Ulta Says Repackaged Makeup Class Action Should Be Dismissed

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

On Monday, Ulta Beauty Inc. filed a memorandum in support of its motion to dismiss a class action lawsuit accusing it of deceptively selling used cosmetics and representing them as new products, claiming that the plaintiffs’ complaint “suffers from three fundamental flaws that cut across each claim.”

First, Ulta claims the plaintiffs’ claims are not limited to products that were allegedly used, returned and resold–products for which they arguably suffered an actual injury.

According to Ulta, the plaintiffs are also seeking to include products that were new at the time of purchase and for which no injury was suffered because the plaintiffs received exactly what they intended: a new product.

Second, Ulta claims that the plaintiffs cannot represent a nationwide Class of consumers who purchased Ulta beauty products and must be limited to representing consumers in the states in which they reside.

The beauty retailer argues that it sells tens of thousands of different beauty products in more than 1,000 retail stores in 48 states, and, because the plaintiffs are residents of specific states who purchased specific products, they are unable to represent such a broad Class.

Third, the plaintiffs fail to allege their claims with sufficient plausibility and specificity, Ulta argues. “Neither Plaintiffs’ individual allegations nor their broad claim of a nationwide ‘fraud’ and ‘deceit’ — based on anonymous social media allegations and a handful of declarations — is sufficiently plausible or specific to survive dismissal,” the cosmetics company says in its memorandum.

Ulta also argues that the plaintiffs’ claims for breach of warranty, unjust enrichment and consumer deception fail and should be dismissed.

Nearly two dozen Ulta customers from 18 states are named as plaintiffs in the repackaged makeup class action lawsuit. They claim that they purchased various beauty products from Ulta that they believed were new at the time of purchase, but are now concerned that the products they paid for may have been used by another customer, returned to the store and repackaged for resale.

According to the Ulta class action lawsuit, if the plaintiffs had known about the retailer’s alleged “widespread and surreptitious practice of retouching, repackaging, reshelving, and reselling used returned beauty products,” they would have paid less for the products or would not have purchased them at all.

Plaintiff Kimberly Laura Smith-Brown of Los Angeles filed the Ulta class action lawsuit in January after a former Ulta employee allegedly revealed a “dark secret” on Twitter about Ulta’s practice of making items returned to the store “look new” without sanitizing them before putting them back on the shelf and selling them at full price. The allegations were reportedly echoed by dozens of former and current Ulta employees.

The plaintiffs are represented by Carl Malmstrom and Janine Pollack of Wolf Haldenstein Adler Freeman & Herz LC; Lee Shalov, Jason Giaimo and Wade Wilkinson of McLaughlin & Stern LLP; Thomas Zimmerman Jr., Matthew De Re and Sharon Harris of Zimmerman Law Offices; and by Theodore Bell.

The Ulta Repackaged Makeup Class Action Lawsuit is Kimberly Laura Smith-Brown, et al. v. Ulta Beauty Inc., et al., Case No. 1:18-cv-00610, in the U.S. District Court for the Northern District of Illinois.

UPDATE: On Sept. 14, 2018, shoppers asked a judge to reject Ulta’s bid to dismiss their used makeup class action lawsuit saying that the risk of purchasing used makeup is enough to let the complaint go to court, even if each putative Class Member did not unknowingly purchase used makeup.