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In re Amla Litigation

United States District Court, S.D. New York

August 2, 2018

In re AMLA LITIGATION

          OPINION AND ORDER

          JED S. RAKOFF, U.S.D.J.

         Nine individuals from eight different states brought fifteen claims against defendants L'Oreal USA, Inc. and its subsidiary Soft Sheen-Carson LLC (collectively, "L'Oreal"). All claims are based on alleged defects in the "Amla Legend Rejuvenating Ritual Relaxer" (the "product"), which is used to chemically straighten naturally curly hair. The product is a single kit that contains five components: (1) the scalp protector, (2) a relaxer cream, (3) a shampoo, (4) a conditioner, and (5) an oil moisturizer. Plaintiffs allege that defects in the relaxer cream and scalp protector render the product unreasonably dangerous and that L'Oreal misrepresented the product's safety and breached various related warranties, causing plaintiffs to suffer economic and physical injuries.

         The Court previously certified a class of New York consumers, defined as "All persons who bought one or more of the Products in New York from August 19, 2013 to the present," and a class of Florida consumers, defined as "All persons who bought one or more of the Products in Florida from December 1, 2012 to the present." See ECF No. 138. Both classes were certified under Rule 23(b)(3) to bring unjust enrichment claims, and the New York class to also seek $50 in statutory damages for each class member pursuant to New York's General Business Law ("NYGBL") § 349. The classes were also certified under Rule 23(b)(2) to seek injunctive and declaratory relief pursuant to Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204 ("FDUTPA"), and NYGBL § 349. The motions for class certification were otherwise denied. Class notice was complete on February 28, 2018 and the opt-out date was April 2, 2018.

         L'Oreal now moves for summary judgment on all claims. Following briefing and oral argument, this Court, on April 3, 2018, issued a preliminary "bottom line" order, denying in part and granting in part L'Oreal's motion, as well as ordering supplemental briefing on claims involving the scalp protector. Thereafter, however, the Court held an in-court hearing with testimony from plaintiffs' key expert, Patrick Obukowho, to determine the admissibility of his testimony for purposes of summary judgment, and ordered further briefing on several issues.

         Having duly considered the voluminous briefing and argument from both parties, as well as the testimony of Mr. Obukowho, the Court now (1) decertifies the 23(b)(3) unjust enrichment classes; (2) decertifies the 23(b)(2) classes seeking injunctive and declaratory relief; and (3) grants L'Oreal's motion for summary judgment as to (A) all claims for injunctive and declaratory relief; (B) all claims related to the dangerousness of the relaxer cream; (C) the New York plaintiffs' unjust enrichment claims; and (D) the California plaintiffs' fraud and negligent misrepresentation claims insofar as they are premised on omissions. However, the Court denies the motion as to (1) the NYGBL claims, both on behalf of the New York class and the individual named plaintiffs; (2) all remaining claims based on the alleged dangerousness of the scalp protector and representations or warranties regarding its ability to protect scalps; and (3) all remaining claims premised on implicit misrepresentations that the product is safer than relaxers that contain lye.[1]

         Summary judgment is appropriate if the "movant shows that there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). There is no genuine dispute if, "drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party." Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         I. Disputes of Fact

         A. The Relaxer Cream

         The basic chemistry of hair relaxers is undisputed. Compare Decl. of Peter G. Saichos dated January 19, 2018, ECF No. 162 ("Saichos Obukowho Decl."), Ex. 1 ("Obukowho Rep.") ¶¶ 21-37 with Decl. of Rosemary Rivas dated February 27, 2018, ECF No. 173, Ex. 2 ("Westman Rep.") 13-15. Hair relaxers generally use an alkaline agent, usually a strong hydroxide, to penetrate the hair's outer layer and permanently break the disulfide bonds in the hair's keratin proteins, forming new, substantially weaker bonds. The relaxer cream is then washed out with a low pH shampoo to neutralize the hydroxide, leaving the hair straighter but more fragile. Hair relaxers thus work by damaging hair. Unsurprisingly, all hair relaxers can cause hair breakage and scalp burning. Pis.' Resp. and Evidence to Defs.' Statement of Material Facts, ECF No. 181 ("56.1 Resp.") ¶ 1.

