Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 1 of 29
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`WHITE PLAINS DIVISION
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`Plaintiff,
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`Case No. _________________________
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`BARBARA TRUSS,
`individually and on behalf of all others
`similarly situated,
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`v.
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`BAYER HEALTHCARE
`PHARMACEUTICALS INC., a Delaware
`Corporation; BAYER HEALTHCARE LLC, a
`Delaware limited liability company; BAYER
`AG, a public limited company; BEIERSDORF,
`INC., a Delaware corporation; BEIERSDORF
`NORTH AMERICA, INC., a Delaware
`corporation; and BEIERSDORF AG, a public
`limited company,
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`Defendants.
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`______________________________________/
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`CLASS ACTION COMPLAINT
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`Plaintiff Barbara Truss (“Plaintiff”) brings this Class Action Complaint against Defendants
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`Bayer Healthcare Pharmaceuticals Inc., Bayer Healthcare LLC., Bayer AG, Beiersdorf, Inc.,
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`Beiersdorf North America, Inc., and Beiersdorf AG (collectively “Defendants”), individually and
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`on behalf of all others similarly situated, and complain and allege upon personal knowledge as to
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`herself and her own acts and experiences and, as to all other matters, upon information and belief,
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`including investigation conducted by her attorneys:
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`1
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 2 of 29
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`NATURE OF THE ACTION
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`1.
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`This is a civil class action (the “Action”) brought by Plaintiff on behalf of all
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`consumers who purchased Coppertone Water Babies (SPF 50) (the “Product”) from Defendants for
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`normal, household use. The Product is defective because, undisclosed to consumers, it contains the
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`chemical benzophenone, a known mutagen, carcinogen, and endocrine disruptor. This dangerous
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`chemical is present in the finished Product because the Product is formulated with the chemical
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`octocrylene which over time degrades, resulting in an accumulation of benzophenone.
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`2.
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`Over the course of several decades, Defendants gained the trust of consumers, who
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`reasonably believe that Defendants’ products, including Coppertone Water Babies (SPF 50), are
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`made with quality materials, and can be used safely, as intended. Defendants formulate, design,
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`manufacture, market, advertise, distribute, and sell the Product to consumers throughout the United
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`States, including in the State of New York. Defendants distribute and sell the Product through
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`various authorized retailers in store and online.
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`3.
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`Defendants represent that the Product is safe for its intended use. In reality, the
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`Product contains benzophenone at the time of purchase because the active ingredient octocrylene,
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`degrades into benzophenone.
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`4.
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`5.
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`Benzophenone is a mutagen, carcinogen, and endocrine disruptor.
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`Feasible alternative formulations, designs and materials, such as mineral-based
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`sunscreen, were available to Defendants at the time the Product was formulated, designed, and
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`manufactured, and such alternative formulations and designs were and are used by other
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`manufacturers to produce and sell non-defective sunscreen.
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`6.
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`Plaintiff seeks damages and equitable remedies for herself, and for the proposed
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`Classes.
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`2
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 3 of 29
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`JURISDICTION AND VENUE
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`7.
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`This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §
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`1332 of the Class Action Fairness Act of 2005 because: (1) there are 100 or more putative Class
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`Members, (ii) the aggregate amount in controversy exceeds $5,000,000.00, exclusive of interest
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`and costs, and (iii) there is minimal diversity because Plaintiff and Defendants are citizens of
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`different states. This Court has supplemental jurisdiction over Plaintiff’s state law claims pursuant
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`to 28 U.S.C. § 1367.
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`8.
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`This Court has personal jurisdiction over Defendants because they have substantial
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`aggregate contacts with this District, including engaging in conduct that has a direct, substantial,
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`reasonably foreseeable, and intended effect of causing injury to persons throughout the United
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`States, and purposely availed themselves of the laws of the United States and the State of New
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`York.
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`9.
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`In accordance with 28 U.S.C. § 1391, venue is proper in this District because a
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`substantial part of the conduct giving rise to Plaintiff’s claims occurred in this District, Defendants
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`transact business in this District, and Defendants have intentionally availed themselves of the laws
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`and markets within this District.
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`A. Plaintiff
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`PARTIES
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`10.
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`Plaintiff Barbara Truss is a resident and citizen of Yonkers, New York who
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`purchased and used the Product within the relevant time period.
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`B. Defendants
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`11.
