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`Case 2:22-at-00251 Document 1 Filed 03/04/22 Page 1 of 18
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`
`
`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`1990 N. California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
`
`BURSOR & FISHER, P.A.
`Andrew J. Obergfell (pro hac vice forthcoming)
`888 Seventh Avenue
`New York, NY 10019
`Telephone: (212) 989-9113
`Facsimile: (212) 989-9163
`E-Mail: aobergfell@bursor.com
`
`Attorneys for Plaintiff
`
`
`
`UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF CALIFORNIA
`
`
`
`
`
`PHILIP SMITH, individually and on behalf of
`all others similarly situated,
`
`
`
`v.
`
`
`E-FILLIATE, INC.,
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`Case No.
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`CLASS ACTION COMPLAINT
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`
`
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`

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`Case 2:22-at-00251 Document 1 Filed 03/04/22 Page 2 of 18
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`
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`Plaintiff Philip Smith (“Plaintiff”) brings this action on behalf of himself, and all
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`others similarly situated against Defendant E-Filliate, Inc. (“Defendant”) for the manufacture,
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`distribution, and sale of the DeWALT Jobsite Pro Wireless Earphones (the “Product”). Plaintiff
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`makes the following allegations pursuant to the investigation of his counsel and based upon
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`information and belief, except as to the allegations specifically pertaining to himself, which is
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`based on personal knowledge.
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`NATURE OF ACTION
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`This is a class action complaint against Defendant for the manufacture, distribution,
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`1.
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`and sale of the Jobsite Pro Wireless Earphones sold under the DeWALT brand, all of which suffer
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`from an identical defect in design. Specifically, the Products are prone to overheating during
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`charging or use and create the potential for a burn or fire hazard. Earphones that pose such a
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`hazard are unreasonably dangerous compared to the utility of the Product. Moreover, such a defect
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`can render the Product unusable during periods of overheating. As such, this defect rendered the
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`Product unsuitable for its principal and intended purpose. Further, had Plaintiff been aware of this
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`serious defect, he would not have purchased the Product, or would have paid significantly less for
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`it.
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`2.
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`On December 1, 2021, the United States Consumer Product Safety Commission
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`(“CPSC”) issued a recall notice of approximately 301,800 units of the Products due to the prevalent
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`nature of the defect (the “Product Recall”).
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`3.
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`Plaintiff brings his claims against Defendant individually and on behalf of a class of
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`all other similarly situated purchasers of the Product for (i) violation of New York General
`
`Business Law § 349; (ii) violation of New York General Business Law § 350;
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`(iii) breach of implied warranty; (iv) violation of the Magnuson-Moss Warranty Act; and (v) unjust
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`enrichment.
`
`CLASS ACTION COMPLAINT
`
`1
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`

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`Case 2:22-at-00251 Document 1 Filed 03/04/22 Page 3 of 18
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`
`
`PARTIES
`
`Plaintiff Philip Smith is, and at all times relevant to this action has been, a resident
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`4.
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`of Rochester, New York and a domiciliary of New York. On or about December of 2020, Mr.
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`Smith purchased a pair of the DeWALT Jobsite Pro Wireless Earphones from a Lowe’s hardware
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`store located in Greece, New York. Mr. Smith purchased the Product because he believed it was fit
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`for use as earphones. However, the Product Mr. Smith purchased was not fit for use as earphones
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`due to the Product’s risk of overheating. Mr. Smith’s belief that the earphones were fit for their
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`intended purpose formed the basis of the bargain, and Mr. Smith would not have purchased the
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`Product or would have paid significantly less for the Product had he known that the Product was
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`unfit to perform its intended purpose.
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`5.
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`The Product that Mr. Smith purchased began to malfunction shortly after he
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`purchased it because the Product would overheat during use. The Product that Mr. Smith
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`purchased does not contain a manufacturer code and is included in the Product Recall.
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`6.
