`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`Jim Novotney, individually and on behalf of
`all others similarly situated,
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`1:22-cv-03439
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`Walgreen Co.,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1. Walgreen Co. (“Defendant”) manufactures, markets, labels and sells 3% hydrogen
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`peroxide solution to be used “For treatment of minor cuts and abrasions,” under the Walgreens
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`brand (“Product”).
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`I. HISTORY OF HYDROGEN PEROXIDE
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`2.
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`In the context of first aid, an antiseptic is a chemical with antimicrobial activity,
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`applied to skin to help prevent infection in minor cuts, scrapes, and burns.
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`3.
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`Common antiseptics include rubbing alcohol (71%) and hydrogen peroxide (3%).
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`4. Hydrogen peroxide was discovered in 1818 by French chemist Louis Jacques
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`Thénard.
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`5.
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`It is formed when atmospheric oxygen reacts with water to form H2O2.
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`6. Hydrogen peroxide was first used commercially to bleach hats and has multiple safe
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`home cleaning applications.
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`7.
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`Its earliest medical uses was to treat conditions including typhoid, diphtheria, bowel
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`infections, eczema, epilepsy, influenzal pneumoniae, bladder infections, infected wounds and even
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`as an intravenous source of oxygen during cardiopulmonary resuscitation.
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`8. However, Alexander Fleming discovered that wounds treated with antiseptics like
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`hydrogen peroxide had higher death rates and slower healing than wounds not treated at all.
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`II. FOLKLORE SUPPORTS USE OF HYDROGEN PEROXIDE
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`9. A prominent doctor noted that a “dangerous medical myth[s] is the widespread belief
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`by patients that copious amounts of hydrogen peroxide should be applied to cuts and scrapes.1
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`10. Often, such patients will say, “My mom (or grandma) told me to clean it [a cut] out
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`good with hydrogen peroxide.”
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`11. When hydrogen peroxide is applied to a cut, the catalase instantly converts hydrogen
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`peroxide into water and oxygen.
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`12. This generates a fizzing reaction, that helps remove debris, which is why it is
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`described as an oral debriding agent, used in dentistry.
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`13. Though this fizzing may look like germ-killing, the only thing dying is the body's
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`fibroblasts, the skin cells responsible for healing cuts.
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`III. MISLEADING TO PROMOTE HYDROGEN PEROXIDE TO TREAT CUTS
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`14. The Product is identified as a “First Aid Antiseptic” and “Oral Debriding Agent.”
`
`
`1 Michael Daignault, M.D., “Everyone puts hydrogen peroxide on their wounds. They really
`shouldn't.” USA TODAY, 2 Feb. 2022; Medical Myths Medical Myth Buster: Hydrogen Peroxide
`and Wounds https://www.atlanticfeet.com/blog/medical-myth-buster-hydrogen-peroxide-and-
`wounds Roger on Tuesday, 09 June 2015; 9 First Aid Mistakes You're Probably Making By Aviva
`Patz Jul 2, 2015 https://www.prevention.com/health/a20469350/first-aid-mistakes/
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`2
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`15. Beneath this, the bulleted directions state, “Use as a gargle or rinse” and “For
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`treatment of minor cuts & abrasions.”
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`16. The back panel Drug Facts identifies the “Active ingredient [as] Hydrogen peroxide
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`3%,” described as a “First aid antiseptic/oral debriding agent” that is “Use[d] [as] first aid to help
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`prevent the risk of infection in minor cuts, scrapes and burns.”
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`3
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`17. Beneath the Drug Facts, the label states “Walgreens Pharmacist Recommended.”
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`18. The statement, “For treatment of minor cuts & abrasions,” is false and misleading
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`because no credible scientific and medical evidence supports this usage of hydrogen peroxide.
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`19. While hydrogen peroxide has antiseptic properties, the Mayo Clinic and numerous
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`medical studies advise that it does not help treat minor cuts and abrasions and causes more harm
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`than good.2
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`2 Reid, C. J., M. Alcock, and D. Penn. "Hydrogen peroxide–a party trick from the past?."
`Anaesthesia and intensive care 39.6 (2011): 1004-1008.
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`4
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`20. Dictionaries define “treat” as attempting to heal, improve or cure a condition.
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`21.
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`In response to a cut or abrasion, platelets release fibrin to form a clot and seal the
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`wound.
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`22. White blood cells called macrophages rush to the area to destroy bacteria that gets
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`past the clot and oversee the repair process.
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`23. Macrophages also secrete growth factors which help repair the wound.
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`24. Blood vessels then dilate to allow fresh nutrients and oxygen to flow to the area and
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`facilitate healing.
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`25. The representation “For treatment of minor cuts & abrasions,” tells the consumer
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`hydrogen peroxide will assist in the healing process and shorten healing time.
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`26. However, hydrogen peroxide does not treat minor cuts or abrasions.
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`27. Numerous studies found hydrogen peroxide ineffective at reducing bacterial counts
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`and rates of wound infection.3
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`28. Though hydrogen peroxide may kill some potentially harmful bacteria, it destroys a
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`greater amount of positive bacteria and healthy cells that promote healing.4
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`29. Other studies confirm hydrogen peroxide causes increased risk of infection,
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`corrosive tissue damage and irreversibly worsens scarring.
