`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF ARKANSAS
`JONESBORO DIVISION
`
`FILED
`us DISTRICT COURT
`EASTERN DISTRICT
`NSAS
`2 2
`
`KAREN SHARP,
`individually and on behalf all others similarly
`situated,
`
`Plaintiff,
`
`V.
`
`FAMILY DOLLAR
`10401 Monroe Road,
`Charlotte, NC 28201
`
`SERVE REGISTERED AGENT
`
`and
`
`DOLLAR TREE, INC.
`500 Volvo Parkway
`Chesapeake, VA 23320
`
`SERVE REGISTERED AGENT
`
`Defendants.
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`COMPLAINT - CLASS ACTION
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`JURY TRIAL DEMANDED
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`This case assigned to District Jum~~~"-""'-(cid:173)
`and to Magistrate Judge_~A--'44"'9f-----
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`Plaintiff KAREN SHARP, on behalf of herself and all others similarly situated, brings this
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`action against Defendants FAMILY DOLLAR ("Family Dollar") and DOLLAR TREE, INC.
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`("Dollar Tree") (collectively, "Defendants"), to obtain damages, restitution, and injunctive relief
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`for the Class, as defined below, from the Defendants. Plaintiff Sharp makes the following
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`allegations upon information and belief, except as to her own actions, the investigation of her
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`counsel, and the facts that are a matter of public record.
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 2 of 14
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`NATURE OF THE CASE
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`1.
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`This class action arises out of the recently disclosed rodent infestation of a
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`distribution center operated by Defendant Family Dollar in West Memphis, Arkansas. The
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`warehouse stored and shipped products, including products that were intended for human and
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`animal consumption. As a result of the rodent infestation, Plaintiff and thousands of Class
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`Members who purchased these products were subjected to actual harm.
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`2.
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`The U.S. Food and Drug Administration ("FDA") announced on February 18,
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`2022, that Family Dollar stores in six states may have received products from a distribution center
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`in West Memphis, Arkansas that were contaminated by a rodent infestation. The agency warning
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`includes items purchased since January of 2021, such as food for herself and her family, cosmetics,
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`vitamins and dietary supplements, over-the-counter medications, surgical masks, feminine hygiene
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`products, and contact lens cleaning solutions, and toiletry items among others. The FDA is asking
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`Family Dollar customers to contact the company if they purchased any of these products. The
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`agency also recommends discarding any medical items immediately and is working with the store
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`chain to begin a product recall.
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`3.
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`Family Dollar has issued a voluntary recall which covered numerous FDA
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`regulated products, including medicine, pet food and cosmetics, that were sold between January
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`2021 and February 2022 in Family Dollar stores in Alabama, Arkansas, Louisiana, Mississippi,
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`Missouri and Tennessee (the "Recalled Products").
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`4.
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`The. use or consumption of affected products presents a risk of illness due to the
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`potential presence of Salmonella, an organism which can cause serious and sometimes fatal
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`infections in infants, young children, frail or elderly people, pregnant persons, persons with pre(cid:173)
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`existent pathology (e.g., patients with cancer undergoing chemotherapy treatments, organ
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 3 of 14
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`transplant recipient, etc.) and others with weakened immune systems. Healthy persons infected
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`with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and
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`abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting
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`into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected
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`aneurysms), endocarditis and arthritis.
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`5.
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`Accordingly, Plaintiff, individually and on behalf of a Class of all persons similarly
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`situated, brings claims for breach of the implied warranty of merchantability, unjust enrichment,
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`and violation of the Arkansas Deceptive Trade Practice Act, Ark. Code Ann.§ 4-88-101, et seq.
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`JURISDICTION AND VENUE
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`6.
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`This Court has subject matter jurisdiction over this action under the Class Action
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`Fairness Act, 28 U.S.C. § 1332(d), because this is a class action wherein the amount in controversy
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`exceeds the sum or value of $5,000,000, exclusive of interest and costs, there are more than 100
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`members in the proposed class, and at least one member of the class is a citizen of a state different
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`from a Defendant.
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`7.
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`The Court has personal jurisdiction over Defendants Dollar Tree and Family Dollar
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`because Dollar Tree, a wholly owned subsidiary of Dollar Tree, does business and/or transacts
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`business in this District.
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`8.
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`Venue is proper in this District under 28 U.S.C. § 139l(b)(2) because Plaintiff
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`Sharp resides in this District and a substantial part of the events or omissions giving rise to
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`Plaintiffs claims occurred in this District.
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`PARTIES
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`9.
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`Plaintiff Sharp ("Plaintiff' or "Ms. Sharp") is and at all times mentioned herein an
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`individual citizen and resident of Blytheville (Mississippi County), Arkansas. Ms. Sharp purchased
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`3
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 4 of 14
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`one or more of the Recalled Products from Family Dollar stores in and around the Blytheville,
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`Arkansas area.
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`10.
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`Defendant Family Dollar maintains its company offices in Charlotte, NC at 10401
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`Monroe Road, Charlotte, NC 28201. Family Dollar is a wholly owned subsidiary of Defendant
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`Dollar Tree.
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`11.
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`Defendant Dollar Tree is a Virginia corporation whose corporate offices are located
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`at 500 Volvo Parkway, Chesapeake, VA 23320.
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`STATEMENT OF COMMON FACTS
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`Family Dollar is a wholly owned subsidiary of Dollar Tree.
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`Dollar Tree is a Fortune 200 company and a leading operator of discount variety
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`12.
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`13.
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`stores in North America for more than thirty years. The company operates more than 15,500 stores
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`across the 48 contiguous states and five Canadian provinces, supported by a coast-to-coast logistics
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`network and more than 193,000 associates.
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`14.
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`Family Dollar operates a distribution center in West Memphis, Arkansas (the
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`"Distribution Center"). The Distribution Center distributed products to 404 stores across six states
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`- Alabama, Arkansas, Louisiana, Missouri, Mississippi and Tennessee.
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`15.
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`Records obtained through the Arkansas Freedom of Information Act show that the
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`Distribution Center has been inspected by the Arkansas Department of Health ("ADH") at least
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`five times since March 3, 2021.
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`16.
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`During a site inspection on March 3, 2021, state inspectors reported seeing
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`significant rodent activity where human and pet food is stored. "I observed live and dead rodents
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`in this area. I observed products that had been contaminated by rodents," the inspector wrote. "This
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`product was disposed on site."
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 5 of 14
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`17.
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`Health officials at the time reported that staff at the distribution center said they
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`knew about the rodent issue and that it had been going on for about 60 days. The inspection
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`documents showed that the facility claimed to have hired a pest control company that would
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`service the facility three times weekly to get the issue under control. The documents also indicated
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`that any affected merchandise would not go to stores.
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`18.
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`"The firm has a policy which states if product has any evidence of pest activity,
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`gnawing, droppings, etc., the entire pallet is disposed in the onsite compacter," the report shows.
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`19.
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`During the 2021 inspections, which took place on March 3, March 19, April 2,
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`September 22, records showed that Arkansas inspectors found rodents where human and pet food
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`is stored. In September's inspection, documents show the state found a rodent in a case of chips
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`but noted the facility had made vast improvements in sanitation and pest control.
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`20.
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`In an inspection on January 3, 2022, health inspectors reported effective measures
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`were not being taken to stop the pest problem. The state reported finding significant rodent activity
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`where human and pet food is stored, including a dead roof rat in one of the facility's aisles.
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`21.
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`Arkansas health officials notified the Food and Drug Administration ("FDA)"
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`about the problem in October of 2021, after four of the state's inspections.
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`22.
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`In January of 2022, the FDA was alerted to unsanitary conditions at the Family
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`Dollar distribution center in West Memphis, Arkansas by a consumer complaint.
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`23.
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`FDA inspectors concluded their investigation on Feb. 11, 2022, after finding "live
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`rodents, dead rodents in various states of decay, rodent feces and urine, evidence of gnawing,
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`nesting and rodent odors throughout the facility, dead birds and bird droppings" at the center.
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`24. More than 1,100 dead rodents were found after the center was fumigated.
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`5
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 6 of 14
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`25.
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`The FDA reported that in addition to their investigation of the premises, internal
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`company records showed "the collection of more than 2,300 rodents between Mar. 29 and Sep. 17,
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`2021, demonstrating a history of infestation."
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`26.
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`As a result of the rodent infestation at the Arkansas distribution center, Family
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`Dollar temporarily closed more than 400 stores in six states so that Recalled Products could be
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`removed from the shelves.
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`27.
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`On Friday, February 18, 2022, Family Dollar issued a voluntary recall which
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`covered numerous FDA regulated products, including medicine, pet food and cosmetics, that were
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`sold betweeq January 2021 and February 2022 in Family Dollar stores in Alabama, Arkansas,
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`Louisiana, Mississippi, Missouri and Tennessee (the "Recalled Products").
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`28.
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`Family Dollar said in its announcement that the voluntary recall applies to products
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`that were sent to the affected stores by the West Memphis, Arkansas distribution center.
