Jeff Jonah v. Kimberly-Clark Corporation et al

Northern District of California, cand-4:2015-cv-03243

AMENDED COMPLAINT (First Amended Complaint) against All Defendants. Filed by Jeff Jonah.

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Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page1 of 38 1 GUTRIDE SAFIER LLP ADAM J. GUTRIDE (State Bar No. 181446) 2 SETH A. SAFIER (State Bar No. 197427) MARIE MCCRARY (State Bar No. 262670) 3 KRISTEN G. SIMPLICIO (State Bar No. 263291) 4 100 Pine Street, Suite 1250 San Francisco, California 94111 5 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 6 7 TYCKO & ZAVAREEI LLP LORENZO B. CELLINI 8 2000 L Street, N.W., Suite 808 Washington, DC 20036 9 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 10 11 SPANGENBERG SHIBLEY & LIBER LLP STUART E. SCOTT 12 DANIEL FRECH 1001 Lakeside Avenue East, Suite 1700 13 Cleveland, OH 44114 Telephone: (216) 696-3232 14 Facsimile: (216) 696-3924 15 Attorneys for Plaintiff 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 COUNTY OF SAN MATEO 18 19 JEFF JONAH, an individual, on behalf of CASE NO. himself, the general public and those similarly 20 situated, UNLIMITED CIVIL CASE 21 Plaintiff, CLASS ACTION COMPLAINT FOR VIOLATION OF THE CALIFORNIA 22 v. CONSUMERS LEGAL REMEDIES 23 ACT; FALSE ADVERTISING; FRAUD, KIMBERLY-CLARK CORPORATION; DECEIT, AND/OR 24 KIMBERLY-CLARK WORLDWIDE, INC.; and MISREPRESENTATION; NEGLIGENT KIMBERLY-CLARK GLOBAL SALES LLC, MISREPRESENTATION; AND UNFAIR 25 AND DOES 1 THROUGH 50, BUSINESS PRACTICES 26 Defendants. JURY TRIAL DEMANDED 27 28-1-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page2 of 38 1 Jeff Jonah, by and through his counsel, brings this Class Action Complaint against 2 Defendants Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., Kimberly-Clark 3 Global Sales, LLC and Does 1 through 50, inclusive, on behalf of himself and those similarly 4 situated, for violations of the Consumer Legal Remedies Act, false advertising, unfair trade 5 practices, and fraud, deceit and/or misrepresentation, and negligent misrepresentation. 6 INTRODUCTION 7 1. Defendants deceptively market personal hygiene moistened wipes as "flushable." 8 They charge a premium for these wipes, as compared to both toilet paper and moistened wipes 9 that are not marketed as "flushable." Despite the label, however, the wipes are not actually 10 suitable for flushing down a toilet. Specifically, Defendants’ wipes do not disperse, i.e., break 11 apart, upon flushing. Instead, the wipes, when flushed as part of ordinary, consumer use, routinely 12 (1) clog and damage plumbing pipes; (2) fail to properly break down in septic tanks; (3) damage 13 septic pumps; (4) catch on screens in municipal sewage lines and must be removed from the 14 sewer system for disposal in landfills; and (5) damage municipal sewage lines and pumps, often 15 due to the proclivity of the wipes to tangle with each other, tree branches, rocks, and other non-16 flushable items, and form large masses or ropes. Moreover, because the wipes are capable of 17 causing damage to municipal sewer systems, the mere act of flushing them is a violation of 18 Section 305.1 of the California Plumbing Code, which prohibits flushing "any other thing 19 whatsoever that is capable of causing damage to the drainage system or public sewer." 20 Reasonable consumers would not pay a premium to obtain the benefits of a "flushable" wipe if 21 Defendants disclosed the risks of flushing the wipes and that flushing the wipes are in fact illegal. 22 2. Throughout the class period, Defendants have obtained substantial profits from 23 these deceptive sales of moistened wipes marketed as flushable. This action seeks to require 24 Defendants to pay restitution and damages to purchasers of the flushable wipes, to remove the 25 word "flushable" from the product packaging and marketing, and to affirmatively inform 26 purchasers that the wipes are not suitable for flushing down a toilet. 27 PARTIES 28 3. Jeff Jonah ("Plaintiff") is, and at all times alleged in this Class Action Complaint-1-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page3 of 38 1 was, an individual and a resident of San Carlos, California. 2 4. Defendant Kimberly-Clark Corporation is a corporation incorporated under the 3 laws of the Delaware, having its principal place of business in Neenah, Wisconsin. 4 5. Defendant Kimberly-Clark Worldwide, Inc. is a corporation incorporated under 5 the laws of the Delaware, having principal places of business in Irving, Texas and Neenah, 6 Wisconsin. 7 6. Defendant Kimberly-Clark Global Sales, LLC is a corporation incorporated under 8 the laws of the Delaware, having its principal place of business in Irving, Texas. 9 7. The true names and capacities of Defendants sued as Does 1 through 50, inclusive, 10 are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names pursuant to 11 section 474 of the California Code of Civil Procedure. Plaintiff will seek leave of Court to amend 12 this Class Action Complaint when said true names and capacities have been ascertained. 13 8. The Parties identified in paragraphs 4-7 of this Class Action Complaint are 14 collectively referred to hereafter as "Defendants" or "Kimberly-Clark." 15 9. At all times herein mentioned, each of the Defendants was the agent, servant, 16 representative, officer, director, partner or employee of the other Defendants and, in doing the 17 things herein alleged, was acting within the scope and course of his/her/its authority as such 18 agent, servant, representative, officer, director, partner or employee, and with the permission and 19 consent of each Defendant. 20 10. At all times herein mentioned, each of the Defendants was a member of, and 21 engaged in, a joint venture, partnership and common enterprise, and acting within the course and 22 scope of, and in pursuance of, said joint venture, partnership and common enterprise. 23 11. At all times herein mentioned, the acts and omissions of each of the Defendants 24 concurred and contributed to the various acts and omissions of each and all of the other 25 Defendants in proximately causing the injuries and damages as herein alleged. 26 12. At all times herein mentioned, each of the Defendants ratified each and every act 27 or omission complained of herein. 28 13. At all times herein mentioned, each of the Defendants aided and abetted the acts-2-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page4 of 38 1 and omissions of each and all of the other Defendants in proximately causing the damages, and 2 other injuries, as herein alleged. 3 JURISDICTION AND VENUE 4 14. This action is brought by Plaintiff pursuant, inter alia, to the California Business 5 and Professions Code, section 17200, et seq. Plaintiff and Defendants are "persons" within the 6 meaning of the California Business and Professions Code, section 17201. 7 15. The injuries, damages and/or harm upon which this action is based occurred in or 8 arose out of activities engaged in by Defendants within, affecting, and emanating from, the State 9 of California. 10 16. Defendants have engaged, and continue to engage, in substantial and continuous 11 business practices in the State of California, including in San Mateo County. 12 17. In accordance with California Civil Code Section 1780(d), Plaintiff has filed a 13 declaration establishing that, during the class period, he purchased at least one Kimberly-Clark 14 product in San Mateo County. 15 18. Plaintiff accordingly alleges that jurisdiction and venue are proper in this Court. 16 SUBSTANTIVE ALLEGATIONS 17 (1) Defendants Deceptively Market and Sell "Flushable" Wipes 18 19. Defendants are manufacturers and marketers of consumer goods, including a 19 variety of paper products, such as toilet paper, paper towels, feminine hygiene products, diapers, 20 and baby wipes. Its products are widely available for purchase in supermarkets, drug stores, and 21 other retailers. 22 20. Among Defendants’ products are pre-moistened cloths, known as wet wipes, 23 wipes, or moist towelettes, that can be used for personal hygiene, child care needs, pet care, or 24 cleaning. This case focuses on four such pre-moistened cloths manufactured and marketed by 25 Kimberly-Clark. These products are: 26 a. Kleenex® Cottonelle® Fresh Care Flushable Wipes & Cleansing Cloths 27 ("Cottonelle Wipes") 28 b. Scott Naturals® Flushable Moist Wipes ("Scott Wipes")-3-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page5 of 38 1 c. Huggies® Pull-Ups® Flushable Moist Wipes ("Huggies Wipes") 2 d. U by Kotex® Refresh flushable wipes ("Kotex Wipes") 3 21. In this Complaint, these products will be collectively referred to as the "Flushable 4 Wipes." 5 22. Throughout the class period, all packages of the Flushable Wipes state that the 6 wipes are "flushable," despite the fact that the Flushable Wipes have never been and continue not 7 to be suitable for flushing. 8 23. Defendants advertise that their Flushable Wipes are "flushable" in a substantially 9 identical manner. In addition, although Defendants’ Flushable Wipes are marketed under 10 different brand names, the underlying products are the same with regard to the materials and 11 design characteristics that Defendants claim allow the products to be labeled as "flushable." 12 24. On the front of the Cottonelle Wipes package, Defendants advertise the product as 13 "FLUSHABLE MOIST WIPES" or as "flushable cleansing cloths." 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-4-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page6 of 38 1 25. One of the packages further represents that the wipes are "SEWER AND SEPTIC 2 SAFE.*" No disclaimer appears to be associated with the asterisk. On the back of the package, 3 Defendants represent that "Cottonelle Fresh Care Flushable Cleansing Cloths break up after 4 flushing." On the backs of some packages of the Cottonelle Wipes, Defendants further state, "For 5 best results, flush only one or two cloths at a time," but this warning does not appear on all 6 packages, such as the smaller, travel size package of wipes. 