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`30. The application of hydrogen peroxide can cause severe toxicity, including
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`inflammation and blistering.
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`31. These fact have been known to mainstream science since at least Fleming’s work.
`
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`3 Carrie Madormo, RN, MPH, Should You Use Hydrogen Peroxide on Your Skin? Feb. 02, 2022,
`Medically reviewed by Leah Ansell, MD.
`4 Akuji, M. A., and D. J. Chambers. “Hydrogen peroxide: more harm than good?,” BJA: British
`Journal of Anaesthesia 118.6 (2017): 958-959.
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`5
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`32. Hydrogen peroxide can also cause rapid oxygen release resulting in systemic gas
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`embolus.
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`33.
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`In adults, as little as 20 ml of 1.5% hydrogen peroxide has been associated with
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`haemodynamic instability, and even smaller volumes can cause cardiac arrest in children.
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`34.
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`It was long thought that-the activity and growth of obligate anaerobes were inhibited
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`or killed' by hydrogen peroxide because they lack the catalase possessed by some aerobes, e.g.,
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`Staphylococcus aureus.
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`35. The cell enzyme catalase adequately protects cells from damage by regulating
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`steady-state levels of metabolically produced hydrogen peroxide.
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`36. This defense overwhelms concentrations of hydrogen peroxide used as a topical
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`antiseptic.
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`37. Reports from between 1940 and 1950 on the bacterial activity of hydrogen peroxide
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`in vitro failed to consider the conditions which exist in vivo and include rapid breakdown in the
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`presence of tissue, blood, and saliva.
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`38. Recent findings suggest that a highly reactive and very toxic superoxide formed by
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`flavoenzymes inhibits anaerobes because they do not produce the superoxide dimutase produced
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`by aerobes.
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`39.
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`If a cut is serious, antiseptics like hydrogen peroxide should not be applied.
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`40.
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`If a cut is minor enough to be treated at home, hydrogen peroxide will be
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`unnecessary, with possibility of harm, because the body’s normal functioning will repair the cut.
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`41. Hydrogen peroxide’s only relevant function is to remove debris and microorganisms
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`from the affected area that might slow the healing process, so it allows the body’s healing process
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`to follow its usual course of repair at a normal rate.
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`6
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`42. The statement that the Product is “Walgreens Pharmacist Recommended” is contrary
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`to medical and scientific evidence and causes consumer harm through promoting purchase of the
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`Product.
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`IV. CONCLUSION
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`43. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`44. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`45. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`46. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`47. Had Plaintiff known the truth, he would not have bought the Product or would have
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`paid less for it.
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`48. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $3.99 for 32 OZ, excluding tax and sales,
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`higher than similar products, represented in a non-misleading way, and higher than it would be
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`sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`49.
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`Jurisdiction is based on the Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C.
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`§ 1332(d)(2).
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`50. The aggregate amount in controversy exceeds $5 million, including any statutory and
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`7
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`punitive damages, exclusive of interest and costs.
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`51. Plaintiff Jim Novotney is a citizen of Illinois.
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`52. Defendant Walgreen Co. is a Illinois corporation with a principal place of business
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`in Deerfield, Lake County, Illinois.
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`53. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
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`54. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold with the representations described here for several years, in thousands of
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`locations across the States covered by Plaintiff’s proposed classes.
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`55. The Product is available to consumers from Defendant’s retail stores and its website.
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`56. Venue is in the Eastern Division in this District because a substantial part of the
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`events or omissions giving rise to these claims occurred in Lake County, including Plaintiff’s
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`purchase, consumption, transactions and/or use of the Product and awareness and/or experiences
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`of and with the issues described here.
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`Parties
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`57. Plaintiff Jim Novotney is a citizen of Tinley Park, Lake County, Illinois.
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`58. Defendant Walgreen Co. is a Illinois corporation with a principal place of business
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`in Deerfield, Illinois, Lake County.
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`59. Walgreens is America's largest chain of pharmacies, with thousands of stores and
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`over $72 billion in sales per year.
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`60. Pharmacist Charles R. Walgreen Sr. in 1901 founded Walgreens, manufacturing his
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`own line of drug products to ensure high quality and low prices.
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`61. The Walgreens stores were successful and expanded throughout the Midwest.
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`62. By 1929, there were 500 stores from New York to Florida.
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`63. During the Great Depression, Walgreens made extra efforts to help the many people
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`effected by the economic downturn.
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`64. During this tough economic time, Mr. Walgreen vowed his business would never put
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`profits to investors above the health and well-being of those in his community.
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`65. Today, Walgreens sells more than the drug products made by Mr. Walgreen, and
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`offers groceries, household goods, cosmetics, and even small appliances.
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`66. Consumers consistently rank Walgreens as giving them the most value for their
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`money, in addition to relying on the advice of their trained staff and pharmacists.
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`67. According to surveys, the Walgreens brand enjoys a high level of public trust, more
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`than other national pharmacies and even companies in other industries.
