Case 9:21-cv-81298-XXXX Document 1 Entered on FLSD Docket 07/27/2021 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`WEST PALM BEACH DIVISION
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`Christian Piescik, on Behalf of Himself )
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`Case No.
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`and All Others Similarly Situated,
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`Plaintiff,
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`vs.
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`CLASS ACTION COMPLAINT
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`CVS HEALTH, a Rhode Island
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`corporation,
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`Defendant.
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`DEMAND FOR JURY TRIAL
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`Plaintiff, Christian Piescik (“Plaintiff”), by and through his attorneys, brings this action on
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`behalf of himself and all others similarly situated against Defendant CVS Health (“Defendant” or
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`“CVS”). Plaintiff hereby alleges, on information and belief, except for information based on
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`personal knowledge, which allegations are likely to have evidentiary support after further
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`investigation and discovery, as follows:
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`NATURE OF CASE
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`1.
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`This is a consumer Class Action against CVS Health for its false advertising, unfair and
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`deceptive marketing practices, and materially misleading claims employed and disseminated in
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`connection with the sale of its hand sanitizer (the “Product”).
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`2.
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`On the front of each Product, Defendant represents that the Product would kill virtually all
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`germs. The CVS Original Scent Moisturizing Hand Sanitizer and related CVS brands advertise on
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`their bottles, “Kills 99.99% of Germs.” Defendant’s germ fighting representation is false,
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`misleading, and reasonably likely to deceive the public.
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`3.
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`CVS’s marketing strategy has been successful, and the hand sanitizer is a popular product.
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`However, that success is built around messaging that is materially misleading and deceptive to
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`consumers, lacks a factual basis, and recklessly omits material information.
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`4.
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`As a result of Defendant’s marketing claims and messaging, Plaintiff and other consumers
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`reasonably and justifiably relied upon and attributed credence and value to the asserted benefits of
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`the Product.
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`5.
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`These statements, in that they are made with a degree of certainty to the hundredth digit,
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`necessarily imply that a scientific study proves that the Product in fact kills 99.99% of germs.
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`Accordingly, they are each false statements, as no scientific study supports them.
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`6.
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` In fact, it is scientifically proven that alcohol-based hand sanitizer does not kill many types
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`of germs. It does not kill many non-enveloped viruses, such as norovirus. "Norovirus is the leading
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`cause of foodborne illness in the United States. It causes 58% of foodborne illnesses acquired in
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`the United States." https://www.cdc.gov/norovirus/trendsoutbreaks/burden-US.html. It is hard to
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`believe that Defendant’s hand sanitizer kills 99.99% of all germs, while excluding the family of
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`viruses that causes more than half of all food borne illnesses in the country. It also does not kill
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`bacterial spores, protozoan cysts, some parasites like Giardia, and the diarrhea-causing bacterium
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`Clostridium difficile. Moreover, studies have shown that some bacteria are becoming alcohol
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`resistant. For these reasons, no scientific study proves with any degree of certainty the overall
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`percentage of germs which alcohol-based hand sanitizer kills.
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`7.
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` CVS knew or should have known its claims were not backed by scientific studies to
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`validate its 99.99% claims. However, CVS continues to make those false statements on the
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`Product labels. The Product labels are therefore materially misleading, in that they plainly state, in
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`a manner giving the impression that it has been scientifically proven, that the Product kills 99.99%
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`of germs, when studies show that it does not kill many types of germs. Thousands of consumers
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`have purchased these Products, particularly during the ongoing COVID-19 pandemic, in the false
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`belief that they have been proven to kill 99.99% of germs. The claims are false and consumers
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`have been deceived.
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`8.
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` As a result of Defendants’ deceptive and misleading practices, Plaintiff and the Class
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`Members were induced to purchase hand sanitizer which does not perform as advertised.
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`Defendant has made millions of dollars in fraudulent sales to individuals who Defendant told were
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`receiving a Product which had been proven, with a high degree of certitude, to kill almost every
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`Case 9:21-cv-81298-XXXX Document 1 Entered on FLSD Docket 07/27/2021 Page 3 of 11
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`germ. Defendant’s customers did not receive the benefit of their bargain. The Products do not kill
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`many types of germs.
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`JURISDICTION AND VENUE
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`9.
