throbber
Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 1 of 18
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`CAITLIN PEYTON, individually and on
`behalf of all others similarly situated,
`
`
`
`Civil Action No.: 7:21-cv-05880-VB
`
`FIRST AMENDED CLASS ACTION
`COMPLAINT
`
`JURY TRIAL DEMANDED
`
`Hon. Vincent L. Briccetti
`
`v.
`
`
`WALMART, INC.,
`
`
`
`
`
`Plaintiff,
`
`
`Defendant.
`
`
`Plaintiff Caitlin Peyton (“Plaintiff”) brings this action on behalf of herself and all others
`
`similarly situated against Defendant Walmart, Inc. (“Defendant”). Plaintiff makes the following
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`allegations pursuant to the investigation of her counsel and based upon information and belief,
`
`except as to the allegations specifically pertaining to herself, which are based on personal
`
`knowledge.
`
`NATURE OF THE ACTION
`
`1.
`
`This is a putative class action lawsuit on behalf of purchasers of Equate Oil-Free
`
`cosmetic products (collectively, the “Oil-Free Products”)1 against Defendant for harm caused by
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`Defendant’s deceptive, improper or unlawful conduct in the design, marketing, manufacturing,
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`distribution, and/or sale of its Oil-Free Products. The labeling and packaging of the Oil-Free
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`Products contains false and misleading “oil-free” claims (the Oil-Free Claims). This misleads
`
`consumers into believing that the Oil-Free Products contain no oil or oil-inclusive ingredients
`
`even though the Oil-Free products actually do include oil or oil-inclusive ingredients. By doing
`
`
`1 The Equate Oil-Free Products include Equate Beauty Oil Free Facial Moisturizer, Oil-Free
`Acne Wash, and Oil-Free Eye Makeup Remover.
`
`
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`1
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 2 of 18
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`so, Defendant is able to charge a substantial price premium for its Oil-Free Products on account
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`of the false and misleading Oil-Free Claims.
`
`2.
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`Oil-Free cosmetics are desired by consumers because “oil-free” products
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`purportedly nourish and renew skin without clogging pores, causing breakouts, or making
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`consumers’ skin visibly oily.
`
`3.
`
`Defendant has engage in widespread and deceptive advertising of the Oil-Free
`
`Products by claiming they are “oil-free.” However, contrary to Defendant’s representations, the
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`Oil-Free Products do, in fact, contain oil.
`
`4.
`
`Plaintiff, the Class, and Subclass Members purchased Oil-Free Products designed,
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`marketed manufactured, distributed, and sold by Defendant as “oil-free.” Further Plaintiff, the
`
`Class, and Subclass Members relied to their detriment on Defendant’s representation that the Oil-
`
`Free Product are “oil-free.” Plaintiff and Class and Subclass Members would not have paid to
`
`purchase Defendant’s Oil-Free Products – or would not have paid as much as they did to
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`purchase them – had they known that they are not, in fact, “oil-free”. Plaintiff and Class and
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`Subclass Members thus suffered monetary damages as a result of Defendant’s deceptive and
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`false representations.
`
`PARTIES
`
`5.
`
`Plaintiff Caitlin Peyton is a citizen of New York, residing in Westbrookville, New
`
`York. In October 2019, Plaintiff Peyton purchased Equate Oil-Free Moisturizer for her personal
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`use for approximately $6.27 from Walmart in Middletown, New York. Prior to her purchase of
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`Equate Oil-Free Moisturizer, Plaintiff Peyton reviewed the product’s labeling and packaging and
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`saw that the Equate Oil-Free Moisturizer was purportedly “oil-free.” Plaintiff Peyton relied on
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`that labeling and packaging to choose her moisturizer over comparable products. Plaintiff
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`Peyton saw these representations prior to, and at the time of purchase, and understood them as
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`2
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 3 of 18
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`representations and warranties that her Equate Oil-Free Moisturizer was “oil-free.” Plaintiff
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`Peyton relied on these representations and warranties in deciding to purchase her Equate Oil-
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`Free Moisturizer. Accordingly, these representations and warranties were part of the basis of the
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`bargain, in that she would not have purchased Equate Oil-Free Moisturizer on the same terms
`
`had she known these representations were not true. However, Plaintiff Peyton remains interested
`
`in purchasing oil-free products and would consider Equate Oil-Free Moisturizer in the future if
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`Defendant ensured the products were actually oil-free. In making her purchase, Plaintiff Peyton
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`paid a substantial price premium due to the false and misleading Oil-Free Claims. However,
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`Plaintiff Peyton did not receive the benefit of her bargain because her Equate Oil-Free
`
`Moisturizer, in fact, was not “oil-free”. Further, Plaintiff Peyton understood that the purchase
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`came with Defendant’s representation and warranties that her Equate Oil-Free Moisturizer was
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`“oil-free.”
`
`6.
`
`Defendant Walmart, Inc. (“Walmart”) is a corporation organized and existing
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`under the laws of the state of Delaware, with its principal place of business in Little Rock
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`Arkansas. Walmart manufactures, sells, and/or distributes Equate-brand products, and is
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`responsible for the advertising, marketing, trade dress, and packaging of the Oil-Free Products.
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`Walmart manufactured, marketed, and sold the Oil-Free Products during the class period.
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`JURISDICTION AND VENUE
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`7.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C § 1332(d)(2)(a)
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`because this case is a class action where the aggregate claims of all members of the proposed
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`class are in excess of $5,000,000.00, exclusive of interest and costs, there are over 100 members
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`of the putative class, and Plaintiff, as well as most members of the proposed class, are citizens of
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`states different from Defendant.
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`3
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 4 of 18
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`8.
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`This Court has personal jurisdiction over Defendant because Defendant conducts
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`substantial business within New York, such that Defendant has significant, continuous, and
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`pervasive contacts with the State of New York. Defendant is registered to do business in the
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`State of New York. Furthermore, a substantial portion of the events giving rise to Plaintiffs’
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`claims occurred in this State, including Plaintiff’s purchase.
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`9.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant
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`does substantial business in this District and a substantial part of the events giving rise to
`
`Plaintiff’s claims took place within this District.
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`FACTUAL ALLEGATIONS
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`10.
`
`Defendant manufactures, advertises, markets, sells, and/or distributes cosmetic
`
`products throughout New York and the United States under the brand name “Equate.”
`
`11.
`
`At all relevant times, Defendant has marketed its Oil-Free Products in a consistent
`
`and uniform manner. Each of the Oil-Free Products included the Oil-Free Claims when they in
`
`fact contain oil or oil inclusive products:
`
`
`
`
`
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`4
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 5 of 18
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`12.
`
`The Oil-Free Products contain the following oils:
`
`Oil
`Product
`Equate Beauty Oil Free Facial Moisturizer Glycine Soja (Soybean) Sterols, Dimethicone
`Equate Beauty Oil-Free Acne Wash
`Cocamidopropyl betaine
`Equate Beauty Oil-Free Eye Makeup
`Cyclopentasiloxane, Cyclohexasiloxane
`Remover
`
`13.
`
`All of the Oil-Free Products contain oils, but Defendant intentionally advertises
`
`and labels the Oil-Free Products as “oil-free.”
`
`14.
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`Oil is a term that describes materials that are both hydrophobic and lipophilic. Oil
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`can also be classified by the polarity of the substance. Oils can be wholly non-polar such as
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`hydrocarbons or polar, such as fatty acids. Oil comprises the following chemical functional
`
`groups:2
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`a. hydrocarbons (alkalanes, alkenes) – such as squalene (also known as squalene
`
`oil);
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`b. triglycerides – such as glycerol tristate (stearin;
`
`c. esters – such as ester oil;
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`d. fatty acids – such as palmitic acid or cocamidopropyl betaine;
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`e. silicones – such as akyl dimethicone and siloxanes; and
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`f. fatty alcohols – such as sterols.
`
`15.
`
`The above groups can be characterized by the same physical properties, including
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`being less dense than water, more viscous than water, and feeling slick or slippery to the touch.
`
`16.
`
`Soybean sterols i.e. soybean oil can only be created by creating a chemical
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`reaction from soybean oil and distilling the sterols left behind.
`
`
`2 Ton O’Lenick, Polar vs. Nonpolar oils, 2008,
`https://www.cosmeticsandtoiletries.com/research/chemistry/17390254.html (last accessed Jan.
`29, 2021).
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`5
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 6 of 18
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`17.
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`Cocamidopropyl betaine is a fatty acid naturally derived surfactant sourced from
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`coconut or palm kernel oil.
`
`18.
`
`Silicone oils, or Siloxanes, are any liquid polymerize siloxane with organic side
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`chains. This includes Cyclosiloxanes, such as Cyclopentasiloxane and Cyclohexasiloxane,
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`which have high volatility, making them useful in cosmetics. Similarly, Dimethicone is a
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`polysiloxane used as a lubricant and conditioning agent.
`
`19.
`
`Plaintiff would not have been able to understand that the Oil-Free Products
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`contained oil absent an advanced understanding of chemistry.
`
`20.
`
`Defendant’s advertising and marketing of the Oil-Free Products is false and
`
`misleading and omits material information. The Oil-Free Products prominently advertise on the
`
`front label that they are “oil-free.” Consumers reasonably expect that the Oil-Free Products will,
`
`in fact, be “oil-free.” Nowhere on the Oil-Free Product packaging does Defendant inform
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`consumers that the Oil-Free Products contain oil. Consumers, like Plaintiff, would not have been
`
`able to understand that the Oil-Free Products contained oil absent an advanced understanding of
`
`chemistry. Defendant’s misrepresentations and/or omissions violate consumers’ reasonable
`
`expectations and, as alleged herein, and New York’s consumer protection statutes.
`
`21.
`
`Defendant knew or should have known that the Oil-Free Products’ express Oil-
`
`Free Claims were false, deceptive, and misleading, and that Plaintiff, the Class, and Subclass
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`Members would not be able to tell that the Oil-Free Products contained oil absent Defendant’s
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`express disclosure.
`
`22.
`
`Defendant employs professional chemists to create the chemical formulas for the
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`Oil-Free Products. Therefore, Defendant through its employees knew or should have known that
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`the Oil-Free Products contained oils and that by labeling the Products as “oil-free” it was
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`deceiving consumers.
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`6
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 7 of 18
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`23.
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`On information and belief, Defendant, through its employees, did know that the
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`Oil-Free Products contained oils, but chose to include the Oil-Free Claims because they did not
`
`believe their customers would know the difference.
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`24.
`
`Had Defendant not made the false, misleading, and deceptive representations
`
`and/or omissions alleged herein, Plaintiff and Class Members would not have purchased the Oil-
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`Free Products or would not have paid as much as they did for such products. Thus, Plaintiff and
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`Class Members suffered an injury in fact and lost money or property as result of Defendant’s
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`wrongful conduct.
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`CLASS ALLEGATIONS
`
`25.
`
`Plaintiff hereby incorporates by reference and re-allege herein the allegations
`
`contained in all preceding paragraphs of this complaint.
`
`26.
`
`Plaintiff seeks to represent a class defined as all people who purchased any Oil-
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`Free Product that falsely advertised that the product was purportedly “oil-free” during the
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`applicable statute of limitations (the “Class”). Specifically excluded from the Class are
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`Defendant, Defendant’s officers, directors, agents, trustees, parents, children, corporations,
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`trusts, representatives, employees, principals, servants, partners, joint ventures, or entities
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`controlled by Defendant, and its heirs, successors, assigns, or other persons or entities related to
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`or affiliated with Defendant and/or Defendant’s officers and/or directors, the judge assigned to
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`this action, and any member of the judge’s immediate family.
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`27.
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`Plaintiff Caitlin Peyton also seeks to represent a subclass consisting of Class
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`Members who reside in New York (the “New York Subclass”).
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`28.
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`Subject to additional information obtained through further investigation and
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`discovery, the foregoing definitions of the Class and Subclass may be expanded or narrowed by
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`amendment or amended complaint.
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`7
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 8 of 18
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`29.
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`Numerosity. The Class and Subclass Members are geographically dispersed
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`throughout the United States and are so numerous that individual joinder is impracticable. Upon
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`information and belief, Plaintiff reasonably estimate that there are hundreds of thousands of
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`Members in the Class and in the Subclass. Although the precise number of Class and Subclass
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`Members is unknown to Plaintiff, it is known by Defendant and may be determined through
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`discovery.
