Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 1 of 18Sheehan & Associates, P.C.Spencer Sheehan60 Cuttermill Rd Ste 409Great Neck, NY 11021-3104Telephone: (516) [email protected] States District CourtSouthern District of New York7:21-cv-00120Andrew Glancey, individually and on behalfof all others similarly situated,Plaintiff,- against -Class Action ComplaintTrek Bicycle Corporation,DefendantPlaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,which are based on personal knowledge:1.Trek Bicycle Corporation (“defendant”) manufactures, labels, markets and promotesbicycle helmets under the Bontrager WaveCel brand (“Product”) which purport to reduce theincidence and/or prevent the occurrence of concussions, relative to other similar bicycle helmets,sold to consumers from stores and websites, operated by third-parties and defendant.2.The Product was touted by defendant as the most significant advancement in cyclingin the last 30 years when it was released in early 2019.I.Introduction3.Over the past two decades, the public has become increasingly aware of the long-term neurologic risks associated with concussions due to the publicity and media attention onprofessional football.

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 2 of 184.A concussion is an injury to the brain that results in temporary loss of normal brainfunction.5.According to the CDC, up to 3.8 million people suffer concussions each year, themajority of which occur during competitive or recreational sports.6.According to The New York Times, emergency room visits by children andadolescents for brain injuries jumped more than 60% from 2001 to 2009.7.The CDC attributes this increase in visits to “the growing awareness among parentsand coaches, and the public as a whole, about the need for individuals with a suspected traumaticbrain injury (TBI) to be seen by a health care professional.”8.The increased awareness has improved procedures to properly recognize anddiagnose concussions through education and training.9.Young athletes who endure collisions are no longer told to “walk it off” or praisedfor “having their bell rung,” but evaluated according to various concussion protocols.10.A downside to this greater attention is the development and marketing of productsclaiming to provide greater protection from concussions – but at significantly higher cost.11.Since concussions are brain injuries, many people are willing to pay a price premiumbeyond a standard product, if the alternative has even the slightest chance of providing anyadditional protection.12.Defendant’s marketing and advertising claims for the Product were disseminated onthe packaging and labeling, through online channels including social media, websites including itsown, and/or through in-store placards and signage.2

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 3 of 1813.The Product is described as “A major advancement in the protection against cycling-related head injuries.”114.Defendant claimed the Product is “up to 48x more effective than traditional foamhelmets in protecting your head from injuries caused by certain cycling accidents.*”215.According to Defendant:WaveCel is a revolutionary helmet safety tech that’s available exclusively in theseBontrager helmets. Standard foam helmets are designed to protect against directimpacts. But WaveCel accounts for how most cycling accidents actually happen:ungracefully, with twists, turns, and angled impacts. These WaveCel road,mountain, commuter, and e-bike helmets are remarkably effective at preventingconcussions caused by common cycling accidents.16.In much of its marketing surrounding the Products, Defendant noticeably avoids theterm “concussion,” and employs a variety of euphemisms: It’s designed to be more effective than traditional foam helmets in protectingyour head from injuries caused by certain cycling accidents. You only get one brain – Protect it How it works – WaveCel works like a crumple zone that helps absorb the force ofimpact before it reaches your head. In order to protect your head and absorb theenergy created by an angled impact, WaveCel is designed to go through a threestep change in material structure. Steeped in science WaveCel is the brainchild of a biomechanical engineer and anorthopedic surgeon who've dedicated their lives to brain injury prevention. It'sthe first-ever helmet tech to receive funding from the US National Institute ofHealth.1Press Release, Trek and Bontrager's new helmet technology disrupts safety standards, March 19, 2019; BontragerWaveCel Helmets.2Id.3

