ORDER DENYING MOTION FOR CLASS CERTIFICATION
This action arises out of the allegedly deceptive nature Defendant Maybelline, LLC’s (“Maybelline”) labels and advertises its Superstay 24HR product line. Plaintiffs, Yanira Algarin (“Algarin”) and Patsy Murdock (“Murdock”) (collectively “Plaintiffs”), bring this putative class action pursuant to California’s Unfair Competition Law (“UCL”) and California’s Legal Remedies Act (“CLRA”) seeking both monetary and injunctive relief. (Doe. No. 47.) Presently before the Court is Plaintiffs’ motion for class certification. (Doc. Nos. 63, 67).
I. BACKGROUND
A. Factual Background
Maybelline manufactures, markets, sells and distributes SuperStay 24HR Lipcolor, a line of lipcolors, and SuperStay 24HR Makeup, a line of skin foundations (collectively the “Class Products”). (Doc. No. 47 at 1.) The Lipcolor features the label “SuperStay 24,” “Micro-Flex Formula,” “No Transfer,” and “Up to 24HR Wear.” (Doc. No. 63, Ex. 10.) The Makeup features the Label “SuperStay Makeup 24HR,” “Micro-Flex Formula,” “Zero-Transfer,” and “24HR Wear.” (Id.) Though the class products are also advertised as makeup that provides “flexible, breathable, all day comfort,” that withstands “heat, sweat and humidity,” Plaintiffs take the most issue with the 24 hour/no transfer claim.
Plaintiff Algarin purchased the SuperStay Lipcolor for $10.00 in reliance on the claimed 24 hour staying power. Plaintiff Murdock purchased the SuperStay Makeup for $12.00 also in reliance on the claimed 24 hour coverage. (Doc. No. 47 at 5.) Both Plaintiffs gave full credence to the claimed 24 hour’ duration and were thus willing to pay a premium for that purported benefit. (Id. at 9.) Both Plaintiffs used the products as directed and needless to say, were decidedly unimpressed. Plaintiffs were exasperated that the products failed to live up to the representations as “neither the lipcolor nor the foundation lasted 24 hours, or anywhere near 24 hours....” Had the two Plaintiffs known the “truth” about the “premium priced” Class Products, they would have purchased less expensive options. (Id.) Plaintiffs allege that Maybelline continues- to deceptively convey through its advertising and labeling that: “SuperStay 24HR Products, with their ‘micro-flex formula,’ will not ‘transfer’ and will ‘stay' on for ‘24 hours.’ ” (Id. at 8-9) Plaintiffs were compelled to act on behalf of themselves and the class to prevent Maybelline from profiting further off of this allegedly deceptive practice.
Maybelline allows dissatisfied consumers to make their complaints known to the company, and in some circumstances will issue a refund, through its Refund Program. (Doc. No. 69 at 21.) According to counsel, a consumer may obtain more information on the Program by visiting Maybelline’s online website. From there, she may write to Maybelline and if she expresses dissatisfaction (performanсe or otherwise) she may receive compensation from Maybelline. Between the Products’ launch dates and mid-2013, approximately 2,700 consumers contacted Maybelline regarding the lipcolor and 700 regarding the makeup. (Deck of Patricia Erin DeVineenzo (“DeVincenzo Deck”), Doc. No. 69, Ex. A.) Of these communications, 604 were performance complaints about the lipcolor and 97 about the makeup. The median compensation for the lipcolor is $10.00 and for the makeup is $11.00. (Id. at ¶ 7, 8, 10, 11(e)-(h).)
Plaintiff Algarin filed the instant action with this Court on December 18, 2012, suing only over the lipeolor line. Plaintiff Murdock filed her action in the Northern District of California, suing for the makeup line. Attorneys for both Plaintiffs sought leave to file a Second Amended Complaint (“SAC”) to consolidate the two eases in this district. The Court granted that motion and Plaintiffs filed their SAC on September 19, 2013. (Doc. No. 47.)
Plaintiffs claim the labеls are deceptive, false, and/or misleading. According to named Plaintiffs, the labels and representations featured on the Class Products leads the reasonable average consumer to believe that the product she is purchasing will actually remain on her face for 24 hours.
