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`Case 3:20-cv-01486-TWR-BLM Document 1 Filed 07/31/20 PageID.1 Page 1 of 28
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`
`Naomi Spector (SBN 222573)
`Email: nspector@kamberlaw.com
`KAMBERLAW, LLP
`1501 San Elijo Road South, Ste.104
`San Marcos, CA 92078
`Phone: 310.400.1053
`Fax: 212.202.6364
`
`Counsel for Plaintiff Lauren Souter, and the
`putative Classes
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`vs.
`
`Plaintiff,
`
`LAUREN SOUTER, individually,
`and on behalf of others similarly
`situated,
`
`
`
`
`
`EDGEWELL PERSONAL CARE
`COMPANY, EDGEWELL
`PERSONAL CARE BRANDS LLC,
`and EDGEWELL PERSONAL
`CARE, LLC,
`
` Defendants.
`
`
`
`
`
`CASE NO.
`
`CLASS ACTION COMPLAINT FOR:
`
`1. UNFAIR AND UNLAWFUL
`BUSINESS ACTS AND PRACTICES
`(CAL. BUS & PROF. CODE §17200 ET
`SEQ.);
`2. DECEPTIVE ADVERTISING
`PRACTICES (CAL. BUS & PROF.
`CODE §§ 17500, ET SEQ.);
`3. CONSUMER LEGAL REMEDIES
`ACT (CAL. CIV. CODE § 1750, ET
`SEQ.);
`4. BREACH OF EXPRESS
`WARRANTY; AND
`5. QUASI-CONTRACT.
`
`DEMAND FOR JURY TRIAL
`
`
`Plaintiff Lauren Souter on behalf of herself and others similarly situated, by and
`through her undersigned counsel, hereby files this Class Action Complaint against
`Defendants Edgewell Personal Care Company, Edgewell Personal Care Brands, LLC,
`and Edgewell Personal Care, LLC (collectively “Defendants”) and states as follows:
`
`CLASS ACTION COMPLAINT
`
`
`
`'20
`
`CV1486
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`BLM
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`CAB
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`

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`NATURE OF THE ACTION
`1.
`This is a case about holding the manufacturers of Wet Ones hand wipes1
`responsible for truthfully and accurately labeling their Products, which are used and
`relied on by consumers to keep themselves and their families safe from germs.
`2.
`Specifically, Plaintiff alleges that Defendants’ label representations
`concerning the efficacy and skin safety of the Products are false and misleading,
`including Defendants’ representations that the Products “Kill[] 99.99% of Germs” and
`that they are hypoallergenic and gentle on skin. Plaintiff also asserts that Defendants
`omit critical information concerning the limitations of the Products to “kill germs.”
`3.
`“Germs” is a commonly understood term as an organism that causes
`disease.
`4.
`Contrary to Defendants’ material representations, however, the Products do
`not “kill” 99.99% of the organisms that cause disease.
`5.
`As described in detail herein, the active ingredient in the Products,
`benzalkonium chloride (“BAC”), is ineffective against non-enveloped viruses, certain
`gram negative bacteria, and spores. In addition, the concentration of BAC in the
`Products and manner of application render the Products ineffective to “kill” certain
`“germs.”
`6.
`In the absence of truthful disclosures concerning the Products, consumers
`are falsely led to believe that they are effective—as Defendants’ prominently
`represent—against “99.99% of Germs.” If the Products were accurately labeled,
`however, consumers would know when they are ineffective and when they should seek
`alternative hand cleansing methods.
`
`
`
`
`1 Wet Ones wipes are sold in a variety of sizes, scents and variations, including Wet
`Ones canisters, travel packs, singles and big ones (collectively, the “Products”). This
`action includes in the definition of Products all sizes, scents and variations of the
`Products that bear the “Kills 99.99% of Germs” representation.
`2
`CLASS ACTION COMPLAINT
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`7.
`Defendants’ skin safety representations, including that the Products are
`“[h]ypoallergenic” and “tough on dirt and germs, yet gentle on skin” are also false and
`misleading because the Products contain numerous known irritants, allergens and toxins.
`8.
`BAC, for example, is an established skin irritant and has been found to
`cause allergic contact dermatitis.
`9.
`In addition, the third most prevalent inactive ingredient in the Products,
`phenoxyethanol, is a recognized allergen and toxin. The United States Food and Drug
`Administration (“FDA”) has stated that phenoxyethanol can depress the central nervous
`system in infants. A French medical agency cautioned consumers not to use wipes
`containing phenoxyethanol on children under the age of three because of concerns
`related to reproductive and developmental toxicity. The Product directions, however,
`include use instructions for children 2 years and older.
