Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 1 of 18
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-mail: ltfisher@bursor.com
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`Counsel for Plaintiff
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`UNITED STATES DISTRICT COURT
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`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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`v.
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`Plaintiff,
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`JORDAN NELSON, individually and on behalf
`of all others similarly situated,
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`WHELE, LLC d/b/a PERCH,
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` Defendant.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 2 of 18
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`Plaintiff Jordan Nelson (“Plaintiff”) brings this action on behalf of herself and all others
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`similarly situated against Defendant Whele, LLC (“Defendant”) for the manufacture, marketing,
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`and sale of Mighty Bliss electric heating pads. Plaintiff makes the following allegations pursuant
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`to the investigation of her counsel and based upon information and belief, except as to the
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`allegations specifically pertaining to herself, which are based on personal knowledge.
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`NATURE OF ACTION
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`1.
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`This is a class action against Defendant for the manufacture and sale of its electric
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`heating pads (the “Products”)1, all of which suffer from an identical defect in design. Specifically,
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`the Products overheat during charging or use and create the potential for a burn or fire hazard.
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`Such a design defect is extraordinarily dangerous and has rendered the Products unsuitable for their
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`principal and intended purpose.
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`2.
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`Due to the dangerous nature of the defect, Defendant initiated a recall (the “Recall”)
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`of its electric heating pads.2 However, the Recall is grossly inadequate, as it does not provide
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`consumers, like Plaintiff, with immediate monetary relief, and it fails to provide sufficient notice to
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`consumers.
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`3.
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`Plaintiff brings her claims against Defendant individually and on behalf of a class of
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`all other similarly situated purchasers of the Products for (1) violation of California’s Consumers
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`Legal Remedies Act (“CLRA”), Civil Code §§ 1750, et. seq.; (2) violation of California’s Unfair
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`Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210; (3) fraud; (4) unjust enrichment; (5)
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`breach of implied warranties; and (6) violations of the Magnuson-Moss Warranty Act.
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`PARTIES
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`4.
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`Plaintiff Jordan Nelson is, and at all times relevant to this action has been, a resident
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`of Pleasant Hill, California. In approximately April 2022, Ms. Nelson purchased the Mighty Bliss
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`Blue Electric Heating Pad, Large (12” x 24”) online from Amazon. Ms. Nelson purchased the
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`Product because she believed it was fit for use as an electric heating pad. However, the Product
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`1 The Mighty Bliss electric heating pads products at issue include the following: Blue Electric
`Heating Pad, Large (12” X 24”); Blue Electric Heating Pad, Extra-Large (20” X 24”); and Grey
`Electric Heating Pad, Large (12” X 24”).
`2 https://www.mightyblissheatingpadrecall.expertinquiry.com.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 3 of 18
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`Ms. Nelson purchased was not fit for use as an electric heating pad due to the Product’s defect
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`concerning overheating. Ms. Nelson would not have purchased the Product had she known that the
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`Product was unfit to perform its intended purpose, rendering the Product useless.
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`5.
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`The Product that Ms. Nelson purchased malfunctioned shortly after she purchased
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`it, causing rashes, and skin irritation. Ms. Nelson no longer uses the Product because of the
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`significant injury risk and fire hazard posed by the Defect. The Lot No. shown on the Product
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`purchased by Ms. Nelson is 211103 and is included in Defendant’s product recall.
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`6.
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`Ms. Nelson reviewed the Product’s packaging prior to purchase. Defendant
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`disclosed on the packaging that the Product was an electric heating pad and described features
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`typical of electric heating pads but did not disclose the Defect. Had there been a disclosure, Ms.
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`Nelson would not have bought the Product because the Defect would have been material to her, or
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`at the very least, she would have purchased the Product at a substantially reduced price. Ms.
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`Nelson relied on the packaging in making her purchase decision. Ms. Nelson continues to desire to
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`purchase the Product from Defendant and knows that the composition of the Product may change
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`over time. She is unable, however, to determine if the Product is safe and will perform as intended.
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`7.
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`Defendant Whele, LLC is a Delaware limited liability company and, upon
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`information and belief, has its principal place of business at 222 Berkeley Street, Boston, MA
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`02116. Defendant manufactures, markets, and distributes the Products throughout the United
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`States.
