Case 1:21-cv-00449 Document 1 Filed 11/10/21 Page 1 of 21 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF RHODE ISLAND
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`
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`JENNY MCCLOUGH and VICTORIA
`GARCIA, individually and on behalf of all
`others similarly situated,
`
`
`Plaintiffs,
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`
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`Civil Action No.:
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
`
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`LUNA PHARMACEUTICALS, INC. d/b/a
`PREMAMA,
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`v.
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`
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`
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`Defendant.
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`INTRODUCTION
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`1.
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`Defendant Luna Pharmaceuticals, Inc. d/b/a Premama (“Premama”) is a fertility
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`supplement company that peddles false hope to people who are trying to have children.
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`2.
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`Conception can sometimes be difficult, and modern interventions — while
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`sometimes effective — can be expensive. So it’s not surprising that some people would consider
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`supplements as a possible way to improve the chances of conception. Deceptive claims about
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`fertility supplements can play on the emotions of individuals who are struggling to conceive.
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`3.
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`At best, bogus fertility supplements give false hope and are a waste of time and
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`money. At worst, they can result in harmful side effects.
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`4.
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`Fertility supplements that falsely imply they can improve the chances of
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`conception can also potentially harm consumers who use these products instead of seeking
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`effective treatments, such as drugs or assisted reproductive technology approved by the U.S.
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`Food and Drug Administration (“FDA”). The FDA has not approved fertility supplements as a
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`method for increasing the chances of conception.
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`5.
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`The fertility supplement industry is facing booming growth, due in part to
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`declining fertility rates. The fertility supplement market was estimated at USD $1.7 billion in
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`2020 and is expected to grow to $2.6 billion by 2026.1
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`6.
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`Premama is one of several companies in the United States that preys on people
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`having difficulties conceiving. Premama markets and sells two related supplement products
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`called “Fertility Support for Her” and “Fertility Support for Him” (collectively “Fertility
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`Support”) that claim to increase chances of conception. The products are expensive and the
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`marketing is bold. Displayed prominently on the product packaging, directly underneath the
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`product name, is the large word “Conceive.” Premama claims that Fertility Support “optimizes
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`your chances of conception” and tells purchasers to use the product “for at least 3 months or until
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`you become pregnant.” Premama implies that certain marquee ingredients in Fertility Support
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`like myo-inositol and folate are clinically proven to increase the chances of conception, but that
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`is false. Taking Fertility Support does not improve the chances of conception, yet that is the
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`product’s only purported purpose.
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`7.
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`Premama knows perfectly well that its products do not help people conceive. In
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`2019, Premama privately admitted in an email to a non-profit watchdog organization that “I
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`think you'll be hard pressed to find any supplement company that can definitively say that
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`their product increases the chances of becoming pregnant. If you do, I’d be very curious to
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`see.” That admission is directly contrary to everything Premama says and implies about Fertility
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`Support’s effectiveness.
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`8.
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`Therefore, Plaintiffs Victoria Garcia and Jenny McClough have filed this class
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`action on behalf of themselves and other U.S. purchasers of Fertility Support. They seek actual
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`1 https://www.expertmarketresearch.com/reports/fertility-supplements-market
`2
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`damages, statutory damages, restitution, injunctive relief, and all other relief available under the
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`causes of action asserted here.
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`PARTIES
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`9.
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`Plaintiff Victoria Garcia is domiciled in New York. In or around January 2021,
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`she purchased Fertility Support for Her and Fertility Support for Him. The products cost
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`approximately $35 each. Ms. Garcia purchased the products directly from Premama’s website,
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`and she was in New York when she made her purchase. Before purchasing the products, Ms.
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`Garcia reviewed and relied on the representations made on the product packaging and the
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`information provided about the products on Premama’s website. Based on the product name,
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`packaging, and information disclosed on the website, Ms. Garcia believed that Fertility Support
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`for Her and Fertility Support for Him would improve her chances of conception. It did not have
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`that effect. Had Ms. Garcia known the truth about the products’ ineffectiveness, she would not
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`have purchased them.
