Post on 19-Mar-2022
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
MARSHA SHOMO, R.N. THOMPSON & ASSOCIATES, INC., an Indiana Corporation, WINDING RIDGE GOLF COURSE, LLC, an Indiana Limited Liability Company, and MUD CREEK GOLF COURSE, LLC, an Indiana Limited Liability Company, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
E. I. DU PONT NEMOURS AND COMPANY, a Delaware Corporation,
Defendant.
Civil Action No. __________
CLASS ACTION COMPLAINT TRIAL BY JURY DEMANDED
CLASS ACTION COMPLAINT
Plaintiffs Marsha Shomo, R.N. Thompson & Associates, Inc., Winding Ridge
Golf Course, LLC, and Mud Creek Golf Course, LLC, by and through their undersigned counsel,
upon knowledge as to themselves and upon information and belief as to all other matters, allege
as follows:
1. Plaintiffs bring this action on behalf of themselves and all other similarly-situated
individuals and entities whose property was exposed to Imprelis™ between October 4, 2010 and
the date of trial, in particular, those who own: (a) property on which Imprelis™ was applied; (b)
trees or other vegetation whose roots extend under property on which Imprelis™ was applied or;
(c) property onto which Imprelis™ migrated (collectively, the “Proposed Class” or
“Consumers”).
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BACKGROUND
2. On October 4, 2010, E. I. du Pont de Nemours and Company (“DuPont”)
announced the introduction of its newest herbicide, Imprelis™, to the market. DuPont has touted
the fact that Imprelis™ is safe for the environment and, consequently, that it is beneficial for
“residential and commercial lawns, golf courses, sod farms, and sensitive areas such as schools,
parks and athletic fields[.]”
3. Imprelis™ is the brand name for aminocyclopyrachlor, a selective herbicide
intended to kill unwanted broad leaf weeds, including dandelions, clovers, ground ivy, and wild
violets, without damage to turf (e.g., grass), nearby trees, ornamental plants, and other desirable
vegetation (collectively, “non-target vegetation”).
4. Imprelis™ is marketed as having a “low environmental impact.” This is false.
5. Property owners and landscaping professionals across the country have reported
incidents of diseased and dying trees following use of DuPont’s Imprelis™. These trees exhibit
the signature symptoms that DuPont touts Imprelis™ as inducing in its target weeds. The harm
to these trees occurs even where the applicator conforms strictly to DuPont’s application
instructions and regardless of any other factor.
6. Plaintiffs and property owners like them across the country are now faced with
the death of their trees and other non-target vegetation because of Imprelis™.
7. DuPont was reckless and/or negligent in bringing Imprelis™ to market because it
failed to adequately disclose the risks associated with applying Imprelis™ even if used according
to the directions on the label, and because it failed to provide adequate instructions for the safe
application of Imprelis™.
8. Plaintiffs, on behalf of themselves and all others similarly-situated, seek monetary
damages fully compensating all individuals whose property has been harmed by Imprelis™,
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punitive damages punishing DuPont for its past and continuing misconduct, injunctive relief
barring DuPont from continuing to market or sell Imprelis™, and such other relief as the Court
deems necessary and appropriate.
PARTIES
9. Plaintiff Marsha Shomo (“Shomo”) is a resident of Johnstown, Pennsylvania.
10. Plaintiff R.N. Thompson and Associates, Inc. is an Indiana corporation that owns
several golf courses in the Indianapolis area, which it manages through its subsidiary, R.N.
Thompson Golf, LLC, an Indiana Limited Liability Company. These include Plaintiff Winding
Ridge Golf Course, which is titled legally as Winding Ridge Golf Course, LLC, an Indiana
Limited Liability Company and Plaintiff Ironwood Golf Course, which is titled legally as Mud
Creek Golf Course, LLC, an Indiana Limited Liability Company. All entities listed in this
paragraph are referred to collectively as “Thompson”.
11. Defendant E. I. du Pont de Nemours and Company (“DuPont”) is a Delaware
corporation with its headquarters in Wilmington, Delaware.
12. DuPont Professional Products USA, also headquartered in Wilmington, Delaware,
is the division of DuPont that manufactures and markets Imprelis™.
13. Upon information and belief, at all relevant times, DuPont was present and
transacted, solicited, and conducted business in the State of Delaware, through its employees,
agents and/or sales representatives, and derived substantial revenue from such business.
14. At all relevant times, DuPont expected or should have expected that its acts and
omissions would have consequences within the United States and the State of Delaware.
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JURISDICTION & VENUE
15. This Court has original subject matter jurisdiction over this action under 28
U.S.C. § 1332(d) because:
a. Plaintiffs and the Proposed Class have been damaged in excess of
$5,000,000, exclusive of interest and costs.
b. This action is a class action in which members of the class are citizens of
all 50 states and the District of Columbia, and Defendant DuPont is a citizen of Delaware.
16. This Court has personal jurisdiction over DuPont because, inter alia, DuPont’s
principal place of business is its corporate headquarters in Wilmington, Delaware.
17. Venue is proper under 28 U.S.C. § 1391(d) because DuPont is subject to personal
jurisdiction in this district.
CHOICE OF LAW
18. Absent discovery, Plaintiffs are unaware of, and unable through reasonable
investigation to obtain, information of many of the factors relevant to a full choice-of-law
inquiry. DuPont necessarily is in possession of such information.
19. On information and belief, Delaware law applies to all claims asserted in this
litigation because, inter alia, Delaware has the most significant relationship to each of those
claims.
20. On information and belief, Delaware law applies to all statutory claims because
DuPont’s unlawful practices occurred in Delaware. To the extent that DuPont engaged in
unlawful conduct in other jurisdictions, on information and belief, that conduct emanated from
and was orchestrated from Delaware.
21. On information and belief, Delaware law applies to Plaintiffs’ fraud claim. To the
extent that there is any actual conflict between the laws of the states, Delaware law still applies
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because Delaware has the most significant relationship to this claim. This is because, inter alia,
on information and belief, all misrepresentations and omissions arise from a common scheme
orchestrated in Delaware, all misrepresentations were made or omissions not made from
Delaware, DuPont is incorporated in Delaware, DuPont’s principal place of business is in
Delaware, all parties would expect Delaware law to apply to DuPont’s fraudulent behavior, and
application of Delaware law is necessary to ensure certainty, predictability, and uniformity.
22. On information and belief, Delaware law applies to Plaintiffs’ negligence claim.
To the extent that there is any actual conflict between the laws of the states, Delaware law still
applies because Delaware has the most significant relationship to this claim. This is because,
inter alia, on information and belief, the defective product was designed in Delaware, the
defective warnings were written in Delaware, DuPont is incorporated in Delaware, DuPont’s
principal place of business is in Delaware, DuPont breached its duty to all Plaintiffs in Delaware,
all parties would expect Delaware law to apply to DuPont’s negligent behavior in Delaware, and
application of Delaware law is necessary to ensure certainty, predictability, and uniformity.
23. On information and belief, Delaware law applies to all claims sounding in
contract. To the extent that there is any actual conflict between the laws of the states, Delaware
law still applies because Delaware has the most significant relationship to these claims. This is
because, inter alia, DuPont is incorporated in Delaware, DuPont’s principal place of business is
located in Delaware, any purported contracts were drafted in Delaware, all parties would expect
Delaware law to apply to any contract, and application of Delaware law is necessary to ensure
certainty, predictability, and uniformity.
24. On information and belief, Delaware law applies to Plaintiffs’ unjust enrichment
claim. To the extent that there is any actual conflict between the laws of the states, Delaware law
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still applies because Delaware has the most significant relationship to this claim. This is
because, inter alia, the enrichment was received in Delaware, DuPont is incorporated in
Delaware, DuPont’s principal place of business is located in Delaware, all parties would expect
Delaware law to apply to any claim for restitution, and application of Delaware law is necessary
to ensure certainty, predictability, and uniformity.
25. Application of Delaware law to DuPont and the claims of Plaintiffs and all
Proposed Class members comports with due process because Delaware has significant contact or
aggregation of contacts with the claims of all Proposed Class members such that application of
Delaware law is neither arbitrary nor unfair.
FACTUAL ALLEGATIONS -- PLAINTIFFS’ EXPERIENCES WITH IMPRELIS™
Plaintiff Shomo
26. Marsha Shomo owns her home in Johnstown, Pennsylvania.
27. She has a young grandchild who frequently plays in her yard.
28. Ms. Shomo owns 5 pine trees on her property. All of these trees are at least 9
years old and some have been there since 1993.
29. While she enjoys the aesthetic value of all of her trees, she describes two of them
as particularly important to her because she cares for these trees out of respect for, and in
memory of, her sister:
“My sister was diagnosed with cancer in early 2002. She died the first week of March 2002, only weeks after her diagnosis. She was so anxious that the new little trees she bought be taken care of. I promised her I would do that. My daughter planted one and I planted the other two.” 30. Ms. Shomo has never been entirely comfortable with chemical law treatments and
did not allow them to be used on her property until three years ago, when she purchased
treatments from Beauty Lawn Landscaping (“Beauty Lawn”) as a gift to her husband. Prior to
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purchasing those treatments, she inquired about their environmental impact out of concern for
her trees and her grandson.
31. During the first two years of her lawn treatments, which were applied quarterly,
Ms. Shomo was very satisfied with the results that she was seeing. Her lawn had fewer weeds
than before, which both she and her husband enjoyed.
32. This year, however, Beauty Lawn switched to using Imprelis™ to treat her lawn.
When Ms. Shomo’s husband asked why Beauty Lawn had switched, Beauty Lawn explained that
DuPont had done a particularly good job marketing this product, and had assured them that it
was entirely safe for the environment. Beauty Lawn explained that it had thought that it was
helping its customers by switching to Imprelis™.
33. But Imprelis™ did not help Ms. Shomo. To the contrary, 5 of her trees are now
dying or showing signs of injury, including her sister’s two pine trees.
34. On information and belief, these trees were harmed by because of Imprelis™.
35. Ms. Shomo has purchased Essential Plus 1-0-1 in an attempt to save her sister’s
two pine trees.
36. Ms. Shomo has personally observed many trees that are dying after lawns were
treated with Imprelis™, including two Douglas Fir trees that she purchased for her daughter. As
Ms. Shomo explains “I trim her yard, so I know what they should be looking like.”
37. Ms. Shomo is as concerned with stopping DuPont from harming others as she is
for her own situation.
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Plaintiff Thompson
38. Thompson as explained above, owns and manages several golf courses in the
greater Indianapolis area.
39. Thompson has herbicides applied to its golf courses to ensure that its courses
maintain a pleasing appearance to customers.
40. Thompson employee Michael Jordan has thirty years experience as an herbicide
applicator. He is licensed though the Office of Indiana State Chemist to apply insecticide and
herbicides like Imprelis™ to both Ironwood and Winding Ridge Golf Courses. His Applicator
Licenses are No. N234767 and N25818, respectively.
41. Mr. Jordan and his staff first applied Imprelis™ sometime in early to mid April
2011. It was purchased from a distributor, Advanced Turf.
42. Approximately one month later, towards the end of May or the beginning of June,
Thompson began to notice damage to its trees.
43. Mr. Jordan contacted DuPont at some point prior to June 17 complaining about
the damage Imprelis™ did to the Thompson golf course trees.
44. DuPont has not offered any type of compensation for the lost trees, or even
offered to replace the Imprelis™ with a product that harms only target vegetation.
45. Prior to June 17th, DuPont never indicated to Mr. Jordan that he should stop
applying Imprelis™.
46. On June 17th, Mr. Jordan received a letter from DuPont that instructed him not to
apply Imprelis™ to areas that contain White Pines or Norway Spruce trees.
47. Despite having been healthy and well-cared for by Mr. Jordan and his staff for
years prior to the spring of 2011, approximately one-hundred of Thompson’s trees are now dead
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or dying at Winding Ridge Golf Course. Those trees are 12-25 foot Norway Spruce and White
Pine trees.
48. Another 15 trees at Ironwood Golf Course which are comprised of 30-40 foot
Norway Spruce and White Pine trees are also dead or dying.
49. On information and belief, this damage is due to the application of Imprelis™.
All trees were healthy and well-cared-for prior to the Imprelis™ application, and Imprelis™ was
not combined with any other herbicide or fertilizer.
50. All individuals who applied Imprelis™ were trained explicitly on the use of the
application equipment and followed the directions on the Imprelis™ packaging.
FACTUAL ALLEGATIONS -- DUPONT’S ACTIONS AND OMISSIONS
DuPont’s Marketing Campaign
51. DuPont markets Imprelis™ as “exhibit[ing] favorable environmental and
toxicological characteristics . . . . It’s absorbed by the roots and shoots of target weeds providing
consistent, reliable performance and offers application flexibility . . . an excellent choice for any
weed management program.” See www.dupont.com.1 In particular, DuPont emphasizes
repeatedly that Imprelis™ has a “low environmental impact.” Id.; see also DUPONT LAUNCHES
NEW HERBICIDE, CHUCK BOWEN (“[A] high level of control with a reduced environmental impact
. . . . ‘Consumers want high-performance, high-quality products that have improved
environmental profiles,’ said Mike McDermott, DuPont’s global business manager.”).2
1 http://www2.dupont.com/Professional_Products/en_US/Products_and_Services/Imprelis/index.html (last visited July 16, 2011). 2 http://www.lawnandlandscape.com/lawn-landscape-0311-dupont-LCO-control-environmental.aspx (last visited July 16, 2011).
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52. DuPont’s campaign to market Imprelis™ has been successful. Indeed, Imprelis™
has become “widely used by landscapers because it was thought to be environmentally friendly.”
NEW HERBICIDE SUSPECTED IN TREE DEATHS, THE NEW YORK TIMES (“TIMES”).3
The Damage Caused By Imprelis™
53. In the early spring of 2011, landscaping professionals began to treat turf,
including residential lawns and golf courses, with Imprelis™. By Memorial Day, complaints of
diseased trees began to flood departments of agriculture at major universities and state regulatory
agencies. The diseased trees show yellowing, curling, and browning of new growth. See SOME
OBSERVATIONS ON IMPRELIS INJURY TO TREES, PETE LANDSCHOOT (“LANDSCHOOT”);4 see also
GROWTH REGULATOR-TYPE HERBICIDE SYMPTOMS ON SPRUCE AND PINE, TOM CRESWELL, ET AL.
(“CRESWELL”);5 A HOMEOWNER’S GUIDE TO IMPRELIS HERBICIDE INJURY TO LANDSCAPE TREES,
CREGG & FRANK (“CREGG”).6
54. The diseased trees exhibit the signature symptoms that DuPont touts Imprelis™
as inducing in its target weeds. As explained by DuPont “[t]he most noticeable symptoms on
target weeds include the bending and twisting of stems and the cupping of leaves.” See
www.dupont.com.7 Indeed, at least one scholar has confirmed that the injury to trees is the
3 http://www.nytimes.com/2011/07/15/science/earth/15herbicide.html (last visited July 16, 2011). 4 http://extension.psu.edu/greenindustry/giec/news/2011/some-observations-on-imprelis-injury-to-trees (last visited July 15, 2011). 5 http://www.ppdl.purdue.edu/ppdl/hot11/6-10.html (last visited July 15, 2011). 6 http://news.msue.msu.edu/uploads/files/122/Imprelis%20homeowner%20factsheet_Bert%20Cregg.pdf (last visited July 15, 2011). 7 http://www2.dupont.com/Professional_Products/en_US/Products_and_Services/Imprelis/index.html (last visited July 16, 2011).
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“type of injury [that] would be expected [from Imprelis™] given that the active ingredient of
Imprelis is translocated to leaf meristems.” LANDSCHOOT.
55. The damage from Imprelis™ can be very substantial “[i]n severe cases, the entire
tree turns brown and begins to lose its needles.” LANDSCHOOT; see also NEW HERBICIDE
SUSPECTED IN TREE DEATHS, THE NEW YORK TIMES (“TIMES”) (“[Some trees] are completely
dead and it looks like someone took a flamethrower to them[.]”).8
56. Experts theorize that the trees absorb Imprelis™ through the roots, rather than the
foliage or trunk of the tree. See CRESWELL. The reach of a healthy, adult tree’s unexposed roots
far exceeds the breadth of the tree’s branches, or “dripline.” Thus, the trees absorb Imprelis™
far from the surface perimeter of the tree. See LANDSCHOOT.
57. Trees with shallow root systems – where roots would be closer in proximity to the
surface application to the turf, including willow, poplars, and conifers – are frequently affected
negatively by Imprelis™. See LANDSCHOOT. Additionally, “[t]rees of all ages have been
affected to varying degrees.” Id.
58. On June 30, 2011, researchers affiliated with Rutgers University provided a
summary of the type of damage caused by Imprelis™:
In recent weeks the Plant Diagnostic Laboratory has evaluated a number of samples from residential and commercial landscapes that exhibited symptoms of herbicide toxicity. The most noticeable damage and most frequent submission has been spruce. The symptoms were primarily on the new growth and were characterized by stem thickening, and bending, twisting, and necrosis of the needles. Unfortunately, we have encountered spruce and white pines that were completely killed. Death to those trees generally occurred over a period of three or four weeks after the initial symptoms developed on the new growth. Other plants have been submitted as well. Maple, viburnum, and hydrangea exhibited leaf curling and cupping as well as yellowing and stunted growth. To date, the deciduous trees and shrubs have not died.
8 http://www.nytimes.com/2011/07/15/science/earth/15herbicide.html (last visited July 16, 2011).
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IMPRELIS: WIDESPREAD DAMAGE TO NON-TARGET PLANTS OBSERVED ON SITES TREATED WITH
THIS HERBICIDE, BUCKLEY, ET AL.9
59. Imprelis™ is highly concentrated, remains potent through rain and extreme
temperatures, and has long residual activity in soil. See LANDSCHOOT. Consequently, any plant
with roots in the soil underlying turf sprayed with Imprelis™ is exposed to the product’s
herbicidal properties.
