In re Amla Litig.

• Decision Date: 24 October 2017
• Docket Number: 16–cv–6593
• Parties: IN RE: AMLA LITIGATION
• Court: U.S. District Court — Southern District of New York

282 F.Supp.3d 751

IN RE: AMLA LITIGATION

16–cv–6593

United States District Court, S.D. New York.

Signed October 24, 2017

William Harold Anderson, Charles Joseph LaDuca, Cuneo Gilbert & Laduca, LLP, Andrea Gold, Jonathan K. Tycko, Tycko & Zavareei, LLP, Washington, DC, Andrea Clisura, Lori G. Feldman, Lori Gwen Feldman, Courtney E. Maccarone, Michael Harris Rosner, Levi and Korsinsky LLP, Gregory Bradley Linkh, Glancy Prongay & Murray LLP, Elizabeth S. Metcalf, Peter George Safirstein, Safirstein Metcalf LLP, New York, NY, Rosemary M. Rivas, Levi & Korsinsky LLP, Ling Y. Kuang, Michael Andrew McShane, S. Clinton Woods, Audet & Partners, LLP, San Francisco, CA, Bryan Lee Clobes, Nyran Rose Rasche, Cafferty Faucher LLP, Charles E. Schaffer, Levin, Fishbein, Sedran & Berman, Philadelphia, PA, Jonathan Betten Cohen, Morgan & Morgan Complex Litigation Group, Tampa, FL, Mark John Geragos, Benjamin Jared Meiselas, Geragos and Geragos APC, Los Angeles, CA, Rachel L. Soffin, John A. Yanchunis, Morgan & Morgan, Tampa, FL, Nick Suciu, III, Barbat Mansour & Suciu PLLC, Detroit, MI, for Plaintiffs.

Nora Coleman, Ilene R. Goodman, Scott Lawrence Haworth, Haworth Coleman & Gerstman, LCC, New York, NY, Justin Daniel Lewis, M. D. Scully, Gordon & Rees Scully Mansukhani LLP (CA), San Diego, CA, Peter George Siachos, Gordon & Rees, LLP(NJ), Florham Park, NJ, for Defendants.

MEMORANDUM AND ORDER

JED S. RAKOFF, U.S.D.J.

This litigation pits several putative classes of consumers against defendants L'Oreal USA, Inc. ("L'Oreal") and its subsidiary Soft Sheen–Carson LLC. The general details of this case are set forth in the Court's Memorandum dated July 18, 2017, granting in part and denying in part defendants' motions to dismiss, familiarity with which is here presumed. See ECF No. 98.

In brief, plaintiffs allege that defendants created, marketed, and distributed "Amla Legend Rejuvenating Ritual Relaxer," a hair relaxer that plaintiffs claim causes unreasonable pain and damages the hair and scalp. Plaintiffs further allege that defendants did not disclose these dangers and, instead, actively misled consumers into believing that the product was gentler and safer than other relaxers. Such misrepresentations, plaintiffs allege, were inherent in four statements made on every iteration of the product's packaging, to wit, that the product was "No–Lye," contained "Amla Oil" and a "Scalp Protector," and had "rejuvenating properties of intense nourishment and conditioning." See Memorandum of Law in Support of Motion for Class Certification, Appointment of Class Representatives, and Appointment of Class Counsel ("Pls. Mem.") at 6, n.3, ECF No. 105.

Plaintiff now seeks to certify four classes pursuant to Rule 23(b)(3). The proposed "National Class" is defined as "All persons who bought one or more of the Products in the United States from December 1, 2012 to the present," and seeks a full refund for each class member on the basis of fraud and negligent misrepresentation. The proposed "Multistate Class" is defined as "All persons who bought one or more of the Products in Alaska, California, Colorado, Delaware, Iowa, Kansas, Maine, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming from December 1, 2012 to the present," and seeks a full refund on the basis of a breach of express warranty. The proposed "New York Class" is defined as "All persons who bought one or more of the Products in New York from August 19, 2013 to the present," and the proposed "Florida Class" is defined as "All persons who bought one or more of the Products in Florida from December 1, 2012 to the present." These two latter classes both seek full refunds on the basis of unjust enrichment, and the New York Class also seeks $50 in statutory damages for each class member pursuant to New York's General Business Law § 349. Pls. Mem. at 10–11.