`10. Plaintiff purchased the Products under the reasonable belief that they were
`accurately represented, including that the label representations were truthful. Plaintiff
`suffered damage, as described herein.
`11. Plaintiff brings this action individually and on behalf of those similarly
`situated and seeks to represent a Nationwide Class and California Subclass (defined
`infra.). Plaintiff seeks damages, interest thereon, reasonable attorneys’ fees and costs,
`restitution, equitable relief, and disgorgement of all benefits Defendants have enjoyed
`from their unlawful and/or deceptive business practices, as detailed herein. In addition,
`Plaintiff seeks injunctive relief to stop Defendants’ unlawful conduct in the labeling and
`marketing of the Products. Plaintiff makes these allegations based on her personal
`knowledge as to herself and her own acts and observations and, otherwise, on
`information and belief based on investigation of counsel.
`JURISDICTION AND VENUE
`12. This Court has original jurisdiction over this action pursuant to 28 U.S.C. §
`1332(d) because this is a class action in which: (1) there are over 100 members in the
`proposed classes; (2) members of the proposed classes have a different citizenship from
`3
`CLASS ACTION COMPLAINT
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`Defendants; and (3) the claims of the proposed class members exceed $5,000,000 in the
`aggregate.
`13. This Court has personal jurisdiction over Defendants because Defendants’
`contacts with the forum are continuous and substantial, and Defendants intentionally
`availed themselves of the markets within California through their sale and distribution
`of the Products to California consumers and through the privilege of conducting business
`in California.
`14. Venue is proper in this District pursuant to 28 U.S.C. §1391(b) because
`Defendants engage in continuous and systematic business activities within the State of
`California. Moreover, a substantial part of the events and omissions giving rise to the
`claims alleged herein occurred in this District. See also Declaration of Lauren Souter
`Regarding Venue Pursuant to Cal. Civ. Code § 1780(d), attached hereto as Exhibit A.
`PARTIES
`15. Plaintiff Lauren Souter is a resident of San Diego, California, who
`purchased the Products during the class period, as described herein. Plaintiff’s claim is
`typical of all Class members in this regard. In addition, the advertising and labeling on
`the package of the Products purchased by Plaintiff, including the Products’ label
`representations, is typical of the advertising, labeling and representation of the Products
`purchased by members of the Classes.
`16. Defendant Edgewell Personal Care Company is a Missouri corporation
`with its principal place of business in Shelton, CT. Defendant and its agents
`manufacture, market, distribute, label, promote, advertise and sell the Products. At all
`times material hereto Defendant was conducting business in the United States, including
`in California, through its services as a manufacturer and supplier to various stores in
`California and by, among other things, maintaining agents for the customary transaction
`of business in California.
`17. Defendant Edgewell Personal Care Brands, LLC is a Delaware Limited
`Liability Company with its principal place of business in Shelton, CT. Defendant and
`4
`CLASS ACTION COMPLAINT
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`its agents manufacture, market, distribute, label, promote, advertise and sell the
`Products. At all times material hereto Defendant was conducting business in the United
`States, including in California, through its services as a manufacturer and supplier to
`various stores in California and by, among other things, maintaining agents for the
`customary transaction of business in California.
`18. Defendant Edgewell Personal Care, LLC is a Delaware Limited Liability
`Company with its principal place of business in Shelton, CT. Defendant and its
`agents manufacture, market, distribute, label, promote, advertise and sell the Products.
`At all times material hereto Defendant was conducting business in the United States,
`including in California, through its services as a manufacturer and supplier to various
`stores in California and by, among other things, maintaining agents for the customary
`transaction of business in California.
`19. Defendants and their agents promoted, marketed and sold the Products at
`issue in this jurisdiction and in this judicial district. The unfair, unlawful, deceptive, and
`misleading advertising and labeling of the Products was prepared and/or approved by
`Defendants and their agents, and was disseminated by Defendants and their agents
`through labeling and advertising containing the misrepresentations and omissions
`alleged herein.
`
`FACTUAL ALLEGATIONS
`A. Defendants Falsely Label and Advertise the Products as Killing
`99.99% of Germs
`20. Defendants manufacture, label, market, promote, advertise, and sell the
`Products.
`21. The following images depict the front and back panel representations on the
`Products:
`
`
`
`
`
`
`5
`CLASS ACTION COMPLAINT
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`22. Defendants make numerous false and misleading representations about the
`ability of the Products to kill germs and clean hands.
