UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DOMINIQUE FREEMAN, individually and on 

behalf of all others similarly situated, 

Plaintiff, 

v. 

MAM USA CORPORATION, 

Defendant. 

 CASE NO. 

JURY TRIAL DEMANDED 

CLASS ACTION COMPLAINT 

Plaintiff Dominique Freeman (“Plaintiff Freeman”), by her undersigned counsel, brings 

this class action complaint against Defendant MAM USA Corporation (“Defendant” or “MAM”), 

individually and on behalf of all others similarly situated, and alleges upon personal knowledge as 

to her own acts and experiences, and as to all other matters, upon information and belief, including 

the investigation conducted by Plaintiff’s attorneys. 

NATURE OF THIS ACTION 

1. This is a consumer protection class action arising out of Defendant’s false and 

misleading advertising of its pacifiers. Defendant’s deceptive marketing practices include: (1) the 

deceptive misrepresentation that its pacifiers are “orthodontic” or have “orthodontic nipples,” 

which is deceptive and misleading to reasonable consumers; and (2) the omission of material facts 

concerning the risks associated with pacifier use by children over the age of 24 months. 

2. As more fully described below, prolonged pacifier use by children over the age of 

24 months can cause significant harm by interfering with the proper development of their teeth 

and orofacial structures. Children who use pacifiers to continue non-nutritive sucking habits past 

the age of 24 months have an increased risk of dental malocclusions—deviations from the ideal 

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occlusion (the relation between the upper jaw and teeth and lower jaw and teeth)—of primary 

teeth, which, in turn, may interfere with a child’s chewing, swallowing, speech, and jaw 

development and function. Dental malocclusions and teeth misalignment may also have a 

significant adverse effect on a child’s psychosocial development, self-image, and social wellbeing. 

3. Defendant manufactures, markets, distributes, and sells pacifiers throughout 

Illinois and nationwide. Defendant’s pacifiers come in a variety of styles, colors, and sizes. All of 

Defendant’s pacifiers at issue have product packaging prominently advertising “orthodontic” 

qualities, including, but not limited to, an “orthodontic nipple” that “promotes proper oral 

development.” The product packaging also prominently displays an age range or age minimum for 

each size. According to the product packaging and labeling, the largest of Defendant’s pacifiers 

are for children 16 months and older. 

4. “Orthodontics” is the branch of dentistry that corrects teeth and jaws that are 

positioned improperly. Through marketing, advertising statements, and misleading use of the term 

“orthodontic,” Defendant affirmatively represents to reasonable consumers that its pacifiers 

promote proper oral development and are beneficial for dental health or alignment of the teeth and 

jaws. In addition, Defendant represents that its pacifiers are (1) safe for children over the age of 

24 months, and (2) beneficial to children over the age of 24 months. 

5. There is no FDA-approved or widely accepted definition of an “orthodontic” 

pacifier or nipple. Defendant’s advertisement and use of the term “orthodontic” and promise of the 

promotion of “proper oral development” are misleading to a reasonable consumer and are 

affirmative representations that the products promote healthy oral and orofacial development in 

children, including children over the age of 24 months. Defendant’s use of the term “orthodontic” 

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is designed to induce consumers to pay a premium price and to buy products that do not perform 

as promised for their children while wrongly believing that those products are not only harmless, 

but that they enhance their child’s oral and orofacial health. Despite its false and misleading 

marketing practices, Defendant’s pacifiers with purported “orthodontic” qualities do not eliminate 

the various dental malocclusions caused by prolonged pacifier use. Defendant’s pacifiers cannot 

and do not support the healthy oral and orofacial development of children 24 months or older. 

Indeed, they do not provide any material orthodontic benefit for children of any age. 

6. On its product packaging and in its marketing and advertising, Defendant fails to 

disclose the material fact that prolonged pacifier use by children 24 months or older is detrimental 

to oral and orofacial health and development, or that such use increases the risk of developing 

numerous forms of dental malocclusions and teeth misalignment. 

7. Defendant’s pacifiers put children at an increased risk of numerous types of dental 

malocclusions, are harmful to children over the age of 24 months, and do not support or improve 

children’s oral or orofacial health and development. 

8. Through false, misleading and deceptive advertisements, Defendant has violated 

Illinois’ consumer protection statute by: (1) representing that its pacifiers are “orthodontic” or have 

“orthodontic nipples” that promote healthy oral and orofacial development in children, and (2) 

failing to clearly and conspicuously disclose the material fact that use of Defendant’s pacifiers by 

children 24 months or older increases the risk of malocclusions and misalignment of primary teeth. 

Through its advertising statements, Defendant induced Plaintiff to purchase MAM “orthodontic” 

pacifiers for use by her child over the age of 24 months. Plaintiff reasonably believed that 

Defendant’s “orthodontic” pacifiers were safe and beneficial for her child. Plaintiff and putative 

class members were injured at the time of purchase because they would not have paid a premium 

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price of purchased Defendant’s “orthodontic” pacifiers had Defendant made truthful advertising 

statements and disclosed material information concerning risks associated with prolonged pacifier 

use. 

9. Plaintiff asserts claims for injunctive relief and restitution arising from Defendant’s 

false, misleading, and deceptive advertising and Defendant’s failure to disclose the material risks 

of use of its products by children over the age of 24 months. Plaintiff alleges violations of Illinois’ 

Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 502/1, et seq. 

(“Illinois Consumer Fraud Act”) and Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 

510/2, et seq. 

10. Plaintiff brings this action on behalf of herself and Classes of similarly situated 

consumers who purchased a pacifier with purported “orthodontic” qualities manufactured by 

Defendant, as well as Subclasses of consumers who purchased a pacifier with purported 

“orthodontic” qualities manufactured by Defendant that was labeled for use by children 24 months 

or older and used by a child aged 24 months or older, during the class period. (The Classes and 

Subclasses are defined below.) 

11. Plaintiff, for herself and for the Class, bring this suit to halt Defendant’s 

dissemination of false and misleading representations, to correct the false and misleading 

perception that Defendant’s representations have created in the minds of reasonable consumers, to 

ensure that appropriate disclosures and warnings are placed on Defendant’s products in the future, 

and to obtain redress for those who have purchased Defendant’s pacifiers. 

12. Plaintiff, for herself and for the Class, seeks injunctive and other equitable relief, 

damages, restitution, and costs of suit and reasonable attorneys’ fees. 

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JURISDICTION AND VENUE 

13. The Court has original jurisdiction under 28 U.S.C. § 1332(d)(2) because the matter 

in controversy, exclusive of interests and costs, exceeds the sum or value of $5,000,000 and is a 

class action in which there are in excess of 100 class members, and some of the members of the 

class are citizens of states different from Defendant. 

14. This Court has personal jurisdiction over Defendant because Defendant conducts 

business in Illinois. Defendant has marketed, promoted, distributed, and sold the pacifiers at issue 

in Illinois, rendering exercise of jurisdiction by courts in Illinois permissible. 

15. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(a) and (b) 

because a substantial part of the events and omissions giving rise to Plaintiff’s claims occurred in 

this district. 

PARTIES 

16. Dominique Freeman is a citizen of Illinois and, at all relevant times to this action, 

resided in Flossmoor, Illinois, which is in Cook County. 

17. On approximately September 3, 2019, and on multiple occasions in the two 

preceding years, Plaintiff Freeman purchased a two-pack of Defendant’s pacifiers for her child at 

the Target store located at 17605 South Halsted Street in Homewood, Illinois for approximately 

$8.99. The packaging on the pacifiers purchased by Plaintiff Freeman prominently displayed in 

the top right corner of the packaging the statement “16+ months,” clearly indicating that the 

pacifiers were intended for use by a child over the age of 16 months. The product packaging also 

prominently advertised an “orthodontic nipple” that “promotes proper oral development.” Plaintiff 

Freeman purchased the “orthodontic” pacifiers for her child who was approximately 23 months at 

the time of purchase, and she intended for her child to continue using the pacifier beyond 24 

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months. Defendant failed to disclose clearly and conspicuously the material facts that, contrary to 

Defendant’s advertising and marketing statements, the pacifiers were not orthodontic products and 

that prolonged pacifier use by children aged 24 months or older is associated with an increased 

risk of various malocclusions of children’s primary teeth. Plaintiff Freeman would not have 

purchased Defendant’s pacifiers for use by her child at age 24 months or would have paid less for 

the pacifiers but for Defendant’s misrepresentations and omissions of material facts. By purchasing 

the falsely advertised product without any warning about risks associated with the use of that 

product by children over the age of 24 months, Plaintiff Freeman suffered injury-in-fact and lost 

money. 

18. Prior to her purchase in September 2019, Plaintiff Freeman had been purchasing 

MAM-branded “orthodontic” pacifiers regularly for her child since his birth, typically every few 

weeks or months. Plaintiff Freeman bought MAM “orthodontic” pacifiers according to the age 

ranges displayed on the packaging, and she would buy the incrementally larger sized pacifiers as 

her child grew. 

19. Plaintiff Freeman’s child exclusively used the MAM “orthodontic” pacifiers nearly 

every day, up to a few hours per day, until Plaintiff Freeman began weening him off pacifiers 

shortly after he turned 24 months. Plaintiff Freeman’s child would typically use the MAM 

“orthodontic” pacifiers for comfort at rest times such as naps and before bed. 

20. The MAM pacifiers Plaintiff Freeman purchased, like all of Defendant’s pacifiers 

at issue, are neither orthodontic products nor safe for use by children over the age of 24 months. 

Plaintiff Freeman purchased the MAM pacifiers because she believed, based on the representations 

made by Defendant, that the “orthodontic nipple” would improve dental health outcomes, 

including oral and orofacial health and development. Plaintiff Freeman understood Defendant’s 

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use of the term “orthodontic” to mean that pacifiers labeled as such were safe and beneficial to her 

child. Plaintiff Freeman further understood the age range labeling on the pacifier that she 

purchased to mean that it was safe for use by her child past the age of 24 months. Had Plaintiff 

Freeman known the truth about Defendant’s misrepresentations and omissions at the time of 

purchase, Plaintiff would not have purchased Defendant’s pacifiers for her child who was 23 

months old at the time of the purchase or would have paid less for the pacifiers. 

21. Defendant MAM USA Corporation is a Delaware corporation with its principal 

place of business located at 2700 Westchester Ave., Suite 315, Purchase, NY 10577. 

22. Defendant MAM USA Corporation has marketed, advertised, and sold MAM 

pacifiers in Illinois, this district, and throughout the United States. 

