Hair loss class action against L'Oreal gets past dismissal motion

By Angela Underwood | Feb 12, 2018

WHITE PLAINS, N.Y. (Legal Newsline) – A big brand hair product’s motion to dismiss is limp, according to U.S. District Court for the Southern District of New York Judge Lorna Schofield.

In a late 2017 opinion, Schofield denied L’Oréal USA Inc. and Matrix Essentials LLC's motion to dismiss a first amended complaint of a class action complaint brought against them by plaintiffs Brandi Price and Christine Chadwick over alleged false representations in the three of their popular hair products, but did dismiss the unjust enrichment claim under both New York and California law.

Rather than restoring their hair, L’Oréal subsidiary Matrix’s Biolage Keratindose Pro-Keratin + Silk Shampoo, Conditioner and Renewal Spray (products), which advertise Keratindose Pro Keratin +Silk, caused hair loss and damage, according to the plaintiffs. The opinion also states the plaintiff's expert testified the products do not even have the natural human protein keratin in them.

Price alleged she suffered brittle and dry damage to her hair in 2014 after purchasing one of the products in New York, and Chadwick alleged she suffered the same in 2016 when buying two of the products in California. While both plaintiffs seek restitution and injunctive relief, L’Oréal was looking to have the whole matter dropped, specifically arguing that the plaintiffs have not sufficiently pleaded fraud under Federal Rule of Civil Procedure 9(b).

Citing that Rule 9(b) claims must meet keen requirements, Schofield detailed that the plaintiffs had properly claimed fraud.

“The fact that the advertisements did not use the word ‘keratin’ in isolation and instead used the word ‘Pro-keratin’ does not change the analysis,” Schofield wrote in the opinion. “It is unclear what ‘Pro-keratin’ is and, given the inclusion of the word ‘keratin’ and the characterization of the shampoo, for example, as ‘our keratin shampoo,’ Defendants plausibly misrepresented that the products contain keratin.”

Schofield detailed the actual reliance of California Unfair Competition Law (UCL) and False Claims Act (FLA). While defendants charge that under Kwiset Corp. v. Superior Court from 2011 that actual reliance is in fact a factor in the UCL and FLA California Law, Schofield showed otherwise.

“Here, the complaint alleges that products were sold nationwide and each plaintiff, having seen the products’ name and marketing materials, believed that the products contained keratin,” Schofield wrote in the opinion. “The complaint also alleges that each plaintiff would not have purchased the products or would have paid less for them had she known the products did not contain keratin. In sum, the complaint sufficiently alleges actual reliance to support the UCL and FAL claims.”

L’Oréal then attempted to claim breach of express warranty, also denied by the judge.

“It is well established that '[a] seller’s warranty whether express or implied extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty,'” Schofield wrote in the opinion.

However, the judge did find favor with L’Oréal’s motion to dismiss the unjust enrichment respectively under both the East Coast and West Coast laws.

“While unjust enrichment may be pleaded as an independent claim under New York law, ‘it is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff,” Schofield wrote in the opinion, adding “Generally, in California, where there is a valid express contract covering the same subject matter, there is no standalone cause of action for unjust enrichment.”

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