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`BURSOR & FISHER, P.A.
`Yeremey Krivoshey (State Bar No. 295032)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-mail: ykrivoshey@bursor.com
`
`
`BURSOR & FISHER, P.A.
`Matthew A. Girardi (PHV application forthcoming)
`888 Seventh Avenue
`New York, NY 10019
`Telephone: (646) 837-7150
`Facsimile: (212) 989-9163
`E-Mail: mgirardi@bursor.com
`
`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORINA
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`
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`Case No.:
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`CLASS ACTION COMPLAINT
`
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`JURY TRIAL DEMANDED
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`
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`KACEY WILSON, individually and on behalf
`of all other persons similarly situated,
`
`
`Plaintiff,
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`
`v.
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`COLOURPOP COSMETICS, LLC,
`
`
` Defendant.
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`Case 4:22-cv-05198-KAW Document 1 Filed 09/12/22 Page 2 of 32
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`Plaintiff Kacey Wilson (“Plaintiff”) brings this Class Action against ColourPop Cosmetics,
`LLC (“ColourPop” or “Defendant”), individually and on behalf of all others similarly situated.
`The allegations herein are based on personal knowledge as to Plaintiff’s own conduct and are made
`on information and belief as to all other matters based on an investigation by counsel.
`NATURE OF THE ACTION
`1.
`This is a civil class action concerning Defendant’s design, formulation,
`manufacture, marketing, advertising, distribution, and sale of eye makeup that contains color
`additives and ingredients that are dangerous when used on the immediate eye area.
`2.
`The products at issue include eyeshadow palettes (which Defendant sometimes
`refers to and promotes as, inter alia, “shadow palettes,” “pigment palettes,” or “pressed powder
`palettes”) and eyeliner products that are formulated with and/or contain certain color additives that
`are not safe for use in the eye area (collectively “ColourPop Eye Makeup” or “Products”).
`Specifically, the Products are inherently dangerous because they are formulated with and/or
`contain the following color additives: FD&C Red No. 4; D&C Red No. 6, 7, 17, 21, 22, 27, 28, 30,
`31, 33, 34, 36; D&C Violet No. 2; Ext. D&C Violet No. 2; FD&C Yellow No. 6; D&C Yellow No.
`7, 8, 10, 11; Ext. D&C Yellow No. 7; D&C Orange No. 4, 5, 10, 11; D&C Green No. 6, 8; FD&C
`Green No. 3; D&C Brown No. 1; and/or D&C Blue No. 4 (the “Harmful Ingredients”).1
`3.
`The United States Food and Drug Administration (“FDA”) is responsible for
`approving individual color additives and setting usage restrictions. In addition to being inherently
`dangerous, each of the Harmful Ingredients is designated by the FDA as unsuitable and
`unapproved for cosmetic use in the eye area.2
`4.
`The presence of one or more Harmful Ingredients renders the Products unsafe for
`use in the eye area (the “Defect”). The Products are thus adulterated and misbranded under the
`federal Food, Drug, and Cosmetics Act (“FDCA”). Accordingly, it is unlawful for Defendant to
`advertise, promote, market, or sell ColourPop Eye Makeup. Nonetheless, Defendant’s marketing,
`
`1 Here, and throughout, the term “Products” shall refer to any item sold by Defendant for use in the
`eye area that contains one or more Harmful Ingredients.
`2 See https://www.fda.gov/cosmetics/cosmetic-ingredient-names/color-additives-permitted-use-
`cosmetics
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`Case 4:22-cv-05198-KAW Document 1 Filed 09/12/22 Page 3 of 32
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`advertising, public statements, and social media posts and videos, encourage and instruct
`consumers to use the Products in the eye area.
`5.
`Defendant markets ColourPop Eye Makeup for a purpose (cosmetic application
`around the eye area) for which it cannot be used for both legally and because such use is inherently
`dangerous. The Products cannot be used for their principal intended purpose. The Products are
`thus worthless by virtue of the Defect.
`6.
