By Rachel Scharf

Law360 (February 19, 2021, 5:50 PM EST) -- W.B. Mason fleeced and endangered consumers by selling phony, overpriced 3M-branded respirators, according to a proposed class action lodged Thursday in the wake of a pandemic-era legal war waged by the country's largest N95 mask producer over counterfeit sales.

Rhode Island-based manufacturing business Atlantic Coast Creations Ltd. filed suit in Massachusetts federal court alleging that the office supply chain has been selling fake 3M respirators, known as the "gold standard" for fighting off 95% of virus particles, at nearly six times the normal price during the coronavirus crisis.

"Defendant's actions have exploited the current health emergency created by the COVID-19 pandemic by preying upon unsuspecting consumers who have been deceived, defrauded and misled into purchasing defendant's counterfeit masks," Atlantic Coast said. "Defendant's actions have potentially created a health and safety issue that has put consumers at risk of severe and life-threatening outcomes from the use of the counterfeit masks that may not live up to 95% filtration rate."

The lawsuit alleges that Brockton, Massachusetts-based W.B. Mason Co. Inc. duped customers into buying fake 1860 model N95 respirators affixed with sham 3M trademarks. The retailer's masks, which were not actually made by 3M, haven't been tested to determine their efficacy at filtering coronavirus particles — potentially endangering buyers who wore the respirators thinking they were protected from the virus, according to the complaint.

To make matters worse, Atlantic Coast said, W.B. Mason engaged in price-gouging by selling the fake masks at $8.75 apiece, 589% higher than the $1.75 price of 3M's real N95 respirators.

The lawsuit comes on the heels of a nationwide litigation campaign that 3M launched in April seeking to stop companies from both peddling counterfeit N95 masks and reselling their real products at inflated prices.

Some of the suits have resulted in court injunctions blocking the improper sales. Other disputes have led to settlements, including deals with an Amazon vendor and a former Marine who allegedly orchestrated a massive scheme to sell 900 billion nonexistent respirators.

Thursday's lawsuit adds a buyer perspective challenging the counterfeit mask sales, joining a number of proposed consumer class actions seeking to hold retailers such as eBay and Costco responsible for COVID-19-related price gouging.

According to the complaint, 3M posted a counterfeit notification letter to its website on Feb. 11 alerting customers to potential fraud related to some of its N95 products, including the 1860 model. Atlantic Coast alleges that two packages of masks it purchased from W.B. Mason contained the telltale signs of counterfeiting that 3M highlighted in the notice, including fake lot codes and seals claiming that the products were made in Peru.

Atlantic Coast is looking to represent a class of potentially thousands of consumers across the country who purchased W.B. Mason's masks. The lawsuit levies a single claim for unjust enrichment and is seeking actual damages, restitution and disgorgement of the company's profits from the mask sales, plus attorney fees.

Counsel for Atlantic Coast and representatives from W.B. Mason and 3M did not respond Friday to requests for comment.

Atlantic Coast is represented by John T. Longo of Citadel Consumer Litigation PC.

Counsel information for W.B. Mason was not immediately available.

The case is Atlantic Coast Creations Ltd. v. W.B. Mason Co. Inc., case number 1:21-cv-10278, in the U.S. District Court of the District of Massachusetts.

--Additional reporting by Bill Donahue. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.