`JASMINE LERNER, on behalf of herself and
`all others similarly situated,
`
`
`v.
`
`CVS HEALTH CORPORATION,
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`Case No: 1:22-CV-01013-LJL
`
`
`ANSWER TO PLAINTIFF’S PUTATIVE
`CLASS ACTION COMPLAINT
`
`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 1 of 29
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`Defendant, CVS Pharmacy, Inc., erroneously sued as CVS Health Corporation
`
`(“Defendant” or “CVS”),1 by and through its counsel of record, answers the Putative Class Action
`
`Complaint (the “Complaint”) of Plaintiff Jasmine Lerner (“Plaintiff”) as follows:
`
`All factual allegations are denied unless expressly admitted. Admissions are limited to
`
`specific facts addressed, and not to any characterizations, conclusions, or inferences from those
`
`facts, or to the relevance of any admission of facts relative to the merits of the action or claims
`
`purportedly set forth in the Complaint.
`
`Much of the Complaint consists of material that goes beyond the required short plain
`
`statement of the case to plead what may or may not ultimately prove to be evidence. At this point,
`
`Defendant is unable to ascertain the authenticity of much of this content; that is the purpose of
`
`discovery. Thus, of necessity, Defendant is not in a position specifically to admit or deny
`
`averments based upon unauthenticated documents, and therefore such averments are denied for
`
`
`1 CVS Pharmacy, Inc., is the correct defendant, but it was erroneously sued as CVS Health
`Corporation. All responses in this Answer are made on behalf of CVS Pharmacy, Inc. In
`responding on behalf of CVS Pharmacy, Inc., Defendant does not waive any rights or arguments
`as to jurisdiction or venue it otherwise has.
`
`1
`
`
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 2 of 29
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`lack of information and belief. Plaintiff’s inferences and conclusions drawn from those
`
`unauthenticated documents are denied. Any acknowledgement that a document speaks for itself is
`
`merely a statement of the obvious, and not an admission as to the authenticity of any document
`
`(except as to documents created, adopted, or used by Defendant), nor an adoption of its contents,
`
`nor an admission of any other fact or conclusion averred by Plaintiff.
`
`FACTS COMMON TO ALL CLAIMS2
`
`1.
`
`Defendant ADMITS that from time to time it has sold CVS After-sun Aloe Vera
`
`Soothing Spray and After-Sun Aloe Vera Moisturizing Gel (the “Products”) through its CVS brand
`
`and ADMITS that Plaintiff is purporting to bring this action on behalf of a putative class, but
`
`DENIES that this lawsuit is appropriate for class certification. Defendant DENIES that the
`
`Products’ labels were false or misleading. Defendant also LACKS KNOWLEDGE OR
`
`INFORMATION as to the accuracy of any of the other statements concerning the purported levels
`
`of benzene in the Products. The remaining allegations in paragraph 1 do not require a response,
`
`because the allegations in paragraph 1 do not state factual allegations, but are legal conclusions,
`
`and Defendant DENIES those allegations on that basis. Any allegations not expressly admitted
`
`are therefore DENIED.
`
`2.
`
`Defendant ADMITS that the articles and/or websites cited in paragraph 2 speak for
`
`themselves and DENIES or LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity of the allegations in paragraph 2 and respectfully refers the Court to
`
`the articles and/or websites cited and quoted by Plaintiff in paragraph 2 for a complete and accurate
`
`statement of their contents. To the extent an allegation does not contain a citation to the
`
`
`2 All of the headings used in Plaintiff’s Complaint are reproduced herein for organizational
`purposes only. To the extent any heading or subheading in Plaintiff’s Complaint purports to make
`any allegation with respect to Defendant, Defendant DENIES those allegations.
`2
`
`
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 3 of 29
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`information Plaintiff is citing/quoting, Defendant LACKS KNOWLEDGE OR INFORMATION
`
`sufficient to form a belief as to the truth or falsity of those allegations. Defendant also LACKS
`
`KNOWLEDGE OR INFORMATION as to the accuracy of any of the articles and/or websites
`
`cited in paragraph 2.
