Jacobs et al v. L'Oreal U.S.A., Inc. et al
Filing
223
OPINION AND ORDER re: 154 FIRST MOTION for Summary Judgment: For the foregoing reasons, the Court decertifies both 23 (b) (2) classes, the Florida 23 (b) (3) class, and the New York 23(b) (3) class as to its unjust enrichment claims. The New York c lass remains certified to pursue statutory damages under NYGBL § 349. The Court dismisses all claims for injunctive and declaratory relief, all claims related to the dangerousness of the relaxer cream, the New York plaintiffs' unjust enrich ment claim, and the California plaintiffs' fraud and negligent misrepresentation claims that are premised on omissions. The motion is denied as to all remaining claims premised on the alleged dangerousness of the scalp protector, misleading repr esentations or warranties regarding its functionality, and implicit misrepresentations that the product is safer than relaxers that contain lye. The Clerk of Court is directed to close all open motions on the docket of this case. (Signed by Judge Jed S. Rakoff on 7/31/2018) (jwh)
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 1 of 37
USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
DOC#:
----r~{-1.,~-
DATE FILED:
16-cv-6593
In re: AMLA LITIGATION
-----------------------------------x
OPINION AND ORDER
JED S. RAKOFF, U.S.D.J.
Nine individuals from eight different states brought
fifteen claims against defendants L'Oreal USA, Inc. and its
subsidiary Soft Sheen-Carson LLC (collectively, "L'Oreal"). All
claims are based on alleged defects in the "Arnla Legend
Rejuvenating Ritual Relaxer" (the "product"), which is used to
chemically straighten naturally curly hair. The product is a
single kit that contains five components:
protector,
(2) a relaxer cream,
(1) the scalp
(3) a shampoo,
(4) a
conditioner, and (5) an oil moisturizer. Plaintiffs allege that
defects in the relaxer cream and scalp protector render the
product unreasonably dangerous and that L'Oreal misrepresented
the product's safety and breached various related warranties,
causing plaintiffs to suffer economic and physical injuries.
The Court previously certified a class of New York
consumers, defined as "All persons who bought one or more of the
Products in New York from August 19, 2013 to the present," and a
class of Florida consumers, defined as "All persons who bought
one or more of the Products in Florida from December 1, 2012 to
the present." See ECF No. 138. Both classes were certified under
1
I
.1
I
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 2 of 37
Rule 23(b) (3) to bring unjust enrichment claims, and the New
York class to also seek $50 in statutory damages for each class
member pursuant to New York's General Business Law ("NYGBL")
§
349. The classes were also certified under Rule 23(b) (2) to
seek injunctive and declaratory relief pursuant to Florida's
Deceptive and Unfair Trade Practices Act, Fla. Stat.
("FDUTPA"), and NYGBL
§
§
501.204
349. The motions for class certification
were otherwise denied. Class notice was complete on February 28,
2018 and the opt-out date was April 2, 2018.
L'Oreal now moves for summary judgment on all claims.
Following briefing and oral argument, this Court, on April 3,
2018, issued a preliminary "bottom line" order, denying in part
and granting in part L'Oreal's motion, as well as ordering
supplemental briefing on claims involving the scalp protector.
Thereafter, however, the Court held an in-court hearing with
testimony from plaintiffs' key expert, Patrick Obukowho, to
determine the admissibility of his testimony for purposes of
summary judgment, and ordered further briefing on several
issues.
Having duly considered the voluminous briefing and argument
from both parties, as well as the testimony of Mr. Obukowho, the
Court now (1) decertifies the 23(b) (3) unjust enrichment
classes;
(2) decertifies the 23 (b) (2) classes seeking injunctive
and declaratory relief; and (3)
grants L'Oreal's motion for
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summary judgment as to (A) all claims for injunctive and
declaratory relief;
(B) all claims related to the dangerousness
of the relaxer cream;
(C) the New York plaintiffs' unjust
enrichment claims; and (D) the California plaintiffs' fraud and
negligent misrepresentation claims insofar as they are premised
on omissions. However, the Court denies the motion as to (1) the
NYGBL claims, both on behalf of the New York class and the
individual named plaintiffs;
(2) all remaining claims based on
the alleged dangerousness of the scalp protector and
representations or warranties regarding its ability to protect
scalps; and (3) all remaining claims premised on implicit
misrepresentations that the product is safer than relaxers that
contain lye.1
Summary judgment is appropriate if the "movant shows that
there is no genuine dispute as to any material fact." Fed. R.
Civ. P. 56(a). There is no genuine dispute if, "drawing all
reasonable inferences in favor of a non-movant, no reasonable
trier of fact could find in favor of that party." Heublein,
1
Inc.
Both sides filed motions to strike their adversaries'
expert reports. For the most part, however, the Court does not
here need to decide those motions because the opinions expressed
in those reports would not affect the Court's decision. Those
motions, or portions thereof, that are not addressed herein are
therefore denied as moot, without prejudice to either side
renewing these arguments in motions in limine before the trial
of the remaining claims, which is scheduled to commence on
November 12, 2018.
3
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 4 of 37
v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). A fact is
material if it "might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248
(1986).
I. Disputes of Fact
A.
The Relaxer Cream
The basic chemistry of hair relaxers is undisputed. Compare
Deel. of Peter G. Saichos dated January 19, 2018, ECF No. 162
("Saichos Obukowho Deel."), Ex. 1 ("Obukowho Rep.") ! ! 21-37
with Deel. of Rosemary Rivas dated February 27, 2018, ECF No.
173, Ex. 2 ("Westman Rep.")
13-15. Hair relaxers generally use
an alkaline agent, usually a strong hydroxide, to penetrate the
hair's outer layer and permanently break the disulfide bonds in
the hair's keratin proteins, forming new, substantially weaker
bonds. The relaxer cream is then washed out with a low pH
shampoo to neutralize the hydroxide,
leaving the hair straighter
but more fragile. Hair relaxers thus work by damaging hair.
Unsurprisingly, all hair relaxers can cause hair breakage and
scalp burning. Pls.' Resp. and Evidence to Defs.' Statement of
Material Facts, ECF No. 181
("56.1 Resp.") !
1.
