Antitrust Law Daily Wrap Up, ADVERTISING—E.D.N.Y.: Three ‘flushable’ wipes classes certified in New York, (Mar 28, 2017)

By Jody Coultas, J.D.

The federal district court in Brooklyn, New York, certified three separate classes of consumers that filed New York consumer protection law claims against manufacturers and retailers of so-called "flushable" wipes. The proposed classes presented common questions regarding what the "flushable" representations mean to a reasonable consumer and whether the products were actually "flushable," and the issue of damages could be adjudicated through class-wide proof (Kurtz v. Kimberly-Clark Corporation, March 27, 2016, Weinstein, J.).

A number of cases have been filed in various courts around the country based on the allegedly false and deceptive labeling of moist toilet wipes, including six separate class actions in the New York court. Each case was brought by consumers who purchased wipes marked as "flushable," alleging that the wipes were not actually flushable and caused clogs and damage to cesspools and sewage systems.

Factual and scientific hearings were conducted, showing advantages of the products and potential difficulties and concerns relied upon by the plaintiffs. In October 2015, the court stayed all related flushable actions pending in the Eastern District of New York and referred the issue of an appropriate definition of "flushable" wipes and related matters to the FTC. However, the FTC indicated its intent to address "flushability"-related claims only on a case-by-case basis. In the absence of an administrative, legislative, industry-wide, or settlement approach, the court was compelled to address these consumers’ claims on a state-by-state basis.

At issue in the present case was the certification of a class brought by D. Joseph Kurtz against Kimberly-Clark Corporation & Costco Wholesale Corporation and by Anthony Belfiore against The Procter & Gamble Company. Belfiore sought to certify a class of: "All persons and entities who purchased Charmin Freshmates in the State of New York between May 23, 2011 and the present." Kurtz sought certification of three classes: (1) "All persons and entities who purchased Kimberly-Clark Flushable Products in the State of New York between February 21, 2008 and the present"; (2) "All persons and entities who purchased Kirkland Signature Flushable Wipes in the State of New York between July 1, 2011 and the present"; and (3) "All persons and entities who purchased Kimberly-Clark Flushable Products from February 21, 2008 and the present or Kirkland Signature Flushable Wipes from July 1, 2011 to the present."

Based on a review of the relevant certification requirements, the court granted Belfiore certification of the proposed class and granted Kurtz certification of his first two classes. Whether a reasonable consumer regarded the "flushability" labeling as materially misleading was a common question, as was whether a plaintiff would have paid less for the product absent the "flushable" representation. Further, the plaintiffs’ presented methodologies could probably be used to learn common answers to common questions. While Kurtz may not be a perfect representative of the class, the law does not require him to be; he is more than adequate. If need be, the court can modify this order to modify the class, replace Kurtz as a class representative, and replace counsel.

Another suit brought against Kimberly-Clark was dismissed as duplicative of the suit filed by Kurtz. Two other suits, one filed by a consumer against Costco Wholesale Corp. & Nice-Pak Products, Inc., and another filed against CVS Health & Nice-Pak Products, Inc., were transferred to the District of Oregon and District of Maryland, respectively. A sixth case against Wal-Mart Stores Inc. & Rockline Industries was withdrawn.

The cases are Nos. 14-CV-1142, 14-CV-4090, 15-CV-2909, 15-CV-2910, 15-CV-2928, and 15-CV-4579.

Attorneys: Lester L. Levy, Michele Fried Raphael, Roy Herrera, Sean Michael Zaroogian, Matthew Insley-Pruitt, and Robert Scott Plosky (Wolf Popper LLP) for Anthony Belfiore. Samuel H. Rudman and Mark S. Reich (Robbins Geller Rudman & Dowd LLP) for D. Joseph Kurtz. Mark S. Reich (Robbins Geller Rudman & Dowd, LLP) for Desmond R. Armstrong, Gladys Honigman, and Steven and Ellen Palmer. Emily Henn, Claire Catalano Dean, Cortlin Lannin, and Sonya Winner (Covington & Burling LLP) for The Procter and Gamble Company. Eamon Paul Joyce, Daniel A. Spira, and Kara L. McCall (Sidley Austin LLP) for Kimberly-Clark Corporation. James M. Bergin, Adam James Hunt, and Kayvan Betteridge Sadeghi (Morrison & Foerster) and Eamon Paul Joyce (Sidley Austin LLP) for Costco Wholesale Corporation. James M. Bergin (Morrison & Foerster) for Nice-Pak Products, Inc., and CVS Pharmacy, Inc.

Companies: Kimberly-Clark Corporation; The Procter & Gamble Company; Costco Wholesale Corporation; Nice-Pak Products, Inc.; CVS Pharmacy, Inc.

Cases: Advertising StateUnfairTradePractices NewYorkNews