Jeff Jonah v. Kimberly-Clark Corporation et al

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

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50 Exhibit 1 50 1 GUTRIDE SAFIER LLP ADAM J. GUTRIDE (State Bar No. 181446) 2 SETH A. SAFIER (State Bar No. 197427) MARIE MCCRARY (State Bar No. 262670) 3 KRISTEN G. SIMPLICIO (State Bar No. 263291) 4 100 Pine Street, Suite 1250 San Francisco, California 94111 5 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 6 7 (additional counsel listed on signature page) 8 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 OAKLAND DIVISION 12 13 JENNIFER DAVIDSON, JEFF JONAH, CASE NO. 14-CV-1783-PJH ANGELA LEWIS, EDWARD COLATORTI, 14 AMBER WALSH, and RISHA MATTINGLY, RELATED CASE NO. 15-CV-3243-PJH individuals, on behalf of themselves, the 15 general public, and those similarly situated, UNLIMITED CIVIL CASE 16 Plaintiffs, [PROPOSED] CONSOLIDATED CLASS 17 ACTION COMPLAINT FOR v. VIOLATION OF THE CALIFORNIA 18 CONSUMERS LEGAL REMEDIES ACT KIMBERLY-CLARK CORPORATION; AND OTHER STATE CONSUMER 19 KIMBERLY-CLARK WORLDWIDE, INC.; PROTECTION LAWS; FALSE and KIMBERLY-CLARK GLOBAL SALES ADVERTISING; FRAUD, DECEIT, 20 LLC, AND/OR MISREPRESENTATION; 21 NEGLIGENT MISREPRESENTATION; Defendants. BREACH OF EXPRESS AND IMPLIED 22 WARRANTY; VIOLATIONS OF THE MAGNUSON-MOSS WARRANTY ACT; 23 UNJUST ENRICHMENT; AND UNFAIR BUSINESS PRACTICES 24 25 26 27 28 -1- Consolidated Class Action Complaint 50 1 Jennifer Davidson, Jeff Jonah, Angela Lewis, Edward Colatorti, Amber Walsh, and RiSha 2 Mattingly, by and through their counsel, bring this Consolidated Class Action Complaint against 3 Defendants Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., Kimberly-Clark 4 Global Sales, LLC on behalf of themselves and those similarly situated, for violations of state 5 consumer protection statutes and Magnuson-Moss Warranty Act, false advertising, unfair trade 6 practices, fraud, deceit and/or misrepresentation, negligent misrepresentation, breach of express 7 and implied warranty, and unjust enrichment. 8 INTRODUCTION 9 1. For nearly twenty-five years, Defendants have run a long term advertising 10 campaign designed to convince reasonable consumers that its strong, durable wet wipes have 11 been specially designed to be suitable to flush down the toilet. As part of this campaign, they have 12 deceptively marketed four brands of personal hygiene moistened wipes as "flushable" when they 13 are not suitable for flushing. They charge a premium for these "flushable" wipes, as compared to 14 both toilet paper and moistened wipes that are not marketed as "flushable." Despite the label, 15 however, the wipes are not actually suitable for flushing down a toilet. Specifically, Defendants' 16 wipes do not disperse, i.e., break apart, upon flushing. Instead, the wipes, when flushed as part of 17 ordinary, consumer use, routinely (1) clog and damage plumbing pipes; (2) fail to properly break 18 down in septic tanks; (3) damage septic pumps; (4) catch on screens in municipal sewage lines 19 and must be removed from the sewer system for disposal in landfills; and (5) damage municipal 20 sewage lines and pumps, often due to the proclivity of the wipes to tangle with each other, tree 21 branches, rocks, and other non-flushable items, and form large masses or ropes. Moreover, 22 because the wipes are capable of causing damage to municipal sewer systems, the mere act of 23 flushing them is a violation of Section 714.1 of the Universal Plumbing Code, which prohibits 24 flushing any items that are "capable of causing damage to the public sewer, private sewer, or 25 private sewage disposal system." Language identical to or substantially similar to this has been 26 adopted by a number of states, including California, Washington, Florida, and North Carolina. 27 Reasonable consumers would not pay a premium to obtain the benefits of a "flushable" wipe if 28 Defendants disclosed the risks of flushing the wipes and that flushing the wipes are in fact illegal. -1- Consolidated Class Action Complaint 50 1 2. Throughout the class period, Defendants have obtained substantial profits from 2 these deceptive sales of moistened wipes marketed as flushable. This action seeks to require 3 Defendants to pay restitution and damages to purchasers of the flushable wipes, to remove the 4 word "flushable" from the product packaging and marketing, and to affirmatively inform 5 purchasers that the wipes are not suitable for flushing down a toilet. 6 PARTIES 7 3. Jennifer ("Davidson") is, and at all times alleged in this Consolidated Class Action 8 Complaint was, an individual and a resident of San Francisco, California. 9 4. Jeff Jonah ("Jonah") is, and at all times alleged in this Consolidated Class Action 10 Complaint was, an individual and a resident of San Carlos, California. 11 5. Angela Lewis ("Lewis") is, and at all times alleged in this Consolidated Class 12 Action Complaint was, an individual and a resident of Merced, California. 13 6. Edward Colatorti, was a resident of San Diego, California until approximately 14 2015. Since 2015, he is, and was, an individual and a resident of Chicago, Illinois. 15 7. Amber Walsh is, and at all times alleged in this Consolidated Class Action 16 Complaint was, an individual and a resident of Mill Creek, Washington. 17 8. RiSha Mattingly is, and at all times alleged in this Consolidated Class Action 18 Complaint was, an individual and a resident of Concord, North Carolina. 19 9. The Parties identified in paragraphs 3-8 of this Consolidated Class Action 20 Complaint are collectively referred to hereafter as "Plaintiffs." The Parties identifed in paragraphs 21 3-6 are collectively referred to hereafter as "California Plaintiffs." 22 10. Defendant Kimberly-Clark Corporation is a corporation incorporated under the 23 laws of the Delaware, having its principal place of business in Neenah, Wisconsin. 24 11. Defendant Kimberly-Clark Worldwide, Inc. is a corporation incorporated under 25 the laws of the Delaware, having principal places of business in Irving, Texas and Neenah, 26 Wisconsin. 27 12. Defendant Kimberly-Clark Global Sales, LLC is a corporation incorporated under 28 the laws of the Delaware, having its principal place of business in Irving, Texas. -2- Consolidated Class Action Complaint 50 1 13. The Parties identified in paragraphs 10-12 of this Consolidated Class Action 2 Complaint are collectively referred to hereafter as "Defendants" or "Kimberly-Clark." 3 14. At all times herein mentioned, each of the Defendants was the agent, servant, 4 representative, officer, director, partner or employee of the other Defendants and, in doing the 5 things herein alleged, was acting within the scope and course of his/her/its authority as such 6 agent, servant, representative, officer, director, partner or employee, and with the permission and 7 consent of each Defendant. 8 15. At all times herein mentioned, Defendants, and each of them, were members of, 9 and engaged in, a joint venture, partnership and common enterprise, and acting within the course 10 and scope of, and in pursuance of, said joint venture, partnership and common enterprise. 11 16. At all times herein mentioned, the acts and omissions of Defendants, and each of 12 them, concurred and contributed to the various acts and omissions of each and all of the other 13 Defendants in proximately causing the injuries and damages as herein alleged. 14 17. At all times herein mentioned, Defendants, and each of them, ratified each and 15 every act or omission complained of herein. At all times herein mentioned, the Defendants, and 16 each of them, aided and abetted the acts and omissions of each and all of the other Defendants in 17 proximately causing the damages, and other injuries, as herein alleged. 18 JURISDICTION AND VENUE 19 18. This action is brought by Plaintiffs pursuant, inter alia, to the California Business 20 and Professions Code, section 17200, et seq. Plaintiffs and Defendants are "persons" within the 21 meaning of the California Business and Professions Code, section 17201. 22 19. The injuries, damages and/or harm upon which this action is based occurred in or 23 arose out of activities engaged in by Defendants within, affecting, and emanating from, the State 24 of California. 25 20. Defendants have engaged, and continue to engage, in substantial and continuous 26 business practices in the State of California, including in Alameda County. 27 21. In accordance with California Civil Code Section 1780(d), Davidson filed a 28 declaration establishing that, in 2013, she purchased at least one Kimberly-Clark product in San -3- Consolidated Class Action Complaint 50 1 Francisco. 2 22. Plaintiffs accordingly allege that jurisdiction and venue are proper in this Court. 3 SUBSTANTIVE ALLEGATIONS 4 a. Defendants Deceptively Market and Sell "Flushable" Wipes. 5 23. Defendants are manufacturers and marketers of consumer goods, including a 6 variety of paper products, such as toilet paper, paper towels, feminine hygiene products, diapers, 7 and baby wipes. Its products are widely available for purchase in supermarkets, drug stores, and 8 other retailers. 9 24. Among Defendants' products are pre-moistened cloths, known as wet wipes, 10 wipes, or moist towelettes, that can be used for personal hygiene, child care needs, pet care, or 11 cleaning. This four such pre-moistened cloths manufactured and marketed by Kimberly-Clark at 12 issue in this case are the following: 13 a. Kleenex® Cottonelle® Fresh Care Flushable Wipes & Cleansing Cloths 14 ("Cottonelle Wipes") 15 b. Scott Naturals® Flushable Moist Wipes ("Scott Wipes") 16 c. Huggies® Pull-Ups® Flushable Moist Wipes ("Huggies Wipes") 17 d. U by Kotex® Refresh flushable wipes ("Kotex Wipes") 18 25. In this Complaint, these products will be collectively referred to as the "Flushable 19 Wipes." 20 26. Throughout the class period, Defendants have engaged in a long term advertising 21 campaign to advertise that the Flushable Wipes are "flushable" in a substantially identical 22 manner. 23 27. First, with respect to all of its Flushable Wipes, Defendants have consistently 24 advertised these products using words or phrases that suggest to consumers that the products are 25 specially designed to be suitable for disposal by flushing down a toilet. For example, Defendants' 26 have not only spent years branding their Flushable Wipes as "flushable" but beginning since 27 before the class period began and continuing to the present, they have also also utilized 28 representations that communicate that the Flushable Wipes (1) "break up after flushing" or -4- Consolidated Class Action Complaint 50 1 similar (e.g. breaks apart, breaks down, dissolves, or disperses during or shortly after flushing the 2 product); and (2) are "safe for" or will "pass through" (or similar terminology) pipes, sewers, 3 septic systems, and municipal wastewater treatment sytems. (All such descriptors are collectively 4 referred to herein as "Flushability Representations."). Reasonable consumers understand the 5 Flushability Representations to mean that the Flushable Wipes can be safely disposed of via the 6 household toilet. 7 28. In addition, although Defendants' Flushable Wipes are marketed under different 8 brand names, the underlying products are the same with regard to the materials and design 9 characteristics that Defendants claim allow the products to be labeled as "flushable." In particular, 10 each Flushable Wipe is made from a strong, fibrous blend of paper, and soaked in a proprietary 11 ionic solution that is designed to dissolve binding in the paper blend but only works under certain 12 conditions, as discussed in more detail in paragraphs 68-69. 13 29. On the front of the Cottonelle Wipes package, Defendants advertise the product as 14 "FLUSHABLE MOIST WIPES" or as "flushable cleansing cloths." 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- Consolidated Class Action Complaint 50 1 2 3 30. One of the packages further represents that the wipes are "SEWER AND SEPTIC 4 SAFE.*" No disclaimer appears to be associated with the asterisk. On the back of the package, 5 Defendants represent that "Cottonelle Fresh Care Flushable Cleansing Cloths break up after 6 flushing." On the backs of some packages of the Cottonelle Wipes, Defendants further state, "For 7 best results, flush only one or two cloths at a time," but this warning has not appeared on all 8 packages sold throughout the class period, such as the smaller, travel size package of wipes. 9 31. On the website for the Cottonelle Wipes, Defendants have touted the flushable 10 nature of the product using assorted Flushability Representations. For many years, Defendants 11 advertised on their website that the "flushable wipes use a patented dispersible technology, which 12 means that when used as directed they break up after flushing and clear properly maintained 13 toilets, drainlines, sewers, pumps, and septic and municipal treatment systems." The website 14 currently states that the wipes "use a patented SafeFlush Technology ® that starts to break down 15 immediately after flushing, making them disposable and safe for septic systems." 16 https://www.cottonelle.com/en-us/products/cottonelle-fresh-care-flushable-wipes#faqs (last 17 accessed January 24, 2019). And throughout the class period, Defendants have made a variety of 18 similar representations designed to convey that the Cottonelle Wipes are specially designed to be 19 suitable for flushing down a household toilet, describing the wipes not just as "Flushable," but 20 have also advertised them using Flushability Representations such as "Break up after flushing," 21 and are "Sewer- and septic-safe." 22 32. On the front of the Scott Wipes package, Defendants similarly advertise the 23 product as "Flushable Cleansing Cloths" and make assorted Flushabillity Representations, 24 typically claiming that each of the wipes "breaks up after flushing." 25 26 27 28 -6- Consolidated Class Action Complaint 50 1 2 3 4 5 6 7 8 9 10 33. On the back of the package, throughout the class period, Defendants have utilized 11 Flushability Representations, such stating "Scott Naturals* Flushable Cleansing Cloths break up 12 after flushing and are sewer and septic system safe. For best results, flush only one or two 13 cleansing cloths at a time." For at least part of the class period, no disclaimer appears to be 14 associated with the asterisk. The back of the package also states that the "flushable" cloths are 15 "Septic Safe" and that each wipe "Breaks up after flushing." 16 34. On the front of the Huggies Wipes package, Defendants also consistently used 17 Flushability Representations to describe the product as "flushable moist wipes." 18 19 20 21 22 23 24 25 26 27 28 -7- Consolidated Class Action Complaint 50 1 2 3 35. On the back of the Huggies Wipes, Defendants utilize Flushability Representations 4 such as claiming that the wipes are "Septic Safe" and that each "Breaks up after flushing," and 5 only advise "For best results, flush only one or two wipes at a time." For a period of time during 6 the class period, on the website for the Huggies Wipes, Defendants claimed the wipes are "sewer 7 and septic safe and break up after flushing." 8 36. On the front of the Kotex Wipes package, Defendants likewise represent that the 9 product is "flushable." 10 11 12 13 14 15 16 17 18 37. Defendants provide little additional information on the back, only reiterating that 19 the product is "Flushable!" 