Catherine Altamura et al v. Loreal USA Inc et al
Filing
108
MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Plaintiffs' Motion for Class Certification 91 is GRANTED in part and DENIED WITHOUT PREJUDICE in part. Plaintiffs may make a renewed motion to certify the California class upon submission of expert testimony supporting their proposed method of awarding relief on a classwide basis. See document for details. Court Reporter: Laura Elias. (gk)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
Present: The Honorable
Date
July 1, 2013
CHRISTINA A. SNYDER
CATHERINE JEANG
Deputy Clerk
LAURA ELIAS
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants
David Parisi
Grace Tersigni
Dennis Ellis
Katherine Murray
Proceedings:
I.
MOTION TO CERTIFY CLASS (Docket #91, filed May 6, 2013)
INTRODUCTION
On February 3, 2011, plaintiffs Jill Guido, a California resident, and Natalie
Lefebvre, a Texas resident, commenced this action in this Court by filing a complaint
against defendants L’Oreal, USA, Inc. and L’Oreal USA Products, Inc. (collectively
“L’Oreal”) in Case No. CV 11-1067 CAS (JCx). Meanwhile, on February 4, 2011,
plaintiffs Catherine Altamura, a California resident, and Lisa Pearly, a New York
resident, filed a similar complaint in the United States District Court for the Southern
District of New York against the same defendants. On May 5, 2011, Altamura and
Pearly voluntarily dismissed the New York action and refiled the action in this Court on
June 30, 2011. See Case No. CV 11-5465 CAS (JCx). By order dated September 19,
2011, the Court consolidated the two cases for pretrial purposes. Additionally, the Court
granted plaintiffs’ motion for class certification on May 7, 2012, but partially
reconsidered this motion on June 25, 2012, and found that the existing class
representatives did not satisfy the typicality requirement of Federal Rule of Civil
Procedure 23(a).
On September 21, 2012, plaintiffs named Brittany Baisley and Stephanie Germann
as new proposed class representatives for a putative New York Class, and named Juliane
Hayes as the new proposed class representative for a putative California Class. Dkt. #61.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 1 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
Additionally, pursuant to a stipulation by the parties, plaintiffs submitted a First
Consolidated Class Action Complaint (“FCAC”) on November 16, 2012. The FCAC
asserts claims on behalf of putative classes of California and New York residents who
purchased a L’Oreal hair care product known as Garnier Fructis Sleek & Shine Anti-Frizz
Serum (“Serum”). The FCAC alleges seven claims for relief: (1) breach of implied
warranty of merchantability, (2) breach of implied warranty of fitness, (3) violation of
California Business and Professions Code § 17200 (“UCL”), (4) violation of the
California Consumer Legal Remedies Act (“CLRA”), California Civil Code § 1750, (5)
false advertising under California Business and Professions Code § 17500 (“FAL”), (6)
deceptive acts and practices pursuant to New York General Business law § 349, and (7)
false advertising pursuant to New York General Business Law § 350.
On May 6, 2013, plaintiffs filed a motion to certify a class. L’Oreal filed an
opposition on May 28, 2013, and plaintiffs filed a reply on June 13, 2013. After
considering the parties’ arguments, the Court finds and concludes as follows.
II.
BACKGROUND
Serum is a hairstyling product manufactured, distributed, and marketed by L’Oreal
for sale in retail outlets nationwide. Declaration of Grace Tersigni (“Tersigni Decl.”)
Exh. 1, at 24–25 (deposition of Garnier Senior VP Katheryn Peeler). Serum was
launched in 2004 for a suggested retail price of $5.99 per bottle, which has remained
constant throughout the product’s existence in the market. Id. at 69:9–12. During the
Class Period, defined below, L’Oreal sold approximately 9.9 million units of Serum
throughout the nation. Id., Exh. 2 at 1.
Serum’s label and packaging has changed since its introduction to the market.
When it was launched in 2004, Serum was sold in a clear green round-shaped bottle with
a label that included a flammability warning written in green text. Near the end of 2006,
Garnier removed denatured alcohol as an ingredient in Serum in order to comply with
California’s Volatile Organic Compound regulations, Cal. Code Regs. tit. 17, § 94509(a).
Declaration of Dennis Ellis (“Ellis Decl.”), Exh. E at 56:3–17 (Peeler deposition). At the
beginning of 2007, Garnier altered the bottle’s shape, from a round shape to a bell shape,
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
and removed the flammability warning. Id. at 61:21–62:19. Other than this change in
Serum’s packaging, the labeling is uniform, and does not vary from bottle to bottle.
Plaintiffs contend that Serum is flammable, even though the denatured alcohol has
been removed, and that the product should been sold with a flammability warning.
L’Oreal, however, argues that because the alcohol has been removed from Serum, it no
longer requires a flammability warning.
As stated above, the new proposed class representatives are Brittany Baisley
(“Baisley”), Juliane Hayes (“Hayes”), and Stephanie Germann (“Germann”). Plaintiff
Hayes lives in California, and purchased two bottles of Serum in California between 2010
– 2011. Hayes Decl. ¶ 2 – 3. Baisley and Germann are New York residents, and both
purchased the product in New York several times after February 2008. Baisley Decl. ¶ 2
– 3; Germann Decl. ¶ 2 – 3. Additionally, plaintiff Germann purchased a bottle of Serum
prior to 2008 that contained what Germann characterizes as “a tiny and hidden
flammability warning” that “was inconspicuous and blended with everything else on the
page.” Germann Decl. ¶ 5.1 All three plaintiffs state that they either would not have
purchased Serum or would have paid substantially less for the product if they had known
it was flammable. Germann Decl. ¶ 6; Hayes Decl. ¶ 6; Baisley Decl. ¶ 7. Plaintiffs also
state that after they learned of Serum’s flammability, they stopped using the product.
Germann Decl. ¶ 7; Hayes Decl. ¶ 7; Baisley Decl. ¶ 8.
Plaintiffs seek to represent the following classes:
California Class: All individuals who purchased Garnier Fructis Sleek & Shine
Anti-Frizz Serum in the state of California at any time during the period of
February 2, 2008 to the present.
1
Prior to her deposition in this case, Germann did not realize that the pre-2008
bottle of Serum she had purchased contained a flammability warning. See Germann
Decl. ¶ 5.
CV-11-5465 (07/13)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
New York Class: All individuals who purchased Garnier Fructis Sleek & Shine
Anti-Frizz Serum in the state of New York at any time during the period of
February 4, 2008 to the present.
III.
LEGAL STANDARD
“Class actions have two primary purposes: (1) to accomplish judicial economy by
avoiding multiple suits, and (2) to protect rights of persons who might not be able to
present claims on an individual basis.” Haley v. Medtronic, Inc., 169 F.R.D. 643, 647
(C.D. Cal. 1996) (citing Crown, Cork & Seal Co. v. Parking, 462 U.S. 345 (1983)).
Federal Rule of Civil Procedure 23 governs class actions. A class action “may be
certified if the trial court is satisfied after a rigorous analysis, that the prerequisites of
Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147,
161 (1982).
To certify a class action, plaintiffs must set forth facts that provide prima facie
support for the four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3)
typicality; and (4) adequacy of representation. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
---, ---, 131 S.Ct. 2541, 2548 (2011); Dunleavy v. Nadler (In re Mego Fir. Corp. Sec.
Litig.), 213 F.3d 454, 462 (9th Cir. 2000). These requirements effectively “limit the class
claims to those fairly encompassed by the named plaintiff’s claims.” Falcon, 457 U.S. at
155 (quoting Califano v. Yamasaki, 442, U.S. 682, 701 (1979)).
