26. Foot odor is caused by bacteria and fungus that grow in a humid environment.  Products that retard this process do so by reducing moisture, killing the bacteria and fungus,  acting against the odor, or covering up the odor. Moisture can be reduced by increasing  ventilation, wicking away sweat, or absorbing sweat.   27. Insoles work by increasing ventilation and wicking away sweat to reduce the moisture  that allows odor causing bacteria and fungus to grow. Many insoles also contain elements that  absorb odorous molecules that drift into them.  Odor Eaters® Insoles   28. BLISTEX INC. manufactures, distributes, markets, advertises and sells Odor Eaters®  odor destroying Products. The Products are available at convenience stores, drug stores, and  other retail outlets throughout the United States, including online retailers such as Amazon.com.    29. Plaintiffs and the Class members have purchased Odor Eaters® odor destroying  Products in the lines listed below (together, the “Products”):  Product  Quantity  Per  Package  Packages  Per Order  Price  Link  Odor- Eaters  Odor  Destroy ing  Ultra  Comfort  Insoles  1 pair  1  $39.33 https://www.amazon.com/Odor-Eaters- Deodorising-Comfort-Insoles- Personal/dp/B01HQVEKKQ/ref=sr_1_15_a_it?srs =3037290011&ie=UTF8&qid=1470165580&sr=8- 15  2  $38.98 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles- Pack/dp/B01082XOM0/ref=sr_1_62_a_it?srs=3037 290011&ie=UTF8&qid=1470167955&sr=8-62  9  5  Unava ilable  https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles-Pair- pack/dp/B01JFVETCE/ref=sr_1_3_a_it?srs=30372 90011&ie=UTF8&qid=1470165580&sr=8-3  6  $22.29 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles-pair- Pack/dp/B00FFIJ8N2/ref=sr_1_71_a_it?srs=30372 90011&ie=UTF8&qid=1470168280&sr=8-71  2 pair  1  $65.15 https://www.amazon.com/Twin-Eaters-Ultra- Comfort-Odor- Eaters/dp/B01HQV4WNQ/ref=sr_1_16_a_it?srs=3 037290011&ie=UTF8&qid=1470165580&sr=8-16  3 pair  1  $21.99 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Odor-Destroying-Insoles- Expanded/dp/B01BSN9O2M/ref=sr_1_10_a_it?srs =3037290011&ie=UTF8&qid=1470168559&sr=8- 10&keywords=Odor- Eaters+Odor+Destroying+Ultra+Comfort+Insoles  3  $69.10 https://www.amazon.com/Odor-Eaters-Comfort- Odor-Destroying-Insoles- Economy/dp/B01BL49LKS/ref=sr_1_45_a_it?srs= 3037290011&ie=UTF8&qid=1470167619&sr=8- 45  4  Unava ilable  https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles- pack/dp/B01JFVM97Q/ref=sr_1_4_a_it?srs=30372 90011&ie=UTF8&qid=1470165580&sr=8-4  11  $84.20 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Insoles-Pack- 11/dp/B01IAIICKI/ref=sr_1_7_a_it?srs=30372900 11&ie=UTF8&qid=1470165580&sr=8-7  Odor- Eaters  Odor  Destroy ing  Ultra  Comfort  Insoles,  Expand ed Fit  1 pair  1  $5.90  https://www.amazon.com/Odor-Eaters-Destroying- Ultra-Comfort- Insoles/dp/B000052XW2/ref=sr_1_89_a_it?srs=30 37290011&ie=UTF8&qid=1470168403&sr=8-89  3  $21.99 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Odor-Destroying-Insoles- Expanded/dp/B01BSN9O2M/ref=sr_1_41_a_it?srs =3037290011&ie=UTF8&qid=1470167619&sr=8- 41  6  $38.99 https://www.amazon.com/Odor-Eaters-Ultra- Comfort-Odor-Destroying-Insoles- Expanded/dp/B01BSNAB0G/ref=sr_1_40_a_it?srs =3037290011&ie=UTF8&qid=1470167619&sr=8- 40  Odor- 1 pair  1  $15.99 https://www.amazon.com/Odor-Eaters-Ultra- 10  Eaters  Ultra  Durable  Insoles  Durable-Odor-Destroying-Insoles- Trim/dp/B01CI03AXI/ref=sr_1_38_a_it?srs=30372 90011&ie=UTF8&qid=1470167619&sr=8-38  3  $63.64 https://www.amazon.com/Odor-Eaters-Destroying- Insoles-Durable-3- Pack/dp/B018KT8BVW/ref=sr_1_57_a_it?srs=303 7290011&ie=UTF8&qid=1470167955&sr=8-57  5  Unava ilable  https://www.amazon.com/Odor-Eaters-Ultra- Durable-Odor-Destroying-Insoles- Size/dp/B01JFVFO50/ref=sr_1_5_a_it?srs=303729 0011&ie=UTF8&qid=1470165580&sr=8-5  10  $47.49 https://www.amazon.com/Odor-Eaters-Ultra- Durable-Odor-Destroying-Insoles- Size/dp/B01IAIL7SW/ref=sr_1_8_a_it?srs=303729 0011&ie=UTF8&qid=1470165580&sr=8-8  Odor- Eaters  Super  Tuff  Insoles  1 pair  1  $45.27 https://www.amazon.com/Odor-Eaters-Insoles- Super-Tuff- Pr/dp/B01HNCVDM6/ref=sr_1_13_a_it?srs=30372 90011&ie=UTF8&qid=1470165580&sr=8-13  6  $96.90 https://www.amazon.com/Eaters-Super-Destroying- Insoles-Odor- Eaters/dp/B01HNCV8ZI/ref=sr_1_12_a_it?srs=303 7290011&ie=UTF8&qid=1470165580&sr=8-12  Odor- Eaters  Trainer  Tamers  1 pair  1  $45.77 https://www.amazon.com/Odor-Eaters-Trainer- Tamers- Pair/dp/B01HNCKV60/ref=sr_1_13_a_it?srs=3037 290011&ie=UTF8&qid=1470167433&sr=8-13  3  $62.27 https://www.amazon.com/Odoreaters-Trainer- Tamers-Pack-Odor- Eaters/dp/B01HNCUWJG/ref=sr_1_14_a_it?srs=3 037290011&ie=UTF8&qid=1470165580&sr=8-14  6  $89.59 https://www.amazon.com/Odoreaters-Trainer- Tamers-Pack-Odor- Eaters/dp/B01CZ60EM0/ref=sr_1_29_a_it?srs=303 7290011&ie=UTF8&qid=1470167512&sr=8-29  Odor- Eaters  Foot  Warmer s  1 pair  1  $61.98 https://www.amazon.com/OdorEaters-Foot- Warmers-by-Odor- Eaters/dp/B01CZ64VNS/ref=sr_1_22_a_it?srs=303 7290011&ie=UTF8&qid=1470167245&sr=8-22  Odor- Eaters  Stink  Stopper s for  Kids &  1 pair  1  $10.99 https://www.amazon.com/Odor-Eaters-Stink- Stoppers-Teens- Insoles/dp/B01DTM39PS/ref=sr_1_20_a_it?srs=30 37290011&ie=UTF8&qid=1470167245&sr=8-20  2  $24.99  https://www.amazon.com/Odor-Eaters-Stink- Stoppers-Teens- 11  Teens  Insoles  Insoles/dp/B01DTM445W/ref=sr_1_19_a_it?srs=3 037290011&ie=UTF8&qid=1470167245&sr=8-19   30. Defendant actively promotes the odor eliminating capabilities of Odor Eaters® odor  destroying Products, claiming that each “stops” or “destroys” odor with “all-day effectiveness  guaranteed.”   