FACTUAL ALLEGATIONS 

I. Defendant’s “Orthodontic” Pacifiers 

23. MAM manufactures, markets, distributes, and sells a variety of styles, colors, and 

sizes of pacifiers, all of which have purported “orthodontic” qualities, including, but not limited 

to, an “orthodontic nipple” according to the product packaging. The “orthodontic” pacifiers at 

issue are sold at various brick-and-mortar retail and grocery stores, including Target, Walgreens, 

CVS, Walmart, buybuyBaby, and Safeway. Defendant’s “orthodontic” pacifiers are also sold 

online through the websites of the same retailers, as well as on Amazon and other online retailers. 

24. Defendant’s pacifiers at issue are sold under the MAM® brand name (collectively, 

the “Orthodontic Pacifiers”) and include the following products, as well as any other MAM®

branded pacifiers with purported “orthodontic nipples” or other “orthodontic” qualities: 

 MAM® Original Collection Pacifiers 

 MAM® Trends Collection Pacifiers 

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 MAM® Camo Collection Pacifiers 

 MAM® Perfect Collection Pacifiers 

 MAM® Air Collection Pacifiers 

 MAM® Love & Affection Collection Pacifiers 

 MAM® Night Collection Pacifiers 

 MAM® Perfect Night Collection Pacifiers 

 MAM® Pearl Collection Pacifiers 

II. Defendant’s False and Deceptive Advertising 

25. Defendant, through its advertisements, including on the Orthodontic Pacifiers’ 

packaging and labeling, has consistently conveyed to consumers in Illinois and throughout the 

United States that its Orthodontic Pacifiers are safe for use by children 24 months and older and 

that they promote healthy oral and orofacial development for children of all ages. 

26. Defendant’s use of the word “orthodontic” conveys to reasonable consumers that 

the Orthodontic Pacifiers improve dental health outcomes by positioning teeth and jaws for proper 

development. This representation is false and misleading because the Orthodontic Pacifiers do not 

benefit dental health in this manner compared to not using a pacifier at all; rather, using the 

Orthodontic Pacifiers worsens dental health. Further, this representation falsely indicates and 

misleads consumers to believe that the Orthodontic Pacifiers provide better dental health outcomes 

than conventional pacifiers; however, they do not. 

27. Defendant displays an age range or minimum age on the packaging of each 

Orthodontic Pacifier. The age range (“0-6 months”) or minimum age (“0+ months,” “6+ months,” 

or “16+ months”) is prominently displayed on the top right corner of each pacifier package. Age 

limits are not displayed on the packaging of any of Defendant’s pacifiers where the age minimum 

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is followed by a plus sign (“+”). According to the product packaging and labeling, the largest of 

Defendant’s Orthodontic Pacifiers are for children 16 months and older (labeled as “16+ months”). 

These minimum ages (with no maximum age) are intended to induce consumers to purchase 

MAM’s Orthodontic Pacifiers for children 24 months or older. Defendant’s advertising statements 

on the product packaging falsely convey to consumers that the Orthodontic Pacifiers are safe for 

use by children 24 months and older. 

28. In addition to the misleading age ranges or minimum ages, the packaging for some 

of MAM’s Orthodontic Pacifiers at issue here, including but not limited to those labeled for use 

by children 16 months and older, include the following statements: 

 “Orthodontic” 

 “Orthodontic nipple” 

 “Orthodontic symmetrical nipple” 

 “Orthodontic nipple promotes proper oral development” 

 “Specially sized for toddlers” 

 “Nipple adapts to baby’s mouth” 

29. The product packaging for all of MAM’s Orthodontic Pacifiers refers consumers to 

Defendant MAM USA Corporation’s website: www.mambaby.com. Defendant’s online 

advertising statements on that website confirm and reinforce the misleading nature of the product 

packaging. Product webpages for MAM’s Orthodontic Pacifiers are available on the website. The 

product webpages for some of the Orthodontic Pacifier at issue here, labeled for use by children 

older than 16 months and identified as such on the website, include the following statements: 

 “Specially sized for toddlers” 

 “Orthodontic” 

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 “Largest nipple to ensure maximum comfort and proper oral development as 

baby grows” 

 “16+ nipple ensures proper development of baby’s palate, teeth and gums as 

baby grows” 

 “Symmetrical nipple ideal for baby’s jaw development” 

30. Defendant makes additional, similar misrepresentations in the Frequently Asked 

Questions section of its website: “[O]nly orthodontic soothers support baby’s healthy jaw and 

tooth development. MAM collaborates with medical experts . . . to help develop and design 

innovative, orthodontic soothers that suit baby’s various developmental stages.” Defendant further 

claims that its pacifiers are “orthodontically safe” and, because of the “symmetrical nipples,” 

Defendant’s pacifiers “will not cause any harm to [a baby’s] oral cavity development.” See

https://mambaby.com/en-us/faq/pacifiers/ (“Is the shape of the pacifier and nipple important?” 

(emphasis in original)). In addition, Defendant claims: “The orthodontic MAM pacifiers support 

healthy development so you do not need to worry about them harming your baby’s oral cavity 

development.” See https://mambaby.com/en-us/faq/pacifiers/ (“How often and for how long 

during the day should children be allowed to use a pacifier?”). 

31. This website marketing confirms Defendant’s intent to mislead reasonable 

consumers regarding the orthodontic nature of its pacifiers. 

32. In its advertising statements on the product packaging and labeling of its 

Orthodontic Pacifiers, Defendant fails to disclose the well-documented risks associated with 

prolonged pacifier use by children over the age of 24 months. 

33. Defendant is well aware of the risks of prolonged pacifier use to children’s oral and 

orofacial health, most notably the risk of various dental malocclusions. Given that Defendant 

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clearly markets and labels its Orthodontic Pacifiers for children over the age of 24 months, 

Defendant misleads reasonable consumers by failing to prominently and conspicuously disclose 

these well-known risks on its Orthodontic Pacifier product packaging and advertising materials 

that would otherwise not be known to reasonable consumers given Defendant’s labeling and 

marketing of the Orthodontic Pacifiers as “orthodontic.” 

34. Based on these representations, it is clear that Defendant intends to induce in 

consumers a common belief that MAM’s Orthodontic Pacifiers do not pose any risk to the oral or 

orofacial health of children over the age of 24 months and, further, that the Orthodontic Pacifiers 

enhance children’s oral and orofacial health and development. 

III. Scientific Studies Confirm That Defendant’s Representations Are False, Deceptive, 

and Misleading 

35. Despite Defendant’s statements and representations, its Orthodontic Pacifiers pose 

significant health risks to children over the age of 24 months and do not provide orthodontic 

benefits to children even under the age of 24 months. Decades of research studies have established 

the relationship between prolonged non-nutritive oral habits like pacifier sucking and the 

development of malocclusion traits as well as alterations to oral myofunctional structures. More 

significant, however, are the numerous studies that consistently demonstrate that there is no 

scientific evidence “to support the concept that the usage of orthodontic pacifiers is able to prevent 

malocclusion traits when compared to the usage of conventional pacifiers.”1 As a result, children 

who use a pacifier, regardless of the pacifier’s shape, will have higher rates of, and an increased 

risk for, malocclusion traits and other oral-health related issues than children with no pacifier 

1

 R. Medeiros et al., Malocclusion Prevention Through the Usage of an Orthodontic Pacifier 

Compared to a Conventional Pacifier: a Systematic Review, 19:5 Eur. Arch. Paediatr. Dent. 287, 

287 (2018). 

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sucking habits. Id. at 294. 

36. The scientific literature identified and discussed below illustrates the welldocumented risks of pacifier usage by children over the age of 24 months and establishes the 

misleading nature of Defendant’s advertising statements—specifically Defendant’s use of the term 

“orthodontic” and its age-related labeling. Defendant’s advertising statements are false and 

misleading against the backdrop of this expansive body of scientific literature. Given the literature 

and studies below, Defendant knew or should have known that its health representations were false 

and misleading, and that by omitting and failing to disclosure in its advertising the risks associated 

with prolonged pacifier use by children over the age of 24 months, most notably the risk of 

developing various forms of dental malocclusions, it was omitting material facts that would alter 

any reasonable consumer’s decision to purchase Orthodontic Pacifiers for children over the age of 

24 months. 

DENTAL AND ORTHODONTIC LITERATURE AND STUDIES 

A. Early Studies Linking Pacifier Usage to Dental Malocclusions 

37. The use of objects to satisfy infants’ natural sucking instincts is a historically wellestablished practice, but the modern pacifier, in particular the so-called “orthodontic” pacifier, is 

a fairly recent innovation, dating back to the late 1950s when the first orthodontic pacifier was 

introduced in the United States and marketed to the public.2 

38. Pacifiers are useful for infants during the first three months of life when their 

sucking needs are greatest because, if their natural “sucking urge is not completely satisfied by 

breast or bottle feeding, the infant will have a surplus of sucking urge which may lead either to 

2

 S. Adair et al., Effects of Current and Former Pacifier Use on the Dentition of 24- to 59-Month 

Old Children, 17:7 Pediatr. Dent. 437, 437 (1995). 

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frustration or to satisfaction.”3 However, “[a]t approximately the seventh month, [the sucking urge] 

decreases and can be considered unnecessary in the neurophysiological perspective. This occurs 

because the neuromuscular structures at this stage are being matured and prepared for coordinated 

eating and drinking activities. Thus, from this age onwards, sucking must gradually be substituted 

by mastication.” Id.

39. Studies dating back to as early as the 1870s have consistently demonstrated the link 

between non-nutritive sucking habits and abnormalities in dental development and occlusion.4 By 

the time the first “functional/orthodontic” pacifier was introduced in the 1950s, it was well 

understood that non-nutritive sucking “leads to reduced overbite, as well as increased overjet, 

protrusion of the maxillary incisors and a narrowing of maxillary posterior arch width.” Id.

(internal citation omitted). 

40. Since the 1960s, hundreds of studies have evaluated the effects of prolonged 

pacifier usage on children’s oral development, affirming the findings of earlier research, and 

establishing the link between prolonged non-nutritive sucking in the form of pacifier usage and 

the development of malocclusions and impaired development of orofacial structures.

5

B. “Orthodontic” Versus Conventional Pacifiers

41. Adair et al. were among the first to conduct clinical studies directly examining the 

effects of using an “orthodontic” pacifier as compared to using a conventional pacifier. See Adair, 

3

 C. Zardetto et al., Effects of Different Pacifiers on the Primary Dentition and Oral Myofunctional 

Structures of Preschool Children, 24 Pediatr. Dent. 552, 552-53 (2002).

