Jennifer Davidson, an individual on behalf of herself, the general public and those similarly situated, Plaintiff-Appellant,
Kimberly-Clark Corporation; Kimberly-Clark Worldwide, Inc.; Kimberly-Clark Global Sales, LLC, Defendants-Appellees.
and Submitted May 18, 2017 San Francisco, California
from the United States District Court for the Northern
District of California Phyllis J. Hamilton, Chief Judge,
Presiding D.C. No. 4:14-cv-01783-PJH
Matthew T. McCrary (argued), Kristen G. Simplicio, Seth A.
Safier, and Adam J. Gutride, Gutride Safier LLP, San
Francisco, California, for Plaintiff-Appellant.
Constantine L. Trela, Jr. (argued), Sidley Austin LLP,
Chicago, Illinois; Michelle Goodman and Amy Lally, Sidley
Austin LLP, Los Angeles, California; Naomi Igra, Sidley
Austin LLP, San Francisco, California; William R. Levi, Eamon
P. Joyce, and Kwaku A. Akowuah, Sidley Austin LLP,
Washington, D.C.; for Defendants-Appellees.
Metlitsky, O'Melveny & Myers LLP, New York, New York;
Deanna M. Rice, O'Melveny & Myers LLP, Washington,
D.C.; Janet Galeria and Warren Postman, U.S. Chamber
Litigation Center Inc., Washington, D.C.; Leland P. Frost,
Quentin Riegel, and Linda E. Kelly, Manufacturers' Center
for Legal Action, Washington, D.C.; Karin F.R. Moore, Grocery
Manufacturers Association, Washington, D.C.; for Amici Curiae
Chamber of Commerce of the United States of America, National
Association of Manufacturers, and Grocery Manufacturers
Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges,
and Jon P. McCalla, [*] District Judge.
AND AMENDED OPINION
Advertising / Standing
panel issued an order amending the opinion and concurrence
filed on October 20, 2017, and denying on behalf of the court
a petition for rehearing en banc. In the amended opinion, the
panel reversed the district court's dismissal of a
complaint in an action, brought in state court against
Kimberly-Clark Corporation and removed to federal court
pursuant to the Class Action Fairness Act, alleging that
Kimberly-Clark falsely advertised that four types of
cleansing wipes they manufactured and sold were flushable.
sought to recover the premium she paid for the allegedly
flushable wipes, as well as an order requiring Kimberly-Clark
to stop marketing their wipes as flushable. The panel held
that the first amended complaint adequately alleged that
Kimberly-Clark's use of the word "flushable"
was false because the wipes plaintiff purchased did not
disperse as a truly flushable product would have. The panel
further held that plaintiff was not required to allege damage
to her plumbing or pipes. Under California law, the economic
injury of paying a premium for a falsely advertised product
was sufficient harm to maintain a cause of action. Because
plaintiff only needed to allege an economic injury to state a
claim for relief, and because plaintiff alleged that she paid
a premium price for the wipes, plaintiff properly alleged
that she was injured by Kimberly-Clark's allegedly false
panel held that the district court erred by dismissing the
original complaint on the ground that plaintiff failed to
allege facts showing how she came to believe that the wipes
were not flushable. The panel stated that it was aware of no
authority that specifically required 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 Fed.R.Civ.P. 9(b) considerations had been
the panel held that a previously deceived consumer may have
standing to seek an injunction against false advertising or
labeling, even though the consumer now knows or suspects that
the advertising was false at the time of the original
purchase, because the consumer may suffer an actual or
imminent threat of future harm. The panel held that because
plaintiff's allegations sufficiently identified a
certainly impending risk of her being subjected to
Kimberly-Clark's allegedly false advertising, she had
standing to pursue injunctive relief.
Berzon concurred fully in the majority opinion but wrote
separately to note that duplicating the standing analysis -
as the majority did for prospective relief by performing a
separate standing analysis for each "form of
relief" - did not give effect to the "case or
controversy" requirement of Article III.
opinion and concurrence filed October 20, 2017, and appearing
at 873 F.3d 1103, is hereby amended. An amended opinion and
concurrence is filed herewith. Judges Berzon and Murguia have
voted to deny the petition for rehearing en banc, and Judge
McCalla so recommends.
full court has been advised of the petition for rehearing en
banc and no judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35.
petition for rehearing en banc is DENIED
further petitions for rehearing or rehearing en banc will be
entertained in this case.
