Complaint

Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.1 Page 1 of 42 BURSOR & FISHER, P.A. 1 L. Timothy Fisher (State Bar No. 191626) 2 Sean L. Litteral (State Bar No. 331985) 1990 North California Blvd., Suite 940 3 Walnut Creek, CA 94596 Telephone: (925) 300-4455 4 Facsimile: (925) 407-2700 5 E-Mail: ltfisher@bursor.com slitteral@bursor.com 6 Attorneys for Plaintiff 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 YERALDINNE SOLIS, on behalf of Case No. '22CV0400 BEN NLS 13 herself and all others similarly situated, 14 Plaintiff, CLASS ACTION COMPLAINT 15 v. 16 COVERGIRL COSMETICS and JURY TRIAL DEMANDED COTY, INC. 17 18 Defendants. 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.2 Page 2 of 42 1 Plaintiff Yeraldinne Solis (“Plaintiff”) brings this action on behalf of herself and 2 all others similarly situated against Defendants CoverGirl Cosmetics and Coty, Inc., 3 (collectively, “Defendants”). Plaintiff makes the following allegations pursuant to the 4 investigation of her counsel and based upon information and belief, except as to the 5 allegations specifically pertaining to herself, which are based on personal knowledge. 6 NATURE OF THE ACTION 7 1. Plaintiff brings this class action lawsuit on behalf of herself and similarly 8 situated consumers (“Class Members”) who purchased for personal, family or 9 household use Defendants’ TruBlend Pressed Powder (the “Product”), which is unfit 10 for its intended use because it contains unsafe per- and polyfluoroalkyl substances 11 (“PFAS”).1 The Product is formulated, designed, manufactured, advertised, 12 distributed, and sold by Defendants or their agents to consumers, including Plaintiff, 13 across the United States, including in California. 14 2. PFAS are a group of synthetic chemicals known to be harmful to both the 15 environment and humans. Because PFAS persist and accumulate over time, they are 16 harmful even at very low levels. Indeed, “PFAS have been shown to have a number 17 of toxicological effects in laboratory studies and have been associated with thyroid 18 disorders, immunotoxic effects, and various cancers in epidemiology studies.”2 19 3. In fact, scientists are studying—and are extremely concerned about— 20 how PFAS affect human health. Consequently, the CDC outlined “a host of health 21 effects associated with PFAS exposure, including cancer, liver damage, decreased 22 23 24 1 Discovery may reveal that additional CoverGirl products are within the scope of this Complaint. 25 Accordingly, Plaintiff reserve the right to include additional cosmetic items identified through the course of discovery. 26 2 Nicholas J. Herkert, et. al., “Characterization of Per- and Polyfluorinated Alkyl Substances 27 Present in Commercial Anti-fog Products and Their In Vitro Adipogenic Activity,” Environ. Sci. Technol. 2022, 56, 1162-1173, 1162. 28 CLASS ACTION COMPLAINT 1  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.3 Page 3 of 42 1 fertility, and increased risk of asthma and thyroid disease.”3 2 4. Despite Defendants’ representations to consumers that their products are 3 “sustainable”4 and “safe,”5 independent research conducted by Toxin Free USA 4 determined that the Product contains 6,242 parts per million (ppm) of fluorine, and 5 that “[s]ubsequent testing revealed that all 6,242 ppm of the fluorine detected was 6 organic fluorine; organic fluorine results identify a quantity of organofluorine 7 compounds (e.g., PFAS) and excludes the possibility that fluorine may be present from 8 other or natural sources.”6 9 5. As a point of reference, the current EPA health advisory limit for safe 10 consumption, is just 70 nanograms per liter.7 To put this in perspective, 1 part per 11 million is the equivalent of 1,000,000 nanograms per liter.8 Accordingly, use of 12 the Product would expose a consumer to PFAS at levels that are several orders of 13 magnitude higher than one would receive from drinking a liter of water that contains 14 PFAS at the level considered safe by the EPA. 15 6. This is particularly worrisome in the context of Defendants’ packaging, 16 which encourages consumers to “apply throughout the day;” that it is “suitable for 17 sensitive skin” and is “dermatologically tested,”9 each of which serves to assure the 18 3 Harvard T.H. Chan Sch. Of Pub. Health, Health risks of widely used chemicals may be 19 underestimated (June 27, 2018), https://www.hsph.harvard.edu/news/hsph-in-the-news/pfas-health- risks-underestimated/ (last viewed Mar. 22, 2022). 20 4 See, e.g., https://www.covergirl.com/en_us/cruelty-free-makeup.html. 5 21 See, e.g., https://www.coty.com/sites/default/files/coty_sustainability_report_fy20.pdf at 31. 6 22 See GMO Free v. CoverGirl Cosmetics, et al., Case No. 2021-CA-0046786B (D.C. Super. Dec. 20, 2021), Docket No. 1, ¶¶ 30-31. 23 7 Duke University, Nicholas School of the Environment, “High Levels of PFAS Found in Anti- Fogging Sprays and Cloths,” Jan. 5, 2022, https://nicholas.duke.edu/news/high-levels-pfas-found- 24 anti-fogging-sprays-and-cloths (last accessed Mar. 22, 2022). 25 8 JustinTOOLS, “Density Units Conversion parts-per-million to nanograms-per-liter,” https://www.justintools.com/unit-conversion/density.php?k1=parts-per-million&k2=nanograms- 26 per-milliliter (last accessed Mar. 23, 2022). 27 9 See, e.g., https://www.amazon.com/COVERGIRL-truBlend-Blendable-Translucent- packaging/dp/B01N23W63D/ref=sr_1_6?crid=TZB6QAGC5PA5&keywords=trublend+pressed+p 28 CLASS ACTION COMPLAINT 2  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.4 Page 4 of 42 1 consumer that the Product is indeed safe for use as advertised. 2 7. Even more disconcerting, Defendants’ advertising shows the Product 3 employed directly on the face as set out below, despite research that shows that 4 exposure near the eyes and mouth increases the likelihood and hence risk of absorption 5 and ingestion.10 6 7 8 9 10 11 12 13 14 15 8. Defendants also link consumers to like products to show how to properly 16 apply the Product on the face, including in the areas directly near the eyes, as shown 17 in the photograph below. 18 19 20 21 22 23 24 25 owder&qid=1648150206&rdc=1&sprefix=trublend+pressed+powder%2Caps%2C122&sr=8-6 (last accessed 26 10 Heather D. Whitehead et al., “Fluorinated Compounds in North American Cosmetics,” Env’t Sci 27 & Tech. 2021, 8, 7, 538-44 (June 15, 2021), https://pubs.acs.org/doi/10.1021/acs.estlett.1c00240 (last accessed Mar. 22, 2022). 28 CLASS ACTION COMPLAINT 3  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.5 Page 5 of 42 1 9. Thus, based on Defendants’ representations, a reasonable consumer 2 would expect that the Product can be safely used as marketed and sold. However, the 3 Product is not safe, posing a significant health risk to unsuspecting consumers. Yet, 4 neither before nor at the time of purchase do Defendants notify consumers like 5 Plaintiff that their Product is unsafe, contains heightened levels of PFAS, or should 6 otherwise be used with caution. 7 10. Accordingly, Plaintiff brings her claims against Defendants individually 8 and on behalf of a class of all others similarly situated for (1) violation of California’s 9 Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; (2) violation of the 10 Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seq.; (3) breach of Implied 11 Warranty under Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1792, et seq. 12 and California Commercial Code § 2314; (4) violation of California’s False 13 Advertising Law, Cal. Bus. & Prof. Code § 17200, et seq.; (5) Fraud; (6) Constructive 14 Fraud; (7) Fraudulent Inducement; (8) Money Had and Received; (9) Fraudulent 15 Omission or Concealment; (10) Fraudulent Misrepresentation; (11) Negligent 16 Misrepresentation; (12) Quasi-Contract / Unjust Enrichment; (13) Breach of Express 17 Warranty; (14) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et 18 seq; and (15) Negligent Failure to Warn. 19 PARTIES 20 11. Plaintiff Yeraldinne Solis is a natural person and a citizen of California 21 who resides in Escondido, California. In approximately December of 2021, Ms. Solis 22 purchased Defendants’ Product from a Target retail store located in Escondido. Prior 23 to her purchase, Ms. Solis reviewed the labeling, packaging, and marketing materials 24 of her Product, including those set out herein, including that the Product was safe and 25 sustainable. Ms. Solis understood that based on Defendants’ claims, the Product was 26 safe for use and, otherwise a sustainable product. Ms. Solis reasonably relied on these 27 representations and warranties in deciding to purchase the Product, and these 28 CLASS ACTION COMPLAINT 4  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.6 Page 6 of 42 1 representations were part of the basis of the bargain in that she would not have 2 purchased the Product, or would not have purchased it on the same terms, if the true 3 facts had been known. As a direct result of Defendants’ material misrepresentations 4 and omissions, Ms. Solis suffered and continues to suffer, economic injuries. Ms. 5 Solis remains interested in purchasing from Defendants in the future and hopes she 6 can rely on Defendants’ marketing when doing so. 7 12. Defendant CoverGirl Cosmetics is a foreign corporation with its principal 8 place of business located in Cockeysville, Maryland, 21030. Defendant CoverGirl is 9 owned by Coty, Inc. 10 13. Defendant Coty, Inc. is a foreign corporation with its principal place of 11 business located in New York, New York. Defendant Coty is the owner of CoverGirl 12 Cosmetics. 