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1332(d) because there are more than 100 class members and the aggregate amount in controversy
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`exceeds $5,000,000, exclusive of interest, fees, and costs, and at least one Class member is a
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`citizen of a state different from Defendant.
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`9.
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`This Court has personal jurisdiction over Defendant because Defendant conducts
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`substantial business within California such that Defendant has significant, continuous, and
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`pervasive contacts with the State of California.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 4 of 18
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`10.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant
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`does substantial business in this District, and a substantial part of the events giving rise to
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`Plaintiff’s claims took place within this District because Plaintiff purchased her Product in this
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`District.
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`The Overheating Defect
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`COMMON FACTUAL ALLEGATIONS
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`11.
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`Defendant sells electric heating pads and deep-tissue massage products. Among the
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`various products sold by Defendant are its Mighty Bliss electric heating pads, which are the
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`Products at issue here. The Products include those manufactured between July 2021 through July
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`2022, and include the MB-001 (NA-H1121B/NA-H21B), MB-002 (NA-H21C), and PE-MtyBls-
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`HeatPad-12x24-Gry-V2 E-MtyBls-HeatPad-12x24-Gry (NA-H1121B/NA-H21B) models.
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`12.
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` The Products were made with a defect (hereinafter, the “Defect”) involving
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`functional electric components of the heating pad. The Defect results in the electric heating pad
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`overheating, causing burning or sparking, posing a significant injury hazard. In fact, Defendant has
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`already received at least 31 complaints of shocks, burns, and rashes or irritation injuries resulting
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`from the Defect.3 Between July 2021 and September 2022, Defendant received at least 286
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`complaints related to the Defect. The Defect is substantially likely to materialize during the useful
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`life of the Products.
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`13. With over 500,000 units sold at approximately $30 each, Defendant profited
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`enormously from its failure to disclose the Products’ Defect sooner.
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`14.
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`The Defect at issue here renders the Products unsafe to operate. Defendant had
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`exclusive knowledge of the Defect, which was not known to Plaintiff or class members.
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`15.
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`Defendant made partial representations to Plaintiff and class members while
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`suppressing the safety defect. Specifically, by displaying the Products and describing their
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`features, the product packaging implied that the Products were suitable for use as an electric
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`heating pad, without disclosing that they had a critical safety-related defect that could result in
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`harm to users of the Products.
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`3 Id.
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 5 of 18
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`Defendant’s Inadequate Recall
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`16.
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`17.
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`On October 24, 2022, Defendant issued a recall of the Products.
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`The recall was due to a serious injury hazard associated with the Products.
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`Specifically, Defendant admitted that its Products had a defect in design and materials that resulted
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`in the electric heating pads overheating, causing burning or sparking, posing a significant injury
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`hazard.
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`18.
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`19.
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`Defendant issued a recall of over 500,000 Products in the United States.
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`The recall allowed Defendant to say it was doing right by its customers, but in fact
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`the recall protected Defendant’s profits by suppressing returns:
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`(a)
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`Upon information and belief, a majority of the purchases of the Mighty Bliss
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`Products occurred through Amazon. However, the Mighty Bliss Amazon webpage4 demonstrates
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`that Defendant provides no information relating to the Products recall or the Defect. Although
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`Defendant posted information relating to the Products recall and Defect on the Mighty Bliss
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`website5, the information only reaches a limited portion of Mighty Bliss purchasers; and
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`(b)
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`Defendant has not offered immediate refunds to consumers, but instead, has
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`had consumers engage in an at-length claims process to confirm that the units at issue are no longer
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`in use and does not provide adequate relief to consumers. It also requires consumers to still be in
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`possession of the Products.
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`Defendant’s Pre-Sale Knowledge Of The Defect
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`20.
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`At least one year prior to issuing the recall, Defendant had received numerous
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`reports of the Products’ Defect.
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`21.
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`Indeed, Defendant has publicly disclosed that from at least July 2021 to September
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`2022, Defendant received over 286 complaints related to the Products’ Defect.
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`22.
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`23.
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`Defendant, however, did not issue a recall on the Products until October 24, 2022.
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`Thus, Defendant was on notice of the Products’ Defect for at least 15 months prior
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`to issuing the recall.
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`4 https://www.amazon.com/stores/MIGHTYBLISS/page/90994D21-7E4C-452A-AB97-
`849D3AD3768E?ref_=ast_bln
`5 https://www.mightyblissheatingpadrecall.expertinquiry.com/
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 6 of 18
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`24. More troubling, 31 of the 286 complaints sent to Defendant reported physical
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`injuries, such as burning, stemming from the Products’ Defect.
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`25.
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`At minimum, such an unusually high number of reports about the same exact issue,
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`as well as the severity of the injuries reported, should have alerted Defendant to the Defect and
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`caused it to take immediate action to protect consumers.
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`26.
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`In short, by July 2021 at the latest, information from consumer complaints directed
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`to Defendant would have put Defendant on notice of the Defect.
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`CLASS REPRESENTATION ALLEGATIONS
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`27.
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`Plaintiff seeks to represent a class defined as all persons in the United States who
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`purchased the Products (the “Class”). Excluded from the Class are persons who made such
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`purchases for purpose of resale.
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`28.
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`Plaintiff also seeks to represent a subclass of all Class Members who purchased the
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`Products in the State of California (the “California Subclass”). Excluded from the Class are
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`persons who made such purchases for purpose of resale.
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`29.
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`Subject to additional information obtained through further investigation and
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`discovery, the above-described Classes may be modified or narrowed as appropriate, including
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`through the use of multi-state subclasses.
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`30.
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`At this time, Plaintiff does not know the exact number of members of the
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`aforementioned Class and Subclass (“Class Members” and “Subclass Members,” respectively);
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`however, given the nature of the claims and the number of retail stores in the United States selling
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`Defendant’s Products, Plaintiff believes that Class and Subclass members are so numerous that
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`joinder of all members is impracticable.
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`31.
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`There is a well-defined community of interest in the questions of law and fact
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`involved in this case. Questions of law and fact common to the members of the Class that
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`predominate over questions that may affect individual Class members include:
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`(a)
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`whether Defendant misrepresented and/or failed to disclose material facts
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`concerning the Products;
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`(b)
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`whether Defendant’s conduct was unfair and/or deceptive;
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 7 of 18
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`(c)
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`whether Defendant has been unjustly enriched as a result of the unlawful
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`conduct alleged in this Complaint such that it would be inequitable for Defendant to retain the
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`benefits conferred upon Defendant by Plaintiff and the Class;
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`(d)
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`whether Plaintiff and the Class sustained damages with respect to the
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`common law claims asserted, and if so, the proper measure of their damages.
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`32. With respect to the California Subclass, additional questions of law and fact
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`common to the members that predominate over questions that may affect individual members
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`include whether Defendant violated the California Consumer Legal Remedies Act as well as
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`California’s Unfair Competition law.
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`33.
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`Plaintiff’s claims are typical of those of the Class because Plaintiff, like all members
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`of the Class, purchased, in a typical consumer setting, Defendant’s Products, and Plaintiff sustained
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`damages from Defendant’s wrongful conduct.
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`34.
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`Plaintiff will fairly and adequately protect the interests of the Class and Subclasses
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`and has retained counsel that is experienced in litigating complex class actions. Plaintiff has no
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`interests that conflict with those of the Class or the Subclass.
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`35.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of this controversy.
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`36.
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`The prosecution of separate actions by members of the Class and the Subclasses
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`would create a risk of establishing inconsistent rulings and/or incompatible standards of conduct
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`for Defendant. For example, one court might enjoin Defendant from performing the challenged
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`acts, whereas another might not. Additionally, individual actions could be dispositive of the
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`interests of the Class and the Subclasses even where certain Class or Subclass members are not
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`parties to such actions.
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`COUNT I
` (Violation of California’s Consumers Legal Remedies Act (“CLRA”),
`California Civil Code § 1750, et seq.)
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`37.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`above.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 8 of 18
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`38.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and Subclass against Defendant.
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`39.
