Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 1 of 20 PageID #: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
________________________________________

DEMANY BROWNE, Case No.

individually and on behalf of a class of
similarly situated persons,
CLASS ACTION COMPLAINT
Plaintiff,
JURY TRIAL DEMANDED
v.

EZRICARE LLC; and DELSAM

PHARMA LLC;.
Defendants.
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 2 of 20 PageID #: 2

Plaintiff Demany Browne (“Plaintiff”) brings this Class Action Complaint on behalf of

himself and all persons similarly situated who purchased EzriCare Artificial Tears and Delsam

Pharma Artificial Tears (collectively the “Products”) 1 manufactured, imported, sold, marketed,

labeled, and distributed by Defendants Ezricare LLC and Delsam Pharama LLC. (collectively

“Defendants”). 2 Plaintiff alleges the following based upon personal knowledge as well as

investigation by counsel, and as to all other matters, upon information and belief. Plaintiff further

believes that substantial evidentiary support will exist for the allegations set forth herein after a

reasonable opportunity for discovery.

INTRODUCTION

1. Defendants manufacture, design, import, advertise, label, distribute, market, and

sell several over-the-counter pharmaceutical products, including the above-named Products, which

contain a solution of Carboxymethylcellulose Sodium 10 MG in 1 ml.

2. Defendants’ artificial tears are adulterated and contaminated with “a rare,

extensively drug-resistant strain of Pseudomonas aeruginosa bacteria.” 3

3. The presence of the Pseudomonas Aeruginosa bacteria in the Products is due to,

among other things, Defendants’ violation of Current Good Manufacturing Processes (as identified

by the Food and Drug Administration), including “lack of appropriate microbial testing,

formulation issues (the company manufactures and distributes ophthalmic drugs in multi-use

1
Plaintiff reserves the right to amend, add to, or modify the definition of Products through facts obtained later in
investigation and discovery.
2
Plaintiff reserves the right to add or modify the Defendants who contributed to the deceptive and illegal conduct
alleged herein.
3
See FDA warns consumers not to purchase or use EzriCare Artificial Tears due to potential contamination, FOOD
& DRUG ADMIN. (Feb. 2, 2023), located at https://www.fda.gov/drugs/drug-safety-and-availability/fda-warns- con-
sumers-not-purchase-or-use-ezricare-artificial-tears-due-potential-contamination.

2
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 3 of 20 PageID #: 3

bottles, without an adequate preservative), and lack of proper controls concerning tamper-evident

packaging.” 4

4. These violations, along with the presence of this rare and, in some cases, deadly,

bacteria pose a significant and severe health risk to consumers, such as Plaintiff and the putative

class, who purchased and used Defendants’ Products.

5. Plaintiff and the putative class suffered economic damages due to Defendants’

misconduct (as set forth below) and seek damages for the purchase of the contaminated Products

they purchased.

PARTIES

Plaintiff

6. Plaintiff Browne is an individual and citizen of New York who resides in Brooklyn,

New York. Plaintiff purchased Delsam Pharma’s artificial tears dry eye relief from Walmart

Supercenter in Valley Stream, New York in approximately July 2022. Plaintiff purchased the

Product at the retail price charged by Walmart at that time. During that time, based on the false

and misleading claims by Defendants, Plaintiff was unaware that Defendants’ Product may be

adulterated and contaminated with the dangerous Pseudomonas Aeruginosa bacteria. Plaintiff

purchased Defendants’ Product on the assumption that the labeling of Defendants’ Products was

accurate and that the Products were unadulterated, safe, and effective and, most importantly, were

not contaminated (or were not at risk of being contaminated) with this deadly bacterium. Plaintiff

would not have purchased Defendants’ artificial tear product(s) had he known there was a risk the

product may contain the Pseudomonas Aeruginosa bacteria and cause severe infection. As a result,

Plaintiff suffered injury in fact when he spent money to purchase Defendants’ Products he would

4
Id.

3
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 4 of 20 PageID #: 4

not otherwise have purchased, and/or paid more for the Products, absent Defendants’ deceptive

conduct, as alleged below.