13 FACTUAL ALLEGATIONS 14 A. Beauty Products And Consumer Preferences 15 14. According to Power Reviews—an organization that provides market 16 analytics to cosmetic companies such as Ulta Beauty and Estee Lauder—76 percent 17 of the more than 10,000 “beauty consumers” surveyed, are focused “on buying 18 products that are sustainably made.”11 19 15. At the same time, awareness of, and an inclination toward, safer products 20 is guiding consumer choices. One survey, for instance, found that “[w]hen asked to 21 choose the top three factors they prioritize when deciding between products, the 22 majority of consumers surveyed said they prioritize the health/safety of products 23 (71%) and products free of certain toxic chemicals (70%).”12 Significantly, “[t]hese 24 11 25 Power Reviews, “The Changing Face of the Beauty Shopper,” https://www.powerreviews.com/insights/2021-beauty-industry-consumer-report/ (last accessed 26 Mar. 23, 2022). 12 27 Made Safe, “What Shoppers Want: Safe & Healthy Products,” https://www.madesafe.org/wp- content/uploads/2017/07/What-Shoppers-Want.pdf (last visited Mar. 22, 2022). 28 CLASS ACTION COMPLAINT 5  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.7 Page 7 of 42 1 factors won out over convenience, country of origin, environmental impact, product 2 performance, price and social / human rights / labor impact.”13 3 16. Additionally, “[t]he majority of shoppers . . . are willing to spend more 4 for a product they know is safer, with 42% willing to spend 5-15% more, 36% willing 5 to spend 16-25% more and 17% willing to spend 1-5% more.”14 6 17. For these reasons, several companies, including Defendant, have 7 expanded their marketing efforts to attract consumers into purchasing cosmetics 8 branded as safe and sustainable. Indeed, “the clean beauty market is estimated to reach 9 $22 billion by 2024,” according to Statista Research.15 10 18. Thus, there is enormous incentive for companies such as Defendants to 11 market their products as safe and sustainable. Indeed, Defendants have repeatedly and 12 pervasively touted these considerations as reasons to purchase the Product over 13 competitors even when—as demonstrated below in the context of the Product’s 14 packaging—Defendants are short on words. Examples of these representations are 15 included below. 16 19. These include statements made directly on Defendants’ websites such as 17 “at COVERGIRL, we hold ourselves to the highest quality standards when it comes 18 to the safety and efficacy of our products.”16 19 20. Defendants state that they are “championing open, inclusive and 20 sustainable beauty.” (emphasis added).17 21 22 13 Id. at 3. 14 23 Id. 15 Kristin Larson, “Shopper Demand For Clean Beauty And Increased Transparency Continues,” 24 Forbes (Jun. 30, 2021), https://www.forbes.com/sites/kristinlarson/2021/06/30/shopper-demand- 25 for-clean-beauty-and-increased-transparency-continues/?sh=75f3d8e05402 (last accessed Mar. 23, 2022). 26 16 CoverGirl, “FAQs,” https://www.covergirl.com/en_us/cruelty-free-makeup.html (last accessed Mar. 23, 2022). 27 17 Id. 28 CLASS ACTION COMPLAINT 6  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.8 Page 8 of 42 1 21. Defendants state that they “use[] a wide array of validated alternative 2 methods to assess and ensure [their] products remain safe” and that they “continue to 3 invest in the latest alternative testing technology and innovation to ensure [they] are 4 delivering safe, high-quality products.”18 5 22. Defendants state that they are “changing the way [they] design, formulate 6 and manufacture, in order to minimize [their] environmental impact and create more 7 innovative, cleaner products” and that “[b]y working hand-in-hand with [their] 8 ingredients suppliers, [they] use the latest innovation and technology, applying green 9 science to minimize the pressure of our products on natural resources.”19 10 23. Defendants state that their “products have an important role to playing in 11 building a sustainable future” and that “sustainability is at the heart of [their] product 12 creation, from design and development through to procurement of materials.”20 13 24. Defendants state that they “constantly strive to develop products that 14 reflect [their] consumers’ evolving needs. Increasingly, this means clean products that 15 meet consumer demand for ingredient transparency and minimalist safe formulas, that 16 don’t compromise on product quality.”21 17 25. Significantly, this ethos which Defendants have amplified as a part of 18 their rebranding effort beginning in October 2021, extends to their packaging. As one 19 marketing organization that has studied Defendants’ marketing shift writes: 20 When it comes to beauty, in particular, there seems to be a 21 push for natural, organic, and healthy products. People don’t just care about makeup that transforms, but makeup 22 that heals, makeup that soothes, and makeup that promotes a health and vivaciousness that most of our middle school 23 selves couldn’t have cared less about. As a result, brands are focusing more on giving makeup that has benefits for 24 25 18 Id. 19 26 Coty Inc., “Beauty of Our Product,” https://www.coty.com/sustainability/beauty-of-our-product (last accessed Mar. 23, 2022). 27 20 Id. 21 Id. 28 CLASS ACTION COMPLAINT 7  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.9 Page 9 of 42 your skin – makeup that is clean and fresh – which they 1 mimic in their packaging.[22] 2 26. The experts continue “CoverGirl’s new packaging is sleek, clean, and 3 encourages consumers to focus on the message behind the design . . . . It’s clean and 4 sleek look emphasizes its natural ingredients and the brand’s dedication towards 5 openness and positivity.”23 6 7 8 9 10 11 12 13 14 15 16 17 18 27. And Defendants recognized this in their recent report to investors: “In the 19 U.S., CoverGirl continues to show that the brand is on a sustainable path of 20 improvement and growth as it has grown and maintained share in 6 of the last 9 months 21 since the new brand equity was launched.”24 22 28. However, as described in the next section, Defendants’ Product is not safe 23 22 Design Rush, “CoverGirl Rebranding: New Makeup, New CoverGirls & A New Minimalist 24 Design,” (Jan. 5, 2022), https://www.designrush.com/agency/logo-branding/trends/covergirl- 25 rebranding. 23 Id. 26 24 Coty Reports Strong 2Q22 Across All Metrics, With Significant Momentum Into 3Q22, 27 https://s23.q4cdn.com/980953510/files/doc_financials/2022/q2/Earnings-Release-Q2FY22- FINAL.pdf (last accessed Mar. 23, 2022). 28 CLASS ACTION COMPLAINT 8  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.10 Page 10 of 42 1 for use, and poses a critical risk to the safety and health of consumers. 2 B. PFAS In Cosmetic Products Are Harmful To Humans And The 3 Environment 29. Toxin Free USA’s study followed the groundbreaking research 4 conducted at the University of Notre Dame and later published in the Environmental 5 Science & Technology Letters in June 2021. This research, entitled “Fluorinated 6 Compounds in North American Cosmetics,” sought to assess the potential health and 7 environmental risk of PFAS in cosmetics, analyzing more than 231 cosmetic products 8 purchased in the United States and Canada.25 9 30. The researchers explained that “PFAS are used in cosmetics due to their 10 properties such as hydrophobicity and film-forming ability, which are thought to 11 increase product wear, durability, and spreadability.”26 12 31. The Food and Drug Administration (“FDA”) has also recognized this 13 noting that PFAS are often “intentionally added” to certain products such as 14 “foundation, lipstick, eyeliner, eyeshadow, and mascara.”27 15 32. But PFAS are not necessary for the intended outcomes. Indeed, 16 numerous of Defendants’ competitors’ products have been tested by researchers and 17 found to contain no detectable levels of organic fluorine.28 Accordingly, Defendants 18 would have had knowledge that they could produce the Product without the heightened 19 level of PFAS inherent in its current composition. Yet, Defendants chose not to, and 20 instead concealed this information from consumers. 21 22 25 Heather D. Whitehead, et al. “Flourinated Compounds in North American Cosmetics,” Environ. 23 Sci. Technol. Lett. 2021, 8, 538-544. 26 Id. at 538. 24 27 Sandee LaMotte, “Makeup may contain potentially toxic chemicals called PFAS, study finds,” 25 CNN (June 15, 2021), https://www.cnn.com/2021/06/15/health/makeup-toxic-chemicals- wellness/index.html (last accessed Mar. 24, 2022). 26 28 Leah Segedie, “CoverGirl Makeup Sued For PFAS ‘Forever Chemicals’ & False Advertising,” 27 Mamavation (Dec. 28, 2021), https://www.mamavation.com/beauty/covergirl-makeup-sued-for- pfas.html (last accessed Mar. 24, 2022). 28 CLASS ACTION COMPLAINT 9  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.11 Page 11 of 42 1 33. All PFAS contained carbon-fluorine bonds—one of the strongest in 2 nature—which make them highly persistent both in the environment and in human 3 bodies.29 4 34. There are multiple avenues through which PFAS can invade the body, 5 including through ingestion, inhalation, and skin absorption.30 6 35. A figure utilized by the researchers at Notre Dame demonstrates how 7 PFAS in cosmetics may be introduced into the human body:31 8 9 10 11 12 13 14 15 16 36. Exposure also occurs through the skin, which is the body’s largest organ, 17 subjecting it to absorption, even when the products are used carefully to avoid the eyes, 18 nose, or mouth.32 19 37. This is particularly disconcerting in the context of the Product since it 20 constitutes a “leave-on product[], i.e., [it is] intended to stay on the skin all day, [and 21 results in] a consequently greater exposure expected compared to other product types 22 that are intended to be washed off immediately after application (‘rinse-off’ 23 29 See Nat’l Toxicology Program, Per- and Polyfluoroalkyl Substances (PFAS), 24 https://ntp.niehs.nih.gov/whatwestudy/topics/pfas/index/html (Aug. 3, 2021) (last visited Mar. 24, 2022). 