Jill Guido et al v. L Oreal, USA Inc. et al
Filing
76
MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Plaintiffs' motion for class certification # 48 is GRANTED. See document for details re the California Class and New York Class, and exclusions thereto. Court Reporter: Laura Elias. (gk)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Present: The Honorable
Date
May 7, 2012
CHRISTINA A. SNYDER
CATHERINE JEANG
Deputy Clerk
Laura Elias
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Scott Kamber
Grace Parasmo
David Parisi
Dennis Ellis
Katherine Murray
Nicholas Begakis
Proceedings:
I.
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
(filed 2/1/2012)
INTRODUCTION
On February 3, 2011, plaintiffs Jill Guido, a California resident, and Natalie
Lefebvre, a Texas resident, commenced this action in this Court by filing a complaint
against defendants L’Oreal, USA, Inc. and L’Oreal USA Products, Inc. in Case No. CV
11-1067 CAS (JCx). On April 1, 2011, Guido and Lefebvre filed a first amended
complaint.
Meanwhile, on February 4, 2011, plaintiffs Catherine Altamura, a California
resident, and Lisa Pearly, a New York resident, filed a similar complaint in the United
States District Court for the Southern District of New York against the same defendants.
On May 5, 2011, Altamura and Pearly voluntarily dismissed the New York action and
refiled the action in this Court on June 30, 2011. See Case No. CV 11-5465 CAS (JCx).
By order dated September 19, 2011, the Court consolidated the two cases for
pretrial purposes. On April 3, 2012, the parties stipulated to dismiss Guido as a named
plaintiff. On April 23, 2012, plaintiffs indicated their intent to seek a stipulation to
dismiss Lefebvre as a class representative with prejudice. The complaints are brought on
behalf of putative classes of California and New York residents who purchased a L’Oreal
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 1 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
hair care product known as Garnier Fructis Sleek & Shine Anti-Frizz Serum (“Serum”).1
The complaints generally allege that defendants (1) failed to properly label Serum as
being flammable or combustible when near flames, sources of ignition, or high heat
producing styling appliances, and (2) made affirmative misrepresentations on Serum’s
packaging and in advertisements that suggested it was safe to use Serum in proximity to
such appliances.
Plaintiffs filed the instant motion for class certification on February 2, 2012.2
Plaintiffs seek certification of a California class and New York class for any person who
purchased Serum during the period from February 4, 2008, to the present (the “Class
Period”), asserting the following claims:
(1) A California class for claims arising under Cal. Bus. & Prof. Code §§ 17200
and 17500 et seq. (“UCL”); the Consumer Legal Remedies Act, Cal. Civ. Code
§§ 1750 et seq. (“CLRA”); and the Song-Beverly Consumer Warranty Act, Cal.
Civ. Code §§ 1792 & 1791(1)(a), (b) (“Song-Beverly Act”); and
(2) A New York class for claims arising under New York’s General Business Law
§§ 349 and 350 (“GBL”), for deceptive acts and practices and false advertising,
respectively.
Defendants filed an opposition to plaintiffs’ motion on April 16, 2012. Plaintiffs
filed a reply on April 23, 2012. The Court held a hearing on May 7, 2012. After
1
Plaintiffs initially brought suit on behalf of a class of Texas residents as well, but
have since voluntarily dismissed all claims related to Texas law and Texas plaintiffs. See
Pls’ Reply at 3 n.2.
2
Plaintiffs filed the instant motion in Case No. CV 11-1067 CAS (JCx), and not
Case No. CV 11-5465 CAS (JCx). Because the actions have been consolidated, the Court
deems the motion to have been filed in both cases.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 2 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
carefully considering the arguments set forth by both parties, the Court finds and
concludes as follows.
II.
BACKGROUND
Serum is a hairstyling product manufactured, distributed, and marketed by
defendants for sale in retail outlets nationwide. Declaration of Grace Parasmo (“Parasmo
Decl.”) Exh. 1, at 24–25 (deposition of Garnier Senior VP Katheryn Peeler). Serum was
launched in 2004 for a suggested retail price of $5.99 per bottle, which has remained
constant throughout the product’s existence in the market. Id. at 69:9–12. During the
Class Period, defendants sold approximately 9.9 million units of Serum throughout the
nation. Id., Exh. 2 at 1.
Serum’s label and packaging has changed three times since its introduction to the
market. When it was launched in 2004, Serum was sold in a clear green round-shaped
bottle with a label that included a flammability warning written in green text. See id.,
Exh. 3 (“Avoid Fire, Flame, Smoking and Heat (Except For Styling Appliances) During
Application and Until Hair is Completely Dry.”). Near the end of 2006, Garnier removed
denatured alcohol as an ingredient in Serum in order to comply with California’s Volatile
Organic Compound regulations, Cal. Code Regs. tit. 17, § 94509(a). Declaration of
Katherine F. Murray (“Murray Decl.”), Exh. B at 56:3–17 (Peeler deposition). At the
beginning of 2007, Garnier altered the bottle’s shape, from a round shape to a bell shape,
and removed the flammability warning. Id. at 61:21–62:19.3
The 2004 and 2007 iterations of the bottle contain identical directions, instructing
consumers to use the product as follows:
DIRECTIONS: Dispense 1 pump of serum, or as much as needed for your hair
type, into the palms of your hands. Apply uniformly to towel-dried or dry hair.
3
Defendants manufactured and distributed a third bottle beginning in 2011, but it is
nearly identical to the 2007 bottle. Parasmo Decl., Exh. 3.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 3 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Do not rinse. For sleekest look, style using brush and blowdryer. For best results,
use Garnier Fructis Sleek and Shine System.
Parasmo Decl., Exh. 3.
Both labels also list the ingredients, including cyclopentsiloxane and dimethiconol.
According to plaintiffs, those two ingredients—and not the denatured alcohol that was
removed in late 2006—are the ingredients that render Serum flammable. Mot. at 3.
Defendants maintain that the denatured alcohol was the only flammable ingredient used
in any iteration of Serum.4 Opp’n at 5.
4
“When considering class certification under Rule 23, district courts are not only at
liberty to, but must perform ‘a rigorous analysis [to ensure] that the prerequisites of Rule
23(a) have been satisfied.’” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 980 (9th Cir.
2011) (quoting Dukes, 131 S.Ct. at 2551)). “In many cases, that rigorous analysis will
entail some overlap with the merits of plaintiff’s underlying claim.” Id. (internal
quotation marks and citation omitted). Thus, the Court is “required to resolve any factual
disputes necessary to determine whether there [are common questions] that could affect
the class as a whole.” Id. at 983 (emphasis in original).
