Jeff Jonah v. Kimberly-Clark Corporation et al

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

Answer to Amended Complaint

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3 1 Amy P. Lally, SBN 198555 alally@sidley.com 2 Darlene M. Cho, SBN 251167 dcho@sidley.com 3 SIDLEY AUSTIN LLP 1999 Avenue of the Stars, 17th Fl. 4 Los Angeles, California 90067 Telephone: (310) 595-9500 5 Facsimile: (310) 595-9501 6 Attorneys for Defendants 7 KIMBERLY-CLARK CORPORATION; KIMBERLY-CLARK GLOBAL SALES, 8 LLC; and KIMBERLY-CLARK WORLDWIDE, INC. 9 10 UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 12 13 JEFF JONAH, an individual, on behalf of) Case No. 15-cv-03243-PJH 14 himself, the general public and those) similarly situated,) Assigned to: Hon. Phyllis J. Hamilton 15) Plaintiff,) DEFENDANTS' ANSWER TO AMENDED 16) CLASS ACTION COMPLAINT v.) 17) KIMBERLY-CLARK CORPORATION;) 18 KIMBERLY-CLARK WORLDWIDE,) Complaint Filed: June 9, 2015 INC.; KIMBERLY-CLARK GLOBAL) Trial Date: None Set 19 SALES LLC; and DOES 1 through 50)) 20 Defendants.)) 21 22 23 24 25 26 27 28 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243- PJH 3 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 Global 3 Sales, LLC and Does 1 through 50, inclusive, on behalf of himself and those similarly situated, for 4 violations of the Consumer Legal Remedies Act, false advertising, unfair trade practices, and fraud, 5 deceit and/or misrepresentation, and negligent misrepresentation. 6 ANSWER: Defendant Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., and 7 Kimberly-Clark Global Sales, LLC ("Kimberly-Clark"), for their Answer and Affirmative Defenses 8 to Plaintiff's Amended Complaint ("FAC"), Dkt. 24, answers as follows in its responses to the 9 numbered paragraphs below. Kimberly-Clark admits that Plaintiff purports to bring a class action 10 against Kimberly-Clark. Kimberly-Clark denies that Kimberly-Clark Corporation and Kimberly- 11 Clark Worldwide, Inc. are either necessary or proper parties to this suit. Kimberly-Clark states that 12 where the FAC purports to make allegations against "Defendants" Kimberly-Clark answers for all 13 named defendants while maintaining that Kimberly-Clark Global Sales, LLC is the sole proper party 14 to the action. Kimberly-Clark denies that Plaintiff is entitled to any relief, and denies that 15 certification of a class action would be appropriate. Kimberly-Clark denies any and all remaining 16 allegations contained in this paragraph of the FAC 17 INTRODUCTION 18 1. Defendants deceptively market personal hygiene moistened wipes as "flushable." 19 They charge a premium for these wipes, as compared to both toilet paper and moistened wipes that 20 are not marketed as "flushable." Despite the label, however, the wipes are not actually suitable for 21 flushing down a toilet. Specifically, Defendants' wipes do not disperse, i.e., break apart, upon 22 flushing. Instead, the wipes, when flushed as part of ordinary, consumer use, routinely (1) clog and 23 damage plumbing pipes; (2) fail to properly break down in septic tanks; (3) damage septic pumps; 24 (4) catch on screens in municipal sewage lines and must be removed from the sewer system for 25 disposal in landfills; and (5) damage municipal sewage lines and pumps, often due to the proclivity 26 of the wipes to tangle with each other, tree branches, rocks, and other non-flushable items, and form 27 large masses or ropes. Moreover, because the wipes are capable of causing damage to municipal 28 sewer systems, the mere act of flushing them is a violation of Section 305.1 of the California DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243- PJH 3 1 Plumbing Code, which prohibits flushing "any other thing whatsoever that is capable of causing 2 damage to the drainage system or public sewer." Reasonable consumers would not pay a premium to 3 obtain the benefits of a "flushable" wipe if Defendants disclosed the risks of flushing the wipes and 4 that flushing the wipes are in fact illegal. 5 ANSWER: Kimberly-Clark admits that it or its subsidiaries or affiliates, at certain times, 6 manufactured and marketed products with packaging containing the word "flushable." Kimberly- 7 Clark denies that any of its products labeled "flushable" are "deceptively marketed," and further 8 denies that there is only one possible definition of the phrase "flushable." Kimberly-Clark lacks 9 knowledge or information sufficient to form a belief as to what is meant by "premium," "toilet 10 paper" or "moistened wipes," as used in the second sentence of this paragraph, and therefore denies 11 all allegations regarding the same. Kimberly-Clark lacks knowledge or information sufficient to 12 form a belief as to what is meant by "premium" and "reasonable consumers" as used in the last 13 sentence of this paragraph, and what purported "reasonable consumers" would or would not have 14 paid had Kimberly-Clark disclosed the information Plaintiff claims should have been disclosed, and 15 therefore denies all allegations regarding the same. Kimberly-Clark denies any and all remaining 16 allegations contained in this paragraph of the FAC. 17 2. Throughout the class period, Defendants have obtained substantial profits from these 18 deceptive sales of moistened wipes marketed as flushable. This action seeks to require Defendants to 19 pay restitution and damages to purchasers of the flushable wipes, to remove the word "flushable" 20 from the product packaging and marketing, and to affirmatively inform purchasers that the wipes are 21 not suitable for flushing down a toilet. 22 ANSWER: Kimberly-Clark denies that it has engaged in "deceptive sales." Kimberly- 23 Clark admits that Plaintiff purports to bring an action for restitution, damages, and injunction but 24 denies that Plaintiff is entitled to any relief, and denies that certification of a class action would be 25 appropriate. Kimberly-Clark denies any and all remaining allegations contained in this paragraph of 26 the FAC. 27 PARTIES 28 3. Jeff Jonah ("Plaintiff") is, and at all times alleged in this Class Action Complaint was, 2 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 an individual and a resident of San Carlos, California. 2 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 3 to the truth of the allegations contained in this paragraph, and therefore denies the same. 4 4. Defendant Kimberly-Clark Corporation is a corporation incorporated under the laws 5 of the Delaware, having its principal place of business in Neenah, Wisconsin. 6 ANSWER: Kimberly-Clark admits that Kimberly-Clark Corporation is incorporated 7 under the laws of Delaware and has a principal place of business in Neenah, Wisconsin. Kimberly- 8 Clark denies that Kimberly-Clark Corporation is a proper party to this action. 9 5. Defendant Kimberly-Clark Worldwide, Inc. is a corporation incorporated under the 10 laws of the Delaware, having principal places of business in Irving, Texas and Neenah, Wisconsin. 11 ANSWER: Kimberly-Clark admits that Kimberly-Clark Worldwide, Inc. is a corporation 12 incorporated under the laws of the Delaware, having principal places of business in Irving, Texas 13 and Neenah, Wisconsin. Kimberly-Clark denies that Kimberly-Clark Worldwide, Inc. is a proper 14 party to this action. 15 6. Defendant Kimberly-Clark Global Sales, LLC is a corporation incorporated under the 16 laws of the Delaware, having its principal place of business in Irving, Texas. 17 ANSWER: Kimberly-Clark admits that Kimberly-Clark Global Sales, LLC is 18 incorporated under the laws of Delaware and has a principal place of business in Irving, Texas. 19 7. The true names and capacities of Defendants sued as Does 1 through 50, inclusive, 20 are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names pursuant to 21 section 474 of the California Code of Civil Procedure. Plaintiff will seek leave of Court to amend 22 this Class Action Complaint when said true names and capacities have been ascertained. 23 ANSWER: This paragraph pertains to Plaintiff's DOE allegations and do not require a 24 response. 25 8. The Parties identified in paragraphs 4-7 of this Class Action Complaint are 26 collectively referred to hereafter as "Defendants" or "Kimberly-Clark." 27 28 3 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark admits that the FAC collectively refers to the entities 2 identified in paragraphs 4-7 as "Defendants" or "Kimberly-Clark," but denies that all the entities are 3 proper parties to this action. 4 9. At all times herein mentioned, each of the Defendants was the agent, servant, 5 representative, officer, director, partner or employee of the other Defendants and, in doing the things 6 herein alleged, was acting within the scope and course of his/her/its authority as such agent, servant, 7 representative, officer, director, partner or employee, and with the permission and consent of each 8 Defendant. 9 ANSWER: Kimberly-Clark admits that each of the Defendants is an entity related to the 10 other Defendants. This paragraph contains allegations that constitute legal conclusions and do not 11 require a response. Kimberly-Clark denies any and all remaining allegations contained in this 12 paragraph of the FAC. 13 10. At all times herein mentioned, each of the Defendants was a member of, and engaged 14 in, a joint venture, partnership and common enterprise, and acting within the course and scope of, 15 and in pursuance of, said joint venture, partnership and common enterprise. 16 ANSWER: Kimberly-Clark admits that each of the Defendants is an entity related to the 17 other Defendants. This paragraph contains allegations that constitute legal conclusions and do not 18 require a response. Kimberly-Clark denies any and all remaining allegations contained in this 19 paragraph of the FAC. 20 11. At all times herein mentioned, the acts and omissions of each of the Defendants 21 concurred and contributed to the various acts and omissions of each and all of the other Defendants 22 in proximately causing the injuries and damages as herein alleged. 23 ANSWER: Kimberly-Clark denies that Plaintiff has suffered any injury or damage caused 24 by Kimberly-Clark. This paragraph contains allegations that constitute legal conclusions and do not 25 require a response. Kimberly-Clark denies any and all remaining allegations contained in this 26 paragraph of the FAC. 27 12. At all times herein mentioned, each of the Defendants ratified each and every act or 28 omission complained of herein. 4 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark denies that Plaintiff has suffered any injury or damage caused 2 by Kimberly-Clark. This paragraph contains allegations that constitute legal conclusions and do not 3 require a response. Kimberly-Clark denies any and all remaining allegations contained in this 4 paragraph of the FAC. 5 13. At all times herein mentioned, each of the Defendants aided and abetted the acts and 6 omissions of each and all of the other Defendants in proximately causing the damages, and other 7 injuries, as herein alleged. 8 ANSWER: Kimberly-Clark denies that Plaintiff has suffered any injury or damage caused 9 by Kimberly-Clark. This paragraph contains allegations that constitute legal conclusions and do not 10 require a response. Kimberly-Clark denies any and all remaining allegations contained in this 11 paragraph of the FAC. 12 JURISDICTION AND VENUE 13 14. This action is brought by Plaintiff pursuant, inter alia, to the California Business and 14 Professions Code, section 17200, et seq. Plaintiff and Defendants are "persons" within the meaning 15 of the California Business and Professions Code, section 17201. 16 ANSWER: Kimberly-Clark admits that, based on the allegations contained in the 17 Complaint, Plaintiff purports to bring a claim under the California Business and Professions Code, 18 section 17200. This paragraph contains allegations that constitute legal conclusions and do not 19 require a response. Kimberly-Clark denies any and all remaining allegations contained in this 20 paragraph of the FAC. 21 15. The injuries, damages and/or harm upon which this action is based occurred in or 22 arose out of activities engaged in by Defendants within, affecting, and emanating from, the State of 23 California. 24 ANSWER: Kimberly-Clark denies that this action is based on any injuries, damages, 25 and/or harm that arose out of activities engaged in by Defendants. Kimberly-Clark lacks knowledge 26 or information sufficient to form a belief as to whether the activities alleged occurred within the 27 State of California, and therefore denies the same. This paragraph contains allegations that 28 5 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 constitute legal conclusions and do not require a response. Kimberly-Clark denies any and all 2 remaining allegations contained in this paragraph of the FAC. 3 16. Defendants have engaged, and continue to engage, in substantial and continuous 4 business practices in the State of California, including in San Mateo County. 5 ANSWER: Kimberly-Clark admits that Kimberly-Clark Global Sales, LLC has conducted 6 business in the State of California, including in San Mateo County. This paragraph contains 7 allegations that constitute legal conclusions and do not require a response. Kimberly-Clark denies 8 any and all remaining allegations contained in this paragraph of the FAC. 9 17. In accordance with California Civil Code Section 1780(d), Plaintiff has filed a 10 declaration establishing that, during the class period, he purchased at least one Kimberly-Clark 11 product in San Mateo County. 12 ANSWER: Kimberly-Clark denies that a declaration filed by Plaintiff is sufficient to 13 establish that he purchased at least one Kimberly-Clark product in San Mateo. Kimberly-Clark lacks 14 knowledge or information sufficient to form a belief as to whether Plaintiff purchased a Kimberly- 15 Clark product in San Mateo, and therefore denies the same. Kimberly-Clark denies any and all 16 remaining allegations contained in this paragraph of the FAC. 17 18. Plaintiff accordingly alleges that jurisdiction and venue are proper in this Court. 18 ANSWER: Kimberly-Clark admits that, based on the allegations contained in the FAC, 19 jurisdiction and venue are proper in this Court. This paragraph contains allegations that constitute 20 legal conclusions and do not require a response. Kimberly-Clark denies any and all remaining 21 allegations contained in this paragraph of the FAC. 22 SUBSTANTIVE ALLEGATIONS 23 (1) Defendants Deceptively Market and Sell "Flushable" Wipes 24 19. Defendants are manufacturers and marketers of consumer goods, including a variety 25 of paper products, such as toilet paper, paper towels, feminine hygiene products, diapers, and baby 26 wipes. Its products are widely available for purchase in supermarkets, drug stores, and other 27 retailers. 28 6 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark denies that each entity named in this action both 2 manufactures and also markets each of the categories of goods in this paragraph of the FAC. 3 Kimberly-Clark admits that Kimberly-Clark Global Sales, LLC, or its affiliates or subsidiaries, have, 4 at certain times, manufactured and marketed the categories of products listed in this paragraph. 5 Kimberly-Clark lacks knowledge or information sufficient to form a belief as to what is meant by 6 "widely available" as used in this paragraph, and therefore denies allegations regarding the same. 7 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 8 20. Among Defendants' products are pre-moistened cloths, known as wet wipes, wipes, 9 or moist towelettes, that can be used for personal hygiene, child care needs, pet care, or cleaning. 10 This case focuses on four such pre-moistened cloths manufactured and marketed by Kimberly-Clark. 11 These products are: 12 a. Kleenex® Cottonelle® Fresh Care Flushable Wipes & Cleansing Cloths ("Cottonelle 13 Wipes") 14 b. Scott Naturals® Flushable Moist Wipes ("Scott Wipes") 15 c. Huggies® Pull-Ups® Flushable Moist Wipes ("Huggies Wipes") 16 d. U by Kotex® Refresh flushable wipes ("Kotex Wipes") 17 ANSWER: Kimberly-Clark admits that it or its affiliates or subsidiaries, have, at certain 18 times, manufactured the products listed in this paragraph of the FAC. Kimberly-Clark denies any 19 and all remaining allegations contained in this paragraph of the FAC. 20 21. In this Complaint, these products will be collectively referred to as the "Flushable 21 Wipes." 22 ANSWER: Kimberly-Clark admits that the FAC collectively refers to the products listed 23 in paragraph 20 as "Flushable Wipes." 24 22. Throughout the class period, all packages of the Flushable Wipes state that the wipes 25 are "flushable," despite the fact that the Flushable Wipes have never been and continue not to be 26 suitable for flushing. 