Case 1:21-cv-03366 Document 1 Filed 06/15/21 Page 1 of 20 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`
`
`ROBERT GOMEZ and MARK MAURER, on
`behalf of themselves and all others similarly
`situated,
`
`v.
`
`
`
`
`Plaintiffs,
`
`PURE NOOTROPICS, LLC,
`
` Defendant.
`
`
` Case No. 1:21-cv-03366
`
`
` CLASS ACTION COMPLAINT
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` JURY TRIAL DEMANDED
`
`
`Plaintiffs Robert Gomez and Mark Maurer (“Plaintiffs”), by and through their attorneys,
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`make the following allegations pursuant to the investigation of their counsel and based upon
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`information and belief, except as to allegations specifically pertaining to themselves and their
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`counsel, which are based on personal knowledge, against Defendant Pure Nootropics, LLC
`
`(“Defendant”).
`
`NATURE OF THE ACTION
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`This is a class action lawsuit on behalf of purchasers of Defendant’s products:
`
`1.
`
`Pure Nootropics Aniracetam, Pure Nootropics Oxiracetam, and Pure Nootropics
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`Phenylpiracetam, (collectively, the “Products”), in the United States.
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`2.
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`In general, “[o]ver-the-counter dietary supplements … marketed to improve
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`memory and focus have become increasingly popular in the United States (US) with hundreds of
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`millions in sales per year.”1 Supplements that allegedly improve brain functioning are referred
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`to as “nootropics.”
`
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`1 Pieter A. Cohen, et al., Five Unapproved Drugs Found in Cognitive Enhancement Supplements,
`Neurology Clinical Practice (Sept. 23, 2020).
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`1
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`3.
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`Defendant is a manufacturer and supplier of several nootropics under its own
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`label, Pure Nootropics, as referenced in Paragraph 1.
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`4.
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`Defendant represents that the Products have meaningful effects on consumers’
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`memory, learning, focus, energy, and overall mood.
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`5.
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`Unfortunately for consumers, Defendant’s claims and representations about the
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`Products are false and unsupported by scientific evidence. The United States Food & Drug
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`Administration (“FDA”) has explicitly stated2 to Defendant that analogs3 of the Products are not
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`recognized as safe and effective for the uses and claims made by Defendant.
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`6.
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`Further, analogs of Defendant’s Products were classified by the FDA as “drugs,”4
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`which require FDA approval prior to the introduction and sale of said drugs into interstate
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`commerce.
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`7.
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`Defendant has not procured FDA approval prior to selling the Products, despite
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`admonition by the FDA. Accordingly, the Products are “adulterated” and thus illegal to sell.
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`8.
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`In addition, the Federal Trade Commission (“FTC”) also admonished the
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`Defendant, for making claims about its products which “may not be substantiated by competent
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`and reliable scientific evidence.”5
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`9.
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`Plaintiffs are purchasers of Pure Nootropics who assert claims on behalf of
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`themselves and similarly situated purchasers of Pure Nootropics for violations of the consumer
`
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`2 William A Correll, Jr., Mary Engle, Warning Letter, U.S. Food & Drug Admin., U.S. Federal
`Trade Comm’n (Feb. 05, 2019) https://www.fda.gov/inspections-compliance-enforcement-and-
`criminal-investigations/warning-letters/pure-nootropics-llc-565425-02052019.
`3 Pieter A. Cohen, et al., Five Unapproved Drugs Found in Cognitive Enhancement Supplements.
`4 William A Correll, Jr., Mary Engle, Warning Letter, U.S. Food & Drug Admin., U.S. Federal
`Trade Comm’n (Feb. 05, 2019) https://www.fda.gov/inspections-compliance-enforcement-and-
`criminal-investigations/warning-letters/pure-nootropics-llc-565425-02052019.
`5 Id.
`
`2
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`protection laws of New York, unjust enrichment, and breach of implied warranty of
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`merchantability.
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`10.
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`Plaintiffs assert two forms of economic injury on behalf of themselves and the
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`putative Class: (i) that they would not have purchased the Products, or would have paid
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`significantly less for them, had they known that the Products did not have the advertised effects
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`on their memory, learning, focus, energy, and mood; and (ii) that the Products were worthless
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`because they were “adulterated” and thus illegal to sell.
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`PARTIES
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`11.