`23. Defendants prominently state on the primary display panel that the Products
`“Kill[] 99.99% of Germs”. On the back panel, Defendants state that “Wet Ones®
`Antibacterial Hand Wipes kill 99.99% of germs and wipe away dirt, providing a better
`clean than hand sanitizers. They are specially formulated to be tough on dirt and germs,
`yet gentle on skin, so you can confidently keep your hands fresh and clean when soap
`and water are not available.” (Collectively, the “Efficacy Representations”).
`24. Under “Directions” Defendants state that “adults and children 2 years and
`over” should “apply to hands” and “allow skin to dry without wiping”.
`25. Defendants’ Efficacy Representations are false, deceptive and materially
`misleading.
`26. Germs” is defined by Merriam-Webster as, among other things,
`“especially: a microorganism causing disease”.
`27. The active ingredient in the Products, BAC, does not “kill” certain
`microorganisms causing disease, which comprise more than .01% of “germs.”
`28.
`In addition, the concentration and formulation of the active ingredient—
`.13% BAC on a hand wipe—does not “Kill[] 99.99% of Germs”.
`
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`29. The directions render the Products additionally ineffective as they state
`“apply to hands” and “allow skin to dry without wiping.” BAC, however, is slow to act,
`meaning that it generally must remain on hands for more time than soap and water or an
`alcohol-based hand sanitizer to “kill germs.” The directions, however, do not ensure
`that the active ingredient remains on the hands for a sufficient amount of time to denature
`certain microbes.
`30. Furthermore, the directions do not account for the condition of the hands to
`which the wipes are applied, which could be dirty, greasy or grimy and prevent adequate
`application or saturation of the product.
`31. BAC belongs to a group of chemicals called quaternary ammonium
`compounds (“QAC”).
`32. BAC generally works by denaturing the proteins in a cell, including by
`absorbing or disrupting the cytoplasmic membrane, which causes vital substances to leak
`out of the cell. By this mechanism, the cell structure can be compromised, resulting in
`damage, disruption of essential cell processes and/or cell death. Accordingly, the outer
`structure of the microbe to which BAC is applied is critically important to whether BAC
`will be effective to denature or destroy that microbe.
`33. According to a table published by the Center for Food Security & Public
`Health regarding the antimicrobial activity of certain disinfectant chemical classes,
`QAC disinfectants (which includes BAC) demonstrate no activity against: (i)
`pseudomonads (a type of gram-negative bacteria that are difficult to remove from food
`preparation surfaces); (ii) chlamydiae (gram-negative bacteria causing infection); (iii)
`non-enveloped viruses (viruses that lack a lipid bilayer); (iv) parvoviruses (DNA
`viruses, some of which cause infection in humans, such as “fifth disease”); (v) acid-fast
`bacteria (a group of bacteria classified by the ability to resist decolorization by acids
`for staining procedures; for example, M. tuberculosis), (vi) bacterial spores (a dormant
`form of bacteria; for example, C. difficile, described below), (vii) coccidia (causing
`infection in dogs), and (viii) prions (proteins with the ability to transmit their misfolded
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`shape onto other proteins and which are responsible for several fatal neurodegenerative
`diseases in humans):
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`34. Specifically, the structure of non-enveloped viruses, certain gram negative
`bacteria, and spores render BAC substantially ineffective because BAC cannot readily
`permeate or disturb the cell membrane and process.
`35. Non-enveloped viruses. The Products are substantially ineffective at
`“killing” non-enveloped viruses, including (i) norovirus, (ii) poliovirus,
`(iii) polyomavirus, (iv) human papillomavirus, and (v) picornavirus.
`36. There are numerous strains or types of each of these groups of non-
`enveloped viruses, which are responsible for tens of millions of cases of infection in
`the United States each year.
`37. For example, there are approximately 25 different strains of norovirus that
`affect humans. According to the CDC, each year on average in the United States,
`norovirus causes 19 to 21 million cases of vomiting and diarrhea illness, including
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`2,270,000 outpatient clinic visits (mostly in young children), 465,000 emergency room
`visits (mostly in young children), 109,000 hospitalizations, and 900 deaths (mostly in
`adults 65 and older).
`38. According to the CDC, hand washing with soap and water is more
`effective than hand sanitizing at removing certain kinds of germs, including norovirus.
`In fact, the CDC’s norovirus expert acknowledged that norovirus is resistant to many
`common disinfectants. The CDC recommends using bleach to kill norovirus.
