7

MICHAEL N. FEUER, Los Angeles City Attorney, SBN 111529
WILFREDO R. RIVERA, Deputy Chief, SBN 186890
CHRISTINA V. TUSAN, Supervising DCA, SBN 192203
WILLIAM R. PLETCHER, Deputy City Attorney, SBN 212664
MIGUEL J. RUIZ, Deputy City Attorney, SBN 240387
OFFICE OF THE LOS ANGELES CITY ATTORNEY
CRIMINAL AND SPECIAL LITIGATION BRANCH
200 North Main Street, 500 City Hall East
Los Angeles, California 90012-4131
Telephone (213) 978-8707/Facsimile (213) 978-8111
email: miguel.j.ruiz@lacity.org

8

Attorneys for Plaintiff, the People of the State of California

1
2
3
4
5
6

9

SUPERIOR COURT OF THE STATE OF CALIFORNIA

10

COUNTY OF LOS ANGELES, CENTRAL DISTRICT

11

12
Electronically Received 04/21/2020 02:31 PM

[NO FEE - Gov. Code§ 6103)

THE PEOPLE OF THE STATE OF
CALIFORNIA,

13

Plaintiff,

14
15
16

17

vs.
ROOTMD, INC., a California
Corporation; and DOES 1 through 25,
inclusive,

18
19
20
21
22
23

Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No.:

20STCV15180

STIPULATION FOR ENTRY OF FINAL
JUDGMENT AND PERMANENT
INJUNCTION; EXHIBIT A:
[PROPOSED] FINAL JUDGMENT AND
PERMANENT INJUNCTION

)
)
)
)

)
Complaint Filed: April __, 2020
)
None set.
Trial:
)

______ ______ _ ))

24
25
26
27
28
STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION

 1

STIPULATION FOR ENTRY OF FINAL JUDGMENT AND

2

PERMANENT INJUNCTION

3

IT IS HEREBY STIPULATED by and between Plaintiff, the People of the State of

4

California (the "People") and Defendant, RootMD, Inc. ("Defendant" and Defendant together

5

with the People, the "Parties"), that the Parties have agreed to settle the civil law enforcement

6

action entitled People v. RootMD, Inc. et al. ("Enforcement Action") pursuant to the terms

7

contained in this Stipulation for Entry of Final Judgment ("Stipulation"), and the concurrently

8

filed [Proposed] Final Judgment and Permanent Injunction ("Final Judgment"), which is attached

9

hereto as Exhibit A.

10

WHEREAS, the People filed a Complaint in this matter, commencing this Enforcement

11

Action, which Complaint included allegations that, through marketing, advertising, distributing,

12

and selling COVID-19 Self-Collection Test Kits to California consumers, Defendant has engaged

13

in unfair competition in violation of Business and Professions Code section 17200 et seq. and

14

false or misleading advertising in violation of Business and Professions Code section 17500 et

15

seq. by selling or offering for sale or making and disseminating untrue or misleading statements

16

about the availability of FDA-approved, at-home self-collection test kits for COVID-19;

17

WHEREAS, for purposes of this Stipulation and the Final Judgment, Defendants neither

18

admit nor deny the allegations set forth in the Complaint, with the exception that Defendants

19

admit all facts stated in paragraphs 27-29 of the Complaint necessary to establish jurisdiction;

20

WHEREAS, the Parties have· agreed that entry of the Final Judgment, as provided with

21

this Stipulation, will resolve all matters in the Enforcement Action without need for any

22

additional trial, hearing, fact-finding by the Court, or adjudication of any issue of law or fact;

23

WHEREAS, the Parties have stipulated that the Final Judgment may be signed by a judge

24

commissioner, or judge pro tern of the Los Angeles County Superior Court, pursuant to Code of

25

Civil Procedure section 579;

26

WHEREAS, the Parties stipulate that the Court retains continuing jurisdiction both as

27

authorized by California Code of Civil Procedure 664.6 and under the Court's inherent authority

28

to enforce this Stipulation and the Final Judgment;
1
STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION

 1
2
3

NOW, THEREFORE, in consideration of the covenants and agreements contained in this
Stipulation, the Parties agree as follows:
1.