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`Plaintiff Robert Gomez is a resident of Hempstead, New York who has an intent
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`to remain there, and is therefore a domiciliary of New York. Plaintiff Gomez purchased
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`approximately one bottle of Pure Nootropics Phenylpiracetam. Plaintiff Gomez purchased the
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`bottle in-person at a CVS Pharmacy store. Plaintiff Gomez purchased said bottle due to a desire
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`to improve cognitive function. In purchasing Pure Nootropics Phenylpiracetam, Plaintiff Gomez
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`relied on Defendant’s representations that Pure Nootropics Phenylpiracetam enhances “mental
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`performance & brain support” as well as is a “great boost of mental energy.” Had Plaintiff
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`Gomez known that the Pure Nootropics Phenylpiracetam did not produce the advertised effects,
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`Plaintiff Gomez would not have purchased Pure Nootropics Phenylpiracetam, or would have
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`paid substantially less for the bottle. Further, had Plaintiff Gomez known that Pure Nootropics
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`Phenylpiracetam contained unapproved ingredients and was thus adulterated and illegal to sell,
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`Plaintiff Gomez would not have purchased the bottle of Pure Nootropics Phenylpiracetam at all.
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`After using the Pure Nootropics Phenylpiracetam, Plaintiff Gomez felt no positive effects,
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`specifically no improved “mental performance & brain support” and no “great boost of mental
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`energy.”
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`3
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`12.
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`Plaintiff Mark Maurer is a resident of Rensselaer, New York who has an intent to
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`remain there, and is therefore a domiciliary of New York. Plaintiff Maurer purchased
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`approximately four bottles each of Pure Nootropics Aniracetam, Pure Nootropics Oxiracetam,
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`and Pure Nootropics Phenylpiracetam, over a period of approximately four months. Plaintiff
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`Maurer purchased the bottles each time in-person at a GNC store. Plaintiff Maurer purchased
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`said bottes due to a desire to improve his fitness and recurring health issues. In purchasing the
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`Products, Plaintiff Maurer relied on Defendant’s representations that Pure Nootropics
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`Aniracetam “improves memory formation,” “improve(s) mental energy,” and enhances “mood,”
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`while Pure Nootropics Oxiracetam enhances “memory and learning,” “energy,” and “mood,” and
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`Pure Nootropics Phenylpiracetam enhances “mental performance & brain support” and is a
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`“great boost of mental energy.” Had Plaintiff Maurer known that the Products did not produce
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`their advertised effects, Plaintiff Maurer would not have purchased the Products, or would have
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`paid substantially less for them. Further, had Plaintiff Maurer known that the Products contained
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`unapproved ingredients and were thus adulterated and illegal to sell, Plaintiff Maurer would not
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`have purchased the Products at all.
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`13.
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`Defendant Pure Nootropics, LLC is a New Mexico limited liability company with
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`its principal place of business in Albuquerque, New Mexico. Defendant markets, sells, and
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`distributes the Products throughout the United States, including in the State of New York.
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`JURISDICTION AND VENUE
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`14.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
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`1332(d)(2)(a) because this case is a class action where the aggregate claims of all members of the
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`proposed class are in excess of $5,000,000.00 exclusive of interest and costs, there are over 100
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`4
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`members of the putative class, and Plaintiffs, as well as most members of the proposed class, are
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`citizens of states different than Defendant.
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`15.
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`This Court has personal jurisdiction over Defendant because Defendant conducts
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`substantial business within New York, such that Defendant has significant, continuous, and
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`pervasive contracts with the State of New York.
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`16.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because Defendant
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`transacts significant business within this District and because Plaintiffs purchased and used Pure
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`Nootropics Aniracetam, Pure Nootropics Oxiracetam, and Pure Nootropics Phenylpiracetam in
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`this District.
`
`I.
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`The Products’ Advertising Is Misleading
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`FACTUAL ALLEGATIONS
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`17.
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`Nootropics are drugs or supplements that are claimed to improve cognitive
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`function, including memory, focus, and other aspects of cognition in healthy individuals.
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`18.
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`American consumers are spending more and more on nootropics each year. There
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`is an increase in the number of individuals using nootropics for nonmedicinal purposes, such as
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`improving performance at school or work.
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`19.
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`Defendant advertises, markets, sells, and distributes its own line of nootropics,
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`Pure Nootropics, throughout New York and the United States.
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`20.
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`The Products can be purchased online at Defendant’s website:
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`www.purenootropics.net. The Products can also be purchased at major retailers such as GNC
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`and CVS Pharmacy.