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`29.
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`The company said it has asked the affected stores "to check their stock immediately
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`and to quarantine and discontinue the sale of any affected product."
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`30.
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`The FDA said that it initiated its investigation of the warehouse, known as Family
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`Dollar Distribution Center 202, in January 2022, and that "Family Dollar ceased distribution of
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`products within days of the FDA inspection team's arrival on-site."
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`31.
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`Rodents can pass diseases on to humans, including salmonellosis, an infection
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`caused by salmonella bacteria, which can be especially dangerous to immunocompromised and
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`other vulnerable people.
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`32.
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`The FDA advised consumers to throw away any drugs, medical devices, cosmetics,
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`and dietary supplements they bought from the affected stores in the past 13 months.
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 7 of 14
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`33.
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`As stated by Judith McMeekin, the FDA's associate commissioner for regulatory
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`affairs, consumers who depend on Family Dollar stores for necessary goods such as food and
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`medicine "deserve products that are safe." "No one should be subjected to products stored in the
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`kind of unacceptable conditions that we found in this Family Dollar distribution facility,"
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`McMeekin said in a statement. "These conditions appear to be violations of federal law that could
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`put families' health at risk. We will continue to work to protect consumers."
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`STATEMENT OF INDIVIDUAL FACTS
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`34.
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`During the last 13 months, Plaintiff Sharp purchased numerous items from Family
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`Dollar Store# 4378 located at 2001 West Main Street in Blytheville, Arkansas; and other stores in
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`and around the Blytheville, Arkansas area.
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`35. Ms. Sharp purchased the items reasonably believing that they were safe and would
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`not put the health of herself and members of her household at risk.
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`36.
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`The items Ms. Sharp purchased include food for her family and herself, snacks,
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`over-the-counter drugs, medical devices, cosmetics and/or dietary supplements, and pet foods
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`purchased for consumption by herself, her family, or her pets that are subject to the recall.
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`37.
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`Had Ms. Sharp been aware of the rodent infestation, she would not have purchased
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`these items from Family Dollar stores.
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`38. Ms. Sharp did not receive the benefit of her bargain and suffered damages as a
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`result of her purchases from Family Dollar.
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`CLASS ACTION ALLEGATIONS
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`39.
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`Plaintiff brings this action pursuant to Fed. R. Civ. P. 23. The requirements of Fed.
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`R. Civ. P. 23(a), (b)(2) and (b)(3) are met with respect to a class defined as "All persons who
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`7
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 8 of 14
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`purchased a Recalled Products from Family Dollar" and an Arkansas Subclass defined as "All
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`persons residing in the State of Arkansas who purchased a Recalled Products from Family Dollar."
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`40.
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`Excluded from the Class are Defendants' officers and directors, and any entity in
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`which Defendants have a controlling interest; and the affiliates, legal representatives, attorneys,
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`successors, heirs, and assigns of Defendants. Excluded also from the Class are members of the
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`judiciary to whom this case is assigned, their families and members of their staff.
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`41.
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`Plaintiff hereby reserves the right to amend or modify the Class definitions with
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`greater specificity or division after having had an opportunity to conduct discovery.
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`42.
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`Numerosity. The Members of the Class are so numerous that joinder of all of them
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`is impracticable. While the exact number of Class Members is unknown to Plaintiff at this time,
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`based on information and belief, the Class consists of thousands of persons who purchased
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`Recalled Products.
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`43.
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`Commonality. There are questions of law and fact common to the Class, which
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`predominate over any questions affecting only individual Class Members. These common
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`questions of law and fact include, without limitation, whether the Defendants may be held liable
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`to the Plaintiff for breach of implied warranty of merchantability and unjust enrichment.
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`44.
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`Typicality. Plaintiffs claims are typical of the claims of other Class Members.
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`Plaintiff and each of the other Class Members purchased the Recalled Products.
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`45.
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`Adequacy of Representation. Plaintiff will fairly and adequately represent and
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`protect the interests of the Members of the Class. Plaintiffs Counsel are competent and
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`experienced in litigating class actions.
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`46.
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`Predominance. Defendants have engaged in a common course of conduct toward
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`Plaintiff and Class Members. The common issues arising from Defendants' conduct affecting
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 9 of 14
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`Class Members set out above predominate over any individualized issues. Adjudication of these
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`common issues in a single action has important and desirable advantages of judicial economy.
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`47.