The Final Judgment is a reasonable compromise of the issues between the Parties

4

as reflected in the Complaint, negotiated at arm's length and with the opportunity for all Parties to

5

avail themselves of the assistance of counsel.

6

2.

The Final Judgment is a final and binding resolution and settlement of all known

7

claims, violations, and causes of action arising from the allegations set forth in the Complaint that

8

the People could assert against Defendant, including its parents, subsidiaries, affiliates, agents,

9

representatives, directors, officers and employees, up to the date of entry of the Final Judgment

10

("Covered Matters"). Any claim, violation, or cause of action that is not a Covered Matter is a

11

"Reserved Claim." Nothing in the Final Judgment shall prohibit the People of the State of

12

California from bringing any Reserved Claim, including but not limited to, any criminal or civil

13

law enforcement prosecution or administrative process related to a Reserved Claim.

14
15

16

3.

This Court may enter the Final Judgment before the taking of any proof and

without further briefing, argument, trial, or adjudication of any fact or law.

4.

Defendant and its officers, directors, employees, agents, representatives, partners,

17

successors and assigns, and all persons, corporations, subsequent purchasers, or other entities,

18

acting by, through, under, in concert, on behalf of, or in participation with or for them, waive all

19

rights to challenge, contest, or set aside the validity of the Final Judgment, including through any

20

collateral attack, and further waive their right to appeal from the Final Judgment. Defendant and

21

its successors and assigns further waive and release any claim they may have against the People,

22

their attorneys, employees, representatives or agents arising out of the commencement or conduct

23

of the Enforcement Action.

24

5.

Neither the Final Judgment, nor any subpart of the Final Judgment, is intended to

25

be for the benefit of any third party, and no third party shall have the right to rely upon or enforce

26

any of the terms in this Stipulation, nor in the Final Judgment.

27

//

28

//
2

STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION

 1

JURISDICTION AND STANDING

2

6.

The Court has jurisdiction over Defendant and the subject matter of this action.

3

7.

The Los Angeles City Attorney's Office has standing to bring this action in the

4

name of the People of the State of California.

5

DEFINITIONS

8.

6

7

The Parties agree that the following definitions shall apply to this Stipulation and

the Final Judgment:

8

a. "City" refers to the City of Los Angeles, both geographically and as a

9

municipal corporation.

10

b. "City Attorney's Office" refers to the Los Angeles City Attorney's Office.

11

c. "COVID-19" refers to the novel coronavirus SARS-CoV-2.

12

d. "Defendant" means Defendant RootMD, Inc., a California corporation.

13

e. "Enforcement Action" refers to this civil law enforcement action, entitled

14

People v. RootMD, Inc., et al.

15

f. FDA means the federal Food and Drug Administration.

16

g. "Medical device" has the same meaning as "device" under Health and Safety

17

Code section 109920.

18

h. "People" refers to the People of the State of California. (Gov. Code,§ 100.)

19

1.

POC means point-of-care, that is, a medical facility or medical practice under

20

supervision of a doctor or appropriate medical professional, or as otherwise

21

defmed by FDA rule or regulation.

22

J. "At-home" means a private residence or dwelling and/or any other location that

23

is not a POC.

24

k. "COVID-19 Self-Collection Test Kit" refers to the COVID-19 IgM/lgG

25

"exposure and immunity" Test advertised and previously sold by Defendant,

26

including at http://www.rootmd.com.

27

II

28

//
3
STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION

 DEFENDANT'S COSTS

1
2
3

9.

Defendant shall bear its own attorneys' fees, costs, and any other expenses related

to this Enforcement Action.

4
5

ALLEGATIONS
10.

The People's Complaint alleges that, through marketing, advertising, distributing,

6

and selling the COVID-19 Self-Collection Test Kit to California consumers, Defendant has

7

engaged in unfair competition in violation of Business and Professions Code section 17200 et seq.