Defendants

7. Defendant EzriCare LLC is, and at all times relevant to this action was, a New

Jersey Limited Liability Company with its principal place of business located at 1525 Prospect

Street, Suite 204, Lakewood, NJ 08701. EzriCare LLC markets, advertises, labels, distributes, and

sells the Products at issue in this litigation.

8. Defendant Delsam Pharma LLC is, and at all times relevant to this action was, a

New York Limited Liability Company with its principal place of business located in the Bronx,

New York 10567, and process may be served upon its registered agent, Kuppusamy Arumugam at

925 Protano Lane, Mamaroneck, New York, 10543. Delsam Pharma LLC markets, advertises,

labels, distributes, and sells the Products at issue in this litigation.

9. On information and belief, the labeling for the Products, that Plaintiff and Class

members read and relied upon in making their decisions to purchase the Products were conceived,

designed, prepared and/or approved by Defendants and were disseminated by Defendants and their

agents through labeling, marketing and advertising containing the misrepresentations, from

Defendants’ headquarters.

10. On information and belief, in committing the wrongful acts alleged herein,

Defendants, in connection with their subsidiaries, affiliates and/or other related entities and their

employees, planned, participated in, and furthered a common scheme to induce members of the

public to purchase the Products, and Defendants participated in the making of such representations

and/or omissions of material fact in that it disseminated the contaminated Products or caused them

to be disseminated.

4
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 5 of 20 PageID #: 5

JURISDICTION AND VENUE

11. The Court has jurisdiction over this action pursuant to 28 U.S.C. §1332(d)(2)(A),

the Class Action Fairness Act (“CAFA”), as the matter in controversy exceeds the sum of

$5,000,000 (five million dollars) exclusive of interest and costs, and at least one member of the

putative class is a citizen of a state different from at least one Defendant. Specifically, Plaintiff is

a resident and citizen of New York, while Defendant EzriCare LLC is a resident and citizen of

New Jersey, with its principal place of business in New York. None of the exceptions of 28 U.S.C.

§1332(d) are applicable.

12. This Court has personal jurisdiction over Defendants because they conduct and

transact business within the District, and contract to supply and supply the Products within the

District by, among other things, marketing, advertising, and selling the Products in the District.

Further, Plaintiff’s claims arise from Defendants’ conduct within the District.

13. Venue is proper because Plaintiff and many class members reside in this District,

Defendants do business in this District and in New York, and a substantial part of the events giving

rise to the claims occurred in this District.

STATEMENT OF FACTS

A. EzriCare Artificial Tears

14. The NDC number for EzriCare Artificial Tears is 79503-101-15.

15. EzriCare LLC began labeling, advertising, marketing, and selling the Products on

or about November 22, 2020.

5
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 6 of 20 PageID #: 6

16. The Products are intended to be used in the following manner: (1) as a protectant

against further irritation or to relieve dryness of the eye; and (2) for the temporary relief of

discomfort due to minor irritations of the eye, or to exposure to wind or sun. 5

17. The Products are purportedly “preservative free,” which removes any chemical

used to prevent the growth of bacteria in the product. 6

18. The active ingredient in the Product is a solution of Carboxymethylcellulose

Sodium 10 MG in 1 ml. The inactive ingredients include Boric Acid, Potassium Chloride, Sodium

Chloride, Calcium Chloride Dihydrate, Magnesium Chloride, Sodium Chlorite, Sodium

Hydroxide, and Water for Injection. 7

19. The Products’ packaging and labeling appear as follows:

5
See EzriCare Artificial Tears Product Monograph, located at https://dailymed.nlm.nih.gov/dai-
lymed/fda/fdaDrugXsl.cfm?setid=ac1ea23c-f1c6-418f-921e- 58553ee919cb&type=display.
6
See Outbreak of Extensively Drug-resistant Pseudomonas aeruginosa Associated with Artificial Tears, CDC
HEALTH ALERT NETWORK, located at https://emergency.cdc.gov/han/2023/han00485.asp?ACSTrack-
ingID=USCDC_511- DM98842&ACSTrackingLabel=HAN%20485%20-%20General%20Public&deliv-
eryName=USCDC_511- DM98842.
7
Id.

