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1 Michael A. Abramson, Esq. (SBN 79690)
1702 South Robertson Blvd., No. 152
2 Los Angeles, California 90035
(310) 247-9302
3 (310) 551-5419 (fax)
maa@abramsonlawgroup.com
4
5 Attorney for Plaintiff
TWINMED, LLC
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES
10
11 TWINMED LLC, a Delaware limited liability Case No.:
company
12
COMPLAINT FOR:
13
Plaintiff,
1. BREACH OF CONTRACT;
14 v.
2. MONEY HAD AND RECEIVED;
15 ALPINE TECHNICAL SERVICES., LLC, a
Utah limited liability company, dba ATS, ATS 3. UNJUST ENRICHMENT;
16
CHEMDEPOT, and ATS INNOVA; ATS
17 WAREHOUSE LLC, a Utah limited liability 4. NEGLIGENT MISREPRESENTATION;
company; RICHARD ALLRED, an individual;
18 CARA ALLRED, an individual; and DOES 1 5. NEGLIGENT INTERFERENCE WITH
through 50 PROSPECTIVE ECONOMIC
19 ADAVANTAGE;
Defendants.
20
6. FRAUD;
21
7. FALSE ADVERTISING (BUSINESS &
22 PROFESSIONAL CODE § 17500 et seq.);
23 8. UNFAIR COMPETITION (BUSINESS &
PROFESSIONAL CODE § 17200 et seq.);
24
and
25
9. BREACH OF COVENANT OF GOOD
26 FAITH AND FAIR DEALING.
27
28
1 4090.361.Complaint
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1 Plaintiff TwinMed, LLC, (collectively, “Plaintiff” or “TwinMed”), alleges the following:
2 I. PARTIES
3 1. TwinMed, LLC is a Delaware limited liability company (“Plaintiff” or “TwinMed”)
4 doing business in and with its principal place of business at 11333 Greenstone Ave., Santa Fe
5 Springs, California 90670. Plaintiff sells and distributes medical and nursing supplies to nursing
6 facilities and nursing homes, convalescent hospitals, convalescent homes, acute and sub-acute care
7 facilities nationwide.
8 2. Defendant Alpine Technical services, LLC (“Defendant or “ATS”) holds itself out as
9 a leading chemical provider for the oil and gas and water-treatment industries. Defendant ATS is,
10 and at all relevant times herein was, a Utah limited liability company that is authorized to do
11 business, and is doing business, in the County of Los Angeles, State of California. Plaintiff is
12 informed and believes, and based thereon alleges, that ATS ChemDepot, ATS Innova, and other
13 fictitious trade names. As is relevant herein, Defendant ATS owns and operates a supply distribution
14 center in the County of Los Angeles, State of California.
15 3. Defendant is believed to do business as ATS ChemDepot which holds itself
16 out as a company which supplies environmentally-safe disinfectants, and sanitizers that are
17 safe to use around people and animals.
18 4. Defendants are also believed to do business as “ATS SMART SOLUTIONS.”
19 This brand holds itself out as a business which is dedicated to “making life safe”.
20 5. Each ATS dba and line of business generally holds itself out as one which
21 provides its respective market with innovative products and solutions that help make
22 products and organizations safer, more effective, and even better for the environment.
23 6. Plaintiff TwinMed is informed and believes that ATS INNOVA CLEAN
24 WATER SOLUTIONS is a subsidiary of ATS and the distributor of TwinOxide, the product
25 in question here.
26 7. Richard Allred is believed to be the President, Managing Partner, and Chief
27 Executive Officer of ATS and its subsidiaries and affiliates.
28 8. Cara Allred is believed to be the Chief Financial Officer of ATS and its
2 4090.361.Complaint
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1 subsidiaries and affiliates.
2 9. At all relevant times, Defendants together comprised an “organization of persons”
3 within the meaning of Business and Professions Code section 17201, in that they associated
4 together for the common purpose of engaging in a course of unlawful, unfair, and fraudulent
5 business acts and practices as alleged herein.
6 10. At all relevant times, Defendants are believed to have acted individually and jointly
7 with every other Defendant in committing the acts alleged to have been committed by “Defendants”
8 in this Complaint.
9 11. At all relevant times, each of the Defendants acted: (a) as a principal; (b) under
10 express or implied agency; and/or (c) with actual or ostensible authority to perform the acts alleged
11 in this Complaint on behalf of every other Defendant.
12 12. At all relevant times, Defendants are believed to have known or realized, or should
13 have known or realized, that the other Defendants were engaging in or planned to engage in the
14 violations of law alleged in this Complaint. Knowing or realizing that the other Defendants were
15 engaging in such unlawful conduct, each Defendant nevertheless facilitated the commission of
16 those unlawful acts. Each Defendant intended to and did encourage, facilitate, or assist in the
17 commission of the unlawful acts, and thereby aided and abetted the other Defendants in the
18 unlawful conduct.
19 13. Defendants are believed to have engaged in a conspiracy, common enterprise, and
20 common course of conduct, the purpose of which was and is to engage in the violations of law
21 alleged in this Complaint. The conspiracy, common enterprise, and common course of conduct
22 continue to the present.
23 14. Plaintiff is informed and believes, and based thereon alleges, that at all
24 relevant times herein, there was a unity of interest and ownership between ATS its offices
25 and its subsidiaries and affiliates named herein, such that any individuality and separateness
26 between them never existed and/or ceased existing. Upon further information and belief,
27 ATS and its subsidiaries, affiliates and offices shared resources, personnel, offices, and/or
28 did not observe corporate formalities, and that such use of the organizational form injustice
3 4090.361.Complaint
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1 and inequity, and to avoid liability. Accordingly, Plaintiff is informed and believes, and the
2 Defendant parties did this based thereon alleges, that each an alter ego of Defendants ATS
3 and that the various legal entities are an alter ego for the individual Defendants.
4 15. The identity(ies) of the Defendants named herein as DOES 1 through 50 is
5 currently unknown to Plaintiff, so such Defendants are accordingly sued under such
6 fictitious names. Plaintiff is informed and believe, and therefore allege, that each of the
7 DOE Defendants is legally responsible in some manner for the damages sustained by
8 Plaintiff herein alleged and that Plaintiff’s damages as herein alleged were proximately and
9 legally caused by their conduct. Plaintiffs will seek leave of this Court to amend this
10 Complaint to insert the identity of DOES 1 through 50 upon discovery thereof.
11 16. Plaintiff is informed and believes, and on that basis alleges, that, at all relevant
12 times herein, each Defendant, including those fictitiously named, and each of them, were the
13 agents, servants, employees, partners, joint venturer, contractor, surety, co-conspirators,
14 owners, principals, and/or employers of the other Defendants, and each of them, were and
15 are, and at all times mentioned herein, acting within the course and scope of that agency,
16 employment, partnership, joint venture, conspiracy, suretyship, or ownership at all times
17 relevant to the facts alleged in this Complaint, or took the steps alleged herein with the knowledge,
18 consent, or ratification of each of the other Defendants..
19 II. JURISDICTION AND VENUE
20 17. Jurisdiction and venue are appropriate in this Court because all or a
21 substantial part of the acts, omissions, breaches, causes of action, and injuries alleged herein
22 occurred in the County of Los Angeles, State of California, because the parties do business
23 in the County of Los Angeles, State of California, and because a substantial portion of the
24 documents, witnesses, and evidence relevant to the causes of action asserted herein are
25 located within the County of Los Angeles, State of California.
26 18. Plaintiff is informed and believes and thereon alleges, that Defendants have
27 substantial continued contracts with and was otherwise doing business in State of California
28 and the County of Los Angeles sufficient for this Court to exercise jurisdiction.
4 4090.361.Complaint
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1 19. The Court additionally has jurisdiction in this matter because the amount in
2 controversy over $300,000 exceeds Court's jurisdictional minimum of $35,000.00.
3 III. GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
4 20. In or around January 2020, Defendants were made aware of the severe acute
5 respiratory syndrome coronavirus 2 (SARS-CoV-2) spreading world-wide and nationally,
6 know colloquially as the coronavirus, that caused severe medical distress and death in
7 individuals who caught the disease, especially the elderly.
8 21. SAR-CoV-2 is known and documented to cause a debilitating and deadly
9 disease, the Coronavirus disease 2019 (hereinafter, “COVID-19”).
10 22. COVID-19 can and has spread rapidly in persons with chronic underlying
11 medical conditions such persons are at great risk for COVID-19.
12 23. As a result, long-term acute, and other similar care facilities served by
13 Plaintiff were required to disinfect frequently touched surfaces at a minimum of every two
14 hours with a United States Environmental Protection Agency (“EPA”) registered and approved
15 products.
16 24. Plaintiff’s claims herein arise from a series of egregious and, ultimately,
17 dangerous misrepresentations made by the Defendants, who purported to be a “leading
18 provider of disinfectant products” during the peak of the COVID-19 pandemic. These
19 misrepresentations damaged Plaintiff while also threatening nursing home facilities just as a
20 virulent pathogen was spreading throughout California and the United States.
21 25. One of the products that Plaintiff offers to its nursing home customers is
22 disinfectant products, which protect against infectious agents such as COVID-19. To be
23 properly used in medical settings, disinfectant products typically must obtain premarket
24 approval from the EPA.