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`10.
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`Plaintiff Jenny McClough is domiciled in California. On April 15, 2021, she
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`purchased Fertility Support for Her. The product cost approximately $35. Ms. McClough
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`purchased the products from a Target store in California. Before purchasing the products, Ms.
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`McClough reviewed and relied on the representations made on the product packaging and the
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`information provided about the products on the product page of Premama’s website. Based on
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`the product name, packaging, and information disclosed on the website, Ms. McClough believed
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`that consuming Fertility Support for Her would improve her chances of conception. It did not
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`have that effect. Had Ms. McClough known the truth about the product’s ineffectiveness, she
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`would not have purchased it.
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`11.
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`Defendant Luna Pharmaceuticals, Inc. d/b/a Premama (“Premama”) is a
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`Delaware corporation with its headquarters in Providence, Rhode Island.
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`FACTUAL BACKGROUND
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`12.
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`The two products at issue in this case are called “Fertility Support for Her” and
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`“Fertility Support for Him.”
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`13.
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`Premama manufactures, distributes, advertises, and sells Fertility Support for Her
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`and Fertility Support for Him.
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`14.
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`Premama sells Fertility Support for Her and Fertility Support for Him directly to
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`consumers through its website premamawellness.com and through its Amazon store.
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`15.
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`Premama also sells Fertility Support for Her and Fertility Support for Him through
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`major U.S. retailers like Target and Walmart.
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`16.
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`The conduct at issue here occurred at all times during the last four years, at least.
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`I.
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`Premama’s Expensive, Four-Stage Pregnancy “System”
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`17.
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`Premama sells maternity supplements for people who want to conceive, who are
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`already pregnant, or who have recently given birth. Premama does not target any other
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`demographic for its products.
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`18.
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`Premama sells a four-stage nutritional supplement “system” that supposedly
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`supports women “through each stage of maternity.” The four stages of the system are called
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`“Cleanse,” “Conceive,” “Carry,” and “Care.” For each stage of the system, Premama sells a
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`variety of corresponding supplements and drink mixes.
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`19.
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`The products in Premama’s system are expensive. For a couple trying to conceive,
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`adhering to Premama’s recommended daily intake of the products can easily cost $400 or more.
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`20.
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`Stage 1 of the Premama system is called “Cleanse” and involves a berry-flavored
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`drink mix called “Birth Control Cleanse.” Premama claims this Stage 1 product “resets” and
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`“prepares the body for pregnancy” by offsetting the effects of synthetic birth control hormones.
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`One package of Birth Control Cleanse costs about $60 and provides enough drink mix to last a
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`month. Premama tells consumers they should use Birth Control Cleanse for two to three months.
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`21.
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`Stage 2 of Premama’s system is called “Conceive,” and its corresponding products
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`are two, related drink mixes called Fertility Support for Her and Fertility Support for Him.. These
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`are the product at issue in this lawsuit and they are addressed more fully below. In a nutshell,
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`Premama falsely claims that taking Fertility Support helps people conceive. One package of
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`Fertility Support cost about $30-35 and provides enough drink mix to last a month. Premama tells
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`consumers that they should use Fertility Support for three months “or until conception occurs.”
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`Unlike products associated with the other stages of Premama’s system, Fertility Support is
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`marketed to women and men.
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`22.
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`Stage 3 is called “Carry,” and the corresponding Stage 3 products are for people
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`who are already pregnant. These products include a range of prenatal vitamins, gummies, and
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`drink mixes for use during the entire nine months of pregnancy. Stage 3 products cost around $25-
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`$35 per bottle, with each bottle containing about one month of supplements.
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`23.
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`Stage 4 is called “Care,” and includes a range of postnatal vitamins and drink mixes
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`that Premama claims promote recovery after giving birth, support lactation, and alleviate
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`postpartum depression. Stage 4 products cost $20-$50 per bottle, with each bottle containing
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`about one month of supplements.
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`II.
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`Premama Misleads Consumers into Believing That “Fertility Support” Products
`Increase the Chance of Becoming Pregnant 
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`24.
