Elkind et al v. Revlon Consumer Products Corporation

Filing 120

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, the Court ADOPTS Judge Tomlinson's Amended R&R (Docket Entry 119) in its entirety and GRANTS the parties' joint motion for preliminary approval of their c lass action settlement agreement (Docket Entry 109) to the extent that the certified class encompasses the class definition set forth in the Amended R&R. (See Am. R&R at 44-45.) Judge Tomlinson's R&R (Docket Entry 114) is TERMINATED AS MOOT. Th e Court REFERS the final fairness hearing in this matter to Judge Tomlinson for a report and recommendation on whether the Court should grant final approval of the parties' class action settlement agreement. The parties are directed to contact J udge Tomlinson within fourteen (14) days of the date of this Memorandum and Order to schedule the final fairness hearing. Additionally, the parties are GRANTED leave to file a motion for attorneys' fees within sixty (60) days of the date of this Memorandum and Order. So Ordered by Judge Joanna Seybert on 3/29/2017. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ANNE ELKIND and SHARON ROSEN, on behalf
of themselves and all others similarly
situated,
Plaintiffs,
-against–

MEMORANDUM & ORDER
14-CV-2484(JS)(AKT)

REVLON CONSUMER PRODUCTS CORPORATION,
Defendant.
----------------------------------------X
APPEARANCES
For Plaintiffs:
John Joseph Fitzgerald, IV, Esq.
Thomas A. Canova, esq.
The Law Office of Jack Fitzgerald, PC
3636 Fourth Avenue, Suite 202
San Diego, CA 92103
Ronald A. Marron, Esq.
Alexis M. Wood, Esq.
Kas L. Gallucci, Esq.
Trevor Flynn, Esq.
William Richards, Esq.
Law Offices of Ronald A. Marron
651 Arroyo Drive
San Diego, CA 92103
For Defendant:

Patricia Glaser, Esq.
Sean Riley, Esq.
Rory S. Miller, Esq.
Glaser Weil Fink Howard Avchen & Shapiro LLP
10250 Constellation Blvd., 19th Floor
Los Angeles, CA 90067
Jill Caroline Barnhart, Esq.
Nelson Boxer, Esq.
Petrillo Klein & Boxer LLP
655 3rd Avenue, 22nd Floor
New York, NY 10017

SEYBERT, District Judge:
Presently pending before the Court is Magistrate Judge
A.

Kathleen

Tomlinson’s

Report

and

Recommendation

dated

February 17, 2017 (“R&R,” Docket Entry 114) and Amended Report and
Recommendation dated March 9, 2017 (“Amended R&R,” Docket Entry
119) with respect to the parties’ joint motion for preliminary
approval of their class action settlement agreement, (Mot., Docket
Entry 109).

For the following reasons, the R&R is TERMINATED AS

MOOT and the Court ADOPTS Judge Tomlinson’s Amended R&R in its
entirety.
BACKGROUND
On April 17, 2014, plaintiffs Anne Elkind and Sharon
Rosen
behalf

(“Plaintiffs”)
of

themselves

commenced
and

this

others

putative

similarly

class

action

situated

on

against

defendant Revlon Consumer Products Corporation (“Defendant” or
“Revlon”), asserting claims with respect to Defendant’s sale of
cosmetics under the brand name “Revlon Age Defying with DNA
Advantage.”

(See generally Compl.)

On May 14, 2015, this Court

granted in part and denied in part Defendant’s motion to dismiss
the First Amended Complaint.
Plaintiffs’

remaining

claims

(May 2015 Order, Docket Entry 79.)
are

for

false

advertising

in

violation of New York General Business Law § 350, intentional
misrepresentation, false advertising in violation of California
Business and Professional Code § 17500, et. seq., violation of the
2

California Civil Code § 1750, et. seq., breach of express warranty
under New York law, and breach of express warranty of fitness in
violation of the California Code.

(May 2015 Order at 5-6, 35.)

On June 30, 2016, the parties filed a joint motion
seeking preliminary approval of their class action settlement.
(See, Mot.)

The parties request that the Court certify the

proposed class for settlement purposes pursuant to Federal Rules
of

Civil

Procedure

23(b)(2)

and/or

(b)(3),

grant

preliminary

approval of their proposed settlement, and direct notice to be
sent to the class.

(Parties’ Br., Docket Entry 109-1, at 7-27.)

On July 6, 2016, the Court referred the parties’ motion
to Judge Tomlinson for a report and recommendation.
Order, Docket Entry 111.)
issued her R&R.

(R&R.)

(Referral

On February 17, 2017, Judge Tomlinson
On March 2, 2017, the parties requested

clarification as to the class definition set forth in the R&R and,
alternatively, objected to the R&R.

(Ltr., Docket Entry 116.)

The parties noted that the class definition set forth in the R&R
did not include purchasers of the Revlon Age Defying with DNA
Powder (the “Powder”) and requested that Judge Tomlinson amend the
class definition to include purchasers of the Powder.