         Users of hair relaxers understand these risks. L'Oreal's expert Larry Hibbard conducted a survey of hair relaxer consumers, which plaintiffs did not challenge. Hibbard determined that, after adjusting for the control, 80.2% of respondents believed that no-lye hair relaxers, such as the product at issue, can irritate the scalp and 63.5% knew that it could cause hair to fall out. Decl. of Justin D. Lewis, ECF No. 156, Ex. 10 ("Hibbard Rep.") ¶ 102. Indeed, many had previously experienced scalp burning or damage to their hair when using other no-lye hair relaxers. Id. Users' baseline expectation, then, is that the product here at issue, like all hair relaxers, poses risks. The alleged difference must be one of degree.

         The relaxer cream at issue here contains not only lithium hydroxide but also proprietary "pro-solvent ingredients." It is undisputed that these ingredients allow the lithium hydroxide ions to penetrate the hair faster than they otherwise would. See Decl. of Rosemary Rivas dated March 5, 2018, ECF No. 179-80 ("Rivas Opp. Decl."), Ex. 38 at 3 (L'Oreal patent for a relaxer cream containing these ingredients, stating that, "when the same or similar concentration of hydroxide-containing compounds is used as in prior art compositions, a more efficient/faster straightening or relaxing result is achieved"). Plaintiffs argue that these pro-solvent ingredients, together with the design of the emulsifier in the relaxer cream, cause the product to finish relaxing hair in less time than users can reasonably apply and remove it. Because the alkaline agent continues breaking disulfide bonds until it is removed or neutralized with a low pH shampoo, the relaxer will necessarily break more bonds than necessary to relax the hair, thus arguably making the product unreasonably dangerous.

         1. Expert Report of Patrick Obukowho

         Plaintiffs rely almost entirely on the expert report of Patrick Obukowho, a chemist with years of experience working with hair relaxers and related products. See Obukowho Rep. ¶¶ 1-9. Obukowho's report describes a test that purports to demonstrate the speed with which L'Oreal's product relaxes hair, outlines the chemistry behind why the relaxer works so quickly, and states his conclusion that the cream is dangerously designed. L'Oreal moved to strike this report, and the Court, as noted, conducted a "Daubert" hearing at which Obukowho testified. See Transcript dated May 16, 2018, ECF No. 216 ("Daubert Tr."); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

         Obukowho treated three "swatches" of medium-type African-American hair with the relaxer cream from a single box, as directed in the product instructions, and visually determined that the three swatches were completely relaxed in four-and-a-half minutes, four minutes, and five minutes, respectively. Id. at ¶ 46. According to Obukowho's report, his "experience in this art" confirms that this "was too quick for a user to fully apply the relaxer cream to the entire head." Id. Moreover, at least one version of the package represents that it "works in 13-15 minutes," Rivas Opp. Decl. Ex. 17, and, as L'Oreal's expert testified, "inherent in Amla's instruction is the determination that it would take somewhere between 13 and 15 minutes to both apply the product and . . . allow it to process adequately." Rivas Opp. Decl., Ex. 44 at 118:4-9.

         Obukowho concluded that the reason for this "fast action" was "the penetration of the active ingredient lithium hydroxide aided by the [pro-solvent ingredients], and coupled with an emulsion that is poorly designed." Obukowho Rep. ¶¶ 47-57. This design, Obukowho opines, "is a disaster because it will initiate and promote excessive penetration of hydroxide ions and excessively fast breakage of the disulfide bonds in the hair, resulting in hair breakage, and scalp and skin irritation and burning." Obukowho Rep. ¶ 44. Indeed, Obukowho believes that any relaxer that works in less than twenty minutes is excessively dangerous. Daubert Tr. 621:5-8.

         L'Oreal challenges each of Obukowho's conclusions on independent grounds, under the tests outlined in both Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). The Court finds that Obukowho's conclusion that the relaxers' speed renders it unreasonably dangerous is unreliable and inadmissible, even accepting for the sake of argument the admissibility of his experiment as evidence that the relaxer cream works very quickly.

         Critically, Obukowho did not mention any experiments or studies showing how often L'Oreal's relaxer cream causes any noticeable injury, such as hair breakage or scalp irritation. Nor did he provide any evidence of how often the product causes these injuries as compared to properly designed relaxers. Absent this information, all he could do was repeat his conclusion that the product's speed inherently rendered it dangerous. See, e.g., Obukowho Rep. ¶ 44; Daubert Tr. 29:12-18 ("THE COURT: I understand it's faster. . . . But what is the danger that's associated with that that leads you to call it excessive? THE WITNESS: Excessive because in the industry it is the standard to observe a well-designed relaxer to work anywhere from 20 minutes and 25 minutes."); Saichos Obukowho Decl, Ex. 3 ("Obukowho Dep.") 60:14-17 ("Initially the hair is not elastic which means the bonds are still there, but after 4.5 minutes, 5 minutes the hair became very elastic which m my judgment was too fast.").[2]

         Rather than point to direct evidence, plaintiffs argue that Obukowho's experience suffices to render his conclusion reliable. In determining the admissibility of an expert opinion, however, the Court must "undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand." Amorgianos v. Nat'1 R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). Obukowho's conclusory assertions do not permit such a review. "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Kumho Tire, 526 U.S. at 157 (expert opinion inadmissible because the only basis for its accuracy was that the expert "himself claimed that his method was accurate").