7 26. On the website for the Cottonelle Wipes, Defendants inform consumers that the 8 "flushable wipes use a patented dispersible technology, which means that when used as directed 9 they break up after flushing and clear properly maintained toilets, drainlines, sewers, pumps, and 10 septic and municipal treatment systems." See https://www.cottonelle.com/products/cottonelle-11 fresh-care-flushable-moist-wipes#faqs (last accessed Feb. 6, 2014). The website goes on to claim 12 that the Cottonelle Wipes are "Flushable," "Break up after flushing," and are "Sewer-and septic-13 safe." Id. 14 27. On the front of the Scott Wipes package, Defendants similarly advertise the 15 product as "Flushable Cleansing Cloths" and represent that each of the wipes "breaks up after 16 flushing." 17 18 19 20 21 22 23 24 25 26 28. On the back of the package, Defendants go on to state that "Scott Naturals* 27 Flushable Cleansing Cloths break up after flushing and are sewer and septic system safe. For best 28 results, flush only one or two cleansing cloths at a time." No disclaimer appears to be associated-5-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page7 of 38 1 with the asterisk. The back of the package also states that the "flushable" cloths are "Septic Safe" 2 and that each wipe "Breaks up after flushing." 3 29. On the front of the Huggies Wipes package, Defendants similarly describe the 4 product as "flushable moist wipes." 5 6 7 8 9 10 11 12 13 14 15 30. On the back, Defendants represent that the wipes are "Septic Safe" and that each 16 "Breaks up after flushing," and only advise "For best results, flush only one or two wipes at a 17 time." On the website for the Huggies Wipes, Defendants claim the wipes are "sewer and septic 18 safe and break up after flushing." See http://www.pull-ups.com/products (last accessed Sept. 5, 19 2014). 20 31. On the front of the Kotex Wipes package, Defendants likewise represent that the 21 product is "flushable." 22 23 24 25 26 27 28-6-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page8 of 38 1 2 Defendants provide little additional information on the back, only reiterating that the product is 3 "Flushable!" 4 32. Nowhere on any of the packages for any of the brands of Flushable Wipes do 5 Defendants disclose that the wipes: (i) are not suitable for disposal by flushing down a toilet; 6 (ii) are not regarded as flushable by municipal sewage system operators; (iii) do not disperse, i.e. 7 break apart, in the sewer system like toilet paper; and (iii) after they are flushed, they routinely 8 clog and damage plumbing pipes, fail to properly break down in septic tanks, damage septic 9 pumps, catch on screens in municipal sewage lines and must be removed from the sewer system 10 for disposal in landfills, and damage municipal sewage lines and pumps, often due to the 11 proclivity of the wipes to tangle with each other, tree branches, rocks, and other non-flushable 12 items, and form large masses or ropes. 13 33. Defendants intend for consumers to understand that the Flushable Wipes are a 14 flushable product, i.e., one that is specially designed to be suitable to flush in all instances, and 15 have consistently marketed the product in that manner throughout the class period. For example, 16 in marketing the Flushable Wipes, Defendants have never advised consumers that the wipes may 17 not be suitable for flushing in certain toilets, plumbing systems, and/or municipal wastewater 18 systems. In other words, Defendants sell the product as one that is specially designed to be 19 suitable to flush by consumers in any home in any location, and not as a product intended to work 20 only as promised under unique and specified circumstances. 21 34. While at times, Defendants have printed in small font a disclaimer advising 22 consumers that "for best results", they should flush only one or two wipes at a time, this 23 disclaimer has never appeared on the front of the package, nor has it ever appeared in 24 conspicuous location on the package. Rather, when this disclaimer appears on the packaging, 25 Defendants place it on the back of the package, where consumers are unlikely to view it. 26 Moreover, even when flushed in that manner – one or two at at time – the Flushable Wipes are 27 not flushable, as they will damage or clog pipes, septic systems, and sewage lines and pumps, and 28 do not disperse like toilet paper.-7-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page9 of 38 1 35. Defendants’ misrepresentations appear in all their advertising. For example, on the 2 website for the Cottonelle Wipes, Defendants inform consumers that the "Cottonelle® Flushable 3 Cleansing Cloths are flushable due to patented technology that allows them to lose strength and 4 break up when moving through the system after flushing." See 5 https://www.cottonelle.com/products/cottonelle-fresh-care-flushable-moist-wipes#faqs (last 6 accessed May 1, 2015). The website goes on to claim that the Cottonelle Wipes are "Flushable," 7 "Break up after flushing," and are "Sewer-and septic-safe." Id. Nowhere on the website do 8 Defendants disclose that the wipes are not suitable for disposal by flushing down a toilet, are not 9 regarded as flushable by municipal sewage system operators, do not disperse upon flushing, and 10 that they routinely damage or clog plumbing pipes, septic systems, and sewage lines and pumps. 11 36. In marketing the Flushable Wipes to consumers as a product to use as part of a 12 bathroom routine, Defendants know that consumers will be more likely to purchase the product in 13 addition to, or instead of, toilet paper if they believe the product is suitable for flushing down a 14 toilet. Thus, for the Flushable Wipes, Defendants intend for consumers to rely on the 15 representation that the product is "Flushable." Defendants further intend for consumers to rely on 16 the omissions that the Flushable Wipes are not suitable for disposal by flushing down a toilet, and 17 that the wipes are: (i) not regarded as flushable by municipal sewage system operators; (ii) do not 18 disperse like toilet paper; and (iii) after they are flushed, they routinely clog and damage 19 plumbing pipes, septic pumps, catch on screens in municipal sewage lines and must be removed 20 from the sewer system for disposal in landfills, and clog and damage municipal sewage lines and 21 pumps. 22 37. Consumers rely on Defendants’ representations because they reasonably assume 23 that a product labeled "flushable" disperses quickly like toilet paper, will not damage plumbing, 24 and are safe for sewer and septic systems. Because consumers reasonably believe the wipes are 25 suitable for flushing down a toilet, and therefore pose no greater risk to their plumbing and/or 26 sewer and septic systems than does toilet paper, they are willing to purchase them for that 27 convenience. As such, Defendants are able to charge a premium for the Flushable Wipes. For 28 example, on Amazon.com, a 42-count package of Cottonelle Wipes retails for $6.27, or 14.9-8-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page10 of 38 1 cents per wipe. See http://www.amazon.com/Cottonelle-Fresh-Flushable-Moist-2 Wipes/dp/B0000AN9KS/ref=sr_1_6?s=hpc&ie=UTF8&qid=1430758250&sr=1-3 6&keywords=cottonelle+wipes (last accessed May 4, 2015). But a 40 count package of Wet 4 Ones, a non-flushable wipe, retails for $2.28, or 5.7 cents per wipe. See 5 http://www.amazon.com/Wet-Ones-Citrus-Antibacterial-6 Canister/dp/B00H2F85H6/ref=sr_1_4?ie=UTF8&qid=1430758258&sr=8-7 4&keywords=wet+ones (last accessed May 4, 2015). 8 38. If consumers knew that the Flushable Wipes were not suitable for flushing down a 9 toilet, they would not pay a premium for the product, but rather, would opt to purchase the 10 cheaper, non-flushable items and dispose of them in trash cans. 11 (2) The Flushable Wipes Are Not Flushable 12 (2)(a) "Flushable" Means "Suitable For Disposal by Flushing Down a Toilet" 13 39. As defined by Webster’s Dictionary, "flushable" means "suitable for disposal by 14 flushing down a toilet." 15 40. Many objects and materials theoretically will pass from the toilet to sewer pipes 16 after being flushed, such as food scraps, jewelry, small toys, or cotton swabs, but that does not 17 make such objects or materials "flushable." Rather, the word "flushable" means not just that the 18 object or material is capable of passing from the toilet to sewer pipes, but that the object or 19 material is appropriate or suitable to flush down a toilet for purposes of disposal via the sewer or 20 septic system. The concept that "flushable" means that a product safely passes from home toilet 21 to its endpoint, either by properly disintegrating in a septic tank or passing without incident to the 22 municipal sewer system, is one that is uniformly accepted by wastewater treatment system 23 operators and the wipes industry. 24 41. Defendants’ definition of flushable is consistent with industry usage and has been 25 throughout the class period. Defendants are members of the Association of the Nonwoven Fabrics 26 Industry ("INDA"), which publishes a reference document for the industry called "Guidance 27 Document for Assessing the Flushability of Nonwoven Disposable Products." ("INDA 28 Guidelines") Each version of the INDA Guidelines has used a definition of "flushable" that is-9-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page11 of 38 1 similar as the one used by Defendants. For example, in the most recent edition of the INDA 2 Guidelines, the Third Edition published in June 2013, INDA included the following: 3 4 5 6 7 8 9 10 http://www.inda.org/wp-content/uploads/2013/06/GD3-and-Code-of-Practice_Executive-11 Summary_June-2013-FINAL.pdf (last accessed March 24, 2015). Earlier editions of the 12 guidelines contained similar definitions. 13 42. The Industry’s definition of the term "flushable" is consistent with the generally 14 accepted consumer understanding of the word. Reasonable consumers understand "flushable" to 15 mean suitable for disposal by flushing down a toilet. That is, reasonable consumers understand 16 products labeled "flushable" to be products that can be flushed down the toilet without risk of 17 damage to the plumping in their homes or municipal sewer systems. 