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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

---------------------------------------------------------------X 

MICHAEL BROWN, : 

 : No. 3:15-cv-588 

 Plaintiff, : CLASS ACTION 

 : COMPLAINT AND 

 -against- : JURY DEMAND 

 : 

SWAGWAY, LLC, and : 

MODELL’S SPORTING GOODS, INC, : 

 : 

 Defendant. : 

---------------------------------------------------------------X 

INTRODUCTION 

Plaintiffs Michael Brown (“Plaintiff”), by and through his undersigned attorneys, 

alleges, upon information and belief, except as to the allegations concerning Plaintiff 

himself, which Plaintiff alleges upon personal knowledge, as follows: 

NATURE OF THE ACTION 

1. Plaintiff brings this action against Defendant Swagway, LLC 

(“Swagway”) under the implied warranty of merchantability, New York’s Consumer 

Protection from Deceptive Acts and Practices Act, Article 22-a, General Business Law §§ 

349 and 350 (“GBL 349 & 350”) and similar statutes in effect in other states, and the law 

of unjust enrichment pursuant to FED. R. CIV. P. 23 on behalf of all consumers who 

purchased a “Swagway Smart Balancing Electric Skateboard” or similar models (the 

“Swagway Hoverboard”) nationwide (the “Class”). Plaintiff and the Class are entitled to 

compensatory as well as punitive damages. 

2. Plaintiff brings this action against Defendant Modell’s Sporting Goods, 

Inc. (“Modell’s”) under the implied warranty of merchantability, GBL 349 and similar 

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statutes in effect in other states, and the law of unjust enrichment pursuant to FED. R. CIV. 

P. 23 on behalf of all consumers who purchased a Swagway Hoverboard nationwide from 

Modell’s (the “Subclass”). Plaintiff and the Subclass are entitled to compensatory as well 

as punitive damages. 

JURISDICTION AND VENUE 

3. This Court has Jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 

1332(d) and the Class Action Fairness Act (“CAFA”). Some members of the Class of 

plaintiffs are citizens of a State different from a defendant, and the amount in controversy 

exceeds $5,000,000, exclusive of interest and costs. 

4. Plaintiff’s claims involve matters of national or interstate interest. 

5. Defendants are subject to personal jurisdiction in that Swagway’s 

principal place of business is in this District and Modell’s conducts significant business 

with Swagway.

6. Venue is proper in this district pursuant to 28 U.S.C. § 1391 as a 

substantial part of the events or omissions giving rise to the claims occurred in this 

District. 

7. This Court is empowered to issue a declaratory judgment pursuant to 28 

U.S.C. §§ 2201 and 2202. 

THE PARTIES 

8. Plaintiff Michael Brown was, at all relevant times, an adult individual, 

domiciled in Chappaqua, New York. 

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9. Upon information and belief, Swagway is a limited liability company 

registered in Indiana. Swagway operates a place of business at 3431 William Richardson 

Dr., Suite F, South Bend IN 46628. 

10. Upon information and belief, Defendant, Modell’s, is a corporation, 

organized and existing under the laws of the State of Delaware, with its principal place of 

business at 498 Seventh Avenue, 20th Floor, New York, New York. 

11. Swagway and Modell’s (together “Defendants”) were and are doing 

business in the State of Indiana, including St. Joseph County. 

STATEMENT OF FACTS 

The Swagway Hoverboard 

12. Swagway sells the Swagway Hoverboard.

13. According to Swagway’s, website, “SWAGWAY is very meticulous” with 

respect to the manufacture of Swagway Hoverboards. “We make sure our boards are 

made with the finest parts. All of our boards come with a high quality aluminum alloy 

frame. Our batteries are a high-powered lithium ion Samsung/LG battery. Our technology 

is built on a strong platform, which eliminates reaction time from rider to board, giving 

the ability to maneuver wherever the user pleases. We are still a higher quality but for an 

even more affordable price.”

14. A February 4, 2015 CNBC article quoted a Swagway corporate 

representative as stating, “These types of boards are new so there seems to be a lot of 

varying information out there, but for sake of safety, we can’t stress enough how the 

caliber of the components used can make an impact in the overall safety of these boards.”

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15. The Swagway Hoverboard runs off of a battery that is charged via an 

ordinary electric wall socket. The Swagway User Manual provides: “Locate the charging 

port on the back of the Swagway. • Ensure the charging port is dry. • First plug the 

charger into the wall (100V-240V; 50, 60Hz). Verify the green light lights up, then plug 

the other end of the charger into the Swagway. • The red indicator light on the charger 

indicates that it is charging properly. If the light does not come on, check that the charger 

is connected securely to the wall and to the Swagway.”

