OPINION AND ORDER This litigation concerns the sale by defendants L’Oreal USA, Inc. and its subsidiary Soft Sheen-Carson LLC (collectively, “L’Oreal”) of the “Amla Legend Rejuvenating Ritual Relaxer” (the “product”), a kit used to straighten curly hair. Plaintiffs, charging that the product was unreasonably dangerous and that its advertising was deceptive, brought individual claims and also sought certification of a nationwide class and several subclasses asserting claims under the laws of various states. This Court originally certified a Florida class and a New York class to pursue claims of unjust enrichment, as well as declaratory and injunctive relief. The New York class was further certified to pursue claims under New York’s General Business Law §349. In ruling on the motions for summary judgment, however, the Court decertified all class claims except the New York class claim under NYGBL §349.L’Oreal now moves to decertify the one remaining class. Following the parties’ written briefing, the Court heard oral argument on October 17, 2018. For the reasons stated herein, the motion to decertify is partly granted, but only to the extent of precluding the class from proceeding on the theory that the product’s packaging deceptively suggested it was safer than other hair relaxers. The motion is otherwise denied.Full familiarity with the history of this case is here assumed. The factual allegations relevant to the present motion are as follows:The product is a kit consisting of five components: (1) a scalp protector; (2) a relaxer cream; (3) a shampoo; (4) a conditioner; and (5) an oil moisturizer. As a general matter, relaxer creams make hair straighter by using an alkaline agent to break the disulfide bonds in the hair’s keratin proteins. This process can cause hair to fall out and can also irritate or burn the scalp. The purpose of a scalp protector is to prevent or minimize such injuries by keeping the relaxer from touching the user’s scalp.This Court previously found that a genuine dispute exists as to whether the product’s advertised scalp protector actually protects scalps. Order dated July 31, 2018 (“S.J. Order”), at 16, ECF No. 223. The Court further found that a reasonable jury could conclude that the inclusion of the scalp protector in the product increased its price and therefore caused purchasers to pay a price premium. S.J. Order 24. Taken together, a reasonable jury could conclude that L’Oreal promised purchasers a functioning scalp protector; that purchasers paid more as a result; that the scalp protector did not, in fact, function; and that the purchasers therefore overpaid for the product.This Court additionally found that a genuine dispute exists as to whether the packaging misleadingly implied that the product was safer than other relaxer creams. S.J. Order 22. The product is advertised as “no-lye,” which is literally true-the active ingredient in the product is lithium hydroxide, not lye (i.e. sodium hydroxide). S.J. Order 18-19. However, surveys conducted by both L’Oreal and by the plaintiffs’ expert J. Michael Dennis suggest that many consumers understand “no-lye” hair relaxers to be gentler and safer than relaxers that contain lye. S.J. Order 19-21. Because “the evidence strongly suggests that the product is not safer” than other relaxers, there exists a genuine dispute as to whether these collective representations deceptively implied that it was safer. S.J. Order 18. Whether, however, this provides a basis for an additional class claim is more problematic.A class action may be maintained only if the class and class representatives satisfy the requirements of numerosity, commonality, typicality, and adequacy. F.R.C.P. 23(a). Additionally, class membership must be in some sense ascertainable. In re Petrobas Sec. Litig., 862 F.3d 250, 257 (2d Cir. 2017). Further, a class action seeking money damages, as the class here does, is permissible only if common questions of law or fact predominate over individual issues and the class action is superior to other methods for adjudicating the controversy. F.R.C.P. 23(b)(3); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362-63 (2011). Members of a 23(b)(3) class must be given “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” F.R.C.P. 23(c)(2)(B). The notice must include information about the nature of the action, the definition of the class, the claims at issue, that a class member may be excluded upon request, and that a class judgment will be binding upon class members. F.R.C.P. 23(c)(2)(B). It is the obligation of the Court to ensure continued compliance with Rule 23′s requirements. See Amara v. CIGNA Corp., 775 F.3d 510, 520 (2d Cir. 2014); F.R.C.P. 23(c)(1)(C). The burden remains on the plaintiffs to prove, by a preponderance of the evidence, that these requirements remain satisfied. Mazzei v. Money Store, 829 F.3d 260, 270 (2d Cir. 2016).As noted, this Court previously found that the only surviving class claim is a claim by a New York class for violations of New York General Business Law §349. That section prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in [New York].” NYGBL §349(a). In addition to enforcement actions brought by the Attorney General, the statute authorizes private actions by “any person who has been injured by reason of any violation of this section” to recover “actual damages or fifty dollars, whichever is greater.” NYGBL §349(h).An action under §349 has three elements: “first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.” Stutman v. Chemical Bank, 731 N.E.2d 608, 611 (N.Y. 2000). The