25 30 Id. 26 31 Whitehead, et al., Environ. Sci. Technol. Lett., at 538. 32 27 Gary Swann, “The Skin is the Body’s Largest Organ,” 33 J. of Visual Commc’n in Med., no. 4, 2010, at 148 (Dec. 2010), https://doi.org/10.3109/17453954.2010.525439. 28 CLASS ACTION COMPLAINT 10  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.12 Page 12 of 42 1 products).”33 2 38. That these substances are harmful to the human body is beyond dispute. 3 In a 2019 study, for example, the U.S. Department of Health and Human Services’ 4 National Toxicology Program found that PFAS have adverse effects on human organ 5 systems, with the greatest impact seen in the liver and thyroid hormone.34 6 39. A figure from the European Environmental Agency (“EEA”) shows the 7 “[e]ffects of PFAS on human health:”35 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 33 See Anna Brinch, et al., Risk assessment of fluorinate substances in cosmetic products, The Danish Env’t Prot. Agency (Oct. 2018), https://www.2.mst.dk/Udgiv/publications/2018/10/978-87- 24 93710-94-8.pdf (last accessed Mar. 24, 2022). 34 25 Environmental Protection Agency, PFAS Explained, https://www.epa.gov/pfas/pfas-explained (last accessed Mar. 22, 2022). 26 35 European Environment Agency, “Emerging Chemical Risks in Europe – ‘PFAS’” (Dec. 12, 27 2019), https://www.eea.europa.eu/publications/emerging-chemicals-risks-in-europe (last accessed Mar. 22, 2022). 28 CLASS ACTION COMPLAINT 11  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.13 Page 13 of 42 1 40. The Centers for Disease Control’s Agency for Toxic Substances and 2 Disease Registry has also recognized that exposure to high levels of PFAS may impact 3 the immune system and reduce antibody responses to vaccines.36 4 41. In total, this research demonstrates that the risk of severe health 5 complications arising from exposure to PFAS is both credible and substantial. 6 42. The harmful risks also extend to the environment where, once introduced, 7 they quickly spread around the globe through multiple pathways, as demonstrated in 8 the figure below:37 9 10 11 12 13 14 15 16 17 18 19 20 43. Once introduced, PFAS cause many of the same problems for other 21 animals as they do for human, including harm to the immune system, kidney and liver 22 function, of several animals from dolphins to sea otters to polar bears.38 PFAS pollute 23 waterways and soil. Often making their way to dinner tables of people who did not 24 36 Agency for Toxic Substances and Disease Registry, “What are the health effects of PFAS” 25 https://www.atsdr.cdc.gov/pfas/health-effects/index.html (June 24, 2020) (last accessed Mar. 22, 2022). 26 37 PFAS Free, What are PFAS?” https://www.pfasfree.org.uk/about-pfas (last accessed Mar. 24, 2022). 27 38 Id. 28 CLASS ACTION COMPLAINT 12  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.14 Page 14 of 42 1 even purchase the Product.39 2 C. Defendants’ Marketing and Sale of the Product Violates Federal Law 3 44. Section 5(a) of the Federal Trade Commission Act (“FTCA”), 15 U.S.C. 4 § 52, prohibits the dissemination of any false advertisement in or affecting commerce 5 for the purpose of inducing, or which is likely to induce, the purchase of food, drugs, 6 devices, or cosmetics. For the purposes of Section 12 of the FTCA, 15 U.S.C. § 52, 7 the Product is a “cosmetic[] as defined in Section 15(e) of the FTCA. 15 U.S.C. § 8 55(e). Under this provision, Defendants and other companies must have a reasonable 9 basis for making objective product claims. 10 45. The Federal Food, Drug, and Cosmetic Act (“FDCA”) as well as 11 subsequent regulations, which are fully incorporated into California’s Sherman Food, 12 Drug, and Cosmetic Law, Cal. Health & Safety Code § 109875, et seq. and imposes 13 identical requirements— prohibits “[t]he introduction into interstate commerce of any 14 food, drug, or cosmetic that is adulterated or misbranded.” 21 U.S.C. § 331(a). 15 46. Defendants have represented that the ingredients in their Product are safe, 16 natural, and sustainable, omitting and failing to warn of the PFAS in the Product. 17 However, these representations are false, deceptive, and misleading as the Product 18 actually contains dangerous levels of PFAS. The making of such misrepresentations 19 and omissions by Defendants constitutes a deceptive act or practice and the making of 20 false advertisements in violation of Section 5(a) of 12 of the FTCA, 15 U.S.C. §§ 45(a) 21 and 52(b). 22 47. As alleged herein, Defendants have violated and continue to violate the 23 FDCA and consumer protection statutes. 24 48. Plaintiff and the Class have suffered injury in fact and have lost money 25 as a result of Defendants’ unlawful sale of the Product. Indeed, no reasonable 26 consumer, including Plaintiff, would have purchased the Product had they known they 27 39 Id. 28 CLASS ACTION COMPLAINT 13  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.15 Page 15 of 42 1 were adulterated and/or misbranded. 2 49. Defendants engaged in fraudulent, unfair, deceptive, misleading, and/or 3 unlawful conduct stemming from is omissions surrounding PFAS contamination in 4 their Product. 5 D. Defendants’ Misrepresentations and Omissions Are Actionable 6 50. Plaintiff and the Class were injured by the full purchase price of the 7 Product because the Product is worthless, as it is marketed as safe and sustainable 8 when it is not in fact safe and sustainable. 9 51. Plaintiff and Class Members bargained for cosmetics products that are 10 safe for use and sustainable, and were deprived of the basis of their bargain when 11 Defendants sold them a product containing dangerous substances with well-known 12 health and environmental consequences. 13 52. No reasonable consumer would expect that a product marketed as safe 14 and sustainable would pose a risk to her health, safety, and wellbeing, or that it would 15 contain dangerous PFAS, which are indisputably linked to harmful health effects in 16 humans and the environment. Accordingly, Plaintiff and Class Members suffered 17 economic injuries as a result of purchasing the Product. 18 53. As the Product exposes consumers to PFAS that pose a risk to 19 consumers’ health, the Product is not fit for use by humans. Plaintiff and the Class are 20 further entitled to damages for the injury sustained in being exposed to high levels of 21 toxic PFAS, damages related to Defendants’ conduct, and injunctive relief. 22 54. Moreover, because these facts relate to a critical safety-related deficiency 23 in the Product, Defendants were under a continuous duty to disclose to Plaintiff and 24 Class Members the true standard, quality, and grade of the Product and to disclose that 25 the Product contained substances known to have adverse health effects. Nonetheless, 26 Defendants concealed and affirmatively misrepresented the Product, as discussed 27 herein. 28 CLASS ACTION COMPLAINT 14  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.16 Page 16 of 42 1 55. Although Defendants are in the best position to know what content they 2 placed on their website and in marketing materials during the relevant timeframe, and 3 the knowledge that Defendants had regarding the PFAS and their failure to disclose 4 the existence of PFAS in the Product to consumers, to the extent necessary, Plaintiff 5 satisfies the requirements of Rule 9(b) by alleging the following facts with 6 particularity: 7 56. WHO: Defendants made material misrepresentations and/or omissions 8 of fact about the Product through their labeling, website representations, and 9 marketing statements, which include the statements that the Product is safe and 10 sustainable. These representations constitute omitted material information regarding 11 harmful chemicals in the Product. 12 57. WHAT: Defendants’ conduct here was, and continues to be, fraudulent 13 because they omitted and concealed that the Product contains substances—PFAS— 14 that are widely known to have significant health repercussions. Thus, Defendants’ 15 conduct deceived Plaintiff and Class Members into believing that the Product is safe 16 and sustainable, when it is not. Defendants knew or should have known that this 17 information is material to reasonable consumers, including Plaintiff and Class 18 Members in making their purchasing decisions, yet they continued to pervasively 19 market the Product in this manner. 20 58. WHEN: Defendants made material misrepresentations and/or omissions 21 during the putative class periods, including prior to and at the time Plaintiff and Class 22 Members purchased the Product, despite their knowledge that the Product contained 23 harmful substances. 24 59. WHERE: Defendants’ marketing message was uniform and pervasive, 25 carried through material misrepresentations and/or omissions on the labeling of the 26 Product’s packaging, website, and through marketing materials. 27 60. HOW: Defendants made material misrepresentations and/or failed to 28 CLASS ACTION COMPLAINT 15  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.17 Page 17 of 42 1 disclose material facts regarding the Product, including the presence of PFAS. 2 61. WHY: Defendants made the material misrepresentations and/or 3 omissions detailed herein for the express purpose of inducing Plaintiff, Class 4 Members, and all reasonable consumers to purchase and/or pay for the Product, the 5 effect of which was that Defendants profited by selling the Product to hundreds of 6 thousands of consumers. 