27 ANSWER: Kimberly-Clark admits that it or its subsidiaries or affiliates, at certain times, 28 manufactured and marketed products with packaging containing the word "flushable." Kimberly- 7 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 Clark admits that Plaintiff purports to define "flushable" to mean "suitable for flushing," presumably 2 down a toilet, but denies that this is the only possible definition of "flushable." Kimberly-Clark 3 further denies that certification of a class action would be appropriate. Kimberly-Clark denies any 4 and all remaining allegations contained in this paragraph of the FAC. 5 23. Defendants advertise that their Flushable Wipes are "flushable" in a substantially 6 identical manner. In addition, although Defendants' Flushable Wipes are marketed under different 7 brand names, the underlying products are the same with regard to the materials and design 8 characteristics that Defendants claim allow the products to be labeled as "flushable." 9 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 10 to what is meant by "advertise" and "substantially identical manner," and therefore denies all 11 allegations regarding the same. Kimberly-Clark admits that it or its subsidiaries or affiliates, at 12 certain times, manufactured and marketed the products referenced in this paragraph under different 13 brand names. This paragraph contains allegations that constitute legal conclusions and do not 14 require a response. Kimberly-Clark denies any and all remaining allegations contained in this 15 paragraph of the FAC. 16 24. On the front of the Cottonelle Wipes package, Defendants advertise the product as 17 "FLUSHABLE MOIST WIPES" or as "flushable cleansing cloths." 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 2 3 4 .(bttoiielle· - re hCare- - 5 6 7 8 9 10 11 12 ANSWER: Kimberly-Clark admits that Plaintiff purports to include images that he 13 describes as "Cottonelle Wipes package[s]." Kimberly-Clark admits that the words quoted in this 14 paragraph have, at certain times, appeared on some packaging of some of its products. Kimberly- 15 Clark denies that the description or characterization of any Kimberly-Clark packaging in this 16 paragraph is complete and accurate. Kimberly-Clark denies any and all remaining allegations 17 contained in this paragraph of the FAC. 18 25. One of the packages further represents that the wipes are "SEWER AND SEPTIC 19 SAFE.*" No disclaimer appears to be associated with the asterisk. On the back of the package, 20 Defendants represent that "Cottonelle Fresh Care Flushable Cleansing Cloths break up after 21 flushing." On the backs of some packages of the Cottonelle Wipes, Defendants further state, "For 22 best results, flush only one or two cloths at a time," but this warning does not appear on all packages, 23 such as the smaller, travel size package of wipes. 24 ANSWER: Kimberly-Clark admits that the words quoted in this paragraph have, at certain 25 times, appeared on some packaging of some of its products. Kimberly-Clark denies that the 26 description or characterization of any Kimberly-Clark packaging in this paragraph is complete and 27 accurate. Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the 28 FAC. 9 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 26. On the website for the Cottonelle Wipes, Defendants inform consumers that the 2 "flushable wipes use a patented dispersible technology, which means that when used as directed they 3 break up after flushing and clear properly maintained toilets, drainlines, sewers, pumps, and septic 4 and municipal treatment systems." See https://www.cottonelle.com/products/cottonelle-fresh-care- 5 flushable-moist-wipes#faqs (last accessed Feb. 6, 2014). The website goes on to claim that the 6 Cottonelle Wipes are "Flushable," "Break up after flushing," and are "Sewer- and septic-safe." Id. 7 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize 8 information contained on the cited website but denies that such description and characterization is 9 complete and accurate. Kimberly-Clark denies any and all remaining allegations contained in this 10 paragraph of the FAC. 11 27. On the front of the Scott Wipes package, Defendants similarly advertise the product 12 as "Flushable Cleansing Cloths" and represent that each of the wipes "breaks up after flushing." 13 14 15 16 17 18 19 20 21 22 23 ANSWER: Kimberly-Clark admits that Plaintiff purports to include images that he 24 describes as "Scott Wipes package." Kimberly-Clark admits that the words quoted in this paragraph 25 have, at certain times, appeared on some packaging of some of its products. Kimberly-Clark denies 26 that the description or characterization of any Kimberly-Clark packaging in this paragraph is 27 28 10 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 complete and accurate. Kimberly-Clark denies any and all remaining allegations contained in this 2 paragraph of the FAC. 3 28. On the back of the package, Defendants go on to state that "Scott Naturals* Flushable 4 Cleansing Cloths break up after flushing and are sewer and septic system safe. For best results, flush 5 only one or two cleansing cloths at a time." No disclaimer appears to be associated with the asterisk. 6 The back of the package also states that the "flushable" cloths are "Septic Safe" and that each wipe 7 "Breaks up after flushing." 8 ANSWER: Kimberly-Clark admits that the words quoted in this paragraph have, at certain 9 times, appeared on some packaging of some of its products. Kimberly-Clark denies that the 10 description or characterization of any Kimberly-Clark packaging in this paragraph is complete and 11 accurate. Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the 12 FAC. 13 29. On the front of the Huggies Wipes package, Defendants similarly describe the 14 product as "flushable moist wipes." 15,ftMit~ DffN · r1• u c._..;, ~bl&U !011, 1>1,YI~ t~MU_~yec ~A41llS~ltu 16 17 18 19 20 21 22 23 24 ANSWER: Kimberly-Clark admits that Plaintiff purports to include images that he 25 describes as "Huggies Wipes package." Kimberly-Clark admits that the words quoted in this 26 paragraph have, at certain times, appeared on some packaging of some of its products. Kimberly- 27 Clark denies that the description or characterization of any Kimberly-Clark packaging in this 28 11 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 paragraph is complete and accurate. Kimberly-Clark denies any and all remaining allegations 2 contained in this paragraph of the FAC. 3 30. On the back, Defendants represent that the wipes are "Septic Safe" and that each 4 "Breaks up after flushing," and only advise "For best results, flush only one or two wipes at a time." 5 On the website for the Huggies Wipes, Defendants claim the wipes are "sewer and septic safe and 6 break up after flushing." See http://www.pull-ups.com/products (last accessed Sept. 5, 2014). 7 ANSWER: Kimberly-Clark admits that the words quoted in this paragraph have, at certain 8 times, appeared on some packaging of some of its products. Kimberly-Clark denies that the 9 description or characterization of any Kimberly-Clark packaging in this paragraph is complete and 10 accurate. Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the 11 FAC. 12 31. On the front of the Kotex Wipes package, Defendants likewise represent that the 13 product is "flushable." 14 15 16 17 18 19 20 21 22 Defendants provide little additional information on the back, only reiterating that the product is 23 "Flushable!" 24 ANSWER: Kimberly-Clark admits that Plaintiff purports to include images that he 25 describes as "Kotex Wipes package." Kimberly-Clark admits that the words quoted in this 26 paragraph have, at certain times, appeared on some packaging of some of its products. Kimberly- 27 Clark denies that the description or characterization of any Kimberly-Clark packaging in this 28 12 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 paragraph is complete and accurate. Kimberly-Clark denies any and all remaining allegations 2 contained in this paragraph of the FAC. 3 32. Nowhere on any of the packages for any of the brands of Flushable Wipes do 4 Defendants disclose that the wipes: (i) are not suitable for disposal by flushing down a toilet; (ii) are 5 not regarded as flushable by municipal sewage system operators; (iii) do not disperse, i.e. break 6 apart, in the sewer system like toilet paper; and (iii) after they are flushed, they routinely clog and 7 damage plumbing pipes, fail to properly break down in septic tanks, damage septic pumps, catch on 8 screens in municipal sewage lines and must be removed from the sewer system for disposal in 9 landfills, and damage municipal sewage lines and pumps, often due to the proclivity of the wipes to 10 tangle with each other, tree branches, rocks, and other non-flushable items, and form large masses or 11 ropes. 12 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 13 to what is meant by "suitable for disposal," "regarded as flushable," "municipal sewage system 14 operators," "disperse," "toilet paper," "routinely," "properly break down," "proclivity," and "non- 15 flushable items" as used in this paragraph, and therefore denies all allegations regarding the same. 16 Kimberly-Clark denies that the description or characterization of any Kimberly-Clark packaging in 17 this paragraph is complete and accurate. Kimberly-Clark denies any and all remaining allegations 18 contained in this paragraph of the FAC. 19 33. Defendants intend for consumers to understand that the Flushable Wipes are a 20 flushable product, i.e., one that is specially designed to be suitable to flush in all instances, and have 21 consistently marketed the product in that manner throughout the class period. For example, in 22 marketing the Flushable Wipes, Defendants have never advised consumers that the wipes may not be 23 suitable for flushing in certain toilets, plumbing systems, and/or municipal wastewater systems. In 24 other words, Defendants sell the product as one that is specially designed to be suitable to flush by 25 consumers in any home in any location, and not as a product intended to work only as promised 26 under unique and specified circumstances. 27 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 28 to what is meant by "flushable product," "specially designed," "flush in all instances," "not 13 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1. . . suitable for flushing in certain toilets, plumbing systems, and/or municipal wastewater systems," 2 "in any location," and "unique and specified circumstances" as used in this paragraph, and therefore 3 denies all allegations regarding the same. Kimberly-Clark denies that the description or 4 characterization of any Kimberly-Clark packaging in this paragraph is complete and accurate. 5 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 6 34. While at times, Defendants have printed in small font a disclaimer advising 7 consumers that "for best results", they should flush only one or two wipes at a time, this disclaimer 8 has never appeared on the front of the package, nor has it ever appeared in conspicuous location on 9 the package. Rather, when this disclaimer appears on the packaging, Defendants place it on the back 10 of the package, where consumers are unlikely to view it. Moreover, even when flushed in that 11 manner — one or two at at [sic] time — the Flushable Wipes are not flushable, as they will damage 12 or clog pipes, septic systems, and sewage lines and pumps, and do not disperse like toilet paper. 13 ANSWER: Kimberly-Clark admits that it or its subsidiaries or affiliates, at certain times, 14 manufactured and marketed products with packaging containing the word "for best results." 15 Kimberly-Clark lacks knowledge or information sufficient to form a belief as to what is meant by 16 "disperse like toilet paper" as used in this paragraph, and therefore denies all allegations regarding 17 the same. Kimberly-Clark denies that the description or characterization of any Kimberly-Clark 18 packaging in this paragraph is complete and accurate. Kimberly-Clark denies any and all remaining 19 allegations contained in this paragraph of the FAC. 20 35. Defendants' misrepresentations appear in all their advertising. For example, on the 21 website for the Cottonelle Wipes, Defendants inform consumers that the "Cottonelle® Flushable 22 Cleansing Cloths are flushable due to patented technology that allows them to lose strength and 23 break up when moving through the system after flushing." See 24 https://www.cottonelle.com/products/cottonelle-fresh-care-flushable-moist-wipes#faqs (last accessed 25 May 1, 2015). The website goes on to claim that the Cottonelle Wipes are "Flushable," "Break up 26 after flushing," and are "Sewer- and septic-safe." Id. Nowhere on the website do Defendants disclose 27 that the wipes are not suitable for disposal by flushing down a toilet, are not regarded as flushable by 28 municipal sewage system operators, do not disperse upon flushing, and that they routinely damage or 14 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 clog plumbing pipes, septic systems, and sewage lines and pumps. 2 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize 3 information contained on the cited website but denies that such description and characterization is 4 complete and accurate. Kimberly-Clark denies any and all remaining allegations contained in this 5 paragraph of the FAC. 6 36. In marketing the Flushable Wipes to consumers as a product to use as part of a 7 bathroom routine, Defendants know that consumers will be more likely to purchase the product in 8 addition to, or instead of, toilet paper if they believe the product is suitable for flushing down a 9 toilet. Thus, for the Flushable Wipes, Defendants intend for consumers to rely on the representation 10 that the product is "Flushable." Defendants further intend for consumers to rely on the omissions that 11 the Flushable Wipes are not suitable for disposal by flushing down a toilet, and that the wipes are: (i) 12 not regarded as flushable by municipal sewage system operators; (ii) do not disperse like toilet 13 paper; and (iii) after they are flushed, they routinely clog and damage plumbing pipes, septic pumps, 14 catch on screens in municipal sewage lines and must be removed from the sewer system for disposal 15 in landfills, and clog and damage municipal sewage lines and pumps. 16 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 17 to what is meant by "more likely to purchase" and "suitable for flushing down a toilet" as used in 18 this paragraph, and what consumers would or would not do had Kimberly-Clark disclosed the 19 information Plaintiff claims should have been disclosed, and therefore denies all allegations 20 regarding the same. Kimberly-Clark denies any and all remaining allegations contained in this 21 paragraph of the FAC. 22 37. Consumers rely on Defendants' representations because they reasonably assume that 23 a product labeled "flushable" disperses quickly like toilet paper, will not damage plumbing, and are 24 safe for sewer and septic systems. Because consumers reasonably believe the wipes are suitable for 25 flushing down a toilet, and therefore pose no greater risk to their plumbing and/or sewer and septic 26 systems than does toilet paper, they are willing to purchase them for that convenience. As such, 27 Defendants are able to charge a premium for the Flushable Wipes. For example, on Amazon.com, a 28 42-count package of Cottonelle Wipes retails for $6.27, or 14.9 cents per wipe. See 15 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 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 Ones, a 4 non-flushable wipe, retails for $2.28, or 5.7 cents per wipe. See http://www.amazon.com/Wet-Ones- 5 Citrus-Antibacterial-Canister/dp/BOOH2F85H6/ref=sr_1_4?ie=UTF8&qid=1430758258&sr=8- 6 4&keywords=wet+ones (last accessed May 4, 2015). 7 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 8 to what is meant by "reasonably assume," "disperses quickly like toilet paper," "damage plumbing," 9 "safe for sewer and septic systems," "reasonably believe," "suitable for flushing down a toilet," "no 10 greater risk. . . than. . . toilet paper," and "premium" as used in this paragraph, and what consumers 11 would or would not do had Kimberly-Clark disclosed the information Plaintiff claims should have 12 been disclosed, and therefore denies all allegations regarding the same. Kimberly-Clark lacks 13 knowledge or information sufficient to form a belief as to the price for which Cottonelle Wipes and 14 Wet Ones were available for purchase on www.amazon.com on May 4, 2015, and therefore denies 15 all allegations regarding the same, but notes that the price of Cottonelle Wipes was $2.39 or ($0.06 / 16 Count) on July 26, 2018. See http://www.amazon.com/Cottonelle-Fresh-Flushable-Moist- 17 Wipes/dp/B0000AN9KS/ref=sr_1_6?s=hpc&ie=UTF8&qid=1430758250&sr=1-&keywords 18 =cottonelle+wipes (last accessed July 26, 2018). Kimberly-Clark denies any and all remaining 19 allegations contained in this paragraph of the FAC. 20 38. If consumers knew that the Flushable Wipes were not suitable for flushing down a 21 toilet, they would not pay a premium for the product, but rather, would opt to purchase the cheaper, 22 non-flushable items and dispose of them in trash cans. 23 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 24 to what is meant by "suitable for flushing down a toilet," "premium," or "cheaper non-flushable 25 items," as used in this paragraph, and what consumers would or would not do had Kimberly-Clark 26 disclosed the information Plaintiff claims should have been disclosed, and therefore denies all 27 allegations regarding the same. Kimberly-Clark denies any and all remaining allegations contained 28 in this paragraph of the FAC. 16 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 (2) The Flushable Wipes Are Not Flushable 2 (2)(a) "Flushable" Means "Suitable For Disposal by Flushing Down a Toilet" 3 39. As defined by Webster's Dictionary, "flushable" means "suitable for disposal by 4 flushing down a toilet." 