16. Upon information and belief, Swagway Hoverboards are sold throughout 

the United States. The following graphic, copied from Swagway’s website, 

www.swagway.com, provides transit time for shipping Swagway Hoverboards to every 

state:

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17. Swagway Hoverboards are available for purchase from Modell’s website, 

www.modells.com. They are also available for sale at Swagway.com, Amazon.com, 

newegg.com, pcdirect.com, Target.com, and Walmart.com. 

18. Swagway markets its Swagway Hoverboards on its own website, as well 

as Facebook (facebook.com/swagwayusa), Twitter (twitter.com/swagwayusa), Pinterest 

(www.pinterest.com/swagwayusa), Youtube 

(https://www.youtube.com/channel/UCncZXPMRgIOQcmpKjhCT9oA), and Instagram 

(instagram.com/swagwayusa), and through additional channels, including QVC. 

19. Swagway Hoverboards have been featured in the following television 

shows with a nationwide audience: Good Morning America, The Inside, The Today 

Show, The Ellen Degeneres Show, and CBS This Morning. They have also been featured 

in such publications as USA Today, Wired, People, and PC Magazine. 

20. In actuality, the Swagway Hoverboard is unsafe for its intended use 

inasmuch as it is defective and presents a material likelihood that it will self-combust or 

short-circuit while charging, leading to fire and/other damage.

21. In marketing and selling Swagway Hoverboards on its website, as well as 

otherwise, Swagway did not disclose the defects in the product that could cause it to be 

self-combusting and otherwise dangerous, and, rather, impliedly or expressly represented 

that the product would be safe for its intended purposes and free from defect and/or failed 

to disclose that the product was unsafe, not fit for its intended purposes and not free from 

defect.

22. In deciding to market and sell Swagway Hoverboards, as on its website, as 

well as within its stores, Modells failed to take proper steps to ensure that the product was 

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safe and free from defect and not inherently dangerous as a result of its defect, and, rather 

impliedly or expressly represented that the product would be safe for its intended 

purposes and free from defect and/or failed to disclose that the product was unsafe, not fit 

for its intended purposes and not free from defect.

23. Unless enjoined, Defendants will continue to market and sell the defective 

and dangerous Swagway Hoverboards.

Hoverboards In America and Throughout the World Have Been Self-Combusting 

24. Upon information and belief, self-balancing electric scooters have been 

combusting across the country and the world. 

25. On December 9, 2015, Newsweek published an article with the headline 

“Another Day, Another Hoverboard Explosion: Concern Over Safety Continues to 

Grow.” The article reported that a family home in Louisiana and an apartment in Hong 

Kong burned down because of hoverboard fires.

26. The Newsweek article added that “nearly all hoverboards are manufactured 

in China with little safety oversight.”

27. On November 9, 2015, the website BuzzfeedNews published an article 

entitled “Those Hoverboard Things Kids Ride Around On Keep Exploding.” The article 

reported that a woman in England suffered burns after the hoverboard she was riding on 

caught fire. The article added that within the past month, London firefighters responded 

to two calls where hoverboards caught fire in homes.

28. Similarly, on December 3, 2015, the Wall Street Journal published a video 

under the caption “Hoverboard Fire Safety Concern Grows.” 

Plaintiff’s Swagway Hoverboard Self-Combusts 

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29. On or about November 24, 2015, Plaintiff purchased a Swagway 

Hoverboard on www.modells.com. 

30. The cost of the unit was $399.99 (and the total price was $443.49).

31. Plaintiff purchased the Swagway Hoverboard for his children, as a 

Chanukah present.

32. Neither Swagway nor Modell’s warned Plaintiff that there was a 

substantial risk that the Swagway Hoverboard could burst into flames while charging.

33. On December 6, 2015, on the first night of Chanukah, the Swagway 

Hoverboard was removed from its box.

34. After approximately thirty minutes of use, the Swagway Hoverboard 

indicated low battery.

35. The Swagway Hoverboard was then plugged into an electrical outlet in 

accordance with Swagway’s instructions.

36. Approximately 45 minutes later, the Swagway Hoverboard burst into 

flames.

37. The flames ignited the packaging materials, which were located nearby the 

Swagway Hoverboard.

38. The fire was so substantial that the fire department had to respond to the 

scene.

39. The fire destroyed the Swagway Hoverboard and damaged Plaintiff’s 

home, as is shown by the following:

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CLASS ALLEGATIONS 

40. Plaintiff sues on his own behalf and on behalf of the Class and Subclass as 

defined above, pursuant to FED. R. CIV. P. 23(a), (b)(2) and (b)(3) seeking to assert the 

claims set forth below. 

41. The Class and Subclass are so numerous that joinder of all members is 

impracticable. Although the precise number of purchasers of Swagway Hoverboards is 

unknown, the number sold and identity of such purchasers is known to Defendants, are 

readily identifiable, and can be located through Defendants’ records. Upon information 

and belief, there are thousands of members of the Class and the Subclass. 