`39.
`In addition, there are more than 100 varieties of HPV, some of which
`cause common warts on the hands and fingers. HPV is transmitted primarily through
`skin-to-skin contact, including by contact with someone who is carrying the virus on
`their hands or fingers or by touching something that someone else touched who carried
`HPV on their hands.
`40. BAC is ineffective against HPV. According to a study published by the
`American Society for Microbiology titled “A Broad-Spectrum Microbicide with
`Virucidal Activity against Sexually Transmitted Viruses” BAC does not inactivate
`non-enveloped papillomaviruses, including HPV.
`41. Gram-negative bacteria. Gram-negative bacteria have a double
`membrane, often with a strong outer membrane, that is not readily penetrated. The
`Products are ineffective against certain gram-negative bacteria, including pseudomonas
`aeruginosa, and mycobacteria. In addition, the Products have been found to be
`ineffective or less effective at denaturing the microbes responsible for COVID-19.
`42. Pseudomonas aeruginosa causes infections in the blood, respiratory tract
`infections like pneumonia, and infections in the body following surgery. BAC is
`substantially ineffective against gram-negative bacteria like P. aeruginosa due to the
`structure of the outer membrane of the microbe, which strictly restricts larger
`molecules of BAC.
`43. There are more than 190 species of mycobacteria, which are responsible
`for numerous, serious diseases, including tuberculosis. BAC is substantially
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`ineffective against most mycobacteria due to the architecture of the cell wall and lipid
`content of the bacteria.
`44.
`In addition, the Products are not listed on the American Chemistry
`Council’s Center for Biocide Chemistries list of approved Products for fighting
`COVID-19 and it has been noted that they are less effective at “killing” coronavirus
`than other disinfectants.
`45. According to a scripps.org webpage addressing use of hand sanitizer
`during the COVID-19 pandemic, “[i]f benzalkonium chloride is listed as an active
`ingredient, the sanitizer is probably alcohol-free, or does not include a high enough
`percentage of alcohol to ward off the COVID-19 virus.”
`46. According to a study published to the US National Library of Medicine of
`the National Institutes of Health (“PubMed”) in March 2020 titled “Persistence of
`coronaviruses on inanimate surfaces and their inactivation with biocidal agents,” the
`authors “reviewed the literature on all available information about the persistence of
`human and veterinary coronaviruses on inanimate surfaces as well as inactivation
`strategies with biocidal agents used for chemical disinfection, e.g. in healthcare
`facilities. The analysis of 22 studies reveals that human coronaviruses such as Severe
`Acute Respiratory Syndrome (SARS) coronavirus, Middle East Respiratory Syndrome
`(MERS) coronavirus or endemic human coronaviruses (HCoV) can persist on
`inanimate surfaces like metal, glass or plastic for up to 9 days, but can be efficiently
`inactivated by surface disinfection procedures with 62-71% ethanol, 0.5% hydrogen
`peroxide or 0.1% sodium hypochlorite within 1 minute. Other biocidal agents such as
`0.05-0.2% benzalkonium chloride or 0.02% chlorhexidine digluconate are less
`effective.” (emphasis added).
`47. Spores. The Products are also ineffective against certain spores that cause
`disease, such as C. difficile and cryptosporidium
`48. C. difficile is a major spore forming bacteria, which causes between 15-
`55% of all diarrheas. C. Difficile have complex layers of spore coats, which render
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`BAC ineffective against this group of bacteria.
`49. According to the CDC, within a month of diagnosis, 1 in 11 people over
`the age of 65 died of a healthcare associated C. difficile infection.
`50.
`In addition, according to a publication from the National Center for
`Biotechnology Information from the U.S. National Library of Medicine, C. difficile is
`associated with high morbidity and the cost of C. difficile infections is estimated at
`$5.4 billion in the United States.
`51. Cryptosporidium is a genus of protozoan pathogens, which include the
`giardia parasite and the parasite that causes toxoplasmosis. There are at least 16
`established cryptosporidium, at least eight of which have been reported in humans.
`52. The pathogen causing toxoplasmosis is commonly found in cat litter and
`undercooked food and is one of the most common parasitic infections in the world,
`which may be responsible for approximately 40 million infections in the United States.
`53. Cryptosporidium are responsible for causing gastrointestinal symptoms,
`including vomiting and diarrhea. Cryptosporidiosis is also the most common cause of
`recreational water illness outbreaks in the United States. According to the CDC,
`outbreaks of cryptosporidium increased an average of 13% each year from 2009 to
`2017.
