A federal court in California has agreed to stay further action involving a certified class of New York purchasers of L’Oréal’s allegedly flammable Garnier Fructis Sleek & Shine Anti-Frizz Serum®, but will allow the named representatives of a California class of purchasers to renew their motion for certification while L’Oréal’s appeal of the New York certification order is pending. Altamura v. L’Oréal, USA, Inc., Guido v. L’Oréal, USA, Inc., Nos. 11-5465, -1067 (U.S. Dist. Ct., C.D. Cal., order entered August 26, 2013). Additional information about the court’s class certification rulings in these consolidated matters appears in Issue 6 of this Report.

The court determined that one of the issues raised by L’Oréal’s interlocutory appeal of the order certifying the New York class—whether the court erred in applying Comcast v. Behrend, 133 S. Ct. 1426 (2013), to a statutory damages provision, which was an unsettled area of law—had a sufficient likelihood of success to justify a stay. The court also found that L’Oréal would be unnecessarily harmed if it were required to issue class-wide notification to members of the New York class, thus damaging its reputation, if the New York class were later decertified on appeal. The company had also argued that “the current two-track format of this action will force it to simultaneously litigate certification for the California class and merits discovery for the New York class.” The court agreed that staying the New York proceedings would obviate this concern.

Because the plaintiffs had agreed to stay merits discovery and class notification, the court found that a stay would not harm them and also determined that staying the New York proceedings pending the appeal would be in the public interest because the court would thereby “avoid[] costly and potentially unnecessary litigation if the New York class is eventually decertified.” The plaintiffs must file their renewed motion to certify a California class by November 1, 2013, and the court has scheduled a hearing on the motion for February 24, 2014.