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`Civil Code § 1770(a)(5) prohibits “[r]epresenting that goods or services have
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`sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not
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`have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she
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`does not have.” Civil Code § 1770(a)(7) prohibits “[r]epresenting that goods or services are of a
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`particular standard, quality, or grade, or that goods are of a particular style or model, if they are of
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`another.” Civil Code § 1770(a)(9) prohibits “advertising goods or services with intent not to sell
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`them as advertised.”
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`40.
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`Defendant violated Civil Code § 1770(a)(5), (a)(7) and (a)(9) by holding out
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`Products as fit for use as electric heating pads, when in fact the products were defective, dangerous,
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`and useless.
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`41.
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`The defect at issue here involves a critical safety-related component of the Products,
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`and it was unsafe to operate the Products with the defect.
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`42.
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`Defendant had exclusive knowledge of the Defect, which was not known to Plaintiff
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`or class members.
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`43.
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`Defendant made partial representations to Plaintiff and class members, while
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`suppressing the safety defect. Specifically, by displaying the Product and describing its features,
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`the product packaging and Defendant’s website implied that the Product was suitable for use as an
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`electric heating pad, without disclosing that the Products had a critical safety-related defect that
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`could result in harm to users of the Product.
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`44.
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`Plaintiff and the members of the California Subclass have suffered harm as a result
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`of these violations of the CLRA because they have incurred charges and/or paid monies for the
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`Products that they otherwise would not have incurred or paid.
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`45.
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`On November 14, 2022, prior to the filing of this Complaint, Plaintiff’s counsel sent
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`Defendant a CLRA notice letter, which complies in all respects with California Civil Code
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`§1782(a). The letter also provided notice of breach of express and implied warranties. The letter
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`was sent via certified mail, return receipt requested, advising Defendant that they were in violation
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 9 of 18
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`of the CLRA and demanding that it cease and desist from such violations and make full restitution
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`by refunding the monies received therefrom. The letter stated that it was sent on behalf of Plaintiff
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`and all other similarly situated purchasers. Wherefore, Plaintiff seeks damages, restitution, and
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`injunctive relief for this violation of the CLRA.
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`COUNT II
` (Violation of California’s Unfair Competition Law,
`Business & Professions Code §§ 17200, et seq.)
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`46.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`above.
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`47.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and Subclass against Defendant.
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`48.
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`By committing the acts and practices alleged herein, Defendant has violated
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`California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200-17210, as to the
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`California Subclass, by engaging in unlawful, fraudulent, and unfair conduct.
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`49.
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`Defendant has violated the UCL’s proscription against engaging in unlawful
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`conduct as a result of its violations of the CLRA, Cal. Civ. Code § 1770(a)(5) and (a)(7) as alleged
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`above.
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`50.
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`Defendant’s acts and practices described above also violate the UCL’s proscription
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`against engaging in fraudulent conduct.
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`51.
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`As more fully described above, Defendant’s misleading marketing, advertising,
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`packaging, and labeling of the Products is likely to deceive reasonable consumers.
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`52.
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`Defendant’s acts and practices described above also violate the UCL’s proscription
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`against engaging in unfair conduct.
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`53.
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`Plaintiff and the other California Subclass members suffered a substantial injury by
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`virtue of buying the Products that they would not have purchased absent Defendant’s unlawful,
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`fraudulent, and unfair marketing, advertising, packaging, and omission about the defective nature
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`of the Products, or by virtue of paying an excessive premium price for the unlawfully, fraudulently,
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`and unfairly marketed, advertised, packaged, and labeled product.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 10 of 18
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`54.
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`There is no benefit to consumers or competition from deceptively marketing and
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`omitting material facts about the defective nature of the Products.
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`55.
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`Plaintiff and the other California Subclass members had no way of reasonably
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`knowing that the Products they purchased were not as marketed, advertised, packaged, or labeled.
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`Thus, they could not have reasonably avoided the injury each of them suffered.
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`56.
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`The gravity of the consequences of Defendant’s conduct as described above
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`outweighs any justification, motive, or reason therefore, particularly considering the available legal
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`alternatives that exist in the marketplace, and such conduct is immoral, unethical, unscrupulous,
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`offends established public policy, or is substantially injurious to Plaintiff and the other members of
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`the California Subclass.
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`57.