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`Mr. Smith reviewed the Product’s packaging prior to purchase. Defendant disclosed
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`on the packaging that the Product was an earphone and described features typical of earphones but
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`did not disclose the defect. Had there been a disclosure, Mr. Smith would not have purchased the
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`Product because the defect would have been material to him, or at the very least, he would have
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`purchased the Product at a substantially reduced price. Mr. Smith relied on the packaging in
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`making his purchase decision.
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`7.
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`Mr. Smith did not submit a claim through the CPSC. Mr. Smith contacted
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`DeWALT for information regarding a refund for the Product but did not receive any such
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`information. The remedy offered by the recall was insufficient because it only provided a
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`replacement, as opposed to a full refund for the defective earphones. Mr. Smith is also entitled to
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`statutory damages under New York law.
`
`CLASS ACTION COMPLAINT
`
`
`
`2
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`Case 2:22-at-00251 Document 1 Filed 03/04/22 Page 4 of 18
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`8.
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`Plaintiff suffered economic injury from the Product Defect because he purchased an
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`item that was worth less than what had been represented to him.
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`9.
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`Defendant E-Filliate, Inc. is a Delaware corporation with its principal place of
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`business at 11321 White Rock Road, Rancho Cordova, California 95742. Defendant markets,
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`distributes, and sells the Product throughout the United States and the State of New York.
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`Defendant sells the Product directly to consumers through several retail stores, including Lowe’s,
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`Home Depot, True Value, Aubuchon Hardware, Orgill, and Mid-States.
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`JURISDICTION AND VENUE
`
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`
`10.
`
`§ 1332(d) because there are more than 100 class members and the aggregate amount in controversy
`
`exceeds $5,000,000, exclusive of interest, fees, and costs, and at least one Class member is a
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`citizen of a state different from Defendants.
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`11.
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`This Court has general personal jurisdiction over Defendant because Defendant has
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`its principal place of business in this District.
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`12.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because it is a judicial
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`District in which Defendant resides.
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`COMMON FACTUAL ALLEGATIONS
`
`
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`
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`The Overheating Defect
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`13.
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`Defendant E-Filliate, Inc. is a manufacturing company that partners with several
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`brand name companies, including DeWALT. Among the various items manufactured and sold by
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`E-Filliate is the Jobsite Wireless Pro Earphone sold under the DeWALT brand, which is the
`
`Product at issue here.
`
`14.
`
`The Product is primarily sold at retail stores across the country, including Lowe’s,
`
`Home Depot, True Value, Aubuchon Hardware, Orgill, and Mid-States.
`
`CLASS ACTION COMPLAINT
`
`
`
`3
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`15.
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`The Product was made with a design defect, causing the Product to overheat, posing
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`a significant hazard for burns and fires (hereinafter, the “Product Defect”). The Product Defect
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`was substantially likely to materialize during the useful life of the Product.
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`16.
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`17.
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`Over 300,000 units of the Product were sold in the U.S. at approximately $65 each.
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`Upon information and belief, Defendant sold a large number of the Products, and
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`thus profited enormously from their failure to disclose the Product Defect sooner.
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`18.
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`The Product Defect at issue here involves a critical safety-related component of the
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`Product, and it was unsafe to use the Product with the design defect. Defendant had knowledge of
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`the defect, which was not known to Plaintiffs or class members.
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`19.
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`Defendant made partial representations to Plaintiff and class members, while
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`suppressing the safety defect. Specifically, by displaying the Product and describing its features,
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`the product packaging implied that the Product was suitable for use as an earphone, without
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`disclosing that it had a critical safety-related defect that could result in harm to users of the
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`Product.
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`The Inadequate Recall Of The Product
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`20.
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`21.
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`In December of 2021, there was a recall of the Product.
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`The recall was due to a serious injury and safety hazard associated with the Product.