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`Defendant Bayer HealthCare Pharmaceuticals Inc. is a Delaware corporation with
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`its principal place of business in Whippany, New Jersey, and was doing business in the State of
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`3
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 4 of 29
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`New York during all relevant times. Directly and through its agents, Bayer HealthCare
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`Pharmaceuticals has substantial contacts with and receives substantial benefits and income from
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`and through the State of New York. Bayer HealthCare Pharmaceuticals is one of the owners,
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`manufacturers, or distributors of the Product, and is one of the companies that created and/or
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`authorized the false, misleading, and deceptive labeling for the Product.
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`12.
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`Defendant Bayer HealthCare LLC is a Delaware company with its principal place
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`of business in Whippany, New Jersey, and was doing business in the state of New York during all
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`relevant times. Directly and through its agents, Bayer HealthCare LLC has substantial contacts
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`with and receives substantial benefits and income from and through the State of New York. Bayer
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`HealthCare LLC is one of the owners, manufacturers, or distributors of the Product, and is one of
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`the companies that created and/or authorized the false, misleading, and deceptive labeling for the
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`Product.
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`13.
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`Defendant Bayer AG is the parent company of Defendants Bayer HealthCare
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`Pharmaceuticals Inc. and Bayer HealthCare LLC.
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`14.
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`Defendant Beiersdorf, Inc. is a Delaware corporation with its principal place of
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`business in Wilton, Connecticut, and was doing business in the State of New York during all
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`relevant times. Directly and through its agents, Beiersdorf, Inc. has substantial contacts with and
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`receives substantial benefits and income from and through the State of New York. Beiersdorf, Inc.
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`is one of the owners, manufacturers, or distributors of the Product, and is one of the companies
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`that created and/or authorized the false, misleading, and deceptive labeling for the Product.
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`15.
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`Defendant Beiersdorf North America, Inc. is a Delaware corporation with its
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`principal place of business in Wilton, Connecticut, and was doing business in the State of New
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`York during all relevant times. Directly and through its agents, Beiersdorf North America, Inc. has
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`4
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 5 of 29
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`substantial contacts with and receives substantial benefits and income from and through the State
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`of New York. Beiersdorf North America, Inc. is one of the owners, manufacturers, or distributors
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`of the Products, and is one of the companies that created and/or authorized the false, misleading,
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`and deceptive labeling for the Product.
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`16.
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`Defendant Beiersdorf AG is the parent company of Defendants Beiersdorf, Inc. and
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`Defendant Beiersdorf North America, Inc.
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`17.
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`In September 2019, Bayer AG sold the Coppertone brand, which includes the
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`Product, for $550 million to Beiersdorf AG.1
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`18.
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`The term “Defendants,” as used herein, relates to each individual Defendant during
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`the time period it was responsible for manufacturing, distributing, advertising, labeling, and selling
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`the unlawful Product.
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`A. Coppertone
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`FACTUAL ALLEGATIONS
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`19.
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`20.
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`21.
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`Coppertone has been a leader in the sunscreen market since it was founded in 1944.2
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`Coppertone products are sold in the United States as well as Canada and China.3
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`Coppertone products are sold at mass market retailers in the United States,
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`including Walmart and Target, in addition to being sold online at retailers such as Amazon.
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`22.
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`Coppertone has consistently positioned itself as “[a] trusted name in sun care” and
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`a brand that “is committed to providing consumers with innovative, quality and safe sun care
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`products based on science, rigorous testing and high standards.”4
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`https://media.bayer.com/baynews/baynews.nsf/id/Bayer-completes-sale-of-iconic-Coppertone-brand-to-
`1
`See
`Beiersdorf (last visited Sept. 16, 2021).
`2 See https://www.beiersdorf.com/brands/coppertone (last visited Sept. 21, 2021).
`3 Id.
`4 See https://www.coppertone.com/sun-facts/science-and-testing (last visited Sept. 21, 2021).
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`5
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`B. Chemical Sunscreen
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`23.
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`24.
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`There are two categories of sunscreen on the market: physical and chemical.
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`Physical sunscreens work by reflecting the UV rays from the sun, protecting the
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`skin from the harmful rays. These formulations rely on the use of ingredients such as zinc oxide
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`and titanium dioxide to provide this protection. Physical sunscreens create a barrier between the
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`skin and the sun and aren’t absorbed into the skin.5
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`25.