5 ANSWER: Kimberly-Clark lacks information or belief as to what "Webster's Dictionary" 6 refers to and therefore denies allegations regarding the same. Kimberly-Clark denies that there is 7 only one possible definition of "flushable." Kimberly-Clark denies any and all remaining allegations 8 contained in this paragraph of the FAC. 9 40. Many objects and materials theoretically will pass from the toilet to sewer pipes after 10 being flushed, such as food scraps, jewelry, small toys, or cotton swabs, but that does not make such 11 objects or materials "flushable." Rather, the word "flushable" means not just that the object or 12 material is capable of passing from the toilet to sewer pipes, but that the object or material is 13 appropriate or suitable to flush down a toilet for purposes of disposal via the sewer or septic system. 14 The concept that "flushable" means that a product safely passes from home toilet to its endpoint, 15 either by properly disintegrating in a septic tank or passing without incident to the municipal sewer 16 system, is one that is uniformly accepted by wastewater treatment system operators and the wipes 17 industry. 18 ANSWER: Kimberly-Clark lacks information or belief as to what is meant by 19 "theoretically will pass," "appropriate or suitable to flush down a toilet," "safely passes," "properly 20 disintegrating," or "without incident," as used in this paragraph, or what is purportedly "uniformly 21 accepted by wastewater treatment system operators and the wipes industry," and therefore denies 22 allegations regarding the same. Kimberly-Clark denies that there is only one possible definition of 23 "flushable." Kimberly-Clark denies any and all remaining allegations contained in this paragraph of 24 the FAC. 25 41. Defendants' definition of flushable is consistent with industry usage and has been 26 throughout the class period. Defendants are members of the Association of the Nonwoven Fabrics 27 Industry ("INDA"), which publishes a reference document for the industry called "Guidance 28 Document for Assessing the Flushability of Nonwoven Disposable Products." ("INDA Guidelines") 17 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 Each version of the INDA Guidelines has used a definition of "flushable" that is similar as the one 2 used by Defendants. For example, in the most recent edition of the INDA Guidelines, the Third 3 Edition published in June 2013, INDA included the following: 4 Defln[tf.on o1 FlushabfllW 5 For a product to be deemed flushable there must be evidence lndicatirtg that it: and properly mainbtned draim;ge pipe systems when the sup,piienl • Ctears toile-ls 6 recommeniJed us:age instruc:tion:i are correctly followed; · • P:;i;.91"" thro11;gt1 v.r;;ii'Sf@\.11::atP.r t:o.n ~y~.n(:I? ~y,t;J,l'm~::1nd 11' oom p~i:fhliQ wlth v,r.11qlE'w;ll:t~r 7 treatment; reuse .and dlsposa,I. systems withc,ut c;imsing system blockage, doggtng or other,operation:al prob:lems; 8 • Is unreoognlzabl121n effitumt leavtng ons!ite and municipal wastewater trt!atmi:nt systt1ms and in digested s'liudge from wastewater treatment plants that a:re applied to roll. 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 guidelines 12 contained similar definitions. 13 ANSWER: Kimberly-Clark admits that INDA is a trade association that has developed 14 guidelines related to flushability, including the "Guidance Document for Assessing the Flushability 15 of Nonwoven Disposable Products" and that Kimberly-Clark Corporation is a member of INDA. 16 Kimberly-Clark denies that INDA guidelines are the sole basis for Kimberly-Clark's decision to 17 label any product "flushable." Kimberly-Clark lacks information or belief as to what appeared on 18 the cited websites on the alleged accessed dates, and therefore denies allegations regarding the same. 19 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 20 42. The Industry's definition of the term "flushable" is consistent with the generally 21 accepted consumer understanding of the word. Reasonable consumers understand "flushable" to 22 mean suitable for disposal by flushing down a toilet. That is, reasonable consumers understand 23 products labeled "flushable" to be products that can be flushed down the toilet without risk of 24 damage to the plumping in their homes or municipal sewer systems. 25 ANSWER: Kimberly-Clark lacks information or belief as to what is meant by "Industry," 26 "generally accepted consumer understanding," "reasonable consumers," "suitable for disposal by 27 flushing down a toilet," or "without risk of damage to the plumping in their homes or municipal 28 18 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 sewer systems," as used in this paragraph, or what purportedly "reasonable consumers" understand 2 and do not understand, and therefore denies allegations regarding the same. Kimberly-Clark denies 3 that there is only one possible definition of "flushable." Kimberly-Clark denies any and all 4 remaining allegations contained in this paragraph of the FAC. 5 43. The State of California also accepts that the term "flushable" considers the entire 6 process from home toilet to wastewater treatment. To ensure that only "flushable" products are 7 flushed, the State of California has made it illegal "to deposit, by any means whatsoever, into a 8 plumbing fixture, floor drain, interceptor, sump, receptor, or device, which is connected to a 9 drainage system, public sewer, private sewer, septic tank, or cesspool, any ashes; cinders; solids; 10 rags; inflammable, poisonous, or explosive liquids or gases; oils; grease; or any other thing 11 whatsoever that is capable of causing damage to the drainage system or public sewer." California 12 Code of Regulations, Title 24, Part 5, Chapter 3, California Building Standards, Sec. 305.1. 13 ANSWER: Kimberly-Clark lacks information or belief as to what the State of California 14 accepts or does not accept as to what is "flushable," and therefore denies allegations regarding the 15 same. Kimberly-Clark denies that there is only one possible definition of "flushable." Kimberly- 16 Clark admits that this paragraph contains an accurate quote of California Code of Regulations, Title 17 24, Part 5, Chapter 3, California Building Standards, Sec. 305.1 but denies that the referenced 18 building standard provides any basis for liability against Kimberly-Clark. This paragraph contains 19 allegations that constitute legal conclusions and do not require a response. Kimberly-Clark denies 20 any and all remaining allegations contained in this paragraph of the FAC. 21 (2)(b) Products That Do Not Disperse Upon Flushing Are Not Flushable 22 44. The only products that uniformly do not damage damage [sic] plumbing pipes and 23 pumps, septic tanks, and/or municipal sewage lines and pumps are products such as toilet paper that 24 disperse quickly in wastewater, i.e., break apart entirely into unrecognizable particles within a 25 minute or two of being flushed. The benefits of a quickly dispersing product are that it will not 26 tangle with other items in the sewer, cause clogs or damage to plumbing pipes, septic or municipal 27 sewer pumps, or otherwise need to be removed from screens in the wastewater treatment system or 28 filtered out of wastewater prior to treatment. On the other hand, products that do not disperse or are 19 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 slow to disperse cannot safely be flushed. When these materials remain in tact or in larger pieces, 2 they are prone to tangling with one another and with other debris, forming large ropes or masses that 3 can cause pipe blockages. In addition, larger pieces are more likely to get caught on screens and 4 filters in the municipal wastewater system and must be removed and disposed of in a landfill. Large 5 pieces also clog municipal sewer pumps, resulting in damage and the need for costly repairs. As a 6 result of the potential for damage resulting from flushing non-dispersing products, any product that 7 does not efficiently disperse in wastewater is not flushable, and is "capable of causing damage to the 8 drainage system or public sewer," rendering it illegal to flush under California law. 9 ANSWER: Kimberly-Clark lacks information or belief as to what is meant by "uniformly 10 do not damage," "quickly dispersing product," or "damage," as used in this paragraph, and what is 11 purportedly "likely" or not likely to happen to items that are flushed, and therefore denies allegations 12 regarding the same. Kimberly-Clark denies that there is only one possible definition of "flushable." 13 This paragraph contains allegations that constitute legal conclusions and do not require a response. 14 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 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 like 18 toilet paper. These organizations have routinely criticized the labeling of non-dispersing wipes, such 19 as the Flushable Wipes, as flushable. For example, the Water Environment Federation (WEF), a 20 nonprofit association of water quality professionals, has explained which products should be labeled 21 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 23 wastewater system in a matter of seconds…Anything labeled as flushable should start to break apart during the flush and completely disperse within 5 24 minutes… Our 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 quotations 26 omitted). WEF further reports that consumers flush nondispersible wipes because they are 27 "mislabeled" as "flushable," when they do not disperse like toilet paper. Id. 28 20 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark lacks information or belief as to what is meant by "disperse 2 quickly" or "unanimously," as used in this paragraph, and as to the purported damage caused to 3 septic systems and public water systems, and therefore denies allegations regarding the same. 4 Kimberly-Clark denies that there is only one possible definition of "flushable." Kimberly-Clark 5 denies that its products are "mislabeled." Kimberly-Clark lacks information or belief as to what 6 appeared on the cited websites on the alleged accessed dates, and therefore denies allegations 7 regarding the same. Kimberly-Clark denies any and all remaining allegations contained in this 8 paragraph of the FAC. 9 46. Municipal wastewater treatment operators and water protection organizations, and 10 related associations, are in agreement with WEF that the only product other than human excrement 11 suitable for disposal down a toilet is toilet paper. For example, the California Association of 12 Sanitation Agencies has stated: 13 Many personal hygiene wipes and cleaning products are marketed as being "flushable." But despite the confusing and misleading labels you should 14 never flush "flushable" or "disposable" products. No matter what a label says, the only items you should flush are human waste and toilet paper. Just 15 because something disappears down your toilet doesn't mean it won't cause a problem in your sewer pipe—or further down the line at wastewater 16 treatment facilities. Items labeled as "flushable" or "disposable" (even "bio- degradable" ones) can get caught on roots in sewer pipes and contribute to 17 blockages, back-ups, and overflows. 18 Dispose of them in the trash, not the toilet! 19 See http://www.casaweb.org/flushable-wipes (last accessed February 24, 2015). 20 ANSWER: Kimberly-Clark lacks information or belief as to what is meant by "suitable 21 for disposal down a toilet," as used in this paragraph, and as to any purported agreement by 22 municipal wastewater treatment operators and water protection organizations, and related 23 associations, with WEF, and therefore denies allegations regarding the same. Kimberly-Clark denies 24 that there is only one possible definition of "flushable." Kimberly-Clark lacks information or belief 25 as to what appeared on the cited websites on the alleged accessed dates, and therefore denies 26 allegations regarding the same. Kimberly-Clark denies any and all remaining allegations contained 27 in this paragraph of the FAC. 28 47. San Francisco Public Utilities Commission officials have stated that with the 21 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 exception of toilet paper and human waste, "Everything else should go in the trash" and should not 2 be flushed. See http://www.sfexaminer.com/sanfrancisco/flushable-wipes-cause-problematic- 3 backups-at-local-sewage-plants/Content?oid=2514283 (last accessed February 24, 2015). 4 ANSWER: Kimberly-Clark lacks information or belief as to what San Francisco Public 5 Utilities Commission officials have stated to the San Francisco Examiner, and therefore denies 6 allegations regarding the same. Kimberly-Clark lacks information or belief as to what appeared on 7 the cited websites on the alleged accessed dates, and therefore denies allegations regarding the same. 8 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 9 48. The East Bay Municipal Utility District states: 10 Non-Flushable Wipes and Products 11 No matter if the label says "disposable" or "flushable," cleaning and personal hygiene products should never be flushed. 12 "Disposable" or "flushable" wipes and other products don't breakdown in 13 the sewer. Instead, they get tangled and clumped in hair and debris creating massive obstructions in the sewers. Remember… your toilet is not a trash 14 can! 15 See https://www.ebmud.com/water-and-wastewater/pollution-prevention/residential-pollution- 16 prevention (last accessed February 26, 2015). 17 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 18 cited websites but denies that Plaintiff's description and characterization is complete and accurate. 19 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 20 49. The City of Carlsbad Wastewater Superintendent Don Wasko has stated: 21 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 22 same way that toilet paper does. 23 See http://news.carlsbadca.gov/news/flushable-wipes-and-other-things-you-should-not-flush (last 24 accessed February 24, 2015). 25 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 26 cited websites but denies that Plaintiff's description and characterization is complete and accurate. 27 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 28 50. And in Contra Costa, County, the Central Contra Costa Sanitary District has said that 22 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 pre-moistened wipes are not flushable because "they don't break down as quickly as toilet paper and 2 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 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 6 cited websites but denies that Plaintiff's description and characterization is complete and accurate. 7 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 8 51. Wastewater treatment operators outside of California have issued similar statements. 9 For example, operators of the wastewater treatment system in Pima County, Arizona, issued a 10 release stating that, "Unfortunately, disposable wipes are rarely, if ever, biodegradable in the 11 sanitary sewer system. They just aren't in there long enough to break down." See 12 http://www.insidetucsonbusiness.com/blogs/save-yourselves-stfop-flushing-flushable- 13 wipes/article_e4db48de-312f-11e3-843e-001a4bcf887a.html (last accessed March 30, 2015). 14 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 15 cited websites but denies that Plaintiff's description and characterization is complete and accurate. 16 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 17 (2)(c) The Flushable Wipes Are Not a Flushable Product. 18 52. Even though Defendants advertise the Flushable Wipes as "flushable," and intend for 19 this representation to mean that they are suitable for disposal by flushing down a toilet without 20 harming septic tanks or sewer systems, the Flushable Wipes are not in fact flushable. 21 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 22 to what is meant by "advertise," "suitable for disposal by flushing down a toilet," or "harming," and 23 therefore denies all allegations regarding the same. Kimberly-Clark denies that there is only one 24 possible definition of "flushable." Kimberly-Clark denies any and all remaining allegations 25 contained in this paragraph of the FAC. 26 53. First, the Flushable Wipes are not designed to break apart or disperse in water, but 27 rather are specially manufactured to remain strong and durable while wet. In fact, throughout the 28 class period, all four brands of Flushable Wipes have been manufactured using the same proprietary 23 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 paper blend, for which Defendants own the patent. To manufacture the paper, Defendants use an 2 "air-laid" process, which creates strong knots of fibers that will not break down easily when 3 submersed in water. Unlike toilet paper, which is a dry paper product designed to fall apart in water, 4 all of the Flushable Wipes are sold as pre-moistened products, and thus, the paper used to make them 5 is designed to withstand months of soaking in a wet environment. Defendants make the paper so 6 strong, in fact, that it cannot efficiently disperse when placed in the water in a toilet. 