United States District Court, S.D. New York
TANYA MAYHEW, TANVEER ALIBHAI, and TARA FESTA, individually on behalf of themselves and all others similarly situated, Plaintiffs,
KAS DIRECT, LLC, and S.C. JOHNSON & SON, INC., Defendants.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
Tanya Mayhew, Tanveer Alibhai, and Tara Festa bring this
action, on behalf of themselves and members of a purported
nationwide class, asserting claims of (i) deceptive business
practices in violation New York General Business Law
(“GBL”) § 349; (ii) false advertising in
violation of GBL § 350; (iii) unlawful, unfair, and
fraudulent business practices in violation of
California's Unfair Competition Law; (iv) violation of
California's False Advertising Law; (v) violation of
Florida's Deceptive and Unfair Trade Practices Act; (vi)
breach of New York's warranty laws; (vii) violation of
the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et
seq.; (vii) violation of the consumer protection and trade
practices laws of thirty-nine additional states; and (ix)
pending before the Court are two motions.
plaintiffs seek an order (i) granting preliminary approval of
the parties' amended settlement agreement; (ii) approving
the form and manner of notice to the settlement class; (iii)
directing notice to the settlement class; (iv) enjoining the
prosecution of litigation asserting any claims released in
the settlement agreement; and (v) scheduling a final fairness
hearing for the consideration and approval of the settlement.
Tarina Skeen, Cheyenne Blanusa, Malissa Brown, Natalie Vidal,
and Christina Timmermeier, named plaintiffs in a separate
class action pending in this district, Skeen, et al. v.
KAS Direct, LLC d/b/a Babyganics, 17 CV 4119 (RJS), seek
an order permitting them to intervene. (Doc. #113).
following reasons, plaintiffs' motion is GRANTED, and
proposed intervenors' motion is DENIED.
Court has subject matter jurisdiction under 28 U.S.C. §
putative class action was commenced by plaintiffs Mayhew,
Alibhai, and Festa, on behalf of themselves and others
similarly situated. Plaintiffs purchased household cleaning
and baby care products sold by defendants under the trade
mark “Babyganics.” According to plaintiffs, the
name Babyganics is intended to convey to consumers that
defendants' products are organic, although the products
in fact contain synthetic ingredients. Further, plaintiffs
allege defendants' Babyganics sunscreens are labeled
“mineral-based, ” but in fact contain
non-mineral, chemical compounds. In addition, plaintiffs
allege defendants' Babyganics products are marketed as
“natural, ” despite the inclusion of synthetic
allege consumers paid a premium for Babyganics products in
reliance on defendants' claims that the products were
organic, mineral-based, or natural, and were injured in the
amount of the purchase price or premium paid.
commencing this action, plaintiffs' counsel sent a demand
letter and proposed complaint to defendant KAS Direct, LLC
(“KAS”). The parties corresponded for several
months regarding potential settlement of plaintiffs'
claims, and on August 10, 2016, attended a mediation with
David Rotman, Esq., of Gregorio, Haldeman & Rotman. The
parties were unable to agree, and plaintiffs filed the
initial complaint in this action on September 7, 2016.
March 30, 2017, after exchanging discovery, including
defendants' sales figures, product lines, internal
testing information, and consumer surveys, the parties
attended a second mediation, this time with Michael Young,
Esq., of JAMS in New York. The parties did not agree to a
settlement, but continued negotiating after the mediation.
Following approximately twelve weeks of continued
discussions, the parties reached an agreement on relief for
the class, after which they agreed to attorneys' fees as
well as monetary awards for the named plaintiffs.
August 4, 2017, plaintiffs filed an amended complaint (Doc.
#37) and a motion for preliminary approval of the settlement.
three groups of proposed intervenors moved to intervene: (i)
Skeen, Blanusa, Brown, Vidal, and Timmermeier (the
“Tear Free Intervenors”) moved on August 11,
2017; (ii) David Machlan moved on August 18, 2017; and (iii)
Laura Carroll, Katharine Exo, Armand Ryden, and Katharine
Shaffer (the “SPF Intervenors”) moved on August
October 5, 2017, the parties attended a third mediation with
Mr. Young of JAMS. Counsel for the proposed intervenors were
invited to attend, but only Machlan's counsel did.
Afterward, the parties advised the Court they intended to
amend their motion for preliminary approval of the settlement
agreement to address the proposed intervenors' claims.
filed the instant motion for preliminary approval on November
21, 2017, and only the Tear Free Intervenors have renewed
their motion to intervene.
