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Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 1 of 37
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Sean L. Litteral (State Bar No. 331985)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
` slitteral@bursor.com
`
`
`BURSOR & FISHER, P.A.
`Joshua D. Arisohn (pro hac vice forthcoming)
`Alec M. Leslie (pro hac vice forthcoming)
`888 Seventh Avenue
`New York, NY 10019
`Telephone: (646) 837-7150
`Facsimile: (212) 989-9163
`E-Mail: jarisohn@bursor.com
`
` aleslie@bursor.com
`
`Attorneys for Plaintiff
`
`
`
`Plaintiff,
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`AZMAN HUSSAIN, individually and on behalf
`of all others similarly situated,
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`
`
`
`
`BURGER KING CORPORATION,
`
` Defendant.
`
`
`
`v.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`
`
` Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 2 of 37
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`Plaintiff Azman Hussain (“Plaintiff”) brings this action on behalf of himself and all others
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`similarly situated against Defendant Burger King Corporation (“Defendant”). Plaintiff makes the
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`following allegations pursuant to the investigation of his counsel and based upon information and
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`belief, except as to the allegations specifically pertaining to himself, which are based on personal
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`knowledge.
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`NATURE OF ACTION
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`1.
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`Plaintiff brings this Class action lawsuit on behalf of herself and similarly situated
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`consumers (“Class Members”) who purchased for personal, family, or household use, Defendant’s
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`Whopper (the “Product”), which is unfit for human consumption because the packaging in which it
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`is contained—and is essential and integral to delivering the Product to the consuming public1—
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`contains unsafe per- and polyfluoralkyl substances (“PFAS”).2
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`2.
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`PFAS are a group of synthetic chemicals known to be harmful to both the
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`environment and humans. Because PFAS persist and accumulate over time, they are harmful even
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`at very low levels. Indeed, “PFAS have been shown to have a number of toxicological effects in
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`laboratory studies and have been associated with thyroid disorders, immunotoxic effects, and
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`various cancers in epidemiology studies.”3
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`3.
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`In fact, scientists are studying—and are extremely concerned about—how PFAS
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`affect human health. Consequently, the CDC outlined “a host of health effects associated with
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`PFAS exposure, including cancer, liver damage, decreased fertility, and increased risk of asthma
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`and thyroid disease.”4
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`1 Due to the integral and essential nature of the packaging, the term “Product” is used herein to
`denote both the Product and the Product’s packaging.
`2 Discovery may reveal that additional Burger King products are within the scope of this
`Complaint. Accordingly, Plaintiff reserves the right to include additional food products identified
`throughout the course of discovery.
`3 Nicholas J. Heckert, et al. “Characterization of Per- and Polyfluorinated Alkyl Substances Present
`in Commercial Anti-fog Products and Their In Vitro Adipogenic Activity,” Environ. Sci. Technol.
`2022, 56, 1162-1173, 1162.
`4 Harvard T.H. Chan Sch. Of Pub. Health, Health Risks of widely used chemicals may be
`underestimated (June 27, 2018), https://www.hsph.harvard.edu/news/hsph-in-the-news/pfas-health-
`risks-underestimated/ (last visited Mar. 30, 2022).
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 3 of 37
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`4.
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`Despite Defendant’s representations to consumers that its products are “safe,” and
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`“sustainable,” including in its website and the Product packaging—which is an essential and
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`integral part of delivering the Product to consumers—independent research conducted by
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`Consumer Reports5 determined that the Product packaging contains 249.7 parts per million (ppm)
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`of total organic fluorine.”6
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`5.
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` As a point of reference, the current EPA health advisor limit for safe consumption,
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`is just 70 nanograms per liter.7 To put this in perspective, 1 part per million is the equivalent
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`of 1,000,000 nanograms per liter.8 Accordingly, the Product would expose a consumer to PFAS
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`at levels that are several orders of magnitude higher than one would receive from drinking a liter of
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`water that contains PFAS at the level considered safe by the EPA.
