Case 1:22-cv-00805-BMC Document 1 Filed 02/11/22 Page 1 of 33 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`TIMOTHY BROWN, individually and
`on behalf of all others similarly situated,
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`Case No.
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`Plaintiff,
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`CLASS ACTION COMPLAINT
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`v.
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`JURY TRIAL DEMANDED
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`VITAL PHARMACEUTICALS, INC.,
`d/b/a VPX Sports,
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` Defendant.
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`Plaintiff Timothy Brown (“Plaintiff”) brings this action on behalf of himself and all
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`others similarly situated against Vital Pharmaceuticals, Inc., d/b/a VPX Sports (“Defendant”
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`or “VPX”), a Florida corporation. Plaintiff makes the following allegations based on
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`information and belief, except as to the allegations specifically pertaining to himself which are
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`based on personal knowledge.
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`INTRODUCTION
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`1.
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`Creatine is one of the most popular sports dietary supplements on the market,
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`with more than $400 million in annual sales.1 Creatine has been shown to improve exercise
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`performance and play a role in preventing or reducing serious injuries, enhancing rehabilitation
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`from injuries, and aids athletes in tolerating heavy training loads.2
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`2.
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`Likewise, creatine is increasingly associated with brain health and cognitive
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`1 Jessica Butts et al., “Creatine Use in Sports,” 10 Sports Health at 31-34 (Jan-Feb 2018)
`[https://dx.doi.org/10.1177%2F1941738117737248]. (last accessed February 11, 2022).
`2 Thomas Buford et al., “International Society of Sports Nutrition position stand: creatine supplementation and
`exercise,” 4 J. Intl Soc Sports Nutr. 6 (2007) [https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2048496/]. (last
`accessed February 11, 2022).
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`performance. There is evidence in scientific literature that if creatine is able to successfully
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`permeate the blood-brain barrier (BBB), it can promote brain health and improve cognitive
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`function. Creatine has also been progressively tested in neurodegenerative diseases, such as
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`Parkinson’s and Huntington’s disease.
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`3.
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`It is, therefore, no surprise that products with creatine, which has been shown
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`to boost exercise performance, promote greater fitness gains, positively effect a consumer’s
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`physical health, and potentially aid in cognitive performance, are popular and widely available
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`in brick-and-mortar stores and online across the United States.3 These products come in many
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`forms, including beverages, capsules, and powders.
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`4.
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`Defendant VPX is an American company that hypes its products as the
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`healthiest energy drink on the market. VPX manufactures, markets, distributes, and sells a
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`variety of products, including its BANG® “performance-enhancing beverage” product line (the
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`“BANG® products” or the “Products”). VPX sells BANG® products by deceiving the public
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`about the Products’ ingredients.
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`5.
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`The marquee ingredient in the BANG® products is “SUPER CREATINE,”
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`which Defendant touts as a “performance ingredient” that “contributed in part to Bang’s rise
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`in prominence” and created a so-called “cult-like craze”.
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`6.
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`Contrary to the labeling of “SUPER CREATINE” on BANG® products, the
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`Products do not contain any creatine at all. Rather, what Defendant calls “SUPER CREATINE”
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`is really Creatyl L-leucine, which is a fundamentally different molecule than creatine, is not
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`creatine, and does not have the benefits of creatine. Creatyl L-leucine is an entirely new
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`3 Cindy Crawford et al., “A Public Health Issue: Dietary Supplements Promoted for Brain Health and Cognitive
`Performance,” 26 J. Altern Complement Med.. at 265-272 (Apr 2020)
`[https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7153641/ (last accessed February 11, 2022).
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`ingredient developed by VPX. It is also incapable of having any of the physiological effects of
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`creatine. Simply put, the term and name “SUPER CREATINE” is false and misleading.
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`7.
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`Nonetheless, Defendant touts the presence of so-called “SUPER CREATINE”
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`in capital letters and a bold font placed around the top lip of each BANG® can. Further,
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`Defendant labels “SUPER CREATINE” as a “performance ingredient” on the Products’
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`packaging.
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`8.