31. Defendant’s claims are false, misleading and deceptive because its Products have  very little, if any, odor-eliminating capabilities.   32. In determining the meaning of the statements challenged herein, a court may  reference dictionary definitions. See Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d  387, 391 (8th Cir. 2004) (referencing a dictionary definition of “favorite”). Webster’s Dictionary  provides that the word “destroy” means “1: to ruin the structure, organic existence, or condition  of” or “2 a: to put out of existence: KILL b: NEUTRALIZE c: ANNIHILATE, VANQUISH.” Webster  Ninth New Collegiate Dictionary 345 (d9th ed. 1988). Thus, the word “destroy” denotes a  complete removal and not a mere reduction.1   33. Even if Defendant were to claim that its label means the Products “reduce” odor,  Defendant’s label is nonetheless false, misleading and deceptive. Product packaging that  purports to “destroy” what it can only slightly “reduce” is literally false. Additionally, Defendant  fails to provide any qualifying/clarifying language to its label claim that the Products destroy  odor, and Defendant’s label falsely indicates that the Products completely end odor. The  Products can only reduce odor, not end it, and the Products have very little effectiveness against  existing odors.  1 The Third Circuit addressed a similar factual scenario when an advertisement stated that a product could  “eliminate” a medical condition. Belmont Labs., Inc. v. Fed. Trade Comm’n, 103 F.2d 538, 540-41 (3d Cir. 1939).  When the evidence demonstrated that the product could only “alleviate” the condition for a period of time, the  advertisement was found to be false. Id.  12   34. Defendant’s deceptive representations and omissions are material in that a reasonable  person would attach importance to such information and would be induced to act upon such  information in making purchase decisions. Thus, Plaintiffs’ and the other Class members’  reliance upon Defendant’s misleading and deceptive representations may be presumed. The  materiality of those representations and omissions also establishes causation between  Defendant’s conduct and the injuries sustained by Plaintiffs and the Class.    35. Reasonable consumers, such as Plaintiffs and the Class members, rationally expect a  product that claims it “destroys odors” to perform as promised and end all existing odor and  prevent all future odor, rather than to merely slightly reduce some preexisting odors and prevent  most new odors from being created. The Products are not capable of actively stopping  preexisting odor as claimed, only of reducing some preexisting odor by eliminating the few odor  particles that happen to drift into the Product. Reasonable consumers also rationally expect a  product that promises “all-day effectiveness guaranteed” to actually provide the promised odor  destruction in the first place. The presence of the “Destroys Odor” statement on the labeling is  false, misleading and likely to deceive a reasonable consumer.    36. Plaintiffs and the Class members reasonably relied to their detriment on Defendant’s  false and misleading “Destroys Odor” misrepresentations.    37. Reasonable consumers (including Plaintiffs and the Class members) must and do rely  on manufacturers of household products such as Defendant to honestly report on its Products’  capabilities and mechanisms, and companies such as Defendant intend and know that consumers  rely upon labeling statements in making their purchasing decisions. Such reliance by consumers  is also eminently reasonable, since companies are prohibited from engaging in deceptive acts or  practices in the conduct of any business, trade or commerce under New York state law.  13   38. While Defendant labeled and advertised that its Products eliminate existing and  prospective odor, the Products fail to perform as promised. The misrepresentation was significant  and material given the prominent “Destroys Odor” statement on the front of the Product  packaging and throughout Defendant’s marketing, including its Odor Eaters® website. This  representation is materially different from a true description of the Products: that they can  “Reduce some existing odor” and “Reduce most new odor.”   39. Defendant knew that it made the “Destroys Odor” representation in regard to the  Odor Eaters® odor destroying Products, as the statement appears on the Products’ packaging.  