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Revived Flushable Wipes Suit Ruling Won’t Get Another Look

May 11, 2018, 4:11 PM

Kimberly-Clark Corp. lost a bid to have the full U.S. Court of Appeals for the Ninth Circuit reconsider a decision that revived a proposed class suit over the marketing of “flushable” wipes.

Jennifer Davidson alleged Kimberly-Clark’s “flushable” Cottonelle, Scott, Huggies and Kotex branded wipes don’t break up after flushing.

She sought an order directing label changes, as well as money damages for the price premium consumers allegedly paid for wipes labeled as flushable.

California consumer protection law allows plaintiffs to push for label changes even with their later-acquired knowledge of the alleged deception, the Ninth Circuit panel saidin October 2017.

Injunctive relief, such as marketing changes, is generally more valuable to consumers than money damages, according to attorneys who represent consumers.

Whether plaintiffs may seek this type of relief once they become wise to alleged deception is a hotly contested issue in consumer litigation and had been an open question in the Ninth Circuit.

Some courts say that newly enlightened plaintiffs lack standing, or a basis, to seek label changes because they can’t be repeatedly fooled and so won’t suffer future harm, a requirement to pursue injunctive relief.

But the appeals court panel didn’t embrace that approach.

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

Gutride Safier LLP represented the plaintiff. Sidley Austin LLP represented Kimberly-Clark.

The case is Davidson v. Kimberly-Clark Corp., 2018 BL 164611, 9th Cir., 15-16173, 5/9/18.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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