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 4 of 18 Wear it for them [kids] A leading technology in the protection against cyclingrelated head injuries Protect what matters most Young riders carry precious cargo on every ride: acomplex, developing organ that gives them movement, imagination, memory,feeling, and more, and makes them the person and rider they are. Yep, we're talkingabout their brain. They only get one, and it's worth protecting.317.Reasonable consumers understand the terms defendant uses to promote the Productare intended to refer to concussions, even if Defendant does not explicitly say so.II.Defendant’s Reliance on its Study to Promote the Product as Effective in ConcussionReduction is Misleading18.As part of their effort to capture the largest share of the helmet market, defendantconducted what would appear to be a scientific test regarding the purported concussion protectivebenefits of the Product.419.Defendant marketed the Product as capable of reducing the incidence of concussionwhen compared to other bicycle helmets available for sale from other manufacturers that costsignificantly less.20.Defendant’s promise is false or deceptive because their Helmets do not provide thepromised reduced incidence of concussions.21.In fact, objective and reliable research shows that claims of concussion reductionrelated to bicycle helmets are not valid and are instead simply a marketing tool.22.Defendant’s marketing and advertising relies heavily on a study it conducted in3WaveCel Kids.Emily Bliven et al. "Evaluation of a novel bicycle helmet concept in oblique impact testing." Accident Analysis &Prevention 124 (2019): 58-65.44

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 5 of 18support of its Product’s ability to reduce concussions.23.Defendant’s claims and representations with respect to the connection between theProduct and concussions are false and misleading for several independent reasons.A. Concussion is a Clinical Diagnosis Without Uniform Definition or Determination24.Advertising a helmet as effective at preventing or reducing the risk of concussion ismisleading because there is no standardized definition for concussion.25.A concussion is not a structural injury to the brain but is rather a functional injury.26.As a result, concussions do not typically show up on MRI or CT scans.27.The global bodies – WHO and the ACRM – differ in their definition of concussion.528.Studies examining helmet usage and concussion focus on diverse, dissimilar factorsin establishing concussion, such as cranial pathology, neck injury, vestibular dysfunction, ornoncranial pathology.29.There is overlap between the definitions of mild traumatic brain injury (“mTBI”) andconcussion, even though they are separate intracranial injuries.30.Indications of a concussion include headache, lack of concentration, problems withmemory and judgment, sensitivity to light, lack of coordination and difficulty with balance.31.Significant effects of concussion can include Chronic Traumatic Encephalopathy(“CTE”) and Second Impact Syndrome.32.CTE is a progressive neurodegenerative disease caused by repetitive trauma to thebrain, which eventually leads to dementia and other neurological disorders.33.Second Impact Syndrome is a condition in which the brain swells rapidly after theinjured person suffers a second concussion before being able to properly heal from the first,5World Health Organization; American Congress of Rehabilitation Medicine.5

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 6 of 18causing substantial injury or death.34.The brain is encased in a hard skull, stabilized by supporting tissues, and covered onall sides by membranes and a layer of fluid.35.For this reason, it is often said that the brain “floats” inside the skull.36.Injuries to the brain occur when the head suddenly stops moving, but the brain, whichwas traveling at the same speed as the head, continues to move and strikes the inside of the skull,transferring part of the force to the brain.37.This occurs when a blow is given to the head and when the head is forced toaccelerate or decelerate rapidly.38.Because the brain is soft, when the brain strikes the inside of the skull, it brieflydeforms, leading to a concussion.39.A common analogy of for a concussion is an eggshell and a yolk.40.The brain is the yolk, nestled in its shell and further protected by the egg white.41.When the yolk moves quickly and violently, it smashes into the rigid shell – the sameas with the brain inside the skull.42.Accordingly, while the shell can be protected with a device that might prevent it fromcracking, this device cannot prevent the yolk inside the shell from being shaken and twisted.B. Not Only are Helmets not Proven to Effect Incidence of Concussion, They are Not Shownto have an Impact on Brain and Head Injury43.Credible studies demonstrating an effect of helmets on concussions do not exist forseveral reasons.44.First, a randomized double-blind controlled trial is not possible because this wouldrequire a very large number of cyclists and subjects would know whether they are wearing a helmetor not.6

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 7 of 1845.Nevertheless, the literature is replete with studies showing dramatic effects ofhelmets in reducing incidences of head injury.46.A seminal 1989 case control study concluded that helmets contributed to an 85percent reduction in risk of head injury and an 88 percent reduction in risk of brain injury.47.This study is deficient because it aggregated data on people involved in bicyclecrashes after they happened, regardless of how or why they occurred.48.It involved comparing the number of helmeted and non-helmeted cyclists with a headinjury from an accident, with the total number of cyclists with and without a helmet.49.However, the number of total cyclists that wear helmets is often not known, so thecontrol group consists of a group of hospital patients with cycling injuries other than head injuries.50.Meta-analyses have concluded other studies purporting to show a causal connectionbetween helmets and head injury are beset by methodological problems that inflate the effect ofhelmets on head injuries.51.Time-trend studies which show an increase or decrease in head injuries before,during and after helmet mandates are subject to confounding factors.52.This is because the presence of helmet requirements influences the types of peoplewho are bicyclists and their behaviors.53.For example, helmet mandates often deter the safer, less experienced riders and donot account for the decrease in safe riding behaviors due to helmet wearing.54.Of 11 publications based on injury reports, two studies evaluated bicycle helmet useregarding concussion and TBI rates.655.A recent study has concluded that bicycle helmets are ineffective at preventing6Je Yeong Sone et al. "Helmet efficacy against concussion and traumatic brain injury: a review." Journal ofneurosurgery 126.3 (2017): 768-781.7

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 8 of 18concussions, at the same time raising questions about their tendency to cause more bike accidentsand injuries due to factors such as risk compensation.756.Previous studies focused on concussions and helmets showed only a 14.9% declinein concussions between 6-17 year-olds in the US from 2006-2010 to 2011-2016, despite a 17.6%decline in cycling participation.57.One study concluded there was no relationship between the rate of helmet use andincidence of traumatic brain injury in California as a result of a mandatory helmet law between1992 and 2009.58.Another (retrospective) “cohort study on pediatric bicyclists reported a concussionrate of 19.4% in helmeted patients and a concussion rate of 37.4% in unhelmeted patients, but thedifference was not statistically significant between the 2 patient groups (p 0.0509).”59.Most studies showed that helmet use did not result in a statistically significantreduction in concussion incidence and symptoms.C. Defendant’s Study Includes Non-Standard Assumptions Contradicted by Real WorldStandards60.Defendant’s study is based on the increased academic and medical attention given torotational acceleration as a cause of concussions.61.According to this theory, the standard measure of helmet effectiveness – linearacceleration – is ill-equipped for helmets that prevent concussions, as opposed to other headinjuries like skull fracture.62.It is posited that helmets may be less effective against concussion than more severeforms of TBI due to the different biomechanics of these injuries.7Edward J. Alfrey et al. "Helmet Usage Reduces Serious Head Injury Without Decreasing Concussion After BicycleRiders Crash." Journal of Surgical Research 257 (2020): 593-596.8

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 9 of 1863.However, little research and understanding have been developed on the specific rolesof linear and angular head acceleration in concussion.64.Generally, concussion is “induced by low-energy linear and rotational accelerationsthat cause more diffuse, distributed impact loading and peak ICP than the brain tissue can tolerate,resulting in damage to the microscopic structures of the brain and temporary onset of neurologicalimpairment.”65.More severe forms of TBI are typically caused by high-energy focal forces loadingonto a localized region of the brain, resulting in injuries such as penetrating TBI and depressedskull fractures.66.Helmets are designed to prevent extreme forms of brain injury such as skull fracturewhich often results in death.67.The Product’s emphasis on being different from “traditional helmets” whichsupposedly do not protect against angular impacts is misleading.68.Standard helmets are designed to reduce linear acceleration, which will “also reduceangular acceleration which is a result of oblique impacts.”69.Novel helmet technologies seek to cast doubt on the ability of current helmets toreduce the risk of concussion.70.Defendant’s study compared its Product, which uses “a collapsible structure thatseeks to reduce the shear stiffness of the helmet to provide a rotational suspension”(“WAVECEL”), to one that uses a slip interface inside the helmet (“MIPS”), to a control, standardhelmet.71.It is theorized that the WaveCel and MIPS helmets provide superior concussionprotection because they reduce rotational acceleration by permitting sliding between the helmet9