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`Premama makes numerous misleading statements on the product labeling and on its
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`website that have the tendency or capacity to confuse or mislead reasonable consumers into
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`believing that Fertility Support improves the chances of conceiving, and shown in the photos
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`below:
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`//
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`25.
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`First and foremost, the front of every product packaging displays the product name
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`“Fertility Support for Her” or “Fertility Support for Him” with the word “Conceive” prominently
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`displayed under the product name. This strongly suggests that the purpose of the product is to
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`improve the chances of conception.
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`26.
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`Several other statements on the side of the packaging reinforce the impression that
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`the purpose of Fertility Support is to improve the chances of conception. The side of the
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`packaging of Fertility Support for Her states, “Premama Fertility Support should be taken every
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`day, including during menstruation, while trying to conceive.”
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`27.
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`The same side of the packaging also highlights two marquee ingredients in the
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`product called myo-inositol and folate, stating, “Myo-Inositol is clinically shown to support
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`ovulatory function and egg quality,” and that folate is “the necessary ingredient in prenatal
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`vitamins for early fetal development.” These statements are misleading in the context of the
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`packaging because consuming myo-inositol or folate do not increase the chances of conception.
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`28.
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`Similarly, the side of the packaging of Fertility Support for Him states the product
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`should be taken “once daily while trying to conceive.”
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`29.
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`The same side of the packaging of Fertility Support for Him also highlights the
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`presence of vitamin E in the product, stating vitamin E “is clinically proven to increase sperm
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`mobility and function.” This statement is misleading in the context of the packaging because
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`consuming vitamin E does not improve the chances for conception.
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`30. Many people buy Fertility Support directly from Premama through its website.
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`That website contains several statements about Fertility Support for Her that reinforce the
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`impression that drinking Fertility Support will increase the chances of conception:
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` “Proven to optimize your chances of conception with Myo-Inositol.”
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` “Optimize egg quality & ovulation while trying to conceive.”
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` “Take Fertility Support For Her daily while trying to conceive for at least 3
`months or until you become pregnant.”
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` “If trying to conceive, we recommend pairing this drink mix with our Prenatal
`Vitamin.”
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`31.
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`Premama’s website also contains several statements about Fertility Support for Him
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`that reinforce the impression that drinking Fertility Support will increase the chances of
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`conception:
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` “It takes two to tango, support your partner’s sperm health to optimize chances of
`conception.”
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` “It’s recommended that you take Fertility Support For Him for 3 months (the time
`required to nurture new sperm to maturity), or until conception occurs.”
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` “A chocolate flavored drink mix formulated with male fertility vitamins to
`support male reproductive health and improve sperm quality, motility,
`morphology, and function.”
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`32.
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`The packaging and website do not suggest that Fertility Support is suitable or
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`recommended for anything other than improving the chances for conception.
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`III.
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`Taking Fertility Support Does Not Increase the Chances of Becoming Pregnant.
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`33.
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`Drinking Fertility Support does not optimize or improve the chances of becoming
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`pregnant. None of the ingredients in Fertility Support improve the chances of becoming pregnant,
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`or alternatively, the amounts of the ingredients in Fertility Support are too low to improve the
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`chances of becoming pregnant.
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`34.
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`In 2019, Premama made a statement that contradicts everything it tells consumers
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`about Fertility Support. That year, the Center for Science in the Public Interest (“CSPI”) asked
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`Premama whether there are any scientific studies showing that women who take Fertility Support
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`are more likely to become pregnant. Here was Premama’s response:
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`9
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`We do not have funding at this juncture to conduct clinical studies on the
`effectiveness. We rely on clinical research of our active ingredients. I think you'll
`be hard pressed to find any supplement company that can definitively say
`that their product increases the chances of becoming pregnant. If you do, I’d
`be very curious to see.
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`35. Moreover, as alleged above, the packaging for Fertility Support for Her states,
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`“Myo-Inositol is clinically shown to support ovulatory function and egg quality,” but that
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`statement is misleading. No specific studies are cited on the packaging. In 2019, the CSPI asked
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`Premama to identify the myo-inositol studies that are alluded to on the product packaging.