7 ANSWER: Kimberly-Clark admits that its products use patented technology. Kimberly- 8 Clark admits that Plaintiff purports to describe certain characteristics of flushable wipes generally 9 but denies that such description is complete and accurate. Kimberly-Clark lacks knowledge or 10 information sufficient to form a belief as to what is meant by "specially manufactured," "paper 11 blend," "strong knots," "break down easily," "submersed in water," "designed to fall apart," 12 "soaking in a wet environment, or "efficiently disperse" as used in this paragraph, and therefore 13 denies allegations regarding the same. Kimberly-Clark denies any and all remaining allegations 14 contained in this paragraph of the FAC. 15 54. A consumer who purchases any of the four brands of Flushable Wipes will find, upon 16 opening the package, sheets of moist paper, dampened by a coating of wet lotion. Because weeks, 17 months, or longer will pass between the time a Flushable Wipe is manufactured and the time at 18 which it is ultimately used by a consumer, the paper used to manufacture it must be strong enough to 19 sit in a still, wet environment for extremely long periods of time. Thus, in selecting the paper used to 20 manufacture their Flushable Wipes, Defendants designed a paper that is strong enough to withstand 21 months of soaking in wet environment and cannot possibly efficiently disperse when placed in more 22 water. 23 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe certain 24 characteristics of flushable wipes generally but denies that such description is complete and accurate. 25 Kimberly-Clark lacks knowledge or information sufficient to form a belief as to what is meant by 26 "wet lotion," "a still, wet environment," "extremely long periods of time," "soaking in wet 27 environment," or "efficiently disperse," as used in this paragraph, and therefore denies allegations 28 24 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 regarding the same. Kimberly-Clark denies any and all remaining allegations contained in this 2 paragraph of the FAC. 3 55. Second, while Defendants acknowledge and admit that a "flushable" product must be 4 one that is compatible with wastewater treatment facilities, as well as home plumbing and septic 5 systems, Defendants have for years ignored wastewater treatment operators and organizations which 6 state that only dispersible products are flushable. Instead of using standards and guidelines 7 recommended by those actually treating wastewater, Defendants have elected to test "flushability" 8 using the flawed INDA Guidelines, which Defendants participated in drafting, and which were 9 engineered to ensure that Defendants' wipes can pass them. Thus, while all of the Flushable Wipes 10 can pass a self-serving set of guidelines, the guidelines are heavily flawed and do not adequately 11 measure whether a product is safe for disposal by flushing down a toilet. 12 ANSWER: Kimberly-Clark denies that INDA guidelines are the sole basis for Kimberly- 13 Clark's decision to label any product "flushable." To the extent the allegations in this paragraph 14 pertain to conduct and actions by INDA, Kimberly-Clark lacks knowledge or information sufficient 15 to form a belief about any such allegations, and therefore denies allegations regarding the same. 16 Kimberly-Clark lacks knowledge or information sufficient to form a belief about what is meant by 17 "dispersable products," "self-serving," "heavily flawed," "adequately measure," or "safe for disposal 18 by flushing," as used in this paragraph, and on that basis denies any allegations regarding the same. 19 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 20 56. For example, the Flushable Wipes purportedly have passed the "Slosh Box 21 Disintegration Test" or "FG502" test appearing in the Third Edition of the INDA Guidelines. The 22 test purports to measure dispersability, as it assesses the potential for a product to disintegrate when 23 it is submerged in water and subjected to agitation. To conduct the test, the test material is placed in 24 a box of tap water. Testers then mechanically agitate the water, and time how long it takes for the 25 test material to disintegrate. But the test is rigged so that even non-dispersible products pass it: 26 Defendants and INDA have agreed that the standard for "passing" this test is not whether the product 27 mimics the flushable and dispersible toilet paper or even that the product will break down during or 28 shortly after a flush. Rather, the test only requires that after three hours of agitation in the slosh 25 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 box, more than 25% of the wipe passes through a 12 5 millimeter (roughly a half inch) sieve 80% of 2 the time. See http://www.njwea.org/pdf/2013-guidelines-for-assessing-the-flushability-of- 3 disposable-nonwoven-product.pdf (last accessed March 24, 2015) (emphasis added). In other words, 4 the test is still passed even if after more than three hours of agitation, nearly three-quarters of the 5 material is unable to pass through the sieve. In "real world" terms, this means that wipes that pass 6 the slosh box test can still be 75% in tact and are prone to catching on screens in the wastewater 7 treatment system, preventing wastewater from moving through sewer pipes efficiently, and must be 8 removed from the wastewater system and disposed of in landfills. 9 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 10 "Slosh Box Disintegration Test," and the cited websites, but denies that Plaintiff's description and 11 characterization is complete and accurate. Kimberly-Clark denies that the Slosh Box Disintegration 12 Test is the sole basis for Kimberly-Clark's decisions to label any product "flushable." Kimberly- 13 Clark denies any and all remaining allegations contained in this paragraph of the FAC. 14 57. When subjected to the Slosh Box Disintegration Test, a typical piece of toilet paper 15 begins to break down as soon as the water in the slosh box begins to move, and is completely 16 dispersed within in a few seconds. See http://www.consumerreports.org/cro/video-hub/home-- 17 garden/bed--bath/are-flushable-wipes-flushable/16935265001/22783507001/ (last accessed March 18 30, 2015). Thus, when flushed down a toilet, toilet paper will typically break apart within seconds 19 after flushing (id.), during the time when the flushed water is agitated and flowing as a result of the 20 consumer triggering the flushing mechanism on the toilet. In comparison, the Flushable Wipes do 21 not even begin to disperse immediately after flushing. (Id.) Rather, Defendants' own website reveals 22 that the Wipes begin to break down 35 minutes after flushing, and take hours to completely 23 disperse. See http://www.kimberly- 24 clark.com/newsroom/media_resources/safetoflush.aspx?print=true (last accessed Feb. 21, 2014). But 25 after being flushed down a home toilet, the Wipes will not be subjected to minutes or hours of 26 constant, forceful agitation like in the Slosh Box test. Without this, the Wipes will take even longer 27 to disperse. This extremely slow disintegration time means that wipes are likely to get clogged in the 28 pipes during and after flushing. Nevertheless, Defendants and INDA have agreed that non- 26 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 dispersible products such as the Flushable Wipes can be labeled as "flushable" provided they pass 2 this weak Slosh Box test standard. 3 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 4 "Slosh Box Disintegration Test," and the cited websites, but denies that Plaintiff's description and 5 characterization is complete and accurate. Kimberly-Clark denies that the Slosh Box Disintegration 6 Test is the sole basis for Kimberly-Clark's decisions to label any product as "flushable." Kimberly- 7 Clark denies any and all remaining allegations contained in this paragraph of the FAC. 8 58. Wastewater treatment operators criticize the Slosh Box Disintegration Test as it does 9 not properly mimic the force and movement of products through the wastewater system. As one 10 professional noted, the test is "a lot more turbulent than the flow that you find in a wastewater pipe." 11 http://www.nytimes.com/2015/03/15/nyregion/the-wet-wipes-box-says-flush-but-the-new-york-city- 12 sewer-system-says-dont.html?_r=0 (last accessed March 24, 2015). Another explained that the Slosh 13 Box Disintegration Test is "way more violent than you would see in a sewer" and that it "is not 14 acceptable to the wastewater industry because it is too long (three hours), too aggressive, and does 15 not replicate the flow conditions in a gravity sewer. http://www.aeanj.org/aea- 16 uploads/28932_Fall_low_res.pdf (last accessed March 24, 2015). Because sewer systems typically 17 move sewage to the plant via gravity, the water flow is more gentle and therefore not as hard on the 18 wipes as the agitating water in the Slosh Box Disintegration Test, meaning that the wipes will not 19 break down as quickly in actual conditions as they do in Defendants' lab simulated tests. 20 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 21 to what is meant by "properly mimic," or "typically," as used in this paragraph, or what purported 22 wastewater treatment operators have said about the Slosh Box Disintegration Test and therefore 23 denies allegations regarding the same. Kimberly-Clark admits that Plaintiff purports to describe and 24 characterize the cited websites but denies that Plaintiff's description and characterization is complete 25 and accurate. Kimberly-Clark denies any and all remaining allegations contained in this paragraph 26 of the FAC 27 59. The Slosh Box Disintegration Test is further flawed because wastewater utility 28 officials say that wipes can reach a sewage treatment pump in as quickly as a few minutes, much 27 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 faster than the hours needed for Defendants' wipes to begin to break down. See 2 http://www.washingtonpost.com/local/trafficandcommuting/flushable-personal-wipes-clogging- 3 sewer-systems-utilities-say/2013/09/06/9efac4e6-157a-11e3-a2ec-b47e45e6f8ef_story.html (last 4 accessed March 30, 2015). Further, the moist lotion used in manufacturing the wipes results in them 5 traveling faster through pipes with flowing water than ordinary products. See 6 http://www.woai.com/articles/woai-local-news-119078/disposable-wipes-causing-nightmare-for- 7 san-11718265/ (last accessed February 26, 2014). 8 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 9 to what is meant by "flawed," "moist lotion" or "ordinary products" as used in this paragraph, and 10 therefore denies allegations regarding the same. Kimberly-Clark admits that Plaintiff purports to 11 describe and characterize the cited websites but denies that Plaintiff's description and 12 characterization is complete and accurate. Kimberly-Clark denies any and all remaining allegations 13 contained in this paragraph of the FAC. 14 60. Because the wipes are always intact after a few minutes, and largely intact even after 15 hours of agitation, they arrive at wastewater treatment facilities intact, where they create the 16 problems described in paragraphs 68-70. 17 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 18 to what is meant by "intact," "largely intact" or "agitation" as used in this paragraph, and therefore 19 denies allegations regarding the same. Kimberly-Clark denies any and all remaining allegations 20 contained in this paragraph of the FAC. 21 61. The other tests run as part of the INDA Guidelines are similarly flawed. For example, 22 both the Slosh Box Disintegration Test described in paragraph 56 and the "Aerobic 23 Biodisintegration" FG505 test, assess the wipes' ability to disintegrate under constantly agitated 24 water. See http://www.njwea.org/pdf/2013-guidelines-for-assessing-the-flushability-of-disposable- 25 nonwoven-product.pdf (last accessed March 24, 2015). Since the Flushable Wipes are unlikely to be 26 subjected to the same agitating water in actual conditions as they are subjected to in Defendants' lab, 27 the tests are not reliable predictors of whether the Flushable Wipes are suitable for flushing down a 28 toilet. The result is that many of the Flushable Wipes arrive at the sewage treatment plant intact or 28 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 insufficiently broken down. 2 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 3 to what is meant by "flawed," "constantly agitated water," "actual conditions," "agitating water," 4 "reliable predictors" or "insufficiently broken down" as used in this paragraph, and therefore denies 5 allegations regarding the same. Kimberly-Clark denies that INDA tests are the sole basis for 6 Kimberly-Clark's decisions to label any product as "flushable." Kimberly-Clark admits that 7 Plaintiff purports to describe and characterize the cited websites but denies that Plaintiff's 8 description and characterization is complete and accurate. Kimberly-Clark denies any and all 9 remaining allegations contained in this paragraph of the FAC. 10 62. The tests are further flawed in that they fail to take into account the wipes' propensity 11 for "ragging." After being flushed down the toilet, the Flushable Wipes have a propensity to tangle 12 amongst one another and with other debris, and form long ropes that can fill sewer lines for tens of 13 feet. See http://www.hsconnect.com/page/content.detail/id/590706/Concerns-on-wipes-no-laughing- 14 matter.html?nav=5005 (last accessed March 30, 2015). The tests however, assume that wipes are 15 passing through pipes and pumps one at a time, instead of in clumps of rags and ropes. For example, 16 while the Slosh Box Disintegration Test only considers what one wipe will do, there will often be 17 multiple wipes in a pipe at a time. The bigger the mass of wipes, the slower the dispersement time. 18 See http://www.washingtonpost.com/local/trafficandcommuting/flushable-personal-wipes-clogging- 19 sewer-systems-utilities-say/2013/09/06/9efac4e6-157a-11e3-a2ec-b47e45e6f8ef_story.html (last 20 accessed March 30, 2015). 21 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize 22 certain "tests" used by Defendants but denies that Plaintiff's description and characterization is 23 complete and accurate. Kimberly-Clark admits that Plaintiff purports to describe and characterize 24 the cited websites but denies that Plaintiff's description and characterization is complete and 25 accurate. Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the 26 FAC. 27 63. In the Third Edition of the INDA Guidelines, the FG507 test, or the Municipal Pump 28 Test, was introduced. Prior to 2013, "flushable" wipes were not even tested for their compatibility 29 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 with municipal sewer pumps, even though a wipe's ability to pass through these pumps without 2 causing damage, clogs, and excessive power draws, is a critical component to consider when 3 analyzing whether a product is compatible with wastewater treatment systems. 4 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 5 "Municipal Pump Test," but denies that Plaintiff's description and characterization is complete and 6 accurate. Kimberly-Clark denies that the Municipal Pump Test is the sole basis for Kimberly- 7 Clark's decisions to label any product as "flushable." Kimberly-Clark lacks knowledge or 8 information as to what is meant by "municipal sewer pumps," "ability to pass through," "damage," 9 "excessive power draws," or "critical component," as used in this paragraph, and therefore denies 10 allegations regarding the same. Kimberly-Clark denies any and all remaining allegations contained 11 in this paragraph of the FAC. 12 64. The newly added Municipal Pump Test is flawed, however. For example, to conduct 13 that test, Defendants and INDA have agreed to only introduce one wipe every ten seconds into the 14 pump to assess whether the pump can process the wipes. See http://www.njwea.org/pdf/2013- 15 guidelines-for-assessing-the-flushability-of-disposable-nonwoven-product.pdf, p. 18 (last accessed 16 March 24, 2015). Because the non-dispersible Flushable Wipes are likely to entangle with other 17 wipes and debris, they are unlikely to enter the pump one at a time. Instead, they reach the pump in 18 larger clumps, increasing the likelihood that they will break or clog it. 19 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 20 "Municipal Pump Test," but denies that Plaintiff's description and characterization is complete and 21 accurate. Kimberly-Clark denies that the Municipal Pump Test is the sole basis for Kimberly- 22 Clark's decision to label any product as "flushable." Kimberly-Clark lacks knowledge or 23 information as to what is meant by "flawed," "agreed to," "process the wipes," "likely" or "unlikely" 24 as used in this paragraph, and therefore denies allegations regarding the same. Kimberly-Clark 25 denies any and all remaining allegations contained in this paragraph of the FAC. 26 (3) Because the Flushable Wipes Are Not Suitable For Flushing Down a Toilet, They Wreak 27 Havoc When Flushed. 