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`6.
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`Thus, based on Defendant’s representations, a reasonable consumer would expect
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`that the Product can be safely purchased and consumed as marketed and sold. However, the
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`Product is not safe, posing a significant health risk to unsuspecting consumers. Nor is the Product
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`sustainable. Yet, neither before nor at the time of purchase does Defendant notify consumers like
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`Plaintiff that their Product is unsafe and harmful to the environment, contains heightened levels of
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`PFAS, or should otherwise be approached with caution.
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`7.
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`Accordingly, Plaintiff brings his claims against Defendant individually and on
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`behalf of a class of all other similarly situated for (1) violation of California’s Unfair Competition
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`Law, Cal. Bus. & Prof. Code § 17200, et seq.; (2) violation of the Consumer Legal Remedies Act,
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`Cal. Civ. Code § 1750, et seq.; (3) breach of the Implied Warranty under Song-Beverly Consumer
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`5 Kevin Loria, “Dangerous PFAS Chemicals Are in Your Food Packaging,” Consumer Reports,
`https://www.consumerreports.org/pfas-food-packaging/dangerous-pfas-chemicals-are-in-your-
`food-packaging-a3786252074/ (last visited Mar. 30, 2022).
`6 According to Toxin Free USA, “organic fluorine results identify a quantity of organofluorine
`compounds (e.g., PFAS) and excludes the possibility that fluorine may be present from other or
`natural sources.” See GMO Free v. CoverGirl Cosmetics, et al., Case No. 2021-CV-0046786B
`(D.C. Super. Dec. 20, 2021), Docket No. 1, ¶¶ 30-31.
`7 Duke University, Nicholas School of the Environment, “High Levels of PFAS Found in Anti-
`Fogging Sprays and Cloths,” (Jan. 5, 2022), https://nicholas.duke.edu/news/high-levels-pfas-found-
`anti-fogging-sprays-and-cloths (last visited Mar. 30, 2022).
`8 JustinTOOLS, “Density Units Conversion parts-per-million to nanograms-per-liter,”
`https://www.justintools.com/unit-conversion/density/php?k1=parts-per-million&k2=nanograms-
`per-milliliter (last visited Mar. 30, 2022).
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 4 of 37
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`Warranty Act, Cal. Civ. Code § 1792, et seq. and California Commercial Code § 2314; (4)
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`violation of California’s False Advertising Law, Cal. Bus. & Prof. Code § 17200, et seq.; (5)
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`Fraud; (6) Constructive Fraud; (7) Fraudulent Inducement; (8) Money Had And Received; (9)
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`Fraudulent Omission or Concealment; (10) Fraudulent Misrepresentation; (11) Negligent
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`Misrepresentation; (12) Quasi-Contract / Unjust Enrichment; (13) Breach of Express Warranty;
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`and (14) Negligent Failure to Warn.
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`THE PARTIES
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`8.
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`Plaintiff Azman Hussain is a natural person and citizen of California who resides in
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`Fremont, California. Plaintiff Hussain has purchased the Product from Defendant for several years,
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`including as recently as March 2022 from a Burger King located in Fremont, California. Prior to
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`his purchase, Mr. Hussain reviewed the labeling, packaging, and marketing materials of his
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`Product, including those set out herein, including that the Product was safe and sustainable. Mr.
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`Hussain understood that based on Defendant’s claims, that Product was safe for consumption, and
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`otherwise a sustainable product. Mr. Hussain reasonably relied on these representations and
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`warranties in deciding to purchase the Product, and these representations and warranties were part
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`of the basis of the bargain in that he would not have purchased the Product, or would not have
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`purchased it on the same terms, if the true facts had been known. As a direct result of Defendant’s
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`material misrepresentations and omissions, Mr. Hussain suffered and continues to suffer, economic
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`injuries.
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`9.