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`Premama cited two studies, but neither study showed that myo-inositol was any more effective
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`than a placebo. None of these facts are disclosed on the packaging of Fertility Support for Her.
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`36.
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`Although Premama lacks substantiation for its claims that Fertility Support supports
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`fertility and improves the chances of conception, that is not the basis for the claims alleged here.
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`Instead, the crux of this case is that—irrespective of Premama’s lack of substantiation—Fertility
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`Support does not improve the chances for conceiving, which is contrary to the product labeling and
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`marketing.
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`JURISDICTION AND VENUE
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`37.
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`This Court has subject matter jurisdiction over this civil action pursuant to 28
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`U.S.C. § 1332(d) because there are more than 100 class members and the aggregate amount in
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`controversy exceeds $5,000,000, exclusive of interest, fees, and costs, and at least one Class
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`member is a citizen of a state different from Defendant Premama. This Court has supplemental
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`jurisdiction over state law claims pursuant to 28 U.S.C. § 1367.
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`38.
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`This Court has personal jurisdiction over Premama because Premama’s
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`headquarters are in Providence, Rhode Island.
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`39.
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`Venue is proper under 28 U.S.C. § 1391(b)(1) because Premama resides in this
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`judicial district.
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`40.
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`Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the
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`events giving rise to Plaintiffs’ claims took place within this judicial district.
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`CLASS ACTION ALLEGATIONS
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`41.
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`Class Definition: Plaintiffs brings this class action on behalf of themselves and as
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`a class action on behalf of the following putative classes:
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`(a) Nationwide Class: All people in the United States who purchased Fertility
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`Support.
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`(b) California Sub-Class: All people in California who purchased Fertility
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`Support.
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`(c) New York Sub-Class: All people in New York who purchased Fertility
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`Support.
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`42.
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`Excluded from each of the above-listed putative classes are: (1) Premama and all
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`directors, officers, employees, partners, principals, shareholders, and agents of Premama; and (2)
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`the Judges presiding over the Action and members of their families and judicial staff.
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`43.
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`Subject to additional information obtained through discovery, the foregoing class
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`definitions may be modified or narrowed by an amended complaint, or at class certification,
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`including through the use of multi-state subclasses to account for material differences in state
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`law, if any.
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`44. Members of the putative classes are so numerous that their individual joinder is
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`impracticable. On information and belief, members of the putative classes number in the
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`thousands. The precise number of class members and their identities are unknown to Plaintiff sat
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`this time but may be determined through discovery. Class members may be notified of the
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`pendency of this action by mail and/or publication through the distribution records of Defendant.
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`45.
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`Common questions of law and fact exist as to all class members and predominate
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`over questions affecting only individual class members. Common legal and factual questions
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`include, but are not limited to:
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`(a)
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`(b)
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`whether Defendant committed the conduct alleged herein;
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`whether Defendant’s conduct constitutes the violations of laws alleged
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`herein;
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`(c)
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`whether Defendant’s labeling and advertising alleged herein are
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`unlawful, untrue, or are misleading, or reasonably likely to deceive;
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`(d)
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`whether Defendant knew or should have known that the representations
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`were false or misleading;
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`(e)
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`whether Defendant’s representations, concealments and non-disclosures
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`concerning Fertility Support are likely to deceive the consumer;
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`(f)
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`whether Plaintiffs and the Class are entitled to actual damages, statutory
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`damages and/or restitution
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`46.
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`The claims of the named Plaintiffs are typical of the claims of the putative class
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`members in that the named Plaintiffs and the class members sustained damages as a result of
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`Defendant’s uniform wrongful conduct.
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`47.
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`Plaintiffs are adequate representatives of the putative class because their interests
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`do not conflict with the interests of the class members they seek to represent; they retained
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`competent counsel experienced in prosecuting class actions; and they intend to prosecute this
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`action vigorously. The interests of class members will be fairly and adequately protected by
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`Plaintiffs and their counsel.
