Case 4:22-cv-01162-DMR Document 1 Filed 02/24/22 Page 1 of 31
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-Mail: ltfisher@bursor.com
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`BURSOR & FISHER, P.A.
`Rachel L. Miller (Pro hac vice forthcoming)
`701 Brickell Ave., Suite 1420
`Miami, FL 33131
`Telephone: (305) 330-5512
`Facsimile: (305) 676-9006
`E-mail: rmiller@bursor.com
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`BURSOR & FISHER, P.A.
`Joshua D. Arisohn (Pro hac vice forthcoming)
`Max S. Roberts (Pro hac vice forthcoming)
`Julian C. Diamond (Pro hac vice forthcoming)
`888 Seventh Avenue
`New York, NY 10019
`Telephone: (646) 837-7150
`Facsimile: (212) 989-9163
`E-Mail: jarisohn@bursor.com
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` mroberts@bursor.com
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` jdiamond@bursor.com
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`Attorneys for Plaintiff
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`Defendant.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`AMANDA LAW, individually and on behalf
`of all others similarly situated,
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`Plaintiff,
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`v.
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`NATERA, INC.,
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`Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff Amanda Law (“Plaintiff”) brings this action on behalf of herself and all others
`similarly situated against Defendant Natera, Inc. (“Defendant” or “Natera”). Plaintiff makes the
`following allegations pursuant to the investigation of her counsel and based upon information
`and belief, except as to the allegations specifically pertaining to herself, which are based upon
`personal knowledge.
`
`NATURE OF THE ACTION
`1.
`This is a putative class action lawsuit on behalf of purchasers of Natera’s
`Panorama Test (“Panorama Test” or collectively, the “Tests”). Defendant markets and sells the
`Tests as genetic, prenatal screening tests for pregnant women that screen for various
`chromosomal and genetic conditions affecting a baby’s health. Defendant markets these tests as
`accurate. However, unbeknownst to consumers, Panorama Test results indicating a genetic
`disorder are incorrect approximately 85 percent of the time.1 Thus, the Tests are worth far less
`than their market price. In addition, as a result of these false results, expecting mothers are often
`unnecessarily subjected to further diagnostic testing, genetic counseling, and the even erroneous
`termination of a viable pregnancy.
`2.
`Prenatal testing in recent years has moved towards non-invasive methods to
`determine the fetal risk for genetic disorders, including Non-Invasive Prenatal Testing
`(“NIPT”).2
`3.
`NIPT analyzes DNA fragments from the blood of a pregnant woman to estimate
`the risk that the fetus will be born with certain genetic abnormalities, including chromosomal
`disorders like Down Syndrome and Trisomy 18, or other, more rare disorders, like Prader-Willi
`and Angelman Syndrome.
`4.
`NIPT is incredibly popular. However, many of these tests are often inaccurate,
`giving pregnant women false positive results for genetic conditions that their fetuses do not have.
`
`
`1 https://www.nytimes.com/2022/01/01/upshot/pregnancy-birth-genetic-testing.html
`2 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6545823/
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`5.
`In fact, a recent New York Times investigation found that for every 15 times an
`NIPT screening correctly identifies a fetal disorder, the screening is wrong 85 times, meaning
`that 85 percent of all positive results are false positives.3
`6.
`Despite this inaccurate testing, Defendant falsely advertises their findings as
`reliable, accurate and offering peace of mind for patients regarding the viability of their
`pregnancies. These false positives can lead to devastating personal consequences and painful
`decisions that are premised upon this wrong information.
`7.
`Plaintiff and Class Members purchased the Tests designed, marketed,
`manufactured, distributed, and sold by Defendant as accurate and reliable. Plaintiff and Class
`Members would not have purchased Defendant’s Tests—or, at minimum, would have paid
`significantly less for the Tests—had they known the Tests were inaccurate. Plaintiff and Class
`Members thus suffered monetary damages as a result of Defendant’s deceptive and false
`representations.
`
`PARTIES
`8.