6
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 7 of 20 PageID #: 7

B. Delsam Pharma’s Artificial Tears

20. The NDC number for Delsam Pharma’s Artificial Tears is 72570-121-15.

21. Delsam Pharma LLC began marketing the Products on or about July 23, 2020.

22. The Products are a substantially similar product to EzriCare Artificial Tears. The

Products are simply different brands of the same chemical solution (in terms of active ingredients).

And like the EzriCare-branded Products, Delsam Pharma’s Products are intended to be used in the

following manner: (1) as a protectant against further irritation or to relieve dryness of the eye; and

(2) for the temporary relief of discomfort due to minor irritations of the eye, or to exposure to wind

or sun.

23. According to its website, Delsam Pharma’s Products use preservatives “to keep

bacteria from growing in the bottle of the drops.” 8

8
See https://delsampharma.com/store/delsam-pharma-artificial-tears.

7
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 8 of 20 PageID #: 8

24. The active ingredient in the Products is a solution of Carboxymethylcellulose

Sodium 10 MG in 1 ml. The inactive ingredients include Boric Acid, Potassium Chloride, Sodium

Chloride, Calcium Chloride Dihydrate, Magnesium Chloride, Sodium Chlorite, Sodium

Hydroxide, and Water for Injection. 9

25. The Products’ packaging and labeling appear as follows:

9
Id.

8
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 9 of 20 PageID #: 9

C. The Pseudomonas Aeruginosa Bacteria

26. The Pseudomonas Aeruginosa bacteria is not a new bacteria, but it is notorious for

being “versatile” and “innately drug resistant.” 10 It is most frequently found in the environment,

such as within the soil and/or freshwater.

27. However, the Pseudomonas Aeruginosa bacteria is also known to infect humans,

and it can cause severe skin, eye, lung, and other infections throughout the body.

28. Currently, it is estimated that the Pseudomonas Aeruginosa bacteria is resistant to

the following antibiotics: cefepime, ceftazidime, piperacillin-tazobactam, aztreonam,

carbapenems, ceftazidime-avibactam, ceftolozane-tazobactam, fluoroquinolones, polymyxins,

amikacin, gentamicin, and tobramycin. 11

D. An Outbreak of Pseudomonas Aeruginosa Was Caused by Using Defendants’

Products

29. The current outbreak of the Pseudomonas Aeruginosa bacteria resulting from the

use of the EzriCare and/or Delsam Pharma Artificial Tears began in May 2022 and has been linked

to at least 12 states, so far: California, Colorado, Connecticut, Florida, New Jersey, New Mexico,

New York, Nevada, Texas, Utah, Washington, and Wisconsin. 12

30. The U.S. Centers for Disease Control (“CDC”) has isolated the specific strain of

Pseudomonas Aeruginosa and identified it as Verona Integron-mediated Metallo-β-lactamase

(VIM) and Guiana-Extended Spectrum-β-Lactamase (GES)-producing carbapenem-resistant

10
Beth Mole, Extremely drug-resistant germ found in eye drops infects 55 in 12 states; 1 dead, ARS TECHNICA
(Feb. 2, 2023), located at https://arstechnica.com/science/2023/02/extremely-drug-resistant-germ-found-in-eye-
drops- infects-55-in-12-states-1-dead/.
11
Id.
12
Id.

9
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 10 of 20 PageID #: 10

Pseudomonas aeruginosa (“VIM-GES-CRPA”). 13 This particular strand is incredibly drug-

resistant and very dangerous.

31. The CDC reported that its “laboratory testing identified the presence of the outbreak

strain in opened EzriCare bottles with different lot numbers collected from two states.” 14

32. The CDC also reported that it was able to isolate the outbreak strain from 13 sputum

or bronchial washes, 11 cornea swabs, seven urine samples, two blood samples, 25 rectal swabs,

and four other nonsterile sources. 15,16

33. As a result of using the Products, out of the 55 individuals who have been identified

as having been infected with the Pseudomonas Aeruginosa bacteria from the use of the Products

thus far, approximately three people have suffered permanent vision loss, and one person has died

due to a systemic infection. Others have endured extensive treatment to treat their infections.