4 See J. Warren et al., Effects of Oral Habits’ Duration on Dental Characteristics in the Primary 

Dentition, 132:12 J. Am. Dent. Assoc. 1685, 1685 (2001) citing Campbell M., Fruitless Sucking, 

13 Brit. J. Dent. Sci. 371 (1870), Chandler TH, Thumb-Sucking, 20 Dent. Cosmos 440 (1878). 

5 See K. Schmid et al., The Effect of Pacifier Sucking on Orofacial Structures: a Systematic 

Literature Review, 19:8 Prog. Orthod. 1 (2018).

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supra note 2. Adair’s 1995 study evaluated the occlusions of 24- to 59-month-old current and 

former pacifier users and compared them to children of the same age with no non-nutritive sucking 

habit. Id. The study confirmed the findings of previous studies that, when compared to habit-free 

children, “children with a history of pacifier use have a significantly higher occurrence of increased 

overjet, a greater mean overjet, [] reduced overbite . . . [and] the prevalences [sic] of posterior 

crossbites and openbites were also higher.” Id. at 442 (internal citations omitted). 

42. With respect to whether there were any differences in the occurrence of dental 

malocclusions between children who used an “orthodontic” pacifier versus a conventional pacifier, 

Adair et al. found that “[c]omparison of the two pacifier groups does not support the purported 

advantages of functional exercisers over conventional pacifiers. No significant differences were 

found for mean overjet, mean openbite, occurrence of openbite, or occurrence of posterior 

crossbite.” Id.6

43. In 2002, Zardetto et al. conducted a study to evaluate and compare dental arch 

characteristics and oral myofunctional structures of 36 to 60-month-old children who: (1) 

exclusively used an “orthodontic” pacifier; (2) exclusively used a conventional pacifier; or (3) 

were habit free. See Zardetto et al., supra note 3. “In agreement with many studies performed 

earlier, children with a pacifier sucking habit in this study showed greater alterations on primary 

occlusion, such as anterior open bite, posterior crossbite, Class II primary canine relationship, 

decrease of upper intercanine width, [] increased overjet . . . [and] alterations on the shape of hard 

palate and tonicity of lips and tongue” when compared to habit-free children. Id. at 558. 

44. Zardetto, like Adair, found no substantial differences in the occurrence of dental 

6

 Adair et al. refer to “orthodontic” pacifiers as “functional exercisers,” in reference to the original 

NukTM branding from the first line of orthodontic pacifiers. 

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malocclusions between children who used an “orthodontic” pacifier versus a conventional pacifier. 

“Children who were pacifier users (physiological and conventional) were significantly more likely 

to show open bite, posterior crossbite, increased overjet, and alteration in cheek mobility than habit 

free children.” Id. at 559.7

45. More recently, in 2016, Lima et al. examined the effects of conventional and 

“orthodontic” pacifiers on the dental occlusions of children between the ages of 24 and 36 months.8

The study found that: “prolonged pacifier use was associated with various types of [malocclusion] 

in the primary dentition, corroborating results of previous studies. The most prevalent types of 

[malocclusion] in the primary dentition were [anterior overjet], [anterior overbite], and [posterior 

crossbite]. The prevalence and intensity of [malocclusion] were much lower among the children 

who did not use pacifiers, which confirms the results of previous studies.” Id. at 8–9 (internal 

citations omitted). These outcomes were observed regardless of the type of pacifier used. Id. at 

10–11. 

46. Consistent with the Adair, Zardetto, and Lima studies described above, nearly every 

clinical study examining the effects of the prolonged use of orthodontic pacifiers has found that 

there is no advantage or benefit to using an orthodontic pacifier over a conventional pacifier, and 

that prolonged use of an “orthodontic” pacifier results in the same risks and harms as would occur 

with a prolonged non-nutritive sucking habit. See Medeiros et al., supra note 1. 

47. In their 2018 systematic literature review, Medeiros et al. reviewed currently 

7

 Zardetto and many dental and orthodontic researchers advocate that a more appropriate term for 

“orthodontic” pacifiers is “physiological” pacifiers, due to their shape, and argue that “the 

terminology ‘orthodontic’ is misleading, since it implies that this type of pacifier may perform 

some type of dental correction.” Id. at 555. 

8

 A. Lima et al., Effects of Conventional and Orthodontic Pacifiers on the Dental Occlusion of 

Children Aged 24-36 Months Old, 27:2 Int. J. Paediatr. Dent. 108 (2016). 

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available studies that examined and compared the effects of using conventional or “orthodontic” 

pacifiers, seeking to answer the following: “In children between 6-60 months, is there a difference 

in the occurrence of malocclusion between the types of the pacifiers (conventional or orthodontic) 

used?” Medeiros et al., supra note 1, at 288. 

48. Medeiros et al. concluded that there is no difference in the occurrence of 

malocclusion between users of “orthodontic” and conventional pacifiers, and further, that there is 

no evidence “to support the concept that the usage of orthodontic pacifiers is able to prevent 

malocclusion traits when compared to the usage of conventional pacifiers.” Id. at 287, 294. 

49. Medeiros et al. also concluded that “factors such as duration and frequency of use 

of any type of pacifier shape were more associated with the development of malocclusion” and 

“the anatomy of the pacifiers is not a determinate to protect the occlusion compared to frequency 

and duration.” Id. at 293–94. 

C. Impact of Prolonged Pacifier Use on Oral Development 

50. As described above, the prolonged use of “orthodontic” pacifiers, including the 

Orthodontic Pacifiers at issue here, results in the same risks as would occur with the use of 

conventional pacifiers. These risks include development of the following conditions and dental 

malocclusions: 

 Anterior open bite; 

 Posterior crossbite; 

 Class II malocclusion; 

 Excessive overjet; 

 Decreased upper intercanine width; 

 Increased mandibular canine arch width; 

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 Diastema; 

 Oral myofunctional alterations; and, 

 Negative impacts on psychosocial development. 

See Medeiros et al., supra note 1; Schmid, supra note 5. 

51. Each of these conditions is a serious disturbance to a child’s oral and/or orofacial 

development. And each may result in the need for interceptive treatments, such as orthodontic 

appliances, and in some cases surgical intervention. 

1. Anterior Open Bite 

52. An anterior open bite (“AOB”) is a condition where the front teeth fail to touch, 

and there is no overlap between the upper and lower incisors, as depicted in the image below: 

Figure 1 – Pacifier-Induced Anterior Open Bite9

53. Adair et al. found that a “significantly higher percentage of children with a history 

of pacifier use had openbites, compared with those with no habit.” Adair et al., supra note 2, at 

440. For children who developed open bites, “the mean pacifier use time in months was 

9

 A.X. Graciano Parra et al., Two-Phase Treatment of Anterior Open Bite, 51:12 J. Clin. Orthod. 

801, 802 (2017) (overviewing diagnoses of malocclusions in a five-year old child with pacifier 

habit, and treatment required for correction). 

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significantly higher” than for children who did not develop open bites, with an average mean of 

26.8 months. Id. at 440-41. This led Adair et al. to conclude that “[l]onger pacifier use time in 

months was associated with anterior openbite.” Id. at 443. 

54. Affirming Adair’s findings, Zardetto et al. found that “[a]nterior open bite was 

present only in children with pacifier sucking habits, and no statistically significant difference was 

found between the 2 pacifier-sucking groups.” Zardetto et al., supra note 3, at 556. Additionally, 

“[w]ith respect to degree of open bite in millimeters . . . there was no significant difference 

between children who used the conventional pacifier and those who used the physiological one.” 

Id. at 556-57. 

55. Lima et al. found that “[u]se of either conventional or orthodontic pacifiers was a 

risk factor for AOB” and that a “strong positive correlation was detected between habit duration 

and AOB (R = 0.782; P < 0.01); 61.6% of the AOB size was determined based on the duration of 

pacifier use.” Lima et al., supra note 8, at 5. 

56. In their 2018 meta-analysis, Schmid et al. found that “[f]ifteen out of the reviewed 

17 articles showed a strong association between AOB and the use of a pacifier when compared 

with the [sic] children not using a pacifier,” and duration of pacifier use played an “important 

role.” Schmid et al., supra note 5, at 3. Indeed, “[t]wo studies showed that children who used a 

pacifier for more than 2 years were more likely to develop an AOB than children who used it for 

less than 2 years.” Id.

57. In addition to the above research, a wealth of other studies performed over the years 

reflect the same finding that prolonged use of a pacifier results in a greater likelihood and 

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prevalence of AOB.10 

2. Posterior Crossbite

58. Posterior crossbite (“PCB”) is a condition where the posterior top teeth are inside 

10 See, e.g., L. Kohler and K. Holst, Malocclusion and Sucking Habits of Four-Year-Old Children, 

62 Acta. Paediat. Scand. 373 (1973); E. Larsson, Dummy- and Finger-Sucking Habits in 4-YearOlds, 68:2 Swed. Dent. J. 219 (1975); B. Melson et al., Sucking Habits and Their Influence on 

Swallowing Pattern and Prevalence of Malocclusion, 1:4 Eur. J. Orthod. 271 (1979); S. Adair et 

al., Evaluation of the Effects of Orthodontic Pacifiers on the Primary Dentitions of 24- to 59-

Month-Old Children: Preliminary Study, 14 Pediatr. Dent. 13 (1992); P. Paunio et al., The Finnish 

Family Competence Study: The Effects of Living Conditions on Sucking Habits in 3-Years-Old 

Finnish Children and the Association Between These Habits and Dental Occlusion, 51 Acta. 

Odontol. Scand. 23 (1993); E. Larsson, Artificial Sucking Habits: Etiology, Prevalence, and Effect 

on Occlusion, 20 Int. J. Orofac. Myol. 10 (1994); Adair, supra note 2; N. Farsi et al., Sucking 

Habits in Saudi Children: Prevalence, Contributing Factors, and Effects on the Primary Dentition, 

19 Pediatr. Dent. 28 (1997); J. Warren and S. Bishara, Duration of Nonnutritive Sucking Behaviors 

and Their Effects on the Dental Arches in the Primary Dentition, 121:4 Am. J. Ortho. Dentofac. 

