Filed: 8/11/2020 3:39 St. STATE OF INDIANA ) ST. JOSEPH COUNTY IN ) THE ST. JOSEPH SUPERIOR/CIRCUIT COURT SS: CAUSE NO: ) all - 71 D05-2008-CT-000283 MELODY CALLANTINE, 0n behalf 0f herself, her minor children K.C. and L.C., and -2008—C 71 others similarly situated, Plaintiffs, vvvvvvvvvvv V. 4E BRANDS NORTH AMERICA, LLC, Defendant. CLASS ACTION COMPLAINT The plaintiff, Melody children K.C. and L.C., and Callantine (“Ms. Callantine”), on behalf of herself, her minor all others similarly situated, by counsel, Complaint against the defendant, 4e Brands North America, LLC for her Class Action (“4e Brands”), states as follows: NATURE OF THE ACTION 1. The plaintiff brings this class action to secure redress for the acts of 4e Brands in placing defective hand sanitizer into the stream of commerce containing the poisonous chemical methanol and for misrepresentations on effectiveness 0f the hand its packaging related t0 the active ingredients in and sanitizer pursuant t0 the Indiana Products Liability Act, Ind. 34-20—2-1, et seq., and the Indiana Deceptive Consumer Sales Act, Ind. Code §§ Code §§ 24-5-0.5-1, et seq. VENUE AND JURISDICTION 2. This Court has jurisdiction pursuant t0 Ind. R. Trial P. 4.4 because 4e Brands does business and furnished goods in the state of Indiana. PM Clerk Joseph County, Indiana Venue 3. proper in is Joseph County as the county in which one or more St. individual plaintiffs reside. PARTIES Ms. Callantine 4. Street, Osceola, St. a resident of the state 0f Indiana Who resides at 312 E. Louis Joseph County, Indiana 46561. K.C. 5. is is minor son 0f Ms. the ten-year-old Callantine. L.C. is the siX-year-old minor daughter 0f Ms. Callantine. 4e Brands 6. state is a for-profit corporation organized and existing under the laws 0f the of Texas With a principal office located 17806 West at Interstate 10, Suite 300, San Antonio, Texas 78257—8222. 4e Brands manufactures, distributes, and 7. and animal care markets, including hand sells products in the personal, home, sanitizer. FACTS SUPPORTING ALL CAUSES OF ACTION 4e 8. Brands manufactures, throughout the state 0f Indiana, including Among 9. ingredient sanitizer, is other things, the at distributes, Costco Wholesale Blumen Hand seventy percent (70%) Ethyl Alcohol. such as “KILLS 10. hand It sells Blumen Hand Sanitizer retail locations. Sanitizer packaging states that its active also contains representations about the sanitizer. is a grain—based alcohol that Ethyl alcohol is In or around July of 2020, Sanitizer at the Costco is commonly used liquor, retail location in is and even food. Ms. Callantine purchased a 33.8 ounce Wholesale as an generally considered a safe substance that used in a variety 0f other applications, including cosmetics, beer, 11. Blumen Hand UP TO 99.9% OF GERMS” and “ETHYL ALCOHOL 70%.” Ethyl Alcohol, or ethanol, active ingredient in and bottle Mishawaka, Indiana. 0f She purchased the hand sanitizer t0 protect her family against germs, and particularly the Virus Coronavirus Disease 2019 (COVID-19). Ms. Callantine and her family subsequently kept the Blumen Hand Sanitizer near 12. the door at their disinfection, home and used and hand hygiene about half 0f the bottle in t0 protect against the spread its intended manner for cleaning, of Viruses and other germs. After using the product, K.C. and L.C. had severe side effects, including headaches and vomiting. Food and Drug Administration (“FDA”) 13. testing of Blumen Hand Sanitizer conducted around early July 0f 2020 discovered that the sanitizer contained methanol, 0r alcohol, flammable Unlike ethyl alcohol, As 14. import ban on 15. Hand Methanol and lower levels 0f ethyl alcohol than suggested 0n the packaging. volatile, highly it is is commonly used t0 create fuel, solvents, and FDA recommended that 4e Brands issue a recall On 0r about July 16, 2020, 4e Brands initiated a voluntary recall of The Ms. Callantine subsequently received a recall notice states that the nervous system or death. most 17. antifreeze. and imposed an It Blumen products sold between further states that substantial A11 persons Young children, adolescents, risk for methanol poisoning. Upon who An example information and belief, Who May 2020 and 11, damage at risk for potential t0 methanol accidentally ingest these products 0f the recall notice Blumen Hand Blumen methanol exposure can result in use the product are and even adults its recall notice. nausea, vomiting, headache, blurred Vision, blindness, seizures, coma, and permanent are at a many Blumen products. July 19, 2020 contain methanol. poisoning. is poisonous t0 humans. a result, the Sanitizer products. 