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` This Court has jurisdiction over this matter under the Class Action Fairness Act
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`(“CAFA”), 28 U.S.C. § 1332(d), as the amount in controversy exceeds $5 million, exclusive of
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`interests and costs; it is a class action of over 100 members; and the Plaintiff is a citizen of a state
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`different from at least one Defendant.
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`10.
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`This Court has personal jurisdiction over Defendant. Defendant has sufficient minimum
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`contacts with the state of Florida and purposefully availed itself, and continues to avail itself, of
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`the jurisdiction of Florida through the privilege of conducting its business ventures in the state of
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`Florida, thus rendering the exercise of jurisdiction by the Court permissible under traditional
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`notions of fair play and substantial justice.
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`11.
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`Venue is proper in this district under 28 U.S.C. § 1391(a) because a substantial part of the
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`events or omissions giving rise to Plaintiff’s claims occurred in this district, as Defendant does
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`business throughout this district, and Plaintiff made his purchase of the CVS hand sanitizer in this
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`district and his purchased Product was delivered to, and used, in this district.
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`PARTIES
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`12.
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`Plaintiff Christian Piescik (“Plaintiff”) is a natural person and a citizen of Palm Beach
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`County, Florida, residing in West Palm Beach. Plaintiff purchased the hand sanitizer Product from
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`a local West Palm Beach CVS store in March of 2020. Prior to his purchase, Plaintiff saw and
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`reviewed Defendant’s advertising claims on the packaging and labeling itself, and he made his
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`purchase of the hand sanitizer in reliance thereon. Plaintiff specifically relied upon representations
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`made by Defendant that the hand sanitizer would kill germs as advertised. Plaintiff did not receive
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`the promised benefits or receive the full value of his purchase.
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`13.
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`Defendant CVS Health is a Rhode Island corporation with its principal business offices
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`located at 1 CVS Drive, Woonsocket, Rhode Island. CVS is licensed to conduct business in
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`Florida. Defendant is an American multinational consumer goods corporation. The company
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`reported annual revenue of more than $268 billion in 2020.
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`14.
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`Plaintiff reserves the right to amend this Complaint to add different or additional
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`defendants, including without limitation any officer, director, employee, supplier, or distributor of
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`Case 9:21-cv-81298-XXXX Document 1 Entered on FLSD Docket 07/27/2021 Page 4 of 11
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`Defendant who has knowingly and willfully aided, abetted, or conspired in the false and deceptive
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`conduct alleged herein.
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`FACTUAL ALLEGATIONS
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`15.
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`Plaintiff is an individual who purchased CVS brand alcohol-based hand sanitizer from one
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`of Defendants’ stores. When Plaintiff purchased the hand sanitizer, the label on the bottle of hand
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`sanitizer stated prominently that the Product would “kill 99.99% of germs.”
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`16.
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`On the Product label, there is an asterisk next to the above statements, which leads to the
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`following statement written in a much smaller font, or a statement similar to the following
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`statement, on the back label: “Effective at eliminating 99.99% of many common harmful germs
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`and bacteria in as little as 15 seconds.” Plaintiff did not read this disclaimer.
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`17.
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`Further, a reasonable consumer who read this language would not understand it to take
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`back the promise on the front of the bottle, to kill 99.99% of all germs.
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`18.
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`Plaintiff read these statements on the Product labels and relied on them when purchasing
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`the Products. Plaintiff believed that this statement meant that a scientific study proved that the
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`Product would kill 99.99% of all known germs. That is because the statement included an exact
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`figure for the percentage of germs that would be killed—99.99%. The statement did not read, “kills
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`most germs,” it read “kills 99.99% of germs,” which indicates that some evidence supports the
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`figure 99.99%.
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`19.
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`The statement created a false impression. No scientific study indicates that alcohol-based
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`hand sanitizers kill 99.99% of germs. In fact, many scientific studies show that hand sanitizers do
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`not kill many prominent and harmful germs, and that they are less effective than washing one’s
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`hands.
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`20.
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`Recent studies show that some types of bacteria are becoming alcohol resistant due to the
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`use of hand sanitizers. For instance, the bacterium Enterococcus faecium has been found to have
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`become ten times more alcohol tolerant in the years after 2010 than it was in the years before 2010.