`Plaintiff Amanda Law is a resident of Hathaway Pines, California and a citizen of
`California. In or about September 2018, during the first trimester of her pregnancy, when
`Plaintiff resided in Florida, she visited her doctor’s office in Fort Lauderdale, Florida, where she
`received a brochure about Defendant’s Panorama Test. After reviewing Defendant’s brochure
`and website, Plaintiff decided to purchase Defendant’s Panorama Test because Defendant
`described the Test as accurate. Specifically, Defendant represented that the Test was “clinically-
`validated,” that it provided “greater accuracy,” and that it was “rigorously validated.” Defendant
`further represented that its Tests are a “trusted resource” that “pose[] no risk to the baby
`compared to amniocentesis or chorionic villus sampling (CVS).” On September 24, 2018,
`Plaintiff received her Panorama Test results. The results showed a “High Risk” for Triploidy,
`Trisomy 18, or Trisomy 13. Due to the “High Risk” finding, Plaintiff suffered emotional
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`3 https://www.nytimes.com/2022/01/01/upshot/pregnancy-birth-genetic-testing.html
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`distress, stress and anxiety throughout her pregnancy. Plaintiff ultimately gave birth to a healthy
`baby girl who did not suffer from any chromosomal abnormalities. Plaintiff paid for the
`Panorama Test out of pocket because it was not covered by her insurance. Plaintiff relied on
`Defendant’s representations and warranties in deciding to purchase the Panorama Test.
`Accordingly, Defendant’s representations and warranties were part of the basis of the bargain, in
`that she would not have purchased the Panorama Test on the same terms had she known that
`Defendant’s representations about accuracy and trustworthiness were not true, or at least would
`have paid significantly less for the Panorama Test.
`9.
`Defendant Natera, Inc. is a corporation organized and existing under the laws of
`the state of Delaware, with its principal place of business in San Carlos, California. Natera is a
`molecular diagnostic company specializing in genetic tests that determine the risk of developing
`disease, assess the risk of disease progression, and guide treatment decisions.
`JURISDICTION AND VENUE
`10.
`This Court has subject matter jurisdiction pursuant to 28 U.S.C § 1332(d)(2)(a)
`because this case is a class action where the aggregate claims of all members of the proposed
`class are in excess of $5,000,000.00, exclusive of interest and costs, there are over 100 members
`of the putative class, and most members of the proposed class are citizens of states different from
`Defendant.
`11.
`This Court has personal jurisdiction over this action because Defendant maintains
`its principal place of business in California, and therefore is subject to general jurisdiction in the
`state of California.
`12.
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(a) because Defendant
`resides in this District.
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`FACTUAL ALLEGATIONS
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`A.
`13.
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`Natera’s “Panorama” NIPT
`The discovery of fetal DNA in maternal blood has led to changes in prenatal
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`screening. Following this discovery, many companies began working on blood tests, otherwise
`known as NIPT, aimed at detecting chromosomal abnormalities without the invasive and risky
`nature of amniocentesis and chorionic villus sampling (“CVS”).4
`14.
`In 2013, Natera launched “Panorama,” its non-invasive prenatal test for
`chromosomal disorders, including Down Syndrome (Trisomy 21), Edwards Syndrome (Trisomy
`18), and Patau Syndrome (Trisomy 13).5 Panorama was touted as “a very reliable, yet safe non-
`invasive prenatal test” with “no false positives for all the syndromes tested.”6 Given its
`purportedly revolutionary nature, Natera “look[ed] forward to broadly extending the full benefits
`of Panorama’s technology” in the future.7
`15.
`Shortly thereafter, in 2014, Natera announced that its Panorama test would now
`screen for several microdeletion syndromes, including DiGeorge, Angelmen, Cri-du-chat, and
`Prader-Willi syndromes.8 Microdeletions are chromosomal abnormalities that occur when a
`piece of a chromosome is missing.
`16.
`Natera’s Panorama test is presently advertised as a “blood-based genetic, prenatal
`screening test” that screens for “common chromosomal conditions that affect a baby’s health.”
`17.
`The use of Panorama is widespread through the United States, with more than
`400,000 screenings for one microdeletion in 2020 alone—the “equivalent of testing roughly 10
`percent of pregnant women in America.”9
`18.
`Natera claims on its website that Panorama is “clinically-validated,” that it
`provides “greater accuracy,” and that it is “rigorously validated.”
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`
`4 https://blog.seracare.com/ngs/evolution-of-non-invasive-prenatal-testing-nipt-testing
`5 https://investor.natera.com/news-releases/news-release-details/natera-launches-non-invasive-
`prenatal-test-panoramatm-best-class.
`6 Id.
`7 Id.