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`48.
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`The class mechanism is superior to other available means for the fair and efficient
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`adjudication of the claims of class members. Each individual class member may lack the
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`resources to undergo the burden and expense of individual prosecution of the litigation necessary
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`to establish Defendant’s liability. Individualized litigation increases the delay and expense to all
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`parties and multiplies the burden on the judicial system presented by the complex legal and
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`factual issues of this case. Individualized litigation also presents a potential for inconsistent or
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`contradictory judgments. In contrast, the class action device presents far fewer management
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`difficulties and provides the benefits of single adjudication, economy of scale, and
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`comprehensive supervision by a single court on the issue of Defendant’s liability. Class
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`treatment of the liability issues will ensure that all claims and claimants are before this Court for
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`consistent adjudication of the liability issues.
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`COUNT I
`Violations of New York GBL § 349
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`49.
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`Plaintiffs incorporate by reference and realleges each and every allegation
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`contained above, as though fully set forth herein.
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`50.
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`Plaintiff Garcia brings this claim individually and on behalf of members of the
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`proposed New York subclass against Defendant.
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`51.
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`New York’s General Business Law § 349 prohibits deceptive acts or practices in
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`the conduct of any business, trade, or commerce.
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`52.
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`In its sale of goods throughout the State of New York, Defendant conducts
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`business and trade within the meaning of New York’s General Business Law § 349.
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`53.
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`Plaintiff Garcia and members of the subclass are consumers who purchased
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`products from Defendant for their personal use.
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`54.
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`By the acts and conduct alleged herein, Defendant has engaged in deceptive,
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`unfair, and misleading acts and practices.
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`55.
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`56.
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`The foregoing deceptive acts and practices were directed at consumers.
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`The foregoing deceptive acts and practices are misleading in a material way
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`because they fundamentally misrepresent the characteristics of Fertility Support to induce
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`consumers to purchase same.
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`57.
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`By reason of this conduct, Defendant violated New York’s General Business
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`Law.
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`58.
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`Defendant’s actions are the direct, foreseeable, and proximate cause of the
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`damages that Plaintiff Garcia and members of the subclass have sustained from having paid for
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`and consumed Defendant’s products.
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`59.
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`As a result of Defendant’s violations, Plaintiff Garcia and members of the
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`subclass have suffered damages because: (a) they would not have purchased Fertility Support on
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`the same terms if they knew that the products were not sold as advertised; (b) they paid a price
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`premium for Fertility Support due to Defendant’s misleading conduct; and (c) Fertility Support
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`does not have the characteristics, ingredients, uses, or benefits promised.
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`60.
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`On behalf of herself and other members of the subclass, Plaintiff Garcia seeks to
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`recover her actual damages or fifty dollars, whichever is greater, three times actual damages, and
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`reasonable attorneys’ fees.
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`COUNT II
`Violations of New York GBL § 350
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`61.
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`Plaintiffs incorporate by reference and realleges each and every allegation
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`contained above, as though fully set forth herein.
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`62.
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`Plaintiff Garcia brings this claim individually and on behalf of members of the
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`proposed New York subclass against Defendant.
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`63.
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`New York’s General Business Law § 350 prohibits false advertising in the
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`conduct of any business, trade, or commerce.
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`64.
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`Pursuant to said statute, false advertising is defined as “advertising, including
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`labeling, of a commodity … if such advertising is misleading in a material respect.”
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`65.
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`Based on the foregoing, Defendant has engaged in consumer-oriented conduct
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`that is deceptive or misleading in a material way which constitutes false advertising in violation
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`of Section 350 of New York’s General Business Law.
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`66.
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`Defendant’s false, misleading, and deceptive statements and representations of
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`fact were and are directed to consumers.
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`67.
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`Defendant’s false, misleading, and deceptive statements and representations of
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`fact were and are likely to mislead a reasonable consumer acting reasonably under the
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`circumstances.
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`68.
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`Defendant’s false, misleading, and deceptive statements and representations of
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`fact have resulted in consumer injury or harm to the public interest.
