Article III standing possible for consumers in future false advertising class actions

By Angela Underwood | Nov 16, 2017

SAN FRANCISCO -- Consumers could have Article III standing under California false advertising laws, according to the U.S. Court of Appeals Ninth Circuit.

Discussing the Oct. 20 Davidson v. Kimberly-Clark Corp. ruling, Garrett S. Llewellyn, a Los-Angeles-based counselor with Akin Gump Strauss Hauer & Feld LLP, told the Northern California Record that companies currently accused of falsely advertising their products will have a tougher time defeating lawsuits filed against them under California consumer protection laws.

“Before the ruling a company could argue that a plaintiff who had learned that advertising was allegedly 'misleading' was no longer at risk of being deceived in the future by the advertising in question,” Llewellyn said. "That argument has now been eliminated."

In the past courts deemed plaintiffs who had been deceived would be weary in the future and not purchase a faulty product again. That is, until plaintiff Jennifer Davidson came along. She filed a class action against Kimberly Clark for flushable wipes that did not tear apart, arguing the corporation violated the Consumer Legal Remedies Act.

But according to the district court, Davidson would not buy the wipes in the future, which made her unable to file injunctive relief. However, the Ninth Circuit split in favor of Davidson’s injunctive relief, ruling a “threatened injury that is certainly impending” does indeed warrant Article III standing. Whether Davidson will take the case to the highest court is undetermined.

If she did, chances are the ruling would not be in her favor, according to the attorney.

“The U.S. Supreme Court typically only takes cases where there is a split among various circuits,” Llewellyn said. “The Ninth Circuit’s opinion in the Kimberly-Clark case discussed only the application of the federal Article III standing principle to California’s consumer protection laws. Accordingly, it is unlikely the Supreme Court would grant certiorari in this case.”

The counselor said the most important take away from the Davidson v. Kimberly Clark 2017 is that companies confronted with large class actions that allege false advertising should engage sophisticated and qualified counsel at the outset.

“Counsels who are experienced in litigating these class actions can mitigate the effect of the Kimberly-Clark holding through a well-tailored discovery and experienced litigation strategy,” Llewellyn said.

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