Tear Free Intervenors
noted above, the Tear Free Intervenors are named plaintiffs
in Skeen, et al. v. KAS Direct, LLC d/b/a
Babyganics, 17 CV 4119 (RJS).
complaint in Skeen alleges KAS's Babyganics bath products
are labeled “tear free, ” gentle, non-allergenic,
and safe for infants and children when in fact they contain
chemicals and ocular irritants. Further, the complaint allege
KAS has received numerous consumer complaints regarding
injuries cause by its “tear free” products, but
has not recalled, relabeled, or reformulated them. The
complaint alleges consumers are misled by Babyganics false
and deceptive “tear free” labeling, and asserts
claims for fraud, negligent misrepresentation, unjust
enrichment, violation of Florida and California's
consumer protection laws, and violation of the Magnuson-Moss
November 7, 2017, proceedings in Skeen were stayed pending
the outcome of plaintiffs' motion for preliminary
approval of the settlement agreement in this action. (17 CV
4119, Doc. #36).
proposed amended settlement (the “Agreement”) is
on behalf of a class of all persons or entities in the United
States who made retail purchases of any Babyganics product
marketed and sold in the United States between September 7,
2010, and the date the Court enters preliminary approval.
Agreement provides for a settlement fund of $2, 215, 000.
Class members are entitled to receive a 100% refund for any
Babyganics products for which they have proof of purchase,
and a partial refund for up to eight Babyganics products for
which they do not have proof of purchase. Refunds are subject
to pro rata upward or downward adjustment, depending on the
No. of claims filed.
addition, the Agreement provides for changes to the labeling
and advertising of Babyganics products. First, for as long as
defendants' products are marketed as Babyganics, the
front label of the products will include a statement
referring consumers to the back label for a list of which
ingredients are organic and which are not. Second, the front
label of Babyganics products will not include the word
“natural.” Third, defendants will maintain a
product page on their website explaining that sunscreens
marketed as “mineral-based” also include chemical
ingredients, and will include a reference to the website on
the back label of all sunscreen products. Fourth, defendants
will conduct batch testing of all “SPF 50”
sunscreens to ensure active ingredient levels match or exceed
those expressed on the package, and will report the results
of such tests to plaintiffs' counsel. Fifth, certain
Babyganics products labeled “tear free” will
include a back label indicating that the products should not
be applied directly to the eye, that eyes should be flushed
with water if the product is applied directly to the eye, and
that the product should be kept out of reach of children
absent adult supervision. Finally, defendants will not use
the statement “Plant-Based Ingredients” on the
label of its pre-moistened wipe products unless the wipe
substrates are made with material derived entirely from
plants or the package lists the ingredients of the wipe
Agreement also provides that the following will be paid out
of the settlement fund: (i) $3, 500 service awards to each of
the named plaintiffs; (ii) up to $416, 475.50 to the
settlement administrator for notice and claim administration
expenses; and (iii) up to $733, 333.33 in attorneys'
addition, with the exception of personal injury claims, the
Agreement purports to release the following:
any and all suits, actions, claims, liens, demands, actions,
causes of action, obligations, rights, damages, or
liabilities of any nature whatsoever, contingent or absolute,
matured or unmatured, including Unknown Claims (as defined
below), whether arising under any international, federal,
state, or local statute, ordinance, common law, regulation,
principle of equity or otherwise, that actually were, or
could have been, asserted in the Litigation, including, but
not limited to, claims which are based on any assertion or
contention that the packaging of Covered Products, including
the labels, or Advertising based on the content of those
labels were inaccurate, misleading, false, deceptive or
(Wiener Decl. Ex. 1: Agreement ¶ 32). In addition, the
Agreement specifically releases the claims asserted by
proposed intervenor Machlan in Machlan v. S.C. Johnson,
Inc., 17 CV 2442 (N.D. Cal.), the Tear Free Intervenors
in Skeen, and the SPF Intervenors in Carroll v. S.C.
Johnson & Son, Inc., 17 CV 5828 (N.D.Ill.).
Motion to Intervene
Free Intervenors assert they are entitled to intervene as of
right because have an interest in the action that may be
impaired if the settlement is preliminarily approved, and
they are not adequately represented. The Tear Fear
Intervenors also assert permissive intervention is
regard to intervention as of right, Fed.R.Civ.P. ...