Antitrust Law Daily Wrap Up, ADVERTISING—D.D.C.: Consumers revive state claims against hair removal device maker, (Aug 3, 2016)

By Elizabeth C. Pope, J.D.

Consumers alleging that Radiancy, Inc.—the manufacturer and maker of the no!no! Hair removal device—violated state consumer protection laws successfully revived their claim against the manufacturer. The federal district court in Washington, D.C., having previously dismissed the consumers’ claims for a failure to plead with particularity, determined that the amended complaint satisfied the particularity requirements of Federal Rule of Civil Procedure 9(b) (Mouzon v. Radiancy, Inc., August 2, 2016, Kollar-Kotelly, C.).

Amended complaint. In their amended complaint, the consumers asserted all claims that were previously dismissed without prejudice, including a series of state-specific consumer protection act claims. The court concluded that, as a result of the additional allegations and details included in the amended complaint, the consumer protection claims were this time pleaded with enough particularity to comply with Rule 9(b).

The court then proceeded to reject the product maker’s attempt to whittle away at the amended complaint on a state-by-state basis. Thus, the court concluded that (1) the consumers provided adequate pre-suit notice as required under the California Legal Remedies Act; (2) it was premature to determine whether a putative class action filed by the consumers would pass muster under the Virginia Consumer Protection Act; (3) the consumers adequately pleaded reliance and/or proximate cause as required by the laws of California, Florida, Illinois, Maryland, Virginia, West Virginia, and Pennsylvania; and (4) the factual record must be further developed before the court could determine the impact of statute of limitations provisions on the claims made under California, District of Columbia, Maryland, and Virginia law.

Claims against CEO. In a victory for the manufacturer, the court concluded that the consumers in their amended complaint failed to allege ever having been exposed to misrepresentations made personally by Radiancy’s CEO, Dolev Rafaeli. Given this second failed attempt to state a claim against Rafaeli, the court dismissed that portion of the complaint with prejudice.

The case is No. 15-1142(CKK).

Attorneys: James Joseph Pizzirusso (Hausfeld LLP) for Jan Mouzon. Charles Samuel Fax (Rifkin, Weiner, Livingston, Levitan & Silver, LLC) and Joseph Wolfson (Stevens & Lee, PC) for Radiancy, Inc.

Companies: Radiancy, Inc.

Cases: Advertising ConsumerProtection DistrictofColumbiaNews