`8 https://www.natera.com/womens-health/panorama-nipt-prenatal-screening/
`9 https://www.nytimes.com/2022/01/01/upshot/pregnancy-birth-genetic-testing.html
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`19.
`Natera also claims that Panorama reduces the need for unnecessary invasive
`diagnostic testing and tells women that its Tests are a “trusted resource” that “poses no risk to the
`baby compared to amniocentesis or chorionic villus sampling (CVS).”
`
`20.
`Panorama, according to Natera’s website, identifies whether a fetus is a “low risk”
`or “high risk” for genetic disease. A “high risk” finding, according to Natera, “indicates a very
`high probability that your baby may have [the] condition” identified.
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`21.
`Defendant’s brochure makes similar claims of accuracy and trustworthiness. For
`example, the Panorama brochure states that the Test “[p]rovides substantially fewer incorrect
`results than maternal serum screening or other prenatal blood tests” and again “[p]oses no risk to
`your baby unlike amniocentesis and chorionic villus sampling (CVS), which carry a slight risk of
`miscarriage.”
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`22.
`Defendant also claims to distinguish Panorama from other NIPT tests,
`maintaining that Panorama results in “[f]ewer false positives and fewer false negatives.”
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`23.
`Panorama, like other NIPT tests, is costly. Although Natera estimates that the
`average out-of-pocket cost for women is less than $249,10 it can often be much more expensive,
`often costing thousands of dollars.11
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`B.
`Defendant’s False Advertising of the Tests
`24.
`Since the launch of Panorama, Defendant has consistently advertised the Tests as
`“clinically-validated” and trustworthy. Unfortunately for pregnant women, like Plaintiff, the
`Tests are alarmingly inaccurate.
`25.
`A recent investigation by the New York Times found that despite the Tests and
`other NIPT tests being advertised as “reliable,” “highly accurate,” and offering “total
`confidence” and “peace of mind” for patients, the tests are inaccurate more than 85 percent of the
`time.
`
`26.
`As a result of these false positive screenings, women are forced to undergo the
`very invasive testing that Defendant claims its Tests help women avoid, including amniocentesis
`and CVS. During an amniocentesis, a needle is used to remove amniotic fluid from the uterus
`for testing. Similarly, during a CVS procedure, a catheter or needle is used to biopsy placental
`cells that are derived from the same fertilized egg as the fetus. Both procedures include an
`increased risk of miscarriage.12
`27. Many women also have abortions after obtaining positive results from NIPT
`screens, even though those results may very well be inaccurate. For example, a 2014 study
`found that six percent of patients who screened positive obtained an abortion without getting
`another test to confirm the result.13
`
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`10 https://www.natera.com/wp-content/uploads/2021/01/PTP-Billing-Guide-2020-English.pdf
`11 https://www.genomeweb.com/molecular-diagnostics/natera-accused-unfair-deceptive-billing-
`practices-related-nipt-services-new#.YdSpvmjMKUk
`12 https://www.nytimes.com/2022/01/01/upshot/pregnancy-birth-genetic-testing.html
`13 https://www.nytimes.com/2022/01/01/upshot/pregnancy-birth-genetic-testing.html
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`28.
`Consumers are therefore paying hundreds of dollars for testing that is highly
`inaccurate and untrustworthy.
`29.
`Plaintiff brings this action on behalf of herself and the Class for equitable relief
`and to recover damages and restitution for: (i) breach of express warranty; (ii) breach of implied
`warranty; (iii) unjust enrichment; (iv) fraud; (v) fraudulent omission; and (vi) violation of the
`Florida Deceptive and Unfair Practices Act (“FDUPTA”), Fla. Stat. §§ 501.201, et seq.; (vii)
`violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et
`seq.; (viii) violation of California’s Consumers Legal Remedies Act (“CLRA”), Civil Code §§
`1750, et. seq.; and (ix) violation of California’s False Advertising Law (“FAL”), Cal. Bus & Prof
`Code § 17500.
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`CLASS ALLEGATIONS
`30.
`Plaintiff seeks to represent a class defined as all persons in the United States who
`purchased a Panorama test (the “Nationwide Class”).
`31.
`Plaintiff also seeks to represent a class defined as all persons who reside in the
`state of Florida who purchased a Panorama test (the “Subclass”) (collectively with the
`Nationwide Class, “Class”).
`32.
