Posted: April 24, 2015

Citation to Scientific Articles Saves Complaint from Dismissal in Class Action Alleging Marketing of Skin Care Cream Was False and Deceptive

In a March 31, 2015 order in Tomasino v. The Estee Lauder Companies, Inc., et al., 13-CV-4692 (EDNY March 31, 2015), Judge Edward R. Korman declined to dismiss a purported class action alleging that Estee Lauder’s marketing of a line of nighttime facial creams was false and deceptive under New York General Business Law sections 349 and 350.

In a prior order, Judge Korman granted plaintiff leave to replead these claims while dismissing with prejudice plaintiff’s additional claims for breach of express warranty, breach of implied warranty and unjust enrichment. The “crux of the issue” on defendants’ motion to dismiss the amended complaint was whether Tomasino had pled “with sufficient plausibility” her claim that the night creams “‘do not and cannot live up to’ the promise to ‘repair past visible DNA damage’ as a means of making skin look younger.” Slip Op. 7. In DiMuro v. Clinique Laboratories, LLC, 572 Fed. Appx. 27 (2d Cir. 2014), the Second Circuit affirmed dismissal of a similar class action complaint that failed, among other things, to identify the creams’ specific ingredients and failed to allege “that these ingredients lack the ability to improve skin appearance.” Id. at *31.

In an effort to meet the “threshold showing suggested by” DiMuro, the amended complaint included a list of the products’ ingredients. But Judge Korman explained that such a list, even if coupled with “assertions that each ingredient is incapable of repairing DNA or permanently reducing wrinkles,” would be insufficient to make the claims plausible, because it would be “no less conclusory than claiming that the product as a whole does not work.” Slip Op. 8. In the amended complaint, however, Plaintiff also explained the potential effects of the night creams’ ingredients and why those ingredients cannot deliver the promised performance, and that explanation was “punctuated by occasional citations to scientific studies” that “arguably” supported plaintiff’s claim that the creams cannot repair damaged DNA. Id. The court concluded that this provided enough factual support “to ‘nudge [her] claims across the line from conceivable to plausible.'” Id. (quoting Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 570 (2007)).

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