The Court need not resolve at this stage whether Serum is in fact flammable,
because that issue is not probative of whether there are “plausible classwide methods of
proof” with regard to plaintiffs’ claims that the average reasonable consumer was misled
by defendants’ advertising and labeling of Serum. Wolph v. Acer Am. Corp., 272 F.R.D.
477, 487 (N.D. Cal. 2011); see also Costco, 657 F.3d at 983 n.8 (noting that a court “is
required to examine the merits . . . only inasmuch as it must determine whether common
questions exist; not to determine whether class members could actually prevail on the
merits of their claims”) (emphasis added); Dukes, 131 S.Ct. at 2552 n.6 (noting that Rule
23 does not authorize inquiry into the merits of a claim for purposes other than
determining whether certification is proper). Accordingly, the Court addresses the merits
of plaintiffs’ claims only insofar as they “overlap” with Rule 23 requirements. Costco,
657 F.3d at 981. For this reason, defendants’ evidentiary objections to the Parasmo
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 4 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
III.
Date
May 7, 2012
LEGAL STANDARD
“Class actions have two primary purposes: (1) to accomplish judicial economy by
avoiding multiple suits, and (2) to protect rights of persons who might not be able to
present claims on an individual basis.” Haley v. Medtronic, Inc., 169 F.R.D. 643, 647
(C.D. Cal. 1996) (citing Crown, Cork & Seal Co. v. Parking, 462 U.S. 345 (1983)).
Federal Rule of Civil Procedure 23 governs class actions. A class action “may be certified
if the trial court is satisfied after a rigorous analysis, that the prerequisites of Rule 23(a)
have been satisfied.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161
(1982).
To certify a class action, plaintiffs must set forth facts that provide prima facie
support for the four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3)
typicality; and (4) adequacy of representation. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
---, ---, 131 S.Ct. 2541, 2548 (2011); Dunleavy v. Nadler (In re Mego Fir. Corp. Sec.
Litig.), 213 F.3d 454, 462 (9th Cir. 2000). These requirements effectively “limit the class
claims to those fairly encompassed by the named plaintiff’s claims.” Falcon, 457 U.S. at
155 (quoting Califano v. Yamasaki, 442, U.S. 682, 701 (1979)).
If the Court finds that the action meets the prerequisites of Rule 23(a), the Court
must then consider whether the class is maintainable under Rule 23(b). Dukes, 131 S.Ct.
at 2548. Rule 23(b)(3) governs cases where monetary relief is are the predominant form
of relief sought, as is the case here. A class is maintainable under Rule 23(b)(3) where
“questions of law or fact common to the members of the class predominate over any
questions affecting only individual members,” and where “a class action is superior to
other available methods for fair and efficient adjudication of the controversy.” Fed. R.
Civ. P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry tests whether the proposed
classes are sufficiently cohesive to warrant adjudication by representation.” Hanlon v.
Declaration—in which defendants challenge, inter alia, statements to the effect that
defendants “refused” to provide merits discovery—are overruled as to these issues at this
stage of the proceedings.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 5 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (citing Amchem Products, Inc. v.
Windsor, 521 U.S. 591 (1997)). The predominance inquiry measures the relative weight
of the common to individualized claims. Id. “Implicit in the satisfaction of the
predominance test is the notion that the adjudication of common issues will help achieve
judicial economy.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir.
2001) (citing Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)). In
determining superiority, the court must consider the four factors of Rule 23(b)(3): (1) the
interests members in the class have in individually controlling the prosecution or defense
of the separate actions; (2) the extent and nature of any litigations concerning the
controversy already commenced by or against members of the class; (3) the desirability
or undesirability of concentrating the litigation of the claims in the particular forum; and
(4) the difficulties likely encountered in the management of a class action. Id. at
1190–1993. “If the main issues in a case require the separate adjudication of each class
member's individual claim or defense, a Rule 23(b)(3) action would be inappropriate.”
Id. (citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1778 at 535–39 (2d. 3d. 1986)).
More than a pleading standard, Rule 23 requires the party seeking class
certification to “affirmatively demonstrate . . . compliance with the rule—that is he must
be prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc.” Dukes, 131 S.Ct. at 2551. This requires a district court to
conduct “rigorous analysis” that frequently “will entail some overlap with the merits of
the plaintiff’s underlying claim.” Id.
IV.
DISCUSSION
A.
Nature of Plaintiffs’ Claims and Issue of Standing
As an initial matter, the parties dispute the nature of plaintiffs’ claims. Plaintiffs
assert that their claims are grounded in consumer protection laws which are “ideal” for
class certification. Mot. at 7.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 6 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Defendants respond that plaintiffs’ consumer protection claims are masquerading
as products liability claims which are not amenable to class treatment. Opp’n at 10–11.
Defendants assert that plaintiffs “seek to cast their products liability claims as
restitutionary claims under the UCL” by “exempt[ing] all parties that suffered actual
physical injury from their class” and instead focusing on “members who allegedly paid
more for the Serum than they otherwise would have had it included an adequate
warning,” which is insufficient to confer Article III standing. Id. at 12. Further,
according to defendants, even if plaintiffs’ theory is one of economic injury, none of the
named plaintiffs have alleged that they suffered economic loss. Id. at 13. Moreover,
defendants assert that the UCL (and GBL) require each individual plaintiff to
demonstrate reliance to succeed on such an economic theory of injury. Id. Thus,
defendants maintain that even if the named plaintiffs have standing, certain putative class
members lack standing. See id. Accordingly, defendants argue that plaintiffs’ claims are
not suitable for class treatment. Id.
In reply, plaintiffs argue that defendants’ contention that no plaintiff suffered
economic injury “grossly distorts” the theory of plaintiffs’ case and the testimony of the
named plaintiffs, both of which demonstrate that plaintiffs would not have purchased
Serum for the price they paid, or would not have purchased it at all, had they known of its
flammable characteristics. Reply at 4–5. Further, plaintiffs contend that they suffered a
loss in value and usefulness of Serum which is also sufficient to confer standing under
the UCL and GBL. Id. at 5 (citing Keilholz v. Lennox Hearth Prods Inc., 268 F.R.D. 330
(N.D. Cal. 2010)). Finally, plaintiffs argue that the UCL does not require a showing of
individual reliance as to absent class members. Id. at 6.
The Court finds that plaintiffs have adequately alleged economic injury to satisfy
Article III standing on behalf of themselves and the putative classes. “No class may be
certified that contains members lacking Article III standing.” Mazza v. American Honda
Motor Co., Inc., 666 F.3d 581, 594 (9th Cir. 2011) (internal quotation marks and citation
omitted). “[S]tanding requires that (1) the plaintiff has suffered an injury in fact . . .