         Obukowho did opine that "everyone who uses the Product will have less hair fiber strength and integrity" than they would have if they had used a relaxer without the pro-solvent ingredients. Obukowho Rep. ¶ 19. This, he stated, is true "even when [the damage is] not apparent to users." Id. This conclusion is reliable, as it is undisputed that relaxers work by decreasing hair fiber strength and integrity, and L'Oreal's product works faster than others. 56.1 Resp. ¶ 1. But a loss of molecular structural integrity that the user does not even notice is not actionable, and Obukowho offers no evidence of how often the product causes perceptible injuries, much less the type of injuries that would render the product unreasonably dangerous.

         The Court therefore holds that Obukowho's conclusion that the relaxer cream is unreasonably dangerous because it works so quickly is inadmissible.[3]

         2. Other Evidence

         Plaintiffs argue that they have adduced other evidence sufficient to support a finding that the chemical mechanism Obukowho describes translates to a distribution of harm that is meaningfully more severe than that of other relaxers. The Court disagrees.

         Plaintiffs cite two studies conducted by L'Oreal wherein subjects reported a statistically significant difference in discomfort between defendants' product and other, differently formulated relaxers. However, these studies, which asked subjects to rate their discomfort at various points after applying the relaxer, show only that the product is marginally more uncomfortable than others, not that it is unreasonably dangerous. See Rivas Opp. Decl. Ex. 40 at Appendix B (showing that average maximum burning was approximately 4 out of 9 for L'Oreal's product, compared to approximately 2 out of 9 for the other); Rivas Opp. Decl. Ex. 41 at 6 ("Overall sensations were low with both products.").

         Plaintiffs next point to a few internal emails suggesting that L'Oreal received more complaints about this product than it did for other relaxers. See Rivas Opp. Decl. Exs. 6 & 10. Even if that were the case, the overall number of complaints for the product remains vanishingly small. A toll-free telephone number appears on the side of every carton of the product, and customer service contact information is included on the instruction sheet. Decl. of Erin Devicenzo dated Aug. 25, 2017, ECF No. 118, ¶ 9. Yet L'Oreal received very few complaints involving health or hair-breakage: only one-tenth of one percent of the number of retail purchases. Compare id. ¶ 14 (number of complaints) with Decl. of Angela Rutherford, ECF No. 123, ¶ 3 (number of retail sales through June 2017). Admittedly, it is likely that not all users who had a negative experience with the product reported it. But it is also likely that some reported complaints involved injuries that would have occurred even with a relaxer that plaintiffs would deem properly formulated. In any case, the scarcity of these complaints suggests that few people experienced meaningfully more harm than they expected, despite the relaxer's speed.

         Plaintiffs also point to L'Oreal's patent of the relaxer cream, which highlights that the pro-solvent ingredients means less hydroxide is necessary to relax the hair, making the process safer. See Rivas Opp. Decl., Ex. 38. L'Oreal did not actually reduce the amount of hydroxide in its product. But the fact that the cream could have contained less alkali does not mean that the current level is unreasonably dangerous.

         At best, plaintiffs have shown only that the relaxer cream works faster than others that are differently formulated, which suggests that it breaks more bonds in the same period of time. But plaintiffs put forward no evidence indicating how often the additional exposure causes more than microscopic injuries, and no meaningful evidence indicating that L'Oreal's product causes cognizable injuries more often or more severely than other, properly formulated relaxers do. The handful of studies and communications referencing higher levels of customer complaints are insufficient for a reasonable juror to find that this product is unreasonably dangerous.

         The Court therefore grants defendants' motion for summary judgment as to all claims premised on the unreasonable dangerousness of the relaxer cream.

         B. The Scalp Protector

         Plaintiffs also argue that the product is unreasonably dangerous and representations to the contrary are false and misleading because the scalp protector does not "protect[] scalp & skin," as represented on the product's packaging. Second Amended Complaint, ECF No. 90 ("2AC") ...


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