28 65. Consumers and municipalities all over the country have complained about the 30 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 damage caused when flushing the Flushable Wipes. 2 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 3 to what is meant by "all over the country" or "complained" as used in this paragraph, and therefore 4 denies allegations regarding the same. Kimberly-Clark denies any and all remaining allegations 5 contained in this paragraph of the FAC. 6 66. In April 2015, the City of Wyoming, Minnesota filed a lawsuit against Defendant 7 Kimberly-Clark Corporation and other manufacturers of "flushable" wipes on behalf of a class of 8 municipalities. The City of Wyoming seeks damages for the harm caused to municipalities' sewer 9 systems. 10 ANSWER: Kimberly-Clark admits that a lawsuit entitled City of Wyoming, et al. v. 11 Procter & Gamble Company, et al. was filed in the United States District Court for the District of 12 Minnesota, case number 15-2101, in which Kimberly-Clark Corporation is a named defendant. 13 Kimberly-Clark admits that Plaintiff purports to describe and characterize the lawsuit but denies that 14 Plaintiff's description and characterization is complete and accurate. Kimberly-Clark denies any and 15 all remaining allegations contained in this paragraph of the FAC. 16 67. Numerous consumers have complained that Defendants' Wipes are falsely labeled as 17 "flushable" because they are not suitable for disposal by flushing down a household toilet. For 18 example on Defendants' own website, numerous consumers have complained of damage caused by 19 the wipes to their household plumbing: 20 sugah - August 15, 2014 just had to pay over 300.00 today, from using cottonelle flushable cleansing 21 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 22 were told 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. 23 they are not sewer and septic safe..just ask anyone who has just experienced what we have today, I will make sure all my friend know about this… you 24 should be called out on this, we are retired, and this is not in the budget !!! 25 Richard - June 24, 2013 A few months after flushing the wipes down my toilets and into my septic 26 system it clogged the underground filter. I had the 1000 gallon storage tank pumped and it was disgustingly obvious that the Cottonelle wipes were the 27 culprit. They do not 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 28 septic systems you will see that it is written to confuse the consumer. It 31 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 focuses on "flushability" which only gets these things down the toilet but not through a septic system. 2 Kenneth - June 1, 2013 3 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 4 septic I 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 5 apart. This is not suitable for a septic!!! 6 tlkflat - April 24, 2013 DO NOT use with the newer rural waste water treatment systems like a JET 7 system. They will clog the booster pump and then tangle in the air pump spinner, VERY costly repair. 8 Doug - March 18, 2013 9 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. 10 At my bed 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. 11 See https://www.cottonelle.com/products/cottonelle-fresh-care-flushable-moist-wipes/review (last 12 accessed September 3, 2014). 13 ANSWER: Kimberly-Clark admits that some posts on the internet have "complained" 14 about some Kimberly-Clark products. Kimberly-Clark lacks knowledge or information sufficient to 15 form a belief as to the experiences or beliefs of individuals who have posted complaints on the 16 internet, and therefore denies any allegations regarding the same. Kimberly-Clark denies any and all 17 remaining allegations contained in this paragraph of the FAC. 18 68. For example, in Bakersfield, California, the city found that none of the brands of 19 "flushable" wipes tested, including Defendants' Cottonelle Wipes, actually broke apart in the sewer; 20 instead, they ended up as giant clogs at the treatment plant. 21 22 23 24 25 26 27 28 32 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 2 3 4 5 6 7 8 9 10 See http://www.turnto23.cominews/local-news/bakersfield-sewer-systems-keep-getting-clogged- 11 because-of-flushable-bathroom-wipes-092413 (last accessed August 28, 2014). As a result of the 12 Flushable Wipes failure to flush and clear pipes, crews of three or four workers in Bakersfield must 13 regularly visit the city's 52 sewage lift stations to cut up the balls of wipes that clog the lift stations. 14 If they do not, there is a risk that back flow damage will spill inside homes. The city has documented 15 one of the clogs: 16 17 18 19 20 21 22 23 24 25 Id. 26 27 28 33 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 2 cited websites but denies that Plaintiff's description and characterization is complete and accurate. 3 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 4 69. In Jacksonville Beach, Florida, in response to city official concerns, a news outlet 5 broadcasted a "Consumer Alert" to explain that while Cottonelle and Scott Wipes are advertised as 6 being able to be flushed, "there is little truth in the advertisements." See 7 http://www.news4jax.com/news/officials-flushable-wipes-clog-pipes/4475880/23740904/-/t5h2vrz/- 8 /index.html (last accessed August 28, 2014). 9 Officials: Flushable wipes clog pipes Author: Ashley Mitchem, Morning traffic, news reporter, amitchem@wjxlcom 10 Christopher Yazbec, News editor, News4Jax.com, cyazbec@wjxt.com Pub!i&hed::>n: Jan 02 2014 02.37:5:5 PM EST J UpdataaOn: Jan 02 2C14 05:40i)() PM EST A A A,t4Print I •-1 +i::l::d:i·I - ~ s+1 W Tweet 14 I 'Plnlt 11 f 12 13 14 15 16 17 • .-,-,.- ---------------------.-,.-34 ..):: ••. 18 19 Rather, the reporters explained, Defendants' Flushable Wipes do not break apart after being 20 flushed and clog pipes and pumps. The reporters quoted city estimates that because of the time and 21 money expended in dealing with clogs, consumers pay higher plumbing repair costs and higher 22 taxes. The city released a photo that demonstrates the extent to which wipes, such as Defendants,' 23 have clogged the pumps: 24 25 26 27 28 34 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 2 3 4 5 6 7 8 Id. 9 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 10 cited websites but denies that Plaintiff's description and characterization is complete and accurate. 11 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 12 70. In San Antonio, Texas, the San Antonio Water System has said that flushable wipes, 13 including specifically the Flushable Wipes made by Defendants, are clogging up sewers in ways in 14 which sewer workers have never seen before. See http://www.woai.com/articles/woai-local-news- 15 119078/disposable-wipes-causing-nightmare-for-san-11718265/ (last accessed August 28, 2014). 16 Sewer workers are responding to dozens of clogs, and to repair, they retreive [sic] large "rope like 17 mass[es]" from the pipes. Id. 18 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize the 19 cited websites but denies that Plaintiff's description and characterization is complete and accurate. 20 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 21 (4) Defendants Intend To Continue To Market And Sell Non-Flushable Products as 22 "Flushable" 23 71. Defendants' marketing campaign has been extremely successful. The market for 24 flushable wipes is projected to grow 12.1% annually to reach $2.4 billion by 2018. 25 http://www.giiresearch.com/report/apex279326-future-flushable-wipes.html (last accessed March 26 25, 2015). Defendants' brands are widely popular, and the Flushable Wipes are sold in grocery 27 stores and big box stores throughout California and the country. Because of the big potential for 28 sales, Defendants have no incentive to stop selling "flushable" products or change their disclaimers 35 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 to discourage sales. 2 ANSWER: Kimberly-Clark admits that certain of its products are sold in California and 3 throughout the country. Kimberly-Clark admits that Plaintiff purports to describe and characterize 4 the cited websites but denies that Plaintiff's description and characterization is complete and 5 accurate. Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the 6 FAC. 7 72. Because Defendants know consumers rely on representations about flushability on 8 product packaging, even when presented with warnings from local wastewater treatment authorities, 9 Defendants have opposed both mandatory and voluntary standards that would require Defendants to 10 provide more information to consumers about the risks associated with flushing the Flushable 11 Wipes. For example, while the INDA Guidelines and industry definition of "flushable" is 12 conditioned upon usage instructions being correctly followed, INDA does not encourage, nor do 13 Defendants actually print, disclaimers and usage instructions in a conspicuous location on the front 14 of the package where consumers are most likely to read the information. 15 ANSWER: To the extent the allegations in this paragraph pertain to conduct and actions 16 by INDA, Kimberly-Clark lacks knowledge or information sufficient to form a belief about any such 17 allegations, and therefore denies allegations regarding the same. Kimberly-Clark denies any and all 18 remaining allegations contained in this paragraph of the FAC. 19 73. The INDA Guidelines are voluntary. While wastewater treatment professionals and 20 legislatures want, at a minimum, for the guidelines to be mandatory, so far, INDA has not acceded to 21 their requests. 22 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 23 to what is meant by "voluntary" as used in this paragraph, and therefore denies allegations regarding 24 the same. Kimberly-Clark lacks knowledge or information sufficient to form a belief regarding the 25 remaining allegations in this paragraph, and therefore denies the remaining allegations contained in 26 this paragraph of the FAC. 27 74. Defendants, through INDA, have also opposed legislative efforts to regulate the 28 labeling of products as flushable, even where those laws put in place weakened standards for 36 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 "flushability. For example, in 2010, a bill was proposed in the California Senate that would regulate 2 the use of the term "flushable." That bill, A.B. 2256, made it unlawful to label as flushable any 3 product that did not adhere to the same INDA Guidelines that Defendants have claimed that they 4 follow. But Defendants and INDA opposed the measure. See http://www.leginfo.ca.gov/pub/09- 5 10/bill/asm/ab_2251-2300/ab_2256_cfa20100617_172920_sencomm.html (last accessed March 24, 6 2015). Similar bills have been proposed in other states, including Maine and New Jersey, though all 7 have been opposed by INDA and none have been successful. 8 ANSWER: Kimberly-Clark admits that it is aware that a bill, A.B. 2256, was introduced 9 to the California Senate. Kimberly-Clark denies that the remaining allegations purporting to 10 describe and characterize Kimberly-Clark's activity is complete and accurate, and therefore denies 11 the remaining allegations contained in this paragraph of the FAC. 12 75. Wastewater treatment operators have criticized the industry's failure to accept that 13 dispersibility is an essential part of flushability, and have stated that the Third Edition of the INDA 14 Guidelines "may be a step backwards" from previous editions. See 15 http://www.weat.org/Presentations/04%20Villee_Non-dispersibles.pdf (last accessed March 31, 16 2015). 17 ANSWER: Kimberly-Clark admits that Plaintiff purports to describe and characterize 18 information contained on the cited website but denies that such description and characterization is 19 complete and accurate. Kimberly-Clark denies any and all remaining allegations contained in this 20 paragraph of the FAC. 21 PLAINTIFF'S EXPERIENCE 22 76. Plaintiff is a consumer of Cottonelle brand toilet paper. Plaintiff first learned of the 23 Cottonelle Wipes in 2010, while shopping at a Safeway store in Belmont, near his home in San 24 Carlos. The wipes were located in the section of the store that contained toilet paper. He was 25 interested in the fact that the product was a pre-moistened wipe, and that the package stated that the 26 wipes were "flushable." He also read labeling on the package stating that the wipes were "SEWER 27 AND SEPTIC SAFE" and that "Cottonelle Fresh Care Flushable Cleansing Cloths break up after 28 flushing." 37 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 2 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 3 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 4 paragraph of the FAC. 5 77. Plaintiff reasonably understood the representations described in paragraph 77 to mean 6 that the Cottenelle Wipes could be safely disposed like toilet paper − by flushing down a toilet, as 7 they would break apart after flushing. And he reasonably understood the representations to mean that 8 if he disposed of the wipes via his toilet, the wipes would not cause clogs or backups in his plumbing 9 or that the risk of this occurring was no greater than if he had used toilet paper. 10 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 11 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 12 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 13 paragraph of the FAC. 14 78. Plaintiff's home plumbing is connected to the City of San Carlos's sewer system via a 15 lateral drainline from his house. Accordingly, he also reasonably believed the representations 16 described in paragraph 77 to mean that the Cottonelle Wipes could travel safely from his home 17 drainline and into the city's sewer system without causing clogs, blockages, or backups. 18 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 19 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 20 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 21 paragraph of the FAC. 22 79. Relying on the representation described in paragraph 77, Plaintiff decided to buy the 23 Cottonelle Wipes for home use. He first purchased them at Belmont Safeway in or around 2010. 24 Shortly thereafter, Plaintiff removed the Cottonelle Wipes from their package for the first time, and 25 he noticed that they were quite thick and strong. The material surprised him because he did not think 26 a product with such a consistency would be flushable. He decided to double check the labeling on 27 the package to confirm that it said the wipes were safe to flush before using them, which it did. 28 38 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 2 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 3 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 4 paragraph of the FAC. 5 80. Plaintiff continued to purchase the Cottonelle Wipes on a regular basis over the next 6 several years, until approximately 2013. He typically purchased the wipes at the Safeway store in 7 Belmont and typically paid approximately $5-7 dollars per package. 8 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 9 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 10 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 11 paragraph of the FAC. 12 81. When using the wipes during the 2010 to 2013 time period, he flushed 1-2 wipes at a 13 time. Other than human waste, Plaintiff did not flush other items or materials, such as toilet paper, at 14 the same time as the Cottonelle Wipes. In addition, Plaintiff did not dispose of non-dispersible items, 15 such as other kinds of pre-moistened disposable wipes, by flushing down the toilet in their San 16 Carlos home. Plaintiff noticed that the wipes did not break apart rapidly in the toilet bowl like toilet 17 paper, but instead remained largely intact. 18 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 19 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 20 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 21 paragraph of the FAC. 22 82. Plaintiff had moved into his home in San Carlos in or around February 2006, during 23 the first four years in the home, the toilet never clogged. During the period when he was using the 24 Cottonelle Wipes, however, the toilet in his San Carlos home would clog approximately once a 25 week, and he would often have to plunge the toilet right after flushing or use a chemical drain 26 cleaner such as Drano or Liquid Plumber to remove the blockage. 