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`Mr. Hussain continues to desire to purchase the Product from Defendant. However,
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`Mr. Hussain is unable to determine if the Product is actually safe and sustainable. Mr. Hussain
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`understands that the composition of the Product may change over time. But as long as Defendant
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`continues to market its products as “safe” and “sustainable,” he will be unable to make informed
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`decisions about whether to purchase Defendant’s Product and will be unable to evaluate the
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`different prices between Defendant’s Product and competitor’s Products. Mr. Hussain is further
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`likely to be repeatedly misled by Defendant’s conduct, unless and until Defendant is compelled to
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`ensure that the Product is marketed, labeled, packaged, and advertised as safe and sustainable, are
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`in fact safe and sustainable.
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 5 of 37
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`10.
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`Defendant Burger King Corporation (“Defendant”) is a foreign corporation with its
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`principal place of business located in Miami, Florida.
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`JURISDICTION AND VENUE
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`11.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A), as
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`amended by the Class Action Fairness Act of 2005 (“CAFA”), because this case is a class action
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`where the aggregate claims of all members of the proposed class are in excess of $5,000,000.00,
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`exclusive of interest and costs, there are over 100 members of the putative class, and Plaintiff, as
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`well as most members of the proposed class, are citizens of different states than Defendant.
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`12.
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`This Court has personal jurisdiction over Defendant transacts substantial business in
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`this District, has substantial aggregate contacts with this District, engaged in conduct that has and
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`had a direct, substantial, reasonably foreseeable, and intended effect of causing injury to persons
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`throughout this District, and purposefully availed itself of the laws of the State of California in this
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`District, because the acts and transactions giving rise to this action occurred in this District.
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`13.
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`This Court is the proper venue for this action pursuant to pursuant to 28 U.S.C. §
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`1391 because a substantial part of the events, omissions, and acts giving rise to Plaintiff’s claims
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`herein occurred in this District.
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`FACTUAL ALLEGATIONS
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`Food and Consumer Preferences
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`According to a recent survey, chemicals in food (including carcinogens or cancer-
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`A.
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`14.
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`causing chemicals) represents the most important food safety issue to consumers.9 Consumers
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`ranked this concern more highly than any other concern, including foodborne illness from bacteria
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`and use of pesticides.10
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`15.
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`At the same time, awareness of, and an inclination toward, safer products is guiding
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`consumer choices. One survey, for instance, found that “when asked to choose the top three
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`factors they prioritize when deciding between products, the majority of consumers surveyed said
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`9 Tom Neltner, “Chemicals in food continue to be a top food safety concern among consumers,”
`(Sept. 16, 2021), https://blogs.edf.org/health/2021/09/16/chemicals-in-food-continue-to-be-a-top-
`food-safety-concern-among-consumers/ (last visited Mar. 30, 2021).
`10 Id.
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 6 of 37
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`they prioritize the health/safety of products (71%) and products free of certain toxic chemicals
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`(70%).”11
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`16.
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`These findings extend to the packaging of products, with 82% of consumers
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`agreeing that “it is important for brands to balance safety and concern for the environment when
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`designing product packaging.”12
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`17.
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`Additionally, “[t]he majority of shoppers . . . are willing to spend more for a product
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`they know is safer, with 42% willing to spend 5-15% more, 36% willing to spend 16-25% more,
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`and 17% willing to spend 1-5% more.”13
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`18.
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`Thus, there is enormous incentive for companies such as Defendant to market their
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`products as safe and sustainable. Indeed, Defendant has repeatedly and pervasively touted these
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`considerations as reasons to purchase the Product over competitors. Examples of these
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`representations are included below.
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`19.
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`These include statements made directly on Defendant’s website such as “Have it
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`Your Way, the Real way[:] All the flavors you crave without the ingredients you don’t.”14
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`11 Made Safe, “What Shoppers Want: Safe & Healthy Products,” https://www.madesafe.org/wp-
`conent/uploads/2017/07/What-Shoppers-Want.pdf (last visited Mar. 22, 2022).