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`Defendant reinforces these false claims by including the phrase “POTENT
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`BRAIN AND BODY FUEL” in all capital letters, on the front and center of the Product,
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`immediately below the product name BANG®, and has defined this phrase as its “trademarked
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`tagline” and part of its “trade dress.” In fact, Defendant has stated that one of the reasons it
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`labels the Product as providing “POTENT BRAIN AND BODY FUEL” is because of “SUPER
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`CREATINE.”
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`9.
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`Defendant has engaged in false and misleading claims to gain profits at the
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`expense of the consumers, who Defendant knows are regularly seeking to improve their
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`physical and/or neurological health.
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`10.
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`Defendant is well aware that creatine is a popular dietary supplement believed
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`to have beneficial effects for exercise performance, building muscle mass, brain health, and
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`cognitive functioning. However, the Products contain no creatine at all.
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`11.
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`Nonetheless, Defendant has capitalized on this trend, and has engaged in a
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`uniform nationwide marketing campaign to convince consumers that the Products contain
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`“SUPER CREATINE,” when they in fact have no creatine at all and are entirely incapable of
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`providing the benefits of creatine.
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`12.
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`To further support the validity of its false and deceptive product claims, the
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`BANG® website references multiple “university studies.”4 All of these studies were funded,
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`at least in part, by VPX. Further, the VPX-sponsored “university studies” do not provide any
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`discernable scientific evidence that Creatyl-l-Leucine can provide any performance benefit in
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`the body or in the brain. In fact, there are no peer-reviewed studies in the scientific literature
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`that support positive effects of Creatyl-l-Leucine in the brain or in skeletal muscle.
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`13.
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`To accompany this deception and give the false impression of medical and
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`scientific support for the BANG® products’ supposed benefits, VPX holds itself out as a
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`“pharmaceutical” company. Indeed, Jack Owoc, CEO and founder of VPX, who is also VPX’s
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`“Chief Scientific Officer” and primary pitchman, claims that he purposefully designed the
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`company logo to resemble the “Rx” symbol associated with pharmaceutical drugs:
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`14.
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`As Owoc explained, “This is precisely why the acronym VP(X) actually stands
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`for Vital Pharmaceuticals with the X appearing lower than the VP similar to how it appears in
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`RX.”5
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`15.
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`Despite this marketing and labeling scheme, VPX is not a pharmaceutical
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`company and its founder, Jack Owoc, is merely a former high school science teacher, and not
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`a chemist, pharmacist, scientist or doctor.
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`16.
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`Defendant’s false and deceptive advertising campaign is being carried out to the
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`4 ‘VPX UNIVERSITY STUDIES.” Bang Energy. [https://bangenergy.com/vpx-university-studies/ (last accessed
`February 11, 2022.)
`5 https://bangenergy.com/about/ (last accessed February 11, 2022).
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`detriment of the consuming public. As described herein, “SUPER CREATINE” is not creatine,
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`and the BANG® products contain no creatine, and do not confer any health benefits.
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`Nonetheless, Defendant intends to deceive, and has deceived, consumers into believing that
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`BANG® products contain creatine.
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`17.
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`Plaintiff and members of the classes purchased the Products and paid a premium
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`for Defendant’s Products over comparable products that were not promoted with the
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`misrepresentations at issue here.
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`JURISDICTION AND VENUE
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`18.
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`This Court has jurisdiction over this matter under the Class Action Fairness Act
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`(“CAFA”), 28 U.S.C. § 1332(d), as the amount in controversy exceeds $5 million, exclusive
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`of interests and costs; it is a class action of over 100 members; and the Plaintiff is a citizen of
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`a state different from the Defendant.
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`19.
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`This Court has personal jurisdiction over Defendant. Defendant has sufficient
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`minimum contacts with the state of New York and purposefully availed itself, and continues to
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`avail itself, of the jurisdiction of this New York through the privilege of conducting its business
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`ventures in the state of New York, thus rendering the exercise of jurisdiction by the Court
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`permissible under traditional notions of fair play and substantial justice.
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`20.
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`Venue is proper in this district under 28 U.S.C. § 1391(a) because a substantial
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`part of the events or omissions giving rise to Plaintiff’s claims occurred in this district, as
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`Defendant does business throughout this district, and Plaintiff lives and made his purchase of
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`the Product in this district.
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`PARTIES
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`21.