18 43. The State of California also accepts that the term "flushable" considers the entire 19 process from home toilet to wastewater treatment. To ensure that only "flushable" products are 20 flushed, the State of California has made it illegal "to deposit, by any means whatsoever, into a 21 plumbing fixture, floor drain, interceptor, sump, receptor, or device, which is connected to a 22 drainage system, public sewer, private sewer, septic tank, or cesspool, any ashes; cinders; solids; 23 rags; inflammable, poisonous, or explosive liquids or gases; oils; grease; or any other thing 24 whatsoever that is capable of causing damage to the drainage system or public sewer." California 25 Code of Regulations, Title 24, Part 5, Chapter 3, California Building Standards, Sec. 305.1. 26 (2)(b) Products That Do Not Disperse Upon Flushing Are Not Flushable 27 44. The only products that uniformly do not damage damage plumbing pipes and 28 pumps, septic tanks, and/or municipal sewage lines and pumps are products such as toilet paper-10-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page12 of 38 1 that disperse quickly in wastewater, i.e., break apart entirely into unrecognizable particles within 2 a minute or two of being flushed. The benefits of a quickly dispersing product are that it will not 3 tangle with other items in the sewer, cause clogs or damage to plumbing pipes, septic or 4 municipal sewer pumps, or otherwise need to be removed from screens in the wastewater 5 treatment system or filtered out of wastewater prior to treatment. On the other hand, products that 6 do not disperse or are slow to disperse cannot safely be flushed. When these materials remain in 7 tact or in larger pieces, they are prone to tangling with one another and with other debris, forming 8 large ropes or masses that can cause pipe blockages. In addition, larger pieces are more likely to 9 get caught on screens and filters in the municipal wastewater system and must be removed and 10 disposed of in a landfill. Large pieces also clog municipal sewer pumps, resulting in damage and 11 the need for costly repairs. As a result of the potential for damage resulting from flushing non-12 dispersing products, any product that does not efficiently disperse in wastewater is not flushable, 13 and is "capable of causing damage to the drainage system or public sewer," rendering it illegal to 14 flush under California law. 15 45. Because products that do not disperse quickly like toilet paper can and do cause 16 damage to septic systems and public wastewater systems, water treatment professionals and 17 organizations unanimously agree that to be labeled "flushable," a product must disperse quickly 18 like toilet paper. These organizations have routinely criticized the labeling of non-dispersing 19 wipes, such as the Flushable Wipes, as flushable. For example, the Water Environment 20 Federation (WEF), a nonprofit association of water quality professionals, has explained which 21 products should be labeled as "flushable": 22 The industry reference for dispersability is two-ply toilet paper … [which] starts to break apart when the toilet is flushed and is indistinguishable in the wastewater 23 system in a matter of seconds…Anything labeled as flushable should start to break apart during the flush and completely disperse within 5 minutes… Our 24 mantra is,'It’s not flushable if it’s not dispersible’... 25 See http://news.wef.org/stop-dont-flush-that/(last accessed February 26, 2014) (internal 26 quotations omitted). WEF further reports that consumers flush nondispersible wipes because they 27 are "mislabeled" as "flushable," when they do not disperse like toilet paper. Id. 28 46. Municipal wastewater treatment operators and water protection organizations, and-11-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page13 of 38 1 related associations, are in agreement with WEF that the only product other than human 2 excrement suitable for disposal down a toilet is toilet paper. For example, the California 3 Association of Sanitation Agencies has stated: 4 Many personal hygiene wipes and cleaning products are marketed as being "flushable." But despite the confusing and misleading labels you should never 5 flush "flushable" or "disposable" products. No matter what a label says, the only 6 items you should flush are human waste and toilet paper. Just because something disappears down your toilet doesn’t mean it won’t cause a problem in your sewer 7 pipe—or further down the line at wastewater treatment facilities. Items labeled as "flushable" or "disposable" (even "bio-degradable" ones) can get caught on roots 8 in sewer pipes and contribute to blockages, back-ups, and overflows. 9 Dispose of them in the trash, not the toilet! 10 See http://www.casaweb.org/flushable-wipes (last accessed February 24, 2015). 11 47. San Francisco Public Utilities Commission officials have stated that with the 12 exception of toilet paper and human waste, "Everything else should go in the trash" and should 13 not be flushed. See http://www.sfexaminer.com/sanfrancisco/flushable-wipes-cause-problematic-14 backups-at-local-sewage-plants/Content?oid=2514283 (last accessed February 24, 2015). 15 48. The East Bay Municipal Utility District states: 16 Non-Flushable Wipes and Products 17 No matter if the label says "disposable" or "flushable," cleaning and personal hygiene products should never be flushed. 18 "Disposable" or "flushable" wipes and other products don't breakdown in the 19 sewer. Instead, they get tangled and clumped in hair and debris creating massive obstructions in the sewers. Remember... your toilet is not a trash can! 20 See https://www.ebmud.com/water-and-wastewater/pollution-prevention/residential-pollution-21 prevention (last accessed February 26, 2015). 22 23 49. The City of Carlsbad Wastewater Superintendent Don Wasko has stated: 24 They may be called flushable, but they can do severe damage to our sewer system... These cloth wipes don’t break down in the sewer system the same way that 25 toilet paper does. 26 See http://news.carlsbadca.gov/news/flushable-wipes-and-other-things-you-should-not-flush (last 27 accessed February 24, 2015). 28 50. And in Contra Costa, County, the Central Contra Costa Sanitary District has said-12-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page14 of 38 1 that pre-moistened wipes are not flushable because "they don’t break down as quickly as toilet 2 paper and that’s really the standard for flush-ability, as far as we’re concerned." See 3 http://sanfrancisco.cbslocal.com/2013/07/17/cleaning-wipes-used-in-homes-and-offices-clogging-4 bay-area-sewer-pipes/(last accessed March 30, 2015). 5 51. Wastewater treatment operators outside of California have issued similar 6 statements. For example, operators of the wastewater treatment system in Pima County, Arizona, 7 issued a release stating that, "Unfortunately, disposable wipes are rarely, if ever, biodegradable in 8 the sanitary sewer system. They just aren’t in there long enough to break down." See 9 http://www.insidetucsonbusiness.com/blogs/save-yourselves-stfop-flushing-flushable-10 wipes/article_e4db48de-312f-11e3-843e-001a4bcf887a.html (last accessed March 30, 2015). 11 (2)(c) The Flushable Wipes Are Not a Flushable Product. 12 52. Even though Defendants advertise the Flushable Wipes as "flushable," and intend 13 for this representation to mean that they are suitable for disposal by flushing down a toilet without 14 harming septic tanks or sewer systems, the Flushable Wipes are not in fact flushable. 15 53. First, the Flushable Wipes are not designed to break apart or disperse in water, but 16 rather are specially manufactured to remain strong and durable while wet. In fact, throughout the 17 class period, all four brands of Flushable Wipes have been manufactured using the same 18 proprietary paper blend, for which Defendants own the patent. To manufacture the paper, 19 Defendants use an "air-laid" process, which creates strong knots of fibers that will not break 20 down easily when submersed in water. Unlike toilet paper, which is a dry paper product designed 21 to fall apart in water, all of the Flushable Wipes are sold as pre-moistened products, and thus, the 22 paper used to make them is designed to withstand months of soaking in a wet environment. 23 Defendants make the paper so strong, in fact, that it cannot efficiently disperse when placed in the 24 water in a toilet. 25 54. A consumer who purchases any of the four brands of Flushable Wipes will find, 26 upon opening the package, sheets of moist paper, dampened by a coating of wet lotion. Because 27 weeks, months, or longer will pass between the time a Flushable Wipe is manufactured and the 28 time at which it is ultimately used by a consumer, the paper used to manufacture it must be strong-13-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page15 of 38 1 enough to sit in a still, wet environment for extremely long periods of time. Thus, in selecting the 2 paper used to manufacture their Flushable Wipes, Defendants designed a paper that is strong 3 enough to withstand months of soaking in wet environment and cannot possibly efficiently 4 disperse when placed in more water. 5 55. Second, while Defendants acknowledge and admit that a "flushable" product must 6 be one that is compatible with wastewater treatment facilities, as well as home plumbing and 7 septic systems, Defendants have for years ignored wastewater treatment operators and 8 organizations which state that only dispersible products are flushable. Instead of using standards 9 and guidelines recommended by those actually treating wastewater, Defendants have elected to 10 test "flushability" using the flawed INDA Guidelines, which Defendants participated in drafting, 11 and which were engineered to ensure that Defendants’ wipes can pass them. Thus, while all of the 12 Flushable Wipes can pass a self-serving set of guidelines, the guidelines are heavily flawed and 13 do not adequately measure whether a product is safe for disposal by flushing down a toilet. 