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`30.
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`Existence and predominance of common questions of law and fact. Common
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`questions of law and fact exist as to all Members of the Class and Subclass and predominate over
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`any questions affecting only individual Class or Subclass members. These common legal and
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`factual questions include, but are not limited to, the following:
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`(a) Whether Defendant made false and/or misleading statements to the
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`consuming public concerning the oil content of the Oil-Free Products;
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`(b) Whether Defendant omitted material information to the consuming public
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`concerning the oil content of the Oil-Free Products;
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`(c) Whether Defendant’s labeling and packaging for the Oil-Free Products is
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`misleading and/or deceptive;
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`(d) Whether Defendant engaged in unfair, fraudulent, or unlawful business
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`practices with respect to the advertising and sale of the Oil-Free Products;
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`(e) Whether Defendant’s representations concerning the Oil-Free Products
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`were likely to deceive a reasonable consumer;
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`(f) Whether Defendant’s omissions concerning the Oil-Free Products were
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`likely to deceive a reasonable consumer;
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`(g) Whether Defendant represented to consumers that the Oil-Free Products
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`have characteristics, benefits, or qualities that they do not have;
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 9 of 18
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`(h) Whether Defendant advertised the Oil-Free Products with the intent to sell
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`them not as advertised;
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`(i) Whether Defendant falsely advertised the Oil-Free Products;
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`(j) Whether Defendant made and breached express and/or implied warranties
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`to Plaintiff and the Class and Subclass Members about the Oil-Free Products;
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`(k) Whether Defendant’s representations, omissions, and/or breaches caused
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`injury to Plaintiff and the Class and Subclass Members; and
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`(l) Whether Plaintiff and the Class and Subclass Members are entitled to
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`damages.
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`31.
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`Typicality. Plaintiff’s claims are typical of the claims of the other Members of
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`the Class and Subclass in that, among other things, all Class and Subclass Members were
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`deceived (or reasonably likely to be deceived) in the same way by Defendant’s false and
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`misleading advertising claims about the oil content of the Oil-Free Products. All Class and
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`Subclass Members were comparably injured by Defendant’s wrongful conduct as set forth
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`herein. Further, there are no defenses available to Defendant that are unique to Plaintiff.
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`32.
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`Adequacy of Representation. Plaintiff will fairly and adequately protect the
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`interests of the Members of the Class and Subclass. Plaintiff has retained counsel that is highly
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`experienced in complex consumer class action litigation, and Plaintiff intends to vigorously
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`prosecute this action on behalf of the Class and Subclass. Furthermore, Plaintiff has no interests
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`that are antagonistic to those of the Class or Subclass.
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`33.
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`Superiority. A class action is superior to all other available means for the fair
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`and efficient adjudication of this controversy. The damages or other financial detriment suffered
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`by individual Class and Subclass Members are relatively small compared to the burden and
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`expense of individual litigation of their claims against Defendant. It would, thus, be virtually
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 10 of 18
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`impossible for Class or Subclass Members to obtain effective redress on an individual basis for
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`the wrongs committed against them. Even if Class or Subclass Members could afford such
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`individualized litigation, the court system could not. Individualized litigation would create the
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`danger of inconsistent or contradictory judgments arising from the same set of facts. It would
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`also increase the delay and expense to all parties and the court system from the issues raised by
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`this action. The class action device provides the benefits of adjudication of these issues in a
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`single proceeding, economies of scale, and comprehensive supervision by a single court, and
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`presents no unusual management difficulties under the circumstances.
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`34.
`
`In the alternative, the Class and Subclasses may also be certified because:
`
`(a)
`
`the prosecution of separate actions by individual Class and Subclass
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`Members would create a risk of inconsistent or varying adjudications with respect to individual
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`Class or Subclass Members that would establish incompatible standards of conduct for
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`Defendant;
`
`(b)
`
`the prosecution of separate actions by individual Class and Subclass
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`Members would create a risk of adjudications with respect to them that would, as a practical
`
`matter, be dispositive of the interests of other Class and Subclass Members not parties to the
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`adjudications, or substantially impair or impede their ability to protect their interests; and/or
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`(c)
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`Defendant has acted or refused to act on grounds generally applicable to
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`the Class and to the Subclass as a whole, thereby making appropriate final declaratory and/or
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`injunctive relief with respect to the Members of the Class and to the Members of the Subclass as
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`a whole.
