Why does that last half-inch of conditioner seem to last as long
as the entire rest of the bottle? This question is merely the
philosophical beginning of our morning ablutions. The time is not
billable. Pity. But rinse and renewal are not irrelevant to our
thinking. Fresh face, fresh mind. Some of the best ideas penetrate
our noggin before we head downstairs.
Maybe some plaintiffs and their lawyers get their ideas over the
bathroom sink. Consider the recent case of Critcher v.
L'Oreal USA, Inc., 2020 WL 2311890 (2d Cir. May 11, 2020).
Someone somewhere, whether it was a lawyer or one of the putative
class members, noticed that there was a dollop of skin cream that
just wouldn't come out of bottle. That cream, bought and paid
for, was not usable. Frustrating? Sure. Fraud? Oh, come on. Maybe
the lotion couldn't escape the bottle, but a fraud claim
animated by that sticky truth couldn't escape preemption.