E. Defendants’ Products Have Been Recalled

34. On January 24, 2023, Defendant EzriCare LLC first issued a statement on the

contamination of its artificial tears product, stating; “EzriCare became aware in the last few days

that the Center for Disease Control (CDC) is conducting an ongoing investigation related to

adverse events implicating various Over the Counter (OTC) eye drops.” 17

13
See Outbreak of Extensively Drug-resistant Pseudomonas aeruginosa Associated with Artificial Tears, CDC
HEALTH ALERT NETWORK, located at https://emergency.cdc.gov/han/2023/han00485.asp?ACSTrack-
ingID=USCDC_511-DM98842&ACSTrackingLabel=HAN%20485%20-%20General%20Public&deliv-
eryName=USCDC_511-DM98842.
14
Id.
15
Beth Mole, Extremely drug-resistant germ found in eye drops infects 55 in 12 states; 1 dead, ARS TECHNICA (Feb.
2, 2023), located at https://arstechnica.com/science/2023/02/extremely-drug-resistant-germ-found-in-eye-drops- in-
fects-55-in-12-states-1-dead/.
16
FDA warns consumers not to purchase or use EzriCare Artificial Tears due to potential contamination, FOOD &
DRUG ADMIN. (Feb. 2, 2023), located at https://www.fda.gov/drugs/drug-safety-and-availability/fda-warns- consum-
ers-not-purchase-or-use-ezricare-artificial-tears-due-potential-contamination.
17
EzriCare Artificial Tears - Discontinue Use (Feb. 2, 2023), located at https://ezricare-info.com.

10
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 11 of 20 PageID #: 11

35. After the development of this story, on February 1, 2023, EzriCare issued another

statement: “EzriCare, LLC first received notice of the CDC's ongoing investigation into a

multistate cluster of Pseudomonas aeruginosa infections on January 20, 2023. As of today, we are

not aware of any testing that definitively links the Pseudomonas aeruginosa outbreak to EzriCare

Artificial Tears. Nonetheless, we immediately took action to stop any further distribution or sale

of EzriCare Artificial Tears. To the greatest extent possible, we have been contacting customers

to advise them against continued use of the product. We also immediately reached out to both CDC

and FDA and indicated our willingness to cooperate with any requests they may have of us.” 18

36. Additionally, on February 1, 2023, Global Pharma Healthcare initiated a voluntary

recall of all unexpired lots of EzriCare Artificial Tears and Delsam Pharma’s Artificial Tears. 19

37. Then, on February 2, 2023, the U.S. Food and Drug Administration (“FDA”) issued

a statement “warning consumers and health care practitioners not to purchase and to stop using

EzriCare Artificial Tears or Delsam Pharma’s Artificial Tears due to bacterial contamination.”20

The FDA highlighted that it recommended Global Pharma initiate a product recall due to “the

company’s current good manufacturing practice (CGMP) . . . violations, including lack of

appropriate microbial testing, formulation issues (the company manufactures and distributes

ophthalmic drugs in multi-use bottles, without an adequate preservative), and lack of proper

controls concerning tamper-evidence packaging.” 21

38. Further, the FDA also “placed Global Pharma Healthcare Private Limited on import

alert . . . for providing an inadequate response to a records request and for not complying with

18
Id.
19
See Global Pharma Healthcare Issues Voluntary Nationwide Recall of Artificial Tears Lubricant Eye Drops Due to
Possible Contamination, located at https://global-pharma.com/otc.pdf.
20
FDA warns consumers not to purchase or use EzriCare Artificial Tears due to potential contamination, FOOD &
DRUG ADMIN. (Feb. 2, 2023), located at https://www.fda.gov/drugs/drug-safety-and-availability/fda-warns- consum-
ers-not-purchase-or-use-ezricare-artificial-tears-due-potential-contamination.
21
Id.