25 26. The EPA reviews and registers antimicrobial pesticides, which include
26 disinfectants for use on pathogens like SARS-CoV-2, the novel human coronavirus that
27 causes COVID-19. According to the EPA:
28 ///
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“A disinfectant is a substance, or mixture of substances that destroys or
1
irreversibly inactivates bacteria, fungi and viruses, but not necessarily bacterial
2 spores in the inanimate environment, such as on hard surfaces. Disinfectant
products are often used in hospitals, medical facilities and/or households. EPA
3 regulates disinfectants to ensure the pesticide meets specific standards before they
can be used by the public. Disinfectants are pesticides and can be harmful, please
4 be sure to read and understand any precautionary language or any safety
information before using the product.” 1
5
6 27. Products expected to kill SARS-CoV-2 are added to EPA’s
7 “List N” Disinfectants for Use Against SARS-CoV-2 (COVID-19)2. The EPA maintains
8 “List N,” which is a list of disinfectants that meet EPA’s criteria for use against the virus
9 that causes COVID-19.
10 28. The EPA provides a searchable list of disinfectants that will “kill
11 Coronavirus.” See website https://www.epa.gov/coronavirus/about-list-n-disinfectants-
12 coronavirus-covid-19-0. 3, the EPA's “List N” Tool is a way to confirm if products are
13 registered and approved. Further the “EPA expects products on “List N” to kill all strains
14 and variants of the coronavirus SARS-CoV-2 (COVID-19) when used according to the label
15 directions. As of February 28, 2024, the Defendants’ ATS TwinOxide Disinfectant product
16 (“Product”) is not listed in the EPA’s “List N.”
17 29. One reason for using only products registered by the EPA is that the EPA will only
18 register a disinfectant/sporicidal agent if the EPA determines that the product: (1) is “efficacious”;
19 (2) “will not cause unreasonable adverse effects on humans and the environment;” and (3) that it’s
20 label does not contain a statement that is false or misleading, contains adequate instructions for use,
21 and does not omit necessary warning or cautionary statements. (7 U.S.C. §§ 136(a)(c)(5);
22 136(q)(1)(G); Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 614 rehg
23 denied (Aug. 25, 2021), review filed (Sept. 20, 2021.)
24 30. The EPA takes enforcement action against companies making false claims that their
1
25 https://www.epa.gov/pesticide-registration/selected-epa-registered-disinfectants#disinfect-
prod
26
2
EPA’s List N: Disinfectants for Use Against SARS-CoV-2 (COVID-19)
27
3
https://www.epa.gov/coronavirus/about-list-n-disinfectants-coronavirus-covid-19-0
28
6 4090.361.Complaint
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1 disinfectants work against SARS-CoV-2 (COVID-19).
2
“EPA is authorized to take enforcement action to prevent the sale or
3 distribution of disinfectants with false or misleading claims on their
labeling. EPA is also authorized to take enforcement action to prevent the
4 sale or distribution of unregistered disinfectants when the seller or
distributor is making claims that they work against SARS-CoV-2 (the
5 coronavirus that causes COVID-19), and to prevent the sale or distribution
of registered pesticides that are not permitted to make SARS-CoV-2
6
claims by the terms of their registration.
7 Due to the ongoing pandemic, EPA is concerned with pesticide products
entering the United States, or produced, manufactured or distributed in the
8 United States, that claim to address COVID-19 impacts. The Agency will
focus on ensuring compliance with requirements applicable to these
9 products to ensure protection of public health.”4
10 31. On or about July 17, 2020, Plaintiff purchased from Defendants $355,860 of ATS’
11 Product. At all relevant times, Defendant s was specifically aware that Plaintiff had purchased
12 Defendants’ Product for domestic resale to nursing homes and similar facilities for use
13 against COVID-19. As detailed herein one of their Defendants used an existing product
14 designed for other markets and diluted or reformulated it to use as a disinfectant for
15 COVID-19. Tod date, the EPA has not this Product for this use.
16 32. At all relevant times herein, including the period when Plaintiff purchased or
17 returned Defendants’ Product to and including the present, ATS TwinOxide, was not listed
18 or added to the EPA’s “List N” of products that meet EPA criteria for use against the virus
19 that causes COVID-19.
20 33. On or about March 2020, Defendants falsely stated and misrepresented
21 that this Product was be on the EPA’s “List N” of products:
22 4
https://www.epa.gov/coronavirus/will-epa-take-enforcement-action-against-companies-
making-false-claims-their
23
24
25
26
27
28
7 4090.361.Complaint
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“Is TwinOxide on the CDC5 or EPA6 COVID-19 approved list?
1
The TwinOxide EPA registration number is 86054-1 and EPA EST
2 NO. 85158-BEL-001. TwinOxide is currently in process of becoming
listed on the EPA List N: Disinfectants for Use Against SARS-CoV-2, the
3 novel coronavirus that causes the disease COVID-19.”
4 A true and correct copy of ATS InnovaTM FAQ: About TwinOxide and SARS-CoV-2
5 Disinfection is attached hereto as Exhibit 1.
6 34. To its shock and dismay, in and around November 2020, Plaintiff learned that the
7 ATS Product it had received was not listed on the EPA’s “List N”. Following this disturbing
8 discovery of information never disclosed heretofore by Defendants, Plaintiff reached an
9 agreement with Defendants and returned the Product for a refund due to lack of legal compliance
10 and lack of required agency approval.
11 35. The purported EPA “List N” disinfectant was delivered to Plaintiff by ATS
12 Distribution, thus potentially exposing thousands of innocent end-users to the risk of infectious
13 agents such as COVID-19. Upon this discovery, TwinMed told Defendants about the serious
14 concerns for the safety of its customers, as well as its losses arising from Defendants’
15 misrepresentations.
16 36. Registrant for EPA registration number is 86054-17, TwinOxide International BV, is
17 the exclusive worldwide license holder, producer and distributor for TwinOxide®. TwinOxide is a
18 transportable non-explosive two-component chlorine dioxide which is supposed to provide safe and
19 disinfected water compliant with the European Quality Standard DIN EN 12671 for drinking water:
20 //
5
21 Center for Diseases Control and Prevention (“CDC”): The CDC guidelines to the public on
how to prevent and respond to infectious diseases in both health-care settings and at home. With
22
respect to disinfectants and sterilants, part of CDC’s role is to inform the public (in this case
23
healthcare personnel) of current scientific evidence pertaining to these products, to comment about
their safety and efficacy, and to recommend which chemicals might be most appropriate or effective
24 for specific microorganisms and
settings.”https://www.cdc.gov/infectioncontrol/pdf/guidelines/disinfection-guidelines-H.pdf. Also,
25 CDC Control and Prevention https://www.cdc.gov/coronavirus/2019-ncov/community/clean-
disinfect/index.html.
26
6 In general, EPA regulates disinfectants and sterilants used on environmental surfaces, and
27 not those used on critical or semicritical medical devices; the latter are regulated by FDA.
28 7 https://ordspub.epa.gov/ords/pesticides/f?p=PPLS:2::::::
8 4090.361.Complaint
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TwinOxide International BV
1
De Tongelreep 17 NL-5684 PZ Best
2 (The Netherlands)
3 A true and correct copy of ATS InnovaTM FAQ: About TwinOxide and SARS-CoV-2 Disinfection
4 is attached hereto as Exhibit 2.
5 37. Plaintiff is informed and believes, and based thereon alleges, that Defendants
6 formulated, re-manufactured, distributed, packaged, and sold the Product to Plaintiff and the
7 general public.
8 38. Without Plaintiff’s knowledge or consent, Defendants further misrepresented in its
9 corporate promotion of the ATS Product and marketing materials that Plaintiff used Product in its.
10 Had Plaintiff known that TwinMed could not sell the Product due non-listing on the EPA List-N
11 and Defendants’ misleading characterization, Plaintiff would not have approved the use of its
12 name/brand being used in Defendants’ presentations or other marketing tools. A true and correct
13 copy of ATS TwinOxide Disinfection Corporate presentation is attached hereto as Exhibit 3.
14 39. The ATS TwinOxide disinfectant spray, 1 gallon, product item number 016-
15 104420, not only did not meet the EPA’s “List N” product guidelines. The containers also leaked,
16 creating serious quality control issue. This quality control issue was eventually corrected and a
17 new item number was created 016-105406 for the same product.
18 40. Defendants negligently and carelessly manufactured, designed, formulated,
19 compounded, tested, produced, processed, assembled, inspected, distributed, marketed, labeled,
20 packaged, prepared for use, and sold the ATS Product and failed to adequately test to confirm that
21 Defendants’ ATS Product could in fact have efficacy against COVID-19.
22 41. Prior to the time that Plaintiff used the ATS Product, Defendants impliedly
23 warranted to Plaintiff, the general public, and the medical community that the Product was of
24 commercial quality, and safe and fit for the use for which it was intended.
25 42. Defendants expressly warranted to Plaintiff and the public that the Product was safe,
26 effective, fit, and proper for its intended use. Defendants did so through statements that they and
27 their authorized agents and representatives, and sales and marketing agents, made orally and in
28 promotional and other written, oral, and electronically disseminated statements and materials.
9 4090.361.Complaint
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1 43. Plaintiff relied on the skill, judgment, representations, and foregoing express
2 warranties of Defendants when Plaintiff decided to purchase Defendants’ ATS Product.
3 44. Plaintiff was and is unskilled in the research, design, and manufacture of the ATS
4 Product, and reasonably relied entirely on the skill, judgment, and implied warranty of Defendants
5 in using the Product.