Defendant also knew that the claim was false and misleading, because the Products cannot  eliminate odor or kill any bacteria and fungi that cause odor. Upon information and belief,  Defendant retains expert chemists, other scientists, regulatory compliance personnel, and  attorneys, and thus had the ability to know, and did know, that the Odor Eaters® odor destroying  Products are incapable of completely eliminating odor.   40. As a result of Defendant’s deception, consumers – including Plaintiffs and members  of the proposed Class – have purchased Products that claim to eliminate odor in reliance on  Defendant’s labels. Moreover, Plaintiffs and Class members have paid a premium for the  Products over other similar products sold on the market.  Plaintiff IZQUIERDO Relied on Defendant’s Claims and Was Injured   41. Within the last twelve months, Plaintiff IZQUIERDO was attracted to Odor Eaters®  odor destroying Products because he preferred to consume and use effective and powerful  insoles capable of completely eliminating unpleasant odors. Plaintiff IZQUIERDO believed that  the Products performed as promised by Defendant’s packaging and marketing campaign. As a  14  result, the Odor Eaters® odor destroying Products with their deceptive claims on the Product  packaging had no value to Plaintiff IZQUIERDO.    42. New York has placed requirements on companies that are designed to ensure that the  claims they are making about their products to consumers are truthful and accurate.   43. Defendant’s labeling and advertising of the Products violates New York consumer  protection laws against deceptive acts and practices in the conduct of business.    44. Although Defendant marketed the Products as an odor eliminator with “all-day  effectiveness guaranteed,” it failed to also disclose material information about the Products; the  fact that they could not eliminate odor or kill the bacteria and fungi that cause odor, and that they  incompletely reduce future odor and have little effect on existing odor. This non-disclosure, in  light of the Products’ bearing the claim “Destroys Odor,” was deceptive and likely to mislead a  reasonable consumer.    45. Plaintiffs did, and a reasonable consumer would, attach importance to whether  Defendant’s Products are deceptive or misleading and therefore unlawful.    46. Plaintiffs did not know, and had no reason to know, that the Products were not  capable of completely destroying unpleasant foot-related odors.    47. Defendant’s Product labeling was a material factor in Plaintiffs’ and Class members’  decisions to purchase the Products. Relying on Defendant’s Product labeling and misleading  website, Plaintiffs and Class members believed that they were getting Products that were  superior to other foot deodorizers. Had Plaintiffs and the Class known Defendant’s Products  could not function as promised, they would not have purchased them.  15   48. Defendant’s Product labeling as alleged herein is deceptive and misleading and was  designed to increase sales of the Products. Defendant’s misrepresentations are part of its  systematic product packaging practice.   49. As a result of Defendant’s misrepresentations, Plaintiffs and thousands of others  throughout the United States purchased the Products.    50. At the point of sale, Plaintiffs and Class members did not know, and had no reason to  know, that the Products were deceptive as set forth herein, and would not have bought the  Product had they known the truth about it. Accordingly, Plaintiffs and Class members should be  reimbursed for the full purchase price of the Products purchased by them.   51. Plaintiffs and the Classes (defined below) have been damaged by Defendant’s  deceptive and unfair conduct in that they purchased a Product with false and deceptive labeling  and paid premium prices they otherwise would not have paid over other comparable products.   52. Alternatively, Plaintiffs and Class members should be reimbursed the premium price  they were misled into paying.  53. Plaintiff IZQUIERDO seek relief in his individual capacity and as representative of  all others who are similarly situated. Pursuant to Rule 23(a), 23(b)(2) and/or 23(b)(3) of the  Federal Rules of Civil Procedure, Plaintiff IZQUIERDO seeks certification of the following  Classes:  i.  The Nationwide Class  All persons in the United States who have made retail purchases of  the Odor Eaters® odor destroying insoles with deceptive labels, as  set forth herein, during the applicable limitations period, and/or  such subclasses as the Court may deem appropriate.   ii.  The New York Class  16  All persons in New York who have made retail purchases of the  Odor Eaters® odor destroying insoles with deceptive labels, as set  forth herein, during the applicable limitations period, and/or such  subclasses as the Court may deem appropriate.    