`Defendant has undertaken a deliberate and willful pattern of conduct (including
`taking active measures) aimed at deceiving consumers, including Plaintiff, into believing that
`ColourPop Eye Makeup is safe for its intended use: cosmetic application around the eye area.
`7.
`At all relevant times, Defendant knew about the Defect and that the Products were
`banned by the FDA, but nevertheless marketed, advertised, and sold ColourPop Eye Makeup for
`use around the eyes without warning consumers of the known dangers.
`8.
`As a direct and proximate result of Defendant’s misleading conduct, concealment of
`the Defect, and failure to adequately warn consumers about the presence of the Harmful
`Ingredients and the fact that the Products are banned by the FDA, Plaintiff and other similarly
`situated consumers (“Class” or “Class Members”) purchased and/or used the Product to their
`detriment.
`9.
`Plaintiff and putative Class Members were unaware of the Defect and that the
`Products are banned by the FDA at the time they purchased the Products. Had Plaintiff and Class
`Members known that ColourPop Eye Makeup contains a Defect rendering it unfit for its intended
`purpose and that they are banned by the FDA, they would not have purchased the Products or
`would have paid substantially less for the Products.
`10.
`Plaintiff and all putative Class Members purchased ColourPop Eye Makeup which
`suffered from the same Defect at the point of sale, and poses substantially the same safety risk to
`Plaintiff, putative Class Members, consumers, and the public.
`11.
`All of the Products suffer from the same Defect and are similarly mislabeled and
`falsely advertised because each of the Products contains one or more ingredients the FDA has
`deemed not fit for use around the eye area.
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`12.
`Plaintiff and each putative Class Member have been damaged and suffered an injury
`in fact caused by Defendant’s false, fraudulent, unfair, deceptive, and misleading practices, as set
`forth herein, and seek compensatory damages and injunctive relief.
`JURISDICTION AND VENUE
`13.
`This Court has jurisdiction over the subject matter of this action pursuant to 28
`U.S.C. § 1332(d)(2), because the matter in controversy exceeds $5,000,000, exclusive of interest
`and costs, and is a class action in which at least one member of the Class is a citizen of a State
`different from the Defendant.
`14.
`This Court has personal jurisdiction over Defendant because Defendant maintains
`its principal place of business within the State of California and is registered as a limited liability
`company in the State of California. Furthermore, a substantial portion of the events giving rise to
`Plaintiff’s claims occurred in this State, including Plaintiff’s purchase.
`15.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) and (c) because a
`substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this District,
`because Defendant transacts business and/or has agents within this District, and because Defendant
`maintains its principal place of business within the State of California and is registered as a limited
`liability company in the State of California.
`
`PARTIES
`16.
`Plaintiff Kacey Wilson is a resident of San Francisco, California, who purchased
`and used ColourPop Eye Makeup within the relevant time period. Specifically, Plaintiff Wilson
`purchased and used ColourPop’s “Boudoir Noir” and “Menage a Muah” eyeshadow palettes, both
`of which contain the Harmful Ingredients and thus suffer from the Defect.
`17.
`ColourPop Cosmetics, LLC is registered as a limited liability company in the State
`of California and has its principal place of business at 1451 Vanguard Drive, Oxnard, California
`93033. ColourPop designs, formulates, manufactures, markets, advertises, distributes, and sells a
`wide range of consumer cosmetic products including but not limited to, eyeshadow, eyeliner,
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`eyelid primer, and eyebrow pencils, nationwide, including in California.3 Defendant’s misleading
`and unlawful marketing, advertising and product information concerning the Products was
`conceived, reviewed, approved, and otherwise controlled from Defendant’s California
`headquarters. Defendant’s misleading marketing concerning the Products was coordinated at,
`emanated from, and was developed at its California headquarters. All critical decisions regarding
`the misleading marketing and advertising of the Products were made in California.
`THE PRODUCTS
`18.
`ColourPop Eye Makeup is sold at retail locations throughout the United States,
`including Ulta Beauty stores, and the Products are also available for purchase online at
`www.colourpop.com and through third-party retailers’ websites.4
`19.