6 45. On October 22, 2020, Jeffrey Fleishman, Plaintiff’s Senior Supply Planning
7 Manager, sent an email to Naftali (Tali) Junik, Defendants’ distributor, regarding the disposition for
8 the defective Product:
9
ITEM NUMBER Description UOM Total Units CHI LA OR PEN PTL TN TX
10 016‐104420 TwinOxide Disinfectant Spray 1gal ‐ 4ea/cs EA 7720 1288 1280 1224 1281 1284 0 1363
016‐104421 TwinOxide Disinfectant 32oz ‐ 12ea/cs EA 31795 4106 5328 4355 5594 5770 1112 5530
016‐104460 TwinOxide Spray Disinfectant 2.5 Gal ‐ 2ea/cs EA 0 0 0 0 0 0 0 0
11 016‐104461 TwinOxide Drum 50ppm 55 Gal ‐ 4ea/cs EA 0 0 0 0 0 0 0 0
016‐104462 TwinOxide Defense+ Home and Office Kit EA 0 0 0 0 0 0 0 0
12 016‐105406 TwinOxide Disinfectant Spray 1gal ‐ 4ea/cs EA 364 48 76 76 36 44 0 84
13 A true and correct copy of Jeffrey Fleishman’s October 22, 2020 email is attached hereto as Exhibit 4.
14 46. On November 4, 2020, after obtaining Defendants’ agreement to return the ATS
15 Product for a complete refund, Jeffrey Fleishman sent a confirmation email. The return of the
16 defective ATS Product was to be made to Defendants:
17
“This return will be for every (hooray!) TwinOxide SKU. Here is a listing of each
18
SKU.
19 016-104420
016-104421
20
016-104460
21 016-104461
016-104462
22
016-105406
23
However, I am only showing we have inventory of these.
24
25 016-104420
016-104421
26 016-105406
27
A true and correct copy of Jeffrey Fleishman’s November 4, 2020 email is attached hereto as
28 Exhibit 5.
10 4090.361.Complaint
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1 47. On November 6, 2020, Jeffrey Fleishman another confirming email regarding the
2 returns:
3 “Everything is going back to the vendor. Expiring or not. [Emphasis added]
4 A true and correct copy of Jeffrey Fleishman’s November 4, 2020 email is attached hereto as
5 Exhibit 5.
6 48. On November 6, 2020, Jacqueline Farnsworth, Plaintiff’s Sr. Director of Inventory &
7 Demand Planning sent an internal email confirming the return of the defective ATS Product as
8 agreed with Defendants:
9 “Good afternoon all!
Many of you have put together your pallets of 016-104421 to be returned.
10 However, our return will, thankfully, extend to ALL of our TwinOxide
inventory (no matter the expiration).
11
Please move all of your available inventory of the below items to the
12 RTV01 location and provide the full skid counts you have (if you have
already given me your skid count, please ADD that to what you have
13 below and give me the TOTAL).
14 I’ve also cc’d Jeff since he has been the one working to get us credit. If
you have any questions at all, please let either of us know.
15
Thanks,
16 Jacqueline
17 A true and correct copy of Jacqueline Farnsworth ‘s November 6, 2020 email is attached hereto as
18 Exhibit 5.
19 49. Per agreement, Defendants picked up at its expense the defective ATS
20 Product from Plaintiff’s seven (7) different distribution centers from November 2020 to
21 January 15, 2021 listed below in sections A-G:
22
A. ATS Coordinated Performance of the Return/Refund via TwinMed Santa Fe Springs,
23 California Distribution Center
24 50. Per the agreement of the parties, on November 19, 2020, Kayla
25 Schoppmann, ATS’s ChemDepot Project Manager, sent an email to Plaintiff’s contact,
26 Robert Lopez at the TwinMed Santa Fe Springs, CA distribution center, regarding the
27 return of the ATS Product:
28 ///
11 4090.361.Complaint
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“Hello Robert,
1
I am reaching out to you regarding the return of TwinOxide from your
2 warehouse facility in Los Angeles, Jeff Fleishmann sent me over the
information & what product you have on hand currently.
3
016-104420: 1 Gallon Cases (1,336)
4 016-104421: 32 oz. Spray Pack cases (5,292)
23 total pallets
5
What works best to coordinate the return? Please let me know.”
6
7 A true and correct copy of Kayla Schoppmann’s November 19, 2020 email is attached hereto as
8 Exhibit 6.
9 51. On December 2, 2020, Plaintiff’s Robert Lopez of the Santa Fe Springs, CA
10 distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager,
11 requesting status regarding picking up ATS’s Product in Plaintiff’s Santa Fe Spring, CA
12 distribution center:
13 “Hi Kayla,
Any word on my return?
14 Do you know when it will picked up?…”
15 A true and correct copy of Robert Lopez’s December 2, 2020 email is attached hereto as Exhibit 6.
16 52. December 2, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
17 responded to Plaintiff’s contact, Robert Lopez:
18
“Hi Robert,
19
I’m so sorry this is taking longer than needed. I am waiting on our AP
Dept to get out (sic) contact paid who sets up shipping for me. So that the
20 hold up. As soon as i (sic) have any more new information I’ll be sure to
let you know.
21
22 Thanks,
Kayla”
23
24 A true and correct copy of Kayla Schoppmann’s December 2, 2020 email is attached hereto as
25 Exhibit 6
26 53. On December 15, 2020, Plaintiff’s Robert Lopez of the Santa Fe Springs, CA
27 distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager,
28 requesting status regarding picking up ATS’s Product in Plaintiff’s Santa Fe Springs, CA
12 4090.361.Complaint
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1 distribution center:
2 “Hi Kayla,
Any Word on getting this return picked up.
3
Thanks,
4 Robert Lopez”
5 A true and correct copy of Robert Lopez’s December 15, 2020 email is attached hereto as Exhibit 6.
6 54. December 15, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
7 responded to Plaintiff’s contact, Robert Lopez:
8
“Hi Robert,
9 I promise I haven’t forgotten you. We are still waiting on backend things
to go through & there was some kind of miscommunication, so it’s taking
10 longer than usual. I promise I will keep you posted & when I have the go
ahead to set up a carrier to pick up the twinoxide from your facility. Again,
11 I’m so sorry.
12
Thanks,
13 Kayla”
14 A true and correct copy of Kayla Schoppmann’s December 15, 2020 email is attached hereto as
15 Exhibit 6.
16 55. On December 29, 2020, Plaintiff’s Jacqueline Farnsworth, sent an email to Kayla
17 Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status of the Product inventory in
18 Santa Fe Springs, CA:
19
“Kayla,
20
Can you tell me where we are with the pickup of inventory in LA?”
21
22 A true and correct copy of Jacqueline Farnsworth’s December 29, 2020 email is attached hereto as
23 Exhibit 6.
24 56. December 29, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
25 responded to Plaintiff’s contact, Jacqueline Farnsworth:
26
“I am so sorry it’s taken so long. I’ve been waiting on my co-worker to get
27
some back end things taken care of so we are able to schedule the carriers,
and I’ll just say this it’s (sic) been a super frustrating thing. I’ve been
28 waiting on her, so that’s been the hold up. I do apologize!”
13 4090.361.Complaint
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1 A true and correct copy of Kayla Schoppmann’s December 29, 2020 email is attached hereto as
2 Exhibit 6.
3 57. On or about January 4, 2021 Defendants picked up the defective ATS Product
4 inventory from Plaintiff’s Santa Fe Springs, CA distribution center. A true and correct copy of the
5 Bill of Lading is attached as Exhibit 6.
6
B. ATS Coordinated Performance of the Return/Refund via TwinMed Orlando, Florida
7
Distribution Center
8 58. Per the agreement of the parties, on November 19, 2020, Kayla Schoppmann, ATS’s
9 ChemDepot Project Manager, sent an email to Plaintiff’s contact, Claudia Giraldo at Plaintiff’s
10 Orlando, Florida distribution center, regarding the return of the ATS Product:
11
“Hello Claudia,
12
I am reaching out to you in regards the return of TwinOxide from your
warehouse facility in Orlando. Jeff Fleishmann sent me over the
13 information & what product you have on hand currently.
14 016-104420: 1 Gallon Cases (1,296)
016-104421: 32 oz. Spray Pack cases (4,355)
15
11 total pallets.
16
What works best to coordinate the return? Please let me know.”
17
18 A true and correct copy of Kayla Schoppmann’s November 19, 2020 email is attached hereto as
19 Exhibit 7.
20 59. On November 20, 2020, Claudia Giraldo, Plaintiff’s Inventory Control Specialist at
21 the Orlando, Florida distribution center responded to Kayla Schoppmann’s, ATS’s ChemDepot
22 Project Manager, email:
“Good morning Kayla,
23
Actually, we have a total of 19 pallets with those two items (016-104420-
24 9 pallets, 1224 EA and 016-104421 10 pallets, 4355 EA).
I also have a pallet of items 016-105406 with & 72 EA, are we returning
25 this one too?”
26 A true and correct copy of Claudia Giraldo’s November 20, 2020 email is attached hereto as
27 Exhibit 7.
28 60. On November 20, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
14 4090.361.Complaint
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1 responded to Plaintiff’s contact, Claudia Giraldo at Plaintiff’s Orlando, Florida distribution center:
2
“Hi Claudia,
3 Yes, I’m going to need all TwinOxide to be returned. Thank you for
sending me the information. I’ll get a carrier set up for next week…”.
4
5 A true and correct copy of Kayla Schoppmann’s November 20, 2020 email is attached hereto as
6 Exhibit 7.
7 61. On November 30, 2020, Claudia Giraldo, Plaintiff’s Inventory Control Specialist at
8 the Orlando, Florida distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot
9 Project Manager, requesting status of the TwinOxide pickup:
10 “Good morning Kayla,
Do you have any update for this shipment pickup?
11 I would appreciate your help”
12 A true and correct copy of Claudia Giraldo’s November 30, 2020 email is attached hereto as
13 Exhibit 7.
14 62. On November 30, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
15 responded to Plaintiff’s contact, Claudia Giraldo:
16 “Hi Claudia,
Good morning. I am so sorry this is taking longer. Our AP dept needs to
17
make payment to my contact that sets up all the shipping for me. So that’s
18 why it’s taking so longer (sic) than usual…”
19
A true and correct copy of Kayla Schoppmann ‘s November 30, 2020 email is attached hereto as
20
Exhibit 7.