8

and false or misleading advertising in violation of Business and Professions Code section 17500

9

et seq. by selling or offering for sale or making and disseminating untrue or misleading statements

IO

about availability of FDA-approved, at-home test kits for COVID-19.

INJUNCTIVE RELIEF

11
12

11.

Pursuant to Business and Professions Code sections 17203, 17204, 17535, and the

13

Court's inherent equitable powers, Defendant, and each of its agents, employees, officers,

14

representatives, partners and any person acting in concert or in participation with them, agree that,

15

immediately upon entry of the Final Judgment in this action (the "Effective Date"), they will be

16

permanently enjoined, subject to the injunction termination provisions in Paragraph 13, from:

17

a. Violating Business and Professions Code section 17200 et seq. by engaging in

18

unlawful business practices related to false or misleading advertising or sale of

19

COVID-19 Self-Collection Test Kit or any other "at-home" self-collection

20

COVID-19 exposure and immunity test kit, including not limited to selling or

21

offering for sale any medical devices such as the COVID-19 Self-Collection Test

22

Kit that are not FDA-approved or subject to exemption; and

23

b. Violating Business and Professions Code section 17500 et seq. by making or

24

disseminating, or causing to be made or disseminated, any untrue or misleading

25

statements about any COVID-19 testing kit, including but not limited to at

26

http://rootmd.com and

27
28

c. Violating any federal, California, Los Angeles County, or Los Angeles City law,
ordinance, or regulation.
4

STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION

 12.

Pursuant to Business and Professions Code sections 17203, 17204, 17535, and the

2

Court,s inherent equitable powers, Defendant, and each of its agents, employees, officers,

3

representatives, partners and any person acting in concert or in participation with them, further

4

agree that they will refund directly to consumers any monies Defendant collected in exchange for

5

the sale of any COVID-19 Self-Collection Test Kit ("Refunds"), other than such circumstances

6

where the test kit was administered at a facility supervised by Defendant (i.e., a POC). These

7

Refunds shall occur within twenty (20) days of execution of this Stipulation for Entry of

8

Judgment. Defendant shall notify the People that they have completed these Refunds by

9

providing notice to the designated representatives of the People set forth in paragraph 13(c)(i).

IO

Defendant agrees to issue Refunds pursuant to this paragraph even if the injunction terminates

11

pursuant to paragraph 13 prior to the 20 days after entry of the Final Judgment.

12

13.

13

conditions:

14

This injunction shall terminate immediately if Defendant meets the following

a. Defendant achieves appropriate FDA regulatory approvals and/or qualifies for an

15

appropriate exemption under FDA regulations to market and sell the COVID-19

16

Self-Collection Test Kit or any similar "at-home" COVID-19 testing kit at any

17

non-POC locations, that is, at consumer's homes or at locations that are not POC

18

locations;

19
20
21

b. Defendant complies with all applicable California law requirements to market
and sell medical devices in California;
c. Defendant provides notice under penalty of perjury to the People it has met all

22

FDA and California law requirements to market and sell the COVID-19 Self-

23

Collection Test Kit or any similar "at-home" COVID-19 testing kit at non-POC

24

locations. In recognition of the current COVID-19 pandemic, notice under this

25

sub-paragraph shall be provided via email to:

26

Christina V. Tusan

27

Supervising Deputy City Attorney

28

Los Angeles City Attorney's Office
5
STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION

 1

Christina. Tusan@lacity.org

2

and

3

William R. Pletcher

4

Deputy City Attorney

5

Los Angeles City Attorney's Office

6

William.Pletcher@lacity.org

7
8

9

CIVIL PENAL TIES
14.

Defendant agrees to pay civil penalties in this Enforcement Action pursuant to the

UCL and the FAL in the total amount of five-thousand dollars ($5,000)], and shall make payment

10

of these civil penalties in accordance with Business and Professions Code sections 17206 and

11

17536, in accordance with the following schedule:

12

15.