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`Plaintiff Timothy Brown (“Plaintiff Brown” or “Mr. Brown”) is a natural person
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`and a citizen of New York, residing in Staten Island. Plaintiff Brown purchased BANG® products
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`periodically in 2020 and 2021, with the last purchase being in late 2021. Mr. Brown was in
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`New York when he purchased the BANG® products. He also purchased at least one BANG®
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`product in New Jersey between 2020 and 2021. Mr. Brown typically purchased the products
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`at various gas stations. Prior to his purchase, Mr. Brown saw and read the product packaging,
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`and relied on the representation and warranty that the product contained the ingredients
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`represented on the can and would provide health and wellness benefits. Prior to purchasing,
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`Mr. Brown also saw, read, and relied on the following statements:
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`A.
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`B.
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`C.
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`“SUPER CREATINE.”
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`“POTENT BRAIN AND BODY FUEL”
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`“Power up with BANG®’s potent brain & body-rocking fuel: Creatine, Caffeine
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`(stated), CoQ10 & BCAAs (Branched Chain Amino Acids).”
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`22.
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`Plaintiff Brown was deceived by the above misrepresentations into believing
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`that BANG® products contained creatine, and that the Products had sufficient amounts of
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`creatine to provide physiological effects.
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`23.
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`Plaintiff Brown purchased the Products at a substantial price premium and
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`would not have bought the Products, or paid the same amount for the Products, had he known
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`that the labeling and marketing he relied on was false, misleading, deceptive, or unfair.
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`24.
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`Plaintiff Brown would purchase the Products in the future if they contain
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`sufficient quantities of creatine to provide physiological effects associated with the creatine.
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`Mr. Brown regularly visits places where Defendant’s Products are sold. However, he has no
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`way to be certain whether Defendant’s ingredient representations are true when he sees the
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`Products on the store shelves.
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`25.
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`Defendant Vital Pharmaceuticals, Inc. (“VPX”) is a Florida corporation with
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`its principal place of business at 1600 North Park Drive, Weston, Florida 33326. VPX
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`produces, markets, and distributes various nutritional supplement products through VPX’s
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`website and in retail stores across the United States and New York, including the Products.
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`26.
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`Plaintiff reserves the right to amend this Complaint to add different or
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`additional defendants, including without limitation any officer, director, employee, supplier, or
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`distributor of Defendant who has knowingly and willfully aided, abetted, or conspired in the
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`false and deceptive conduct alleged herein.
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`A.
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`COMMON FACTUAL ALLEGATIONS
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`The BANG® Products’ Claims
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`27.
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`Defendant manufactures, distributes, advertises, and sells BANG® products,
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`which for all relevant purposes are identical, apart from the flavors, which include: Cotton
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`Candy, Lemon Drop, Root Beer, Blue Razz, Sour Heads, Peach Mango, Star Blast, Power
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`Punch, Champagne, Black Cherry Vanilla, Pina Colada, Purple Guava Pear, Citrus Twist,
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`Purple Haze, Cherry Blade Lemonade, and Rainbow Unicorn.
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`28.
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`Defendant also manufactures, distributes, advertises, and sells caffeine-free
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`versions of BANG® products which for all relevant purposes are identical, apart from the
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`flavors, which include: Sour Heads, Cotton Candy, Black Cherry Vanilla, Purple Guava Pear,
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`and Cherry Blade Vanilla.
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`29.
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`At all relevant times: Defendant has marketed the Products in a consistent and
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`uniform manner relating to ingredients. Defendant sells the Products on its website and through
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`various distributors and retailers.
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`30.
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`At all times during at least the last four years, Defendant advertised, marketed,
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`labeled and sold the Products as containing the ingredient “SUPER CREATINE.”
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`31.
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`Defendant labels and advertises the Products in a manner that leads reasonable
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`consumers to believe that the Products contain creatine.
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`32.
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`Defendant also labels and advertises the Products in a manner that leads
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`reasonable consumers to believe that they fuel the brain and body and that, unlike the
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`competition, it is a reputable company that accurately represents the Products’ ingredients.
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`33.
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`In particular, Defendant has consistently conveyed the uniform, deceptive
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`representation to consumers that the Products contain creatine through the prominent
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`placement of the words “SUPER CREATINE” on the top lip of each of the Products can, in
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`bold capitalized letters, as shown below:
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`34.
