210 F. Supp. 3d 1137
D. Minnesota2016Background
- Municipal plaintiffs (Minnesota and Wisconsin) operating sewer/lift stations sued major wipes manufacturers alleging wipes labeled “flushable” do not disintegrate, causing clogs, property damage, and cleanup costs.
- Defendants include P&G, Kimberly‑Clark, Nice‑Pak, PDI, Rockline, and contract manufacturer Tufco; plaintiffs attached product images and allege widespread representations that wipes are “flushable” or “sewer and septic safe.”
- Plaintiffs assert ten counts: (1) Declaratory Judgment Act, (2) breach of express warranty, (3) implied warranty of merchantability, (4) implied warranty for particular purpose, (5) Minnesota Unlawful Trade Practices Act, (6) Minnesota False Advertising Act, (7) Minnesota Prevention of Consumer Fraud Act, (8) Minnesota Deceptive Trade Practices Act, (9) Wisconsin Trade Practices Act, (10) Wisconsin public nuisance.
- Defendants moved to dismiss for lack of standing and for failure to state claims (Rules 8, 9(b), and merits). Tufco filed a separate motion emphasizing sparse allegations against it.
- The court found plaintiffs have Article III standing (alleged past and imminent future harms and traceability through sales/INDA conduct), denied many dismissal arguments, and granted dismissal in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Article III) | Municipalities assert concrete injury from clogs and ongoing threat from continued sale/marketing of non‑disintegrating "flushable" wipes; INDA conduct contributes to injury. | Defendants contend plaintiffs failed to plead specific causation (which defendants’ products were flushed, found in lift stations) and harms traceable to them. | Court: Standing satisfied. Allegations of physical clogging, 25% attribution, and INDA involvement suffice for traceability and imminent future harm. |
| Rule 8 / shotgun pleading | Complaint gives notice of claims and factual bases (photos, product descriptions). | Complaint is a ‘‘kitchen‑sink’’ pleading that fails to give fair notice. | Court: Complaint satisfies Rule 8; not a shotgun pleading. |
| Rule 9(b) for consumer‑fraud claims | Plaintiffs plead specific misrepresentations (packaging photos, website statements). | Fraud claims lack particularity as to who, what, when, where. | Court: Rule 9(b) satisfied for Counts 5–8 (except Tufco limited). |
| Declaratory Judgment Act (Count 1) | Asks declaration that defendants’ affirmations create an express warranty that wipes are not flushable. | Plaintiffs misuse declaratory‑judgment label to litigate warranty breach. | Court: Count 1 is duplicative of express warranty claim and dismissed without prejudice. |
| Express warranty (Count 2) | Packaging/advertising constitute affirmations of fact forming express warranties; third‑party beneficiaries (municipalities) may recover under Minn. Stat. § 336.2‑318. | Plaintiffs lack purchaser reliance and specificity. | Court: Express warranty plausibly pleaded; reliance not required under UCC comment; claim survives. |
| Implied merchantability (Count 3) | Wipes represented as safe for sewers/treatment plants; thus not merchantable for that ordinary purpose. | Reasonable consumer expectation could be limited to toilet plumbing only; allegations insufficient. | Court: Plaintiffs plausibly plead implied‑merchantability claim given representations about sewer/system safety. |
| Implied warranty for particular purpose (Count 4) | Plaintiffs invoked implied warranty for particular purpose. | No allegation defendant made a representation as to a particular purpose. | Court: Claim dismissed; plaintiffs conceded absence of necessary allegations. |
| Minnesota consumer protection statutes (Counts 5–7) | Non‑consumer entities injured by defendants’ misrepresentations may recover; Group Health permits non‑purchasers to sue if damaged. | Plaintiffs are not consumers and therefore cannot assert these statutes. | Court: Counts 5–7 survive under Minnesota precedent (Group Health). |
| Minnesota Deceptive Trade Practices (Count 8) | Statute does not require competition; plaintiffs injured by deceptive advertising can sue. | Lexmark (federal Lanham Act) suggests need for commercial injury/competition. | Court: Claim survives because Minnesota statute explicitly need not show competition. |
| Wisconsin claims & Tort Reform Act (Counts 9–10) | Plaintiffs allege specific products and will identify which wipes caused particular harms; seek nuisance and trade practices relief. | Wisconsin Tort Reform Act requires identification of specific product tied to each defendant; absence warrants dismissal. | Court: Tort Reform Act is a substantive burden of proof, not a pleading bar; Wisconsin claims plausibly pleaded for most defendants but Tufco dismissed on Wisconsin counts for lack of specific product allegations. |
| Wisconsin public nuisance (Count 10) | Widespread sales of mislabeled wipes substantially interfere with public wastewater operations and public health activities. | Selling/advertising alone cannot constitute maintaining a nuisance or interfering with a public place. | Court: Public nuisance plausibly pleaded; interference with community wastewater activities qualifies. |
Key Cases Cited
- Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) (distinguishes facial and factual Rule 12(b)(1) attacks and standards of review)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Wallace v. ConAgra Foods, Inc., 747 F.3d 1025 (8th Cir. 2014) (standing failure where plaintiffs did not allege they purchased or were exposed to allegedly defective products)
- Bennett v. Spear, 520 U.S. 154 (1997) (clarifies "fairly traceable" causation for standing does not require defendant’s action be the last step)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (imminent injury doctrine in declaratory judgment/standing context)
- Clapper v. Amnesty Int'l U.S.A., 568 U.S. 398 (2013) (Article III standing analysis)