Users of hair relaxers understand these risks. L'Oreal's
expert Larry Hibbard conducted a survey of hair relaxer
consumers, which plaintiffs did not challenge. Hibbard
determined that, after adjusting for the control, 80.2% of
4
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respondents believed that no-lye hair relaxers, such as the
product at issue, can irritate the scalp and 63.5% knew that it
could cause hair to fall out. Deel. of Justin D. Lewis, ECF No.
156, Ex. 10 ("Hibbard Rep.") i
102. Indeed, many had previously
experienced scalp burning or damage to their hair when using
other no-lye hair relaxers. Id. Users' baseline expectation,
then, is that the product here at issue, like all hair relaxers,
poses risks. The alleged difference must be one of degree.
The relaxer cream at issue here contains not only lithium
hydroxide but also proprietary "pro-solvent ingredients." It is
undisputed that these ingredients allow the lithium hydroxide
ions to penetrate the hair faster than they otherwise would. See
Deel. of Rosemary Rivas dated March 5, 2018, ECF No. 179-80
("Rivas Opp. Deel."), Ex. 38 at 3 (L'Oreal patent for a relaxer
cream containing these ingredients, stating that, "when the same
or similar concentration of hydroxide-containing compounds is
used as in prior art compositions, a more efficient/faster
straightening or relaxing result is achieved"). Plaintiffs argue
that these pro-solvent ingredients, together with the design of
the emulsifier in the relaxer cream, cause the product to finish
relaxing hair in less time than users can reasonably apply and
remove it. Because the alkaline agent continues breaking
disulfide bonds until it is removed or neutralized with a low pH
shampoo, the relaxer will necessarily break more bonds than
5
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necessary to relax the hair, thus arguably making the product
unreasonably dangerous.
1.
Expert Report of Patrick Obukowho
Plaintiffs rely almost entirely on the expert report of
Patrick Obukowho, a chemist with years of experience working
with hair relaxers and related products. See Obukowho Rep.
~~
1-
9. Obukowho's report describes a test that purports to
demonstrate the speed with which L'Oreal's product relaxes hair,
outlines the chemistry behind why the relaxer works so quickly,
and states his conclusion that the cream is dangerously
designed. L'Oreal moved to strike this report, and the Court, as
noted, conducted a "Daubert" hearing at which Obukowho
testified. See Transcript dated May 16, 2018, ECF No. 216
("Daubert Tr."); see also Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Obukowho treated three "swatches" of medium-type AfricanAmerican hair with the relaxer cream from a single box, as
directed in the product instructions, and visually determined
that the three swatches were completely relaxed in four-and-ahalf minutes,
at~
four minutes, and five minutes, respectively. Id.
46. According to Obukowho's report, his "experience in this
art" confirms that this "was too quick for a user to fully apply
the relaxer cream to the entire head." Id. Moreover, at least
one version of the package represents that it "works in 13-15
6
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minutes," Rivas Opp. Deel. Ex. 17, and, as L'Oreal's expert
testified, "inherent in Amla's instruction is the determination
that it would take somewhere between 13 and 15 minutes to both
apply the product and
allow it to process adequately."
Rivas Opp. Deel., Ex. 44 at 118:4-9.
Obukowho concluded that the reason for this "fast action"
was "the penetration of the active ingredient lithium hydroxide
aided by the [pro-solvent ingredients], and coupled with an
emulsion that is poorly designed." Obukowho Rep. ! ! 47-57. This
design, Obukowho opines, "is a disaster because it will initiate
and promote excessive penetration of hydroxide ions and
excessively fast breakage of the disulfide bonds in the hair,
resulting in hair breakage, and scalp and skin irritation and
burning." Obukowho Rep. !
44. Indeed, Obukowho believes that any
relaxer that works in less than twenty minutes is excessively
dangerous. Daubert Tr. 621:5-8.
L'Oreal challenges each of Obukowho's conclusions on
independent grounds, under the tests outlined in both Daubert
and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). The Court
finds that Obukowho's conclusion that the relaxers' speed
renders it unreasonably dangerous is unreliable and
inadmissible, even accepting for the sake of argument the
admissibility of his experiment as evidence that the relaxer
cream works very quickly.
7
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 8 of 37
Critically, Obukowho did not mention any experiments or
studies showing how often L'Oreal's relaxer cream causes any
noticeable injury, such as hair breakage or scalp irritation.
Nor did he provide any evidence of how often the product causes
these injuries as compared to properly designed relaxers. Absent
this information, all he could do was repeat his conclusion that
the product's speed inherently rendered it dangerous. See, e.g.,
Obukowho Rep. ! 44; Daubert Tr. 29:12-18
understand it's faster.
("THE COURT: I
. But what is the danger that's
associated with that that leads you to call it excessive? THE
WITNESS: Excessive because in the industry it is the standard to
observe a well-designed relaxer to work anywhere from 20 minutes
and 25 minutes."); Saichos Obukowho Deel, Ex. 3 ("Obukowho
Dep.")
60:14-17
("Initially the hair is not elastic which means
the bonds are still there, but after 4.5 minutes, 5 minutes the
hair became very elastic which in my judgment was too fast.") . 2
2 See also Obukowho Dep. 55:8-15
("[B]eing familiar with
relaxer applications, how it is conducted,
. those trained
in the arts know[] time of penetration when it is too excessive
or when it is not excessive."); Daubert Tr. 30:25-31:6 ("Q: You
did not cite to any standard that indicated that anything
shorter than 15 minutes is considered excessive in the industry,
did you
. ? A: I did not, because based upon my over 30
years' experience in doing relaxer and visiting every company
that makes relaxer, I know that for sure."); id. 39:1-4
("[B]ased upon the work we have done in the lab and having done
so many relaxers in my life, a good relaxer on normal skin
should have a processing time between 20 minutes and 25
minutes.").
8
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Rather than point to direct evidence, plaintiffs argue that
Obukowho's experience suffices to render his conclusion
reliable. In determining the admissibility of an expert opinion,
however, the Court must "undertake a rigorous examination of the
facts on which the expert relies, the method by which the expert
draws an opinion from those facts, and how the expert applies
the facts and methods to the case at hand." Amorgianos v. Nat'l
R.R. Passenger Corp., 303 F.3d 256, 267
(2d Cir. 2002).
