Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`BEST BRANDS CONSUMER
`PRODUCTS INC.,
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`Plaintiff,
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`v.
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`PUBLIC HEALTH AND SAFETY
`ADVOCATES, LLC,
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`Defendant.
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`Civil Action No.
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`(JURY TRIAL DEMANDED)
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`COMPLAINT
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`Plaintiff Best Brands Consumer Products, Inc. (“Plaintiff” or “BBCP”), by its
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`attorneys, hereby complains of Defendant Public Health and Safety Advocates, LLC
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`(“Defendant” or “PHSA”) and alleges as follows, upon actual knowledge with respect to
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`itself and its own acts, upon information and belief as to all other matters:
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`INTRODUCTION
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`1.
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`BBCP brings this action against PHSA for intentional interference with
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`BBCP’s business. In addition, BBCP seeks a declaratory judgment finding that BBCP’s
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`product, Star Wars Mandalorian Hand Sanitizer (“the Product”) does not violate
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`California’s Proposition 65 (“Prop 65” or “Proposition 65”), also called the Safe
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`Drinking Water and Toxic Enforcement Act.
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`2.
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`On November 9, 2021, Defendant PHSA filed a Prop 65 lawsuit against
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`Best Brands Sales Company, LLC – a distinctly separate company from BBCP – alleging
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`that the Product contains benzene, and that Best Brands Sales Company knowingly and
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`
`BEST BRANDS CONSUMER
`PRODUCTS INC.,
`
`
`Plaintiff,
`
`v.
`
`PUBLIC HEALTH AND SAFETY
`ADVOCATES, LLC,
`
`
`Defendant.
`
`
`
`Civil Action No.
`
`
`
`(JURY TRIAL DEMANDED)
`
`
`COMPLAINT
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`Plaintiff Best Brands Consumer Products, Inc. (“Plaintiff” or “BBCP”), by its
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`attorneys, hereby complains of Defendant Public Health and Safety Advocates, LLC
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`(“Defendant” or “PHSA”) and alleges as follows, upon actual knowledge with respect to
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`itself and its own acts, upon information and belief as to all other matters:
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`INTRODUCTION
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`1.
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`BBCP brings this action against PHSA for intentional interference with
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`BBCP’s business. In addition, BBCP seeks a declaratory judgment finding that BBCP’s
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`product, Star Wars Mandalorian Hand Sanitizer (“the Product”) does not violate
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`California’s Proposition 65 (“Prop 65” or “Proposition 65”), also called the Safe
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`Drinking Water and Toxic Enforcement Act.
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`2.
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`On November 9, 2021, Defendant PHSA filed a Prop 65 lawsuit against
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`Best Brands Sales Company, LLC – a distinctly separate company from BBCP – alleging
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`that the Product contains benzene, and that Best Brands Sales Company knowingly and
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 2 of 11
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`intentionally exposed purchasers of the Product to benzene without warning, in violation
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`of Prop 65.
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`3.
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`Best Brands Sales Company, LLC does not manufacture, import,
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`distribute, wholesale, or retail the Product (or any other BBCP hand sanitizer).
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`4.
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`BBCP sent over forty bottles of BBCP’s hand sanitizer, including the
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`Product, to an independent, well-respected laboratory named Certified Laboratories (“the
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`Lab”) to be tested for benzene. The Lab tested every one of these samples, which
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`included the regulatory reserve sample(s) for every commercialized lot of hand sanitizer
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`ever sold by BBCP. The lab results show that no benzene was detected in any sample.
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`The analytic chemistry reports are attached as Exhibit A.
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`5.
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`BBCP provided every one of these lab reports to PHSA and asked PHSA
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`to provide any lab report(s) that PHSA relies on to claim that the Product contains
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`benzene in violation of Prop 65. To date, PHSA has still not produced a single lab report.
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`THE PARTIES
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`6.
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`At the time of the commencement of the events in question, Plaintiff
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`BBCP was a New York corporation. It is currently a New Jersey corporation having its
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`principal place of business at 2147 State Route 27, Suite 402, Edison, NJ 08817-3365.
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`7.
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`Upon information and belief, Defendant PHSA is a corporation organized
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`and existing under the laws of the State of California having a principal place of business
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`at 10429 Eastborne Avenue, Los Angeles, CA 90049.
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`JURISDICTION AND VENUE
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 3 of 11
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`8.
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`This is an action arising under the Federal Declaratory Judgment Act, 28
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`U.S.C. §§ 2201 and 2202 and the common law of the state of New York.
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`9.
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` This Court has jurisdiction over the federal claims of this action pursuant
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`to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
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`10.
