Price et al v. L'Oreal USA, Inc. et al

Filing 324

ORDER denying 320 Motion for Reconsideration re 320 MOTION for Reconsideration Memorandum of Law in Support of Plaintiffs' Motion for Reconsideration, or, in the Alternative, Motion for Clarification filed by Christine Chad wick, Brandi Price. It is hereby ORDERED that, for the foregoing reasons, the Motion (Dkt. No. 320) is DENIED. It is further ORDERED that, by December 17, 2021, the parties shall meet and confer regarding next steps and file a joint letter apprising the Court of their proposal(s). The Clerk of Court is respectfully directed to close the motion at Docket Number 320. (Signed by Judge Lorna G. Schofield on 12/10/2021) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
BRANDI PRICE AND CHRISTINE
:
CHADWICK, individually and on behalf of all :
others similarly situated,
:
Plaintiffs, :
-against:
:
L’ORÉAL USA, INC. AND MATRIX
:
ESSENTIALS LLC,
:
Defendants :
------------------------------------------------------------ X

17 Civ. 614 (LGS)
ORDER

LORNA G. SCHOFIELD, District Judge:
WHEREAS, on September 29, 2021, the Court issued an Opinion and Order granting
Defendants’ motion to decertify the classes (the “Opinion”).
WHEREAS, on October 13, 2021, Plaintiffs timely filed a Motion for Reconsideration, or
in the Alternative, Motion for Clarification (the “Motion”). Plaintiffs assert that “the Court
overlooked key pieces of evidence that, in fact, support the Court’s earlier certification of the
Classes, and which may alter the Court’s Order granting decertification.” Alternatively, Plaintiffs
request “that the Court clarify that its Order is without prejudice and permit Plaintiffs to field a
corrected conjoint survey.”
WHEREAS, on October 27, 2021, Defendants filed a Memorandum of Law in opposition
to the Motion (the “Opposition”).
WHEREAS, a motion for reconsideration should be granted “only when the [party
seeking reconsideration] identifies an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent manifest injustice.” Cho v.
Blackberry Ltd., 991 F.3d 155, 170 (2d Cir. 2021) (internal citation omitted). The standard “is
strict, and reconsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked -- matters, in other words, that might

reasonably be expected to alter the conclusion reached by the court.” Id. (internal citation
omitted). A motion for reconsideration is not “a vehicle for relitigating old issues, presenting the
case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at
the apple.” Analytical Survs., Inc. v. Tonga Partners, 684 F.3d 36, 52 (2d Cir. 2012) (internal
quotation marks omitted); Dill v. JPMorgan Chase Bank, N.A., No. 19 Civ. 10947, 2021 WL
3406192, at *11 (S.D.N.Y. Aug. 4, 2021). The decision to grant or deny a motion for
reconsideration rests within “the sound discretion of the district court.” Aczel v. Labonia, 584
F.3d 52, 61 (2d Cir. 2009); Strougo v. Barclays PLC, 334 F. Supp. 3d 591, 595 (S.D.N.Y. 2018).
WHEREAS, the Motion does not identify “an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
Cho, 991 F.3d at 170. The material facts and law raised in the Motion were before the Court in
connection with Defendants’ motion to decertify the classes, which was granted because
“Plaintiffs ha[d] not provided a means of calculating class-wide damages consistent with
Plaintiffs’ alleged injury -- that they paid a price premium because of the Challenged Claims” as
required under Comcast Corp. v. Behrend, 569 U.S. 27 (2013). In reaching this conclusion, the
Opinion held that (1) Dr. Dubé’s conjoint survey did not isolate the alleged damages stemming
from Defendants’ alleged misrepresentations and (2) even if the conjoint survey was proper, the
absence of evidence on quantity and average price of New York and California retail sales
rendered Dr. Dubé’s formula for calculating class-wide damages unreliable.
In the Motion, Plaintiffs claim that the Court “overlooked key evidence” in making such
conclusions. Plaintiffs’ argument primarily rests on the notion that Defendants waited too long to
challenge Dr. Dubé’s inclusion of “+ Silk” in his conjoint survey. But Plaintiffs raised an
identical argument in opposing Defendant’s motion to decertify the classes, which the Opinion
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considered and rejected. Reconsideration is therefore inappropriate on this ground. See
Analytical Survs., Inc., 684 F.3d 36 at 52.
Even if Plaintiffs could overcome challenges to Dr. Dubé’s conjoint survey, the Motion
would still fail because Plaintiffs have not adduced evidence establishing the quantity or average
prices of New York and California retail sales during the class period. Plaintiffs argue that they
should instead be permitted to “establish a post-verdict claims process.” But this request ignores
Plaintiffs’ burden under Rule 23 of producing a reliable method for measuring class-wide
damages. See In re Amla Litig., 328 F.R.D. 127, 136 (S.D.N.Y. 2018) (acknowledging the
reliability of plaintiffs’ proposal to calculate class-wide damages by “multiplying the number of
New York purchases of the product by $50,” but explaining that plaintiffs could not do so
without evidence of the total number of retail New York purchases).
WHEREAS, alternatively, Plaintiffs seek to re-open discovery “to obtain the required data
to support an aggregate damages model” and for “the opportunity to modify and re-field Dr.
Dubé’s conjoint survey.” This request falls short of Rule 16(b)(4)’s “good cause” requirement.
Plaintiffs had ample time -- over two years -- to obtain fact and expert discovery before it ended
in September 2019. Shortly thereafter, Defendants filed a pre-motion letter in anticipation of a
motion for summary judgment and decertification. In their letter motion, Defendants argued for
decertification on the grounds that “Dr. Dubé’s proposed measure of damages includes the value
associated with the term ‘+ Silk,’ even though Plaintiffs do not allege that this term is false or
misleading.” In response, on October 24, 2019, Plaintiffs sought leave to serve a supplemental
report from Dr. Dubé regarding class damages. On October 29, 2019, the Court granted
Plaintiff’s motion. Following Dr. Dubé’s supplemental report, Defendants deposed Dr. Dubé
again and prepared and served their own supplemental expert reports in rebuttal.
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Reopening discovery yet again would undermine the interests of finality and conservation
of judicial resources – particularly where, as here, Plaintiffs were on notice of Defendants’
arguments at the time expert discovery was re-opened in September 2019. See, e.g., Lundstedt v.
JP Morgan Chase Bank, N.A., 853 F. App’x 704, 708 (2d Cir. 2021) (summary order) (holding
that the district court had not abused its discretion in denying pro se plaintiff’s motion to reopen
discovery for the disclosure of an expert witness because “the request came more than a year after
the close of discovery, nearly two years after the deadline for such disclosures, and less than two
months prior to trial”); Falcon v. Philips Elecs. N. Am. Corp., 304 F. App’x 896, 898 (2d Cir.
2008) (summary order) (where the Second Circuit stated that “[a]t this late stage of the litigation
[after the close of discovery and dispositive briefing], we cannot say that it was an abuse of
discretion for the District Court to deny [Plaintiff’s] motion to reopen discovery”). It is hereby
ORDERED that, for the foregoing reasons, the Motion (Dkt. No. 320) is DENIED. It is
further
ORDERED that, by December 17, 2021, the parties shall meet and confer regarding next
steps and file a joint letter apprising the Court of their proposal(s).
The Clerk of Court is respectfully directed to close the motion at Docket Number 320.
Dated: December 10, 2021
New York, New York

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