If the Court finds that the action meets the prerequisites of Rule 23(a), the Court
must then consider whether the class is maintainable under Rule 23(b). Dukes, 131 S.Ct.
at 2548. Rule 23(b)(3) governs cases where monetary relief is the predominant form of
relief sought, as is the case here. A class is maintainable under Rule 23(b)(3) where
“questions of law or fact common to the members of the class predominate over any
questions affecting only individual members,” and where “a class action is superior to
other available methods for fair and efficient adjudication of the controversy.” Fed. R.
Civ. P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry tests whether the proposed
classes are sufficiently cohesive to warrant adjudication by representation.” Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (citing Amchem Products, Inc. v.
CV-11-5465 (07/13)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
Windsor, 521 U.S. 591 (1997)). The predominance inquiry measures the relative weight
of the common to individualized claims. Id. “Implicit in the satisfaction of the
predominance test is the notion that the adjudication of common issues will help achieve
judicial economy.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir.
2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). In
determining superiority, the court must consider the four factors of Rule 23(b)(3): (1) the
interests members in the class have in individually controlling the prosecution or defense
of the separate actions; (2) the extent and nature of any litigations concerning the
controversy already commenced by or against members of the class; (3) the desirability
or undesirability of concentrating the litigation of the claims in the particular forum; and
(4) the difficulties likely encountered in the management of a class action. Id. at
1190–1993. “If the main issues in a case require the separate adjudication of each class
member’s individual claim or defense, a Rule 23(b)(3) action would be inappropriate.”
Id. (citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1778 at 535–39 (2d. 3d. 1986)).
More than a pleading standard, Rule 23 requires the party seeking class
certification to “affirmatively demonstrate . . . compliance with the rule—that is he must
be prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc.” Dukes, 131 S.Ct. at 2551. This requires a district court to
conduct “rigorous analysis” that frequently “will entail some overlap with the merits of
the plaintiff’s underlying claim.” Id.
IV.
ANALYSIS
A.
Rule 23(a) Requirements
1.
Numerosity
Rule 23(a)(1) requires the class to be so numerous that joinder of individual class
members is impracticable. See Fed. R. Civ. P. 23(a)(1). Here, the proposed California
and New York classes are sufficiently numerous. During the Class Periods, which are
essentially identical, L’Oreal manufactured and shipped approximately 9.9 million units
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
of Serum nationwide. Tersigni Decl., Exh. 2. According to 2010 U.S. census data,
California residents make up 12 percent of the U.S. population, while New York
residents make up 8.1 percent of the U.S. population. See id., Exh. 15. Assuming
L’Oreal sells Serum proportionately across the country, it can be estimated that
approximately 1.1 million units were sold in California and 800,000 units were sold in
New York. Although defendants argue that evidence about the amount of Serum sold
does not demonstrate that the class satisfies the numerosity requirement, this type of
evidence is commonly used to determine whether numerosity is satisfied. See Arnold v.
United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994) (extrapolating
census data in order to find numerosity); Colorado Cross-Disability Coalition v. Taco
Bell Corp., 184 F.R.D. 354, 358 (D. Colo. 1999) (“Census data are frequently relied on
by courts in determining the size of proposed classes.”). Accordingly, the Court finds
that the numerosity requirement is satisfied.
2.
Commonality
“Commonality requires the plaintiff to demonstrate that the class members have
suffered the same injury . . . [and] [t]heir claims must depend upon a common contention
. . . of such nature that it is capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551 (internal quotation marks
and citations omitted). “What matters to class certification . . . is not the raising of
common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding
to generate common answers apt to drive the resolution of the litigation.” Id.
The gravamen of plaintiffs’ claims in this case is that Serum should have, but did
not, contain a flammability warning. See Dkt. #85. Accordingly, the commonality
requirement is satisfied due to the presence of the following common factual and legal
questions:
•
CV-11-5465 (07/13)
Whether Serum’s packaging and marketing materials are unlawful, unfair,
deceptive, or misleading to reasonable consumers under the UCL, CLRA,
and GBL;
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
•
Whether the labels that instructed consumers to use “as much [Serum] as
needed for your hair type,” “do not rinse,” and “[f]or the sleekest look, style
using brush and blowdryer” are deceptive to the average reasonable
consumer in light of Serum’s alleged flammability and the lack of a
flammability warning;
•
Whether a reasonable consumer would expect that Serum would contain a
warning as to its flammability pursuant to the requirement of the Food, Drug
and Cosmetic Act’s regulations, 21 C.F.R. 740.1, that hazardous cosmetics
contain appropriate labels;
•
Whether plaintiffs had a reasonable expectation that Serum was not
dangerous around flames or other sources of heat;
•
Whether L’Oreal tested Serum “under conditions of customary use and
reasonably foreseeable conditions of misuse” under the FDA’s labeling
guidelines;
•
Whether L’Oreal had a duty to disclose the alleged flammability of Serum;
•
Whether it was foreseeable to L’Oreal that consumers would use Serum near
heated sources;
•
Whether L’Oreal concealed material information regarding the flammability
of Serum from plaintiffs;
•
Whether Serum is in fact flammable; and
•
What the true market value of Serum is.
Because Serum was packaged and sold uniformly across the nation, these questions
can be resolved “in one stroke.” Moreover, answers to these questions are “central to the
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 7 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
validity” of each class member’s claims because, as discussed in more detail in the
Court’s predominance analysis below, each class member’s claim hinges on (1) whether a
reasonable consumer would have been deceived by Serum’s packaging, (2) what
information L’Oreal knew or had access to regarding Serum’s flammability, and (3) what
the true market value of Serum was given its alleged flammability. Dukes, 131 S.Ct. at
2551; see section IV.B.1, infra.
L’Oreal’s arguments to the contrary are unpersuasive. Sanchez v. Wal Mart
Stores, Inc., 2009 WL 1514435, at *3 (E.D. Cal. 2009), upon which L’Oreal chiefly
relies, contravenes California law. There, the court ruled that putative class members’
individual reasons for purchasing a product bears on commonality under the UCL. Id. at
*4. However, that reasoning appears to be inconsistent with the California Supreme
Court’s reasoning in In re Tobacco II, 46 Cal. 4th 298, 312, 327 (2009), which was
handed down just ten days before Sanchez. Tait v. BSH Home Appliances Corp., 289
F.R.D. 466, 481 (C.D. Cal. 2012) (“To the extent the holding in Sanchez was ever
accurate—which this Court very much doubts—Sanchez is certainly no longer good law .
. .”). Additionally, the Ninth Circuit has followed In re Tobacco II with regard to the
question of whether reliance must be shown as to absent class members under the UCL.
See Mazza v. American Honda Motor Co., Inc., 666 F.3d 581, 595 (9th Cir. 2012)
(“Under California’s UCL, restitution is available to absent class members without
individualized proof of deception, reliance, or injury.”).
The Court therefore concludes that the commonality requirement has been
satisfied.
3.
Typicality
“The purpose of the typicality requirement is to assure that the interest of the
named representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover
North Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). “The test of typicality ‘is whether
other members have the same or similar injury, whether the action is based on conduct
which is not unique to the named plaintiffs, and whether other class members have been
injured by the same course of conduct.’” Costco, 657 F.3d at 984 (quoting Hanlon, 976
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
F.3d at 508)). Thus, typicality is satisfied if the plaintiffs’ claims are “reasonably coextensive with those of absent class members; they need not be substantially identical.”