54. Excluded from these Classes are current and former officers and directors of  Defendant, members of the immediate families of the officers and directors of Defendant,  Defendant’s legal representatives, heirs, successors, assigns, and any entity in which they have or  have had a controlling interest. Also excluded from the Class is the judicial officer to whom this  lawsuit is assigned.   55. Plaintiffs reserve the right to revise the Class definitions based on facts learned in the  course of litigating this matter.   56. Certification of Plaintiffs’ claims for class-wide treatment is appropriate because  Plaintiffs can prove the elements of their claims on a class-wide basis using the same evidence as  would be used to prove those elements in individual actions alleging the same claims.   57. Numerosity: Each Class is so numerous that individual joinder of all class members is  impracticable. The precise number of members of the Classes is unknown to Plaintiffs, but it is  clear that the number greatly exceeds the number that would make joinder practicable,  particularly given Defendant’s comprehensive nationwide distribution and sales network.  Members of the Classes may be notified of the pendency of this action by recognized, Court- approved notice dissemination methods, which may include U.S. mail, electronic mail, Internet  postings, and/or published notice.    58. Commonality and Predominance: This action involves common questions of law and  fact, which predominate over any questions affecting individual members of the Classes. All  members of the Classes were exposed to Defendant’s deceptive and misleading advertising and  17  marketing claim that Odor Eaters® odor destroying Products because that claim was on every  Product label. Furthermore, common questions of law or fact include:  a. whether “Destroys Odor” and “all-day effectiveness guaranteed” labeling on the  Products was false and misleading;  b. whether Defendant engaged in a marketing practice intended to deceive  consumers;  c. whether Defendant deprived Plaintiffs and the other members of the Classes of  the benefit of the bargain because the Products purchased were different than  what Defendant warranted;  d. whether Defendant deprived Plaintiffs and the other members of the Classes of  the benefit of the bargain because the Products they purchased had less value  than what was represented by Defendant;  e. whether Defendant caused Plaintiffs and the other members of the Classes to  purchase a substance that was other than what was represented by Defendant;   f. whether Defendant caused Plaintiffs and the other members of the Classes to  purchase Products that are incapable of substantially reducing existing odor or  eliminating all future odor;  g. whether Defendant caused Plaintiffs and the other members of the Classes to  purchase Products that are incapable of entirely eliminating future odor;  h. whether Defendant has been unjustly enriched at the expense of Plaintiffs and  other Class members by its misconduct;  i. whether Defendant must disgorge any and all profits it has made as a result of its  misconduct; and  18  j. whether Defendant should be enjoined from marketing that each Odor Eaters®  odor destroying Product “Destroys Odor” with “all-day effectiveness  guaranteed” and ordered to recall mislabeled Products and issue corrective  advertising stating that the Products reduce only some existing odor and cannot  eliminate all future odor.   59. Defendant engaged in a common course of conduct in contravention of the laws  sought to be enforced by Plaintiffs individually and on behalf of the other members of the  Classes. Similar or identical statutory and common law violations, business practices, and  injuries are involved. Individual questions, if any, pale by comparison, in both quality and  quantity, to the numerous common questions that dominate this action. Moreover, the common  questions will yield common answers.    60. Typicality: Plaintiffs’ claims are typical of those of the members of the Classes  because Plaintiffs and the other Class members sustained damages arising out of the same  wrongful conduct, as detailed herein. Plaintiffs purchased Defendant’s Product and sustained  similar injuries arising out of Defendant’s conduct in violation of New York State law.  Defendant’s unlawful, unfair and fraudulent actions concern the same business practices  described herein irrespective of where they occurred or were experienced. The injuries of the  Classes were caused directly by Defendant’s wrongful misconduct. In addition, the factual  underpinning of Defendant’s misconduct is common to all Class members and represents a  common thread of misconduct resulting in injury to all members of the Classes. Plaintiffs’ claims  arise from the same practices and course of conduct that give rise to the claims of the members  of the Classes and are based on the same legal theories.   