`12 Gray, “New Consumer Packaging Trends Are Changing the Game for Food & Beverage
`Processors,” https://www.gray.com/insights/new-consumer-packaging-trends-are-changing-the-
`game-for-food-beverage-processors/ (last visited Mar. 22, 2022).
`13 Made Safe, “What Shoppers Want,” at 3.
`14 Burger King, “Food Quality,” https://www.bk.com/food-quality (last visited Apr. 4, 2022).
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`20.
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`Defendant states on its website that “As a corporation, we define corporate
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`responsibility as looking beyond a strong bottom line to consider the impact of everything we do.
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`It’s about doing the right thing as a corporate citizen in today’s global marketplace while
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`successfully meeting business goals and objectives.”15
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`21.
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`Defendant states on its website that “We continuously review our policies on animal
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`welfare, sourcing and environmental impact to ensure that we remain good corporate citizens in the
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`communities we serve.”16
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`22.
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`Defendant prominently claims on its partner’s website that “Burger King is on a
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`mission to transform business, achieving the highest standards for food quality, sustainability, and
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`experience in the QSR [quick-service restaurant] industry.”17
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`23.
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`To do so, Defendant claims that “For Burger King’s first global rebrand in more
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`than two decades, we set out to make the brand feel less synthetic and artificial, and more real,
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`crave-able and tasty.”18
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`24.
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`By this, according to Rapha Abreau, Bice President, Global Head of Design at
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`Restaurant Brands International, Defendant intended the following: “As our business evolves, we
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`felt that our brand personality, attributes, and all that work we’ve done around food quality should
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`be better reflected in our visual identity.”19
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`25.
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`And Defendant has achieved this goal, amplifying this ethos in its packaging,
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`which, as Defendant notes, “evokes the natural, organic shape of food. Warmer colors bring
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`vibrant, fresh ingredients and the brand’s trademark flame-grilling method to life in packaging[.]”20
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`26.
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`To this point, Defendant prominently claims on billboards as captured in the
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`following photograph, and which is further portrayed on its partner’s website as well as in
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`commercials, that “We want to look how we taste.”21
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`15 Burger King, “BK Corporate Responsibility,” https://www.bk.com/corp-respon (last visited Apr.
`4, 2022).
`16 Id.
`17 Jones Knowles Ritche, “Burger King,” https://jkrglobal.com/case-studies/burger-king/ (last
`visited Apr. 4, 2022).
`18 Id.
`19 Id.
`20 Id.
`21 Id.
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`27.
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`Here, Defendant emphasizes its “natural” and “green” bona fides, seeking to
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`convince consumers that they are making conscientious decisions by purchasing food from Burger
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`King.
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`28.
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`Defendant further embodies this ethos in its marketing as collected on its partner’s
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`website, noting that there are “No secrets in our sauce.”22
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`22 Id.
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 9 of 37
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`29.
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`Defendant also reiterates this “no secrets” message in other advertisements such as
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`the following, which is prominently featured on its website, emphasizing there “there shouldn’t be
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`any secrets in our sauce (or anything else).”
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`30.
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`Defendant also embodied this ethos in its commercials announcing the rebrand,
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`stating that “It’s the start of a NEW ERA[.] We’re more REAL[.]”23
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`31.
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`At the same time, Defendant’s commercial introduces the Product in its packaging
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`as the following photographs demonstrate:24
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`23 The official rebrand introduction video for Burger King,
`https://www.youtube.com/watch?v=xwH4oVnuIAs (last visited Apr. 4, 2022).
`24 Id.
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`32.
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`This notion is echoed by the Global Chief Marketing Officer of Restaurant Brands
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`International, Fernando Machado who, according to eslogan Marketing Magazine—following an
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`interview—“‘We are marking serious commitments around sustainability and enhancing the
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`experience, especially the digital experience. Because we are going through that transformation,
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`we wanted the design to basically tell people what has changed.’”25
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`33.