21
63. On December 16, 2020, Claudia Giraldo, Plaintiff’s Inventory Control Specialist at
22
the Orlando, Florida distribution center sent an email to ATS’s Kayla Schoppmann’s, requesting
23
status of the Product pickup:
24 “Good morning Kayla,
Do you have any update about this return?
25 Thank you!”
26 A true and correct copy of Claudia Giraldo’s December 16, 2020 email is attached hereto as
27 Exhibit 7.
28 64. On December 16, 2020, ATS’s Kayla Schoppmann responds to Claudia Giraldo:
15 4090.361.Complaint
C OMPLAINT
1
“Hi Claudia,
2 I am so sorry this has taken forever. I’ve been waiting on my co-worker to
make the shipping available to setup. I should know by the end of the
3 day…”
4 A true and correct copy of Kayla Schoppmann’s December 16, 2020 email is attached hereto as
5 Exhibit 7.
6 65. On December 28, 2020, Plaintiff’s Jacqueline Farnsworth sent an email to Kayla
7 Schoppmann, ATS’s ChemDepot Project Manager, requesting status of the ATS Product inventory
8 in Orlando, Florida
9 “Hi Kayla,
10
Have we been able to schedule this pickup yet? I’d really like to get this squared away before
11 the end of the year.”
12
A true and correct copy of Jacqueline Farnsworth’s December 28, 2020 email is attached hereto as
13
Exhibit 7.
14
15 66. December 29, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
16 responded to Plaintiff’s contact, Jacqueline Farnsworth:
17 “I am so sorry it’s taken so long. I’ve been waiting on my co-worker to get
some back end things taken care of so we are able to schedule the carriers,
18
and I’ll just say this it’s (sic) been a super frustrating thing. I’ve been
19 waiting on her, so that’s been the hold up. I do apologize!”
20
A true and correct copy of Kayla Schoppmann’s December 29, 2020 email is attached hereto as
21
Exhibit 7.
22
67. On or about December 30, 2020 Defendants picked up the defective ATS Product
23
inventory from Plaintiff’s Orlando, Florida distribution center. A true and correct copy of the Bill of
24
Lading is attached as Exhibit 7.
25 C. ATS Coordinated Performance of the Return/Refund via TwinMed Niles, Illinois
Distribution Center
26
27 68. Per the agreement of the parties, on November 24, 2020, Kayla Schoppmann, ATS’s
28 ChemDepot Project Manager, sent an email to Plaintiff’s contact, Jairo Vazquez at Plaintiff’s Niles,
16 4090.361.Complaint
C OMPLAINT
1 IL distribution center, regarding the return of the ATS Products:
2
“Hello Jairo,
3 I am still waiting to hear from my contact about getting a carrier aet up to
pick up the TwinOxide from your facility. I know he has been trying to
4 find me the cheapest price for shipping. I’m thinking it may be next week
before we can get a carrier to pick up. As soon as I hear any more
5 information, I’ll be sure to let you know
6
Thank you,
7 Kayla”
8
A true and correct copy of Kayla Schoppmann’s November 24, 2020 email is attached hereto as
9
Exhibit 8.
10
69. On December 3, 2020, Plaintiff’s contact, Jairo Vazquez, at the Niles, IL distribution
11
center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status
12
regarding the return of the ATS Product.
13
“Good morning Kayla,
14 Any update on this?”
15 A true and correct copy of Jairo Vazquez’s December 3, 2020 email is attached hereto as Exhibit 8.
16 70. On December 3, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
17 responded to Plaintiff’s contact, Jairo Vazquez, at Plaintiff’s Niles, IL distribution center:
18
“Hi Jairo,
19 I’m so sorry this is taking longer. I am hoping to have more of an update
by tomorrow or early next week.
20
Thanks,
21 Kayla”
22 A true and correct copy of Kayla Schoppmann’s December 3, 2020 email is attached hereto as
23 Exhibit 8.
24 71. On December 29, 2020, Jairo Vazquez, at Plaintiff’s Niles, IL distribution center sent
25 an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status of the
26 Product pickup:
27 ///
28 ///
17 4090.361.Complaint
C OMPLAINT
“Good morning Kayla,
1
Any update on this?”
2 A true and correct copy of Jairo Vazquez’s December 29, 2020 email is attached hereto as Exhibit 8.
3 72. December 29, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
4 responded to Plaintiff’s contact, Jairo Vazquez:
5
“Hello Jairo,
6 Yes, I’m working on trying to get carriers set up for your warehouse & all
the other TwinMed Warehouses. I’m going to get a carrier set up early
7 next week for your warehouse. Will that work?...”
8 A true and correct copy of Kayla Schoppmann’s December 29, 2020 email is attached hereto as
9 Exhibit 8.
10 73. On or about January 15, 2021 Defendants picked up the defective ATS Product
11 inventory from Plaintiff’s Niles, IL distribution center. A true and correct copy of the Bill of Lading
12 is attached as Exhibit 8.
13 D. ATS Coordinated Performance of the Return/Refund via TwinMed Portland, Oregon
Distribution Center
14
15 74. Per the agreement of the parties, on November 19, 2020, Kayla Schoppmann, ATS’s
16 ChemDepot Project Manager, sent an email to Plaintiff’s contact, Jonathan Ortiz at Plaintiff’s
17 Portland, OR distribution center, regarding the return of the ATS Product:
18
“Hello Jonathan,
19 I am reaching out to you in regards the return of TwinOxide from your
warehouse facility in Portland. Jeff Fleishmann sent me over the
20
information & what product you have on hand currently.
21
016-104420: 1 Gallon Cases (1,328)
22 016-104421: 32 oz. Spray Pack cases (5,722)
9 total pallets.
23
24 What works best to coordinate the return? Please let me know.”
25 A true and correct copy of Kayla Schoppmann’s November 19, 2020 email is attached hereto as
26 Exhibit 9.
27 75. On November 19, 2020, Plaintiff’s contact, Jonathan Ortiz, at the Portland, OR
28 distribution center responded to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, email
18 4090.361.Complaint
C OMPLAINT
1 regarding the return of the ATS Product.
2
“We have a total of
3 44 EA (016-104421)
128EA (016-104420)
4 Total of 23 pallets”
5 A true and correct copy of Jonathan Ortiz’s November 19, 2020 email is attached hereto as Exhibit
6 9.
7 76. On November 30, 2020, Plaintiff’s contact, Jonathan Ortiz, at the Portland, OR
8 distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager,
9 regarding status of the return of the ATS Product.
10 “Do you have any idea on when this is going to get picked up?”
11 A true and correct copy of Jonathan Ortiz’s November 30, 2020 email is attached hereto as
12 Exhibit 9.
13 77. On November 30, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
14 responded to Plaintiff’s contact, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution center:
15
“Hi Jonathan,
16 I’m so sorry this has taken longer than expected. We are waiting on AP
Dept to make payment to my contact who sets up shipping for me. So
17 that’s the hold up. As soon as i (sic) have an update I’ll be sure to let you
know.
18
19 Thank you,
Kayla”
20
21 A true and correct copy of Kayla Schoppmann’s November 30, 2020 email is attached hereto as
22 Exhibit 9.
23 78. On December 3, 2020, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution center
24 sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status of the
25 Product pickup:
26
“Hi Kayla, sorry to bother you about this again, just wanted to see if we
27 have gotten and update on this. Do you think this will get sent out by
Wednesday of next week? As we are doing our end of the year inventory
28 next week.”
19 4090.361.Complaint
C OMPLAINT
1 A true and correct copy of Jonathan Ortiz’s December 3, 2020 email is attached hereto as Exhibit 9.
2 79. December 3, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
3 responded to Plaintiff’s contact, Jonathan Ortiz:
4
“Your (sic) ok! Not quite yet. We are hoping to have this resolved soon.
5 Im (sic) hoping to know by early next week. I’ll let you know as soon as
possible when i find out! Again, I’m so sorry about this.”
6
A true and correct copy of Kayla Schoppmann’s December 3, 2020 email is attached hereto as
7
Exhibit 9.
8
80. On December 16, 2020, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution
9
center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status
10
of the Product pickup:
11
“Any update on the RA# and/or the pick up?”
12
13 A true and correct copy of Jonathan Ortiz’s December 16, 2020 email is attached hereto as
14 Exhibit 9.
15 81. On December 16, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager,
16 responded to Plaintiff’s contact, Jonathan Ortiz:
17
“Hi Jonathan,
18
I apologize this is taking forever. I have been waiting on my co-worker to
19 get shipping available to set up, and have had to wait on some back end
things. I should know by end of the day what’s going on. I will let you
20 know ASAP!
21
Thanks,
22 Kayla”
23 A true and correct copy of Kayla Schoppmann’s December 16, 2020 email is attached hereto as
24 Exhibit 9.
25 82. On December 30, 2020, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution
26 center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, providing ATS
27 Product quantities at the Portland, OR distribution center.
28 ///
20 4090.361.Complaint
C OMPLAINT
“We have 23 pallets. Item 016-10506 44 ea. Item 016-104421 is 5722 EA.