60. Imprelis™ harms: (a) non-target vegetation on properties where Imprelis™ is
applied directly; (b) non-target vegetation whose roots extend under properties where Imprelis™
is applied directly and; (c) non-target vegetation on properties to which Imprelis™ migrates.
61. Migration of Imprelis™ occurs when the herbicide is applied properly, and is the
natural and foreseeable result of the proper application of Imprelis™.
DuPont’s Testing
62. On information and belief, DuPont failed to perform adequate testing on
Imprelis™ prior to bringing it to market because adequate testing would have revealed that
Imprelis™ is not safe for the environment and is dangerous to non-target vegetation.
63. DuPont was reckless or, in the alternative, negligent, in bringing Imprelis™ to
market without performing testing adequate to ensure that it was safe for non-target vegetation.
64. In the alternative, if DuPont did perform adequate testing, DuPont knowingly,
recklessly, or negligently brought to market a product that is not safe for the environment and is
dangerous to non-target vegetation.10
9 http://www.ohiolawncare.org/resource/dynamic/blogs/20110701_100054_27281.pdf (last visited July 16, 2011). 10 Throughout the Complaint, when Plaintiffs refer to DuPont’s inadequate testing, they refer also to this alternative theory of the case.
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DuPont’s Inadequate Warnings
65. Because a tree can absorb Imprelis™ through distant, unexposed roots, exposure
and damage cannot be prevented merely by avoiding contact between Imprelis™ and the trunk
and foliage. Despite this, DuPont made no mention of risk to trees through the roots in the nine-
page label and instructions from Imprelis™. See Ex. A (Imprelis™ label). The instructions only
warn against exposure to the tree itself:
Do not apply this product directly to, or allow spray drift to come in contact with, ornamental groundcovers, foliage plants, flowers, trees, shrubs, nearby crop plants or other desirable plants . . . .
Id. at 3 (emphasis added).
66. DuPont did not instruct landscapers to avoid any of the turf or soil surrounding a
tree, when applying the usual application of 3 to 4.5 ounces of Imprelis™ per acre. When a
higher dose of 6 ounces per acre is used on certain, tougher grasses, DuPont instructed
landscapers not to apply the product within 5 feet of a tree – far less than the spread of a grown
tree’s underground roots. The instructions read:
APPLICATION RATES FOR LAWNS, GOLF COURSES AND OTHER TURFGRASS AREAS Apply 3 to 4.5 fluid ounces of DuPont™ Imprelis™ herbicide per acre in sufficient water to provide thorough coverage of the treated area. . . . when applications will not be made within 5 feet of ornamental groundcovers, foliage plants, flowers, trees, shrubs or other desirable plants, Imprelis™ herbicide may be applied at 6 fluid ounces of product per acre.
Id. at 6.
67. DuPont also did not instruct landscapers to avoid applying Imprelis™ to the turf
or soil above the underground roots of a tree in the “Restrictions” section of the label. The
restrictions only refer to the parts of a tree above the surface:
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RESTRICTIONS . . . • Do not apply this product to exposed roots of trees and shrubs. • Do not apply to any ornamental bed. • Do not apply this product directly to, or allow spray drift to come in contact with, ornamental groundcovers, foliage plants, flowers, trees, shrubs, nearby crop plants or other desirable plants . . . • Do not exceed specified application rates for any area and particular care must be taken within the dripline of trees and shrubs or other ornamental plants. • Do not apply where runoff or irrigation water may flow onto susceptible turfgrass, ornamental plants or crops as injury may result. • Do not apply with a mist blower. • Do not pour spray solutions near desirable plants
Id. at 7.
68. None of the above instructions will prevent a tree from absorbing Imprelis™
through roots that extend beyond the dripline of the tree’s branches.
69. The label and instructions omit the critical fact that trees and other non-target
vegetation are susceptible to harm from Imprelis™ and that, if Imprelis™ is applied as directed,
non-target vegetation will be killed by the product.
DuPont’s Inadequate Response
70. On information and belief, DuPont has been aware that Imprelis™ harms non-
target vegetation for many weeks prior to June 17, 2011.
71. DuPont has not withdrawn Imprelis™ from the market, nor has DuPont stopped
marketing Imprelis™ as environmentally safe and “an excellent choice for any weed
management program.”
72. DuPont has not conceded that Imprelis™ is harmful to non-target vegetation. See
Ex. B (June 17, 2011 letter). Indeed, DuPont’s public response has been woefully inadequate,
stating that “[m]ost lawn care professionals . . . have used Imprelis™ to successfully control
weeds and have not reported unfavorable tree symptoms.” Id.
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73. In the June 17, 2011 letter, DuPont emphasized Norway Spruce and White Pine to
the exclusion of other non-target vegetation, even though, as explained above, other non-target
vegetation is harmed by Imprelis™. See Ex. B; see also http://www.dupont.com (emphasizing
same).11
74. DuPont has never admitted responsibility for the death of non-target vegetation
caused by Imprelis™ and has at all time concealed and/or minimized the harmful nature of
Imprelis™.
75. On information and belief, when landscapers and property owners have reported
problems to DuPont, DuPont has sought to divert responsibility by blaming landscapers for
improper application.
76. DuPont’s refusal to acknowledge its responsibility for damage to tens of
thousands of property owners and continued marketing of Imprelis™ as environmentally friendly
is highly reprehensible, demonstrates nothing less than a reckless indifference to the public well-
being, and shocks the conscience.
FACTUAL ALLEGATIONS -- FRAUD
77. Absent discovery, Plaintiffs are unaware of, and unable through reasonable
investigation to obtain, the true names and identities of those individuals at DuPont responsible
for failure to disclose the inadequate testing of Imprelis™, and the fact that Imprelis™ harms
desirable vegetation even when used according to the directions on the label. DuPont necessarily
is in possession of all of this information.
11 http://www2.dupont.com/Professional_Products/en_US/Products_and_Services/Imprelis/index.html (last visited July 17, 2011).