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`Specifically, it was admitted that its Product had a defect in design and materials that caused the
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`earphones to overheat. This resulted in numerous reports of burns and fires associated with the
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`defect.
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`22.
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`The entirety of the recall remedy available to consumers was the ability to contact
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`the Product manufacturer for a replacement, on the condition that the original product be shipped to
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`Defendant. No financial compensation was offered to consumers.
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`CLASS ACTION COMPLAINT
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`
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`4
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`Case 2:22-at-00251 Document 1 Filed 03/04/22 Page 6 of 18
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`23.
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`The recall allowed Defendant to say it was doing right by its customers, but in fact
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`the recall protected Defendant’s profits by suppressing returns:
`
`(a)
`
`
`(b)
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`(c)
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`(d)
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`
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`The recall remedy was grossly insufficient because it in no way
`compensated consumers for the purchase of a dangerous and defective
`product.
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`Instead of offering cash refunds for the defective Product, Defendants
`instead merely offered an exchange for a replacement.
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`The recall notice was inadequate in notifying consumers of the defect.
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`The recall remedy did not provide for statutory damages and other
`relief owed to consumers.
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`Defendant’s Pre-Sale Knowledge Of The Defect
`
`
`
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`
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`24.
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`Before the recall was issued, Defendant received reports of overheating issues with
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`its DeWALT Jobsite Pro Wireless Earphones.
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`25.
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`The United States Consumer Products Safety Commission (“CPSC”) operates a
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`website where consumers can post complaints about unsafe products and provide details about any
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`incidents they experienced.
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`26.
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`Online safety reports to the CPSC show that Defendant, knew or should have known
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`of the defect, yet it continued to sell the defective Product anyway.
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`27.
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`Per federal regulations, all safety reports that are submitted online through the
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`CPSC website are sent directly to the product’s manufacturer and retailers. Defendant also
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`monitored safety complaints from the CPSC, and thus Defendant would have independently
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`become aware of each safety report referenced herein separate and apart from noticed received
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`from the CPSC.
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`CLASS ACTION COMPLAINT
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`
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`5
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`Case 2:22-at-00251 Document 1 Filed 03/04/22 Page 7 of 18
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`28.
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`In total, Defendant received at least 61 reports of the Product overheating, including
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`5 reports of fire and 4 reports of burn injuries.1 This is an unusually high number of complaints for
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`a product, and the unusually high number of complaints here put Defendant on notice of the
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`Product Defect. The similarity of complaints also would have put Defendants on notice that the
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`complaints were not the result of user error or anomalous incidents, but instead were the result of a
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`systemic problem with the Product.
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`29.
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`Every time the CPSC’s website describes a consumer complaint, the website also
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`discloses the date when CPSC sent that complaint to the manufacturer. This is separate from the
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`portion of the safety complaint where the consumer states whether he or she independently
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`contacted the manufacturer. As alleged above, the above-referenced complaints were sent to
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`Defendant by the CPSC shortly after being submitted to the CPSC.
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`30.
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`For each of the following reasons, Defendant’s management knew or should have
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`known about the complaints referenced above as soon as they began appearing on the CPSC
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`website:
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`(a)
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`
`(b)
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`Defendant was repeatedly contacted directly by consumers and by the
`CPSC about the Product Defect.
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`The CPSC website is a government-run repository for complaints
`about safety-related defects, and many of Defendant’s products appear
`on the website. The CPSC website can provide businesses with early
`warnings of product defects, and monitoring reports is easy because
`users can search for reports by company names. Hence, since at least
`2011, it required negligible effort for Defendant’s management and
`other personnel to visit the CPSC website and view a list of reports of
`safety incidents related to the Product, including reports about the
`Product Defect at issue here.
`
`
`(c)
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`Defendant knows about the CPSC’s website because it is a high-
`profile government agency that deals with complaints about a number
`
`1 CPSC, E-filliate Recalls DEWALT Wireless Earphones Due to Burn and Fire Hazards,
`https://www.cpsc.gov/Recalls/2022/E-filliate-Recalls-DEWALT-Wireless-Earphones-Due-to-
`Burn-and-Fire-Hazards.