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`Alternatively, chemical-based sunscreen contains various synthetic, chemical
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`active ingredients, including octocrylene, which protect the skin by absorbing ultraviolet (“UV”)
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`radiation and dissipating it as heat.
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`26.
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`A study published by Frontiers in Medicine noted that research suggested that
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`chemical sunscreens may be absorbed into the bloodstream at a higher rate than previous studies
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`indicated.6
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`27.
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`Coppertone Water Babies (SPF 50) contains 9% Octocrylene:
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`5 See https://thedermreview.com/octocrylene/ (last visited Sept. 21, 2021).
`6 See https://www.frontiersin.org/articles/10.3389/fmed.2019.00195/full (last visited Sept. 21, 2021).
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`6
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 7 of 29
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`C. Benzophenone
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`7
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`7 https://www.target.com/p/coppertone-waterbabies-fragrance-free-sunscreen-lotion-spf-50-6-fl-oz/-/A-
`52033464?ref=tgt_adv_XS000000&AFID=google_pla_df&fndsrc=tgtao&DFA=71700000012510706&CPNG=PL
`A_Beauty%2BPersonal+Care%2BShopping%7CBeauty_Ecomm_Beauty&adgroup=SC_Health%2BBeauty&LID=
`700000001170770pgs&LNM=PRODUCT_GROUP&network=g&device=c&location=9013450&targetid=aud-
`824206566127:pla-
`895745642360&ds_rl=1246978&ds_rl=1248099&gclid=CjwKCAjw49qKBhAoEiwAHQVTo0jMf4-
`7ENmz3rni3lvjpOwMnTl6CK6HqydaORND996J4W2jNb3zERoCVkEQAvD_BwE&gclsrc=aw.ds (last visited
`Oct. 1, 2021).
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`28.
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`Benzophenone is associated with a wide range of toxicities, including genotoxicity,
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`carcinogenicity, and endocrine disruption.8
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`29.
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`Benzophenone is notorious for inducing dermatological pathologies, including
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`contact dermatitis, erythema, urticaria, and photoinduced dermatitis.9
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`30.
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`Benzophenone exposure can occur by “absorbing benzophenone through the skin
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`and nails from some cosmetic products,”10 such as Defendants’ Product.
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`31.
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`The personal care product industry has known for some time that octocrylene is
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`contaminated with benzophenone.
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`32. When purchasing raw octocrylene for sunscreen or personal care product
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`manufacturing, the industry admits that benzophenone is a contaminant found in octocrylene and
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`“cannot be removed by its entirety when octocrylene is being processed...”11
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`33.
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`The presence of benzophenone in food products or food packaging is banned in the
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`United States.12
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`34.
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`Due to the chemical’s ability to cause cancer, benzophenone is included on the
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`California Proposition 65 list.13
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`35.
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`Under California Proposition 65, there is no safe harbor for benzophenone in any
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`personal care products, including sunscreens, anti-aging creams, and moisturizers.14
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`
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`8 Id.
`9 Id.
`10 https://www.p65warnings.ca.gov/fact-sheets/benzophenone (last visited Oct. 10, 2021).
`11 Frequently asked questions: benzophenone and octocrylene California Prop 65 ingredients, Rodan + Fields, San
`Francisco, CA. https://www.rodanandfields.com/images/Archives/FAQs_Benzophenone.pdf (last visited Sept. 16,
`2021).
`12 C. A. Downs, Joseph C. DiNardo, Didier Stien, Alice M. S. Rodrigues, and Philippe Lebaron, Benzophenone
`Accumulates over Time from the Degradation of Octocrylene in Commercial Sunscreen Products, Chemical
`Research in Toxicology, 2021 34 (4), 1046-1054.
`13 https://www.p65warnings.ca.gov/fact-sheets/benzophenone (last visited Oct. 10, 2021).
`14 C. A. Downs, Joseph C. DiNardo, Didier Stien, Alice M. S. Rodrigues, and Philippe Lebaron, Benzophenone
`Accumulates over Time from the Degradation of Octocrylene in Commercial Sunscreen Products, Chemical
`Research in Toxicology, 2021 34 (4), 1046-1054.
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`8
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`36.
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`In the European Commission’s Scientific Committee on Consumer Safety (“SCCS)
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`Opinion on Octocrylene, the SCCS stated that “Octocrylene generates benzophenone through a
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`retro-aldol condensation and also that benzophenone was detected in the pure Octocrylene
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`manufactured ingredient.”15
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`37.
