Duran v. Henkel of America, Inc.

Background

Abel Duran brought a proposed class action against Henkel Corporation concerning Schwarzkopf göt2b ultra glued Invincible Styling Gel. The product’s front label stated “no flakes.” Duran alleged that he bought the product after relying on that statement, but the gel produced white and grayish flakes in his hair. He asserted claims under New York General Business Law §§ 349 and 350 for deceptive trade practices and false advertising, as well as a New York common-law fraud claim.

Duran alleged that the product contained poly N-vinyl-2-pyrrolidone, or PVP, which sources cited in the complaint described as capable of becoming brittle and flaky in dry weather. He also alleged that Henkel charged a premium price because of the “no flakes” representation. Duran paid $7.99 for a six-ounce bottle and alleged that he would not have bought the product, or would have paid significantly less, had he known it could produce flakes.

Consumer-Protection Claims

The court denied Henkel’s motion to dismiss the claims under New York General Business Law §§ 349 and 350. Those statutes prohibit deceptive consumer practices and false advertising. The court held that “no flakes” was not mere puffery, meaning a vague promotional exaggeration that cannot be proven true or false. Instead, it was a specific and testable representation that the gel would not cause flaking.

The court also held that Duran adequately alleged that a reasonable consumer could be misled. Whether consumers would interpret the label as promising that the product would not produce flakes generally presented a factual question that could not be resolved on a motion to dismiss. Duran also adequately alleged injury through a price-premium theory: he claimed that Henkel’s representation allowed it to charge more and that he paid for a product that did not provide the promised quality.

Common-Law Fraud

The court granted Henkel’s motion to dismiss the common-law fraud claim. Although the complaint identified the allegedly false statement, who made it, where it appeared, when Duran encountered it, and why it was allegedly false, the court found that it did not plead fraudulent intent with enough supporting facts.

The court explained that a general desire to increase sales does not establish fraudulent intent. It also found insufficient Duran’s allegation, made on information and belief, that Henkel employed cosmetic scientists who knew about PVP’s flaking properties. The complaint did not identify a particular officer or scientist who knew the relevant facts, show that such a person knew about the cited information, or otherwise provide specific facts supporting a strong inference that Henkel intended to defraud consumers.

Injunctive Relief

The court granted Henkel’s motion to dismiss Duran’s claims for injunctive relief for lack of standing. Standing is the legal requirement that a plaintiff show a concrete injury connected to the defendant’s conduct and likely to be remedied by the requested relief. For an injunction, the plaintiff must show a real and immediate threat of future injury.

The court found that Duran’s allegations did not meet that requirement. He alleged that he would buy the product in the future only if it were re-engineered to be flake-free or its packaging were corrected. He also alleged that he would not have bought the product if he had known the truth. The court viewed those allegations as showing that he did not intend to purchase the existing product again, rather than showing a real and immediate threat of future injury.

Class Claims

The court denied Henkel’s motion to strike the class claims, without prejudice to Henkel’s ability to oppose class certification at a later stage. The court explained that motions to strike proposed class claims are generally disfavored because they attempt to end the class aspects of a case before discovery creates a fuller factual record.

The court deferred Henkel’s arguments about class-member standing and found that its arguments concerning typicality, predominance, and ascertainability largely duplicated the later class-certification inquiry. The court therefore declined to resolve those issues at the pleading stage. The proposed class claims remained subject to later challenge during class certification.