Hanlon, 150 F.3d at 1020. Additionally, where a class representative is subject to unique
defenses, typicality may not be satisfied. Hanon v. Dataproducts Corp., 976 F.2d 497,
508 (9th Cir. 1992).
Each putative class representative purchased Serum during the class period in
either New York or California, and has stated that she would not have purchased Serum
at its historical market price if she had known it was flammable. The requirement of
typicality is, therefore, prima facie met for each proposed class representative. L’Oreal
argues, however, that additional facts about each representative show that they are subject
to unique defenses.
According to L’Oreal, Germann is subject to unique defenses because she
purchased Serum prior to 2007, and therefore purchased at least one bottle of Serum
containing a flammability warning label. Germann testified at her deposition that she not
only purchased a pre-2007 bottle of Serum, but that at the time of purchase, she failed to
notice a flammability warning label, even though Serum bottles marketed at that time
carried warnings. Germann Decl. ¶ 5; Germann Depo. at 153:18 – 25. L’Oreal thus
could argue at trial that because Germann purchased a pre-2007 bottle of Serum without
noticing a flammability warning, Germann would have purchased post-2007 bottles of
Serum at the $6 market price even if they had contained a flammability warning. If
credited by a trier of fact, a defense of non-reliance might well succeed, in which case her
individual claims under the New York GBL sections 349 – 350 might fail. See
Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *22 (E.D. N.Y. 2010) (describing
elements of a claim under New York GBL §§ 349 – 350). Additionally, her purchase of a
pre-2007 bottle shows that she has been exposed to a warning label on a Serum bottle,
whereas many class members who only purchased Serum during the class period likely
have never seen a flammability warning on any version of the product. This divergence
between her experience and the experience of several class members renders her claims
atypical. Hanon 976 F.2d at 508 (concluding that typicality was not satisfied because the
named plaintiff’s “unique background and factual situation require[d] him to prepare to
meet defenses that are not typical of the defenses which may be raised against other
CV-11-5465 (07/13)
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Page 9 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
members of the proposed class”). Consequently, Germann is not an appropriate class
representative.
L’Oreal argues that Baisley is uniquely subject to defense of laches because, prior
to speaking with plaintiffs’ counsel, Baisley purportedly did not know that Serum was
flammable, and generally knew little about the facts underlying this case. “Laches is
defined as such neglect or omission to assert a right as, taken in conjunction with the
lapse of time, more or less great, and other circumstances causing prejudice to an adverse
party, operates as a bar in a court of equity.” Matter of Barabash, 31 N.Y.2d 76, 21
(1972). L’Oreal cites no authority for the proposition that a claim can be barred by the
defense of laches because the plaintiff only learns about the facts underlying her claim
after speaking with counsel, nor has L’Oreal explained how it has suffered prejudice from
any alleged delay. Consequently, L’Oreal has not offered a persuasive reason why
Baisley’s claims are not typical of the class.
Finally, L’Oreal argues that plaintiff Hayes is subject to unique defenses because,
purportedly, Hayes stated in her deposition that she might have bought Serum even if it
had contained a flammability warning, and is not pursuing this case in order to seek a
refund of Serum’s purchase price. These arguments mischaracterize Hayes’ deposition
testimony. First, Hayes never testified that she might have bought Serum had she known
it was flammable. Hayes’ testified that she considers a flammability warning on a hair
product to be a relevant consideration in her decision regarding whether to purchase the
product. Hayes Depo. at 175:23 – 176:3. While she may have been somewhat tentative
when responding to questions at her deposition, she never stated that she would have
purchased a flammable product. Moreover, in a declaration submitted in connection with
plaintiffs’ class certification motion, Hayes makes clear that she would not have
purchased Serum if she had known it was flammable. Hayes’ Decl. ¶ 7. Second, Hayes
never stated that she was not seeking a refund of Serum’s purchase price. At Hayes’
deposition, counsel for L’Oreal asked Hayes “Well, what do you want to get out of this
case?” Hayes Depo. at 190:6 – 7. Hayes explained that due to the low purchase price of
Serum, she, understandably, was not motivated to act as a class representative due to the
prospect of a large monetary recovery for herself. See AT&T Mobility v. Concepcion,
131 S.Ct. 1740, 1761 (2011) (Breyer, J., dissenting) (“[O]nly a lunatic or fanatic sues for
CV-11-5465 (07/13)
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Page 10 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
$30.”) (quoting Carnegie v. Household Intl’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004)).
Instead, she explained that she wanted “the proper warning labels to be there just so that
people know if there’s a danger with what they’re using or not.” Id. at 191:10 – 12.
Nothing about this testimony shows that Hayes’ claims are atypical of the class. It
merely reflects the practical reality in many consumer class actions: the infeasibility and
lack of motivation to pursue individual cases due to small damages.
Therefore, plaintiffs Hayes and Baisley have claims typical of the class, and the
requirement of typicality is satisfied.
4.
Adequacy
To establish adequacy of representation, the issue is whether “the named plaintiffs
and their counsel have any conflicts of interest with other class members” and whether
“the named plaintiffs and their counsel will prosecute the action vigorously on behalf of
the class.” Hanlon, 150 F.3d at 1020.
Here, there is no dispute regarding whether the interests of plaintiffs and the class
are aligned. L’Oreal does, however, contest whether plaintiffs and their counsel will
vigorously litigate the interests of the class. Specifically, L’Oreal argues that the Court
should not certify the class because the named plaintiffs lack personal knowledge about
the litigation, and only sought to become plaintiffs after being contacted by counsel.
Relying on Bodner v. Oreck Direct, LLC, L’Oreal argues that plaintiffs’ counsel are the
“driving force” behind the litigation, and that this “cart before the horse approach to
litigation is not the proper mechanism for the vindication of legal rights.” 2007 WL
1223777, at *2.
“Rule 23 should not be used to defeat the ends of justice by facilitating the
dismissal of class action complaints involving unsophisticated named plaintiffs.” Buus v.
WAMU Pension Plan, 251 F.R.D. 578, 587 (W.D. Wash. 2008); Rankin v. Rots, 220
F.R.D. 511, 521 (E.D. Mich. 2004). A representative plaintiff’s lack of detailed,
comprehensive knowledge about the legal technicalities of the claims asserted in class
litigation therefore provides no basis on which to deny a motion for class certification.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 430 (4th Cir. 2003) (“It is hornbook
law . . . that in a complex lawsuit, such as one in which the defendant’s liability can be
established only after a great deal of investigation and discovery by counsel against a
background of legal knowledge, the representative need not have extensive knowledge of
the facts of the case in order to be an adequate representative.”); Baffa v. Donaldson,
Lufkin & Jenrette Securities Corp., 222 F.3d 52, 61 (2d. Cir. 2000). Rudimentary
knowledge of the claims asserted suffices to satisfy adequacy. See Rankin, 220 F.R.D. at
521. Gaps in a class representatives’ knowledge about the case may make his or her
claims subject to a unique defense, but this concern is cognizable under the typicality
prong of the analysis, not adequacy. Baffa, 222 F.3d at 61.
The class representatives must, however, have some knowledge of the case.
“Individuals are not adequate representatives of a class when it appears that they have
abdicated any role in the case beyond that of furnishing their names as plaintiffs.” Pryor
v. Aerotek, 278 F.R.D. 516, 529 – 530 (C.D. Cal. 2011); see also Welling v. Alexy, 155
F.R.D. 654, 658 (N.D. Cal. 1994). Without involvement in the case and a basic
knowledge of the facts, a class representative is unable to make informed decisions about
the litigation or guard against potential conflicts of interest involving class counsel.
Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1077 – 78 (2d Cir. 1995).
Here, there is no indication that the proposed class representatives are ignorant
about either the basic facts underlying the case or their duties as class representatives.
While they may have first learned about Serum’s alleged flammability from plaintiffs’
counsel, this is not disqualifying, especially in light of counsel’s explanation that the key
facts underlying this case were only uncovered after costly testing. Consequently, there
is no basis on which to conclude that the proposed class representatives’ knowledge
regarding the facts of the case renders them inadequate.
Additionally, the fact that plaintiffs were solicited by counsel does not undermine a
finding of adequacy. There is nothing inherently improper with the recruitment of class
representatives, and where existing named plaintiffs become unavailable or unsuitable,
allowing the recruitment of replacements is even recommended. Manual for Complex
Litigation (Fourth) § 21.26; In re Vitamin C Antitrust Litigation, 279 F.R.D. 90, 108
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 12 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
(E.D. N.Y. 2012). Moreover, even where solicitation of clients is improper under rules of
professional responsibility, denial of class certification is not an appropriate remedy.
Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1324 (11th Cir. 2008).
The adequacy requirement of Rule 23(a) is therefore satisfied.
B.
Rule 23(b) Requirements
Under Rule 23(b)(3), class certification is appropriate “if Rule 23(a) is satisfied”
and if “the court finds that [1] the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that [2] a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3); Local Joint Exec. Bd. of Culinary/Bartender Trust
Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162–63 (9th Cir. 2001).
1.
Predominance
The predominance inquiry “trains on legal or factual questions that qualify each
class member’s case as a genuine controversy.” Amchem Prods, Inc. v. Windsor, 521
U.S. 591, 625 (1997). “When one or more of the central issues in the action are common
to the class and can be said to predominate,” a class action will be considered proper
“even though other matters will have to be tried separately.” Gartin v. S&M NuTec LLC,
245 F.R.D. 429, 435 (C.D. Cal. 2007). “Because no precise test can determine whether
common issues predominate, the Court must pragmatically assess the entire action and
the issues involved.” Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 489 (E.D.
Cal. 2006). “Implicit in the satisfaction of the predominance test is the notion that the
adjudication of common issues will help achieve judicial economy.” See Valentino v.
Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). “Predominance is a test readily
met in certain cases alleging consumer or securities fraud or violations of the antitrust
laws.” Amchem, 521 U.S. at 625.
For the reasons set forth below, the Court finds that common issues predominate
over individualized issues regarding liability and damages for the New York class, but
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 13 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
not regarding damages for the California class. As stated above, the fundamental
contention underlying plaintiffs’ claims is that Serum should have contained a
flammability warning. Whether L’Oreal’s alleged omission of a flammability warning
violated the UCL, CLRA, FAL, Song-Beverly Act, and GBL presents common factual
and legal issues. Due to the lack of expert testimony supporting plaintiffs’ theory of
classwide relief, however, certification is improper at this stage for the California class,
as explained in more detail below.
Because the predominance requirement is “more demanding” than Rule 23(a)’s
commonality requirement, the Court determines, for each claim for relief, whether
common questions predominate. Amchem, 521 U.S. at 624.
a.
Liability
Plaintiffs have asserted three categories of claims for relief: (1) false advertising
claims under California consumer protection statutes, (2) false advertising claims under
New York consumer protection statutes, and (3) claims for breach of warranty under the
Song-Beverly Act. The Court analyzes each category of claims in turn.
The California consumer fraud statutes underlying plaintiffs’ claims are the UCL,
CLRA, and FAL. The UCL prohibits “any unlawful, unfair or fraudulent business act or
practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code
§ 17200. The statute is phrased in the “disjunctive,” and, as a result, is violated where a
defendant’s act or practice is unlawful, unfair, or fraudulent. Prata v. Super. Ct., 91 Cal.
App. 4th 1128, 1137 (2001). Similarly, the CLRA provides relief to “any consumer who
suffers any damage as a result of the use or employment” of any unlawful “method, act,
or practice.” Cal. Civ. Code § 1780(a). Likewise, the FAL broadly prohibits the
dissemination of advertising that is deceptive, untrue, or misleading. Cal. Bus. & Prof.
Code § 17500; Jolley v. Chase Home Finance, LLC, 213 Cal. App. 4th 872, 906 – 907
(2013).
False or deceptive advertising is actionable under each of these statutes.
Additionally, all three statutes invoke the “reasonable consumer test” to determine
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 14 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
whether allegedly false or deceptive advertising is unlawful. Colgan v. Leatherman Tool
Group, 135 Cal. App. 4th 663, 682 (2006); Paduano v. American Honda Motor Co., Inc.,
169 Cal. App. 4th 1453, 1497 (2009). “A reasonable consumer is the ordinary consumer
acting reasonably under the circumstances, and is not versed in the art of inspecting and
judging a product, in the process of its preparation or manufacture.” Colgan, 135 Cal.
App. 4th at 682. Due to the similarity between these statutes, they are often analyzed
together. Elias v. Hewlett-Packard Co., 903 F. Supp. 2d 843, 854 (N.D. Cal. 2012).
Both affirmative misrepresentations and deceptive or misleading omissions are
actionable under these statutes. Daugherty v. American Honda Motor Co., Inc., 144 Cal.
App. 4th 824, Ehrlich v. BMW of North America, LLC, 801 F. Supp. 2d 908, 916 (C.D.
Cal. 2010). In order to state a claim for wrongful omission, a defendant must have a duty
to disclose the omitted facts, which occurs in four situations: “(1) when the defendant is
in a fiduciary relationship with the plaintiff; (2) when the defendant has exclusive
knowledge of material facts not known to the plaintiff; (3) when the defendant actively
conceals a material fact from the plaintiff; and (4) when the defendant makes partial
representations but also suppresses some material facts.” Ehrlich, 801 F. Supp. 2d at 916;
Collins v. eMachines, Inc., 202 Cal. App. 4th 249, 255 – 256 (2011).
Relief under the UCL and FAL is available “without individualized proof of
deception, reliance and injury,” so long as the named plaintiffs demonstrate injury and
causation. Mass. Mut. Life Ins. Co. v. Sup. Ct., 97 Cal. App. 4th 1282, 1289 (Cal. Ct.
App. 2002); In re Tobacco II, 46 Cal.4th at 326–27. Additionally, individualized proof of
reliance and causation is not necessary under the CLRA. A plaintiff may recover under
the CLRA as long as he or she demonstrates a causal relationship between false
advertising and injury, and causation can be shown by proving the materiality of an
alleged omission. Parkinson v. Hyundai Mot. Am., 258 F.R.D. 580, 595–96 (C.D. Cal.
2008); Stearns, 655 F.3d at 1022 (holding that materiality is established “if a reasonable
man would attach importance to its existence or nonexistence in determining his choice
of action in the transaction in question”). “[T]he causation required by the [CLRA] does
not make plaintiffs’ claims unsuitable for class treatment” because “[c]ausation as to each
class member is commonly proved more likely than not by materiality.” Mass. Mut., 97
Cal. App. 4th at 1292.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 15 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
Common questions predominate regarding whether L’Oreal has violated the false
advertising prohibitions laid out in these statutes. Since these statutes provide for a
“reasonable consumer” standard of liability, liability issues under the California
consumer protection statutes will focus on the nature of the advertising and packaging of
Serum, not whether each and every class member would be deceived given their actual
level of sophistication. Additionally, because the “reasonable consumer” test has an
objective focus, it is amenable to resolution through common evidence, not
individualized inquiries.