No later than five (5) days after the entry of the Final Judgment and Permanent

13

Injunction, Defendant shall deliver payments totaling five-thousand dollars ($5,000), in the sums

14

of: (i) two-thousand five hundred ($2,500), payable to "City of Los Angeles," and (ii) two-

15

thousand five hundred ($2,500), payable to "Los Angeles County Treasurer and Tax Collector."

16

16.

Defendant shall deliver the payments referenced in Paragraph 15 of this Stipulation

17

in cashier's checks, wire transfers, or other certified funds delivered by overnight mail or courier

18

to: Christina Tusan, Supervising Deputy City Attorney, Office of the Los Angeles City Attorney,

19

Criminal and Special Litigation Branch, 200 N. Main Street, 500 City Hall East, Los Angeles,

20

California 90012-4131.

RETENTION OF JURISDICTION AND ENFORCEMENT

21

22

17.

Pursuant to California Code of Civil Procedure section 664.6 and the Court's

23

inherent authority, the Court shall retain jurisdiction over this Enforcement Action to entertain

24

such further proceedings and enter such further orders as may be necessary or appropriate to

25

enforce the Final Judgment. The People shall retain exclusive jurisdiction to enforce the terms of

26

the Final Judgment, including, the ability to obtain its attorneys' fees, costs, and penalties.

27
28

18.

Defendant shall be liable for reasonable attorneys' fees and costs incurred by the

People for the enforcement of any violation of the injunction set forth in the Final Judgment.
6
STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION

 II

DocuSign Envelope ID: C20CAF7B-3703-4C40-A346-66337D432DB7

2

STIPULATED AND AGREED TO BY:

3

Dated: _______ , 2020

4

THE PEOPLE OF THE STATE OF CALIFORNIA

5

By~ ~ 7 / ~

6

Christina V. Tusan, Supervising Deputy City Attorney
Los Angeles City Attorney ' s Office
Attorney for Plaintiff, THE PEOPLE OF THE STATE
OF CALIFORNIA

7

8
4/20/2020

9

Dated: _ _ _ _ _ _ _, 2020

RO~ lMQ,J:~C.

10

B

11

y

~ luur s~~
239F IC 18368B4CC...

12

13

APPROVED AS TO FORM

14

4/20/2020
Date d: _
_ _ _ _ _ __ , 2020

15

U DocuSlgoed
B : pU'Yi l\tthud:
by:

Atton1~y1&8fflt6ffefendant RootMD, Inc.

16
17

18

19

20
21

22
23
24

25

26
27
28
7
TIPULATIO

FOR ENTRY OF FI AL JUDGMENT AND PERMANE T JNJUNCTIO

 EXHIBIT A

l

2
3

4
5
6

7

SUPERIOR COURT OF THE STATE OF CALIFORNIA

8

COUNTY OF LOS ANGELES, CENTRAL DISTRICT

9

10

THE PEOPLE OF THE STATE OF
CALIFORNIA,

11

Plaintiff,
12
13
14
15

vs.
ROOTMD, INC., a California
Corporation; and DOES 1 through 25,
inclusive,

16
17

Defendants.

18
19

20
21
22

--------------

) Case No.:
)
) [PROPOSED] FINAL JUDGMENT AND
) PERMANENT INJUNCTION
)
)
)
)

)
)
)
)
)
) Complaint Filed: April__, 2020
None set.
) Trial:
)
)
)
)
)

Upon the submission of a joint stipulation from Plaintiff, the People of the State of

23

California (the "People"), and Defendant, RootMD, Inc. ("Defendant" and Defendant together

24

with the People, the "Parties"), which stipulation, in order to resolve this matter, requests entry of

25

this Final Judgment and Permanent Injunction ("Final Judgment") at the soonest possible date

26

convenient for the Court, and having considered the joint stipulation, the record in this matter,

27

arguments of counsel, if any, and for good cause,

28

[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION

 1

IT IS HEREBY ORDERED, ADJUDGED, and DECREED as follows:

2

JURISDICTION AND STANDING

3
4

1.