Obukowho's conclusory assertions do not permit such a review.
"[N]othing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the
expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see
also Kumho Tire, 526 U.S. at 157 (expert opinion inadmissible
because the only basis for its accuracy was that the expert
"himself claimed that his method was accurate").
Obukowho did opine that "everyone who uses the Product will
have less hair fiber strength and integrity" than they would
have if they had used a relaxer without the pro-solvent
ingredients. Obukowho Rep. !
19. This, he stated, is true "even
when [the damage is] not apparent to users." Id. This conclusion
is reliable, as it is undisputed that relaxers work by
decreasing hair fiber strength and integrity, and L'Oreal's
product works faster than others. 56.1 Resp. ! 1. But a loss of
9
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molecular structural integrity that the user does not even
notice is not actionable, and Obukowho offers no evidence of how
often the product causes perceptible injuries, much less the
type of injuries that would render the product unreasonably
dangerous.
The Court therefore holds that Obukowho's conclusion that
the relaxer cream is unreasonably dangerous because it works so
quickly is inadmissible. 3
2.
Other Evidence
Plaintiffs argue that they have adduced other evidence
sufficient to support a finding that the chemical mechanism
Obukowho describes translates to a distribution of harm that is
meaningfully more severe than that of other relaxers. The Court
disagrees.
Plaintiffs cite two studies conducted by L'Oreal wherein
subjects reported a statistically significant difference in
discomfort between defendants' product and other, differently
formulated relaxers. However, these studies, which asked
subjects to rate their discomfort at various points after
applying the relaxer, show only that the product is marginally
Because, as shown below, the remainder of plaintiffs'
evidence on this score is insufficient to survive summary
judgment, the Court need not address the admissibility of
Obukowho's experiment purporting to demonstrate the speed with
which the relaxer works.
3
10
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more uncomfortable than others, not that it is unreasonably
dangerous. See Rivas Opp. Deel. Ex. 40 at Appendix B (showing
that average maximum burning was approximately 4 out of 9 for
L'Oreal's product, compared to approximately
2 out of 9 for the
other); Rivas Opp. Deel. Ex. 41 at 6 ("Overall sensations were
low with both products.").
Plaintiffs next point to a few internal emails suggesting
that L'Oreal received more complaints about this product than it
did for other relaxers. See Rivas Opp. Deel. Exs. 6 & 10. Even
if that were the case, the overall number of complaints for the
product remains vanishingly small. A toll-free telephone number
appears on the side of every carton of the product, and customer
service contact information is included on the instruction
sheet. Deel. of Erin Devicenzo dated Aug. 25, 2017, ECF No. 118,
~
9. Yet L'Oreal received very few complaints involving health
or hair-breakage: only one-tenth of one percent of the number of
retail purchases. Compare id.
~
14
(number of complaints) with
Deel. of Angela Rutherford, ECF No. 123,
~
3 (number of retail
sales through June 2017). Admittedly, it is likely that not all
users who had a negative experience with the product reported
it. But it is also likely that some reported complaints involved
injuries that would have occurred even with a relaxer that
plaintiffs would deem properly formulated.
In any case, the
scarcity of these complaints suggests that few people
11
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 12 of 37
experienced meaningfully more harm than they expected, despite
the relaxer's speed.
Plaintiffs also point to L'Oreal's patent of the relaxer
cream, which highlights that the pro-solvent ingredients means
less hydroxide is necessary to relax the hair, making the
process safer. See Rivas Opp. Deel., Ex. 38. L'Oreal did not
actually reduce the amount of hydroxide in its product. But the
fact that the cream could have contained less alkali does not
mean that the current level is unreasonably dangerous.
At best, plaintiffs have shown only that the relaxer cream
works faster than others that are differently formulated, which
suggests that it breaks more bonds in the same period of time.
But plaintiffs put forward no evidence indicating how often the
additional exposure causes more than microscopic injuries, and
no meaningful evidence indicating that L'Oreal's product causes
cognizable injuries more often or more severely than other,
properly formulated relaxers do. The handful of studies and
communications referencing higher levels of customer complaints
are insufficient for a reasonable juror to find that this
product is unreasonably dangerous.
The Court therefore grants defendants' motion for summary
judgment as to all claims premised on the unreasonable
dangerousness of the relaxer cream.
12
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B.
The Scalp Protector
Plaintiffs also argue that the product is unreasonably
dangerous and representations to the contrary are false and
misleading because the scalp protector does not "protect[] scalp
& skin," as represented on the product's packaging. Second
Amended Complaint, ECF No. 90
("2AC") 'II'II 36, 114, 132, 140, 166,
175, 208, 222, 229, 277.
Plaintiffs again rely on the expert report of Patrick
Obukowho, who conducted an experiment to compare how long it
takes the hydroxide in the relaxer cream to penetrate the scalp
protector versus petroleum jelly, "a standard protector used in
the industry for some time." Obukowho Rep. 'II 72. Obukowho
applied 1.3 grams of the scalp protector to one pH test strip
and the same amount of petroleum jelly to another, and added 2
grams of the relaxer cream to each strip. Id. In his lab notes,
Obukowho recorded that, after a "few minutes," the strip with
L'Oreal's product turned green, indicating that the relaxer had
penetrated the scalp protector. Saichos Obukowho Deel., Ex. 5 at
2. In his report, Obukowho stated that the shade of green
indicated that the pH level increased to 12, the same as the
relaxer itself. Obukowho Rep. 'II 72. At the Daubert hearing,
Obukowho testified that this process took "less than a minute or
two." Daubert Tr. 56:5-8. By contrast, the control test strip
did not change color for about 30 minutes. Obukowho Rep. 'II 72.
13
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Obukowho repeated the test five times with the same result.
Obukowho Rep.
~~
71-73.
L'Oreal argues that this test is unreliable and
inadmissible. The Court disagrees. This is a simple experiment
using reliable materials with straightforward results.
In fact,
the majority of defendants' objections are not to the procedure
outlined in Obukowho's report and testimony nor to the
reliability of his conclusions, but rather to his cavalier
approach to taking notes. His lab notes do not indicate that he
performed the experiment more than once and say only that the
relaxer penetrated the scalp protector in "a few minutes,"
Saichos Obukowho Deel., Ex. 5 at 2; he only took pictures of the
pH strips from one of the five experiments, Rivas Opp. Deel.,
Ex. 58; and he threw the pH strips away, Daubert Tr. 33:22-25. 4
These are objections to Obukowho's credibility, suggesting that
the test procedure or results actually differed from what he
described in his report and on the stand. These credibility
arguments are matters for the jury and can be made during crossexamination and at closing argument. They are not grounds to
exclude his testimony entirely.
4 L'Oreal also complains that Obukowho did not include in
his report the precise shade of green that the paper turned. But
he did: the pH paper turned the shade that corresponds with a pH
of 12. Rivas Opp. Deel., Ex. 21 ~ 3. Nothing more specific is
required.
14
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L'Oreal also offers a series of speculative objections. For
example, there may be a difference between 1.3 grams of
petroleum jelly and 1.3 grams of scalp protector, meaning the
experiment was not a fair comparison, or the scalp protector may
function differently if applied to human skin instead of the pH
paper. But the merits of these criticisms are not self-evident,
and L'Oreal provides no evidence supporting them. A reliable
experiment does not have to control for irrelevant variables.
The only meaningful criticisms that L'Oreal levies against
the experiment is that it was not blinded and used the relaxer
cream and scalp protector from a single box, which may have been
an outlier. A blinded experiment would be preferable, but that
error can be raised at trial. The fact that Obukowho used a
single kit for all five of his experiments means he cannot
reliably testify that the scalp protector in every kit is
ineffective, but does not exclude the experiment entirely. Both
the relaxer and the scalp protector appear to be mass produced,
so one would expect any individual box to be the same as the
others. L'Oreal, of course,
is free to argue to the jury,
including through presentation of its own experiments or other
evidence, that this outcome is not be representative.
Moreover, while one would expect an unreasonably dangerous
flaw in the relaxer cream to lead to numerous complaints, an
inherent flaw in the scalp protector would not necessarily do
15
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the same, because users already guard against letting the
relaxer cream touch their scalp. See, e.g., Rivas Opp. Deel.,
Ex. 48
(relaxer instructions)
("Keep relaxer off scalp and other
skin areas. Contact with scalp or other skin areas can cause
serious skin irritation or burns."); id.
("Avoid applying
relaxer to scalp." (emphasis in original)).
Plaintiffs have thus shown a genuine dispute as to whether
the scalp protector in fact protects scalps from the hydroxide
in the relaxer cream, whether representations and warranties to
the contrary are misleading or were breached, whether this flaw
renders the kit unreasonably dangerous, and whether the defect
caused their physical injuries.
C.
Implicitly Misleading Representations
Plaintiffs' misrepresentation claims are based on the
following statements or alleged breaches of the following
warranties:
that
the
Product
is
a
"no-lye," "antibreakage"
and
"intense
conditioning"
"rejuvenating ritual" that is "infused with"
a "powerful antioxidant rich in vitamins in
minerals"
and
which
"delivers
unified
results," has "superior respect of hair fiber
integrity,"
"reveal[s]
visibly
fuller,
silkier hair", "protects scalp & skin" and
"infuses hydration & conditioning."
16
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2AC
~
114
(Count I, Magnuson-Moss Warranty Act, 15 U.S.C. §
2301) . 5 L'Oreal claims that these are not misrepresentations
because they are true.
These representations are literally true, apart, perhaps,
from those relating to the scalp protector. The relaxer cream
does not contain lye. "Anti-breakage" appears beneath the "oil
moisturizer" component, "intense conditioning" appears beneath
the conditioner, and "infuses hydration & conditioning" appears
beneath the neutralizing shampoo. Rivas Opp. Deel. Ex. 17.
Plaintiffs offer no evidence that these individual components do
not independently have these properties, and have not
established a genuine dispute as to whether the relaxer cream is
so unreasonably dangerous that they cannot serve these functions
when used as part of the kit. Plaintiffs' only argument that the
product does not involve a "rejuvenating ritual," "reveal
visibly fuller,
silkier hair," or "deliver unified results" is
See also 2AC ~ 132 (Count II, California's Consumers Legal
Remedies Act, Cal. Civil Code§ 1750); ~ 140 (Count III,
California's False Advertising Law, Cal. Bus. & Prof. Code
§17500); ~ 153 (Count IV, California's Unfair Competition Law,
Cal. Bus. & Prof. Code § 17200); ~ 166 (Count V, Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 Ill.
Comp. Stat. 505/1); ~ 175 (Count VI, Breach of Express
Warranty); ~ 208 (Count IX, Breach of Contract/Common Law
Warranty); ~ 222 (Count 11, Fraud); ~ 229 (Count XII, Negligent
Misrepresentation); ~ 291 (Count XV, various other state
consumer laws).
5
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that the relaxer cream is unreasonably dangerous - a proposition
they have not supported.
The motion for summary judgment is therefore granted to the
extent plaintiffs' claims are based on the express falsity of
any of these representations, apart from those related to the
scalp protector.
However, plaintiffs also argue that these representations,
combined with other aspects of the product's packaging,
misleadingly communicate to consumers that the product is safer
than other relaxers.
6
Although plaintiffs have not shown a
genuine dispute as to whether the product is unreasonably more
dangerous than other relaxer creams, the evidence strongly
suggests that the product is not safer. There is a genuine
dispute, then, as to whether an implied representation that the
product is safer than other relaxers would be misleading. The
question is whether there is such an implicit representation.
"Lye" is the common name for the chemical sodium hydroxide,
and is the active ingredient in many relaxers. Obukowho Rep.
~
34; Westman Rep. at 14. The active ingredient in L'Oreal's
In their brief, plaintiffs contend the representations
that the product is "nourishing," "conditioning," and contains
"anti-oxidants," "reinforced by the Product imagery, which
depicts a woman whose beautiful sleek hair is glowing gold like
the adjacent golden droplet of "Amla oil, contributed
significantly to the deception that the Product was more gentle,
natural, safer, and healthier than other relaxers." ECF No. 177
at 10.
6
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product is lithium hydroxide; it contains no sodium hydroxide.
See Rivas Opp. Deel. Ex. 17. Describing the product as "no-lye"
is therefore technically accurate. The issue is how a normal
consumer understands that representation.
