Antitrust Law Daily Wrap Up, ADVERTISING—N.D.Cal.: Dismissal of consumer’s action against manufacturer of “flushable” wipes not reconsidered, (May 18, 2015)

By Michael Menzhuber, J.D., LL.M

Dismissal of a consumer’s false advertising action against the manufacturer of “flushable” wipes was denied reconsideration by the federal district court in Oakland, California (Davidson v. Kimberly-Clark Corporation, May 15, 2015, Hamilton, P.)

Background. Jennifer Davidson, a consumer of Scott Naturals wipes and cleansing cloths, filed a putative class action, alleging that manufacturer Kimberly-Clark deceptively advertised that certain products were “flushable,” in violation of California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA). Specifically, Davidson alleged that: (1) she believed the products were specially designed to be suitable for flushing, without causing problems to her plumbing or at a water treatment plant; (2) after several uses, she had serious doubts that the products were truly flushable; (3) she stopped using the products and has not purchased any “flushable” wipes since that time; and (4) she would not have purchased the products had Kimberly-Clark not misrepresented the true nature of the “flushable” products.

Kimberly-Clark moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim; as well as to strike certain allegations in the complaint. The court denied the motions in part and granted them in part; and the dismissal was with leave to amend. After Davidson filed an amended complaint, Kimberly-Clark again moved to dismiss on the same grounds as the original complaint. The court granted the motion to dismiss with prejudice because it determined that Davidson had failed to correct the pleading deficiencies in her amended complaint.

Davidson subsequently filed a motion for reconsideration. She contended that reconsideration of the court’s order to dismiss was warranted because: (1) the court dismissed her claim for injunctive relieve rather than remanding it to the San Francisco Superior Court, as she requested; (2) the court dismissed the complaint with prejudice rather than granting her leave to amend to allege additional facts; and (3) the court committed error in ruling that she had not adequately pled damages.

Standing. Davidson originally sought injunctive relief as remedy for alleged violations of the UCL, the FAL, and the CLRA on behalf of herself and other similarly situated consumers. The court, however, determined that she lacked standing because the allegations in her complaint had made it clear that she had no intention of buying the products in the future and, therefore, was not at risk if injunctive relief was not granted.

Davidson reasserted the same requests for prospective relief in her amended complaint but also argued that, if the court dismissed her injunctive relief claim for lack of standing, it should sever the claim and remand it to the San Francisco Superior Court.

Dismissal with prejudice. The court determined that Davidson failed to state a claim under Federal Rule of Civil Procedure 9(b) because she failed to plead any claim with particularity, including (1) failing to show that she was exposed to any alleged misrepresentations; and (2) failing to show how she came to believe the “flushable” representation was false. Davidson asserted the same causes of action in in her amended complaint but again did not sufficiently plead that the representation that products were “flushable” was false.

In her motion to reconsider, Davidson asserted that if she were given leave to amend, she could add allegations based on the California Plumbing Code, which prohibits depositing any number of substances into a sewer, drainage system or septic tank. The court, however, determined that, even if the California Plumbing Code were relevant to the issues in the case: (1) it did not constitute new facts that were not available to Davidson at the time the original case was filed; and (2) it did not provide any additional basis to support her claim that the products were not “flushable.”

Inadequate pleading of damages. The court acknowledged that Davidson alleged economic injury, for the purposes of standing, by asserting that she purchased the products only because the packaging stated that they were “flushable.” However, the court noted that she had not pled any facts showing that her use of the products damaged her plumbing, pipes, or septic system. The court further noted that she only stopped using the products out of her concern that they might not be truly “flushable.” The court, therefore, determined that: (1) she failed to allege facts showing that the use of the word “flushable” was false or misleading; and (2) she failed to allege facts showing that she suffered any harm from her use of the product.

The case is No. C 14-1783 PJH

Attorneys: Seth Adam Safier (Gutride Safier LLP) for Jennifer Davidson. Amy P. Lally (Sidley Austin Brown & Wood LLP) for Kimberly-Clark Corp., Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, LLC.

Companies: Kimberly-Clark Corp.; Kimberly-Clark Worldwide, Inc.; Kimberly-Clark Global Sales, LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews