Jessica Karmasek Jul. 28, 2015, 10:43am


NEW YORK (Legal Newsline) - Last month, a New York woman agreed to settle a class action lawsuit she filed in January over a serum that she claimed did nothing to enhance her breasts.

Judge Paul Engelmayer for the U.S. District Court for the Southern District of New York signed a notice of dismissal in plaintiff Raisbel Pena’s case against Talika USA June 9.

Pena’s lawsuit, originally filed in January, claimed Talika’s product, Talika Bust Serum 2.0, did not bring the results promised by the defendant’s marketing campaign.

According to the complaint, Pena bought a $60 bottle and used it as directed for six weeks, but “did not observe any physical alteration (either growth in volume, change in contour, firmness or lift) of her breasts.”

The company’s marketing said the serum product would cause a growth of two to four centimeters in volume, 18 percent more lift and 70 percent more firmness.

“In truth, the product does not physically increase bust volume and certainly not within the short time frame advertised by the defendant,” the complaint stated. “There is nothing contained in the product that can cause breasts to grow by a cup size in six weeks.

“Defendant’s bust growth claims are false, misleading and reasonably likely to deceive the public.”

Pena, in her proposed class action, accused Talika of violating consumer protection laws in all 50 states.

But after the initial complaint in January, four months went by without another filing in the case.

It wasn’t until Engelmayer filed an order to show cause in May, asking the plaintiff to advise the court in writing why she had failed to serve the summons and complaint within the 120-day period and threatening to dismiss the lawsuit, that Pena’s attorney responded.

In a letter to the judge dated June 4, plaintiff’s attorney C.K. Lee with New York law firm Lee Litigation Group PLLC explained that a deal was made.

“We write to inform Your Honor that the parties have reached a settlement and are in the process of finalizing the terms,” Lee wrote.

“We expect to file a stipulation of dismissal within the next two weeks and respectfully request a 15-day adjournment of all dates to allow the parties to finalize and execute the settlement.”

Lee also is helping represent the plaintiff in a somewhat similar proposed class action against L’Oreal USA and Urban Decay Cosmetics.

In that lawsuit, the plaintiff, Sonia Severino, claims the companies falsely advertised the “Lush Lash System” product.

Severino filed the lawsuit in May, also in the U.S. District Court for the Southern District of New York.

According to the lawsuit, the companies state the product contains a “growth accelerating serum” and will grow eyelashes by 25 percent in two weeks, 40 percent in four weeks and 63 percent in six weeks.

“However, nothing in the Lush Lash System is demonstrated to actually make eyelashes grow, particularly at the rates claim by (the companies),” the lawsuit alleges.

“(Severino) and other similarly situated consumers have been harmed in the amount they paid for the Lush Lash System.”

Severino is seeking class status for those who purchased the Lush Lash System, and is seeking more than $5 million in damages plus court costs.

However, L’Oreal is looking to have the action dismissed. The company filed a motion July 23.

In a July 24 letter to Judge Lorna Schofield, attorney Frederick B. Warder III of New York law firm Patterson Belknap Webb & Tyler LLP -- the firm representing L’Oreal -- proposed a briefing schedule for the motion: plaintiff’s opposition to be filed by Aug. 21 and L’Oreal to reply by Sept. 11.

Severino also is represented by Timothy G. Blood of Blood Hurst & O’Reardon LLP in San Diego.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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