`
`CLASS ACTION COMPLAINT
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`6
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`
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`(d)
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`of products manufactured, distributed, and sold by Defendant, and
`because Defendant would have been contacted directly each time a
`consumer complained to the CPSC.
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`Defendant also knew or should have known about the defect because
`of the similarity of complaints. The fact that so many customers made
`similar complaints indicates that the complaints were not the result of
`user error or anomalous incidents, but instead a systemic problem with
`the products at issue here. The reports and complaints from consumers
`also put Defendant on notice that the Products were experiencing
`unusually high levels of complaints about the Product Defect at issue
`here, especially when compared to other earphones.
`
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`Upon information and belief, Defendant received numerous customer complaints
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`31.
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`before the named Plaintiff here purchased its Product.
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`32.
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`Defendant also would have had notice of the Product Defect as a result of direct
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`customer complaints and product returns.
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`33.
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`In short, information from customer returns, complaints directly to Defendant, and
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`information obtained from the CPSC, whether alone or in the aggregate, would have put Defendant
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`on notice of the defect. Nonetheless, Defendant failed to recall the Product until December 2021,
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`putting innumerable consumers at risk in the meantime.
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`CLASS REPRESENTATION ALLEGATIONS
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`Plaintiff seeks to represent a class defined as all persons in the United States who
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`34.
`
`purchased the Product (the “Class”). Excluded from the Class are persons who made such
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`purchases for purpose of resale.
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`35.
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`Plaintiff also seeks to represent a subclass of all Class Members who purchased the
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`Product in the State of New York (the “New York Subclass”) (collectively with the Class, the
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`“Classes”).
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`36.
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`Subject to additional information obtained through further investigation and
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`discovery, the above-described Classes may be modified or narrowed as appropriate, including
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`through the use of multi-state subclasses.
`CLASS ACTION COMPLAINT
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`7
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`37.
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`At this time, Plaintiff does not know the exact number of members of the
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`aforementioned Class and New York Subclass (“Class Members” and “Subclass Members,”
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`respectively). However, given the size of the recall and the number of retail stores in the United
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`States selling the Product, Plaintiff believes that Class and Subclass Members are so numerous that
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`joinder of all members is impracticable.
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`38.
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`There is a well-defined community of interest in the questions of law and fact
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`involved in this case. Questions of law and fact common to the members of the Class that
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`predominate over questions that may affect individual Class members include:
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`(a) whether Defendant misrepresented and/or failed to disclose material
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`facts concerning the Product;
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`(b) whether Defendant’s conduct was unfair and/or deceptive;
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`(c) whether Defendant has been unjustly enriched as a result of the
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`unlawful conduct alleged in this Complaint such that it would be
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`inequitable for Defendant to retain the benefits conferred upon
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`Defendant by Plaintiff and the Classes;
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`(d) whether Plaintiff and the Classes sustained damages with respect to
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`the common law claims asserted, and if so, the proper measure of
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`their damages.
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`39. With respect to the New York Subclass, additional questions of law and fact
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`common to the members that predominate over questions that may affect individual members
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`include whether Defendant violated the New York General Business Law § 349 and § 350.
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`40.
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`Plaintiff’s claims are typical of those of the Class because Plaintiff, like all members
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`of the Classes, purchased, in a typical consumer setting, Defendant’s Product, and Plaintiff
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`sustained damages from Defendant’s wrongful conduct.
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`CLASS ACTION COMPLAINT
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`8
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`41.
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`Plaintiff will fairly and adequately protect the interests of the Classes and has
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`retained counsel that is experienced in litigating complex class actions. Plaintiff has no interests
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`which conflict with those of the Classes.