`
`3.
`
`Defendant ADMITS the website cited in paragraph 3 speaks for itself and LACKS
`
`KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the
`
`allegations in paragraph 3 and respectfully refers the Court to the website quoted by Plaintiff in
`
`paragraph 3 for a complete and accurate statement of its contents. Defendant also LACKS
`
`KNOWLEDGE OR INFORMATION as to the accuracy of the website cited in paragraph 3.
`
`4.
`
`Defendant ADMITS the website cited in paragraph 4 speaks for itself and LACKS
`
`KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the
`
`allegations in paragraph 4 and respectfully refers the Court to the website quoted by Plaintiff in
`
`paragraph 4 for a complete and accurate statement of its contents. Defendant also LACKS
`
`KNOWLEDGE OR INFORMATION as to the accuracy of the website cited in paragraph 4.
`
`5.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity of the allegations in paragraph 5.
`
`6.
`
`Defendant ADMITS the article quoted in paragraph 6 speaks for itself and LACKS
`
`KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the
`
`allegations in paragraph 6 and respectfully refers the Court to the article quoted by Plaintiff in
`
`paragraph 6 for a complete and accurate statement of its contents. Defendant also LACKS
`
`KNOWLEDGE OR INFORMATION as to the accuracy of the article cited in this paragraph, and
`
`LACKS KNOWLEDGE OR INFORMATION as to the truth or falsity of the remaining allegations
`
`in paragraph 6.
`
`
`
`3
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 4 of 29
`
`7.
`
`Defendant ADMITS the article cited in paragraph 7 speaks for itself and LACKS
`
`KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the
`
`allegations in paragraph 7 and respectfully refers the Court to the article cited by Plaintiff in
`
`paragraph 7 for a complete and accurate statement of its contents. Defendant also LACKS
`
`KNOWLEDGE OR INFORMATION as to the accuracy of the article cited in this paragraph, and
`
`LACKS KNOWLEDGE OR INFORMATION as to the accuracy of the test studies conducted by
`
`third-party Valisure. Defendant further DENIES that all lots of its Products were tested by Valisure
`
`and further DENIES that even all of the lots Valisure did test showed any benzene. Plaintiff does
`
`not allege that the lot of the particular product she bought has been tested by Valisure and shown
`
`to contain any amount of benzene.
`
`8.
`
`Defendant ADMITS that it halted the sale of the Products on or around July 15,
`
`2021, and ADMITS that the article quoted in paragraph 8 speaks for itself. Defendant LACKS
`
`KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the
`
`article quoted by Plaintiff in paragraph 8 and respectfully refers the Court to the article quoted by
`
`Plaintiff in paragraph 8 for a complete and accurate statements of its contents. Defendant further
`
`DENIES that all lots of its Products were tested by Valisure and further DENIES that even all of
`
`the lots Valisure did test showed any benzene.
`
`9.
`
`Defendant ADMITS that benzene is not listed as an ingredient on the Products’
`
`labels, or in any advertising or website promoting the Products, but Defendant DENIES that its
`
`Products’ labels, advertisements or websites promoting the Products are false or misleading in any
`
`way.
`
`10.
`
`The allegations in paragraph 10 do not require a response, because the allegations
`
`in paragraph 10 do not state factual allegations, but are legal conclusions, for which no response
`
`
`
`4
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 5 of 29
`
`is required. To the extent a response is required, Defendant ADMITS that the website cited by
`
`Plaintiff in paragraph 10 speaks for itself, but LACKS KNOWLEDGE OR INFORMATION
`
`sufficient to form a belief as to the truth or falsity of the website quoted by Plaintiff in paragraph
`
`10 and respectfully refers the Court to the website quoted by Plaintiff in paragraph 10 for a
`
`complete and accurate statement of its contents. Defendant also DENIES that the statute cited by
`
`Plaintiff in paragraph 10 (21 U.S.C. § 361) contains the language quoted by Plaintiff in paragraph
`
`10, and states that the statute speaks for itself.
`
`11.