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78. Plaintiffs make the following specific fraud allegations regarding DuPont’s
affirmative misrepresentations with as much specificity as possible absent access to the
information necessarily available only to DuPont:
a. Who: Defendant DuPont, including, inter alia, DuPont global business
manager Mike McDermott.
b. What: All DuPont public statements, marketing materials, and
promotional materials that represent or represented that Imprelis™ is or was safe for the
environment, included, but not limited to, the statements on DuPont’s website that Imprelis™
has a “low environmental impact.” See www.dupont.com.12
c. When: Starting on or about October 4, 2010, and on an ongoing basis
through at least the filing of this Complaint.
d. Where: On DuPont’s website at http://www.dupont.com, and in all other
corporate communications, including, but not limited to
http://www2.dupont.com/Professional_Products/en_US/Products_and_Services/Imprelis/index.h
tml (last visited July 16, 2011) and DuPont global business manager Mike McDermott’s
statement implying that Imprelis™ has an “improved environmental profile” relative to other
selective herbicides.13
e. How: Consistent and uniform assertions that Imprelis™ is
environmentally superior to other herbicides, inasmuch as no reasonable person believes that an
environmentally superior product will destroy non-target vegetation.
f. Why: To induce the purchase and use of Imprelis™. 12 http://www2.dupont.com/Professional_Products/en_US/Products_and_Services/Imprelis/index.html (last visited July 16, 2011). 13 www.lawnandlandscape.com/lawn-landscape-0311-dupont-LCO-control-environmental.aspx
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79. Plaintiffs make the following specific fraud allegations regarding DuPont’s
omissions with as much specificity as possible absent access to the information necessarily
available only to DuPont:
a. Who: Defendant DuPont.
b. What: All DuPont marketing and promotional materials, none of which
adequately disclose the risks associated with applying Imprelis™ even if used according to the
directions on the label, and none of which provide adequate instructions for its safe application.
This omission was material because herbicides are purchased exclusively for their selective
ability to kill some types of plants and not others. In other words, the selective aspect of an
herbicide is the entire reason for an herbicide’s existence; while professionals or homeowners
could destroy weeds by pouring bleach on their lawns, they seek a product that kills only weeds,
while leaving desirable plans such as trees and vegetable gardens intact. DuPont’s failure to
adequately disclose the risks associated with applying Imprelis™ even if used according to the
directions on the label, and failure to provide adequate instructions for its safe application, was
thus highly material because no reasonable person would purchase, use, or allow the use of such
a product.
c. When: Starting no later than October 4, 2010, and on an ongoing basis
through at least the filing of this Complaint.
d. Where: On the Imprelis™ label, on DuPont’s website at
http://www.dupont.com, and in all other corporate communications. For example, the label
included with Imprelis™ cautions not to “apply this product directly to, or allow spray drift to
come into contact with . . . or to the soil where potentially sensitive plants will be planted during
the same season” plants other than grass, but does not adequately disclose the risks associated
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with applying Imprelis™ even if used according to the directions on the label, nor does it provide
adequate instructions for its safe application. See, e.g., Ex. A (Imprelis™ label) at 3.
e. How: Consistent and uniform failure to adequately disclose the risks
associated with applying Imprelis™ even if used according to the directions on the label, and
failure to provide adequate instructions for its safe application. See, e.g., id.
f. Why: To induce the purchase and use of Imprelis™.
CLASS ACTION ALLEGATIONS
80. Plaintiffs bring this lawsuit as a class action on behalf of themselves and all others
similarly situated as Class members pursuant to Rule 23 of the Federal Rules of Civil Procedure.
81. The Class is defined and proposed as follows: individuals and entities whose
property was exposed to Imprelis™ between October 4, 2010 and the date of trial, in particular,
those who own: (a) property on which Imprelis™ was applied; (b) trees or other vegetation
whose roots extend under property on which Imprelis™ was applied or; (c) property onto which
Imprelis™ migrated.
82. Excluded from the Class are DuPont, any entity in which DuPont has a
controlling interest, and its legal representatives, officers, directors, employees, assigns, and
successors; (2) the judge to whom this case is assigned and any member of the judge’s
immediate family; and (3) claims for personal injury and/or emotional distress.
83. Plaintiffs reserve the right to modify the Class definition after discovery and at
any time up to and including trial.
84. This action satisfies the numerosity, commonality, typicality, adequacy,
predominance, and superiority requirements of Federal Rule of Civil Procedure Rule 23.
85. The Proposed Class is so numerous that the individual joinder of all its members,
in this or any action, is impracticable. The exact number or identification of Proposed Class
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members is presently unknown to Plaintiffs, but it is believed to comprise hundreds of thousands
of individuals and entities, making joinder impractical. The Proposed Class is composed of an
easily ascertainable, self-identifying set of individuals and entities whose property was exposed
to Imprelis™ between October 4, 2010 and the date of trial, in particular, those who own: (a)
property on which Imprelis™ was applied; (b) trees or other vegetation whose roots extend
under property on which Imprelis™ was applied or; (c) property onto which Imprelis™
migrated.
86. Common questions of fact and law exist as to all Proposed Class members, which
predominate over questions affecting only individual Proposed Class members. These include,
but are not limited to, the following:
a. Whether Imprelis™ is safe for the environment;
b. Whether Imprelis™ harms non-target vegetation even when used as
directed;
c. Whether DuPont knew, or was reckless in not knowing, that Imprelis™
harms non-target vegetation even when used as directed;
d. Whether DuPont adequately disclosed the risks posed by Imprelis™;
e. Whether DuPont adequately instructed professionals on the use of
Imprelis™;
f. Whether the testing performed by DuPont prior to bringing Imprelis™ to
market was inadequate;
g. Whether DuPont’s continuing statements that Imprelis™ is safe for the
environment demonstrate a reckless indifference to the truth;
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h. Whether DuPont owed a duty to Plaintiffs and the Proposed Class, and
whether DuPont breached that duty;
i. Whether, in the course of business, DuPont represents that Imprelis™ has
characteristics, uses, benefits, or qualities that it does not have;
j. The rights and obligations created by DuPont’s express warranty, and the
remedies available under that warranty;
k. Whether Imprelis™ was merchantable at the time of sale;
l. Whether DuPont’s conduct shocks the conscience.
