Women are seeing red over their lip color. On September 21, three women filed a complaint in US District Court in Manhattan against Maybelline alleging that both the Maybelline Super Stay 14HR Lipstick and Super Stay 10HR Stain Gloss fade and wear off after just a few hours.  The complaint alleges that Maybelline misrepresents the staying power of these lipsticks, which sell for about $8.99, in order to persuade customers to purchase these products. The women are suing for unjust enrichment, breach of warranty, and violations of consumer-protection laws. Maybelline denies these allegations.

As a girl who loves topping off my makeup with red lipstick, I understand being miffed when it doesn’t perform how you expect. However, when I buy makeup at a pharmacy I am paying for the convenience and bargain prices in exchange for knowing it may not live up to my expectations. That is why suing over this small disappointment, seems counterproductive to buying makeup in a pharmacy. However, many other customers have been less than impressed with the lipstick and written on the Maybelline website that it does not last past your first drink or bite of food. In the pursuit of finding the perfect, long lasting lipstick, these three women are going to extremes to prevent customer dissatisfaction.

The women- who are from Michigan, New Jersey, and New York- are seeking nationwide certification as a class action on behalf of those consumers that purchased and paid for the Maybelline Super Stay products. There are four requirements for class action certification: 1) the class must be so numerous that joinder of individual claims is impracticable, 2) the questions of law or fact that are common to class predominate over any question affecting individual members, 3) the claims or defenses are typical of claims or defenses of the class, and; 4) the representative parties will fairly and adequately protect the interests of the class.

These requirements of commonality and typicality can be substantial hurdles to certification as a class action. In New York, the common question of law or fact does not have to be unanimous among all members of the class, but the common question must predominate. This may be done by a showing that there is an issue which, if resolved, would satisfy the most significant issue in all of the cases. Typicality is separate from commonality, and exists if the plaintiffs have the same cause of action against the defendant.

All members of the class do not have to be identified, but the representatives must fairly and adequately protect the interests of these unidentified parties. This is because the judgment may bind all members of a class and is enforced against those who were not actually present.

Some states specifically provide for the class action suit under their unfair and deceptive practices statutes, which has led to a lessening of the hurdles to class action certification. For example, under the Massachusetts statute, a class action challenging the  unfair or deceptive trade practices does not require the class members to have suffered a “joint wrong,” but merely that the members were similarly situated and suffered a similar injury.

The case is Leebove et al v. Maybelline LLC, U.S. District Court, Southern District of New York, No. 12-07146.