19   61. Adequacy: Plaintiffs will fairly and adequately represent and pursue the interests of  the Class and has retained competent counsel experienced in prosecuting nationwide class  actions. Plaintiffs understand the nature of his claims herein, has no disqualifying conditions, and  will vigorously represent the interests of the Classes. Neither Plaintiffs nor Plaintiffs’ counsel  have any interests that conflict with or are antagonistic to the interests of the Classes. Plaintiffs  have retained highly competent and experienced class action attorneys to represent their interests  and those of the Classes. Plaintiffs and Plaintiffs’ counsel have the necessary resources to  adequately and vigorously litigate this class action, and Plaintiffs and Plaintiffs’ counsel are  aware of their fiduciary responsibilities to the Classes and will diligently discharge those duties  by vigorously seeking the maximum possible recovery for the members of the Classes.   62. Superiority: A class action is superior to any other available means for the fair and  efficient adjudication of this controversy, and no unusual difficulties are likely to be encountered  in the management of this class action. The damages or other financial detriment suffered by  Plaintiffs and the other members of the Classes are relatively small compared to the burden and  expense that would be required to individually litigate their claims against Defendant, so it  would be impracticable for members of the Classes to individually seek redress for Defendant’s  wrongful conduct. Even if the members of the Classes could afford individual litigation, the  court system could not. Individualized litigation creates a potential for inconsistent or  contradictory judgments, and increases the delay and expense to all parties and the court system.  By contrast, the class action device presents far fewer management difficulties and provides the  benefits of single adjudication, economy of scale, and comprehensive supervision by a single  court. Given the similar nature of the members of the Classes’ claims and the absence of material  or dispositive differences in the statute and common laws upon which the claims are based when  20  such claims are grouped as proposed above and below, the Nationwide Class and New York  Class will be easily managed by the Court and the parties.    63. Declaratory and Injunctive Relief: The prerequisites to maintaining a class action for  injunctive relief or equitable relief pursuant to Rule 23(b)(2) are met, as Defendant has acted or  refused to act on grounds generally applicable to the Classes, thereby making appropriate final  injunctive or equitable relief with respect to the Classes as a whole.   64. The prerequisites to maintaining a class action for injunctive relief or equitable relief  pursuant to Rule 23(b)(3) are met, as questions of law or fact common to the Classes  predominate over any questions affecting only individual members, and a class action is superior  to other available methods for fairly and efficiently adjudicating the controversy.   65. Defendant’s conduct is generally applicable to the Classes as a whole and Plaintiffs  seek, inter alia, equitable remedies with respect to the Classes as a whole. As such, Defendant’s  systematic policies and practices make declaratory relief with respect to the Class as a whole  appropriate.   66. Further, in the alternative, the Classes may be maintained as class actions with respect  to particular issues, pursuant to Fed.R.Civ.P. 23(c)(4).  67. Plaintiff IZQUIERDO realleges and incorporates by reference the allegations  contained in all preceding paragraphs of this Complaint and further alleges as follows:  21   68. Plaintiff IZQUIERDO brings this claim on behalf of himself and the other members  of the New York Class for an injunction for violations of New York’s Deceptive Acts or  Practices Law, Gen. Bus. Law § 349 (“NY GBL § 349”).   69. NY GBL § 349 provides that “deceptive acts or practices in the conduct of any  business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.”   70. To establish a claim under NY GBL § 349, it is not necessary to prove justifiable  reliance. (“To the extent that the Appellate Division order imposed a reliance requirement on  General Business Law [§] 349 … claims, it was error. Justifiable reliance by the plaintiff is not  an element of the statutory claim.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941  (N.Y. App. Div. 2012) (internal citations omitted).)   71. Any person who has been injured by reason of any violation of NY GBL § 349 may  bring an action in their own name to enjoin such unlawful act or practice, an action to recover  their actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in  its discretion, increase the award of damages to an amount not to exceed three times the actual  damages up to one thousand dollars, if the court finds the defendant willfully or knowingly  violated this section. The court may also award reasonable attorney's fees to a prevailing  plaintiff.   