12.  Probiotics are live microorganisms that, when administrated in adequate amounts,  confer a health benefit on the host.  The term probiotics excludes metabolic by-products of  microorganisms, dead microorganisms, or other microbial-based, non-viable products.    13.  In 2001, the Food and Agriculture Organization of the United Nations (“FAO”)  and the World Health Organization (“WHO”) convened to establish guidelines regarding  probiotics.  The organizations defined “probiotics” as “Live organisms which when administered  in adequate amounts confer a health benefit on the host.”2    14.  In 2013, the International Association for Probiotics and Prebiotics (“ISAPP”)  also defined probiotics as “Live microorganisms that, when administered in adequate amounts,  confer a health benefit on the host.”  They also noted that this definition is “the widely accepted  scientific definition around the world.”3   15.  Preservatives are bioactive ingredients or substances that have the ability to  prevent or decrease microbial growth in a cosmetic product.  Antimicrobial preservatives protect  cosmetics from contamination of microorganisms, like bacteria, yeast and mold, and can prolong  the shelf-life of cosmetic products.  Preservatives are a key component in making a cosmetic  inhospitable to microorganisms.  Inclusion of a preservative into a cosmetic that contains  probiotics would render a cosmetic inhospitable to live microorganisms such as probiotics.    17.  Clinique sells, manufactures, and markets its Redness Solutions line of cosmetics,  which is sold as a “daily redness regimen” intended to “get redness under control.”  On the front  of the Clinique Packaging, the products are touted as containing “probiotic” or “microbiome  technology:”   18.  However, the Clinique Cosmetics contain preservatives that render any added  probiotics inert, and are therefore ineffective:   Product  Preservative  Redness Solutions Soothing Cleanser  Butylated HydroToluene and  Phenoxyethanol  Redness Solutions Daily Relief Cream  Potassium sorbate and  Phenoxyethanol  Redness Solutions Makeup Broad Spectrum SPF 15  Phenoxyethanol  Redness Solutions Instant Relief Mineral Pressed Powder  Chlorphenesin and Sodium  Dehydroacetate   20.  Defendant knew or should have known that the Clinique Cosmetics express  Probiotic Claims were false, deceptive, and misleading, and that Plaintiff, the Class, and  Subclass Members would not be able to tell that the Clinique Cosmetics did not contain  probiotics absent Defendant’s express disclosure.    21.  Defendant employs professional cosmetic chemists and microbiologists to create  the chemical formulas for the Clinique Cosmetics.  Therefore, Defendant through its employees  knew or should have known that the Clinique Cosmetics did not contained probiotics and that it  was deceiving consumers by labeling the Products as containing “probiotic” or “microbiome  technology.”    23.  Had Defendant not made the false, misleading, and deceptive representations  and/or omissions alleged herein, Plaintiff and Class Members would not have purchased the  Clinique Cosmetics or would not have paid as much as they did for such products.  Thus,  Plaintiff and Class Members suffered an injury in fact and lost money or property as result of  Defendant’s wrongful conduct.  24.  Plaintiff hereby incorporates by reference and re-alleges herein the allegations  contained in all preceding paragraphs of this complaint.    25.  Plaintiff seeks to represent a class defined as all people who purchased any  Clinique Cosmetics product that falsely advertised that the product purportedly contained  “probiotic technology” during the applicable statute of limitations (the “Class”).  Specifically  excluded from the Class are Defendant, Defendant’s officers, directors, agents, trustees, parents,  children, corporations, trusts, representatives, employees, principals, servants, partners, joint  ventures, or entities controlled by Defendant, and its heirs, successors, assigns, or other persons  or entities related to or affiliated with Defendant and/or Defendant’s officers and/or directors, the  judge assigned to this action, and any member of the judge’s immediate family.   26.  Plaintiff Dalit Cohen also seeks to represent a subclass consisting of Class  Members who reside in New York (the “New York Subclass”).    28.  Numerosity.  The Class and Subclass Members are geographically dispersed  throughout the United States and are so numerous that individual joinder is impracticable.  Upon  information and belief, Plaintiff reasonably estimates that there are hundreds of thousands of  Members in the Class and in the Subclass.  