16. alcohol that wood is Sanitizer has attached as Exhibit been sold throughout the state 0f Indiana containing methanol and misleading labeling. t0 1. consumers The 18. plaintiff and class members have suffered concrete harm as a result 0f the actions 0f 4e Brands actions, including but not limited t0 aggravation, emotional distress, personal injury, and statutory damages. COUNT I: DEFECTIVE PRODUCT The 19. plaintiff Complaint as though Under 20. incorporates and realleges the foregoing allegations of the fully set forth herein. the Indiana Products Liability Act, any person Who places into the stream 0f commerce any product in a defective condition unreasonably dangerous t0 any user 0r consumer Ind. Code is subject t0 liability for physical harm caused by that product t0 the user or consumer. § 34—20-2-1. 21. another party, A product is it is in a defective condition in a condition: (1) not if, at the time it is conveyed by the seller t0 contemplated by reasonable persons among those considered expected users or consumers of the product; and (2) that will be unreasonably dangerous t0 the expected user 0r consumer When used in reasonably expectable ways of handling or consumption. Ind. Code § 34-20-4-1. 22. The plaintiff and her minor children are “users or consumers” as those terms are used in the Indiana Products Liability Act. 23. 4e Brands is a “manufacturer or seller” as those terms are used in the Indiana Products Liability Act. 24. 4e Brands placed Blumen Hand Sanitizer into the stream of commerce by, among other things, selling and distributing the product t0 Costco Wholesale and other retailers in the state 0f Indiana. The hand 25. it sanitizer was unreasonably dangerous contained methanol as an active ingredient, Which is for use as poisonous for hand sanitizer because human consumption, in lieu 0f 0r in addition t0 ethyl alcohol. As 26. plaintiff a direct and proximate cause 0f the acts and omissions of 4e Brands, the and her minor children suffered injuries, the effects of which could be permanent and lasting. WHEREFORE, the plaintiff respectfully requests that the Court enter favor and against the defendant, 4e Brands, as follows: statutory damages, including treble damages, in an amount (a) t0 awarding the be determined the plaintiff her costs and reasonable attorney fees; and (c) awarding all judgment in her plaintiff actual and awarding at trial; (b) other just and proper relief. COUNT II: FAILURE TO WARN The 27. though fully as 28. fails t0: (1) plaintiff incorporates and realleges the foregoing allegations 0f the Complaint set forth herein. A product is also defective under the Indiana Products Liability Act if the seller properly package or label the product t0 give reasonable warnings of danger about the product; 0r (2) give reasonably complete instructions 0n proper use of the product. Ind. Code § 34-20-4-2. 29. let is 4e Brands failed t0 identify methanol as an active ingredient in alone provide reasonable warning t0 consumers that an active ingredient in poisonous to humans and can cause severe and permanent 30. its its hand hand sanitizer, sanitizer injuries. 4e Brands further failed t0 provide reasonably complete instructions on proper use of the product, t0 the extent any such uses exist. As 31. a direct and proximate cause of the acts and omissions of 4e Brands, the plaintiff suffered injuries, the effects WHEREFORE, of Which could be permanent and lasting. the plaintiff respectfully requests that the Court enter favor and against the defendant, 4e Brands, as follows: statutory damages, including treble damages, in an amount (a) t0 awarding the be determined the plaintiff her costs and reasonable attorney fees; and (c) awarding all judgment in her plaintiff actual at trial; (b) and awarding other just and proper relief. COUNT III: INDIANA DECEPTIVE CONSUMER SALES ACT 32. as though fully 33. The plaintiff incorporates and realleges the foregoing allegations 0f the Complaint set forth herein. Pursuant t0 the Indiana Deceptive Consumer Sales Act, a supplier an unfair, abusive, or deceptive Who commits omission, or practice in connection With a consumer act, transaction violates the act. plaintiff is a “person” as that 34. The 35. 4e Brands 36. The term is defined in Indiana Code § 24-5-05- in Indiana Code § 24-5-05- 2(a)(2). is a “supplier” as that term is defined 2(a)(3). Costco Wholesale 37. acts plaintiff acquired the retail location as that Blumen Hand term is defined Sanitizer in a in Indiana “consumer transaction” Code t0 the subject matter deceptive acts, which include that the product: not have Which the supplier knows (a) a § 24—5-0.5—2(a)(1). A supplier violates the Indiana Deceptive Consumer Sales Act When and representations as at it engages in of a consumer transaction that constitute has characteristics, uses, or benefits 0r should reasonably know it does not have; and (b) it is does 0f a particular standard, quality, grade, style, or model, if it is not and if the supplier knows or should reasonably know that it is not. 38. 