The Court has jurisdiction over Defendant and the subject matter of this action.

5

2.

The Los Angeles City Attorney's Office has standing to bring this action in the

6

name of the People of the State of California.

DEFINITIONS

7
8
9

3.

The following definitions shall apply to this Stipulation and the Final Judgment:
a. "City" refers to the City of Los Angeles, both geographically and as a

10

municipal corporation.

11

b. "City Attorney's Office" refers to the Los Angeles City Attorney's Office.

12

c. "COVID-19" refers to the novel coronavirus SARS-CoV-2.

13

d. "Defendant" means Defendant RootMD, Inc., a California corporation.

14

e. "Enforcement Action" refers to this civil law enforcement action, entitled

People v. RootMD, Inc., et al.

15
16

f.

17

g. "Medical device" has the same meaning as "device" under Health and Safety

18

FDA means the federal Food and Drug Administration.

Code section 109920.

19

h. "People" refers to the People of the State of California. (Gov. Code,§ 100.)

20

1.

POC means point-of-care, that is, a medical facility or medical practice under

21

supervision of a doctor or appropriate medical professional, or as otherwise

22

defined by FDA rule or regulation.

23
24
25

J.

"At-home" means a private residence or dwelling and/or any other location that
is not aPOC.

k. "COVID-19 Self-Collection Test Kit" refers to the COVID-19 lgM/IgG

26

"exposure and immunity" Test advertised and previously sold by Defendant,

27

including at http://www.rootmd.com.

28
1
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION

 DEFENDANT'S COSTS

1
2

3

4.

Defendant shall bear its own attorneys' fees, costs, and any other expenses related

to this Enforcement Action.

4

5

ALLEGATIONS

5.

The People's Complaint alleges that, through marketing, advertising, distributing,

6

and selling the COVID-19 Self-Collection Test Kit to California consumers, Defendant has

7

engaged in unfair competition in violation of Business and Professions Code section 17200 et seq.

8

and false or misleading advertising in violation of Business and Professions Code section 17500

9

et seq. by selling or offering for sale or making and disseminating untrue or misleading statements

IO

about availability of FDA-approved, at-home test kits for COVID-19.

11
12

INJUNCTIVE RELIEF

6.

Pursuant to Business and Professions Code sections 17203, 17204, 17535, and the

13

Court's inherent equitable powers, Defendant, and each of its agents, employees, officers,

14

representatives, partners and any person acting in concert or in participation with them, agree that,

15

immediately upon entry of the Final Judgment in this action (the "Effective Date"), they will be

16

permanently enjoined, subject to the injunction termination provisions in Paragraph 13, from:

17

a. Violating Business and Professions Code section 17200 et seq. by engaging in

18

unlawful business practices related to false or misleading advertising or sale of

19

COVID-19 Self-Collection Test Kit or any other "at-home" self-collection

20

COVID-19 exposure and immunity test kit, including not limited to selling or

21

offering for sale any medical devices such as the COVID-19 Self-Collection Test

22

Kit that are not FDA-approved or subject to exemption; and

23

b. Violating Business and Professions Code section 17500 et seq. by making or

24

disseminating, or causing to be made or disseminated, any untrue or misleading

25

statements about any COVID-19 testing kit, including but not limited to at

26

http://rootmd.com and

27
28

c. Violating any federal, California, Los Angeles County, or Los Angeles City law,
ordinance, or regulation.
2
[PROPOSED} FINAL JUDGMENTAND PERMANENT INJUNCTION

 1

7.