MURGUIA, CIRCUIT JUDGE:
California's consumer protection laws, a consumer who
pays extra for a falsely labeled or advertised product may
recover the premium she paid for that product. California law
also permits that consumer to seek a court order requiring
the manufacturer of the product to halt its false
advertising. California has decided that its consumers have a
right, while shopping in a store selling consumer goods, to
rely upon the statements made on a product's packaging.
Today, we hold that misled consumers may properly allege a
threat of imminent or actual harm sufficient to confer
standing to seek injunctive relief. A consumer's
inability to rely on a representation made on a package, even
if the consumer knows or believes the same representation was
false in the past, is an ongoing injury that may justify an
order barring the false advertising.
case, Jennifer Davidson paid extra for wipes labeled as
"flushable" because she believed that flushable
wipes would be better for the environment, and more sanitary,
than non-flushable wipes. Davidson alleges that the wipes she
purchased, which were manufactured and marketed by
Kimberly-Clark Corporation, were not, in fact, flushable.
Davidson seeks to recover the premium she paid for the
allegedly flushable wipes, as well as an order requiring
Kimberly-Clark to stop marketing their wipes as
"flushable." Davidson has plausibly alleged that
Kimberly-Clark engaged in false advertising. Davidson has
also plausibly alleged that she will suffer further harm in
the absence of an injunction. We therefore reverse the
district court and remand this case for further proceedings.
Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc.,
and Kimberly-Clark Global Sales, LLC (collectively
"Kimberly-Clark") manufacture and market four types
of pre-moistened wipes: Cottonelle Wipes, Scott Wipes,
Huggies Wipes, and Kotex Wipes. Each of the four products is
marketed and sold as "flushable." Kimberly-Clark
charges a premium for these
¶ushable wipes, as compared to toilet paper or wipes
that are not marketed as "flushable." Each of the
four flushable wipes products contains a statement on the
package (or on the website associated with the product)
stating, in various ways, that the product "breaks up
2013, Davidson was shopping at a Safeway in San Francisco
when she came across Scott Wipes. Davidson saw the word
"flushable" on the Scott Wipes package and noticed
that the Scott Wipes were more expensive than wipes that did
not have the word "flushable" on the package.
According to Davidson, flushable ordinarily means
"suitable for disposal down a toilet, "
not simply "capable of passing from a toilet to
the pipes after one flushes." Davidson maintains that
this ordinary meaning of flushable is understood by
reasonable consumers, who expect a flushable product to be
suitable for disposal down a toilet. Consistent with that
understanding, the Merriam-Webster dictionary defines
flushable as "suitable for disposal by flushing down a
toilet, " and a nonprofit organization of water quality
professionals states that a flushable item must completely
disperse within five minutes of flushing. In other words,
"truly flushable products, such as toilet paper, . . .
disperse within seconds or minutes."
was concerned about products that were not suitable for
flushing because she remembered hearing stories about people
flushing items that should not be flushed, which then caused
problems with home plumbing systems and municipal wastewater
treatment facilities. Davidson did not want to cause such
damage to her plumbing or to San Francisco's wastewater
treatment facilities. Davidson reviewed the front and back of
the Scott Wipes package and did not see anything indicating
that the wipes were not suitable for flushing. Believing it
would be easier and more sanitary to flush wipes than to
throw them in the garbage, Davidson purchased the Scott
Davidson began using the Scott Wipes, she noticed that each
wipe felt sturdy and thick, unlike toilet paper. Davidson
also noticed that the wipes did not disperse in the toilet
bowl like toilet paper. After using the wipes several times,
Davidson became concerned that the wipes were not truly
flushable, so she stopped using the Scott Wipes altogether.
Davidson investigated the matter further and learned that
flushable wipes caused widespread damage to home plumbing and
municipal sewer systems. This research "further[ed] her
concerns that the [Scott] Wipes were not in fact appropriate
for disposal by flushing down a toilet."
has never again purchased flushable wipes. Yet Davidson
"continues to desire to purchase wipes that are suitable
for disposal in a household toilet, " and "would
purchase truly flushable wipes manufactured by
[Kimberly-Clark] if it were possible to determine prior to
purchase if the wipes were suitable to be flushed."
Davidson regularly visits stores that sell
Kimberly-Clark's flushable wipes but is unable to
determine, based on the packaging, whether the wipes are
truly flushable. Davidson would not have purchased the Scott
Wipes, or would have paid less ...