Because of the Class Product’s deceptive labels and advertisements, Maybelline is able to charge a “hefty price premium.” (Id. at 6.) The Lipeolor retails for approximately $10.00-$12.00, which is $1.00-$1.50 higher than other Maybelline products. The Makeup retails for approximately $11.00-$12.00, which is $1.00-$3.00 higher than other May-belline foundations. (Id. at 6-7.) Plaintiffs attribute this price premium solely to the alleged misrepresentations.
Plaintiffs claim “[t]his is a textbook case for class certification” and seek certification under both Rule 23(b)(2) and Rule 23(b)(3). (Doc. Nos. 63) A hearing was held on this matter on April 24, 2014, where the Parties addressed a number of concerns and discussion points the Court had set prior. (See Doc. No. 74.) The Court took the matter under submission and this Order follows.
II. LEGAL STANDARD
A. Class Certification
Federal Rule of Civil Procedure governs class аctions. The party seeking certification must provide facts sufficient to satisfy the requirements of Rule 23(a) and (b). “Before certifying a class, the trial court must conduct a ‘rigorous analysis’ to determine whether the party seeking certification has met the prerequisites of [Rule] 23.” Mazza v. American Honda Motor Co., Inc.,
Rule 23(b)(2) applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is apprоpriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Claims for monetary relief may not be certified under Rule 23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief. Instead, individualized monetary claims belong in Rule 23(b)(3), “with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out.” Wal-Mart Stores Inc. v. Dukes, — U.S. -,
The merits of class members’ substantive claims are highly relevant when determining whether to certify a class. It is not correct to say a district court may consider the merits to the extent that they overlap with certificatiоn issues; rather, “a district court must consider the merits if they overlap with the Rule 23(a) requirements.” Ellis v. Costco Wholesale Corp.,
B. UCL and CLRA
“The primary purpose of the unfair competition law ... is to protect the public from unscrupulous business practices.” Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy,
Likewise, a defendant is liable under the CLRA if it misrepresents that its goods possess certain characteristics, uses, or benefits that they do not have or advertises goods with the intent not to sell them as advertised. Cal. Civ.Code § 1770(a) (5), (7), (9) and (16).
III. DISCUSSION
Plaintiffs must provide sufficient facts to show the requirements of Rule 23(a) are satisfied and that class treatment is appropriate under Rule 23(b). Maybelline makes several objections to class certification and has provided expert testimony and unrebut-ted evidence in support. The Court had a number of initial reservations regarding class certification and after further consideration of the briefs filed in support and opposition, as well as oral arguments from both parties, the Court’s reservations were confirmed. The Court is persuaded by Maybelline’s contentions and the objective evidence before it. The Court finds certification improper given the numerous deficiencies present in this case.
A. The Proposed Class
Plaintiffs define the class as: “[a]ll California consumers who purchased SuperStay 24HR Lipcolor and/or SuperStay 24HR Makeup for personal use until the date notice is disseminated.”
As an initial matter the Court expressed concern over this inclusive definition. Given the number of differences between the two products, including but not limited to, pricing differences, claims differences,
B. The UCL’s Reasonable Consumer and CLRA’s Reliance and Materiality Standards
In 2004, California voters passed Proposition 64 which amended the UCL to allow private suits only by a plaintiff “who has suffered injury in fact and has lost money or property as a result of ... unfair competition.” Cal. Bus. & Prof.Code § 17204 (emphasis added); In re Tobacco II,
Similarly, though individualized reliance (causation) is an element of a CLRA claim, if a material misrepresentation is made to the entire class, then the Court infers a presumption of reliance as to the class, and individualized causation need not be shown. In other words, “Plaintiffs may satisfy their burden of showing causation as to each by showing materiality as to all.” In re Vioxx Class Cases,
Of great importance to the matters in this class certification is the fact 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. Similarly, the Court does not need to infer reliance given the evidence presented.
C. Maybelline’s Expert Report
Maybelline’s expert, Dr. Eli Seggev, is an expert in the field of marketing.
