`
`
`
`
`
`
`GUTRIDE SAFIER LLP
`Seth A. Safier (State Bar No. 197427)
` seth@gutridesafier.com
`Anthony J. Patek (State Bar No. 228964)
` anthony@gutridesafier.com
`100 Pine Street, Suite 1250
`San Francisco, CA 94111
`Telephone: (415) 639-9090
`Facsimile: (415) 449-6469
`
`Attorneys for Plaintiffs
`
`
`
`UNITED STATES DISTRICT COURT FOR THE
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`CARMEN PEREZ and ANDREA BROOKS,
`on behalf of themselves and those similarly
`situated,
`
`
`
`
`
`BATH & BODY WORKS, LLC, a Delaware
`Limited Liability Company, and BATH &
`BODY WORKS, INC., a Delaware
`corporation,
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`Defendants.
`
`Case No.: 5:21-cv-05606-BLF
`
`SECOND AMENDED CLASS ACTION
`COMPLAINT FOR FRAUD, DECEIT,
`AND/OR MISREPRESENTATION;
`VIOLATION OF THE CONSUMER
`LEGAL REMEDIES ACT; FALSE
`ADVERTISING; NEGLIGENT
`MISREPRESENTATION; UNFAIR,
`UNLAWFUL, AND DECEPTIVE TRADE
`PRACTICES; AND RESTITUTION
`(UNJUST ENRICHMENT).
`
`(PUBLIC REDACTED VERSION FILED
`UNDER SEAL – CONTAINS HIGHLY
`CONFIDENTIAL – ATTORNEYS EYES
`ONLY MATERIAL)
`
`JURY TRIAL DEMANDED
`
`
`Plaintiffs Carmen Perez and Andrea Brooks1 bring this action on behalf of themselves
`
`and all others similarly situated against Bath & Body Works, LLC and Bath & Body Works, Inc.
`
`and their employees, alter-egos, and agents (collectively “Defendants”). Plaintiffs’ allegations
`
`against Defendants are based upon information and belief and upon investigation of Plaintiffs’
`
`counsel, except for allegations specifically pertaining to Plaintiffs, which are based upon each
`
`Plaintiff’s personal knowledge.
`
`
`
`1 The Court granted Defendants’ motion to compel arbitration of Plaintiff Brooks’ claims and
`stayed her claims in this case pending resolution of that arbitration. (ECF 77.) Plaintiff Brooks
`has submitted a request for arbitration to the American Arbitration Association on July 1, 2022,
`which is within the 60 day deadline set by the Court to avoid dismissal.
`- 1 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 2 of 44
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`INTRODUCTION
`
`1.
`
`Defendants are large companies that sell skin care products under, inter alia, the
`
`brand name “Bath & Body Works.” To increase their sales, Defendants trick consumers by
`
`making false claims about the capabilities of the ingredients within its products. Defendants do
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`not disclose to consumers that its products and their ingredients are scientifically incapable of
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`achieving the promised results.
`
`2.
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` This case is about Defendants’ hyaluronic acid product lines. Defendants market
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`and sell a series of products as “WATER,” “HYDRATING,” and/or “HYALRUONIC ACID.”
`
`Defendants falsely represent, inter alia, that hyaluronic acid, an ingredient in the products,
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`“attracts and retains up to 1,000x its weight in water to make skin look smoother and more
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`supple.” Defendants have profited enormously from its false marketing campaigns, while its
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`customers are left with overpriced skin care products that do not live up to Defendants’ promises.
`
`PARTIES
`
`3.
`
`Plaintiff Carmen Perez is, and was at all relevant times, an individual and resident
`
`of California. Ms. Perez currently resides in San Jose, California. Ms. Perez intends to live in
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`4.
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`Plaintiff Andrea Brooks is, and was at all relevant times, an individual and
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`resident of California. Ms. Brooks currently resides in Carpinteria, California. Ms. Brooks
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`intends to live in Carpinteria for the foreseeable future.
`
`5.
`
`Defendant Bath & Body Works, LLC is a Delaware limited liability company
`
`with its principal place of business in Columbus, Ohio. Bath & Body Works LLC is a wholly-
`
`owned subsidiary of Bath & Body Works, Inc.
