Law360 – WEN Lawsuit Update: Judge Rips ‘Insolent’ Dismissal Bid In Hair Loss Suit

Judge calls the motion to dismiss submitted by attorneys of defendant WEN by Chaz Dean “insolent,” “impudent,” and “misguided.” The hair products lawsuit moves forward.

by Joe Van Acker

Law360, New York (July 20, 2015, 7:15 PM ET) – A California federal judge blasted a celebrity stylist’s hair product company, WEN By Chaz Dean Inc., for being “insolent” in its attempt to escape state law claims by women alleging that they suffered extreme hair loss after using its products.

In denying the company’s motion to dismiss the proposed class action, U.S. District Judge Otis D. Wright II said the plaintiffs may proceed with their Unfair Competition Law and False Advertising Law claims despite not living in California, calling WEN’s assertion to the contrary “impudent” and “misguided.”

“In fact, there is not a single published case that suggests a California company, with a principal place of business and headquarters in California, cannot be sued in California for violating California consumer protection laws,” Judge Wright said.

The plaintiffs, hailing from Florida, New Jersey, Hawaii, Minnesota, North Carolina and Indiana, claimed that they lost patches of hair after using WEN “cleansing conditioners,” including coconut mango, cranberry, fig, lavender and other varieties.

In their motion to dismiss filed in May, the defendant argued that WEN’s California citizenship isn’t enough to show that it manufactured, distributed or advertised the allegedly harmful products in that state.

WEN also said that the plaintiffs didn’t state which statements they saw or read before making their purchases or which of the companies was responsible for those statements.

Judge Wright said that the consequences of the defendants’ arguments demonstrate their “absurdity.”

“If defendants use a web-hosting service out of Russia, then defendants believe it should only be subject to Russia’s consumer protection laws for all web-based consumer protection claims,” the judge said. “After all, that is where the conduct ‘originated.’”

The judge also said the plaintiffs had provided details in their complaint providing the “who, what, where, when and how” of their claims, and said the defendants were “disingenuous” to suggest otherwise.

The WEN products at issue contain a caustic ingredient that causes a chemical reaction and damages hair and follicles, according to the plaintiffs.

Aside from the California law claims, the plaintiffs also filed claims for gross negligence, breach of warranty and strict liability

Barry Schirm represents the defendants and told Law360 that even if the decision had favored his clients, the court would have allowed the plaintiffs to amend their complaint.

“We’re disappointed by the court’s ruling, but must accept it, and move forward with the further defense of the case,” Schirm said.

Plaintiffs’ counsel Amy E. Davis said in an interview with Law360 on Monday that, since filing the complaint in March, she has been contacted by more than 500 men and women across the country who have suffered hair loss after using WEN products.

Absent any cleansers, the products are more akin to lotion than shampoo, and can trap oil and dirt in hair follicles, according to Davis.

“We are pleased Judge Wright took WEN to task for missing the mark on both the law and the facts,” Davis said in a statement. “We hope now the parties can focus on the substance of our clients’ claims without unnecessary — and unsupported — motions practice.”


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