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`21.
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`Pure Nootropics are available in two forms: powder and capsule. The powder is
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`sold in measurements of grams, while the capsules are sold in measurements of milligrams.
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`5
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`22.
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`The Products are sold at the following prices:
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`Pure Nootropics Aniracetam:
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`• $25.45 for 75g powder
`• $65.95 for 200g powder
`• $13.99 for 30 capsules
`• $24.99 for 60 capsules
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`Pure Nootropics Oxiracetam:
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`• $14.95 for 30g powder
`• $32.45 for 75g powder
`• $16.99 for 30 capsules
`• $29.99 for 60 capsules
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`Pure Nootropics Phenylpiracetam:
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`• $29.95 for 7.5g powder
`• $49.95 for 15g powder
`• $16.99 for 30 capsules
`
`
`23.
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`Defendant has consistently claimed and represented that consuming the Products
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`will strengthen and/or improve consumers’ memory, learning, focus, energy, and overall mood.
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`24.
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`Indeed, all three of the Products can be found listed on Defendant’s website,
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`under the section “TOP NOOTROPICS FOR MENTAL PERFORMANCE & BRAIN
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`SUPPORT.”
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`25.
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`Pure Nootropic Oxiracetam and Pure Nootropic Phenylpiracetam can both be
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`found listed on Defendant’s website, under the false and misleading section “TOP
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`NOOTROPICS FOR ENERGY.”
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`26.
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`Pure Nootropic Aniracetam and Pure Nootropic Oxiracetam can both be found
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`listed on Defendant’s website, under the false and misleading section “TOP NOOTROPICS FOR
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`MOOD.”
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`6
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`27.
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`Defendant’s misrepresentations can also be seen on the ‘KNOWLEDGE BASE’
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`section of its website.6 In this section of its website, Defendant states Aniracetam “improves
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`memory formatting and learning,” and “increases stimulation.”
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`
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`28.
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`Likewise, this section of Defendant’s website states Oxiracetam “can not only
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`halt, but also reverse neurological decline,” and is “useful for younger individuals who are
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`seeking enhanced memory and learning.”
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`
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`
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`
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`6 KNOWLEDGE BASE, https://www.purenootropics.net/knowledge-base/.
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`7
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`29.
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`Finally, this section of Defendant’s website states Phenylpiracetam is “a great
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`boost of mental energy with the same memory enhancement benefits of the entire racetam
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`family.”
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`
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`30.
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`Defendant’s representations are designed to induce consumers to believe that the
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`Products have been proven as a matter of fact to strengthen consumers’ memory, learning, focus,
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`energy, and overall mood. And consumers purchase the Products for the purpose of obtaining
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`these purported brain performance benefits.
`
`31.
`
`32.
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`However, Defendant’s Products do not produce their advertised benefits.
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`A 2020 study published by the Neurology Clinical Practice7, a journal of the
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`American Academy of Neurology, examined nootropic products that contained four ingredients,
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`classified as “piracetam analogs.” Three of these four piracetam analogs were: “Aniracetam,”
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`“Oxiracetam,” and “Phenylpiracetam” (which the Defendant’s Products at issue stem from). The
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`study found that “[u]se of these cognitive enhancement supplements poses potentially serious
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`health risks given the unpredictable dosing and lack of clinician supervision. The risks of using
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`specific products is not known, although these drugs have been associated with adverse effects
`
`
`7 Pieter A. Cohen, et al., Five Unapproved Drugs Found in Cognitive Enhancement Supplements.
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`8
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`

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`including increased and decreased blood pressure, insomnia, agitation, dependence, sedation,
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`hospitalization and intubation.”8 Moreover, the study also noted that “supplements marketed as
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`cognitive enhancement products may contain unpredictable combinations of unapproved
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`drugs.”9
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`33.
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`In addition, on February 5, 2019, the FDA and the FTC issued a joint-warning
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`letter10 to Defendant concerning seven of the Defendant’s supplements, including piracetam. As
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`previously mentioned in the 2020 study, Aniracetam, Oxiracetam, and Phenylpiracetam are all
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`“analogs of piracetam.”11 The FDA stated in the warning letter that Defendant’s piracetam
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`product was not recognized as safe and effective for the uses and claims made by Defendant.
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`34. Moreover, the FTC stated in the warning letter that it was “concerned that one or
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`more of the efficacy claims … may not be substantiated by competent and reliable scientific
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`evidence.” Due to this concern, the FTC warned Defendant to “review all claims for your
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`products and ensure that those claims are supported by competent and reliable scientific
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`evidence.” (Emphasis added).
