Jennifer Davidson v. Kimberly-Clark Corp.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER DAVIDSON, an individual No. 15-16173
on behalf of herself, the general
public and those similarly situated, D.C. No.
Plaintiff-Appellant, 4:14-cv-01783-
PJH
v.
KIMBERLY-CLARK CORPORATION; OPINION
KIMBERLY-CLARK WORLDWIDE,
INC.; KIMBERLY-CLARK GLOBAL
SALES, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted May 18, 2017
San Francisco, California
Filed October 20, 2017
Before: Marsha S. Berzon and Mary H. Murguia, Circuit
Judges, and Jon P. McCalla, * District Judge.
*
The Honorable Jon P. McCalla, United States District Judge for
the Western District of Tennessee, sitting by designation.
2 DAVIDSON V. KIMBERLY-CLARK CORP.
Opinion by Judge Murguia;
Concurrence by Judge Berzon
SUMMARY **
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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DAVIDSON V. KIMBERLY-CLARK CORP. 3
alleged that she was injured by Kimberly-Clark’s allegedly
false advertising.
The panel held that the district court erred by dismissing
the original complaint on the ground that plaintiff failed to
allege facts showing how she came to believe that the wipes
were not flushable. The panel stated that it was aware of no
authority that specifically required a plaintiff bringing a
consumer fraud claim to allege how she “came to believe”
that the product was misrepresented when, as in this case, all
the Fed. R. Civ. P. 9(b) considerations had been met.
Finally, the panel held that because plaintiff’s allegations
sufficiently identified a certainly impending risk of her being
subjected to Kimberly-Clark’s allegedly false advertising,
she had standing to pursue injunctive relief. The panel held
that California 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.
Concurring, Judge Berzon stated that in her view it was
unnecessary to perform separate standing analyses for the
restitution and injunctive relief claims. Nevertheless, Judge
Berzon acknowledged that Hodgers-Durgin v. de la Vina,
199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (en banc) was
binding law, and did require a separate standing analysis
with regard to prospective relief.
4 DAVIDSON V. KIMBERLY-CLARK CORP.
COUNSEL
Matthew T. McCrary (argued), Kristen G. Simplicio, Seth
A. Safier, and Adam J. Gutride, Gutride Safier LLP, San
Francisco, California, for Plaintiff-Appellant.
Constantine L. Trela, Jr. (argued), Sidley Austin LLP,
Chicago, Illinois; Michelle Goodman and Amy Lally, Sidley
Austin LLP, Los Angeles, California; Naomi Igra, Sidley
Austin LLP, San Francisco, California; for Defendants-
Appellees.
OPINION
MURGIA, Circuit Judge:
Under California’s consumer protection laws, a
consumer who pays extra for a falsely labeled or advertised
product may recover the premium she paid for that product.
California law also permits that consumer to seek a court
order requiring the manufacturer of the product to halt its
false advertising. California has decided that its consumers
have a right, while shopping in a store selling consumer
goods, to rely upon the statements made on a product’s
packaging. Today, we hold that California 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.
DAVIDSON V. KIMBERLY-CLARK CORP. 5
In this case, Jennifer Davidson paid extra for wipes
labeled as “flushable” because she believed that flushable
wipes would be better for the environment, and more
sanitary, than non-flushable wipes. Davidson alleges that
the wipes she purchased, which were manufactured and
marketed by Kimberly-Clark Corporation, were not, in fact,
flushable. Davidson seeks 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.” Davidson has plausibly alleged that Kimberly-
Clark engaged in false advertising. Davidson has also
plausibly alleged that she will suffer further harm in the
absence of an injunction. We therefore reverse the district
court and remand this case for further proceedings.
I. BACKGROUND
A. Factual Allegations 1
Defendants-appellees Kimberly-Clark Corporation,
Kimberly-Clark Worldwide, Inc., and Kimberly-Clark
Global Sales, LLC (collectively “Kimberly-Clark”)
manufacture and market four types of pre-moistened wipes:
Cottonelle Wipes, Scott Wipes, Huggies Wipes, and Kotex
Wipes. Each of the four products are marketed and sold as
“flushable.” Kimberly-Clark charges a premium for these
flushable wipes, as compared to toilet paper or wipes that are
not marketed as “flushable.” Each of the four flushable
wipes products contains a statement on the package (or on
1
The following allegations are taken from the operative first
amended complaint (“FAC”). At this stage of the proceedings, we must
“accept as true all well-pleaded allegations of material fact, and construe
them in the light most favorable to the non-moving party.” Daniels-Hall
v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
6 DAVIDSON V. KIMBERLY-CLARK CORP.
the website associated with the product) stating, in various
ways, that the product “breaks up after flushing.”
In 2013, Davidson was shopping at a Safeway in San
Francisco when she came across Scott Wipes. Davidson saw
the word “flushable” on the Scott Wipes package and
noticed that the Scott Wipes were more expensive than
wipes that did not have the word “flushable” on the package.
According to Davidson, flushable ordinarily means “suitable
for disposal down a toilet,” not simply “capable of passing
from a toilet to the pipes after one flushes.” Davidson
maintains that this ordinary meaning of flushable is
understood by reasonable consumers, who expect a flushable
product to be suitable for disposal down a toilet. Consistent
with that understanding, the Merriam-Webster dictionary
defines flushable as “suitable for disposal by flushing down
a toilet,” and a nonprofit organization of water quality
professionals states that a flushable item must completely
disperse within five minutes of flushing. In other words,
“truly flushable products, such as toilet paper, . . . disperse
within seconds or minutes.”
Davidson was concerned about products that were not
suitable for flushing because she remembered hearing stories
about people flushing items that should not be flushed,
which then caused problems with home plumbing systems
and municipal wastewater treatment facilities. Davidson did
not want to cause such damage to her plumbing or to San
Francisco’s wastewater treatment facilities. Davidson
reviewed the front and back of the Scott Wipes package and
did not see anything indicating that the wipes were not
suitable for flushing. Believing it would be easier and more
sanitary to flush wipes than to throw them in the garbage,
Davidson purchased the Scott Wipes.
DAVIDSON V. KIMBERLY-CLARK CORP. 7
Once Davidson began using the Scott Wipes, she noticed
that each wipe felt sturdy and thick, unlike toilet paper.
Davidson also noticed that the wipes did not disperse in the
toilet bowl like toilet paper. After using the wipes several
times, Davidson became concerned that the wipes were not
truly flushable, so she stopped using the Scott Wipes
altogether. Davidson investigated the matter further and
learned that flushable wipes caused widespread damage to
home plumbing and municipal sewer systems. This research
“further[ed] her concerns that the [Scott] Wipes were not in
fact appropriate for disposal by flushing down a toilet.”
Davidson has never again purchased flushable wipes.
Yet Davidson “continues to desire to purchase wipes that are
suitable for disposal in a household toilet,” and “would
purchase truly flushable wipes manufactured by [Kimberly-
Clark] if it were possible to determine prior to purchase if
the wipes were suitable to be flushed.” Davidson regularly
visits stores that sell Kimberly-Clark’s flushable wipes but
is unable to determine, based on the packaging, whether the
wipes are truly flushable. Davidson would not have
purchased the Scott Wipes, or would have paid less for the
Scott Wipes, had Kimberly-Clark not “misrepresented (by
omission and commission) the true nature of their Flushable
Wipes.”
In addition to her experience with the Scott Wipes she
purchased, Davidson alleges more broadly that all four
flushable wipes products Kimberly-Clark manufactured and
marketed “are not in fact flushable, because the wipes are
not suitable for disposal by flushing down a household
toilet.” Kimberly-Clark manufactures these products with
strong fibers that do not efficiently disperse when placed in
a toilet. Kimberly-Clark’s own testing demonstrates that the
flushable wipes products break down in water at a
8 DAVIDSON V. KIMBERLY-CLARK CORP.
significantly lower rate than toilet paper. Numerous news
stories describe how flushable wipes have clogged
municipal sewage systems, thereby requiring costly repairs.
Consumers who have purchased some of the Kimberly-
Clark flushable wipes products have lodged complaints on
Kimberly-Clark’s website that the flushable wipes damaged
their septic tanks or plumbing.
Based on these allegations, Davidson brought four
California state law causes of action against Kimberly-Clark,
including for common law fraud and for violations of the
Consumer Legal Remedies Act (“CLRA”), California Civil
Code § 1750, et seq., False Advertising Law (“FAL”),
California Business & Professions Code § 17500, et seq.,
and Unfair Competition Law (“UCL”), California Business
& Professions Code § 17200, et seq. Davidson sought
restitution, injunctive relief, and actual, punitive, and
statutory damages on her CLRA claim; restitution and
injunctive relief on her FAL and UCL claims; and
compensatory and punitive damages on her common law
fraud claim. Davidson sought to certify a class of all persons
who purchased Cottonelle Wipes, Scott Wipes, Huggies
Wipes, and Kotex Wipes in California between March 13,
2010 and the filing of the FAC on September 5, 2014.
B. Procedural History
Davidson initially filed this case in state court, but
Kimberly-Clark removed it to federal court pursuant to the
Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). The
district court denied in part and granted in part Kimberly-
Clark’s motion to dismiss the original complaint. In
response, Davidson filed the operative FAC. Kimberly-
Clark moved to dismiss the FAC, and the district court
granted the motion, this time with prejudice. First, the
district court granted Kimberly-Clark’s Federal Rule of Civil
DAVIDSON V. KIMBERLY-CLARK CORP. 9
Procedure (“Rule”) 12(b)(1) motion to dismiss Davidson’s
injunctive relief claims, finding that Davidson lacked
standing to seek injunctive relief because she was unlikely
to purchase Kimberly-Clark’s flushable wipes in the future.
Second, the district court granted Kimberly-Clark’s motion
to dismiss the FAC pursuant to Rules 9(b) and 12(b)(6),
concluding that Davidson had failed to adequately allege
why the representation “flushable” on the package was false.
Finally, the district court concluded that Davidson “failed to
allege damage under the UCL/FAL/CLRA or common law
fraud” causes of action, because Davidson had not alleged
that she suffered any harm due to her use of the Scott Wipes.
Davidson filed a motion for reconsideration under Rules
59(e) and 60(b), which the district court denied. First, the
district court rejected Davidson’s argument that it should
have remanded the injunctive relief claims to state court.
