                              UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



ALEXIS RICHARDSON, et al.,
individually and on behalf of all others
similarly situated,

        Plaintiffs,                                      Civil Action No. 13-508 (JDB)
                v.
L’ORÉAL USA, INC.,

        Defendant.


                                  MEMORANDUM OPINION

       In this case, plaintiffs allege that defendant L’Oréal USA, Inc., falsely and deceptively

labeled several products as available exclusively in salons. The parties have moved for

preliminary approval of a proposed settlement and preliminary certification of the settlement

class. After careful consideration of the supporting memorandum and the accompanying

exhibits, the Court will grant the motion for preliminary approval of the settlement and

preliminary certification of the settlement class.

                                         BACKGROUND

       Plaintiffs filed this action on April 15, 2013, alleging that defendant L’Oréal falsely and

deceptively labeled its Matrix Biolage, Redken, Kérastase, and Pureology products as available

only in salons when the products can be purchased in non-salon retail establishments including

Target, Kmart, and Walgreens. See Compl. [Docket Entry 1] ¶¶ 1, 29 (Apr. 15, 2013). Plaintiffs

allege that the salon-only label implies a superior quality product and builds a cachet that allows

L’Oréal to demand a premium price. See id. ¶ 27. Plaintiffs acknowledge that L’Oréal has

developed a campaign to fight the diversion—i.e., the sale of salon-only products through stores

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that do not have a salon—for each of the product lines at issue in this litigation. See id. ¶¶ 30-37.

But plaintiffs allege that, despite L’Oréal’s efforts, the products are available in non-salon

establishments, and argue that L’Oréal’s labeling and advertising for these products is hence

deceptive and misleading. See id. ¶ 46.

       Soon after filing this case, the parties filed a motion for preliminary approval of their

proposed settlement. The terms of the proposed Settlement Agreement include the following:

              Settlement Class: A Settlement Class of “all consumers nationwide who

               purchased the L’Oréal Products for personal, family or household use on or after

               August 30, 2008.” The Class excludes a few specific categories of consumers,

               such as those who purchased the products for resale, stylists, salon owners, those

               employed by L’Oréal or by plaintiffs’ counsel, and Court staff connected to this

               action. See Proposed Settlement Agreement [Docket Entry 9-2] ¶ 1.13 (May 15,

               2013).

              Relief: The settlement provides for injunctive relief only. L’Oréal will remove the

               contested claims from U.S. advertising and from labeling on products for U.S.

               distribution, except for certain products also sold or distributed in European

               countries using the same packaging; L’Oréal will not use the claims for at least

               five years, and, after five years, it may resume using the claims in markets with a

               60% reduction from 2012 levels of non-salon sales; L’Oréal will cease

               manufacturing labels for U.S. products that carry the claims and will remove the

               claims from websites and promotion materials shortly after the agreement

               becomes effective, but it will not destroy products or product packaging in its

               inventory. Id. ¶ 2.4.


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               Treatment of Class Representatives: Class representatives will petition for an

                incentive award of no more than $1000 each. Id. ¶ 2.5.

               Attorneys’ Fees: L’Oréal will not oppose an application by plaintiffs’ counsel for

                attorneys’ fees, costs, and expenses up to $950,000. The Agreement provides that

                the award of fees is separate from settlement; if the Court approves only a lower

                fee award, the remainder of the settlement will remain binding. Id. ¶ 2.6.

               Notice: Because L’Oréal lacks records to identify the vast majority of consumers

                who purchased the relevant products and where such purchases were made, the

                parties will publish a short-form notice in the legal notices section of USA Today

                for one week in the Monday-Thursday edition. The notice will refer proposed

                class members to a comprehensive website that will contain additional

                information, including a copy of the proposed agreement. Objections by class

                members will have to be filed no fewer than 30 days prior to the Fairness Hearing.

                Id. ¶¶ 3.2, 3.5.

               Release: Upon final approval of the settlement, class members will release

                L’Oréal from liability for the alleged conduct or any related conduct, except as to

                individual (as opposed to class-wide) claims for monetary relief. Id. ¶ 4.6.

                                            ANALYSIS

       I.       Preliminary Approval of Proposed Settlement

       “Preliminary approval of a proposed settlement to a class action lies within the sound

discretion of the court.” See In re Vitamins Antitrust Litig., No. 99-197, 1999 WL 1335318, at

*5 (D.D.C. Nov. 23, 1999). The Court will generally grant preliminary approval of a class action

settlement if it appears to fall “within the range of possible approval” and “does not disclose


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grounds to doubt its fairness or other obvious deficiencies, such as unduly preferential treatment

of class representatives or of segments of the class, or excessive compensation for attorneys.”

Trombley v. Nat’l City Bank, 759 F. Supp. 2d 20, 23 (D.D.C. 2011) (internal quotation marks

omitted); see also Newberg on Class Actions, § 11:25 (4th ed. 2013). The Court will consider (1)

whether the proposed settlement appears to be “the product of serious, informed, non-collusive

negotiations,” (2) whether it falls within the range of possible judicial approval, and (3) whether

it has any obvious deficiencies, such as granting unduly preferential treatment. See In re

Vitamins Antitrust Litig., No. 99-197, 1999 WL 1335318, at *5 (internal quotation marks

omitted).