Pursuant to Business and Professions Code sections 17203, 17204, 17535, and the

2

Court's inherent equitable powers, Defendant, and each of its agents, employees, officers,

3

representatives, partners and any person acting in concert or in participation with them, are

4

ordered to refund directly to consumers any monies Defendant collected in exchange for the sale

5

of any COVID-19 Self-Collection Test Kit ("Refunds"), other than such circumstances where the

6

test kit was administered at a facility supervised by Defendant (i.e., a POC). These Refunds shall

7

occur within twenty (20) days of execution of this Stipulation for Entry of Judgment. Defendant

8

shall notify the People that they have completed these Refunds by providing notice to the

9

designated representatives of the People set forth in paragraph 13(c)(i). Defendant is further

10

ordered to issue Refunds pursuant to this paragraph even if the injunction terminates pursuant to

11

paragraph 13 prior to the 20 days after entry of the Final Judgment.

12
13
14

8.

This injunction shall terminate immediately if Defendant meets the following

conditions:
a. Defendant achieves appropriate FDA regulatory approvals and/or qualifies for an

15

appropriate exemption under FDA regulations to market and sell the COVID-19

16

Self-Collection Test Kit or any similar "at-home" COVID-19 testing kit at any

17

non-POC locations, that is, at consumer's homes or at locations that are not POC

18

locations;

19
20
21

b. Defendant complies with all applicable California law requirements to market
and sell medical devices in California;
c. Defendant provides notice under penalty of perjury to the People it has met all

22

FDA and California law requirements to market and sell the COVID-19 Self-

23

Collection Test Kit or any similar "at-home" COVID-19 testing kit at non-POC

24

locations. In recognition of the current COVID-19 pandemic, notice under this

25

sub-paragraph shall be provided via email to:

26

Christina V. Tusan

27

Supervising Deputy City Attorney

28

Los Angeles City Attorney's Office
3
(PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION

 1

Christina. Tusan@lacity.org

2

and

3

William R. Pletcher

4

Deputy City Attorney

5

Los Angeles City Attorney's Office

6

William.Pletcher@lacity.org

CML PENAL TIES

7

9.

8

Defendant is ordered to pay civil penalties in this Enforcement Action pursuant to

9

the UCL and the FAL in the total amount of five-thousand dollars ($5,000), and shall make

10

payment of these civil penalties in accordance with Business and Professions Code sections

11

17206 and I 7536, in accordance with the following schedule:

10.

12

No later than five (5) days after the entry of the Final Judgment and Permanent

13

Injunction, Defendant shall deliver payments totaling five-thousand dollars ($5,000), in the sums

14

of: (i) two-thousand five hundred ($2,500), payable to "City of Los Angeles," and (ii) two-

15

thousand five hundred ($2,500), payable to "Los Angeles County Treasurer and Tax Collector."

16

11.

Defendant shall deliver the payments referenced in Paragraph 15 of this Stipulation

17

in cashier's checks, wire transfers, or other certified funds delivered by overnight mail or courier

18

to: Christina Tusan, Supervising Deputy City Attorney, Office of the Los Angeles City Attorney,

19

Criminal and Special Litigation Branch, 200 N. Main Street, 500 City Hall East, Los Angeles,

20

California 90012-4131.

RETENTION OF JURISDICTION AND ENFORCEMENT

21

22

12.

Pursuant to California Code of Civil Procedure section 664.6 and the Court's

23

inherent authority, the Court shall retain jurisdiction over this Enforcement Action to entertain

24

such further proceedings and enter such further orders as may be necessary or appropriate to

25

enforce the Final Judgment. The People shall retain exclusive jurisdiction to enforce the terms of

26

the Final Judgment, including, the ability to obtain its attorneys' fees, costs, and penalties.

27

II

28

II
4

[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION

 1
2

13.

Defendant shall be liable for reasonable attorneys' fees and costs incurred by the

People for the enforcement of any violation of the injunction set forth in the Final Judgment

3
4

IT IS SO ORDERED this _ _ _ _ day of _ _ _ _ _ _ _ _ , 2020.

5
6

7
HONORABLE JUDGE OF THE SUPERIOR COURT
8

9
10
11

12
13
14

15
16
17

18
19

20
21

22
23
24
25
26
27

28

s
[PROPOSED] FINAL JUDGMENT AND PERMANENT INJUNCTION