Second, the district court rejected Davidson’s argument that
it should have dismissed the FAC without prejudice so that
Davidson could file a second amended complaint curing the
alleged defects in the FAC. Third, the district court rejected
Davidson’s argument that the district court erred by ruling
that Davidson had not adequately pled damages. Davidson
timely appealed.
Davidson appeals six of the district court’s rulings. First,
Davidson argues that the district court erred by dismissing
the FAC pursuant to Rule 9(b) for failure to adequately
allege why the representation “flushable” was false. Second,
Davidson argues that the district court erred by dismissing
the FAC pursuant to Rule 12(b)(6) on the basis that
Davidson had not suffered any damages. Third, Davidson
argues that the district court erred by dismissing the original
complaint pursuant to Rule 12(b)(6) for failing to plead how
she came to believe the wipes were not flushable. Fourth,
10 DAVIDSON V. KIMBERLY-CLARK CORP.
Davidson argues that the district court abused its discretion
in striking, pursuant to Rule 12(f), references to newspaper
reports in the original complaint. Fifth, Davidson argues that
the district court abused its discretion by denying Davidson
leave to amend her FAC. Finally, Davidson argues that the
district court erred by dismissing her injunctive relief claims
pursuant to Rule 12(b)(1) for lack of standing.
II. STANDARD OF REVIEW
We review de novo dismissals under Rule 9(b) for failure
to plead fraud with particularity. Kearns v. Ford Motor Co.,
567 F.3d 1120, 1124 (9th Cir. 2009). We review de novo
dismissals under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted. Crowley v. Nevada ex. rel.
Nev. Sec’y of State, 678 F.3d 730, 736 (9th Cir. 2012). A
district court’s decision granting a motion to strike
allegations in a complaint pursuant to Rule 12(f) is reviewed
for abuse of discretion. Nurse v. United States, 226 F.3d
996, 1000 (9th Cir. 2000). Similarly, a district court’s
decision dismissing a complaint with prejudice, which
thereby denies the plaintiff an opportunity to amend her
complaint, is reviewed for abuse of discretion. Zucco
Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th
Cir. 2009). Finally, we review de novo dismissals under
Rule 12(b)(1) for lack of subject-matter jurisdiction. Novak
v. United States, 795 F.3d 1012, 1017 (9th Cir. 2015).
III. DISCUSSION
A. Theory of Fraud
The district court dismissed the FAC pursuant to Rule
9(b) because it concluded that Davidson failed to adequately
allege “why” the representation that the wipes were
flushable was false. Davidson argues that the district court
DAVIDSON V. KIMBERLY-CLARK CORP. 11
overlooked the FAC’s “numerous, detailed factual
allegations establishing that Defendants’ wipes fail to
disperse and therefore cause clogs and problems with sewer
and septic systems.” Kimberly-Clark argues that Davidson
must allege that she experienced problems with her home
plumbing or the relevant water treatment plant—allegations
that are indisputably lacking in the FAC.
Because Davidson’s common law fraud, CLRA, FAL,
and UCL causes of action are all grounded in fraud, the FAC
must satisfy the traditional plausibility standard of Rules 8(a)
and 12(b)(6), as well as the heightened pleading
requirements of Rule 9(b). Kearns, 567 F.3d at 1125 (“[W]e
have specifically ruled that Rule 9(b)’s heightened pleading
standards apply to claims for violations of the CLRA and
UCL.”); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
1103–04 (9th Cir. 2003) (explaining that even “[i]n cases
where fraud is not a necessary element of a claim, a plaintiff
may choose nonetheless to allege in the complaint that the
defendant has engaged in fraudulent conduct,” and in such
cases, Rule 9(b)’s heightened pleading requirement must be
met). “In alleging fraud . . . a party must state with
particularity the circumstances constituting fraud.” Fed. R.
Civ. P. 9(b). To properly plead fraud with particularity
under Rule 9(b), “a pleading must identify the who, what,
when, where, and how of the misconduct charged, as well as
what is false or misleading about the purportedly fraudulent
statement, and why it is false.” Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(internal quotation marks and alterations omitted); Vess,
317 F.3d at 1106 (“The plaintiff must set forth what is false
or misleading about a statement, and why it is false.”
(quoting Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th
Cir. 1994))).
12 DAVIDSON V. KIMBERLY-CLARK CORP.
Assuming the truth of the allegations and construing
them, as we must, in the light most favorable to Davidson,
Daniels-Hall, 629 F.3d at 998, we hold that the FAC
adequately alleged why the term “flushable” is false. 2
Davidson’s theory of fraud is simple: “Unlike truly flushable
products, such as toilet paper, which disperse and
disintegrate within seconds or minutes, [Kimberly-Clark’s
flushable wipes] take hours to break down” or disperse,
creating a risk that the wipes will damage plumbing systems,
septic tanks, and municipal wastewater treatment facilities.
Davidson alleged that flushable means “suitable for being
flushed,” which requires an item to be capable of dispersing
within a short amount of time. This definition of flushable
is supported by multiple allegations in the FAC, including
dictionary definitions and Kimberly-Clark’s own statement
on its website that its flushable wipes “are flushable due to
patented technology that allows them to lose strength and
break up when moving through the system after flushing.”
In contrast to truly flushable or dispersible products,
Davidson alleged, Kimberly-Clark’s flushable wipes “take
hours to begin to break down.”