1
Item 016-104420 is 1284 EA…”
2 A true and correct copy of Jonathan Ortiz’s December 30, 2020 email is attached hereto as
3 Exhibit 9.
4 83. On or about January 5, 2021, Defendants picked up the defective ATS Product
5 inventory from Plaintiff’s Portland, OR distribution center. A true and correct copy of the Bill of
6 Lading is attached as Exhibit 9.
7
E. ATS Coordinated Performance of the Return/Refund via TwinMed Bethlehem,
8 Pennsylvania
Preview
1 Michael A. Abramson, Esq. (SBN 79690) 1702 South Robertson Blvd., No. 152 2 Los Angeles, California 90035 (310) 247-9302 3 (310) 551-5419 (fax) maa@abramsonlawgroup.com 4 5 Attorney for Plaintiff TWINMED, LLC 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES 10 11 TWINMED LLC, a Delaware limited liability Case No.: company 12 COMPLAINT FOR: 13 Plaintiff, 1. BREACH OF CONTRACT; 14 v. 2. MONEY HAD AND RECEIVED; 15 ALPINE TECHNICAL SERVICES., LLC, a Utah limited liability company, dba ATS, ATS 3. UNJUST ENRICHMENT; 16 CHEMDEPOT, and ATS INNOVA; ATS 17 WAREHOUSE LLC, a Utah limited liability 4. NEGLIGENT MISREPRESENTATION; company; RICHARD ALLRED, an individual; 18 CARA ALLRED, an individual; and DOES 1 5. NEGLIGENT INTERFERENCE WITH through 50 PROSPECTIVE ECONOMIC 19 ADAVANTAGE; Defendants. 20 6. FRAUD; 21 7. FALSE ADVERTISING (BUSINESS & 22 PROFESSIONAL CODE § 17500 et seq.); 23 8. UNFAIR COMPETITION (BUSINESS & PROFESSIONAL CODE § 17200 et seq.); 24 and 25 9. BREACH OF COVENANT OF GOOD 26 FAITH AND FAIR DEALING. 27 28 1 4090.361.Complaint C OMPLAINT 1 Plaintiff TwinMed, LLC, (collectively, “Plaintiff” or “TwinMed”), alleges the following: 2 I. PARTIES 3 1. TwinMed, LLC is a Delaware limited liability company (“Plaintiff” or “TwinMed”) 4 doing business in and with its principal place of business at 11333 Greenstone Ave., Santa Fe 5 Springs, California 90670. Plaintiff sells and distributes medical and nursing supplies to nursing 6 facilities and nursing homes, convalescent hospitals, convalescent homes, acute and sub-acute care 7 facilities nationwide. 8 2. Defendant Alpine Technical services, LLC (“Defendant or “ATS”) holds itself out as 9 a leading chemical provider for the oil and gas and water-treatment industries. Defendant ATS is, 10 and at all relevant times herein was, a Utah limited liability company that is authorized to do 11 business, and is doing business, in the County of Los Angeles, State of California. Plaintiff is 12 informed and believes, and based thereon alleges, that ATS ChemDepot, ATS Innova, and other 13 fictitious trade names. As is relevant herein, Defendant ATS owns and operates a supply distribution 14 center in the County of Los Angeles, State of California. 15 3. Defendant is believed to do business as ATS ChemDepot which holds itself 16 out as a company which supplies environmentally-safe disinfectants, and sanitizers that are 17 safe to use around people and animals. 18 4. Defendants are also believed to do business as “ATS SMART SOLUTIONS.” 19 This brand holds itself out as a business which is dedicated to “making life safe”. 20 5. Each ATS dba and line of business generally holds itself out as one which 21 provides its respective market with innovative products and solutions that help make 22 products and organizations safer, more effective, and even better for the environment. 23 6. Plaintiff TwinMed is informed and believes that ATS INNOVA CLEAN 24 WATER SOLUTIONS is a subsidiary of ATS and the distributor of TwinOxide, the product 25 in question here. 26 7. Richard Allred is believed to be the President, Managing Partner, and Chief 27 Executive Officer of ATS and its subsidiaries and affiliates. 28 8. Cara Allred is believed to be the Chief Financial Officer of ATS and its 2 4090.361.Complaint C OMPLAINT 1 subsidiaries and affiliates. 2 9. At all relevant times, Defendants together comprised an “organization of persons” 3 within the meaning of Business and Professions Code section 17201, in that they associated 4 together for the common purpose of engaging in a course of unlawful, unfair, and fraudulent 5 business acts and practices as alleged herein. 6 10. At all relevant times, Defendants are believed to have acted individually and jointly 7 with every other Defendant in committing the acts alleged to have been committed by “Defendants” 8 in this Complaint. 9 11. At all relevant times, each of the Defendants acted: (a) as a principal; (b) under 10 express or implied agency; and/or (c) with actual or ostensible authority to perform the acts alleged 11 in this Complaint on behalf of every other Defendant. 12 12. At all relevant times, Defendants are believed to have known or realized, or should 13 have known or realized, that the other Defendants were engaging in or planned to engage in the 14 violations of law alleged in this Complaint. Knowing or realizing that the other Defendants were 15 engaging in such unlawful conduct, each Defendant nevertheless facilitated the commission of 16 those unlawful acts. Each Defendant intended to and did encourage, facilitate, or assist in the 17 commission of the unlawful acts, and thereby aided and abetted the other Defendants in the 18 unlawful conduct. 19 13. Defendants are believed to have engaged in a conspiracy, common enterprise, and 20 common course of conduct, the purpose of which was and is to engage in the violations of law 21 alleged in this Complaint. The conspiracy, common enterprise, and common course of conduct 22 continue to the present. 23 14. Plaintiff is informed and believes, and based thereon alleges, that at all 24 relevant times herein, there was a unity of interest and ownership between ATS its offices 25 and its subsidiaries and affiliates named herein, such that any individuality and separateness 26 between them never existed and/or ceased existing. Upon further information and belief, 27 ATS and its subsidiaries, affiliates and offices shared resources, personnel, offices, and/or 28 did not observe corporate formalities, and that such use of the organizational form injustice 3 4090.361.Complaint C OMPLAINT 1 and inequity, and to avoid liability. Accordingly, Plaintiff is informed and believes, and the 2 Defendant parties did this based thereon alleges, that each an alter ego of Defendants ATS 3 and that the various legal entities are an alter ego for the individual Defendants. 4 15. The identity(ies) of the Defendants named herein as DOES 1 through 50 is 5 currently unknown to Plaintiff, so such Defendants are accordingly sued under such 6 fictitious names. Plaintiff is informed and believe, and therefore allege, that each of the 7 DOE Defendants is legally responsible in some manner for the damages sustained by 8 Plaintiff herein alleged and that Plaintiff’s damages as herein alleged were proximately and 9 legally caused by their conduct. Plaintiffs will seek leave of this Court to amend this 10 Complaint to insert the identity of DOES 1 through 50 upon discovery thereof. 11 16. Plaintiff is informed and believes, and on that basis alleges, that, at all relevant 12 times herein, each Defendant, including those fictitiously named, and each of them, were the 13 agents, servants, employees, partners, joint venturer, contractor, surety, co-conspirators, 14 owners, principals, and/or employers of the other Defendants, and each of them, were and 15 are, and at all times mentioned herein, acting within the course and scope of that agency, 16 employment, partnership, joint venture, conspiracy, suretyship, or ownership at all times 17 relevant to the facts alleged in this Complaint, or took the steps alleged herein with the knowledge, 18 consent, or ratification of each of the other Defendants.. 19 II. JURISDICTION AND VENUE 20 17. Jurisdiction and venue are appropriate in this Court because all or a 21 substantial part of the acts, omissions, breaches, causes of action, and injuries alleged herein 22 occurred in the County of Los Angeles, State of California, because the parties do business 23 in the County of Los Angeles, State of California, and because a substantial portion of the 24 documents, witnesses, and evidence relevant to the causes of action asserted herein are 25 located within the County of Los Angeles, State of California. 26 18. Plaintiff is informed and believes and thereon alleges, that Defendants have 27 substantial continued contracts with and was otherwise doing business in State of California 28 and the County of Los Angeles sufficient for this Court to exercise jurisdiction. 4 4090.361.Complaint C OMPLAINT 1 19. The Court additionally has jurisdiction in this matter because the amount in 2 controversy over $300,000 exceeds Court's jurisdictional minimum of $35,000.00. 3 III. GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 4 20. In or around January 2020, Defendants were made aware of the severe acute 5 respiratory syndrome coronavirus 2 (SARS-CoV-2) spreading world-wide and nationally, 6 know colloquially as the coronavirus, that caused severe medical distress and death in 7 individuals who caught the disease, especially the elderly. 8 21. SAR-CoV-2 is known and documented to cause a debilitating and deadly 9 disease, the Coronavirus disease 2019 (hereinafter, “COVID-19”). 10 22. COVID-19 can and has spread rapidly in persons with chronic underlying 11 medical conditions such persons are at great risk for COVID-19. 12 23. As a result, long-term acute, and other similar care facilities served by 13 Plaintiff were required to disinfect frequently touched surfaces at a minimum of every two 14 hours with a United States Environmental Protection Agency (“EPA”) registered and approved 15 products. 16 24. Plaintiff’s claims herein arise from a series of egregious and, ultimately, 17 dangerous misrepresentations made by the Defendants, who purported to be a “leading 18 provider of disinfectant products” during the peak of the COVID-19 pandemic. These 19 misrepresentations damaged Plaintiff while also threatening nursing home facilities just as a 20 virulent pathogen was spreading throughout California and the United States. 