IN RE: DEVA CONCEPTS PRODUCTS LIABILITY LITIGATION

Background

More than twenty proposed class actions were filed in the Southern District of New York alleging that Deva Concepts, LLC’s DevaCurl hair products caused problems including scalp irritation, hair loss, thinning, breakage, and balding. Thirteen of those lawsuits were consolidated in this case. Katherine Robaina was a plaintiff in a related case, Adams, et al. v. Deva Concepts, LLC, and alleged that using the products caused hair loss, hair breakage, poor hair condition, hair discoloration, and scalp or facial irritation or rash.

The court preliminarily approved a settlement on July 30, 2021. The settlement class included people who purchased or used the specified DevaCurl products in the United States during the stated period, except for listed exclusions and people who timely excluded themselves. The court required class members seeking exclusion to send a signed writing postmarked no later than October 22, 2021. The order stated that anyone who did not submit a valid and timely exclusion request would be bound by the settlement and final judgment.

Robaina signed an exclusion letter on September 20, 2021, and emailed it to her lawyer, Amy Davis, six days later. Davis and a paralegal collected exclusion letters from 108 other plaintiffs in the related case and mailed them to the settlement administrator in a packet postmarked October 22, 2021. Robaina’s letter was accidentally left out. Robaina believed she had successfully opted out and therefore did not submit a settlement claim. The omission was discovered on January 19, 2022, after the settlement had been approved. Robaina then moved on February 3, 2022, for permission to exclude herself late.

Legal standard

A class-action settlement generally binds class members who did not timely opt out, unless there was a due-process problem or excusable neglect. Under Rule 6 of the Federal Rules of Civil Procedure, a court may extend a deadline after it expires if the party failed to act because of excusable neglect.

The court applied four factors from Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership: the danger of prejudice, the length and possible effect of the delay, the reason for the delay and whether it was within the movant’s reasonable control, and whether the movant acted in good faith. The court explained that the reason for the delay is the most important factor. Mistakes, inadvertence, ignorance of the rules, and failure to follow a clear court deadline generally do not qualify as excusable neglect.

Court’s analysis

The court held that Robaina did not show excusable neglect. The opt-out deadline was established in the preliminary-approval order and repeated in the notice sent to class members. Although counsel’s failure to mail Robaina’s letter was unfortunate, the court concluded that an attorney’s mistake was not enough to excuse the missed deadline. The court also noted that Robaina and her lawyer had several opportunities to check the opt-out list before the omission was discovered more than three months after the deadline.

The court found that some of the other factors were more favorable to Robaina. There was no indication that she acted in bad faith, and allowing her to opt out was unlikely to significantly affect the already-approved settlement or the related case, where discovery had not begun and a motion to dismiss was pending. The court nevertheless identified some potential prejudice to Deva Concepts because allowing a late opt-out could encourage other class members to seek late exclusions. In any event, the court held that these considerations could not overcome the inadequate reason for missing the clear deadline.

Disposition

Judge Gregory H. Woods denied Katherine Robaina’s motion for leave to be excluded from the settlement. The court directed the Clerk of Court to terminate the motion at Docket Number 132. The opinion does not state that the denial was with or without prejudice.