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Elkind v. Revlon Consumer Products Corp.

United States District Court, E.D. New York

March 29, 2017

ANNE ELKIND and SHARON ROSEN, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
REVLON CONSUMER PRODUCTS CORPORATION, Defendant.

          For Plaintiffs: John Joseph Fitzgerald, IV, Esq. Thomas A. Canova, esq. The Law Office of Jack Fitzgerald, PC Ronald A. Marron, Esq. Alexis M. Wood, Esq. Kas L. Gallucci, Esq. Trevor Flynn, Esq. William Richards, Esq. Law Offices of Ronald A. Marron

          For Defendant: Patricia Glaser, Esq. Sean Riley, Esq. Rory S. Miller, Esq. Glaser Weil Fink Howard Avchen & Shapiro LLP Jill Caroline Barnhart, Esq. Nelson Boxer, Esq. Petrillo Klein & Boxer LLP

          MEMORANDUM & ORDER

          Joanna Seybert, U.S.D.J.

         Presently pending before the Court is Magistrate Judge A. Kathleen Tomlinson's Report and Recommendation dated February 17, 2017 (“R&R, ” Docket Entry 114) and Amended Report and Recommendation dated March 9, 2017 (“Amended R&R, ” Docket Entry 119) with respect to the parties' joint motion for preliminary approval of their class action settlement agreement, (Mot., Docket Entry 109). For the following reasons, the R&R is TERMINATED AS MOOT and the Court ADOPTS Judge Tomlinson's Amended R&R in its entirety.

         BACKGROUND

         On April 17, 2014, plaintiffs Anne Elkind and Sharon Rosen (“Plaintiffs”) commenced this putative class action on behalf of themselves and others similarly situated against defendant Revlon Consumer Products Corporation (“Defendant” or “Revlon”), asserting claims with respect to Defendant's sale of cosmetics under the brand name “Revlon Age Defying with DNA Advantage.” (See generally Compl.) On May 14, 2015, this Court granted in part and denied in part Defendant's motion to dismiss the First Amended Complaint. (May 2015 Order, Docket Entry 79.) Plaintiffs' remaining claims are for false advertising in violation of New York General Business Law § 350, intentional misrepresentation, false advertising in violation of California Business and Professional Code § 17500, et. seq., violation of the California Civil Code § 1750, et. seq., breach of express warranty under New York law, and breach of express warranty of fitness in violation of the California Code. (May 2015 Order at 5-6, 35.)

         On June 30, 2016, the parties filed a joint motion seeking preliminary approval of their class action settlement. (See, Mot.) The parties request that the Court certify the proposed class for settlement purposes pursuant to Federal Rules of Civil Procedure 23(b)(2) and/or (b)(3), grant preliminary approval of their proposed settlement, and direct notice to be sent to the class. (Parties' Br., Docket Entry 109-1, at 7-27.)

         On July 6, 2016, the Court referred the parties' motion to Judge Tomlinson for a report and recommendation. (Referral Order, Docket Entry 111.) On February 17, 2017, Judge Tomlinson issued her R&R. (R&R.) On March 2, 2017, the parties requested clarification as to the class definition set forth in the R&R and, alternatively, objected to the R&R. (Ltr., Docket Entry 116.) The parties noted that the class definition set forth in the R&R did not include purchasers of the Revlon Age Defying with DNA Powder (the “Powder”) and requested that Judge Tomlinson amend the class definition to include purchasers of the Powder. (Ltr. at 1-3.)

         On March 7, 2017, Judge Tomlinson issued an Order addressing the parties' letter. (March 2017 Order, Docket Entry 117.) Judge Tomlinson indicated that purchasers of the Powder were excluded from the class definition based on the District Court's prior dismissal of Plaintiffs' claims relating to the labeling and marketing of the Powder. (March 2017 Order at 2.)

         However, Judge Tomlinson stated that the court was inclined to amend the R&R with respect to this issue to the extent the parties submitted a communication signed by counsel indicating that Defendant intended to include purchasers of the Powder in the settlement. (March 2017 Order at 3.) On March 7, 2017, the parties submitted a joint letter signed by counsel confirming that they intended to include the purchasers of the Powder in their settlement. (Sec. Ltr., Docket Entry 118.)

         On March 9, 2017, Judge Tomlinson issued her Amended R&R recommending that the parties' motion for preliminary approval of their settlement be granted. (Am. R&R at 1-2.) Judge Tomlinson recommended that the following class be certified pursuant to Federal Rules of Civil Procedure 23(b)(2) and (b)(3):

Elkind, Rosen and all other Persons in the United States who, during the Class Period (the time period beginning on April 25, 2011 and ending on the date a motion for preliminary approval of the Settlement Agreement is filed in the Action) purchased one or more of Revlon's Age Defying with DNA Advantage Cream Makeup, Concealer, and Powder, in any package, size, or iteration, for personal, family or household use, and not for resale.
Specifically excluded from the class, however, are any Person(s) who timely ...

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