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 after they learn of the alleged deception, the U.S. Court of Appeals for the Ninth Circuit saidin October 2017.
Injunctive relief, such as marketing changes, can be 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 to seek label changes because they won’t suffer future harm, a requirement to pursue injunctive relief.
But “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 Ninth Circuti said
Gibson, Dunn & Crutcher LLP represented Kimberly-Clark. Gutride Safier LLP represented Davidson.
The case is Kimberly-Clark Corp. v. Davidson, U.S., No. 18-304, cert. denied 12/10/18.