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`Superiority. A class action is superior to other available methods for the fair and
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`efficient adjudication of the controversy. Class treatment of common questions of law and fact is
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`superior to multiple individual actions or piecemeal litigation. Absent a class action, most Class
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`Members would likely find that the cost of litigating their individual claims is prohibitively high
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`and would therefore have no effective remedy. The prosecution of separate actions by individual
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`Class Members would create a risk of inconsistent or varying adjudications with respect to
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`individual Class Members, which would establish incompatible standards of conduct for
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`Defendants. In contrast, the conduct of this action as a class action presents far fewer management
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`difficulties, conserves judicial resources and the parties' resources, and protects the rights of each
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`Class Member.
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`CAUSES OF ACTION
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`COUNTI
`BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
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`48.
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`Plaintiff re-alleges and incorporates by reference the paragraphs above as if fully
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`set forth herein.
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`49.
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`"Unless excluded or modified (Section 2-316), a warranty that the goods shall be
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`merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods
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`of that kind." UCC § 2-314(1).
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`50.
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`"Goods to be merchantable must be at least such as (a) pass without objection in
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`the trade under the contract description; . . . ( c) are fit for the ordinary purposes for which such
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`goods are used; ... ( d) run, within the variations permitted by the agreement, of even kind, quality
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 10 of 14
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`and quantity within each unit and among all units involved; and ... (f) conform to the promise or
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`affirmations of fact made on the container or label if any." UCC § 2-314(2).
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`51.
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`"It is not necessary to the creation of an express warranty that the seller use formal
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`words such as 'warrant' or 'guarantee' or that he have a specific intention to make a warranty."
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`ucc § 2-313(2).
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`52.
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`53.
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`Defendants are a "merchant" within the meaning of UCC § 2-104( 1 ).
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`The Recalled Products were not merchantable at the time of sale because they were
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`not fit for human or animal consumption. Defendants therefore breached the implied warranty of
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`merchantability.
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`54.
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`Plaintiff and Class Members sustained damages as a direct and proximate result of
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`Defendants' breach, including damages for economic injuries from spending money on a product
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`that should not have been sold to them.
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`55.
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`Plaintiff, on behalf of herself and all similarly situated Class Members, demands
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`judgment against Defendants for compensatory damages, including a complete refund of the
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`purchase price of the Recalled Products, pre- and post-judgment interest, costs incurred in bringing
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`this action, and any other relief as this Court deems just and proper.
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`COUNT II
`UNJUST ENRICHMENT
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`56.
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`Plaintiff re-alleges and incorporates by reference the paragraphs above as if fully
`
`set forth herein.
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`57.
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`Defendants received from Plaintiff and Class Members benefits in the form of
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`money and profits from the sale of the Recalled Products.
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 11 of 14
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`58.
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`Defendants sold the Recalled Products to the Plaintiff and Class Members with
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`knowledge of the rat infestation and with knowledge that the Recalled Products were not fit for
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`human or animal consumption at the time of sale.
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`59.
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`Defendants have been unjustly enriched and it would be inequitable for Defendants
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`to retain benefits obtained from Plaintiff and Class Members.
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`60.
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`Plaintiff and Class Members are entitled to restitution of the amount by which
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`Defendants were unjustly enriched at their expense.
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`61.
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`Plaintiff, on behalf of herself and all similarly situated Class Members, demands
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`restitution by the Defendants in the amounts by which Defendants have been unjustly enriched at
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`Plaintiffs and Class Members' expense, and such other relief as this Court deems just and proper.
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`COUNT III
`VIOLATION OF THE ARKANSAS DECEPTIVE TRADE PRACTICE ACT
`Ark. Code Ann. § 4-88-101, et seq.
`On behalf of the Arkansas Class
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`62.
`
`Plaintiff re-alleges and incorporates by reference the paragraphs above as if fully
`
`set forth herein.
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`63.
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`Defendants and Plaintiff are "persons" within the meaning of the Arkansas
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`Deceptive Trade Practices Act ("Arkansas DTPA"), Ark. Code Ann.§ 4-88-102(5).
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`64.
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`The Recalled Products are "goods" within the meaning of Ark. Code Ann. § 4-88-
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`102(4).
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`65.
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`The Arkansas DTPA prohibits "[d]eceptive and unconscionable trade practices,"
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`which include, but are not limited to, "[e]ngaging in any other unconscionable, false, or deceptive
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`act or practice in business, commerce, or trade[.]" Ark. Code Ann.§ 4-88-107(a)(10).
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`66.