        The Court will first consider the process that resulted in the proposed agreement. “When

a settlement is negotiated prior to class certification . . . it is subject to a higher degree of scrutiny

in assessing its fairness.” D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001); see also In

re Vitamins Antitrust Litig., 305 F. Supp. 2d 100, 105 (D.D.C.2004) (observing that settlement

must not “come too early to be suspicious”). These considerations pose no obstacle here.

Although the action’s history in this Court has been short, the litigation history between these

parties as to these claims is substantial, and has allowed time for meaningful arm’s-length

negotiations. The plaintiffs originally filed some of these claims in the Northern District of

California. See Ligon v. L’Oréal USA, Inc., No. 12-4585 (N.D. Cal. Aug. 30, 2012). They then

engaged in negotiations. See Halunen Decl. [Docket Entry 9-3] ¶ 4 (May 15, 2013). In the course

of those negotiations, L’Oréal provided plaintiffs with extensive documents and information

relating to its anti-diversion and labeling practices. Id. Plaintiffs’ counsel examined prices

charged and conducted legal and factual research to determine the most reasonable and attainable

resolution. Id. ¶¶ 5-6. The parties attended an in-person mediation session before the Honorable



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Ronald Sabraw and finalized the agreement’s details in telephonic mediation sessions over the

ensuing weeks. Id. ¶ 7. They worked out attorneys’ fees and costs through a second in-person

mediation session and additional settlement discussions. Id. ¶ 8. Pursuant to the tentative

agreement, plaintiffs voluntarily dismissed the California action and filed their claims in this

Court. See Settlement Agreement ¶¶ D-E. Based on this process, the Court finds that informal

discovery gave counsel “sufficient information . . . to reasonably assess the risks of litigation vis-

à-vis the probability of success and range of recovery,” Trombley, 759 F. Supp. 2d at 26 (internal

quotation marks omitted), and that the proposed Settlement Agreement is “the product of serious,

informed, non-collusive negotiations,” In re Vitamins Antitrust Litig., No. 99-197, 1999 WL

1335318, at *5 (internal quotation marks omitted).

       Turning, then, to the substance of the agreement, the Court asks whether it falls within

the range of possible approval. Both parties recognize substantial risks of proceeding with the

litigation, and substantial costs, in terms of both time and money, in doing so. Although the

proposed settlement provides only for equitable relief, plaintiffs assert that this limit reflects the

risk they face in attempting to certify a damages class. First, assessing the value of the salon-only

claims to consumers would be difficult, and L’Oréal has never attempted to do so. Second,

assessing damages on a class-wide basis would be even more difficult—the information provided

during the negotiation process revealed substantial price variations among retailers and in

different regions, and indicated that non-salon retailers often sell the products at a lower price

than do salon retailers, making damages to those purchasing the product in non-salon

establishments difficult to analyze. Due to the valuation difficulty, plaintiffs’ counsel represents

that proving monetary damages for a class of consumers would be challenging. “Opinion of . . .

experienced and informed counsel should be afforded substantial consideration by a court in



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evaluating the reasonableness of a proposed settlement.” In re Lorazepam & Clorazepate

Antitrust Litig., No. 99-0790, 2003 WL 22037741, *6 (D.D.C. June 16, 2003). The Court affords

counsel’s assessment such deference here. And class members will retain their right to seek

damages in individual actions, dispelling many concerns about foregone payments. In these

circumstances, an equitable-relief-only settlement may be approved. The equitable relief that is

contemplated, moreover, directly addresses plaintiffs’ allegations by resolving the allegedly false

and deceptive behavior. The Court hence finds that the proposed settlement lies within the range

of possible approval.

       Finally, the agreement has no obvious deficiencies. The nominal incentive payments of

up to $1000 for the lead plaintiffs appear reasonable. See Radosti v. Envision EMI, LLC, 760 F.

Supp. 2d 73, 79 (D.D.C. 2011) (“[I]ncentive awards are not uncommon in common-fund-type

class actions and are used to compensate plaintiffs for the services they provided and the risks

they incurred during the course of the class action litigation.”). The proposed maximum award of

$950,000, for attorneys’ fees, costs, and expenses, while high, is not outside the range of possible

approval given the parties’ agreement as to the amount. Nor is approval of the full fee figure a

condition of the settlement—pursuant to the agreement’s terms, if the Court finds a reduced fee

award appropriate, the remainder of the settlement will continue to bind the parties and class

members. See Settlement Agreement ¶ 2.6(c). The Settlement Agreement hence passes muster

under preliminary review.

                                         CONCLUSION

       For the reasons stated above, the Court will preliminarily approve the proposed

settlement and class certification. The Court will also set a Fairness Hearing for October 11,

2013, at 9:00 a.m. A separate Order will be issued on this date.



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                                   /s/
                           JOHN D. BATES
                       United States District Judge

Dated: June 27, 2013




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