`The Products that are the subject of this lawsuit include eyeshadow palettes (which
`Defendant sometimes refers to as, inter alia, “shadow palettes,” “pigment palettes,” or “pressed
`powder palettes”), eyeliners (which Defendant sometimes refers to as “liners”), and other
`categories of products that Defendant has promoted or advertised for use in the eye area during the
`maximum time period allowed by law.
`20.
`The Products, which are sold online by Defendant at www.Colourpop.com as well as
`by third-party retailers, are all: (1) advertised and marketed by Defendant for cosmetic use on the
`eye area; (2) are reasonably understood by consumers to be safe and suitable for use in the eye
`area; and (3) purchased and used by consumers for cosmetic use on the eye area even though sale
`for such use is prohibited by FDA regulations.
`Defendant’s Eyeshadow Palettes
`21.
`There are currently over 100 different variations of ColourPop Eyeshadow Palettes
`available for purchase at www.colourpop.com/collections/shadow-palette, many of which are
`formulated with and contain color additives that are prohibited for use around the eye area.
`
`
`3 See generally https://colourpop.com/ (last accessed July 29, 2022).
`4 https://www.ulta.com/brand/colourpop (last accessed July 29, 2022).
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`22.
`The price of Colourpop Eyeshadow Palettes can range from around $10.00 to
`$39.00, and each product contains between 4-35 distinct colors or shades (“Color Pans”) which
`ColourPop often refers to as “pressed powders.”
`23.
`But regardless of what ColourPop calls each eyeshadow palette Product, they are
`intentionally marketed and sold to be indistinguishable from eyeshadow or eye makeup, their only
`reasonable and foreseeable use by consumers is cosmetic application in the eye area, and
`Defendant’s promotional images, tutorials, and other advertising materials instruct and encourage
`that said products be used for cosmetic application in the eye area.
`24.
`ColourPop also markets, sells, advertises, and promotes other Eye Makeup Products
`containing the Harmful Ingredients for use on and around the eye area.
`25.
`For example, the ColourPop’s Colour Me Obsessed! crème gel liner vault (an
`eyeliner) webpage depicts a model using the product in the shades “Good Reef” (pink) and
`“Catsuit” (teal) in the eye area even though those shades contain Harmful Ingredients.5
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`5 Specifically, “Good Reef” contains the Harmful Ingredients Red 6 (CI 15850) and Yellow 10 (CI
`47005) and “Catsuit” contains the Harmful Ingredient Yellow 10 (CI 47005).
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`26.
`The webpage for the Colour Me Obsessed! eyeliner further states “Our super
`pigmented BFF Crème Gel Liner gives your eyes the prettiest pop of colour.” (see Figure 3), and
`the Product on the website is found under “Makeup / Eyes / Eye Sets.”6 Defendant proceeds to
`explain the Product allows for “comfortable application in the waterline,” which instructs for using
`the product in an area that comes in direct contact with the eye.
`
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`6 https://colourpop.com/products/colour-me-obsessed-creme-gel-liner-roll-vault#view-ingredients
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`27.
`In the “Application Tips” section of the Colour Me Obsessed! product’s webpage,
`Defendant does not have a warning or use restriction listed for the Product.7 Additionally, there is
`not a warning in or by the ingredients list, despite the Product containing Harmful Ingredients.
`28.
`Defendant regularly instructs and encourages consumers to use and apply ColourPop
`Eye Makeup containing the Harmful Ingredients in and around the eye area.
`THE PRODUCTS VIOLATE STATE AND FEDERAL REGULATIONS
`29.
`Defendant has engaged in unfair, unlawful, and fraudulent business conduct by
`formulating, manufacturing, distributing, marketing, advertising, and selling Colourpop Eye
`Makeup because the Products: (1) contain color additives that make them unreasonably dangerous
`for their sole and intended purpose; (2) are misbranded, mislabeled, and adulterated; and (3) are
`illegal to sell, advertise, or promote for cosmetic application and use in the eye area.