2
Davidson argues that to survive Rule 12(b)(6), she need only plead
enough facts to plausibly demonstrate that a reasonable consumer may
be misled. Her observation is correct. See Williams v. Gerber Products
Co., 552 F.3d 934, 938 (9th Cir. 2008) (finding that UCL, CLRA, and
FAL claims are governed by the “reasonable consumer standard,” under
which a plaintiff need only “show that members of the public are likely
to be deceived” (internal quotation marks omitted)). The district court,
however, did not dismiss the FAC only under Rule 12(b)(6), but also
under Rule 9(b). Under Rule 9(b), Davidson was required not simply to
adequately plead that reasonable consumers are likely to be deceived by
Kimberly-Clark’s use of the designation “flushable,” but also why the
designation “flushable” is false. See Kearns, 567 F.3d at 1125.
DAVIDSON V. KIMBERLY-CLARK CORP. 13
Importantly, Davidson alleged that the actual wipes she
purchased failed to “disperse and disintegrate within seconds
or minutes.” For example, Davidson alleged that after using
the wipes, she “noticed that each individual wipe felt very
sturdy and thick, unlike toilet paper” and that “[s]he also
noticed that the wipes did not break up in the toilet bowl like
toilet paper but rather remained in one piece.” Her personal
experience is supported by additional allegations, including
Kimberly-Clark’s own testing of the wipes.
Kimberly-Clark argues that Davidson was required to
allege damage to her pipes or her sewage system because
“suitable for flushing” means that the wipes “would not
cause problems in her plumbing or at the water treatment
plant.” But Kimberly-Clark justifies this theory by taking a
single allegation in the FAC out of context. The FAC
admittedly contains many allegations about how Kimberly-
Clark’s flushable wipes and other wipes marketed as
“flushable” can cause damage to pipes and sewage systems.
But these allegations are extraneous and do not detract from
Davidson’s basic theory of fraud: that “truly flushable
products . . . disperse and disintegrate within seconds or
minutes,” and Kimberly-Clark’s flushable wipes do not
“disperse and disintegrate within seconds or minutes.” Since
“[d]ismissal is proper only where there is no cognizable legal
theory or an absence of sufficient facts alleged to support a
cognizable legal theory,” Navarro v. Block, 250 F.3d 729,
732 (9th Cir. 2001), and since Davidson alleged a cognizable
legal theory, dismissal was not appropriate in this case. See
Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir. 1987)
(“[A] pleading satisfies the particularity requirement [of
Rule 9(b)] if it identifies the circumstances constituting fraud
so that the defendant can prepare an adequate answer from
the allegations.” (internal quotation marks omitted)).
14 DAVIDSON V. KIMBERLY-CLARK CORP.
For these reasons, we hold that the FAC adequately
alleged that Kimberly-Clark’s use of the word “flushable”
was false because the Scott Wipes Davidson purchased did
not disperse as a truly flushable product would have.
B. Harm
The district court also dismissed Davidson’s FAC in part
because Davidson had not alleged that she suffered any
damages. When Davidson questioned this conclusion in her
motion for reconsideration, the district court clarified that
Davidson “had not pled facts showing that her use of the
wipes damaged her plumping, pipes, or septic system.”
However, Davidson 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 is sufficient harm to maintain a cause of action. See,
e.g., Cal. Bus. & Prof. Code § 17203 (requiring that an
individual plead that she lost “money or property” because
of the alleged deceptive conduct); Cal. Civ. Code § 1780(a)
(stating that a plaintiff asserting a cause of action under the
CLRA need only plead that she suffered “any damage”);
Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1104 (9th Cir. 2013)
(“The lost money or property requirement therefore requires
a plaintiff to demonstrate some form of economic injury as
a result of his transactions with the defendant.” (internal
quotation marks omitted)). Thus, a consumer’s allegation
that “she would not have bought the product but for the
misrepresentation . . . is sufficient to allege causation . . .
[and] to allege economic injury.” Kwikset Corp. v. Superior
Court, 246 P.3d 877, 890 (Cal. 2011).
To properly plead an economic injury, a consumer must
allege that she was exposed to false information about the
product purchased, which caused the product to be sold at a
DAVIDSON V. KIMBERLY-CLARK CORP. 15
higher price, and that she “would not have purchased the
goods in question absent this misrepresentation.” Hinojos,
718 F.3d at 1105. Davidson did that here. Davidson alleged
that “[h]ad [Kimberly-Clark] not misrepresented (by
omission and commission) the true nature of their Flushable
Wipes, [she] would not have purchased [Kimberly-Clark’s]
product or, at a very minimum, she would have paid less for
the product,” and that “[Kimberly-Clark] charge[d] a
premium price for flushable wipes.” Because Davidson only
needed to allege an economic injury to state a claim for
relief, and because Davidson alleges that she paid a premium
price for the Scott Wipes, Davidson has properly alleged that
she was injured by Kimberly-Clark’s allegedly false
advertising.
C. Dismissal of the Original Complaint
The district court stated in its order dismissing the
original complaint that “plaintiff has not alleged facts
showing how she came to believe that the [Scott Wipes]
were not flushable.” Davidson argues that this requirement
“does not exist in law.” According to Kimberly-Clark, the
statement simply reflected the district court’s observation
that Davidson had not alleged facts about her own
experience.
