Belfiore v. Procter & Gamble Co.
2015 U.S. Dist. LEXIS 144446
E.D.N.Y2015Background
- Putative nationwide consumer class action challenging "flushable" labeling on defendant's wipes; plaintiffs seek statutory ($50 per purchase) or actual (price-premium) damages, individual plumbing damages, and injunctive relief.
- Multiple related actions are pending in this district and similar suits (including municipal claims) exist elsewhere; the FTC is investigating "flushable" claims and issued a proposed consent order with Nice-Pak defining "flushable."
- On October 5, 2015 the Court stayed class-certification motions and referred definitional and regulatory issues to the FTC under the primary jurisdiction doctrine.
- Plaintiff moved for reconsideration, arguing the FTC draft definition is sufficient (so referral is unnecessary), the stay causes undue delay, he did not waive premium-damages claims, and the court should not prospectively deny damages-class certification.
- The court applied Local Rule 6.3 standards for reconsideration, explaining relief requires intervening law, new evidence, or clear error; plaintiff failed to meet that standard.
- Court denied reconsideration, reaffirmed the stay and referral to the FTC, explained reasons for declining to certify a damages class now (Shady Grove and Rule 23(b)(3) concerns), but left open modification when the stay is lifted; settlement negotiations may proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriateness of stay and referral to FTC | FTC draft Nice-Pak definition suffices; referral unnecessary; stay delays relief | FTC is the appropriate expert forum; uniform national definition needed to avoid inconsistent rulings | Stay and referral to FTC affirmed under primary jurisdiction; stay may be lifted to avoid undue delay |
| Effect of FTC draft consent order definition | FTC's proposed "flushable" definition can provide national resolution; other manufacturers may accept it | (implicitly) FTC order is non-final and only with Nice-Pak; not binding on others | Court considered the draft but found it non-final and insufficient to obviate referral; referral remains appropriate |
| Waiver of statutory $50 damages / ability to pursue premium-only damages class | Plaintiff willing to waive $50 statutory claim and seek price-premium damages class; requests immediate certification | (implicitly) certification now raises issues under Shady Grove and New York policy; actual damages small and hard to calculate | Reconsideration denied as premature; court reaffirmed that certifying damages class now would trigger Shady Grove consequences and is inappropriate at this time |
| Class-wide recovery of individual plumbing damages | Plaintiff seeks class treatment for plumbing damages | Defendant opposes class adjudication of individualized plumbing claims | Court held individual plumbing damages are not suitable for class adjudication; such claims should be pursued individually or compensated voluntarily in settlement |
Key Cases Cited
- Shrader v. CSX Transp., 70 F.3d 255 (2d Cir. 1995) (standard for motions for reconsideration)
- Virgin Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245 (2d Cir. 1992) (grounds for reconsideration include intervening law, new evidence, or clear error)
- Nat'l Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97 (2d Cir. 2001) (limitations on raising new arguments on reconsideration)
- In re Zyprexa Prods. Liab. Litig., 653 F. Supp. 2d 181 (E.D.N.Y. 2009) (reconsideration not permitted to relitigate decided issues)
- Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393 (2010) (federal courts applying Rule 23 may permit class treatment of claims that state law would treat individually)