Orthop. 347 (2002); C. Zardetto et al., Effects of Different Pacifiers on the Primary Dentition and 

Oral Myofunctional Structures of Preschool Children, 24 Pediatr. Dent. 552 (2002); C. Katz et al., 

Nonnutritive Sucking Habits and Anterior Open Bite in Brazilian Children: a Longitudinal Study, 

27:5 Pedaitr. Dent. 369 (2005); K. Duncan et al., Sucking Habits in Childhood and the Effects on 

the Primary Dentition: Findings of the Avon Longitudinal Study of Pregnancy and Childhood, 

18:3 Int. J. Paediatr. Dent. 178 (2008); S. Facciolli Hebling et al., Relationship Between 

Malocclusion and Behavioral, Demographic and Socioeconomic Variables: a Cross-Sectional 

Study of 5-Year-Olds, 33 J. Clin. Pediatr. Dent. 75 (2008); E. Oliveira Góis et al., Influence of 

Nonnutritive Sucking Habits, Breathing Pattern and Adenoid Size on the Development of 

Malocclusion, 78:4 Angle Orthod. 647 (2008); L. Dimberg et al., Prevalence of Malocclusion 

Traits and Sucking Habits Among 3-Year-Old Children, 34 Swed. Dent. J. 35 (2010); S. Zimmer 

et al., Efficacy of a Novel Pacifier in the Prevention of Anterior Open Bite, 33 Pediatr. Dent. 52 

(2011); C. Tibolla et al., Association Between Anterior Open Bite and Pacifier Sucking Habit in 

Schoolchildren in a City of Southern Brazil, 17 Dent. Press J. Orthod. 89 (2012); R. de Sousa et 

al., Prevalence and Associated Factors for the Development of Anterior Open Bite and Posterior 

Crossbite in the Primary Dentition, 4:25 Braz. Dent. J. 336 (2014); S. Moimaz et al., Longitudinal 

Study of Habits Leading to Malocclusion Development in Childhood, 14 BMC Oral Health 96 

(2014); S. Zimmer et al., Anterior Open Bite in 27 Months Old Children After Use of Novel Pacifier 

– a Cohort Study, 40:4 J. Clin. Pediatr. Dent. 28 (2016); A. Germa et al., Early Risk Factors for 

Posterior Crossbite and Anterior Open Bite in the Primary Dentition, 86:5 Angle Orthod. 832 

(2016); A. Lima et al., Effects of Conventional and Orthodontic Pacifiers on the Dental Occlusion 

of Children Aged 24-36 Months Old, 27:2 Int. J. Paediatr. Dent. 108 (2016); C. Cardozo Amaral 

et al., Perinatal Health and Malocclusions in Preschool Children: Findings from a Cohort of 

Adolescent Mothers in Southern Brazil, 152:5 Am. J. Orthod. Dentofac. Orthop. 613 (2017); 

Medeiros, supra note 1. 

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the posterior bottom teeth when touching, as depicted below: 

Figure 2 – Posterior Crossbite11

59. Both Adair et al. and Zardetto et al. found increased rates of posterior crossbites 

among children with pacifier sucking habits. See Zardetto et al., supra note 3, at 556; Adair et al., 

supra note 1, at 441. Notably, with respect to duration of pacifier use, Adair et al. found that 

pacifier users, of either conventional or “orthodontic” pacifiers, had “a significantly higher 

percentage of posterior crossbites (26.1 months[]) . . . compared with those whose habits ended 

[less than] 15.5 months.” Adair et al., supra note 1, at 441. 

60. Warren and Bishara’s 2002 study on the duration of pacifier sucking habits and 

their effect on primary dentition found that, “[p]rolonged pacifier habits resulted in significant 

changes to dental arch parameters and occlusal traits (e.g., increased mandibular arch width and 

greater prevalence of posterior crossbite and anterior open bite)” and that “pacifier habits were 

strongly associated with the development of posterior crossbite.” Warren and Bishara, supra note 

10, at 351. Specifically, the study found that “there was a statistically significant increase in the 

prevalence of posterior crossbite with pacifier habits longer than 24 months.” Id. at 349. 

61. The study also accounted for differences between children who sucked on a digit, 

as opposed to a pacifier, and found that “children with pacifier habits of 24 to 36 months and 48 

11 Warren and Bishara, supra note 10, at 354. 

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months or longer had significantly (P=.034 and .044 respectively, chi-square) higher prevalence 

of posterior crossbite than did children with the same duration of digit habits.” Id. at 350–51. 

62. “The increase in the prevalence of posterior crossbites with pacifier habits is the 

result of the combination of a significant increase in mandibular arch width. Some of these changes 

persisted well beyond the cessation of the pacifier habits.” Id. “Perhaps more importantly, the 

study found that pacifiers habits 24 to 36 months long resulted in an increased prevalence of 

posterior crossbite at age 5 compared with shorter pacifier habits or no nonnutritive sucking.” Id.

Consequently, Warren and Bishara concluded that “even though nonnutritive sucking fulfills 

physiological needs during infancy and may comfort toddlers, persistence of these habits beyond 

2 or 3 years of age significantly increases the probability of developing undesirable dental arch 

and occlusal traits at the end of the primary dentition stage.” Id. at 355. 

63. According to the 2018 meta-analysis of Schmid et al., no less than nine studies 

concluded that pacifier use can lead to posterior crossbite. Schmid et al., supra note 5, at 3. And, 

notably, one study that considered the duration of pacifier use found that “children who 

discontinued pacifier sucking by 2 years of age presented a lower prevalence of posterior crossbite 

(17.2%) than the ones that continued the pacifier sucking until 4 to 6 years of age (27.3%).” Id.; 

see also Scavone et al., Prevalence of Posterior Crossbite Among Pacifier Users: a Study in the 

Deciduous Dentition, Braz. 21:2 Oral Res. 153 (2007).12 

12 See also Kohler and Holst, Larsson, Melsen, Paunio, Adair, Warren, Zardetto, Duncan, Facciolli 

Hebling, Oliveira Góis, Zimmer, Dimberg, de Sousa, Moimaz, Germa, Lima, and Cardozo Amaral, 

supra note 10; T. Modéer et al., Sucking Habits and Their Relation to Posterior Cross-Bite in 4-

Year-Old Children, 90 Scand. J. Dent. Res. 323 (1982); B. Ogaard et al., The Effect of Sucking 

Habits, Cohort, Sex, Intercanine Arch Widths, and Breast or Bottle Feeding on Posterior Crossbite 

in Norwegian and Swedish 3-Year-Old Children, 106:2 Am. J. Orthod. Dentofac. Orthop. 161 

(1994); E. Larsson, Sucking, Chewing, and Feeding Habits and the Development of Crossbite: a 

Longitudinal Study of Girls From Birth to 3 Years of Age, 71:2 Angle Orthod. 116 (2001); S. 

(footnote continued) 

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3. Excessive Overjet

64. Overjet refers to the horizontal extension of the upper front teeth over the lower 

front teeth. Excessive overjet is another form of malocclusion that is more prevalent in children 

who use pacifiers, and is a condition where the upper front teeth are significantly further forward 

than the lower front teeth, as depicted below: 

Figure 3 – Excessive Overjet 

65. Adair et al. found that children “with a history of pacifier use had a mean overjet 

that was significantly greater than that of habit-free children.” Adair et al., supra note 2, at 439. 

Between children who used conventional pacifiers and those who use orthodontic pacifiers, Adair 

et al. found “[t]here was no difference in mean overjet, nor in the percentage of children in each 

group with overjets [greater than] 4 mm.” Id. at 440. Similarly, Zardetto et al. found, with respect 

to the amount of overjet, that “a statistically significant difference was found among those who 

had no sucking habits (control group) and those who sucked pacifiers, be they conventional or 

Bishara et al., Changes in the Prevalence of Nonnutritive Sucking Patterns in the First 8 Years of 

Life, 130:1 Am. J. Orthod. Dentofac. Orthop. 31 (2006); H. Scavone et al., Prevalence of Posterior 

Crossbite Among Pacifier Users: a Study in the Deciduous Dentition, 21:2 Braz. Oral Res. 

153 (2007); S. Melink et al., Posterior Crossbite in the Deciduous Dentition Period, its Relation 

with Sucking Habits, Irregular Orofacial Functions, and Otolaryngological Findings, 138:1 Am. 

J. Orthod. Dentofac. Orthop. 32 (2010). 

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physiological ones. There was no difference in mean overjet (mm) among the children who sucked 

the conventional pacifier and those who sucked the orthodontic ones.” Zardetto et al., supra note 

3, at 556. 

66. Lima et al. found that “[p]acifier use is significantly associated with [accentuated 

overjet] and mainly with AOB, the prevalence rates of which were 96.3% among the pacifier users 

and just 3.7% in the [control group].” Lima et al., supra note 8, at 9. Lima et al. also found that 

“habit duration is a relevant factor in the determination of the size of AOB and [accentuated 

overjet]. In this study, duration exhibited positive correlations with both [accentuated overjet and 

AOB],” leading Lima to conclude that “habit duration was a strong predictor of MO occurrence 

and severity.” Id. at 11. 

67. In their meta-analysis, Schmid et al. noted that numerous studies have shown “that 

the prevalence of overjet is increased in children using a pacifier when compared with children 

who do not use a pacifier.” Schmid et al., supra note 5, at 7. Moreover, with respect to duration, a 

“higher prevalence of overjet was associated with a pacifier sucking habit at 12, 18, and 30 months 

after birth.” Id.13

4. Class II Canine Relationship 

68. A class II canine relationship or class II malocclusion refers to a common 

orthodontic classification of a distal molar and canine relationship, in other words, a misalignment 

of the upper and lower molars, as depicted below: 

13 See also Adair, Melsen, Warren, Zardetto, Zimmer, Dimberg, Lima supra note 13; J. Ravn, 

Sucking Habits and Occlusion in 3-Year-Old Children, 84 Scan. J. Dent. Rev. 204 (1976); B. 

Bowden, The Effects of Digital and Dummy Sucking on Arch Widths, Overbite, and Overjet: a 

Longitudinal Study, 11 Aust. Dent. J. 396 (1966). 

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Figure 4 – Class II Malocclusion 

69. Adair et al. found that “[c]lass II primary canine relationships on one or both sides 

were significantly more common among the pacifier group,” regardless of pacifier type, as 

compared to habit-free children. Adair et al., supra note 2, at 439. Among users of “orthodontic” 

pacifiers, Adair found that the “occurrences of Class II primary canines and distal step molars were 

statistically significantly greater among the users of functional exercisers.” Id. at 440. Dimberg et 

al. similarly showed that there was a statistically significant higher rate of Class II malocclusions 

in pacifier users.14

5. Dental Arch Alterations

70. Dental arches are the two arches of teeth, one on each jaw, that together constitute 

the dentition. Prolonged pacifier usage has been demonstrated to lead to a significant increase in 

mandibular arch width and decrease of upper intercanine width, resulting in a narrowed and 

constricted palate that reduces the spacing needed for adult teeth to erupt (see Figure 5 below), 

14 See also Farsi, Zardetto, Lima, Melsen, supra note 13; Ravn, supra note 14; Schmid et al., supra

note 5. 