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`35.
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`Finally, the FDA sent a separate warning letter to a rival nootropics company,
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`Peak Nootropics,12 in which the FDA stated that Peak Nootropics Aniracetam, Peak Nootropics
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`Oxiracetam, and Peak Nootropics Phenylpiracetam were not recognized as safe and effective for
`
`
`
`8 Id.
`9 Id.
`10 William A Correll, Jr., Mary Engle, Warning Letter, U.S. Food & Drug Admin., U.S. Federal
`Trade Comm’n (Feb. 05, 2019) https://www.fda.gov/inspections-compliance-enforcement-and-
`criminal-investigations/warning-letters/pure-nootropics-llc-565425-02052019.
`11 Pieter A. Cohen, et al., Five Unapproved Drugs Found in Cognitive Enhancement
`Supplements.
`12 https://www.fda.gov/inspections-compliance-enforcement-and-criminal-investigations/
`warning-letters/peak-nootropics-llc-aka-advanced-nootropics-557887-02052019.
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`9
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`the uses and claims made by Peak Nootropics, claims that were materially similar to the claims
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`made here by Defendant.
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`36.
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`Despite all this, Defendant knowingly continues to sell the Products to consumers
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`with unsupported and unauthorized claims, thereby misleading consumers to believe that the
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`Products do, in fact, have meaningful effects on consumers’ memory, learning, focus, energy and
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`overall mood.
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`37.
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`Therefore, Defendant’s claims and representations, as well as advertising of the
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`Products, are false and misleading.
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`II.
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`The Products Are Illegally Distributed And Misbranded Under Federal Law
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`38.
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`As referenced above, the FDA has taken note of Defendant’s claims and
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`representations of its piracetam product, which the Products are analogs of, and determined in a
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`warning letter issued on February 5, 2019, that the piracetam product is in fact classified as a
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`drug. 21 U.S.C. § 321(g)(1)(B).
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`39.
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`Also referenced above, the FDA sent a warning letter to a rival nootropics
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`company, Peak Nootropics, in which the FDA stated that Peak Nootropics Aniracetam, Peak
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`Nootropics Oxiracetam, and Peak Nootropics Phenylpiracetam should all be classified as drugs,
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`which would require FDA testing and approval prior to the legal selling of said products in
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`interstate commerce.
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`40.
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`The FDA approves new drugs “on the basis of scientific data and information
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`demonstrating that the drug is safe and effective.”13 To this date, however, the Products have not
`
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`13 William A Correll, Jr., Mary Engle, Warning Letter, U.S. Food & Drug Admin., U.S. Federal
`Trade Comm’n (Feb. 05, 2019) https://www.fda.gov/inspections-compliance-enforcement-and-
`criminal-investigations/warning-letters/pure-nootropics-llc-565425-02052019.
`
`10
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`

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`been tested or approved by the FDA. Accordingly, Defendant’s selling of the Products continues
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`to violate the Federal Food, Drug, and Cosmetic Act.
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`41.
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`Furthermore, Defendant continues to be in violation of 21 U.S.C. § 331(a),
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`namely the “introduction or delivery for introduction into interstate commerce of any food, drug,
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`device, tobacco product, or cosmetic that is adulterated or misbranded.” 21 U.S.C. § 331(a).
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`42.
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`The Warning Letter states that Defendant’s supplements, including piracetam
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`“fail to bear adequate direction for their intended uses and, therefore, the products are
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`misbranded.” Thus, the Defendant has been, and continues to illegally sell the misbranded drugs
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`to consumers.
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`43. Moreover, the FDA stated that the reason why Defendant’s piracetam product was
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`classified as a drug was because the piracetam product was not recognized as safe and effective
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`for the uses and claims made by the Defendant.
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`44.
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`Based on the foregoing, Defendant’s Products are illegal to sell because they are
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`analogs of unapproved “new drugs” and are thus “adulterated” and “misbranded.” Such illegally
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`sold products are worthless and have no value. See Debernadis v. IQ Formulations, LLC, 942
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`F.3d 1076, 1085 (11th Cir. 2019).
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`CLASS ALLEGATIONS
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`45.
