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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`MANHATTAN COURTHOUSE
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`Alex Morales, individually and on behalf of all
`others similarly situated,
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`1:22-cv-10872
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`Plaintiff,
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`- against -
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`Class Action Complaint
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`Apple, Inc.,
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations about Plaintiff, which
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`are based on personal knowledge:
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`1. Apple, Inc. (“Defendant”) manufactures, markets, and sells the Apple Watch,
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`purporting to measure the oxygen level of a wearer’s blood directly from their wrist (“Product”).
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`2.
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`The interest in blood oxygen levels extends began at least two hundred years ago hot
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`air balloon flyers and mountain climbers needed to ensure survival.
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`3.
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`4.
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`Later, these groups included astronauts, pilots and divers.
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`The early devices, were used in a person’s ear, used light-based technology or
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`spectrophotometry to measure oxygen levels.
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`5.
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`In the 1970s, a fingertip oximeter was invented that was easier to use than its
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`predecessors.
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`6.
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`For decades, there have been reports that such devices were significantly less
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`accurate in measuring blood oxygen levels based on skin color.
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`7.
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`The “real world significance” of this bias lay unaddressed until the middle of the
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`Coronavirus pandemic, which converged with a greater awareness of structural racism which
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`exists in many aspects of society.
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`Case 1:22-cv-10872 Document 1 Filed 12/24/22 Page 2 of 8
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`8.
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`Researchers confirmed the clinical significance of racial bias of pulse oximetry using
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`records of patients taken during and before the pandemic.
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`9.
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`The conclusion was that “reliance on pulse oximetry to triage patients and adjust
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`supplemental oxygen levels may place Black patients at increased risk for hypoxemia.”
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`10. Since health care recommendations are based on readings of their blood oxygen
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`levels, white patients are more able to obtain care than those with darker skin when faced with
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`equally low blood oxygenation.
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`11. While traditional fingertip pulse oximeters are capable of measuring blood oxygen
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`levels and heart rate, wrist-worn devices like the Product determine heart rate, as blood oxygen
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`measurements from the wrist are believed inaccurate.
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`12. Algorithms designed for fingertip sensing are inappropriate when based on wrist
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`measurements, and can lead to over 90% of readings being unusable.
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`13. Though one recent study concluded the Product was able to detect reduced blood
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`oxygen saturation in comparison to medical-grade pulse oximeters this fails to recognize the
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`failings of pulse oximetry in general with respect to persons of color.
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`14. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than $400, excluding tax and sales.
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`Jurisdiction and Venue
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`15.
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`Jurisdiction is based on the Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C.
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`§ 1332(d)(2).
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`16. The aggregate amount in controversy exceeds $5 million, including any statutory and
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`punitive damages, exclusive of interest and costs.
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`17. Plaintiff is a citizen of New York.
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`18. Defendant is a California corporation with a principal place of business in California.
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`19. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen.
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`20. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold with the representations described here from thousands of stores and over
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`the internet, in the States Plaintiff seeks to represent.
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`21. Venue is in this District with assignment to the Manhattan Courthouse because
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`Plaintiff resides in New York County and substantial part of the events or omissions giving rise to
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`these claims occurred here, including the purchase and/or awareness of the issues identified.
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`Parties
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`22. Plaintiff Alex Morales is a citizen of New York, New York County, New York.
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`23. Defendant Apple, Inc. is a California corporation with a principal place of business
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`in Cupertino, Santa Clara County, California.
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`24. Plaintiff purchased the Product between 2020 and 2021.
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`25. Plaintiff was aware the Product purported to measure blood oxygen levels and he
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`believed it did this without regard to skin tone, which was relevant to him based on his skin tone.
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`26. Plaintiff expected the Product would not incorporate biases and defects of pulse
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`oximetry with respect to persons of darker skin tone.
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`27. Plaintiff bought the Product at or exceeding the above-referenced price.
