Jennifer Davidson v. Kimberly-Clark Corp.
2017 U.S. App. LEXIS 20670
| 9th Cir. | 2017Background
- Plaintiff Jennifer Davidson purchased Kimberly-Clark “flushable” wipes (Scott, Cottonelle, Huggies, Kotex) after paying a premium because she believed “flushable” meant suitable for disposal down a household toilet (i.e., disperses quickly like toilet paper).
- Davidson alleged the wipes do not disperse within seconds or minutes, instead taking hours to break down, and that Kimberly‑Clark’s own tests and consumer/municipal reports support that they are not truly flushable.
- She sued in California state court on common‑law fraud and under the CLRA, FAL, and UCL seeking restitution, damages, and an injunction; Kimberly‑Clark removed under CAFA to federal court.
- The district court dismissed with prejudice: (1) injunctive‑relief claims for lack of Article III standing, (2) fraud‑grounded claims for failure to plead falsity with particularity under Rule 9(b), and (3) damages for failure to allege injury from use of the wipes.
- The Ninth Circuit reversed and remanded, holding Davidson adequately pleaded falsity, pleaded economic injury (paid a premium), and has Article III standing to seek injunctive relief based on a threatened inability to rely on labeling in the future.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pleading falsity under Rule 9(b) | Alleged who/what/when/where/how: wipes felt sturdy, did not disintegrate, corporate testing shows slow dispersion — so “flushable” is false | Davidson must plead actual damage to plumbing/sewage or more specific proof that the specific representation was false | Held that FAC sufficiently pleaded why “flushable” is false (dispersal timeframe alleged); Rule 9(b) satisfied |
| Damages / economic injury | She paid a premium for wipes labeled “flushable” and would not have bought (or would have paid less) absent misrepresentation | Defendant argued lack of injury from use (no plumbing damage alleged) | Held economic injury properly pleaded: paying a premium for a falsely advertised product suffices under California law |
| Requirement to plead how plaintiff came to believe wipes were not flushable | Not required beyond Rule 9(b) particulars; her personal observations and supporting allegations suffice | District court required additional factual showing of how she formed the belief | Held district court erred to the extent it required a separate allegation of ‘how she came to believe’ the wipes were not flushable |
| Article III standing for injunctive relief | A previously deceived consumer can have standing where she faces a real and imminent threat of future harm — here she still desires flushable wipes, regularly encounters labels, and cannot rely on them | Defendant: Once informed, plaintiff cannot be deceived again so lacks risk of future injury and thus no standing for injunction | Held plaintiff has standing for injunctive relief: inability to rely on label in the future is an injury that may be certainly impending; injunction claim may proceed |
Key Cases Cited
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir.) (Rule 9(b) applies to CLRA and UCL claims)
- Cafasso v. U.S. ex rel. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir.) (Rule 9(b) requires who, what, when, where, how and why statements are false)
- Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir.) (fraud allegations must identify what is false and why)
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir.) (reasonable consumer standard governs UCL/CLRA/FAL claims)
- Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir.) (lost money or property requirement for consumer‑protection claims)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (Cal.) (causation and economic injury under California consumer law)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (U.S.) (constitutional standing elements)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (U.S.) (standing requires injury-in-fact, causation, redressability)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (U.S.) (future‑injury for standing must be certainly impending)
- City of Los Angeles v. Lyons, 461 U.S. 95 (U.S.) (standing and requirements for prospective equitable relief)
- In re Tobacco II Cases, 46 Cal.4th 298 (Cal.) (public injunctive relief is primary UCL remedy)