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`42.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of this controversy, especially given the unsatisfactory nature of Defendant’s recall.
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`43.
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`The prosecution of separate actions by members of the Classes would create a risk
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`of establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For
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`example, one court might enjoin Defendant from performing the challenged acts, whereas another
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`might not. In addition, individual actions could be dispositive of the interests of the Classes even
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`where certain Class or Subclass Members are not parties to such actions.
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`COUNT I
`Violation Of New York General Business Law § 349
`
`Plaintiff hereby incorporates by reference the allegations contained in all preceding
`
`44.
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`paragraphs of this complaint.
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`45.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed New York Subclass against Defendant.
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`46.
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`New York’s General Business Law § 349 prohibits deceptive acts or practices in the
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`conduct of any business, trade, or commerce.
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`47.
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`In its sale of goods throughout the State of New York, Defendant conducts business
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`and trade within the meaning and intendment of New York’s General Business Law
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`§ 349.
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`48.
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`Plaintiff and members of the New York Subclass are consumers who purchased the
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`Products from Defendant for their personal use.
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`49.
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`By the acts and conduct alleged herein, Defendant engaged in deceptive, unfair, and
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`misleading acts and practices, which include, without limitation, misrepresenting that the Product
`9
`CLASS ACTION COMPLAINT
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`(i) would not contain a dangerous defect and (ii) is generally recognized as safe for use as an
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`earphone Product. Defendant intentionally concealed and omitted material facts regarding the true
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`nature of the Product, namely that the Product suffered from a design defect causing it to overheat.
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`Defendant had knowledge of the defect from consumer complaints which pre-dated Plaintiff’s
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`purchase of the Product.
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`50.
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`51.
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`The foregoing deceptive acts and practices were directed at consumers.
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`The foregoing deceptive acts and practices are misleading in a material way because
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`they fundamentally misrepresent the characteristics and quality of the Product to induce consumers
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`to purchase the same.
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`52.
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`By reason of this conduct, Defendant engaged in deceptive conduct in violation of
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`New York’s General Business Law.
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`53.
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`Defendant’s actions are the direct, foreseeable, and proximate cause of the damages
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`that Plaintiff and members of the New York Subclass have sustained from having paid for and used
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`Defendant’s Products.
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`54.
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`As a result of Defendant’s violations, Plaintiff and members of the New York
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`Subclass have suffered damages because: (a) they would not have purchased the Product on the
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`same terms if they knew that the Product had a dangerous defect; (b) they paid a premium price in
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`the amount of the full purchase price of the Product; and (c) the Product does not have the
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`characteristics, uses, benefits, or qualities as promised.
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`55.
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`On behalf of themselves and other members of the New York Subclass, Plaintiff
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`seeks to recover his actual damages or fifty dollars, whichever is greater, three times actual
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`damages, and reasonable attorneys’ fees.
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`
`
`
`
`CLASS ACTION COMPLAINT
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`10
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`
`
`COUNT II
`Violation Of New York General Business Law § 350
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`Plaintiff hereby incorporates by reference the allegations contained in all preceding
`
`56.
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`paragraphs of this complaint.
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`57.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed New York Subclass against Defendant.
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`58.
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`By the acts and conduct alleged herein, Defendant engaged in false advertising by
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`misrepresenting that the Product (i) would not contain a dangerous defect and (ii) is generally
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`recognized as safe for use as an earphone Product. Defendant intentionally concealed and omitted
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`material facts regarding the true nature of the Product, namely that the Product suffered from a
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`design defect causing it to overheat. Defendant had knowledge of the defect from consumer
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`complaints which pre-dated Plaintiff’s purchase of the Product.
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`59.
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`New York’s General Business Law § 350 prohibits false advertising in the conduct
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`of any business, trade, or commerce.
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`60.
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`Pursuant to said statute, false advertising is defined as “advertising, including
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`labeling, of a commodity … if such advertising is misleading in a material respect.”
