Hicks v. L'Oreal U.S.A., Inc.

Background

Zaida Hicks and other named plaintiffs filed proposed class actions against L’Oréal U.S.A., Inc. The actions were later consolidated, and the plaintiffs filed a consolidated amended complaint. They alleged that L’Oréal marketed waterproof mascaras as safe and suitable for use around the eyes without disclosing that the products contained PFAS. The plaintiffs asserted claims under consumer-protection laws in several states, warranty claims, fraudulent-concealment and unjust-enrichment claims, and related claims under California, Iowa, Michigan, North Carolina, and New Jersey law.

The plaintiffs relied on two types of testing. A University of Notre Dame study screened 231 cosmetic products for fluorine and conducted additional testing on 29 products, but the complaint did not allege that the study included any L’Oréal products. A separate study arranged by the plaintiffs detected several PFAS in certain L’Oréal waterproof mascaras. The complaint did not state how many samples were tested, how many tested positive, where the samples came from, when the testing occurred, or whether the tested products reflected the specific products purchased by the named plaintiffs.

L’Oréal’s Motion

L’Oréal moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. The court began and ended with the standing issue because standing is a jurisdictional requirement that must be addressed before the merits.

Standing Analysis

Standing is the constitutional requirement that a plaintiff show a concrete personal injury, a connection between that injury and the defendant’s conduct, and a likelihood that a court order would remedy the injury. In this proposed class action, at least one named plaintiff needed standing for each claim.

The plaintiffs relied on a price-premium theory. They alleged that they paid more for mascaras because L’Oréal’s representations led them to believe the products were safe and high quality, and that they would not have bought the products or would have paid less if they had known about PFAS.

The court recognized that this type of financial injury can support standing. But it held that the plaintiffs had not pleaded enough facts to make it plausible that the mascaras they personally purchased contained PFAS or faced a material risk of containing PFAS. The Notre Dame study did not test L’Oréal products, and the complaint did not provide enough information about the number or type of mascaras tested, the prevalence of PFAS, or how the study’s results related to the purchased products. The plaintiffs’ own study tested products in the same product lines, but the complaint did not establish how widespread PFAS was among those products or connect the findings to the plaintiffs’ purchases beyond statements made “on information and belief.”

The court rejected L’Oréal’s arguments that the plaintiffs had not adequately alleged that PFAS could be harmful or present at harmful levels as premature at the motion-to-dismiss stage. The court accepted those allegations as true for purposes of the motion. The court’s decision instead rested on the failure to plausibly connect PFAS to the products the plaintiffs actually purchased.

Disposition

The court held that none of the named plaintiffs had standing based on the amended complaint. It granted L’Oréal’s motion to dismiss and dismissed the amended complaint without prejudice. The court also granted the plaintiffs leave to file a second amended complaint addressing the standing-related pleading defects, setting a filing deadline of November 3, 2023. The court directed the clerk to close Docket Number 29.