`30.
`Both the FDA and California Health & Safety Code tightly regulate color
`additives for use in cosmetic products.8
`31.
`For instance, the FDA states on its website that “If your product . . . contains a color
`additive, by law9 you must adhere to requirements for:
`a. Approval. All color additives used in cosmetics (or any other FDA-regulated product)
`must be approved by FDA. There must be a regulation specifically addressing a
`substance’s use as a color additive, specifications, and restrictions.
`b. Identity and specifications. All color additives must meet the requirements for
`identity and specifications stated in the Code of Federal Regulations (CFR).
`c. Use and restrictions. Color additives may be used only for the intended uses stated in
`the regulations that pertain to them. The regulations also specify other restrictions for
`
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`7 https://colourpop.com/products/colour-me-obsessed-creme-gel-liner-roll-vault#view-ingredients
`8 California State law incorporates the FDA’s color additive regulations.
`9 [FD&C Act, Sec. 721; 21 U.S.C. 379e; 21 CFR Parts 70 and 80]
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`certain colors, such as the maximum permissible concentration in the finished
`product.”10
`32.
`Under the FD&C Act, “Except in the case of coal-tar hair dyes, failure to meet U.S.
`color additives requirements causes a cosmetic to be adulterated.”11
`33.
`Pursuant to 21 CFR 70.5(a), Defendant may not use a color additive in products
`unless the regulation for that additive specifically permits such use. A particular color additive
`may be safe for one purpose, such as use in lipstick, but unsafe for use for another purpose, such as
`around the eye area.
`34.
`The FDA defines “area of the eye” as “the area enclosed within circumference of
`the supra-orbital ridge and the infra-orbital ridge, including the eyebrow, the skin below the
`eyebrow, the eyelids and the eyelashes, and conjunctival sac of the eye, the eyeball, and the soft
`areolar tissue that lies within the perimeter of the infra-orbital ridge.”12
`35.
`The FDA does not permit the following color additives to be used around the eye area
`(defined herein as “Harmful Ingredients”):13
` FD&C Red No. 4; D&C Red No. 6, 7, 17, 21, 22, 27, 28, 30, 31, 33, 34, 36
` D&C Violet No. 2, Ext. D&C Violet No. 2
` FD&C Yellow No. 6; D&C Yellow No. 7, 8, 10, 11; Ext. D&C Yellow No. 7
` D&C Orange No. 4, 5, 10, 11
` D&C Green No. 6, 8; FD&C Green No. 3
` D&C Brown No. 1
` D&C Blue No. 4
`36.
`Each of the Products is formulated with and contains one or more of the Harmful
`Ingredients.
`
`
`10 https://www.fda.gov/industry/color-additives-specific-products/color-additives-and-cosmetics-
`fact-sheet (last accessed July 29, 2022); Federal Food, Drug, and Cosmetic Act (“FD&C Act”), §
`721: 21 U.S.C. 379e.
`11 FD&C Act, § 601(e); 21 U.S.C. 361(e)
`12 21 CFR § 70.3(s)
`13 21 CFR 74.2254, 74.2260, 74.2261, 74.2321, 74.2322, 74.2327, and 74.2328.
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`37.
`ColourPop knows that these products are used in the eye area, and intentionally
`markets them for such purpose. For example, ColourPop states under the application tips section
`for its “Fade Into Hue” eyeshadow (which contains Harmful Ingredients) to “[use] the pigments on
`your temples or underneath your brow,” which, by the FDA’s definition, is in the immediate eye
`area, even though the Products contain Harmful Ingredients.14
`Any Purported Disclaimer Language on Defendant’s Website Is Not Curative
`38.
`For a portion of the ColourPop Eye Makeup Products, Defendant’s website includes
`vague language and inconsistent statements such as “* while not intended for use in the immediate
`eye area, these shades can be used anywhere else on your face or body! we recommend using these
`shades to enhance your overall look - for example, using the pigments on your temples or
`underneath your brow.”15
`
`39.
`This is neither a safety warning nor an adequate disclaimer because: (1) it does not
`assist the consumer in understanding the danger; (2) it is designed and displayed in such a manner
`that a reasonable consumer would not see, receive, or understand it; (3) it does not actually instruct
`consumers to not use the product in the eye area, and (4) it specifically instructs consumers to use
`the Products in the immediate eye area, which includes “underneath your brow.”
`40.
`The substance and placement of any purported disclaimer by Defendant falls far
`short of being prominent and conspicuous warnings. And, any such purported disclaimers are
`contrary to other more prominent advertising in which Defendant specifically markets and sells the
`Products to be used in the eye area.
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`14 See, e.g., https://colourpop.com/products/fade-to-hue-pressed-powder-makeup-palette
`15 https://colourpop.com/products/fade-to-hue-pressed-powder-makeup-palette
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`41.
`Defendant’s purported disclaimers do nothing to assist the consumer in
`understanding the known risks of using ColourPop Eye Makeup, nor do they suggest that any
`known dangers exist.
`42.
`Further, to the extent any disclaimer recommends consumers use the Products “on
`your temples or underneath your brow,” such a disclaimer directly contradicts the FDA’s
`standards for what is included in the meaning of “the immediate eye area.” (emphasis added)
`43.
`Consumers can navigate through the entire purchasing process online at
`ColourPop.com or with a third-party seller of the Products without ever encountering Defendant’s
`hidden disclaimer.
`44.
`Further, the Products’ promotional images and Defendant’s marketing materials
`undermine and are directly contrary to any such purported disclaimers because models are
`repeatedly shown wearing specific eyeshadow colors that contain Harmful Ingredients on the eye
`area.
`
`45.
`Further, many ColourPop Eye Makeup products have no disclaimer whatsoever
`even though they are formulated with Harmful Ingredients. For example, Defendant’s webpage for
`its “Of Quartz” Product (which contains the Harmful Ingredient Yellow 10) does not include any
`warning language, purported disclaimers, or online statements that suggest or otherwise indicate
`that the product contains Harmful Ingredients (nor does its physical packaging). It does, however,
`depict a model with the Product on her eye.16
`Plaintiff’s Experience
`46.
`Plaintiff Wilson purchased several of the Products, including but not limited to the
`Menage a Muah Palette and Boudoir Noir Palette, (“Plaintiff’s Purchased Products”) for personal
`cosmetic use. Plaintiff has, within the past 5 years, purchased the Products from the Ulta Beauty or
`website. Plaintiff’s most recent purchase occurred in 2021.
`47.
`Plaintiff Wilson believed that Plaintiff’s Purchased Products were safe for their
`intended use, namely for use around the eye area.
`
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`16 https://colourpop.com/products/of-quartz-pressed-powder-palette
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`48.
`Plaintiff Wilson reasonably relied on Defendant’s representations and omissions
`when she decided to purchase and use various ColourPop Eye Makeup products, including but not
`limited to, Menage a Muah Palette and Boudoir Noir Palette for use in the eye area.
`49.
`At the time of purchase, Plaintiff Wilson was not aware of any warnings, safety
`issues, or instructions for use indicating that the Products are not safe or fit for use in the eye area.
`50.
`Similarly, Plaintiff Wilson was not aware of any warnings or disclosures that the
`Menage a Muah Palette and Boudoir Noir Palette contain color additives that the FDA has deemed
`not safe or fit for use in the eye area.
`51.
`The products Plaintiff purchased, like all of the Products at issue in this case are and
`were: (1) designed, formulated, and/or manufactured with Harmful Ingredients which render them
`unsafe and unfit for their intended use and purpose (cosmetic application to the eye area); (2)
`designed, formulated, and manufactured with substandard materials and/or construction which
`results in them being adulterated and/or misbranded Products that are unlawful to sell; and (3)
`Defendant deceptively omitted and concealed these and other material facts from Plaintiff Wilson
`and other reasonable consumers.
`52.
