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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: firstname.lastname@example.org
Attorneys for Plaintiff
9 UNITED STATES DISTRICT COURT
10 SOUTHERN DISTRICT OF CALIFORNIA
YERALDINNE SOLIS, on behalf of Case No. '22CV0400 BEN NLS
13 herself and all others similarly situated,
Plaintiff, CLASS ACTION COMPLAINT
16 COVERGIRL COSMETICS and JURY TRIAL DEMANDED
CLASS ACTION COMPLAINT
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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
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.
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.
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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
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).
See, e.g., https://www.covergirl.com/en_us/cruelty-free-makeup.html.
21 See, e.g., https://www.coty.com/sites/default/files/coty_sustainability_report_fy20.pdf at 31.
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.
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-
anti-fogging-sprays-and-cloths (last accessed Mar. 22, 2022).
JustinTOOLS, “Density Units Conversion parts-per-million to nanograms-per-liter,”
per-milliliter (last accessed Mar. 23, 2022).
See, e.g., https://www.amazon.com/COVERGIRL-truBlend-Blendable-Translucent-
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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
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.
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).
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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.
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
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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
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
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).
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).
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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
Id. at 3.
Kristin Larson, “Shopper Demand For Clean Beauty And Increased Transparency Continues,”
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,
CoverGirl, “FAQs,” https://www.covergirl.com/en_us/cruelty-free-makeup.html (last accessed
Mar. 23, 2022).
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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
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
26 Coty Inc., “Beauty of Our Product,” https://www.coty.com/sustainability/beauty-of-our-product
(last accessed Mar. 23, 2022).
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your skin – makeup that is clean and fresh – which they
1 mimic in their packaging.
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
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
Design Rush, “CoverGirl Rebranding: New Makeup, New CoverGirls & A New Minimalist
Design,” (Jan. 5, 2022), https://www.designrush.com/agency/logo-branding/trends/covergirl-
Coty Reports Strong 2Q22 Across All Metrics, With Significant Momentum Into 3Q22,
FINAL.pdf (last accessed Mar. 23, 2022).
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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
29. Toxin Free USA’s study followed the groundbreaking research
conducted at the University of Notre Dame and later published in the Environmental
Science & Technology Letters in June 2021. This research, entitled “Fluorinated
Compounds in North American Cosmetics,” sought to assess the potential health and
environmental risk of PFAS in cosmetics, analyzing more than 231 cosmetic products
purchased in the United States and Canada.25
30. The researchers explained that “PFAS are used in cosmetics due to their
properties such as hydrophobicity and film-forming ability, which are thought to
increase product wear, durability, and spreadability.”26
31. The Food and Drug Administration (“FDA”) has also recognized this
noting that PFAS are often “intentionally added” to certain products such as
“foundation, lipstick, eyeliner, eyeshadow, and mascara.”27
32. But PFAS are not necessary for the intended outcomes. Indeed,
numerous of Defendants’ competitors’ products have been tested by researchers and
found to contain no detectable levels of organic fluorine.28 Accordingly, Defendants
would have had knowledge that they could produce the Product without the heightened
level of PFAS inherent in its current composition. Yet, Defendants chose not to, and
instead concealed this information from consumers.
Heather D. Whitehead, et al. “Flourinated Compounds in North American Cosmetics,” Environ.
23 Sci. Technol. Lett. 2021, 8, 538-544.
Id. at 538.
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).
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).
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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
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
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’
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,
Whitehead, et al., Environ. Sci. Technol. Lett., at 538.
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.
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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
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-
93710-94-8.pdf (last accessed Mar. 24, 2022).
25 Environmental Protection Agency, PFAS Explained, https://www.epa.gov/pfas/pfas-explained
(last accessed Mar. 22, 2022).
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).
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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
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
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,
PFAS Free, What are PFAS?” https://www.pfasfree.org.uk/about-pfas (last accessed Mar. 24,
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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
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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
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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
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
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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
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.
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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
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”).
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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
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
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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
(Violation of California’s Unfair Competition Law,
Cal. Bus. & Prof. Code §§ 17200, et seq.)
25 83. Plaintiff realleges and reincorporates by reference all paragraphs alleged
27 84. Plaintiff brings this claim individually and on behalf of the California
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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
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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
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1 violations of the UCL; and (c) pay Plaintiff’s and the California Subclass’ attorneys’
2 fees and costs.
3 COUNT II
(Violation of California’s Consumers Legal Remedies Act (“CLRA”),
California Civil Code § 1750, et seq.)
6 98. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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
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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
(Breach of Implied Warranty Under the Song-Beverly Act, Cal. Civ. Code
§ 1790, et seq. and California Commercial Code § 2314)
26 110. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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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
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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
11 119. The Product was not altered by Plaintiff or the California Subclass
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
(Violation of California’s False Advertising Law,
Cal. Bus. & Prof. Code § 17500, et seq.)
27 124. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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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
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
27 131. The misrepresentations and non-disclosures by Defendants of the
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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.
134. Plaintiff realleges and reincorporates by reference all paragraphs alleged
135. Plaintiff brings this claim individually and on behalf of the Class.
136. At the time Plaintiff and Class Members purchased the Product,
Defendants did not disclose, but instead concealed and misrepresented, the Product as
“Safe For Use.”
137. Defendants affirmatively misrepresented the Product, giving the Product
the appearance of a product that is indeed safe for use.
138. Defendants also knew that their omissions and misrepresentations
regarding the Product were material, and that a reasonable consumer would rely upon
Defendants’ representations (and corresponding omissions) in making purchasing
139. Plaintiff and Class Members did not know—nor could they have known
through reasonable diligence—about the true nature of the Product.
140. Plaintiff and Class Members would have been reasonable in relying on
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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
12 143. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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
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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
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
22 154. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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
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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
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
(Money Had and Received)
24 164. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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,
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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
9 COUNT IX
(Fraudulent Concealment or Omission)
11 168. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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.
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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
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
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
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1 conduct in the future.
2 COUNT X
4 181. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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
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.
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1 COUNT XI
3 189. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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
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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
(Breach of Express Warranty)
18 202. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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
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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
(Violation Of The Magnuson-Moss Warranty Act,
15 U.S.C. §§ 2301, et seq.)
21 212. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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. §
27 216. Defendants are suppliers and warrantors as defined in 15 U.S.C § 2301(4)
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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
(Negligent Failure to Warn)
19 221. Plaintiff realleges and reincorporates by reference all paragraphs alleged
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.
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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.
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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
naming Plaintiff as representative of the Class and the California
Subclass and Plaintiff’s attorneys as Class Counsel;
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;
12 E. For prejudgment interest on all amounts awarded;
13 F. For an order of restitution and all other forms of equitable
G. For injunctive relief as pleaded or as the Court may deem proper;
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
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.
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Dated: March 25, 2022 Respectfully submitted,
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)
1990 North California Blvd., Suite 940
6 Walnut Creek, CA 94596
Telephone: (925) 300-4455
7 Facsimile: (925) 407-2700
Attorneys for Plaintiff
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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.
/s/ L. Timothy Fisher
18 L. Timothy Fisher
CLASS ACTION COMPLAINT 41