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`This Court has personal jurisdiction over Defendant and venue in this
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`district is proper pursuant to 28 U.S.C. §1391(b) and (c) because Defendant has engaged
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`in acts directed to the State of New York, including in this judicial district. Defendant
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`sent a “Notice of Violation” letter dated July 25, 2021 (“the June 25th Notice”) to BBCP
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`into this district in New York threatening suit (see Exhibit B attached hereto). Likewise,
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`Defendant has filed suit against Best Brands Sales Company, LLC – citizen and resident
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`of the state of New York – in the Superior Court of the State of California, County of Los
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`Angeles.
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`11.
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`12.
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`13.
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`FACTS
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`BBCP is a company that sells consumer products.
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`BBCP has sold the Product for sale to customers in the United States.
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`To date, Defendant has engaged in communications with BBCP in which
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`Defendant has alleged that the Product is sold in violation of Prop 65.
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`14.
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`This includes the June 25th Notice which is a “60 day notice of intent to
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`sue for violations of the Safe Drinking Water and Toxic Enforcement act of 1986”
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`directed at both BBCP and Best Brands Sales Company, LLC.
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 4 of 11
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`15.
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`Defendant has falsely alleged that sales of the Product in California
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`constitute a violation of Prop 65 and has then brought a lawsuit against Best Brands Sales
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`Company, LLC for the same.
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`16.
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`On November 9, 2021 Defendant filed suit against Best Brands Sales
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`Company, LLC in the Superior Court of the State of California, County of Los Angeles
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`captioned PUBLIC HEALTH AND SAFETY ADVOCATES, LLC., a Limited Liability
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`Company, in the public interest v. BEST BRANDS SALES COMPANY, LLC, et al. (21-
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`ST CV-41274) (“The California Lawsuit”).
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`17.
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`BBCP was not named in the California Lawsuit, but is under a continuous
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`and immediate threat of litigation.
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`18.
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`Instead, Best Brands Sales Company, LLC. – a distinctly different
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`company (from BBCP) that does not manufacture, import, distribute, wholesale, or retail
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`the Product – was named as a Defendant.
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`19.
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`Defendant has yet to provide BBCP with lab results, to the extent there are
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`any, supporting its false allegations that sale of the Product violates Prop 65.
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`20.
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`As a result of Defendant’s threats of litigation against BBCP and the
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`actual litigation against Best Brands Sales Company, LLC, and the circumstances
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`surrounding those threats, an actual, present, and justiciable controversy has arisen
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`between BBCP and Defendant regarding BBCP’s sale of the Product.
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`PLAINTIFF’S NON-VIOLATION OF
`PROPOSITION 65
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 5 of 11
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`21.
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`Defendant alleges that the Product – manufactured, imported, and
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`distributed by BBCP – contains benzene and is sold in violation of California’s
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`Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act.
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`22.
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`Defendant has thus far provided BBCP with no documentation
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`substantiating any violation of Prop 65. Nor has Defendant provided any such
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`documentation to Best Brands Sales Company, LLC.
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`23.
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`BBCP sent over forty bottles of BBCP’s hand sanitizer, including the
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`regulatory reserve sample(s) for every lot of BBCP’s hand sanitizer ever sold, to the Lab
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`for independent testing for benzene.
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`24.
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`The Lab test results confirmed that, in fact, no benzene was detected in the
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`Product, or in any other sample tested.
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`25.
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`26.
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`BBCP’s product has not violated Proposition 65.
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`Defendant has maliciously and frivolously filed suit against Best Brands
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`Sales Company, LLC, and threatened to file suit against BBCP to wrongfully extort
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`money from BBCP for no reason and without any lawful basis for these allegations.
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`DEFENDANT’S TORTIOUS INTERFERENCE WITH
`PLAINTIFF’S BUSINESS RELATIONSHIP
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`BBCP repeats and re-alleges each and every allegation set forth in the
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`27.
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`preceding paragraphs of this Complaint.
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`28.
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`BBCP sells the Product to numerous retail customers.
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 6 of 11
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`29.
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`Defendant’s malicious steps were done in an intentional effort to interfere
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`with BBCP’s business relationship with its retail customers. To that end, Defendant’s
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`actions were also intended to interfere with BBCP’s sales of the Product.
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`30.
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`Upon information and belief, Defendant’s interference was done with
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`malice.
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`31.
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`32.
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`Defendant’s interference was done without lawful justification.
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`Defendant’s interference has caused, and continues to cause damage to
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`BBCP, and specifically BBCP’s relationship with its retail customers.
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`COUNT I
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`(Defendant’s Intentional Interference with Plaintiff’s
`Business Relationship under New York Law)
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`BBCP repeats and re-alleges each and every allegation set forth in the
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`33.
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`preceding paragraphs of this Complaint.
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`34.
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`BBCP has a contractual business relationship with its numerous retail
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`customers for the sale of the Product.
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`35.
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`36.
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`Upon information and belief, Defendant knew of these relationships.
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`Upon information and belief, Defendant has intentionally interfered with
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`those rights, and has done so with malice.
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`37.
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`38.