72. The practices employed by Defendant, whereby Defendant advertised, promoted, and  marketed that each Odor Eaters® odor destroying Product “Destroys Odor,” were unfair,  deceptive, and misleading to Plaintiff and other New York Class members and in violation of  NY GBL § 349 for, inter alia, one or more of the following reasons:  a. Defendant engaged in deceptive, unfair and unconscionable commercial practices  in failing to reveal material facts and information about the Products, which did,  22  or tended to, mislead Plaintiff and the New York Class about facts that could not  reasonably be known by them;  b. Defendant knowingly and falsely represented and advertised that each Odor  Eaters® insole “Destroys Odor” and provides “all day effectiveness guaranteed”  with an intent to cause Plaintiff and members of the New York Class to believe  that they could function as promised;   c. Defendant failed to reveal facts that were material to the transactions in light of  representations of fact made in a positive manner;  d. Defendant caused Plaintiff and the New York Class to suffer a probability of  confusion and a misunderstanding of legal rights, obligations and/or remedies by  and through its conduct;  e. Defendant failed to reveal material facts to Plaintiff and the New York Class with  the intent that Plaintiff and the New York Class members rely upon the omission;  f. Defendant made material representations and statements of fact to Plaintiff and  the New York Class that resulted in Plaintiff and the New York Class reasonably  believing the represented or suggested state of affairs to be other than what they  actually were; and  g. Defendant intended that Plaintiff and the members of the New York Class rely on  its misrepresentations and omissions, so that Plaintiff and New York Class  members would purchase the Products.   73. The foregoing deceptive acts and practices were directed at customers.  23   74. Under all of the circumstances, Defendant’s conduct in employing these unfair and  deceptive trade practices was malicious, willful, wanton and outrageous such as to shock the  conscience of the community and warrant the imposition of punitive damages.   75. Defendant’s actions impact the public interest because Plaintiff and members of the  New York Class were injured in exactly the same way as thousands of others purchasing the  Product as a result of and pursuant to Defendant’s generalized course of deception.   76.  Plaintiff and the Class members seek to enjoin such unlawful, deceptive acts and  practices as described above. Each of the Class members will be irreparably harmed unless the  unlawful, deceptive actions of Defendant are enjoined in that Defendant will continue to falsely  and misleadingly advertise that Odor Eaters® odor destroying Products can “[Destroy] Odor”  with “all-day effectiveness guaranteed.” Plaintiff IZQUIERDO believed Defendant’s  representation that the Products would function as promised. Plaintiff IZQUIERDO would not  have purchased the Products had he known that they could not actually eliminate odor.    77. Plaintiff IZQUIERDO was injured in fact and lost money as a result of Defendant’s  conduct of improperly describing the Products as described herein. Plaintiff IZQUIERDO paid  for products that could eliminate odor, but did not receive such a product. The Product he  received was worth less than the Product for which he paid.    78. Plaintiff IZQUIERDO and New York Class members seek declaratory relief,  restitution for monies wrongfully obtained, disgorgement of ill-gotten revenues and/or profits,  injunctive relief ordering corrective advertising and recall of mislabeled Products, injunctive  relief barring Defendant from continuing to disseminate its false and misleading statements, and  other relief allowable under NY GBL § 349.  24  79. This claim is brought on behalf of Plaintiff IZQUIERDO and members of the New  York Class against Defendant.   80. Plaintiff IZQUIERDO and members of the New York Class reallege and incorporate  by reference the allegations contained in all preceding paragraphs, and further allege as follows:   81. Defendant has been and/or is engaged in the "conduct of...business, trade or  commerce" within the meaning of N.Y. Gen. Bus. Law § 350.    82. New York Gen. Bus. Law § 350 makes unlawful "[f]alse advertising in the conduct of  any business, trade or commerce." False advertising includes "advertising, including labeling, of  a commodity … if such advertising is misleading in a material respect," taking into account "the  extent to which the advertising fails to reveal facts material in light of … representations [made]  with respect to the commodity …" N.Y. Gen. Bus. Law § 350-a(1).   