Similarly, common issue predominate regarding reliance and causation because
none of the California consumer protection statutes require individualized proof of these
elements. Under the CLRA, plaintiffs may prove causation on a classwide basis by
demonstrating the materiality of the omissions. Since materiality concerns objective
features of allegedly deceptive advertising, not subjective questions of how it was
perceived by each individual consumer, whether an omission is material presents a
common question of fact suitable for class litigation. Mass. Mut., 97 Cal. App. 4th at
1294. Moreover, under the UCL and FAL, only the named plaintiffs are required to
establish reliance and causation, not each class member. Individualized issues therefore
will not predominate over questions common to the class, because this form of
individualized proof is not required.2
Therefore, contrary to L’Oreal’s suggestions, resolution of the class claims does
not require an individualized inquiry to determine whether each member of the class was
subjectively deceived by Serum’s packaging, nor are individualized inquiries needed to
2
Plaintiff Hayes submitted a declaration stating that she would not have purchased
Serum if she had known it was flammable, and therefore has produced evidence of
reliance and injury. Hayes Decl. ¶ 6; Kwikset Corp. v. Superior Court, 51 Cal. 4th 310,
329 (2011) (“For each consumer who relies on the truth and accuracy of a label and is
deceived by misrepresentations into making a purchase, the economic harm is the same:
the consumer has purchased a product that he or she paid more for than he or she
otherwise might have been willing to pay if the product had been labeled accurately.”).
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 16 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
determine how the packaging affected each class member. California law allows these
questions to be resolved on a classwide basis by applying an objectively reasonable
average consumer standard to common proof that focuses on the nature of the advertising
and its deceptive character. Common questions will therefore predominate regarding
liability under the California consumer protection statutes.
L’Oreal’s arguments to the contrary made in reliance on Mazza v. American
Honda Motor Co., 666 F.3d 581, (9th Cir. 2012), are misplaced, because the facts of
Mazza are distinguishable from the present case. There, the Ninth Circuit “agree[d] with
Honda’s contention that the misrepresentations at issue here do not justify a presumption
of reliance” under the UCL because “it is likely that many class members were never
exposed to the allegedly misleading advertisements, insofar as advertising of the
challenged system was very limited.” Mazza, 666 F.3d at 595. Here, the challenged false
advertising is not a limited advertising campaign that only affected a limited portion of
the class. Rather, the alleged omissions in this case relate to the packaging of Serum
itself, which has not materially changed over the course of the Class Period.
Accordingly, the class members—who are defined, inter alia, as purchasers and users of
Serum—were necessarily “exposed” to defendants’ alleged misleading packaging of
Serum, in contrast to the putative class in Mazza. Cf. Mazza, 666 F.3d at 595; Cohen,
178 Cal. App. 4th at 980.
The Court next turns to the New York claims. The New York consumer protection
statutes at issue in case are similar to the California statutes discussed above. In order to
recover for a violation of New York’s GBL § 349, for deceptive business practices, or
§ 350, for false advertising, a plaintiff must show: “(1) that the act, practice, or
advertisement was consumer-oriented; (2) that the act, practice, or advertisement was
misleading in a material respect; and (3) that the plaintiff was thereby injured.”
Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *22 (E.D.N.Y. July 21, 2010). See
also City of New York v. Smokes.com, Inc., 883 N.Y. 3d 616, 622 (2009). As with
California’s UCL, the “standard for whether an act or practice is misleading is an
objective one, requiring a showing that a reasonable consumer would have been misled
by the defendant’s conduct.” Ackerman, 2010 WL 2925955, at *22 (citing Marcus v.
AT&T, 138 F.3d 46, 64 (2d Cir. 1998)). Omissions are actionable under these laws
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 17 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
where the defendant is under a duty to disclose the omitted facts. Oswego Laborers’
Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y. 2d 20, 25 (1995). A duty to
disclose exists where a “business alone possesses material information that is relevant to
the consumer and fails to provide this information.” Id. at 26.
A claim for deceptive business practices pursuant to § 349 does not require a
demonstration of reliance, although a claim pursuant to § 350 does. However, under New
York law, there is a presumption of reliance when the defendant controls the relevant
information and a consumer of ordinary intelligence could not discover the true state of
affairs. Leider v. Ralfe, 387 F. Supp. 2d 283, 293, 296 (S.D.N.Y. 2005). Moreover,
where consumers allege that they paid a premium for the product based on deceptive
advertising—as plaintiffs do here—they have adequately alleged an injury under § 350.
Ackerman, 2010 WL 2925955, at *23.
Accordingly, as with the California claims, liability under the New York statutes
can be established with common proof. Individualized proof of reliance is not necessary,
and as explained above, whether a reasonable consumer would have been deceived by
Serum’s packaging is an objective inquiry that focuses on that packaging. Common
questions therefore predominate regarding L’Oreal’s liability under the New York
consumer protection statutes.
Finally, the Court considers plaintiffs’ breach of warranty claims under the SongBeverly act. To establish a violation of the Song-Beverly Act, the plaintiff must prove
that goods sold in California were not merchantable. Cal. Civ. Code §§ 1790 et seq. The
Song-Beverly Consumer Warranty Act defines the implied warranty of merchantability
as follows:
“Implied warranty of merchantability” or “implied warranty that goods are
merchantable” means that the consumer goods meet each of the following:
(1) Pass without objection in the trade under the contract description.
(2) Are fit for the ordinary purposes for which such goods are used.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 18 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
(3) Are adequately contained, packaged, and labeled.
(4) Conform to the promises or affirmations of fact made on the
container or label.
Cal. Civ. Code § 1791.1. “[A] plaintiff claiming breach of an implied warranty of
merchantability must show that the product did not possess even the most basic degree of
fitness for ordinary use.” Keegan v. American Honda Motor Co., Inc., 838 F. Supp. 2d
929, 945 (C.D. Cal. 2012). The sale of a product does not breach the implied warranty of
merchantability when it “is in safe condition and substantially free of defects.” Mexia v.
Rinker Boat Co., Inc., 174 Cal. App. 4th 1297, 1303 (2009).
Here, plaintiffs’ Song-Beverly Act claim asserts that L’Oreal’s omission of a
flammability warning rendered Serum unsafe for its ordinary purpose as a leave-in hair
product. This claim hinges on determining whether the product is flammable and
whether a reasonable consumer would expect a flammable leave-in hair product to
contain a warning. These issues can be resolved through common proof about the nature
of Serum and the expectations of a reasonable consumer, and therefore the Court finds
that common issues predominate.
Accordingly, for the reasons set forth above, common issues predominate over
individualized issues with regard to liability for all of plaintiffs’ claims.
b.
Damages
L’Oreal argues that even if common questions predominate concerning whether it
has violated each of the laws discussed above, the Court should nonetheless deny
certification for the California class because there is no classwide method of determining
what monetary relief should be awarded.3 Calculating damages or restitution, L’Oreal
3
Under the New York consumer protection statutes, each injured consumer may
recover $50 upon proof of injury. N.Y. GBL § 349(h). L’Oreal does not contest that
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 19 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
argues, will require an inquiry into whether each individual class member would have
purchased Serum if it had been labeled as flammable, and if so, how much he or she
would have been willing to pay for it. L’Oreal concludes that individual issues will
therefore predominate with respect to the damages inquiry.