test for deceptiveness is objective, asking whether the representations or omissions were “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745 (N.Y. 1995). Importantly, “reliance is not an element of a section 349 claim.” Stutman, 731 N.E.2d at 612.In its current motion, L’Oreal raises no fewer than 19 challenges to continued certification of the New York class. Most of these challenges were unsuccessfully raised in L’Oreal’s previous motions, but the Court, in an excess of caution, has reviewed them anew.First, L’Oreal argues that there is no proof that the scalp protector is universally defective, pointing out that this Court observed in its summary judgment ruling that the plaintiffs’ expert, Patrick Obukowho, “cannot reliably testify that the scalp protector in every kit is ineffective” because his experiment bearing on that issue relied on the scalp protector from just one kit. Def. Mem. Supp. Mot. Decertify (“Decert. Mot.”) 2, ECF No. 229. But, as this Court went on to say, “[b]oth the relaxer and the scalp protector appear to be mass produced, so one would expect any individual box to be the same as the others. L’Oreal, of course, is free to argue to the jury, including through presentation of its own experiments or other evidence, that this outcome is not…representative.” S.J. Order 15. Plaintiffs are not obligated to produce evidence that each and every box of a mass-produced product has identical chemical properties. The mere possibility of a variance between mass-produced products presents a question for the jury; it does not mandate decertification.Second, L’Oreal complains that the plaintiffs have not identified the specific chemical deficiency in the scalp protector that causes it to fail. Decert. Mot. 2. L’Oreal does not endeavor to explain why this should matter. If the scalp protector fails to keep the relaxer cream from reaching the scalp, thus exposing users to irritation and burns, the chemical basis for that failure is irrelevant.Third, L’Oreal argues that the plaintiffs’ evidence “shows that the [scalp protector's] chemistry inherently operates differently among users.” Decert. Mot. 3. The evidence shows no such thing. Obukowho opined that the degree of risk to users from the relaxer cream might vary as a result of differences in sweat, salt content, and so on. See Obukowho Dep., Lewis Decl. Exh. 2, at 159:3-160:7, ECF No. 156-2. He never suggested such differences might affect how well the scalp protector prevents the relaxer cream from penetrating to the skin. If L’Oreal means to argue that there is no classwide proof that the relaxer cream is dangerous-and therefore no proof that allowing it to touch the skin matters-L’Oreal is mistaken. While this Court previously concluded that there was insufficient proof that the relaxer cream in the product is more dangerous than other relaxer creams, there is no dispute that “all hair relaxers can cause hair breakage and scalp burning.” S.J. Order 4, 12. That is ample basis for a jury to conclude that a working scalp protector is important and that the allegedly defective scalp protector here imposed a price premium on consumers.Fourth, L’Oreal argues that the low rate of consumer complaints about the scalp protector “forecloses classwide proof of a uniform [scalp protector] defect.” Decert. Mot. 3. The Court was not convinced by this argument in L’Oreal’s motion for summary judgment, see S.J. Order 15-16, and it is not convinced now. Because the product instructions caution users not to let the relaxer cream touch the scalp, it is plausible that many users would not be injured even if the scalp protector failed to work, resulting in a low incidence of complaints. L’Oreal protests that the plaintiffs have claimed that the scalp protector defect results in virtually universal injuries, but the phenomenon of litigants exaggerating the likelihood of injury is hardly uncommon. Decertification is not mandated every time a party’s proof fails to entirely live up to their puffery in legal memoranda.Fifth, L’Oreal argues that since, according to the plaintiffs’ evidence, the relaxer cream becomes more crystallized, and therefore more dangerous, as a function of shelf life, the propensity to injure of any given batch is an individual question. Decert. Mot. 5-6. But as the Court has already observed, it is uncontested that any relaxer cream can cause scalp burning. Even if plaintiffs are correct that the relaxer cream becomes more dangerous as it crystallizes, a reasonable jury could conclude that the totally non-crystallized product was still capable of causing injury and therefore still required a scalp protector. L’Oreal’s own survey, in which 85.4 percent of respondents indicated that a scalp protector should always be used before applying a no-lye relaxer, supports this conclusion. S.J. Order 24-25 (citing Lewis Decl. Exh. 10 ["Hibbard Rep."] 102, ECF No. 156-10). And while L’Oreal speculates that the scalp protector might perform adequately against non-crystallized relaxer cream, that is pure conjecture without any even arguable basis in the evidence. L’Oreal is free to make this argument to the jury; it does not warrant decertification.Sixth, L’Oreal points to supposedly “[m]aterial variations” in the product’s packaging because only two of the three versions of the product state that the scalp protector “Protects Scalp & Skin.” Decert. Mot. 6. But L’Oreal does not explain any meaningful distinction between a package which advertises that it contains a “scalp protector” and another package which advertises that it protects