83. Defendant caused to be made or disseminated through New York, through  advertising, marketing and other publications, statements that were untrue or misleading, and  that were known, or which by the exercise of reasonable care should have been known to  Defendant, to be untrue and misleading to consumers and New York Class.   84.  Defendant’s affirmative misrepresentations and misrepresentations by way of  omission, as described in this Complaint, were material and substantially uniform in content,  presentation, and impact upon consumers at large. Consumers purchasing the products were and  continue to be exposed to Defendant’s material misrepresentations.   25   85. Defendant has violated N.Y. Gen. Bus. Law § 350 because the misrepresentations  and/or omissions regarding the Odor Eaters® odor destroying Products, as set forth above, were  material and likely to deceive a reasonable consumer.    86. Plaintiff IZQUIERDO and members of the New York Class have suffered an injury,  including the loss of money or property, as a result of Defendant’s false and misleading  advertising. In purchasing the Defective Products, Plaintiff IZQUIERDO and members of the  New York Class relied on the misrepresentations and/or omissions relating to the ability of the  Products to destroy odor. Those representations were false and/or misleading because the  Products cannot destroy odor or kill the bacteria and fungi that cause odor. Had the New York  Class known this, they would not have purchased their Defective Products or paid as much for  them.   87. Pursuant to N.Y. Gen. Bus. Law § 350-e, Plaintiff IZQUIERDO and members of the  New York Class seek monetary damages, injunctive relief, restitution and disgorgement of all  monies obtained by means of Defendants' unlawful conduct, interest, and attorneys' fees and  costs.   88. Plaintiffs reallege and incorporate by reference the allegations contained in all  preceding paragraphs and further allege as follows:   89. Plaintiffs bring this claim on behalf of themselves and the other members of the New  York Class for breach of express warranty under New York law.   90. Defendant provided Plaintiffs and other members of the New York Class with written  express warranties, including, but not limited to, a warranty that each Odor Eaters® Product  26  “Destroys Odor” with “all-day effectiveness guaranteed.” The claims made by Defendant were  an affirmation of fact that became part of the basis of the bargain and created an express  warranty that the good would conform to the stated promise.    91. Plaintiffs and other members of the New York Class placed importance on  Defendant’s odor destroying claims in deciding to purchase the Products.   92. Defendant breached its warranties by manufacturing, selling and/or distributing  Products to consumers that are prominently labeled “Destroys Odor” with “all-day effectiveness  guaranteed” but that cannot function as promised by eliminating all past and prospective odor.   93. Defendant previously knew or should have known of the falsity of its odor  elimination claims as manufacturer of the Products. Thus, Defendant had actual and/or  constructive notice that its claims are false and to date has taken no action to remedy its breach  of express warranty.    94. As a proximate result of Defendant’s breach of warranties, Plaintiffs and the New  York Class members have suffered damages in an amount to be determined by the Court and/or  jury, in that, among other things, they purchased and paid for products that did not conform to  what Defendant promised in its promotion, marketing, advertising, packaging and labeling, and  they were deprived of the benefit of their bargain and spent money on a product that did not have  any value or had less value than warranted or a product that they would not have purchased and  used had they known the true facts about it.   95. As a result of the breach of these warranties, Plaintiffs and the New York Class  members are entitled to legal and equitable relief including damages, costs, attorneys’ fees,  rescission, and/or other relief as deemed appropriate by the Court.  27  96. Plaintiffs reallege and incorporate by reference the allegations contained in all  preceding paragraphs and further allege as follows:   97. Plaintiffs bring this claim individually, as well as on behalf of members of the  Nationwide Class.   98. In the alternative, Plaintiffs bring this claim individually as well as on behalf of the  New York Class under New York law.   99. Defendant, directly or through its agents and employees, made false representations,  concealments, and nondisclosures to Plaintiffs and members of the Class. Defendant has  negligently represented that each Odor Eaters® odor destroying Products “Destroys Odor” with  “all-day effectiveness guaranteed” when, in fact, they do not entirely eliminate past or  prospective odor.  100.  