In response, plaintiffs explain that they will generate common proof of damages by
determining, through expert testimony, the actual market value of the Serum purchased
by the class (“true market price”). Tersigni Decl. ¶ 12. This testimony will determine the
market value of Serum given that it was flammable but not labeled as such. According to
plaintiffs, this evidence will show that Serum’s true market price is either $0 or a figure
substantially lower than $6. Id. Once the true market price has been computed, plaintiffs
contend that each class member can be awarded, for each bottle of Serum purchased, the
difference between Serum’s historical market price and its true market price. Since this
inquiry depends only on facts about the market price of Serum, not on the behavior of
each class member, plaintiffs contend that individual issues will not predominate.
In light of California law regarding relief that can be awarded for violations of the
Song-Beverly Act and the consumer protection statutes at issue in this case, the Court
finds that plaintiffs have articulated a legally justifiable theory of relief that does not
depend on individualized inquiries. Under the UCL, FAL, and CLRA, a court may grant
a class restitution as a form of relief. Colgan, 135 Cal. App. 4th at 694 (“There is nothing
to suggest that the restitution remedy provided under the CLRA should be treated
differently than the restitution remedies provided under the False Advertising or Unfair
Competition Laws.”); Cal. Bus. & Prof. Code §§ 17203, 17535; Cal. Civ. Code § 1780.
The form of restitutionary relief authorized by California law has two purposes: returning
money unjustly taken from the class, and deterring the defendant from engaging in future
violations of the law. Colgan, 135 Cal. App. 4th at 695. Restitutionary relief is an
equitable remedy, and its purpose is is “to restore the status quo by returning to the
plaintiff funds in which he or she has an ownership interest.” Korea Supply Co. v.
Lockheed Martin Corp., 29 Cal. 4th 1134, 1149 (2003); Cortez v. Purolator Air Filtration
common issues predominate regarding proof of damages under New York law.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 20 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
Products Co., 23 Cal. 4th 163, 177 (2000) (“The object of the restitution order in each
case was money that once had been in the possession of the person to whom it was to be
restored.”).
In granting restitution, “[a] court of equity may exercise its full range of powers in
order to accomplish complete justice between the parties.” Colgan, 135 Cal. App. 4th
698. Nonetheless, the restitution awarded must be a “quantifiable sum,” and the award
must be supported by substantial evidence. Id. at 700; Cortez, 23 Cal. 4th at 178. Thus,
the restitution awarded to class members must correspond to a measurable amount
representing the money that the defendant has acquired from each class member by virtue
of its unlawful conduct. Colgan 135 Cal. App. 4th at 697 – 698. The magnitude of this
relief must be measured in light of the purpose of restitutionary relief, which is restoring
the status quo ante by giving back to the class members what was taken from them
through violations of the law. Id. Unlawful profits unfairly obtained can provide a
measure for recovery, but only “to the extent that these profits represent monies given to
the defendant or benefits in which the plaintiff has an ownership interest.” Korea Supply,
29 Cal. 4th at 1148.
One method of quantifying the amount of restitution to be awarded is computing
the effect of unlawful conduct on the market price of a product purchased by the class.
Colgan, 135 Cal. App. 4th at 698 – 699 (“Where a person is entitled to a money judgment
against another because by fraud, duress or other consciously tortious conduct the other
has acquired, retained or disposed of his property, the measure of recovery for the benefit
received by the other is the value of the property at the time of its improper acquisition,
retention or disposition . . .”) (quoting The Restatement of Restitution § 151). This
measure of restitution contemplates the production of evidence that attaches a dollar
value to the “consumer impact or advantage” caused by the unlawful business practices.
Id. at 700. Restitution can then be calculated by taking the difference between the market
price actually paid by consumers and the true market price that reflects the impact of the
unlawful business practices. Expert testimony may be necessary to determine the amount
of price inflation attributable to the challenged practice. Id.
In light of these principles, the Court concludes that there is a classwide method of
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 21 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
determining relief under the California consumer protection statutes. Awarding each
class member the difference between the historical market price and the true market price
would restore the status quo ante by returning to the class the extra amounts they were
forced to pay due to the lack of a flammability disclosure. Additionally, while California
law suggests that the market impact of the unlawful conduct should be established by
expert testimony, Colgan, 135 Cal. App. 4th at 699 – 700, this is plaintiffs’ proposed
method of proof.
Plaintiffs’ method of proof can also be applied to compute relief owed to the class
for the alleged breach of the implied warranty of merchantability. “The measure of
damages for breach of warranty is the difference at the time and place of acceptance
between the value of the goods accepted and the value they would have had if they had
been as warranted, unless special circumstances show proximate damages of a different
amount.” Cal. Com. Code § 2714(2). In other words, the damages a plaintiff can recover
for a breach of the warranty of merchantability are “the monetary equivalent of the
benefit of his bargain.” S.M. Wilson & Co. v. Smith Intern, Inc., 587 F.2d 1363, 1375
(9th Cir. 1978). Here, plaintiffs’ proposed damages analysis will be based on the benefit
of the bargain. The true market value of the Serum in plaintiffs’ damages computation
method measures the value of what the class actually received. Moreover, the historical
market value measures the value of a bottle of Serum in merchantable condition. The
differences between these two figures therefore corresponds to the benefit of the bargain,
and consequently, provides a measure of classwide relief for all of the California claims.
L’Oreal argues that even if plaintiffs’ proposed method of computing damages is
allowed by California law, the Court should nonetheless deny certification because
plaintiffs have not yet produced expert testimony showing that the true market price of
Serum was lower than the historical market price. L’Oreal contends that plaintiffs are
required to produce this evidence prior to certification, because without this evidence,
plaintiffs cannot demonstrate a connection between their theories of liability and
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 22 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
damages. Comcast v. Behrend, 133 S.Ct. 1426 (2013).4
In Comcast, an antitrust action, the Supreme Court considered whether class
certification was appropriate under Rule 23(b)(3) where the district court had accepted
only one of the plaintiffs’ four theories of antitrust injury, but the plaintiffs’ method of
computing damages did not differentiate between harm caused by the four forms of
antitrust injury asserted by the plaintiffs. Id. at 1433. The lower courts believed that this
computation of classwide damages was acceptable because there was no need for the
plaintiffs “to tie each theory of antitrust impact to a calculation of damages.” Id. The
Supreme Court held that this reasoning was in error, because it ignored the principle that
“[t]he first step in a damages study is the translation of the legal theory of the harmful
event into an analysis of the economic impact of that event.” Id. at 1435 (emphasis in
original). The Court explained that “at the class-certification stage (as at trial), any model
supporting a plaintiff’s damages case must be consistent with its liability case,
particularly with respect to the alleged anticompetitive effect of the violation.” Id. at
1433. Finding the requisite connection lacking between the plaintiffs’ evidence of
classwide damages and the plaintiffs’ theory of liability to the class, the Court found that
Rule 23(b)(3) was not satisfied.
Under Comcast, courts can only certify a Rule 23(b)(3) class if there is evidence
demonstrating the existence of a classwide method of awarding relief that is consistent
with the plaintiffs’ theory of liability. Forrand v. Federal Exp. Corp., 2013 WL 1793951,
at *3 (C.D. Cal. 2013) (“As the Supreme Court reemphasized in Comcast, in order for
Rule 23(b)(3)’s predominance requirement to be satisfied, a plaintiff must bring forth a
measurement method that can be applied classwide and that ties the plaintiff’s legal
4
Additionally, at oral argument, counsel for L’Oreal argued that plaintiffs will not
be able to show that the true market value of Serum was less than its historical market
value because the pre-2007 bottles of Serum contained a flammability warning but still
sold for $5.99. The proper method for making a determination regarding the true market
value of the unlabeled bottles of Serum purchased by the class is a factual question that is
not fully resolved by this argument.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 23 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
theory to the impact of the defendant’s allegedly illegal conduct.”); Roach v. T.L. Cannon
Corp., 2013 WL 1316452 (N.D. N.Y. 2013) (“The failure of the proponent of the class to
offer a damages model that was susceptible of measurement across the entire class for
purposes of Rule 23(b)(3) was fatal to the certification question.”). Otherwise, the
plaintiffs have not met their burden of introducing evidence showing that common
questions predominate regarding classwide relief. Comcast, 133 S.Ct. at 1432 (“The
party must also satisfy through evidentiary proof at least one of the provisions of Rule
23(b).”) (emphasis added).