`As a result of Defendant’s deceptive misrepresentations and fraudulent business
`practices, Plaintiff Wilson suffered injury and loss of money, including but not limited to: (1)
`Plaintiff Wilson did not receive any of the advertised benefits as described above; (2) Plaintiff
`Wilson paid for ColourPop Eye Makeup products that are unsafe by virtue of their design,
`formulation, construction, or workmanship; and (3) Plaintiff Wilson paid more for ColourPop Eye
`Makeup products than they are worth because the Products, by virtue of being formulated with
`and/or containing Harmful Ingredients, are misbranded, mislabeled, adulterated, and worthless.
`53.
`If Plaintiff Wilson had known that the Products are unfit for their intended use and
`defective, and that the representations made by Defendant are false and misleading, she would not
`have purchased the Products or would have paid substantially less than she did. Therefore,
`Plaintiff Wilson did not receive the benefit of her bargain.
`54.
`Plaintiff will be unable to rely on the Products’ marketing and advertising in the
`future, and so will be unable to purchase the Products in the future, although she would like to if
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:22-cv-05198-KAW Document 1 Filed 09/12/22 Page 13 of 32
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`they were reformulated to remove the Harmful Ingredients. Plaintiff continues to purchase eye
`makeup products, although she does not currently purchase the Products, and intends on
`purchasing eye makeup products in the future.
`CLASS ACTION ALLEGATIONS
`
`55.
`Plaintiff brings this action individually and as representatives of all those similarly
`situated, pursuant to Fed. R. Civ. P. 23, on behalf of the below-defined Class and Subclass:
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`Class:
`All persons residing in the United States who purchased ColourPop Eye Makeup
`containing Harmful Ingredients during the maximum period permitted by law.
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`California Subclass:
`All members of the Class who purchased ColourPop Eye Makeup containing Harmful
`Ingredients in California during the maximum period permitted by law.
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`56.
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`Specifically excluded from these definitions are: (1) Defendant, any entity in which
`
`Defendant has a controlling interest, and its legal representatives, officers, directors, employees, assigns
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`and successors; (2) the Judge to whom this case is assigned and any member of the Judge’s staff or
`immediate family; and (3) Class Counsel.
`Numerosity: The Members of the Classes are so numerous that joinder of all
`57.
`Members is impracticable. While the exact number of putative Class Members is presently
`unknown, it likely consists of tens of thousands of people geographically disbursed throughout the
`United States. The number of putative Class Members can be determined by sales information and
`other records in Defendant’s possession. Moreover, joinder of all putative Class Members is not
`practicable given their numbers and geographic diversity. The Classes are readily identifiable from
`information and records in the possession of Defendant and their authorized retailers.
`Typicality: The claims of the representative Plaintiff are typical in that Plaintiff,
`58.
`like all putative Class Members, purchased ColourPop Eye Makeup that was designed, formulated,
`manufactured, marketed, advertised, distributed, and sold by Defendant. Plaintiff, like all putative
`Class Members, has been damaged by Defendant’s misconduct in that, inter alia, Plaintiff incurred
`or will continue to incur damages as a result of overpaying for defective ColourPop Eye Makeup
`which makes the Products inherently dangerous and not fit for its intended use. Furthermore, the
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`Case 4:22-cv-05198-KAW Document 1 Filed 09/12/22 Page 14 of 32
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`factual basis of Defendant’s misconduct is common to all putative Class Members because
`Defendant has engaged, and continues to engage, in systematic fraudulent behavior that was and is
`deliberate, includes negligent misconduct, and results in the same injury to all putative Class
`Members.
`Commonality: Common questions of law and fact exist as to all putative Class
`59.
