Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Cal.: Variables associated with makeup purchasers precluded class certification of mislabeling claims, (May 13, 2014)

By Jody Coultas, J.D.

Makeup purchasers were not entitled to certification of California Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) class action claims against Maybelline, LLC, based on misrepresentations regarding the staying power of the makeup, the federal district court in San Diego ruled (Algarin v. Maybelline, LLC, May 12, 2014, Battaglia, A.).

Maybelline advertised its SuperStay 24HR Lipcolor and SuperStay 24HR Makeup as makeup that provided “flexible, breathable, all day comfort,” that withstands “heat, sweat and humidity.” The purchasers bought the makeup in reliance on the claimed 24-hour staying power, but the products failed to live up to those representations. The purchasers sought certification of a class consisting of “[a]ll California consumers who purchased SuperStay24HR Lipcolor and/or SuperStay 24HR Makeup for personal use until the date notice is disseminated.”

To obtain certification, a class must be sufficiently defined so that the court may determine whether a particular individual is a member. Maybelline argued that the proposed class was overly broad because it included uninjured purchasers, and that membership of the class could not be readily determined. The proposed class included potential members who were not misled by the duration representation, were satisfied by their purchase, and/or had no duration expectations. Given the length of the class period, it was unlikely that class members would recall the items purchased, the quantity purchased, and the amount paid. Although the class may be ascertainable through objective criteria, the purchasers failed to provide a reliable method of determining the actual members of the class, according to the court.

To obtain class certification, the purchasers needed to show that (1) the class members were so numerous that joinder was impracticable; (2) common questions of law or fact existed; (3) the claims or defenses of the representative parties were typical of the class; and (4) the representative parties would fairly and adequately protect the interests of the class. Questions of law or fact common to the members of the class must predominate over any questions affecting only individual members and a class action must be superior to other available methods for the fair and efficient adjudication of the controversy

The purchasers were unable to show that there were common questions of law and fact, according to the court. Whether Maybelline’s conduct was false or misleading or likely to deceive was not subject to common proof on a class-wide basis because purchasers had a variety of duration expectations. More purchasers expected the product to last less than 24 hours or had no specific duration expectations. The varying factors that influence purchasing decision, and consumer satisfaction, also precluded the purchasers from showing that the elements of materiality and reliance were subject to common proof.

Based on the evidence presented, the purchasers’ reliance on the alleged misrepresentations was not typical of other class members, according to the court.

The injunctive relief requested by the purchasers was not appropriate with regard to the class as a whole. The purchasers argued that a class under Federal Rule of Civil Procedure 23(b)(2) was proper given Maybelline’s uniform and widespread marketing, labeling, promoting, branding and advertising of its products, and that the damages sought were merely incidental to the injunctive relief sought. A class is proper under 23(b)(2) where the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. The only potential beneficiaries of any injunctive relief were future purchasers who had not purchased them before.

The number of individual purchasing inquiries required, as well as individualized proof of materiality and reliance, precluded certification, according to the court. The purchasers also failed to show damages from the alleged misconduct. The alleged injury was the premium consumers paid for the products, which the purchasers alleged was a few dollars more expensive than makeup that did not make duration claims. However, there were a number of reasons why the products were priced as they were. The method of using comparable products was inconsistent with the law. To establish that any difference in price is attributed solely to the alleged misrepresentation, the court must use a product, exactly the same but without the 24 hour claim, and control and neutralize all other product differences. No products are completely identical, making this impossible. Also, the purchasers failed to offer a method that would attach a dollar value to the alleged misrepresentations.

The case is No. 12cv3000 AJB (DHB).

Attorneys: James C. Shah (Shepherd, Finkelman, Miller & Shah, LLP) for Yanira Algarin. Allison Feldman Borts (Gordon & Rees LLP) for Maybelline, LLC.

Companies: Maybelline, LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews