Kaye Scholer won a significant victory for client Avon Products, Inc. in defeating certification of a nationwide consumer class action, which claimed that Avon’s anti-aging products do not work as advertised. The case, Avon Anti-Aging Skincare Creams and Products Marketing and Sales Practices Litigation, is pending before Judge Oetken in the U.S. District Court for the Southern District of New York.
The Court agreed with Kaye Scholer’s argument that individual issues would predominate over classwide issues and that the proposed class was not sufficiently ascertainable. On the predominance issue, the Court was persuaded by the Kaye Scholer team’s argument that there was no uniform exposure to the challenged statements.
While plaintiffs had initially challenged a large number of Avon’s advertising claims, they were forced to admit that they could not challenge subjective appearance-based claims (e.g., “reduces the appearance of wrinkles”). Their expert testimony only related to objective claims (e.g., “reduces wrinkles by up to 50%”).
In Judge Oetken’s words, plaintiffs “are concerned whether Dorian Gray ages biologically, regardless of whether he looks forever young.” Reviewing the voluminous evidence of Avon’s product brochures and advertising materials over the proposed six-year class period at issue, the Court found that many consumers would not have been exposed to one of the challenged claims.
As for ascertainability, the Court agreed with Kaye Scholer that mini-hearings would be required to determine whether a person was a member of the proposed class. The Court found plaintiffs’ proposal—using receipts, UPC codes and sworn affidavits to ascertain who was properly in the class—would be “inadequate.” The Court agreed with the arguments that such methods would only invite consumers to speculate “or worse.” The Court had some fun along the way, denying a subclass whose problems were “more than cosmetic” and addressing the remaining “wrinkles” in plaintiffs’ motion.
The Kaye Scholer team included partners Aton Arbisser and Lori Leskin, counsel Richard De Sevo, special counsel Randolph Sherman and associates Kyle Gooch, Yonina Rosenbaum and Jennifer Rovelli.
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