11
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 12 of 20 PageID #: 12

CGMP requirements.” 22 According to the FDA, the import alert “prevents these products from

entering the United States.” 23

39. Because of Defendants’ actions, the Products are worthless and certainly worth less

than what Plaintiff and class members paid to purchase them.

40. Had Defendants not informed Plaintiff and the Class members of the existence of

Pseudomonas Aeruginosa bacteria in the Products (or that the Products risked containing

Pseudomonas Aeruginosa), they would not have been willing to pay the same amounts for the

Products they purchased, if at all.

41. Plaintiff and the Class members paid for Products that they reasonably believed did

not contain Pseudomonas Aeruginosa bacteria, but they did not receive what they paid for.

Unfortunately, the Products Plaintiff and the Class members purchased, received, and used were

contaminated and illegal to sell, thereby making the Products worthless or certainly worth less than

what Plaintiff and Class Member paid.

42. Based on Defendants’ actions, they were able to, and did, charge a premium price

for the Products over the cost of competitive products that did not contain Pseudomonas

Aeruginosa bacteria.

43. Plaintiff and the Class members all paid money for the Products. However, Plaintiff

and the Class members did not obtain the full value of the Products due to Defendants’ actions as

described above. Plaintiff and the Class members paid more for the Products than they would have

(if at all) had they known the truth about the Products. Consequently, Plaintiff and the Class

members have suffered injury in fact and lost money as a result of Defendants’ deceptive and

unlawful conduct.

22
Id.
23
Id.

12
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 13 of 20 PageID #: 13

CLASS ACTION ALLEGATIONS

44. Plaintiff brings this case as a class action pursuant to Federal Rule of Civil

Procedure 23(a) and 23(b)(3) on behalf of himself and the following classes defined as follows:

All persons who purchased the Products within the United States for personal, family, or
household use during the Class Period. (the “Nationwide Class”)

All persons who purchased the Products within New York for personal, family, or
household use during the Class Period. (the “New York Subclass”)

(the Nationwide Class and New York Subclass collectively the “Class”)

45. “Class Period” means the period from three years prior to the filing of this

Complaint through the date of class certification.

46. Excluded from the Class are Defendants’ current or former officers, directors, and

employees; counsel for Plaintiff and Defendants; and the judicial officer to whom this lawsuit is

assigned.

47. Plaintiff reserves the right to amend or otherwise alter the class definition presented

to the Court at the appropriate time in response to facts learned through discovery, legal arguments

advanced by Defendants, or otherwise. Plaintiff also reserves the right to create subclasses.

48. Plaintiff expressly disclaims any claims for personal injuries. Moreover, the

definition of the “Class” expressly excludes any individual’s claims for personal injuries as a result

of the conduct alleged in this Complaint.

49. The requirements of Federal Rule of Civil Procedure 23 are satisfied because:

50. Numerosity: The members of each class are so numerous that joinder of all

members is impracticable. While the exact number of Class members is presently unknown to

Plaintiff, based on Defendants’ volume of sales, Plaintiff estimates that the Class numbers are in

13
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 14 of 20 PageID #: 14

the thousands. Defendants’ books and records will contain more detailed information regarding

the size of the Class.

51. Commonality: There are questions of law and fact that are common to the Class

members and that predominate over individual questions. These include the following:

a. Whether the Products contain Pseudomonas Aeruginosa bacteria;

b. Whether the Products were adulterated;

c. Whether Defendants’ misrepresentations and omissions were material to Plaintiff

and reasonable consumers;

d. Whether Defendants’ conduct injured consumers and, if so, the extent of the injury;

and

e. The appropriate remedies for Defendants’ conduct.

52. Typicality: Plaintiff’s claims are typical of the claims of the Class members because

Plaintiff suffered the same injury as the Class members by nature of their purchases of the Products

based on Defendants’ deceptive and/or illegal conduct alleged herein.

53. Adequacy: Plaintiff will fairly and adequately represent and protect the interests of

the members of each class. Plaintiff does not have any interests that are adverse to those of the

Class members. Plaintiff has retained competent counsel experienced in class action litigation who

intend to prosecute this action vigorously and have the financial means of doing so.