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`The SCCS noted that “[b]enzophenone is a hazardous impurity and degradation
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`product of Octocrylene and it should be monitored and kept at trace levels.”16
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`D. A Study Finds That Benzophenone Accumulates in Octocrylene Containing Products
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`38.
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`The source of benzophenone in a product arises from two main sources: (1)
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`benzophenone contamination in the octocrylene used to manufacture the commercial product and
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`(2) accumulation of benzophenone from the degradation of octocrylene as the product ages.17
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`39.
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`A study revealed that octocrylene in sunscreen products degrades over time and
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`results in the accumulation of benzophenone.18
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`40.
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`The products tested included Coppertone Sunscreen Spray Water Babies 50,
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`Coppertone Kids Sport SPF 50 Spray, Coppertone Sunscreen Lotion Defend and Care Face Oil
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`Free 50 Lotion, Coppertone Clear Sunscreen Sport Clear 30, Banana Boat Clear Ultra Mist Sport
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`Performance 30, Banana Boat Sport Performance Sunscreen Lotion 50+, Neutrogena Beach
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`Defense Sunscreen Spray 100, and Neutrogena Beach Defense Sunscreen Lotion 70.19
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`15 https://ec.europa.eu/health/sites/default/files/scientific_committees/consumer_safety/docs/sccs_o_249.pdf (last
`visited Oct. 12, 2021).
`16 Id.
`17 C. A. Downs, Joseph C. DiNardo, Didier Stien, Alice M. S. Rodrigues, and Philippe Lebaron, Benzophenone
`Accumulates over Time from the Degradation of Octocrylene in Commercial Sunscreen Products, Chemical Research
`in Toxicology, 2021 34 (4), 1046-1054.
`18 Id.
`19 Id.
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`9
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`41.
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`In this study, the product samples were tested after being purchased directly from
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`the store. They were then subjected to a U.S. FDA accelerated stability testing protocol for 6
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`weeks, which reflects a single year of shelf life.20
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`42.
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`Benzophenone was detected in all of the octocrylene-containing sunscreen products
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`but was not detected in the only non-octocrylene product.21
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`43.
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`Further, Plaintiff commissioned her own independent testing performed by a third-
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`party lab. The results of the test found benzophenone in the Product.
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`44.
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` Defendants’ sunscreen Product Coppertone Water Babies (SPF 50), are drugs
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`which are adulterated under 21 U.S.C. § 351(a)(1) based upon the presence of benzophenone.
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`45.
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`The Federal Food, Drug, and Cosmetic Act (FD&C Act) prohibits “The
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`introduction or delivery for introduction into interstate commerce of any food, drug, or cosmetic
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`that is adulterated or misbranded.” 21 U.S.C. § 331(a).
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`46.
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`Under the New York Food, Drug and Cosmetic Act, New York has expressly
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`adopted the federal labeling requirements of the Act. The definition of “adulterated” is exactly
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`the same as the FD&C Act under NY Public Health Law §71.05(e). Thus, a violation of federal
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`labeling laws is an independent violation of New York law and actionable as such.
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`E. Defendants’ Representations
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`47.
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`Defendants make a significant number of representations regarding the safety of
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`the Product on Coppertone’s website, including that certain products are “safe and gentle on a
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`baby’s skin” and offer “unbeatable protection.”22
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`
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`20 Id.
`21 Id.
`22 See https://www.coppertone.com/ (last visited Sept. 21, 2021).
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`10
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 11 of 29
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`48.
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`Parents, like Plaintiff Truss, trust manufacturers like Defendant to sell Product(s)
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`that are safe and free from harmful toxins, contaminants, and chemicals, but rather here, the
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`Product contains benzophenone which is known to have significant and dangerous health
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`consequences.
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`49.
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`Coppertone’s website also includes an infographic touting the scientific testing
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`performed on the Product:
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`11
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`CopperttRe
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`3 EXCEED
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`THE COPPERTONE
`STANDARD
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`4 COMPLY
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`12
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 13 of 29
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`50.
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`The Water Babies (SPF 50) label advertises the product as “Hypoallergenic &
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`Gentle,” as shown below:
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`23
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`23 Id.
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`13
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 14 of 29
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`24
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`51.
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`Defendants represent on Coppertone’s website that they are “committed to quality,
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`excellence, innovation and truth in labeling[.]”25
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`52.