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`61.
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`Based on the foregoing, Defendant engaged in consumer-oriented conduct that is
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`deceptive or misleading in a material way which constitutes false advertising in violation of New
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`York’s General Business Law § 350.
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`62.
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`Defendant’s false, misleading, and deceptive statements and representations of fact
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`were and are directed towards consumers. Defendant also actively concealed and knowingly
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`admitted material facts regarding the true nature of the Product.
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`63.
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`Defendant’s false, misleading, and deceptive statements and representations of fact
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`and omissions were and are likely to mislead a reasonable consumer acting reasonably under the
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`circumstances.
`CLASS ACTION COMPLAINT
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`64.
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`Defendant’s false, misleading, and deceptive statements and representations of fact
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`and omissions have resulted in consumer injury or harm to the public interest.
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`65.
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`As a result of Defendant’s false, misleading, and deceptive statements and
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`representations of fact, and omissions, Plaintiff and the New York Subclass have suffered and
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`continue to suffer economic injury.
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`66.
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`As a result of Defendant’s violations, Plaintiff and members of the New York
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`Subclass have suffered damages due to said violations because: (a) they would not have purchased
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`the Product on the same terms if they knew that the Product had a dangerous defect and are not
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`safe for use; (b) they paid a premium price in the amount of the full purchase price of the Product;
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`and (c) the Product does not have the characteristics, uses, benefits, or qualities as promised.
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`67.
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`On behalf of himself and other members of the New York Subclass, Plaintiff seeks
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`to recover actual damages or five hundred dollars, whichever is greater, three times actual
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`damages, and reasonable attorneys’ fees.
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`COUNT III
`Breach of Implied Warranty
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`Plaintiff hereby incorporates by reference the allegations contained in all preceding
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`68.
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`paragraphs of this complaint.
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`69.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Classes against Defendant.
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`70.
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`Defendant, as the marketer, distributor, and/or seller of the Product, impliedly
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`warranted that the Product (i) would not contain a safety-related defect and (ii) was generally safe
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`for consumer use.
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`71.
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`Defendant breached the warranty implied in the contract for the sale of the defective
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`Product because it could not pass without objection in the trade under the contract description, the
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`Product was not of fair or average quality within the description, and the Product was unfit for its
`12
`CLASS ACTION COMPLAINT
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`intended and ordinary purpose because the Product was defective in that it contained a defect that
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`made the Product unreasonably dangerous, and as such is not generally recognized as safe for
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`consumer use. As a result, Plaintiff and Class and Subclass Members did not receive the goods as
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`impliedly warranted by Defendant to be merchantable.
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`72.
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`In addition, Plaintiff and Class and Subclass Members were harmed because the
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`Product failed almost immediately after Plaintiff and Class and Subclass Members purchased the
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`product, a period far shorter than the implied warranty.
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`73.
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`Plaintiff and Class and Subclass Members purchased the Product in reliance upon
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`Defendant’s skill and judgment and the implied warranties of fitness for the purpose.
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`74.
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`75.
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`76.
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`The Product was not altered by Plaintiff or Class and Subclass Members.
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`The Product was defective when it left the exclusive control of Defendant.
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`Defendant knew that the Product would be purchased and used without additional
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`testing by Plaintiff and Class and Subclass Members.
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`77.
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`The Product was defectively manufactured and unfit for its intended purpose, and
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`Plaintiff and Class and Subclass Members did not receive the goods as warranted.
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`78.
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`Privity is not required as to Defendant because the Product contained a dangerous
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`design defect (i.e., the ability of the Product to overheat and pose a fire hazard). As the known end
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`purchaser, Plaintiff is also a third-party beneficiary of the implied warranty of merchantability.
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`79.