(2) the injury is fairly traceable to the challenged conduct, and (3) the injury is likely to
be redressed by a favorable decision.” Id. (quoting Bates v. United Parcel Svc., Inc., 511
F.3d 974, 988 (9th Cir. 2007)). Not all plaintiffs and class members must demonstrate
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 7 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
standing: “In a class action, standing is satisfied if at least one named plaintiff meets the
requirements.” Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011)
(quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc));
Costco, 657 F.3d at 979 (“[O]nly one named [p]laintiff must meet the standing
requirements.”). Economic injury is cognizable under the UCL and sufficient to satisfy
Article III standing, so long as the plaintiff “lost money or property as a result of the
unfair competition” and demonstrates a “causal connection” between the UCL violation
and the economic injury. See, e.g., Rubio v. Capital One Bank, 613 F.3d 1195, 1204 (9th
Cir. 2010); Aron v. U-Haul Co. of California, 143 Cal. App. 4th 796, 802–03 (Cal. Ct.
App. 2006); Cal. Bus. & Prof. Code § 17204. Here, both named plaintiffs testified that,
had they known Serum was flammable, they would have paid less than its retail price or
would not have purchased it at all. See Declaration of David C. Parisi (“Parisi Decl.”)
Exh. 19 (Altamura deposition) at 144:9–10, 14–15; Exh. 20 (Pearly deposition) at
219:2–9, 186:17–187:6, 143:1–3. Moreover, plaintiffs also testified that they suffered a
loss in value and usefulness of Serum. Parisi Decl., Exh. 19 at 142:4–12; Exh. 20 at
144:22–145:12; see Keilholz v. Lennox Hearth Prods Inc., 268 F.R.D. 330, 334–36, 343
(N.D. Cal. 2010) (granting motion to certify class and concluding that class of fireplace
purchasers had standing based on an economic injury of loss of value). Thus, the named
plaintiffs have adequately demonstrated standing based on a claimed economic injury.
Mazza, 666 F.3d at 594; Stearns, 655 F.3d at 1021.
Further, the Court rejects defendants’ argument that each class member must
demonstrate reliance under the UCL. “Under California’s UCL, restitution is available to
absent class members without individualized proof of deception, reliance, or injury.”
Mazza, 666 F.3d at 595 (quoting In re Tobacco II, 46 Cal. 4th at 320, and rejecting
defendant’s contention that “Tobacco II impermissibly allows a class to ‘include
members who suffered no injury in fact’ in violation of Article III”); Stearns, 655 F.3d at
1020–21 (“Nor do we agree with Appellees’ argument that because it need not be shown
that class members have suffered actual injury in fact connected to the conduct of the
Appellees, the alternative to the district court’s ruling must be that the class lacks
standing under Article III.”). Under California law, “a presumption or at least an
inference[] of reliance arises whenever there is a showing that a misrepresentation was
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 8 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
material.”5 In re Tobacco II, 46 Cal. 4th at 326–27. Thus, so long as plaintiffs establish
that defendants’ omissions and misrepresentations are “material,” they may bring a UCL
claim on behalf of a class without individualized proof of reliance.6 Id.
5
Webb v. Carter’s Inc., 272 F.R.D. 489 (C.D. Cal. 2011), upon which defendants
rely for the proposition that each class member must demonstrate standing, is
unpersuasive. First, this Court already declined to follow Webb as “not binding
precedent.” Dkt. No. 32 at 10 n.4. Second, the court in Webb acknowledged that “there
is no controlling authority requiring absent class members, as opposed to the named
plaintiffs, to satisfy Article III’s standing requirements,” but nevertheless concluded that
they must do so. 272 F.R.D. at 497. Finally, and most importantly, Webb was decided
prior to the Ninth Circuit’s decisions in Mazza and Stearns. E.g. Stearns, 655 F.3d at
1020 (“In a class action, standing is satisfied if at least one named plaintiff meets the
requirements.”) (internal quotation marks and citation omitted).
6
Defendants submitted the declaration of Dominique M. Hanssens in support of its
opposition. Hanssens opines that it is “speculative to conclude that the lack of a warning
or the presence of a misleading warning on product packaging has the same impact on all
consumers” and might “le[a]d to a buying decision.” Hanssens Decl., ¶ 19. Hanssens
also stated that “one cannot conclude that the omission of a flammability warning has
enabled L’Oreal to charge a premium for Serum.” Id. ¶ 27. Plaintiffs filed an objection
to Hanssens’s declaration on the ground that her opinions are not relevant because “they
do not bear on the materiality of [defendants’] misrepresentations and omissions
concerning Serum’s flammability and combustibility when near flames.” Dkt. 72 at 3–4.
The Court agrees that Hanssens’s declaration is not relevant to the determination of
class certification in this case. As discussed above, the materiality of defendants’ alleged
misrepresentations and omissions is established “if a reasonable man would attach
importance to its existence or nonexistence in determining his choice of action in the
transaction in question.” Stearns, 655 F.3d at 1022. Thus, whether the lack of a warning
label may not have had the “same impact on all consumers” and may not have informed
an individual’s buying decision is not relevant, because the standard is an objective one.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 9 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
The Court now turns to the Rule 23 factors.
B.
Rule 23(a) Requirements
1.
Numerosity
Rule 23(a)(1) requires the class to be so numerous that joinder of individual class
members is impracticable. See Fed. R. Civ. P. 23(a)(1). Here, the proposed California
and New York classes are sufficiently numerous.7 During the Class Period, defendants
manufactured and shipped approximately 9.9 million units of Serum nationwide.
Parasmo Decl., Exh. 2. According to 2010 U.S. census data, California residents make
up 12 percent of the U.S. population, while New York residents make up 8.1 percent of
the U.S. population. See id., Exh. 15. Assuming defendants sell Serum proportionately
across the country, it can be estimated that approximately 1.1 million units were sold in
California and 800,000 units were sold in New York. See Arnold v. United Artists
Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994) (extrapolating census data in
order to find numerosity); 1 Robert Newberg, NEWBERG ON CLASS ACTIONS, § 3:3 (4th
ed. 2002) (“Census data are frequently relied on by courts in determining the size of
proposed classes.”).
As set forth more fully herein, plaintiffs have testified that they would not have
purchased, or would not have paid as much for, Serum had they known it was flammable.
See infra, Section IV.B.2. This is sufficient to raise a classwide inference of causation
between the alleged wrongful conduct and alleged economic harm. See infra, Section
IV.C. Accordingly, the Court SUSTAINS plaintiffs’ objections to Hanssens’s
declaration on the ground that her opinions are not relevant at this stage. See In re Zurn
Pex Plumbing Prods. Liability Litig., 644 F.3d 604, 613 (8th Cir. 2011).
7
Defendants do not challenge this factor.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 10 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Accordingly, the Court finds that the numerosity requirement is satisfied.