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`Plaintiff and the members of the California Subclass have suffered an injury in fact
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`resulting in the loss of money and/or property as a proximate result of the violations of law and
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`wrongful conduct of Defendant alleged herein, and they lack an adequate remedy at law to address
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`the unfair conduct at issue here. Legal remedies available to Plaintiff and class members are
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`inadequate because they are not equally prompt and certain and in other ways efficient as equitable
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`relief. Damages are not equally certain as restitution because the standard that governs restitution
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`is different than the standard that governs damages. Hence, the Court may award restitution even if
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`it determines that Plaintiff fails to sufficiently adduce evidence to support an award of damages.
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`Damages and restitution are not the same amount. Unlike damages, restitution is not limited to the
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`amount of money Defendant wrongfully acquired plus the legal rate of interest. Equitable relief,
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`including restitution, entitles the plaintiff to recover all profits from the wrongdoing, even where
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`the original funds taken have grown far greater than the legal rate of interest would recognize.
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`Legal claims for damages are not equally certain as restitution because claims under the UCL entail
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`few elements. In short, significant differences in proof and certainty establish that any potential
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`legal claim cannot serve as an adequate remedy at law.
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`58.
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`Injunctive relief is also appropriate, and indeed necessary, to require Defendant to
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`provide full and accurate disclosures regarding the Products so that Plaintiff and Class members
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`can reasonably rely on Defendant’s packaging as well as those of Defendant’s competitors who
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`may then have an incentive to follow Defendant’s deceptive practices, further misleading
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`consumers.
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`59.
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`Pursuant to California Business and Professional Code § 17203, Plaintiff and the
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`California Subclass seek an order of this Court that includes, but is not limited to, an order
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`requiring Defendant to: (a) provide restitution to Plaintiff and the other California Subclass
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`members; (b) disgorge all revenues obtained as a result of violations of the UCL; (c) pay Plaintiff’s
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`and the California Subclass’ attorney’s fees and costs.
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`COUNT III
`(Fraud by Omission)
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`60.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`above.
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`61.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and Subclass against Defendant.
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`62.
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`This claim is based on fraudulent omissions concerning the safety of consumers
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`who use the Products. As discussed above, Defendant failed to disclose that the Products had a
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`dangerous Defect.
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`63.
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`The false and misleading omissions were made with knowledge of their falsehood.
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`Defendant is a nationwide distributor of electric heating pads and deep-tissue massage products
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`who knew of reports of the Products’ defective and dangerous nature. Nonetheless, Defendant
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`continued to sell its worthless electric heating pads to unsuspecting consumers.
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`64.
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` The false and misleading omissions were made by Defendant, upon which Plaintiff
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`and members of the proposed Class and California Subclass reasonably and justifiably relied, and
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`were intended to induce and actually induced Plaintiff and members of the proposed Class and
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`California Subclass to purchase the Products.
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`65.
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`The fraudulent actions of Defendant caused damage to Plaintiff and members of the
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`proposed Class and Subclass, who are entitled to damages and punitive damages.
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`Case 4:23-cv-00430-TSH Document 1 Filed 01/30/23 Page 12 of 18
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`above.
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`COUNT IV
`(Unjust Enrichment)
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`66.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`67.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and Subclasses against Defendant.
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`68.
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`Plaintiff and Class members conferred benefits on Defendant by purchasing the
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`Products.
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`69.
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`Defendant has been unjustly enriched in retaining the revenues derived from
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`Plaintiff and Class members’ purchases of the Products. Retention of those moneys under these
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`circumstances is unjust and inequitable because Defendant failed to disclose that the Products were
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`unfit for use as electric heating pads. These omissions caused injuries to Plaintiff and Class
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`members because they would not have purchased the Products if the true facts were known.
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`70.
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`Retention of those moneys also is unjust and inequitable because, as alleged above,
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`Defendant commenced an ineffective recall that was calculated to result in few returns, and no
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`refunds, thereby protecting profits Defendant collected from selling the defective products.
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`71.
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`Plaintiff and members of the putative class have been injured as a direct and
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`proximate result of Defendant’s inequitable conduct. Plaintiff and members of the putative class
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`lack an adequate remedy at law with respect to this claim and are entitled to non-restitutionary
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`disgorgement of the financial profits that Defendant obtained as a result of its unjust conduct.
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`72.