Davidson was required to “identify the who, what, when,
where, and how of the misconduct charged, as well as what
is false or misleading about the purportedly fraudulent
statement, and why it is false.” Cafasso, 637 F.3d at 1055(internal quotation marks and alterations omitted). To the
extent the district court dismissed the original complaint
because Davidson failed to allege facts “showing how she
came to believe that the [Scott Wipes] were not ‘flushable,’”
the district court erred. We are aware of no authority that
specifically requires a plaintiff bringing a consumer fraud
16 DAVIDSON V. KIMBERLY-CLARK CORP.
claim to allege how she “came to believe” that the product
was misrepresented when, as in this case, all the Rule 9(b)
considerations have been met.
D. Article III Standing for Injunctive Relief
Finally, we address the most challenging issue in this
case: whether Davidson has standing to seek injunctive
relief. 3 The district court concluded that Davidson lacked
standing to assert a claim for injunctive relief, because
Davidson “has no intention of purchasing the same
Kimberly-Clark product in the future.” Davidson argues that
she has alleged a cognizable injury that establishes Article
III standing to seek injunctive relief because (1) she will be
unable to rely on the label “flushable” when deciding in the
future whether to purchase Kimberly-Clark’s wipes, and
(2) Kimberly-Clark’s false advertising threatens to invade
her statutory right, created by the UCL, CLRA, and FAL, to
receive truthful information from Kimberly-Clark about its
wipes. We hold that Davidson properly alleged that she
faces a threat of imminent or actual harm by not being able
to rely on Kimberly-Clark’s labels in the future, and that this
harm is sufficient to confer standing to seek injunctive relief.
We therefore do not reach Davidson’s alternative statutory
standing argument.
Article III of the U.S. Constitution authorizes the
judiciary to adjudicate only “cases” and “controversies.”
The doctrine of standing is “an essential and unchanging part
3
We do not address the district court’s order granting the motion to
strike allegations in the original complaint, as that complaint was
replaced by the FAC, and we conclude that the FAC is sufficient as is to
survive the heightened pleading requirements of Rule 9(b). Similarly,
we do not address the district court’s order denying leave to amend the
FAC, as we conclude that the FAC is adequate as it stands.
DAVIDSON V. KIMBERLY-CLARK CORP. 17
of the case-or-controversy requirement of Article III.” Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The three
well-known “irreducible constitutional minim[a] of
standing” are injury-in-fact, causation, and redressability.
Id. at 560–61. A plaintiff bears the burden of demonstrating
that her injury-in-fact is “concrete, particularized, and actual
or imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.” Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 149 (2010).
A plaintiff must demonstrate constitutional standing
separately for each form of relief requested. Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S.
167, 185 (2000). For injunctive relief, which is a prospective
remedy, the threat of injury must be “actual and imminent,
not conjectural or hypothetical.” Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009). In other words, the
“threatened injury must be certainly impending to constitute
injury in fact” and “allegations of possible future injury are
not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013) (internal quotation marks and alteration omitted).
Past wrongs, though insufficient by themselves to grant
standing, are “evidence bearing on whether there is a real
and immediate threat of repeated injury.” City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal
quotation marks omitted). Where standing is premised
entirely on the threat of repeated injury, a plaintiff must
show “a sufficient likelihood that he will again be wronged
in a similar way.” Id. at 111. In determining whether an
injury is similar, we “must be careful not to employ too
narrow or technical an approach. Rather, we must examine
the questions realistically: we must reject the temptation to
parse too finely, and consider instead the context of the
inquiry.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir.
18 DAVIDSON V. KIMBERLY-CLARK CORP.
2001), abrogated on other grounds by Johnson v. California,
543 U.S. 499 (2005).
It is an open question in this circuit to what extent a
previously deceived consumer who brings a false advertising
claim can allege that her inability to rely on the advertising
in the future is an injury sufficient to grant her Article III
standing to seek injunctive relief. With no guidance from
our court, district courts applying California law have split
dramatically on this issue. See Pinon v. Tristar Prods., Inc.,
No. 1:16-cv-00331-DAD-SAB, 2016 WL 4548766, at *4
(E.D. Cal. Sept. 1, 2016) (“The Ninth Circuit has not
addressed the specific question . . . [and] district courts
within this circuit are divided about whether a plaintiff
seeking to bring injunctive relief claims over deceptive
labeling can establish Article III standing once they are
already aware of an alleged misrepresentation.”); see also
Russell v. Kohl’s Dep’t Stores, Inc., No. ED CV 15-1143
RGK (SPx), 2015 WL 12781206, at *5 (C.D. Cal. Oct. 6,
2015) (describing the “split among the district courts in the
Ninth Circuit as to whether a plaintiff lacks Article III
standing to seek injunctive relief under the UCL and FAL
when the plaintiff has knowledge of the defendant’s alleged
misconduct”).
Courts concluding that such a plaintiff lacks standing to
seek injunctive relief generally reason that “plaintiffs who
are already aware of the deceptive nature of an
advertisement are not likely to be misled into buying the
relevant product in the future and, therefore, are not capable
of being harmed again in the same way.” Pinon, 2016 WL
4548766 at *4. For example, in Machlan v. Procter &
Gamble Company, the plaintiff alleged that the defendant
deceptively marketed its wipes as flushable, even though the
wipes did not disperse like toilet paper and clogged pipes and
DAVIDSON V. KIMBERLY-CLARK CORP. 19
sewage systems—facts nearly identical to those here. 77 F.