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`Defendant acted improperly without any support or justification.
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`Defendant has, upon information and belief, intentionally interfered in
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`order to cause damage to BBCP’s business relationship with its retail customers.
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 7 of 11
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`39.
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`This interference by Defendant caused and continues to cause injury to
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`BBCP’s relationship with its retail customers.
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`40.
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`Defendant’s actions constitute tortious interference with business
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`relationship.
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`COUNT II
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`(Defendant’s Intentional Interference with Prospective
`Economic Advantage under California Law)
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`41.
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`BBCP repeats and re-alleges each and every allegation set forth in the
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`preceding paragraphs of this Complaint.
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`42.
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`There existed an economic relationship between BBCP and its retail
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`customers that was beneficial to BBCP.
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`43.
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`Upon information and belief, Defendant had knowledge of this
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`relationship between BBCP and its retail customers.
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`44.
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`Defendant committed wrongful conduct by making false and specious
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`claims about the Product.
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`45.
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`Upon information and belief, Defendant knew that this would disrupt the
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`economic relationship between BBCP and its retail customers because of their conduct.
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`46.
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`47.
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`48.
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`advantage.
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`BBCP was harmed by these acts.
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`The wrongful acts by Defendant directly caused harm to BBCP.
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`Defendant’s acts constitute intentional interference with economic
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 8 of 11
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`COUNT III
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`(Defendant’s Intentional Interference with a Contractual Relationship
`under California Law)
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`49.
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`BBCP repeats and re-alleges each and every allegation set forth in the
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`preceding paragraphs of this Complaint.
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`A working contract existed between BBCP and its retail customers.
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`Upon information and belief, Defendant knew about these contractual
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`50.
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`51.
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`relationship.
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`52.
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`Defendant engaged in conduct which hindered performance of the contract
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`and complicated the working relationship between BBCP and its retail customers.
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`53.
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`Upon information and belief, Defendant knew that this would be a likely
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`result to its actions.
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`This act harmed BBCP.
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`It was Defendant’s conduct that directly caused this harm.
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`Defendant’s acts constitute intentional interference with a contractual
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`54.
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`55.
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`56.
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`relationship.
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`COUNT IV
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` (Declaration of Non-Violation of Proposition 65)
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`57.
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` BBCP repeats and re-alleges each and every allegation set forth in the
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`preceding paragraphs of this Complaint.
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 9 of 11
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`58.
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`Defendant has asserted that BBCP’s sale of the Product violates
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`Proposition 65 due to unsafe levels of benzene and has threatened to bring a lawsuit
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`against BBCP and has brought the California Lawsuit against Best Brands Sales
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`Company, LLC.
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`59.
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`An actual, present, and justifiable controversy has arisen between
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`Defendant and BBCP.
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`60.
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`BBCP engaged the Lab to test the Product. The Lab identified no benzene
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`in any of the 41 samples tested, including the regulatory reserve sample for every lot of
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`the BBCP’s hand sanitizer ever sold. As such, the Product does not violate Prop 65.
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`61.
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`To date, Defendant has not produced any evidence of a lab test that
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`supports its claim.
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`62.
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`BBCP seeks declaratory judgment that sale of the Product does not violate
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`Proposition 65.
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`63.
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`BBCP reserves the right to amend its allegations and/or this Complaint to
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`add any further defenses once further discovery has been conducted in this matter.
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 10 of 11
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`PRAYER FOR RELIEF
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`WHEREFORE, pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§
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`2201 and 2202, Best Brands prays for relief as follows:
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`A.
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`Judgment declaring that BBCP and its affiliates and related companies and
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`their customers and suppliers have the right to use, sell, offer for sale the Star Wars
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`Mandalorian Hand Sanitizer, The Child (Baby Yoda) product, and that sale of the
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`Product does not violate Proposition 65.
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`B.
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`Judgment awarding BBCP its damages for Defendant’s tortious
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`interference with BBCP’s business relationships under New York Law.
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`C.
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`Judgment awarding BBCP its damages for Defendant’s intentional
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`interference with prospective economic advantage under California Law.
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`D.
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`Judgment awarding BBCP its damages for Defendant’s intentional
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`interference with a contractual relationship under California Law.
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`E.
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`Judgment awarding such other relief as this Court may deemed just and
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`proper.
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`Dated: January 31, 2022
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`/s/ Lee A. Goldberg
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`Lee A. Goldberg
`Morris E. Cohen
`Limor Wigder
`GOLDBERG COHEN LLP
`1350 Avenue of the Americas, 3rd Floor
`New York, New York 10019
`(646) 380-2087 (phone)
`(646) 514-2123 (fax)
`LGoldberg@GoldbergCohen.com
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`Case 1:22-cv-00803 Document 1 Filed 01/31/22 Page 11 of 11
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`MCohen@GoldbergCohen.com
`LWigder@GoldbergCohen.com
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