`
`The allegations in paragraph 11 do not require a response, because the allegations
`
`in paragraph 11 do not state factual allegations, but are legal conclusions, for which no response
`
`is required.
`
`12.
`
`The allegations in paragraph 12 do not require a response, because the allegations
`
`in paragraph 12 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required as to some of the allegations,
`
`Defendant DENIES that it disregarded any laws and regulations and DENIES that it did not take
`
`reasonable efforts to test its Products. Defendant further LACKS KNOWLEDGE OR
`
`INFORMATION sufficient to form a belief as to the truth or falsity of third-party Valisure’s
`
`purported testing results. Defendant ADMITS that its Products’ labels, advertising, packaging
`
`and/or marketing materials did not list benzene as an ingredient, but DENIES that its Products’
`
`labels, advertising, packaging, and/or marketing materials were misleading in any way. Any other
`
`allegation not expressly admitted or denied does not require a response, because it is a legal
`
`conclusion and argument for which no response is required, and it is therefore DENIED.
`
`13.
`
`The allegations in paragraph 13 do not require a response, because the allegations
`
`in paragraph 13 do not state factual allegations, but are legal conclusions and arguments, for which
`
`
`
`5
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 6 of 29
`
`no response is required. To the extent a response is required, Defendant DENIES the allegations
`
`in paragraph 13 and DENIES that it did not fulfill any quality assurance obligations.
`
`14.
`
`The allegations in paragraph 14 do not require a response, because the allegations
`
`in paragraph 14 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required, Defendant DENIES the allegations
`
`in paragraph 14 and DENIES that it did not adequately test the Products.
`
`15.
`
`16.
`
`Defendant DENIES the allegations in paragraph 15.
`
`The allegations in paragraph 16 do not require a response, because the allegations
`
`in paragraph 16 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required, Defendant ADMITS that benzene is
`
`classified as a Group 1 compound by the WHO and the IARC but DENIES the remaining
`
`allegations in paragraph 16.
`
`17.
`
`The allegations in paragraph 17 do not require a response, because the allegations
`
`in paragraph 17 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required, Defendant DENIES the allegations
`
`in paragraph 17, and DENIES that the Products are adulterated and/or misbranded. Defendant
`
`further DENIES that all lots of its Products were tested by Valisure and further DENIES that even
`
`all of the lots Valisure did test showed any benzene, even according to Valisure.
`
`18.
`
`The allegations in paragraph 18 do not require a response, because the allegations
`
`in paragraph 18 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required, Defendant DENIES the allegations
`
`in paragraph 18, and DENIES that the Products are misbranded or that their labeling is false or
`
`
`
`6
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 7 of 29
`
`misleading. Defendant further DENIES that all lots of its Products were tested by Valisure and
`
`further DENIES that even all of the lots Valisure did test showed any benzene.
`
`19.
`
`The allegations in paragraph 19 do not require a response, because the allegations
`
`in paragraph 19 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required as to some of the allegations in
`
`paragraph 19, Defendant ADMITS that Plaintiff does not bring claims under the FDCA in this
`
`Action, and Admits that Plaintiff purports to bring state law causes of Action against Defendant,
`
`but DENIES that Plaintiff’s causes of action have any merit. Defendant further DENIES that the
`
`Products were adulterated or misbranded in any way.
`
`20.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity of the allegations concerning Plaintiff’s alleged purchase of the
`
`Products and whether Plaintiff would have purchased the Products, and Defendant DENIES those
`
`allegations on that basis. The remaining allegations in paragraph 20 do not require a response,
`
`because they do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required.
`
`21.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity of the allegations in paragraph 21.
`
`22.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity of the allegations in paragraph 22 concerning Plaintiff and putative
`
`class member(s) alleged purchases of the Products and whether Plaintiff or the putative class
`
`member(s) would have purchased the Products and/or what they would have paid for the Products,
`
`and Defendant DENIES those allegations on that basis. Defendant further DENIES that it omitted
`
`
`
`7
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 8 of 29
`
`facts from Plaintiff or the putative class member(s). Defendant further DENIES that this lawsuit
`
`is appropriate for class certification.