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`Plaintiff and the members of the California Subclass have suffered an injury in fact
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`resulting in the loss of money and/or property as a proximate result of the violations of law and
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`wrongful conduct of Defendant alleged herein, and they lack an adequate remedy at law to address
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`the unfair conduct at issue here. Legal remedies available to Plaintiff and class members are
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`inadequate because they are not equally prompt and certain and in other ways efficient as equitable
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`relief. Damages are not equally certain as restitution because the standard that governs restitution
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`is different than the standard that governs damages. Hence, the Court may award restitution even if
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`it determines that Plaintiff fails to sufficiently adduce evidence to support an award of damages.
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`Damages and restitution are not the same amount. Unlike damages, restitution is not limited to the
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`amount of money Defendant wrongfully acquired plus the legal rate of interest. Equitable relief,
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`including restitution, entitles the plaintiff to recover all profits from the wrongdoing, even where
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`the original funds taken have grown far greater than the legal rate of interest would recognize.
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`Legal claims for damages are not equally certain as restitution because claims under the UCL entail
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`few elements. In short, significant differences in proof and certainty establish that any potential
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`legal claim cannot serve as an adequate remedy at law.
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`COUNT V
`(Breach of Implied Warranty Under the Song-Beverly Act, Cal. Civ. Code § 1790 et seq. and
`California Commercial Code § 2314)
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`73.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`above.
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`74.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and Subclasses against Defendant.
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`75.
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`Under the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq.,
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`and California Commercial Code § 2314, every sale of consumer goods in this State is
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`accompanied by both a manufacturer’s and retail seller’s implied warranty that the goods are
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`merchantable, as defined in that Act. In addition, every sale of consumer goods in this State is
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`accompanied by both a manufacturer’s and retail seller’s implied warranty of fitness when the
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`manufacturer or retailer has reason to know that the goods as represented have a particular purpose
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`(here, to be used as electric heating pads) and that the buyer is relying on the manufacturer’s or
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`retailer’s skill or judgment to furnish suitable goods consistent with that represented purpose.
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`76.
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`The Products at issue here are “consumer goods” within the meaning of Cal. Civ.
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`Code § 1791(a).
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`77.
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`Plaintiff and the Class members who purchased one or more of the Products are
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`“retail buyers” within the meaning of Cal. Civ. Code § 1791.
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`78.
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`Defendant is in the business of manufacturing, assembling, producing and/or selling
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`the Products to retail buyers, and therefore are a “manufacturer” and “seller” within the meaning of
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`Cal. Civ. Code § 1791.
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`79.
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`Defendant impliedly warranted to retail buyers that the Products were merchantable
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`in that they would: (a) pass without objection in the trade or industry under the contract
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`description, and (b) were fit for the ordinary purposes for which the Products are used. For a
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`consumer good to be “merchantable” under the Act, it must satisfy both of these elements.
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`Defendant breached these implied warranties because the Products were unsafe and defective.
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`Therefore, the electric heating pads would not pass without objection in the trade or industry and
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`were not fit for the ordinary purpose for which they are used.
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`80.
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`Plaintiff and Class members purchased the Products in reliance upon Defendant’s
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`skill and judgment in properly packaging and labeling the Products.
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`81.
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`82.
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`The Products were not altered by Plaintiff or Class members.
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`The Products were defective at the time of sale when they left the exclusive control
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`of Defendant. The Defect described in this complaint was latent in the Products and not
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`discoverable at the time of sale.
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`83.
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`Defendant knew that the Products would be purchased and used without additional
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`testing by Plaintiff and Class members.
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`84.
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`As a direct and proximate cause of Defendant’s breach of the implied warranty,
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`Plaintiff and Class members have been injured and harmed because they would not have purchased
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`the Products if they knew the truth about the products, namely, that they were unfit for use as
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`electric heating pads.
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`COUNT VI
`(Breach of Implied Warranty Under the Uniform Commercial Code
`U.C.C. §§ 2-314, et seq.)
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`85.
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`Plaintiff incorporates by reference and re-alleges herein all paragraphs alleged
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`above.
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`86.
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`Plaintiff brings this claim individually and on behalf of the members of the
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`proposed Class and Subclasses against Defen