87. Plaintiffs’ claims are typical of the claims of other Class members in that
Plaintiffs, like all Class members, own property on which Imprelis™ was applied or to whose
property it migrated and have suffered injury as a result.
88. The factual bases of DuPont’s misconduct are common to all Proposed Class
members and represent a common thread of fraudulent misconduct, deceptive trade practices,
negligence, and breach of warranty resulting in injury to all Class members. Plaintiffs are
asserting the same rights, making the same claims, and seeking the same relief for themselves
and all other Proposed Class members.
89. Plaintiffs are an adequate representative of the Proposed Class because they are
members of the Proposed Class and do not have interests that conflict with those of the other
Class members they seek to represent. Plaintiffs are represented by experienced and able
counsel who have litigated numerous class action lawsuits, and Plaintiff’s counsel intend to
prosecute this action vigorously for the benefit of the entire Class. Plaintiffs and Plaintiffs’
counsel can fairly and adequately protect the interests of all Proposed Class members.
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90. A class action is the best available method for the efficient adjudication of this
litigation. It would be impracticable and undesirable for each member of the Proposed Class
who has suffered or may suffer harm to bring a separate action for these claims. In addition, the
commencement of separate actions would put a substantial and unnecessary burden on the
courts, while a single class action can determine the rights of all Proposed Class members with
judicial economy.
COUNT I (Violation of the Delaware Consumer Fraud Act,
6 Del. C. §§ 2511-27, 2580-84)
91. Plaintiffs incorporate by reference the allegations contained in the preceding
paragraphs of this Complaint.
92. Defendant DuPont is a “person” as defined by 6 Del. C. §§ 2511(7).
93. Imprelis™ is “merchandise” within the meaning of 6 Del. C. §§ 2511(6).
94. Imprelis™ is and has been advertised and sold within the meaning of 6 Del. C.
§§ 2511(1)&(8).
95. Delaware’s Consumer Fraud Act provides in relevant part that:
The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale, lease or advertisement of any merchandise, whether or not any person has in fact been misled, deceived or damaged thereby, is an unlawful practice.
6 Del. C. § 2513.
96. DuPont is violating and has violated the Delaware Consumer Fraud Act’s
proscription against misrepresentations, as well as its proscription against the concealment,
suppression, or omission of any material fact by: (a) representing that Imprelis™ is safe for the
environment; (b) failing to disclose that Imprelis™ harms non-target vegetation even when used
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according to the directions on the label and; (c) failing to provide adequate instructions for the
safe application of Imprelis™.
97. DuPont intended that Plaintiffs and members of the Proposed Class would rely
and continue relying upon the facts that: (a) Imprelis™ is safe for the environment; (b)
Imprelis™ harms only target- vegetation when used according to the directions on the label and;
(c) DuPont’s instructions for the safe application of Imprelis™.
98. DuPont’s advertising and sale of Imprelis™ is occurring and has occurred “in the
conduct of any trade or commerce in part or wholly within this State” under the Delaware
Consumer Fraud Act as: (1) at least some of the deceiving conduct that violates 6 Del. C. § 2513
originated, arose, was directed, and emanated from Delaware, and/or; (2) the presence of DuPont
in Delaware is sufficient grounds for the Delaware Consumer Fraud Act to apply.
99. As a direct and proximate result of DuPont’s misconduct, Plaintiffs and the
Proposed Class members have been damaged in an amount to be proven at trial.
100. In addition to compensatory damages, Plaintiffs and the Proposed Class are
entitled to punitive damages because DuPont’s conduct was gross, oppressive, aggravated, or
involved a breach of trust or confidence, particularly inasmuch as DuPont continues to engage in
its prohibited conduct notwithstanding substantial notice that Imprelis™ harms non-target
vegetation.
101. Elderly or disabled Proposed Class members are entitled to a civil penalty of
$10,000, court costs, attorneys’ fees, and treble damages for each violation of the Delaware
Consumer Fraud Act. 6 Del. C. §§ 2581, 2583.
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102. In addition to damages, Plaintiffs seek injunctive relief to prevent DuPont from
marketing or selling Imprelis™. See 6 Del. C. §§ 2523. Such relief is proper because the Class
will suffer future harm to their property if Imprelis™ is used near that property.
COUNT II (Common Law Fraud)
103. Plaintiffs incorporate by reference the allegations contained in the preceding
paragraphs of this Complaint.
104. DuPont makes a material misrepresentation each and every time it represents that
Imprelis™ is safe for the environment.
105. DuPont omitted material facts by: (a) failing to disclose that Imprelis™ harms
non-target vegetation even when used according to the directions on the label and; (b) failing to
provide adequate instructions for the safe application of Imprelis™.
106. DuPont had a duty not to represent that Imprelis™ is safe for the environment
when it is not.
107. DuPont had a duty to disclose: (a) that Imprelis™ harms non-target vegetation
even when used according to the directions on the label and; (b) adequate instructions for the
safe application of Imprelis™.
108. DuPont knew, or was recklessly indifferent to the truth in not knowing that: (a)
Imprelis™ is not safe for the environment; (b) that Imprelis™ harms non-target vegetation even
when used according to the directions on the label and; (c) it failed to provide adequate
instructions for the safe application of Imprelis™.
109. DuPont intended that Plaintiffs and the Proposed Class would rely upon the facts
that: (a) Imprelis™ is safe for the environment; (b) Imprelis™ does not harm non-target
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vegetation when used according to the directions on the label and; (c) DuPont provided adequate
instructions for the safe application of Imprelis™.
110. It was justifiable for Plaintiffs and the Proposed Class to rely on the fact that: (a)
Imprelis™ is safe for the environment; (b) does not harm non-target vegetation when used
according to the directions on the label and; (c) DuPont provided adequate instructions for the
safe application of Imprelis™.
111. Plaintiffs and the Proposed Class relied on DuPont’s omissions because no entity
or individual would directly or indirectly purchase or use Imprelis™ if DuPont were to state or
had DuPont stated that: (a) Imprelis™ is not safe for the environment; (b) Imprelis™ harms non-
target vegetation when used according to the directions on the label or; (c) DuPont did not
provide adequate instructions for the safe application of Imprelis™.