2.
Commonality
“Commonality requires the plaintiff to demonstrate that the class members have
suffered the same injury . . . [and] [t]heir claims must depend upon a common contention
. . . of such nature that it is capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.” Dukes, 131 S.Ct. at 2551 (internal quotation marks
and citations omitted). “What matters to class certification . . . is not the raising of
common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding
to generate common answers apt to drive the resolution of the litigation.” Id.
Plaintiffs argue that commonality is satisfied because a determination of whether
defendants’ omissions, packaging, and advertisements related to Serum were material and
misleading will resolve an issue that is “central to the validity” of each class member’s
claims—namely, “whether Serum was promoted in a manner likely to deceive the public
under an objective ‘reasonable consumer’ standard because its hazards were not
adequately disclosed.” Mot. at 9 (quoting Dukes, 131 S.Ct. at 2551; Rubio v. Capital
One Bank, 613 F.3d 1195, 1204 (9th Cir. 2010)). According to plaintiffs, the two
relevant types of bottles of Serum sold during the Class Period both failed to disclose that
Serum was flammable and should not be used with heated styling appliances and that
such omissions were “consistent across the nation for each of the formulations of Serum.”
Id. at 10. Thus, plaintiffs assert that the claims of all class members “stem from the same
source” such that the commonality requirement is “easily satisfied.” Id. (quoting Hanlon
v. Chrysler Corp., 150 F.3d 1011, 1019–20 (9th Cir. 1998)).
In opposition, defendants assert that “there is not even commonality among the
three named [p]laintiffs, let alone across the putative class.” Opp’n at 13. According to
defendants, claims brought under the UCL require plaintiffs to show “some connection
between the defendant’s alleged improper conduct and the unnamed class members who
seek restitutionary relief.” Id. at 14 (quoting Sevidal v. Target Corp., 189 Cal. App. 4th
905, 924 (Cal. Ct. App. 2010)). Thus, defendants contend that a class that includes
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 11 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
persons who purchased a product for reasons other than defendants’ alleged
misconduct—that is, for reasons other than defendants’ alleged failure to disclose
Serum’s flammability—cannot be certified. Id. (citing Pfizer Inc. v. Sup. Ct. (Galfano),
182 Cal. App. 4th 622, 631 (Cal. Ct. App. 2010)). Here, defendants maintain that
plaintiff Pearly purchased Serum after reading advertisements stating that it would
provide sleekness, detangle her hair, and for its low price, while plaintiff Altamura
purchased Serum based on her prior experience with the product and its low price. Id. at
15. Accordingly, defendants assert that “[n]one of the named [p]laintiffs were even
concerned with flammability issues when they purchased Serum.” Id. (relying on
Sanchez v. Wal-Mart Stores, Inc., 2009 U.S. Dist. Lexis 48428, at *8 (E.D. Cal. May 28,
2009) (denying class certification of purchasers of a model of stroller that lacked a safety
warning because, for many putative class members, “the ‘warning’ would have made no
difference in their purchase decision”)).
The Court finds that plaintiffs have satisfied the commonality requirement. The
“common factual and legal questions” that will be presented in this case are as follows:
•
Whether Serum’s packaging and marketing materials are unlawful, unfair,
deceptive, or misleading to reasonable consumers under the UCL, CLRA,
and GBL;
•
Whether the labels that instructed consumers to use “as much [Serum] as
needed for your hair type,” “do not rinse,” and “[f]or the sleekest look, style
using brush and blowdryer” are deceptive to the average reasonable
consumer in light of Serum’s alleged flammability;
•
Whether a reasonable consumer would expect that Serum would contain a
warning as to its flammability pursuant to the requirement of the Food, Drug
and Cosmetic Act’s regulations, 21 C.F.R. 740.1, that hazardous cosmetics
contain appropriate labels;
•
Whether plaintiffs had a reasonable expectation that Serum was not
dangerous around flames or other sources of heat;
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 12 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
•
Whether defendants tested Serum “under conditions of customary use and
reasonably foreseeable conditions of misuse” under the FDA’s labeling
guidelines;
•
Whether defendants had a duty to disclose the alleged flammability of
Serum;
•
Whether it was foreseeable to defendants that consumers would use Serum
near heated sources;
•
Whether defendants concealed material information regarding the
flammability of Serum from plaintiffs;
•
Whether Serum is in fact flammable; and
•
What the true market value of Serum is.
Because Serum was packaged and sold uniformly across the nation, resolution of
these questions will resolve “in one stroke” issues that are “central to the validity” of
each class member’s claims. Dukes, 131 S.Ct. at 2551. Defendants’ argument that
commonality is not satisfied because class members may have purchased Serum for a
variety of reasons is unpersuasive. First, both named plaintiffs testified that, had they
known Serum was flammable, they would not have purchased the product for the price
they paid, or would not have purchased it at all. Parisi Decl., Exh. 19 at 144:9–10,
14–15; Exh. 20 at 219:2–9, 186:17–187:6, 143:1–3. The plaintiffs’ testimony
demonstrates that the alleged omissions and misrepresentations were material to their
purchasing decision, and under the UCL, “[a] presumption, or at least an inference of
reliance arises whenever there is a showing that a misrepresentation was material.” In re
Tobacco II Cases, 46 Cal. 4th 298, 327 (2009). Second, the focus of a UCL claim is “on
the defendant’s conduct . . . in service of the [UCL’s] larger purpose of protecting the
general public,” and not on the reasons each class member purchased Serum. Id. at 312.
As mentioned supra, “relief under the UCL is available without individualized proof of
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 13 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
deception, reliance and injury.” Id. at 320. Accordingly, the issues of whether
defendants’ alleged omissions and misrepresentations about the flammability of Serum
are unlawful, deceptive, unfair, or misleading to reasonable consumers are the type of
questions tailored to be answered in “the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.” Dukes, 131 S.Ct. at 2551.
See also Wiener v. Dannon Co., Inc., 255 F.R.D. 658, 664 (C.D. Cal. 2009) (concluding
that commonality was satisfied for a class of consumers who purchased Dannon yogurt
products because the “class members clearly share common legal issues regarding
Dannon’s alleged deception and misrepresentations in its advertising and promotion of
the Products”).8
8
Sanchez, upon which defendants chiefly rely, is unpersuasive. Its reasoning—
that putative class members’ individual reasons for purchasing a product bears on
commonality under the UCL—is directly contradicted by the In re Tobacco II decision,
which was handed down at approximately the same time as Sanchez. Compare 2009 U.S.