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`https://www.forbes.com/sites/brucelee/2018/08/04/how-thisbacteria-may-ecoming-more-
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`resistant-to-hand sanitizer/#138e8d1722dd.
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`21.
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`Further, it is known that alcohol-based hand sanitizers do not kill many nonenveloped
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`viruses, such as norovirus. See https://www.medicalnewstoday.com/articles/232708#1. As noted
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`above, norovirus accounts for over half of the food-borne illnesses in the country.
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`22.
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`The science now shows that alcohol-based hand sanitizers do not kill bacterial spores,
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`which
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`are
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`a
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`leading
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`cause
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`of
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`illness.
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`(https://www.researchgate.net/publication/43353621_Effectiveness_of_Alcohol-
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`Based_Hand_Rubs_for_Removal_of_Clostridium_difficile_Spores_from_Hands)
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`23.
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`These studies further show that alcohol-based hand sanitizers do not kill protozoan cysts,
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`which
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`grow
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`to
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`become
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`invasive
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`parasites,
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`such
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`as
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`Giardia.
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`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4510183/
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`24.
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`The science shows that countless types of germs are not killed by alcohol-based hand
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`sanitizers which makes the math finding these sanitizers kill 99.99% of all germs impossible to
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`reconcile. Certainly, no study shows that the sanitizers kill any given number of germs such that
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`an exact percentage of germs killed could be stated. Yet that is exactly what Defendants have done.
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`Defendants made false statements.
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`25.
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`Plaintiff purchased the hand sanitizer in reliance on these representations, believing that it
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`had in fact been scientifically proven that the hand sanitizer killed 99.99% of all germs. Plaintiff
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`received a Product that was not in fact proven to kill 99.99% of germs. Plaintiff did not get the
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`Product that was advertised.
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`CLASS ACTION ALLEGATIONS
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`26.
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`Plaintiff brings this action on behalf of himself, and all similarly situated consumers
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`pursuant to Rules 23(a) and 23(b)(2) and (3) of the Federal Rules of Civil Procedure as a member
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`of the Class defined as follows (collectively, the “Class”). The Class of persons whom Plaintiff
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`seeks to represent is defined as:
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`All persons in Florida who, from the beginning of the applicable limitations period through
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`the date of trial, purchased one or more of CVS brand hand-sanitzers for personal use and
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`not for resale.
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`27.
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`Excluded from the class are the Defendant, any parent, subsidiary or affiliate of the
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`Defendant, any entity in which the Defendant has a controlling interest, and the respective officers,
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`directors, employees, agents, legal representatives, heirs, predecessors, successors, and assigns of
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`such excluded persons or entities.
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`28.
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`Plaintiff reserves the right to amend or otherwise alter the class definition presented to the
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`Court at the appropriate time, or to propose or eliminate sub-classes, in response to facts learned
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`through discovery, legal arguments advanced by Defendants, or otherwise.
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`29.
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`Plaintiff and the members of the Class are so numerous that joinder of all members
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`individually, in one action or otherwise, is impracticable.
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`30.
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`31.
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`There are questions of law and fact common to the Class.
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`Plaintiff’s claims are typical of the claims of the members of the Class. The named Plaintiff
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`is a member of the Class of consumers described herein.
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`32.
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`The named Plaintiff is willing and prepared to serve the Court and the proposed Class in a
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`representative capacity with all the obligations and duties material thereto. Plaintiff will fairly and
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`adequately protect the interests of the Class and has no interests adverse to or which directly and
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`irrevocably conflicts with the interests of other members of the Class.
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`33.
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`The interests of the named Class representative are co-extensive with, and not antagonistic
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`to, those of the absent Class members. The proposed representative will undertake to represent
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`and protect the interests of the absent Class members.
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`34.
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`The named Plaintiff has engaged the services of counsel indicated below. Counsel is
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`experienced in complex class-action litigation, will adequately prosecute this action, and will
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`assert and protect the rights of, and otherwise will represent the named Class representative and
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`absent Class members.
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`35.
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`This action is appropriate as a class action pursuant to Rule 23(b)(2) and (b)(3) of the
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`Federal Rules of Civil Procedure.
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`36.
