A Kentucky federal judge has rejected Unilever U.S. Inc.’s motion to dismiss a class action lawsuit accusing the company of falsely advertising that its Suave Professionals Keratin Infusion 30 Day Smoothing Kit products are safe, even though they allegedly caused hair to fall out.
Due to a lack of explicitly relevant Kentucky state case law, Judge Joseph H. McKinley relied heavily on a similar decision in district court in Illinois, especially regarding the women’s claims that the company breached express warranties. The women both alleged that they chose the product because it would only last 30 days and would result in smoother hair. Instead one woman suffered breakage and the other reportedly developed scalp burns after using the product.
Plaintiffs Terri Naiser and Jonnie Phillips allege in the Suave Keratin class action lawsuit, filed last year, that they purchased the kit because it was advertised as a keratin-based smoothing treatment instead of a chemical relaxer and its effects were supposed to last up to 30 days. The plaintiffs also claim they purchased the product because the label said that it did not contain formaldehyde and that the treatment was safe. Naiser and Phillips allege that all of these claims are untrue, and that the product contains an ingredient or combination of ingredients that cause hair to fall out.
While Unilever recalled the Suave Keratin Smoothing Kit in May 2012, the company allegedly failed to warn consumers about the side effects associated with it. In their class action lawsuit, the plaintiffs argued that Unilever breached express and implied warranties and violated consumer protection laws by issuing a late and incomplete recall of the hazardous product.
Unilever sought to dismiss the Suave Professional Keratin class action lawsuit in its entirety, arguing that the plaintiffs failed to identify an “affirmation of fact or promise” by the company that was untrue. Unilever also claimed that the plaintiffs did not adequately argue that they relied on the advertisements when making the choice to purchase the product. Further, the company argued, there was no privity of contract under Kentucky law because the plaintiffs purchased the products from a retailer and not directly from the company itself. For these reasons, Unilever argued, the plaintiffs did not have standing to file the class action lawsuit.
U.S. District Judge Joseph H. McKinley Jr. rejected Unilever’s motion to dismiss the class action lawsuit, finding that the plaintiffs adequately pled their case. He found that the plaintiffs sufficiently argued that the Suave Keratin Smoothing Kit was advertised as a “smoothing” product and not a “chemical relaxer,” a representation that could be considered an “affirmation of fact or promise” that could survive a motion to dismiss. He rejected Unilever’s argument that the representation was “mere puffery,” finding instead that it could be interpreted as a factual statement by a reasonable consumer.
Judge McKinley also found that the plaintiffs sufficiently argued that they relied on Unilever’s representation, believing they were purchasing a short-term hair smoothing product instead of a harsh chemical relaxer when they chose to buy the Suave Keratin Smoothing Kit. He also found that the class action lawsuit could proceed under the Kentucky Consumer Protection Act because the plaintiffs adequately argued that Unilever engaged in false, misleading or deceptive practices.
The plaintiffs are represented by Richard A. Getty and Danielle Brown of the Getty Law Group PLLC; Peter Safirstein, Elizabeth S. Metcalf and Christopher S. Polaszek of Morgan & Morgan PC; and Jana Eisinger of Law Office of Jana Eisinger PLLC.
The Suave Professionals Keratin Infusion 30 Day Smoothing Kit Class Action Lawsuit is Terri Naiser, et al. v. Unilever United States Inc., et al., Case No. 3:13-cv-00395, in the U.S. District Court for the Western District of Kentucky.
–Additional reporting by John Curran
UPDATE: Unilever agreed to a $10 million class action settlement resolving claims that Suave Professionals Keratin Infusion 30 Day Smoothing Kit was falsely advertised and damaged hair.
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