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 10 of 18and head during impact.72.This overlooks that a typical bicycle helmet is loosely coupled to the rider’s head,such that a slip-plane or collapsible cellular structure does not add significant sideways movementin an impact.73.In a real-world impact, a helmet will slide against a rider’s head.74.Wide varieties of helmets were unable to protect against the impacts of simulateddirectional forces that would induce concussion in human subjects.D. The Authors of the Study have a Financial Interest in the Product75.One or more of the study’s authors has a direct financial interest in the WaveCeltechnology, licensed exclusively by Defendant.76.These financial relationships are a significant potential conflict of interest that wassubsequently raised by many commentators regarding the study.77.In advertisements and marketing copy which trumpet the purported success of thestudy, Defendant failed to disclose to consumers these significant potential conflicts of interest.E. To the Extent it is Accepted that Bicycle Helmets Can Reduce Concussion, Defendant’sProduct is Only Marginally Superior to Helmets Significantly Less in Price78.Even accepting the Product reduces the incidence of concussions, the benefit offeredis not equivalent to the price premium charged.79.For example, among third-parties that seek to evaluate bike helmets for effectivenessagainst concussions, Defendant’s Product with the WaveCel technology is rated equal to or onlymarginally better than a helmet it sells which incorporates MIPS, though the WaveCel issignificantly more expensive.80.Therefore, Defendant’s representation of the Product as a breakthrough in10

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 11 of 18concussion reduction is misleading, because the benefit is imperceptible in contrast to the largeprice difference.F. Defendant’s Claim that the Product is “up to” 48 times more Effective in Providing HeadInjury Protection than Competitors is False, Deceptive and Misleading81.Defendant prominently claims on its website and in marketing materials that theProduct provides “up to” 48 times more head injury protection than competitor products.82.This statement is false and misleading.83.First, the “48x” figure was based on an accident which occurs at a much higher speedthan most bicyclists ever reach.84.This means the “up to” language will have no relevance for consumers and its onlyrelevance is to facilitate the “48x” claim.85.Second, the study was conducted with non-standard head and neck models.86.Third, the disclosure accompanying the claim citing to the study is inconspicuousand does not disclose the issues with the study.87.Fourth, the comparative effectiveness of the Product was based on specific anglesand potential impacts that are inconsistent with real world bicycle accidents.G. Defendant’s Study did not Use any of the Helmets it Promotes88.Defendant’s reliance on the study in making its claims is false and misleadingbecause none of its actual helmets were used in the study.89.III.Instead, Scott ARX helmets were modified to include the WaveCel component.Conclusion90.Defendant misrepresented the Product through affirmative statements.91.Defendant had a duty to disclose the truth about the Product because: (1) the facts at11

