12.  Swagway sells the Swagway Hoverboard.   13.  According to Swagway’s, website, “SWAGWAY is very meticulous” with  respect to the manufacture of Swagway Hoverboards. “We make sure our boards are  made with the finest parts. All of our boards come with a high quality aluminum alloy  frame. Our batteries are a high-powered lithium ion Samsung/LG battery. Our technology  is built on a strong platform, which eliminates reaction time from rider to board, giving  the ability to maneuver wherever the user pleases. We are still a higher quality but for an  even more affordable price.”   14.  A February 4, 2015 CNBC article quoted a Swagway corporate  representative as stating, “These types of boards are new so there seems to be a lot of  varying information out there, but for sake of safety, we can’t stress enough how the  caliber of the components used can make an impact in the overall safety of these boards.”  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 3 of 15 4  15.  The Swagway Hoverboard runs off of a battery that is charged via an  ordinary electric wall socket.  The Swagway User Manual provides: “Locate the charging  port on the back of the Swagway. • Ensure the charging port is dry. • First plug the  charger into the wall (100V-240V; 50, 60Hz). Verify the green light lights up, then plug  the other end of the charger into the Swagway. • The red indicator light on the charger  indicates that it is charging properly. If the light does not come on, check that the charger  is connected securely to the wall and to the Swagway.”   16.  Upon information and belief, Swagway Hoverboards are sold throughout  the United States.  The following graphic, copied from Swagway’s website,  www.swagway.com, provides transit time for shipping Swagway Hoverboards to every  state:  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 4 of 15 5  17.  Swagway Hoverboards are available for purchase from Modell’s website,  www.modells.com.  They are also available for sale at Swagway.com, Amazon.com,  newegg.com, pcdirect.com, Target.com, and Walmart.com.   18.  Swagway markets its Swagway Hoverboards on its own website, as well  as Facebook (facebook.com/swagwayusa), Twitter (twitter.com/swagwayusa), Pinterest  (www.pinterest.com/swagwayusa), Youtube  (https://www.youtube.com/channel/UCncZXPMRgIOQcmpKjhCT9oA), and Instagram  (instagram.com/swagwayusa), and through additional channels, including QVC.    19.  Swagway Hoverboards have been featured in the following television  shows with a nationwide audience: Good Morning America, The Inside, The Today  Show, The Ellen Degeneres Show, and CBS This Morning. They have also been featured  in such publications as USA Today, Wired, People, and PC Magazine.      20.  In actuality, the Swagway Hoverboard is unsafe for its intended use  inasmuch as it is defective and presents a material likelihood that it will self-combust or  short-circuit while charging, leading to fire and/other damage.   21.  In marketing and selling Swagway Hoverboards on its website, as well as  otherwise, Swagway did not disclose the defects in the product that could cause it to be  self-combusting and otherwise dangerous, and, rather, impliedly or expressly represented  that the product would be safe for its intended purposes and free from defect and/or failed  to disclose that the product was unsafe, not fit for its intended purposes and not free from  defect.   22.  In deciding to market and sell Swagway Hoverboards, as on its website, as  well as within its stores, Modells failed to take proper steps to ensure that the product was  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 5 of 15 6 safe and free from defect and not inherently dangerous as a result of its defect, and, rather  impliedly or expressly represented that the product would be safe for its intended  purposes and free from defect and/or failed to disclose that the product was unsafe, not fit  for its intended purposes and not free from defect.   23.  Unless enjoined, Defendants will continue to market and sell the defective  and dangerous Swagway Hoverboards.  Hoverboards In America and Throughout the World Have Been Self-Combusting   24.  Upon information and belief, self-balancing electric scooters have been  combusting across the country and the world.     25.  On December 9, 2015, Newsweek published an article with the headline  “Another Day, Another Hoverboard Explosion: Concern Over Safety Continues to  Grow.”  The article reported that a family home in Louisiana and an apartment in Hong  Kong burned down because of hoverboard fires.   26.     The Newsweek article added that “nearly all hoverboards are manufactured  in China with little safety oversight.”   27.     On November 9, 2015, the website BuzzfeedNews published an article  entitled “Those Hoverboard Things Kids Ride Around On Keep Exploding.”  The article  reported that a woman in England suffered burns after the hoverboard she was riding on  caught fire.  The article added that within the past month, London firefighters responded  to two calls where hoverboards caught fire in homes.   28.  Similarly, on December 3, 2015, the Wall Street Journal published a video  under the caption “Hoverboard Fire Safety Concern Grows.”  