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`This led eslogan Marketing Magazine to thus opine that “The most motivating
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`factor in creating Burger King’s new visual identity has been the company’s change towards
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`transparency and sustainability.”26
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`34.
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`Thus, when consumers, like Plaintiff interact with Defendant’s packaging, they
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`expect it to embody Defendant’s brand, which as noted above, has continuously emphasized safety
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`and sustainability.
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`35.
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`And Defendant’s recognized this in its report to investors immediately following the
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`rebrand, noting that “Earlier this year, we announced the first global visual identity update at
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`Burger King in 20 years. The team spent most of 2020 doing the hard work of tying together all
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`25 Eslgan Marketing Magazine, “Burger King’s new visual identity, a ‘sustainable’ new logo,”
`https://en.esloganmagazine.com/burger-king-new-visual-identity/ (last visited Apr. 4, 2022).
`26 Id.
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 11 of 37
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`the essential elements for a unified visual identity, including our logo, colors, uniform, restaurant
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`design, digital platforms and packaging—all designed to build brand love.”27
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`36.
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`At the same time, Defendant, through its CEO, Jose Cil, announced to its investors
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`that “We advanced work on sustainable packaging and recycling; created new policies on animal
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`welfare and deforestation; made large shifts in our use of real ingredients and concluded a
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`comprehensive carbon footprint analysis that will allow us to make substantive new commitments
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`in 2021.”28
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`37.
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`Consumers would not expect that the Product which is profiled in the reigning in of
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`a “NEW ERA” with better ingredients with no secrets, would contain the biggest secret of all:
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`cancer causing PFAS in that very Product’s packaging.
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`38.
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`As described in the next section, despite Defendant’s rebrand, Defendant’s Product
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`is not safe for consumption, and poses a critical risk to the safety and health of consumers.
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`B.
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`39.
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`PFAS In Food Packaging Is Harmful To Humans And The Environment
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`Consumer Reports’ study followed the 2018 groundbreaking research conducted by
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`Toxic Free Future, which first detected PFAS in the Product packaging.29
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`40.
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`Nonetheless, more than three years later, Consumer Reports revealed that PFAS had
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`not been removed from the Product packaging. That results of that research is set out below:
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`27 Restaurant Brands International, “Open Letter: What a Difference a Year Made,” (Feb. 11,
`2021), https://www.rbi.com/English/news/news-details/2021/Open-Letter-What-a-Difference-a-
`Year-Made/default.aspx (last visited Apr. 4, 2022).
`28 Id.
`29 Jen Dickman, et al. “Packaged in Pollution: Are food chains using PFAS in packaging?”
`https://toxicfreefuture.org/packaged-in-pollution/ (last visited Mar. 30, 2022).
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 12 of 37
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`41.
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`The reason companies like Defendant use PFAS in their food packaging products is
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`simple: the coating acts “as a barrier to keep grease from escaping” and “from leaking into people’s
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`hands.”30
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`42.
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`But PFAS are not necessary for this intended outcome. Indeed, numerous of
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`Defendant’s competitors’ products have been tested by researchers and found to contain no
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`detectable levels of organic fluorine.31 Accordingly, Defendant would have had knowledge that it
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`could produce the Product packaging without the heightened levels of PFAS inherent in its current
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`composition.
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`43.
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`Yet, Defendant chose not to, and instead concealed this information from
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`consumers, to increase by the cost savings associated with using these chemicals.
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`44.
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`This has not been without consequences for consumers, as PFAS in food packaging
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`migrates32 onto the food, exposing consumers to PFAS via ingestion. 33
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`45. Worryingly, all PFAS contain carbon-fluorine bonds—one of the strongest in
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`nature—which make them highly persistent both in the environment and in human bodies.
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`46.