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`Plaintiffs seek to represent a class defined as all persons in the United States who
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`purchased the Products (the “Class”). Excluded from the Class are governmental entities,
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`Defendant, Defendant’s affiliates, parents, subsidiaries, employees, officers, directors, and co-
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`conspirators, and anyone who purchased the Products for resale. Also excluded is any judicial
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`officer presiding over this matter and the members of their immediate families and judicial staff.
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`11
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`46.
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`Plaintiffs also seek to represent a subclass consisting of Class members who
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`reside in New York (the “Subclass”).
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`47.
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`Subject to additional information obtained through further investigation and
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`discovery, the foregoing definition of the Class and Subclass may be expanded or narrowed by
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`amendment or amended complaint.
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`48.
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`Numerosity. The members of the Class and Subclass are geographically
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`dispersed throughout the United States and are so numerous that individual joinder is
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`impracticable. Upon information and belief, Plaintiffs reasonably estimate that there are
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`thousands of members in the Class and Subclass. Although the precise number of Class
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`members is unknown to Plaintiffs, the true number of Class members is known by Defendant and
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`may be determined through discovery. Class members may be notified of the pendency of this
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`action by mail and/or publication through the distribution records of Defendant and third-party
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`retailers and vendors.
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`49.
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`Existence and predominance of common questions of law and fact. Common
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`questions of law and fact exist as to all members of the Class and Subclass and predominate over
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`any questions affecting only individual Class members. These common legal and factual
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`questions include, but are not limited to:
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`(a) whether Defendant’s labeling, marketing, and promotion of the Products is false
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`and misleading;
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`(b) whether Defendant’s conduct was unfair and/or deceptive;
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`(c) whether Plaintiffs and the Class have sustained damages with respect to the
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`common-law claims asserted, and if so, the proper measure of their damages.
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`12
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`50. With respect to the Subclass, additional questions of law and fact common to the
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`members that predominate over questions that may affect individual members include whether
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`Defendant violated New York’s General Business Law § 349, Deceptive Acts and Practices
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`Unlawful, as well as General Business Law § 350, False Advertising.
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`51.
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`Typicality. The claims of the named Plaintiffs are typical of the claims of other
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`members of the Class in that the named Plaintiffs were exposed to Defendant’s false and
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`misleading marketing, purchased the Products, and suffered a loss as a result of that purchase.
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`52.
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`Adequacy of Representation. Plaintiffs are adequate representatives of the
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`Class and Subclass because their interests do not conflict with the interests of the Class members
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`they seek to represent, they have retained competent counsel that is highly experienced in
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`complex consumer class action litigation, and Plaintiffs intend to vigorously prosecute this action
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`on behalf of the Class and Subclass. Furthermore, Plaintiffs have no interests that are
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`antagonistic to those of the Class or Subclass.
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`53.
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`Superiority. A class action is superior to all other available means for the fair
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`and efficient adjudication of this controversy. The damages or other financial detriment suffered
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`by individual Class and Subclass members are relatively small compared to the burden and
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`expense of individual litigation of their claims against Defendant. It would, thus, be virtually
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`impossible for the Class or Subclass on an individual basis, to obtain effective redress for the
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`wrongs committed against them. Furthermore, even if Class or Subclass members could afford
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`such individualized litigation, the court system could not. Individualized litigation would create
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`the danger of inconsistent or contradictory judgments arising from the same set of facts.
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`Individualized litigation would also increase the delay and expense to all parties and the court
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`system from the issues raised by this action. By contrast, the class action device provides the
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`13
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`

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`benefits of adjudication of these issues in a single proceeding, economies of scale, and
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`comprehensive supervision by a single court, and presents no unusual management difficulties
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`under the circumstances.
`
`COUNT I
`Violation of New York Gen. Bus. Law § 349
`
`Plaintiffs hereby incorporate by reference the allegations contained in all
`
`54.
`
`preceding paragraphs of this complaint.
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`55.
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`Plaintiffs bring this claim individually and on behalf of the members of the New
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`York Subclass against Defendant.
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`56.
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`By the acts and conduct alleged herein, Defendant committed unfair or deceptive
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`acts and practices by making false representations regarding its Products.
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`57.
`
`58.
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`The foregoing deceptive acts and practices were directed at consumers.
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`The foregoing deceptive acts and practices are misleading in a material way
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`because they fundamentally misrepresent that the Products strengthen consumers’ memory,
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`learning, focus, energy, and overall mood.
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`59.
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`The foregoing deceptive acts and practices are also misleading in a material way
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`because they represented that the Products were not adulterated, misbranded, and were legal to
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`sell.