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among other harmful changes to dental arch parameters and oral development.15

Figure 5 – Narrowed Palate 

71. Warren and Bishara’s examination of the effect of the duration of pacifier use on 

different aspects of dental arch “found a statistically significant increased mandibular canine arch 

width and a statistically significant decrease in palatal depths” among prolonged pacifier users. 

See Schmid et al., supra note 5, at 8; see also Warren and Bishara, supra note 11, at 350–51. 

72. Specifically, Warren and Bishara found “children with pacifier habits of 36 to 48 

months duration had significantly greater mandibular arch widths.” Warren and Bishara, supra

note 11, at 349. Compared to children with digit-sucking habits of the same duration: “Children 

with pacifier habits of 36 to 48 months had significantly (P=.013, t test) greater mandibular arch 

widths than did children with digit habits of the same length . . . .” Id. at 350. “[P]acifier habits 

were strongly associated with the development of posterior crossbite, increased mandibular arch 

widths, and shallower palatal depths.” Id. at 351. Prolonged pacifier usage results in “a significant 

15 See, e.g., Adair, Warren and Bishara, Zardetto, Ogaard, Larsson, supra note 13; Bowden, supra

note 14; S. Bishara et al., Influence of Feeding and Non-Nutritive Sucking Methods on the 

Development of the Dental Arches: Longitudinal Study of the First 18 Months of Life, 9 Pediatr. 

Dent. 13 (1987). 

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increase in mandibular arch width and a tendency for a decrease in maxillary arch width” which 

results in an “increase in the prevalence of posterior crossbites.” Id. at 351. 

73. Zardetto et al. also found that “there is an association between a narrow and high 

hard palate and children with sucking habits,” which “can be explained by the fact that the tongue 

is forced and remains in an inferior position when the child is sucking a pacifier. Furthermore, the 

pacifier nipple is pressed against the hard palate by the tongue and the upper teeth in the canine 

and the molar area lack palatal support from the tongue during sucking exercise, decreasing arch 

width. It is clear that the shape of the hard palate depends on the width of the upper arch. Therefore, 

if this width decreases, the hard palate becomes narrower and there is less space for the tongue. 

When the child inserts the nipple of a pacifier into his or her mouth, it occupies the functional 

space of the mouth, displaces the tongue to a lower position, and separates the lips.” See Zardetto 

et al., supra note 3, at 559. 

6. Other Conditions and Psychosocial Development

74. In addition to the above conditions, prolonged pacifier usage is also associated with 

a range of other secondary conditions, including diastema, increased oral myofunctional 

alterations, such as lip incompetence, lip entrapment, and a decrease in muscular tonicity of the 

tongue and lips.16 While the impact of these conditions on a child’s physiological oral development 

varies, studies have confirmed that the development of abnormal oral conditions such as these can 

have a severe impact on a child’s psychosocial development, self-image, and social well-being. 

16 See, e.g., Zardetto, supra note 3; Bowden, supra note 14; B. Black et al., Harmful Oral Habits, 

23 Ortodon. 40 (1990); S. Adair, Nonnutritive Sucking Habits in Infants and Preschool Children: 

a Review and Recommendations for Anticipatory Guidance, 4 Master Clin. Pediatr. Dent. 14 

(1996); M. Camargo et al., Rational use of the Pacifier, 1 J. Bras. Odontopediatr. Odontol. Bebe 

44 (1998); Schmid et al., supra note 5. 

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75. For example, diastema is a condition marked by increased spacing between the 

teeth, as depicted below: 

Figure 6 – Diastema17

76. Lima et al. and others have demonstrated a link between prolonged pacifier use and 

the development of increased spacing between the teeth.18 While diastema by itself is typically 

considered more of a cosmetic issue, as discussed below, the impact of dental aesthetics on 

subjective self-perception can have considerable and lasting effects into adolescence and 

adulthood. 

77. Oral myofunctional alterations can also develop from prolonged pacifier usage 

(see, e.g., Zardetto et al., supra note 3) and, in addition to impacting oral development and oral 

health, can also impact a child’s psychosocial development. Lip incompetence, for example, is a 

condition marked by the inability of the lips to stay together when the mouth is in a closed posture, 

as depicted the comparative image below: 

17 See also Figure 2. 

18 See, e.g., Lima, and Kohler and Holst, supra note 11. 

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Figure 7 – Lip Incompetence (right)

78. Paula et al. evaluated adolescent’s self-perception of dental aesthetics and found 

that severity of malocclusion and oral health directly correlated to quality of life and body-image.19

“[D]entofacial esthetics plays an important role in social interaction and psychological well-being. 

The impact of oral health conditions on quality of life, especially in items of satisfaction with 

appearance, may result in feelings of shame in social contacts and those who are psycho-socially 

disadvantaged.” Id. at 1192. Numerous studies that have examined dissatisfaction with dental 

appearance and negative psychosocial impacts have made similar conclusions.20

19 Paula et al., Psychosocial Impact of Dental Esthetics on Quality of Life in Adolescents: 

Association with Malocclusion, Self-Image, and Oral Health–Related Issues, 79:6 Angle Orthod. 

1188 (2009). 

20 See, e.g., N.A. Mandall et al., Perceived Aesthetic Impact of Malocclusion Andoral SelfPerceptions in 14- to 15-Year-Old Asian and Caucasian Children in Greater Manchester, 21 Eur. 

J. Orthod. 175 (1999); M. Al-Sarheed et al., Orthodontic Treatment Need and Self-Perception of 

11- to 16-Year-Old Saudi Arabian Children with a Sensory Impairment Attending Special Schools, 

30 J. Orthod. 39 (2003); I. Grzywacz, The Value of the Aesthetic Component of the Index of 

Orthodontic Treatment Need in the Assessment of Subjective Orthodontic Treatment Need, 25 Eur. 

J. Orthod 57 (2003); U. Klages et al., Dental Aesthetics, Self-Awareness, and Oral Health-Related 

Quality of Life in Young Adults, 26 Eur. J. Orthod. 507 (2004); E. Bernabe and C. Flores-Mir, 

Orthodontic Treatment Need in Peruvian Young Adults Evaluated through Dental Aesthetic Index, 

76 Angle Orthod. 417 (2006); L.S. Marques et al., Malocclusion: Esthetic Impact and Quality of 

Life among Brazilian School Children, 129 Am J. Orthod. Dentofacial Orthop. 424 (2006); P. Van 

Der Geld et al., Smile Attractiveness: Self-Perception and Influence on Personality, 77 Angle 

Orthod. 759 (2007); P.M. Kenealy et al., The Cardiff Dental Study: a 20-Year Critical Evaluation 

(footnote continued) 

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79. Negative self-perception resulting from malocclusions and dental appearance can 

also last into adulthood. In a longitudinal fifteen-year study, Helm et al. “concluded that certain 

malocclusions, especially conspicuous occlusal and space anomalies, may adversely affect body 

image and self-concept, not only at adolescence but also in adulthood.”21 Thus while the 

physiological effects of prolonged pacifier usage have a demonstrable and often visible impact on 

a child’s oral development, as discussed above, prolonged pacifier usage also can result in 

secondary psychosocial effects that can impact a child’s self-image and social well-being 

throughout his or her life. 

IV. Impact of Defendant’s Wrongful Conduct 

80. Despite ample dental and orthodontic studies and literature demonstrating the 

contrary, Defendant consistently conveys to reasonable consumers, through its advertising 

statements and omissions, that its Orthodontic Pacifiers are safe for use by children 24 months and 

older, and that its Orthodontic Pacifiers promote healthy oral and orofacial development. 

Defendant’s misleading use of the term “orthodontic” and deceptive age ranges and minimums on 

its product packaging constitute illegal conduct. As a result of Defendant’s wrongful and 

misleading advertising statements, Plaintiff and class members are injured at the point of purchase.

81. As a prominent, longtime, and iconic manufacturer and distributor of baby 

of the Psychological Health Gain from Orthodontic Treatment, 13 Br. J. Health Psychol. 17 

(2007); E.S. Traebert and M.A. Peres, Do Malocclusion Affect the Individual’s Oral Health 

Related to Quality of Life?, 5 Oral Health Prev. Dent. 3 (2007); U. Klages et al., Perception of 

Occlusion, Psychological Impact of Dental Esthetics, History of Orthodontic Treatment and Their 

Relation to Oral Health in Naval Recruits, 77 Angle Orthod. 675 (2007); X. Dahong et al., Effect 

of Incisor Position on the Self-Perceived Psychosocial Impacts of Malocclusion Among Chinese 

Young Adults, 83:4 Angle Orthod. 617 (2013). 

21 S. Helm et al., Psychosocial Implications of Malocclusion: A 15-year Follow-Up Study in 30-

Year-Old Danes, 87:2 Am. J. Orthod. 110 (1985). 

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products, including pacifiers, Defendant possesses specialized knowledge regarding the safety and 

efficacy of its products, and are in a superior position to know the risks associated with their use. 

Indeed, any company in the baby product industry is well aware of the need for hyperawareness 

of product safety—from a legal, regulatory, and ethical standpoint—and the concomitant duty to 

disclose potential risks of product use.

82. Defendant knew or should have known, but failed to disclose, that children who 

use pacifiers, including Defendant’s Orthodontic Pacifiers, to continue non-nutritive sucking 

habits past the age of 24 months have an increased risk of various forms of dental malocclusions. 

Defendant also knew or should have known, but failed to disclose, that its Orthodontic Pacifiers 

pose risks to children over the age of 24 months, and that those products do not promote the healthy 

oral and orofacial development of children, nor do they prevent teeth misalignment.

83. Defendant knew or should have known that its Orthodontic Pacifiers do not 

promote healthy dental occlusion or provide orthodontic benefit for children of any age (including 

those under the age of 24 months) as compared to the use of conventional pacifiers or not using 

pacifiers at all.

84. Defendant’s material misrepresentations and omissions set forth in this Complaint 

were disseminated uniformly to Plaintiff and all Class members through product packaging and 

labeling, exposing Plaintiff and all Class members to Defendant’s false, deceptive, and misleading 

advertising and unfair, unlawful, and fraudulent business practices that deceived Plaintiff and are 

likely to deceive reasonable consumers, including Plaintiffs and Class members. 

85. When purchasing Defendant’s Orthodontic Pacifiers, Plaintiff relied upon 

Defendant’s misrepresentations and omissions, including Defendant’s failure to disclose the 

material fact that prolonged pacifier use by children over the age of 24 months increases the risk 

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of developing various dental malocclusions.

86. Plaintiff was injured at the time of purchase, as she would not have paid a premium 

price or purchased the Orthodontic Pacifiers marketed for use by children over the age of 24 

months had Defendant made truthful advertising statements and disclosed material information 

concerning risks associated with prolonged pacifier use.