Here, because plaintiffs have not submitted expert testimony actually
demonstrating a gap between the true market price of Serum and its historical market
price, they have not met their burden of demonstrating that common questions
predominate over individual issues regarding classwide relief. A classwide method of
awarding relief exists in this case if, in fact, the false advertising at issue had a
measurable impact on the market price of Serum. If it did, then common questions
regarding classwide relief predominate, because the critical inquiry is attaching a dollar
value to the impact of the false advertising. See In re Diamond Foods, Inc. Securities
Litigation, — F.R.D. —, 2013 WL 1891382, at *11 (N.D. Cal. 2013) (expert evidence
satisfies plaintiff’s burden under Rule 23(b)(3) by demonstrating market impact, even if it
does not calculate damages). If, however, the false advertising had no such quantifiable
impact on Serum’s market price, then certification is not appropriate, because plaintiffs
have offered no other method of awarding relief based on proof common to the class.
Therefore, evidence of impact on the consumer market is needed to satisfy plaintiffs’
burden of demonstrating the predominance of common questions. Although this
evidence is also critical to the merits of plaintiffs’ claims, the class certification inquiry
will often involve “considerations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.” Dukes, 131 S.Ct. at 2552 (quoting General
Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982)).5
5
In some cases, such as wage and hour class actions, the plaintiffs’ theory of
liability is such that awarding damages to the class is “a purely mechanical process,” and
therefore expert testimony or other affirmative proof may not be needed to demonstrate
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 24 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
Consequently, without evidence affirmatively demonstrating that the true market
price of Serum can be calculated on a classwide basis, plaintiffs’ claim that there is a
classwide method of granting relief is factually unsupported. This lack of evidence
compels the conclusion that certification for the California class is not appropriate at
present because the requirement of predominance is not satisfied. The denial of class
certification is without prejudice, however, because the Court cannot make a final
determination on the present record regarding whether predominance can be satisfied.
Accordingly, plaintiffs may make a renewed motion for class certification after
presenting expert testimony demonstrating that common questions predominate regarding
classwide relief.
However, plaintiffs’ lack of expert testimony computing restitutionary relief does
not undermine a finding of predominance regarding the New York class. Under N.Y.
G.B.L § 349(h), a plaintiff can recover statutory damages in the amount of $50 upon a
finding that the plaintiff has suffered injury. Plaintiffs have elected to pursue these
statutory damages on behalf of the New York class in lieu of actual damages. Tersigni
Decl. ¶ 12. Therefore, no expert testimony demonstrating the existence of a measurable
impact on Serum’s market price is necessary to award relief to the New York class.
Moreover, because awarding classwide relief only requires that a fixed amount of
statutory damages be granted to each class member, no individualized damages inquiries
are necessary for the New York class. These considerations show that the predominance
requirement is satisfied for the New York class.
The Court acknowledges that, under New York procedural rules, a class action to
the predominance of common issues. See Parra v. Bashas’, Inc., — F.R.D. —, 2013 WL
2407204, at * 31 – 32 (certifying Rule 23(b)(3) class without expert testimony); Leyva v.
Medline Industries Inc., 2013 WL 2306567, at *3 (9th Cir. 2013). Here, however,
awarding relief to the California class is not comparably straightforward because, as
plaintiffs’ admit, expert testimony is likely required to compute the true market price of
Serum. A finding of liability by itself therefore does not give rise to a mechanical
method of awarding classwide relief.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 25 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
recover statutory damages under section 349(h) cannot be maintained. See N.Y. C.P.L.R.
§ 901(b) (“Unless a statute creating or imposing a penalty, or a minimum measure of
recovery specifically authorizes the recovery thereof in a class action, an action to
recover a penalty, or minimum measure of recovery created or imposed by statute may
not be maintained as a class action.”); Burns v. Volkswagen of America, N.Y.S. 2d 410,
413 (“Pursuant to CPLR 901, class actions cannot be maintained under [GBL § 349(h)] . .
. for recovery of minimum or punitive damages because those sections do not contain
specific authorizing language.”). These rules do not apply to a class action proceeding in
federal court, however, despite the risk of forum shopping this divergence in state and
federal law creates. Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130
S.Ct. 1431, 1448 (2010) (holding that CPLR § 901(b) does not apply to class actions in
federal court, despite the “the reality that keeping the federal-court door open to class
actions that cannot proceed in state court will produce forum shopping.”); Bristol Village,
Inc. V. Louisiana-Pacific Corp., — F. Supp. 2d —, 2013 WL 55698, at * 11 n.5 (W.D.
N.Y. 2013) (“Although N.Y. C.P.L.R. 901(b) prohibits class action relief for a statutorilyimposed penalties or minimum damages, the Supreme Court held in [Shady Grove] that
the certification requirements of Rule 23 preempted this state law ‘procedural’ limitation
in federal actions.”). Therefore, although allowing the New York class to pursue
statutory damages appears to contravene New York procedural law, this outcome is
required under Shady Grove.6
6
At oral argument, counsel for L’Oreal argued that Hooper v. HM Mane Solutions,
LLC, 819 N.Y.S.2d 848 (N.Y. Sup. Ct. 2006) (unreported disposition), foreclosed
plaintiffs’ claims for statutory damages under the GBL. L’Oreal is incorrect. First, since
Hooper is a New York state court case decided prior to Shady Grove, it does not address
whether statutory damages under GBL § 349(h) are recoverable in a class action brought
in federal court. Second, in Hooper, the court declined to certify a class of consumers
who brought suit against the maker of “Easy Straight Hair Straightening System” because
the hair product allegedly caused damage to plaintiffs’ hair or scalp, but failed to warn
them of this possibility. Id. at *1. In denying plaintiffs’ motion to certify, the court
observed that the proposed class “is based on the plaintiffs’ argument that the mere
purchase or use of Easy Straight is actionable even without any injury.” Id. at *2. Here,
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 26 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
2.
Date
July 1, 2013
Superiority
Rule 23(b)(3) sets forth four relevant factors for determining whether a class action
is “superior to other available methods for the fair and efficient adjudication of the
controversy.” Fed. R. Civ. P. 23(b)(3). These factors include:
(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already
begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in
the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
“[C]onsideration of these factors requires the court to focus on the efficiency and
economy elements of the class action so that cases allowed under subdivision (b)(3) are
those that can be adjudicated most profitably on a representative basis.” Zinser v.
Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) (internal quotation
marks and citation omitted), amended by 273 F.3d 1266 (9th Cir. 2001).
The Court finds that class litigation is superior to other methods of adjudication in
this case. First, class actions “to enforce compliance with consumer protection laws are
‘desirable and should be encouraged.’” Ballard v. Equifax Check Servs., Inc., 186 F.R.D.
589, 600 (E.D. Cal. 1999) (quoting Duran v. Credit Bureau of Yuma, Inc., 93 F.R.D. 607,
in contrast to the physical injuries alleged in Hooper, plaintiffs allege that they suffered
economic injury. Accordingly, Hooper is distinguishable.
