Plaintiffs are too scattered and purchased too many products to state a claim, says Ulta Beauty
Retouchable
Back in March, we reported on a class action against Ulta Beauty and wondered aloud how the company would respond to the (rather serious) claims. Well, we've got an update – but let's go over the original accusations first.
Paula Ogurkiewicz, by her own account an avid purchaser of Ulta Beauty products, brought claims against the company in a class action filed in Cook County, Illinois Circuit Court in March. She alleged that Ulta's management pursued a businesswide policy whereby personnel in individual stores kept returned or damaged products beneath certain quotas by reselling the damaged or returned items as new products in order to save money.
Eye (Coli) Liner
To meet the quotas, employees were allegedly encouraged to touch up the used products so that they appeared new – and then repackage the used products and put them on the shelf for sale. And here's where her allegations took a turn toward stomach-churning: Her action cited a report that claimed "refurbished" makeup sold by Ulta and other companies was contaminated by various nastiness, including E. coli.
Ogurkiewicz's action and similar suits were further fueled by a social media meltdown in early 2018, when a former employee claimed that Ulta had been repackaging used products for years.
Ogurkiewicz's case was consolidated with several other actions in June; then in August, we got our update on the combined class action (now swollen with more than 20 plaintiffs).
Ulta moved to dismiss early that month, taking aim at the social media roots of the action. The company argued that the plaintiffs' "broad claim of a nationwide 'fraud' and 'deceit' – based on anonymous social media allegations and a handful of declarations" could not survive dismissal.
But Ulta got granular in another argument: "Plaintiffs are residents of specific states who purchased specific products," the motion reads. "Defendants carry tens of thousands of different products in over 1,000 retail locations in 48 states." Because they sought damages and injunctive relief in nationwide claims, "plaintiffs improperly assert claims based on products they did not purchase that arise under the laws of states in which they do not live."
The Takeaway
It will be interesting to see how the court rules on Ulta's motion. The decision will be illuminating in terms of whether plaintiffs alleged an injury-in-fact. As Ulta noted in the decision, plaintiffs are seeking to recover for all purchases of Ulta products, even those that may not have been repackaged as new. Of course, counsel for the plaintiffs noted in response to that argument, "It's like Russian roulette," he said. "You have a chance of picking a product that was used and you don't know, which goes into the theory of damages." Stay tuned!
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