Plaintiff’s Swagway Hoverboard Self-Combusts  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 6 of 15 7  29.  On or about November 24, 2015, Plaintiff purchased a Swagway  Hoverboard on www.modells.com.    30.  The cost of the unit was $399.99 (and the total price was $443.49).   31.  Plaintiff purchased the Swagway Hoverboard for his children, as a  Chanukah present.   32.  Neither Swagway nor Modell’s warned Plaintiff that there was a  substantial risk that the Swagway Hoverboard could burst into flames while charging.   33.  On December 6, 2015, on the first night of Chanukah, the Swagway  Hoverboard was removed from its box.   34.  After approximately thirty minutes of use, the Swagway Hoverboard  indicated low battery.   35.  The Swagway Hoverboard was then plugged into an electrical outlet in  accordance with Swagway’s instructions.   36.  Approximately 45 minutes later, the Swagway Hoverboard burst into  flames.   37.  The flames ignited the packaging materials, which were located nearby the  Swagway Hoverboard.   38.  The fire was so substantial that the fire department had to respond to the  scene.   39.  The fire destroyed the Swagway Hoverboard and damaged Plaintiff’s  home, as is shown by the following:  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 7 of 15 8 40.  Plaintiff sues on his own behalf and on behalf of the Class and Subclass as  defined above, pursuant to FED. R. CIV. P. 23(a), (b)(2) and (b)(3) seeking to assert the  claims set forth below.   41.  The Class and Subclass are so numerous that joinder of all members is  impracticable.  Although the precise number of purchasers of Swagway Hoverboards is  unknown, the number sold and identity of such purchasers is known to Defendants, are  readily identifiable, and can be located through Defendants’ records.  Upon information  and belief, there are thousands of members of the Class and the Subclass.   42.  There are questions of law and fact common to the members of the Class  and Subclass that predominate over any questions solely affecting the individual  members of the Class and Subclass.  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 8 of 15 9  43.  The critical question of law and fact common to Plaintiff, the Class and  Subclass that will materially advance the litigation is whether, and if so when,  Defendants learned that there was a substantial risk that the Swagway Hoverboard was  defective and posed a danger of a fire hazard by bursting into flames during normal  charging operation.   44.  Other questions of law and fact common to the Class and Subclass that  will materially advance the litigation include, without limitation:   a.  Whether Defendants failed to warn Plaintiff and the members of  the Class and the Subclass that there was a substantial risk the  Swagway Hoverboard could burst into flame during normal  charging operation;  b.  Whether Defendants’ failure to inform Plaintiff and members of  the Class and the Subclass that there was a substantial risk that the   Swagway Hoverboard was combustible during normal charging  operation was a deceptive act and material omission of fact to  reasonable purchasers of  Swagway Hoverboards;  c.  Whether Defendants are liable for all damages claimed by Plaintiff  and the Class and Subclass, including, without limitation,  compensatory, punitive and statutory damages, restitution, interest,  costs and disbursements, and attorneys’ fees;  d.  Whether Defendants’ failure to inform consumers that the  Swagway Hoverboards were defective and susceptible to  combustion constituted a deceptive or unfair act or acts in violation  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 9 of 15 10 of the claims set forth in this Complaint, for which plaintiff and  members of the Class are entitled to recover damages; and  e.  Whether Defendants should be enjoined from continuing to market  and sell an unsafe and defective product and from continuing to  market and sell the Swagway Hoverboards in a misleading and  deceptive manner as set forth in this Complaint and whether  Defendants should be compelled, among other things, to offer to  the members of the Class and Subclass with an option to return for  the full amount paid (and incidental cost such as shipping and  taxes) and/or repair and replacement the product by providing  them with a safe and non-defective product, at Defendants’  expense.   45.      Plaintiff’s claims are typical of the claims of the members of the Class and  Subclass.  Plaintiff has the same interests in this matter as all other members of the Class  and Subclass.   46.  Plaintiff is an adequate class representative, is committed to pursuing this  action and has retained competent counsel experienced in consumer class action  litigation.   47.  Class certification of Plaintiff’s claims is appropriate pursuant to FED. R.  CIV. P. 23(b)(2) because Defendants have acted or refused to act on grounds generally  applicable to the Class and Subclass, making appropriate both declaratory and injunctive  relief with respect to the Class and Subclass.  The members of the Class and Subclass are  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 10 of 15 11 entitled to injunctive relief to end Defendants’ common and uniform policy under the  claims set forth herein.     