`
`23.
`
`The allegations in paragraph 23 do not require a response, because the allegations
`
`in paragraph 23 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required as to some of the allegations in
`
`paragraph 23, Defendant DENIES that the Products were adulterated, and DENIES that Plaintiff
`
`and any putative class member(s) were injured. Defendant further DENIES that all lots of its
`
`Products were tested by Valisure and further DENIES that even all of the lots Valisure did test
`
`showed any benzene. Defendant further DENIES that this lawsuit is appropriate for class
`
`certification.
`
`24.
`
`The allegations in paragraph 24 do not require a response, because the allegations
`
`in paragraph 24 do not state factual allegations, but are legal conclusions and arguments, for which
`
`no response is required. To the extent a response is required, Defendant LACKS KNOWLEDGE
`
`OR INFORMATION sufficient to form a belief as to the truth or accuracy of what the Plaintiff
`
`and the putative class member(s) bargained for. Further, Defendant DENIES that this lawsuit is
`
`appropriate for class certification.
`
`25.
`
`The allegations in paragraph 25 do not require a response, because the allegations
`
`in paragraph 25 do not state factual allegations, but are legal conclusions, for which no response
`
`is required, and Defendant DENIES them on that basis. To the extent a response is required,
`
`Defendant DENIES that Plaintiff is entitled to damages, and DENIES that this lawsuit is
`
`appropriate for class certification.
`
`26.
`
`Defendant ADMITS that Plaintiff purports to bring this lawsuit individually and on
`
`behalf of members of purported class(s) but DENIES that this case is appropriate for class action
`
`
`
`8
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 9 of 29
`
`treatment. The remaining allegations in paragraph 26 do not require a response, because the
`
`allegations assert contentions of law rather than factual allegations, for which no response is
`
`required. Defendant DENIES them on that basis.
`
`THE PARTIES
`
`27.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity regarding Plaintiff’s residency, when or where Plaintiff allegedly
`
`purchased Defendant’s After-Sun Aloe Vera Soothing Spray Product, whether Plaintiff reviewed
`
`or understood the Product’s label, and whether Plaintiff would have purchased the Product, and
`
`therefore Defendant DENIES those allegations on that basis. The allegations concerning whether
`
`Plaintiff relied on the Product’s labels, and whether they were the basis of the bargain do not
`
`require a response because these allegations assert contentions of law, rather than state factual
`
`allegations, but to the extent a response is required Defendant DENIES those allegations in
`
`paragraph 27. Defendant DENIES the remaining allegations in paragraph 27, and Defendant
`
`further DENIES that all lots of its Products were tested by Valisure and further DENIES that even
`
`all of the lots Valisure did test showed any benzene, even according to Valisure.
`
`28.
`
`Defendant, CVS Pharmacy, Inc., erroneously sued as CVS Health Corporation
`
`ADMITS that it is a corporation with its headquarters in Woonsocket, Rhode Island and its
`
`principal place of business at One CVS Drive Woonsocket, Rhode Island 02895. Defendant
`
`further ADMITS that it markets and sells the Products in retail locations and online in the state of
`
`New York and nationwide. Any allegation not expressly admitted in paragraph 28 is DENIED.
`
`JURISDICTION AND VENUE
`
`29.
`
`The allegations in paragraph 29 do not require a response, because the allegations
`
`assert contentions of law rather than state factual allegations. To the extent a response is required
`
`
`
`9
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 10 of 29
`
`Defendant ADMITS that the legal recitations in paragraph 29 are sufficient to establish this Court’s
`
`subject matter jurisdiction under the Class Action Fairness Act of 2005, however, the Complaint
`
`alleges no facts sufficient to establish the amount in controversy, and on that basis Defendant
`
`DENIES that this Court has subject matter jurisdiction.
`
`30.