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` This action involves questions of law and fact common to Plaintiff and all members of the
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`Class. Questions of law and fact common to Plaintiff and the Class include, but are not limited to,
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`the following:
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`a. whether Defendant owed a duty of care to Plaintiff and the Class;
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`b. whether Defendant knew or should have known that the hand sanitizer could be ineffective;
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`c. whether Defendant wrongfully represented and continues to represent that the hand sanitizers
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`are effective;
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`d. whether Defendant’s representations in advertising, warranties, packaging, and/or labeling are
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`false, deceptive, and/or misleading;
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`e. whether the alleged omissions and misrepresentations are likely to deceive a reasonable
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`consumer;
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`f. whether Defendant had knowledge that those alleged omissions or misrepresentations were false,
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`deceptive, and misleading;
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`g. whether Defendant continues to disseminate those alleged omissions and misrepresentations
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`despite knowledge that the representations are false, deceptive, and misleading;
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`h. whether Defendant’s alleged omissions or misrepresentations and descriptions on the labeling
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`of the hand sanitizer Products are likely to mislead, deceive, confuse, or confound consumers
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`acting reasonably;
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`i. whether Defendant engaged in unfair trade practices;
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`j. whether Defendant engaged in false advertising;
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`m. whether Defendant’s conduct was negligent per se;
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`k. whether Plaintiff and the members of the Class are entitled to actual, statutory, and punitive
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`damages; and
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`l. whether Plaintiff and members of the Class are entitled to declaratory and injunctive relief.
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`37.
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`There is no plain, speedy or adequate remedy other than by maintenance of this lawsuit as
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`a class action because individual damages are relatively small, making it economically infeasible
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`for Class members to pursue remedies individually. The prosecution of separate actions by
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`individual members of the Class, even if theoretically possible, would create a risk of inconsistent
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`or varying adjudications with respect to individual Class members against Defendant and would
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`establish incompatible standards of conduct for Defendant.
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`38.
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`Judicial determination of the common legal and factual issues essential to this case would
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`be far more efficient and economical as a class action than in piecemeal individual determinations.
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`39.
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`A class action is superior to other available methods for the fair and efficient adjudication
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`of this controversy for at least the following reasons:
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`•
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`given the complexity of issues involved in this action and the expense of litigating the
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`claims, few, if any, Class members could afford to seek legal redress individually for the wrongs
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`that Defendant committed against them, and absent Class members have no substantial interest in
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`individually controlling the prosecution of individual actions;
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`•
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`when Defendant’s liability has been adjudicated, claims of all Class members can be
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`determined by the Court;
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`•
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`this action will cause an orderly and expeditious administration of the Class claims and
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`foster economies of time, effort and expense, and ensure uniformity of decisions; and
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`•
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`without a class action, many Class members would continue to suffer injury, and
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`Defendant’s violations of law will continue without redress while Defendant continues to reap and
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`retain the substantial proceeds of their wrongful conduct.
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`47.
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`Plaintiff knows of no difficulty that will be encountered in the management of this litigation
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`which would preclude its maintenance as a class action.
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`48.
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`Defendant has acted on grounds applicable to the Class generally; therefore, Plaintiff seeks
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`equitable and injunctive relief on behalf of the entire Class on grounds generally applicable to the
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`entire Class.
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`COUNT I
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`For Violations of Florida’s Deceptive
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`and Unfair Trade Practices Act,
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`Fla. Stat. 501.201 et seq.
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`49.
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`Plaintiff realleges and incorporates by reference each of the allegations contained in the
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`paragraphs above as if fully set forth herein.
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`50.
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`Defendant violated and continues to violate Florida’s Deceptive and Unfair Trade Practices
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`Act by engaging in unfair methods of competition, unconscionable acts and practices, and unfair
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`and deceptive acts and practices in the conduct of their business.
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`51.
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`The material misstatements and omissions alleged herein constitute deceptive and unfair
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`trade practices, in that they were intended to and did deceive Plaintiff and the general public into
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`believing that Defendant’s hand sanitizer Products were effective.
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`52.
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`Plaintiff and Class members relied upon these advertisements in deciding to purchase the
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`Product. Plaintiff’s reliance was reasonable because of Defendant’s reputation as a reliable
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`company.
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`53.
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`Had Plaintiff known that the Products were not as advertised, he would not have purchased
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`them.
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`54.
