9th Circuit Revives Class Action Over Disposable Wipes

SAN FRANCISCO (CN) – A Ninth Circuit panel on Friday revived a false advertising class action over the “flushability” of Kimberly-Clark disposable wipes.

A three-judge panel reversed the dismissal of Jennifer Davidson’s 2013 class action against Kimberly-Clark and its subsidiaries, finding Davidson did not have to allege the wipes damaged her own plumbing pipes to sue the company.

“Under California law, the economic injury of paying a premium for a falsely advertised product is sufficient harm to maintain a cause of action,” Circuit Judge Mary Murguia wrote for the panel in the 24-page opinion.

Davidson filed her class action in 2013, claiming she bought Scotts Naturals Flushable Moist Wipes from a San Francisco supermarket based on her belief that the wipes were “specially designed to be suitable for flushing down her toilet without causing problems in her plumbing or at the water treatment plant.”

In her amended complaint, Davidson cited news reports detailing plumbing clogs and treatment plant problems involving the wipes, but it was not entirely clear whether other items flushed down the toilet – like rags, cigarettes and kitty litter – may have contributed to the clogs.

U.S. District Judge Phyllis Hamilton dismissed Davidson’s amended complaint in December 2014, finding the plaintiff failed to allege concrete harm and that she lacked standing to make Kimberly-Clark remove the “flushable” label from its products.

But the Ninth Circuit rejected that reasoning, finding Davidson only had to allege “she was exposed to false information” that caused her to pay a higher price or purchase the wipes when she otherwise would not have.

The circuit judges also found when Hamilton dismissed Davidson’s original complaint, the judge unreasonably required Davidson to allege how she “came to believe” the product was misrepresented.

“We are aware of no authority that specifically requires a plaintiff bringing a consumer fraud claim to allege how she ‘came to believe’ that the product was misrepresented when, as in this case, all the Rule 9(b) considerations have been met,” Murguia wrote.

Additionally, the panel rejected Hamilton’s conclusion that Davidson lacks standing to seek an injunction to make Kimberly-Clark stop labeling the wipes as “flushable.”

In its decision Friday, the panel resolved a split among federal courts within the Ninth Circuit over whether consumers previously deceived by a false advertisement can seek injunctive relief under California law.

The panel held that a previously deceived consumer, like Davidson, may suffer “actual and imminent” future harm and therefore have standing to seek an injunction.

“Knowledge that the advertisement or label was false in the past does not equate to knowledge that it will remain false in the future,” Murguria wrote.

Circuit Judge Marsha Berzon wrote in a concurring opinion that plaintiffs like Davidson should not be subject to duplicative tests to establish standing for both monetary and injunctive relief.

Although the Ninth Circuit has previously held a separate standing analysis is required for each form of relief sought, pursuant to the 1983 Supreme Court ruling City of Los Angeles v. Lyons, Berzon said she does not agree with that interpretation of the law.

“Under California law, if Davidson prevails on her false advertising claim and is entitled to restitution, she is equally entitled to an injunction,” the circuit judge wrote.

But Berzon nonetheless concurred with her panel colleagues, concluding that “as long as a separate standing analysis is necessary despite the state prescription of more or less automatic prospective relief, that requirement is met here.”

U.S. District Judge Jon McCalla, sitting by designation from the Western District of Texas, joined Murguia and Berzon on the panel.

Davidson’s attorney, Matthew McCrary of Gutride Safier in San Francisco, said he and his client are pleased the Ninth Circuit ruled that federal courts can issue injunctions to stop false advertising under California law.

“For too long Kimberly Clark has defrauded consumers by calling its wet wipes ‘flushable’ even though they can clog toilets and sewers,” McCrary said in an email. “We are very pleased that the Ninth Circuit agreed that this case should proceed, so that purchasers can obtain refunds.”

Kimberly-Clark is represented by Constantine Trela Jr. of Sidley Austin in Chicago, who did not return a request for comment.

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