Separate from this litigation, L'Oreal conducted a study
among 406 African American women,
from 18 to 49 years old, who
had used hair relaxers in the past six months. Rivas Opp. Deel.,
Ex. 47 at 4. The ihitial "concept evaluations" portion of the
study asked the women to evaluate the product's packaging. 57%
of respondents said that the phrase "no-lye" communicated to
them "that the product contained no/fewer chemicals" than other
relaxers, and 39% said it communicated that the product "will
not be harmful to the hair." Id. at 6. 27% of respondents
pointed to the lack of lye as the principal reason they would
like to use the relaxer.
Id. at 5. Another of L'Oreal's studies
found that "women are drawn to trying Arnla relaxer anticipating
that an oil-based/no lye relaxer .
. will be more soothing and
protective of a sensitive scalp than relaxers they've used
previously." Rivas Opp. Deel., Ex. 5 at 2.
Plaintiffs also rely on their own survey, as described in
the report of their proffered marketing and survey expert, J.
Michael Dennis, to argue that this representation leads
consumers to believe that the cream is safer and gentler than
relaxers that contain lye. See Deel. of Peter G. Saichos, ECF
19
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 20 of 37
No. 165,
("Saichos Dennis Deel."), Ex. 1 ("Dennis Rep.").
L'Oreal moves to exclude this report.
Dennis's study population was African-American women in the
United States, ages 18 to 54, who had purchased a hair relaxer
kit in the past five years for personal use. Id.
~
21. After
screening questions to establish eligibility, 410 women were
asked three questions regarding the "No-Lye" representation, and
407 answered all three. Id.
~
27. A screen shot of one question
appears below:
~1parm:l to h* mklxi!r~fts ttillt4io~ haN·~ ttmwerda •f«r.L)lll~ ®'I tlie paebg:e, ~woold
1.ye~ hait ttll!W!!t ~t?
"~um~-~~'
·=' = = - - ' " " < '
·- =
Id.
~
~
-··
~~nN
· -
~~~"-·'==
=,,__,,,,_.,_ _
,,,,_~
oo your t~~l«i aboot tile 'tia-
'=~~---"'"~"""""~~
~··
~~.
'
~
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~~
~
33. The other two questions were similarly formulated, but
offered the following sets of options:
(1) "More safe to use,"
"Less safe to use," and "I would not have an expectation"; and
(2) "More likely to be harmful to your scalp and hair," "Less
likely to be harmful to your scalp and hair," and "I would not
have an expectation." Saichos Dennis Deel., Ex. 3. According to
Dennis, 80% of respondents answered that they would expect a
20
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 21 of 37
relaxer whose package makes the "No-Lye" representation to be
"less harsh on your hair," 77.5% would expect that it is "more
safe to use," and 77.9% that it is "less likely to be harmful to
your scalp and hair." Dennis Rep. i
33.
L'Oreal objects that these survey questions are unreliably
leading because the provided answers force the respondent to
specifically consider the safety implications of the
representation, while consumers who see the representation on a
package in the store may never consider that it has anything to
do with health or safety. Using a control or asking open-ended
questions would mitigate this concern, but Dennis did not do so.
Comparable flaws have rightfully served as the basis for
exclusion of similar surveys in other areas. See Johnson &
Johnson-Merck Comsumer Pharm. Co. v. Smithkline Beecham Corp.,
No.
91-cv-0960,
1991 WL 206312, at *8
aff'd 960 F.2d 294
(S.D.N.Y. Oct. 1, 1991),
(2d Cir. 1992); Coors Brewing Co. v.
Anheuser-Busch Companies, Inc., 802 F. Supp. 965,
973
(S.D.N.Y.
1992); Johnson & Johnson-Merck Consumer Pharm. Co. v. RhonePoulenc Rorer Pharm.,
Inc., 19 F.3d 125, 136 (3d Cir. 1994).
However, plaintiffs have adduced significant evidence that
relaxer consumers independently associate lye with dangerousness
and no-lye relaxers with comparative safety, as discussed above.
The risk that respondents only considered this possibility
because of the listed responses is therefore relatively low,
21
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 22 of 37
making the survey results more reliable. The remainder of
defendants' objections go to weight and not admissibility.
The Dennis survey regarding the no-lye representation is
therefore admissible, and a genuine dispute exists as to whether
that representation, alone or in combination with others on the
box, meaningfully communicates to users that it is safer or
gentler than relaxers that do contain lye.
II.
Claim-Specific Arguments
The two general categories of disputed facts remaining for
trial, then, are (1) whether the scalp protector does not in
fact protect scalps, and (2) whether the packaging misleadingly
represents or warrants in effect that the relaxer cream is safer
or gentler than relaxer creams that contain lye. The Court now
turns to the legal objections to plaintiffs' various claims.
A.
23(b) (3) Class Decertification Motions
The Court previously certified two 23(b) (3) classes
consisting, respectively, of New York and Florida purchasers of
the kit. The classes were certified to pursue unjust enrichment
claims under each respective state's laws, and the New York
class to pursue statutory damages under NYGBL
§
349. Though
captioned as a motion for summary judgment, L'Oreal argues that
plaintiffs have not adduced sufficient classwide proof of
various elements to permit these classes to continue. Since
plaintiffs have addressed these arguments equally extensively
22
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 23 of 37
and on similar terms, the Court takes the motion as also asking
for decertification, and grants that motion as to the unjust
enrichment claims of both the Florida and New York classes, but
not the NYGBL § 349 claims for statutory damages.
1.
Unjust Enrichment
The only classwide theory of damages that plaintiffs have
proposed for their unjust enrichment claims is a full refund, on
the ground that the product is so dangerous that it is
effectively worthless. At class certification, the Court held
that the truth of these allegations was an issue for summary
judgment, and invited plaintiffs to present a different theory
of damages in case the evidence did not ultimately support their
theory. Plaintiffs did not do so, and have not adduced
sufficient evidence for a reasonable juror to find that the
product is so dangerous that it is rendered worthless.