112. As a direct and proximate result of DuPont’s misconduct, Plaintiffs and Proposed
Class have been damaged in an amount to be proven at trial.
113. In addition to compensatory damages, Plaintiffs and the Proposed Class are
entitled to punitive damages because DuPont’s conduct was gross, oppressive, aggravated, or
involved a breach of trust or confidence.
114. In addition to damages, Plaintiffs and the Proposed Class seek injunctive relief to
prevent DuPont from marketing or selling Imprelis™. Such relief is proper because Plaintiffs
and the Proposed Class will suffer future harm to their property if Imprelis™ is used near that
property.
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COUNT III (Deceptive Trade Practices Act, 6 Del. C. §§ 2531-36)
115. Plaintiffs incorporate by reference the allegations contained in the preceding
paragraphs of this Complaint.
116. DuPont markets, marketed, sold, and sells Imprelis™ in the course of business as
that term is used in 6 Del. C. §§ 2532 (a).
117. DuPont states and stated that Imprelis™ is safe for the environment, in violation
of 6 Del. C. §§ 2532 (a)(5).
118. DuPont implicitly represents and represented that: (a) Imprelis™ harms only
target vegetation when used according to the directions on the label and; (b) DuPont provides
adequate instructions for the safe application of Imprelis™, in violation of 6 Del. C. §§ 2532
(a)(5).
119. As a direct and proximate result of DuPont’s past and continuing misconduct,
Plaintiffs and Class members have been damaged in an amount to be proven at trial.
120. In addition to compensatory damages, Plaintiffs and the Proposed Class seek
reasonable attorneys’ fees because this is an exceptional case within the meaning of 6 Del. C.
§§ 2533(b).
121. In addition to compensatory damages, Plaintiffs and the Proposed Class are
entitled to punitive damages because DuPont’s conduct was gross, oppressive, aggravated, or
involved a breach of trust or confidence.
122. In addition to damages, Plaintiffs and the Proposed Class seek injunctive relief to
prevent DuPont from marketing or selling Imprelis™. See 6 Del. C. §§ 2523(a). Such relief is
proper because Plaintiffs and the Proposed Class will suffer future harm to their property if
Imprelis™ is used near that property.
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COUNT IV (Negligence)
123. Plaintiffs incorporate by reference the allegations contained in the preceding
paragraphs of this Complaint.
124. DuPont owed a duty to warn Plaintiffs and the Proposed Class that: (a) Imprelis™
is not safe for the environment; (b) Imprelis™ harms non-target vegetation when used according
to the directions on the label and; (c) DuPont does not provide adequate instructions for the safe
application of Imprelis™.
125. DuPont owed a duty to Plaintiffs and the Proposed Class not to design, market,
and sell an herbicide that would harm non-target vegetation even when used as directed;
126. DuPont breached its duty to warn Plaintiffs and the Proposed Class that: (a)
Imprelis™ is not safe for the environment; (b) Imprelis™ harms non-target vegetation when
used according to the directions on the label and; (c) DuPont does not provide adequate
instructions for the safe application of Imprelis™.
127. DuPont breached its duty to Plaintiffs and the Proposed Class not to design,
market, and sell an herbicide that would kill desirable vegetation even when used as directed;
128. Absent DuPont’s breach of its duty to warn Plaintiffs and the Proposed Class that:
(a) Imprelis™ is not safe for the environment; (b) Imprelis™ harms non-target vegetation when
used according to the directions on the label and; (c) DuPont does not provide adequate
instructions for the safe application of Imprelis™, Plaintiffs and the Proposed Class would not
have suffered harm.
129. Absent DuPont’s breach of its duty not to design, market, and sell an herbicide
that would kill desirable vegetation even when used as directed, Plaintiffs and the Proposed
Class would not have suffered harm.
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130. As a direct and proximate result of DuPont’s misconduct, Plaintiffs and the
Proposed Class have been damaged in an amount to be proven at trial.
131. In addition to compensatory damages, Plaintiffs and the Proposed Class are
entitled to punitive damages because DuPont’s conduct was gross, oppressive, aggravated, or
involved a breach of trust or confidence.
132. In addition to damages, Plaintiffs and the Proposed Class seek injunctive relief to
prevent DuPont from marketing or selling Imprelis™. Such relief is proper because Plaintiffs
and the Proposed Class will suffer future harm to their property if Imprelis™ is used near that
property.
COUNT V (Breach of Warranty - Express Warranty)
133. Plaintiffs incorporate by reference the allegations contained in the preceding
paragraphs of this Complaint.
134. DuPont expressly “warrants” that Imprelis™ is “reasonably fit” for use as an
herbicide. Ex. A (Imprelis™ label) at 9.
135. This express warranty is part of the basis of the bargain for any direct or indirect
purchaser of Imprelis™.
136. Imprelis™ is not reasonably fit for use as an herbicide because it harms non-target
vegetation even when used as directed.
137. As a direct and proximate result of DuPont’s breach of warranty, Plaintiffs and
Proposed Class members have been damaged in an amount to be proven at trial.
138. DuPont’s repeated statements that Imprelis™ is safe for the environment operate
to create an express warranty.
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139. This express warranty is part of the basis of the bargain for any direct or indirect
purchaser of Imprelis™.
140. Imprelis™ is not safe for the environment inasmuch as it harms non-target
vegetation even when used as directed.
141. DuPont’s attempted disclaimer that it created an express warranty by repeatedly
emphasizing that Imprelis™ is safe for the environment is ineffective:
a. It is substantively unconscionable because no reasonable person would
contemplate that an herbicide marketed as safe for the environment would actually harm
substantial quantities of non-target vegetation;
b. It is procedurally unconscionable because it is contained in a contract of
adhesion;
c. It is procedurally unconscionable because purchasers are not shown the
limitation of warranties provision prior to purchase;
d. It causes the warranty to fail of its essential purpose;
e. It is not conspicuous because it is on the last page of a product information
booklet and the purported limitation of remedies is in the same typeface as the majority of the
warranty.
f. It is not conspicuous to property-owners because it is never shown to
them.