21 25. One of the products that Plaintiff offers to its nursing home customers is 22 disinfectant products, which protect against infectious agents such as COVID-19. To be 23 properly used in medical settings, disinfectant products typically must obtain premarket 24 approval from the EPA. 25 26. The EPA reviews and registers antimicrobial pesticides, which include 26 disinfectants for use on pathogens like SARS-CoV-2, the novel human coronavirus that 27 causes COVID-19. According to the EPA: 28 /// 5 4090.361.Complaint C OMPLAINT “A disinfectant is a substance, or mixture of substances that destroys or 1 irreversibly inactivates bacteria, fungi and viruses, but not necessarily bacterial 2 spores in the inanimate environment, such as on hard surfaces. Disinfectant products are often used in hospitals, medical facilities and/or households. EPA 3 regulates disinfectants to ensure the pesticide meets specific standards before they can be used by the public. Disinfectants are pesticides and can be harmful, please 4 be sure to read and understand any precautionary language or any safety information before using the product.” 1 5 6 27. Products expected to kill SARS-CoV-2 are added to EPA’s 7 “List N” Disinfectants for Use Against SARS-CoV-2 (COVID-19)2. The EPA maintains 8 “List N,” which is a list of disinfectants that meet EPA’s criteria for use against the virus 9 that causes COVID-19. 10 28. The EPA provides a searchable list of disinfectants that will “kill 11 Coronavirus.” See website https://www.epa.gov/coronavirus/about-list-n-disinfectants- 12 coronavirus-covid-19-0. 3, the EPA's “List N” Tool is a way to confirm if products are 13 registered and approved. Further the “EPA expects products on “List N” to kill all strains 14 and variants of the coronavirus SARS-CoV-2 (COVID-19) when used according to the label 15 directions. As of February 28, 2024, the Defendants’ ATS TwinOxide Disinfectant product 16 (“Product”) is not listed in the EPA’s “List N.” 17 29. One reason for using only products registered by the EPA is that the EPA will only 18 register a disinfectant/sporicidal agent if the EPA determines that the product: (1) is “efficacious”; 19 (2) “will not cause unreasonable adverse effects on humans and the environment;” and (3) that it’s 20 label does not contain a statement that is false or misleading, contains adequate instructions for use, 21 and does not omit necessary warning or cautionary statements. (7 U.S.C. §§ 136(a)(c)(5); 22 136(q)(1)(G); Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 614 rehg 23 denied (Aug. 25, 2021), review filed (Sept. 20, 2021.) 24 30. The EPA takes enforcement action against companies making false claims that their 1 25 https://www.epa.gov/pesticide-registration/selected-epa-registered-disinfectants#disinfect- prod 26 2 EPA’s List N: Disinfectants for Use Against SARS-CoV-2 (COVID-19) 27 3 https://www.epa.gov/coronavirus/about-list-n-disinfectants-coronavirus-covid-19-0 28 6 4090.361.Complaint C OMPLAINT 1 disinfectants work against SARS-CoV-2 (COVID-19). 2 “EPA is authorized to take enforcement action to prevent the sale or 3 distribution of disinfectants with false or misleading claims on their labeling. EPA is also authorized to take enforcement action to prevent the 4 sale or distribution of unregistered disinfectants when the seller or distributor is making claims that they work against SARS-CoV-2 (the 5 coronavirus that causes COVID-19), and to prevent the sale or distribution of registered pesticides that are not permitted to make SARS-CoV-2 6 claims by the terms of their registration. 7 Due to the ongoing pandemic, EPA is concerned with pesticide products entering the United States, or produced, manufactured or distributed in the 8 United States, that claim to address COVID-19 impacts. The Agency will focus on ensuring compliance with requirements applicable to these 9 products to ensure protection of public health.”4 10 31. On or about July 17, 2020, Plaintiff purchased from Defendants $355,860 of ATS’ 11 Product. At all relevant times, Defendant s was specifically aware that Plaintiff had purchased 12 Defendants’ Product for domestic resale to nursing homes and similar facilities for use 13 against COVID-19. As detailed herein one of their Defendants used an existing product 14 designed for other markets and diluted or reformulated it to use as a disinfectant for 15 COVID-19. Tod date, the EPA has not this Product for this use. 16 32. At all relevant times herein, including the period when Plaintiff purchased or 17 returned Defendants’ Product to and including the present, ATS TwinOxide, was not listed 18 or added to the EPA’s “List N” of products that meet EPA criteria for use against the virus 19 that causes COVID-19. 20 33. On or about March 2020, Defendants falsely stated and misrepresented 21 that this Product was be on the EPA’s “List N” of products: 22 4 https://www.epa.gov/coronavirus/will-epa-take-enforcement-action-against-companies- making-false-claims-their 23 24 25 26 27 28 7 4090.361.Complaint C OMPLAINT “Is TwinOxide on the CDC5 or EPA6 COVID-19 approved list? 1 The TwinOxide EPA registration number is 86054-1 and EPA EST 2 NO. 85158-BEL-001. TwinOxide is currently in process of becoming listed on the EPA List N: Disinfectants for Use Against SARS-CoV-2, the 3 novel coronavirus that causes the disease COVID-19.” 4 A true and correct copy of ATS InnovaTM FAQ: About TwinOxide and SARS-CoV-2 5 Disinfection is attached hereto as Exhibit 1. 6 34. To its shock and dismay, in and around November 2020, Plaintiff learned that the 7 ATS Product it had received was not listed on the EPA’s “List N”. Following this disturbing 8 discovery of information never disclosed heretofore by Defendants, Plaintiff reached an 9 agreement with Defendants and returned the Product for a refund due to lack of legal compliance 10 and lack of required agency approval. 11 35. The purported EPA “List N” disinfectant was delivered to Plaintiff by ATS 12 Distribution, thus potentially exposing thousands of innocent end-users to the risk of infectious 13 agents such as COVID-19. Upon this discovery, TwinMed told Defendants about the serious 14 concerns for the safety of its customers, as well as its losses arising from Defendants’ 15 misrepresentations. 16 36. Registrant for EPA registration number is 86054-17, TwinOxide International BV, is 17 the exclusive worldwide license holder, producer and distributor for TwinOxide®. TwinOxide is a 18 transportable non-explosive two-component chlorine dioxide which is supposed to provide safe and 19 disinfected water compliant with the European Quality Standard DIN EN 12671 for drinking water: 20 // 5 21 Center for Diseases Control and Prevention (“CDC”): The CDC guidelines to the public on how to prevent and respond to infectious diseases in both health-care settings and at home. With 22 respect to disinfectants and sterilants, part of CDC’s role is to inform the public (in this case 23 healthcare personnel) of current scientific evidence pertaining to these products, to comment about their safety and efficacy, and to recommend which chemicals might be most appropriate or effective 24 for specific microorganisms and settings.”https://www.cdc.gov/infectioncontrol/pdf/guidelines/disinfection-guidelines-H.pdf. Also, 25 CDC Control and Prevention https://www.cdc.gov/coronavirus/2019-ncov/community/clean- disinfect/index.html. 26 6 In general, EPA regulates disinfectants and sterilants used on environmental surfaces, and 27 not those used on critical or semicritical medical devices; the latter are regulated by FDA. 28 7 https://ordspub.epa.gov/ords/pesticides/f?p=PPLS:2:::::: 8 4090.361.Complaint C OMPLAINT TwinOxide International BV 1 De Tongelreep 17 NL-5684 PZ Best 2 (The Netherlands) 3 A true and correct copy of ATS InnovaTM FAQ: About TwinOxide and SARS-CoV-2 Disinfection 4 is attached hereto as Exhibit 2. 5 37. Plaintiff is informed and believes, and based thereon alleges, that Defendants 6 formulated, re-manufactured, distributed, packaged, and sold the Product to Plaintiff and the 7 general public. 8 38. Without Plaintiff’s knowledge or consent, Defendants further misrepresented in its 9 corporate promotion of the ATS Product and marketing materials that Plaintiff used Product in its. 10 Had Plaintiff known that TwinMed could not sell the Product due non-listing on the EPA List-N 11 and Defendants’ misleading characterization, Plaintiff would not have approved the use of its 12 name/brand being used in Defendants’ presentations or other marketing tools. A true and correct 13 copy of ATS TwinOxide Disinfection Corporate presentation is attached hereto as Exhibit 3. 14 39. The ATS TwinOxide disinfectant spray, 1 gallon, product item number 016- 15 104420, not only did not meet the EPA’s “List N” product guidelines. The containers also leaked, 16 creating serious quality control issue. This quality control issue was eventually corrected and a 17 new item number was created 016-105406 for the same product. 18 40. Defendants negligently and carelessly manufactured, designed, formulated, 19 compounded, tested, produced, processed, assembled, inspected, distributed, marketed, labeled, 20 packaged, prepared for use, and sold the ATS Product and failed to adequately test to confirm that 21 Defendants’ ATS Product could in fact have efficacy against COVID-19. 22 41. Prior to the time that Plaintiff used the ATS Product, Defendants impliedly 23 warranted to Plaintiff, the general public, and the medical community that the Product was of 24 commercial quality, and safe and fit for the use for which it was intended. 25 42. Defendants expressly warranted to Plaintiff and the public that the Product was safe, 26 effective, fit, and proper for its intended use. Defendants did so through statements that they and 27 their authorized agents and representatives, and sales and marketing agents, made orally and in 28 promotional and other written, oral, and electronically disseminated statements and materials. 