A recent decision by a California federal judge highlights the important role that expert testimony and evidence can play in defeating a bid for class certification. On May 12, 2014, Judge Anthony Battaglia of the Southern District of California denied a motion for class certification in a lawsuit challenging Maybelline’s allegedly false and deceptive advertising regarding its SuperStay 24-hour lipcolor and skin foundation products. Algarin v. Maybelline LLC, Case No. 12cv3000 AJB (DHB). The plaintiffs alleged that they paid a premium for Maybelline’s products, which purportedly did not last for 24 hours as promised, and that the company’s representations would deceive the reasonable consumer.
In denying class certification, Judge Battaglia gave considerable weight to Maybelline’s expert testimony. Maybelline’s expert conducted a survey of consumers who had bought either a SuperStay lipcolor or skin foundation product and found that:
many purchasers were satisfied and made repeat purchases;
the duration of the makeup staying on was not the only motivating factor for buying the product;
and only 9% of the lipcolor buyers and 14% of the skin foundation buyers expected the products to last 24 hours.
Therefore, only a small percentage of people were injured in the manner alleged by the plaintiffs.
Judge Battaglia found that, “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.” Additionally, the plaintiffs failed to demonstrate that materiality and reliance were subject to common proof in light of Maybelline’s persuasive evidence of consumer expectations, multiple factors that influence purchasing decisions, and consumer satisfaction with the SuperStay products.