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`That these substances are harmful to the human body is beyond dispute. In a 2019
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`study, for example, the U.S. Department of Health and Human Services’ National Toxicology
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`Program found that PFAS have adverse effects on human organ systems, with the greatest impact
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`seen in the liver and thyroid hormone.34
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`///
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`///
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`30Iowa State University, “New study calls for mitigation, monitoring of common grease-proofing
`food packaging chemicals,” News Service (Oct. 19, 2021),
`https://www.news.iastate.edu/news/2021/10/19/pfas2021 (last visited Mar. 30, 2022).
`31 See supra n. 27 and supra n. 6.
`32 T.H. Begley, “Migration of fluorochemical paper additives from food-contact paper into foods
`and food simulants,” Food Additives & Contaminants: Part A, 25:3, 284-390,
`https://www.tandfonline.com/doi/abs/10.1080/02652030701513784
`33 See Nat’l Toxicology Program, Per- and Polyfluoroalkyl Substances (PFAS),
`https://ntp.niehs.gov/whatwestudy/topics/pfas/index/html (Aug. 3, 2021) (last visited Mar. 30,
`2022).
`34 Environmental Protection Agency, PFAS Explained, https://www.epa.gov/pfas/pfas-explained
`(last visited Mar. 30, 2022).
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 13 of 37
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`47.
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`A figure from the European Environmental Agency (“EEA”) shows that “effects of
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`PFAS on human health:”35
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`48.
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`The Centers for Disease Control’s Agency for Toxic Substances and Disease
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`Registry has also recognized that exposure to high levels of PFAS may impact the immune system
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`and reduce antibody responses to vaccines.36
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`49.
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`In total, this research demonstrates that the risk of severe complications arising from
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`exposure to PFAS is both credible and substantial.
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`///
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`35 European Environment Agency, “Emerging Chemical Risks in Europe – ‘PFAS’” (Dec. 12,
`2019), https://www.eea.europa.edu/publications/emerging-chemicals-risks-in-europe (last visited
`Mar. 30, 2022).
`36 Agency for Toxic Substances and Disease Registry, “What are the health effects of PFAS,”
`https://www.atsdr.cdc.gov/pfas/health-effects/index.html (June 24, 2020) (last accessed Mar. 30,
`2022).
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 14 of 37
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`50.
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`The harmful risks also extend to the environment where, once introduced, they
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`quickly spread around the globe through multiple pathways, as demonstrated in the figure below:37
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`51.
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`Once introduced, PFAS cause many of the same problems for other animals as they
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`do for humans, including harm to the immune system, kidney and liver function of several animals
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`from dolphins to sea otters to polar bears, often making their way to dinner tables of people who
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`did not even purchase the Product.38
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`C.
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`52.
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`Defendant’s Misrepresentation and Omissions Are Actionable
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`Plaintiff and the Class were injured by the full purchase price of the Product because
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`the Product is worthless, as it is marketed as safe and sustainable when it is not in fact safe and
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`sustainable.
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`53.
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`Plaintiff and Class Members bargained for products that are safe for consumption
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`and sustainable, and were deprived of the basis of their bargain when Defendant sold them a
`
`
`37 PFAS Free, “What are PFAS?” https://www.pfasfree.org.uk/about-pfas (last accessed Mar. 30,
`2022).
`38 Id.
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 15 of 37
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`product in packaging containing dangerous substances with well-known health and environmental
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`consequences.
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`54.
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`No reasonable consumer would expect that a product marketed as safe and
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`sustainable would pose a risk to their health, safety, and wellbeing, or that it would contain
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`dangerous PFAS, which are indisputably linked to harmful health effects in humans and the
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`environment. Accordingly, Plaintiff and Class Members suffered economic injuries as a result of
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`purchasing the Product.
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`55.
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` As the Product exposes consumers to PFAS that pose a risk to consumers’ health,
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`the Product is not fit for consumption by humans. Plaintiff and the Class are further entitled to
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`damages for the injury sustained in being exposed to high levels of toxic PFAS, damages related to
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`Defendant’s conduct, and injunctive relief.