Supp. 3d 954, 957 (N.D. Cal. 2015). The district court in
Machlan concluded that the plaintiff lacked Article III
standing for injunctive relief because the plaintiff had
alleged that the use of the term “flushable” was deceptive,
so the plaintiff could not be deceived again, even if he
purchased the same wipes in the future. Id. at 960 (“[W]hen
the alleged unfair practice is deception, the previously-
deceived-but-now-enlightened plaintiff simply does not
have standing under Article III to ask a federal court to grant
an injunction.”). 4 Multiple district courts have held
similarly. See Pinon, 2016 WL 4548766 at *4 (collecting
cases).
Other district courts in this circuit have concluded that a
plaintiff has standing to seek an injunction against a
product’s misleading representation, even though the
plaintiff already knows or has reason to believe that the
representation is false. See id. (collecting cases). These
courts generally reason that the plaintiff faces an actual and
imminent threat of future injury because the plaintiff may be
unable to rely on the defendant’s representations in the
4
Interestingly, the Machlan court remanded the portions of the
plaintiff’s claims that sought injunctive relief, and then proceeded in
federal court on some of the claims seeking monetary damages. Id. at
960–62, 964–65. The court reasoned that injunctive relief is an
important remedy in California’s consumer protection statutes and that
allowing a defendant to undermine those statutes through removal to
federal court “is an unnecessary affront to federal and state comity.” Id.
at 961. Here, Davidson similarly argues that the district court erred by
denying her request to remand the injunctive relief “claim” to state court.
Because we conclude that Davidson’s alleged future injury justifies
Article III standing for injunctive relief, we need not reach this issue.
20 DAVIDSON V. KIMBERLY-CLARK CORP.
future, or because the plaintiff may again purchase the
mislabeled product.
For example, in Ries v. Arizona Beverages USA LLC, the
plaintiffs alleged that the defendants engaged in false
advertising by marketing their “AriZona Iced Tea”
beverages as “All Natural” and “100% Natural” even though
the product contained the non-natural ingredients high
fructose corn syrup and citric acid. 287 F.R.D. 523, 527
(N.D. Cal. 2012). The defendants argued that the plaintiffs
were not threatened by future harm because the plaintiffs
became aware of the contents of the drink and could no
longer be deceived. Id. at 533. The district court rejected
this argument, reasoning that “[s]hould plaintiffs encounter
the denomination ‘All Natural’ on an AriZona beverage at
the grocery store today, they could not rely on that
representation with any confidence.” Id. The district court
in Ries also explained that “the record is devoid of any
grounds to discount plaintiffs’ stated intent to purchase [the
product] in the future.” Id.; see also Weidenhamer v.
Expedia, Inc., No. C14-1239RAJ, 2015 WL 1292978, at *5
(W.D. Wash. Mar. 23, 2015) (explaining that the plaintiff “is
entitled to rely on the statements made in [the] ad, even if he
previously learned that some of those statements were false
or deceptive,” and that the plaintiff had adequately alleged
that he likely would continue to be an Expedia customer);
Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 194–
95 (D.D.C. 2013) (finding that “the named plaintiffs,
knowledgeable about the misrepresentations, are likely to
suffer future harm in the absence of an injunction,” because
they will be unable “to rely on the [misleading] label with
any confidence” and “will have no way of knowing” whether
defendants “boost[ed] the label’s veracity”).
DAVIDSON V. KIMBERLY-CLARK CORP. 21
Today, we resolve this district court split in favor of
plaintiffs seeking injunctive relief. We hold that a
previously deceived consumer may have standing to seek an
injunction against false advertising or labeling, even though
the consumer now knows or suspects that the advertising
was false at the time of the original purchase, because the
consumer may suffer an “actual and imminent, not
conjectural or hypothetical” threat of future harm. Summers,
555 U.S. at 493. Knowledge that the advertisement or label
was false in the past does not equate to knowledge that it will
remain false in the future. In some cases, the threat of future
harm may be the consumer’s plausible allegations that she
will be unable to rely on the product’s advertising or labeling
in the future, and so will not purchase the product although
she would like to. See, e.g., Ries, 287 F.R.D. at 533; Lilly v.
Jamba Juice Co., No. 13-cv-02998-JT, 2015 WL 1248027,
at *4 (N.D. Cal. Mar. 18, 2015) (“[U]nless the manufacturer
or seller has been enjoined from making the same
representation, [the] consumer . . . won’t know whether it
makes sense to spend her money on the product.”). In other
cases, the threat of future harm may be the consumer’s
plausible allegations that she might purchase the product in
the future, despite the fact it was once marred by false
advertising or labeling, as she may reasonably, but
incorrectly, assume the product was improved. See, e.g.,
L’Oreal, 991 F. Supp. 2d at 194–95. Either way, we share
one district court’s sentiment that we are “not persuaded that
injunctive relief is never available for a consumer who learns
after purchasing a product that the label is false.” Duran v.