`
`6.
`
`Defendant Bath & Body Works, Inc. (“B&BW Inc.”, formerly known as L
`
`Brands, Inc.) is a Delaware corporation with its principal place of business in Columbus, Ohio.
`
`According to its SEC 10-K annual report filed March 2022, it is “a specialty retailer of home
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`fragrance, body care products and soaps and sanitizer products.” B&BW Inc. goes on to state
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`that “[t]hrough Bath & Body Works . . . and other brand names, the Company sells merchandise
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`through Company-operated specialty retail stores” in the U.S. and Canada, “and through its web
`
`- 2 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 3 of 44
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`site and other channels.” The company changed its name from “L Brands, Inc.” to “Bath and
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`Body Works, Inc.” on August 3, 2021. In its March 2021 10-K filing, Bath & Body Works, Inc.
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`stated that it was reporting Bath & Body Works LLC and Victoria’s Secret segments as separate
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`reportable segments that included “sourcing and production functions (formerly known as Mast)
`
`and certain other functions that directly support each brand.” In the 2021 SEC filing, B&BW
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`Inc. also claimed to “operate more than 1,735 Bath & Body Works stores in the U.S. and Canada
`
`and online at BathandBodyWorks.com.”
`
`7.
`
`Mast Global LLC2, a Delaware limited liability company with its principal place
`
`of business in Columbus, Ohio, is (or was) a wholly-owned division of Bath & Body Works,
`
`Inc. Mast Global was registered as a Delaware limited liability company in November 2017.
`
`Prior to that date, “Mast Global” was a registered trade name for Beautyavenues LLC (a.k.a.
`
`Beauty Avenues), another subsidiary of Bath & Body Works Inc. and Delaware limited liability
`
`company with its principal place of business in Columbus, Ohio.
`
`8.
`
`Mast Global’s current status as a corporate entity is unclear. Mast Global is still
`
`listed as a Delaware Limited Liability company on Delaware’s Secretary of State’s web site. But
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`B&BW has indicated that Mast Global no longer exists, and Mast Global LLC’s registration in
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`Delaware appears to have been cancelled due to nonpayment of Delaware taxes. At the same
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`time, Beautyavenues LLC—which previously did business under the name “Mast Global”—is
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`still listed as in good standing in Delaware, and Mast Global is still listed as a trade name for “L
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`Brands” (i.e., B&BW Inc.).
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`9.
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`At all times herein mentioned, Defendants B&BW Inc. and B&BW LLC,
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`individually and collectively, were members of, and engaged in, a joint venture, partnership and
`
`common enterprise, and acting within the course and scope of, and in pursuance of, said joint
`
`venture, partnership, and common enterprise.
`
`
`
`2 Mast Global LLC is not a defendant at this time. Plaintiffs initially reserved a hearing date for
`a motion for leave to amend to add Mast Global LLC as a defendant, but Defendants threated to
`move for sanctions under Rule 11 if Plaintiffs did so. While Plaintiff disagree with Defendants’
`position, Plaintiffs did not wish to burden the Court with unnecessary motion practice without
`some guidance from the Court. Plaintiffs do, however, assert that Mast Global played a role in
`the events alleged and that B&BW Inc. and/or B&BW LLC are liable for Mast Global’s actions.
`- 3 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 4 of 44
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`10. More specifically, B&BW Inc.—both directly and through its agent and alter ego
`
`Mast Global—formulated, manufactured, packaged, shipped into California, and performed all
`
`regulatory and legal functions for the Products, including reviewing, editing, and approving the
`
`Products’ labels and the false claims alleged herein.
`
`11.
`
`B&BW LLC acted as the marketing and sales arm of the joint enterprise; it
`
`participated in drafting the marketing strategy and claims alleged herein, and it sold the Products
`
`to consumers.
`
`12.
`
`At all times herein mentioned, the acts and omissions of each Defendant
`
`concurred with and contributed to the various acts and omissions of each and all of the other
`
`Defendants in proximately causing the injuries and damages as herein alleged.
`
`13.
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`At all times herein mentioned, each Defendant ratified each and every act or
`
`omission complained of herein. At all times herein mentioned, Defendants, individually and
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`collectively, aided and abetted the acts and omissions of each and all of the other Defendants in
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`proximately causing the damages, and other injuries, as herein alleged.