`54. Cryptosporidium is protected by an outer shell that makes it very difficult
`to kill. Cryptosporidium can, for example, survive for many days in chlorinated water
`in pools and on surfaces disinfected with chlorine bleach.
`55. Accordingly, the microbes against which the Products are ineffective,
`evaluated alone or collectively, account for more than .01% of “germs” and render
`Defendants’ Efficacy Representations false and misleading.
`56. Furthermore, several studies have noted that BAC may actually increase
`the incidence of “germs”, including because BAC may cause antibacterial resistance in
`certain microbes.
`57. For example, a 2020 publication titled “Effect of sub-lethal chemical
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`disinfection on the biofilm forming ability, resistance to antibiotics and expression of
`virulence genes of Salmonella Enteritidis biofilm-surviving cells” the authors
`examined “in food environments” bacteria that “can survive and present increased
`virulence/resistance.” The authors concluded that: “After BAC (Benzalkonium
`Chloride) and HP (hydrogen peroxide) exposure, biofilm-derived cells presented a
`down-regulation of rpoS. Exposure to BAC also revealed an up-regulation of invA,
`avrA and csgD on Salmonella Enteritidis NCTC 13349. The results obtained suggest
`that biofilm-derived cells that survive disinfection may represent an increased health
`risk.”
`
`58. Although this action is brought pursuant to consumer protection and
`common law based on Defendants’ false and misleading label representations, and not
`based on any FDA regulation, by way of background it should be noted that in 2019
`the FDA issued a Final Rule wherein it deferred any regulatory action for three
`consumer antiseptic rub ingredients, including BAC.
`59. The FDA deferred making a monograph or nonmonograph finding for
`these ingredients and stated that the status would be addressed “after completion and
`analysis of studies to address the safety and effectiveness data gaps of these ingredients
`or at another time, if these studies are not completed.”2 Furthermore, the FDA stated
`that it was deferring a ruling on whether the ingredients, including BAC, are generally
`recognized as safe and effective (“GRAS/GRAE”).
`60. Accordingly, the Products do not have monograph status, meaning that
`they are not generally accepted as over-the-counter-drugs and thus are not approved for
`marketing or labeling under any monograph. Without approval as over-the-counter-
`drugs and monograph status, there is no generally accepted FDA language for labeling
`and marketing the Products.
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`2 A monograph is described by the FDA as “a kind of ‘recipe book’ covering
`acceptable ingredients, doses, formulations, and labeling in over-the-counter drugs.
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`B. Defendants Falsely Label and Advertise the Products as
`“Hypoallergenic” and “Gentle”
`61. Defendants make numerous false and misleading representations about the
`hypoallergenic and gentle formulation of the Products.
`62. On the primary display panel, Defendants state that the Products are
`“Hypoallergenic.” In addition, on the back label, Defendants prominently represent next
`to an image of a doctor, that the Products are “Pediatrician Tested”. Defendants also
`state that the Products are “specially formulated to be tough on dirt and germs, yet gentle
`on skin” (collectively, the “Skin Safety Representations” and together with the “Efficacy
`Representations” the “Representations”).
`63. Contrary to the Skin Safety Representations, numerous ingredients in the
`Products are known allergens or skin irritants.
`64. BAC, the active ingredient in the Products, is an established skin irritant.
`65. According to a study, which reviewed Mayo Clinic experience from 2000
`to 2012 with patch testing, BAC is increasingly associated with allergic contact
`dermatitis. The study states that from 2001 through 2005 and 2006 through 2010, BAC
`was among the top 10 most frequent allergens in the standard series.
`66. A Swiss study found that 5.5% of people with contact dermatitis were
`sensitized to BAC.
`67. A study published by the Int J Med Sci., titled “Effect of the Hand
`Antiseptic Agents Benzalkonium Chloride, Povidone-Iodine, Ethanol,
`and
`Chlorhexidine Gluconate on Atopic Dermatitis in NC/Nga Mice,” evaluated the effects
`of BAC on individuals with atopic dermatitis. The study found that, in a clinical setting
`involving mice, BAC “induced a significant increase in the severity of the clinical score,
`infiltration of inflammatory cells, local expression of inflammatory cytokines in
`subcutaneous tissue, and total serum immunoglobulin.”
`68. BAC has also been found to cause adverse health effects, including the
`triggering of asthma symptoms in people both with and without a history of asthma, and
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`the triggering of respiratory sensitization and asthma that is attributable to
`hyperresponsiveness and/or inflammation.