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`As a result of Defendant’s deceptive and unfair acts, Plaintiff and Class members have
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`been damaged in the amount paid for the hand sanitizer Product.
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`55.
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`Defendant’s conduct offends established public policy, and is immoral, unethical,
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`oppressive, and unscrupulous to consumers.
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`56.
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`57.
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`Plaintiff and Class members are entitled to damages in an amount to be proven at trial.
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`Defendant should also be ordered to cease its deceptive advertising and should be made to
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`engage in a corrective advertising campaign to inform consumers that its hand sanitizer Products
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`are not of the quality advertised.
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`COUNT II
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`For False and Misleading Advertising,
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`Fla. Stat. § 817.41
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`58.
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`Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1-8 and 15-
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`25 of the Complaint as if fully set forth herein.
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`59.
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`On their website, in print advertisements, and in other forms of advertisements, Defendant
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`made numerous misrepresentations of material fact that regarding its hand sanitizer Products
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`quality.
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`60.
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`61.
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`Defendant knew that these statements were false.
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`Defendant intended that consumers rely on its false statements for the purpose of selling
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`its Product.
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`62.
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`Plaintiff and Class members did in fact rely upon these statements. Reliance was
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`reasonable and justified because of Defendant’s reputation as a reliable company.
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`63.
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`As a result of Defendant’s misrepresentations, Plaintiff and Class members suffered
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`damages in the amount paid for Defendant’s hand sanitizer Product.
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`64.
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`Plaintiff and Class members are entitled to damages and injunctive relief as set forth above.
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`COUNT III
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`Unjust Enrichment
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`65.
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`Plaintiffs re-allege and incorporate by reference the allegations of paragraphs 1-8, 15-25
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`of the Complaint as if fully set forth herein.
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`66.
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`Plaintiff and Class members conferred a benefit on Defendant by purchasing the
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`deceptively advertised hand sanitizer Product at an inflated price.
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`67.
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`Defendant received the moneys paid by Plaintiff and Class members and thus knew of the
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`benefit conferred upon them.
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`68.
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`Defendant accepted and retained the benefit in the amount of the profits they earned from
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`Defendant’s hand sanitizer sales paid by Plaintiff and Class members.
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`69.
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`Defendant has profited from their unlawful, unfair, misleading, and deceptive practices and
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`advertising at the expense of Plaintiff and Class members, under circumstances in which it would
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`be unjust for Defendant to be permitted to retain the benefit.
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`118. Plaintiff does not have an adequate remedy at law against Defendant.
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`119. Plaintiff and Class members are entitled to restitution of the amount paid for the Product
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`and disgorgement of the profits Defendant derived from their hand sanitizer sales.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays this Court:
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`A.
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`Certify this action as a class action;
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`B.
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`Award compensatory, statutory, and punitive damages as to all Counts where such relief is
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`permitted by law;
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`C.
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`Enjoin Defendant’s conduct and order Defendant to engage in a corrective advertising and
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`labeling/disclosure campaign;
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`D.
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`Award equitable monetary relief, including restitution;
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`E.
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`F.
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`Award pre-judgment and post-judgment interest at the legal rate;
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`Award Plaintiff and Class members the costs of this action, including reasonable attorneys’
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`fees and expenses; and
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`G.
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`Award such other and further legal and equitable relief as this Court may deem just and
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`proper.
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`JURY DEMAND
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`Plaintiff demands a trial by jury on all issues so triable.
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`DATED: July 27, 2021
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`s/William C. Wright
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`WILLIAM WRIGHT
`THE WRIGHT LAW OFFICE, P.A.
`FL BAR NO. 138861
`515 N. Flagler Drive
`Suite P-300
`West Palm Beach, FL 33410
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`Case 9:21-cv-81298-XXXX Document 1 Entered on FLSD Docket 07/27/2021 Page 11 of 11
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`Telephone: (561) 514-0904
`Facsimile: (561) 514-0905
`willwright@wrightlawoffice.com
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`DANIEL FAHERTY
`TELFER, FAHERTY, &
`ANDERSON, PL
`FL BAR NO. 379697
`815 S. Washington Avenue
`Suite 201
`Titusville, FL 32780
`Telephone: (321) 269-6833
`Facsimile: (321) 383-9970
`CGuntner@ctrfa.com
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