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`28. Plaintiff paid more for the Product than he would have had he known the
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`representations and omissions were false and misleading, or would not have purchased it.
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`29. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`Case 1:22-cv-10872 Document 1 Filed 12/24/22 Page 4 of 8
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`Class Allegations
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`30. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`New York Class: All persons in the State of New
`York who purchased the Product during the statutes
`of limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of North Dakota, Wyoming, Idaho,
`Alaska, Iowa, Mississippi, Arkansas, North Carolina
`and Utah who purchased the Product during the
`statutes of limitations for each cause of action
`alleged.
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`31. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`32. Plaintiff’s claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`33. Plaintiff is an adequate representative because his interests do not conflict with other
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`members.
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`34. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`35.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`36. Plaintiff’s counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`New York General Business Law (“GBL”) §§ 349 and 350
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`37. Plaintiff incorporates by reference all preceding paragraphs.
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`38. Plaintiff saw and relied on the label and expected the Product did not incorporate
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`Case 1:22-cv-10872 Document 1 Filed 12/24/22 Page 5 of 8
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`biases and defects of pulse oximetry with respect to persons of darker skin tone.
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`39. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Violation of State Consumer Fraud Acts
` (Consumer Fraud Multi-State Class)
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`40. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`41. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`42. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct, which they did, suffering damages.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`43. The Product was manufactured, identified, marketed, and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff that it did not incorporate biases and defects of pulse
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`oximetry with respect to persons of darker skin tone.
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`44. Defendant directly marketed the Product to Plaintiff through its advertisements and
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`marketing, through various forms of media, on the packaging, in print circulars, direct mail,
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`product descriptions, and targeted digital advertising.
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`45. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet their needs and desires, which
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`was a device that did not consider a person’s ethnicity and skin color for adequate functioning.
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`46. The representations about the Product were conveyed in writing and promised it
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`would be defect-free, and Plaintiff understood this meant it did not incorporate biases and defects
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`of pulse oximetry with respect to persons of darker skin tone.
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`47. Defendant’s representations affirmed and promised that it did not incorporate biases
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`and defects of pulse oximetry with respect to persons of darker skin tone.
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`48. Defendant described the Product so Plaintiff believed it did not incorporate biases
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`and defects of pulse oximetry with respect to persons of darker skin tone, which became part of
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`the basis of the bargain that it would conform to its affirmations and promises.
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`49. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`50. This duty is based on Defendant’s outsized role in the market for this type of product,
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`custodian of the Apple brand, known for its support of progressive causes.
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`51. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`52. Plaintiff provided or provides notice to Defendant, its agents, representatives,
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`retailers, and their employees that it breached the Product’s warranties.
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`53. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`54. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`55. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container, or label, because it was
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`Case 1:22-cv-10872 Document 1 Filed 12/24/22 Page 7 of 8
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`marketed as if it did not incorporate biases and defects of pulse oximetry with respect to persons
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`of darker skin tone.
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`56. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because he expected that it did
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`not incorporate biases and defects of pulse oximetry with respect to persons of darker skin tone,
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`and he relied on its skill and judgment to select or furnish such a suitable product.
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`Fraud
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`57. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it did not incorporate biases and defects of pulse oximetry with respect to persons of darker
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`skin tone.
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`Unjust Enrichment
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`58. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of Plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Certifying Plaintiff as representative and the undersigned as counsel for the classes;
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`2. Awarding monetary, statutory and/or punitive damages and interest;
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`3. Awarding costs and expenses, including reasonable attorney and expert fees; and
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`4. Other and further relief as the Court deems just and proper.
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`Dated: December 24, 2022
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`Respectfully submitted,
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`/s/ Spencer Sheehan
`Sheehan & Associates, P.C.
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`Case 1:22-cv-10872 Document 1 Filed 12/24/22 Page 8 of 8
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`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`(516) 268-7080
`spencer@spencersheehan.com
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