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`69.
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`As a result of Defendant’s false, misleading, and deceptive statements and
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`representations of fact, Plaintiff and the subclass have suffered economic injury.
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`70.
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`As a result of Defendant’s violations, Plaintiff Garcia and members of the
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`subclass have suffered damages because: (a) they would not have purchased Fertility Support on
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`the same terms if they knew that the products were not sold as advertised; (b) they paid a price
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`premium for Fertility Support due to Defendant’s misleading conduct; and (c) Fertility Support
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`does not have the characteristics, ingredients, uses, or benefits promised.
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`71.
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`On behalf of herself and other members of the Subclass, Plaintiff seeks to recover
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`her actual damages or five hundred dollars, whichever is greater, three times actual damages, and
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`reasonable attorneys’ fees.
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`COUNT III
`California’s Consumers Legal Remedies Act, Cal. Civil Code § 1750, et seq (“CLRA”)
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`72.
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`Plaintiffs incorporate by reference and realleges each and every allegation
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`contained above, as though fully set forth herein.
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`73.
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`Plaintiff McClough brings this claim individually and on behalf of members of
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`the proposed California subclass against Defendant.
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`74.
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`California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1770(a)(5),
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`prohibits “[r]epresenting that goods or services have sponsorship, approval, characteristics,
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`ingredients, uses, benefits, or quantities which they do not have or that a person has a
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`sponsorship, approval, status, affiliation, or connection which he or she does not have.”
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`75.
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`California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1770(a)(7),
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`prohibits “[r]epresenting that goods or services are of a particular standard, quality, or grade, or
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`that goods are of a particular style or model, if they are of another.”
`
`76.
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`California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1770(a)(9),
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`prohibits “[a]dvertising goods or services with intent not to sell them as advertised.”
`
`77.
`
`Defendant violated these provisions by making the false and misleading
`
`statements alleged in this complaint.
`
`78.
`
` As a result of Defendant’s violations, Plaintiff McClough and members of the
`
`subclass have suffered damages because: (a) they would not have purchased Fertility Support on
`
`the same terms if they knew that the products were not sold as advertised; (b) they paid a price
`
`premium for Fertility Support due to Defendant’s misleading conduct; and (c) Fertility Support
`
`does not have the characteristics, ingredients, uses, or benefits promised.
`
`79.
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`Before filing this action, a CLRA notice letter was served on Defendant which
`
`complies in all respects with California Civil Code § 1782(a). The letter was sent via certified
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`Case 1:21-cv-00449 Document 1 Filed 11/10/21 Page 17 of 21 PageID #: 17
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`mail, return receipt requested, advising Defendant that it violated the CLRA and demanding that
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`Defendant cease and desist from such violations and make full restitution by refunding the
`
`monies received therefrom.
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`80.
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`Plaintiff McClough seeks all available relief under the CLRA.
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`COUNT IV
`Violation Of Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.
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`Plaintiffs incorporate by reference and realleges each and every allegation
`
`81.
`
`contained above, as though fully set forth herein.
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`82.
`
`Plaintiff McClough brings this claim individually and on behalf of members of
`
`the proposed California subclass against Defendant.
`
`83.
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`Defendant is subject to California’s Unfair Competition Law, Cal. Bus. & Prof.
`
`Code §§ 17200, et seq. The UCL provides, in pertinent part: “Unfair competition shall mean and
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`include unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or
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`misleading advertising ….”
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`84.
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`Defendant’s misrepresentations and other conduct, described herein, violated the
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`“unlawful” prong of the UCL by violating the CLRA as described herein.
`
`85.
`
`Defendant’s misrepresentations and other conduct, described herein, violated the
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`“unfair” prong of the UCL because its conduct is substantially injurious to consumers, offends
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`public policy, and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the
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`conduct outweighs any alleged benefits.
`
`86.
`
`Defendant violated the “fraudulent” prong of the UCL by making false and
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`misleading statements about Fertility Support, as described herein.
`
`87.
`
`Plaintiff seeks all available relief under the UCL.