14 56. For example, the Flushable Wipes purportedly have passed the "Slosh Box 15 Disintegration Test" or "FG502" test appearing in the Third Edition of the INDA Guidelines. The 16 test purports to measure dispersability, as it assesses the potential for a product to disintegrate 17 when it is submerged in water and subjected to agitation. To conduct the test, the test material is 18 placed in a box of tap water. Testers then mechanically agitate the water, and time how long it 19 takes for the test material to disintegrate. But the test is rigged so that even non-dispersible 20 products pass it: Defendants and INDA have agreed that the standard for "passing" this test is not 21 whether the product mimics the flushable and dispersible toilet paper or even that the product will 22 break down during or shortly after a flush. Rather, the test only requires that after three hours of 23 agitation in the slosh box, more than 25% of the wipe passes through a 12.5 millimeter (roughly 24 a half inch) sieve 80% of the time. See http://www.njwea.org/pdf/2013-guidelines-for-assessing-25 the-flushability-of-disposable-nonwoven-product.pdf (last accessed March 24, 2015) (emphasis 26 added). In other words, the test is still passed even if after more than three hours of agitation, 27 nearly three-quarters of the material is unable to pass through the sieve. In "real world" terms, 28 this means that wipes that pass the slosh box test can still be 75% in tact and are prone to catching-14-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page16 of 38 1 on screens in the wastewater treatment system, preventing wastewater from moving through 2 sewer pipes efficiently, and must be removed from the wastewater system and disposed of in 3 landfills. 4 57. When subjected to the Slosh Box Disintegration Test, a typical piece of toilet 5 paper begins to break down as soon as the water in the slosh box begins to move, and is 6 completely dispersed within in a few seconds. See http://www.consumerreports.org/cro/video-7 hub/home--garden/bed--bath/are-flushable-wipes-flushable/16935265001/22783507001/(last 8 accessed March 30, 2015). Thus, when flushed down a toilet, toilet paper will typically break 9 apart within seconds after flushing (id.), during the time when the flushed water is agitated and 10 flowing as a result of the consumer triggering the flushing mechanism on the toilet. In 11 comparison, the Flushable Wipes do not even begin to disperse immediately after flushing. (Id.) 12 Rather, Defendants’ own website reveals that the Wipes begin to break down 35 minutes after 13 flushing, and take hours to completely disperse. See http://www.kimberly-14 clark.com/newsroom/media_resources/safetoflush.aspx?print=true (last accessed Feb. 21, 2014). 15 But after being flushed down a home toilet, the Wipes will not be subjected to minutes or hours of 16 constant, forceful agitation like in the Slosh Box test. Without this, the Wipes will take even 17 longer to disperse. This extremely slow disintegration time means that wipes are likely to get 18 clogged in the pipes during and after flushing. Nevertheless, Defendants and INDA have agreed 19 that non-dispersible products such as the Flushable Wipes can be labeled as "flushable" provided 20 they pass this weak Slosh Box test standard. 21 58. Wastewater treatment operators criticize the Slosh Box Disintegration Test as it 22 does not properly mimic the force and movement of products through the wastewater system. As 23 one professional noted, the test is "a lot more turbulent than the flow that you find in a wastewater 24 pipe." http://www.nytimes.com/2015/03/15/nyregion/the-wet-wipes-box-says-flush-but-the-new-25 york-city-sewer-system-says-dont.html?_r=0 (last accessed March 24, 2015). Another explained 26 that the Slosh Box Disintegration Test is "way more violent than you would see in a sewer" and 27 that it "is not acceptable to the wastewater industry because it is too long (three hours), too 28 aggressive, and does not replicate the flow conditions in a gravity sewer.-15-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page17 of 38 1 http://www.aeanj.org/aea-uploads/28932_Fall_low_res.pdf (last accessed March 24, 2015). 2 Because sewer systems typically move sewage to the plant via gravity, the water flow is more 3 gentle and therefore not as hard on the wipes as the agitating water in the Slosh Box 4 Disintegration Test, meaning that the wipes will not break down as quickly in actual conditions as 5 they do in Defendants’ lab simulated tests. 6 59. The Slosh Box Disintegration Test is further flawed because wastewater utility 7 officials say that wipes can reach a sewage treatment pump in as quickly as a few minutes, much 8 faster than the hours needed for Defendants’ wipes to begin to break down. See 9 http://www.washingtonpost.com/local/trafficandcommuting/flushable-personal-wipes-clogging-10 sewer-systems-utilities-say/2013/09/06/9efac4e6-157a-11e3-a2ec-b47e45e6f8ef_story.html (last 11 accessed March 30, 2015). Further, the moist lotion used in manufacturing the wipes results in 12 them traveling faster through pipes with flowing water than ordinary products. See 13 http://www.woai.com/articles/woai-local-news-119078/disposable-wipes-causing-nightmare-for-14 san-11718265/(last accessed February 26, 2014). 15 60. Because the wipes are always intact after a few minutes, and largely intact even 16 after hours of agitation, they arrive at wastewater treatment facilities intact, where they create the 17 problems described in paragraphs 68-70. 18 61. The other tests run as part of the INDA Guidelines are similarly flawed. For 19 example, both the Slosh Box Disintegration Test described in paragraph 56 and the "Aerobic 20 Biodisintegration" FG505 test, assess the wipes’ ability to disintegrate under constantly agitated 21 water. See http://www.njwea.org/pdf/2013-guidelines-for-assessing-the-flushability-of-22 disposable-nonwoven-product.pdf (last accessed March 24, 2015). Since the Flushable Wipes are 23 unlikely to be subjected to the same agitating water in actual conditions as they are subjected to in 24 Defendants’ lab, the tests are not reliable predictors of whether the Flushable Wipes are suitable 25 for flushing down a toilet. The result is that many of the Flushable Wipes arrive at the sewage 26 treatment plant intact or insufficiently broken down. 27 62. The tests are further flawed in that they fail to take into account the wipes’ 28 propensity for "ragging." After being flushed down the toilet, the Flushable Wipes have a-16-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page18 of 38 1 propensity to tangle amongst one another and with other debris, and form long ropes that can fill 2 sewer lines for tens of feet. See 3 http://www.hsconnect.com/page/content.detail/id/590706/Concerns-on-wipes-no-laughing-4 matter.html?nav=5005 (last accessed March 30, 2015). The tests however, assume that wipes are 5 passing through pipes and pumps one at a time, instead of in clumps of rags and ropes. For 6 example, while the Slosh Box Disintegration Test only considers what one wipe will do, there 7 will often be multiple wipes in a pipe at a time. The bigger the mass of wipes, the slower the 8 dispersement time. See http://www.washingtonpost.com/local/trafficandcommuting/flushable-9 personal-wipes-clogging-sewer-systems-utilities-say/2013/09/06/9efac4e6-157a-11e3-a2ec-10 b47e45e6f8ef_story.html (last accessed March 30, 2015). 11 63. In the Third Edition of the INDA Guidelines, the FG507 test, or the Municipal 12 Pump Test, was introduced. Prior to 2013, "flushable" wipes were not even tested for their 13 compatibility with municipal sewer pumps, even though a wipe’s ability to pass through these 14 pumps without causing damage, clogs, and excessive power draws, is a critical component to 15 consider when analyzing whether a product is compatible with wastewater treatment systems. 16 64. The newly added Municipal Pump Test is flawed, however. For example, to 17 conduct that test, Defendants and INDA have agreed to only introduce one wipe every ten 18 seconds into the pump to assess whether the pump can process the wipes. See 19 http://www.njwea.org/pdf/2013-guidelines-for-assessing-the-flushability-of-disposable-20 nonwoven-product.pdf, p. 18 (last accessed March 24, 2015). Because the non-dispersible 21 Flushable Wipes are likely entangle with other wipes and debris, they are unlikely to enter the 22 pump one at a time. Instead, they reach the pump in larger clumps, increasing the likelihood that 23 they will break or clog it. 24 (3) Because the Flushable Wipes Are Not Suitable For Flushing Down a Toilet, They Wreak 25 Havoc When Flushed. 26 65. Consumers and municipalities all over the country have complained about the 27 damage caused when flushing the Flushable Wipes. 28 66. In April 2015, the City of Wyoming, Minnesota filed a lawsuit against Defendant-17-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page19 of 38 1 Kimberly-Clark Corporation and other manufacturers of "flushable" wipes on behalf of a class of 2 municipalities. The City of Wyoming seeks damages for the harm caused to municipalities’ sewer 3 systems. 4 67. Numerous consumers have complained that Defendants’ Wipes are falsely labeled 5 as "flushable" because they are not suitable for disposal by flushing down a household toilet. For 6 example on Defendants’ own website, numerous consumers have complained of damage caused 7 by the wipes to their household plumbing: 8 sugah-August 15, 2014 just had to pay over 300.00 today, from using cottonelle flushable cleansing 9 cloths!!! had to have a plumber first and then a septic tank cleaned, just 2 of us living here and have previously only had to have tank cleaned yearly, we were told 10 and shown the cloths that had caused the blockage!! of course we will never use them again. this are very false statements on you package. they are not sewer and 11 septic safe..just ask anyone who has just experienced what we have today, I will make sure all my friend know about this... you should be called out on this, we are 12 retired, and this is not in the budget!!! 13 Richard-June 24, 2013 A few months after flushing the wipes down my toilets and into my septic system 14 it clogged the underground filter. I had the 1000 gallon storage tank pumped and it was disgustingly obvious that the Cottonelle wipes were the culprit. They do not 15 break down like toilet paper or even close. Do not use them if you are on a septic system. If you read Kimberly Clark's claim for septic systems you will see that it is 16 written to confuse the consumer. It focuses on "flushability" which only gets these things down the toilet but not through a septic system. 