It is possible that classwide damages equivalent to the
value of the scalp protector are appropriate. But there is no
evidence in the record of what that value is. And the allegedly
defective nature of the scalp protector alone does not render
the entire kit so dangerous as to be worthless. Moreover, there
is no dispute that the conditioner, shampoo, and moisturizer in
the kit perform their intended functions. A full refund would
therefore be unjust. Given the absence of any other theory of
23
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 24 of 37
classwide relief, the 23(b) (3) unjust enrichment classes are
hereby decertified.
2.
NYGBL § 349
The New York class's statutory claims, however, present no
such problem. NYGBL § 349 provides for the greater of actual
damages or $50 statutory damages for anyone injured by a
violation of its terms. NYGBL
§
349(h). The entire product here
at issue costs less than $50, so the statutory damages would
necessarily be more than any price premium. Because the
statutory damages apply on a classwide basis, there is no need
to determine the exact amount of that price premium.
On the merits, plaintiffs have adduced sufficient evidence
for a reasonable juror to find that the inclusion of the scalp
protector increased the price of the product. The package
advertised the scalp protector as one of the five steps in the
"Amla Legend 5 Step Ritual," along with the shampoo,
conditioner, moisturizer, and relaxer cream. Rivas Opp. Deel.
Ex. 17.
In the section of the packaging that advises consumers
to "READ BEFORE PURCHASING," it is "recommended that you use
Amla Scalp Protective Pre-treatment during application as
indicated on the enclosed instructions." Id. In the "SAFETY
WARNINGS" on the outside of the box, the kit instructs users to
"[k]eep relaxer off scalp and other skin areas." Id. Setting
aside the representations on the box, 85.4% of respondents in
24
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 25 of 37
the Hibbard survey, all of whom had used relaxers,
indicated
that a scalp protector should always be applied before using nolye hair relaxers. Hibbard Rep.
~
102. A reasonable juror could
therefore find that the scalp protector added value to the kit.
If L'Oreal had informed consumers that the scalp protector did
not work (as here alleged), then the kit would universally have
cost less.
L'Oreal argues that plaintiffs cannot prove that any
misrepresentation caused every class member an injury, because
some class members likely would have purchased the product even
in the absence of those allegedly misleading representations.
This argument, however, is an attempt to impose a reliance
requirement where none exists. As the New York Court of Appeals
has recognized in this context, "[r]eliance and causation are
twin concepts, but they are not identical." Stutman v. Chem.
Bank, 731 N.E.2d 608, 612 (N.Y. 2000). In Stutman, a contract
between a borrower and bank provided that the bank would not
charge a fee for early payments, but the bank nonetheless
charged the borrower $275 when he tried to refinance. Id. at
610. The Appellate Division dismissed the NYGBL claim, holding
that the misrepresentation had no effect on the plaintiff's
decision to borrow in the first instance. Id. at 612. The Court
of Appeals reversed on this point, holding that reliance was not
required: "Here, plaintiffs allege that because of defendant's
25
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 26 of 37
deceptive act, they were forced to pay a $275 fee that they had
been led to believe was not required. In other words, plaintiffs
allege that defendant's material deception caused them to suffer
a $275 loss." Id. at 612-13. Stutman likely would have gotten
the same loan from the same bank for the same amount even if the
contract had provided for a $275 prepayment fee. Nonetheless,
had the defendant abided by its representation, Stutman would
have had $275 more dollars. This, the New York Court of Appeals
held, was sufficient to show causation of an injury under § 349.
The present case is similar, although the injury is the
alleged price premium, not a subsequent charge. It may be that
some class members would have been willing to purchase the
product for the same price even if they knew the scalp protector
did not work. But that does not matter. If there is a price
premium, then every purchaser of the kit paid more than they
otherwise would have, so every purchaser was injured. A
purchaser's individual experience after purchasing the product
or idiosyncratic ex ante valuation does not matter.
For exactly this reason, courts regularly certify classes
alleging § 349 violations when the injury was payment of a price
premium. See, e.g., Belfiore v. Procter & Gamble Co., 311 F.R.D.
29, 62
(E.D.N.Y. 2015); Goldemberg v. Johnson & Johnson Consumer
Companies, Inc., 8 F. Supp.
3d 467,
481
(S.D.N.Y. 2014); In re
Scotts EZ Seed Litig., 304 F.R.D. 397, 414
26
(S.D.N.Y. 2015). The
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 27 of 37
New York 23(b) (3)
class therefore remains certified as to its
NYGBL claim for statutory damages.
B.
Injunctive and Declaratory Relief
The Court also certified two classes under Rule 23(b) (2)
to
pursue claims for declaratory and injunctive relief under NYGBL
§
349 and the FDUTPA. L'Oreal renews its argument,
first made at
the stage of class certification, that plaintiffs lack standing
to seek such relief because they will not purchase the product
again, so there is no threat that they will be injured by the
alleged defect in the future. L'Oreal relies on a recent Second
Circuit case that had not been decided when the Court certified
this class. See Kommer v. Bayer Consumer Health, a division of
Bayer AG,
710 F. App'x 43
(2d Cir. 2018). In Kommer,
the Second
Circuit affirmed the district court's holding that the named
plaintiff did not have standing to pursue injunctive relief
because he would not purchase the product at issue again now
that he knew of the alleged deception and false advertising.
Id.
at 44. Several district courts have since relied on Kommer to
hold that named plaintiffs who had discovered the defendants'
alleged wrongdoing did not have standing to seek injunctive
relief. See Daniel v. Mondelez Int' 1, Inc., 287 F. Supp. 3d 177,
184-186 (E.D.N.Y. 2018); Campbell v. Freshbev LLC, No. 1:16-CV7119, 2018 WL 3235768, at *3
(E.D.N.Y. July 3, 2018).
27
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 28 of 37
Although Kommer is a non-precedential summary order, and
although the Court retains doubts about its conclusions, the
Court feels compelled to follow its lead in deference to the
Court of Appeals. Here, plaintiffs adduce no evidence that they
are likely to repurchase the product, and indeed allege that
they would not have purchased the product in the first place had
they known of its alleged defects. 2AC at
~~
12, 13, 18, 19.
Plaintiffs therefore cannot reasonably contend that they may
suffer a similar injury again absent an injunction. Though
absent members of the class plausibly do face this future
injury, the named plaintiffs themselves must have standing. See
Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 40
(1976). Under the growing weight of case law in this circuit,
they do not. The 23(b) (2) classes are therefore decertified and
the motion for summary judgment as to the individual plaintiffs'
injunctive and corresponding declaratory relief is granted.
