Ninth Circuit rules 'inability to rely on representation' satisfies FCA Article III

By Pam Wright | Nov 9, 2017

SAN FRANCISCO -- The U.S. Court of Appeals for the Ninth Circuit has settled a district and circuit court split decision, ruling consumers can seek an injunction under California false advertising laws.

The decision stems from a punitive class action suit brought by Jennifer Davidson, who alleges the Kimberly-Clark Corporation engaged in false advertising about its pre-moistened “flushable” Cottonelle, Scott Naturals and Pull-Ups flushable bathroom wipes.

According to the original complaint, Davidson alleges the wipes, in fact, do not break up when flushed and are clogging drainpipes. The plaintiff cited four California state laws in her suit, including the Consumer Legal Remedies Act, California Civil Code § 1750, et seq.; False Advertising Law, California Business & Professions Code § 17500, et seq.; and Unfair Competition Law, California Business & Professions Code § 17200, et seq.

A district court dismissed the case against Kimberly-Clark, ruling Davidson lacked standing to seek injunctive relief because she was unlikely to purchase the flushable wipes in the future knowing that they do not break up.

Judge Marsha S. Berzon   9th Circuit Court of Appeals

That decision was reversed by the Ninth Circuit, noting the plaintiff did have standing under Article III. 

On Oct. 20, the three-judge appeals panel, which included circuit judges Marsha S. Berzon and Mary H. Murguia, and district judge Jon P. McCalla, upheld the Ninth Circuit's decision.

“A consumer’s inability to rely in the future upon a representation made on a package ... is an ongoing injury that may justify an order barring the false advertising,” the panel wrote in its decision.

Davidson asked that the court order Kimberly-Clark to repay the cost of the wipes and stop marketing the wipes as “flushable.” 

"Under California law, if Davidson prevails on her false advertising claim and is entitled to restitution, she is equally entitled to an injunction,” the appeals court ruled.

The Davidson complaint is one of several against flushable wipes being settled in courts nationwide.

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