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 27 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
610 (D. Ariz. 1982)). Second, given that Serum sells for less than $10.00 per bottle,
“there is no realistic alternative to a class action in this case, making a class action
understandably the superior method of adjudication.” Dannon, 255 F.R.D. at 672.
Finally, adjudicating class claims will be significantly less burdensome than if the matter
were prosecuted individually. Menagerie Prods. v. Citysearch, 2009 WL 3770668, at *19
(C.D. Cal. Nov. 9, 2009) (concluding that “it does not appear that any members of the
class have commenced any other litigation concerning the controversy alleged herein”
and “concentrating the litigation in this Court will allow it to proceed in an efficient
manner without risking inconsistent outcomes, and there is no reason to think that this is
an undesirable forum to litigate these claims”).
Accordingly, the Court finds that the superiority requirement of Rule 23(b)(3) is
satisfied.
C.
Whether the Class is Ascertainable
Finally, L’Oreal argues that even if the requirements of Rule 23 are met for the
New York class and could be met for the California class, certification is not appropriate
because the classes are not ascertainable. “As a threshold matter, and apart from the
explicit requirements of Rule 23(a), the party seeking class certification must demonstrate
that an identifiable and ascertainable class exists.” Mazur v. eBay, Inc., 257 F.R.D. 563,
567 (N.D. Cal. 2009); O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 331, 319 (C.D. Cal.
1998) (“A class definition should be precise, objective, and presently ascertainable.”).
An ascertainable class exists if it can be identified through reference to objective criteria,
and subjective standards such as a class member’s state of mind should not be used when
defining the class. Manual for Complex Litigation (Fourth) § 21.222.
Some courts have found that a class is not ascertainable when it is defined too
broadly and contains class members who could not pursue legal claims akin to those
asserted by the representative plaintiffs. Diacakis v. Comcast Corp., 2013 WL 1878921,
at *4 (N.D. Cal. 2013); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 – 514 (7th Cir.
2006). In Oshana, for example, the plaintiffs alleged a false advertising claim, based on
allegations that Diet Coke advertisements claimed the soda was sweetened only with
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 28 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
aspartame, even though fountain Diet Coke was sweetened with both aspartame and
saccharin. The plaintiffs sought to represent a class of individuals who purchased
fountain Diet Coke. The Seventh Circuit held that this class was not ascertainable,
because it could include individuals who knew fountain Diet Coke contained saccharin
and perhaps even purchased it for those reasons. Id. at 513 – 514. Similarly, in
Diacakis—which was also a consumer deception case—the district court found that a
class composed of all individuals who had purchased a bundled entertainment package
was not ascertainable because the class could include individuals who were not deceived
by the alleged failure to disclose certain hidden charges. Diacakis, 2013 WL 1878921, at
*4. The Court in Diacakis reasoned that some class members could have learned of those
charges, and hence would not have had claims similar to those held by the representative
plaintiffs. Id.
L’Oreal argues that here, just as in Diacakis, the class is defined too broadly
because it could contain individuals who do not care whether the product is flammable.
As an initial matter, this argument does not appear to truly concern whether the class is
ascertainable. The requirement of an ascertainable class is met as long as the class can be
defined through objective criteria. Here, because the requirement for membership in the
class is whether a consumer purchased a particular product after a particular date, the
class is easily identifiable. The question L’Oreal raises is whether all class members have
similar claims and whether the class members have claims similar to those of the class
representatives, and this question is analyzed under the rubric of Rule 23, not the
requirement of an ascertainable class.
Additionally, regardless of whether L’Oreal’s arguments actually address the
requirement of an ascertainable class, the cases L’Oreal relies on are readily
distinguishable. Unlike Oshana and Diacakis, here there is no suggestion that class
members knew Serum was flammable, and there is no evidence that consumers do not
care about the flammability of the product. Additionally, under California law,
“[n]ondisclosures about safety considerations of consumer products are material,” which
suggests that a broad class definition is appropriate in cases involving omissions about
consumer safety. In re Toyota Motor Corp., 754 F. Supp. 2d 1145, 1173 (C.D. Cal.
2010). Finally, as discussed above, there are common methods of demonstrating liability
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 29 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
under both California and New York law, and therefore the classes are not overly broad.
The Court therefore concludes that the class is ascertainable, and rejects L’Oreal’s
arguments to the contrary.
D.
Appointment of Class Counsel
Rule 23(g)(1) requires the Court to appoint class counsel. Rule 23(g) provides,
inter alia, that courts must consider the following factors in appointing class counsel:
(i)
the work counsel has done in identifying or investigating potential claims in
the action;
(ii)
counsel’s experience in handling class actions, other complex litigation, and
the types of claims asserted in the action;
(iii)
counsel’s knowledge of the applicable law; and
(iv)
the resources that counsel will commit to representing the class.
Fed. R. Civ. P. 23(g)
The Court is satisfied that plaintiffs’ co-counsel of record, KamberLaw, LLP and
Parisi & Havens LLP meet the criteria of Rule 23(g) and may serve as co-class counsel.
First, both firms have represented plaintiffs throughout this litigation. Second, both firms
have significant experience in litigating class actions and otherwise satisfy the
requirements of Rule 23(g). See Tersigni Decl. ¶¶ 16 – 19. Finally, both firms have
sufficient resources to vigorously represent the classes. See id., ¶¶ 17, 19.
KamberLaw, LLP and Parisi & Havens LLP are hereby appointed class counsel
pursuant to Rule 23(g).
V.
CONCLUSION
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
Page 30 of 31
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV CV 11-1067 CAS (JCx); Consolidated
with CV 11-5465 CAS (JCx)
Date
July 1, 2013
Title
JILL GUIDO, ET AL. V. L’OREAL, USA, INC., ET AL; Consolidated
with CATHERINE ALTAMURA, ET AL. V. L’OREAL, USA, INC., ET
AL.
In accordance with the foregoing, plaintiffs’ motion for class certification is
GRANTED in part and DENIED WITHOUT PREJUDICE in part. The following class
is hereby certified:
New York Class: All individuals who purchased Garnier Fructis Sleek & Shine
Anti-Frizz Serum in the state of New York at any time during the period of
February 4, 2008 to the present.
Exclusions: Excluded from both classes are defendants as well as all employees of
the Court, including, but not limited to, judges, magistrate judges, clerks, and court
staff and personnel of the United States District Courts of the Central District of
California, the United States Court of Appeals for the Ninth Circuit, and the United
States Supreme Court; their spouses or significant others and any minor children
living in their households and any other persons within a third degree of
relationship to any such federal judge; and finally, the entire jury venire called to
for jury service in relation to this lawsuit. Also excluded from the classes are any
attorneys or other or other employees of any law firms hired, retained, and/or
appointed by or on behalf of the named plaintiffs to represent the named plaintiffs
and any/or proposed class members or proposed class in this lawsuit. Also
excluded from the classes are (1) any persons who have sustained physical injury
or physical damage that relates to or arose from their use of Garnier Anti-Frizz
Sleek & Shine Serum and (2) any persons who purchased Garnier Anti- Frizz
Sleek & Shine Serum for resale or distribution.
As stated above, plaintiffs may make a renewed motion to certify the California class
upon submission of expert testimony supporting their proposed method of awarding relief
on a classwide basis.
IT IS SO ORDERED.
00
Initials of Preparer
CV-11-5465 (07/13)
CIVIL MINUTES - GENERAL
:
25
MS
Page 31 of 31
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