`
`B&BW Inc. Is Liable for the Acts of Its Agent and Alter Ego, Mast Global.
`
`14.
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`B&BW Inc. and its personnel were direct participants in the events described
`
`herein, as described further below, and are directly liable for the misconduct alleged herein as a
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`15.
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`B&BW Inc. is also liable for the acts alleged herein as the principal and alter ego
`
`of its agent and alter ego Mast Global.
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`16.
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`In a company overview, Mast Global identified itself as a “division of L Brands,
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`Inc.” and said that it was “headquartered within L Brands’ commercial park located in the greater
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`17. Mast Global further stated that it served “as the IT and Logistical support arm for
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`the L Brands retail divisions. . . . The logistical support that Mast provides to L Brands is the
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`operation of all distribution centers for each division, which includes both inbound and outbound
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`Distribution Center (DC) traffic.” The “retail divisions” Mast Global served include B&BW
`
`LLC.
`
`- 4 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 5 of 44
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`18.
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`On information and belief, Mast Global LLC (and Beauty Avenues, which
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`operated as “Mast Global” prior to formation of Mast Global LLC) shared offices and personnel
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`with B&BW Inc. and operated as an internal division of B&BW Inc. for the benefit of B&BW
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`Inc. and its fellow subsidiaries, including B&BW LLC. Public sources indicate that Beauty
`
`Avenues sometimes operated under the name “Bath & Body Works.”
`
`19.
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`B&BW Inc. actively controlled, directed, and oversaw Mast Global’s (and
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`Beauty Avenue’s) partnership with B&BW LLC. Further, B&BW Inc. referred to Mast Global
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`as a “wholly owned division” of itself, thereby identifying Mast Global as its alter ego and/or
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`agent, with B&BW Inc. and Mast Global sharing a single unity of purpose.
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`20.
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`Because B&BW Inc. had complete ownership and control of Mast Global and
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`directed it to participate in the alleged activities with B&BW LLC, it is liable for Mast Global’s
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`21.
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`As Plaintiffs will show, B&BW Inc. was not an arms-length participant; its
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`personnel were direct participants in daily marketing and product development decisions for the
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`products at issue.
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`22. Mast Global had direct involvement in distribution of products into California as
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`an agent of B&BW Inc. (then L Brands). Mast Global also formulated, manufactured, helped
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`package, and participated in regulatory decisions—including approving label claims—for the
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`Products in its capacity as L Brands logistics, manufacturing, and scientific/R&D division.
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`Defendants have admitted Mast Global’s responsibility for these functions through production
`
`of documents and identification in their Initial Disclosures of Mast Global personnel (who were
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`acting on B&BW Inc.’s behalf) as the people involved in formulating, manufacturing, and
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`approving label claims for the Products.
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`23.
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`On information and belief, Mast Global is also an alter ego of B&BW Inc./L
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`Brands. The alter ego doctrine allows piercing the veil between corporations when subsidiary
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`corporations are used by a dominating parent corporation to engage in fraudulent or wrongful
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`conduct. Under California law, a parent corporation is the alter ego of its subsidiary if it controls
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`the subsidiary to such a degree as to render it the mere instrumentality of the parent. Institute of
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`- 5 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 6 of 44
`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 6 of 44
`
`—_
`
`Veterinary Pathology. Inc. v. California Health Laboratories, Inc., 116 Cal.App.3d 111, 119,
`
`172 Cal. Rptr. 74 (1981). To establish jurisdiction, therefore, Plaintiffs must prove both of the
`
`following: 1) such a unity of interest in ownership as to dissolve the separate corporate
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`personalities of the parent and the subsidiary, relegating the latter to the status of merely an
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`instrumentality, agency, conduit, or adjunct of the former, and 2) an inequitable result will occur
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`if the conductis treated as that of the subsidiary alone. Here, B&BW Inc. dominated Mast Global
`
`
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`and operated Mast Global as an arm of its own business. This fact is reflected
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`NN Frthermore, ifB&BW Inc. has
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`dissolved Mast Global, or folded Mast Global’s operations into its own (or B&BW LLC’s),it
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`would be inequitable to allow B&BW Inc. to do so and yet escape liability for Mast Global’s
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`conduct done under B&BWInc.’s control and direction.
