Davidson v. Kimberly-Clark Corp., No. 15-16173 (9th Cir. 2017)
Annotate this CaseCalifornia consumers who can seek in California state court an order requiring the manufacturer of an allegedly falsely advertised product to cease the false advertising may also seek such an order in federal court. A consumer's inability to rely in the future upon a representation made on a package, even if the consumer knew or continued to believe the same representation was false in the past, is an ongoing injury that may justify an order barring the false advertising.The Ninth Circuit reversed the dismissal of an action alleging that Kimberly-Clark falsely advertised that four cleansing wipes they manufactured and sold were flushable. The action was filed in state court and then removed to federal court. The panel held that plaintiff plausibly alleged that Kimberly-Clark engaged in false advertising and that she will suffer further harm in the absence of an injunction. Accordingly, the panel remanded for further proceedings.
Court Description: False Advertising / Standing 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 Kimberly-Clark falsely advertised that four cleansing wipes they manufactured and sold were flushable. Davidson 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
The court issued a subsequent related opinion or order on May 9, 2018.
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