48.  Class certification of Plaintiff’s claims is also appropriate pursuant to FED.  R. CIV. P. 23(b)(3) because questions of law and fact common to the Class and Subclass  predominate over questions affecting only individual members of the Class, and because  a class action is superior to other available methods for the fair and efficient adjudication  of this litigation.   49.  Plaintiff knows of no difficulty that would be encountered in the  management of this litigation that would preclude its maintenance as a class action.   50.  The Subclass, as defined above, is also proper pursuant to FED. R. CIV. P.  23(c)(5).  51.   Plaintiff realleges and incorporates by reference paragraphs 1 through 50  as if they were set forth again herein.   52.   The Swagway Hoverboard was advertised and sold by Defendants as safe  and fit its ordinary purpose of transportation and use and free from defect.    53.   Plaintiff and Class and Subclass members purchased the Swagway  Hoverboard on the Defendants’ implied warranties that the Swagway Hoverboard was  safe and fit the purposes for which it was intended to be used and free from defects.  Had  they known that, contrary to the implied warranties that the Swagway Hoverbaord was  not safe and fit the purposes for which it was intended to be used and not free from  defect, they would not have purchased it.  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 11 of 15 12  54.  The Swagway Hoverboard was inherently defectively designed or  manufactured so as to cause it to not to be safe and fit for the purposes for which it was  intended to be used and not to be free from defect.   55.  Any disclaimers of implied warranties are ineffectual, as they were not  provided to Plaintiffs or Class or Subclass members or otherwise made known to them,  who were not informed of the material non-compliance of the goods.  In addition, any  such disclaimers are unconscionable under the circumstances.   56.  As a direct and proximate result of Defendants’ breach of implied  warranties, Plaintiffs and the Class and Subclass members have sustained economic  losses and other damages for which they are entitled to compensatory and/or equitable  damages in an amount to be proven at trial.  57.   Plaintiff realleges and incorporates by reference paragraphs 1 through 50  as if they were set forth again herein.   58.   Defendants had a statutory duty to refrain from unfair or deceptive acts or  practices in connection with their activities set forth above vis-à-vis Swagway  Hoverboards.   59.   Had Defendants not engaged in the wrongful and deceptive conduct  described above, Plaintiffs and members of the Class and Sublcass would not have  purchased Swagway Hoverboards and they have therefore proximately suffered injury in  fact and ascertainable losses.    60.   Defendants’ deceptive, unconscionable or fraudulent representations and  material omissions to consumers, including the failure to inform consumers of the  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 12 of 15 13 dangers and defects with the product, constituted unfair and deceptive acts and practices  in violation of state consumer protection statutes. Defendants’ failure to abide by their  statutory duties has been or may be continuing.   61.   Defendants engaged in their wrongful conduct while at the same time  obtaining sums of money from Plaintiff and Class and Subclass members.   62.   Defendants' actions, as complained of herein, constitute unfair competition  or unfair, unconscionable, deceptive or fraudulent acts or practices in violation of state  consumer protection statutes, including, but not limited to, N.Y. Gen. Bus. Law §§ 349 et  seq. and 350-e, et seq., as well as substantially similar statutes in effect in the other  States.   63.   As a direct and proximate result of Defendants’ wrongful conduct,  Plaintiffs and the Class are entitled to a judgment that declaring that Defendants’ actions  have been in violation of their statutory duties, that provides injunctive relief in order to  ensure continued wrongful and similar acts do not occur hereafter, and that provides for,  as provided for law, compensatory damages, treble damages, attorneys' fees, and/or costs  of suit.  64.   Plaintiff realleges and incorporates by reference paragraphs 1 through 50  as if they were set forth again herein.   65.      Defendants benefitted from the sale of the Swagway.   66.  Defendants’ benefit came at the expense of Plaintiff and the other  members of the Class given their wrongful acts and practices, as discussed above.  USDC IN/ND case 3:15-cv-00588-RL-CAN   document 1   filed 12/10/15   page 13 of 15 14  67.  Defendants’ retention of some or all of the monies they have gained  through their wrongful acts and practices would be unjust considering the circumstances  of their obtaining those monies.   74.  Defendants should be required to disgorge their unjustly obtained monies  and to make restitution to Plaintiffs and the other members of the Class, in an amount to  be determined, of the monies by which they have been unjustly enriched.  BREACH OF THE IMPLIED WARRANTY   FOR UNFAIR AND DECEPTIVE TRADE PRACTICES UNDER STATE LAW   The Swagway Hoverboard   Unjust Enrichment  