7 62. INJURY: Plaintiff and Class Members purchased, paid a premium, or 8 otherwise paid more for the Product when they otherwise would not have absent 9 Defendants’ misrepresentations and/or omissions. 10 TOLLING AND ESTOPPEL OF THE STATUTE OF LIMITATIONS 11 63. Defendants have had actual knowledge for years that the Product contains 12 harmful chemicals such as PFAS. 13 64. Although Defendants were aware of the deception in their labeling given 14 the inclusion of PFAS in the Product despite claims of the Product’s safety, they took 15 no steps to warn Plaintiff or Class Members of risks related to PFAS in the Product. 16 65. Despite their knowledge, Defendants have fraudulently misrepresented 17 the risks of the Product. Defendants had a duty to disclose the true nature and quality 18 of the Product and to disclose the health and safety risks associated with the Product. 19 66. Defendants made, and continue to make, affirmative misrepresentations 20 to consumers, to promote sales of the Product, including that the Product is safe and 21 sustainable. 22 67. Defendants concealed material facts that would have been important to 23 Plaintiff and Class Members in deciding whether to purchase the Product. Defendants’ 24 concealment was knowing, and they intended to, and did, deceive reasonable 25 consumers, including Plaintiff and Class Members. Accordingly, Plaintiff and Class 26 Members reasonably relied upon Defendants’ concealment of these material facts and 27 suffered injury as a proximate result of that justifiable reliance. 28 CLASS ACTION COMPLAINT 16  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.18 Page 18 of 42 1 68. The PFAS included in the formulation, design and/or manufacture of the 2 Product were not reasonably detectible to Plaintiff and Class Members. 3 69. At all times, Defendants actively and intentionally concealed the 4 existence of the PFAS and failed to inform Plaintiff or Class Members of the existence 5 of the PFAS. Accordingly, Plaintiff and Class Members’ lack of awareness was not 6 attributable to a lack of diligence on their part. 7 70. Defendants’ statements, words, and acts were made for the purpose of 8 suppressing the truth that the Product contained harmful chemicals. 9 71. Defendants concealed or misrepresented the PFAS for the purpose of 10 delaying Plaintiff and Class Members from filing a complaint on their causes of action. 11 72. As a result of Defendants’ active concealment of the PFAS and/or failure 12 to inform Plaintiff and Class Members of the PFAS, any and all applicable statute of 13 limitations otherwise applicable to the allegations herein have been tolled. 14 Furthermore, Defendants are estopped from relying on any statute of limitations in 15 light of their active concealment of the potentially harmful nature of the Product. 16 73. Further, the causes of action alleged herein did not accrue until Plaintiff 17 and Class Members discovered that the Product contained PFAS, which, at the very 18 earliest, would have been January 2022. Plaintiff and Class Members had no realistic 19 ability to discern that the Product contained PFAS until after the Notre Dame study 20 and Toxin Free USA’s independent testing. Plaintiff and Class Members were 21 hampered in their ability to discover their causes of action because of Defendants’ 22 active concealment of the existence of PFAS in the Product and of the Product’s true 23 nature. 24 CLASS ALLEGATIONS 25 74. Plaintiff brings this class action pursuant to 23(b)(2), 23(b)(3), and 26 23(c)(4) of the Federal Rules of Civil Procedure, individually and on behalf of a class 27 defined as all persons in the United States who purchased the Product (the “Class”). 28 CLASS ACTION COMPLAINT 17  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.19 Page 19 of 42 1 Excluded from the Class are persons who made such purchases for purposes of resale. 2 75. Plaintiff also seeks to represent a subclass of all Class Members who 3 purchased the Product in the State of California (the “California Subclass”). Excluded 4 from the California Subclass are persons who made such purchases for purpose of 5 resale. 6 76. As a result of additional information obtained through further 7 investigation and discovery, the above-described Classes may be modified or 8 narrowed as appropriate, including through the use of multi-state subclasses. 9 77. At this time, Plaintiff does not know the exact number of members of the 10 aforementioned Class and Subclasses (“Class Members” or “Subclass Members”). 11 However, given the nature of the claims and the number of retail stores in the United 12 States selling Defendants’ Product, Plaintiff believes that Class and Subclass Members 13 are so numerous that joinder of all members is impracticable. 14 78. There is a well-defined community of interest in the questions of law and 15 facts involved in this case. Questions of law and facts common to Class Members 16 predominate over questions that may affect individual Class Members include: 17 (a) whether Defendants misrepresented and/or failed to disclose 18 material facts 19 concerning the Product; 20 (b) whether Defendants’ conduct was unfair and/or deceptive; 21 (c) whether Defendants have been unjustly enriched as a result of the 22 unlawful conduct alleged in this Complaint such that it would be inequitable for 23 Defendants to retain the benefits conferred upon it by Plaintiff and the Class; 24 (d) whether Plaintiff and the Class sustained damages with respect to 25 the common law claims asserted, and if so, the proper measure for their damages. 26 79. With respect to the California Subclass, additional questions of law and 27 fact common to the members include whether Defendants violated the California 28 CLASS ACTION COMPLAINT 18  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.20 Page 20 of 42 1 Consumers Legal Remedies Act as well as the California Unfair Competition Law. 2 80. Plaintiff’s claims are typical of those of the Class because Plaintiff, like 3 all Class Members, purchased, in a typical consumer setting, Defendants’ Product, and 4 Plaintiff sustained damages from Defendants’ wrongful conduct. 5 81. Plaintiff is an adequate representative of the Class and Subclass because 6 his interests do not conflict with the interests of the Class Members she seeks to 7 represent, she has retained competent counsel experienced in prosecuting class actions, 8 and she intends to prosecute this action vigorously. The interests of the Class 9 Members will be fairly and adequately protected by Plaintiff and his counsel. 10 82. The class mechanism is superior to other available means for the fair and 11 efficient adjudication of the claims of Class Members. Each individual Class Member 12 may lack the resources to undergo the burden and expense of individual prosecution 13 of the complex and extensive litigation necessary to establish Defendants’ liability. 14 Individualized litigation increases the delay and expense to all parties and multiplies 15 the burden on the judicial system presented by the complex legal and factual issues of 16 this case. Individualized litigation also presents a potential for inconsistent or 17 contradictory judgments. In contrast, the class action device presents far fewer 18 management difficulties and provides the benefits of single adjudication, economy of 19 scale, and comprehensive supervision by a single court on the issue of Defendants’ 20 liability. Class treatment of the liability issues will ensure that all claims and claimants 21 are before this Court for consistent adjudication of liability issues. 22 COUNT I 23 (Violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq.) 24 25 83. Plaintiff realleges and reincorporates by reference all paragraphs alleged 26 above. 27 84. Plaintiff brings this claim individually and on behalf of the California 28 CLASS ACTION COMPLAINT 19  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.21 Page 21 of 42 1 Subclass against Defendants. 2 85. California Business and Professions Code § 17200 prohibits “any 3 unlawful, unfair, or fraudulent business act or practice.” For the reasons discussed 4 above, Defendants have engaged in unlawful, unfair, and fraudulent business acts or 5 practices in violation of California Business & Professions Code § 17200. 6 86. By committing the acts and practices alleged herein, Defendants have 7 violated California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 8 17200-17210, as to the California Subclass, by engaging in unlawful, fraudulent, and 9 unfair conduct. 10 87. Defendants have violated the UCL’s proscription against engaging in 11 Unlawful Business Practices as a result of their violations of the CLRA, Cal. Civ. 12 Code § 1770(a)(5), (a)(7), and (a)(9) as alleged below, violations of California’s Song- 13 Beverly Act, and violations of California’s False Advertising Law, in addition to 14 breaches of warranty and violations of common law. 15 88. As more fully described above, Defendants’ misleading marketing, 16 advertising, packaging, and labeling of the Product is likely to deceive reasonable 17 consumers. In addition, Defendants have committed unlawful business practices by, 18 inter alia, making the representations and omissions of material facts, as set forth more 19 fully herein, and violating the common law. 20 89. Plaintiff and the California Subclass Members reserve the right to allege 21 other violations of law which constitute other unlawful business acts or practices. 