C.
Unjust Enrichment
L'Oreal argues that the New York and Florida plaintiffs'
unjust enrichment claims must be dismissed because they
duplicate other adequate, legal remedies.
Under New York law, an unjust enrichment claim "is not
available where it simply duplicates, or replaces, a
conventional contract or tort claim." Corsello v. Verizon New
York,
Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012). The Court denied
28
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 29 of 37
L'Oreal's motion to dismiss on this ground, permitting
plaintiffs to plead in the alternative because as-yet
undiscovered evidence could have shown that defendants were
unjustly enriched and alternative legal claims were unavailable.
At summary judgment, however, plaintiffs must actually adduce
such evidence. They have not.
Instead, plaintiffs point to the
elements of their unjust enrichment claim that differ from the
NYGBL claim, but provide no reason to believe a reasonable juror
could find for them on the former but not the latter. The New
York plaintiffs' unjust enrichment claims are therefore
dismissed.
Florida law, however, only bars unjust enrichment claims if
there is an express contract between the parties. See Williams
v. Bear Stearns & Co., 725 So. 2d 397, 400
1998); State Farm Mut. Auto.
(Fla. Dist. Ct. App.
Ins. Co. v. Physicians Injury Care
Ctr., Inc., 427 F. App'x 714, 722
(11th Cir. 2011), rev'd in
part sub nom. State Farm Mut. Auto. Ins. Co. v. Williams, 824
F.3d 1311 (11th Cir. 2014). L'Oreal has not shown that there was
an express contract between themselves and the Florida
plaintiff, who purchased the product from a retailer.
L'Oreal next argues that the Florida unjust enrichment
claim must fail because the Florida plaintiff - Tiffany Raines did not confer a benefit upon the defendants when she purchased
the product from an intermediary retailer, as there is no
29
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 30 of 37
evidence that the retailer paid L'Oreal any more than it would
have in the absence of this purchase. But L'Oreal's business
model depends on consumers purchasing its product from
retailers. It is pointlessly formalistic to find that consumers
who do exactly that have not conferred a benefit upon
defendants. It does not matter if that benefit flowed through an
intermediary. See Williams v. Wells Fargo Bank N.A., No. 1121233, 2011 WL 4901346 at *5 (S.D. Fla. Oct. 14, 2011)
("It
would not serve the principles of justice and equity to preclude
an unjust enrichment claim merely because the 'benefit' passed
through an intermediary before being conferred on a
defendant."); Romano v. Motorola, Inc., No. 07-60517, 2007 WL
4199781 at *2
(S.D. Fla. Nov. 26, 2007)
("Defendant erroneously
equates direct contact with direct benefit in arguing that
because plaintiff here did not purchase either his phone or his
batteries from Motorola, plaintiff conferred no direct benefit
on Motorola.").
Nor is this Court convinced by L'Oreal's contention that
Florida law requires plaintiffs to exhaust all legal remedies
against the parties with whom they are in privity before
pursuing indirect unjust enrichment claims. To support this
proposition, L'Oreal cites a treatise, 11 Fla. Jur. 2d Contracts
§
289, which cites a single case, Maloney v. Therm Alum Indus.
Corp., 636 So. 2d 767
(Fla. Dist. Ct. App. 1994). In Maloney,
30
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 31 of 37
the court held that a subcontractor's unjust enrichment claim
against the property owner was premature until his claims
against the contractor, which were separately ongoing, had
concluded. Id. at 769-70. Florida courts have applied this rule
to bar similar claims by subcontractors against property owners.
See Commerce P'ship 8098 Ltd. P'ship v. Equity Contracting Co.,
695 So. 2d 383, 389 (Fla. Dist. Ct. App. 1997); Universal Ltd.,
Inc. v. Spirit Constr. Servs., Inc., No. 5:08-CV-521-0C-lOGRJ,
2009 WL 10670060, at *2
(M.D. Fla. June 1, 2009). But courts
have not even mentioned Maloney in other cases involving
indirect unjust enrichment. See, e.g., In re Horizon Organic
Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., 955 F.
Supp. 2d 1311, 1337 (S.D. Fla. 2013); Krzykwa v. Campbell Soup
Co., 946 F. Supp. 2d 1370, 1375 (S.D. Fla. 2013). There is good
reason not to expand this requirement beyond that specific
context. If a subcontractor has not received payment for its
services, that is normally the fault of the contractor that
hired her - the subcontractor and the original client have no
relationship. By contrast, a manufacturer that markets its
products directly to customers has a more profound obligation to
those customers than does the retailer, which is not best
situated to determine the truth of the representations on the
package or whether the product inside is defective.
31
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 32 of 37
L'Oreal also posits that Raines did not rely on the alleged
misrepresentations because she testified that she "had already
made a decision to purchase that relaxer" before she arrived at
the shelf. Deel. of Peter Saichos dated August 25, 2017, ECF No.
125, Ex. 2 127:18-24. However, she also testified that she read
the representations on the box before purchasing the product.
Id. 128:2-24. There is thus a genuine dispute as to whether she
would have purchased the product had it disclosed that the scalp
protector did not work.
Last, L'Oreal contends that Raines caused her own injuries
through misuse, and thus lost the benefit of the bargain through
her own negligence. This misstates Raines' unjust enrichment
claim, which is that she was injured at the cash register when
she purchased the defective product.
D.
NYGBL
§
349
L'Oreal repeats its argument that plaintiffs' NYGBL claim
impermissibly conflates the deception with the injury, citing
Small v. Lorillard Tobacco Co, 720 N.E.2d 892
(N.Y. 1999). The
Court again rejects this argument. Small stands for the simple
proposition that one cannot recover merely for having been
deceived -
the deception must have caused an injury. Id. at 898.
The Small court also recognized that "the higher price the
consumer paid for the product as a result of the
misrepresentation" could constitute such an injury. Id. at 898
32
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 33 of 37
n.5. Numerous courts have followed that lead. See Orlander v.