Dr. Seggev reports that repeat purchаsing is a behavioral indicator of customer satisfaction and it follows that repeat purchasers are fully informed as to the duration claims and realities when they decided to purchase the Class Products again. (Seggev Rep. ¶ 49 (citing Szymanski, D.M. & Henard, D.H., Customer Satisfaction: A Meta-Analysis of the Empirical Evidence, 29 J. Acad. Mktg. Sci. 16, 24-25, 28-29 (2001))). Indeed, with cosmetics such as the ones at issue here, customers can readily discern how well they work and whether they lived up to the claimed representations. Accordingly, repeat purchasers can not be considered injured in the manner proposed by Plaintiffs. (Seggev Rep. ¶49.) As to the SuperStay lipcolor, Dr. Seggev’s Report indicates that: (1) 45% of purchasers were satisfied with the product based on repeat purchases; (2) dura
As to the SuperStay Makeup, Dr. Seggev’s survey indicates that: (1) 32% of purchasers were satisfied with the product and not misled by the duration and/or could not have suffered the injury as alleged by Plaintiffs; (2) purchasers indicated a variety of reasons in selecting the product for purchase; (3) 4% of the total sample mentioned the 24 hour duration as a reason for purchase showing that the 24 hour duration expectation was not the primary purchaser driver; (4) over half of purchasers were satisfied with the duration or had no duration expectation showing that duration expectations were either met or not material; and (5) only 14% of the total sample are one-time purchasers who expected the product to last 24 hours or more and thus are “injured” in the manner alleged by Plaintiffs. (Id. at ¶¶ 96-102.)
Plaintiffs cite this Court to deposition testimony by Dr. Seggev to stand for the proposition customers may purchase a product several times and not have their expectations met. (Doc. No. 70 at 1.) However, further review of the entirety of Dr. Seggev’s testimony reveals that Plaintiffs take his testimony out of context. (Doc. No. 76.) Dr. Seg-gev steadfastly defends his position that 54% of repeat purchasers, through the behavior of purchasing again, are not injured in the manner Plaintiffs allege. Indeed, it sounds in common sense that making repeat purchases indicates that the customer’s expectations have been met аnd she was satisfied with the product. See Chow v. Neutrogena Corp.,
Dr. Seggev’s findings inform a number of the Rule 23 factor analysis. The Court will address them in turn.
D. Ascertainable Class
Though not explicitly stated in Rule 23, courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed. See Chavez v. Blue Sky Natural Beverage Co.,
Maybelline argues the proposed class fails to meet the aseertainability requirement based on two grounds. Fust, the proposed class is overly broad as it includes uninjured purchasers. Second, membership of the class cannot be readily determined.
Maybelline’s first argument is essentially a challenge on the proposed class members’ standing. 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
As to these arguments regarding the inability of proposed members to show injury, the Court finds them more suitable for analysis under the Rule 23 rubric given the facts of this ease.
Consumer action classes that have been found to be overbroad generally include members who were never exposed to the alleged misrepresentations at all. See e.g., Red v. Kraft Foods, Inc.,
Maybelline further argues that because the class does not exclude purchasers who have already received refunds through Maybelline’s Refund program, it is overbroad and not ascertainable. The Court agrees. As the UCL only permits recovery or restitution/disgorgement, for purchasers who have already received refunds, they have already been compensated well over any potential disgorgement. These purchasers have no claims. See Stearns v. Select Comfort Retail Corp.,
The Court is satisfied that Plaintiffs’ class definition is ascertainable in the sense that class membership can be determined based on an objective criterion. Schwartz,
Though the class may be ascertainable in the sense that there are objective criteria for determining who its members are, it is not in the sense that members could actually ever be determined. Plaintiffs have failed to show how it is “administratively feasible to determine whether a particular person is a class member.” See Chavez,
Maybelline arguеs purchasers are unlikely to have documentary proof of purchase and
Cases where self-identification alone has been deemed sufficient generally involve situations where consumers are likely to retain receipts, where the relevant purchase was a memorable “big ticket” item; or where defendant would have access to a master list of consumers or retailers. See Red,
However, a lack of ascertainability alone will not defeat class certification. Red,
E. Rule 23(a)
Rule 23(a) provides a class action may proceed only where: (1) the class members are so numerous that joinder is impracticable; (2) common questions of law or fact exist; (3) the claims or defenses of the representative parties are typical of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).
