A federal judge won’t fully halt a consumer fraud class action alleging Unilever sold antiperspirant that included the chemical benzene without disclosing its presence.
Yvonne Barnes, Patricia Dean and Antonio Morris sued Unilever, alleging its Suave line includes benzene, which they said is a carcinogen without any other therapeutic or other benefits. Their complaint asserts there is no indication benzene is in the product on labels or elsewhere. The complaint asserts violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, warranty breaches, unjust enrichment and one count of medical monitoring.
Kevin Laukaitis
| Shub Law
Kennelly is also presiding over two other lawsuits against Unilever carrying similar allegations. Although the Barnes plaintiffs indicated they planned to consolidate all three cases, he decided to rule on Unilever’s motion to dismiss in the Barnes case first to guide future proceedings in all three cases.
Kennelly first rejected Unilever’s argument the complaint failed to plausibly allege an injury. He said the plaintiffs need only claim an economic injury, a threshold they satisfied by stating they wouldn’t have bought the Suave product, or at least not bought it for the listed price, had they known benzene was an ingredient. All three plaintiffs said they bought Suave, so Unilever’s concerns about class membership including people who didn’t buy the product are premature, the judge said.
Unilever also failed to convince Kennelly to cancel the unjust enrichment claim, as he explained it isn’t necessarily precluded by possible other legal remedies, nor is it duplicative or unable to stand on its own.
And Kennelly also sided with the plaintiffs regarding their claim under Illinois' consumer fraud law.
“This claim plausibly and adequately alleges a basis for relief under the ‘unfair practice’ arm of liability under the (Illinois Consumer Fraud Act,)" Kennelly wrote. “In the court’s view, allegations that Unilever put adulterated and therefore dangerous products into the marketplace without adequate testing or screening — which is the gist of Barnes’ claim — are sufficient to state a claim for an unfair practice violative of the ICFA.”
Unilever had argued the claim should fail because the company complies with U.S. Food and Drug Administration labeling requirements for over-the-counter items. In regard to antiperspirants, the company said, the FDA requires disclosure only of the substances intended to be included, not “unintended contaminations.”
However, Kennelly said, an attempt to invoke the state law’s “safe harbor” provision constitutes an affirmative defense, which is not a suitable strategy for seeking dismissal for failure to state a claim.
“This particular issue would benefit from further briefing following the filing of plaintiffs’ anticipated consolidated amended complaint,” Kennelly wrote. “The court therefore declines dismissal on this basis...”
The judge also said it was premature to grant Unilever’s request to strike a request for punitive damages because that issue is a question of which state’s laws would apply, and that matter could be impacted during class certification determination.
Kennelly, however, granted Unilever’s motion to dismiss the plaintiffs' request for an injunction.
Kennelly said Unilever was correct in arguing the plaintiffs lack the standing to pursue an injunction. Now that the named plaintiffs are aware Suave contains benzene, he said, they can’t claim deception for any of their future purchases, nor can they claim they had no choice but to buy Suave. As such, an injunction would not directly address their stated concerns.
Kennelly further said the plaintiffs didn’t attempt to defend their breach of warranty claims at oral arguments July 20, so he dismissed those as well.
Kennelly gave the plaintiffs until Aug. 24 to file an amended complaint.
Plaintiffs are represented in the action by attorneys Kevin Laukaitis and Jonathan Shub, of the Shub Law Firm, of Haddonfield, New Jersey; David C. Magagna Jr. and Charles E. Schaffer, of Levin Sedran & Berman, of Philadelphia; Nick Suciu III, Jennifer Czeisler, Russell Busch and Virginia Ann Whitener, of Milberg Coleman Bryson Phillips Grossman, of Bloomfield Hills, Michigan, and Knoxville, Tennessee; Sarah N. Westcot and Max S. Roberts, of Bursor & Fisher, of Miami and New York; and Jason P. Sultzer, Mindy Dolgoff and Daniel Markowitz, of The Sultzer Law Group, of New York.
Unilever is represented by attorneys Amy Y. Cho, Riley C. Mendoza, James P. Muehlberger, Evan DeWitt Montgomery and Patrick L. Oot, of Shook Hardy & Bacon, of Chicago, Kansas City, Missouri, and Washington, D.C.