`
`The allegations in paragraph 30 do not require a response, because the allegations
`
`assert contentions of law rather than state factual allegations. To the extent a response is required
`
`Defendant ADMITS it sold the Products in this District and LACKS KNOWLEDGE OR
`
`INFORMATION sufficient to form a belief as to whether Plaintiff purchased the Products in this
`
`District. Defendant DENIES the remaining allegations in paragraph 30.
`
`31.
`
`The allegations in paragraph 31 do not require a response, because the allegations
`
`assert contentions of law rather than factual allegations. To the extent a response is required,
`
`Defendant ADMITS that the facts averred in the Complaint are sufficient to establish venue in this
`
`Court and Defendant DENIES the remaining allegations in paragraph 31.
`
`CLASS REPRESENTATION ALLEGATIONS
`
`32.
`
`Defendant ADMITS that Plaintiff seeks to represent a putative class of persons who
`
`allegedly purchased the Product, but Defendant LACKS KNOWLEDGE OR INFORMATION
`
`sufficient to form a belief as to the truth or falsity of the allegations concerning Plaintiff’s and the
`
`putative class members’ alleged purchase(s), and Defendant DENIES those allegations on that
`
`basis. The allegations concerning the persons purported to be included in the putative class are
`
`legal conclusions to which no response is required. Defendant DENIES that this lawsuit is
`
`appropriate for class certification and DENIES the remaining allegations in paragraph 32.
`
`33.
`
`Defendant ADMITS that Plaintiff seeks to represent a putative subclass of persons
`
`who allegedly purchased the Product in New York, but Defendant LACKS KNOWLEDGE OR
`
`
`
`10
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 11 of 29
`
`INFORMATION sufficient to form a belief as to the truth or falsity of the allegations concerning
`
`Plaintiff’s and the putative subclass members’ alleged purchase(s), and Defendant DENIES those
`
`allegations on that basis. The allegations concerning the persons purported to be included in the
`
`putative subclass are legal conclusions to which no response is required. Defendant DENIES that
`
`this lawsuit is appropriate for class certification and DENIES the remaining allegations in
`
`paragraph 33.
`
`34.
`
`The allegations in paragraph 34 do not require a response, because the allegations
`
`assert contentions of law rather than state factual allegations, and Defendant DENIES those
`
`allegations on that basis. Defendant further DENIES that this lawsuit is appropriate for class
`
`certification.
`
`35.
`
`The allegations in paragraph 35 do not require a response, because the allegations
`
`assert contentions of law rather than state factual allegations, and Defendant DENIES those
`
`allegations on that basis. Defendant LACKS KNOWLEDGE OR INFORMATION as to the truth
`
`or falsity of any additional information that may or may not be obtained by Plaintiff, and DENIES
`
`those allegations on that basis. Defendant further DENIES that this lawsuit is appropriate for class
`
`certification.
`
`36.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the persons who Plaintiff seeks to represent and DENIES those allegations on that
`
`basis. Defendant further DENIES that this lawsuit is appropriate for class certification.
`
`37.
`
`The allegations in paragraph 37 do not require a response, because the allegations
`
`assert contentions of law rather than state factual allegations, and Defendant DENIES those
`
`allegations on that basis. Defendant further DENIES that this lawsuit is appropriate for class
`
`certification and DENIES the remaining allegations in paragraph 37.
`
`
`
`11
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 12 of 29
`
`38.
`
`The allegations in paragraph 38 do not require a response, because the allegations
`
`assert contentions of law rather than state factual allegations, and Defendant DENIES those
`
`allegations on that basis. Defendant further DENIES that Plaintiff and the putative class
`
`member(s) suffered any injury or damage and DENIES the remaining allegations in paragraph 38.
`
`Defendant further DENIES that this lawsuit is appropriate for class certification.
`
`39.
`
`The allegations in paragraph 39 do not require a response, because the allegations
`
`assert contentions of law and argument rather than state factual allegations, and Defendant
`
`DENIES those allegations on that basis. Defendant further DENIES that its marketing,
`
`advertising, packaging, labeling, and other promotional materials for the Products were deceptive
`
`and also DENIES that Plaintiff and the putative class member(s) suffered any injury or damage.