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`60.
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`Plaintiffs and members of the New York Subclass were injured as a result of
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`Defendant’s deceptive acts and practices because (a) they would not have purchased the Products
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`if they had known that the Products would not strengthen consumers’ memory, learning, focus,
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`energy, and overall mood, and (b) they overpaid for the Products on account of Defendant’s
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`misrepresentations that the Products strengthen consumers’ memory, learning, focus, energy, and
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`overall mood.
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`14
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`61.
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`Plaintiffs and members of the New York Subclass also were injured as a result of
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`Defendant’s deceptive acts and practices because (a) they would not have purchased the Products
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`if they had known that the Products were adulterated, misbranded, and illegal to sell, and (b) they
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`overpaid for the Products on account of Defendant’s misrepresentations that the Products were
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`not adulterated, misbranded, and illegal to sell.
`
`62.
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`The foregoing deceptive acts and practices are misleading in a material way
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`because they fundamentally misrepresent that the Products strengthen consumers’ memory,
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`learning, focus, energy, and overall mood.
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`63.
`
`The foregoing deceptive acts and practices are also misleading in a material way
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`because they fundamentally misrepresent that the Products are not adulterated, misbranded, and
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`illegal to sell.
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`64.
`
`On behalf of themselves and other members of the New York Subclass, Plaintiffs
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`seek to enjoin the unlawful acts and practices described herein, to recover their actual damages
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`or fifty dollars, whichever is greater, three times actual damages, and reasonable attorney’s fees.
`
`COUNT II
`Violation of New York Gen. Bus. Law § 350
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`Plaintiffs hereby incorporate by reference the allegations contained in all
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`65.
`
`preceding paragraphs of this complaint.
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`66.
`
`Plaintiffs bring this claim individually and on behalf of the members of the New
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`York Subclass against Defendant.
`
`67.
`
`Based on the foregoing, Defendant engaged in consumer-oriented conduct that is
`
`deceptive or misleading in a material way which constitutes false advertising in violation of
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`Section 350 of the New York General Business Law by misrepresenting the benefits of the
`
`Products.
`
`15
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`Case 1:21-cv-03366 Document 1 Filed 06/15/21 Page 16 of 20 PageID #: 16
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`68.
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`The foregoing advertising was directed at consumers and was likely to mislead a
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`reasonable consumer acting reasonably under the circumstances.
`
`69.
`
`These misrepresentations have resulted in consumer injury or harm to the public
`
`interest.
`
`70.
`
`Defendant alone possessed the knowledge that the Products were not effective,
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`and were adulterated, misbranded, and illegal to sell.
`
`71.
`
`As a result of Defendant’s misrepresentation, Plaintiffs and members of the New
`
`York Subclass have suffered economic injury because (a) they would not have purchased the
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`Products if they had known that the Products would not strengthen consumers’ memory,
`
`learning, focus, energy, and overall mood, and (b) they overpaid for the Products on account of
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`Defendant’s misrepresentations that the Products strengthen consumers’ memory, learning,
`
`focus, energy, and overall mood.
`
`72.
`
`As a result of Defendant’s misrepresentation, Plaintiffs and members of the New
`
`York Subclass have also suffered economic injury because (a) they would not have purchased
`
`the Products if they had known that the Products were adulterated, misbranded, and illegal to
`
`sell, and (b) they overpaid for the Products on account of Defendant’s misrepresentations that the
`
`Products were not adulterated, misbranded, and illegal to sell.
`
`73.
`
`On behalf of themselves and other members of the New York Subclass, Plaintiffs
`
`seek to enjoin the unlawful acts and practices described herein, to recover their actual damages
`
`or five hundred dollars, whichever is greater, three times actual damages, and reasonable
`
`attorney’s fees.
`
`16
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`Case 1:21-cv-03366 Document 1 Filed 06/15/21 Page 17 of 20 PageID #: 17
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`COUNT III
`Unjust Enrichment
`
`Plaintiffs hereby incorporate by reference the allegations contained in all
`
`74.
`
`proceeding paragraphs of this complaint.
`
`75.
`
`Plaintiffs bring this claim individually and on behalf of members of the Class and
`
`New York Subclass against Defendant.
`
`76.
`
`Plaintiffs and Class members conferred benefits on Defendant by purchasing Pure
`
`Nootropics Products.
`
`77.
`
`78.