`69. Phenoxyethanol is a known toxin, allergen and a suspected carcinogen.
`Numerous studies demonstrate that phenoxyethanol can cause DNA mutation in
`animals.
`70. The FDA has stated that phenoxyethanol is “a preservative that is primarily
`used in cosmetics and medications” and that it can “depress the central nervous system
`and may cause vomiting and diarrhea” in infants.
`71.
`In addition, the French Agence Nationale de Securite du Medicament et des
`Produits de Sante has cautioned consumers not to use wipes containing phenoxyethanol
`on children under the age of three because of health concerns related to “reproductive
`and developmental toxicity.”
`72. The Material Safety Data Sheet (MSDS) on phenoxyethanol states that it
`can cause skin and lung irritation, and that it may also be toxic to the kidneys, nervous
`system, and liver, and repeated, long-term exposure can cause organ damage. The
`MSDS further states that the toxic effects can occur through inhalation, skin exposure,
`and ingestion.
`73. According to Hazard Notifications from the Globally Harmonized System
`of Classification and Labeling of Chemicals (GHS), phenoxyethanol presents a category
`2 danger for skin irritation, a category 4 danger for acute oral toxicity if swallowed, and
`a category 2A danger for causing serious eye damage or eye irritation.
`74. Caprylyl glycol is a synthetic skin conditioning agent, preservative and
`known irritant.
`75. Dihydroxypropyl peg-5 linoleammonium chloride. According to the
`PubChem Compound Summary, the GHS information provided by 49 companies
`demonstrated that the compound does not meet GHS hazard criteria by 36 of the 49
`companies. The notifications provided included the warning that the compound causes
`skin irritation and serious eye irritation.
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`76. Potassium Sorbate is a preservative that can cause allergic reactions and
`skin irritation in skin care products, particularly where it is applied repeatedly or in high
`concentration.
`77. Disodium EDTA, a chemical preservative, has been found to disrupt the
`surface of skin cells so that other chemicals may penetrate skin more easily.
`78. Fragrance. According to the FDA, fragrance is a common allergen found
`in cosmetic products and can cause allergic contact dermatitis.
`79. Accordingly, Defendants’ Skin Safety Representations are false and
`misleading.
`C.
`Plaintiff and Consumers Purchased the Products to Their Detriment
`
`80. Plaintiff and consumers purchased the Products to their detriment.
`81. Plaintiff purchased the Products multiple times during the class period in
`various scents, sizes and configurations, including but not limited to Wet Ones travel
`packs, singles and canisters, and including in or about March of 2020. Plaintiff
`purchased the Products for personal and family use, including for use on her son. The
`price paid by Plaintiff was representative of the price paid by similarly situated
`consumers who purchased the Products. In addition, the Representations on the Products
`purchased by Plaintiff were the same as the Representations purchased by members of
`the Class.
`82.
`In purchasing the Products, Plaintiff relied on Defendants’ Representations,
`including that the Products “Kill[] 99.99% of Germs” and that they are hypoallergenic
`and/or gentle on skin.
`83.
` Defendants knew or should have known that reasonable consumers would
`consider
`the Representations material
`in deciding
`to purchase
`the Products.
`Accordingly, Defendants’ Representations are false, misleading and reasonably likely to
`mislead reasonable consumers.
`84. At the time Plaintiff purchased the Products, Plaintiff did not know, and
`had no reason to know, that the Representations were misleading, deceptive and
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`unlawful. Plaintiff would not have purchased the Products, or would have purchased
`them on different terms, if she had known the truth.
`85.
`It is possible, however, that Plaintiff would purchase the Products in the
`future if the Representations were truthful.
`CLASS DEFINITION AND CLASS ALLEGATIONS
`86. Plaintiff brings this action as a class action pursuant to Federal Rules of
`Civil Procedure 23(b)(2) and 23(b)(3) on behalf of herself, on behalf of all others
`similarly situated, and as a member of the Classes defined as follows (collectively, the
`“Class”):
`
`All citizens of the United States who, within the relevant statute
`of
`limitations periods, purchased Defendants’ Products
`(“Nationwide Class”);
`All citizens of California who, within four years prior to the filing
`of the initial Complaint, purchased Defendants’ Products
`(“California Subclass”).
`
`87. Excluded from the Class are: (i) Defendants, their assigns, successors, and
`legal representatives; (ii) any entities in which Defendants have a controlling interest;
`(iii) federal, state, and/or local governments, including, but not limited to, their
`departments, agencies, divis