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`Further, the front and back of every Product states that the Product contains
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`“POTENT BRAIN AND BODY ROCKING FUEL,” and the back label states “Power up with
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`BANG®’s potent brain & body rocking fuel: Creatine, Caffeine, CoQ10 & BCAAs (Branched
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`Chain Amino Acids),” as shown below:
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`35.
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`These uniform claims have been made by Defendant and repeated across a
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`variety of media including the Products’ label, website, and online promotional materials, and
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`at the point-of-purchase, where they cannot be missed by consumers.
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`B.
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`The BANG® Products Do Not Contain Creatine
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`36.
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`In truth, Defendant’s claim that the Products contain “SUPER CREATINE” is
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`false, misleading, and deceptive because the Products do not contain creatine, and are incapable
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`of providing the purported benefits of creatine.
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`37.
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`Creatine is a popular supplement that has been shown to improve physical
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`performance, including physical adaptions to exercise and power activities. Creatine is widely
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`used by consumers to improve anerobic exercise performance and muscle morphology. That is
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`why creatine products have garnered more than $400 million in annual sales across the United
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`States.
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`38.
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`Likewise, it is well known that brain health and cognitive performance are
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`issues of concern to consumers of all ages and are important public health issues. In 2016,
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`dietary supplements claiming to benefit the brain generated $3 billion in global sales.6 Brain
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`health supplements are forecast to increase to $5.8 billion in global sales by 2023.7 Backed by
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`scientific evidence, creatine can promote brain health and improve cognitive performance if
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`able to permeate the blood-brain barrier (BBB).
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`39.
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`It is, therefore, no surprise that products promising to provide a positive effect
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`on the brain and body are widely available in stores across the United States.8 These products
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`come in many forms, including beverages, capsules, and powders. Beverages with these health
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`and wellness claims have especially gained mainstream status in the United States, particularly
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`as consumers are experiencing pill fatigue and are looking for alternative ways to fuel their
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`bodies and brains.
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`40.
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`Defendant has capitalized on this trend, and has engaged in a uniform,
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`nationwide marketing campaign to convince consumers that the Products contain creatine
`
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`6 “The Real Deal on Brain Health Supplements: GCBH Recommendations on Vitamins, Minerals, and Other Dietary
`Supplements,” Global Council on Brain Health at 2 (2019) [https://doi.org/10.26419/pia.00094.001] (last accessed
`February 11, 2022)
`7 Id. p. 2.
`8 Crawford et al., supra note 3.
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`through the use of their novel ingredient “SUPER CREATINE,” when they have no creatine
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`at all, and that the Products can help consumers improve their brain and body health, when the
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`Products are incapable of providing these benefits.
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`41.
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`Independent testing confirms that the Products do not contain the represented
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`ingredients in accordance with the Defendant’s representations. True and correct copies of the
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`samples of testing for “creatine,” commissioned by Plaintiff’s attorneys, are attached hereto as
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`“Exhibit A” and “Exhibit B.”
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`42.
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`The SUPER CREATINE molecule that is found in currently marketed BANG®
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`products is Creatyl-l-Leucine, which consists of creatine covalently bound to l-leucine. This
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`synthetic process changes the chemistry of the creatine molecule to another chemical entity.
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`That is, SUPER CREATINE is not creatine and thus the Products indisputably do not contain
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`creatine and cannot provide the physical benefits associated with creatine.
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`43.
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`For example, the United States Food and Drug Administration (“FDA”) has
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`explained that Picamilon is not a recognized dietary ingredient because it is “a unique chemical
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`entity synthesized from the dietary ingredients niacin and gamma-aminobutyric.”9
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`44.
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`This is consistent with the properties of Creatyl-l-Leucine, a synthesized
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`combination of two ingredients creating a unique compound not found in nature.
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`45.
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`In fact, as shown below, the chemical structures of creatine and Creatyl-l-
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`Leucine are clearly distinct:
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`9 See https://content.next.westlaw.com/w-001
`0342?__lrTS=20211204150451875&transitionType=Default&contextData=(sc.Default)&firstPage=true (last
`accessed February 11, 2022.)
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`Creatine
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`Creatyl-l-Leucine
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`46.
