Cosmetics giant Maybelline markets Superstay 24 lipstick, which is supposed to be more comfortable, withstand heat and humidity, and go 24 hours without needing a transfer. Some customers decided that, despite the advertising, the lipstick did not last a full 24 hours without transfer; so they sued Maybelline claiming that it had violated various California fraud statutes.

As many lawyers know, California’s consumer fraud statutes have lesser reliance standards. For example, reliance is judged on an objective “reasonable consumer” standard that means plaintiffs often do not have to demonstrate individualized reliance to get a class certified.

So faced with a class action attacking its marketing of the lipstick (Algarin v. Maybelline, LLC, No. 12cv3000, 2014 U.S. Dist. LEXIS 65173 (S.D. Cal. May 12, 2014)), one would expect Maybelline to either (1) argue everything but reliance, or settle quickly.

Instead, Maybelline attacked the reliance requirement directly, using expert testimony to establish what its “reasonable consumer” actually cared about.

Maybelline has introduced unrefuted evidence of who the reasonable consumer in the target audience is and what drives her in making purchasing decisions. As Maybelline contends, the Court does not need to look to the hypothetical reasonable consumer.

(Emphases added.)  Interestingly, Maybelline’s expert found a large number of repeat purchasers, which indicated that a large number of Maybelline’s consumers either did not care about the duration of the lipstick, or were satisfied with it as it stood. Its expert also surveyed a number of buyers, repeat and otherwise, to see what they did care about when buying lipstick. His results allowed Maybelline to successfully attack the class definition (which was overbroad), and argue that individualized issues would predominate over any common issues.

Maybelline presents evidence, in the form of Dr. Seggev’s survey and report as well as Maybelline’s Early Trier Study, to show the proposed class includes: (1) a large percentage of the potential class of SuperStay purchasers are repeat purchasers who cannot be considered to be misled by the duration representation identified by Plaintiffs and (2) one-time purchases of the Class Products who had no duration expectations and whose purchasing decisions were made without regard to product duration. Because the proposed class includes these “uninjured” purchasers, the class is impermissibly overbroad and thus unascertainable.

The takeaway here is a good one for those who litigate frequently in California, as well as elsewhere: don’t be afraid to use expert testimony to attack the basics of plaintiffs’ case.