Dist. Lexis 48428 at *8 with 46 Cal. 4th at 312, 327. The Ninth Circuit has adopted the
reasoning behind In re Tobacco II with regard to reliance under the UCL. See Mazza,
666 F.3d at 595 (“Under California’s UCL, restitution is available to absent class
members without individualized proof of deception, reliance, or injury.”).
Further, defendants’ reliance on Mazza is misplaced because the facts of Mazza are
distinguishable from the present case. There, the Ninth Circuit “agree[d] with Honda’s
contention that the misrepresentations at issue here do not justify a presumption of
reliance” under the UCL because “it is likely that many class members were never
exposed to the allegedly misleading advertisements, insofar as advertising of the
challenged system was very limited.” Mazza, 666 F.3d at 595. Here, defendants do not
contend that the misrepresentations were contained in limited advertisements to which
many class members would not have been exposed. Rather, the alleged omissions and
misrepresentations in this case relate to the bottle of Serum itself, which has not
materially changed over the course of the Class Period. Accordingly, the class
members—who are defined, inter alia, as purchasers and users of Serum—were
necessarily “exposed” to defendants’ alleged omissions and misrepresentations, in
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 14 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
The Court therefore concludes that the commonality requirement has been
satisfied.
3.
Typicality
“The purpose of the typicality requirement is to assure that the interest of the
named representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover
North Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). “The test of typicality ‘is whether
other members have the same or similar injury, whether the action is based on conduct
which is not unique to the named plaintiffs, and whether other class members have been
injured by the same course of conduct.’” Costco, 657 F.3d at 984 (quoting Hanlon, 976
F.3d at 508)). Thus, typicality is satisfied if the plaintiffs’ claims are “reasonably coextensive with those of absent class members; they need not be substantially identical.”
Hanlon, 150 F.3d at 1020.
Plaintiffs assert that typicality is satisfied because plaintiffs’ and the proposed class
members’ claims arise from the same course of conduct: defendants’ alleged mislabeling
and false marketing of Serum. Mot. at 11. Additionally, plaintiffs contend that plaintiffs
and class members suffered the same type of economic injury by suffering a monetary
loss as a result of purchasing a product they otherwise would not have purchased but-for
defendants’ omissions and misrepresentations. Id. In sum, plaintiffs contend that the
“ultimate success” of plaintiffs’ claims depends on proving an identical set of facts and
relying on the same supporting law as every other class member. Id.
Defendants respond that plaintiffs’ claims are not typical for many of the same
reasons their claims do not satisfy the commonality requirement. Opp’n at 19.
Defendants assert that none of the named plaintiffs “paid a premium” for Serum, so they
therefore “cannot represent those who claim to have paid a premium.” Id. at 20 (citing
contrast to the putative class in Mazza. Cf. Mazza, 666 F.3d at 595; Cohen, 178 Cal.
App. 4th at 980.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 15 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
J.P. Morgan & Co. v. Sup. Ct. (Heliotrope Gen., Inc.), 113 Cal. App. 4th 195, 212 (Cal.
Ct. App. 2003)). Further, defendants argue that the named plaintiffs were not concerned
with Serum’s flammability. Id. at 21. Finally, defendants argue that the named plaintiffs
are subject to unique defenses. Id. at 22 (contending that Pearly admits she read the
warning label and that neither plaintiff relied on the absence of a flammability warning
when they purchased Serum).
The Court finds that plaintiffs have satisfied the typicality requirement. Contrary
to defendants’ assertion, each named plaintiff testified that she would not have purchased
Serum or would have paid less for Serum had she known it had flammable
characteristics.9 Parisi Decl., Exh. 19 at 144:9–10, 14–15; Exh. 20 at 219:2–9,
186:17–187:6, 143:1–3. Thus, plaintiffs allege to have suffered the same type of
economic injury and seek the same type of damages (namely, a refund of the purchase
price) as the putative class members. As such, plaintiffs’ interests “align[] with the
interests of the class.” Wolin, 617 F.3d at 1175. Further, California law permits
plaintiffs to seek recovery of a “price premium,” regardless of whether plaintiffs were
able to quantify the premium that was paid or identify other products sold at a lower price
that included a flammability warning. See Kwikset Corp. v. Sup. Ct., 51 Cal. 4th 310,
329 (2011) (“For each consumer who relies on the truth and accuracy of a label and is
deceived by misrepresentations into making a purchase, the economic harm is the same:
the consumer has purchased a product that he or she paid more for than he or she
otherwise might have been willing to pay if the product had been labeled accurately. This
economic harm—the loss of real dollars from a consumer’s pocket—is the same whether
or not a court might objectively view the products as functionally equivalent.”);
9
For this reason, the Court rejects defendants’ contention that the named plaintiffs
are subject to unique defenses. Although plaintiffs’ testimony suggest that there were a
variety of considerations involved in their purchasing decision, they do not negate the
plaintiffs’ testimony that they would not have purchased Serum, or would not have paid
as much for it, had they known of its flammable characteristics at the time of sale. Thus,
the defendants have not shown that whatever individual defenses may exist defeat the
typicality of plaintiffs’ claims. See Costco, 657 F.3d at 984.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 16 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Degelmann v. Advanced Med. Optics, Inc., 659 F.3d 835, 840 (9th Cir. 2011) (holding
that the plaintiffs “presented evidence that they were deceived into purchasing a product
that did not disinfect as well as it represented. Had the product been labeled accurately,
they would not have been willing to pay as much for it as they did, or would have refused
to purchase the product altogether. The district court’s reasoning—that class members
would have bought other contact lens solution, and therefore suffered no economic
harm—conceived of injury in fact too narrowly”). Finally, even if the amount of
premium varies among class members, such differences in the amount of damages is
insufficient to defeat class certification. Stearns, 655 F.3d at 1026 (“We have held that
the mere fact there might be differences in damages calculations is not sufficient to defeat
class certification . . . .”) (internal quotation marks and citations omitted).
Accordingly, the Court finds that plaintiffs’ claims are “reasonably co-extensive
with those of absent class members” to satisfy the typicality requirement. Hanlon, 150
F.3d at 1020. See also Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 378
(N.D. Cal. 2010) (finding typicality with regard to plaintiff’s claim that a mass-marketed
product label was misleading); Rivera v. Bio Engineered Supplements & Nutrition, Inc.,
2008 WL 4906433, at *7 (C.D. Cal. Nov. 13, 2008) (“[T]he typicality requirement is not
particularly strict and may be satisfied even where there are some factual dissimilarities
between the claims of the class representative and the claims of other class members.”).
4.
Adequacy of Representation
To establish adequacy of representation, the issue is whether “the named plaintiffs
and their counsel have any conflicts of interest with other class members” and whether
“the named plaintiffs and their counsel will prosecute the action vigorously on behalf of
the class.”10 Hanlon, 150 F.3d at 1020.