27 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 28 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 39 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 2 paragraph of the FAC. 3 83. Plaintiff initially did not know what was causing the clogs. Plaintiff's spouse, who 4 was the only other individual regularly using the toilet in the San Carlos home, informed him that 5 she was not flushing non-dispersible products. But the problem eventually got so bad that he was 6 forced to purchase a plumbing "snake" to clear the blockages. The "snake" is a flexible metal cable 7 that is inserted into a plumbing line to clear any obstructions. Plaintiff purchased the snake for 8 approximately $200 from Home Depot. 9 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 10 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 11 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 12 paragraph of the FAC. 13 84. Plaintiff used the snake a number of times to clear the clogs that kept stopping up his 14 toilet. When the snake was withdrawn after use, it would sometimes have pieces of the material that 15 was causing the clogs on it. Plaintiff noticed that this material was the Cottonelle Wipes. 16 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 17 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 18 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 19 paragraph of the FAC. 20 85. Based on this observation, Plaintiff decided to conduct an online search to determine 21 whether other people were experiencing similar problems with the Cottonelle Wipes. He conducted a 22 search using the phrase "Cottonelle flushable wipes issues." The search resulted in a mixture of 23 complaints from consumers that had used the Cottonelle Wipes and had experiences similar to 24 Plaintiff and complaints from municipal wastewater authorities warning that the Cottonelle Wipes 25 were not flushable or safe for sewer and septic systems as advertised. Plaintiff later learned that use 26 of flushable wipes such as the Cottonelle Wipes has damaged other home plumbing systems and that 27 Cottonelle Wipes had damaged wastewater treatment facilities in municipalities all over the country. 28 40 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 2 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 3 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 4 paragraph of the FAC. 5 86. Plaintiff stopped purchasing and flushing the Cottonelle Wipes. 6 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 7 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 8 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 9 paragraph of the FAC. 10 87. Had he known of the risk of clogging and expensive plumbing repairs and damage 11 that the wipes cause, as well as the cost to municipal sewer systems, Plaintiff would not have 12 purchased the Cottonelle Wipes, or at a minimum, would not have paid a premium for them. 13 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 14 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 15 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 16 paragraph of the FAC. 17 88. Had Defendants not misrepresented (by omission and commission) that the Cottonelle 18 Wipes were not truly suitable for flushing, that they risked clogging pipes leading to the need for 19 plumbing repairs and caused damage to sewer systems, Plaintiff would not have purchased them. 20 ANSWER: Kimberly-Clark denies that it "misrepresented," either by omission or 21 commission, any of its products. Kimberly-Clark lacks knowledge or information sufficient to form 22 a belief about the allegations related to the Plaintiff's thoughts and actions, and therefore denies 23 allegations related to the same. Kimberly-Clark denies any and all remaining allegations contained 24 in this paragraph of the FAC. 25 89. Plaintiff continues to desire to purchase wipes suitable for flushing from Defendants. 26 He regularly visits stores where Defendants' "flushable" wipes are sold. Without purchasing and 27 attempting to flush Defendants' Flushable Wipes, Plaintiff is unable to determine if Defendants' 28 wipes are flushable. Plaintiff understands that the design and construction of the Flushable Wipes 41 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 may change over time or Defendants may respond to pressure from wastewater treatment operators, 2 legislators, government agencies, competitors, or environmental organizations. 3 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 4 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 5 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 6 paragraph of the FAC. 7 90. As long as Defendants may use the word "Flushable" to describe their Flushable 8 Wipes, and other non-flushable wipes, then when presented with Defendants' packaging, Plaintiff 9 continues to have no way of determining whether the representation "flushable" is in fact true. Thus, 10 Plaintiff is likely to be repeatedly presented with false or misleading information when shopping and 11 unable to make informed decisions about whether to purchase the wipes. He is further likely to be 12 misled again by Defendants' conduct, unless and until Defendants are compelled to ensure that their 13 wipes packaged as flushable truly are dispersible and suitable for flushing. 14 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief 15 about the allegations related to the Plaintiff's thoughts and actions, and therefore denies allegations 16 related to the same. Kimberly-Clark denies any and all remaining allegations contained in this 17 paragraph of the FAC. 18 CLASS ALLEGATIONS 19 91. Plaintiff brings this action against Defendants on behalf of himself and all others 20 similarly situated, as a class action pursuant to section 382 of the California Code of Civil Procedure 21 and section 1781 of the California Civil Code. Plaintiff seeks to represent a group of similarly 22 situated persons (the "Class"), defined as follows: 23 All persons who, between June 8, 2011 and the present, purchased in California any of the following products: Cottonelle® Fresh Care Flushable 24 Wipes & Cleansing Cloths, Scott Naturals® Flushable Moist Wipes, Huggies® Pull-Ups® Flushable Moist Wipes, and U by Kotex® Refresh 25 flushable wipes. 26 ANSWER: This paragraph contains legal conclusions that do not require a response. 27 Kimberly-Clark admits that Plaintiff purports to bring this action on behalf of proposed class, and 28 that Plaintiff purports to define the proposed class. Kimberly-Clark denies that class certification of 42 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 the purported class is appropriate, and further denies that the class definition is appropriate. 2 Kimberly-Clark denies any and all remaining allegations contained in this paragraph of the FAC. 3 92. This action has been brought and may properly be maintained as a class action against 4 Defendants pursuant to the provisions of California Code of Civil Procedure section 382 because 5 there is a well-defined community of interest in the litigation and the proposed class is easily 6 ascertainable. 7 ANSWER: This paragraph contains legal conclusions that do not require a response. 8 Kimberly-Clark admits that Plaintiff purports to bring this action on behalf of the proposed class but 9 denies that class certification of the purported class is appropriate, and further denies that there is a 10 well-defined community of interest in the litigation or that the proposed class is easily ascertainable. 11 Kimberly-Clark further denies that a class pursuant to the provisions of California Code of Civil 12 Procedure section 382 can be certified. Kimberly-Clark denies any and all remaining allegations 13 contained in this paragraph of the FAC. 14 93. Numerosity: Plaintiff does not know the exact size of the class, but it is estimated that 15 it is composed of more than 100 persons. The persons in the class are so numerous that the joinder of 16 all such persons is impracticable and the disposition of their claims in a class action rather than in 17 individual actions will benefit the parties and the courts. 18 ANSWER: This paragraph contains legal conclusions that do not require a response. 19 Kimberly-Clark admits that Plaintiff purports to bring this action on behalf of the proposed class but 20 denies that class certification of the purported class is appropriate, and further denies that there is a 21 numerous class or that disposition of purported claims in a class action rather than an individual 22 action will benefit the parties and the courts. Kimberly-Clark denies any and all remaining 23 allegations contained in this paragraph of the FAC. 24 94. Common Questions Predominate: This action involves common questions of law and 25 fact to the potential class because each class member's claim derives from the deceptive, unlawful 26 and/or unfair statements and omissions that led Defendants' customers to believe that the Flushable 27 Wipes were flushable. The common questions of law and fact predominate over individual 28 questions, as proof of a common or single set of facts will establish the right of each member of the 43 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 Class to recover. Among the questions of law and fact common to the class are: 2 a) Whether Defendants' Flushable Wipes are suitable for flushing down a toilet; 3 b) Whether Defendants unfairly, unlawfully and/or deceptively failed to inform class 4 members that their Flushable Wipes are not suitable for flushing; 5 c) Whether Defendants' advertising and marketing regarding their Flushable Wipes sold 6 to class members was likely to deceive class members or was unfair; 7 d) Whether Defendants engaged in the alleged conduct knowingly, recklessly, or 8 negligently; 9 e) The amount of revenues and profits Defendants received and/or the amount of 10 moneys or other obligations lost by class members as a result of such wrongdoing; 11 f) Whether class members are entitled to injunctive and other equitable relief and, if so, 12 what is the nature of such relief; and 13 g) Whether class members are entitled to payment of actual, incidental, consequential, 14 exemplary and/or statutory damages plus interest thereon, and if so, what is the nature of such relief. 15 ANSWER: This paragraph contains legal conclusions that do not require a response. 16 Kimberly-Clark denies any and all allegations contained in this paragraph of the FAC, including 17 subparts, and further denies that common questions predominate or that class certification is 18 appropriate. 19 95. Typicality: Plaintiffs claims are typical of the class because, throughout the class 20 period, he purchased packages of the Flushable Wipes, in reliance on Defendants' 21 misrepresentations and omissions that they were flushable. Thus, Plaintiff and class members 22 sustained the same injuries and damages arising out of Defendants' conduct in violation of the law. 23 The injuries and damages of each class member were caused directly by Defendants' wrongful 24 conduct in violation of law as alleged. 25 ANSWER: This paragraph contains legal conclusions that do not require a response. 26 Kimberly-Clark lacks knowledge or information sufficient to form a belief as to Plaintiff's thoughts 27 or actions, and therefore denies all allegations regarding the same. Kimberly-Clark denies any and 28 44 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 all remaining allegations contained in this paragraph of the FAC, and further denies that class 2 certification is appropriate. 3 96. Adequacy: Plaintiff will fairly and adequately protect the interests of all class 4 members because it is in his best interests to prosecute the claims alleged herein to obtain full 5 compensation due to his for the unfair and illegal conduct of which she complains. Plaintiff also has 6 no interests that are in conflict with or antagonistic to the interests of class members. Plaintiff has 7 retained highly competent and experienced class action attorneys to represent his interests and the 8 interests of the class. By prevailing on his own claim, Plaintiff will establish Defendants' liability to 9 all class members. Plaintiff and his counsel have the necessary financial resources to adequately and 10 vigorously litigate this class action, and Plaintiff and counsel are aware of their fiduciary 11 responsibilities to the class members and are determined to diligently discharge those duties by 12 vigorously seeking the maximum possible recovery for class members. 13 ANSWER: This paragraph contains legal conclusions that do not require a response. 14 Kimberly-Clark lacks knowledge or information sufficient to form a belief as to Plaintiff's thoughts 15 or actions, and therefore denies all allegations regarding the same. Kimberly-Clark denies any and 16 all remaining allegations contained in this paragraph of the FAC, and further denies that class 17 certification is appropriate. 18 97. Superiority: There is no plain, speedy, or adequate remedy other than by maintenance 19 of this class action. The prosecution of individual remedies by members of the class will tend to 20 establish inconsistent standards of conduct for the Defendants and result in the impairment of class 21 members' rights and the disposition of their interests through actions to which they were not parties. 22 Class action treatment will permit a large number of similarly situated persons to prosecute their 23 common claims in a single forum simultaneously, efficiently, and without the unnecessary 24 duplication of effort and expense that numerous individual actions world engender. Furthermore, as 25 the damages suffered by each individual member of the class may be relatively small, the expenses 26 and burden of individual litigation would make it difficult or impossible for individual members of 27 the class to redress the wrongs done to them, while an important public interest will be served by 28 addressing the matter as a class action. 45 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: This paragraph contains legal conclusions that do not require a response. 2 Kimberly-Clark denies the allegations contained in this paragraph of the FAC, and further denies 3 that class certification is appropriate. 4 98. Nexus to California. The State of California has a special interest in regulating the 5 affairs of corporations that do business here. Defendants have more customers here than in any other 6 state. Accordingly, there is a substantial nexus between Defendants' unlawful behavior and 7 California such that the California courts should take cognizance of this action on behalf of a class of 8 individuals who reside anywhere in the United States. 9 ANSWER: This paragraph contains legal conclusions that do not require a response. 10 Kimberly-Clark lacks knowledge or information sufficient to form a belief as to what is meant by 11 "customers" as used in this paragraph, and on that basis denies allegations regarding the same. 12 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 13 99. Plaintiff is unaware of any difficulties that are likely to be encountered in the 14 management of this action that would preclude its maintenance as a class action. 15 ANSWER: Kimberly-Clark lacks knowledge or information sufficient to form a belief as 16 to Plaintiff's thoughts or actions, and therefore denies all allegations regarding the same. Kimberly- 17 Clark denies any and all remaining allegations contained in this paragraph of the FAC, and further 18 denies that class certification is appropriate. 19 CAUSES OF ACTION 20 PLAINTIFF'S FIRST CAUSE OF ACTION (Violation of the Consumers Legal Remedies Act, California Civil Code § 1750, et seq.) 21 On Behalf of Himself and the Class 22 100. Plaintiff realleges and incorporates the paragraphs of this Class Action Complaint as 23 if set forth herein. 24 ANSWER: Kimberly-Clark incorporates its preceding answers by reference. 25 101. This cause of action is brought pursuant to the California Consumers Legal Remedies 26 Act, California Civil Code § 1750, et seq. ("CLRA"). 27 ANSWER: This paragraph contains legal conclusions that do not require a response. 28 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 46 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 102. Defendants' actions, representations and conduct have violated, and continue to 2 violate the CLRA, because they extend to transactions that are intended to result, or which have 3 resulted, in the sale or lease of goods or services to consumers. 4 ANSWER: This paragraph contains legal conclusions that do not require a response. 5 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 6 103. Plaintiff and other class members are "consumers" as that term is defined by the 7 CLRA in California Civil Code § 1761(d). 8 ANSWER: This paragraph contains legal conclusions that do not require a response. 9 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 10 104. The Flushable Wipes that Plaintiff (and others similarly situated class members) 11 purchased from Defendants were "goods" within the meaning of California Civil Code § 1761(a). 12 ANSWER: This paragraph contains legal conclusions that do not require a response. 13 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 14 105. By engaging in the actions, representations and conduct set forth in this Class Action 15 Complaint, Defendants have violated, and continue to violate, § 1770(a)(2), § 1770(a)(5), § 16 1770(a)(7), § 1770(a)(8), and § 1770(a)(9) of the CLRA. In violation of California Civil Code 17 §1770(a)(2), Defendants' acts and practices constitute improper representations regarding the source, 18 sponsorship, approval, or certification of the goods they sold. In violation of California Civil Code 19 §1770(a)(5), Defendants' acts and practices constitute improper representations that the goods they 20 sell have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities, which they 21 do not have. In violation of California Civil Code §1770(a)(7), Defendants' acts and practices 22 constitute improper representations that the goods they sell are of a particular standard, quality, or 23 grade, when they are of another. In violation of California Civil Code §1770(a)(8), Defendants have 24 disparaged the goods, services, or business of another by false or misleading representation of fact. 25 In violation of California Civil Code §1770(a)(9), Defendants have advertised goods or services with 26 intent not to sell them as advertised. Specifically, in violation of sections 1770 (a)(2), (a)(5), (a)(7) 27 and (a)(9), Defendants' acts and practices led customers to falsely believe that that their Flushable 28 Wipes were suitable for flushing down a toilet. In violation of section 1770(a)(8), Defendants falsely 47 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 or deceptively market and advertise that, unlike products not specifically denominated as flushable, 2 the Flushable Wipes are suitable for flushing down a toilet, when in fact none of the products are 3 suitable for flushing. 4 ANSWER: This paragraph contains legal conclusions that do not require a response. 5 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 6 106. Plaintiff requests that this Court enjoin Defendants from continuing to employ the 7 unlawful methods, acts and practices alleged herein pursuant to California Civil Code § 1780(a)(2). 8 If Defendants are not restrained from engaging in these types of practices in the future, Plaintiff and 9 the other members of the Class will continue to suffer harm. 10 ANSWER: This paragraph contains legal conclusions that do not require a response. 11 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 12 107. CLRA § 1782 NOTICE. Irrespective of any representations to the contrary in this 13 Class Action Complaint, Plaintiff specifically disclaims, at this time, any request for damages 14 under any provision of the CLRA. Plaintiff, however, hereby provides Defendants with notice and 15 demand that within thirty (30) days from that date, Defendants correct, repair, replace or otherwise 16 rectify the unlawful, unfair, false and/or deceptive practices complained of herein. Defendants' 17 failure to do so will result in Plaintiff amending this Class Action Complaint to seek, pursuant to 18 California Civil Code § 1780(a)(3), on behalf of himself and those similarly situated class members, 19 compensatory damages, punitive damages and restitution of any ill-gotten gains due to Defendants' 20 acts and practices. 21 ANSWER: This paragraph contains legal conclusions that do not require a response. 22 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 23 108. Plaintiff also requests that this Court award his costs and reasonable attorneys' fees 24 pursuant to California Civil Code § 1780(d). 25 ANSWER: This paragraph contains legal conclusions that do not require a response. 26 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 27 PLAINTIFF'S SECOND CAUSE OF ACTION (False Advertising, Business and Professions Code § 17500, et seq. ("FAL")) 28 On Behalf Of Himself and the Class 48 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 109. Plaintiff realleges and incorporates by reference the paragraphs of this Class Action 2 Complaint as if set forth herein. 3 ANSWER: Kimberly-Clark incorporates its preceding answers by reference. 4 110. Beginning at an exact date unknown to Plaintiff, but within three (3) years preceding 5 the filing of the Class Action Complaint, Defendants made untrue, false, deceptive and/or misleading 6 statements in connection with the advertising and marketing of their Flushable Wipes. 7 ANSWER: This paragraph contains legal conclusions that do not require a response. 8 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 9 111. Defendants made representations and statements (by omission and commission) that 10 led reasonable customers to believe that they were purchasing products that could be flushed down 11 the toilet without problem. Defendants deceptively failed to inform Plaintiff, and those similarly 12 situated, that their Flushable Wipes were not suitable for disposal by flushing down a toilet, and that 13 the Flushable Wipes are not regarded as flushable by municipal sewage systems; routinely damage 14 or clog pipes, septic systems, and sewage pumps; and do not disperse like toilet paper. 15 ANSWER: This paragraph contains legal conclusions that do not require a response. 16 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 17 112. Plaintiff relied on Defendants' false, misleading and deceptive advertising and 18 marketing practices, including each of the misrepresentations and omissions set forth in paragraphs 19 24-25, 32, and 76 above. Those similarly situated to Plaintiff relied to their detriment on Defendants' 20 false, misleading and deceptive advertising and marketing practices, including each of the 21 misrepresentations and omissions set forth in paragraphs 24-32 and 76 above. Had Plaintiff and 22 those similarly situated been adequately informed and not intentionally deceived by Defendants, 23 they would have acted differently by, without limitation, refraining from purchasing Defendants' 24 Flushable Wipes or paying less for them. 25 ANSWER: This paragraph contains legal conclusions that do not require a response. 26 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 27 113. Defendants' acts and omissions are likely to deceive the general public. 28 49 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: This paragraph contains legal conclusions that do not require a response. 2 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 3 114. Defendants engaged in these false, misleading and deceptive advertising and 4 marketing practices to increase their profits. Accordingly, Defendants have engaged in false 5 advertising, as defined and prohibited by section 17500, et seq. of the California Business and 6 Professions Code. 7 ANSWER: This paragraph contains legal conclusions that do not require a response. 8 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 9 115. The aforementioned practices, which Defendants have used, and continue to use, to 10 their significant financial gain, also constitute unlawful competition and provide an unlawful 11 advantage over Defendants' competitors as well as injury to the general public. 12 ANSWER: This paragraph contains legal conclusions that do not require a response. 13 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 14 116. As a direct and proximate result of such actions, Plaintiff and the other members of 15 the Class have suffered, and continue to suffer, injury in fact and have lost money and/or property as 16 a result of such false, deceptive and misleading advertising in an amount which will be proven at 17 trial, but which is in excess of the jurisdictional minimum of this Court. 18 ANSWER: This paragraph contains legal conclusions that do not require a response. 19 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 20 117. Plaintiff seeks, on behalf of those similarly situated, full restitution of monies, as 21 necessary and according to proof, to restore any and all monies acquired by Defendants from 22 Plaintiff, the general public, or those similarly situated by means of the false, misleading and 23 deceptive advertising and marketing practices complained of herein, plus interest thereon. 24 ANSWER: This paragraph contains legal conclusions that do not require a response. 25 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 26 118. Plaintiff seeks, on behalf of those similarly situated, a declaration that the above- 27 described practices constitute false, misleading and deceptive advertising. 28 50 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: This paragraph contains legal conclusions that do not require a response. 2 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 3 119. Plaintiff seeks, on behalf of those similarly situated, an injunction to prohibit 4 Defendants from continuing to engage in the false, misleading and deceptive advertising and 5 marketing practices complained of herein. Such misconduct by Defendant, unless and until enjoined 6 and restrained by order of this Court, will continue to cause injury in fact to the general public and 7 the loss of money and property in that the Defendants will continue to violate the laws of California, 8 unless specifically ordered to comply with the same. This expectation of future violations will 9 require current and future consumers to repeatedly and continuously seek legal redress in order to 10 recover monies paid to Defendants to which Defendants are not entitled. Plaintiff, those similarly 11 situated and/or other consumers nationwide have no other adequate remedy at law to ensure future 12 compliance with the California Business and Professions Code alleged to have been violated herein. 13 ANSWER: This paragraph contains legal conclusions that do not require a response. 14 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 15 PLAINTIFF'S THIRD CAUSE OF ACTION (Fraud, Deceit and/or Misrepresentation) 16 On Behalf of Himself and the Class 17 120. Plaintiff realleges and incorporates by reference the paragraphs of this Class Action 18 Complaint as if set forth herein. 19 ANSWER: Kimberly-Clark incorporates its preceding answers by reference. 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 also 22 failed to inform Plaintiff that the Flushable Wipes were not suitable for disposal by flushing down a 23 toilet, and the wipes are not regarded as flushable by municipal sewage systems; routinely damages 24 or clogs pipes, septic systems, and sewage pumps; and do not disperse like toilet paper. 25 ANSWER: This paragraph contains legal conclusions that do not require a response. 26 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 27 122. These misrepresentations and omissions were material at the time they were made. 28 They concerned material facts that were essential to the analysis undertaken by Plaintiff as to 51 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 whether to purchase Defendants' Flushable Wipes. 2 ANSWER: This paragraph contains legal conclusions that do not require a response. 3 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 4 123. Defendants made identical misrepresentations and omissions to members of the Class 5 regarding Defendants' Flushable Wipes. 6 ANSWER: This paragraph contains legal conclusions that do not require a response. 7 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 8 124. Plaintiff and those similarly situated relied to their detriment on Defendants' 9 fraudulent misrepresentations and omissions. Had Plaintiff and those similarly situated been 10 adequately informed and not intentionally deceived by Defendants, they would have acted 11 differently by, without limitation, not purchasing (or paying less for) Defendants' Flushable Wipes. 12 ANSWER: This paragraph contains legal conclusions that do not require a response. 13 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 14 125. Defendants had a duty to inform class members at the time of their purchase of that 15 the Flushable Wipes were not suitable for flushing down a toilet, and the wipes are not regarded as 16 flushable by municipal sewage systems; routinely damage or clog pipes, septic systems, and sewage 17 pumps; and do not disperse like toilet paper. Defendants omitted to provide this information to class 18 members. Class members relied to their detriment on Defendants' omissions. These omissions were 19 material to the decisions of the class members to purchase the Flushable Wipes. In making these 20 omissions, Defendants breached their duty to class members. Defendants also gained financially 21 from, and as a result of, their breach. 22 ANSWER: This paragraph contains legal conclusions that do not require a response. 23 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 24 126. By and through such fraud, deceit, misrepresentations and/or omissions, Defendants 25 intended to induce Plaintiff and those similarly situated to alter their position to their detriment. 26 Specifically, Defendants fraudulently and deceptively induced Plaintiff and those similarly situated 27 to, without limitation, to purchase their Flushable Wipes. 28 ANSWER: This paragraph contains legal conclusions that do not require a response. 52 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 2 127. As a direct and proximate result of Defendants' misrepresentations and omissions, 3 Plaintiff and those similarly situated have suffered damages, including, without limitation, the 4 amount they paid for the Flushable Wipes. 5 ANSWER: This paragraph contains legal conclusions that do not require a response. 6 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 7 128. Defendants' conduct as described herein was willful and malicious and was designed 8 to maximize Defendants' profits even though Defendants knew that it would cause loss and harm to 9 Plaintiff and those similarly situated. 10 ANSWER: This paragraph contains legal conclusions that do not require a response. 11 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 12 PLAINTIFF'S FOURTH CAUSE OF ACTION (Negligent Misrepresentation) 13 On Behalf of Himself and the Class 14 129. Plaintiff realleges and incorporates by reference the paragraphs of this Class Action 15 Complaint as if set forth herein. 16 ANSWER: Kimberly-Clark incorporates its preceding answers by reference. 17 130. In the time period from 2010 to 2013, Defendants provided false and misleading 18 information regarding the Flushable Wipes, representing that the wipes were "flushable," leading 19 Plaintiff to believe that the Flushable Wipes were flushable, i.e., suitable for flushing down a toilet. 20 ANSWER: This paragraph contains legal conclusions that do not require a response. 21 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 22 131. These representations were material at the time they were made. They concerned 23 material facts that were essential to the analysis undertaken by Plaintiff as to whether to purchase the 24 Flushable Wipes. 25 ANSWER: This paragraph contains legal conclusions that do not require a response. 26 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 27 132. Defendants made identical misrepresentations and omissions to members of the Class 28 regarding Defendants' Flushable Wipes. 53 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: This paragraph contains legal conclusions that do not require a response. 2 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 3 133. Defendants should have known their representations to be false and had no reasonable 4 grounds for believing them to be true when they were made. 5 ANSWER: This paragraph contains legal conclusions that do not require a response. 6 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 7 134. By and through such negligent misrepresentations, Defendants intended to induce 8 Plaintiff and those similarly situated to alter their position to their detriment. Specifically, 9 Defendants negligently induced Plaintiff and those similarly situated to, without limitation, to 10 purchase their Flushable Wipes. 11 ANSWER: This paragraph contains legal conclusions that do not require a response. 12 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 13 135. Plaintiff and those similarly situated relied to their detriment on Defendants' 14 negligent misrepresentations. Had Plaintiff and those similarly situated been adequately informed 15 and not intentionally deceived by Defendants, they would have acted differently by, without 16 limitation, not purchasing (or paying less for) Defendants' Flushable Wipes. 17 ANSWER: This paragraph contains legal conclusions that do not require a response. 18 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 19 136. Plaintiff and those similarly situated have suffered damages, including, without 20 limitation, the amount they paid for the Flushable Wipes. Defendants' negligent representations and 21 omissions were a substantial factor in causing the damage. 22 ANSWER: This paragraph contains legal conclusions that do not require a response. 23 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 24 PLAINTIFF'S FIFTH CAUSE OF ACTION (Unfair, Unlawful and Deceptive Trade Practices, 25 Business and Professions Code § 17200, et seq.) On Behalf of Himself and the Class 26 27 137. Plaintiff realleges and incorporates by reference the paragraphs of this Class Action 28 Complaint as if set forth herein. 54 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: Kimberly-Clark incorporates its preceding answers by reference. 