42. There are questions of law and fact common to the members of the Class 

and Subclass that predominate over any questions solely affecting the individual 

members of the Class and Subclass. 

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43. The critical question of law and fact common to Plaintiff, the Class and 

Subclass that will materially advance the litigation is whether, and if so when, 

Defendants learned that there was a substantial risk that the Swagway Hoverboard was 

defective and posed a danger of a fire hazard by bursting into flames during normal 

charging operation. 

44. Other questions of law and fact common to the Class and Subclass that 

will materially advance the litigation include, without limitation: 

a. Whether Defendants failed to warn Plaintiff and the members of 

the Class and the Subclass that there was a substantial risk the 

Swagway Hoverboard could burst into flame during normal 

charging operation; 

b. Whether Defendants’ failure to inform Plaintiff and members of 

the Class and the Subclass that there was a substantial risk that the 

Swagway Hoverboard was combustible during normal charging 

operation was a deceptive act and material omission of fact to 

reasonable purchasers of Swagway Hoverboards; 

c. Whether Defendants are liable for all damages claimed by Plaintiff 

and the Class and Subclass, including, without limitation, 

compensatory, punitive and statutory damages, restitution, interest, 

costs and disbursements, and attorneys’ fees; 

d. Whether Defendants’ failure to inform consumers that the 

Swagway Hoverboards were defective and susceptible to 

combustion constituted a deceptive or unfair act or acts in violation 

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of the claims set forth in this Complaint, for which plaintiff and 

members of the Class are entitled to recover damages; and 

e. Whether Defendants should be enjoined from continuing to market 

and sell an unsafe and defective product and from continuing to 

market and sell the Swagway Hoverboards in a misleading and 

deceptive manner as set forth in this Complaint and whether 

Defendants should be compelled, among other things, to offer to 

the members of the Class and Subclass with an option to return for 

the full amount paid (and incidental cost such as shipping and 

taxes) and/or repair and replacement the product by providing 

them with a safe and non-defective product, at Defendants’ 

expense. 

45. Plaintiff’s claims are typical of the claims of the members of the Class and 

Subclass. Plaintiff has the same interests in this matter as all other members of the Class 

and Subclass. 

46. Plaintiff is an adequate class representative, is committed to pursuing this 

action and has retained competent counsel experienced in consumer class action 

litigation. 

47. Class certification of Plaintiff’s claims is appropriate pursuant to FED. R.

CIV. P. 23(b)(2) because Defendants have acted or refused to act on grounds generally 

applicable to the Class and Subclass, making appropriate both declaratory and injunctive 

relief with respect to the Class and Subclass. The members of the Class and Subclass are 

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entitled to injunctive relief to end Defendants’ common and uniform policy under the 

claims set forth herein. 

48. Class certification of Plaintiff’s claims is also appropriate pursuant to FED.

R. CIV. P. 23(b)(3) because questions of law and fact common to the Class and Subclass 

predominate over questions affecting only individual members of the Class, and because 

a class action is superior to other available methods for the fair and efficient adjudication 

of this litigation. 

49. Plaintiff knows of no difficulty that would be encountered in the 

management of this litigation that would preclude its maintenance as a class action. 

50. The Subclass, as defined above, is also proper pursuant to FED. R. CIV. P. 

23(c)(5). 

FIRST CLAIM FOR RELIEF: 

BREACH OF THE IMPLIED WARRANTY 

51. Plaintiff realleges and incorporates by reference paragraphs 1 through 50 

as if they were set forth again herein. 

52. The Swagway Hoverboard was advertised and sold by Defendants as safe 

and fit its ordinary purpose of transportation and use and free from defect. 

53. Plaintiff and Class and Subclass members purchased the Swagway 

Hoverboard on the Defendants’ implied warranties that the Swagway Hoverboard was 

safe and fit the purposes for which it was intended to be used and free from defects. Had 

they known that, contrary to the implied warranties that the Swagway Hoverbaord was 

not safe and fit the purposes for which it was intended to be used and not free from 

defect, they would not have purchased it. 

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54. The Swagway Hoverboard was inherently defectively designed or 

manufactured so as to cause it to not to be safe and fit for the purposes for which it was 

intended to be used and not to be free from defect.

55. Any disclaimers of implied warranties are ineffectual, as they were not 

provided to Plaintiffs or Class or Subclass members or otherwise made known to them, 

who were not informed of the material non-compliance of the goods. In addition, any 

such disclaimers are unconscionable under the circumstances. 

56. As a direct and proximate result of Defendants’ breach of implied 

warranties, Plaintiffs and the Class and Subclass members have sustained economic 

losses and other damages for which they are entitled to compensatory and/or equitable 

damages in an amount to be proven at trial.

