 Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing   11. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   12. In or about 2014, Plaintiff purchased the “DualTools PS7000” (the “polisher/sander” or  “PS7000”), which is the subject of this litigation, from the Lowe’s Home Center located in  Shelby Township, Michigan.       13. The polisher/sander is unique in that it has 2 individual and separate pads; which rotate in  opposite directions, designed to eliminate kickback, scars, and swirl marks.    14. Because of the unique nature of the polisher/sander, it requires a one-of-a-kind  polishing/sanding pad designed to accommodate the dual counter-rotating pads.    15. Said pads are only manufactured by Infusion Brands, Inc., and made specifically for use with  the polisher/sander. Consequently, when the polishing/sanding pad wears down and is no  longer usable, a consumer’s only option is to purchase the one-of-a-kind polishing/sanding  pads made specifically for said product. Without these very unique and specific pads, the  polisher/sander cannot be used.    16. In the instant case, Plaintiff purchased his polisher/sander in 2014, very close in time to with  the date the polisher/sander was first offered for sale to the public. At this time, Plaintiff also  purchased 3 polishing pads, made specifically to be used with the polisher/sander.    18. To date, and based upon information and belief, Infusion still has not manufactured any  replacement pads to be made available for consumer’s to purchase.    19. The polisher/sander cannot be used as advertised without these very unique and specific pads.  Consequently, and because Infusion failed to produce the necessary replacement pads, the  polisher/sander is utterly useless.    20. Based upon information and belief, the PS7000 was manufactured by Infusion and sold to  consumers at Menards, Lowe’s, Amazon.com, and dualtools.com.           21. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   22. Plaintiff brings all claims herein as class claims pursuant to Rule 23 of the Federal Rules of  Civil Procedure (“FRCP”). Plaintiff hereby reserves the right to amend the class action  allegations after further discovery on the matter has occurred. The requirements of FRCP 23  are met with respect to the class defined below.  A. Class Definition(s)    24. Plaintiff proposes that the Class be defined as:  All persons or entities throughout the United States and its territories that, during  the class period, purchased a “DualTools PS7000” polisher/sander.      25. Plaintiff proposes that the “class period” be defined as ending on March 11, 2016 and  beginning on the first allowable date after accounting for any applicable state statute of  limitations.      27. Based upon Defendants’ publicly available sales data, it is estimated that the Class numbers are  potentially in the millions and that joinder of all members is impracticable. The number and  identities of proposed class members are administratively feasible and can be determined  through appropriate discovery and identification from Defendants’ records. Moreover, joinder  of all members is further impracticable because the proposed class members reside throughout  the United States.   C. Commonality – FRCP 23(a)(2)   28. This action involves questions of law or fact common to the class. These common questions  predominate over questions that affect only individual proposed class members.     30. Plaintiff’s claims are typical of the claims of the proposed class.    31. Plaintiff’s claim is typical because it arises from the same unlawful, unfair and deceptive  business conduct that gave rise to the claims of the other proposed class members and because  all such claims are based on the same legal theory.    32. Plaintiff’s claims are typical of the claims of the proposed class because, during the class  period, Plaintiff and each proposed member bought the exact same product, specifically the  “DualTools PS7000.” Defendants’ unlawful, unfair, and fraudulent actions concern the same  business practices described herein, irrespective of where they occurred or were experienced.  The injuries of each member of the proposed class were caused directly by Defendants’  wrongful conduct. In addition, the factual basis for the alleged misconduct is common to all  proposed class members and represents a common thread of misconduct resulting in injury to  all proposed members.   E. Adequacy – FRCP 23(a)(4)   33. The representative parties in this case will fairly and adequately protect the interests of the  class.    35. The questions of law or fact common to the proposed class members predominate over any  questions affecting only individual members.    36. Common issues predominate because any individual factual determinations that will need to  be made can be accomplished using Defendants’ computer records. Moreover, common issues  predominate because adding more plaintiffs to the class will not increase the amount of  evidence that will be required to be introduced.    37. In addition, the fact that each individual class member may be entitled to a specific, and  different, amount of damages does not cause individual questions to predominate over  common questions. “Courts in every circuit have uniformly held that the 23(b)(3)  predominance requirement is satisfied despite the need to make individualized damage  determinations and a recent dissenting decision of four Supreme Court Justices characterized  the point as ‘well nigh universal.’ Indeed, a class may also be certified solely on the basis of  common liability, with individualized damages determinations left to subsequent  proceedings.” (William B. Rubenstein, Newberg on Class Actions, § 4:54 (5th ed.)(Updated  June 2015) (citations omitted)).   39. A class action in this case is superior to other available methods for fairly and efficiently  adjudicating the controversy.     