`
`//
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` 
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`Case 1:21-cv-00449 Document 1 Filed 11/10/21 Page 18 of 21 PageID #: 18
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`COUNT V
`Breach of Express Warranty
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`88.
`
`Plaintiffs incorporate by reference and realleges each and every allegation
`
`contained above, as though fully set forth herein.
`
`89.
`
`Plaintiffs bring this claim individually and on behalf of members of the proposed
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`Class and the New York and California subclasses against Defendant.
`
`90.
`
`As the designer, manufacturer, marketer, distributor, and seller, Defendant
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`expressly warranted that Fertility Support “optimizes your chances of conception.”
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`91.
`
`However, Fertility Support cannot provide any appreciable benefit to consumers,
`
`and does not optimize or enhance an individual’s chances of conceiving.
`
`92.
`
`As a direct and proximate cause of Defendant’s breach of express warranty,
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`Plaintiffs and members of the Class have been injured and harmed because: (a) they would they
`
`would not have purchased the Ginkgo Smart on the same terms if the true facts were known
`
`about the product; (b) they paid a price premium for Fertility Support due to Defendant’s
`
`promises that it would improve chances of conception; and (c) Fertility Support did not have the
`
`characteristics as promised by Defendant.
`
`93.
`
`On September 1, 2021, a pre-suit notice letter was served on Defendant which
`
`complied in all respects with U.C.C. § 2-607. Plaintiffs and the Class sent Defendant a letter via
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`certified mail, return receipt requested, advising Defendant that it breached numerous warranties
`
`and violated state consumer protection laws, and demanding that Defendant cease and desist
`
`from such violations and make full restitution by refunding the monies received therefrom.  
`
`COUNT V
`Unjust Enrichment
`
`94.
`
`Plaintiffs hereby incorporate by reference the allegations contained in all preceding
`
`paragraphs of this complaint.
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`95.
`
`Plaintiffs bring this claim individually and on behalf of the members of the
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`proposed Class and the New York Subclass against Defendant.
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`96.
`
`Plaintiffs and Class Members conferred benefits on Defendant by purchasing
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`Fertility Support.
`
`97.
`
`Defendant has been unjustly enriched in retaining the revenues derived from
`
`Plaintiffs’ and Class Members’ purchases of Fertility Support. Retention of those monies under
`
`these circumstances is unjust and inequitable because Defendant misrepresented that Fertility
`
`Support would provide consumers with enhanced and increased likelihood of conception. This
`
`misrepresentation caused injuries to Plaintiffs and Class Members, because they would not have
`
`purchased Fertility Support if the true facts regarding the effectiveness of the products were
`
`known.
`
`98.
`
`Because Defendant’s retention of the non-gratuitous benefits conferred on it by
`
`Plaintiffs and Class Members is unjust and inequitable, Defendant must pay restitution to
`
`Plaintiffs and Class Members for its unjust enrichment, as ordered by the Court.
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`PRAYER FOR RELIEF
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`99. WHEREFORE, Plaintiffs, individually and on behalf of all others similarly
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`situated, seeks a judgment against Defendant as follows:
`
`A.
`
`B.
`
`C.
`
`For an order certifying the Class under Rule 23 of the Federal Rules
`of Civil Procedure and naming Plaintiffs representatives of the
`putative classes and/or subclasses and Plaintiffs’ attorneys as Class
`Counsel.
`
`For an order declaring that Defendant’s conduct as described herein
`violates the law;
`
`For an order finding in favor of Plaintiff and the putative classes on
`all counts asserted herein;
`
`D.
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`For prejudgment interest on all amounts awarded;
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`19
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`Case 1:21-cv-00449 Document 1 Filed 11/10/21 Page 20 of 21 PageID #: 20
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`E.
`
`F.
`
`G.
`
`
`For an order awarding damages, statutory damages, restitution, and
`any other relief deemed appropriate;
`
`For injunctive relief as pleaded or as the Court may deem proper;
`and;
`
`For an order awarding Plaintiff and the Class their reasonable
`attorneys’ fees