17 Kenneth-June 1, 2013 18 I tried a free sample and it did breakdown like toilet paper. I purchased this nice package (36 or 42?? nothing on wrapping indicating count). Being on a septic I 19 checked to ensure it was also going to break down. No matter how hard I mashed and put in jar with water, heavy agitation it would not break apart. This is not 20 suitable for a septic!!! 21 tlkflat-April 24, 2013 DO NOT use with the newer rural waste water treatment systems like a JET 22 system. They will clog the booster pump and then tangle in the air pump spinner, VERY costly repair. 23 Doug-March 18, 2013 24 Flushable Wipes are NOT flushable. Sure, they'll flush. Then they will clog your pipes... always. It may not be today or tomorrow, but they will clog. At my bed 25 and breakfast I have to have the plumbers out at least 4 times a year to clear our lines. It is ALWAYS flushable wipes. BAD PRODUCT. 26 See https://www.cottonelle.com/products/cottonelle-fresh-care-flushable-moist-wipes/review (last 27 28 accessed September 3, 2014).-18-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page20 of 38 68. For example, in Bakersfield, California, the city found that none of the brands of 1 "flushable" wipes tested, including Defendants’ Cottonelle Wipes, actually broke apart in the 2 3 sewer; instead, they ended up as giant clogs at the treatment plant. 4 5 6 7 8 9 10 11 12 13 14 See http://www.turnto23.com/news/local-news/bakersfield-sewer-systems-keep-getting-clogged-15 because-of-flushable-bathroom-wipes-092413 (last accessed August 28, 2014). As a result of the 16 Flushable Wipes failure to flush and clear pipes, crews of three or four workers in Bakersfield 17 must regularly visit the city’s 52 sewage lift stations to cut up the balls of wipes that clog the lift 18 stations. If they do not, there is a risk that back flow damage will spill inside homes. The city has 19 documented one of the clogs: 20 21 22 23 24 25 26 27 28-19-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page21 of 38 1 2 Id. 3 69. In Jacksonville Beach, Florida, in response to city official concerns, a news outlet 4 broadcasted a "Consumer Alert" to explain that while Cottonelle and Scott Wipes are advertised 5 as being able to be flushed, "there is little truth in the advertisements." See 6 http://www.news4jax.com/news/officials-flushable-wipes-clog-pipes/-/475880/23740904/-7/t5h2vrz/-/index.html (last accessed August 28, 2014). 8 9 10 11 12 13 14 15 16 17 18 Rather, the reporters explained, Defendants’ Flushable Wipes do not break apart after 19 being flushed and clog pipes and pumps. The reporters quoted city estimates that because of the 20 time and money expended in dealing with clogs, consumers pay higher plumbing repair costs and 21 higher taxes. The city released a photo that demonstrates the extent to which wipes, such as 22 Defendants,’ have clogged the pumps: 23 24 25 26 27 28-20-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page22 of 38 1 2 3 Id. 4 70. In San Antonio, Texas, the San Antonio Water System has said that flushable 5 wipes, including specifically the Flushable Wipes made by Defendants, are clogging up sewers in 6 ways in which sewer workers have never seen before. See http://www.woai.com/articles/woai-7 local-news-119078/disposable-wipes-causing-nightmare-for-san-11718265/(last accessed August 8 28, 2014). Sewer workers are responding to dozens of clogs, and to repair, they retreive large 9 "rope like mass[es]" from the pipes. Id. 10 (4) Defendants Intend To Continue To Market And Sell Non-Flushable Products as "Flushable" 11 71. Defendants’ marketing campaign has been extremely successful. The market for 12 flushable wipes is projected to grow 12.1% annually to reach $2.4 billion by 2018. 13 http://www.giiresearch.com/report/apex279326-future-flushable-wipes.html (last accessed March 14 25, 2015). Defendants’ brands are widely popular, and the Flushable Wipes are sold in grocery 15 stores and big box stores throughout California and the country. Because of the big potential for 16 sales, Defendants have no incentive to stop selling "flushable" products or change their 17 disclaimers to discourage sales. 18 72. Because Defendants know consumers rely on representations about flushability on 19 product packaging, even when presented with warnings from local wastewater treatment 20 authorities, Defendants have opposed both mandatory and voluntary standards that would require 21 Defendants to provide more information to consumers about the risks associated with flushing the 22 Flushable Wipes. For example, while the INDA Guidelines and industry definition of "flushable" 23 is conditioned upon usage instructions being correctly followed, INDA does not encourage, nor 24 do Defendants actually print, disclaimers and usage instructions in a conspicuous location on the 25 front of the package where consumers are most likely to read the information. 26 73. The INDA Guidelines are voluntary. While wastewater treatment professionals 27 and legislatures want, at a minimum, for the guidelines to be mandatory, so far, INDA has not 28 acceded to their requests.-21-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page23 of 38 1 74. Defendants, through INDA, have also opposed legislative efforts to regulate the 2 labeling of products as flushable, even where those laws put in place weakened standards for 3 "flushability. For example, in 2010, a bill was proposed in the California Senate that would 4 regulate the use of the term "flushable." That bill, A.B. 2256, made it unlawful to label as 5 flushable any product that did not adhere to the same INDA Guidelines that Defendants have 6 claimed that they follow. But Defendants and INDA opposed the measure. See 7 http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_2251-8 2300/ab_2256_cfa_20100617_172920_sen_comm.html (last accessed March 24, 2015). Similar 9 bills have been proposed in other states, including Maine and New Jersey, though all have been 10 opposed by INDA and none have been successful. 11 75. Wastewater treatment operators have criticized the industry’s failure to accept that 12 dispersibility is an essential part of flushability, and have stated that the Third Edition of the 13 INDA Guidelines "may be a step backwards" from previous editions. See 14 http://www.weat.org/Presentations/04%20Villee_Non-dispersibles.pdf (last accessed March 31, 15 2015). 16 PLAINTIFF’S EXPERIENCE 17 76. Plaintiff is a consumer of Cottonelle brand toilet paper. Plaintiff first learned of 18 the Cottonelle Wipes in 2010, while shopping at a Safeway store in Belmont, near his home in 19 San Carlos. The wipes were located in the section of the store that contained toilet paper. He was 20 interested in the fact that the product was a pre-moistened wipe, and that the package stated that 21 the wipes were "flushable." He also read labeling on the package stating that the wipes were 22 "SEWER AND SEPTIC SAFE" and that "Cottonelle Fresh Care Flushable Cleansing Cloths 23 break up after flushing." 24 77. Plaintiff reasonably understood the representations described in paragraph 77 to 25 mean that the Cottenelle Wipes could be safely disposed like toilet paper – by flushing down a 26 toilet, as they would break apart after flushing. And he reasonably understood the representations 27 to mean that if he disposed of the wipes via his toilet, the wipes would not cause clogs or backups 28 in his plumbing or that the risk of this occurring was no greater than if he had used toilet paper.-22-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page24 of 38 1 78. Plaintiff’s home plumbing is connected to the City of San Carlos’s sewer system 2 via a lateral drainline from his house. Accordingly, he also reasonably believed the 3 representations described in paragraph 77 to mean that the Cottonelle Wipes could travel safely 4 from his home drainline and into the city’s sewer system without causing clogs, blockages, or 5 backups. 6 79. Relying on the representation described in paragraph 77, Plaintiff decided to buy 7 the Cottonelle Wipes for home use. He first purchased them at Belmont Safeway in or around 8 2010. Shortly thereafter, Plaintiff removed the Cottonelle Wipes from their package for the first 9 time, and he noticed that they were quite thick and strong. The material surprised him because he 10 did not think a product with such a consistency would be flushable. He decided to double check 11 the labeling on the package to confirm that it said the wipes were safe to flush before using them, 12 which it did. 13 80. Plaintiff continued to purchase the Cottonelle Wipes on a regular basis over the 14 next several years, until approximately 2013. He typically purchased the wipes at the Safeway 15 store in Belmont and typically paid approximately $5-7 dollars per package. 16 81. When using the wipes during the 2010 to 2013 time period, he flushed 1-2 wipes 17 at a time. Other than human waste, Plaintiff did not flush other items or materials, such as toilet 18 paper, at the same time as the Cottonelle Wipes. In addition, Plaintiff did not dispose of non-19 dispersible items, such as other kinds of pre-moistened disposable wipes, by flushing down the 20 toilet in their San Carlos home. Plaintiff noticed that the wipes did not break apart rapidly in the 21 toilet bowl like toilet paper, but instead remained largely intact. 22 82. Plaintiff had moved into his home in San Carlos in or around February 2006, 23 during the first four years in the home, the toilet never clogged. During the period when he was 24 using the Cottonelle Wipes, however, the toilet in his San Carlos home would clog approximately 25 once a week, and he would often have to plunge the toilet right after flushing or use a chemical 26 drain cleaner such as Drano or Liquid Plumber to remove the blockage. 27 83. Plaintiff initially did not know what was causing the clogs. Plaintiff’s spouse, who 28 was the only other individual regularly using the toilet in the San Carlos home, informed him that-23-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page25 of 38 1 she was not flushing non-dispersible products. But the problem eventually got so bad that he was 2 forced to purchase a plumbing "snake" to clear the blockages. The "snake" is a flexible metal 3 cable that is inserted into a plumbing line to clear any obstructions. Plaintiff purchased the snake 4 for approximately $200 from Home Depot. 