A federal court in California has denied the motion to certify a class in litigation claiming that Maybelline, LLC misleads consumers by claiming that a line of its lip and skin products is effective for 24 hours. Algarin v. Maybelline, LLC, No. 12-3000 (U.S. Dist. Ct., S.D. Cal., order entered May 12, 2014).

Among other matters, the court determined that, on the basis of unrefuted expert evidence “of who the reasonable consumer in the target audience is and what drives her in making purchasing decisions,” the two named plaintiffs would not be able to show that all putative class members had the same reason for purchasing the products or were dissatisfied with them. Maybelline’s marketing expert Eli Seggev examined data on repeat and one-time purchasers and concluded, as to the lipcolor, that 45 percent were satisfied with the purchases, duration was not the only motivating factor in making the purchases, more than half of the purchasers could not recall what their expectations were about duration or were satisfied with the product’s duration, and only 9 percent were one-time purchasers who expected the product to last 24 hours and were thus injured as alleged. The data for makeup purchasers were similar.

While the court agreed with Maybelline that many in the putative class would be unable to show injury or had already obtained refunds through the company’s refund program, and therefore the class definition was overbroad, it did not find the class unascertainable on this ground. The court ruled instead that the court and parties would have to rely on class members to self-identify because they were unlikely to retain proof of purchase for products costing between $10 and $13, and Maybelline does not maintain a purchaser list. The court also noted, “given that the class period extends three years for the lipcolor and five years for the makeup, it is doubtful that class members will precisely recall the items purchased, the quantity purchased, and the amount paid.”

The court further determined that the plaintiffs failed to meet the commonality requirement of Federal Rule of Civil Procedure 23(a)(2), stating “[i]n light of objective evidence showing that there was a substantial number of class members who were not misled by the 24 hour claim, whether Maybelline’s conduct was false or misleading or likely to deceive is not subject to common proof on a classwide basis, [and] Plaintiffs have also failed to demonstrate that the elements of materiality and reliance are subject to common proof.” Because the court also found that the plaintiffs were unable to establish typicality—“the named Plaintiffs’ reliance on the alleged misrepresentations was not typical of other class members,” it concluded that the plaintiffs failed to meet Rule 23(a)’s requirements.

Analyzing the Rule 23(b)(2) factors, the court found that the damages were incidental to the injunctive relief requested. In this regard, the court noted that it was “not dealing with products such as dietary supplements where the purported benefits are hard to ascertain or take time to actualize. These consumers will not benefit from the injunctive relief as they cannot demonstrate a probability of future injury; if they know the “truth” they cannot be further deceived.”

Discussing the predominance requirement of Rule 23(b)(3), the court ruled that the plaintiffs, by relying on the difference in price between the subject products and Maybelline’s other products—approximately $1 to $3, failed to provide an adequate method of determining class-wide damages. According to the court, any number of reasons could explain the price of the class products, including that they contain higher quality ingredients, are offered in a different selection of colors or reflect the costs spent on research and development. The court also agreed with Maybelline that the plaintiffs could not rely on retail pricing to support their price-premium damages theory, because the company had no control over retail pricing.