10
Although defendants did not appear to contest the adequacy requirement in their
briefing, at oral argument counsel for defendants questioned whether Altamura may
properly serve as class representative for the California class. According to defendants’
counsel, Altamura testified that she would have used Serum differently had she known it
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 17 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
was flammable, rather than testifying that she would not have purchased Serum or would
have paid less for Serum. Defendants’ counsel relied on the following excerpt from
Altamura’s deposition:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Okay. If we can go back to Exhibit 10. This is the round bottle that you
recall purchasing in Australia?
Uh-huh.
If you look at Exhibit 10, there is a warning on the bottom of that under the
ingredients list. Do you recall reading that warning at any time?
No, I don’t.
If you had read that warning, would you still have purchased the product?
I would be paying attention to the way it’s telling me to use it. So
flammable until dry.
Flammable until dry?
So obviously, if I have it, I wouldn’t use it the same way I’m using it. It
would be simply something I use right at the end. I wouldn’t use it the same
way I’ve been using it.
Altamura Depo., at 105:10–106:2 (attached as Exh. D to Murray Decl. and Exh. 19 to
Parisi Decl.).
Defendants’ counsel asserted that this passage demonstrates that Altamura cannot
represent California purchasers of Serum because she would have purchased Serum even
had she been warned of its flammable characteristics.
Counsel’s argument is unpersuasive. It is plain that the above-quoted statements
were given in the context of a hypothetical posed by the questioner. At several other
points in her testimony, Altamura stated explicitly that she would not have purchased
Serum had she known it was potentially dangerous to use with heated styling appliances.
See, e.g., id. at 140:14–16 (“Q. If the warning had said, ‘Do not use with heated styling
devices,’ would you have purchased it? A. No.”); 162:14–17 (“Q. You would not have
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 18 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Here, the interests of plaintiffs and members of the proposed classes are aligned, as
both seek to prove that defendants committed the alleged material omissions and
misrepresentations. See id. Further, there is no dispute that plaintiffs and plaintiffs’
counsel have and will continue to “prosecute the action vigorously on behalf of the
class.” Id. The adequacy requirement of Rule 23(a) is therefore satisfied.
In accordance with the foregoing, the Court finds that all four requirements of Rule
23(a) have been satisfied.
C.
Rule 23(b) Requirements
Under Rule 23(b)(3), class certification is appropriate “if Rule 23(a) is satisfied”
and if “the court finds that [1] the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that [2] a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3); Local Joint Exec. Bd. of Culinary/Bartender Trust
Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162–63 (9th Cir. 2001).
purchased [Serum] if it was unsuitable for use in conjunction with styling appliances? A.
Yes.”); 70:16–18 (“Q. Why would [a flammability warning] deter you? A. Because I
know my routine. I know I’m using flat-irons, blow-dryers, and I have to be careful.”);
168:20–24 (“Q. The flammability warning [on a separate Pantene product] did not scare
you away from using the product? A. As [I] stated before, if it said I couldn’t use it with
styling, like, a flat-iron or hair dryer, that would have made a difference in purchasing.”);
111:22–24 (“Q. Why did you not finish this bottle [of Serum] that you brought in? A.
Because I found out it was flammable.”); and 130:8–10 (“Q. And what have your
damages been? A. The fact that I’ve paid money for something that isn’t clear that it’s
flammable.”). Accordingly, the one line from Altamura’s deposition on which
defendants’ counsel focuses does not render her unfit to represent the California class.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 19 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
1.
Date
May 7, 2012
Predominance
The predominance inquiry “trains on legal or factual questions that qualify each
class member’s case as a genuine controversy.” Amchem Prods, Inc. v. Windsor, 521
U.S. 591, 625 (1997). “When one or more of the central issues in the action are common
to the class and can be said to predominate,” a class action will be considered proper
“even though other matters will have to be tried separately.” Gartin v. S&M NuTec LLC,
245 F.R.D. 429, 435 (C.D. Cal. 2007). “Because no precise test can determine whether
common issues predominate, the Court must pragmatically assess the entire action and
the issues involved.” Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 489 (E.D.
Cal. 2006). “Implicit in the satisfaction of the predominance test is the notion that the
adjudication of common issues will help achieve judicial economy.” See Valentino v.
Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).
According to plaintiffs, predominance is “readily met” because each class member
purchased Serum and was subject to the same deceptive marketing and advertising. Mot.
at 13. Plaintiffs assert that no “individual issues exist” because the content of defendants’
omissions and representations can be determined on a classwide basis. Id. at 14.
Plaintiffs contend that these common legal and factual issues predominate over plaintiffs’
UCL, CLRA, Song-Beverly, and GBL claims. Id. at 15–18, 20–21.
Defendants respond that no presumption of reliance is warranted for the class
members and, as a result, individual questions predominate. Opp’n at 18.11 According to
defendants, “[i]n the case of a product like the Serum, which contains numerous
representations, reliance is not uniform across a putative class and class treatment is
therefore inappropriate.” Id. (relying on Pfizer Inc. v. Sup. Ct. (Galfano), 182 Cal. App.
4th 622, 632 (Cal. Ct. App. 2010)). Defendants assert that “[u]nlike cases where reliance
can be presumed, this case does not involve an affirmative misrepresentation, nor does it
11
Defendants also argue that plaintiffs and certain class members lack Article III
standing because they have not suffered any injury. See Opp’n at 16–17. As discussed
supra, Section IV.A, the Court rejects this argument.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 20 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
allege that a product failed to perform as advertised.” Opp’n at 19. Thus, defendants
maintain that “each putative plaintiff will have to show reliance on an omission, resulting
in countless individual inquiries.” Id.
The Court finds that common issues predominate over individualized issues for
largely the same reasons as Rule 23(a)’s commonality requirement is satisfied. See
supra, Section IV.B.2. Whether defendants’ alleged omissions and misrepresentations
violated the UCL, CLRA, Song-Beverly Act, and GBL present common factual and legal
issues. Because the predominance requirement is “more demanding” than Rule 23(a)’s
commonality requirement, each claim for relief is analyzed in turn. Amchem, 521 U.S. at
624.
a.
UCL
The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200.
The statute is phrased in the “disjunctive,” and, as a result, is violated where a
defendant’s act or practice is unlawful, unfair, or fraudulent. Prata v. Super. Ct., 91 Cal.
App. 4th 1128, 1137 (Cal. Ct. App. 2001).
To succeed under the “fraudulent” prong, plaintiffs “need only show that members
of the public are likely to be deceived” by the advertising or marketing campaign, which
can be demonstrated by the effect the advertisement has on “the reasonable consumer.”