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`24.
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`In the alternative that Mast Global LLC no longer exists, B&BW Ine. is, on
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`information andbelief, liable as a successor company for the actions of Mast Global LLC in
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`propagating the falsehoods alleged herein. Given Mast Global’s role as a wholly owned
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`subsidiary of B&BW Inc., operating under complete control of B&BW Inc. for the benefit of
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`B&BW Ine.’s portfolio of subsidiary companies, while registered by B&BW Ince. as a trade
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`name,it is possible that Mast Global has been dissolved, with its assets and liabilities absorbed
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`N W
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`w > n
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`N n — o
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`o
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`\o
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`by B&BW Inc.
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`25.—Plaimtiffs allege in the alternative that B&BW LLCis liable as the successor
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`company for Mast Global LLC, based on the apparent reassignment of Mast Global personnel,
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`including Joel Burdick and Eoghan Gallagher, to BeBW LLC.
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`26.|Courts look beyond the corporate form where necessary to prevent fraud or to
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`achieve equity. Under Delaware law, a parent corporation may becomea party to its subsidiary’s
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`contract if the parent’s conduct manifests an intent to be bound by the contract. Such intent will
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`be inferred from the circumstances surrounding the transaction, including whether the parent
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`participated in the negotiation of the contract and whether the subsidiary “is a dummyfor the
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`-6-
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT — CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 7 of 44
`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 7 of 44
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`—_
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`parent corporation.” A.W. Fiur Co. v. Ataka & Co., 71 A.D.2d 370 (1st Dept. 1979). Here, it is
`
`apparent from documents and testimony that Mast Global entered into some agreement to
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`participate in development of the accused hyaluronic acid Products.
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`
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`
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`Accordingly, B&BW Ine. is a party to whatever agreement existed
`
`between B&BW LLC and Mast Global LLC.
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`27.
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`Under Jn re Sbarro Holding, Inc., 91 A.D.2d 613 (2d Dept. 1982), the corporate
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`veil will be pierced (1) to achieve equity, even absent fraud, where the officers and employees
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`N W
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`w > n
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`N n — o
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`o
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`\o
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`of a parent corporation exercise control over the daily operations of a subsidiary corporation and
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`act as the true prime movers behind the subsidiary’s actions, and/or (2) where a parent
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`corporation conducts business through a subsidiary which exists solely to serve the parent.
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`Global’s business.
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`Sbarro, 91 A.D.2d at 614 (citations omitted). Here, B&BW Inc. controlled all aspects of Mast
`
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`B&BW Inc. and MastGlobal advertised Mast Globalas the logistics and manufacturing division
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`of L Brands (i.e., B&BW Inc.), thereby establishing that Mast Global existed to serve B&BW
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`Inc. by providing support for B&BW Inc.’s portfolio companies.
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`28.
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`Factors weighed in assessing the degree of domination and control exercised by
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`the parent company include: overlap in ownership, officers, directors, and personnel; common
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`office space, address and telephone numbers of the corporate entities; whether the related
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`corporations deal with the dominated corporation at arm’s length; and whether the corporation
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`in question had property that was used by other of the corporationsasif it were its own. No one
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`factor controls the consideration.
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`29.
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`The above factors support piercing the corporate veil here.
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`a.
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`Overlap in Ownership. B&BWInc. (formerly “L Brands”) owned 100%
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`of Mast Global LLC and advertised Mast Global as a “wholly-owned
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`division” of L Brands. B&BW Inc. also owned Beautyavenues LLC,
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`which registered “Mast Global”as its trade name in Ohio in 2015, prior
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`-7-
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT — CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 8 of 44
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`
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`to Mast Global LLC’s registration as a Delaware company by B&BW Inc.
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`in late 2017. Later, in 2020, L Brands Inc. (i.e., B&BW Inc.) updated
`
`“Mast Global” as its trade name in Ohio.3
`
`b.