20 38. At no point during the class period or at any part during Defendants' long term 21 advertising campaign have any of the packages for any of the brands of Flushable Wipes 22 disclosed that the wipes: (i) are not suitable for disposal by flushing down a toilet; (ii) are not 23 regarded as flushable by municipal sewage system operators; (iii) do not disperse, i.e. break apart, 24 in household plumbing, septic tanks, and in the sewer system like toilet paper; (iv) dissolve using 25 an ionic solution that is only activated under limited conditions; and (v) after they are flushed, 26 they routinely clog and damage plumbing pipes, fail to properly break down in septic tanks, 27 damage septic pumps, catch on screens in municipal sewage lines and must be removed from the 28 -8- Consolidated Class Action Complaint 50 1 sewer system for disposal in landfills, and damage municipal sewage lines and pumps, often due 2 to the proclivity of the wipes to tangle with each other, tree branches, rocks, and other non- 3 flushable items, and form large masses or ropes. 4 39. Defendants intend for consumers to understand that the Flushable Wipes are a 5 flushable product, i.e., one that is specially designed to be suitable to flush in all instances, and 6 have consistently marketed the product in that manner throughout the class period using 7 Flushability Representations and consistent omissions and failures to warn. For example, in 8 marketing the Flushable Wipes, Defendants have never advised consumers that the wipes may not 9 be suitable for flushing in certain toilets, plumbing systems, and/or municipal wastewater 10 systems. Nor have Defendants advised consumers that their Flushable Wipes may not be suitable 11 when flushed under certain conditions, such as when minerals, elements, or chemicals are present 12 in water, which interfere with the ionic solution, preventing effective dispersing, or when the 13 water is not at room temperature. In other words, Defendants sell the product as one that is 14 specially designed to be suitable to flush by consumers in any home and in any location, and not 15 as a product intended to work only as promised under rare, specific, and controlled circumstances. 16 40. While at times, Defendants have printed in small font a disclaimer advising 17 consumers that "for best results", they should flush only one or two wipes at a time, this 18 disclaimer has never appeared on the front of the package, nor has it ever appeared in 19 conspicuous location on the package. Rather, when this disclaimer appears on the packaging, 20 Defendants place it on the back of the package, where consumers are unlikely to view it. 21 Moreover, even when flushed in that manner – one or two at at time – the Flushable Wipes are 22 not flushable, as they will damage or clog pipes, septic systems, and sewage lines and pumps, and 23 do not disperse like toilet paper. 24 41. Defendants' misrepresentations appear in all their advertising. For example, in 25 2015 and likely at various other points during the class period, Defendants informed consumers 26 and the public on the Cottonelle website that the "Cottonelle® Flushable Cleansing Cloths are 27 flushable due to patented technology that allows them to lose strength and break up when moving 28 through the system after flushing." And during the class period, the website used other -9- Consolidated Class Action Complaint 50 1 Flushability Representations to persuade consumers that the Cottonelle Wipes are "Flushable," 2 "Break up after flushing," and are "Sewer- and septic-safe." Nowhere on the website do 3 Defendants disclose that the wipes are not suitable for disposal by flushing down a toilet, are not 4 regarded as flushable by municipal sewage system operators, do not disperse upon flushing, and 5 that they routinely damage or clog plumbing pipes, septic systems, and sewage lines and pumps. 6 42. 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 10 representation that the product is "Flushable" and/or the Flushability Representations. 11 43. Defendants further intend for consumers to rely on the omissions that the 12 Flushable Wipes are not suitable for disposal by flushing down a toilet, and that the wipes: (i) are 13 not suitable for disposal by flushing down a toilet; (ii) are not regarded as flushable by municipal 14 sewage system operators; (iii) do not disperse, i.e. break apart, in household plumbing, septic 15 tanks, and in the sewer system like toilet paper; (iv) dissolve using an ionic solution that is only 16 activated under limited conditions; and (v) after they are flushed, they routinely clog and damage 17 plumbing pipes, fail to properly break down in septic tanks, damage septic pumps, catch on 18 screens in municipal sewage lines and must be removed from the sewer system for disposal in 19 landfills, and damage municipal sewage lines and pumps, often due to the proclivity of the wipes 20 to tangle with each other, tree branches, rocks, and other non-flushable items, and form large 21 masses or ropes. The omission of these facts are not only contrary to Defendants' Flushability 22 Representations, but are facts that Defendants are obligated to disclose because these facts are 23 defects that affect the central functionality of the Flushable Wipe, as they render the wipe not 24 flushable. 25 44. Consumers rely on Defendants' Flushability Representations because they 26 reasonably assume that a product labeled "flushable" disperses quickly like toilet paper, will not 27 damage plumbing, and are safe for sewer and septic systems. Because consumers reasonably 28 believe the wipes are suitable for flushing down a toilet, and therefore pose no greater risk to their -10- Consolidated Class Action Complaint 50 1 plumbing and/or sewer and septic systems than does toilet paper, they are willing to purchase 2 them for that convenience. As such, Defendants are able to charge a premium for the Flushable 3 Wipes. 4 45. In a similar lawsuit against Defendants' main competitor, Procter & Gamble, an 5 expert witness found that "flushable" wipes command a price premium of 9.19% over non- 6 flushable wipes. Thus, Defendants are receiving almost 10% more per package than they would 7 for wipes that were not advertised as flushable and/or advertised using other Flushability 8 Representations. 9 46. If consumers knew that the Flushable Wipes were not suitable for flushing down a 10 toilet, they would not pay a premium for the product, but rather, would opt to purchase the 11 cheaper, non-flushable items and dispose of them in trash cans. 12 b. The Flushable Wipes Are Not Flushable. 13 i. "Flushable" Means "Suitable For Disposal by Flushing Down a Toilet." 14 15 47. As defined by Webster's Dictionary, "flushable" means "suitable for disposal by 16 flushing down a toilet." 17 48. Many objects and materials theoretically will pass from the toilet to sewer pipes 18 after being flushed, such as food scraps, jewelry, small toys, or cotton swabs, but that does not 19 make such objects or materials "flushable." Rather, the word "flushable" means not just that the 20 object or material is capable of passing from the toilet to sewer pipes, but that the object or 21 material is appropriate or suitable to flush down a toilet for purposes of disposal via the sewer or 22 septic system. The concept that "flushable" means that a product safely passes from home toilet 23 to its endpoint, either by properly disintegrating in a septic tank or passing without incident to the 24 municipal sewer system, is one that is uniformly accepted by wastewater treatment system 25 operators and the wipes industry. 26 49. Defendants' definition of flushable is consistent with industry usage and has been 27 throughout the class period. Defendants are members of the Association of the Nonwoven Fabrics 28 Industry ("INDA"), which has a Flushability Working Group, which Defendants have controlled -11- Consolidated Class Action Complaint 50 1 for many years. The Flushability Working Group publishes a reference document for the industry 2 called "Guidance Document for Assessing the Flushability of Nonwoven Disposable Products." 3 ("INDA Guidelines"). Because Defendants' officers have served in leadership roles on the 4 Flushability Working Group for many years, Defendants have been able to control the 5 formulation of these guidelines to ensure that their wipes meet them. 6 50. Each version of the INDA Guidelines has used a definition of "flushable" that is 7 similar as the one used by Defendants. 8 51. For example, in the most recent edition of the INDA Guidelines, the Fourth 9 Edition, published in March 2018, INDA included the following: 10 11 12 13 14 15 16 https://www.edana.org/docs/default-source/default-document-library/guidelines-for-assessing- 17 the-flushability-of-disposable-nonwoven-products-ed-4- 18 finalb76f3ccdd5286df88968ff0000bfc5c0.pdf?sfvrsn=6 (last accessed January 24, 2019). 19 52. That definition is nearly identical to what appeared in the Third Edition, published 20 in June 2013: 21 22 23 24 25 26 27 28 -12- Consolidated Class Action Complaint 50 1 53. And earlier editions of the guidelines contained similar definitions. 2 54. INDA's definition of the term "flushable" is similar to the generally accepted 3 consumer understanding of the word. Reasonable consumers understand "flushable" to mean 4 suitable for disposal by flushing down a toilet. That is, reasonable consumers understand products 5 labeled "flushable" to be products that can be flushed down the toilet without risk of damage to 6 the plumping in their homes or municipal sewer systems. INDA and Defendants appear to agree. 7 But INDA – at the prompting of Defendants and others in the industry – has written the 8 definitions in such a way so as to give the industry an out. While INDA requires "evidence," it 9 fails to require that the evidence be scientifically accepted or robust. 10 55. The Universal Plumbing Code ("UPC") accepts that the term "flushable" considers 11 the entire process from home toilet to wastewater treatment. To ensure that only "flushable" 12 products are flushed, section 714.1 of that UPC states: 13 It shall be unlawful for a person to deposit, by means whatsoever, into a plumbing fixture, floor drain, interceptor, sump, receptor, or device, which is connected to a 14 drainage system, public sewer, private sewer, septic tank, or cesspool, ashes; cinders; solids; rags; flammable, poisonous, or explosive liquids or gases; oils; 15 grease; and whatsoever [sic] that is capable of causing damage to the public sewer, private sewer or private sewage disposal system. 16 56. A number of states have adopted that section of the UPC, with only minor 17 modifications. For example, the State of California has made it illegal "to deposit, by any means 18 whatsoever, into a plumbing fixture, floor drain, interceptor, sump, receptor, or device, which is 19 connected to a drainage system, public sewer, private sewer, septic tank, or cesspool, any ashes; 20 cinders; solids; rags; inflammable, poisonous, or explosive liquids or gases; oils; grease; or any 21 other thing whatsoever that is capable of causing damage to the drainage system or public sewer." 22 California Code of Regulations, Title 24, Part 5, Chapter 3, California Building Standards, Sec. 23 305.1. Other states, such as Washington, North Carolina, and Florida have adopted that code with 24 only minor wording variations, as have many other places. 25 26 ii. Products That Do Not Disperse Upon Flushing Are Not Flushable. 27 28 57. The only products that uniformly do not damage damage plumbing pipes and -13- Consolidated Class Action Complaint 50 1 pumps, septic tanks, and/or municipal sewage lines and pumps are products such as toilet paper 2 that disperse quickly in wastewater, i.e., break apart entirely into unrecognizable particles within 3 a minute or two of being flushed. The benefits of a quickly dispersing product are that it will not 4 tangle with other items in the sewer, cause clogs or damage to plumbing pipes, septic or 5 municipal sewer pumps, or otherwise need to be removed from screens in the wastewater 6 treatment system or filtered out of wastewater prior to treatment. On the other hand, products that 7 do not disperse or are slow to disperse cannot safely be flushed. When these materials remain in 8 tact or in larger pieces, they are prone to tangling with one another and with other debris, forming 9 large ropes or masses that can cause pipe blockages. In addition, larger pieces are more likely to 10 get caught on screens and filters in the municipal wastewater system and must be removed and 11 disposed of in a landfill. Large pieces also clog municipal sewer pumps, resulting in damage and 12 the need for costly repairs. As a result of the potential for damage resulting from flushing non- 13 dispersing products, any product that does not efficiently disperse in wastewater is not flushable, 14 and is "capable of causing damage to the drainage system or public sewer," rendering it illegal to 15 flush under California law. 16 58. Because products that do not disperse quickly like toilet paper can and do cause 17 damage to septic systems and public wastewater systems, water treatment professionals and 18 organizations unanimously agree that to be labeled "flushable," a product must disperse quickly 19 like toilet paper. These organizations have routinely criticized the labeling of non-dispersing 20 wipes, such as the Flushable Wipes, as flushable. For example, the Water Environment 21 Federation (WEF), a nonprofit association of water quality professionals, has explained which 22 products should be labeled as "flushable": 23 The industry reference for dispersability is two-ply toilet paper … [which] starts to break apart when the toilet is flushed and is indistinguishable in the wastewater 24 system in a matter of seconds…Anything labeled as flushable should start to break apart during the flush and completely disperse within 5 minutes… Our 25 mantra is, 'It's not flushable if it's not dispersible' . . . 26 See http://news.wef.org/stop-dont-flush-that/ (last accessed January 24, 2019) (internal quotations 27 omitted). WEF further reports that consumers flush nondispersible wipes because they are 28 "mislabeled" as "flushable," when they do not disperse like toilet paper. Id. -14- Consolidated Class Action Complaint 50 1 59. Municipal wastewater treatment operators and water protection organizations, and 2 related associations, are in agreement with WEF that the only product other than human 3 excrement suitable for disposal down a toilet is toilet paper. For example, the California 4 Association of Sanitation Agencies has stated: 5 Many personal hygiene wipes and cleaning products are marketed as being "flushable." But despite the confusing and misleading labels you should never 6 flush "flushable" or "disposable" products. No matter what a label says, the only 7 items you should flush are human waste and toilet paper. Just because something disappears down your toilet doesn't mean it won't cause a problem in your sewer 8 pipe—or further down the line at wastewater treatment facilities. Items labeled as "flushable" or "disposable" (even "bio-degradable" ones) can get caught on roots 9 in sewer pipes and contribute to blockages, back-ups, and overflows. 10 Dispose of them in the trash, not the toilet! 11 See https://web.archive.org/web/20150206044138/http://www.casaweb.org/flushable-wipes (last 12 accessed January 24, 2019). 13 60. San Francisco Public Utilities Commission officials have stated that with the 14 exception of toilet paper and human waste, "Everything else should go in the trash" and should 15 not be flushed. See https://archives.sfexaminer.com/sanfrancisco/flushable-wipes-cause- 16 problematic-backups-at-local-sewage-plants/Content?oid=2514283 (last accessed January 24, 17 2019). 18 61. The East Bay Municipal Utility District previously issued a statement advising 19 consumers that: 20 Non-Flushable Wipes and Products 21 No matter if the label says "disposable" or "flushable," cleaning and personal hygiene products should never be flushed. 22 "Disposable" or "flushable" wipes and other products don't breakdown in the 23 sewer. Instead, they get tangled and clumped in hair and debris creating massive obstructions in the sewers. Remember... your toilet is not a trash can! 24 Previously available at https://www.ebmud.com/water-and-wastewater/pollution- 25 prevention/residential-pollution-prevention (last successfully accessed February 26, 2015). That 26 same organization continues to warn households: 27 Even if products are marketed as "disposable," "flushable" or "sewer-and-septic- 28 safe," wipes, household waste and personal hygiene products should never be -15- Consolidated Class Action Complaint 50 flushed. They belong in the trash. 