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 12 of 18issue involve an issue of safety; (2) it has superior or exclusive knowledge of material facts notknown to plaintiff; (3) it actively concealed material facts from plaintiff; and (4) it made partialrepresentations but also suppressed and failed to disclose other material facts.92.Defendant sold more units of the Product and at higher prices than it would have inthe absence of the misrepresentations, resulting in additional profits at the expense of consumerslike plaintiff.93.The value of the Product that plaintiff purchased and consumed was materially lessthan its value as represented by defendant.94.Had plaintiff and class members known the truth, they would not have bought theProduct or would have paid less for it.95.The Product is sold for a price premium compared to other similar products, no lessthan 6.49 for pack of three, higher than it would otherwise be sold for absent the misleadingrepresentations.Jurisdiction and Venue96.Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28U.S.C. § 1332(d)(2)97.Under CAFA, district courts have “original federal jurisdiction over class actionsinvolving (1) an aggregate amount in controversy of at least 5,000,000; and (2) minimaldiversity[.]” Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).98.Plaintiff Andrew Glancey is a citizen of New York.99.Defendant Trek Bicycle Corporation is a Wisconsin corporation with a principalplace of business in Waterloo, Jefferson County, Wisconsin.100. Diversity exists because plaintiff Andrew Glancey and defendant are citizens of12

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 13 of 18different states.101. Upon information and belief, sales of the Product and statutory and other monetarydamages, exceed 5 million during the applicable statutes of limitations, exclusive of interest andcosts.102. Venue is proper because a substantial part of the events or omissions giving rise tothe claim occurred here – plaintiff’s purchase of the Product.103. Venue is further supported because many class members reside in this District.Parties104. Plaintiff Andrew Glancey is a citizen of Staatsburg, Dutchess County, New York.105. Defendant Trek Bicycle Corporation is a Wisconsin corporation with a principalplace of business in Waterloo, Wisconsin, Jefferson County.106. During the relevant statutes of limitations for each cause of action alleged, plaintiffpurchased the Product within his district and/or State in reliance on the representations andomissions of the Product.107. Plaintiff bought the Product at Wheel and Heel, 2658 East Main Street WappingersFalls NY 12590, in 2020.108. Plaintiff bought the Product at or exceeding the above-referenced price because heliked the product for its intended use and relied upon its representations it could reduce theincidence and/or prevent concussive injuries in riding a bicycle.109. Plaintiff bought the Product instead of other, less expensive similar helmets.110. Plaintiff would not have purchased the Product in the absence of Defendant’smisrepresentations and omissions.111. The Product was worth less than what Plaintiff paid for it and he would not have paidas much absent Defendant's false and misleading statements and omissions.13

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 14 of 18112. Plaintiff intends to, seeks to, and will purchase the Product again when he can do sowith the assurance that Product's labeling is consistent with its composition.Class Allegations113. The class will consist of all purchasers of the Product who reside in New York, NewJersey, Pennsylvania and Maryland during the applicable statutes of limitations.114. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to amonetary relief class.115. Common questions of law or fact predominate and include whether defendant’srepresentations were and are misleading and if plaintiff and class members are entitled to damages.116. Plaintiff's claims and basis for relief are typical to other members because all weresubjected to the same unfair and deceptive representations and actions.117. Plaintiff is an adequate representative because his interests do not conflict with othermembers.118. No individual inquiry is necessary since the focus is only on defendant’s practicesand the class is definable and ascertainable.119. Individual actions would risk inconsistent results, be repetitive and are impracticalto justify, as the claims are modest relative to the scope of the harm.120. Plaintiff's counsel is competent and experienced in complex class action litigationand intends to protect class members’ interests adequately and fairly.121. Plaintiff seeks class-wide injunctive relief because the practices continue.New York General Business Law (“GBL”) §§ 349 & 350(Consumer Protection Statutes)122. Plaintiff incorporates by reference all preceding paragraphs.123. Plaintiff and class members desired to purchase a product provided the benefits14

Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 15 of 18touted by Defendant.124. Defendant’s acts and omissions are not unique to the parties and have a broaderimpact on the public.125. Defendant misrepresented the Product through its statements, comparisons,omissions, ambiguiti

regarding concussion and TBI rates. 6 55. A recent study has concluded that bicycle helmets are ineffective at preventing 6 Je Yeong Sone et al. "Helmet efficacy against concussion and traumatic brain injury: a review." Journal of neurosurgery 126.3 (2017): 768-781. Case 7:21-cv-00120 Document 1 Filed 01/07/21 Page 7 of 18