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`No valid scientific-evidence exists to support Defendant’s claim that SUPER
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`CREATINE (i.e. creatyl-l-leucine) either exists or provided beneficial effects on the brain or
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`on the body. In fact, the results of a recent study from the Max Rady College of Medicine at
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`the University of Manitoba show that “creatyl-l-leucine supplementation resulted in no
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`bioaccumulation of either creatyl-l-leucine or creatine in tissue.”10 Bioaccumulation of
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`creatine, also known as “creatine loading,” is the buildup of creatine when consumed regularly.
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`Creatine is able to have a positive physiological effect on the body and brain in this stage.11
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`10 Robin P. da Silva, “The Dietary Supplement Creatyl-L-Leucine Does Not Bioaccumulate in Muscle, Brain or
`Plasma and Is Not a Significant Bioavailable Source of Creatine,” 14 Nutrients at 701 (Feb 2022)
`[https://doi.org/10.3390/nu14030701] (last accessed February 11, 2022).
`11
`‘Creatine Monohydrate: Benefits, Side Effects, Dosafes & FAQ.” Muscle & Strength.
`[https://www.muscleandstrength.com/expert-guides/creatine-monohydrate] (last accessed February 11, 2022.)
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`47.
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`This SUPER CREATINE is merely a new ingredient, concocted by Defendant,
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`which is not creatine and has no proven impact on the human body. In other words, there is no
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`such this as SUPER CREATINE. That is simply a term Defendant puts on the Products’
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`labeling, because based on those health and wellness claims, a reasonable customer would
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`believe that the Products contain creatine.
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`C.
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`The Impact of Defendant’s Deceptive and Misleading Conduct
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`48.
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`Defendant
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`intentionally and deceptively
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`included
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`the words “SUPER
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`CREATINE” at the top lip of the Products, in bold and capitalized letters where it cannot be
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`missed by consumers, notwithstanding the fact that the Products do not contain creatine. A
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`reasonable consumer would be misled by this representation and would reasonably believe that
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`the Products contain creatine and provide the purported benefits of creatine.
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`49.
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`Consumers lack the meaningful ability to test or independently ascertain or
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`verify the genuineness of product claims of normal, everyday consumer products, especially at
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`the point-of-sale. Consumers would not know the true nature of the ingredients (or lack thereof)
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`merely by reading the ingredients label. Moreover, reasonable consumers, like Plaintiff Brown,
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`are not expected or required to do research to confirm or debunk Defendant’s prominent claims,
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`representations, and warranties that the Products contain creatine. Reasonable consumers must
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`therefore rely on consumer product companies, such as Defendant, to honestly represent their
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`Products and their attributes on the Products’ labels.
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`50.
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`At all relevant times, Defendant directed the above-referenced Products’ labels,
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`statements, claims and innuendo, including that the Products contained creatine and provided
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`the claimed benefits of creatine, to consumers in general and Class Members in particular, as
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`evidenced by their eventual purchases of the Products.
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`51.
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`Plaintiff and Class Members reasonably relied on Defendant’s Products’ labels,
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`statements, claims and innuendo in deciding to purchase the Products and were thereby
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`deceived.
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`52.
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`As a result of Defendant’s misconduct, Defendant was able to sell the Products
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`to hundreds of thousands of consumers throughout the United States—including Plaintiff
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`Brown and putative Class Members in New York—and to realize sizeable profits.
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`53.
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`The purpose of Defendant’s scheme is to stimulate sales and enhance
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`Defendant’s profits.
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`54.
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`As the manufacturer, marketer, advertiser, distributor and/or sellers of the
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`Products, Defendant possesses specialized knowledge regarding the Products and the content
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`of the ingredients contained therein. In other words, Defendant knows exactly what is – and is
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`not – contained in the Products.
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`55.
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`Defendant knew or should have known, but failed to disclose, that the Products
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`do not actually contain creatine and are incapable of providing the claimed benefits of creatine,
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`as labeled and/or marketed by Defendant.
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`56.
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`Plaintiff and putative Class Members were, in fact, misled by Defendant’s
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`labeling, representations and marketing of the Products.
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`57.
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`Defendant’s representations on the BANG® product labels that the Products
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`contain “SUPER CREATINE” have a tendency or capacity to deceive or confuse reasonable
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`consumers because the Products do not contain creatine.