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 11 of 18
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`COUNT I
`Violation Of New York’s Gen. Bus. Law § 349
`(On Behalf Of The New York Subclass)
`
`35.
`
`Plaintiff hereby incorporates by reference and re-allege herein the allegations
`
`contained in all preceding paragraphs of this complaint.
`
`36.
`
`Plaintiff brings this claim individually and on behalf of the Members of the
`
`proposed New York Subclass against Defendant.
`
`37.
`
`Defendant committed deceptive acts and practices by employing false,
`
`misleading, and deceptive representations and/or omissions about the oil content of its Oil-Free
`
`Products to mislead consumers into believing the Oil-Free Products are “oil-free”.
`
`38.
`
`Plaintiff Peyton has standing to pursue this claim because she has suffered an
`
`injury-in-fact and has lost money or property as a result of Defendant’s deceptive acts and
`
`practices. Specifically, Plaintiff Peyton purchased Oil-Free Products for her own personal use.
`
`In doing so, Plaintiff Peyton relied upon Defendant’s false, misleading, and deceptive
`
`representations that Oil-Free Products were “oil-free”. Plaintiff Peyton spent money in the
`
`transaction that she otherwise would not have spent had she known the truth about Defendant’s
`
`advertising claims.
`
`39.
`
`40.
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`Defendant’s deceptive acts and practices were directed at consumers.
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`Defendant’s deceptive acts and practices are misleading in a material way because
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`they violate consumers’ reasonable expectations. Defendant knew consumers would purchase
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`Oil-Free Products and/or pay more for them under the false – but reasonable – belief that Oil-
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`Free Products are “oil-free”, when they are not. By advertising so prominently that Oil-Free
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`Products were “oil-free”, Defendant proves that information about oil content is material to
`
`consumers. If such information were not material, Defendant would not feature it prominently
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`on the front label of every Oil-Free Products package. As a result of its deceptive acts and
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`11
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 12 of 18
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`practices, Defendant has sold thousands, if not millions, of Oil-Free Products to unsuspecting
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`consumers across New York. If Defendant had advertised its Oil-Free Products truthfully and in
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`a non-misleading fashion, Plaintiff and other New York Subclass Members would not have
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`purchased them or would not have paid as much as they did for them.
`
`41.
`
`As a direct and proximate result of Defendant’s false, misleading, and deceptive
`
`representations and/or omissions, Plaintiff Peyton and other Members of the New York Subclass
`
`were injured in that they: (1) paid money for Oil-Free Products that were not what Defendant
`
`represented; (2) were deprived of the benefit of the bargain because the Oil-Free Products they
`
`purchased were different than Defendant advertised; and (3) were deprived of the benefit of the
`
`bargain because the Oil-Free Products they purchased had less value than Defendant represented.
`
`42.
`
`On behalf of herself and Members of the New York Subclass, Plaintiff Peyton
`
`seeks to enjoin Defendant’s unlawful acts and practices and recover her actual damages or fifty
`
`(50) dollars, whichever is greater, three times actual damages, and reasonable attorneys’ fees.
`
`COUNT II
`Violation Of New York’s Gen. Bus. Law § 350
`(On Behalf Of The New York Subclass)
`
`43.
`
`Plaintiff hereby incorporates by reference and re-allege herein the allegations
`
`contained in all preceding paragraphs of this complaint.
`
`44.
`
`Plaintiff brings this claim individually and on behalf of the Members of the
`
`proposed New York Subclass against Defendant.
`
`45.
`
`Defendant engaged in a campaign of false advertising with regard to the oil
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`content of Oil-Free Products to mislead consumers into believing the Oil-Free Products they
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`purchase are “oil-free”.”
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`12
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 13 of 18
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`46.
`
`Plaintiff Peyton has standing to pursue this claim because she has suffered an
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`injury-in-fact and has lost money or property as a result of Defendant’s deceptive acts and
`
`practices. Specifically, Plaintiff Peyton purchased Oil-Free Products for her own personal use.