9 4090.361.Complaint C OMPLAINT 1 43. Plaintiff relied on the skill, judgment, representations, and foregoing express 2 warranties of Defendants when Plaintiff decided to purchase Defendants’ ATS Product. 3 44. Plaintiff was and is unskilled in the research, design, and manufacture of the ATS 4 Product, and reasonably relied entirely on the skill, judgment, and implied warranty of Defendants 5 in using the Product. 6 45. On October 22, 2020, Jeffrey Fleishman, Plaintiff’s Senior Supply Planning 7 Manager, sent an email to Naftali (Tali) Junik, Defendants’ distributor, regarding the disposition for 8 the defective Product: 9 ITEM NUMBER Description UOM Total Units CHI LA OR PEN PTL TN TX 10 016‐104420 TwinOxide Disinfectant Spray 1gal ‐ 4ea/cs EA 7720 1288 1280 1224 1281 1284 0 1363 016‐104421 TwinOxide Disinfectant 32oz ‐ 12ea/cs EA 31795 4106 5328 4355 5594 5770 1112 5530 016‐104460 TwinOxide Spray Disinfectant 2.5 Gal ‐ 2ea/cs EA 0 0 0 0 0 0 0 0 11 016‐104461 TwinOxide Drum 50ppm 55 Gal ‐ 4ea/cs EA 0 0 0 0 0 0 0 0 016‐104462 TwinOxide Defense+ Home and Office Kit EA 0 0 0 0 0 0 0 0 12 016‐105406 TwinOxide Disinfectant Spray 1gal ‐ 4ea/cs EA 364 48 76 76 36 44 0 84 13 A true and correct copy of Jeffrey Fleishman’s October 22, 2020 email is attached hereto as Exhibit 4. 14 46. On November 4, 2020, after obtaining Defendants’ agreement to return the ATS 15 Product for a complete refund, Jeffrey Fleishman sent a confirmation email. The return of the 16 defective ATS Product was to be made to Defendants: 17 “This return will be for every (hooray!) TwinOxide SKU. Here is a listing of each 18 SKU. 19 016-104420 016-104421 20 016-104460 21 016-104461 016-104462 22 016-105406 23 However, I am only showing we have inventory of these. 24 25 016-104420 016-104421 26 016-105406 27 A true and correct copy of Jeffrey Fleishman’s November 4, 2020 email is attached hereto as 28 Exhibit 5. 10 4090.361.Complaint C OMPLAINT 1 47. On November 6, 2020, Jeffrey Fleishman another confirming email regarding the 2 returns: 3 “Everything is going back to the vendor. Expiring or not. [Emphasis added] 4 A true and correct copy of Jeffrey Fleishman’s November 4, 2020 email is attached hereto as 5 Exhibit 5. 6 48. On November 6, 2020, Jacqueline Farnsworth, Plaintiff’s Sr. Director of Inventory & 7 Demand Planning sent an internal email confirming the return of the defective ATS Product as 8 agreed with Defendants: 9 “Good afternoon all! Many of you have put together your pallets of 016-104421 to be returned. 10 However, our return will, thankfully, extend to ALL of our TwinOxide inventory (no matter the expiration). 11 Please move all of your available inventory of the below items to the 12 RTV01 location and provide the full skid counts you have (if you have already given me your skid count, please ADD that to what you have 13 below and give me the TOTAL). 14 I’ve also cc’d Jeff since he has been the one working to get us credit. If you have any questions at all, please let either of us know. 15 Thanks, 16 Jacqueline 17 A true and correct copy of Jacqueline Farnsworth ‘s November 6, 2020 email is attached hereto as 18 Exhibit 5. 19 49. Per agreement, Defendants picked up at its expense the defective ATS 20 Product from Plaintiff’s seven (7) different distribution centers from November 2020 to 21 January 15, 2021 listed below in sections A-G: 22 A. ATS Coordinated Performance of the Return/Refund via TwinMed Santa Fe Springs, 23 California Distribution Center 24 50. Per the agreement of the parties, on November 19, 2020, Kayla 25 Schoppmann, ATS’s ChemDepot Project Manager, sent an email to Plaintiff’s contact, 26 Robert Lopez at the TwinMed Santa Fe Springs, CA distribution center, regarding the 27 return of the ATS Product: 28 /// 11 4090.361.Complaint C OMPLAINT “Hello Robert, 1 I am reaching out to you regarding the return of TwinOxide from your 2 warehouse facility in Los Angeles, Jeff Fleishmann sent me over the information & what product you have on hand currently. 3 016-104420: 1 Gallon Cases (1,336) 4 016-104421: 32 oz. Spray Pack cases (5,292) 23 total pallets 5 What works best to coordinate the return? Please let me know.” 6 7 A true and correct copy of Kayla Schoppmann’s November 19, 2020 email is attached hereto as 8 Exhibit 6. 9 51. On December 2, 2020, Plaintiff’s Robert Lopez of the Santa Fe Springs, CA 10 distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, 11 requesting status regarding picking up ATS’s Product in Plaintiff’s Santa Fe Spring, CA 12 distribution center: 13 “Hi Kayla, Any word on my return? 14 Do you know when it will picked up?…” 15 A true and correct copy of Robert Lopez’s December 2, 2020 email is attached hereto as Exhibit 6. 16 52. December 2, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 17 responded to Plaintiff’s contact, Robert Lopez: 18 “Hi Robert, 19 I’m so sorry this is taking longer than needed. I am waiting on our AP Dept to get out (sic) contact paid who sets up shipping for me. So that the 20 hold up. As soon as i (sic) have any more new information I’ll be sure to let you know. 21 22 Thanks, Kayla” 23 24 A true and correct copy of Kayla Schoppmann’s December 2, 2020 email is attached hereto as 25 Exhibit 6 26 53. On December 15, 2020, Plaintiff’s Robert Lopez of the Santa Fe Springs, CA 27 distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, 28 requesting status regarding picking up ATS’s Product in Plaintiff’s Santa Fe Springs, CA 12 4090.361.Complaint C OMPLAINT 1 distribution center: 2 “Hi Kayla, Any Word on getting this return picked up. 3 Thanks, 4 Robert Lopez” 5 A true and correct copy of Robert Lopez’s December 15, 2020 email is attached hereto as Exhibit 6. 6 54. December 15, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 7 responded to Plaintiff’s contact, Robert Lopez: 8 “Hi Robert, 9 I promise I haven’t forgotten you. We are still waiting on backend things to go through & there was some kind of miscommunication, so it’s taking 10 longer than usual. I promise I will keep you posted & when I have the go ahead to set up a carrier to pick up the twinoxide from your facility. Again, 11 I’m so sorry. 12 Thanks, 13 Kayla” 14 A true and correct copy of Kayla Schoppmann’s December 15, 2020 email is attached hereto as 15 Exhibit 6. 16 55. On December 29, 2020, Plaintiff’s Jacqueline Farnsworth, sent an email to Kayla 17 Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status of the Product inventory in 18 Santa Fe Springs, CA: 19 “Kayla, 20 Can you tell me where we are with the pickup of inventory in LA?” 21 22 A true and correct copy of Jacqueline Farnsworth’s December 29, 2020 email is attached hereto as 23 Exhibit 6. 24 56. December 29, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 25 responded to Plaintiff’s contact, Jacqueline Farnsworth: 26 “I am so sorry it’s taken so long. I’ve been waiting on my co-worker to get 27 some back end things taken care of so we are able to schedule the carriers, and I’ll just say this it’s (sic) been a super frustrating thing. I’ve been 28 waiting on her, so that’s been the hold up. I do apologize!” 13 4090.361.Complaint C OMPLAINT 1 A true and correct copy of Kayla Schoppmann’s December 29, 2020 email is attached hereto as 2 Exhibit 6. 3 57. On or about January 4, 2021 Defendants picked up the defective ATS Product 4 inventory from Plaintiff’s Santa Fe Springs, CA distribution center. A true and correct copy of the 5 Bill of Lading is attached as Exhibit 6. 6 B. ATS Coordinated Performance of the Return/Refund via TwinMed Orlando, Florida 7 Distribution Center 8 58. Per the agreement of the parties, on November 19, 2020, Kayla Schoppmann, ATS’s 9 ChemDepot Project Manager, sent an email to Plaintiff’s contact, Claudia Giraldo at Plaintiff’s 10 Orlando, Florida distribution center, regarding the return of the ATS Product: 11 “Hello Claudia, 12 I am reaching out to you in regards the return of TwinOxide from your warehouse facility in Orlando. Jeff Fleishmann sent me over the 13 information & what product you have on hand currently. 14 016-104420: 1 Gallon Cases (1,296) 016-104421: 32 oz. Spray Pack cases (4,355) 15 11 total pallets. 16 What works best to coordinate the return? Please let me know.” 17 18 A true and correct copy of Kayla Schoppmann’s November 19, 2020 email is attached hereto as 19 Exhibit 7. 20 59. On November 20, 2020, Claudia Giraldo, Plaintiff’s Inventory Control Specialist at 21 the Orlando, Florida distribution center responded to Kayla Schoppmann’s, ATS’s ChemDepot 22 Project Manager, email: “Good morning Kayla, 23 Actually, we have a total of 19 pallets with those two items (016-104420- 24 9 pallets, 1224 EA and 016-104421 10 pallets, 4355 EA). I also have a pallet of items 016-105406 with & 72 EA, are we returning 25 this one too?” 26 A true and correct copy of Claudia Giraldo’s November 20, 2020 email is attached hereto as 27 Exhibit 7. 28 60. On November 20, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 14 4090.361.Complaint C OMPLAINT 1 responded to Plaintiff’s contact, Claudia Giraldo at Plaintiff’s Orlando, Florida distribution center: 2 “Hi Claudia, 3 Yes, I’m going to need all TwinOxide to be returned. Thank you for sending me the information. I’ll get a carrier set up for next week…”. 4 5 A true and correct copy of Kayla Schoppmann’s November 20, 2020 email is attached hereto as 6 Exhibit 7. 7 61. On November 30, 2020, Claudia Giraldo, Plaintiff’s Inventory Control Specialist at 8 the Orlando, Florida distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot 9 Project Manager, requesting status of the TwinOxide pickup: 10 “Good morning Kayla, Do you have any update for this shipment pickup? 11 I would appreciate your help” 12 A true and correct copy of Claudia Giraldo’s November 30, 2020 email is attached hereto as 13 Exhibit 7. 