Re: 7/7/00 - [KERA] Complaint for Libel and Violation of Cal. B & P Code § 17200, et seq.
FILED
2000 JUL - 7 PM 2:57
TOD L. GAMLEN (SBN 83458)
KEITH L. WURSTER (SBN 198918)
BAKER & MCKENZIE
660 Hansen Way
Palo Alto, CA 94304
Telephone: (650) 856-2400
Facsimile: (650) 856-9299
Attorneys for Plaintiff
KERAVISION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SANTA CLARA
KERAVISION, INC.,
Plaintiff,
V,
JOHN DOE 1, a/k/a "Bogatiy"; JOHN
DOE 2, a/k/a "Intacvision"; JOHN
DOE 3, a/k/a "Lasikvision"; JOHN
DOE 4 a/k/a "Bikinghawk"; and ROES 1-
20, inclusive,
Defendants.
CASE NO. CV790979
COMPLAINT FOR LIBEL AND VIOLATION
OF CAL. B & P CODE § 17200, et seq.
Plaintiff, KERAVISION, INC. ("KeraVision") alleges as follows:
NATURE OF ACTION
This is an action for injunctive relief and damages arising out of defendants' willful dissemination of false and misleading statements of fact concerning KeraVision's financial status and the quality of KeraVision's products in violation of California Civil Code § 45 et. seq., and California Business & Professions Code§' 17200, et seq.
1. This Court has jurisdiction over this action by virtue of the fact that this is a civil action wherein the matter in controversy, exclusive of interest, exceeds $25,000. Venue is properly laid in this county pursuant to California Code of Civil Procedure § 395 because the injury to KeraVision that gives rise to the claim herein was suffered in this county and because a substantial part of the events giving rise to this claim occurred in this county.
PARTIES
3. KeraVision is a Delaware corporation with its principal place of business at 48630 Milmont Drive, Fremont, California 94538-7353. KeraVision sells micro-thin prescription inserts for treatment of nearsightedness under the trademark INTACS™.
4. KeraVision does not know the true name or capacity of defendant John Doe 1 a/k/a "Bogatiy", and therefore sues this defendant by a fictitious name. John Doe 1 is responsible for the matters alleged in this Complaint and, on information and belief, transacts business in this judicial district and has sufficient contacts with this district to subject him to personal jurisdiction. KeraVision will amend this Complaint to identify John Doe 1's true name and capacity as soon as it is ascertained.
5. KeraVision does not know the true name or capacity of defendant John Doe 2 a/k/a "Intacvision", and therefore sues this defendant by a fictitious name. John Doe 2 is responsible for the matters alleged in this Complaint and, on information and belief, transacts business in this judicial district and has sufficient contacts with this district to subject him to personal jurisdiction. KeraVision will amend this Complaint to identify John Doe 2's true name and capacity as soon as it is ascertained.
6. KeraVision does not know the true name or capacity of defendant John Doe 3 a/k/a "Lasikvision", and therefore sues this defendant by a fictitious name. John Doe 3 is responsible for the matters alleged in this Complaint and, on information and belief, transacts business in this judicial district and has sufficient contacts with this district to subject him to personal jurisdiction. KeraVision will amend this Complaint to identify John Doe 3's true name and capacity as soon as it is ascertained.
7. KeraVision does not know the true name or capacity of defendant John Doe 4 a/k/a "Bikinghawk", and therefore sues this defendant by a fictitious name. John Doe 4 is responsible for the matters alleged in this Complaint and, on information and belief, transacted business in this judicial district and has sufficient contacts with this district to subject him to personal jurisdiction. KeraVision will amend this Complaint to identify John Doe 4's true name and capacity as soon as it is ascertained.
8. Plaintiff does not know the true names of defendants sued herein as ROES 1-20 inclusive and the nature of their wrongful conduct. Therefore, plaintiff sues such ROE defendants by such fictitious names. Plaintiff will seek leave of Court to amend this Complaint to allege their true names, capacities and wrongful conduct when such is ascertained.
FIRST CAUSE OF ACTION
(Libel)
9. The allegations of Paragraphs 1-8 are incorporated by reference as if fully set forth herein.
10. KeraVision was incorporated in 1986 to develop and market products for treating vision problems. These products employ the concept of implanting micro-thin prescription inserts inside the cornea of the eye to reshape the cornea in a manner that alleviates the effects of nearsightedness, also known as myopia. These inserts, known as INTACS™, are designed to be removable should complications arise from their insertion or should the patient decide after insertion that they would prefer to use other methods, such as glasses or contact lenses, to ameliorate the effects of their myopia.
11. The INTACS™ micro-thin prescription inserts (referred to herein as "INTACS") were approved by the Food and Drug Administration ("FDA") for U.S. sales in April 1999, after extensive clinical trials both in the U.S. and abroad. Since approval by the FDA, over 2300 procedures to insert INTACS have been performed. Results from these procedures demonstrate substantial improvement in the patient's visual acuity, with results including, for many patients, 20/20 vision after such procedure. INTACS were selected by CNN and Health Magazine as one of the top ten new medical products of 1999.