1 https://www.ebmud.com/wastewater/bay-friendly-waste-disposal/what-not-flush/ (last accessed 2 January 24, 2019). 3 62. The City of Carlsbad Wastewater Superintendent Don Wasko has stated: 4 5 They may be called flushable, but they can do severe damage to our sewer system. . . These cloth wipes don't break down in the sewer system the same way that 6 toilet paper does. 7 See https://web.archive.org/web/20141228162425/http://news.carlsbadca.gov/news/flushable- 8 wipes-and-other-things-you-should-not-flush (last accessed January 24, 2019). 9 63. And in Contra Costa, County, the Central Contra Costa Sanitary District has said 10 that pre-moistened wipes are not flushable because "they don't break down as quickly as toilet 11 paper and that's really the standard for flush-ability, as far as we're concerned." See 12 http://sanfrancisco.cbslocal.com/2013/07/17/cleaning-wipes-used-in-homes-and-offices-clogging- 13 bay-area-sewer-pipes/ (last accessed January 24, 2019). 14 64. Wastewater treatment operators outside of California have issued similar 15 statements. For example, operators of the wastewater treatment system in Pima County, Arizona, 16 issued a release stating that, "Unfortunately, disposable wipes are rarely, if ever, biodegradable in 17 the sanitary sewer system. They just aren't in there long enough to break down." See 18 http://www.insidetucsonbusiness.com/blogs/save-yourselves-stfop-flushing-flushable- 19 wipes/article_e4db48de-312f-11e3-843e-001a4bcf887a.html (last accessed Jauary 24, 2019). 20 iii. The Flushable Wipes Are Not a Flushable Product. 21 65. Even though Defendants have for years advertised the Flushable Wipes as 22 "flushable," and intend for this representation to mean that they are suitable for disposal by 23 flushing down a toilet without harming septic tanks or sewer systems, the Flushable Wipes are 24 not in fact flushable. 25 66. First, the Flushable Wipes are not designed to break apart or disperse in water, but 26 rather are specially manufactured to remain strong and durable while wet. In fact, throughout the 27 class period, all four brands of Flushable Wipes have been manufactured using the same 28 proprietary paper blend, for which Defendants own the patent. To manufacture the paper, -16- Consolidated Class Action Complaint 50 1 Defendants use an "air-laid" process, which creates strong knots of fibers that will not break 2 down easily when submersed in water. Unlike toilet paper, which is a dry paper product designed 3 to fall apart in water, all of the Flushable Wipes are sold as pre-moistened products, and thus, the 4 paper used to make them is designed to withstand months of soaking in a wet environment. 5 Defendants make the paper so strong, in fact, that it cannot efficiently disperse when placed in the 6 water in a toilet. 7 67. A consumer who purchases any of the four brands of Flushable Wipes will find, 8 upon opening the package, sheets of moist paper, dampened by a coating of wet lotion. Because 9 weeks, months, or longer will pass between the time a Flushable Wipe is manufactured and the 10 time at which it is ultimately used by a consumer, the paper used to manufacture it must be strong 11 enough to sit in a still, wet environment for extremely long periods of time. Thus, in selecting the 12 paper used to manufacture their Flushable Wipes, Defendants designed a paper that is strong 13 enough to withstand months of soaking in wet environment and cannot possibly efficiently 14 disperse when placed in more water. 15 68. Second, Defendants utilize a solution that purports to aid in the dissolution, but 16 fails to work real-world conditions. In particular, Defendants have patented an ionic solution that 17 theoretically activates when the wipes are placed in sufficient amounts of water, i.e. in the toilet. 18 When the ions are activated, Defendants intended for them dissolve the binder in the substrate, 19 permitting it to break apart easily. But the ionic solution is sensitive, and does not work in real 20 world conditions. Rather, its effectiveness is diminished or eliminated all together under an array 21 of real world conditions, such as when certain chemicals, minerals, elements, or other substances 22 in the water interfere or neutralize the ionic solution, or when the water is not at room 23 temperature. 24 69. While Defendants often trumpet videos and tests that seemingly show that their 25 wipes more readily disperse than others, these tests are rigged, as Defendants utilize water that 26 contains the properties necessary for activation of the solution, i.e. is at room temperature, and 27 does not contain minerals, elements, or chemicals that interfere with the ionic solution's 28 dissolution process. -17- Consolidated Class Action Complaint 50 1 70. Third, Defendants' Flushable Wipes are so poorly designed that they could not 2 even withstand regular use at Defendants' own facility. Several years ago, Defendants' facility in 3 Neenah, Wisconsin, Defendants' employees reported a "massive" clog that was caused by 4 employees flushing the Cottonelle Wipes in the restrooms. Defendants' employees reported that 5 in investigating the clog, they "could see all the moist wipes and they were not deteriorated or 6 broken down at all." City of Wyoming et al. v. Kimberly-Clark Corporation, et al, Case No. 15- 7 cv-2101 (D. Minn.), Dkt. # 528 at 28. In response, Defendants removed their own wipes from the 8 employee restrooms. 9 71. Defendants' wipes are so poorly designed that one federal court judge conducted a 10 "Science Day" to hear expert testimony, and remarked at the conclusion, "Well, I thought the 11 scientific day demonstrated fairly clearly that there was no substantial disintegration while it went 12 through the pipes...there was no central disintegration when it hit the toilet system. And that's 13 because of the very nature of the product and what makes it usable and desirable." Id. at 12. 14 72. Fourth, Defendants' acknowledgement that similar products that they sell are not 15 flushable suggest that know that the Flushable Wipes are not flushable. For example, Defendants 16 manufacture and market Kleenex facial tissue, the boxes of which typically state "Do Not Flush" 17 on them. But the facial tissue is made from substrate that is comparable, if not more dispersible to 18 the substrate used in the Flushable Wipes. This suggests that Defendants know the substrate is not 19 truly suitable for disposal by flushing. 20 73. While Defendants acknowledge and admit that a "flushable" product must be one 21 that is compatible with wastewater treatment facilities, as well as home plumbing and septic 22 systems, Defendants have for years ignored wastewater treatment operators and organizations 23 which state that only dispersible products are flushable. Instead of using standards and guidelines 24 recommended by those actually treating wastewater, Defendants have elected to test 25 "flushability" using the flawed INDA Guidelines, which Defendants participated in drafting, and 26 which were engineered to ensure that Defendants' wipes can pass them. Thus, while all of the 27 Flushable Wipes can pass a self-serving set of guidelines, the guidelines are heavily flawed and 28 do not adequately measure whether a product is safe for disposal by flushing down a toilet. -18- Consolidated Class Action Complaint 50 1 74. Defendants' influence over the INDA guidelines is apparent in the fact that the 2 tests, including both the Third and Fourth Edition, do not specify that the wipes be tested in a 3 variety of different kinds of water commonly found in consumers' homes or in sewers. For 4 example, the guidelines do not require testing in hard water, nor do they require testing them in 5 water with human waste. Defendants of course know that their ionic solution only works when 6 the water is just right, and thus, has refused to design tests that ensure that the wipes are flushable 7 in all instances, i.e., use a range of conditions that better reflect the water conditions in household 8 plumbing and in sewers. 9 75. Defendants have rigged the tests in other ways. For example, the Flushable Wipes 10 purportedly passed the "Slosh Box Disintegration Test" or "FG502" test appearing in the Third 11 Edition of the INDA Guidelines. The test purports to measure dispersability, as it assesses the 12 potential for a product to disintegrate when it is submerged in water and subjected to agitation. To 13 conduct the test, the test material is placed in a box of tap water. Testers then mechanically agitate 14 the water, and time how long it takes for the test material to disintegrate. But the test is rigged so 15 that even non-dispersible products pass it: Defendants and INDA have agreed that the standard 16 for "passing" this test is not whether the product mimics the flushable and dispersible toilet paper 17 or even that the product will break down during or shortly after a flush. Rather, the test only 18 requires that after three hours of agitation in the slosh box, more than 25% of the wipe passes 19 through a 12.5 millimeter (roughly a half inch) sieve 80% of the time. In other words, the test is 20 still passed even if after more than three hours of agitation, nearly three-quarters of the material 21 is unable to pass through the sieve. In "real world" terms, this means that wipes that pass the 22 slosh box test can still be 75% in tact and are prone to catching on screens in the wastewater 23 treatment system, preventing wastewater from moving through sewer pipes efficiently, and must 24 be removed from the wastewater system and disposed of in landfills. 25 76. When subjected to the Slosh Box Disintegration Test, a typical piece of toilet 26 paper begins to break down as soon as the water in the slosh box begins to move, and is 27 completely dispersed within in a few seconds. See http://www.consumerreports.org/cro/video- 28 hub/home--garden/bed--bath/are-flushable-wipes-flushable/16935265001/22783507001/ (last -19- Consolidated Class Action Complaint 50 1 accessed January 24, 2019). Thus, when flushed down a toilet, toilet paper will typically break 2 apart within seconds after flushing (id.), during the time when the flushed water is agitated and 3 flowing as a result of the consumer triggering the flushing mechanism on the toilet. In 4 comparison, the Flushable Wipes do not even begin to disperse immediately after flushing. (Id.) 5 Rather, several years ago, Defendants' own website presented a video that reveals that the Wipes 6 begin to break down 35 minutes after flushing, and take hours to completely disperse.1 But after 7 being flushed down a home toilet, the Wipes will not be subjected to minutes or hours of 8 constant, forceful agitation like in the Slosh Box test. Without this, the Wipes will take even 9 longer to disperse. This extremely slow disintegration time means that wipes are likely to get 10 clogged in the pipes during and after flushing. Nevertheless, Defendants and INDA have agreed 11 that non-dispersible products such as the Flushable Wipes can be labeled as "flushable" provided 12 they pass this weak Slosh Box test standard. 13 77. Wastewater treatment operators criticize the Slosh Box Disintegration Test as it 14 does not properly mimic the force and movement of products through the wastewater system. As 15 one professional noted, the test is "a lot more turbulent than the flow that you find in a wastewater 16 pipe." http://www.nytimes.com/2015/03/15/nyregion/the-wet-wipes-box-says-flush-but-the-new- 17 york-city-sewer-system-says-dont.html?_r=0 (last accessed January 24, 2019). Another explained 18 that the Slosh Box Disintegration Test is "way more violent than you would see in a sewer" and 19 that it "is not acceptable to the wastewater industry because it is too long (three hours), too 20 aggressive, and does not replicate the flow conditions in a gravity sewer.2 21 78. Because sewer systems typically move sewage to the plant via gravity, the water 22 flow is more gentle and therefore not as hard on the wipes as the agitating water in the Slosh Box 23 Disintegration Test, meaning that the wipes will not break down as quickly in actual conditions as 24 they do in Defendants' lab simulated tests. 25 79. The Slosh Box Disintegration Test is further flawed because wastewater utility 26 officials say that wipes can reach a sewage treatment pump in as quickly as a few minutes, much 27 1 In 2014, this video was available at http://www.kimberly- 28 clark.com/newsroom/media_resources/safetoflush.aspx?print=true. 2 In 2015, this statement appeared at http://www.aeanj.org/aea-uploads/28932_Fall_low_res.pdf. -20- Consolidated Class Action Complaint 50 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 January 24, 2019). Further, the moist lotion used in manufacturing the wipes results in 5 them 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 January 29, 2019). 8 80. Because the wipes are always intact after a few minutes, and largely intact even 9 after hours of agitation, they arrive at wastewater treatment facilities intact, where they create the 10 problems described in paragraphs 85-90. 11 81. The other tests run as part of the INDA Guidelines are similarly flawed. For 12 example, in the Third Edition, the Slosh Box Disintegration Test described in paragraph 75 and 13 the "Aerobic Biodisintegration" FG505 test, assess the wipes' ability to disintegrate under 14 constantly agitated water. Since the Flushable Wipes are unlikely to be subjected to the same 15 agitating water in actual conditions as they are subjected to in Defendants' lab, the tests are not 16 reliable predictors of whether the Flushable Wipes are suitable for flushing down a toilet. The 17 result is that many of the Flushable Wipes arrive at the sewage treatment plant intact or 18 insufficiently broken down. 19 82. The tests are further flawed in that they fail to take into account the wipes' 20 propensity for "ragging." After being flushed down the toilet, the Flushable Wipes have a 21 propensity to tangle amongst one another and with other debris, and form long ropes that can fill 22 sewer lines for tens of feet. The tests however, assume that wipes are passing through pipes and 23 pumps one at a time, instead of in clumps of rags and ropes. For example, while the Slosh Box 24 Disintegration Test only considers what one wipe will do, there will often be multiple wipes in a 25 pipe at a time. The bigger the mass of wipes, the slower the dispersement time. See 26 http://www.washingtonpost.com/local/trafficandcommuting/flushable-personal-wipes-clogging- 27 sewer-systems-utilities-say/2013/09/06/9efac4e6-157a-11e3-a2ec-b47e45e6f8ef_story.html (last 28 accessed January 24, 2019). -21- Consolidated Class Action Complaint 50 1 83. In the Third Edition of the INDA Guidelines, the FG507 test, or the Municipal 2 Pump Test, was introduced. Prior to 2013, "flushable" wipes were not even tested for their 3 compatibility with municipal sewer pumps, even though a wipe's ability to pass through these 4 pumps without causing damage, clogs, and excessive power draws, is a critical component to 5 consider when analyzing whether a product is compatible with wastewater treatment systems. 6 84. The Municipal Pump Test, which was added in the Third Edition in response to 7 massive outcry by wastewater professionals is flawed, however. For example, to conduct that test, 8 Defendants and INDA have agreed to only introduce one wipe every ten seconds into the pump to 9 assess whether the pump can process the wipes. Because the non-dispersible Flushable Wipes are 10 likely entangle with other wipes and debris, they are unlikely to enter the pump one at a time. 11 Instead, they reach the pump in larger clumps, increasing the likelihood that they will break or 12 clog it. 13 c. Because the Flushable Wipes Are Not Suitable For Flushing Down a Toilet, They Wreak Havoc When Flushed. 