DeVane v. L'Oreal USA, Inc.

Background

Tammy DeVane brought the action on behalf of herself and others similarly situated against L’Oréal USA, Inc. She alleged that L’Oréal’s “EverSleek Keratin Caring” shampoo and conditioner were falsely and deceptively branded because the products did not contain keratin. Her amended complaint asserted claims for breach of express warranty, breach of implied warranty, fraud, and violations of the Florida Deceptive and Unfair Trade Practices Act, the New York General Business Law, the Florida False Advertising Statute, and the Alabama Deceptive Trade Practices Act.

The product labels used the phrases “Keratin Caring” and “100% Vegan.” The ingredient lists did not include keratin. The labels also stated that the products cared for “the essential protein and keratin that is found in the hair,” and that they contained no animal-derived ingredients or by-products.

L’Oréal moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and Rule 12(b)(6). The opinion granted the motion for failure to state a claim.

Legal standards

Under Rule 12(b)(6), a complaint must include enough factual allegations to make the claimed relief plausible, rather than merely possible. For claims based on fraud, Federal Rule of Civil Procedure 9(b) requires the plaintiff to describe the alleged fraud with particularity, including the who, what, when, where, and how.

The court applied a “reasonable consumer” test to the alleged misrepresentations. Under that test, the question was whether a significant portion of ordinary consumers, acting reasonably under the circumstances, could be misled by the labels.

Reasons for dismissal

Warranty claims

The court dismissed the express- and implied-warranty claims because DeVane did not plausibly allege that a reasonable consumer would understand the labels to promise that the products contained keratin. The court relied on three aspects of the labels:

- The products were identified as vegan, while DeVane’s complaint described keratin as a chemical found in the body. - The ingredient lists did not include keratin. - The labels explained that the products cared for keratin found in the hair, rather than stating that keratin was an ingredient in the products.

The court concluded that reading the labels as claiming that the products contained keratin was unreasonable.

Fraud claim

The court dismissed the fraud and fraudulent-concealment claim because DeVane alleged only generally that L’Oréal intentionally used “keratin” to mislead consumers and knew that the products did not contain keratin. The complaint did not provide specific facts supporting L’Oréal’s alleged knowledge or intent, or explain how L’Oréal represented that the products actually contained keratin.

Florida claims

The court dismissed the claims under the Florida Deceptive and Unfair Trade Practices Act and the Florida False Advertising Statute. It found that DeVane’s allegations were conclusory and did not adequately show that the labels were deceptive. The court also stated that these claims were subject to the heightened fraud-pleading standard and that DeVane had not plausibly alleged that a reasonable consumer would misunderstand the labels.

New York claim

The court dismissed the claim under New York General Business Law § 350. It again found that DeVane had not met the reasonable-consumer standard. Separately, the court held that the complaint did not allege that any of the relevant transactions occurred in New York, which the court identified as a required geographic connection for the claim. The court stated that this geographic deficiency alone supported dismissal of the New York claim.

Alabama claim

The court dismissed the Alabama Deceptive Trade Practices Act claim because DeVane could not satisfy the reasonable-consumer standard. The court also stated that the claim would fail under the heightened fraud-pleading standard if that standard applied.

Disposition

Judge George B. Daniels granted L’Oréal’s motion to dismiss. The court dismissed DeVane’s warranty, fraud, Florida statutory, New York statutory, and Alabama statutory claims. The opinion does not specify whether the dismissal was with or without prejudice.