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`68. While Walgreens sells leading national brands, it also sells a large number of
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`products under its private label brands.
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`69. Defendant spends millions of dollars each year on consumer research to identify
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`attributes of products consumers want and will pay more for.
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`70. Private label products are made by third-party manufacturers and sold under the
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`name of the retailer, or its sub-brands.
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`71. Previously referred to as “generic” or “store brand,” private label products have
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`increased in quality, and often are superior to their national brand counterparts.
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`72. Walgreens products have an industry-wide reputation for quality and often exceed
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`the national brands, at significantly less cost.
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`73. Defendant gets national brands to produce its private label items due its loyal
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`customer base and tough negotiating.
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`74. Private label products generate higher profits for retailers because national brands
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`spend significantly more on marketing, contributing to their higher prices.
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`75. A survey by The Nielsen Co. “found nearly three out of four American consumers
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`believe store brands are good alternatives to national brands, and more than 60 percent consider
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`them to be just as good.”
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`76. Private label products under the Walgreens brand benefit by their association with
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`consumers’ appreciation for the Walgreens brand as a whole.
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`77. Plaintiff purchased the Product at locations including Walgreens, 17658 Oak Park
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`Ave Tinley Park IL 60477-3907, between February 23, 2022 and March 23, 2022, among other
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`times.
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`78. Plaintiff believed and expected the Product could treat minor cuts and abrasions
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`because that is what the representations and omissions said and implied, on the front label and the
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`absence of any reference or statement elsewhere on the Product.
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`79. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
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`packaging, hang tags, and/or images on the Product, on the labeling, statements, omissions, claims,
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`statements, and instructions, made by Defendant or at its directions, in digital, print and/or social
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`media, which accompanied the Product and separately, through in-store, digital, audio, and print
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`marketing.
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`80. Plaintiff bought the Product at or exceeding the above-referenced price.
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`81. Plaintiff would not have purchased the Product if he knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`82. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`83. The Product was worth less than what Plaintiff paid and he would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`84. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`85. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar first aid antiseptic products, because he is unsure whether those representations
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`are truthful.
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`Class Allegations
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`86. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`Illinois Class: All persons in the State of Illinois who
`purchased
`the Product during
`the statutes of
`limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Montana, Louisiana, South Carolina,
`Wyoming,
`Idaho, Kentucky, Kansas,
`Iowa,
`Mississippi, and Utah who purchased the Product
`during the statutes of limitations for each cause of
`action alleged.
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`87. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`88. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`89. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`90. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`91.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`92. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`93. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
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`(Consumer Protection Statute)
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`94. Plaintiff incorporates by reference all preceding paragraphs.
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`95. Plaintiff believed the Product could treat minor cuts and abrasions.
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`96. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`97. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`98. Plaintiff relied on the representations and omissions to believe the Product could treat
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`minor cuts and abrasions.
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`99.
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` Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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` Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`100. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`12
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`101. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`102. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct.
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`103. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`104. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
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`105. The Product was manufactured, identified, marketed and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff that it could treat minor cuts and abrasions.
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`106. Defendant directly marketed the Product to Plaintiff through its advertisements and
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`marketing, through various forms of media, on the packaging, in print circulars, direct mail,
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`product descriptions distributed to resellers, and targeted digital advertising.
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`107. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`108. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant that it could treat minor cuts
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`and abrasions.
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`109. Defendant’s representations affirmed and promised that the Product could treat
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`minor cuts and abrasions.
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`110. Defendant described the Product so Plaintiff believed it could treat minor cuts and
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`abrasions, which became part of the basis of the bargain that it would conform to its affirmations
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`and promises.
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`111. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`112. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted company, known for its transparent labeling, and its commitment to putting customers
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`first.
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`113. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`114. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`115. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`116. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`117. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`118. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container or label, because it was marketed
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`as if it could treat minor cuts and abrasions.
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`119. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because he expected it could
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`treat minor cuts and abrasions, and he relied on Defendant’s skill and judgment to select or furnish
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`such a suitable product.
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`120. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Negligent Misrepresentation
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`121. Defendant had a duty to truthfully represent the Product, which it breached.
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`122. This duty was non-delegable, based on Defendant’s position, holding itself out as
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`having special knowledge and experience in this area, a trusted company, known for its transparent
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`labeling, and its commitment to putting customers first.
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`123. Defendant’s representations and omissions regarding the Product went beyond the
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`specific representations on the packaging, as they incorporated the extra-labeling promises and
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`commitments to quality, transparency and putting customers first, that it has been known for.
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`124. These promises were outside of the standard representations that other companies
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`may make in a standard arms-length, retail context.
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`125. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in Defendant.
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`126. Plaintiff reasonably and justifiably relied on these negligent misrepresentations and
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`omissions, which served to induce and did induce, their purchase of the Product.
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`127. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Fraud
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`128. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it could treat minor cuts and abrasions.
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`129. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity and deception, through statements and omissions.
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`130. Defendant knew of the issues described here yet did not address them.
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`131. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`132. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying Plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for Plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: June 30, 2022
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`Respectfully submitted,
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`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
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`17
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