5 84. Plaintiff used the snake a number of times to clear the clogs that kept stopping up 6 his toilet. When the snake was withdrawn after use, it would sometimes have pieces of the 7 material that was causing the clogs on it. Plaintiff noticed that this material was the Cottonelle 8 Wipes. 9 85. Based on this observation, Plaintiff decided to conduct an online search to 10 determine whether other people were experiencing similar problems with the Cottonelle Wipes. 11 He conducted a search using the phrase "Cottonelle flushable wipes issues." The search resulted 12 in a mixture of complaints from consumers that had used the Cottonelle Wipes and had 13 experiences similar to Plaintiff and complaints from municipal wastewater authorities warning 14 that the Cottonelle Wipes were not flushable or safe for sewer and septic systems as advertised. 15 Plaintiff later learned that use of flushable wipes such as the Cottonelle Wipes has damaged other 16 home plumbing systems and that Cottonelle Wipes had damaged wastewater treatment facilities 17 in municipalities all over the country. 18 86. Plaintiff stopped purchasing and flushing the Cottonelle Wipes. 19 87. Had he known of the risk of clogging and expensive plumbing repairs and damage 20 that the wipes cause, as well as the cost to municipal sewer systems, Plaintiff would not have 21 purchased the Cottonelle Wipes, or at a minimum, would not have paid a premium for them. 22 88. Had Defendants not misrepresented (by omission and commission) that the 23 Cottonelle Wipes were not truly suitable for flushing, that they risked clogging pipes leading to 24 the need for plumbing repairs and caused damage to sewer systems, Plaintiff would not have 25 purchased them. 26 89. Plaintiff continues to desire to purchase wipes suitable for flushing from 27 Defendants. He regularly visits stores where Defendants’ "flushable" wipes are sold. Without 28 purchasing and attempting to flush Defendants’ Flushable Wipes, Plaintiff is unable to determine-24-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page26 of 38 1 if Defendants’ wipes are flushable. Plaintiff understands that the design and construction of the 2 Flushable Wipes may change over time or Defendants may respond to pressure from wastewater 3 treatment operators, legislators, government agencies, competitors, or environmental 4 organizations. 5 90. As long as Defendants may use the word "Flushable" to describe their Flushable 6 Wipes, and other non-flushable wipes, then when presented with Defendants’ packaging, Plaintiff 7 continues to have no way of determining whether the representation "flushable" is in fact true. 8 Thus, Plaintiff is likely to be repeatedly presented with false or misleading information when 9 shopping and unable to make informed decisions about whether to purchase the wipes. He is 10 further likely to be misled again by Defendants’ conduct, unless and until Defendants are 11 compelled to ensure that their wipes packaged as flushable truly are dispersible and suitable for 12 flushing. 13 CLASS ALLEGATIONS 14 91. Plaintiff brings this action against Defendants on behalf of himself and all others 15 similarly situated, as a class action pursuant to section 382 of the California Code of Civil 16 Procedure and section 1781 of the California Civil Code. Plaintiff seeks to represent a group of 17 similarly situated persons (the "Class"), defined as follows: 18 All persons who, between June 8, 2011 and the present, purchased in California any of the following products: Cottonelle® Fresh Care Flushable 19 Wipes & Cleansing Cloths, Scott Naturals® Flushable Moist Wipes, Huggies® Pull-Ups® Flushable Moist Wipes, and U by Kotex® Refresh 20 flushable wipes. 21 92. This action has been brought and may properly be maintained as a class action 22 against Defendants pursuant to the provisions of California Code of Civil Procedure section 382 23 because there is a well-defined community of interest in the litigation and the proposed class is 24 easily ascertainable. 25 93. Numerosity: Plaintiff does not know the exact size of the class, but it is estimated 26 that it is composed of more than 100 persons. The persons in the class are so numerous that the 27 joinder of all such persons is impracticable and the disposition of their claims in a class action 28 rather than in individual actions will benefit the parties and the courts.-25-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page27 of 38 1 94. Common Questions Predominate: This action involves common questions of law 2 and fact to the potential class because each class member’s claim derives from the deceptive, 3 unlawful and/or unfair statements and omissions that led Defendants’ customers to believe that 4 the Flushable Wipes were flushable. The common questions of law and fact predominate over 5 individual questions, as proof of a common or single set of facts will establish the right of each 6 member of the Class to recover. Among the questions of law and fact common to the class are: 7 a) Whether Defendants’ Flushable Wipes are suitable for flushing down a 8 toilet; 9 b) Whether Defendants unfairly, unlawfully and/or deceptively failed to 10 inform class members that their Flushable Wipes are not suitable for flushing; 11 c) Whether Defendants’ advertising and marketing regarding their Flushable 12 Wipes sold to class members was likely to deceive class members or was unfair; 13 d) Whether Defendants engaged in the alleged conduct knowingly, recklessly, 14 or negligently; 15 e) The amount of revenues and profits Defendants received and/or the amount 16 of moneys or other obligations lost by class members as a result of such wrongdoing; 17 f) Whether class members are entitled to injunctive and other equitable relief 18 and, if so, what is the nature of such relief; and 19 g) Whether class members are entitled to payment of actual, incidental, 20 consequential, exemplary and/or statutory damages plus interest thereon, and if so, what is the 21 nature of such relief. 22 95. Typicality: Plaintiff’s claims are typical of the class because, throughout the class 23 period, he purchased packages of the Flushable Wipes, in reliance on Defendants’ 24 misrepresentations and omissions that they were flushable. Thus, Plaintiff and class members 25 sustained the same injuries and damages arising out of Defendants’ conduct in violation of the 26 law. The injuries and damages of each class member were caused directly by Defendants’ 27 wrongful conduct in violation of law as alleged. 28 96. Adequacy: Plaintiff will fairly and adequately protect the interests of all class-26-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page28 of 38 1 members because it is in his best interests to prosecute the claims alleged herein to obtain full 2 compensation due to his for the unfair and illegal conduct of which she complains. Plaintiff also 3 has no interests that are in conflict with or antagonistic to the interests of class members. Plaintiff 4 has retained highly competent and experienced class action attorneys to represent his interests and 5 the interests of the class. By prevailing on his own claim, Plaintiff will establish Defendants’ 6 liability to all class members. Plaintiff and his counsel have the necessary financial resources to 7 adequately and vigorously litigate this class action, and Plaintiff and counsel are aware of their 8 fiduciary responsibilities to the class members and are determined to diligently discharge those 9 duties by vigorously seeking the maximum possible recovery for class members. 10 97. Superiority: There is no plain, speedy, or adequate remedy other than by 11 maintenance of this class action. The prosecution of individual remedies by members of the class 12 will tend to establish inconsistent standards of conduct for the Defendants and result in the 13 impairment of class members’ rights and the disposition of their interests through actions to 14 which they were not parties. Class action treatment will permit a large number of similarly 15 situated persons to prosecute their common claims in a single forum simultaneously, efficiently, 16 and without the unnecessary duplication of effort and expense that numerous individual actions 17 world engender. Furthermore, as the damages suffered by each individual member of the class 18 may be relatively small, the expenses and burden of individual litigation would make it difficult 19 or impossible for individual members of the class to redress the wrongs done to them, while an 20 important public interest will be served by addressing the matter as a class action. 21 98. Nexus to California. The State of California has a special interest in regulating the 22 affairs of corporations that do business here. Defendants have more customers here than in any 23 other state. Accordingly, there is a substantial nexus between Defendants’ unlawful behavior and 24 California such that the California courts should take cognizance of this action on behalf of a 25 class of individuals who reside anywhere in the United States. 26 99. Plaintiff is unaware of any difficulties that are likely to be encountered in the 27 management of this action that would preclude its maintenance as a class action. 28-27-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page29 of 38 1 CAUSES OF ACTION 2 PLAINTIFF’S FIRST CAUSE OF ACTION (Violation of the Consumers Legal Remedies Act, California Civil Code § 1750, et seq.) 3 On Behalf of Himself and the Class 4 100. Plaintiff realleges and incorporates the paragraphs of this Class Action Complaint 5 as if set forth herein. 6 101. This cause of action is brought pursuant to the California Consumers Legal 7 Remedies Act, California Civil Code § 1750, et seq. ("CLRA"). 8 102. Defendants’ actions, representations and conduct have violated, and continue to 9 violate the CLRA, because they extend to transactions that are intended to result, or which have 10 resulted, in the sale or lease of goods or services to consumers. 11 103. Plaintiff and other class members are "consumers" as that term is defined by the 12 CLRA in California Civil Code § 1761(d). 