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`As related to the sale or advertisement of any goods, the Arkansas DTPA prohibits:
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`"( 1) The act, use, or employment by any person of any deception, fraud, or false pretense; or (2)
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 12 of 14
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`The concealment, suppression, or omission of any material fact with intent that others rely upon
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`the concealment, suppression, or omission." Ark. Code Ann.§ 4-88-108.
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`67.
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`By concealing the risks and harms associated with the use and handling of the
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`Recalled Products (e.g., concealing the rodent infestation and other unsanitary conditions that
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`creates a risk of salmonella or other infectious diseases), Defendants engaged in deceptive business
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`practices, including representing that Recalled Products have characteristics, uses, benefits, and
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`qualities which they do not have; representing that Recalled Products are of a particular standard,
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`quality, and grade when they are not; and engaging in other unconscionable, false, misleading, or
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`deceptive acts or practices in the conduct of trade or commerce.
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`68.
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`Defendants' deception about the Recalled Products is material to a reasonable
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`consumer.
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`69.
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`In addition, Defendants engaged in unlawful trade practices through deception,
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`deceptive acts or practices, fraud, misrepresentations, or concealment, suppression or omission of
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`any material fact with intent that consumers rely upon such concealment, suppression or omission,
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`in connection with the sale of the Recalled Products.
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`70.
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`By failing to disclose and by actively concealing the defects in the Recalled
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`Products, Defendants engaged in unfair and deceptive business practices. In the course of
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`Defendants' business, they willfully failed to disclose and actively concealed the dangerous risks
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`posed by the Recalled Products.
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`71.
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`Defendants' unfair or deceptive acts or practices were likely to and did in fact
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`deceive reasonable consumers, including Plaintiff.
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 13 of 14
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`72.
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`Defendants intentionally and knowingly misrepresented material facts regarding
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`the Recalled Products. Defendants knew or should have known that its conduct violated the
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`Arkansas DTPA.
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`73.
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`Defendants owed a duty to disclose the true safety and reliability of the Recalled
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`Products. Because Defendants fraudulently concealed the harms and risks associated with the
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`Recalled Products, Plaintiff and consumers were deprived of the benefit of their bargain since the
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`Recalled Products purchased were worth less than they would have been if they were free from
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`such harms and risks.
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`74.
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`Plaintiff and Class suffered ascertainable
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`loss caused by Defendants'
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`misrepresentations and its concealment.
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`75.
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`As a direct and proximate result of Defendants' violations of Arkansas DTPA,
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`Plaintiff and Arkansas Class members have suffered injury-in-fact and/or actual damage as alleged
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`above. As a direct result of Defendants' misconduct, Plaintiff and the Class incurred damages.
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`76.
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`As a result of Defendants' actions, Plaintiff seeks monetary relief against
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`Defendants measured as actual damages in an amount to be determined at trial, as well as any
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`statutory and punitive damages allowed by law due to Defendants' willful or knowing violations.
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`Plaintiff also seeks all other just and proper relief available under the Arkansas DTP A.
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`PRAYER FOR RELIBF
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`WHEREFORE, Plaintiff Sharp, on behalf of herself and all similarly situated individuals,
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`demand judgment against Defendants as follows:
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`a. Declaring this action to be a proper Class action maintainable pursuant to Rule
`23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure and declaring
`Plaintiff and her Counsel to be representatives of the Classes;
`
`b. Awarding damages sustained by Plaintiff and the Classes as a result of the
`Defendants' conduct, together with pre-judgment interest;
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`Case 3:22-cv-00090-BSM Document 1 Filed 03/30/22 Page 14 of 14
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`c. Awarding punitive damages sustained by Plaintiff and the Classes as a result of
`the Defendants' conduct, together with pre-judgment interest;
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`d.
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`Finding that Defendants have been unjustly enriched and requiring them to refund
`all unjust benefits to Plaintiff and the Classes, together with pre-judgment
`interest;
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`e. Awarding Plaintiff and the Classes costs and disbursements and reasonable
`allowances for the fees of Plaintiffs and the Classes' Counsel and experts, and
`reimbursement of expenses;
`
`f.
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`Awarding such other and further relief the Court deems just and equitable.
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`DEMAND FOR JURY TRIAL
`
`Plaintiff, on behalf of herself and the Classes, requests a jury trial for any and all Counts
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`for which a trial by jury is permitted by law.
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`Dated: March 29, 2022
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`Respectfully submitted,
`
`ftl.::,,..,...,irm5~n~u-;:e,<;Suite 410
`Memphis, Tennessee 38119
`(901) 343-0777
`
`Attorney for Plaintiff and the proposed Classes
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`14
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