In re Tobacco II, 36 Cal.4th at 312 (internal quotation marks and citation omitted);
Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). Thus, whether
defendants’ alleged omissions and misrepresentations with regard to Serum deceived the
average “reasonable consumer” can be proved through common evidence.
A business practice is “unfair” if it is immoral, unethical, oppressive,
unscrupulous, or substantially injurious to consumers. People v. Casa Blanca
Convalescent Homes, Inc., 159 Cal. App. 3d 509, 530 (Cal. Ct. App. 1984). False
advertising—one of plaintiffs’ theories in this case—can never be a lawful business
practice. Vasquez v. Sup. Ct., 4 Cal.3d 800, 808 (1971). Whether defendants’
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 21 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
misrepresentations constitute false advertising can therefore be proved through common
evidence.12
Importantly, relief under any of the UCL’s three prongs is available “without
individualized proof of deception, reliance and injury,” so long as the named plaintiffs
demonstrate injury and causation. Mass. Mut. Life Ins. Co. v. Sup. Ct., 97 Cal. App. 4th
1282, 1289 (Cal. Ct. App. 2002); In re Tobacco II, 46 Cal.4th at 326–27. “The UCL and
false advertising law are both intended to preserve fair competition and protect
consumers from market distortions,” meaning that “in the eyes of the law, a buyer forced
to pay more than he or she would have is harmed at the moment of purchase.” Kwikset,
51 Cal.4th at 331, 334. As discussed above, the named plaintiffs in this case have alleged
economic injury traceable to the alleged violation of the UCL sufficient to raise an
inference of causation. See supra, Section IV.A.
Accordingly, common issues of fact and law predominate plaintiffs’ UCL claim.
b.
CLRA
The CLRA is to be “liberally construed and applied to promote its underlying
purposes, which are to protect consumers against unfair and deceptive business practices
and to provide efficient economical procedures to secure such protection.” Cal. Civ.
Code § 1760. Relief under the CLRA is available to “any consumer who suffers and
damage as a result of the use or employment” of any unlawful “method, act, or practice.”
12
Finally, “unlawful” business practices within the meaning of the UCL “include
anything that can properly be called a business practice and that at the same time is
forbidden by law.” McKell v. Washington Mut., Inc., 142 Cal. App. 4th 1457, 1475 (Cal.
Ct. App. 2006) (internal quotation marks and citation omitted); Plascencia v. Lending 1st
Mortg., 583 F. Supp. 2d 1090, 1098 (N.D. Cal. 2008) (“Violation of almost any federal,
state, or local law may serve as the basis for a UCL claim.”). Accordingly, liability under
any of the other claims asserted herein may serve as a predicate for violation of the
UCL’s unlawfulness prong.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 22 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Cal. Civ. Code § 1780(a). Such damage may result “through the materiality” of an
alleged omission. See Parkinson v. Hyundai Mot. Am., 258 F.R.D. 580, 595–96 (C.D.
Cal. 2008). Whether an omission is “material[]” presents a “common question of fact
suitable for treatment in a class action.” Mass. Mut., 97 Cal. App. 4th at 1294; Stearns,
655 F.3d at 1022 (holding that materiality is established “‘if a reasonable man would
attach importance to its existence or nonexistence in determining his choice of action in
the transaction in question’”) (quoting Steroid Hormone Prod. Cases, 181 Cal. App. 4th
145, 155–56 (Cal. Ct. App. 2010)). “[T]he causation required by the [CLRA] does not
make plaintiffs’ claims unsuitable for class treatment” because “[c]ausation as to each
class member is commonly proved more likely than not by materiality.” Mass. Mut., 97
Cal. App. 4th at 1292.
Accordingly, “common issues of law and fact predominate[] in claims brought
pursuant to the CLRA for failure to disclose alleged design defects.” Cartwright v.
Viking Indus., Inc., 2009 WL 2982887, at *12 (E.D. Cal. Sept. 14, 2009) (citing Mass.
Mut., 97 Cal. App. 4th at 1292). See also Keilholtz v. Lennox Hearth Prods., 268 F.R.D.
330, 342–43 (N.D. Cal. 2010) (concluding that the “ultimate question of whether the
undisclosed information” based on the defendants’ alleged failure to disclose to
consumers that defendants’ fireplaces could reach too-hot temperatures was material was
“a common question of fact suitable for treatment in a class action”).
c.
Song-Beverly Act
To establish a violation of the Song-Beverly Act, the plaintiff must prove that
goods sold in California were not merchantable. Cal. Civ. Code §§ 1792 et seq. Here,
plaintiffs’ Song-Beverly Act claim is based on the allegation that defendants represented
Serum as safe to use as a “leave-in” product without any risk of injury threatened by the
use of heated appliances. Whether that representation was false presents a common
question appropriate for class resolution. See Sanbrook v. Office Depot, Inc., 2009 WL
840020, at *5 (N.D. Cal. Mar. 30, 2009) (concluding that “[t]he Song-Beverly class claim
is significantly subject to common proof. The nature of the Song-Beverly violation is
common to all class members . . . .”).
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 23 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
d.
Date
May 7, 2012
GBL
Finally, in order to recover for a violation of New York’s GBL § 349, for deceptive
business practices, or § 350, for false advertising, a plaintiff must show: “(1) that the act,
practice, or advertisement was consumer-oriented; (2) that the act, practice, or
advertisement was misleading in a material respect; and (3) that the plaintiff was thereby
injured.” Ackerman v. Coca-Cola Co., 2010 WL 2925955, at *22 (E.D.N.Y. July 21,
2010). See also City of New York v. Smokes.com, Inc., 911 N.E.2d 834, 839 (N.Y.
2009). As with California’s UCL, the “standard for whether an act or practice is
misleading is an objective one, requiring a showing that a reasonable consumer would
have been misled by the defendant’s conduct.” Ackerman, 2010 WL 2925955, at *22
(citing Marcus v. AT&T, 138 F.3d 46, 64 (2d Cir. 1998)). A claim for deceptive business
practices pursuant to § 349 does not require a demonstration of reliance, although a claim
pursuant to § 350 does. However, under New York law, there is a presumption of
reliance when the defendant controls the relevant information and a consumer of ordinary
intelligence could not discover the true state of affairs. Leider v. Ralfe, 387 F. Supp. 2d
283, 293, 296 (S.D.N.Y. 2005). Moreover, where consumers allege that they paid a
premium for the product based on marketing representations—as plaintiffs do here—they
have adequately alleged an injury under § 350. Ackerman, 2010 WL 2925955, at *23.
