Maybelline SuperStay 24 Class Action Lawsuit Denied Certification

A California federal judge on Monday refused to certify a class action lawsuit accusing Maybelline LLC of falsely marketing the staying power of its “SuperStay 24HR” lip and skin products, finding that the plaintiffs couldn’t demonstrate that the proposed Class has enough in common or that they would benefit by seeking redress through a class action lawsuit.

Lead plaintiffs Yanira Algarin and Patsy Murdock filed the Maybelline SuperStay class action lawsuit in late 2012, alleging that Maybelline falsely advertised that its “SuperStay 24HR” lip and skin products last 24 hours and would not transfer from skin. Algarin and Murdock alleged in their complaint that they and the members of their proposed class “were harmed in that they paid a premium over other comparable products without the deceptive representation made by Maybelline as well as its competitors.”

Algarin and Murdock argued in their motion to certify the proposed Maybelline class action lawsuit that “[Maybelline’s] own documents show that the 24 hour/no transfer representation was not just a ‘substantial factor’ motivating consumer purchases — which is all the law requires to infer reliance and/or causation — but it most likely was the predominant reason consumers purchased these SuperStay Products.”

U.S District Court Judge Anthony J. Battalgia disagreed, noting in a May 12 order that “[g]iven the number of differences between the two products, including but not limited to, pricing differences, claims differences, labeling differences, and ultimately merits differences, the Court questioned whether creating subclasses would be appropriate. After addressing this matter during the hearing, counsel for Plaintiffs claimed that one comprehensive class is viable though they would not object to creating subclasses. Ultimately however, the Court finds that even parsing out the two subclasses would still not address all of the deficiencies precluding class certification.”

Further deficiencies, as noted by the judge in his order, included “unrefuted evidence of who the reasonable consumer in the target audience is and what drives her in making purchasing decisions.” The judge pointed out that according to Maybelline’s expert “(1) 45% of purchasers were satisfied with the product based on repeat purchases; (2) duration was not the only motivating factor in making the purchases; (3) over half of purchasers could not recall duration expectations or were satisfied with the duration of the product; (4) 4% of the total sample expected the specific 24 hour duration showing duration expectations varied among purchasers; and (5) only 9% of the total sample were one-time purchasers who expected the product to last 24 hours and thus are “injured” in the manner alleged by Plaintiffs.”

Judge Battalgia also pointed out “the class must be adequately defined and clearly ascertainable before a class action may proceed,” and “because the class does not exclude purchasers who have already received refunds through Maybelline’s Refund program, it is overbroad and not ascertainable.”

Consumers can make complaints to Maybelline, and in some circumstances receive a refund, through the company’s Refund Program, found on Maybelline’s website. Between the launch of the Maybelline SuperStay products and mid-2013, approximately 2,700 consumers contacted Maybelline regarding the SuperStay lipcolor and 700 regarding the makeup, according to court documents. Of these communications, 604 were performance complaints about the lipcolor and 97 about the makeup. The average compensation for the SuperStay lip color is $10 and for the makeup is $11.

The lead plaintiffs are represented by Elaine A. Ryan, Van Bunch, Patricia N. Syverson and Lindsey M. Gomez-Gray of Bonnet Fairbourn Friedman & Balint PC, Stewart M. Weltman of Stuart M. Weltman LLC, Rose F. Luzon, James C. Shah and Natalie Finkelman Bennett of Shepherd Finkelman Miller and Shah LLP,  John F. Edgar of Edgar Law Firm LLC and Mark Schlachet.

The Maybelline SuperStay 24 Class Action Lawsuit is Algarin v. Maybelline LLC, Case No. 3:12-cv-03000, in the U.S. District Court for the Southern District of California.