22 90. Defendants have also violated the UCL’s proscription against engaging 23 in Unfair Business Practices. Defendants’ acts, omissions, misrepresentations, 24 practices and non-disclosures as alleged herein also constitute “unfair” business acts 25 and practices within the meaning of Business & Professions Code § 17200 et seq. in 26 that their conduct is substantially injurious to consumers, offends public policy, and is 27 immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct 28 CLASS ACTION COMPLAINT 20  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.22 Page 22 of 42 1 outweighs any alleged benefits attributable to such conduct. 2 91. There were reasonably available alternatives to further Defendants’ 3 legitimate business interests, other than the conduct described herein. 4 92. Defendants have further violated the UCL’s proscription against 5 engaging in Fraudulent Business Practices. Defendants’ claims, nondisclosures and 6 misleading statements with respect to the Product, as more fully set forth above, were 7 false, misleading and/or likely to deceive the consuming public within the meaning of 8 Business & Professions Code § 17200. 9 93. Plaintiff and the other California Subclass Members suffered a substantial 10 injury by virtue of buying the Product that they would not have purchased absent 11 Defendants’ unlawful, fraudulent, and unfair marketing, advertising, packaging, and 12 omission about the defective nature of the Product. 13 94. There is no benefit to consumers or competition from deceptively 14 marketing and omitting material facts about the true nature of the Product. 15 95. Plaintiff and the other California Subclass Members had no way of 16 reasonably knowing that the Product they purchased were not as marketed, advertised, 17 packaged, or labeled. Thus, they could not have reasonably avoided the injury each 18 of them suffered. 19 96. The gravity of the consequences of Defendants’ conduct as described 20 outweighs any justification, motive, or reason therefore, particularly considering the 21 available legal alternatives which exist in the marketplace, and such conduct is 22 immoral, unethical, unscrupulous, offends established public policy, or is substantially 23 injurious to Plaintiff and the other California Subclass Members. 24 97. Pursuant to California Business and Professional Code § 17203, Plaintiff 25 and the California Subclass seek an order of this Court that includes, but is not limited 26 to, an order requiring Defendants to (a) provide restitution to Plaintiff and the other 27 California Subclass Members; (b) disgorge all revenues obtained as a result of 28 CLASS ACTION COMPLAINT 21  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.23 Page 23 of 42 1 violations of the UCL; and (c) pay Plaintiff’s and the California Subclass’ attorneys’ 2 fees and costs. 3 COUNT II 4 (Violation of California’s Consumers Legal Remedies Act (“CLRA”), California Civil Code § 1750, et seq.) 5 6 98. Plaintiff realleges and reincorporates by reference all paragraphs alleged 7 above. 8 99. Plaintiff brings this claim individually and on behalf of the California 9 Subclass against Defendants. 10 100. Civil Code § 1770(a)(5) prohibits “[r]epresenting that goods or services 11 have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities 12 which they do not have or that a person has a sponsorship, approval, status, affiliation, 13 or connection which he or she does not have.” 14 101. Civil § 1770(a)(7) prohibits “[r]epresenting that goods or services are of 15 a particular standard, quality, or grade, or that goods are of a particular style or model, 16 if they are of another.” 17 102. Civil § 1770(a)(9) prohibits “advertising goods or services with intent not 18 to sell them as advertised.” 19 103. Defendants violated Civil Code § 1770(a)(5), (a)(7), and (a)(9) by 20 holding out the Product as safe and sustainable, when in fact the Product is not safe, 21 dangerous, and useless. 22 104. The Product is not safe because they contain an extraordinary level of 23 PFAS that subject unsuspecting consumers to significant health risks. 24 105. Defendants have exclusive knowledge of the Product’s composition, 25 which was not known to Plaintiff or California Subclass Members. 26 106. Defendants made partial representations to Plaintiff and California 27 Subclass Members, while suppressing the true nature of the Product. Specifically, by 28 CLASS ACTION COMPLAINT 22  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.24 Page 24 of 42 1 displaying the Product and describing the Product as safe and sustainable, including 2 on the product packaging, on their website, and in their marketing, without disclosing 3 that the Product was unsafe and detrimental to human health and the environment. As 4 described above, Defendants were in receipt of knowledge pertaining to PFAS in their 5 Product and yet for a period of several years has continued to Product. Moreover, 6 Defendants affirmatively misrepresented the Product despite their knowledge that the 7 Product was not as advertised. 8 107. Plaintiff and the California Subclass Members have suffered harm as a 9 result of these violations of the CLRA because they have incurred charges and/or paid 10 monies for the Product that they otherwise would not have incurred or paid, and were 11 unknowingly exposed to a significant and substantial health risk. 12 108. On January 31, 2022, prior to the filing of this Complaint, Plaintiff’s 13 counsel sent Defendants a CLRA notice letter, which complies in all respects with 14 California Civil Code § 1782(a). The letter was sent via certified mail, return receipt 15 requested, advising Defendants that they were in violation of the CLRA and 16 demanding that they cease and desist from such violations and make full restitution by 17 refunding the monies received therefrom. The letter stated that it was sent on behalf 18 of all other similarly situated purchasers. Defendants did not respond, did not make 19 any changes to the Product, or pull the Product from the marketplace. 20 109. Accordingly, Plaintiff and the California Subclass Members seek all 21 relief available under the CLRA, including restitution, the payment of costs and 22 attorneys’ fees, and any other relief deemed appropriate and proper by the Court. 23 COUNT III 24 (Breach of Implied Warranty Under the Song-Beverly Act, Cal. Civ. Code § 1790, et seq. and California Commercial Code § 2314) 25 26 110. Plaintiff realleges and reincorporates by reference all paragraphs alleged 27 above. 28 CLASS ACTION COMPLAINT 23  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.25 Page 25 of 42 1 111. Plaintiff brings this claim individually and on behalf of the California 2 Subclass against Defendants. 3 112. Under the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790. 4 et seq., and California Commercial Code § 2314, every sale of consumer goods in the 5 State of California is accompanied by both a manufacturer’s and retailer seller’s 6 implied warranty that the goods are merchantable, as defined in that Act. In addition, 7 every sale of consumer goods in California is accompanied by both a manufacturer’s 8 and retail seller’s implied warranty of fitness when the manufacturer or retailer has 9 reason to know that the goods as represented have a particular purpose and that the 10 buyer is relying on the manufacturer’s or retailer’s skill or judgment to furnish suitable 11 goods consistent with that represented purpose. 12 113. California has codified the third-party beneficiary exception to any 13 privity requirement. Therefore, while ordinarily, Plaintiff might ordinarily be required 14 to demonstrate vertical privity, she need not do so where, as here, she is a third-party 15 beneficiary of Defendants’ contracts with wholesalers or retail sellers and relied on 16 Defendants’ packaging in making her purchase. Plaintiff and the California Subclass 17 Members are third-party beneficiaries because the Product passed into commerce with 18 warranties that were designed for the benefit of the end-user and not for the benefit of 19 a wholesaler or retailer. 20 114. The Product at issue here is a “consumer good[]” within the meaning of 21 Cal. Civ. Code § 1791(a). 22 115. Plaintiff and the Class Members who purchased the Product are “retail 23 buyers” within the meaning of Cal. Civ. Code § 1791. 24 116. Defendants are in the business of manufacturing, assembling, and/or 25 producing the Product and/or selling the Product to retail buyers, and therefore are a 26 “manufacturer” and “seller” within the meaning of Cal. Civ. Code § 1791. 27 117. Defendants impliedly warranted to retailer buyers that the Product was 28 CLASS ACTION COMPLAINT 24  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.26 Page 26 of 42 1 merchantable in that they would: (a) pass without objection in the trade or industry 2 under the contract description, and (b) were fit for the ordinary purposes for which the 3 Product is used. For a consumer good to be “merchantable” under the Act, it must 4 satisfy both of these elements. Defendants breached these implied warranties because 5 the Product was unsafe for use. Therefore, the Product would not pass without 6 objection in the trade or industry and were not fit for the ordinary purpose for which 7 they are used. 8 118. Plaintiff and California Subclass Members purchased the Product in 9 reliance upon Defendants’ skill and judgment in properly packaging and labeling the 10 Product. 11 119. The Product was not altered by Plaintiff or the California Subclass 12 Members. 13 120. The Product was defective at the time of sale when they it the exclusive 14 control of Defendants. The issue as described in this complaint was latent in the 15 product and not discoverable at the time of sale. 16 121. Defendants knew that the Product would be purchased and used without 17 additional testing by Plaintiff and Class Members. 