142. DuPont’s attempted limitation of remedies is ineffective:
a. It is substantively unconscionable because no reasonable person would
contemplate that the proper use of an herbicide would destroy substantial quantities of non-target
vegetation;
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b. It is procedurally unconscionable because it is contained in a contract of
adhesion;
c. It is procedurally unconscionable because purchasers are not shown the
limitation of remedies provision prior to purchase;
d. It causes the warranty to fail of its essential purpose;
e. It is not conspicuous because it is on the last page of a product information
booklet and the purported limitation of remedies is in the same typeface as the majority of the
warranty;
f. It is not conspicuous to property-owners because it is never shown to
them.
143. When required, Plaintiffs and the Proposed Class are in privity with DuPont
because DuPont’s sale of Imprelis™ is either direct or through authorized distributors. On
information and belief, purchase through authorized distributors is sufficient to create such
privity because, inter alia, such authorized distributors are DuPont’s agents for purposes of the
sale of Imprelis™.
144. Plaintiffs have notified DuPont of this claim contemporaneously with the filing of
this Complaint.
COUNT VI (Breach of Warranty - Implied Warranty of Merchantability)
145. Plaintiff incorporates by reference the allegations contained in the preceding
paragraphs of this Complaint.
146. DuPont’s attempted disclaimer of the implied warranty of merchantability is
ineffective for the reasons DuPont’s attempted disclaimer of its express warranty that Imprelis™
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is safe for the environment is ineffective, and because no reasonable person would contemplate
that the proper use of an herbicide would harm substantial quantities of non-target vegetation.
147. Imprelis™ was sold by a merchant, as that term is used when construing
warranties under the Delaware Uniform Commercial Code.
148. Imprelis™ was not merchantable because, had Plaintiffs and the Proposed Class
known either that it had not been adequately tested or that it harmed large quantities of non-
target vegetation even when used as directed, it would not have passed in trade without
objection, nor would it have been considered fit for the ordinary purposes for which herbicides
are used.
149. As a direct and proximate result of DuPont’s breach of warranty, Plaintiffs and
the Proposed Class have been damaged in an amount to be proven at trial.
150. DuPont’s attempted limitation of remedies is ineffective for the reasons explained
above, in Plaintiffs’ claim for breach of express warranty.
151. When required, Plaintiffs and the Proposed Class are in privity with DuPont
because DuPont’s sale of Imprelis™ is either direct or through authorized distributors. On
information and belief, purchase through authorized distributors is sufficient to create such
privity because, inter alia, such authorized distributors are DuPont’s agents for purposes of the
sale of Imprelis™.
152. Plaintiffs have notified DuPont of this claim contemporaneously with the filing of
this Complaint.
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COUNT VII (Unjust Enrichment)
153. Plaintiffs incorporate by reference the allegations contained in the preceding
paragraphs of this Complaint.
154. Plaintiffs plead this Count in the alternative.
155. DuPont derived profits and was otherwise unjustly enriched from its marketing
and sale of Imprelis™.
156. Plaintiffs and the Proposed Class have been impoverished because of Imprelis™
because they paid for a product that causes substantial damage to their property far in excess of
any benefit the product might have.
157. Plaintiffs and the Proposed Class have been impoverished because DuPont has
been enriched.
158. DuPont has no justification for selling Plaintiffs and the Proposed Class an
herbicide that it has not tested adequately and that harms large quantities of non-target
vegetation, particularly without an adequate warning.
159. It would be unjust for DuPont to retain the benefits it has attained by marketing
and selling Imprelis™ as safe for the environment, marketing and selling Imprelis™ without
adequate testing, failing to warn Plaintiffs and the Proposed Class that it had not tested
Imprelis™ adequately, and marketing and selling Imprelis™ even though it harms a substantial
quantity of non-target vegetation when used as directed.
160. Plaintiff and the Proposed Class do not have an adequate remedy at law.
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RELIEF REQUESTED
WHEREFORE, Plaintiffs and the Proposed Class request that the Court enter
judgment against DuPont, awarding the following relief:
(A) An Order certifying this action as a class action (and certifying any
appropriate subclasses), appointing Plaintiffs as Class Representatives and their counsel of
record jointly as Class Counsel;
(B) Compensatory damages, including the cost of replacing trees that have
died, are dying, or will die from the past use of Imprelis™;
(C) Statutory damages and treble damages and such other relief as provided by
the statutes cited herein;
(D) Punitive damages for DuPont’s gross, oppressive, aggravated conduct, or
any conduct that involved a breach of trust or confidence.
(E) Prejudgment and post-judgment interest on such monetary relief;
(G) Injunctive relief barring DuPont from the continued sale of Imprelis™;
(H) The costs of bringing this suit, including reasonable attorneys’ fees and
costs where allowed by law; and
(I) All other relief to which Plaintiffs and Class members may be entitled
which the Court deems proper.
Dated: July 18, 2011 By: /s/ P. Bradford deLeeuw Jeffrey S. Goddess (No. 630) jgoddess@rmgglaw.com P. Bradford deLeeuw (No. 3569) bdeleeuw@rmgglaw.com ROSENTHAL, MONHAIT & GODDESS, P.A. 919 Market Street, Suite 1401 Wilmington, Delaware 19899-1070 Telephone: (302) 656-4433 Facsimile: (302) 658-7567
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Jonathan D. Selbin jselbin@lchb.com Jennifer Gross jgross@lchb.com Jason L. Lichtman jlichtman@lchb.com LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, New York 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592
Scott L. Starr starr@starrausten.com James H. Austen austen@starausten.com Andrew B. Miller miller@starrausten.com Mark S. Fryman, Jr. fryman@starrausten.com Marietto V. Massillamany mario@starrausten.com STARR, AUSTEN & MILLER, LLP 201 S 3rd Street Logansport, Indiana 46947-3102 Telephone: (574) 722-6676 Facsimile: (574) 753-3299 Attorneys for Plaintiffs and the Proposed Class
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EXHIBIT A
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EXHIBIT B
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