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`As a direct and proximate cause of Defendant’s breach of the implied warranty,
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`Plaintiff and Class and Subclass Members have been injured and harmed because: (a) they would
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`not have purchased the Product on the same terms if they knew that the Product contained the
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`Product Defect, making it unsafe for consumer use; and (b) the Product does not have the
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`characteristics, uses, or benefits as promised by Defendant.
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`CLASS ACTION COMPLAINT
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`COUNT IV
`Violation Of The Magnuson-Moss Warranty Act,
`15 U.S.C. §§ 2301, et seq.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`80.
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`above.
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`81.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Classes against Defendant.
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`82.
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`83.
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`§ 2301(3).
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`84.
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`85.
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`The Product is a consumer product as defined in 15 U.S.C. § 2301(1).
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`Plaintiff and the Class and Subclass Members are consumers as defined in 15 U.S.C.
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`Defendant is a supplier and warrantor as defined in 15 U.S.C. § 2301(4) and (5).
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`In connection with the marketing and sale of the Product, Defendant impliedly
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`warranted that the Product was fit for use as earphones. The Product was not fit for use as
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`earphones due to the defect described in the allegations above.
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`86.
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`By reason of Defendant’s breach of warranties, Defendant violated the statutory
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`rights due to Plaintiff and the Class and Subclass Members pursuant to the Magnuson-Moss
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`Warranty Act, 15 U.S.C. §§ 2301, et seq., thereby damaging Plaintiff and the Class and Subclass
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`Members.
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`87.
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`Plaintiff and the Class and Subclass Members were injured as a direct and
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`proximate result of Defendant’s breach because they would not have purchased the Product if they
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`knew the truth about the defective nature of the Product.
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`COUNT V
`Unjust Enrichment
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`88.
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`above.
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`CLASS ACTION COMPLAINT
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`89.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Classes against Defendant.
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`90.
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`“Although there are numerous permutations of the elements of the unjust
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`enrichment cause of action in the various states, there are few real differences. In all states, the
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`focus of an unjust enrichment claim is whether the defendant was unjustly enriched. At the core of
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`each state’s law are two fundamental elements—the defendant received a benefit from the plaintiff
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`and it would be inequitable for the defendant to retain that benefit without compensating the
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`plaintiff. The focus of the inquiry is the same in each state.” In re Mercedes-Benz Tele Aid
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`Contract Litig., 257 F.R.D. 46, 58 (D.N.J. Apr. 24, 2009), quoting Powers v. Lycoming Engines,
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`245 F.R.D. 226, 231 (E.D. Pa. 2007).
`
`91.
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`Plaintiff and Class members conferred a benefit on Defendant by purchasing the
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`Products and by paying a price premium for them.
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`92.
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`93.
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`Defendant has knowledge of such benefits.
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`Defendant has been unjustly enriched in retaining the revenues derived from Class
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`members’ purchases of the Product, which retention under these circumstances is unjust and
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`inequitable because Defendant misrepresented that the Product (i) would not contain a dangerous
`
`defect and (ii) is generally recognized as safe for use as an earphone Product. This
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`misrepresentation caused injuries to Plaintiff and Class members because they would not have
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`purchased the Product if the true facts regarding the Product were known.
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`94.
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`Because Defendant’s retention of the non-gratuitous benefit conferred on it by
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`Plaintiff and Class members is unjust and inequitable, Defendant must pay restitution to Plaintiff
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`and the Class members for their unjust enrichment, as ordered by the Court.
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`CLASS ACTION COMPLAINT
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, seeks
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`judgment against Defendant, as follows:
`
`a.
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`For an order certifying the nationwide Class and New York Subclass
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`under Rule 23 of the Federal Rules of Civil Procedure, naming Plaintiff
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`as representative of the Class and New York Subclass, and naming
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`Plaintiff’s attorneys as Class Counsel to represent the Class and New
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`York Subclass Members;
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`b.
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`For an order declaring the Defendant’s conduct violates the statutes
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`referenced herein;
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`c.
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`For an order finding i