`
`Defendant further DENIES that this lawsuit is appropriate for class certification. Defendant
`
`DENIES the remaining allegations in paragraph 39.
`
`40.
`
`The allegations in paragraph 40 do not require a response, because the allegations
`
`assert contentions of law and argument rather than state factual allegations, and Defendant
`
`DENIES
`
`those allegations on
`
`that basis.
`
` Defendant LACKS KNOWLEDGE OR
`
`INFORMATION sufficient to form a belief as to Plaintiff’s intent in prosecuting this action, and
`
`Defendant DENIES those allegations on that basis. Defendant further DENIES that this lawsuit
`
`is appropriate for class certification, and DENIES the remaining allegations in paragraph 40.
`
`41.
`
`The allegations in paragraph 41 do not require a response, because the allegations
`
`assert contentions of law and argument rather than state factual allegations, and Defendant
`
`DENIES
`
`those allegations on
`
`that basis.
`
` Defendant LACKS KNOWLEDGE OR
`
`INFORMATION sufficient to form a belief as to Plaintiff or each putative class members’
`
`resources, and therefore Defendant DENIES those allegations in paragraph 41. Defendant further
`
`
`
`12
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 13 of 29
`
`DENIES that any putative class members suffered any damage and DENIES that this lawsuit is
`
`appropriate for class certification. Except as otherwise admitted, Defendant DENIES the
`
`remaining allegations in paragraph 41.
`
`42.
`
`The allegations of paragraph 42 do not require a response, because the allegations
`
`assert contentions of law and argument rather than state factual allegations, and Defendant
`
`DENIES those allegations on that basis. Defendant further DENIES that this lawsuit is appropriate
`
`for class certification.
`
`CAUSES OF ACTION
`
`COUNT I
`Breach of Implied Warranty
`(On Behalf of Plaintiff And The Nationwide Class and New York Subclass)
`
`43. With respect to paragraph 43, Defendant incorporates by reference paragraphs 1-
`
`42 of this Answer as though fully restated.
`
`44.
`
`The allegations in paragraph 44 do not require a response, because the allegations
`
`assert contentions of law rather than factual allegations. To the extent a response to the allegations
`
`is required, Defendant ADMITS that Plaintiff purports to bring this claim individually and on
`
`behalf of members of class(s) but DENIES that this case is appropriate for class action treatment.
`
`Defendant further DENIES that any New York Subclass is appropriate.
`
`45.
`
`The allegations in paragraph 45 do not require a response, because the allegations
`
`assert contentions of law rather than factual allegations. To the extent a response to the allegations
`
`is required, Defendant admits that products are sold at CVS retail outlets and on line, but DENIES
`
`it made any misrepresentations about the Products. Defendant DENIES all of the remaining
`
`allegations in paragraph 45.
`
`
`
`13
`
`

`

`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 14 of 29
`
`46.
`
`The allegations in paragraph 46 do not require a response, because the allegations
`
`assert contentions of law and argument rather than factual allegations. To the extent a response to
`
`the allegations is required, Defendant DENIES that it breached any implied warranty or that the
`
`Products were defective. Defendant further DENIES that this lawsuit is appropriate for class
`
`action treatment.
`
`47.
`
`The allegations in paragraph 47 do not require a response, because the allegations
`
`assert contentions of law and argument rather than factual allegations. To the extent a response to
`
`the allegations is required, Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to
`
`form a belief as to the truth or falsity of whether Plaintiff or any putative class member(s) acted in
`
`reliance on Defendant’s skill and judgment, and therefore DENIES them. Defendant further
`
`DENIES that this lawsuit is appropriate for class action treatment, and DENIES any remaining
`
`allegations in paragraph 47.
`
`48.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity of whether Plaintiff or any putative class member(s) altered the
`
`Products, and therefore Defendant DENIES the allegations in paragraph 48.
`
`49.
`
`Defendant DENIES the allegations in paragraph 49 and Defendant LACKS
`
`KNOWLEDGE OR INFORMATION sufficient to form a belief as to what happened to the
`
`Products after they left Defendant’s control.
`
`50.
