A federal court in California has denied without prejudice a motion to certify a class of California consumers who were allegedly deceived by L’Oréal’s failure to include a flammability warning on Garnier Fructis Sleek & Shine Anti-Frizz Serum®; the court, however, granted a motion to certify a class of New York consumers raising the same claims in a consolidated action. Guido v. L’Oréal USA, Inc., Nos. 11-1067, -5465 (U.S. Dist. Ct., C.D. Cal., order entered July 1, 2013). The company contends that after denatured alcohol was removed from the product in 2006 to comply with California’s volatile organic compound regulations, it no longer required a flammability warning. The plaintiffs allege that it remains flammable, and they would not have purchased the product had they known it was flammable.

The court agreed with L’Oréal that under Comcast v. Behrend, 133 S. Ct. 1426 (2013), the California class could not be certified because the plaintiffs had not shown that common questions predominate over individual issues as to damages. The plaintiffs have not yet produced expert testimony to demonstrate a connection between their theories of liability—violations of California’s consumer fraud statutes and breach of the implied warranty of merchantability—and damages.

According to the court, “because plaintiffs have not submitted expert testimony actually demonstrating a gap between the true market price of Serum and its historical market price, they have not met their burden of demonstrating that common questions predominate over individual issues regarding classwide relief.” The court did not close the door on the plaintiffs, however, indicating that they could make a renewed motion for class certification after presenting expert testimony on the issue. The court did not find the same infirmity as to the proposed New York class of purchasers, noting that they were seeking statutory damages and no expert testimony was required to award relief to the New York class.

Other aspects of the court’s ruling include a determination that one of the named plaintiffs did not have claims typical of the putative class because she purchased a bottle of Serum before 2007 when it had a flammability warning and thus had been exposed to a warning label; accordingly, the court ruled that she was not an appropriate class representative. The court rejected L’Oréal’s argument that one of the named plaintiffs was subject to the defense of laches because she learned about the facts underlying her claim only after speaking with counsel. The court found no authority to defeat the typicality requirement of class certification on this ground.

Similarly, the court rejected claims that the named plaintiffs are not adequate representatives of the class because they lacked personal knowledge about the litigation, “and only sought to become plaintiffs after being contacted by counsel.” In this regard, the court stated, “While they may have first learned about Serum’s alleged flammability from plaintiffs’ counsel, this is not disqualifying, especially in light of counsel’s explanation that the key facts underlying this case were only uncovered after costly testing[, and] the fact that plaintiffs were solicited by counsel does not undermine a finding of adequacy. There is nothing inherently improper with the recruitment of class representatives, and where existing named plaintiffs become unavailable or unsuitable, allowing the recruitment of replacements is even recommended.”