18 122. As a direct and proximate cause of Defendants’ breach of the implied 19 warranty, Plaintiff and Class Members have been injured and harmed because they 20 would not have purchased the Product if they knew the truth about the Product, 21 namely, that they were unfit for use and posed a significant safety risk. 22 123. Plaintiff and the California Subclass seek compensatory damages, 23 attorney’s fees, costs, and any other just and proper relief available under law. 24 COUNT IV 25 (Violation of California’s False Advertising Law, Cal. Bus. & Prof. Code § 17500, et seq.) 26 27 124. Plaintiff realleges and reincorporates by reference all paragraphs alleged 28 CLASS ACTION COMPLAINT 25  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.27 Page 27 of 42 1 above. 2 125. Plaintiff brings this claim individually and on behalf of the California 3 Subclass against Defendants. 4 126. Defendants’ acts and practices, as described herein, have deceived and/or 5 are likely to continue to deceive Class Members and the public. As described above, 6 and throughout this Complaint, Defendants misrepresented the Product as safe and 7 sustainable when, in fact, the Product was not safe and not sustainable. 8 127. By their actions, Defendants disseminated uniform advertising regarding 9 the Product to and across California. The advertising was, by its very nature, unfair, 10 deceptive, untrue, and misleading within the meaning of Cal. Bus. & Prof. Code § 11 17500, et seq. Such advertisements were intended to and likely did deceive the 12 consuming public for the reasons detailed herein. 13 128. The above-described false, misleading, and deceptive advertising 14 Defendants disseminated continues to have a likelihood to deceive in that Defendants 15 failed to disclose that the Product contains substances that pose a significant risk to the 16 health and wellbeing of Plaintiff and the Subclass Members as well as to the 17 environment. 18 129. Defendants continued to misrepresent to consumers that the Product was 19 safe and sustainable. However, as described, this is not the case. 20 130. In making and disseminating these statements, Defendants knew, or 21 should have known, their advertisements were untrue and misleading in violation of 22 California law. Plaintiff and other Class Members based their purchasing decisions 23 on Defendants’ omitted material facts. The revenue attributable to the Product sold in 24 those false and misleading advertisements likely amounts to tens of millions of dollars. 25 Plaintiff and Class Members were injured in fact and lost money and property as a 26 result. 27 131. The misrepresentations and non-disclosures by Defendants of the 28 CLASS ACTION COMPLAINT 26  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.28 Page 28 of 42 1 material facts described and detailed herein constitute false and misleading advertising 2 and, therefore, constitutes a violation of Cal. Bus. & Prof. Code § 17500, et seq. 3 132. As a result of Defendants’ wrongful conduct, Plaintiff and Class 4 Members lost money in an amount to be proven at trial. Plaintiff and Class Members 5 are therefore entitled to restitution as appropriate for this cause of action. 6 133. Plaintiff and Class Members seek all monetary and non-monetary relief 7 allowed by law, including restitution of all profits stemming from Defendants’ unfair, 8 unlawful, and fraudulent business practices; declaratory relief; reasonable attorneys’ 9 fees and costs under California Code of Civil Procedure § 1021.5; injunctive relief; 10 and other appropriate equitable relief. COUNT V 11 (Fraud) 12 134. Plaintiff realleges and reincorporates by reference all paragraphs alleged 13 above. 14 135. Plaintiff brings this claim individually and on behalf of the Class. 15 136. At the time Plaintiff and Class Members purchased the Product, 16 Defendants did not disclose, but instead concealed and misrepresented, the Product as 17 “Safe For Use.” 18 137. Defendants affirmatively misrepresented the Product, giving the Product 19 the appearance of a product that is indeed safe for use. 20 138. Defendants also knew that their omissions and misrepresentations 21 regarding the Product were material, and that a reasonable consumer would rely upon 22 Defendants’ representations (and corresponding omissions) in making purchasing 23 decisions. 24 139. Plaintiff and Class Members did not know—nor could they have known 25 through reasonable diligence—about the true nature of the Product. 26 140. Plaintiff and Class Members would have been reasonable in relying on 27 28 CLASS ACTION COMPLAINT 27  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.29 Page 29 of 42 1 Defendants’ misrepresentations (and corresponding omissions) in making their 2 purchasing decisions. 3 141. Plaintiff and Class Members had a right to reply upon Defendants’ 4 representations (and corresponding omissions) as Defendants maintained 5 monopolistic control over knowledge of the true quality of the Product. 6 142. Plaintiff and Class Members sustained damages as a result of their 7 reliance on Defendants’ omissions and misrepresentations, thus causing Plaintiff and 8 Class Members to sustain actual losses and damages in a sum to be determined at trial, 9 including punitive damages. 10 COUNT VI 11 (Constructive Fraud) 12 143. Plaintiff realleges and reincorporates by reference all paragraphs alleged 13 above. 14 144. Plaintiff brings this claim individually and on behalf of the Class. 15 145. At the time Plaintiff and Class Members purchased the Product, 16 Defendants did not disclose, but instead concealed and misrepresented, the Product as 17 discussed herein. 18 146. Defendants affirmatively misrepresented the Product, giving the Product 19 the appearance of a product that is indeed safe for use and otherwise sustainable. 20 147. Defendants also knew that their omissions and misrepresentations 21 regarding the Product were material, and that a reasonable consumer would rely upon 22 their representations (and corresponding omissions) in making purchasing decisions. 23 148. Defendants had an obligation not to omit or misrepresent the Product 24 because in addition to the fact that the Product pertained to matters of safety: (a) it was 25 in the sole possession of such information; (b) it made partial representations regarding 26 the quality of the Product; (c) Plaintiff and the Class Members relied upon Defendants 27 to make full disclosures based upon the relationship between Plaintiff and Class 28 CLASS ACTION COMPLAINT 28  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.30 Page 30 of 42 1 Members, who relied on Defendants’ representations and omissions, and were 2 reasonable in doing so, with the full knowledge of Defendants that it did and would 3 have been reasonable in doing so. 4 149. Plaintiff and Class Members did not know—nor could they have known 5 through reasonable diligence—about the true quality of the Product. 6 150. Plaintiff and Class Members would have been reasonable in relying on 7 Defendants’ misrepresentations (and corresponding omissions) in making their 8 purchasing decisions. 9 151. Plaintiff and Class Members had a right to rely upon Defendants’ 10 representations (and corresponding omissions) as, in addition to the fact that the issue 11 pertained to safety, Defendants maintained monopolistic control over knowledge of 12 the true quality of the Product, and what information was available regarding the 13 Product. 14 152. Defendants breached their duty to Plaintiff and Class Members to make 15 full disclosures of the safety of their Product. 16 153. Plaintiff and Class Members sustained damages as a result of their 17 reliance on Defendants’ omissions and misrepresentations, and Defendants’ breach of 18 their duty, thus causing Plaintiff and Class Members to sustain actual losses and 19 damages in a sum to be determined at trial. 20 COUNT VII 21 (Fraudulent Inducement) 22 154. Plaintiff realleges and reincorporates by reference all paragraphs alleged 23 above. 24 155. Plaintiff brings this claim individually and on behalf of the Class. 25 156. Defendants did not disclose, but instead concealed and misrepresented, 26 the Product as discussed herein. 27 157. Defendants knew, or should have known, that the Product was falsely 28 CLASS ACTION COMPLAINT 29  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.31 Page 31 of 42 1 portrayed and that knowledge of the safety-related issues discussed throughout was 2 withheld from the consumer public. 3 158. Defendants also knew that their omissions and misrepresentations 4 regarding the Product was material, and that a reasonable consumer would rely on 5 Defendants’ representations (and corresponding omissions) in making purchasing 6 decision. 7 159. Plaintiff and Class Members did not know—nor could they have known 8 through reasonable diligence—about the true quality of the Product. 9 160. Plaintiff and Class Members would have been reasonable in relying on 10 Defendants’ misrepresentations (and corresponding omissions) in making their 11 purchasing decisions. 12 161. Plaintiff and Class Members had a right to rely on Defendants’ 13 representations (and corresponding omissions) as Defendants maintained a 14 monopolistic control over the Product, and what information was available regarding 15 the Product. 16 162. Defendants intended to induce—and did, indeed, induce—Plaintiff and 17 Class Members into purchasing the Product based upon their affirmative 18 representations and omissions. 