`
`Defendant has knowledge of such benefits.
`
`Defendant has been unjustly enriched in retaining the revenues derived from
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`Plaintiffs’ and Class members’ purchases of Pure Nootropics Products. Retention of moneys
`
`under these circumstances is unjust and inequitable because Defendant misrepresented that Pure
`
`Nootropics Products would strengthen consumers’ memory, learning, focus, energy, and overall
`
`mood.
`
`79.
`
`Retention of those moneys under these circumstances is also unjust and
`
`inequitable because the Pure Nootropics Products were adulterated, misbranded, and illegal to
`
`sell.
`
`80.
`
`Because Defendant’s retention of the non-gratuitous benefits conferred on it by
`
`Plaintiff and Class members is unjust and inequitable, Defendant must pay restitution to
`
`Plaintiffs and the Class members for their unjust enrichment, as ordered by the Court.
`
`COUNT IV
`Breach of Implied Warranty
`
`Plaintiffs hereby incorporate by reference the allegations contained in all
`
`81.
`
`proceeding paragraphs of this complaint.
`
`17
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`

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`Case 1:21-cv-03366 Document 1 Filed 06/15/21 Page 18 of 20 PageID #: 18
`
`82.
`
`Plaintiffs bring this claim individually and on behalf of members of the Class and
`
`New York Subclass against Defendant.
`
`83.
`
`Defendant, as the marketer, distributor, and/or seller, impliedly warranted that the
`
`Pure Nootropics Products (i) were not adulterated products, and thus legal to sell, and (ii) were
`
`proven as a matter of fact to strengthen consumers’ memory, learning, focus, energy, and overall
`
`mood.
`
`84.
`
`Defendant breached the warranty implied in the contract for the sale of the Pure
`
`Nootropics Products because they could not pass without objection in the trade under the
`
`contract description, the goods were not of fair average quality within the description, and the
`
`goods were unfit for their intended and ordinary purpose because the Products manufactured,
`
`distributed, and sold by Defendant were adulterated, and as such illegal to sell, as well as not
`
`proven to strengthen consumers’ memory, learning, focus, energy, and overall mood. As a
`
`result, Plaintiffs and Class members did not receive the goods as impliedly warranted by
`
`Defendant to be merchantable.
`
`85.
`
`Plaintiffs and Class members purchased the Pure Nootropics Products in reliance
`
`upon Defendant’s skill and judgment and the implied warranties of fitness for the purpose.
`
`The Pure Nootropics Products were not altered by Plaintiffs or Class members.
`
`The Pure Nootropics Products were defective when they left the exclusive control
`
`86.
`
`87.
`
`of Defendant.
`
`88.
`
`Defendant knew that the Pure Nootropics Products would be purchased and used
`
`without additional testing by Plaintiffs and Class members.
`
`89.
`
`The Pure Nootropics Products were defectively manufactured and unfit for their
`
`intended purpose, and Plaintiff and Class members did not receive the goods as warranted.
`
`18
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`

`

`Case 1:21-cv-03366 Document 1 Filed 06/15/21 Page 19 of 20 PageID #: 19
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`90.
`
`As a direct and proximate cause of Defendant’s breach of the implied warranty,
`
`Plaintiffs and Class members have been injured and harmed because they would not have
`
`purchased the Pure Nootropics Products if they knew the truth about the Products and that the
`
`Products they received were worth substantially less than the Products they were promised and
`
`expected.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs, individually and on behalf of all others similarly situated, seek
`
`judgment against Defendant, as follows:
`
`For an order certifying the Class and the New York Subclass under Rule 23
`of the Federal Rules of Civil Procedure and naming Plaintiffs as
`representatives of the Class and New York Subclass and Plaintiffs’
`attorneys as Class Counsel to represent the Class and New York Subclass
`members;
`
`For an order declaring the Defendant’s conduct violates the statutes
`referenced herein;
`
`For an order finding in favor of Plaintiffs, the Class, and the New York
`Subclass on all counts asserted herein;
`
`For compensatory, statutory, and punitive damages in amounts to be
`determined by the Court and/or jury;
`
`For prejudgment interest in all amounts awarded;
`
`For an order of restitution and all other forms of equitable monetary relief;
`
`For an order enjoining Defendant from continuing the illegal practices
`detailed herein and compelling Defendant to undertake a corrective
`advertising campaign; and
`
`For an order awarding Plaintiffs and the Class and New York Subclass their
`reasonable