14 15 85. Consumers and municipalities all over the country have complained about the 16 damage caused when flushing the Flushable Wipes. 17 86. In April 2015, the City of Wyoming, Minnesota filed a lawsuit against Defendant 18 Kimberly-Clark Corporation and other manufacturers of "flushable" wipes on behalf of a class of 19 municipalities. The City of Wyoming seeks damages for the harm caused to municipalities' sewer 20 systems. 21 87. Numerous consumers have complained that Defendants' Wipes are falsely labeled 22 as "flushable" because they are not suitable for disposal by flushing down a household toilet. For 23 example for many years, Defendants allowed consumers to leave comments on its own website,3 24 and numerous consumers have complained of damage caused by the wipes to their household 25 plumbing: 26 3 27 The reviews were previously available at https://www.cottonelle.com/products/cottonelle-fresh- care-flushable-moist-wipes/review (last accessed September 3, 2014). The reviews no longer 28 appear on Defendants' website. -22- Consolidated Class Action Complaint 50 sugah - August 15, 2014 1 just had to pay over 300.00 today, from using cottonelle flushable cleansing cloths!!! had to have a plumber first and then a septic tank cleaned, just 2 of us 2 living here and have previously only had to have tank cleaned yearly, we were told and shown the cloths that had caused the blockage !! of course we will never use 3 them again. this are very false statements on you package. they are not sewer and septic safe..just ask anyone who has just experienced what we have today, I will 4 make sure all my friend know about this... you should be called out on this, we are retired, and this is not in the budget !!! 5 Richard - June 24, 2013 6 A few months after flushing the wipes down my toilets and into my septic system it 7 clogged the underground filter. I had the 1000 gallon storage tank pumped and it was disgustingly obvious that the Cottonelle wipes were the culprit. They do not break down 8 like toilet paper or even close. Do not use them if you are on a septic system. If you read Kimberly Clark's claim for septic systems you will see that it is written to confuse the 9 consumer. It focuses on "flushability" which only gets these things down the toilet but not through a septic system. 10 Kenneth - June 1, 2013 11 I tried a free sample and it did breakdown like toilet paper. I purchased this nice package 12 (36 or 42 ?? nothing on wrapping indicating count). Being on a septic I checked to ensure it was also going to break down. No matter how hard I mashed and put in jar with water, 13 heavy agitation it would not break apart. This is not suitable for a septic!!! 14 tlkflat - April 24, 2013 15 DO NOT use with the newer rural waste water treatment systems like a JET system. They will clog the booster pump and then tangle in the air pump spinner, VERY costly repair. 16 Doug - March 18, 2013 17 Flushable Wipes are NOT flushable. Sure, they'll flush. Then they will clog your pipes ... always. It may not be today or tomorrow, but they will clog. At my bed and breakfast I 18 have to have the plumbers out at least 4 times a year to clear our lines. It is ALWAYS flushable wipes. BAD PRODUCT. 19 88. For example, in Bakersfield, California, the city found that none of the brands of 20 "flushable" wipes tested, including Defendants' Cottonelle Wipes, actually broke apart in the 21 sewer; instead, they ended up as giant clogs at the treatment plant. Previously available at 22 http://www.turnto23.com/news/local-news/bakersfield-sewer-systems-keep-getting-clogged- 23 because-of-flushable-bathroom-wipes-092413 (last accessed August 28, 2014). As a result of the 24 Flushable Wipes failure to flush and clear pipes, crews of three or four workers in Bakersfield 25 must regularly visit the city's 52 sewage lift stations to cut up the balls of wipes that clog the lift 26 stations. If they do not, there is a risk that back flow damage will spill inside homes. The city has 27 documented one of the clogs: 28 -23- Consolidated Class Action Complaint 50 1 2 3 4 5 6 7 8 9 10 11 Id. 12 89. In Jacksonville Beach, Florida, in response to city official concerns, a news outlet 13 broadcasted a "Consumer Alert" to explain that while Cottonelle and Scott Wipes are advertised 14 as being able to be flushed, "there is little truth in the advertisements." See 15 http://www.news4jax.com/news/officials-flushable-wipes-clog-pipes/-/475880/23740904/- 16 /t5h2vrz/-/index.html (last accessed January 24, 2019). 17 18 19 20 21 22 23 24 25 26 27 28 -24- Consolidated Class Action Complaint 50 1 2 3 Rather, the reporters explained, Defendants' Flushable Wipes do not break apart after being 4 flushed and clog pipes and pumps. The reporters quoted city estimates that because of the time 5 and money expended in dealing with clogs, consumers pay higher plumbing repair costs and 6 higher taxes. The city released a photo that demonstrates the extent to which wipes, such as 7 Defendants,' have clogged the pumps: 8 9 10 11 12 13 14 15 16 Id. 17 90. In San Antonio, Texas, the San Antonio Water System has said that flushable 18 wipes, including specifically the Flushable Wipes made by Defendants, are clogging up sewers in 19 ways in which sewer workers have never seen before. See http://www.woai.com/articles/woai- 20 local-news-119078/disposable-wipes-causing-nightmare-for-san-11718265/ (last accessed 21 January 24, 2019). Sewer workers are responding to dozens of clogs, and to repair, they retreive 22 large "rope like mass[es]" from the pipes. Id. 23 d. Defendants Intend To Continue To Market And Sell Non-Flushable Products as "Flushable." 24 25 91. Defendants' marketing campaign has been extremely successful. 26 92. The market for flushable wipes is a burgeoning one. It has been doubling in sales 27 every five years, and is projected to be worth $2.7 billion in 2020. See 28 http://www.prweb.com/releases/2017/05/prweb14358353.htm (last accessed January 4, 2019). -25- Consolidated Class Action Complaint 50 1 93. Defendants' brands are widely popular, and the Flushable Wipes are sold in 2 grocery stores and big box stores throughout California and the country. Because of the big 3 potential for sales, Defendants have no incentive to stop selling "flushable" products or change 4 their disclaimers to discourage sales. 5 94. Indeed, as Judge Weinstein noted when certifying a class of New York purchasers 6 of Defendants' wipes: 7 It is common sense that "flushability" is a valuable characteristic that producers 8 include on their labels with the expectation that it will allow them to extract a higher price for the product. Internal company documents make it clear that 9 flushability is the raison d'être for this market niche. As one Kimberly-Clark presentation aptly put it, "The label says it all — The reason the category exists is 10 because the product is moist & flushable." [] Testimony from company executives confirms that they believe flushability is an important attribute for consumers. [] 11 All three companies have expended significant resources to improve its wipe's 12 "dispersability"— the chief characteristic by which the FTC purports to measure flushability. See Nice-Pak Final Consent Order at 3 (evaluating a wipe's 13 flushability on whether it "disperses in a sufficiently short amount of time after flushing. . .") (emphasis added). It is impossible to accept the argument that these 14 companies would make this investment to gain or improve flushability without expecting a reasonable financial return. 15 16 Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 550 (E.D.N.Y. 2017) (internal citations omitted). 17 18 95. Because Defendants know consumers rely on representations about flushability on 19 product packaging, even when presented with warnings from local wastewater treatment 20 authorities, Defendants have opposed both mandatory and voluntary standards that would require 21 Defendants to provide more information to consumers about the risks associated with flushing the 22 Flushable Wipes. For example, while the INDA Guidelines and industry definition of "flushable" 23 is conditioned upon usage instructions being correctly followed, INDA does not encourage, nor 24 do Defendants actually print, disclaimers and usage instructions in a conspicuous location on the 25 front of the package where consumers are most likely to read the information. 26 96. The INDA Guidelines are voluntary. While wastewater treatment professionals 27 and legislatures want, at a minimum, for the guidelines to be mandatory, so far, INDA has not 28 acceded to their requests. -26- Consolidated Class Action Complaint 50 1 97. Defendants, working both independently and through INDA, have also 2 consistently opposed any outside efforts to define "flushability" or impose more rigorous, 3 scientifically accepted testing methodologies. For example, Defendants and INDA have lobbied 4 against legislative efforts to regulate the labeling of products as flushable, even where those laws 5 put in place weakened standards for "flushability. For example, in 2010, a bill was proposed in 6 the California Senate that would regulate the use of the term "flushable." That bill, A.B. 2256, 7 made it unlawful to label as flushable any product that did not adhere to the same INDA 8 Guidelines that Defendants have claimed that they follow. But Defendants and INDA opposed the 9 measure. See http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_2251- 10 2300/ab_2256_cfa_20100617_172920_sen_comm.html (last accessed January 24, 2019). Similar 11 bills have been proposed in other states, including Maine and New Jersey, though all have been 12 opposed by INDA. 13 98. In December 2016, the city council in the District of Columbia passed legislation 14 regulating flushable wipes labels. The city had heard testimony from INDA as well as wastewater 15 organizations, and defined "flushable" as a nonwoven disposable product that: (1) "[d]isperses in 16 a short period of time after flushing in the low-force conditions of a sewer system"; (2) "[i]s not 17 buoyant"; and (3) "[d]oes not contain plastic or any other material that does not readily degrade in 18 a range of natural environments." D.C. Law 21-220. The law prohibits manufacturers from 19 labeling their wipes as flushable unless they meet this standard. This definition of "flushable" 20 mimics the standard adopted by the International Water Services Flushability Group ("IWSFG") 21 in September 2016, which had the support of over 250 water organizations worldwide. Because 22 Defendants' wipes do not meet that standard, Defendants have opposed the IWSFG standards and 23 have aggressively sought to prevent that legislation from being passed, and immediately sued to 24 block its enforcement. Kimberly-Clark Corporation v. District of Columbia, Case No. 17-1901 25 (D.D.C.). That lawsuit is still ongoing. 26 99. Central to the efforts to block and kill legislation is the fact that the flushable 27 wipes industry, including Defendants, have refused to accept the view of wastewater treatment 28 operators and environmental professionals that dispersibility is an essential part of flushability. -27- Consolidated Class Action Complaint 50 1 and have stated that the Third Edition of the INDA Guidelines "may be a step backwards" from 2 previous editions. See http://www.weat.org/Presentations/04%20Villee_Non-dispersibles.pdf 3 (last accessed March 31, 2015). 4 100. Defendants have also refused to engage seriously with other stakeholders, such as 5 wastewater professionals and environmental organizations, who have tried to develop better 6 standards for assessing flushability. For example, the International Organization for 7 Standardization ("ISO") formed a working group to create flushability standards. Initially, 8 members of the industry, including Defendants, participated in these discussions. But Defendants 9 pulled out of those discussions, no doubt because they grew frustrated that they could not 10 influence the process the same way they could with INDA or because the standards would have 11 been too rigorous. 12 e. Officials and Regulators Are Increasingly Concerned About the False and Misleading Use of the Term "Flushable 13 14 101. In April 2015, the City of Wyoming, Minnesota filed a lawsuit against Defendant 15 P&G Corporation and other manufacturers of "flushable" wipes on behalf of a class of 16 municipalities. The City of Wyoming seeks damages for the harm caused to municipalities' sewer 17 systems. That lawsuit is ongoing and a motion for class certification was filed in 2018, but has 18 not yet been ruled upon. 19 102. In 2016, the Australian Competition and Consumer Commission, a government 20 agency, launched an investigation into Defendants for their misleading "flushable" 21 representations. It explained: 22 "Consumers rightly expect that a product labelled 'flushable' won't damage their pipes or 23 our waterways. The consumer law exists to protect consumers from harmful, misleading 24 advertising and we're sure that the thousands of people who joined our campaign are 25 pleased to see the law being used to clean up dodgy claims." 26 https://www.news.com.au/finance/business/manufacturing/accc-takes-action-over-flushable- 27 wipes/news-story/4901228416651a420330e08cefd9c3d8 (last accessed January 27, 2019). 28 103. Recently, the Federal Trade Commission began an investigation into the use of the -28- Consolidated Class Action Complaint 50 1 word "flushable" in connection with moist toilet wipes. On May 18, 2015, the FTC reached a 2 settlement agreement with Nice-Pak Products, Inc., which manufactured wipes sold as 3 "flushable" under the private label brands of a number of leading retailers, including Costco, 4 CVS, Target, and BJ's Wholesale Club. The FTC had alleged that the marketing of the wipes 5 violated the Federal Trade Commission Act by misrepresenting that its wipes: 1) were safe for 6 sewer systems; 2) were safe for septic systems; 3) would break apart shortly after being flushed; 7 and 4) were safe to flush. The FTC also alleged that Nice-Pak provided assistance to retailers to 8 enable them to make similar misrepresentations under their private label brands. In investigating 9 the company, the Director of the FTC's Bureau of Consumer Protection, Jessica Rich, stated "If 10 you claim a product is flushable, it needs to flush in the real world, without clogging household 11 plumbing or sewer and septic systems." See https://www.ftc.gov/news-events/press- 12 releases/2015/05/wet-wipe-manufacturer-agrees-substantiate-flushability (last accessed January 13 27, 2019). 14 104. Under the terms of a settlement agreed by Nice-Pak and the FTC lawyers, but 15 which has not been formally approved by the federal trade commissioners, Nice-Pak will be 16 enjoined from misrepresenting that its wipes are "flushable" or other similar representations, such 17 as "safe for sewer systems," unless it can substantiate that the wipes will disperse in a 18 "sufficiently short amount of time" after flushing, using a test that actually replicates the physical 19 conditions of the environment where the wipes will be disposed, e.g., the sewer system or septic 20 tank. In addition, the tests and/or evidence used to substantiate the claims must be based on 21 reliable scientific evidence and the expertise of professionals in the relevant area. The settlement 22 agreement also proposes that Nice-Pak be enjoined from assisting retailers and other sellers from 23 representing wipes as "flushable" unless the claims can be a substantiated per the standards set 24 forth in the agreement. The consent judgment is available at 25 https://www.ftc.gov/system/files/documents/cases/150518nice-pakorder.pdf. (last accessed 26 January 29, 2019). 