`Specifically excluded from the Class are persons who made such purchase for the
`purpose of resale, Defendant, Defendant’s officers, directors, agents, trustees, parents, children,
`corporations, trusts, representatives, employees, principals, servants, partners, joint ventures, or
`entities controlled by Defendant, and its heirs, successors, assigns, or other persons or entities
`related to or affiliated with Defendant and/or Defendant’s officers and/or directors, the judge
`assigned to this action, and any member of the judge’s immediate family.
`33.
`Subject to additional information obtained through further investigation and
`discovery, the foregoing definition of the Class may be expanded or narrowed by amendment or
`amended complaint.
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`Numerosity. The members of the Class are geographically dispersed throughout
`34.
`the United States and are so numerous that individual joinder is impracticable. Upon
`information and belief, Plaintiff reasonably estimates that there are hundreds of thousands of
`members in the Class. Although the precise number of Class members is unknown to Plaintiff,
`the true number of Class members is known by Defendant and may be determined through
`discovery. Class members may be notified of the pendency of this action by mail and/or
`publication through the distribution records of Defendant and third-party retailers and vendors.
`Existence and predominance of common questions of law and fact. Common
`35.
`questions of law and fact exist as to all members of the Class and predominate over any
`questions affecting only individual Class members. These common legal and factual questions
`include, but are not limited to, the following:
`
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`(a)
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`whether the Panorama manufactured, distributed, and sold by Defendant
`was unfit for use as screening test, thereby breaching express and implied
`warranties made by Defendant and making the Panorama Test unfit for its
`intended purpose;
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`whether Defendant knew or should have known that the Panorama Test
`would often provide false positive results prior to selling the Tests, thereby
`constituting fraud and/or fraudulent omission;
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`whether Defendant is liable to Plaintiff and the Class for unjust
`enrichment;
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`whether Plaintiff and the Class have sustained monetary loss and the
`proper measure of that loss;
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`whether Plaintiff and the Class are entitled to declaratory and injunctive
`relief;
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`whether Plaintiff and the Class are entitled to restitution and disgorgement
`from Defendant; and
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`whether the marketing, advertising, packaging, labeling, and other
`promotional materials for Panorama are deceptive.
`Typicality. Plaintiff’s claims are typical of the claims of the other members of
`36.
`the Class in that Defendant mass marketed and sold defective Panorama tests to consumers
`throughout the United States. This defect was present in all of the Panorama tests manufactured,
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`(b)
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`(c)
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`(d)
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`(e)
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`(f)
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`(g)
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`distributed, and sold by Defendant. Therefore, Defendant breached its express and implied
`warranties to Plaintiff and Class members by manufacturing, distributing, and selling the
`defective Panorama Tests. Plaintiff’s claims are typical in that she was uniformly harmed in
`purchasing and using defective a Panorama Test. Plaintiff’s claims are further typical in that
`Defendant deceived Plaintiff in the very same manner as it deceived each member of the Class.
`Further, there are no defenses available to Defendant that are unique to Plaintiff.
`Adequacy of Representation. Plaintiff will fairly and adequately protect the
`37.
`interests of the Class. Plaintiff has retained counsel that is highly experienced in complex
`consumer class action litigation, and Plaintiff intends to vigorously prosecute this action on
`behalf of the Class. Furthermore, Plaintiff has no interests that are antagonistic to those of the
`Class.
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`Superiority. A class action is superior to all other available means for the fair
`38.
`and efficient adjudication of this controversy. The damages or other financial detriment suffered
`by individual Class members are relatively small compared to the burden and expense of
`individual litigation of their claims against Defendant. It would, thus, be virtually impossible for
`the Class, on an individual basis, to obtain effective redress for the wrongs committed against
`them. Furthermore, even if Class members could afford such individualized litigation, the court
`system could not. Individualized litigation would create the danger of inconsistent or
`contradictory judgments arising from the same set of facts. Individualized litigation would also
`increase the delay and expense to all parties and the court system from the issues raised by this
`action. By contrast, the class action device provides the benefits of adjudication of these issues
`in a single proceeding, economies of scale, and comprehensive supervision by a single court, and
`presents no unusual management difficulties under the circumstances.
`39.
