such support Ior its baseless representations; and, in Iact, DeIendant`s
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
'snoozeberry, 'nighttea night, and 'paradise pm. It comes in 2.5 ounce 'sleep shots. A
twelve- pack oI 'sleep shots costs $38.99.
4. PlaintiII was aggrieved by DeIendant`s deceptive conduct. Plaintiff was
exposed to DeIendant`s misrepresentations about Dream Water, bought and paid Ior Dream
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Phone: (954) 570-8989; Fax: (954) 354-0205

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 DeIendant`s' advertising, including its labeling, and unjust enrichment.
JURISDI CTI ON AND VENUE

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.

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Phone: (954) 570-8989; Fax: (954) 354-0205

PARTI 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 DeIendant`s 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. DeIendant`s create in Florida and then disseminate to consumers and business
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.
ADDI TI ONAL SUBST ATI VE AL L E GATI ONS
'UHDP:DWHUV Unfai r and Deceptive Claims

11. In an article referenced on DeIendant`s website, 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
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Phone: (954) 570-8989; Fax: (954) 354-0205

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
colorIul letters: '0-Calorie Sleep and Relaxation. Users are instructed to 'drink to dream.
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 Dream Water is 'all-natural and that it is
'saIe as a warm glass oI milk. But Dream Water includes and promotes the use oI
melatonin. Medical proIessionals note that melatonin has 'inconsistent eIIects as a sleep
aid, that '|t|here are many unanswered questions about melatonin and that melatonin may
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
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Phone: (954) 570-8989; Fax: (954) 354-0205

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.
Defendant does not disclose any oI melatonin`s potential negative eIIects or implications.
15. Dream Water`s use oI melatonin also calls into question its claim that Dream
Water is 'all-natural. Naturally-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 saw DeIendant`s bold claims and
promises about its Dream Water products and purchased DeIendant`s products as a result.
Plaintiff and the Class drank the Dream Water products and received none oI the product`s
purported benefits whatsoever.
17. Application oI Florida law to DeIendant`s nationwide activities is appropriate
in this case because oI DeIendant`s extensive marketing eIIorts 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. Given DeIendant`s purposeIul
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.
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Phone: (954) 570-8989; Fax: (954) 354-0205

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.
CL ASS ACT I ON AL L E GATI ONS
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
GLVVHPLQDWHG ([FOXGHG IURP WKH &ODVV DUH 'HIHQGDQWV I nsiders 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
WKH &ODVV DUH 'HIHQGDQWV I nsiders 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,
'DeIendant Insiders); the Judge assigned to this action, and any member of the Judge's
immediate family.
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Phone: (954) 570-8989; Fax: (954) 354-0205

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) Whether Defendant was engaged in "trade or commerce as defined by
Section 501.203, Fla. Stat.;
(c) Whether Defendant mislabeled Dream Water bottled water;
(d) Whether DeIendant knew or should have known that Dream Water`s label was
false;
(e) Whether Defendant conducted tests to determine the accuracy of Dream
Water`s label;
(f) Whether DeIendant`s marketing and sale oI Dream Water under a Ialse and
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;
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Phone: (954) 570-8989; Fax: (954) 354-0205

(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
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Phone: (954) 570-8989; Fax: (954) 354-0205

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
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Phone: (954) 570-8989; Fax: (954) 354-0205

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.
COUNT I
F OR VI OL ATI ONS OF T HE F L ORI DA DE C EPTI VE AND UNF AI R TRADE
PRACTI CES ACT, F L ORI DA ST ATUT ES SE CTI ON 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."
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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.

COUNT I I
BRE ACH OF E XPRESS WARRANT 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, their 'guarantee, and through
their marketing campaign, as described above. This product labeling and advertising
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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.
COUNT I I I
UNJUST E NRI CHME NT

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.
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Phone: (954) 570-8989; Fax: (954) 354-0205

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.
PRAY ER F OR RE 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;
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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.
JURY DE MAND
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
mwites@wklawyers.com


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UNITED STATES DISTRICT COURT

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