Separately, plaintiffs also seek to certify the New York Class and Florida Class, as defined above, pursuant to Rule 23(b)(2), contending that they are entitled to injunctive and declaratory relief pursuant to Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204 ("FDUTPA"), and New York's General Business Law § 349. Pls. Mem. at 12.

In addition to all this, plaintiffs seek to certify a "Non–Economic Injury Class" under Rule 23(c)(4). This class is defined as "All persons who bought one or more of the products in Illinois, Kentucky, California, Missouri and Pennsylvania from December 1, 2012 to the present."¹ This class seeks only a liability determination under negligence and strict product liability, leaving for subsequent, individual lawsuits the issues of proximate causation and damages. Id. at 12.

Defendants oppose the motion, arguing that plaintiffs fail to satisfy various requirements of Rule 23. The Court received briefing from the parties and held oral argument on September 13, 2017.

Having fully considered the parties' submissions and arguments, the Court hereby grants plaintiffs' motion to certify the New York and Florida Classes under Rules 23(b)(2) and (3), but otherwise denies certification. The Court appoints Sandi Turnipseed, Jennifer Sanon, and Jasmin Hervey as class representatives for the New York Class, and Tiffany Raines as class representative for the Florida Class. The Court appoints Levi & Korsinsky, LLP and Geragos & Geragos, APC as class counsel.

I. Rule 23(a) Requirements

To prevail on their motion for class certification, plaintiffs must first satisfy the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy.

See Fed. R. Civ. P. 23(a). The Court considers each in turn.

Rule 23(a)(1) provides that a class may be certified only if it "is so numerous that joinder of all members is impracticable." In the Second Circuit, numerosity is usually presumed for classes larger than forty members. See Pennsylvania Pub. Sch. Emp.'s Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014). The evidence of defendants' revenue shows that there were well over forty purchasers in each proposed class. See Declaration of Michael Rosner ("Rosner Decl.") dated August 11, 2017, Ex. 19 (filed under seal). Defendants do not challenge this prong. Accordingly, the Court concludes that the classes satisfy the numerosity requirement of Rule 23(a)(1).

Commonality is met when "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). The commonality requirement may be met where individual circumstances differ but "injuries derive from a unitary course of conduct by a single system." Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). Each alleged injury in this case arose from the same product whose packaging contained the same allegedly misleading representations and omissions. Each claim is premised on, inter alia, whether the product is capable of causing undue pain and injury, and the answer will be the same for every class member. Defendants do not meaningfully challenge this prong. Accordingly, the Court concludes that the proposed classes satisfy the commonality requirement of Rule 23(a)(2).

Rule 23(a)(3) requires that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class." The typicality requirement is met when "each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability." Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993). Defendants argue that "[t]here is no plaintiff or class member with a typical claim here," pointing to evidence of widely varying experiences, from satisfaction with the product to excruciating pain. See Memorandum in Opposition to Plaintiffs' Motion for Class Certification, Appointment of Class Representatives, and Appointment of Class Counsel ("Defs. Mem.") at 22, ECF No. 115. These atypicalities are only, however, relevant to individual causation and damages for personal injuries; but plaintiffs here seek remedies for the economic injury of purchasing an unsafe product and the unjust enrichment earned by selling such a product, and the named plaintiffs in the proposed 23(c)(4) class reserve the question of damages for later, individual actions. Accordingly, plaintiffs have satisfied the typicality requirement of Rule 23(a)(3).

The adequacy requirement is met when "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). "Adequacy entails inquiry as to whether: 1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation." In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (internal quotation marks and citation omitted).

Defendants argue that plaintiffs who seek only a refund or $50 in statutory damages cannot adequately represent class members who suffered more serious damages. But those with graver injuries will have the opportunity to opt out. Moreover, personal injury claims that cannot be litigated in this class action will not be barred in later proceedings. See 18 Wright & Miller, et al. Fed. Prac. & Proc. § 4413 (3d ed.) ("A judgment that expressly leaves open the opportunity to bring a second action on specified parts of the claim or cause of action that was advanced in the first action should be effective to forestall preclusion."); Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 880, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). As the Court determined when it granted the motion to appoint interim counsel, counsel is qualified, experienced, and should continue to ably conduct the litigation. See ECF No. 88. Defendants do not challenge counsel's adequacy. Accordingly, the Court holds that plaintiffs have satisfied the requirements of Rule...