12. Defendants are individuals who regularly post messages on an Internet message board hosted by Yahoo!, Inc., located in Santa Clara, California.
13. Defendant John Doe I, a/k/a Bogatiy has, on numerous occasions, disseminated false and misleading information about KeraVision and INTACS. This false and misleading information disseminated by John Doe a/k/a Bogatiy includes repeated false statements that KeraVision is not financially solvent and will shortly be forced to file for bankruptcy, that INTACS regularly causes pain and discomfort to patients, and that doctors are uninterested and unwilling to recommend INTACS to their patients as a treatment for myopia, when none of these statements is true.
14. Defendant John Doe 1 has also, on numerous occasions, posted a purported testimonial from a patient on whom the procedure for insertion of INTACS was allegedly performed, describing, in graphic terms, the pain that the patient allegedly suffered as a result of the procedure. On information and belief, this testimonial was fabricated by defendant John Doe 1 and does not reflect a true statement given by any actual patient on whom the procedure for placement of INTACS was in fact performed.
15. On information and belief, defendant John Doe 1 disseminated these false and misleading statements with knowledge of their falsity and with intent to injure KeraVision in its business.
16. Defendant John Doe 2 a/k/a Intacvision has, on numerous occasions, disseminated false and misleading information about KeraVision and INTACS. Specifically, defendant John Doe 2 has on numerous occasions, identified himself or herself as a patient who formerly used INTACS and who had the INTACS exchanged because of alleged pain and discomfort; and, states that he will shortly have them removed. On information ,and belief, defendant John Doe 2 has never received INTACS. Defendant John Doe 2 has also disseminated false and misleading information about the frequency of complications associated with use of INTACS.
17. On information and belief, defendant John Doe 2 disseminated these false and misleading statements with knowledge of their falsity and with intent to injure KeraVision in its business.
18. Defendant John Doe 3 a/k/a Lasikvision has, on numerous occasions, disseminated false and misleading information about KeraVision mid INTACS. Specifically, defendant John Doe 3 has, on numerous occasions, stated that INTACS have an unacceptably high complication rate, that they have not found acceptance in the medical community, and that INTACS frequently induce astigmatism in patients, when none of these statements is true.
19. On information and belief, defendant John Doe 3 disseminated these false and misleading statements with knowledge of their falsity and with intent to injure KeraVision in its business.
20. Defendant John Doe 4, a/k/a Bikinghawk has, on numerous occasions, disseminated false and misleading information about KeraVision and INTACS. Specifically, defendant John Doe 4 has represented that he or she is a former employee or representative of KeraVision who was paid to promote INTACS, but who now believes that INTACS have no value. Defendant John Doe 4 also has represented that he or she is suffering pain and discomfort as a result of the INTACS. On information and belief, defendant John Doe 4 has never been an employee or representative of KeraVision and has never used INTACS.
21. By reason of the foregoing acts and conduct of defendants John Does 1-4, KeraVision has and will suffer irreparable harm and damage and will be without an adequate remedy at law.
22. KeraVision is entitled to recover from defendants the amount of actual damages sustained by KeraVision as a result of defendants' wrongful acts as alleged herein above. KeraVision has been damaged by the defendants' conduct in an as yet unascertained amount. Because defendants' misconduct was willful and done specifically to injure KeraVision, KeraVision is entitled to an award of damages and attorneys' fees against all defendants.
SECOND CAUSE OF ACTION
(Violation of Cal. B&P Code § 17200, et seq.)
23. The allegations of Paragraphs 1-22 are incorporated by reference as if fully set forth herein.
24. The acts of defendants, and each of them, constitute unlawful, unfair and fraudulent business practices in violation of California Business & Professions Code ' 17200, et seq.
25. Plaintiff has been damaged and will continue to be damaged by defendants' unlawful, unfair and fraudulent business practices, as alleged above.
26. Plaintiff is entitled to an injunction prohibiting defendants, and each of them, from continuing the practices described above.
WHEREFORE, KeraVision prays for judgment against the defendants as follows:
1. For an injunction requiring defendants and their respective agents, servants, employees, officers and assigns and all other persons in active concert or participation from them to refrain from disseminating false or misleading statements about KeraVision or INTACS on any Interact message board, including but not limited to message boards administered by Yahoo!, lnc., and requiring defendants to disseminate notices correcting and retracting all false and misleading statements previously made;
2. For damages suffered by KeraVision as a result or defendants' libelous statements;
3. For cost of suit herein incurred, including but not limited to reasonable attorneys' fees; and,
4. For such other and further relief as this Court deems just and proper.
Dated: July 7, 2000
BAKER & McKENZIE
By: (signature)
TOD L. GAMLEN
Attorneys for Plaintiff
KERAVISION
Of counsel:
Daniel J. O'Connor
Sanjiv D. Sarwate
BAKER & McKENZIE
One Prudential Plaza
130 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2790
Facsimile: (312) 861-2899
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