14 62. On November 30, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 15 responded to Plaintiff’s contact, Claudia Giraldo: 16 “Hi Claudia, Good morning. I am so sorry this is taking longer. Our AP dept needs to 17 make payment to my contact that sets up all the shipping for me. So that’s 18 why it’s taking so longer (sic) than usual…” 19 A true and correct copy of Kayla Schoppmann ‘s November 30, 2020 email is attached hereto as 20 Exhibit 7. 21 63. On December 16, 2020, Claudia Giraldo, Plaintiff’s Inventory Control Specialist at 22 the Orlando, Florida distribution center sent an email to ATS’s Kayla Schoppmann’s, requesting 23 status of the Product pickup: 24 “Good morning Kayla, Do you have any update about this return? 25 Thank you!” 26 A true and correct copy of Claudia Giraldo’s December 16, 2020 email is attached hereto as 27 Exhibit 7. 28 64. On December 16, 2020, ATS’s Kayla Schoppmann responds to Claudia Giraldo: 15 4090.361.Complaint C OMPLAINT 1 “Hi Claudia, 2 I am so sorry this has taken forever. I’ve been waiting on my co-worker to make the shipping available to setup. I should know by the end of the 3 day…” 4 A true and correct copy of Kayla Schoppmann’s December 16, 2020 email is attached hereto as 5 Exhibit 7. 6 65. On December 28, 2020, Plaintiff’s Jacqueline Farnsworth sent an email to Kayla 7 Schoppmann, ATS’s ChemDepot Project Manager, requesting status of the ATS Product inventory 8 in Orlando, Florida 9 “Hi Kayla, 10 Have we been able to schedule this pickup yet? I’d really like to get this squared away before 11 the end of the year.” 12 A true and correct copy of Jacqueline Farnsworth’s December 28, 2020 email is attached hereto as 13 Exhibit 7. 14 15 66. December 29, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 16 responded to Plaintiff’s contact, Jacqueline Farnsworth: 17 “I am so sorry it’s taken so long. I’ve been waiting on my co-worker to get some back end things taken care of so we are able to schedule the carriers, 18 and I’ll just say this it’s (sic) been a super frustrating thing. I’ve been 19 waiting on her, so that’s been the hold up. I do apologize!” 20 A true and correct copy of Kayla Schoppmann’s December 29, 2020 email is attached hereto as 21 Exhibit 7. 22 67. On or about December 30, 2020 Defendants picked up the defective ATS Product 23 inventory from Plaintiff’s Orlando, Florida distribution center. A true and correct copy of the Bill of 24 Lading is attached as Exhibit 7. 25 C. ATS Coordinated Performance of the Return/Refund via TwinMed Niles, Illinois Distribution Center 26 27 68. Per the agreement of the parties, on November 24, 2020, Kayla Schoppmann, ATS’s 28 ChemDepot Project Manager, sent an email to Plaintiff’s contact, Jairo Vazquez at Plaintiff’s Niles, 16 4090.361.Complaint C OMPLAINT 1 IL distribution center, regarding the return of the ATS Products: 2 “Hello Jairo, 3 I am still waiting to hear from my contact about getting a carrier aet up to pick up the TwinOxide from your facility. I know he has been trying to 4 find me the cheapest price for shipping. I’m thinking it may be next week before we can get a carrier to pick up. As soon as I hear any more 5 information, I’ll be sure to let you know 6 Thank you, 7 Kayla” 8 A true and correct copy of Kayla Schoppmann’s November 24, 2020 email is attached hereto as 9 Exhibit 8. 10 69. On December 3, 2020, Plaintiff’s contact, Jairo Vazquez, at the Niles, IL distribution 11 center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status 12 regarding the return of the ATS Product. 13 “Good morning Kayla, 14 Any update on this?” 15 A true and correct copy of Jairo Vazquez’s December 3, 2020 email is attached hereto as Exhibit 8. 16 70. On December 3, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 17 responded to Plaintiff’s contact, Jairo Vazquez, at Plaintiff’s Niles, IL distribution center: 18 “Hi Jairo, 19 I’m so sorry this is taking longer. I am hoping to have more of an update by tomorrow or early next week. 20 Thanks, 21 Kayla” 22 A true and correct copy of Kayla Schoppmann’s December 3, 2020 email is attached hereto as 23 Exhibit 8. 24 71. On December 29, 2020, Jairo Vazquez, at Plaintiff’s Niles, IL distribution center sent 25 an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status of the 26 Product pickup: 27 /// 28 /// 17 4090.361.Complaint C OMPLAINT “Good morning Kayla, 1 Any update on this?” 2 A true and correct copy of Jairo Vazquez’s December 29, 2020 email is attached hereto as Exhibit 8. 3 72. December 29, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 4 responded to Plaintiff’s contact, Jairo Vazquez: 5 “Hello Jairo, 6 Yes, I’m working on trying to get carriers set up for your warehouse & all the other TwinMed Warehouses. I’m going to get a carrier set up early 7 next week for your warehouse. Will that work?...” 8 A true and correct copy of Kayla Schoppmann’s December 29, 2020 email is attached hereto as 9 Exhibit 8. 10 73. On or about January 15, 2021 Defendants picked up the defective ATS Product 11 inventory from Plaintiff’s Niles, IL distribution center. A true and correct copy of the Bill of Lading 12 is attached as Exhibit 8. 13 D. ATS Coordinated Performance of the Return/Refund via TwinMed Portland, Oregon Distribution Center 14 15 74. Per the agreement of the parties, on November 19, 2020, Kayla Schoppmann, ATS’s 16 ChemDepot Project Manager, sent an email to Plaintiff’s contact, Jonathan Ortiz at Plaintiff’s 17 Portland, OR distribution center, regarding the return of the ATS Product: 18 “Hello Jonathan, 19 I am reaching out to you in regards the return of TwinOxide from your warehouse facility in Portland. Jeff Fleishmann sent me over the 20 information & what product you have on hand currently. 21 016-104420: 1 Gallon Cases (1,328) 22 016-104421: 32 oz. Spray Pack cases (5,722) 9 total pallets. 23 24 What works best to coordinate the return? Please let me know.” 25 A true and correct copy of Kayla Schoppmann’s November 19, 2020 email is attached hereto as 26 Exhibit 9. 27 75. On November 19, 2020, Plaintiff’s contact, Jonathan Ortiz, at the Portland, OR 28 distribution center responded to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, email 18 4090.361.Complaint C OMPLAINT 1 regarding the return of the ATS Product. 2 “We have a total of 3 44 EA (016-104421) 128EA (016-104420) 4 Total of 23 pallets” 5 A true and correct copy of Jonathan Ortiz’s November 19, 2020 email is attached hereto as Exhibit 6 9. 7 76. On November 30, 2020, Plaintiff’s contact, Jonathan Ortiz, at the Portland, OR 8 distribution center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, 9 regarding status of the return of the ATS Product. 10 “Do you have any idea on when this is going to get picked up?” 11 A true and correct copy of Jonathan Ortiz’s November 30, 2020 email is attached hereto as 12 Exhibit 9. 13 77. On November 30, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 14 responded to Plaintiff’s contact, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution center: 15 “Hi Jonathan, 16 I’m so sorry this has taken longer than expected. We are waiting on AP Dept to make payment to my contact who sets up shipping for me. So 17 that’s the hold up. As soon as i (sic) have an update I’ll be sure to let you know. 18 19 Thank you, Kayla” 20 21 A true and correct copy of Kayla Schoppmann’s November 30, 2020 email is attached hereto as 22 Exhibit 9. 23 78. On December 3, 2020, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution center 24 sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status of the 25 Product pickup: 26 “Hi Kayla, sorry to bother you about this again, just wanted to see if we 27 have gotten and update on this. Do you think this will get sent out by Wednesday of next week? As we are doing our end of the year inventory 28 next week.” 19 4090.361.Complaint C OMPLAINT 1 A true and correct copy of Jonathan Ortiz’s December 3, 2020 email is attached hereto as Exhibit 9. 2 79. December 3, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 3 responded to Plaintiff’s contact, Jonathan Ortiz: 4 “Your (sic) ok! Not quite yet. We are hoping to have this resolved soon. 5 Im (sic) hoping to know by early next week. I’ll let you know as soon as possible when i find out! Again, I’m so sorry about this.” 6 A true and correct copy of Kayla Schoppmann’s December 3, 2020 email is attached hereto as 7 Exhibit 9. 8 80. On December 16, 2020, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution 9 center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, requesting status 10 of the Product pickup: 11 “Any update on the RA# and/or the pick up?” 12 13 A true and correct copy of Jonathan Ortiz’s December 16, 2020 email is attached hereto as 14 Exhibit 9. 15 81. On December 16, 2020, Kayla Schoppmann, ATS’s ChemDepot Project Manager, 16 responded to Plaintiff’s contact, Jonathan Ortiz: 17 “Hi Jonathan, 18 I apologize this is taking forever. I have been waiting on my co-worker to 19 get shipping available to set up, and have had to wait on some back end things. I should know by end of the day what’s going on. I will let you 20 know ASAP! 21 Thanks, 22 Kayla” 23 A true and correct copy of Kayla Schoppmann’s December 16, 2020 email is attached hereto as 24 Exhibit 9. 25 82. On December 30, 2020, Jonathan Ortiz, at Plaintiff’s Portland, OR distribution 26 center sent an email to Kayla Schoppmann’s, ATS’s ChemDepot Project Manager, providing ATS 27 Product quantities at the Portland, OR distribution center. 28 /// 20 4090.361.Complaint C OMPLAINT “We have 23 pallets. Item 016-10506 44 ea. Item 016-104421 is 5722 EA. 1 Item 016-104420 is 1284 EA…” 2 A true and correct copy of Jonathan Ortiz’s December 30, 2020 email is attached hereto as 3 Exhibit 9. 4 83. On or about January 5, 2021, Defendants picked up the defective ATS Product 5 inventory from Plaintiff’s Portland, OR distribution center. A true and correct copy of the Bill of 6 Lading is attached as Exhibit 9. 7 E. ATS Coordinated Performance of the Return/Refund via TwinMed Bethlehem, 8 Pennsylvania