40. When considered on an individual basis, the damages resulting from Defendants’ unfair and  deceptive business practices are extremely low. Consequently, it is highly unlikely any  individual claimant (and even less likely that an attorney) would spend the time, money and  effort necessary to challenge the alleged conduct. Therefore, there is no question that a class  action is the superior method of adjudication.     41. 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 create.  Class treatment of common questions of law and fact would also be superior to multiple  individual actions or piecemeal litigation in that class treatment will conserve the resources of  the Court and the litigants, and will promote consistency and efficiency of adjudication.  F. The Prerequisites of Rule 23(b)(3) are Satisfied   43. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   44. Defendants’ tender of the performance did not conform as a result of the vehicle’s mechanical  defects, lack of merchantability, or fitness for intended purpose which existed at the time of  delivery, and which is a material breach of contract.   45. Whether by law or statute, all contracts impose upon each party a duty of good faith and fair  dealing.    46. Plaintiff and the proposed class members entered into a contract with Defendants in which they  agreed to pay Defendants money in consideration for the PS7000 polisher/sander.      47. Each Defendant breached its duty of good faith and fair dealing by failing to determine  whether the product it sold could be used by consumers as advertised.      48. Defendants violated their duty of good faith and fair dealing by failing to determine if there  was a large enough supply of PS7000 replacement pads to meet the reasonably expectable  public demand.    50. Plaintiff and the proposed class members have performed all, or substantially all, of the  obligations imposed on them under their agreement with the respective Defendant.    51. Plaintiff and the proposed class have sustained damages as an actual and legal result of  Defendants’ breach of the covenant of good faith and fair dealing. Consequently, they are  entitled to damages in an amount to be later determined.     52. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   53. Plaintiff and the members of the proposed class conferred a benefit on each Defendant by  tendering money to them in consideration for purchasing the PS7000 polisher/sander.    54. Plaintiff and the proposed class did not receive the benefit of the barging because they no  longer can use the polisher/sander due to the fact that it is impossible to obtain replacement  pads. Despite this fact, Defendants’ knowingly and willfully retained the benefits and funds  from Plaintiff and the proposed class, in conscious disregard for their rights.    55. As a direct and legal result, Defendants have been unjustly enriched at the expense and  detriment of Plaintiff and the proposed class.    56.  Defendants must pay restitution to Plaintiff and the members of the proposed class for its  unjust enrichment, in an amount to be later determined.  58. All fifty states and the District of Columbia have enacted statutes to protect consumers against  unfair, deceptive or fraudulent business practices. These state statues are often referred to as  “Little FTC” consumer protection acts due to the obvious similarities they share with Section  5(a) of Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices  in or affecting commerce.” 15 U.S.C. § 45(a).    60. Defendants’ policies and practices as described herein are misleading, deceptive, unfair, false  and fraudulent and are in violation of the above-cited statutes. Including, but not limited to, the  following practices, which have been intentionally, knowingly and unlawfully perpetrated  upon Plaintiff and the proposed class members:  a. Advertising products for sale from companies without determining whether there is a  large enough supply of the replacement pads necessary to meet the reasonably expectable  public demand;  b. Defendants’ business practices, as described herein, which are otherwise unlawful, unfair  or deceptive and in violation of the state statutes described in the above sub-classes.    61. Defendants’ actions as described herein occurred during the course of trade and commerce.   62. Defendants have injured the public interest, and Defendants’ actions pose a continued threat to  the public.   63. Defendants’ acted knowingly, with intent to defraud, deceive and with intent that Plaintiff and  the proposed class members rely on Defendants’ deceptive concealments and  misrepresentations, which they reasonably did.   65. Plaintiff re-alleges and hereby incorporates by this reference each and every preceding and  subsequent allegation as though fully set forth herein.   66. Defendants fraudulently concealed the fact that they knew, or should have known, that there  was not a large enough supply of the replacement pads necessary to meet the reasonably  expectable public demand.     67. Defendants fraudulently concealed the fact that the PS7000 could only be used with the  specially manufactured and unique replacement pads.      68. Defendants engaged in this conduct with the intent to deceive Plaintiff and/or the proposed  class and to induce them to enter into the contract.    69. Plaintiff and/or the proposed class members reasonably relied on Defendants’ conduct and  were actually deceived by Defendants’ fraudulent actions.    70. Defendants made a promise that they had no intention of performing, and this false  misrepresentation pertained to a material fact of the contract.   71. As a direct and legal result of Defendants’ misleading, deceptive, unfair, false and fraudulent  practices, Plaintiff and/or the proposed class members have sustained damages in an amount to  be determined later.   Fraudulent Inducement  (As Applied to Plaintiff Individually or Alternatively to the Proposed Class)   Unfair and Deceptive Acts and Practices   (Violation of State “Little FTC” Consumer Protections Acts)   Unjust Enrichment  