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Date: 06-14-2023

Case Style:

Deborah Brown v. Coty, Inc.

Case Number: 22-CV-2696

Judge: Analisa Torres

Court: United States District Court for the Southern District of New York (Manhattan County)

Plaintiff's Attorney:

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Defendant's Attorney: Lori Blake Leskin and E. Dean Harris Porter

Description: New York, New York personal injury lawyer represented Plaintiff who sued Defendant on a product liability theory.

Plaintiff, Deborah Brown, brings this putative class action against Defendant, Coty, Inc. (“Coty”), alleging violations of the New York Consumer Law for Deceptive Acts and Practices, N.Y. Gen. Bus. Law §§ 349 and 350, breach of an express warranty, breach of an implied warranty, and unjust enrichment. Compl. ¶¶ 154-208, ECF No. 1. Coty moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 35; see also Def. Mem., ECF No. 36. For the reasons stated below, Coty's motion is GRANTED.[1]

Per and Polyfluoroalkyl Substances (&ldquo ;PFAS”) are synthetic chemicals used in consumer, household, and commercial products. Compl. ¶¶ 7, 30-31. There are thousands of PFAS in existence. Id. ¶ 32. All PFAS contain multiple carbon-fluorine bonds. Id. ¶¶ 32-33. PFAS can have a var iety of adverse effects on human health, even at low levels of exposure. Id. ¶¶ 42, 44, 46-48. Some PFAS, such as perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate
(“PFOS”), may be carcinogenic. Id. ¶¶ 35, 39, 44-45, 55. PFAS differ in the types of adverse health consequences they may produce and the level of exposure at which they can be harmful to humans. Id. ¶¶ 42 n.15, 44, 52, 53 n.18. PFAS can be ingested, inhaled, or absorbed through the skin. Id. ¶ 43.

;PFAS are used in some cosmetics which are applied to the skin. Id. ¶ 61. PFAS may be intentionally added to cosmetics as emulsifiers, stabilizers, surfactants, viscosity regulators, and solvents. Id. ¶¶ 62-66. These may be disclosed on a product's ingredient list. Id. ¶¶ 63-66, 68. PFAS may also be found in cosmetics as a result of degradation, impurities, or the use of ingredients treated with PFAS. Id. ¶¶ 70, 80. Since 2018, there has been increasing consumer demand for natural ingredients in cosmetics and “green” cosmetics, at least partially due to consumer fears about harmful chemicals in their cosmetics and personal care products. Id. ¶¶ 21-23, 50, 60. Large cosmetics retailers have begun designating certain products as “clean,” meaning that those products do not contain particular ingredients, including PFAS. Id. ¶¶ 25-26, 28. Some cosmetics retailers are dedicated to carrying only products designated as “clean.” Id. ¶ 27. Consumers perceive products designated as “clean” to be safer and healthier than traditional cosmetics. Id. ¶ 29.

Brown purchased “one or more” tubes of CoverGirl Lash Blast Volume Waterproof Mascara (“Lash Blast”) within the last three years. Id. ¶ 109. Brown relied on the “packaging, labeling, and ingredient list[]” when purchasing the product. Id. ¶¶ 104, 114-15. Brown determined through independent, third-party laboratory testing that “several popular CoverGirl waterproof mascara products, including [Lash Blast] and CoverGirl Clump Crusher Waterproof Mascara [(‘Clump Crusher')]” contained “certain . . . PFAS like PFOA.” Id. ¶ 89. Brown states that Lash Blast and Clump Crusher contain “detectable levels of PFAS, including PFOA, PFHxA, PFDoS, and NEtFOSE.” Id. ¶ 108. Neither the Lash Blast nor the Clump Crusher packaging discloses that the product contains PFAS. Id. ¶¶ 91, 108. Brown “reasonably believed [that Lash Blast was] safe for use around, adjacent to, and near her eyes.” Id. ¶ 112. If Brown had known at the time of purchase that Lash Blast contained PFAS, she would not have purchased the product or would have paid less for the product. Id. ¶¶ 105, 117-18, 125.

Coty is a cosmetics company that sells, inter alia, waterproof mascara products under the “CoverGirl” brand name. Id. ¶¶ 7, 92. Coty formulated, developed, manufactured, labeled, distributed, marketed, advertised, and sold Lash Blast and Clump Crusher throughout the United States. Id. ¶ 103.

On April 1, 2022, Brown brought this action on behalf of herself and all others in the United States who purchased Lash Blast or Clump Crusher between 2018 and the present. Id. ¶¶ 89, 109, 144.[3] Brown has not yet moved for class certification. Coty moves to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rules 12(b)(6) and 9(b). ECF No. 35; see also Def. Mem. at 8.