4e Brands violated the Indiana Deceptive Consumer Sales Act by, among other things, representing that the (a) hand sanitizer contained only ethyl alcohol as an active ingredient; (b) that the product contained 70% ethyl alcohol; (c) that the product did not contain methanol; and (d) that the product kills 99.99% of germs. 39. These deceptive acts are incurable because, among other reasons, the plaintiff relied upon them when purchasing the hand sanitizer and consumed the product in reliance upon the deceptive acts, resulting in personal injury. 40. As a direct and proximate cause of the acts and omissions of 4e Brands, the plaintiff suffered actual damages, including personal injuries, the effects of which could be permanent and lasting. 41. The Indiana Deceptive Consumer Sales Act permits the plaintiff to recover her actual damages or statutory damages of $500.00 per violation, whichever is greater, and attorneys’ fees, along with treble damages for willful acts. 42. An award of treble damages is appropriate because the acts of 4e Brands were willful and showed a reckless disregard for the rights of the plaintiff. WHEREFORE, the plaintiff respectfully requests that the Court enter judgment in her favor and against the defendant, 4e Brands, as follows: (a) declaring that the practices of 4e Brands are unlawful and violate the Indiana Deceptive Practices Act; (b) awarding the plaintiff actual and statutory damages, including treble damages, in an amount to be determined at trial; (c) awarding the plaintiff her costs and reasonable attorney fees; and (d) awarding all other just and proper relief. COUNT IV: CLASS ACTION CLAIMS The 43. as though fully set forth herein. The 44. plaintiff brings these claims 23, consisting 0f (a) (c) and realleges the foregoing allegations of the Complaint plaintiff incorporates all 0n behalf 0f a Indiana residents, (b) Who, Within two years of the filing of this action, purchased any type 0f Blumen Hand Sanitizer, Brands 0r its placed into the stream 0f commerce by 4e methanol as an active ingredient. Upon information and belief, and based upon the Blumen Hand 46. (d) affiliates or related companies, (e) that contained 45. numerous class pursuant t0 Ind. R. Trial P. Sanitizer to Costco that joinder Wholesale of all members is retail locations and other retailers, the class is so impractical. There are questions 0f law and any questions affecting only individual nature 0f the distribution of class fact common t0 the class that members. The predominant predominate over common questions include (a) Whether 4e Brands placed products into the stream 0f commerce containing methanol as an active ingredient; (b) 70% Whether 4e Brands falsely represented that the products contained ethyl alcohol; (c) Whether 4e Brands failed t0 methanol as an active ingredient; and (d) warn consumers that its products contained Whether the representations made by 4e Brands on its packaging violated the Indiana Deceptive Consumer Practices Act. 47. among The claims of the other things, all plaintiff are typical 0f the claims 0f the class members because, 0f the class members purchased Blumen Hand Sanitizer products containing methanol and packaging with deceptive representations and therefore are entitled t0 actual and statutory damages. 48. The plaintiff will fairly and adequately protect the interests of the class. 49. The questions of law or fact common to the members of the class set forth above predominate over any questions affecting only individual members. 50. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. The interest of class members in individually controlling the prosecution of separate claims against defendant is small because it is not economically feasible to bring individual actions. 51. The liability claims, plaintiff has retained counsel with experience litigating class actions, product and claims involving unlawful business practices. Neither the plaintiff nor her counsel have any interests Which might cause them not to vigorously pursue this action. WHEREFORE, plaintiff requests that the Court enter judgment in her favor and against the defendant, 4e Brands, as follows: (a) certifying a class action as set forth above; (b) awarding each class member damages of at and reasonable attorneys’ fees; and (d) least awarding $500.00 and treble damages; all (c) awarding costs other just and proper relief. Respectfully submitted, PFEIFER MORGAN _ & STESIAK @Ww Douglas E. Sakaguchi (20352-71) Ryan G. Milligan (28691-71) PFEIFER MORGAN & STESIAK 53600 North Ironwood Drive South Bend, Indiana 46635 Telephone: (574) 272-2870 Fax: (574) 271-4329 DSakaguchi@pilawyers.com RMilligan@pilawyers.c0m Counselfor the plaintifflv.