87. Plaintiff would not have purchased, or would have paid less for, Defendant’s 

Orthodontic Pacifiers had Defendant made truthful advertising statements concerning the impact 

on oral and orofacial health of its Orthodontic Pacifiers.

88. Defendant’s material misrepresentations and omissions set forth in this Complaint 

induced Plaintiff to purchase Defendant’s Orthodontic Pacifiers and resulted in the payment of 

money by Plaintiff to or for the benefit of Defendant that Plaintiff would not have paid had 

Defendant truthfully advertised its pacifiers.

89. Plaintiff and Class members have been and will continue to be deceived or misled 

by Defendant’s false and misleading misrepresentations and omissions concerning Defendant’s 

Orthodontic Pacifiers. 

90. Plaintiff and Class members are reasonable consumers who have been injured by 

purchasing Defendant’s Orthodontic Pacifiers. Because of Defendant’s material 

misrepresentations and omissions in its statements and advertisements concerning its Orthodontic 

Pacifiers, including on product packaging and labeling, Plaintiff and Class members were harmed 

at the time of purchase. 

91. Defendant’s misrepresentations and omissions were a material factor in influencing 

Plaintiff’s and Class members’ decision to purchase Orthodontic Pacifiers. 

92. Defendant’s conduct has injured Plaintiff and Class members because Defendant’s 

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Orthodontic Pacifiers are not safe for use by children over the age of 24 months, do not promote 

healthy oral and orofacial development, and do not prevent teeth misalignment. Rather, 

Defendant’s Orthodontic Pacifiers have known, substantial risks when used by children over the 

age of 24 months, and Defendant failed to conspicuously disclose those risks to Plaintiff and Class 

members.

93. Defendant continues to engage in the unlawful acts and practices set forth in this 

Complaint. 

94. Unless enjoined, Defendant’s unlawful acts and practices described in this 

Complaint will continue. 

CLASS DEFINITION AND ALLEGATIONS 

95. Pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3), Plaintiff brings 

this action on behalf of herself and the proposed Classes22: Plaintiff brings this action on behalf of 

herself and the proposed Nationwide Class: 

All persons who purchased in the United States any of the MAM® branded 

Orthodontic Pacifiers, within the applicable statute of limitations, until the date 

notice is disseminated. 

96. Pursuant to Federal Rules of Civil Procedure Rule 23(b)(2) and (b)(3), Plaintiff 

brings this action on behalf of herself and the proposed Nationwide Subclass: 

All persons who purchased in the United States any of the MAM® branded 

Orthodontic Pacifiers, within the applicable statute of limitations, for use by a child 

24 months or older until the date notice is disseminated. 

97. Pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3), Plaintiff brings 

22 Unless otherwise specified, all references in this Complaint to the “Classes” or the “Class” refer 

collectively to the Nationwide Class, the Nationwide Subclass, the Multi-State Consumer 

Protection Class, the Multi-State Consumer Protection Subclass, the Illinois Class, and the Illinois 

Subclass. 

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this action on behalf of herself and the proposed Multi-State Consumer Protection Class: 

All persons who purchased in the State of Illinois or any state with similar laws23

any of the MAM® branded Orthodontic Pacifiers, within the applicable statute of 

limitations, until the date notice is disseminated. 

98. Pursuant to Federal Rules of Civil Procedure 23(b)(2) and (b)(3), Plaintiff brings 

this action on behalf of herself and the proposed Multi-State Consumer Protection Subclass: 

All persons who purchased in the State of Illinois or any state with similar laws24

any of the MAM® branded Orthodontic Pacifiers, within the applicable statute of 

limitations, for use by a child 24 months or older until the date notice is 

disseminated. 

99. Pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3), Plaintiff brings 

this action on behalf of herself and the proposed Illinois Class: 

All persons who purchased in the State of Illinois any of the MAM® branded 

Orthodontic Pacifiers, within the applicable statute of limitations, until the date 

notice is disseminated. 

23 While discovery may alter the following, Plaintiff asserts that the other states with similar 

consumer fraud laws under the facts of this case include, but are not limited to: Arkansas (Ark. 

Code § 4-88-101, et seq.); Colorado (Colo. Rev. Stat. § 6-1-101, et seq.); Connecticut (Conn. Gen. 

Stat. § 42-110, et seq.); Delaware (Del. Code tit. 6, § 2511, et seq.); District of Columbia (D.C. 

Code § 28-3901, et seq.); Florida (Fla. Stat. § 501.201, et seq.); Hawaii (Haw. Rev. Stat. § 480-1, 

et seq.); Idaho (Idaho Code § 48-601, et seq.); Illinois (815 ICLS § 505/1, et seq.); Maine (Me. 

Rev. Stat. tit. 5 § 205-A, et seq.); Massachusetts (Mass. Gen. Laws Ch. 93A, et seq.); Michigan 

(Mich. Comp. Laws § 445.901, et seq.); Minnesota (Minn. Stat. § 325F.67, et seq.); Missouri (Mo. 

Rev. Stat. § 407.010, et seq.); Montana (Mo. Code. § 30-14-101, et seq.); Nebraska (Neb. Rev. 

Stat. § 59 1601, et seq.); Nevada (Nev. Rev. Stat. § 598.0915, et seq,); New Hampshire (N.H. Rev. 

Stat. § 358-A:1, et seq.); New Jersey (N.J. Stat. § 56:8-1, et seq.); New Mexico (N.M. Stat. § 57-

12-1, et seq.); New York (N.Y. Gen. Bus. Law § 349, et seq.); North Dakota (N.D. Cent. Code § 

51-15-01, et seq.); Oklahoma (Okla. Stat. tit. 15, § 751, et seq.); Oregon (Or. Rev. Stat. § 646.605, 

et seq.); Rhode Island (R.I. Gen. Laws § 6-13.1-1, et seq.); South Dakota (S.D. Code Laws § 37-

24-1, et seq.); Texas (Tex. Bus. & Com. Code § 17.41, et seq.); Virginia (VA Code § 59.1-196, et 

seq.); Vermont (Vt. Stat. tit. 9, § 2451, et seq.); Washington (Wash. Rev. Code § 19.86.010, et 

seq.); West Virginia (W. Va. Code § 46A-6- 101, et seq.); and Wisconsin (Wis. Stat. § 100.18, et 

seq.). See Mullins v. Direct Digital, LLC, No. 13-cv-1829, 2014 WL 5461903 (N.D. Ill. Sept. 30, 

2014), aff’d, 795 F.3d 654 (7th Cir. 2015). 

24 Id., supra note 23. 

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100. Pursuant to Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3), Plaintiff brings 

this action on behalf of herself and the proposed Illinois Subclass: 

All persons who purchased in the State of Illinois any of the MAM® branded 

Orthodontic Pacifiers, within the applicable statute of limitations, for use by a child 

24 months or older until the date notice is disseminated. 

101. Pursuant to Federal Rules of Civil Procedure, Plaintiff brings this action on behalf 

of herself and the proposed Multi-State Express Warranty Class: 

All persons who purchased any of the MAM® branded Orthodontic Pacifiers in 

Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District 

of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, 

Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, 

New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, 

Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, 

Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, or 

Wyoming, within the applicable statute of limitations, until the date notice is 

disseminated. 

102. Excluded from the Classes are: (i) Defendant, any entity in which Defendant has a 

controlling interest or which has a controlling interest in Defendant, and Defendant’s legal 

representatives, predecessors, successors and assigns; (ii) governmental entities; (iii) Defendant’s 

employees, officers, directors, agents, and representatives and their family members; (iv) all 

persons who make a timely election to be excluded from the class; and (v) the Judge and staff to 

whom this case is assigned, and any member of the Judge’s immediate family. 

103. Certification of Plaintiff’s claims for class-wide treatment is appropriate because 

Plaintiff can prove the elements of her claims on a class-wide basis using the same evidence as 

would be used to prove those elements in individual actions alleging the same claims. 

104. Numerosity – Federal Rule of Civil Procedure 23(a)(1). Members of the 

proposed Classes are so numerous that the individual joinder of all absent Class members is 

impracticable. While the exact number of Class members is unknown to Plaintiff at this time and 

is in the exclusive control of Defendant, it is ascertainable by appropriate discovery. Plaintiff is 

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informed and believes, based upon the nature of the trade and commerce involved, that the 

proposed Classes include many thousands of Class members who are geographically diverse so 

that joinder of all Class members is impracticable. 

105. Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2) 

and 23(b)(3). This action involves common questions of law and fact, which predominate over 

any questions affecting individual Class members. Among the questions of law or fact common to 

the proposed Classes are: (1) whether Defendant’s representations regarding its Orthodontic 

Pacifiers are misleading and deceptive; (2) whether Defendant failed to disclose material 

information concerning risks associated with prolonged pacifier use by children over the age of 24 

months; (3) whether Defendant’s representations and omissions concerning its Orthodontic 

Pacifiers involved representations and omissions of material facts; (4) whether Defendant’s 

Orthodontic Pacifiers promote or benefit the oral and orofacial health of children of any age, 

including those 24 months and under; (5) whether Defendant’s Orthodontic Pacifiers are safe for 

use in children over 24 months; (6) whether Defendant’s conduct, as set forth in this Complaint, 

violates the Illinois Consumer Fraud Act and Illinois Uniform Deceptive Trade Practices Act; (7) 

whether Defendant should be enjoined from continuing to make false, deceptive, and misleading 

statements regarding its Orthodontic Pacifiers; (8) whether Defendant’s conduct was unjust and in 

violation of principles of justice, equity, and good conscience; (9) whether Plaintiff and Class 

members confer financial benefits on Defendant by purchasing Defendant’s Orthodontic Pacifiers; 

(10) whether it is unjust for Defendant to retain the benefits conferred by Plaintiff’s and Class 

members’ overpayments for Orthodontic Pacifiers; (11) whether Defendant’s profits resulting 

from Plaintiff’s and Class members’ overpayments are subject to equitable disgorgement; and (12) 

whether Defendant should pay damages or restitution, and in what amount. These questions and 

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others are common to the class and predominate over individual issues. Further, the issues of fact 

and law applicable to the Class are identical to the issues of fact and law applicable to each 

individual member of the proposed Class. 

106. Typicality – Federal Rule of Civil Procedure 23(a)(3). Plaintiff’s claims are 

typical of the other Class members’ claims because, among other things, all Class members were 

comparably injured through the uniform, prohibited conduct described above. Plaintiff and Class 

members all suffered the same harm as a result of Defendant’s common, false, deceptive, and 

misleading acts and practices in the sale of its Orthodontic Pacifiers. By advancing her claims, 

Plaintiff will also advance the claims of all Class members because Defendant’s unlawful conduct 

caused and continues to cause all Class members to suffer similar harm. 