Staples, Inc., 802 F.3d 289, 302
(2d Cir. 2015)
(approvingly
citing cases in which "the issue of 'price premium' was relevant
because it showed that plaintiffs paid more than they would have
for the good but for the deceptive practices of the defendantsellers"); Ackerman v. Coca-Cola Co., No. CV-09-0395, 2010 WL
2925955, at *23 (E.D.N.Y. July 21, 2010). Here, plaintiffs
contend not only that they would not have purchased the product
had they known of its defects - which alone would not suffice but also that they paid a price premium given the undisclosed,
defective nature of the product. That is sufficient.
L'Oreal next argues that plaintiffs' claims are
impermissible because they involve latent defects, for which
consumers cannot recover under New York law. See Frank v.
DaimlerChrysler Corp., 741 N.Y.S.2d 9, 13-18
(App. Div. 2002)
(affirming dismissal of complaint alleging that plaintiffs
bought cars with seat backs that had not yet collapsed, but were
prone to doing so). However, plaintiffs do not allege that the
scalp protector tends to fail or fails under certain
circumstances. They allege that the scalp protector does not
protect scalps. That defect,
if it exists, was manifest from the
moment of purchase.
E.
Fraud and Negligent Misrepresentation by Omission
33
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 34 of 37
L'Oreal claims that the New York,
Florida,
Illinois,
Missouri, and California plaintiffs cannot succeed on any fraud
or negligent misrepresentation claims based on the omission of
material facts because defendants had no duty to disclose those
facts to consumers. These states define this duty in varying
ways, but in most, a manufacturer that knows its product
presents an unexpected safety risk when put to its normal use
has a duty to disclose that fact to consumers who do not have
access to that information. See, e.g., Catalano v. BMW of N.
Am., LLC, No. 15-CV-4889, 2016 WL 3406125, at *3-4 (S.D.N.Y.
June 16, 2016); Aubin v. Union Carbide Corp., 177 So. 3d 489,
514
(Fla. 2015); Ringelestein v. Johnson & Johnson, No. 16 C
4970, 2017 WL 2362630, at *3
(N.D. Ill. May 31, 2017); Indep.
Bus. Forms, Inc. v. A-M Graphics, Inc., 127 F.3d 698, 702
Cir. 1997)
(8th
(applying Missouri law) .
The only exception is California, where a duty to disclose
only arises if there is a direct "transaction" between a
manufacturer and end-consumer and negligent omission claims are
otherwise barred. See Bigler-Engler v. Breg, Inc., 213 Cal.
Rptr. 3d 82, 113 (Ct. App. 2017); Conte v. Wyeth, Inc., 85 Cal.
Rptr. 3d 299,
316 (Ct. App. 2008). L'Oreal's summary judgment
motion is therefore granted as to the California plaintiffs'
fraud and negligent misrepresentation claims insofar as they are
34
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 35 of 37
based on omissions. The motion is denied as to the Florida, New
York,
Illinois, and Missouri plaintiffs.
F.
Magnuson-Moss Warranty Act
Last, L'Oreal argues that plaintiffs' claims under the
Magnuson-Moss Warranty Act
(the "MMWA") must be dismissed
because all but two plaintiffs failed to give defendants a presuit opportunity to cure the alleged defect. The MMWA states, in
relevant part:
No action (other than a class action .
may be brought .
. and a class of consumers
may not proceed in a class action . . . except
to the extent the court determines necessary
to establish the representative capacity of
the named plaintiffs .
. unless the person
obligated under the warranty or service
contract is afforded a reasonable opportunity
to cure such failure to comply.
In the
case of such a class action
such
reasonable opportunity
[to cure]
will be
afforded by the named plaintiffs and they
shall at that time notify the defendant that
they are acting on behalf of the class.
15 U.S.C.
§
2310(e).
As the Court recognized in its ruling on the motion to
dismiss, ECF No. 98 at 27, the fairest reading of this somewhat
convoluted portion of the statute is that a class action, unlike
individual actions, can be "brought" even if the named
plaintiffs have not provided notice of or an opportunity to cure
their individual claims. Notice and opportunity to cure are
required, however,
for the class action to "proceed" once the
35
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 36 of 37
Court determines that the named plaintiffs are adequate
representatives under Rule 23 (a) (4) of the Federal Rules of
Civil Procedure. See In re Porsche Cars N. Am., Inc., 880 F.
Supp. 2d 801, 824 (S.D. Ohio 2012); Flynn v. FCA US LLC, 15-cvO8 5 5, 2018 WL 3 3 0 3 2 6 7, at
* 4 ( S . D. I 11. Ju 1 y 5, 2018) .
If the statute does not require named plaintiffs of
putative class actions to provide notice and an opportunity to
cure before filing suit, then those plaintiffs do not forfeit
their individual claims by failing to do so. Whether the class
is ultimately certified is irrelevant on this point. Here,
although plaintiffs did not include these claims in their class
certification motion, see ECF No. 105, they originally sought to
represent a nationwide class as to their MMWA claims, see 2AC
~
106. They therefore were not required to give pre-suit notice.
L'Oreal does not contest that plaintiffs Jacobs and
Oravillo have now provided notice and an opportunity to cure.
The remaining plaintiffs must do the same within twenty days of
the date of this order, or their MMWA claims will be forfeited.
L'Oreal's summary judgment motion as to the MMWA claims is
denied, without prejudice to renewal at that point.
CONCLUSION
For the foregoing reasons, the Court decertifies both
23 (b) (2) classes, the Florida 23 (b) (3)
class, and the New York
23(b) (3) class as to its unjust enrichment claims. The New York
36
Case 1:16-cv-06593-JSR Document 223 Filed 08/01/18 Page 37 of 37
class remains certified to pursue statutory damages under NYGBL
§
349. The Court dismisses all claims for injunctive and
declaratory relief, all claims related to the dangerousness of
the relaxer cream, the New York plaintiffs' unjust enrichment
claim, and the California plaintiffs' fraud and negligent
misrepresentation claims that are premised on omissions. The
motion is denied as to all remaining claims premised on the
alleged dangerousness of the scalp protector, misleading
representations or warranties regarding its functionality, and
implicit misrepresentations that the product is safer than
relaxers that contain lye. The Clerk of Court is directed to
close all open motions on the docket of this case.
SO ORDERED.
Dated:
~{;{t;.D.J.
New York, NY
July
2018
31,
37
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