54. Superiority: A class action is superior to other available methods for the efficient

adjudication of this controversy. Class action treatment will permit a large number of similarly

situated persons to prosecute their common claims in a single forum simultaneously, efficiently,

and without the unnecessary duplication of effort and expense that numerous individual actions

would engender. Since the damages suffered by individual Class members are relatively small,

14
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 15 of 20 PageID #: 15

the expense and burden of individual litigation make it virtually impossible for the Class members

to seek redress for the wrongful conduct alleged, while an important public interest will be served

by addressing the matter as a class action.

55. Plaintiff knows of no difficulty that will be encountered in the management of this

litigation that would preclude its maintenance as a class action.

CAUSES OF ACTION

FIRST CAUSE OF ACTION

VIOLATION OF NEW YORK GBL § 349
(On Behalf of Plaintiff and the New York Subclass Members)

56. Plaintiff repeats each and every allegation contained in the paragraphs above and

incorporates such allegations by reference herein.

57. New York General Business Law Section 349 (“GBL § 349”) declares unlawful

“[d]eceptive acts or practices in the conduct of any business, trade, or commerce or in the

furnishing of any service in this state . . .”

58. The conduct of Defendants alleged herein constitutes recurring, “unlawful”

deceptive acts and practices in violation of GBL § 349, and as such, Plaintiff and the other Class

Members seek monetary damages.

59. Defendants misleadingly and deceptively represent the Products to consumers.

60. Defendants further omitted material facts, including the presence of Pseudomonas

Aeruginosa bacteria in the Products (or that the Products risked containing Pseudomonas

Aeruginosa).

61. Defendants’ unlawful consumer-oriented conduct is misleading in a material way

because Plaintiff and the other class members believed that the Products did not contain

Pseudomonas Aeruginosa bacteria.

62. Plaintiff and other Class Members paid extra money for accurately labeled Products

15
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 16 of 20 PageID #: 16

free from Pseudomonas Aeruginosa bacteria. Had Plaintiff and reasonable consumers known that

the Products contained (or risked containing) Pseudomonas Aeruginosa bacteria, they would not

have purchased the Products at all or at least would not have paid as much for the Products.

63. Defendants engaged in its unlawful conduct as alleged herein willfully, wantonly,

and with reckless disregard for the truth.

64. Plaintiff and other Class Members have been injured inasmuch as they, having

viewed the Products label, and paid a premium for the Products. Accordingly, Plaintiff and other

Class Members paid more than what the Products they bargained for and received were worth.

65. Defendants’ conduct as alleged herein constitutes a deceptive act and practice in

the conduct of business in violation of New York General Business Law §349(a), and Plaintiff and

other members of the Class have been damaged thereby.

66. As a result of Defendants’ deceptive acts and practices, Plaintiff and other Class

Members are entitled to monetary and compensatory damages, restitution and disgorgement of all

moneys obtained by means of Defendants’ unlawful conduct, interest, and attorneys’ fees and

costs. This includes actual damages under GBL § 349, as well as statutory damages of $50 per unit

purchased pursuant to GBL § 349.

SECOND CAUSE OF ACTION

VIOLATION OF NEW YORK GBL § 350
(On Behalf of Plaintiff and the New York Subclass Members)

67. Plaintiff repeats each and every allegation contained in the paragraphs above and

incorporates such allegations by reference herein.

68. N.Y. Gen. Bus. Law § 350 provides, in part, as follows:

False advertising in the conduct of any business, trade or commerce or in

the furnishing of any service in this state is hereby declared unlawful.

69. N.Y. Gen. Bus. Law § 350a(1) provides, in part, as follows:

16
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 17 of 20 PageID #: 17

The term ‘false advertising, including labeling, of a commodity, or of the

kind, character, terms or conditions of any employment opportunity if such
advertising is misleading in a material respect. In determining whether any
advertising is misleading, there shall be taken into account (among other
things) not only representations made by statement, word, design, device,
sound or any combination thereof, but also the extent to which the
advertising fails to reveal facts material in the light of such representations
with respect to the commodity or employment to which the advertising
relates under the conditions proscribed in said advertisement, or under such
conditions as are customary or usual . . .