`In the alternative, the Class may also be certified because:
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`(a)
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`the prosecution of separate actions by individual Class members would
`create a risk of inconsistent or varying adjudications with respect to
`individual members that would establish incompatible standards of
`conduct for the Defendant;
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`(b)
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`(c)
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`the prosecution of separate actions by individual Class members would
`create a risk of adjudications with respect to them that would, as a
`practical matter, be dispositive of the interests of other Class members not
`parties to the adjudications, or substantially impair or impede their ability
`to protect their interests; and/or
`Defendant has acted or refused to act on grounds generally applicable to
`the Class as a whole, thereby making appropriate final declaratory and/or
`injunctive relief with respect to the members of the Class as a whole.
`CAUSES OF ACTION
`
`COUNT I
`Breach Of Express Warranty
`40.
`Plaintiff incorporates by reference the allegations contained in all preceding
`paragraphs of this complaint.
`41.
`Plaintiff brings this claim individually and on behalf of the Class against
`Defendant.
`42.
`In connection with the sale of the Tests, Defendant, as the designer, manufacturer,
`marketers, distributor, and/or seller issued written warranties by representing that the Tests are
`“clinically-validated” and provide “greater accuracy” as “the most rigorously validated NIPT.”
`Defendant further represents that its Tests are a “trusted resource” that “pose[] no risk to the
`baby compared to amniocentesis or chorionic villus sampling (CVS)” and result in“[f]ewer false
`positives and fewer false negatives.”
`43.
`In fact, the Tests do not conform to the above-referenced representations because
`the tests are inaccurate approximately 85 percent of the time.
`44.
`Plaintiff and Class Members were injured as a direct and proximate result of
`Defendant’s breaches because they would not have purchased the Tests if they had known that
`the Tests did not work as warranted.
`45.
`On February 24, 2022, prior to the filing of this action, Defendant was served
`with a notice letter on behalf of Plaintiff and the Class that complied in all respects with U.C.C.
`§§ 2-313 and 2-607. Plaintiff’s counsel sent Defendant a letter advising Defendant that it
`breached an express warranty and demanded that Defendant cease and desist from such breaches
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`and make full restitution by refunding the monies received therefrom. A true and correct copy of
`this letter is attached hereto as Exhibit 1.
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`COUNT II
`Breach Of Implied Warranty
`46.
`Plaintiff hereby incorporates by reference the allegations contained in all
`preceding paragraphs of this complaint.
`47.
`Plaintiff brings this claim individually and on behalf of the members of the
`proposed Class against Defendant.
`48.
`Defendant, as the designer, manufacturer, marketer, distributor, and/or seller,
`impliedly warranted that the Tests were suited for use to detect chromosomal abnormalities with
`a high degree of accuracy. Defendant breached the warranty implied in the contract for the sale
`of the Tests because the Tests could not “pass without objection in the trade under the contract
`description,” the Tests were not “of fair average quality within the description,” the Tests were
`not “adequately contained, packaged, and labeled as the agreement may require,” and the Tests
`did not “conform to the promise or affirmations of fact made on the container or label.” See
`U.C.C. § 2-314(2) (listing requirements for merchantability). As a result, Plaintiff and Class
`Members did not receive the goods as impliedly warranted by Defendant to be merchantable.
`49.
`Plaintiff and the Class Members purchased the Tests in reliance upon Defendant’s
`skill and judgment in properly packaging and labeling the Tests.
`The Tests were not altered by Plaintiff and Class Members.
`50.
`51.
`The Tests were not fit for their intended purpose when they left the exclusive
`control of Defendant.
`52.
`Defendant knew that the Tests would be purchased and used without additional
`testing by Plaintiff and Class Members.
`53.
`The Tests were defectively designed and unfit for their intended purpose, and
`Plaintiff and Class Members did not receive the Tests as warranted.
`54.
`Plaintiff and Class Members and Subclass Members were injured as a direct and
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:22-cv-01162-DMR Document 1 Filed 02/24/22 Page 15 of 31
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`proximate result of Defendant’s breach because (i) they would not have purchased the Tests if
`they had known that the Tests were highly inaccurate, not dependable, and therefore unsuitable
`for their stated and advertised purpose of detecting chromosomal abnormalities with a high
`degree of accuracy, and (ii) they overpaid for the Tests on account of its misrepresentations that
`it was capable of detecting chromosomal abnormalities with a high degree of accuracy.
`55.
`On February 24, 2022, prior to the filing of this action, Defendant was served
`with a notice letter on behalf of Plaintiff and the Class that complied in all respects with U.C.C.