27 105. Dozens of wastewater professionals have issued public comments in support of the 28 FTC action. See https://www.ftc.gov/policy/public-comments/initiative-610 (last accessed -29- Consolidated Class Action Complaint 50 1 January 27, 2019). For example, NACWA wrote on behalf of its membership – nearly 300 2 publicly owned wastewater treatment agencies around the country – to support the FTC 3 enforcement and to note that all wipe manufacturers should adhere to the same standards. The 4 WEF wrote on behalf of its membership to support the FTC's efforts and noted the flaws in the 5 INDA Guidelines. The California Association of Sanitation Agencies also wrote in support of the 6 FTC, echoing the same points raised by NACWA. John Pastore of the Southern California 7 Alliance of Publicly Owned Treatment Works (SCAP) applauded the FTC because of the damage 8 these wipes cause the public sewers. See https://www.ftc.gov/policy/public- 9 comments/2015/06/10/comment-00037 (last accessed January 27, 2019). The FTC also received a 10 letter of support from the Central Costa County Sanitation District, based in Martinez, California, 11 which also noted that enforcement actions like the FTCs were sorely needed. 12 106. On June 30, 2016, the Federal Trade Commission closed its investigation into 13 Defendants, stating that the closure "is not to be construed as a determination that no violation has 14 occurred, just as the pendency of an investigation should not be construed as a determination that 15 a violation has occurred."4 16 107. Despite the regulatory pressure, Defendants have both the financial motivation and 17 technological know how to introduce new flushable products into the market. As discussed in 18 paragraph 31, Defendants patent their flushable technology. They can market their wipes under 19 any brand name that they elect, e.g. Defendants could elect to make flushable wipes under the 20 Viva or Kleenex brand name. In fact, Defendants do sell a Kleenex brand flushable wipe in 21 Australia. Should Defendants' be ordered to remove the word "flushable" from its Flushable 22 Wipes, Defendants' model would allow it to quickly reshuffle the deck to allow it to relaunch the 23 same product under a different brand. 24 25 PLAINTIFFS' EXPERIENCES 26 27 4 28 The letter was publicly filed in Kurtz v. Kimberly-Clark Corporation, et al., Case No. 14- cv01142 (E.D. N.Y.), Dkt. # 228-1. -30- Consolidated Class Action Complaint 50 a. Jennifer Davidson (California) 1 2 108. In 2013, Davidson desired to purchase moist wipes for household use. While 3 shopping for wipes at a Safeway store located at 2020 Market Street, San Francisco, California, 4 Davidson came across Defendants' Scott Naturals® Flushable Moist Wipes. Seeing that the 5 wipes had the word "Flushable" on the front of the package and that the product was more 6 expensive than other wipes that did not have that word, she believed that the product had been 7 specially designed to be suitable for flushing down toilets. Davidson was concerned that products 8 not suitable for flushing down the toilet could cause problems in her plumbing or at the water 9 treatment plant. Several years prior to her purchase, Davidson had visited San Francisco's sewage 10 treatment plant as part of a school trip, and she learned there that people frequently flush things 11 that should not be flushed, which causes many problems with the wastewater treatment. Because 12 she did not wish to cause unnecessary damage to her plumbing, nor to city property or the 13 environment, Davidson reviewed both the front and back of the package. She did not see anything 14 that led her to believe that the wipes were not in fact suitable for flushing. Because she believed 15 it would be easier and more sanitary to flush the wipes than to dispose of them in the garbage, she 16 decided to pay the higher price, and purchased the Scott Wipes for a few dollars. 17 109. Davidson began using the wipes. She noticed that each individual wipe felt very 18 sturdy and thick, unlike toilet paper. She also noticed that the wipes did not break up in the toilet 19 bowl like toilet paper but rather remained in one piece. After several uses of the wipes, she began 20 to become concerned that they were not truly flushable, so she stopped flushing the wipes and 21 stopped using the product altogether. 22 110. Several months later, Davidson discovered that her roommate had continued to use 23 the wipes. Around that same time, the toilet in their home had overflowed onto the bathroom 24 floor. Davidson's housemate had to purchase a toilet plunger. In the months that followed, there 25 was a sewage backup onto the sidewalk in front of Davidson's home. Davidson's landlord 26 arranged for a plumber to visit to repair the problem. 27 111. A few months later, Davidson investigated the matter further and learned of the 28 widespread damage caused to consumers' home plumbing and to municipal sewer systems as a -31- Consolidated Class Action Complaint 50 1 result of consumers flushing the Flushable Wipes. This research further increased her concerns 2 that the Wipes were not in fact appropriate for disposal by flushing down a toilet. 3 112. Davidson has not subsequently purchased any of Defendants' Flushable Wipes. 4 113. Had Defendants not misrepresented (by omission and commission) the true nature 5 of their Flushable Wipes, Davidson would not have purchased Defendants' product or, at a very 6 minimum, she would have paid less for the product since she would not be obtaining the benefit 7 of being able to flush it. 8 114. Davidson continues to desire to purchase wipes that are suitable for disposal in a 9 household toilet. She would purchase truly flushable wipes manufactured by Defendants if it 10 were possible to determine prior to purchase if the wipes were suitable to be flushed. Indeed, she 11 regularly visits stores such as Safeway, where Defendants' "flushable" wipes" are sold, but has 12 been unable to determine the flushability of the wipes currently on the shelves. Without 13 purchasing and opening a package, Davidson cannot feel the thickness of the paper or see if it 14 degrades in her toilet. Davidson knows that the design and construction of the Flushable Wipes 15 may change over time, as Defendants use different technology or respond to pressure from 16 legislators, government agencies, competitors or environmental organizations. But as long as 17 Defendants may use the word "Flushable" to describe non-flushable wipes, then when presented 18 with Defendants' packaging on any given day, Davidson continues to have no way of determining 19 whether the representation "flushable" is in fact true. 20 b. Jeff Jonah (California) 21 115. Jonah is a consumer of Cottonelle brand toilet paper. Jonah first learned of the 22 Cottonelle Wipes in 2010, while shopping at a Safeway store in Belmont, near his home in San 23 Carlos. The wipes were located in the section of the store that contained toilet paper. He was 24 interested in the fact that the product was a pre-moistened wipe, and that the package stated that 25 the wipes were "flushable." He also read labeling on the package stating that the wipes were 26 "SEWER AND SEPTIC SAFE" and that "Cottonelle Fresh Care Flushable Cleansing Cloths 27 break up after flushing." 28 116. Jonah reasonably understood the representations described in paragraph 115 to -32- Consolidated Class Action Complaint 50 1 mean that the Cottonelle Wipes could be safely disposed like toilet paper – by flushing down a 2 toilet, as they would break apart after flushing. And he reasonably understood the representations 3 to mean that if he disposed of the wipes via his toilet, the wipes would not cause clogs or backups 4 in his plumbing or that the risk of this occurring was no greater than if he had used toilet paper. 5 117. Jonah's home plumbing is connected to the City of San Carlos's sewer system via 6 a lateral drainline from his house. Accordingly, he also reasonably believed the representations 7 described in paragraph 115 to mean that the Cottonelle Wipes could travel safely from his home 8 drainline and into the city's sewer system without causing clogs, blockages, or backups. 9 118. Relying on the representation described in paragraph 115, Jonah decided to buy 10 the Cottonelle Wipes for home use. He first purchased them at Belmont Safeway in or around 11 2010. Shortly thereafter, Jonah removed the Cottonelle Wipes from their package for the first 12 time, and he noticed that they were quite thick and strong. The material surprised him because he 13 did not think a product with such a consistency would be flushable. He decided to double check 14 the labeling on the package to confirm that it said the wipes were safe to flush before using them, 15 which it did. 16 119. Jonah continued to purchase the Cottonelle Wipes on a regular basis over the next 17 several years, until approximately 2013. He typically purchased the wipes at the Safeway store in 18 Belmont and typically paid approximately $5-7 dollars per package. 19 120. When using the wipes during the 2010 to 2013 time period, he flushed 1-2 wipes 20 at a time. Other than human waste, Jonah did not flush other items or materials, such as toilet 21 paper, at the same time as the Cottonelle Wipes. In addition, Jonah did not dispose of non- 22 dispersible items, such as other kinds of pre-moistened disposable wipes, by flushing down the 23 toilet in their San Carlos home. Jonah noticed that the wipes did not break apart rapidly in the 24 toilet bowl like toilet paper, but instead remained largely intact. 25 121. Jonah had moved into his home in San Carlos in or around February 2006, during 26 the first four years in the home, the toilet never clogged. During the period when he was using the 27 Cottonelle Wipes, however, the toilet in his San Carlos home would clog approximately once a 28 week, and he would often have to plunge the toilet right after flushing or use a chemical drain -33- Consolidated Class Action Complaint 50 1 cleaner such as Drano or Liquid Plumber to remove the blockage. 2 122. Jonah initially did not know what was causing the clogs. Jonah's spouse, who was 3 the only other individual regularly using the toilet in the San Carlos home, informed him that she 4 was not flushing non-dispersible products. But the problem eventually got so bad that he was 5 forced to purchase a plumbing "snake" to clear the blockages. The "snake" is a flexible metal 6 cable that is inserted into a plumbing line to clear any obstructions. Jonah purchased the snake for 7 approximately $200 from Home Depot. 8 123. Jonah used the snake a number of times to clear the clogs that kept stopping up his 9 toilet. When the snake was withdrawn after use, it would sometimes have pieces of the material 10 that was causing the clogs on it. Jonah noticed that this material was the Cottonelle Wipes. 11 124. Based on this observation, Jonah decided to conduct an online search to determine 12 whether other people were experiencing similar problems with the Cottonelle Wipes. He 13 conducted a search using the phrase "Cottonelle flushable wipes issues." The search resulted in a 14 mixture of complaints from consumers that had used the Cottonelle Wipes and had experiences 15 similar to Jonah and complaints from municipal wastewater authorities warning that the 16 Cottonelle Wipes were not flushable or safe for sewer and septic systems as advertised. Jonah 17 later learned that use of flushable wipes such as the Cottonelle Wipes has damaged other home 18 plumbing systems and that Cottonelle Wipes had damaged wastewater treatment facilities in 19 municipalities all over the country. 20 125. Jonah stopped purchasing and flushing the Cottonelle Wipes. 21 126. Had he known of the risk of clogging and expensive plumbing repairs and damage 22 that the wipes cause, as well as the cost to municipal sewer systems, Jonah would not have 23 purchased the Cottonelle Wipes, or at a minimum, would not have paid a premium for them. 24 127. Had Defendants not misrepresented (by omission and commission) that the 25 Cottonelle Wipes were not truly suitable for flushing, that they risked clogging pipes leading to 26 the need for plumbing repairs and caused damage to sewer systems, Jonah would not have 27 purchased them. 28 128. Jonah continues to desire to purchase wipes suitable for flushing from Defendants. -34- Consolidated Class Action Complaint 50 1 He regularly visits stores where Defendants' "flushable" wipes are sold. Without purchasing and 2 attempting to flush Defendants' Flushable Wipes, Jonah is unable to determine if Defendants' 3 wipes are flushable. Jonah understands that the design and construction of the Flushable Wipes 4 may change over time or Defendants may respond to pressure from wastewater treatment 5 operators, legislators, government agencies, competitors, or environmental organizations. 6 129. As long as Defendants may use the word "Flushable" to describe their Flushable 7 Wipes, and other non-flushable wipes, then when presented with Defendants' packaging, Jonah 8 continues to have no way of determining whether the representation "flushable" is in fact true. 9 Thus, Jonah is likely to be repeatedly presented with false or misleading information when 10 shopping and unable to make informed decisions about whether to purchase the wipes. He is 11 further likely to be misled again by Defendants' conduct, unless and until Defendants are 12 compelled to ensure that their wipes packaged as flushable truly are dispersible and suitable for 13 flushing. 14 c. Angela Lewis (California) 15 130. Lewis first purchased Cottonelle Wipes in approximately 2012 at a Wal-Mart in 16 Merced, California. She had been using non-flushable wet wipes, such as diaper wipes, in the 17 bathroom, and throwing them in the trash, but her mother brought over the Cottonelle Wipes to 18 try. She decided that it would be cleaner and easier to flush the wipes, and decided to purchase 19 them for herself. 20 131. Between 2012 and September 2017, she purchased the Cottonelle Wipes regularly, 21 approximately two or three packages a year. Each time she purchased them, she purchased them 22 because they were advertised as "flushable." She typically paid approximately $4.00 a package. 23 132. In the spring of 2018, Lewis's septic system backed up, to the point where sewage 24 was coming out of her toilet, shower, and sink. She called a plumber, who charged her $80 for an 25 estimate and $100 to snake out the plumbing. After he unclogged the plumbing, he informed her 26 that the source of the clog was the Cottonelle Wipes. Based on that information, Lewis decided 27 not to continue to purchase the Cottonelle Wipes as she would not be able to flush them, and it 28 would be cheaper to purchase non-flushable wipes. -35- Consolidated Class Action Complaint 50 1 133. Had Defendants not misrepresented (by omission and commission) that the 2 Cottonelle Wipes were not truly suitable for flushing, that they risked clogging pipes leading to 3 the need for plumbing repairs and caused damage to her septic system, Lewis would not have 4 purchased them. 5 134. Lewis continues to desire to purchase wipes suitable for flushing from Defendants. 6 She regularly visits stores where Defendants' "flushable" wipes are sold. Without purchasing and 7 attempting to flush Defendants' Flushable Wipes, Lewis is unable to determine if Defendants' 8 wipes are flushable. Lewis understands that the design and construction of the Flushable Wipes 9 may change over time or Defendants may respond to pressure from wastewater treatment 10 operators, legislators, government agencies, competitors, or environmental organizations. 11 135. As long as Defendants may use the word "Flushable" to describe their Flushable 12 Wipes, and other non-flushable wipes, then when presented with Defendants' packaging, Lewis 13 continues to have no way of determining whether the representation "flushable" is in fact true. 14 Thus, Lewis is likely to be repeatedly presented with false or misleading information when 15 shopping and unable to make informed decisions about whether to purchase the wipes. She is 16 further likely to be misled again by Defendants' conduct, unless and until Defendants are 17 compelled to ensure that their wipes packaged as flushable truly are dispersible and suitable for 18 flushing. 