70. Defendants’ labeling contains a deceptive and materially misleading statement

concerning its Products inasmuch as they misrepresented the Products were safe to use and free

from Pseudomonas Aeruginosa bacteria.

71. Defendants’ labeling contains deceptive and materially misleading omissions

concerning the presence of Pseudomonas Aeruginosa bacteria.

72. Plaintiff and other Class Members have been injured inasmuch as they, having

viewed Defendants’ label, paid a premium for the Products. Plaintiff and other Class Members

paid more than what the Products they bargained for and received were worth.

73. Defendants engaged in unlawful conduct as alleged herein willfully, wantonly, and

with reckless disregard for the truth.

74. Defendants’ material misrepresentations and omissions were substantially uniform

in content, presentation, and impact upon consumers at large.

75. As a result of Defendants’ acts and practices in violation of GBL § 350, Plaintiff

and class members are entitled to monetary and compensatory damages, restitution and

disgorgement of all monies obtained by means of Defendants’ unlawful conduct, interest, and

attorneys’ fees and costs, as well as statutory damages of $500 per Products purchased.

17
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 18 of 20 PageID #: 18

THIRD CAUSE OF ACTION

UNJUST ENRICHMENT
(On Behalf of Plaintiff and the Nationwide Class Members)

76. Plaintiff repeats each and every allegation contained in the paragraphs above and

incorporates such allegations by reference herein.

77. Plaintiff and the Class conferred a benefit on Defendants in the form of monies paid

to purchase Defendants’ defective, contaminated and worthless Products.

78. Defendants voluntarily accepted and retained this benefit.

79. Because this benefit was obtained unlawfully, namely by selling and accepting

compensation for Products unfit for human use, it would be unjust and inequitable for Defendants

to retain the benefit without paying the value thereof.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of the members of the Class request

the Court:

(i) Enter an order certifying the proposed Class under Federal Rule of Civil Procedure

23(a) and (b)(3), as set forth above, naming Plaintiff as Class Representative of the Class, and

appointing undersigned counsel for Plaintiff as Class Counsel;

(ii) Enter an order declaring that Defendants are financially responsible for notifying

the Class members of the pendency of this suit;

(iii) Issue judgment declaring that Defendants have committed the violations of law

alleged herein;

(iv) Issue judgment awarding statutory damages in the maximum amount for which the

law provides;

(v) Issue judgment awarding monetary damages, including but not limited to any

18
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 19 of 20 PageID #: 19

compensatory, incidental, or consequential damages in an amount that the Court or jury will

determine, in accordance with applicable law;

(vi) Issue judgment providing for any and all equitable monetary relief the Court deems

appropriate;

(vii) Issue judgment awarding punitive or exemplary damages in accordance with proof

and in an amount consistent with applicable precedent;

(viii) Issue judgment awarding Plaintiff his reasonable costs and expenses of suit,

including attorneys’ fees;

(ix) Issue judgment awarding pre- and post-judgment interest to the extent the law

allows; and

(x) Awarding such further relief as this Court may deem just and proper.

DEMAND FOR JURY TRIAL

Plaintiff requests a jury trial on all claims so triable.

Date: February 7, 2023 Respectfully submitted,

REESE LLP

/s/ Charles D. Moore

Charles D. Moore
100 South 5th Street, Suite 1900
Minneapolis, Minnesota 55402
Telephone: 212-643-0500
Email: cmoore@reesellp.com

REESE LLP
Michael R. Reese
100 West 93rd Street, 16th Floor
New York, New York 10025
Telephone: (212) 643-0500
Email: mreese@reesellp.com

19
Case 1:23-cv-01019-DG-MMH Document 1 Filed 02/07/23 Page 20 of 20 PageID #: 20

LAUKAITIS LAW FIRM LLC

Kevin Laukaitis (Pro hac vice application
forthcoming)
737 Bainbridge Street, #155
Philadelphia, PA 19147
Phone: (215) 789-4462
E-mail: klaukaitis@laukaitislaw.com

Attorneys for Plaintiff and the Proposed

Class

20