`Members. These questions predominate over questions that may affect only individual Class
`Members because Defendant has acted on grounds generally applicable to the Classes. Such
`common legal or factual questions include, inter alia:
`(a) Whether ColourPop Eye Makeup is defective;
`(b) Whether ColourPop Eye Makeup is defectively designed and/or manufactured;
`(c) Whether ColourPop Eyes Makeup is dangerous;
`(d) Whether Defendant knew or reasonably should have known about the Defect prior to
`distributing and selling ColourPop Eye Makeup to Plaintiff and the putative Classes;
`(e) Whether Defendant knew or reasonably should have known ColourPop Eye Makeup
`was dangerous when Defendant packaged, marketed, advertised, specified, instructed,
`encouraged, and otherwise represented that ColourPop Eye Makeup was intended for
`use in the eye area;
`(f) Whether Defendant concealed from, omitted, and/or failed to disclose to Plaintiff and
`the putative Classes the dangers associated with ColourPop Eye Makeup as a result of
`the Products’ Harmful Ingredients;
`(g) Whether Defendant breached the implied warranty of merchantability and the Song-
`Beverly Consumer Warranty Act, relating to ColourPop Eye Makeup;
`(h) Whether Defendant engaged in unfair, unconscionable, or deceptive trade practices by
`selling and/or marketing defective and/or misbranded ColourPop Eye Makeup;
`(i) Whether Defendant violated Cal. Bus. & Prof. Code § 17500, et seq. (FAL);
`(j) Whether Defendant violated Civil Code §§ 1750, et seq. (CLRA);
`(k) Whether Defendant violated Cal. Bus. & Prof. Code §§ 17200, et seq. (UCL);
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`Case 4:22-cv-05198-KAW Document 1 Filed 09/12/22 Page 15 of 32
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`(l) Whether Plaintiff and the putative Classes are entitled to damages, including
`compensatory, exemplary, and statutory damages, and the amount of any such damages;
`(m) Whether Defendant should be enjoined from selling and marketing ColourPop Eye
`Makeup containing Harmful Ingredients;
`(n) Whether Defendant should be enjoined from selling, promoting, and advertising that
`ColourPop Eye Makeup is safe and fit for use in the eye area when, in fact, the Products
`contain color additives that are prohibited for use in the eye area, i.e. the Harmful
`Ingredients; and
`(o) Other issues which may be revealed in discovery
`Adequate Representation: Plaintiff will fairly and adequately protect the interests
`60.
`of putative Class Members. Plaintiff has no interests that are antagonistic to those of putative Class
`Members. Plaintiff has retained attorneys experienced in the prosecution of class actions,
`including consumer and product defect class actions, and Plaintiff intends to prosecute this action
`vigorously.
`Injunctive/Declaratory Relief: The elements of Rule 23(b)(2) are met. Defendant
`61.
`will continue to commit the unlawful practices alleged herein, and putative Class Members will
`remain at an unreasonable and serious safety risk as a result of the Defect. Defendant has acted
`and refused to act on grounds that apply generally to the putative Classes, such that final injunctive
`relief and corresponding declaratory relief is appropriate respecting the Classes as a whole.
`Predominance and Superiority: Plaintiff and putative Class Members have all
`62.
`suffered and will continue to suffer harm and damages as a result of Defendant’s unlawful and
`wrongful conduct. A class action is superior to other available methods for the fair and efficient
`adjudication of the controversy. Absent a class action, putative Class Members would likely find
`the cost of litigating their claims prohibitively high and would therefore have no effective remedy
`at law. Because of the relatively small size of putative Class Members' individual claims, it is likely
`that few putative Class Members could afford to seek legal redress for Defendant’s misconduct.
`Absent a class action, putative Class Members will continue to incur damages, and Defendant’s
`misconduct will continue without remedy. Class treatment of common questions of law and fact
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`Case 4:22-cv-05198-KAW Document 1 Filed 09/12/22 Page 16 of 32
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`would also be a superior method to multiple individual actions or piecemeal litigation in that class
`treatment will conserve the resources of the courts and the litigants and will promote consistency
`and efficiency of adjudication.
`63.
`Plaintiff is not aware of any potential issues that would preclude the maintenance of
`this class action.
`64.
`Defendant has acted or refused to act on grounds generally applicable to the putative
`Classes, thereby making final injunctive relief or co

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