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`Despite the representation that Defendants are committed to “truth in labeling,”
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`nothing on the Product label insinuates, states, or warns that the Product contains benzophenone
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`24 See https://www.coppertone.com/products/coppertone-waterbabies-sunscreen-lotion-spf50-0002001.html (last
`visited Sept. 21, 2021).
`25 See https://www.coppertone.com/sun-facts/science-and-testing (last visited Sept. 21, 2021).
`
`
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`14
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 15 of 29
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`or that the octocrylene in the Product degrades over time and results in an accumulation of
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`benzophenone.
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`53.
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`In fact, the Defendants’ representations have indicated the Product is “tested” and
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`“safe” for users of the sunscreen:
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`26
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`PLAINTIFF’S FACTUAL ALLEGATIONS
`
`Barbara Truss
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`54.
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`Plaintiff Truss purchased the Coppertone Water Babies (SPF 50) sunscreen in May
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`2021 at a Walgreens store located in Yonkers, New York.
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`55.
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`Nowhere on the packaging did Defendants disclose that the octocrylene in the
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`Product degrades over time and results in an accumulation of benzophenone.
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`56.
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`Nowhere on the packaging did Defendants disclose that the Product contains
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`benzophenone at the time of purchase.
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`57.
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`If Plaintiff Truss had been aware of the existence and accumulation of
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`benzophenone in the Product, she would not have purchased the Product or would have paid
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`significantly less for the Product.
`
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`26 See https://www.coppertone.com/sun-facts/science-and-testing (last visited Sept. 21, 2021).
`
`
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`15
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`As a result of Defendants’ actions, Plaintiff Truss has incurred damages, including economic
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`damages.
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`58.
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`Plaintiff and the Classes have suffered injury in fact and have lost money as a result
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`of Defendants’ unlawful sale of the Product. Indeed, no reasonable consumer, including Plaintiff,
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`would have purchased the Product had they known they were adulterated and/or misbranded.
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`59.
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`Defendants engaged in fraudulent, unfair, deceptive, misleading, and/or unlawful
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`conduct stemming from their omissions surrounding benzophenone contamination affecting the
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`Product.
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`60.
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`Plaintiff and the Classes have suffered injury in fact and have lost money as a result
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`of Defendants’ unlawful sale of the Product. Indeed, no reasonable consumer, including Plaintiff,
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`would have purchased the Product had they known of the material omissions of material facts
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`regarding the presence of Benzophenone. Accordingly, Plaintiff and the Classes suffered injury in
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`fact and lost money as a result of Defendants’ misleading representations and omissions and did
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`not receive the benefit-of-the- bargain.
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`61.
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`Plaintiff and the Classes’ injury is underscored by the fact that numerous other
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`products offering the same therapeutic benefit at comparable prices exist that are not prone to
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`benzophenone contamination.
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`62.
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`Plaintiff and the Classes may be harmed again in the future because they want to
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`purchase the Product in the future; however, without injunctive relief Plaintiff would not be able
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`to know or trust that Defendants will truthfully and legally label the Product and would be likely
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`to be misled again.
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`16
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 17 of 29
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`CLASS ACTION ALLEGATIONS
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`63.
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`Plaintiff brings this action individually and as representatives of all those similarly
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`situated pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of the below-
`
`defined Classes:
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`National Class: During the fullest period allowed by law, all persons who
`purchased the Coppertone Water Babies Product for their personal use and not for
`resale in the United States.
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`New York Subclass: During the fullest period allowed by law, all persons who
`purchased the Coppertone Water Babies Product for their personal use and not for
`resale in the State of New York.
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`64. Members of the classes described are referred to as “Class Members” or members
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`of the “Classes.”
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`65.
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`The following are excluded from the Classes: (1) any Judge presiding over this
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`action and members of his or her family; (2) Defendants, Defendants’ subsidiaries, parents,
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`successors, predecessors, and any entity in which Defendants or their parent have a controlling
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`interest (as well as current or former employees, officers, and directors); (3) persons who properly
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`execute and file a timely request for exclusion from the Class; (4) persons whose claims in this
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`matter have been finally adjudicated on the merits or otherwise released; (5) Plaintiff’s counsel
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`and Defendants’ counsel; and (6) the legal representatives, successors, and assigns of any such
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`excluded persons.
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`66.