Accordingly, as with the California claims, the issue of whether plaintiffs and class
members would have purchased Serum had they known it was flammable can be
established with common proof.13
13
At oral argument, counsel for defendants argued that Hooper v. HM Mane
Solutions, LLC, 819 N.Y.S.2d 848 (N.Y. Sup. Ct. 2006) (unreported disposition),
foreclosed plaintiffs’ claims under the GBL. Defendants are incorrect. In Hooper, the
court declined to certify a class of consumers who brought suit against the maker of
“Easy Straight Hair Straightening System” because the hair product allegedly caused
damage to plaintiffs’ hair or scalp, but failed to warn them of this possibility. Id. at *1.
In denying plaintiffs’ motion to certify, the court observed that the proposed class “is
based on the plaintiffs’ argument that the mere purchase or use of Easy Straight is
actionable even without any injury.” Id. at *2. Here, in contrast to the physical injuries
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 24 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
For the reasons set forth above, common issues predominate over individualized
issues with regard to all of plaintiffs’ claims.
2.
Whether Class Litigation is Superior to Other Methods of
Adjudication
Rule 23(b)(3) sets forth four relevant factors fo determining whether a class action
is “superior to other available methods for the fair and efficient adjudication of the
controversy.” Fed. R. Civ. P. 23(b)(3). These factors include:
(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already
begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in
the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
“[C]onsideration of these factors requires the court to focus on the efficiency and
economy elements of the class action so that cases allowed under subdivision (b)(3) are
those that can be adjudicated most profitably on a representative basis.” Zinser v.
Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir.) (internal quotation marks and
citation omitted), amended by 273 F.3d 1266 (9th Cir. 2001).
alleged in Hooper, plaintiffs allege that they suffered economic injury. Accordingly,
Hooper is distinguishable.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 25 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
Plaintiffs argue that the “superiority” factors “weigh heavily” in favor of class
certification in this case because “it is not economically feasible” for the thousands of
putative class members to pursue individual claims. Mot. at 22. Further, plaintiffs assert
that liability will turn on whether defendants’ advertisements and packaging were false
and misleading, “meaning judicial efficiency” also weighs in favor of class certification.
Id. Finally, plaintiffs contend that “the adjudication of class claims would be
significantly less burdensome than if the matter were prosecuted individually.” Id. at 23.
Defendants respond that “mass torts are ill suited for class treatment.” Opp’n at 23
(citing McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 549–50 (5th Cir. 2003)).
Further, defendants argue that proceeding on a classwide basis would force the Court to
“evaluate the state of mind of each putative plaintiff to determine whether they placed
importance on flammability and warning labels,” and that “[e]ven if liability is
established, determining each putative plaintiff’s recovery would be a herculean task.”
Opp’n at 25 (citing Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981)).
The Court finds that class litigation is superior to other methods of adjudication in
this case. First, class actions “to enforce compliance with consumer protection laws are
‘desirable and should be encouraged.’” Ballard v. Equifax Check Servs., Inc., 186 F.R.D.
589, 600 (E.D. Cal. 1999) (quoting Duran v. Credit Bureau of Yuma, Inc., 93 F.R.D. 607,
610 (D. Ariz. 1982)). Second, given that Serum sells for less than $10.00 per bottle,
“there is no realistic alternative to a class action in this case, making a class action
understandably the superior method of adjudication.” Dannon, 255 F.R.D. at 672.
Finally, adjudicating class claims will be significantly less burdensome than if the matter
were prosecuted individually. E.g. Menagerie Prods. v. Citysearch, 2009 WL 3770668,
at *19 (C.D. Cal. Nov. 9, 2009) (concluding that “it does not appear that any members of
the class have commenced any other litigation concerning the controversy alleged herein”
and “concentrating the litigation in this Court will allow it to proceed in an efficient
manner without risking inconsistent outcomes, and there is no reason to think that this is
an undesirable forum to litigate these claims”).
Accordingly, the Court finds that the superiority requirement of Rule 23(b)(3) is
satisfied.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 26 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
D.
Date
May 7, 2012
Appointment of Class Counsel
Rule 23(g)(1) requires the Court to appoint class counsel. Rule 23(g) provides,
inter alia, that courts must consider the following factors in appointing class counsel:
(i)
the work counsel has done in identifying or investigating potential claims in
the action;
(ii)
counsel’s experience in handling class actions, other complex litigation, and
the types of claims asserted in the action;
(iii)
counsel’s knowledge of the applicable law; and
(iv)
the resources that counsel will commit to representing the class.
Fed. R. Civ. P. 23(g)
The Court is satisfied that plaintiffs’ co-counsel of record, KamberLaw, LLP and
Parisi & Havens LLP meet the criteria of Rule 23(g) and should serve as co-class
counsel. First, both firms have represented plaintiffs throughout this litigation. Second,
both firms have significant experience in litigating class actions and otherwise satisfy the
requirements of Rule 23(g). See Parasmo Decl. ¶¶ 18, 19. Finally, both firms have
sufficient resources to vigorously represent the classes. See id., ¶¶ 17, 19.
KamberLaw, LLP and Parisi & Havens LLP are hereby appointed class counsel
pursuant to Rule 23(g).
V.
CONCLUSION
In accordance with the foregoing, plaintiffs’ motion for class certification is
GRANTED. The following two classes are hereby certified:
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 27 of 28
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 11-1067 CAS (JCx) Consolidated with
CV 11-5465 CAS (JCx)
Date
May 7, 2012
Title
JILL GUIDO; ET AL. v. L’OREAL, USA, INC.; ET AL. Consolidated
with CATHERINE ALTAMURA; ET AL. v. L’OREAL, USA, INC.; ET
AL.
California Class: For the California claims, this class is comprised of all California
residents who purchased Garnier Fructis Sleek & Shine Anti-Frizz Serum in the
state of California during the period from February 2, 2008, to the present.
New York Class: For the New York claims, this class is comprised of all New
York residents who purchased Garnier Fructis Sleek & Shine Anti-Frizz Serum in
the state of New York during the period from February 4, 2008, to the present.
Excluded from both classes are defendants as well as all employees of the Court,
including, but not limited to, judges, magistrate judges, clerks, and court staff and
personnel of the United States District Courts of the Central District of California,
the United States Court of Appeals for the Ninth Circuit, and the United States
Supreme Court; their spouses or significant others and any minor children living in
their households and any other persons within a third degree of relationship to any
such federal judge; and finally, the entire jury venire called to for jury service in
relation to this lawsuit. Also excluded from the classes are any attorneys or other
or other employees of any law firms hired, retained, and/or appointed by or on
behalf of the named plaintiffs to represent the named plaintiffs and any/or proposed
class members or proposed class in this lawsuit. Also excluded from the classes
are any persons who have sustained physical injury as result of the defects at issue
in this litigation.
IT IS SO ORDERED.
00
Initials of Preparer
CV-90 (06/04)
CIVIL MINUTES - GENERAL
:
21
CMJ
Page 28 of 28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?