scalps, and the Court can discern none.1 It is also not material that the cartons of two of the three product variants include the phrase “Fast relaxing processing time” and recommend a processing time of 15 rather than 20 minutes. Decert. Mot. 7. Plaintiffs’ evidence tends to show that the relaxer cream penetrated the scalp protector within a few minutes, and while that evidence may be challenged, there is no evidence in the record suggesting that the scalp protector would work adequately for 15 minutes but not for 20 minutes. The jury’s finding as to the scalp protector’s effectiveness will therefore be uniform for all class members, whichever version of the product they purchased.Seventh, L’Oreal notes that the instructions included with the product varied between different versions of the product. But any arguments predicated on differences between the instructions, which were inside the box, are irrelevant; class members were injured (if at all) by the payment of a price premium, which was complete before they ever opened the package and read the instructions.Eighth, L’Oreal points out that one of the carton variations does not contain the phrase “Refills to reveal visibly fuller, silkier hair.” Decert. Mot. 7. The Court agrees that, insofar as this phrase is not common to all versions of the product, plaintiffs should not rely upon it to prove class liability. But given the abundance of other challenged statements that arguably conveyed the allegedly misleading message that the product was safer than other relaxers, this minor discrepancy does not mandate decertification.Ninth, L’Oreal points out that some cartons were labeled “for all hair types” and others for “medium to coarse hair.” Decert. Mot. 7. This minor variation is not material. If the jury finds that the balance of the representations falsely implied that the product was safer than other hair relaxers, then the product was deceptive whether it was advertised to all consumers or only to a subset.Tenth, L’Oreal argues that customers who knew the risks of the product could not have been reasonably deceived by the deceptive packaging regarding the scalp protector. Decert. Mot. 11. This is a factual assertion, but L’Oreal offers no evidence to support it. Moreover, while it is certainly possible that many buyers understood hair relaxers to carry certain risks, it seems unlikely that any significant number of buyers understood L’Oreal’s scalp protector to be ineffective at protecting the scalp, as alleged here. It seems even less likely that those buyers would pay a price premium just to obtain a scalp protector they knew to be dysfunctional. In any event, where “materiality is judged according to an objective standard,” it is “a question common to all members of the class.” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U.S. 455, 459 (2013).Eleventh, L’Oreal argues that the record lacks proof that individual plaintiffs saw the labeling that advertised the scalp protector. Decert. Mot. 13 n.9. But when, as here, the challenged statements are on the packaging of the product itself, such individualized proof is unnecessary. This is not a case where a class seeks to challenge the content of a separate advertisement, to which any individual buyer may or may not have been exposed. Cf. Goldemberg v. Johnson & Johnson Consumer Companies, Inc., 8 F. Supp. 3d 467, 480 (S.D.N.Y. 2014). It is reasonable to assume that any buyer of the product saw the product’s packaging. If the law required individualized proof that every class member saw the challenged statements, no matter how obvious and prominent a part of the packaging, consumer class actions would be impossible to maintain.Twelfth, L’Oreal argues that the plaintiffs have not shown that New York law applies to every class member, since the class includes anyone who bought the product in New York and is not limited to New York residents. Decert. Mot. 9-10. The Court is satisfied that New York courts would apply a New York consumer protection law to a transaction that occurred in New York.2 For tort claims, New York applies the law of the jurisdiction with the greatest interest in the litigation. Schultz v. Boy Scouts of America, Inc., 480 N.E.2d 679, 684 (N.Y. 1985). For laws that regulate conduct, “the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders.” Cooney v. Osgood Machinery, Inc., 612 N.E.2d 277, 280 (N.Y. 1993).Here, a prohibition on deceptive advertising is conduct-regulating. New York, as the site of the tort for all class members, is therefore the appropriate source of law. The New York Court of Appeals has held that §349 applies to “transactions that take place in New York State” and “does not turn on the residency of the parties.” Goshen v. Mutual Life Ins. Co. of New York, 774 N.E.2d 1190, 1196 (N.Y. 2002).L’Oreal claims the class also includes people who, while outside New York, purchased the product online from a New York-based online retailer, or had the product delivered to a location in New York. Decert. Mot. 10. The Court disagrees. The certified class was limited to persons “who bought one or more of the products in New York.” Order on Class Certification 37, ECF No. 138. The phrase “in New York” modifies the phrase “who bought,” meaning that the person who bought the product was in New York at the time of the purchase. The class therefore does not include people who bought the product from outside of New York, even if the seller was located in New York or the buyer had the product shipped to New York post-purchase.3Thirteenth, in what is really its only