Although the precise number of Class and Subclass  Members is unknown to Plaintiff, it is known by Defendant and may be determined through  discovery.    30.  Typicality.  Plaintiff’s claims are typical of the claims of the other Members of  the Class and Subclass in that, among other things, all Class and Subclass Members were  deceived (or reasonably likely to be deceived) in the same way by Defendant’s false and  misleading advertising claims about the probiotic technology of Clinique Cosmetics.  All Class  and Subclass Members were comparably injured by Defendant’s wrongful conduct as set forth  herein.  Further, there are no defenses available to Defendant that are unique to Plaintiff.   31.  Adequacy of Representation.  Plaintiff will fairly and adequately protect the  interests of the Members of the Class and Subclass.  Plaintiff has retained counsel that is highly  experienced in complex consumer class action litigation, and Plaintiff intends to vigorously  prosecute this action on behalf of the Class and Subclass.  Furthermore, Plaintiff have no  interests that are antagonistic to those of the Class or Subclass.   33.  In the alternative, the Class and Subclass may also be certified because:  (a)  the prosecution of separate actions by individual Class and Subclass  Members would create a risk of inconsistent or varying adjudications with respect to individual  Class or Subclass Members that would establish incompatible standards of conduct for  Defendant;  (b)  the prosecution of separate actions by individual Class and Subclass  Members would create a risk of adjudications with respect to them that would, as a practical  matter, be dispositive of the interests of other Class and Subclass Members not parties to the  adjudications, or substantially impair or impede their ability to protect their interests; and/or  (c)  Defendant has acted or refused to act on grounds generally applicable to  the Class and to the Subclass as a whole, thereby making appropriate final declaratory and/or  injunctive relief with respect to the Members of the Class and to the Members of the Subclass as  a whole.  34.  Plaintiff hereby incorporates by reference and re-allege herein the allegations  contained in all preceding paragraphs of this complaint.   35.  Plaintiff Dalit Cohen brings this claim individually and on behalf of the Members  of the proposed New York Subclass against Defendant.    36.  Defendant committed deceptive acts and practices by employing false,  misleading, and deceptive representations and/or omissions about the probiotic technology of its  Clinique Cosmetics to mislead consumers into believing the Clinique Cosmetics contain  probiotics.    37.  Plaintiff Cohen has standing to pursue this claim because she has suffered an  injury-in-fact and has lost money or property as a result of Defendant’s deceptive acts and  practices.  Specifically, Plaintiff Cohen purchased Clinique Cosmetics for her own personal use.   In doing so, Plaintiff Cohen relied upon Defendant’s false, misleading, and deceptive  representations that Clinique Cosmetics contained probiotic technology.  Plaintiff Cohen spent  money in the transaction that she otherwise would not have spent had she known the truth about  Defendant’s advertising claims.   38.  Defendant’s deceptive acts and practices were directed at consumers.    40.  As a direct and proximate result of Defendant’s false, misleading, and deceptive  representations and/or omissions, Plaintiff Cohen and other Members of the New York Subclass  were injured in that they: (1) paid money for Clinique Cosmetics that were not what Defendant  represented; (2) were deprived of the benefit of the bargain because the Clinique Cosmetics they  purchased were different than Defendant advertised; and (3) were deprived of the benefit of the  bargain because the Clinique Cosmetics they purchased had less value than if Defendant’s  representations about probiotics were truthful.     41.  On behalf of herself and Members of the New York Subclass, Plaintiff Cohen  seeks to enjoin Defendant’s unlawful acts and practices and recover her actual damages or fifty  (50) dollars, whichever is greater, three times actual damages, and reasonable attorneys’ fees.  42.  Plaintiff hereby incorporates by reference and re-allege herein the allegations  contained in all preceding paragraphs of this complaint.   43.  Plaintiff Dalit Cohen brings this claim individually and on behalf of the Members  of the proposed New York Subclass against Defendant.   45.  Plaintiff Cohen has standing to pursue this claim because she has suffered an  injury-in-fact and has lost money or property as a result of Defendant’s deceptive acts and  practices.  Specifically, Plaintiff Cohen purchased Clinique Cosmetics for her own personal use.   