Belfiore v. Procter & Gamble Co.
2015 U.S. Dist. LEXIS 137034
| E.D.N.Y | 2015Background
- Consumer class action alleging Charmin Freshmates labeled as “flushable” are not, in fact, flushable; case stayed to allow FTC inquiry into flushability; multiple related actions exist nationwide; court contemplated certification of injunctive vs damages classes under New York and federal rules; potential statutory damages under NY law would conflict with CPLR 901(b) and Erie conflicts; FTC action against a competitor and informal FTC inquiry into defendant’s labeling are noted; court referred definition of “flushable” to FTC and stayed proceedings pending agency action.
- Plaintiff Belfiore seeks class certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) for injunctive relief and statutory damages of $50 per purchase, asserting misleading “flushable” labeling increased prices; defendant Procter & Gamble moves to deny class certification, arguing lack of common injury and need for individualized proof; court previously held standing and jurisdiction questions consistent with prior order; decision to stay aimed at preventing inconsistent rulings and aligning with broader FTC framework.
- Additional concurrent and related actions across jurisdictions address similar claims; presence of municipal plaintiffs; FTC’s proposed consent order with Nice-Pak cited as broader regulatory context; New York City legislation (Int. 666-2015) and public warnings cited.
- FTC’s ongoing inquiry and proposed consent orders with Nice-Pak provide potential uniform industry standards; primary jurisdiction doctrine invoked to stay in favor of FTC’s expert determination; the court notes potential for nationwide uniform definitions and the avoidance of forum shopping.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to certify a damages class under CPLR 901(b) and Rule 23. | Belfiore argues for damages class via NY statute. | P&G argues CPLR 901(b) bars class damages in federal court. | Stayed pending FTC action; not certifying damages class now. |
| Whether an injunctive class can be certified under Rule 23(b)(2). | Injunctive relief would be uniform and beneficial. | Injunctive relief may be appropriate but requires consideration of standing and manageability. | Court finds injunctive class potentially appropriate but facially stayed pending FTC determination. |
| Whether NY CPLR § 901(b) is substantive or procedural for Erie/Shady Grove purposes. | § 901(b) reflects NY policy to limit statutory penalties in class actions. | Rule 23 governs; no conflict if treated as procedural. | Shady Grove controls; stay to allow FTC to decide; court analyzes § 901(b) as a barrier to damages class but stays ruling. |
| Whether primary jurisdiction stay is appropriate given FTC inquiries into flushability. | FTC inquiry will clarify definition and avoid inconsistent rulings. | Court should determine claims now; agency action is lengthy. | Stay granted; refer definition of flushable to FTC and keep case paused. |
Key Cases Cited
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (federal vs state law conflicts; Erie guideposts for state-substantive, federal-procedural balance)
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) (Rule 23 preempts CPLR 901(b) in federal diversity actions; procedural vs substantive debate)
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 549 F.3d 137 (2d Cir. 2008) (conflict analysis before Shady Grove Supreme Court decision (cited for background on Rule 23 vs §901(b)))
- Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) (plurality on conflict between Rule 23 and § 901(b) in federal court; procedural calibration)
- In re Scotts EZ Seed Litig., 304 F.R.D. 397 (S.D.N.Y. 2015) (price premium damages class under § 349; role of Weir’s model in certification)
- Ebin v. Kangadis Food Inc., 2013 WL 6504547 (S.D.N.Y. 2013) (common injury: price premium for mislabeled product; common issues support certification)