13 104. The Flushable Wipes that Plaintiff (and others similarly situated class members) 14 purchased from Defendants were "goods" within the meaning of California Civil Code § 1761(a). 15 105. By engaging in the actions, representations and conduct set forth in this Class 16 Action Complaint, Defendants have violated, and continue to violate, § 1770(a)(2), § 1770(a)(5), 17 § 1770(a)(7), § 1770(a)(8), and § 1770(a)(9) of the CLRA. In violation of California Civil Code 18 §1770(a)(2), Defendants’ acts and practices constitute improper representations regarding the 19 source, sponsorship, approval, or certification of the goods they sold. In violation of California 20 Civil Code §1770(a)(5), Defendants’ acts and practices constitute improper representations that 21 the goods they sell have sponsorship, approval, characteristics, ingredients, uses, benefits, or 22 quantities, which they do not have. In violation of California Civil Code §1770(a)(7), Defendants’ 23 acts and practices constitute improper representations that the goods they sell are of a particular 24 standard, quality, or grade, when they are of another. In violation of California Civil Code 25 §1770(a)(8), Defendants have disparaged the goods, services, or business of another by false or 26 misleading representation of fact. In violation of California Civil Code §1770(a)(9), Defendants 27 have advertised goods or services with intent not to sell them as advertised. Specifically, in 28 violation of sections 1770 (a)(2), (a)(5), (a)(7) and (a)(9), Defendants’ acts and practices led-28-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page30 of 38 1 customers to falsely believe that that their Flushable Wipes were suitable for flushing down a 2 toilet. In violation of section 1770(a)(8), Defendants falsely or deceptively market and advertise 3 that, unlike products not specifically denominated as flushable, the Flushable Wipes are suitable 4 for flushing down a toilet, when in fact none of the products are suitable for flushing. 5 106. Plaintiff requests that this Court enjoin Defendants from continuing to employ the 6 unlawful methods, acts and practices alleged herein pursuant to California Civil Code 7 § 1780(a)(2). If Defendants are not restrained from engaging in these types of practices in the 8 future, Plaintiff and the other members of the Class will continue to suffer harm. 9 107. CLRA § 1782 NOTICE. Irrespective of any representations to the contrary in 10 this Class Action Complaint, Plaintiff specifically disclaims, at this time, any request for 11 damages under any provision of the CLRA. Plaintiff, however, hereby provides Defendants 12 with notice and demand that within thirty (30) days from that date, Defendants correct, repair, 13 replace or otherwise rectify the unlawful, unfair, false and/or deceptive practices complained of 14 herein. Defendants’ failure to do so will result in Plaintiff amending this Class Action Complaint 15 to seek, pursuant to California Civil Code § 1780(a)(3), on behalf of himself and those similarly 16 situated class members, compensatory damages, punitive damages and restitution of any ill-gotten 17 gains due to Defendants’ acts and practices. 18 108. Plaintiff also requests that this Court award his costs and reasonable attorneys’ 19 fees pursuant to California Civil Code § 1780(d). 20 PLAINTIFF’S SECOND CAUSE OF ACTION (False Advertising, Business and Professions Code § 17500, et seq. ("FAL")) 21 On Behalf Of Himself and the Class 22 109. Plaintiff realleges and incorporates by reference the paragraphs of this Class 23 Action Complaint as if set forth herein. 24 110. Beginning at an exact date unknown to Plaintiff, but within three (3) years 25 preceding the filing of the Class Action Complaint, Defendants made untrue, false, deceptive 26 and/or misleading statements in connection with the advertising and marketing of their Flushable 27 Wipes. 28 111. Defendants made representations and statements (by omission and commission)-29-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page31 of 38 1 that led reasonable customers to believe that they were purchasing products that could be flushed 2 down the toilet without problem. Defendants deceptively failed to inform Plaintiff, and those 3 similarly situated, that their Flushable Wipes were not suitable for disposal by flushing down a 4 toilet, and that the Flushable Wipes are not regarded as flushable by municipal sewage systems; 5 routinely damage or clog pipes, septic systems, and sewage pumps; and do not disperse like toilet 6 paper. 7 112. Plaintiff relied on Defendants’ false, misleading and deceptive advertising and 8 marketing practices, including each of the misrepresentations and omissions set forth in 9 paragraphs 24-25, 32, and 76 above. Those similarly situated to Plaintiff relied to their detriment 10 on Defendants’ false, misleading and deceptive advertising and marketing practices, including 11 each of the misrepresentations and omissions set forth in paragraphs 24-32 and 76 above. Had 12 Plaintiff and those similarly situated been adequately informed and not intentionally deceived by 13 Defendants, they would have acted differently by, without limitation, refraining from purchasing 14 Defendants’ Flushable Wipes or paying less for them. 15 113. Defendants’ acts and omissions are likely to deceive the general public. 16 114. Defendants engaged in these false, misleading and deceptive advertising and 17 marketing practices to increase their profits. Accordingly, Defendants have engaged in false 18 advertising, as defined and prohibited by section 17500, et seq. of the California Business and 19 Professions Code. 20 115. The aforementioned practices, which Defendants have used, and continue to use, 21 to their significant financial gain, also constitute unlawful competition and provide an unlawful 22 advantage over Defendants’ competitors as well as injury to the general public. 23 116. As a direct and proximate result of such actions, Plaintiff and the other members of 24 the Class have suffered, and continue to suffer, injury in fact and have lost money and/or property 25 as a result of such false, deceptive and misleading advertising in an amount which will be proven 26 at trial, but which is in excess of the jurisdictional minimum of this Court. 27 117. Plaintiff seeks, on behalf of those similarly situated, full restitution of monies, as 28 necessary and according to proof, to restore any and all monies acquired by Defendants from-30-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page32 of 38 1 Plaintiff, the general public, or those similarly situated by means of the false, misleading and 2 deceptive advertising and marketing practices complained of herein, plus interest thereon. 3 118. Plaintiff seeks, on behalf of those similarly situated, a declaration that the above-4 described practices constitute false, misleading and deceptive advertising. 5 119. Plaintiff seeks, on behalf of those similarly situated, an injunction to prohibit 6 Defendants from continuing to engage in the false, misleading and deceptive advertising and 7 marketing practices complained of herein. Such misconduct by Defendant, unless and until 8 enjoined and restrained by order of this Court, will continue to cause injury in fact to the general 9 public and the loss of money and property in that the Defendants will continue to violate the laws 10 of California, unless specifically ordered to comply with the same. This expectation of future 11 violations will require current and future consumers to repeatedly and continuously seek legal 12 redress in order to recover monies paid to Defendants to which Defendants are not entitled. 13 Plaintiff, those similarly situated and/or other consumers nationwide have no other adequate 14 remedy at law to ensure future compliance with the California Business and Professions Code 15 alleged to have been violated herein. 16 PLAINTIFF’S THIRD CAUSE OF ACTION (Fraud, Deceit and/or Misrepresentation) 17 On Behalf of Himself and the Class 18 120. Plaintiff realleges and incorporates by reference the paragraphs of this Class 19 Action Complaint as if set forth herein. 20 121. In the time period from 2010 to 2013, Defendants fraudulently and deceptively led 21 Plaintiff to believe that the Flushable Wipes were suitable for flushing down a toilet. Defendants 22 also failed to inform Plaintiff that the Flushable Wipes were not suitable for disposal by flushing 23 down a toilet, and the wipes are not regarded as flushable by municipal sewage systems; routinely 24 damages or clogs pipes, septic systems, and sewage pumps; and do not disperse like toilet paper. 25 122. These misrepresentations and omissions were material at the time they were made. 26 They concerned material facts that were essential to the analysis undertaken by Plaintiff as to 27 whether to purchase Defendants’ Flushable Wipes. 28 123. Defendants made identical misrepresentations and omissions to members of the-31-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page33 of 38 1 Class regarding Defendants’ Flushable Wipes. 2 124. Plaintiff and those similarly situated relied to their detriment on Defendants’ 3 fraudulent misrepresentations and omissions. Had Plaintiff and those similarly situated been 4 adequately informed and not intentionally deceived by Defendants, they would have acted 5 differently by, without limitation, not purchasing (or paying less for) Defendants’ Flushable 6 Wipes. 7 125. Defendants had a duty to inform class members at the time of their purchase of 8 that the Flushable Wipes were not suitable for flushing down a toilet, and the wipes are not 9 regarded as flushable by municipal sewage systems; routinely damage or clog pipes, septic 10 systems, and sewage pumps; and do not disperse like toilet paper. Defendants omitted to provide 11 this information to class members. Class members relied to their detriment on Defendants’ 12 omissions. These omissions were material to the decisions of the class members to purchase the 13 Flushable Wipes. In making these omissions, Defendants breached their duty to class members. 14 Defendants also gained financially from, and as a result of, their breach. 