19 d. Edward Colatorti (California, Illinois, and Florida) 20 136. While Colatorti resided in San Diego, California, he was regularly purchasing wet 21 wipes and other non-flushable wipes. He learned about flushable wipes, and decided that because 22 they were flushable, they would be a better environmental choice, as they would disintegrate 23 completely rather than needing to be disposed of in a landfill. He decided to purchase the 24 Cottonelle Wipes in 2012 and 2013 in San Diego. He began to purchase packages approximately 25 once a month, typically from stores such as Rite-Aid, Target, and CVS. 26 137. Colatorti also regularly visited a family home in the Tampa bay area of Florida, 27 and began purchasing the Cottonelle Wipes while in Florida in 2012. 28 138. He began regularly using the Cottonelle Wipes in his apartment and in Florida. In -36- Consolidated Class Action Complaint 50 1 2013, he experienced a major clog in his San Diego apartment. 2 139. Because Colatorti was not experiencing problems in Florida, he continued to 3 purchase the Cottonelle Wipes in Florida until January 2016, but he stopped buying flushable 4 wipes while residing in San Diego. 5 140. In 2014, Colatorti moved to Chicago. He began to purchase the Cottonelle Wipes 6 again. After a few months, in late summer 2015, he experienced a clog. He decided to stop 7 purchasing the Cottonelle Wipes, and decided to try to purchase a different brand of flushable 8 wipes. Colatorti began to purchase the Scott Wipes to use in Illinois. 9 141. In 2015 and 2016, Colatorti continued to purchase the Scott Wipes in Illinois and 10 the Cottonelle and Scott Wipes in Florida. 11 142. In October of 2016, Colatorti experienced a major clog at a his Chicago condo. 12 The clog had backed up, creating pressure that caused his toilet to crack. 13 143. A few weeks later, when he travelled to Florida, he experienced another clog, and 14 had to call a plumber. That plumber informed Colatorti that the wipes are not actually flushable. 15 Colatorti stopped buying flushable wipes. 16 144. Had Defendants not misrepresented (by omission and commission) that the 17 Cottonelle Wipes were not truly suitable for flushing, that they risked clogging pipes leading to 18 the need for plumbing repairs, Colatorti would not have purchased them. 19 145. Colatorti continues to desire to purchase wipes suitable for flushing from 20 Defendants. He regularly visits stores where Defendants' "flushable" wipes are sold. Without 21 purchasing and attempting to flush Defendants' Flushable Wipes, Colatorti is unable to determine 22 if Defendants' wipes are flushable. Colatorti understands that the design and construction of the 23 Flushable Wipes may change over time or Defendants may respond to pressure from wastewater 24 treatment operators, legislators, government agencies, competitors, or environmental 25 organizations. 26 146. Had Defendants not misrepresented (by omission and commission) that the 27 Cottonelle Wipes and Scott Wipes were not truly suitable for flushing, that they risked clogging 28 pipes leading to the need for plumbing repairs, Colatorti would not have purchased them. -37- Consolidated Class Action Complaint 50 1 147. As long as Defendants may use the word "Flushable" to describe their Flushable 2 Wipes, and other non-flushable wipes, then when presented with Defendants' packaging, 3 Colatorti continues to have no way of determining whether the representation "flushable" is in 4 fact true. Thus, Colatorti is likely to be repeatedly presented with false or misleading information 5 when shopping and unable to make informed decisions about whether to purchase the wipes. He 6 is further likely to be misled again by Defendants' conduct, unless and until Defendants are 7 compelled to ensure that their wipes packaged as flushable truly are dispersible and suitable for 8 flushing. 9 e. Amber Walsh (Washington) 10 148. In approximately the fall of 2017, Walsh was regularly used non-flushable wet 11 wipes at home and in the bathroom, and throwing them in the garbage. She was interested in 12 purchasing flushable wipes, as she reasoned it would be cleaner and she thought it would be more 13 environmentally friendly than throwing them in the garbage. Many of the brands of flushable 14 wipes did not say they were septic safe, but she read on the Cottonelle Wipes that they were 15 septic safe. She had also been purchasing Cottonelle toilet paper for many years, and knew that 16 was compatible with her septic system, so she decided to try purchase them. She bought one or 17 two regular sized packages at Target or Fred Meyer for a few dollars in 2017, and then later 18 purchased a larger case at Costco. 19 149. In the months that they were using the Cottonelle Wipes, Walsh took steps to 20 ensure that her household did not flush too many wipes at each time or each day. She and her 21 daughter were the only regular users of the wipes, and they agreed to each use no more than one 22 wipe each day, and neither of them used them every day. 23 150. In May 2018, her septic system backed up and her laundry room flooded with 24 sewage. Walsh's husband is a plumber. They rented a machine and snaked the pipe, which 25 cracked the toilet. Her husband discovered the wipes were wrapped around the pipes. They used 26 the snake to remove the wipes, and removed the filter to clean it. 27 151. At that time, Walsh stopped buying Cottonelle Wipes. The remaining wipes were 28 disposed of in the garbage after being used. -38- Consolidated Class Action Complaint 50 1 152. In January 2019, Walsh's septic drain backed up and flooded her basement. Her 2 husband and another repair person investigated the source of the problem, and found remnants of 3 the Cottonelle Wipes on the filter, even though nobody in the house had flushed them since May 4 2018. It appeared that when they had recently run a treatment on their septic system to clean the 5 walls of their pipes, the treatment loosened up wipes that had been stuck in the pipes. 6 153. Had Defendants not misrepresented (by omission and commission) that the 7 Cottonelle Wipes were not truly suitable for flushing, that they risked clogging pipes leading to 8 the need for plumbing repairs and caused damage to her septic system, Walsh would not have 9 purchased them. 10 154. Walsh continues to desire to purchase wipes suitable for flushing from Defendants. 11 She regularly visits stores where Defendants' "flushable" wipes are sold. Without purchasing and 12 attempting to flush Defendants' Flushable Wipes, Walsh is unable to determine if Defendants' 13 wipes are flushable. Walsh understands that the design and construction of the Flushable Wipes 14 may change over time or Defendants may respond to pressure from wastewater treatment 15 operators, legislators, government agencies, competitors, or environmental organizations. 16 155. As long as Defendants may use the word "Flushable" to describe their Flushable 17 Wipes, and other non-flushable wipes, then when presented with Defendants' packaging, Walsh 18 continues to have no way of determining whether the representation "flushable" is in fact true. 19 Thus, Walsh is likely to be repeatedly presented with false or misleading information when 20 shopping and unable to make informed decisions about whether to purchase the wipes. She is 21 further likely to be misled again by Defendants' conduct, unless and until Defendants are 22 compelled to ensure that their wipes packaged as flushable truly are dispersible and suitable for 23 flushing. 24 f. RiSha Mattingly (North Carolina) 25 156. In approximately 2012 or 2013, Mattingly began to potty-train her son, and 26 decided that flushable wipes would make things easier for him. She knows that baby wipes are 27 not flushable, and did not want her son to accidently flush them, so she decided to buy flushable 28 wipes. She typically shops at Food Lion, and saw the Cottonelle Wipes there. She saw that they -39- Consolidated Class Action Complaint 50 1 were flushable and safe for septic tanks, and decided to purchase them. 2 157. Between 2012 and 2018, she began regularly purchasing the Cottonelle Wipes, 3 which her son continued to use and during and after potty training, her daughter began using as 4 well. At some point, Mattingly also saw the Scott Wipes while out shopping, and noticed that 5 they too were "flushable" and safe for septic systems, and she began buying both brands. 6 158. Approximately four or five years ago, she noticed some clogging and that her 7 septic system was having difficulty draining. She attempted to resolve the problem herself, but 8 she consulted a licensed plumber to ask his opinion on flushable wipes. He said that if they were 9 labeled flushable, they should be flushable, unless she was using handfuls of wipes at once. 10 159. Mattingly made sure to remind her children to be careful, to just use the wipes 11 occassionally, and to only use one or two at a time. 12 160. In 2017, she began having more problems with her septic line backing up. She 13 called a plumber, who told her that their line from one of her bathrooms was so clogged that she 14 would need major repairs to be able to use that bathroom again. The problem appeared to have 15 been caused by flushable wipes. 16 161. Because she could not safely flush them, Mattingly stopped purchasing flushable 17 wipes, and instead began buying diaper wipes. 18 162. Had Defendants not misrepresented (by omission and commission) that the 19 Cottonelle Wipes and Scott Wipes were not truly suitable for flushing, that they risked clogging 20 pipes leading to the need for plumbing repairs and causing damage to her septic system, 21 Mattingly would not have purchased them. 22 163. Mattingly continues to desire to purchase wipes suitable for flushing from 23 Defendants. She regularly visits stores where Defendants' "flushable" wipes are sold. Without 24 purchasing and attempting to flush Defendants' Flushable Wipes, Mattingly is unable to 25 determine if Defendants' wipes are flushable. Mattingly understands that the design and 26 construction of the Flushable Wipes may change over time or Defendants may respond to 27 pressure from wastewater treatment operators, legislators, government agencies, competitors, or 28 environmental organizations. -40- Consolidated Class Action Complaint 50 1 164. As long as Defendants may use the word "Flushable" to describe their Flushable 2 Wipes, and other non-flushable wipes, then when presented with Defendants' packaging, 3 Mattingly continues to have no way of determining whether the representation "flushable" is in 4 fact true. Thus, Mattingly is likely to be repeatedly presented with false or misleading information 5 when shopping and unable to make informed decisions about whether to purchase the wipes. She 6 is further likely to be misled again by Defendants' conduct, unless and until Defendants are 7 compelled to ensure that their wipes packaged as flushable truly are dispersible and suitable for 8 flushing. 9 10 CLASS ALLEGATIONS 11 165. Plaintiffs bring this action against Defendants on behalf of themselves and all 12 others similarly situated, as a class action pursuant to Rule 23 of the Federal Rules of Civil 13 Procedure. Plaintiffs seek to represent groups of similarly situated persons as set forth below: 14 Class Definition Class Representatives Causes of Action 15 Class: All persons who, between Jennifer Davidson Unjust Enrichment March 13, 2010 and the present, Jeff Jonah (Count V); Violations of 16 purchased, in 49 States and the Angela Lewis the Magnuson-Moss District of Columbia, excepting Edward Colatori Warranty Act (Count 17 all purchases in the State of New Amber Walsh VI) York, any of the following RiSha Mattingly 18 products: Cottonelle® Fresh Care Flushable Wipes & 19 Cleansing Cloths, Scott Naturals® Flushable Moist 20 Wipes, Huggies® Pull-Ups® Flushable Moist Wipes, and U 21 by Kotex® Refresh flushable wipes. 22 Consumer Deception Statute Jennifer Davidson Violations of the 23 Subclass: All class members Jeff Jonah Consumer Remedies who purchased the products in Angela Lewis Legal Act and Similar 24 the following states, subject to Edward Colatori UDAP Statutes (Count the state's statute of I) 25 limitations: Alabama, Alaska, Arkansas, California, Colorado, 26 Delaware, District of Columbia, Georgia, Idaho, Illinois, Indiana, 27 Kansas, Maryland, Michigan, Minnesota, Mississippi, 28 Nebraska, Nevada, New Hampshire, New Mexico, Ohio, -41- Consolidated Class Action Complaint 50 Class Definition Class Representatives Causes of Action 1 Oklahoma, Oregon, Pennsylvania, Rhode Island, 2 Tennessee, Texas, Utah, Virginia, West Virginia, 3 Wyoming. 4 Consumer Jennifer Davidson Violations of the Deceptiveness/Unfairness/Unla Jeff Jonah Consumer Statutes 5 wfulness Statute Subclass: All Angela Lewis Barring Unfair, class members who purchased Edward Colatori Unlawful and Deceptive 6 the products in the following Amber Walsh Trade Practices (Count states, subject to the state's RiSha Mattingly IX) 7 statute of limitations: Alabama, Alaska, Arizona, Arkansas, 8 California, Colorado, Connecticut, Delaware, District 9 of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, 10 Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, 11 Massachusetts, Minnesota, Mississippi, Missouri, Montana, 12 Nebraska, Nevada, New Hampshire, New Jersey, New 13 Mexico, North Carolina, North Dakota, Ohio, Oklahoma, 14 Oregon, Pennsylvania, Rhode Island, South Carolina, South 15 Dakota, Utah, Vermont, Virginia, Washington, West 16 Virginia, Wisconsin, Wyoming. 17 Warranty Subclass: All class Jennifer Davidson Breach of Express members whose purchases were Jeff Jonah Warranty (Count VII); 18 made in a state other than Angela Lewis Breach of Implied Louisiana. Edward Colatori Warranty (Count VIII) 19 Amber Walsh RiSha Mattingly 20 Express Warranty Reliance Jennifer Davidson Breach of Express 21 Subclass: All members of the Jeff Jonah Warranty (Count VII) Class whose purchases were Angela Lewis 22 made in Alaska, Arizona, Edward Colatori Arkansas, California, Colorado, Amber Walsh 23 Connecticut, Delaware, Florida, RiSha Mattingly Iowa, Kentucky, Maine, 24 Maryland, Massachusetts, Michigan, Mississippi, Montana, 25 Nebraska, New York, North Carolina, Ohio, Oklahoma, 26 Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, 27 Washington, or Wyoming 28 Implied Warranty Privity Sub- Jennifer Davidson Breach of Implied -42- Consolidated Class Action Complaint 50 Class Definition Class Representatives Causes of Action 1 Subclass: All members of the Jeff Jonah Warranty (Count VIII) Express Warranty Reliance Angela Lewis 2 Subclass whose purchases were Edward Colatori made in Alabama, Arizona, Amber Walsh 3 California, Connecticut, Florida, RiSha Mattingly Georgia, Idaho, Illinois, 4 Kentucky, New York, North Carolina, Ohio, Tennesee, 5 Washington, or Wisconsin. 