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`58.
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`Defendant’s representations on the BANG® product labels that state “Power up
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`with BANG®’s potent brain & body-rocking fuel: Creatine […]” have a tendency or capacity
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`or deceive or confuse reasonable consumers because the Products do not contain creatine.
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`59.
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`Defendant intended for consumers to rely upon the representations on the
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`Products’ labels, and reasonable consumers did, in fact, so rely. These representations are often
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`the only source of information consumers can use to make decisions concerning whether to
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`buy and use such Products.
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`60.
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`Defendant’s false, deceptive and misleading label statements violate 21 U.S.C.
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`§ 343(a)(1) and the statutes adopted by many states, which deem food misbranded when “its
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`labeling is false or misleading in any particular.”
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`61.
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`Defendant’s false, deceptive and misleading label statements are unlawful under
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`State Unfair and Deceptive Acts and Practices Statutes and/or Consumer Protection Acts,
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`which prohibit unfair, deceptive or unconscionable acts in the conduct of trade or commerce.
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`62.
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`Further, as explained above, Defendant’s claims are misleading to consumers
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`in violation of 21 U.S.C. § 343, which states, “A food shall be deemed to be misbranded—
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`False or misleading label [i]f its labeling is false or misleading in any particular.”
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`63.
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`The New York Food, Drug and Cosmetic Act, New York has expressly
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`adopted the federal food labeling requirements and has stated “[a] food shall be deemed
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`misbranded in accordance with the Federal Food, Drug and Cosmetic Act (21 U.S.C. §343)[.]”
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`Public Health Law §71.05(d). Thus, a violation of federal food labeling laws is an independent
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`violation of New York law and actionable as such.
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`64.
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`If Defendant had disclosed to Plaintiff and putative Class Members that the
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`Products do not contain any creatine at all, and that the Products do not provide the claimed
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`benefits of creatine, Plaintiff and putative Class Members would not have purchased the
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`Products or they would have paid less for the Products.
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`D.
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`Defendant’s Fraudulent Conduct Regarding
`Misrepresentations
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`the BANG® Products’
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`Rule 9(b) of the Federal Rules of Civil Procedure provided that “[i]n alleging
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`65.
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`fraud or mistake, a party must state with particularity the circumstances constituting fraud or
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`mistake.” To the extent necessary, as detailed in the paragraphs above and below, Plaintiff has
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`satisfied the requirements of Rule 9(b) by establishing the following elements with sufficient
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`particularity.
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`66. WHO: Defendant, VPX, made material misrepresentations and/or omissions of
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`fact in its labeling and marketing by representing that the Products contain creatine and provide
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`the physiological benefits of creatine.
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`67. WHAT: VPX’s conduct here was and continues to be fraudulent because it has
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`the effect of deceiving consumers into believing that the Products contain creatine. VPX
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`omitted from Plaintiff and Class Members that the Products do not contain creatine and
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`therefore cannot provide the physiological benefits of creatine. VPX knew or should have
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`known this information is material to the reasonable consumer and impacts the purchasing
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`decision. Yet, Defendant has and continues to represent that the Products contain creatine and
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`provide the physiological effects of creatine, and yet it includes the creatine claims on the
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`Products packaging and marketing.
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`68. WHEN: VPX made material misrepresentations and/or omissions detailed
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`herein continuously throughout the applicable Class periods
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`69. WHERE: VPX’s material misrepresentations and/or omissions were made on
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`the labeling and packaging of the Products, which are sold nationwide and are visible to the
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`consumer on the front of the labeling and packaging of the Products at the point of sale in every
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`transaction. The Products are sold in brick-and-mortar stores and online store nationwide.
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`70. HOW: VPX made written misrepresentations right on the front label of the
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`Case 1:22-cv-00805-BMC Document 1 Filed 02/11/22 Page 17 of 33 PageID #: 17
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`Products that the Products contained creatine and could provide the physiological effects of
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`creatine, even though the Products do not contain creatine. As such, Defendant’s creatine
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`representations are false and misleading. Moreover, Defendant omitted from the Products’
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`labeling the fact that the Products do not contain creatine. And as discussed in detail throughout
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`this Complaint, Plaintiff and Class Members read and relied on Defendant’s creatine
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`representations and omissions before purchasing the Products.