`
`Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to form a
`
`belief as to the truth or falsity of whether Plaintiff or any putative class member(s) would test the
`
`Products, and therefore DENIES the allegations in paragraph 50.
`
`51.
`
`Defendant DENIES the allegations in paragraph 51.
`
`
`
`14
`
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`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 15 of 29
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`52.
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`The allegations in paragraph 52 do not require a response, because the allegations
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`assert contentions of law and argument rather than factual allegations. To the extent a response to
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`the allegations is required, Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to
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`form a belief as to the truth or falsity of whether Plaintiff or any putative class member(s) would
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`or would not have purchased the Product, and Defendant DENIES those allegations in paragraph
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`52 on that basis. Defendant further DENIES that Plaintiff or any putative class member(s) have
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`been injured or harmed. Defendant DENIES the remaining allegations in paragraph 52. Defendant
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`further DENIES that this lawsuit is appropriate for class certification.
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`53.
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`The allegations in paragraph 53 do not require a response, because the allegations
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`assert contentions of law rather than factual allegations, for which no response is required. To the
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`extent a response is required, Defendant ADMITS that it received a letter from Plaintiff that was
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`dated February 3, 2022 but DENIES the remaining allegations in paragraph 53 and DENIES that
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`a true and correct copy of Plaintiff’s counsel’s letter is attached to the Complaint.
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`COUNT II
`Unjust Enrichment
`(On Behalf of Plaintiff And The Nationwide Class And New York Subclass)
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`54. With respect to paragraph 54, Defendant incorporates by reference paragraphs 1-
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`53 of this Answer as though fully restated.
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`55.
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`The allegations in paragraph 55 do not require a response, because the allegations
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`assert contentions of law rather than factual allegations. To the extent a response to the allegations
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`is required, Defendant ADMITS that Plaintiff purports to bring this claim individually and on
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`behalf of members of class(s) but DENIES that this case is appropriate for class action treatment.
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`Defendant further DENIES that any New York Subclass is appropriate.
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`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 16 of 29
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`56.
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`The allegations in paragraph 56 do not require a response, because the allegations
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`assert contentions of law and argument rather than factual allegations. To the extent a response to
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`the allegations is required, Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to
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`form a belief as to whether Plaintiff and the putative class member(s) purchased the Products.
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`Defendant DENIES the remaining allegations in paragraph 56.
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`57.
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`The allegations in paragraph 57 do not require a response, because the allegations
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`assert contentions of law and argument rather than factual allegations. To the extent a response to
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`the allegations is required, Defendant DENIES that it retained money in an unjust and inequitable
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`way, DENIES that the Products were defected, and DENIES that the Plaintiff or any putative class
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`member(s) were injured. Defendant LACKS KNOWLEDGE OR INFORMATION sufficient to
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`form a belief as to the truth or falsity of whether Plaintiff or the putative class member(s) would
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`have purchased the Product. Defendant further DENIES that this case is appropriate for class
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`action treatment and DENIES the remaining allegations in paragraph 57.
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`58.
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`The allegations in paragraph 58 do not require a response, because the allegations
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`assert contentions of law and argument rather than factual allegations. To the extent a response to
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`the allegations is required, Defendant ADMITS that certain Products were recalled, but DENIES
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`that its retention of money is unjust or inequitable. Defendant further DENIES on information and
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`belief that Plaintiff ever requested a refund from Defendant and Defendant DENIES that it failed
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`to refund money to any purchaser who requested a refund. Defendant DENIES the remaining
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`allegations in paragraph 58 and DENIES that this case is appropriate for class action treatment.
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`59.
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`The allegations in paragraph 59 do not require a response, because the allegations
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`assert contentions of law and argument rather than factual allegations. To the extent a response to
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`Case 1:22-cv-01013-LJL Document 11 Filed 04/04/22 Page 17 of 29
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`the allegations is required, Defendant DENIES them, and DENIES that this case is appropriate for
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`class action treatment.
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`COUNT III
`Violation of New York’s General Business Law § 349
`(On Behalf Of Plaintiff And The New York S