6 California Subclass: All Class Jennifer Davidson All Counts members who made their Jeff Jonah 7 purchases in California since Angela Lewis March 13, 2010 Edward Colatori 8 Florida Subclass: All Class Edward Colatori Unjust Enrichment 9 members who made their (Count V); Violations of purchases in Florida since the Magnuson-Moss 10 January 29, 2015 Warranty Act (Count VI); Breach of Express 11 Warranty (Count VII); Breach of Implied 12 Warranty (Count VIII); Violations of the 13 Consumer Statutes Barring Unfair, 14 Unlawful and Deceptive Trade Practices (Count 15 IX) Illinois Subclass: All Class Edward Colatori Unjust Enrichment 16 members who made their (Count V); Violations of purchases in California since the Magnuson-Moss 17 January 29, 2016 Warranty Act (Count VI); Breach of Express 18 Warranty (Count VII); Breach of Implied 19 Warranty (Count VIII); Violations of the 20 Consumer Remedies Legal Act and Similar 21 UDAP Statutes (Count I); Violations of the 22 Consumer Statutes Barring Unfair, 23 Unlawful and Deceptive Trade Practices (Count 24 IX) North Carolina Subclass: All RiSha Mattingly Unjust Enrichment 25 Class members who made their (Count V); Violations of purchases in California since the Magnuson-Moss 26 January 29, 2015 Warranty Act (Count VI); Breach of Express 27 Warranty (Count VII); Breach of Implied 28 Warranty (Count VIII); -43- Consolidated Class Action Complaint 50 Class Definition Class Representatives Causes of Action 1 Violations of the Consumer Statutes 2 Barring Unfair, Unlawful and Deceptive 3 Trade Practices (Count IX) 4 Washington Subclass: All Class Amber Walsh Unjust Enrichment members who made their (Count V); Violations of 5 purchases in California since the Magnuson-Moss January 29, 2015 Warranty Act (Count 6 VI); Breach of Express Warranty (Count VII); 7 Breach of Implied Warranty (Count VIII); 8 Violations of the Consumer Statutes 9 Barring Unfair, Unlawful and Deceptive 10 Trade Practices (Count IX) 11 12 Plaintiffs reserve the right to propose one or more subclasses of the above classes and subclasses 13 to pursue the claims allleged herein (for example, to propose sub-subclasses of the Consumer 14 Deceptiveness/Unfairness/Unlawfulness Statute Subclass with smaller groupings of the states 15 listed therein). Plaintiffs also reserve the right to modify the above proposed classes and 16 subclasses based on the facts adduced in discovery and legal developments. 17 166. This action has been brought and may properly be maintained as a class action 18 against Defendants pursuant to Rule 23, as there is a well-defined community of interest in the 19 litigation and the proposed class is easily ascertainable. 20 167. Numerosity: Plaintiffs do not know the exact size of the class, but it is estimated 21 that it is composed of more than 100 persons. The persons in the class are so numerous that the 22 joinder of all such persons is impracticable and the disposition of their claims in a class action 23 rather than in individual actions will benefit the parties and the courts. 24 168. Common Questions Predominate: This action involves common questions of law 25 and fact to the potential class because each class member's claim derives from the deceptive, 26 unlawful and/or unfair statements and omissions that led Defendants' customers to believe that 27 the Flushable Wipes were flushable. The common questions of law and fact predominate over 28 individual questions, as proof of a common or single set of facts will establish the right of each -44- Consolidated Class Action Complaint 50 1 member of the Class to recover. Among the questions of law and fact common to the class are: 2 • Whether Defendants' Flushable Wipes are suitable for flushing down a toilet; 3 • Whether Defendants unfairly, unlawfully and/or deceptively failed to inform class 4 members that their Flushable Wipes were not flushable; 5 • Whether Defendants unfairly, unlawfully and/or deceptively failed to inform class 6 members that their Flushable Wipes are capable of causing damage to the drainage 7 system or public sewer; 8 • Whether Defendants were unjustly enriched; 9 • Whether the Flushable Wipes are defective; 10 • Whether Defendant knew or should have known about that the Flushable Wipes 11 were defective, if yes, how long Defendants have known of the defect; 12 • Whether the defective nature of the Flushable Wipes constitutes a reasonable fact 13 consumers would have considered in deciding whether to use or purchase the 14 Flushable Wipes; 15 • Whether Defendants had a duty to disclose the defective nature of the Flushable 16 Wipes to Plaintiffs and Class Members; 17 • Whether Plaintiffs and the other Class Members are entitled to a declaratory 18 judgment stating that the Flushable Wipes are defective and/or not merchantable; 19 • Whether Defendants' advertising and marketing regarding their Flushable Wipes 20 sold to class members was likely to deceive class members or was unfair; 21 • Whether Defendants engaged in the alleged conduct knowingly, recklessly, or 22 negligently; 23 • The amount of revenues and profits Defendants received and/or the amount of 24 monies or other obligations lost by class members as a result of such wrongdoing; 25 • Whether class members are entitled to injunctive and other equitable relief and, if 26 so, what is the nature of such relief; and 27 • Whether class members are entitled to payment of actual, incidental, 28 consequential, exemplary and/or statutory damages plus interest thereon, and if so, -45- Consolidated Class Action Complaint 50 1 what is the nature of such relief. 2 169. Typicality: Plaintiffs' claims are typical of the class because, throughout the class 3 period, they purchased packages of the Flushable Wipes, in reliance on Defendants' 4 misrepresentations and omissions that they were flushable. Thus, Plaintiffs and class members 5 sustained the same injuries and damages arising out of Defendants' conduct in violation of the 6 law. The injuries and damages of each class member were caused directly by Defendants' 7 wrongful conduct in violation of law as alleged. 8 170. Adequacy: Plaintiffs will fairly and adequately protect the interests of all class 9 members because it is in their best interests to prosecute the claims alleged herein to obtain full 10 compensation due to them for the unfair and illegal conduct of which they complain. Plaintiffs 11 also have no interests that are in conflict with or antagonistic to the interests of class members. 12 Plaintiffs have retained highly competent and experienced class action attorneys to represent their 13 interests and the interests of the class. By prevailing on their own claims, Plaintiffs will establish 14 Defendants' liability to all class members. Plaintiffs and their counsel have the necessary 15 financial resources to adequately and vigorously litigate this class action, and Plaintiffs and 16 counsel are aware of their fiduciary responsibilities to the class members and are determined to 17 diligently discharge those duties by vigorously seeking the maximum possible recovery for class 18 members. 19 171. Superiority: There is no plain, speedy, or adequate remedy other than by 20 maintenance of this class action. The prosecution of individual remedies by members of the class 21 will tend to establish inconsistent standards of conduct for the Defendants and result in the 22 impairment of class members' rights and the disposition of their interests through actions to 23 which they were not parties. Class action treatment will permit a large number of similarly 24 situated persons to prosecute their common claims in a single forum simultaneously, efficiently, 25 and without the unnecessary duplication of effort and expense that numerous individual actions 26 world engender. Furthermore, as the damages suffered by each individual member of the class 27 may be relatively small, the expenses and burden of individual litigation would make it difficult 28 or impossible for individual members of the class to redress the wrongs done to them, while an -46- Consolidated Class Action Complaint 50 1 important public interest will be served by addressing the matter as a class action. 2 172. Nexus to California. The State of California has a special interest in regulating the 3 affairs of corporations that do business here. Defendants have more customers here than in any 4 other state. Accordingly, there is a substantial nexus between Defendants' unlawful behavior and 5 California such that the California courts should take cognizance of this action on behalf of a 6 class of individuals who reside anywhere in the United States. 7 173. Plaintiffs are unaware of any difficulties that are likely to be encountered in the 8 management of this action that would preclude its maintenance as a class action. 9 CAUSES OF ACTION 10 FIRST CAUSE OF ACTION (Violation of the Consumers Legal Remedies Act, California Civil Code § 1750, et seq. and 11 the states with enumerated deceptive practices prohibitions as set forth in Appendix A) On Behalf of Themselves, the Class, Three Consumer Deception Subclasses, and the Five 12 State Subclasses in Accordance with Paragraph 165 13 174. Plaintiffs reallege and incorporates the paragraphs of this Consolidated Class 14 Action Complaint as if set forth herein. 15 175. Plaintiffs bring this claim individually, on behalf of the Nationwide Class, and on 16 behalf of the Consumer Deception Subclasses and the State Subclasses. 17 176. This cause of action is brought pursuant to the California Consumers Legal 18 Remedies Act, California Civil Code § 1750, et seq. ("CLRA") and the states shown on Appendix 19 A as having enumerated prohibitions on deceptive conduct. 20 177. Defendants' actions, representations and conduct have violated, and continue to 21 violate the CLRA, because they extend to transactions that are intended to result, or which have 22 resulted, in the sale or lease of goods or services to consumers. 23 178. Plaintiffs and other class members are "consumers" as that term is defined by the 24 CLRA in California Civil Code § 1761(d) and the other states' unfair and deceptive practices 25 statutes, which are identified with specificity for this count in Appendix 1 ("UDAPs"). 26 179. Defendant's actions, representations and conduct have violated, and continue to 27 violate the CLRA and UDAPs of other states, because they extend to transactions that are 28 intended to result, or which have resulted, in the sale or lease of goods or services to consumers. -47- Consolidated Class Action Complaint 50 1 180. The Flushable Wipes that Plaintiffs (and others similarly situated class members) 2 purchased from Defendants were "goods" within the meaning of California Civil Code § 1761(a) 3 and the UDAPs. 4 181. Defendant violated each of these statutes set forth in Appendix 1 by using 5 Flushability Representations, including stating that the wipes were "flushable" and safe for 6 sewers and septic tanks, when they are not. Defendants' conduct led customers to falsely believe 7 that that their Flushable Wipes were suitable for flushing down a toilet and that unlike products 8 not specifically denominated as flushable, the Flushable Wipes are suitable for flushing down a 9 toilet, when in fact none of the products are suitable for flushing. Defendants specifically violated 10 these statutes set forth in Appendix 1 by: 11 o Omitting, concealing, and suppressing material facts in the labeling and 12 advertising of its Flushable Wipes; 13 o Misrepresenting that the Flushable Wipes that they sell have 14 characteristics, ingredients, uses, benefits, or quantities, which they do not have; 15 o Misrepresenting that the Flushable Wipes that they sell are of a particular 16 standard, quality, or grade, or that goods are of a particular style or model, when they are 17 not; 18 o Advertising Flushable Wipes with intent not to sell them as advertised; 19 o Misrepresenting that Flushable Wipes have been supplied in accordance 20 with a previous representation when it has not; 21 o Using innuendo or ambiguity as to material facts when such failure tends to 22 mislead; 23 o Engaging in unconscionable conduct; 24 o Failing to honor a warranty; 25 o Misleading about a substance or failing to identify the contents of the 26 package or the nature of the substance contained inside the package; 27 o Making an assertion of scientific, clinical or quantifiable fact in an 28 advertisement which would cause a reasonable person to believe that the assertion is true, -48- Consolidated Class Action Complaint 50 1 even when, at the time the assertion is made, the person making lacks sufficient factually 2 objective scientific, clinical or quantifiable evidence which substantiates the assertion; and 3 o Engaging in other conduct, which similarly creates a likelihood of 4 deception, confusion, or misunderstanding. 5 182. The acts, practices, misrepresentations and omissions by Defendants described 6 above, and Defendants' dissemination of deceptive and misleading advertising and marketing 7 materials concerning the Flushable Wipes constitutes unfair competition and unfair or deceptive 8 acts or practices within the meaning of each of the above-enumerated states that generally 9 prohibits deceptive conduct in consumer transactions. 10 183. Until the present, Defendant has knowingly accepted the benefits of its deceptive 11 conduct in the form of profits, including the price premium received, from the sale of Flushable 12 Wipes. 13 184. Plaintiffs and Class Members were injured as a direct and proximate result of 14 Defendant's unfair, deceptive and/or unconscionable acts and practices, because: (1) Plaintiffs 15 and the Class were induced to purchase a product they would not have otherwise purchased had 16 they known that it was not suitable for flushing, and (b) Plaintiffs and the Class were induced to 17 pay substantially more for the Flushable Wipes than they would have paid had they known that 18 the wipes were not suitable for flushing. 19 185. Plaintiffs request that this Court enjoin Defendants from continuing to employ the 20 unlawful methods, acts and practices alleged herein. If Defendants are not restrained from 21 engaging in these types of practices in the future, Plaintiffs and the other members of the Class, 22 will continue to suffer harm. 23 186. More than thirty days prior to the filing of this complaint, Plaintiffs gave notice 24 and demand that Defendants correct, repair, replace or otherwise rectify the unlawful, unfair, false 25 and/or deceptive practices complained of herein. Defendants failed to do so in that, among other 26 things, they failed to identify similarly situated customers, notify them of their right to correction, 27 repair, replacement or other remedy, and provide that remedy. Accordingly, Plaintiffs seek, on 28 behalf of themselves and those similarly situated class members, compensatory damages, punitive -49- Consolidated Class Action Complaint 50 1 damages and restitution of any ill-gotten gains due to Defendants' acts and practices. 2 187. Plaintiffs also request that this Court award them costs and reasonable attorneys' 3 fees. 4 SECOND CAUSE OF ACTION (False Advertising, Business and Professions Code § 17500, et seq. ("FAL")) 5 On Behalf Of Themselves and the California Class 6 188. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated 7 Class Action Complaint as if set forth herein. 8 189. Beginning at an exact date unknown to California Plaintiffs, but within three (3) 9 years preceding the filing of the Consolidated Class Action Complaint, Defendants made untrue, 10 false, deceptive and/or misleading statements in connection with the advertising and marketing of 11 their Flushable Wipes. 12 190. Defendants made representations and statements (by omission and commission) 13 that led reasonable customers to believe that they were purchasing products that could be flushed 14 down the toilet without problem. Defendants deceptively failed to inform California Plaintiffs, 15 and those similarly situated, that the Flushable Wipes were not suitable for disposal by flushing 16 down a toilet, and that the Flushable Wipes are not regarded as flushable by municipal sewage 17 systems; routinely damage or clog pipes, septic systems, and sewage pumps; and do not disperse 18 like toilet paper. 19 191. California Plaintiffs relied on Defendants' false, misleading and deceptive 20 advertising and marketing practices, including each of the misrepresentations and omissions set 21 forth in paragraphs 26-42 above. Those similarly situated to Plaintiffs relied to their detriment on 22 Defendants' false, misleading and deceptive advertising and marketing practices, including each 23 of the misrepresentations and omissions set forth in paragraphs 26-42, above. Had Plaintiffs and 24 those similarly situated been adequately informed and not intentionally deceived by Defendants, 25 they would have acted differently by, without limitation, refraining from purchasing Defendants' 26 Flushable Wipes or paying less for them. 27 192. Defendants' acts and omissions are likely to deceive the general public. 