(Ltr. at 1-

3.)
On

March

7,

2017,

Judge

addressing the parties’ letter.
117.)

Tomlinson

issued

an

Order

(March 2017 Order, Docket Entry

Judge Tomlinson indicated that purchasers of the Powder
3

were excluded from the class definition based on the District
Court’s prior dismissal of Plaintiffs’ claims relating to the
labeling and marketing of the Powder.

(March 2017 Order at 2.)

However, Judge Tomlinson stated that the court was inclined to
amend the R&R with respect to this issue to the extent the parties
submitted

a

communication

signed

by

counsel

indicating

that

Defendant intended to include purchasers of the Powder in the
settlement.

(March 2017 Order at 3.)

On March 7, 2017, the

parties submitted a joint letter signed by counsel confirming that
they intended to include the purchasers of the Powder in their
settlement.

(Sec. Ltr., Docket Entry 118.)

On March 9, 2017, Judge Tomlinson issued her Amended R&R
recommending that the parties’ motion for preliminary approval of
their settlement be granted.

(Am. R&R at 1-2.)

Judge Tomlinson

recommended that the following class be certified pursuant to
Federal Rules of Civil Procedure 23(b)(2) and (b)(3):
Elkind, Rosen and all other Persons in the
United States who, during the Class Period
(the time period beginning on April 25, 2011
and ending on the date a motion for
preliminary
approval
of
the
Settlement
Agreement is filed in the Action) purchased
one or more of Revlon’s Age Defying with DNA
Advantage Cream Makeup, Concealer, and Powder,
in any package, size, or iteration, for
personal, family or household use, and not for
resale.
Specifically excluded from the class, however,
are any Person(s) who timely opts-out of the
Class.
4

(Am. R&R at 44-45.)1
Additionally,

Judge

Tomlinson

concluded

that

the

proposed settlement was negotiated after “serious, informed, and
non-collusive negotiations.”

(Am. R&R at 36 (internal quotation

marks and citation omitted).)

However, Judge Tomlinson determined

that

the

parties

must

establish

the

reasonableness

of

the

settlement agreement’s enhancement award for class representatives
at the fairness hearing.

(Am. R&R at 38-39.)

Judge Tomlinson

also recommended that the issue of attorneys’ fees be addressed in
a separate motion.

(Am. R&R at 39-40.)

Finally, Judge Tomlinson

recommended that this Court appoint the Law Offices of Ronald A.
Marron and the Law Office of Jack Fitzgerald as class counsel,
(R&R at 41-42), and determined that the parties’ proposed Notice
Plan satisfied Rule 23(c)(2)(A) and (B), (R&R at 42-44).

The Court notes that the class definition set forth in the
Amended R&R differs slightly from the parties’ proposed class
definition. (Compare Am. R&R at 45 with Parties’ Br., Docket
Entry 109-1, at 7, n.5 (“The settlement class is defined as all
Persons in the United States who, during the Class Period
(April 25, 2011 to the date the Motion for Preliminary Approval
of the Settlement is filed) purchased one or more Revlon Age
Defying with DNA Advantage Cream Makeup, Concealer, and Powder,
in any package, size, or iteration for personal, family or
household use, and not for resale. Specifically excluded from
the class, however, are any Person(s) who timely opts-out of the
Class.”).)
1

5

DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

in

whole

or

in

part,

recommendations made by the magistrate judge.”
(1)(C).

the

findings

and

28 U.S.C. § 636(b)

If no timely objections have been made, the “court need

only satisfy itself that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and no

party has objected.

Accordingly, all objections are hereby deemed

to have been waived.
Upon careful review and consideration, the Court finds
Judge Tomlinson’s Amended R&R to be comprehensive, well-reasoned,
and free of clear error, and it ADOPTS the Amended R&R in its
entirety.
CONCLUSION
For

the

foregoing

reasons,

the

Court

ADOPTS

Judge

Tomlinson’s Amended R&R (Docket Entry 119) in its entirety and
GRANTS the parties’ joint motion for preliminary approval of their
class action settlement agreement (Docket Entry 109) to the extent
that the certified class encompasses the class definition set forth
in the Amended R&R.

(See Am. R&R at 44-45.)

R&R (Docket Entry 114) is TERMINATED AS MOOT.
6

Judge Tomlinson’s

The Court REFERS the final fairness hearing in this
matter to Judge Tomlinson for a report and recommendation on
whether the Court should grant final approval of the parties’ class
action settlement agreement.

The parties are directed to contact

Judge Tomlinson within fourteen (14) days of the date of this
Memorandum and Order to schedule the final fairness hearing.
Additionally, the parties are GRANTED leave to file a
motion for attorneys’ fees within sixty (60) days of the date of
this Memorandum and Order.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
29 , 2017
Central Islip, New York

7