Flaherty v. Clinique Labs.

MEMORANDUM OPINION & ORDER

HONORABLE MARVIN E. ASPEN UNITED STATES DISTRICT JUDGE

This putative class action concerns the alleged false and deceptive advertising of skincare products. Defendant Clinique Laboratories LLC (“Clinique”) has moved to dismiss Plaintiff Norah Flaherty's Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Defendant Clinique Laboratories LLC's Motion to Dismiss the Claims of Norah Flaherty or, in the Alternative, to Strike Plaintiff's Class Allegations (“Motion”) (Dkt. No. 11).)^[1] Clinique has also moved to strike the Complaint's class allegations under Federal Rule of Civil Procedure 23(c)(1)(A). Id. For the reasons set forth below, we grant the motion to dismiss in part and deny the motion to strike.

BACKGROUND

The following facts are taken from Flaherty's Complaint and are deemed to be true for the purposes of this motion. See Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

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Flaherty, a citizen of Illinois, resides in Chicago, Illinois. (Class Action Complaint (“Compl.”) (Dkt. No. 1) ¶ 4.) Clinique is a Delaware limited liability company, with its principal place of business in New York, New York. (Id. ¶ 5.) Clinique “manufactures, advertises, markets, sells, and distributes skincare products throughout Illinois and the United States” under the Clinique brand name. (Id. ¶ 7.)

On March 18, 2021, Flaherty purchased three Clinique-brand products at a Sephora located in Chicago. (Id. ¶ 10.) Specifically, Flaherty bought Dramatically Different Moisturizing Gel, Stay-Matte Sheer Pressed Powder, and Beyond Perfecting™ Foundation + Concealer. (Id.) Flaherty claims that Clinique markets these and four other products-Stay-Matte Oil-Free Make Up, Super City Block, City Block Oil-Free Daily Face Protector, and Superdefense City Block-as oil-free, although they all contain oils. (Id. ¶ 8.) These seven products (the “Products”) all contain one or more of the following ingredients: dimethicone, isostearyl neopentanoate, tocopherol acetate, isododecane, octyldodecyl stearoyl stearate, tocopherol, isononyl isononanoate, and neopentyl glycol diheptanoate. (Id. ¶ 8.) According to Flaherty, the Products are all “substantially similar” to one another because they are all “skincare products, ” all “perform similar functions, ” all “contain the same oil-free labeling, ” all people who purchased one of these products were “damaged in the same way, ” and all the Products' “oil-free labeling is false for the same reason, namely that the Products contain oils.” (Id. ¶ 9.)

Flaherty alleges that she was persuaded to buy the Dramatically Different Moisturizing Gel, Stay-Matte Sheer Pressed Powder, and Beyond Perfecting™ Foundation + Concealer because they are all marketed as “oil-free.” (Id. ¶¶ 10-11.) If she had known that they contain oils, she would not have purchased them. (Id. ¶ 13.) Flaherty does not like to use skincare products containing oils for several reasons; for example, she does not like the way oils feel on

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her skin, she is concerned that oils will cause her to develop acne, and she does not like the “shiny” appearance of her face when she uses oil-based skincare products. (Id. ¶ 15.) According to Flaherty, after she used the three Clinique products she purchased, she experienced breakouts, “unpleasant residue on her skin, ” eye irritation, and oily-feeling skin. (Id. ¶ 19.) As a result, she lost money, wasted time, and experienced “[s]tress, aggravation, frustration, loss of trust, loss of serenity, and loss of confidence in product labeling.” (Id. ¶ 55.)

Flaherty claims that Clinique has intentionally mislabeled the Products as “oil-free” when they contain “numerous oils.” (Id. ¶ 1.) Flaherty brings this putative class action on behalf of herself and “[a]ll persons within the United States who purchased the Products within four years prior to the filing of the Complaint through the date of class certification.” (Id. ¶ 56.) She also brings the action on behalf of a sub-class consisting of “[a]ll persons within the State of Illinois who purchased the Products within ten years prior to the filing of the Complaint through the date of class certification.” (Id. ¶ 57.) Flaherty seeks “damages, injunctive relief, and any other available legal or equitable remedies” for Clinique's alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505/1 et seq., common law fraud, and unjust enrichment.^[2] (Id. ¶ 1.)

ANALYSIS

I. Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint, not the merits of a case. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 878 (7th Cir. 2012); Gibson v.

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City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In evaluating a motion to dismiss, courts “construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor.” Tamayo, 526 F.3d at 1081. Courts may grant motions to dismiss under Rule 12(b)(6) only if a complaint lacks sufficient facts “to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Although a facially plausible complaint need not give “detailed factual allegations, ” it must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964- 65. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. These requirements ensure that the defendant receives “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964 (internal quotation marks and citations omitted).

Clinique argues that Flaherty's Complaint should be dismissed in its entirety because she cannot plausibly allege the causation or reliance elements of her claims. (Defendant Clinique Laboratories LLC's Memorandum of Law in Support of Its Motion to Dismiss the Claims of Norah Flaherty or, in the Alternative, to Strike Plaintiff's Class Allegations (“Mem.”) (Dkt. No. 12) at 5-8.) In the alternative, Clinique contends that we should dismiss Flaherty's claims for the four products that she did not purchase because she does not have standing to pursue these claims. (Id. at 8-10.) We will consider each of Clinique's arguments in turn.

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A. Causation / Reliance

The crux of Flaherty's claims is that she bought Clinique's products because they said that they were oil-free, but then she later found out that they were not. (Compl. ¶¶ 11, 13, 19.) As a result, she did not receive her money's worth and experienced undesirable...