dupont complaint - graphics8.nytimes.com

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”).

Case 1:11-cv-00633-UNA Document 1 Filed 07/18/11 of 33 PageID #: 41

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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)



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


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


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


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.



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)



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).





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)



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


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.





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)



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


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)



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) [email protected] P. Bradford deLeeuw (No. 3569) [email protected] 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 [email protected] Jennifer Gross [email protected] Jason L. Lichtman [email protected] 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 [email protected] James H. Austen [email protected] Andrew B. Miller [email protected] Mark S. Fryman, Jr. [email protected] Marietto V. Massillamany [email protected] 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


EXHIBIT A

Case 1:11-cv-00633-UNA Document 1-2 Filed 07/18/11 Page 1 of 10 PageID #: 74

EXHIBIT B


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