de Lacour v. Colgate-Palmolive Co.

Background

Anne de Lacour, Andrea Wright, and Loree Moran brought a proposed consumer class action against Tom’s of Maine, Inc. and its parent company, Colgate-Palmolive Co. They alleged that Tom’s deodorant and toothpaste products were labeled “natural” even though they contained ingredients that plaintiffs described as synthetic, artificial, or chemically processed. Plaintiffs asserted breach-of-express-warranty claims and claims under consumer-protection laws in New York, California, and Florida. They alleged that the labeling caused consumers to pay a price premium.

The court had previously denied, without prejudice, plaintiffs’ request to certify a nationwide class. In the renewed motion, plaintiffs sought narrower classes of people who purchased identified Tom’s deodorant or toothpaste products on or after September 24, 2015, in New York, California, or Florida, excluding people who bought the products for resale. Plaintiffs also sought appointment of the named plaintiffs as class representatives and Bursor & Fisher, P.A. as class counsel.

Class standing and Rule 23 requirements

The court held that the named plaintiffs had class standing to pursue claims involving both deodorant and toothpaste, even though the named plaintiffs’ alleged purchases primarily involved deodorant. The court reasoned that the same alleged representation—the word “natural”—appeared on both product categories, the alleged injury was payment of a price premium, and the alleged misrepresentation was made by the same defendants.

The court found that all three proposed classes satisfied the four basic requirements of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy. The court also found the classes ascertainable, meaning they could be identified using objective criteria such as the product purchased, purchase date, and state of purchase.

The court rejected defendants’ argument that the prior settlement in a related case created a unique defense that prevented certification. The court noted that the present claims concerned purchases made after September 24, 2015, and plaintiffs stated that the claims involved redesigned packaging following the earlier settlement. At the class-certification stage, the court concluded that defendants had not shown that the settlement defense would become the focus of the litigation.

Predominance

For New York claims under General Business Law Sections 349 and 350, the court found that common questions predominated. Those questions included whether the products’ “natural” representation was false or misleading to a reasonable consumer and whether it caused consumers to pay a price premium. The court found that New York express-warranty claims were not suitable for class treatment because reliance required individualized inquiry into each buyer’s knowledge of the truth or falsity of the “natural” representation.

For the California Class, the court found that common questions predominated for both the express-warranty claims and claims under the Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law. The court relied in part on California’s treatment of reliance in express-warranty cases and the objective reasonable-consumer standards governing the consumer-protection claims.

For the Florida Class, the court found that common questions predominated for the Florida Deceptive and Unfair Trade Practices Act claim. The court stated that the statute’s relevant elements were objective and that individualized reliance was not required.

Damages and superiority

The court found that plaintiffs’ proposed damages methodology was consistent with their theory that the “natural” label caused consumers to pay a higher price. Plaintiffs’ experts used a consumer survey and proposed a method for estimating the price premium attributable to the challenged representation. The court concluded that defendants’ criticisms of the methodology were not fatal at the class-certification stage.

The court also found that a class action was superior to individual lawsuits, particularly because individual claims could be too small to make separate litigation practical. The court rejected defendants’ argument that Tom’s money-back guarantee made class treatment unnecessary, explaining that a refund program did not provide the same adjudication or statutory remedies as a class action.

Disposition

Judge Kimba M. Wood granted in part and denied in part plaintiffs’ renewed motion for class certification. The motion was granted for the California Class and the Florida Class. It was granted for the New York Class as to claims under New York General Business Law Sections 349 and 350, and denied as to the New York express-warranty claims.

The court certified classes covering people who purchased the identified Tom’s deodorant and/or toothpaste products on or after September 24, 2015, in New York, California, or Florida, excluding purchases for resale. The court appointed Moran, Wright, and de Lacour as class representatives for the New York, California, and Florida Classes, respectively, and appointed Bursor & Fisher, P.A. as class counsel. The court denied defendants’ request for oral argument and ordered the parties to address notice and other case-management matters.