In doing so, Plaintiff Cohen relied upon Defendant’s false, misleading, and deceptive  representations that Clinique Cosmetics would contain probiotics when they do not.  Plaintiff  Cohen spent money in the transaction that she otherwise would not have spent had she known  the truth about Defendant’s advertising claims.   46.  Defendant’s deceptive acts and practices were directed at consumers.    47.  Defendant’s deceptive acts and practices are misleading in a material way  because, as alleged above and herein, they violate consumers’ reasonable expectations.  If  Defendant had advertised its Clinique Cosmetics truthfully and in a non-misleading fashion,  Plaintiff and other New York Subclass Members would not have purchased the Clinique  Cosmetics or would not have paid as much as they did for them.    48.  As a direct and proximate result of Defendant’s false, misleading, and deceptive  representations and omissions, Plaintiff Cohen and other Members of the New York Subclass  were injured in that they: (1) paid money for Clinique Cosmetics that were not what Defendant  represented; (2) were deprived of the benefit of the bargain because the Clinique Cosmetics they  purchased were different than Defendant advertised; and (3) were deprived of the benefit of the  bargain because the Clinique Cosmetics they purchased had less value than if Defendant’s  representations about probiotics were truthful.     50.  Plaintiff hereby incorporates by reference and re-allege herein the allegations  contained in all preceding paragraphs of this complaint.   51.  Plaintiff Dalit Cohen brings this claim individually and on behalf of the Members  of the proposed Class and Subclass against Defendant.   52.  As the designer, manufacturer, marketer, distributor, and/or seller of Clinique  Cosmetics, Defendant issued an express warranty by representing to consumers at the point of  purchase that Clinique Cosmetics contained probiotic technology.  Defendant’s representations  were part of the description of the goods and the bargain upon which the goods were offered for  sale and purchased by Plaintiff and Members of the Class and Subclass.   53.  In fact, the Clinique Cosmetics do not conform to Defendant’s representations  about probiotic technology because Clinique Cosmetics do not, in fact, contain active probiotics.   By falsely representing the Clinique Cosmetics in this way, Defendant breached express  warranties.   55.  As a direct and proximate result of Defendant’s breach, Plaintiff and Members of  the Class and Subclass were injured because they: (1) paid money for Clinique Cosmetics that  were not what Defendant represented; (2) were deprived of the benefit of the bargain because the  Clinique Cosmetics they purchased were different than Defendant advertised; and (3) were  deprived of the benefit of the bargain because the Clinique Cosmetics they purchased had less  value than if Defendant’s representations about probiotics were truthful.  Had Defendant not  breached the express warranty by making the false representations alleged herein, Plaintiff and  Class and Subclass Members would not have purchased the Clinique Cosmetics or would not  have paid as much as they did for them.   56.  Plaintiff hereby incorporates by reference and re-allege herein the allegations  contained in all preceding paragraphs of this complaint.   57.  Plaintiff Dalit Cohen brings this claim individually and on behalf of the Members  of the proposed Class and Subclass against Defendant.   58.  Defendant routinely engages in the manufacture, distribution, and/or sale of  Clinique Cosmetics and is a merchant that deals in such goods or otherwise holds itself out as  having knowledge or skill particular to the practices and goods involved.     59.  Plaintiff and Members of the Class and Subclass were consumers who purchased  Defendant’s Clinique Cosmetics for the ordinary purpose of such products.   61.  However, the Clinique Cosmetics were not of the same average grade, quality,  and value as similar goods sold under similar circumstances.  Thus, they were not merchantable  and, as such, would not pass without objection in the trade or industry under the contract  description.    62.  As a direct and proximate result of Defendant’s breach, Plaintiff and Members of  the Class and Subclass were injured because they paid money for Clinique Cosmetics that would  not pass without objection in the trade or industry under the contract description.   Breach Of Express Warranty  (On Behalf Of The Class And The New York Subclass)   Breach of Implied Warranty  (On Behalf Of The Class And The New York Subclass)   Violation Of New York’s Gen. Bus. Law § 350  (On Behalf Of The New York Subclass)  