`
`In doing so, Plaintiff Peyton relied upon Defendant’s false, misleading, and deceptive
`
`representations that Oil-Free Products would be “oil-free” when they are not. Plaintiff Peyton
`
`spent money in the transaction that she otherwise would not have spent had she known the truth
`
`about Defendant’s advertising claims.
`
`47.
`
`48.
`
`Defendant’s deceptive acts and practices were directed at consumers.
`
`Defendant’s deceptive acts and practices are misleading in a material way
`
`because, as alleged above and herein, they violate consumers’ reasonable expectations. If
`
`Defendant had advertised its Oil-Free Products truthfully and in a non-misleading fashion,
`
`Plaintiff and other New York Subclass Members would not have purchased the Oil-Free
`
`Products or would not have paid as much as they did for them.
`
`49.
`
`As a direct and proximate result of Defendant’s false, misleading, and deceptive
`
`representations and omissions, Plaintiff Peyton and other Members of the New York Subclass
`
`were injured in that they: (1) paid money for Oil-Free Products that were not what Defendant
`
`represented; (2) were deprived of the benefit of the bargain because the Oil-Free Products they
`
`purchased were different than Defendant advertised; and (3) were deprived of the benefit of the
`
`bargain because the Oil-Free Products they purchased had less value than Defendant represented.
`
`50.
`
`On behalf of herself and Members of the New York Subclass, Plaintiff Peyton
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`seeks to enjoin Defendant’s unlawful acts and practices and recover her actual damages or five
`
`hundred (500) dollars per violation, whichever is greater, three times actual damages, and
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`reasonable attorneys’ fees.
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 14 of 18
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`COUNT III
`Breach Of Express Warranty
`(On Behalf Of The Class And The New York Subclass)
`
`51.
`
`Plaintiff hereby incorporates by reference and re-allege herein the allegations
`
`contained in all preceding paragraphs of this complaint.
`
`52.
`
`Plaintiff brings this claim individually and on behalf of the Members of the
`
`proposed Class and Subclass against Defendant.
`
`53.
`
`As the designer, manufacturer, marketer, distributor, and/or seller of Oil-Free
`
`Products, Defendant issued an express warranty by representing to consumers at the point of
`
`purchase that Oil-Free Products were “oil-free”. Defendant’s representations were part of the
`
`description of the goods and the bargain upon which the goods were offered for sale and
`
`purchased by Plaintiff and Members of the Class and Subclass.
`
`54.
`
`In fact, the Oil-Free Products do not conform to Defendant’s representations
`
`because Oil-Free Products are not, in fact “oil-free.” By falsely representing the Oil-Free
`
`Products in this way, Defendant breached express warranties.
`
`55.
`
`As a direct and proximate result of Defendant’s breach, Plaintiff and Members of
`
`the Class and Subclass were injured because they: (1) paid money for Oil-Free Products that
`
`were not what Defendant represented; (2) were deprived of the benefit of the bargain because the
`
`Oil-Free Products they purchased were different than Defendant advertised; and (3) were
`
`deprived of the benefit of the bargain because the Oil-Free Products they purchased had less
`
`value than Defendant represented. Had Defendant not breached the express warranty by making
`
`the false representations alleged herein, Plaintiff and Class and Subclass Members would not
`
`have purchased the Oil-Free Products or would not have paid as much as they did for them.
`
`
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`14
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`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 15 of 18
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`COUNT IV
`Breach of Implied Warranty
`(On Behalf Of The Class And The New York Subclass)
`
`56.
`
`Plaintiff hereby incorporates by reference and re-allege herein the allegations
`
`contained in all preceding paragraphs of this complaint.
`
`57.
`
`Plaintiff brings this claim individually and on behalf of the Members of the
`
`proposed Class and Subclass against Defendant.
`
`58.
`
`Defendant routinely engages in the manufacture, distribution, and/or sale of Oil-
`
`Free Products and is a merchant that deals in such goods or otherwise holds themselves out as
`
`having knowledge or skill particular to the practices and goods involved.
`
`59.
`
`Plaintiff and Members of the Class and Subclass were consumers who purchased
`
`Defendant’s Oil-Free Products for the ordinary purpose of such products.