107. Adequacy of Representation – Federal Rule of Civil Procedure 23(a)(4). 

Plaintiff is an adequate representative of the Classes because Plaintiff has no interest adverse to 

the interests of the members of the proposed Classes, and Plaintiff has retained counsel competent 

and experienced in complex commercial and consumer class action litigation. And Plaintiff intends 

to prosecute this action vigorously. The interests of the Class members will be fairly and 

adequately protected by Plaintiff and her counsel.

108. Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2). 

Defendant has acted or refused to act on grounds generally applicable to Plaintiff and the other 

Class members, thereby making appropriate final injunctive relief and declaratory relief, as 

described below, with respect to the Class as a whole.

109. Superiority – Federal Rule of Civil Procedure 23(b)(3). A class action is superior 

to any other available means for the fair and efficient adjudication of this controversy, and no 

unusual difficulties are likely to be encountered in the management of this class action. There is 

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no special interest in the members of the Classes individually controlling the prosecution of 

separate actions. The damages or other financial detriment suffered by Plaintiff and the other Class 

members are relatively small compared to the burden and expense that would be required to 

individually litigate their claims against Defendant, so it would be impracticable for Class 

members to individually seek redress for Defendant’s wrongful conduct. Even if Class members 

could afford individual litigation, the court system could not. Class treatment will permit a large 

number of similarly situated persons to prosecute their common claims in a single forum 

simultaneously, efficiently, and without the duplication of effort and expense that numerous 

individual actions would entail. Individualized litigation creates a potential for inconsistent or 

contradictory judgments and increases the delay and expense to all parties and the court system. 

By contrast, the class action device presents far fewer management difficulties, and provides the 

benefits of single adjudication, economy of scale, and comprehensive supervision by a single 

court. Furthermore, Defendant transacts substantial business in Illinois, and will not be prejudiced 

or inconvenienced by the maintenance of this class action in this forum.

CLAIMS ALLEGED 

FIRST CAUSE OF ACTION 

VIOLATION OF THE ILLINOIS 

CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT 

(On Behalf of the Illinois Class and Illinois Subclass) 

110. Plaintiff incorporates the preceding paragraphs as if fully set forth herein. 

111. Plaintiff brings this action individually and on behalf of the Illinois Class and 

Illinois Subclass. 

112. In Illinois, the Consumer Fraud and Deceptive Business Practices Act, 815 Ill. 

Comp. Stat. 505/1, et seq., prohibits “unfair methods of competition and unfair or deceptive acts 

or practices, including but not limited to the use or employment of any deception, fraud, false 

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pretense, false promise, misrepresentation or the concealment, suppression or omission of any 

material fact, with intent that others rely upon the concealment, suppression or omission of such 

material fact or the use or employment of any practice described in Section 2 of the ‘Uniform 

Deceptive Trade Practices Act.’” 

113. Plaintiff and the Class members were injured by Defendant’s deceptive 

misrepresentations, concealments and omissions and these misrepresentations, concealments and 

omissions were material and deceived Plaintiff and the Class. Because Plaintiff and Class members 

relied on Defendant’s misrepresentations, concealments and omissions when purchasing 

Defendant’s Orthodontic Pacifiers, they were injured at the time of purchase. 

114. Defendant does business in Illinois, sells and distributes its Orthodontic Pacifiers 

in Illinois, and engaged in deceptive acts and practices in connection with the sale of Orthodontic 

Pacifiers in Illinois and elsewhere in the United States. 

115. The Orthodontic Pacifiers purchased by Plaintiff and the Class members were 

“consumer items” as that term is defined under the Illinois Consumer Fraud Act. 

116. Defendant engaged in unfair and deceptive acts in violation of 815 Ill. Comp. Stat. 

505/2 when it misrepresented and deceptively concealed, suppressed and/or omitted the material 

information known to Defendant as set forth above concerning its Orthodontic Pacifiers, which 

has caused damage and injury to Plaintiff and the Class members at the time of purchase. 

117. Defendant represented, directly or indirectly, that its Orthodontic Pacifiers promote 

healthy oral development and prevent teeth and jaw misalignment, when, in reality, they result in 

worse outcomes for children of any age than not using a pacifier and result in oral and orofacial 

health outcomes that are no better than the use of conventional pacifiers. 

118. Defendant represented, directly or indirectly, that its Orthodontic Pacifiers are 

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beneficial to the oral and orofacial health of children over the age of 24 months when, in reality, 

Defendant’s Orthodontic Pacifiers are harmful to children over the age of 24 months and do not 

contribute to their healthy oral and orofacial development. 

119. Defendant failed to disclose in its advertising statements the material fact that 

prolonged pacifier use by children over the age of 24 months significantly increases the risk of 

developing various dental malocclusions. 

120. Defendant knew or should have known that its health representations were false 

and misleading, and that by omitting and failing to disclose in their advertising the risks associated 

with prolonged pacifier use by children over the age of 24 months, most notably the risk of 

developing various forms of dental malocclusions, Defendant was omitting material facts that 

would alter any reasonable consumer’s decision to purchase Orthodontic Pacifiers for children 

over the age of 24 months. 

121. Defendant’s deceptive acts occurred in a course of conduct involving trade and 

commerce in Illinois and throughout the United States. 

122. Defendant intended Plaintiff and all Class members to rely on their deceptive acts 

when purchasing Defendant’s Orthodontic Pacifiers. 

123. Defendant’s deceptive acts proximately caused actual injury and damage to 

Plaintiff and the Class members at the time of purchase. 

124. Plaintiff and Class members would not have purchased, or would have paid less 

for, Defendant’s Orthodontic Pacifiers marketed for use by children under 24 months but for 

Defendant’s material misrepresentations as described in this Complaint. 

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SECOND CAUSE OF ACTION 

VIOLATION OF THE ILLINOIS 

UNIFORM DECEPTIVE TRADE PRACTICES ACT 

(On Behalf of the Illinois Class and Illinois Subclass) 

125. Plaintiff incorporates the preceding paragraphs as if fully set forth herein. 

126. Plaintiff brings this action individually and on behalf of the Illinois Class and 

Illinois Subclass. 

127. The Illinois Uniform Deceptive Trade Practices Act (“UDTPA”), 815 Ill. Comp. 

Stat. 510/2, et seq., prohibits “[u]nfair methods of competition and unfair or deceptive acts or 

practices, including but not limited to the use or employment of any deception, fraud, false 

pretense, false promise, misrepresentation or the concealment, suppression or omission of any 

material fact, with intent that others rely upon the concealment, suppression or omission of such 

material fact.” 

128. 815 ILCS 510/2 provides in pertinent part that a “person engages in a deceptive 

trade practice when, in the course of his or her business, vocation, or occupation,” the person does 

any of the following: “(5) represents that goods or services have . . . uses, benefits or quantities 

that they do not have . . .; (7) represents that goods or services are of a particular standard, quality, 

or grade or that goods are a particular style or model, if they are of another; . . . [or] (12) engages 

in any other conduct which similarly creates a likelihood of confusion or misunderstanding.” 

129. Defendant engaged in unfair and deceptive acts in violation of 815 Ill. Comp. Stat. 

510/2 when it misrepresented and deceptively concealed, suppressed and/or omitted the material 

information known to Defendant as set forth above concerning its Orthodontic Pacifiers, which 

has caused damage and injury to Plaintiff and the Class members. Plaintiff and Class members 

were injured by Defendant’s unfair and deceptive conduct at the time of purchasing Defendants’ 

Orthodontic Pacifiers. 

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130. Defendant represented, directly or indirectly, that its Orthodontic Pacifiers promote 

healthy oral development and prevent teeth and jaw misalignment, when, in reality, they result in 

worse outcomes for children of any age than not using a pacifier and result in oral and orofacial 

health outcomes that are no better than the use of conventional pacifiers. 

131. Defendant represented, directly or indirectly, that its Orthodontic Pacifiers are 

beneficial to the oral and orofacial health of children over the age of 24 months when, in reality, 

Defendant’s Orthodontic Pacifiers are harmful to children over the age of 24 months and do not 

contribute to their healthy oral and orofacial development. 

132. Defendant failed to disclose in its advertising statements the material fact that 

prolonged pacifier use by children over the age of 24 months significantly increases the risk of 

developing various dental malocclusions. 

133. Defendant knew or should have known that its health representations were false 

and misleading, and that by omitting and failing to disclose in its advertising the risks associated 

with prolonged pacifier use by children over the age of 24 months, most notably the risk of 

developing various forms of dental malocclusions, Defendant was omitting material facts that 

would alter any reasonable consumer’s decision to purchase Orthodontic Pacifiers for children 

over the age of 24 months. 

134. Defendant’s deceptive acts occurred in a course of conduct involving trade and 

commerce in Illinois and throughout the United States. 

135. Defendant’s deceptive acts proximately caused actual injury and damage to 

Plaintiff and the Class members at the point of purchase. 

136. Plaintiff and Class members would not have purchased, or would have paid less 

for, Defendant’s Orthodontic Pacifiers marketed for use by children under 24 months but for 

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Defendant’s material misrepresentations as described in this Complaint. Defendant intended 

Plaintiff and all Class members to rely on their deceptive acts when purchasing Defendants’ 

Orthodontic Pacifiers. 

THIRD CAUSE OF ACTION 

VIOLATIONS OF STATE CONSUMER PROTECTION STATUTES 

(On Behalf of Plaintiff and the Multi-State Consumer Protection Class 

and Multi-State Consumer Protection Subclass) 

137. Plaintiff incorporates the preceding paragraphs as if fully set forth herein. 

138. Plaintiff and Class members have been injured as a result of Defendant’s violations 

of the state consumer protection statutes listed above in paragraph 97 and footnote 23, which also 

provide a basis for redress to Plaintiff and Class members based on Defendant’s fraudulent, 

deceptive, unfair and unconscionable acts, practices and conduct. 

139. Defendant’s conduct as alleged herein violates the consumer protection, unfair 

trade practices and deceptive acts laws of each of the jurisdictions encompassing the Multi-State 

Consumer Protection Class and Multi-State Consumer Protection Subclass. 

140. Defendant violated the Multi-State Consumer Protection Class and Subclass’ 

states’ unfair and deceptive acts and practices laws by representing that its Orthodontic Pacifiers 

promote healthy oral development and prevent teeth and jaw misalignment, when, in reality, they 

result in worse outcomes for children of any age than not using a pacifier and result in oral and 

orofacial health outcomes that are no better than the use of conventional pacifiers. 