SECOND CLAIM FOR RELIEF: 

FOR UNFAIR AND DECEPTIVE TRADE PRACTICES UNDER STATE LAW 

57. Plaintiff realleges and incorporates by reference paragraphs 1 through 50 

as if they were set forth again herein. 

58. Defendants had a statutory duty to refrain from unfair or deceptive acts or 

practices in connection with their activities set forth above vis-à-vis Swagway 

Hoverboards. 

59. Had Defendants not engaged in the wrongful and deceptive conduct 

described above, Plaintiffs and members of the Class and Sublcass would not have 

purchased Swagway Hoverboards and they have therefore proximately suffered injury in 

fact and ascertainable losses. 

60. Defendants’ deceptive, unconscionable or fraudulent representations and 

material omissions to consumers, including the failure to inform consumers of the 

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dangers and defects with the product, constituted unfair and deceptive acts and practices 

in violation of state consumer protection statutes. Defendants’ failure to abide by their 

statutory duties has been or may be continuing. 

61. Defendants engaged in their wrongful conduct while at the same time 

obtaining sums of money from Plaintiff and Class and Subclass members. 

62. Defendants' actions, as complained of herein, constitute unfair competition 

or unfair, unconscionable, deceptive or fraudulent acts or practices in violation of state 

consumer protection statutes, including, but not limited to, N.Y. Gen. Bus. Law §§ 349 et 

seq. and 350-e, et seq., as well as substantially similar statutes in effect in the other 

States. 

63. As a direct and proximate result of Defendants’ wrongful conduct, 

Plaintiffs and the Class are entitled to a judgment that declaring that Defendants’ actions 

have been in violation of their statutory duties, that provides injunctive relief in order to 

ensure continued wrongful and similar acts do not occur hereafter, and that provides for, 

as provided for law, compensatory damages, treble damages, attorneys' fees, and/or costs 

of suit. 

THIRD CLAIM FOR RELIEF: 

Unjust Enrichment 

64. Plaintiff realleges and incorporates by reference paragraphs 1 through 50 

as if they were set forth again herein. 

65. Defendants benefitted from the sale of the Swagway. 

66. Defendants’ benefit came at the expense of Plaintiff and the other 

members of the Class given their wrongful acts and practices, as discussed above. 

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67. Defendants’ retention of some or all of the monies they have gained 

through their wrongful acts and practices would be unjust considering the circumstances 

of their obtaining those monies. 

74. Defendants should be required to disgorge their unjustly obtained monies 

and to make restitution to Plaintiffs and the other members of the Class, in an amount to 

be determined, of the monies by which they have been unjustly enriched. 

PRAYER FOR RELIEF 

 Wherefore, Plaintiff, on behalf of himself and all others similarly situated, pray 

for judgment against Defendants as follows: 

A. For an Order certifying the Class and Subclass and any other 

appropriate subclasses thereof under the appropriate provisions of 

Federal Rule of Civil Procedure 23, and appointing Plaintiff and 

his counsel to represent such Classes and subclasses as appropriate 

under Rule 23(g); 

B. For declaratory and injunctive relief; 

C. For compensatory, equitable and/or restitutionary damages 

according to proof and for all applicable statutory damages under 

the uniform deceptive acts and practices laws of the states 

encompassed by the Class; 

D. For an award of attorneys' fees and costs; 

E. For prejudgment interest and the costs of suit; and 

F. For such other and further relief as this Court may deem just and 

proper. 

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DEMAND FOR TRIAL BY JURY 

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands 

a trial by jury on all questions of fact raised by the Complaint. 

Dated: December 10, 2015 

 By: s/Irwin B. Levin . 

 Irwin B. Levin, No. 8786-49 

 Richard E. Shevitz, No. 2007-49 

 Vess A. Miller, No. 26495-53 

 COHEN & MALAD, LLP 

 One Indiana Square, Suite 1400 

 Indianapolis, IN 46204 

 Telephone: 317-636-6481 

 Facsimile: 317-636-2593 

ilevin@cohenandmalad.com

rshevitz@cohenandmalad.com

vmiller@cohenandmalad.com

 ltoops@cohenandmalad.com

Seth R. Lesser 

 Jeffrey A. Klafter 

Fran L. Rudich 

Michael H. Reed 

KLAFTER OLSEN & LESSER LLP 

Two International Drive, Suite 350 

Rye Brook, New York 10573 

Telephone: (914) 934-9200 

Facsimile: (914) 934-9220 

 Robert N. Kaplan 

KAPLAN FOX & KILSHEIMER LLP 

850 Third Avenue 

14th Floor 

New York, NY 10022 

Telephone: (212) 687-1980 

Facsimile: (212) 687-7714 

 ATTORNEYS FOR PLAINTIFF

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