genuinely new argument, L’Oreal argues that the class representation is not adequate because the named plaintiffs disclaimed class members’ damages exceeding $50 in favor of classwide statutory damages. Decert. Mot. 19. L’Oreal argues that class members will be precluded from pursuing individual actions under New York’s “transactional” rules of res judicata. Decert. Mot. 19 n.12.It may be true that, following a judgment in this case, New York law would preclude class members from recovering in connection with the purchases at issue. See Josey v. Goord, 880 N.E.2d 18, 20 (N.Y. 2007) (“[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.”) (quoting O’Brien v. Syracuse, 429 N.E.2d 1158, 1159 [1981]); Small v. Lorillard Tobacco Co., Inc., 252 A.D.2d 1, 11 (1st Dep’t 1998), aff’d 720 N.E.2d 892 (N.Y. 1999) (applying this principle to putative class action); see also Taylor v. Sturgell, 553 U.S. 880, 891 n.4 (2008) (holding that federal courts sitting in diversity apply the preclusion rules of the state in which the court sits). And if class representatives gave up potentially lucrative individual damages claims of absent class members in order to make the class action more feasible, that might present a conflict. Here, however, the Court is satisfied that class representation is adequate.To begin with, L’Oreal’s asserted conflict appears more hypothetical than real. L’Oreal relies heavily on the plaintiffs’ own language, which claimed that every user of the product suffered injuries amounting to thousands of dollars. But hyperbole is not uncommon in litigation, and the mere fact that the plaintiffs likely exaggerated the ubiquity of user injury does not compel this Court to adopt those claims as true. If absent members of the New York class really did have viable and lucrative personal injury claims, they likely would have filed these claims by now. L’Oreal points to lawsuits in Louisiana, Maryland, and Alabama, see Decert. Mot. 19; Tr. Oct. 17, 2018 at 21:12-14, but has not identified any suit by an absent member of the New York class.The Court’s confidence that there are few, if any, outstanding claims is bolstered by the fact that no class member has opted out. L’Oreal treats this fact as damaging to plaintiffs, apparently seeking to imply that the notice was inadequate because class members did not receive personal notice. Decert. Mot. 20. However, m previously opposing the notice plan, L’Oreal argued that the number of purchasers in New York was likely low and that the plan was overbroad-in other words, that the notice would reach too many people, rather than too few. Def. Mem. Opp. Mot. Distrib. Class Notice 1-2, ECF No. 149.4 This Court nonetheless approved the notice plan, which included individual notice to class members known to the parties and notice by print and online publication. Order dated Jan. 5, 2018, at 3-6, ECF No. 153. In particular, responding to L’Oreal’s overbreadth argument, this Court noted that it was preferable to “err on the side of comporting with due process and providing broad notice rather than unnecessarily increasing the risk of absent plaintiffs being bound by judgment in class actions about which they did not know.” Id. at 4.Admittedly, the efforts of class counsel to locate individual class members have been less than sterling. At oral argument, L’Oreal represented that, at the time of class certification, plaintiffs had seven outstanding subpoenas to retailers seeking information about individual purchasers. Tr. Oct. 17, 2018 at 24:20-22. After certification was granted, however, plaintiffs did not follow up on those subpoenas, take depositions, or retrieve documents. Tr. Oct. 17, 2018 at 24:17-22. When asked about this at oral argument, plaintiffs’ counsel explained that her experience in past, unrelated litigation was that retailers either did not have accurate contact information for customers or did not retain records going back far enough. Tr. Oct. 17, 2018 at 25:12-17. That is a woefully deficient explanation. Having propounded the subpoenas, it would have cost class counsel very little to at least follow through with them.Also troubling to the Court is the fact that, as recently as August 23, 2018, the notice website had not been updated since February 8. Tr. Oct. 17, 2018 at 24:23-25. It still told visitors that the trial in this case had taken place on April 30, 2018. Tr. Oct. 17, 2018 at 25:1-2. At oral argument, plaintiffs’ counsel was unable to offer any explanation for this “oversight.” Tr. Oct. 17, 2018 at 28:7-12.Despite these failings, however, the Court remains satisfied that the notice in this case was adequate. Although the website should have been updated, the outdated trial schedule it gave was still later than the final opt-out date, which was April 2, 2018. Thus, any visitor to the site after April 30 would have missed the opt-out deadline in any event, and any harm caused by the failure to update the trial schedule was therefore minimal.Moreover, although the Court is mystified that plaintiffs abandoned their efforts to obtain more information about individual class members, the notice plan approved by this Court did not require plaintiffs to seek out such information. It only required individual notice to be provided to class members whose information was already in L’Oreal’s or class counsel’s possession. Order dated Jan. 5, 2018, at 3. According to a declaration filed by a representative of Epiq, the notice administrator, notice was sent by mail to 18 members of the New York class, as well as to 140 email addresses. Azari Decl.
