A "Hairy" Class Certification Decision for Brazilian Blowout

A California district court recently issued an order certifying a nationwide class in an action against GIB, LLC (GIB) over two of its well-known hair straightening products, Brazilian Blowout Solution, and Brazilian Blowout Acai Professional Smoothing Solution. Plaintiffs' case rests primarily on the assertion that GIB "failed to disclose that these [two] products contained formaldehyde" and "affirmatively represented these products were 'formaldehyde free'." Stemming from this conduct, plaintiffs allege claims for breach of contract, common law fraud and misrepresentation, and violation of California's Unfair Competition Law (UCL) and False Advertising Law (FAL). Plaintiffs sought certification of a broad nationwide class consisting of "all persons and entities within the United States who purchased Brazilian Blowout Solution or Brazilian Blowout Acai Professional Smoothing Solution." Normally, a class like this, involving a large number of purchasers with different reasons for buying the products, who are asserting claims for fraud and misrepresentation, would present tangled and twisted class certification issues. But, in a decision that could make the hair of many a defendant stand up straight, the court brushed past all of these issues. Focusing initially on Rule 23(a), the court easily found the numerosity, commonality, and adequacy of representation factors satisfied. The factor which gave the court the most pause was typicality. GIB argued that the named plaintiffs had not shown reliance on any of its advertising in purchasing the products, and so their claims were not typical of the class. The court blew right past this argument. The court acknowledged that the named plaintiffs had testified that they did not first learn of the products through GIB advertising. Nevertheless, there was also testimony that both plaintiffs had ultimately viewed the advertising, and that they purchased the product believing it was formaldehyde free. The court explained that, under the standard articulated by the California Supreme Court in In re Tobacco II, reliance can be proven by a showing that the advertising played a "substantial part" in the purchase, which plaintiffs testimony did here. This Court's finding is an example of how courts may now assess reliance under California law. The court next turned to the Rule 23(b) inquiry, and specifically whether common issues predominated over individual ones. Against predominance, GIB offered two main arguments: (1) it did not have a standardized marketing campaign and so individual inquiries would be needed to determine what, if any, advertising purchasers were exposed to, and (2) given the fraud and fraud-based claims, individual inquiries into reliance would be needed for all absent class members. In rejecting these arguments, the court emphasized that GIB offered no evidence to support the idea that these were real, and not hypothetical, individualized issues. For example, the court held that GIB made "no attempt to produce any credible evidence demonstrating that it lacked a standardized marketing campaign" and instead it was plaintiffs who had produced "substantial evidence" of a uniform campaign "centered on [GIB's] formaldehyde free claims." Similarly, the court found GIB produced no evidence to rebut the presumption of reliance that can arise under California law when material misrepresentations are involved. In fact, the court expressly noted "[GIB] did not produce a single declaration from any class member" showing that any reason other than advertising caused them to purchase the products. The Court's emphasis on GIB's lack of evidence serves as an important lesson for defendants opposing class certification motions. While it is plaintiff's burden to satisfy the Rule 23 requirements by a preponderance of the evidence, it can be costly to rely solely on the argument that plaintiffs have not satisfied that burden. Defendants should also carefully comb through and present their own evidence to maximize their chances of defeating class certification. – Jamie Speyer and Christopher Tarbell

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