Creek, 2016 WL 1191685, at *7 (N.D. Cal. Mar. 28, 2016)
(emphasis added).
We observe—although our conclusion is not based on
this consideration—that our holding alleviates the anomalies
the opposite conclusion would create. As the Machlan court
22 DAVIDSON V. KIMBERLY-CLARK CORP.
aptly recognized, “[a]llowing a defendant to undermine
California’s consumer protection statutes and defeat
injunctive relief simply by removing a case from state court
is an unnecessary affront to federal and state comity [and]
. . . an unwarranted federal intrusion into California’s
interests and laws.” 77 F. Supp. 3d at 961; see also
Henderson v. Gruma Corp., 2011 WL 1362188, at *8 (C.D.
Cal. Apr. 11, 2011) (“[T]o prevent [plaintiffs] from bringing
suit on behalf of a class in federal court would surely thwart
the objective of California’s consumer protection laws.”).
This is because “the primary form of relief available under
the UCL to protect consumers from unfair business practices
is an injunction,” In re Tobacco II, 207 P.3d 20, 34 (Cal.
2009)—a principle that the California Supreme Court
recently reaffirmed. See McGill v. Citibank, N.A., 393 P.3d
85, 90, 93 (Cal. 2017) (explaining that “public injunctive
relief under the UCL, the CLRA, and the false advertising
law is relief that has the primary purpose and effect of
prohibiting unlawful acts that threaten future injury to the
general public,” and that “public injunctive relief remains a
remedy to private plaintiffs” under the UCL, FAL, and
CLRA (internal quotation marks omitted)).
Were injunctive relief unavailable to a consumer who
learns after purchasing a product that the product’s label is
false, California’s consumer protection laws would be
effectively gutted, as defendants could remove any such
case. Machlan, 77 F. Supp. 3d at 961. As the district court
in Machlan explained, by finding that these plaintiffs fail to
allege Article III standing for injunctive relief, we risk
creating a “perpetual loop” of plaintiffs filing their state law
consumer protection claims in California state court,
defendants removing the case to federal court, and the
federal court dismissing the injunctive relief claims for
failure to meet Article III’s standing requirements. Id. On
DAVIDSON V. KIMBERLY-CLARK CORP. 23
our Article III standing analysis, fully supported for the
reasons we have explained by established standing
principles, this “perpetual loop” will not occur.
Since we hold that a previously deceived plaintiff may
have standing to seek injunctive relief, we must turn our
attention to whether Davidson adequately alleged that she
faces an imminent or actual threat of future harm caused by
Kimberly-Clark’s allegedly false advertising. Davidson
alleged that she “continues to desire to purchase wipes that
are suitable for disposal in a household toilet”; “would
purchase truly flushable wipes manufactured by [Kimberly-
Clark] if it were possible”; “regularly visits stores . . . where
[Kimberly-Clark’s] ‘flushable’ wipes are sold”; and is
continually presented with Kimberly-Clark’s flushable
wipes packaging but has “no way of determining whether the
representation ‘flushable’ is in fact true.”
We are required at this stage of the proceedings to
presume the truth of Davidson’s allegations and to construe
all of the allegations in her favor. Daniels-Hall, 629 F.3d at
998. Though we recognize it is a close question, based on
the FAC’s allegations, we hold that Davidson adequately
alleged that she faces an imminent or actual threat of future
harm due to Kimberly-Clark’s false advertising. Davidson
has alleged that she desires to purchase Kimberly-Clark’s
flushable wipes. Her desire is based on her belief that “it
would be easier and more sanitary to flush the wipes than to
dispose of them in the garbage.” As in Ries, the FAC is
“devoid of any grounds to discount [Davidson’s] stated
intent to purchase [the wipes] in the future.” 287 F.R.D. at
533. And “[s]hould [Davidson] encounter the denomination
[‘flushable’] on a [Kimberly-Clark wipes package] at the
grocery store today, [she] could not rely on that
representation with any confidence.” Id. We therefore hold
24 DAVIDSON V. KIMBERLY-CLARK CORP.
that Davidson’s allegation that she has “no way of
determining whether the representation ‘flushable’ is in fact
true” when she “regularly visits stores . . . where
Defendants’ ‘flushable’ wipes are sold” constitutes a
“threatened injury [that is] certainly impending,” thereby
establishing Article III standing to assert a claim for
injunctive relief. See Clapper, 568 U.S. at 409.
IV. CONCLUSION
We hold that the FAC adequately alleges that Kimberly-
Clark’s use of the word “flushable” was false because the
Scott Wipes that Davidson purchased did not adequately
disperse as a truly flushable product would have. The
district court erred in concluding that Davidson failed to
allege harm and how she came to believe the wipes were not
flushable. Finally, because Davidson’s allegations
sufficiently identified a certainly impending risk of her being
subjected to Kimberly-Clark’s allegedly false advertising,
Davidson had standing to pursue injunctive relief. We
therefore REVERSE and REMAND.
BERZON, Circuit Judge, concurring:
I concur in the majority opinion with the following
caveat:
As to prospective relief, the majority opinion rests on the
proposition that we are required to perform a separate
standing analysis for each “form of relief,” and concludes
that Davidson’s claims for restitution and for an injunction
each qualify as having established standing. There is case
law supporting both points, as the opinion states.
