The District Court for the Southern District of California denied certification in a California consumer class action in which Plaintiffs’ claimed that Maybelline falsely labeled and advertised its “SuperStay 24HR” makeup as having 24 hours of staying power. The Court found several deficiencies in the proposed class of Maybelline makeup purchasers under Rules 23(a), (b)(2) and (b)(3).

First, the court found that the proposed class was overbroad because it included customers who already received refunds through Maybelline’s refund program. Even if these customers were excluded, however, the court found that Plaintiff’s class failed to meet the ascertainability requirement implicit in Rule 23(a). The court was persuaded by Maybelline’s expert report indicating that a large percentage of customers were either repeat customers (who cannot therefore be considered misled) or one-time purchasers who had no duration expectations. The court found that Plaintiffs failed to demonstrate an administratively feasible method to determine whether a particular person is a class member. Noting an overlap in the manageability prong of rule 23(b)(3)(D), the court reasoned that the parties would necessarily rely on class members to self-identify, but the court would have no way to verify if a purchaser of the “small-ticket” makeup items at issue here is actually a class member. The court also determined that typicality was lacking based on the objective evidence showing a substantial number of class members who, unlike the named representatives, were not misled by Maybelline’s 24 hour duration claim.

The court went on to note that class-wide injunctive relief under Rule 23(b)(2) was inappropriate because the class members are now aware of the realities of the makeup products. Therefore, the only potential beneficiaries of any injunctive relief are future purchasers who have never purchased the makeup before, but the class definition excluded them. The court also found that common questions did not predominate over individual inquiries under Rule 23(b)(3) because Plaintiffs failed to propose a viable method that would attach a dollar value to the alleged 24 hour misrepresentations. The court concluded by noting that for all the foregoing reasons, a class action is not a superior method of adjudicating the controversy.

Algarin v. Maybelline, LLC, Case No. 12cv3000 AJB (DHB) (S.D. Cal. May 12, 2014).