`§§ 2-313 and 2-607. Plaintiff’s counsel sent Defendant a letter advising Defendant that it
`breached an implied warranty and demanded that Defendant cease and desist from such breaches
`and make full restitution by refunding the monies received therefrom. A true and correct copy of
`this letter is attached hereto as Exhibit 1.
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`COUNT III
`Unjust Enrichment
`56.
`Plaintiff incorporates by reference the allegations contained in all preceding
`paragraphs of this complaint.
`57.
`Plaintiff brings this claim individually and on behalf of the members of the
`proposed Class against Defendant.
`58.
`Plaintiff and the Class conferred a benefit on Defendant in the form of monies
`paid to purchase Defendant’s defective Panorama tests.
`59.
`Defendant voluntarily accepted and retained this benefit.
`60.
`Because this benefit was obtained unlawfully, namely by selling and accepting
`compensation for medical tests unfit for the purpose in which they were sold, it would be unjust
`and inequitable for the Defendant to retain it without paying the value thereof.
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`COUNT IV
`Fraud
`61.
`Plaintiff hereby incorporates by reference the allegations contained in all
`preceding paragraphs of this complaint.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`62.
`Plaintiff brings this claim individually and on behalf of the members of the
`proposed Class against Defendant.
`63.
`As discussed above, Defendant provided Plaintiff and Class members with
`materially false or misleading information about the Panorama tests manufactured, distributed,
`and sold by Defendant. Specifically, Defendant had knowledge of the fact that Panorama tests
`were highly inaccurate, often causing false positive results. Defendant nevertheless actively
`represented to consumers that the Panorama tests were fit for their intended purpose.
`64.
`The misrepresentations and omissions of material fact made by Defendant, upon
`which Plaintiff and Class members reasonably and justifiably relied, were intended to induce and
`actually induced Plaintiff and Class members to purchase defective Panorama tests.
`65.
`The fraudulent actions of Defendant caused damage to Plaintiff and Class
`members, who are entitled to damages and other legal and equitable relief as a result.
`66.
`As a result of Defendant’s willful and malicious conduct, punitive damages are
`warranted.
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`COUNT V
`Fraudulent Omission
`67.
`Plaintiff incorporates by reference the allegations contained in all preceding
`paragraphs of this complaint.
`68.
`Plaintiff brings this claim individually and on behalf of the members of the
`proposed Class against Defendant.
`69.
`As discussed above, Defendant failed to disclose that the Tests would frequently
`provide false positive results.
`70.
`The false and misleading omissions were made with knowledge or their
`falsehood. Defendant is a national genetics laboratory that specializes in genetic testing and
`therefore knew the Tests would provide an unnecessarily high number of false positive results.
`Nonetheless, Defendant continued to sell its worthless Tests to unsuspecting consumers.
`71.
`The false and misleading omissions were made by Defendant, upon which
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Plaintiff and members of the proposed Class reasonably and justifiably relied, and were intended
`to induce and actually induced Plaintiff and Class Members to purchase the tests.
`72.
`The fraudulent actions of Defendant caused damage to Plaintiff and Class
`Members, who are entitled to damages and punitive damages.
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`COUNT VI
`(Violation of The Florida Deceptive And Unfair Practices Act,
`Fla. Stat. §§ 501.201 et seq.)
`73.
`Plaintiff hereby incorporates by reference the allegations contained in all
`preceding paragraphs of this complaint.
`74.
`Plaintiff brings this claim individually and on behalf of the Subclass against
`Defendant.
`75.
`Class members are “consumers” within the meaning of the Florida Unfair and
`Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.203(7).
`76.
`Defendant is engaged in “trade or commerce” within the meaning of Fla. Stat. §
`501.203(8).
`77.
`The FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or
`practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce....”
`Fla. Stat. § 501.204(1). Defendant participated in unfair and deceptive trade practices that
`violated the FDUTPA as described herein.
`78.
`In the course of business, Defendant actively concealed information reasonable
`consumers need to know before purchasing Defendant’s Tests.
`79.
`Defendant knew or should have known that the Tests were inaccurate and
`untrustworthy. The Subclass was deceived by Defendant’s misrepresentation into believing that
`the Tests were “clinically-validated” and a “trusted resource,” when in reality the Tests provide
`an unreasonably high number of false positive results.
`80.
`Defendant made material misrepresentations about the accuracy of the Tests that
`were false and misleading.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`81.
`Defend