The Southern District of New York recently denied class certification in a consolidated putative class action against a cosmetics company for breach of contract, false advertising, unfair competition, deceptive acts and practices, and other violations of state law. Plaintiffs alleged the company made false claims regarding its anti-aging products and sought to certify multiple classes of purchases, nationwide and in two states, with additional subclasses based on whether consumers had purchased products online or through sales representatives.

The court discussed the requirements of Federal Rule of Civil Procedure 23, but declined to address numerosity, commonality, typicality, and adequacy under Rule 23(a) because it found that plaintiffs failed to satisfy the predominance requirement of Rule 23(b)(3) and the implied prerequisite of ascertainability. First, with regard to purchases made through sales representatives, plaintiffs argued that the common “Falsity Question” of whether the defendant made false scientific claims in its brochures would predominate. However, the brochures changed every two weeks, many contained subjective statements related to appearance rather than biology, and sales representatives were under no obligation to distribute the brochures to customers—who may never have even seen them. Thus, unlike in a case where uniform misrepresentations are made to all consumers on a product label, the court found that plaintiffs here could not show common issues would predominate.

Next, because the defendant did not keep records of individual customers making purchases through sales representatives, plaintiffs also failed to satisfy ascertainability. Although plaintiffs argued that class members could be identified through claim forms in conjunction with receipts, UPC codes, or affidavits, the court found these options inadequate. It noted that consumers were unlikely to remember what they purchased, there was no evidence to suggest putative class members would still have such records, and the risk of “false positives” was significant. Moreover, even if the consumers could be identified, whether they saw the alleged misrepresentations could not be determined.

As for internet purchasers, the court held that a choice of law provision in favor of New York in the terms and conditions on defendant’s website precluded certification of a Nebraska subclass. As for claims under New York’s consumer protection statute, that court noted that even though defendant’s online representations were more consistent than those in the brochures, predominance was still lacking because individualized inquiries would be required to prove causation. Furthermore, plaintiffs had not shown the existence of a common contract for purposes of their class-wide breach of contract claim. The court also held that plaintiffs lacked standing to bring a claim for a forward-looking injunction since they were unlikely to buy the products again.

In re Avon Anti-Aging Skincare Creams & Prods. Mktg. & Sales Practice Litig., No. 1:13-cv-00150 (S.D.N.Y. Sept. 30, 2015).