In making the representations of fact to Plaintiffs and members of the Classes  described herein, Defendant has failed to fulfill its duties to disclose the material facts set forth  above. The direct and proximate cause of this failure to disclose was Defendant’s negligence and  carelessness.  101.  Defendant, in making the misrepresentations and omissions, and in doing the acts  alleged above, knew or reasonably should have known that the representations were not true.  Defendant made and intended the misrepresentation to induce the reliance of Plaintiffs and  members of the Classes.  28  102.  Plaintiffs and members of the Classes relied upon these false representations and  nondisclosures by Defendant when purchasing the Product, which reliance was justified and  reasonably foreseeable.  103.  As a result of Defendant’s wrongful conduct, Plaintiffs and members of the  Classes have suffered and continue to suffer economic losses and other general and specific  damages, including but not limited to the amounts paid for the Product, and any interest that  would have been accrued on those monies, all in an amount to be determined according to proof  at time of trial.  BREACH OF EXPRESS WARRANTIES  (Brought on Behalf of the New York Class)   INJUNCTION AND DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL  BUSINESS LAW § 349  (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)  (Brought on Behalf of the New York Class)   Insole Products   NEGLIGENT MISREPRESENTATION  (Brought on Behalf of the Nationwide Class or, Alternatively, the New York Class)  (Pleaded in the Alternative)   UNJUST ENRICHMENT  (Brought on Behalf of the Nationwide Class or, Alternatively, the New York Class)  (Pleaded in the Alternative)  104.  Plaintiffs reallege and incorporate by reference the allegations contained in all  preceding paragraphs and further allege as follows:  105.  Plaintiffs assert this claim in the alternative in the event that the Court concludes  that Plaintiffs lack an adequate remedy at law.  106.  Plaintiffs bring this claim individually, as well as on behalf of members of the  Nationwide Class. Although there are numerous permutations of the elements of the unjust  enrichment cause of action in the various states, there are few real differences. In all states, the  focus of an unjust enrichment claim is whether the defendant was unjustly enriched. At the core  of each state’s law are two fundamental elements – the defendant received a benefit from the  plaintiff and it would be inequitable for the defendant to retain that benefit without compensating  the plaintiff. The focus of the inquiry is the same in each state. Since there is no material conflict  relating to the elements of unjust enrichment between the different jurisdictions from which class  members will be drawn, New York law may be applied to the claims of the Nationwide Class.  29  107.  In the alternative, Plaintiffs bring this claim individually as well as on behalf of  the New York Class under New York law.  108.  At all times relevant hereto, Defendant deceptively labeled, marketed, advertised  that each Odor Eaters® Product “Destroys Odor” with “all-day effectiveness guaranteed” to  Plaintiffs and the Classes.  109.  Plaintiffs and members of the Classes reasonably relied on Defendant’s odor and  freshness representations, and in reasonable reliance thereon, purchased the Products.  110.  Plaintiffs and members of the Classes conferred upon Defendant non-gratuitous  payments for the Products that they would not have due to Defendant’s deceptive labeling,  advertising, and marketing. Defendant accepted or retained the non-gratuitous benefits conferred  by Plaintiffs and members of the Classes, with full knowledge and awareness that, as a result of  Defendant’s deception, Plaintiffs and members of the Classes were not receiving a product of the  quality, nature, fitness, or value that had been represented by Defendant and reasonable  consumers would have expected.  111.  Defendant has been unjustly enriched in retaining the revenues derived from  purchases of Defendant’s Products by Plaintiffs and members of the Class, which retention under  these circumstances is unjust and inequitable because Defendant misrepresented that each Odor  Eaters® Product “Destroys Odor” with “all-day effectiveness guaranteed” even though they do  not eliminate all odor, which caused injuries to Plaintiffs and members of the Classes because  they paid a price premium due to the mislabeling of the Product.  112.  Retaining the non-gratuitous benefits conferred upon Defendant by Plaintiffs and  members of the Classes under these circumstances made Defendant’s retention of the non- 30  gratuitous benefits unjust and inequitable. Thus, Defendant must pay restitution to Plaintiffs and  members of the Classes for its unjust enrichment, as ordered by the Court.  VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW §§ 350 AND 350-a(1)  (FALSE ADVERTISING)  (Brought on Behalf of the New York Class)  