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`Overlap in Officers. Officers of B&BW Inc. sat as officers of Mast
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`Global. For example, B&BW Inc.’s SEC filings list Charles McGuigan
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`simultaneously as Chief Operating Officer of B&BW Inc. and CEO and
`
`President of Mast Global from 2011 until 2020.
`
`c.
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`Failure to Operate at Arms Length. The entities did not operate at arms
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`length. Tasks were distributed to Mast Global by B&BW Inc. on a routine
`
`and daily basis, without negotiation of
`
`terms or exchange of
`
`consideration.
`
`d.
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`Common Office Space. As noted above, Mast Global appears to have
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`shared common office space with B&BW
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`Inc. Furthermore,
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`Beautyavenues LLC, when operating as Mast Global, listed its offices as
`
`Three River Parkway, Columbus, Ohio—the same address listed by
`
`B&BW Inc./L Brands when it took over Mast Global’s registration as a
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`trade name.
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`e.
`
`Treatment of Mast Global Property as B&BW Inc. Property. B&BW
`
`Inc./L Brands appears to have operated under the assumption that Mast
`
`Global’s property and personnel existed to service its needs. L Brands and
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`Mast Global personnel routinely ignored the formal distinctions between
`
`the corporations, with employees publicly identifying themselves as
`
`working for both companies. Personnel sometimes had both “lb.com” and
`
`“mast.com” email addresses, indicating joint use of commonly-owned
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`email servers and computer networks.
`
`
`
`3 Although B&BW Inc. has since indicated that it is abandoning this trade name, it did so only
`after Plaintiff’s counsel notified Defendants that Plaintiffs intended to add Mast Global as a
`defendant. B&BW Inc.’s belated abandonment thus appears aimed at avoiding liability.
`- 8 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 9 of 44
`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 9 of 44
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`
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`Thesefacts
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`demonstrate a pronounced and intimate commingling ofidentities of B&BW Inc. and Mast
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`Global.
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`JURISDICTION AND VENUE
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`31.
`
`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`—_
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`N W
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`w > n
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`N
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`oO
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`— o
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`o
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`\o
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`10
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`U.S.C. § 1332(d)(2). The aggregate amount in controversy exceeds $5,000,000, exclusive of
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`ll
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`interest and costs; and Plaintiffs and at least one Defendantare citizens of different states.
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`32.|The imjuries, damages and/or harm upon whichthis action is based, occurred or
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`arose out of activities engaged in by Defendants within, affecting, and emanating from, the State
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`of California. Defendants regularly conduct and/orsolicit business in, engage in other persistent
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`courses of conduct in, and/or derive substantial revenue from products provided to persons in
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`the State of California. Defendants have engaged, and continue to engage, in substantial and
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`continuous businesspractices in the State of California.
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`33.|Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a
`18
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`substantial part of the events or omissions giving rise to the claims occurred in the state of
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`California, including within this District.
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`34.
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`In accordance with California Civil Code Section 1780(d), Plaintiff Carmen
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`Perez concurrently files herewith a declaration establishing that she purchased Bath & Body
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`Works Water Hyaluronic Acid Hydrating Cream in a Bath & Body Worksstore in Milpitas,
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`California. (Plaintiff Perez’s declaration is attached hereto as Exhibit A.)
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`35.
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`Plaintiffs accordingly allege that jurisdiction and venue are proper in this Court.
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`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT — CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 10 of 44
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`SUBSTANTIVE ALLEGATIONS
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`36.
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`The market for cosmetics is fiercely competitive. Cosmetics manufacturers
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`continually attempt to gain market share by touting the latest ingredients in their products and
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`marketing them as being capable of improving consumers’ appearance.
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`37.
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`Even in an industry known for hype, Defendant’s outrageous marketing practices
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`stand out among those of its competitors. As discussed below, Defendant’s claims about its skin
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`care products are not just hype; rather, they are demonstrably false.
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`38.
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`Under the brand name “Bath & Body Works,”4 Defendants market, advertise and
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`sell products such as skin creams, lotions, scrubs, shampoos, conditioners, scents, and body wash
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`to consumers. Defendants sell their products in their over 2000 company stores and on
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`Defendants’ proprietary website, www.bathandbodyworks.com (the “Website”).
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`39.