1. Numerosity and Adequacy
Maybelline does not dispute that the proposed class meets the numerosity requirement nor do they dispute whether named Plaintiffs and counsel meet the adequacy re
2. Commonality
The commonality factоr “requires the plaintiff to demonstrate that the class members have suffered the same injury, which does not mean merely that they have all suffered a violation of the same provision of law.” Dukes,
Plaintiffs have identified several questions of law or fact common to the class: (1) whether the 24 hour/no transfer representation is true, or is misleading, or objectively reasonably likely to receive; (2) whether Maybelline engaged in false or misleading advertising; (3) whether Maybelline’s alleged conduct violates public policy; (4) whether Maybelline’s alleged conduct constitutes violations of the laws asserted; (5) the proper measure of the loss suffered by Plaintiffs and Class members; and (6) whether Plaintiffs and Class members are entitled to other appropriate remedies, including corrective advertising and injunctive relief. Maybel-line’s contention, that the proposed class includes uninjured purchasers, is properly analyzed under the commonality requirements of Rule 23(a) and Rule 23(b)(3).
In light of the 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. According to survey results, purchasers had a variety of duration expectations. Indeed, more purchasers expected the product to last less than 24 hours or had no specific duration expectations. (Seggev Rep. ¶¶ 74-75, ¶¶ 94-95.) Moreover, given the persuasive evidence presented on consumer expectations, the varying factors that influence purchasing decision, and consumer satisfaction, the Court finds that Plaintiffs have also failed to demonstrate that the elements of materiality and reliance are subject to common proof.
Expert evidence shows that materiality and reliance varies from consumer to consumer. Accordingly, the Court finds that these elements are not an issue subject to common proof. See Johnson v. Harley-Davidson Motor Co. Group, LLC,
Finally, the existence of economic injury is also not a common question as many purchasers were satisfied with the Class Products. Expert Report of Keith R. Ugone (“Ugone Rep.”) ¶ 35; (e.g., reviews say “This is best lipcolor ever ... I will be back for more,” “I love this [lipcolor] ... I will order more in the future,” and “I am so happy I tried this foundation ... this is my new foundation.”); see Moheb v. Nutramax Laboratories Inc.,
As for the other questions of law and fact posеd, it is arguable that they may support a finding of commonality under the permissive standards governing this inquiry. As noted above, commonality can be established by the presence of a single significant common issue. However, Plaintiffs meet their downfall with the typicality requirement.
Typicality requires a determination as to whether the named plaintiffs’ claims are typical of those of the class members they seek to represent. See Fed.R.Civ.P. 23(a)(3). “[Representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon,
The Court’s analysis of the commonality requirement also informs the analysis for typicality. Based upon the evidence presented, the named Plaintiffs’ reliance on the alleged misrepresentations was not typical of other class members.
Accordingly, the Court finds Plaintiffs have not met the requirements of Rule 23(a). While this alone is sufficient to deny the' motion to certify the class, the Court will continue with the analysis of the 23(b) classes. The Court further concludes that class certification under either 23(b)(2) or 23(b)(3) is improper.
F. Rule 23(b)(2)
A class is proper under 23(b)(2) where the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed.R.Civ.P. 23(b)(2). “Class certification under Rule 23(b) (2) is appropriate only where the primary relief sought is declaratory or injunctive.” Ellis,
Plaintiffs argue that a class under 23(b)(2) is proper given Maybelline’s uniform and widespread marketing, labeling, promoting, branding and advertising of its products; an action that is generally applicable to the entire class. Plaintiffs further contend that any damages sought are merely incidental to the injunctive relief sought. The Court disagrees.
Given the facts of the instant case, the injunctive relief requested by Plaintiffs is not “appropriate respecting the class as a whole.” Dukes,
Moreover, the restitution and disgorgement sought are not “incidental.” Named Plaintiffs cannot possibly benefit from injunctive relief as they are now (or at least should be) fully knowledgeable that the
G. Rule 23(b)(3)
Certification pursuant to Rule 23(b)(3) requires Plaintiffs to establish that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class аction is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).
1. Common Questions do not Predominate over Individual Inquiries
Rule 23(b)(3) predominance requires the class to be sufficiently cohesive to warrant adjudication by representation. Amchem Prods., Inc. v. Windsor,
The Courts analysis with regards to commonality under Rule 23(a) is fully applicable in the analysis of predominance. Given the number of individual purchasing inquiries as well as the evidence showing materiality and reliance varies consumer to consumer, it is evident that common issues do not predominate. See Moheb,
Under the UCL, a court may grant restitution as a form of relief. This relief is an equitable remedy and its purpose is to restore the status quo by returning to the plaintiff funds in which she has an ownership interest. Korea Supply Co. v. Lockheed Martin Corp.,
The Ninth Circuit has acknowledged that under the Comcast decision, a plaintiff must be able to show that damages
Plaintiffs propose the “price premium” method of determining classwide damage, arguing that California law permits plaintiffs to seek recovery of a price premium regardless of whether plaintiffs are able to quantify the premium that was paid or the identity of other products sold at a lower price that did not bear the alleged deceptive representations. (Doc. No. 63 at 22.) Here, the premium represents the amount сonsumers overpaid for the 24 hour/no transfer claim. Plaintiffs thus contend that there damage theory is “simple,” “damages are the difference between the SuperStay 24 HR Products and other lipsticks, lip glosses and foundations made by Maybelline and its competitors without the 24 HR/no transfer representation but that are otherwise comparable.” (Doe. No. 70 at 7-8.) As Plaintiffs have stated, Maybelline charges $1.00-$3.00 more for the Class Products than its comparable products that do not bear the 24 hour/no transfer claims.
As an initial matter, it is not intuitively obvious at all that the 24 hour/no transfer claim commands a premium of $1.00-$3.00. Indeed, it is pure speculation on the part of Plaintiffs. The Court can fathom a number of reasons why the Class Products may be priced as they are. For example, perhaps it is due to a higher quality of ingredients, perhaps it is because of the selection of colors оffered, or perhaps it reflects the costs Maybelline expended in the research and development of the products. Plaintiffs’ method of using comparable products is inconsistent with the law. To establish that any difference in price is attributed solely to the alleged misrepresentation, the Court must use a product, exactly the same but without the 24 hour claim. As Maybelline stated, the Court would have to control and neutralize all other product differences. Such a task is nearly impossible as no two products are completely identical.
As the court in Ben & Jerry’s explained, one method of quantifying the amount of restitution to be awarded is to compute the effect of the unlawful conduct on the market price of the class products.
Moreover, Maybelline contends that the proposed price premium method is inappropriate given the substantial variability in retail prices among the Class Products and competing products. (Doc. No. 69 at 18-19.) The Court shares this concern. Maybelline does not sell retail and does not set retail prices. Establishing a higher price for a comparable product would be difficult where prices in the retail market differ and are
2. The Class is Not Superior
Rule 23(b)(3) requires courts to find class litigation is superior to other methods of adjudication before certifying the class. Maybelline argues that its out-of-court Refund Program is a superior alternative. The Court questions the appropriateness of comparing such a private method of resolution.
Based on the language of Rule 23(b)(3) which requires a class action to be “superior to other available methods for ... adjudicating the controversy,” this determination involves a comparison of the class action as a procedural mechanism to available alternatives. Newberg on Class Actions, § 4:64 (5th ed.) In other words, Rule 23(b)(3) asks a court to compare the class action to other types of court action. Although the Court is mindful of eases which have considered whether the class action is superior to other “non-judicial” methods of handling the controversy,
However, included in the superiority analysis is whether the proposed class action would be manageable. “Courts are ‘reluctant to permit action to proceed’ where there are ‘formidаble ... difficulties of distributing any ultimate recovery to the class members,’ because such actions ‘are not likely to benefit anyone but the lawyers who bring them.’” Moheb,
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for class certification is DENIED. Counsel for the Parties are ordered to contact Judge Bartick’s Chambers within fourteen days of this Order to set a case management conference for final scheduling of the case.
IT IS SO ORDERED.
Notes
. Document 63 is the sealed version of Plaintiffs' motion and document 67 is the public redacted version. Future citations in this order in this Order will refer only to document 63.
. Though this Order will may use gender-specific pronouns when referring to the average consumer of the Class Prоducts, the Court is not commenting upon who may or may not be the actual purchasers.
. The Lipcolor is labeled as lasting "up to” 24 hours, where as the Makeup is labeled as "24HR”.
. Plaintiffs do not challenge Dr. Seggev's expert report under Rule 702 and/or Daubert.
. These issues pervade into a number of the Rule 23 factors and this Order addresses them in a way most conducive to the facts of this case.
. Maybelline cites to Carrera v. Bayer Corp.,
. See e.g. In re Conagra Peanut Butter Prod. Liability Lit.
Indeed, these private methods of resolution have a number of appealing attributes, such as affording class members better remedies than a class action and not having to divert a substantial amount of the recovery to line the pockets of attorneys.