`
`60.
`
`By representing that the Oil-Free Products would be “oil-free”, Defendant
`
`impliedly warranted to consumers that the Oil-Free Products were merchantable, such that they
`
`were of the same average grade, quality, and value as similar goods sold under similar
`
`circumstances.
`
`61.
`
`However, the Oil-Free Products were not of the same average grade, quality, and
`
`value as similar goods sold under similar circumstances. Thus, they were not merchantable and,
`
`as such, would not pass without objection in the trade or industry under the contract description.
`
`62.
`
`As a direct and proximate result of Defendant’s breach, Plaintiff and Members of
`
`the Class and Subclass were injured because they paid money for Oil-Free Products that would
`
`not pass without objection in the trade or industry under the contract description.
`
`
`
`
`
`
`
`15
`
`

`

`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 16 of 18
`
`COUNT V
`Unjust Enrichment
`(On Behalf Of The Class And The New York Subclass)
`
`63.
`
`Plaintiff hereby incorporates by reference the allegations contained in all
`
`preceding paragraphs of this complaint.
`
`64.
`
`Plaintiff brings this claim individually and on behalf of the members of the
`
`proposed Class and New York Subclass against Defendant.
`
`65.
`
`Plaintiff and Class Members conferred benefits on Defendant by purchasing the
`
`Oil-Free Products.
`
`66.
`
`Defendant has been unjustly enriched in retaining the revenues derived from
`
`Plaintiff and Class Members’ purchases of the Oil-Free Products. Retention of those monies
`
`under the circumstances is unjust and inequitable because Defendant misrepresented the oil
`
`content of the Oil-Free Products by claiming they were “oil-free.” Those misrepresentations
`
`caused injuries to Plaintiff and Class Members because they would not have purchased the Oil-
`
`Free Products at all, or on the same terms, if the true facts were known.
`
`67.
`
`Because Defendant’s retention of the non-gratuitous benefits conferred on it by
`
`Plaintiff, Class Members, and Subclass Members is unjust and inequitable, Defendant must pay
`
`restitution to Plaintiff, Class Members, and Subclass Members for its unjust enrichment, as
`
`ordered by the Court.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, seeks
`
`judgment against Defendant, as follows:
`
`a)
`
`For an order certifying the Class and the New York Subclass under Rule 23 of the
`
`Federal Rules of Civil Procedure, naming Plaintiff Wishner as representative of
`
`16
`
`

`

`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 17 of 18
`
`the Class and New York Subclass, and Plaintiff’s attorneys as Class Counsel to
`
`represent the Class and New York Subclass;
`
`b)
`
`For an order finding in favor of Plaintiff, the Class, and New York Subclass on all
`
`counts asserted herein;
`
`c)
`
`For compensatory, statutory, and punitive damages in amounts to be determined
`
`d)
`
`e)
`
`f)
`
`g)
`
`by the Court and/or jury;
`
`For prejudgment interest on all amounts awarded;
`
`For an order of restitution and all other forms of equitable monetary relief;
`
`For injunctive relief as pleaded or as the Court may deem proper; and
`
`For an order awarding the Plaintiff, the Class, and New York Subclass their
`
`reasonable attorneys’ fees, expenses, and costs of suit.
`
`JURY TRIAL DEMANDED
`
`Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of any
`
`and all issues in this action so triable of right.
`
`
`
`Dated: August 24, 2021
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`BURSOR & FISHER, P.A.
`
`By:
`
`
`/s/ Frederick J. Klorczyk III
`Frederick J. Klorczyk III
`
`
`
`
`
`Frederick J. Klorczyk III
`888 Seventh Avenue
`New York, NY 10019
`Telephone: (646) 837-7150
`Facsimile: (212) 989-9163
`Email: fklorczyk@bursor.com
`
`BURSOR & FISHER, P.A.
`Brittany S. Scott*
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`
`17
`
`

`

`Case 7:21-cv-05880-VB Document 13 Filed 08/24/21 Page 18 of 18
`
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: bscott@bursor.com
`
`*Pro Hac Vice Forthcoming
`
`Attorneys for Plaintiff
`
`18
`
`

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