According to a group of women who filed a lawsuit last week, Maybelline should pay up for making false claims about its “Super Stay” lipstick products. Filed in federal court in Manhattan, the complaint seeks declaratory relief and damages under several states’ consumer protection laws. From the defense perspective, this is the latest attempt at a “no injury” class action where no actual injuries or damages exist.

The Super Stay products at issue in the case include Super Stay 10HR Stain Gloss and Super Stay 14 HR Lipstick. The Complaint alleges that Maybelline’s website and television commercials “boast that the Super Stay Gloss ‘stays vibrant and shiny, yet transparent, and won’t fade’ for a ten-hour period.”  Plaintiffs allege that to the contrary, “Super Stay Products do not remain on the wearer’s lips for the extended periods as advertised.” Accordingly, “Maybelline overstates and misrepresents the staying power of its Super Stay Products as a means to induce consumers to purchase the product.”

Plaintiffs seek nationwide class certification status on behalf of those who purchased and paid for Maybelline’s Super Stay products. The three named plaintiffs, who reside in Michigan, New York, and New Jersey, also seek certification of subclasses of purchasers under those three states’ consumer protection laws. The state consumer protection act claims assert that Maybelline’s advertising of these products constituted unfair and deceptive practices and that plaintiffs should be awarded compensatory and treble damages.

Courts have recently recognized the abstract and speculative nature of “no injury” class actions and have dismissed them based on a lack of Article III standing. Plaintiffs must offer proof of (a) injury-in-fact; (2) causal connection between the injury and conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. In the context of class actions, the class representative must establish an injury-in-fact, not simply that other putative class members suffered injuries. See e.g., Rivera v. Wyeth-Averst Laboratories, 283 F. 3d 315 (5th Cir. 2002). In the lipstick case, the federal court will have to determine whether the group of women suffered an injury-in-fact by purchasing a product that did not live up to its promises.