DAVIDSON V. KIMBERLY-CLARK CORP. 25
I write separately to note that duplicating the standing
analysis in this way does not give effect to the “case or
controversy” requirement of Article III. Instead, it appears
to be an artifact of the discredited practice of conflating the
prerequisites for injunctive relief with the Article III
prerequisites for entry into federal court. Although we held
in Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1
(9th Cir. 1999) (en banc), overruling earlier precedents, 1 that
City of Los Angeles v. Lyons, 461 U.S. 95 (1983), requires
this result, in my view it does not.
Davidson seeks restitution for the premium she paid for
a falsely labeled product, and no one doubts that she has
standing in federal court to do so. Under California law, if
Davidson prevails on her false advertising claim and is
entitled to restitution, she is equally entitled to an injunction.
See Cal. Bus. & Prof. Code §§ 17202–03; see also Kwikset
Corp. v. Superior Court, 246 P.3d 877, 894–95 (Cal. 2011).
No additional showing, equitable or otherwise, is needed to
trigger her right to injunctive relief. It follows that we have
a single dispute—a single case, a single controversy—giving
rise to multiple forms of relief.
It is mechanically possible, in this case, to define
Davidson’s “case or controversy” differently, and to assign
the requirements of injury, causation, and redressability
1
See Smith v. City of Fontana, 818 F.2d 1411, 1423 (9th Cir. 1987)
(holding that a damages claim satisfies Article III standing with respect
to other forms of relief “involv[ing] the same operative facts and legal
theory”); Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir. 1984) (treating
the presence of a related damages claim as satisfying Article III standing,
thereby allowing the court to consider “whether relief in addition to
damages is appropriate”); Gonzales v. City of Peoria, 722 F.2d 468, 481
(9th Cir. 1983) (concluding that the presence of a damages claim
“present[ed] a case in controversy as to injunctive relief”).
26 DAVIDSON V. KIMBERLY-CLARK CORP.
separately to each remedy she seeks. But it turns Article III
on its head to let the remedies drive the analysis, where state
law clearly envisions those remedies as the product of a
single adjudication of a single issue. See Korea Supply Co.
v. Lockheed Martin Corp., 63 P.3d 937, 943 (Cal. 2003).
And proceeding in that way fundamentally undermines,
substantively, the enforcement of state laws in federal court.
Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)
(“Congress has no power to declare substantive rules of
common law applicable in a state . . . . And no clause in the
Constitution purports to confer such a power upon the
federal courts.”).
It was in recognition of this anomaly that the district
court in Machlan v. Procter & Gamble Co. remanded only
the prospective relief aspect of that similar false advertising
case to state court. 77 F. Supp. 3d 954, 960–61 (N.D. Cal.
2015). I doubt that is an acceptable option. But the impetus
to do that springs from the same problem I have identified—
that a defendant should not be able to strip a plaintiff of
remedies dictated by state law by removing to federal court
a case over which there surely is Article III jurisdiction over
the liability issues. Cf. Larson v. Valente, 456 U.S. 228,
238–39 (1983) (“The essence of the standing inquiry is
whether the parties seeking to invoke the court’s jurisdiction
have alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues . . . .” (internal quotation
marks omitted)).
Federal courts have a history of improperly elevating the
prerequisites for relief to the status of jurisdictional hurdles.
See Lexmark Int’l, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377, 1387–88 & n.4 (2014). Notably, although
Lyons is now widely credited as the origin of the rule that
DAVIDSON V. KIMBERLY-CLARK CORP. 27
injunctive relief always requires its own standing inquiry,
see, e.g., Hodgers-Durgin, 199 F.3d at 1040 n.1, that case,
as I read it, did not make that jurisdiction/remedy mistake.
Rather, after determining that there was no independent
standing to seek injunctive relief, Lyons separately noted that
there was also a pending request for damages. Lyons,
461 U.S. at 111. The Court then inquired into whether the
nonjurisdictional requirements for equitable prospective
relief were met, and concluded they were not. Id. at 111–12.
In my view, this aspect of Lyons recognized that there was a
case or controversy regarding liability issues because of the
damages claim, but precluded injunctive relief on
nonjurisdictional grounds specific to the equitable
requirements for such relief—the absence of irreparable
harm. Id. Were this not what Lyons meant, the entire
discussion of the equitable principles governing prospective
relief would have been superfluous.
Conflating the elements of relief with the elements of
standing is of little consequence in most cases following
Lyons. Where the availability of injunctive relief is
governed by federal common law, the common-law
prerequisites for injunctive relief must eventually be
satisfied, and largely mirror the standing prerequisites. See
also, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 184–88 (2000) (conducting a
separate standing analysis of civil penalties, but concluding
that deterrence of ongoing harm suffices for constitutional
standing). But collapsing the inquiries becomes problematic
when it imposes substantive limits on the availability of
relief under state law, in the service of constitutional
interests that aren’t actually under threat.
I nonetheless concur fully in the majority opinion.
Hodgers-Durgin is binding law, and it does require a
28 DAVIDSON V. KIMBERLY-CLARK CORP.
separate standing analysis with regard to prospective relief.
As the majority opinion well explains, as long as a separate
standing analysis is necessary despite the state prescription
of more or less automatic prospective relief, that requirement
is met here.