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`Certification of Plaintiff’s claims for class-wide treatment is appropriate because
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`Plaintiff can prove the elements of her claims on a class-wide basis using the same evidence as
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`would be used to prove those elements in individual actions alleging the same claims.
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`67.
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`Plaintiff reserves the right to amend the definitions of the Classes if discovery or
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`further investigation reveals that the Classes should be expanded or otherwise modified.
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`
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`17
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 18 of 29
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`68.
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`Numerosity – Federal Rule of Civil Procedure 23(a)(1). The members of the
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`Classes are so numerous that individual joinder of all Class Members is impracticable. On
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`information and belief, Class Members number in the thousands to millions. The precise number
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`or identification of members of the Classes are presently unknown to Plaintiff but may be
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`ascertained from Defendants’ books and records. Class Members may be notified of the pendency
`
`of this action by recognized, Court-approved notice dissemination methods, which may include
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`U.S. mail, electronic mail, Internet postings, and/or published notice.
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`69.
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`Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2)
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`and 23(b)(3). Common questions of law and fact exist as to all members of the Classes, which
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`predominate over any questions affecting individual members of the Classes. These common
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`questions of law or fact include, but are not limited to, the following:
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`a) Whether the Product contains benzophenone at the time of purchase;
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`b) Whether the Product accumulates benzophenone over time;
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`c) Whether Defendants omitted or failed to disclose material information to
`Plaintiff and Class Members regarding the Product;
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`d) Whether the Product is defectively designed, formulated, and/or manufactured;
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`e) Whether Defendants knew or reasonably should have known about the harmful
`level of benzophenone in the Product prior to distributing and selling them to
`Plaintiff and Class Members;
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`f) Whether the marketing, advertising, packaging, labeling, and other promotional
`materials for the Product is deceptive;
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`g) Whether Defendants’ actions violate the consumer protection statutes invoked
`herein;
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`h) Whether Defendants breached the implied warranty of merchantability relating
`to the Product;
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`i) Whether Defendants breached an express warranty to Plaintiff and Class
`Members;
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`j) Whether Defendants were unjustly enriched at the expense of the Plaintiff and
`Class Members;
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`k) Whether Plaintiff and Class Members are entitled to damages, including
`compensatory, exemplary, and statutory damages, and the amount of such
`damages;
`
`l) Whether Plaintiff and the other Class Members have been injured and the
`proper measure of their losses as a result of those injuries; and
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`m) Whether Plaintiff and the Class Members are entitled to injunctive, declaratory,
`or other equitable relief.
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`70.
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`Defendants engaged in a common course of conduct giving rise to the legal rights
`
`sought to be enforced by Plaintiff, on behalf of herself and the other Class Members. Similar or
`
`identical statutory and common law violations, business practices, and injuries are involved.
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`Individual questions, if any, pale by comparison, in both quality and quantity, to the numerous
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`common questions that dominate this action.
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`71.
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`Typicality – Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s claims are
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`typical of the claims of the other Class Members, as each class member was subject to the same
`
`omission of material fact and misrepresentations regarding the presence of benzophenone in the
`
`Product. Plaintiff shares the aforementioned facts and legal claims or questions with Class
`
`Members, and Plaintiff and all Class Members have been similarly affected by Defendants’
`
`common course of conduct alleged herein. Plaintiff and all Class Members sustained monetary
`
`and economic injuries including, but not limited to, ascertainable loss arising out of Defendant’s
`
`deceptive omission of material fact and misrepresentations regarding the presence of
`
`benzophenone in the Product.
`
`72.
`
`Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4).
`
`Plaintiff is an adequate representative of the Classes because she is a member of the Classes and
`
`her interests do not conflict with the interests of the Class Members they seek to represent. Plaintiff
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`Case 7:21-cv-09845 Document 1 Filed 11/23/21 Page 20 of 29
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`has also retained counsel competent and experienced in complex commercial and class action
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`litigation. Plaintiff and her counsel intend to prosecute this action vigorously for the benefit of all
`
`Class Members. Accordingly, the interests of the Class Members will be fairly and adequately
`
`protected by Plaintiff and her counsel.
`
`73.
`
`Insufficiency of Separate Actions – Federal Rule of Civil Procedure 23(b)(1).