141. Defendant further represented, directly or indirectly, that its Orthodontic Pacifiers 

are beneficial to the oral and orofacial health of children over the age of 24 months when, in reality, 

Defendant’s Orthodontic Pacifiers are harmful to children over the age of 24 months and in no 

way contribute to their healthy oral and orofacial development. 

142. Defendant’s misrepresentations were material to Plaintiff’s and Class members’ 

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decision to purchase the Orthodontic Pacifiers or pay a premium for the Orthodontic Pacifiers. 

143. Defendant made its untrue and/or misleading statements and representations 

willfully, wantonly, and with reckless disregard for the truth. 

144. As a result of Defendant’s violations of the aforementioned states’ unfair and 

deceptive practices laws, Plaintiff and Class members paid a premium for the Orthodontic Pacifiers 

and were injured at the point of purchase. 

145. As a result of Defendant’s violations, Defendant has been unjustly enriched. 

146. Pursuant to the aforementioned states’ unfair and deceptive practices laws, Plaintiff 

and Class members are entitled to recover compensatory damages, restitution, punitive and special 

damages including but not limited to treble damages, reasonable attorneys’ fees and costs and other 

injunctive or declaratory relief as deemed appropriate or permitted pursuant to the relevant law. 

FOURTH CAUSE OF ACTION 

BREACH OF EXPRESS WARRANTY 

(On Behalf of the Multi-State Express Warranty Class)

147. Plaintiff incorporates the preceding paragraphs as if fully set forth herein. 

148. Plaintiff and the Multi-State Express Warranty Class members formed a contract 

with Defendant at the time they purchased its MAM® branded Orthodontic Pacifiers. As part of 

that contract, Defendant represents that the Orthodontic Pacifiers are “orthodontic,” as described 

above. This representation constitutes an express warranty and became part of the basis of the 

bargain between Plaintiff and the Multi-State Express Warranty Class members, on the one hand, 

and Defendant, on the other. 

149. Defendant made the above-described representations to induce Plaintiff and the 

Multi-State Express Warranty Class members to purchase the Orthodontic Pacifiers, and Plaintiff 

and the Multi-State Express Warranty Class members relied on the representations in purchasing 

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the Orthodontic Pacifiers. 

150. All conditions precedent to Defendant’s liability under the above-referenced 

contract have been performed by Plaintiff and the other Multi-State Express Warranty Class 

members. 

151. Defendant breached the express warranties about the Orthodontic Pacifiers 

because, as alleged above, the Orthodontic Pacifiers are not “orthodontic,” as warranted. In 

particular, by warranting that the Orthodontic Pacifiers are “orthodontic,” Defendant was 

representing that its Orthodontic Pacifiers promote healthy oral development and prevent teeth and 

jaw misalignment. But in reality, they result in worse outcomes for children of any age than not 

using a pacifier and result in oral and orofacial health outcomes that are no better than the use of 

conventional pacifiers, and thus are not “orthodontic” products. 

152. Defendant breached the following state warranty laws: 

a. Alaska Stat. section 45.02.313; 

b. A.R.S. section 47-2313; 

c. A.C.A. section 4-2-313; 

d. Cal. Comm. Code section 2313; 

e. Colo. Rev. Stat. section 4-2-313; 

f. Conn. Gen. Stat. section 42a-2-313; 

g. 6 Del. C. section 2-313; 

h. D.C. Code section 28:2-313; 

i. O.C.G.A. section 11-2-313; 

j. HRS section 490:2-313; 

k. Idaho Code section 28-2-313; 

l. 810 ILCS 5/2-313; 

m. Ind. Code section 26-1-2-313; 

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n. K.S.A. section 84-2-313; 

o. KRS section 355.2-313; 

p. 11 M.R.S. section 2-313; 

q. Mass. Gen. Laws Ann. ch. 106 section 2-313; 

r. Minn. Stat. section 336.2-313; 

s. Miss. Code Ann. section 75-2-313; 

t. R.S. Mo. Section 400.2-313; 

u. Mont. Code Anno. Section 30-2-313; 

v. Neb. Rev. Stat. section 2-313; 

w. Nev. Rev. Stat. Ann. section 104.2313; 

x. RSA 382-A:2-313; 

y. N.J. Stat. Ann. section 12A:2-313; 

z. N.M. Stat. Ann. section 55-2-313; 

aa. N.Y. U.C.C. Law section 2-313; 

bb. N.C. Gen. Stat. section 25-2-313; 

cc. N.D. Cent. Code section 41-02-30; 

dd. ORC Ann. section 1302.26; 

ee. 12A Okl. St. section 2-313; 

ff. Or. Rev. Stat. section 72-3130; 

gg. 13 Pa.C.S. section 2313; 

hh. R.I. Gen. Laws section 6A-2-313; 

ii. S.C. Code Ann. section 36-2-313; 

jj. S.D. Codified Laws, section 57A-2-313; 

kk. Tenn. Code Ann. section 47-2-313; 

ll. Tex. Bus. & Com. Code section 2.313; 

mm. Utah Code Ann. section 70A-2-313; 

nn. 9A V.S.A. section 2-313; 

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oo. Va. Code Ann. section 59.1-504.2; 

pp. Wash. Rev. Code Ann. section 62A.2-313; 

qq. W. Va. Code section 46-2-313; 

rr. Wyo. Stat. section 34.1-2-313. 

153. As a result of Defendant’s breaches of express warranty, Plaintiff and the other 

members of the Multi-State Express Warranty Class were damaged in the amount of the premium 

price they paid for the Orthodontic Pacifiers, in amounts to be proven at trial. 

154. On January 27, 2020, Plaintiff, on behalf of herself and the other members of the 

Multi-State Express Warranty Class, sent a notice letter to Defendant which provided notice of 

Defendant’s breach and demanded that it correct, repair, replace, or otherwise rectify the breach 

complained of herein. The letter also stated that if Defendant refused to do so, a complaint would 

be filed seeking damages. Defendant failed to comply with the letter. 

FIFTH CAUSE OF ACTION 

UNJUST ENRICHMENT 

(On Behalf of the Nationwide Class and Nationwide Subclass) 

155. Plaintiff incorporates the preceding paragraphs as if fully set forth herein. 

156. Plaintiff brings this action individually and on behalf of the Nationwide Class and 

Nationwide Subclass. 

157. Defendant’s unfair and unlawful contract includes, among other things, making 

false and misleading representations and omissions of material fact, as set forth in this Complaint. 

Defendant’s acts and business practices offend the established public policy of Illinois, as there is 

no societal benefit from false advertising, only harm. While Plaintiff and Class members were 

harmed at the point of purchase, Defendant was unjustly enriched by its misrepresentations and 

omissions. 

158. Plaintiff and Class members were harmed when purchasing Defendant’s 

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Orthodontic Pacifiers as a result of Defendant’s material representations and omissions, as 

described in this Complaint. Each Plaintiff and Class member purchased Defendant’s Orthodontic 

Pacifiers. Plaintiff and Class members have suffered injury in fact and lost money as a result of 

paying a premium price for the Orthodontic Pacifiers and by purchasing the Orthodontic Pacifiers 

at all for use by children 24 months or older, and as a result of Defendant’s unlawful, unfair, and 

fraudulent business practices. 

159. Defendant’s conduct allows Defendant to knowingly realize substantial revenues 

from selling its Orthodontic Pacifiers at the expense of, and to the detriment of, Plaintiff and Class 

members, and to Defendant’s benefit and enrichment. Defendant’s retention of these benefits 

violates fundamental principles of justice, equity, and good conscience. 

160. Plaintiff and Class members confer significant financial benefits and pay 

substantial compensation to Defendant for its Orthodontic Pacifiers, which are not as Defendant 

represents them to be. 

161. Under common law principles of unjust enrichment, it is inequitable for Defendant 

to retain the benefits conferred by Plaintiff’s and Class members’ overpayments. 

162. Plaintiff and Class members seek disgorgement of all profits resulting from such 

overpayments and establishment of a constructive trust from which Plaintiffs and Class members 

may seek restitution. 

JURY DEMAND 

163. Plaintiff demands a trial by jury of all claims in this Complaint so triable. 

REQUEST FOR RELIEF 

 WHEREFORE, Plaintiff, individually and on behalf of other members of the proposed 

Class, respectfully requests that the Court enter judgment in Plaintiff’s favor and against Defendant 

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 48 

as follows: 

A. Declaring that this action is a proper class action, certifying the Class as requested 

herein, designating Plaintiff as Class Representative and appointing the undersigned counsel as 

Class Counsel; 

B. Ordering payment of actual and punitive damages, restitution and disgorgement of 

all profits and unjust enrichment that Defendant obtained from Plaintiff and the Class members as 

a result of Defendant’s unlawful, unfair and fraudulent business practices; 

C. Ordering injunctive relief as permitted by law or equity, including enjoining 

Defendant from continuing the unlawful practices as set forth herein, and ordering Defendant to 

engage in a corrective advertising campaign; 

D. Ordering Defendant to pay attorneys’ fees and litigation costs to Plaintiff and the 

other members of the Classes; 

E. Ordering Defendant to pay both pre- and post-judgment interest on any amounts 

awarded; and 

F. Ordering such other and further relief as may be just and proper. 

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Dated: March 17, 2020 Respectfully submitted, 

CARLSON LYNCH, LLP

/s/ Katrina Carroll 

KATRINA CARROLL 

 kcarroll@carlsonlynch.com 

111 W. Washington Street, Suite 1240 

Chicago, Illinois 60602 

Telephone: (312) 750-1265 

Facsimile: (312) 750-1591 

 R. BRUCE CARLSON 

 bcarlson@carlsonlynch.com 

EDWIN J. KILPELA 

 ekilpela@carlsonlynch.com 

BRYAN A. FOX 

 bfox@carlsonlynch.com 

CARLSON LYNCH LLP

1133 Penn Avenue, 5th Floor 

Pittsburgh, Pennsylvania 15222 

Telephone: (412) 253-4996 

Facsimile: (412) 231-0346 

 MELISSA S. WEINER 

 mweiner@pswlaw.com 

JOSEPH C. BOURNE 

 jbourne@pswlaw.com 

PEARSON, SIMON & WARSHAW, LLP 

800 LaSalle Avenue, Suite 2150 

Minneapolis, Minnesota 55402 

Telephone: (612) 389-0600 

Facsimile: (612) 389-0610 

 PATRICK W. MICHENFELDER*

 pat@throndsetlaw.com 

THRONDSET MICHENFELDER LAW OFFICE 

One Central Avenue, Suite 203 

St. Michael, Minnesota 55376 

Telephone: (763) 515-6110 

Attorneys for Plaintiffs 

*Application for Pro Hac Vice Forthcoming

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