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`71. WHY: VPX engaged in the material misrepresentations and/or omissions
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`detailed herein for the express purposed of inducing Plaintiff and other reasonable consumers
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`to purchase and/or pay a premium for the Products. As such, VPX profited by selling the
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`Products to at least thousands of consumers nationwide
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`CLASS ACTION ALLEGATIONS
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`Pursuant to Rules 23(b)(2), (b)(3) and, as applicable, (c)(4), of the Federal Rules
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`72.
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`of Civil Procedure, Plaintiff seek to represent a Nationwide class defined as follows:
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`Nationwide Class: During the fullest period allowed by law, all persons in the
`United States who purchased the BANG® Products.
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`73.
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`Excluded from the Class are Defendant, and VPX affiliates, employees, officers
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`and directors, persons or entities that purchased the Products for resale, and the Judge(s)
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`assigned to this case. Plaintiff reserves the right to amend the Class definition as appropriate.
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`74.
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`Plaintiff Brown also seeks to represent the following New York Subclass:
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`New York Subclass: During the fullest period allowed by law, all persons in New
`York who purchased the BANG® Products.
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`75.
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`Excluded from the New York Subclass are Defendant, VPX affiliates,
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`employees, officers and directors, persons or entities that purchased the Products for resale,
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`and the Judge(s) assigned to this case.
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`17
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`Case 1:22-cv-00805-BMC Document 1 Filed 02/11/22 Page 18 of 33 PageID #: 18
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`76.
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`Plaintiff reserves the right to amend the Class definitions or add a Class if
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`discovery and/or further investigation reveal that the Class definitions should be narrowed,
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`expanded or otherwise modified.
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`77.
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`Certification of Plaintiff’s claims for class-wide treatment is appropriate
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`because Plaintiff can prove the elements of his claims on a class-wide basis using the same
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`evidence as would be used to prove those elements in individual actions alleging the same
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`claims.
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`78.
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`Numerosity – Federal Rule of Civil Procedure 23(a)(a): The members of the
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`Classes are so numerous that their individual joinder herein is impracticable. On information
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`and belief, members of the Classes number in at least the thousands to hundreds of thousands.
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`The number of members of the Classes is presently unknown to Plaintiff but may be ascertained
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`from Defendant’s books and records. Members of the Classes may be notified of the pendency
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`of this action by mail, email, Internet postings, and/or publication.
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`79.
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`Commonality and Predominance – Federal Rule of Civil Procedure
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`23(a)(2) and 23(b)(3): Common questions of law and fact exist as to all members of each of
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`the Classes and predominate over questions affecting only individual members of the Class.
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`Such common questions of law or fact include, but are not limited to, the following:
`
`a.
`
`b.
`
`c.
`
`d.
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`
`
`
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`Whether Defendant misrepresented material facts concerning the
`Products on the label of every BANG® product;
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`Whether Defendant’s conduct was unlawful; unfair; fraudulent
`and/or deceptive;
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`Whether Defendant was unjustly enriched when selling the
`mislabeled BANG® products to Plaintiff and Class Members;
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`Whether Plaintiff and the classes have sustained damages with
`respect to the common-law claims asserted, and if so, the proper
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`Case 1:22-cv-00805-BMC Document 1 Filed 02/11/22 Page 19 of 33 PageID #: 19
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`
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`e.
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`measure of their damages; and
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`Whether Plaintiff and the classes are entitled to injunctive,
`declaratory, or other equitable relief.
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`80.
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`Defendant engaged in a common course of conduct giving rise to the legal rights
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`Plaintiff seeks to enforce on behalf of himself and the other Members of the proposed Class.
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`Similar or identical statutory and common law violations, business practices, and injuries are
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`involved. Individual questions, if any, pale in comparison, in both quality and quantity, to the
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`numerous common questions that dominate this action.
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`81.
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`Typicality – Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s claims are
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`typical of the claims of the other Members of the Classes because, among other things, all
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`Members of the Classes were comparably injured through Defendant’s uniform misconduct
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`described above. Further, there are no defenses available to Defendant that is unique to Plaintiff
`
`or to any particular Members of the Classes.
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`82.
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`Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4).:
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`Plaintiff is an adequate Class representative because his interests do not conflict