19 163. Plaintiff and Class Members sustained damages as a result of their 20 reliance on Defendants’ omission and misrepresentations, thus causing Plaintiff and 21 Class Members to sustain actual losses and damages in a sum to be determined at trial. 22 COUNT VIII 23 (Money Had and Received) 24 164. Plaintiff realleges and reincorporates by reference all paragraphs alleged 25 above. 26 165. Plaintiff brings this claim individually and on behalf of the Class. 27 166. As a result of the Plaintiff’s and Class Members’ purchase of the Product, 28 CLASS ACTION COMPLAINT 30  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.32 Page 32 of 42 1 Defendants obtained money for their own use and benefit, and, as a result of their 2 breaches of contract and breaches of the covenant of good faith and fair dealing 3 implied in those agreements, became indebted to the Plaintiff and Class Members in 4 an amount to be determined at trial. 5 167. No part of any of the monies due and owing to Plaintiff and Class 6 Members has been repaid, although Plaintiff and Class Members demand repayment, 7 leaving the balance due, owing, and unpaid in an amount to be determined at trial plus 8 interest. 9 COUNT IX 10 (Fraudulent Concealment or Omission) 11 168. Plaintiff realleges and reincorporates by reference all paragraphs alleged 12 above. 13 169. Plaintiff brings this claim individually and on behalf of the Class. 14 170. At all relevant times, Defendants were engaged in the business of 15 designing, manufacturing, distributing, and selling the Product. 16 171. Defendants, acting through their representatives or agents, delivered the 17 Product to their own distributors and various other distribution channels. 18 172. Defendants willfully, falsely, and knowingly omitted various material 19 facts regarding the quality and character of the Product as discussed throughout. 20 173. Rather than inform consumers of the truth regarding the Product, 21 Defendants misrepresented the quality of the Product as discussed herein at the time 22 of purchase. 23 174. Defendants made these material misrepresentations to boost or maintain 24 sales of the Product, and to falsely assure purchasers of the Product that Defendants 25 are reputable companies and that their Product is safe for use and is otherwise 26 sustainable. The false representations were material to consumers because the 27 representations played a significant role in the value of the Product purchased. 28 CLASS ACTION COMPLAINT 31  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.33 Page 33 of 42 1 175. Plaintiff and Class Members accepted the terms of use, which were silent 2 on the true nature of the Product, as discussed throughout. Plaintiff and Class 3 Members had no way of knowing that Defendants’ misrepresentations as to the 4 Product, and had no way of knowing that Defendants’ misrepresentations were 5 misleading. 6 176. Although Defendants had a duty to ensure the accuracy of the information 7 regarding the Product, it did not fulfill these duties. 8 177. Defendants misrepresented material facts partly to pad and protect their 9 profits, as they saw that profits and sales of the Product were essential for their 10 continued growth and to maintain and grow their reputation as a premier designer and 11 vendor of the Product. Such benefits came at the expense of Plaintiff and Class 12 Members. 13 178. Plaintiff and Class Members were unaware of these material 14 misrepresentations, and they would not have acted as they did had they known the 15 truth. Plaintiff’s and class member’s actions were justified given Defendants’ 16 misrepresentations. Defendants were in the exclusive control of material facts, and 17 such facts were not known to the public. 18 179. Due to Defendants’ misrepresentations, Plaintiff and Class Members 19 sustained injury due to the purchase of the Product that did not live up to their 20 advertised representations. Plaintiff and Class Members are entitled to recover full 21 refunds for the Product they purchased due to Defendants’ misrepresentations. 22 180. Defendants’ acts were done maliciously, oppressively, deliberately, and 23 with intent to defraud, and in reckless disregard of Plaintiff, and Class Members’ rights 24 and well-being, and in part to enrich itself at the expense of consumers. Defendants’ 25 acts were done to gain commercial advantage over competitors, and to drive 26 consumers away from consideration of competing products. Defendants’ conduct 27 warrants an assessment of punitive damages in an amount sufficient to deter such 28 CLASS ACTION COMPLAINT 32  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.34 Page 34 of 42 1 conduct in the future. 2 COUNT X 3 (Fraudulent Misrepresentation) 4 181. Plaintiff realleges and reincorporates by reference all paragraphs alleged 5 above. 6 182. Plaintiff brings this claim individually and on behalf of the Class. 7 183. Defendants falsely represented to Plaintiff and the Class that the Product 8 was safe for use and otherwise sustainable. 9 184. Defendants intentionally, knowingly, and recklessly made these 10 misrepresentations to induce Plaintiff and the Class to purchase the Product. 11 185. Defendants knew or should have known that their representations about 12 the Product were false in that the Product is not safe for use as discussed throughout. 13 Defendants knowingly allowed their packaging, labels, advertisements, promotional 14 materials, and websites to intentionally mislead consumers, such as Plaintiff and the 15 Class. 16 186. Plaintiff and the Class did in fact rely on these misrepresentations and 17 purchased the Product to their detriment. Given the deceptive manner in which 18 Defendants advertised, marketed, represented, and otherwise promoted the Product, 19 Plaintiff’s and the Class’ reliance on Defendants’ misrepresentations was justifiable. 20 187. As a direct and proximate result of Defendants’ conduct, Plaintiff and the 21 Class have suffered actual damages in that they would not have purchased the Product 22 at all had they known of the safety risks associated with the Product and that it does 23 not conform to the Product’s labels, packaging, advertising, and statements. 24 188. Plaintiff and the Class seek actual damages, attorney’s fees, costs, and 25 other such relief the Court deems proper. 26 27 28 CLASS ACTION COMPLAINT 33  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.35 Page 35 of 42 1 COUNT XI 2 (Negligent Misrepresentation) 3 189. Plaintiff realleges and reincorporates by reference all paragraphs alleged 4 above. 5 190. Plaintiff brings this claim individually and on behalf of the Class. 6 191. Defendants had a duty to Plaintiff and the Class to exercise reasonable 7 and ordinary care in the developing, testing, manufacture, marketing, detailing, 8 distribution, and sale of the Product. 9 192. Defendants breached their duty to Plaintiff and the Class by developing, 10 testing, manufacturing, marketing, detailing, distributing, and selling the Product to 11 Plaintiff and the Class that did not have the qualities, characteristics, and suitability 12 for use as advertised by Defendants and by failing to promptly remove the Product 13 from the marketplace or take other appropriate remedial action. 14 193. Defendants knew or should have known that the qualities and 15 characteristics of the Product were not as advertised, marketed, detailed, or otherwise 16 represented or suitable for their intended use and were otherwise not as warranted and 17 represented by Defendants. Specifically, Defendants knew or should have known that 18 the Product was not safe for use and not sustainable. 19 194. As a direct and proximate result of Defendants’ conduct, Plaintiff and the 20 Class have suffered actual damages in that they would not have purchased the Product 21 at all had they known that the Product was not safe for use and that the Product does 22 not conform to the Product’s labeling, packaging, advertising, and statements. 23 195. Plaintiff and the Class seek actual damages, attorney’s fees, costs, and 24 any other just and proper relief available. 25 COUNT XII 26 (Quasi-Contract / Unjust Enrichment) 27 196. Plaintiff realleges and reincorporates by reference all paragraphs alleged 28 CLASS ACTION COMPLAINT 34  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.36 Page 36 of 42 1 above. 2 197. Plaintiff brings this claim individually and on behalf of the Class. 3 198. To the extent required by law, this cause of action is alleged in the 4 alternative to legal claims, as permitted under Fed. R. Civ. P. 8. 5 199. Plaintiff and Class Members conferred benefits on Defendants by 6 purchasing the Product. 7 200. Defendants were unjustly enriched in retaining the revenues derived from 8 Plaintiff and Class Members’ purchases of the Product. Retention of those moneys 9 under these circumstances is unjust and inequitable because Defendants failed to 10 disclose that the Product was unfit for their intended purpose as it was unsafe for use. 11 These omissions caused injuries to Plaintiff and Class Members because they would 12 not have purchased the Product if the true facts were known. 13 201. Because Defendants’ retention of the non-gratuitous benefits conferred 14 on them by Plaintiff and Class Members is unjust and inequitable, Defendants have 15 been unjustly enriched in an amount to be determined at trial. 16 COUNT XIII 17 (Breach of Express Warranty) 18 202. Plaintiff realleges and reincorporates by reference all paragraphs alleged 19 above. 20 203. Plaintiff brings this claim individually and on behalf of the Class. 21 204. Plaintiff and Class Members formed a contract with Defendants at the 22 time Plaintiff and Class Members purchased the Product. 