15 126. By and through such fraud, deceit, misrepresentations and/or omissions, 16 Defendants intended to induce Plaintiff and those similarly situated to alter their position to their 17 detriment. Specifically, Defendants fraudulently and deceptively induced Plaintiff and those 18 similarly situated to, without limitation, to purchase their Flushable Wipes. 19 127. As a direct and proximate result of Defendants’ misrepresentations and omissions, 20 Plaintiff and those similarly situated have suffered damages, including, without limitation, the 21 amount they paid for the Flushable Wipes. 22 128. Defendants’ conduct as described herein was willful and malicious and was 23 designed to maximize Defendants’ profits even though Defendants knew that it would cause loss 24 and harm to Plaintiff and those similarly situated. 25 PLAINTIFF’S FOURTH CAUSE OF ACTION (Negligent Misrepresentation) 26 On Behalf of Himself and the Class 27 129. Plaintiff realleges and incorporates by reference the paragraphs of this Class 28 Action Complaint as if set forth herein.-32-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page34 of 38 1 130. In the time period from 2010 to 2013, Defendants provided false and misleading 2 information regarding the Flushable Wipes, representing that the wipes were "flushable," leading 3 Plaintiff to believe that the Flushable Wipes were flushable, i.e., suitable for flushing down a 4 toilet. 5 131. These representations were material at the time they were made. They concerned 6 material facts that were essential to the analysis undertaken by Plaintiff as to whether to purchase 7 the Flushable Wipes. 8 132. Defendants made identical misrepresentations and omissions to members of the 9 Class regarding Defendants’ Flushable Wipes. 10 133. Defendants should have known their representations to be false and had no 11 reasonable grounds for believing them to be true when they were made. 12 134. By and through such negligent misrepresentations, Defendants intended to induce 13 Plaintiff and those similarly situated to alter their position to their detriment. Specifically, 14 Defendants negligently induced Plaintiff and those similarly situated to, without limitation, to 15 purchase their Flushable Wipes. 16 135. Plaintiff and those similarly situated relied to their detriment on Defendants’ 17 negligent misrepresentations. Had Plaintiff and those similarly situated been adequately informed 18 and not intentionally deceived by Defendants, they would have acted differently by, without 19 limitation, not purchasing (or paying less for) Defendants’ Flushable Wipes. 20 136. Plaintiff and those similarly situated have suffered damages, including, without 21 limitation, the amount they paid for the Flushable Wipes. Defendants’ negligent representations 22 and omissions were a substantial factor in causing the damage. 23 PLAINTIFF’S FIFTH CAUSE OF ACTION 24 (Unfair, Unlawful and Deceptive Trade Practices, Business and Professions Code § 17200, et seq.) 25 On Behalf of Himself and the Class 26 137. Plaintiff realleges and incorporates by reference the paragraphs of this Class 27 Action Complaint as if set forth herein. 28 138. Within four (4) years preceding the filing of this Class Action Complaint, and at-33-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page35 of 38 1 all times mentioned herein, Defendants have engaged, and continue to engage, in unfair, unlawful 2 and deceptive trade practices in California by engaging in the unfair, deceptive and unlawful 3 business practices outlined in this Class Action Complaint. In particular, Defendants have 4 engaged, and continue to engage, in unfair, unlawful and deceptive trade practices by, without 5 limitation, the following: 6 a. deceptively representing to Plaintiff, and those similarly situated, the 7 Flushable Wipes were suitable for flushing down a toilet; 8 b. failing to inform Plaintiff, and those similarly situated, that the Flushable 9 Wipes were not suitable for disposal by flushing down a toilet, and the wipes are not regarded as 10 flushable by municipal sewage systems; routinely damage or clog pipes, septic systems, and 11 sewage pumps; and do not disperse like toilet paper. 12 c. labeling the Flushable Wipes as "flushable," even though, under Sec. 305 13 of the California Plumbing Code, the wipes are not actually flushable, and accordingly, have 14 caused, induced, abetted, and contributed to illegal activity, namely, the flushing of non-flushable 15 materials; 16 d. engaging in fraud, deceit, and misrepresentation as described herein; 17 e. violating the CLRA as described herein; and 18 f. violating the FAL as described herein. 19 139. Plaintiff and those similarly situated relied to their detriment on Defendants’ 20 unfair, deceptive and unlawful business practices. Had Plaintiff and those similarly situated been 21 adequately informed and not deceived by Defendants, they would have acted differently by not 22 purchasing (or paying less for) Defendants’ Flushable Wipes. 23 140. Defendants’ acts and omissions are likely to deceive the general public. 24 141. Defendants engaged in these unfair practices to increase their profits. Accordingly, 25 Defendants have engaged in unlawful trade practices, as defined and prohibited by section 17200, 26 et seq. of the California Business and Professions Code. 27 142. The aforementioned practices, which Defendants have used to their significant 28 financial gain, also constitute unlawful competition and provide an unlawful advantage over-34-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page36 of 38 1 Defendants’ competitors as well as injury to the general public. 2 143. As a direct and proximate result of such actions, Plaintiff and the other members of 3 the Class have suffered and continue to suffer injury in fact and have lost money and/or property 4 as a result of such deceptive and/or unlawful trade practices and unfair competition in an amount 5 which will be proven at trial, but which is in excess of the jurisdictional minimum of this Court. 6 Among other things, Plaintiff, and those similarly situated, lost the amount they paid for the 7 Flushable Wipes. 8 144. As a direct and proximate result of such actions, Defendants have enjoyed, and 9 continue to enjoy, significant financial gain in an amount which will be proven at trial, but which 10 is in excess of the jurisdictional minimum of this Court. 11 145. Plaintiff seeks, on behalf of those similarly situated, full restitution of monies, as 12 necessary and according to proof, to restore any and all monies acquired by Defendants from 13 Plaintiff, the general public, or those similarly situated by means of the deceptive and/or unlawful 14 trade practices complained of herein, plus interest thereon. 15 146. Plaintiff seeks, on behalf of those similarly situated, a declaration that the above-16 described trade practices are fraudulent and/or unlawful. 17 147. Plaintiff seeks, on behalf of those similarly situated, an injunction to prohibit 18 Defendants from continuing to engage in the deceptive and/or unlawful trade practices 19 complained of herein. Such misconduct by Defendant, unless and until enjoined and restrained by 20 order of this Court, will continue to cause injury in fact to the general public and the loss of 21 money and property in that Defendants will continue to violate the laws of California, unless 22 specifically ordered to comply with the same. This expectation of future violations will require 23 current and future consumers to repeatedly and continuously seek legal redress in order to recover 24 monies paid to Defendants to which Defendants were not entitled. Plaintiff, those similarly 25 situated and/or other consumers nationwide have no other adequate remedy at law to ensure 26 future compliance with the California Business and Professions Code alleged to have been 27 violated herein. 28-35-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page37 of 38 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff prays for judgment as follows: 3 A. On Cause of Action Number 1 against Defendants and in favor of Plaintiff 4 and the other members of the Class: 5 1. for restitution and injunctive relief pursuant to California Civil 6 Code section 1780; 7 2 [Reserved]; and 8 3 [Reserved]. 9 B. On Causes of Action Numbers 2 and 5 against Defendants and in favor of 10 Plaintiff and the other members of the Class: 11 1. for restitution pursuant to, without limitation, the California 12 Business & Professions Code §§ 17200, et seq. and 17500, et seq.; 13 and 14 2. for injunctive relief pursuant to, without limitation, the California 15 Business & Professions Code §§ 17200, et seq. and 17500, et seq.; 16 C. On Cause of Action Number 3 against Defendants and in favor of Plaintiff 17 and the other members of the Class: 18 1. an award of compensatory damages, the amount of which is to be 19 determined at trial; and 20 2. an award of punitive damages, the amount of which is to be 21 determined at trial. 22 D. On Cause of Action Number 4 against Defendants and in favor of Plaintiff 23 and other members of the Class: 24 1. An award of compensatory damages, the amount of which is to be 25 determined at trial; 26 E. On all causes of action against Defendants and in favor of Plaintiff, class 27 members and the general public: 28 1. for reasonable attorneys’ fees according to proof pursuant to,-36-Class Action Complaint Case4:15-cv-03243-PJH Document24 Filed08/03/15 Page38 of 38 1 without limitation, the California Legal Remedies Act and 2 California Code of Civil Procedure § 1021.5; 3 2. for costs of suit incurred; and 4 3. for such further relief as this Court may deem just and proper. 5 JURY TRIAL DEMANDED 6 Plaintiff hereby demands a trial by jury. 7 Dated: August 3, 2015 GUTRIDE SAFIER LLP 8 9 10 11 _/s/Kristen G. Simplicio______________________ Adam J. Gutride, Esq. 12 Seth A. Safier, Esq. Kristen G. Simplicio, Esq. 13 Marie McCrary, Esq. 100 Pine Street, Suite 1250 14 San Francisco, California 94111 15 TYCKO & ZAVARREEI LLP Lorenzo B. Cellini 16 2000 L Street, N.W., Suite 808 17 Washington, DC 20036 18 SPANGENBERG SHIBLEY & LIBER LLP Stuart E. Scott 19 Daniel Frech 1001 Lakeside Avenue East, Suite 1700 20 Cleveland, OH 44114 21 Attorneys for Plaintiff 22 23 24 25 26 27 28-37-Class Action Complaint