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`56. Moreover, because these facts relate to a critical safety-related deficiency in the
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`Product, Defendant was under a continuous duty to disclose to Plaintiff and Class Members the
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`true standard, quality, and grade of the Product and to disclose that the Product contained
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`substances known to have adverse health effects. Nonetheless, Defendant concealed and
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`affirmatively misrepresented the Product, as discussed herein.
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`57.
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`Although Defendant is in the best position to know what content it placed on its
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`website and in marketing materials during the relevant timeframe, and the knowledge that
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`Defendant had regarding the PFAS and its failure to disclose the existence of PFAS in the Product
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`to consumers, to the extent necessary, Plaintiff satisfies the requirements of Rule 9(b) by alleging
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`the following facts with particularity:
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`58. WHO: Defendant made material misrepresentations and/or omissions of fact about
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`the Product through its labeling, website representations, and marketing statements, which include
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`the statements that the Product is safe and sustainable. These representations constitute omitted
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`material information regarding harmful chemicals in the Product packaging which is essential and
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`integral to delivering the Product to the consumer.
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`59. WHAT: Defendant’s conduct here was, and continues to be, fraudulent because
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`they omitted and concealed that the Product contains substances—PFAS—that are widely known
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 16 of 37
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`to have significant health repercussions. Thus, Defendant’s conduct deceived Plaintiff and Class
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`Members into believing that the Product is safe and sustainable, when it is not. Defendant knew or
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`should have known that this information is material to reasonable consumers, including Plaintiff
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`and Class Members in making their purchasing decisions, yet they continued to pervasively market
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`the Product in this manner.
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`60. WHEN: Defendant made material misrepresentations and/or omissions during the
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`putative class periods, including prior to and at the time Plaintiff and Class Members purchased the
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`Product, despite its knowledge that the Product packaging contained harmful substances.
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`61. WHERE: Defendant’s marketing message was uniform and pervasive, carried
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`through material misrepresentations and/or omissions on the labeling of the Product’s packaging,
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`website, and through marketing materials.
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`62. HOW: Defendant made material misrepresentations and/or failed to disclose
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`material facts regarding the Product, including the presence of PFAS.
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`63. WHY: Defendant made the material misrepresentations and/or omissions detailed
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`herein for the express purpose of inducing Plaintiff, Class Members, and all reasonable consumers
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`to purchase and/or pay for the Product, the effect of which was that Defendant profited by selling
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`the Product to hundreds of thousands of consumers.
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`64.
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`INJURY: Plaintiff and Class Members purchased, paid a premium, or otherwise
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`paid more for
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`the Product when
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`they otherwise would not have absent Defendant’s
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`misrepresentations and/or omissions.
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`TOLLING AND ESTOPPEL OF THE STATUTE OF LIMITATIONS
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`65.
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`Defendant would have had actual knowledge for years that the Product packaging
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`contains harmful chemicals such as PFAS.
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`66.
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`Although Defendant was aware of the deception in its labeling given the inclusion
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`of PFAS in the Product despite claims of the Product’s safety and sustainability, they took no steps
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`to warn Plaintiff or Class Members of risks related to PFAS in the Product.
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`///
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`///
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`Case 3:22-cv-02258-AGT Document 1 Filed 04/11/22 Page 17 of 37
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`67.
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`Despite its knowledge, Defendant has fraudulently misrepresented the risks of the
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`Product. Defendant had a duty to disclose the true nature and quality of the Product and to disclose
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`the health and safety risks associated with the Product.
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`68.
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`Defendant made, and continue
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`to make, affirmative misrepresentations
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`to
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`consumers, to promote sales of the Product, including that the Product is safe and sustainable.
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`69.
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`Defendant concealed material facts that would have been important to Plaintiff and
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`Class Members in deciding whether to purchase the Product. Defendant’s concealment w

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