23 205. The terms of the contract include the promises and affirmations of fact 24 made by Defendants on the Product packaging and through marketing and advertising, 25 as described above. 26 206. This labeling, marketing, and advertising constitute express warranties 27 and became part of the basis of the bargain and are part of the standardized contract 28 CLASS ACTION COMPLAINT 35  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.37 Page 37 of 42 1 between Plaintiff and Class Members. 2 207. As set forth above, Defendants purport through their advertising, 3 labeling, marketing, and packaging, to create an express warranty that the Product is 4 safe for its intended use and is otherwise sustainable. 5 208. Plaintiff and Class Members performed all conditions precedent to 6 Defendants’ liability under this contract when they purchased the Product. 7 209. Defendants breached express warranties about the Product and their 8 qualities because despite Defendants’ warranties that the Product is safe for use and is 9 otherwise sustainable the Product is objectively not in fact safe for use and not 10 sustainable. Thus, the Product did not confirm to Defendants’ affirmations and 11 promises described above. 12 210. Plaintiff and each Class Member would not have purchased the Product 13 had they known the true nature of the Product. 14 211. As a result of Defendants’ breach of warranty, Plaintiff and each Class 15 Member suffered and continues to suffer financial damage and injury, and are entitled 16 to all damages, in addition to costs, interest and fees, including attorney’s fees, as 17 allowed by law. 18 COUNT XIV 19 (Violation Of The Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.) 20 21 212. Plaintiff realleges and reincorporates by reference all paragraphs alleged 22 above. 23 213. Plaintiff brings this claim individually and on behalf of the Class. 24 214. The Product is a consumer product as defined in 15 U.S.C. § 2301(1). 25 215. Plaintiff and Class Members are consumers as defined in 15 U.S.C. § 26 2301(3). 27 216. Defendants are suppliers and warrantors as defined in 15 U.S.C § 2301(4) 28 CLASS ACTION COMPLAINT 36  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.38 Page 38 of 42 1 and (5). 2 217. In connection with the marketing and sale of the Product, Defendants 3 impliedly warranted that the Product was fit for use and expressly warranted that the 4 Product was safe and sustainable. However, as described throughout, neither is true. 5 218. By reason of Defendants’ breach of warranties, Defendants violated the 6 statutory rights due to Plaintiff and the Class pursuant to the Magnuson-Moss 7 Warranty Act, 15 U.S.C §§ 2301, et seq., thereby damaging Plaintiff and the Class. 8 219. On January 31, 2022, prior to the filing of this Complaint, Plaintiff’s 9 counsel sent Defendants a pre-suit notice letter, apprising Defendants of their breach 10 of warranties. The letter was sent via certified mail, return receipt requested. The 11 letter stated that it was sent on behalf of all other similarly situated purchasers. 12 Defendants did not response, did not make any changes to the Product, and did not 13 pull the Product from the marketplace. 14 220. Plaintiff and Class Members were injured as a direct and proximate result 15 of Defendants’ breach because they would not have purchased the Product if they 16 knew the truth about the Product. 17 COUNT XV 18 (Negligent Failure to Warn) 19 221. Plaintiff realleges and reincorporates by reference all paragraphs alleged 20 above. 21 222. Plaintiff brings this claim individually and on behalf of the Class. 22 223. At all relevant times, Defendants were responsible for designing, 23 constructing, testing, manufacturing, inspecting, distributing, labeling, marketing, 24 advertising, and/or selling the Product. At all relevant times, it was reasonably 25 foreseeable by Defendants that the use of the Product in its intended manner involved 26 substantial risk of injury and was unreasonably dangerous to Plaintiff and the Class as 27 the ultimate users of the Product. 28 CLASS ACTION COMPLAINT 37  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.39 Page 39 of 42 1 224. At all relevant times, Defendants knew or had reason to know of the risk 2 of injury and the resultant harm that the Product posed to Plaintiff and Class Members, 3 as the Defect existed at the time of its design, construction, manufacture, inspection, 4 distribution, labeling, marketing, advertising, and/or sale, as described herein. 5 225. Defendants as the designer, manufacturer, tester, distributor, marketer, 6 advertiser, and/or seller of the Product, had a duty to warn Plaintiff and the Class of 7 all dangers associated with the intended use of the Product. 8 226. At minimum, the duty arose for Defendants to warn consumers that use 9 of the Product could result in injury and was unreasonably dangerous. 10 227. Defendants were negligent and breached their duty of care by negligently 11 failing to provide warnings to purchasers and users of the Product, including Plaintiff 12 and the Class, regarding the true nature of the Product, its risks, and potential dangers. 13 228. Defendants were negligent and breached their duty of care by concealing 14 the risks of and failing to warn consumers that the Product contains ingredients known 15 to cause adverse health effects in humans. 16 229. Defendants knew, or through the exercise of reasonable care, should have 17 known of the inherent Defect and resulting dangers associated with using the Product 18 as described herein, and knew that Plaintiff and Class Members could not reasonably 19 be aware of those risks. Defendants failed to exercise reasonable care in providing 20 Plaintiff and the Class with adequate warnings. 21 230. As a direct and proximate result of Defendants’ failure to adequately warn 22 consumers that the use of the Product, including its intended use, could cause and has 23 caused injuries and other damages, Plaintiff and the Class have suffered damages, as 24 described herein. Plaintiffs also request medical monitoring as a means to safeguard 25 their health and mitigate any damages for future medical treatment. 26 27 28 CLASS ACTION COMPLAINT 38  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.40 Page 40 of 42 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff, individually and on behalf of all others similarly 3 situated, seeks judgment against Defendants, as follows: 4 A. For an order certifying the Class under Fed. R. Civ. P. 23 and 5 naming Plaintiff as representative of the Class and the California Subclass and Plaintiff’s attorneys as Class Counsel; 6 B. For an order declaring the Defendants’ conduct violates the 7 statutes referenced herein; 8 C. For an order finding in favor of Plaintiff, the Class, and the 9 California Subclass on all counts asserted herein; 10 D. For compensatory, statutory, and punitive damages in amounts to be determined by the Court and/or jury; 11 12 E. For prejudgment interest on all amounts awarded; 13 F. For an order of restitution and all other forms of equitable monetary relief; 14 G. For injunctive relief as pleaded or as the Court may deem proper; 15 16 H. For medical monitoring as a means to safeguard Plaintiff’s and Class Members health and to mitigate any damages for future 17 medical treatment; and 18 I. For an order awarding Plaintiff and the Class and California 19 Subclass their reasonable attorneys’ fees and expenses and costs of suit. 20 21 DEMAND FOR TRIAL BY JURY 22 Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by 23 jury of any and all issues in this action so triable of right. 24 25 26 27 28 CLASS ACTION COMPLAINT 39  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.41 Page 41 of 42 Dated: March 25, 2022 Respectfully submitted, 1 2 BURSOR & FISHER, P.A. 3 By: /s/ L. Timothy Fisher 4 L. Timothy Fisher (State Bar No. 191626) Sean L. Litteral (State Bar No. 331985) 5 1990 North California Blvd., Suite 940 6 Walnut Creek, CA 94596 Telephone: (925) 300-4455 7 Facsimile: (925) 407-2700 E-Mail: ltfisher@bursor.com 8 slitteral@bursor.com 9 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 40  Case 3:22-cv-00400-BEN-NLS Document 1 Filed 03/25/22 PageID.42 Page 42 of 42 1 CLRA Venue Declaration Pursuant to California Civil Code Section 1780(d) 2 I, L. Timothy Fisher, declare as follows: 3 1. I am an attorney at law licensed to practice in the State of California and 4 a member of the bar of this Court. I am a partner at Bursor & Fisher, P.A., counsel of 5 record for Plaintiff Yeraldinne Solis. Plaintiff Solis resides in Escondido, California. 6 I have personal knowledge of the facts set forth in this declaration and, if called as a 7 witness, I could and would competently testify thereto under oath. 8 2. The Complaint filed in this action is filed in the proper place for trial 9 under Civil Code Section 1780(d) in that a substantial portion of the events alleged in 10 the Complaint occurred in the Southern District of California, as Plaintiff purchased 11 the Products from brick-and-mortar retails stores located within this District. 12 Additionally, Defendant advertised, marketed, manufactured, distributed, and/or sold 13 the Products at issue to Plaintiff from this District. 14 I declare under the penalty of perjury under the laws of the State of California 15 and the United States that the foregoing is true and correct and that this declaration 16 was executed at Walnut Creek, California this 25th day of March, 2022. 17 /s/ L. Timothy Fisher 18 L. Timothy Fisher 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT 41