2 138. Within four (4) years preceding the filing of this Class Action Complaint, and at all 3 times mentioned herein, Defendants have engaged, and continue to engage, in unfair, unlawful and 4 deceptive trade practices in California by engaging in the unfair, deceptive and unlawful business 5 practices outlined in this Class Action Complaint. In particular, Defendants have engaged, and 6 continue to engage, in unfair, unlawful and deceptive trade practices by, without limitation, the 7 following: 8 a. deceptively representing to Plaintiff, and those similarly situated, the Flushable Wipes 9 were suitable for flushing down a toilet; 10 b. failing to inform Plaintiff, and those similarly situated, that the Flushable Wipes were 11 not suitable for disposal by flushing down a toilet, and the wipes are not regarded as flushable by 12 municipal sewage systems; routinely damage or clog pipes, septic systems, and sewage pumps; and 13 do not disperse like toilet paper. 14 c. labeling the Flushable Wipes as "flushable," even though, under Sec. 305 of the 15 California Plumbing Code, the wipes are not actually flushable, and accordingly, have caused, 16 induced, abetted, and contributed to illegal activity, namely, the flushing of non-flushable materials; 17 d. engaging in fraud, deceit, and misrepresentation as described herein; 18 e. violating the CLRA as described herein; and 19 f. violating the FAL as described herein. 20 ANSWER: This paragraph contains legal conclusions that do not require a response. 21 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 22 139. Plaintiff and those similarly situated relied to their detriment on Defendants' unfair, 23 deceptive and unlawful business practices. Had Plaintiff and those similarly situated been adequately 24 informed and not deceived by Defendants, they would have acted differently by not purchasing (or 25 paying less for) Defendants' Flushable Wipes. 26 ANSWER: This paragraph contains legal conclusions that do not require a response. 27 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 28 140. Defendants' acts and omissions are likely to deceive the general public. 55 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 ANSWER: This paragraph contains legal conclusions that do not require a response. 2 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 3 141. Defendants engaged in these unfair practices to increase their profits. Accordingly, 4 Defendants have engaged in unlawful trade practices, as defined and prohibited by section 17200, et 5 seq. of the California Business and Professions Code. 6 ANSWER: This paragraph contains legal conclusions that do not require a response. 7 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 8 142. The aforementioned practices, which Defendants have used to their significant 9 financial gain, also constitute unlawful competition and provide an unlawful advantage over 10 Defendants' competitors as well as injury to the general public. 11 ANSWER: This paragraph contains legal conclusions that do not require a response. 12 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 13 143. As a direct and proximate result of such actions, Plaintiff and the other members of 14 the Class have suffered and continue to suffer injury in fact and have lost money and/or property as a 15 result of such deceptive and/or unlawful trade practices and unfair competition in an amount which 16 will be proven at trial, but which is in excess of the jurisdictional minimum of this Court. Among 17 other things, Plaintiff, and those similarly situated, lost the amount they paid for the Flushable 18 Wipes. 19 ANSWER: This paragraph contains legal conclusions that do not require a response. 20 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 21 144. As a direct and proximate result of such actions, Defendants have enjoyed, and 22 continue to enjoy, significant financial gain in an amount which will be proven at trial, but which is 23 in excess of the jurisdictional minimum of this Court. 24 ANSWER: This paragraph contains legal conclusions that do not require a response. 25 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 26 145. Plaintiff seeks, on behalf of those similarly situated, full restitution of monies, as 27 necessary and according to proof, to restore any and all monies acquired by Defendants from 28 Plaintiff, the general public, or those similarly situated by means of the deceptive and/or unlawful 56 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 trade practices complained of herein, plus interest thereon. 2 ANSWER: This paragraph contains legal conclusions that do not require a response. 3 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 4 146. Plaintiff seeks, on behalf of those similarly situated, a declaration that the above- 5 described trade practices are fraudulent and/or unlawful. 6 ANSWER: This paragraph contains legal conclusions that do not require a response. 7 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 8 147. Plaintiff seeks, on behalf of those similarly situated, an injunction to prohibit 9 Defendants from continuing to engage in the deceptive and/or unlawful trade practices complained 10 of herein. Such misconduct by Defendant, unless and until enjoined and restrained by order of this 11 Court, will continue to cause injury in fact to the general public and the loss of money and property 12 in that Defendants will continue to violate the laws of California, unless specifically ordered to 13 comply with the same. This expectation of future violations will require current and future 14 consumers to repeatedly and continuously seek legal redress in order to recover monies paid to 15 Defendants to which Defendants were not entitled. Plaintiff, those similarly situated and/or other 16 consumers nationwide have no other adequate remedy at law to ensure future compliance with the 17 California Business and Professions Code alleged to have been violated herein. 18 ANSWER: This paragraph contains legal conclusions that do not require a response. 19 Kimberly-Clark denies any and all remaining allegations in this paragraph of the FAC. 20 21 SEPARATE AND/OR AFFIRMATIVE DEFENSES 22 1. Kimberly-Clark specifically reserves all separate or affirmative defenses that it may 23 have against each putative class member. It is not necessary at this time for Kimberly-Clark to 24 delineate such defenses against the putative class members because no class has been certified and 25 the putative class members are not parties to the litigation. 26 2. The FAC fails to state a claim upon which relief can be granted. 27 3. To the extent Plaintiff fails to demonstrate that every putative class member relied on 28 Kimberly-Clark's representations, any finding of liability on a class-wide basis would violate 57 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 Kimberly-Clark's rights under the due process clause of the California Constitution, the U.S. 2 Constitution, and any other applicable state constitutions. 3 4. To the extent Plaintiff fails to demonstrate that the products at issue failed to perform 4 with respect to every putative class member, any finding of liability on a class-wide basis would 5 violate Kimberly-Clark's rights under the due process clause of the California Constitution, the U.S. 6 Constitution, and any other applicable state constitution. 7 5. To the extent Plaintiff fails to demonstrate that every putative class member sustained 8 cognizable damages as a result of Kimberly-Clark's actions, any finding of liability on a class-wide 9 basis would violate Kimberly-Clark's rights under the due process clause of the California 10 Constitution, the U.S. Constitution, and any other applicable state constitution. 11 6. The recovery of restitution by Plaintiffs or putative class members who were not 12 subject to any alleged misconduct by Kimberly-Clark or for whom any alleged misconduct by 13 Kimberly-Clark did not cause any injury violates Kimberly-Clark's right to due process under the 14 California Constitution, the U.S. Constitution, and any other applicable state constitution. 15 7. To the extent that it is not permitted to conduct discovery and introduce evidence as 16 to each and every class member's individual claims, any finding of liability on a class-wide basis 17 would violate Defendants' rights under the California Constitution, the U.S. Constitution, and any 18 other applicable state constitution. 19 8. The claims of Plaintiff and some or all putative class members are barred by the 20 voluntary payment doctrine because Plaintiff and putative class members voluntarily paid for 21 Kimberly-Clark's products about which they now complain with full knowledge of the facts and 22 circumstances pursuant to which such amounts were paid. 23 9. The claims of some or all putative class members are barred by the doctrine of accord 24 and satisfaction to the extent that they sought and received a refund of their purchase price. 25 10. Plaintiff and some or all putative class members do not have Article III standing to 26 bring the claims asserted in the FAC, including lacking standing to pursue injunctive relief. 27 11. Plaintiff and some or all putative class members do not have standing to bring claims 28 under the statutes upon which their claims are stated. 58 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 12. Plaintiff and some or all putative class members do not have standing to the extent 2 they are asserting claims based upon alleged misrepresentations to third persons, including others 3 who purchased Kimberly-Clark's products, or retailers or distributors. 4 13. Plaintiff's and some or all putative class members' causes of action are barred 5 because the alleged representations made by Defendants, if any such representations were made, 6 were not the proximate cause of Plaintiff's and class members' damages. 7 14. Plaintiff and some or all putative class members have failed to mitigate their 8 damages. 9 15. Any liability found on the part of Kimberly-Clark, and any damages awarded in favor 10 of Plaintiff and putative class members, are subject to the common law comparative fault rules of 11 California and any other applicable state law, and Kimberly-Clark cannot be liable for more than its 12 proportionate share of any damages awarded. Further, pursuant to any applicable state law, any 13 damages awarded to Plaintiff and putative class members are subject to apportionment by the jury of 14 the total fault of all participants in the incidents, including Plaintiff and non-parties. 15 16. Plaintiff is not entitled to equitable relief because there is an adequate remedy at law. 16 17. Plaintiff is not entitled to recovery because her damages, if any, are too speculative. 17 18. Kimberly-Clark is entitled to any set-offs or reductions in liability from collateral 18 sources available to Plaintiff and putative class members. 19 19. Kimberly-Clark is entitled to a set-off of the value of refunds already provided, or a 20 credit for previous payments. 21 20. Plaintiff's claims are barred, in whole or in part, because Kimberly-Clark's 22 representations relating to its products, if any, were not false or misleading, and therefore constitute 23 protected commercial speech under the applicable provisions of the United States Constitution, 24 including the First Amendment. Plaintiff's causes of action are barred because at the time Kimberly- 25 Clark made the representations complained of, if any such representations were made, Kimberly- 26 Clark believed the representations were true. 27 21. Plaintiff's causes of action are barred because the representations complained of, if 28 any such representations were made, were not material and did not induce Plaintiff to enter into the 59 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 transactions. 2 22. Plaintiff's causes of action are barred because Plaintiff did not reasonably or 3 justifiably rely on the representations of Kimberly-Clark. 4 23. Plaintiff's and putative class members' causes of action are barred because they had 5 equal or superior knowledge of relevant facts. 6 24. Plaintiff's and putative class members' causes of action are barred because Kimberly- 7 Clark's product was designed, manufactured, and marketed in accordance with the state of the art. 8 25. Plaintiff's and putative class members' causes of action are barred in whole or in part 9 by their spoliation of evidence. 10 26. Plaintiff's and putative class members' causes of action are barred in whole or in part 11 by the doctrine of unclean hands. 12 27. Plaintiff's and some or all putative class members' claims are barred in whole or in 13 part by the applicable statutes of limitations or the doctrine of laches. 14 28. The statutory claims are not applicable to class members who do not reside in 15 California. 16 29. Plaintiff's and putative class members' causes of action are barred because they are 17 subject to the primary jurisdiction of the Federal Trade Commission and/or other government 18 agencies. 19 30. The imposition of punitive damages in this case would violate Kimberly-Clark's 20 rights to procedural and substantive due process under the United States Constitution and applicable 21 state constitutional provisions. 22 36. Plaintiff's claims for punitive damages cannot be sustained by a jury that (1) is not 23 provided constitutionally adequate standards of sufficient clarity for determining the appropriate 24 imposition of, and the appropriate size of, a punitive damages award; (2) is not adequately instructed 25 on the limits of punitive damages imposed by the applicable principles of deterrence and 26 punishment; (3) is not expressly prohibited from awarding punitive damages, or determining the 27 amount of an award for punitive damages, in whole or in part on the basis of invidiously 28 discriminatory characteristics, including without limitation, the residence, wealth, and corporate 60 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 status of a defendant; (4) is not expressly prohibited from awarding punitive damages, or 2 determining the amount of an award of punitive damages, in whole or in part directly on the basis of 3 injury upon non-parties; (5) is not provided constitutionally adequate procedures to protect against 4 the risk of an award of punitive damages that seeks to punish a defendant for having caused injury to 5 others; (6) is permitted to award punitive damages under a standard for determining liability for 6 punitive damages that is vague and arbitrary and does not define with sufficient clarity the conduct 7 or mental state that makes punitive damages permissible; (7) is not properly instructed regarding 8 Plaintiffs' burden of proof with respect to each and every element of a claim for punitive damages; 9 and (8) is not subject to trial court and appellate judicial review for reasonableness and furtherance 10 of legitimate purposes on the basis of constitutionally adequate and objective standards. An award 11 of punitive damages under such circumstances would violate Defendants' due process rights and 12 equal protection rights guaranteed by the Fifth and Fourteenth Amendments to the United States 13 Constitution and the constitutions of each state involved herein, and would be improper under the 14 common law and public policy of these states. 15 37. To the extent that Plaintiff is seeking punitive damages, Plaintiff has failed to plead 16 facts sufficient under the law to justify an award of punitive damages under the statutes or laws of 17 any of the states involved herein. 18 38. Kimberly-Clark expressly reserves the right to amend this answer. In doing so, 19 Kimberly-Clark specifically reserves their Federal Rule of Civil Procedure 12(b) defenses. 20 39. By asserting these defenses, Kimberly-Clark does not allege or admit that it has the 21 burden of proof and/or the burden of persuasion with respect to any of these matters. Kimberly- 22 Clark specifically reserves all separate or additional defenses that it may have against the named 23 Plaintiffs or putative class members. 24 40. Plaintiff and the putative class members have not sustained any injury or damage as a 25 result of any actions allegedly taken by Kimberly-Clark, and thus are barred from asserting claims 26 against Kimberly-Clark. Plaintiff and the putative class members also did not suffer any economic 27 harm and are therefore precluded from monetary recovery under the consumer protections laws of 28 California. 61 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH 3 1 41. Plaintiff's and putative class members' causes of action are barred because Kimberly- 2 Clark's product was designed, manufactured, and marketed in accordance with the expectations of 3 reasonable consumers. 4 5 Dated: August 14, 2018 SIDLEY AUSTIN LLP 6 Amy P. Lally Darlene M. Cho 7 8 By: /s/ Amy P. Lally Amy P. Lally 9 Attorneys for Defendants Kimberly-Clark Corporation, Kimberly-Clark 10 Global Sales LLC and Kimberly-Clark Worldwide, Inc. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 62 DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED CLASS ACTION COMPLAINT CASE NO. 15-CV-03243-PJH