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`Defendants understand that consumers are concerned about looking youthful,
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`reducing the appearance of wrinkles and fine lines on their faces, and maintaining healthy, clear,
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`supple skin. Defendants know that consumers are therefore willing to pay more for products that
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`promise to make them look younger, keep their skin healthy, and reverse the signs of aging.
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`40.
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`Accordingly, Defendants have embarked on a long term advertising campaign to
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`trick consumers into believing that many of their products contain cutting-edge scientific
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`technologies that will offer younger, healthier skin, when Defendants know that their claims are
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`false or misleading to reasonable consumers.
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`Defendants Make False and Misleading Claims About Their “Hyaluronic Acid” Line of
`Products.
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`41.
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`Defendants sell various products as part of their “WATER” / “HYDRATING”
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`line. These products include, without limitation:
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`a.
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`B&BW Hyaluronic Acid Hydrating Body Cream (in varying scents, e.g.,
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`“cactus water,” “rose water,” etc.);
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`b.
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`B&BW Hyaluronic Acid Hydrating Hand Cream (in varying scents, e.g.,
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`“cactus water,” “rose water,” etc.);
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`
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`4 Also referred to herein as “B&BW.”
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`- 10 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 11 of 44
`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 11 of 44
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`c.
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`d.
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`e.
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`B&BW Hyaluronic Acid Hydrating Body Wash;
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`B&BW Hyaluronic Acid Hydrating Body Gel Lotion; and
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`B&BW Hyaluronic Acid Mineral Body Polish (in varying scents).
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`(Collectively, the “Hyaluronic Acid Products”or “Products”)
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`42.
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`Defendants share numerous responsibilities for all Bath & Body Works products,
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`including the Hyaluronic Acid Products. B&BW LLC personnel drafted packaging and
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`advertising claims, developed marketing strategy, performed tests of marketing efficacy, and
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`trained in-store personnel on howto sell the products. B&BW Inc. personnel, with support from
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`—_
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`N W
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`w > n
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`N n — o
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`o
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`\o
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`MastGlobal personnel, performedall legal and regulatory functions, including review and final
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`approval of advertising and packaging claims. Mast Global personnel, acting as B&BW Inc.’s
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`logistics and manufacturing arm, handled formulating, manufacturing, packaging the Products,
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`as well as distributing the Products to Bath & Body Works retail locations.
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`43.
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`Responsibility for Bath & Body Works retail locations appears to have been
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`shared by B&BW LLC and B&BWInc. In written declarations submitted to this Court (ECF 20-
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`1), Bath & Body Works LLC purports to handle sales and marketing for the Bath & Body Works
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`44.
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`B&BWInce.acted as a supervisor to the other companies activities, with its
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`personnel weighing in on day-to-day operations and decisions forall of the activities described
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`herein.
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`45.
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`B&BWLLCdelegated product development and manufacturing responsibilities
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`for the Hyaluronic Acid Products with Mast Global, B&BW Ince.’s agent and alter ego.
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`According to deposition testumony from Joel Burdick, Ph.D., former Associate Vice President
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`of Scientific Affairs at Mast Global during most of the relevant time period and current Vice
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`President of Product Integrity at B&BW LLC,
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`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT — CASE NO.5:21-CV-05606-BLF
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`brand and purports to operate the Bath & Body Works online and brick-and-mortar stores.
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`However, B&BW Inc. purports to do the samein its SEC filings, and
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 12 of 44
`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 12 of 44
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`—"
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`N W
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`w > n
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`oO
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`B&BW Inc. (operating as “L Brands”) in the events alleged herein.3
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`>\o
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`-12-
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT — CASENO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 13 of 44
`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 13 of 44
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`om
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`Because the development, marketing, and sale of the Products wasa joint venture
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`between B&BW LLC and B&BW Ince.
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`(including its Mast Global division) with active
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`participation by both entities, Defendants B&BW Inc. and B&BW LLCare joimtly and
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`separately liable for the misconductalleged herein.
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`-13-
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT — CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 14 of 44
`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 14 of 44
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`—_
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`Defendants Falsely Represent to Consumersthat the Hyaluronic Acid Products Moisturize
`Skin by Attracting and Retaining Up To 1000x the Hyaluronic Acid’s Weight in Water.