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient factual allegations in the complaint that, accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff is not required to provide “detailed factual allegations” in the complaint, but must assert “more than labels and conclusions,” and must provide more than a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Ultimately, the facts pleaded in the complaint “must be enough to raise a right to relief above the speculative level.” Id. The Court must accept the allegations in the pleadings as true and draw all reasonable inferences in favor of the non-movant. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

To state a claim for a violation of New York General Business Law §§ 349 or 350, a plaintiff must allege that a defendant engaged in consumer-oriented conduct that was materially misleading and that the plaintiff suffered an injury as a result. See Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015); Barreto v. Westbrae Nat., Inc., 518 F.Supp.3d 795, 802 (S.D.N.Y. 2021). A plaintiff must also show that the allegedly misleading practice is likely to mislead a reasonable consumer. Fink v. Time Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013); Barreto, 518 F.Supp.3d at 802. A court may decide as a matter of law that an advertisement would not mislead a reasonable consumer. Fink, 714 F.3d at 741; Lugones v. Pete & Gerry's Organic, LLC, 440 F.Supp.3d 226, 241 (S.D.N.Y. 2020).

A claim for breach of an express warranty requires a plaintiff to allege that the defendant made an affirmation of fact or promise which was false or misleading when made and which had a natural tendency to induce a buyer to purchase the offending product, and that the plaintiff relied on the express warranty to her detriment. See DiBartolo v. Abbott Lab'ys, 914 F.Supp.2d 601, 625 (S.D.N.Y. 2012) (collecting cases); see also Koenig v. Boulder Brands, Inc., 995 F.Supp.2d 274, 289 (S.D.N.Y. 2014). If a claim for breach of an express warranty is premised on the assertion that a defendant's labeling is materially misleading, a plaintiff must also allege that the labeling “would be likely to deceive or mislead a reasonable consumer.” Twohig v. ShopRite Supermarkets, Inc., 519 F.Supp.3d 154, 165 (S.D.N.Y. 2021). A plaintiff must point to a specific, express statement that is false or misleading and that a reasonable consumer can interpret as a material claim about the product. Twohig, 519 F.Supp.3d at 167 (citations omitted); see also Goldemberg v. Johnson & Johnson Consumer Cos., Inc., 8 F.Supp.3d 467, 482 (S.D.N.Y. 2014) (collecting cases).

To state a claim for breach of the implied warranty of merchantability and fitness, a plaintiff must allege that the defective product is not fit for its ordinary purpose, that the seller had reason to know at the time of contracting of the particular purpose for which such products are used, and that the seller had reason to know that the buyer was relying on the seller's skill or judgment to furnish suitable goods. Catalano v. BMW of N. Am., LLC, 167 F.Supp.3d 540, 556 (S.D.N.Y. 2016). Where the only alleged injury is economic, a plaintiff must show privity between the plaintiff and the defendant, unless the plaintiff can show that she is a third-party beneficiary of a contract between the defendant and another party. Id. at 556-57; see also Abraham v. Volkswagen of Am., Inc., 795 F.2d 238, 249 (2d Cir. 1986). To establish that she is a third-party beneficiary, the plaintiff must demonstrate the existence of a contract between the defendant and another party that was intended for the plaintiff's benefit, which benefit is sufficiently immediate and not incidental, indicating an assumption by the contracting parties of a duty to compensate the plaintiff if the benefit is lost. Catalano, 167 F.Supp.3d at 557; see also Marshall v. Hyundai Motor Am., 51 F.Supp.3d 451, 469 (S.D.N.Y. 2014). It is insufficient to allege that the defendant knew that consumers were the ultimate purchasers of the allegedly defective product. Catalano, 167 F.Supp.3d at 557; Marshall, 51 F.Supp.3d at 469.

A claim for unjust enrichment requires a plaintiff to allege that the defendant was enriched at the plaintiff's expense and, under the circumstances, equity and good conscience require the defendant to make restitution. Goldemberg, 8 F.Supp.3d at 483. This cause of action is only available when, even though the defendant has not breached a contract or committed a recognized tort, the circumstances create an equitable obligation running from the defendant to the plaintiff. Id. It is not available if it simply duplicates a contract or tort claim. Twohig, 519 F.Supp.3d at 168 (collecting cases). If a claim for unjust enrichment is premised on the assertion that a defendant's labeling is materially misleading, a plaintiff must also allege that the labeling “would be likely to deceive or mislead a reasonable consumer.” Id. at 165.

Under Rule 12(b)(1), a district court must dismiss a complaint if the plaintiff has not established standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). A plaintiff has standing if she has pleaded a case or controversy in the outcome of which she has a personal stake. Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.a.r.l, 790 F.3d 411, 417 (2d Cir. 2015). A plaintiff must demonstrate that she has sustained an injury in fact that is concrete, particularized, and actual or imminent; that the injury was caused by the defendant's action or omission; and that a favorable resolution is likely to redress the injury. Id.; see also Lujan, 504 U.S at 560-61. The jurisdictional question must be resolved before the merits. Cortlandt St. Recovery Corp., 790 F.3d at 417.

Outcome: For the foregoing reasons, Coty's motion to dismiss is GRANTED. Brown's request for leave to amend her complaint is GRANTED. By April 12, 2023, Brown shall file her amended complaint. Because Brown's complaint is dismissed in its entirety, Brown's pending motion to appoint interim class counsel, ECF No. 52, is DENIED without prejudice to renewal, and the case management conference scheduled for June 20, 2023, is ADJOURNED sine die.

The Clerk of Court is directed to terminate the motions at ECF Nos. 35 and 52.


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