Naiser v. Unilever United States, Inc.
81 U.C.C. Rep. Serv. 2d (West) 864
W.D. Ky.2013Background
- Kentucky residents allege Unilever marketed Suave Keratin Infusion 30 Day Smoothing Kit as a smoothing treatment and not a chemical relaxer, but claim it caused hair loss and scalp injuries.
- Plaintiffs allege lack of warnings and concealment of adverse effects despite recalls and consumer complaints beginning before/around May 2012.
- Plaintiffs purchased the product in Kentucky from retailers; they sue Unilever and related entities for express warranties, KCPA, and MMWA, plus common-law claims of negligence, strict liability, and unjust enrichment.
- Unilever moved to dismiss the First Amended Complaint for failure to state a claim under Rule 12(b)(6); Conopco joined by incorporation.
- Court applies Kentucky law, follows Iqbal/Twombly standards, and evaluates whether pleaded facts suffice for each claimed theory.
- The court ultimately denies the motions to dismiss for express warranty, KCPA, MMWA, design defect, informational defect, negligence, and unjust enrichment, and grants leave to file a supplemental memorandum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Unilever’s alleged smoothing-claim constitutes an express warranty | Naiser and Phillips pleaded that product was a smoothing treatment, not a chemical relaxer. | Packaging amounted to puffery; statements were not affirmations of fact or promises. | Plaintiffs’ claim survives; alleged smoothing promise is an express warranty question for trial. |
| Whether the product-length claim (30 days) constitutes an express warranty and basis of the bargain | Labelled as 30 Day Smoothing Kit; packaging suggested duration of effects. | Label language does not create a warranty; is subject to factual dispute. | Sufficient pleading of an affirmation of fact regarding duration; question left to fact-finder. |
| Whether the statements that product contained no formaldehyde and was safe create an express warranty and are actionable | Alleged formaldehyde-releaser present; consumer would rely on absence of formaldehyde. | Formaldehyde not an ingredient; packaging warned of risks; 'safe' not stated on packaging. | Sufficient pleading of an express warranty; misrepresentation supported; issue for trial. |
| Whether privity is required for express warranty and whether plaintiffs may pursue KCPA and MMWA claims | Levin-type analysis favors privity not required where warranties run to intended consumers. | Privity ordinarily required; retailers not sufficient. | Privity requirement not fatal; plaintiffs may pursue express warranty, KCPA, and MMWA claims; exception applies. |
| Whether design defect and informational defect claims survive | Allegations show product contained thioglycolic acid causing damage; warnings alleged inadequate. | Need feasible safer alternative design and adequately pleaded warnings; motion to dismiss. | Design defect and informational defect claims survive; allegations sufficient to state claims at this stage. |
Key Cases Cited
- Reid v. Unilever United States, Inc., 964 F.Supp.2d 893 (N.D. Ill. 2013) (warranty statements about smoothing can be actionable; persuasive on privity and disclosures)
- Overstreet v. Norden Labs., Inc., 669 F.2d 1286 (6th Cir. 1982) (distinguishes puffery from express warranties; reliance element)
- Morgan v. Cabela's Inc., 788 F.Supp.2d 552 (E.D. Ky. 2011) (determines whether express warranties present and factual questions for jury)
- Skilcraft Sheetmetal, Inc. v. Ky. Mach., Inc., 836 S.W.2d 907 (Ky. App. 1992) (privity considerations under Kentucky privity statute for KCPA)
- Levin v. Trex Co., Inc., 2012 WL 7832713 (W.D. Ky. 2012) (manufacturer warranties to intended consumers can create standing without direct privity)
- Compex Int'l Co., Ltd. v. Taylor, 209 S.W.3d 462 (Ky. 2006) (improper to bar consumer claims where warranty discussions exist; implied warranty context)