A federal court in Kentucky recently allowed a class action lawsuit to move forward against Unilever United States, Inc. (Unilever), LEK, Inc. (LEK), and Conopco, Inc. (Conopco) in Naiser v. Unilever United States, Inc. The case involves a hair product sold as Suave Professionals Keratin Infusion 30 Day Smoothing Kit.
Kentucky residents argue that they purchased the hair product from different retail stores across the state, based on representations that it was not a chemical relaxer, that its effects would not last beyond 30 days, that it did not have any formaldehyde, and that it was overall a safe product. In fact, the representations were false, in that the hair product actually contained a toxic mixture that caused major hair loss, scalp burns, and other harmful effects. The residents further argue that there was absolutely no warning that they could be at risk for such problems. Naiser, the named plaintiff, spent $10 on the initial product and then $2,000 on conditioners and haircuts after she began experiencing breakage and hair loss. Although the product was recalled in May 2012, the plaintiffs in the class action suit argue that Unilever continues to claim that the product was safe, and that it was recalled due to consumer misuse. The plaintiffs claim that Unilever, LEK, and Conopco manufactured, distributed, and promoted an unreasonably dangerous product.
Unilever and Conopco then filed motions to dismiss under 12(b)(6) of the Federal Rules of Civil Procedure: failure to state a claim upon which relief can be granted. Chief Judge Joseph McKinley of the U.S. District Court of the Western District of Kentucky reviewed the claims in the case of Unilever only. He first looked at the argument that the Kentucky plaintiffs had failed to pinpoint the exact affirmations of fact or promise made that the product was safe. He found that the product's packaging, which promoted it as a "smoothing" product rather than a chemical relaxer, did amount to an affirmation of fact. He also found that an affirmation of fact or promise was made regarding how long the product would last: the packaging is described as a "30 Day Smoothing Kit," and that the smoothing lasts "up to" 30 days. Finally, Judge McKinley found that the plaintiffs pled enough facts to indicate that the defendant misled them into thinking the product was safe.
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