`
`Absent a class action, Class Members will continue to suffer the harm described herein, for
`
`which they would have no remedy. Even if separate actions could be brought by individual
`
`consumers, the resulting multiplicity of lawsuits would cause undue burden and expense for
`
`both the Court and the litigants, as well as create a risk of inconsistent rulings and adjudications
`
`that might be dispositive of the interests of similarly situated consumers, substantially impeding
`
`their ability to protect their interests, while establishing incompatible standards of conduct for
`
`Defendant. Accordingly, the proposed Classes satisfies the requirements of Fed. R. Civ. P.
`
`23(b)(1).
`
`74.
`
`Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2)
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`Defendant has acted or refused to act on grounds generally applicable to Plaintiff and All Members
`
`of the Classes, thereby making appropriate final injunctive relief and declaratory relief, as
`
`described below, with respect to the Classes as a whole.
`
`75.
`
`Superiority – Federal Rule of Civil Procedure 23(b)(3). A class action is superior
`
`to any other available methods for the fair and efficient adjudication of the present controversy for
`
`at least the following reasons:
`
`a) The damages suffered by each individual putative Class Member do not justify the
`burden and expense of individual prosecution of the complex and extensive
`litigation necessitated by Defendants’ conduct;
`
`b) Even if individual Class Members had the resources to pursue individual
`litigation, it would be unduly burdensome to the courts in which the individual
`litigation would proceed;
`
`
`
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`
`
`
`
`
`
`
`
`
`
`
`
`
`
`c) The claims presented in this case predominate over any questions of law or fact
`affecting individual Class Members;
`
`d) Individual joinder of all putative Class Members is impracticable;
`
`e) Absent a class action, Plaintiff and putative Class Members will continue to suffer
`harm as a result of Defendants’ unlawful conduct; and
`
`f) This action presents no difficulty that would impede its management by the Court
`as a class action, which is the best available means by which Plaintiff and putative
`Class Members can seek redress for the harm caused by Defendants.
`
`76.
`
`In the alternative, the Classes may be certified for the following reasons:
`
`a) The prosecution of separate actions by individual Class Members would create a
`risk of inconsistent or varying adjudication with respect to individual Class
`Members, which would establish incompatible standards of conduct for
`Defendants;
`
`
`b) Adjudications of individual Class and Members’ claims against Defendants
`would, as a practical matter, be dispositive of the interests of other putative Class
`who are not parties to the adjudication and may substantially impair or impede the
`ability of other putative Class Members to protect their interests; and
`
`c) Defendants have acted or refused to act on grounds generally applicable to the
`putative Classes, thereby making appropriate final and injunctive relief with
`respect to the putative Classes as a whole.
`
`COUNT I
`Violation of New York General Business Laws § 349
`(On Behalf Of Plaintiff Truss And The New York Subclass)
`Plaintiff Truss hereby re-alleges and incorporates all allegations contained in the
`
`77.
`
`preceding paragraphs as if fully set forth herein.
`
`78.
`
`N.Y. Gen. Bus. Law §349 prohibits “[d]eceptive acts or practices in the conduct of
`
`any business, trade or commerce or in the furnishing of any service[.]”
`
`79.
`
`80.
`
`Defendants’ actions occurred in the conduct of business, trade, or commerce.
`
`Defendants’ conduct, as described in this Complaint, constitutes “deceptive acts or
`
`practices” within the meaning of the N.Y. Gen. Bus. Law.
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`
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`81.
`
`Defendants’ deceptive acts and practices were intended to mislead consumers in a
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`material way in the process of purchasing Defendants’ Products, and a reasonable consumer would
`
`be misled by their deceptive acts and practices.
`
`82.
`
`All of Defendants’ deceptive acts and practices constitute conduct directed at
`
`consumers.
`
`83.
`
`Defendants intended that Plaintiff Truss and each of the other members of the New
`
`York Subclass would rely upon their deceptive conduct and false advertising, and consumers,
`
`including Plaintiff Truss and putative New York Subclass Members, did in fact rely upon deceptive
`
`conduct.
`
`84.
`
`Defendants’ foregoing deceptive and unfair acts and practices, including its
`
`omissions, were and are deceptive acts or practices in violation of the N.Y. Gen. Bus. Law § 349,
`
`Deceptive Acts and Practices, N.Y. Gen. Bus. Law 349, et seq., in that Defendants manufactured,
`
`labeled, packaged, marketed, advertised, distributed, and/or sold the Product without any mention
`
`of the fact that the Product contains benzophenone.
`
`85.
`
`Defendants’ unconscionable, deceptive, and/or unfair practices caused actual
`
`damages to Plainti