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`52.
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`Throughoutthe class period and continuing to the present, Defendants have made
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`false and misleading marketing to trick consumers into believing that the Hyaluronic Acid
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`Products contain unique moisturizing properties. Specifically, Defendants falsely representthat,
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`because of the presence of hyaluronic acid in the Hyaluronic Acid Products, the products are
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`capable ofattracting and retaming large quantities of water, presumably from the atmosphere
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`into the user’s skin, for long-lasting benefits. Defendants make this false claim to emulate its
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`competitors, noting that
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`explained below, however, these representations are false and misleading.
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`53.
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`For example, throughoutthe class period, the packaging for the Hyaluronic Acid
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`Hydrating Body Cream states that the product contains “HYALURONIC ACID”that “attracts
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`and retains up to 1,000x its weight in water” to “instantly replenish moisture for smooth,
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`hydrated skin” or “make skin look smoother and more supple.”
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`54.
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`Thefront label for the Hyaluronic Acid Hydrating Body Cream is shown below.
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`The front label suggests the presence of Hyaluronic Acid in important by placing it in large,
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`different-colored font above “Hydrating Body Cream.”
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`HYDRATING
`BODY CREAM
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` = HYALURONIC
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`Bath &
`Body Works
`8 OTs 226g
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`° These other companies have removedthefalse “1,000X”claim from their productlabels.
`-14-
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT — CASE NO.5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 15 of 44
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`•
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`The packaging further states, in bulleted language on the back that the hyaluronic
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`acid “attracts and retains up to 1,000x its weight in water to make skin look
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`smoother and more supple”:
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`55.
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`The following image, submitted by Bath & Body Works with a request for
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`judicial notice (see ECF 20, Ex. B), is the proof for the Bath & Body Works label (back and
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`front) depicted above:
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`- 15 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 16 of 44
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`56. Moreover, on information and belief, in-store personnel were instructed to inform
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`customers of that the hyaluronic acid in each product attracted and retained up to “1,000x its
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`weight in water.”
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`57.
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`The “1,000x its weight in water” claim was also made on in-store, point-of-sale
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`advertising, such as signs placed near the Products to attract consumers and entice them to
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`purchase the Products.
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`58.
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`The Bath & Body Works website (the “Website”) makes the exact same
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`representations. In addition to prominently featuring photographs of the Hyaluronic Acid
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`Products’ containers, the website contains descriptions of the products that mirror the false and
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`deceptive representations on the packages.
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`59.
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`The representations that Defendants make on the Hyaluronic Acid Products’
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`boxes and containers are viewed by consumers who shop for their products, regardless of
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`whether they shop at retail stores or online. Each of Defendants’ stores make the containers
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`available for consumers to view as they shop. Further, the representations are repeated on
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`advertisements displayed near the Products, both in-store and on the Website.
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`60.
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`Bath & Body Works makes materially identical claims for all of its Hyaluronic
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`Acid Products. In particular, the false claim that hyaluronic acid “retains 1,000 times its weight
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`in water” appears on the labels, packaging, and/or advertising for all of the Hyaluronic Acid
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`Products. Several of the Products also claim that hyaluronic acid “attracts” 1,000X its weight in
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`water.
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`61.
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`For example, the label of Bath & Body Works’ Hyaluronic Acid Body Gel
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`includes “HYALURONIC ACID” in large capital letters in a contrasting color on the front label,
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`followed by the back label statement “WATER IS EVERYTHING. Naturally found in your skin,
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`Hyaluronic acid is a water-loving molecule that promotes skin health. A powerful hydrator and
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`replenishing agent, Hyaluronic Acid attracts and retains up to 1,000X its weight in water to
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`- 16 -
`PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT – CASE NO. 5:21-CV-05606-BLF
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`Case 5:21-cv-05606-BLF Document 95 Filed 10/28/22 Page 17 of 44
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`make skin look smoother and more supple.” The relevant portion of the Body Gel’s back label
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`is reproduced below:
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`62.
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`The label of Bath & Body Works’ Hyaluronic Acid Hydrating Body Wash
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`includes identical statements to those of the Body Cream and Body Gel, as shown below:
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`Thus, the Bath & B