28 193. Defendants engaged in these false, misleading and deceptive advertising and -50- Consolidated Class Action Complaint 50 1 marketing practices to increase their profits. Accordingly, Defendants have engaged in false 2 advertising, as defined and prohibited by section 17500, et seq. of the California Business and 3 Professions Code. 4 194. The aforementioned practices, which Defendants have used, and continue 5 to use, to their significant financial gain, also constitute unlawful competition and provide an 6 unlawful advantage over Defendants' competitors as well as injury to the general public. 7 195. As a direct and proximate result of such actions, California Plaintiffs and 8 the other members of the Subclass have suffered, and continue to suffer, injury in fact and have 9 lost money and/or property as a result of such false, deceptive and misleading advertising in an 10 amount which will be proven at trial, but which is in excess of the jurisdictional minimum of this 11 Court. 12 196. California Plaintiffs seek, on behalf of those themselves and those similarly 13 situated, full restitution of monies, as necessary and according to proof, to restore any and all 14 monies acquired by Defendants from California Plaintiffs, and those similarly situated by means 15 of the false, misleading and deceptive advertising and marketing practices complained of herein, 16 plus interest thereon. 17 197. California Plaintiffs seek, on behalf of those similarly situated, a 18 declaration that the above-described practices constitute false, misleading and deceptive 19 advertising. 20 198. California Plaintiffs seek, on behalf of those similarly situated, an 21 injunction to prohibit Defendants from continuing to engage in the false, misleading and 22 deceptive advertising and marketing practices complained of herein. Such misconduct by 23 Defendant, unless and until enjoined and restrained by order of this Court, will continue to cause 24 injury in fact to the general public and the loss of money and property in that the Defendants will 25 continue to violate the laws of California, unless specifically ordered to comply with the same. 26 This expectation of future violations will require current and future consumers to repeatedly and 27 continuously seek legal redress in order to recover monies paid to Defendants to which 28 Defendants are not entitled. Plaintiffs, those similarly situated and/or other consumers nationwide -51- Consolidated Class Action Complaint 50 1 have no other adequate remedy at law to ensure future compliance with the California Business 2 and Professions Code alleged to have been violated herein. 3 THIRD CAUSE OF ACTION 4 (Fraud, Deceit and/or Misrepresentation) On Behalf of Themselves and the California Class 5 199. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated 6 Class Action Complaint as if set forth herein. 7 200. In the time period from 2010 to 2018, Defendants fraudulently and deceptively led 8 the California Plaintiffs to believe that the Flushable Wipes were suitable for flushing down a 9 toilet. Defendants also failed to inform the California Plaintiffs that the Flushable Wipes were not 10 suitable for disposal by flushing down a toilet, and the wipes are not regarded as flushable by 11 municipal sewage systems; routinely damages or clogs pipes, septic systems, and sewage pumps; 12 and do not disperse like toilet paper. 13 201. These misrepresentations and omissions were material at the time they were made. 14 They concerned material facts that were essential to the analysis undertaken by the California 15 Plaintiffs as to whether to purchase Defendants' Flushable Wipes. 16 202. Defendants made identical misrepresentations and omissions to members of the 17 Class regarding Defendants' Flushable Wipes. 18 203. The California Plaintiffs and those similarly situated relied to their detriment on 19 Defendants' fraudulent misrepresentations and omissions. Had the California Plaintiffs and those 20 similarly situated been adequately informed and not intentionally deceived by Defendants, they 21 would have acted differently by, without limitation, not purchasing (or paying less for) 22 Defendants' Flushable Wipes. 23 204. Defendants had a duty to inform class members at the time of their purchase of 24 that the Flushable Wipes were not suitable for flushing down a toilet, and the wipes are not 25 regarded as flushable by municipal sewage systems; routinely damage or clog pipes, septic 26 systems, and sewage pumps; and do not disperse like toilet paper. Defendants omitted to provide 27 this information to class members. Subclass members relied to their detriment on Defendants' 28 -52- Consolidated Class Action Complaint 50 1 omissions. These omissions were material to the decisions of the class members to purchase the 2 Flushable Wipes. In making these omissions, Defendants breached their duty to class members. 3 Defendants also gained financially from, and as a result of, their breach. 4 205. In not so informing the California Plaintiffs and the members of the Subclass, 5 Defendants breached their duty to them and the Subclass members. Defendants also gained 6 financially from, and as a result of, their breach. 7 206. By and through such fraud, deceit, misrepresentations and/or omissions, 8 Defendants intended to induce the California Plaintiffs and those similarly situated to alter their 9 position to their detriment. Specifically, Defendants fraudulently and deceptively induced 10 Plaintiffs and those similarly situated to, without limitation, purchase the Flushable Wipes. 11 207. The California Plaintiffs and those similarly situated justifiably and reasonably 12 relied on Defendants' omissions, and, accordingly, were damaged by the Defendants. 13 208. As a direct and proximate result of Defendants' misrepresentations and omissions, 14 the California Plaintiffs and those similarly situated have suffered damages, including, without 15 limitation, the amount they paid for the Flushable Wipes. 16 209. Defendants' conduct as described herein was willful and malicious and was 17 designed to maximize Defendants' profits even though Defendants knew that it would cause loss 18 and harm to the California Plaintiffs and those similarly situated. 19 FOURTH CAUSE OF ACTION (Negligent Misrepresentation) 20 On Behalf of Themselves and the California Class 21 210. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated 22 Class Action Complaint as if set forth herein. 23 211. In the time period from 2010 to the present, Defendants provided false and 24 misleading information regarding the Flushable Wipes, representing that the wipes were 25 "flushable," leading the California Plaintiffs to believe that the Flushable Wipes were flushable, 26 i.e., suitable for flushing down a toilet. 27 212. These representations were material at the time they were made. They concerned 28 material facts that were essential to the analysis undertaken by Plaintiffs as to whether to purchase -53- Consolidated Class Action Complaint 50 1 the Flushable Wipes. 2 213. Defendants made identical misrepresentations and omissions to members of the 3 Class regarding Defendants' Flushable Wipes. 4 214. Defendants should have known their representations to be false and had no 5 reasonable grounds for believing them to be true when they were made. 6 215. By and through such negligent misrepresentations, Defendants intended to induce 7 California Plaintiffs and those similarly situated to alter their position to their detriment. 8 Specifically, Defendants negligently induced Plaintiffs and those similarly situated to, without 9 limitation, to purchase the Flushable Wipes. 10 216. Plaintiffs and those similarly situated relied to their detriment on Defendants' 11 negligent misrepresentations. Had Plaintiffs and those similarly situated been adequately 12 informed and not intentionally deceived by Defendants, they would have acted differently by, 13 without limitation, not purchasing (or paying less for) Defendants' Flushable Wipes. 14 217. Plaintiffs and those similarly situated have suffered damages, including, without 15 limitation, the amount they paid for the Flushable Wipes. Defendants' negligent representations 16 and omissions were a substantial factor in causing the damage. 17 18 FIFTH CAUSE OF ACTION Unjust Enrichment 19 On Behalf of Themselves and the Class and Subclasses in Accordance with Paragraph 165 20 218. Plaintiffs reallege and incorporate each and every allegation set forth above as if 21 fully set forth herein. 22 219. By means of Defendants' wrongful conduct alleged herein, Defendants knowingly 23 sold Flushable Wipes to Plaintiffs and members of the Class in a manner that was unfair, 24 unconscionable, and oppressive. 25 220. Plaintiffs and class members directly conferred a benefit on Defendants by 26 purchasing the Wipes. 27 221. Defendant knowingly received and retained these wrongful benefits and funds 28 -54- Consolidated Class Action Complaint 50 1 from Plaintiffs and members of the Class. Defendants accepted and retained the benefit in the 2 amount of the profits and/or the price premium it earned from sales to Plaintiffs and the Class 3 Members. 4 222. In so doing, Defendant acted with conscious disregard for the rights of Plaintiffs 5 and members of the Class. 6 223. Defendants have profited from its unlawful, unfair, misleading and deceptive 7 practices and advertising at the expense of Plaintiffs and class members, under circumstances in 8 which it would be unjust for Defendants to be permitted to retain the benefit. 9 224. Defendants' unjust enrichment is traceable to, and resulted directly and 10 proximately from, the conduct alleged herein. 11 225. Under the common law doctrine of unjust enrichment, it is inequitable for 12 Defendants to be permitted to retain the benefits it received, without justification, from selling the 13 Flushable Wipes to Plaintiffs and members of the Class in an unfair, unconscionable, and 14 oppressive manner. Defendant's retention of such funds under such circumstances making it 15 inequitable to do so constitutes unjust enrichment. 16 226. The financial benefits derived by Defendants rightfully belong to Plaintiffs and 17 members of the Class. Defendant should be compelled to return in a common fund for the benefit 18 of Plaintiffs and members of the Class all wrongful or inequitable proceeds received by them. 19 227. Plaintiffs and members of the Class have no adequate remedy at law. 20 SIXTH CAUSE OF ACTION 21 Violation of Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. On Behalf of Themselves and the Class and Subclasses in Accordance with Paragraph 165 22 228. Plaintiffs reallege and incorporate each and every allegation set forth above as if 23 fully written herein. 24 229. This Court has jurisdiction to decide claims brought under 15 U.S.C. § 2301 by 25 virtue of 28 U.S.C. § 1332 (a)-(d). 26 230. Plaintiffs and members of the Class are "consumers" within the meaning of 15 27 U.S.C. § 2301(3). 28 231. Each Defendant is a "supplier" and "warrantor" within the meaning of 15 U.S.C. -55- Consolidated Class Action Complaint 50 1 § 2301(4) and (5), respectively. 2 232. The Flushable Wipes are "consumer products" within the meaning of 15 U.S.C. § 3 2301(1). 4 233. Defendants have not established a procedure by which consumers can informally 5 resolve their disputes, and accordingly, Plaintiffs have complied with the notice requirements of 6 15 U.S.C. § 2310(a). 7 234. 15 U.S.C. § 2310(d)(1) provides a cause of action for any consumer who is 8 damaged by the failure of a warrantor to comply with a written or implied warranty. 9 235. As this action is brought as a class action with fewer than 100 named plaintiffs, 10 and the amount in controversy meets or exceeds $50,000 in value (exclusive of interest and costs) 11 on the basis of all claims to be determined in this lawsuit, Plaintiffs meet the requirements of 15 12 U.S.C. § 2310(d)(3). 13 236. Defendants provided Plaintiffs and each member of the Class with "written 14 warranties" and "implied warranties," identified herein, which are covered under 15 U.S.C. § 15 2301(6) and (7), respectively. 16 237. Defendants' written warranty includes written affirmations of fact made in 17 connection with the sale of Flushable Wipes on its website, print advertising, marketing materials, 18 and on its packaging materials that state that the Flushable Wipes are "flushable", safe for sewers 19 and septic tanks, and are designed to be consistent with the other Flushability Representations. As 20 described herein, these statements are false and significantly misrepresent the characteristics of 21 the product and its suitability for disposal by flushing down a toilet. 22 238. Defendant's implied warranties include affirmations that the Flushable Wipes (i) 23 are suitable for disposal by flushing down the toilet; (ii) are regarded as flushable by municipal 24 sewage system operators; (iii) disperse, i.e. break apart, in household plumbing, septic tanks, and 25 in the sewer system like toilet paper; (iv) dissolve under all weather conditions and regardless of 26 whether the water is at room temperature, or whether other minerals, elements chemicals, or 27 substances are present in the water; (v) after they are flushed, they will not clog or damage 28 plumbing pipes, will break down properly in septic tanks, will not damage septic pumps, will not -56- Consolidated Class Action Complaint 50 1 catch on screens in municipal sewage lines, and will not damage municipal sewage lines and 2 pumps. Defendants also imply that their Flushable Wipes are fit for their intended purpose of 3 being flushed. 4 239. The terms of these warranties became part of the basis of the bargain when 5 Plaintiffs and each member of the Class purchased their Products. 6 240. Defendant breached these written and implied warranties as described in detail 7 herein. Without limitation, the Flushable Wipes share common defects in that they (i) are not 8 suitable for disposal by flushing down a toilet; (ii) are not regarded as flushable by municipal 9 sewage system operators; (iii) do not disperse, i.e. break apart, in household plumbing, septic 10 tanks, and in the sewer system like toilet paper; (iv) dissolve using an ionic solution that is only 11 activated under limited conditions; and (v) after they are flushed, they routinely clog and damage 12 plumbing pipes, fail to properly break down in septic tanks, damage septic pumps, catch on 13 screens in municipal sewage lines and must be removed from the sewer system for disposal in 14 landfills, and damage municipal sewage lines and pumps, often due to the proclivity of the wipes 15 to tangle with each other, tree branches, rocks, and other non-flushable items, and form large 16 masses or ropes. 17 241. Plaintiffs and each member of the Class have had sufficient direct dealings with 18 either Defendants or its agents (including directly online and through retailers) to establish privity 19 of contract between Defendants, on the one hand, and Plaintiffs and each member of the Class, on 20 the other hand. Nonetheless, privity is not required here because Plaintiffs and each member of 21 the Class are intended third-party beneficiaries of contracts between Defendants and its retailers, 22 and specifically, of Defendants' implied warranties. The retailers were not intended to be the 23 ultimate consumers of the Flushable Wipes and have no rights under the warranties provided with 24 the Flushable Wipes; the warranty agreements were designed for and intended to benefit 25 consumers only. 26 242. Affording Defendants a reasonable opportunity to cure their breach of written 27 warranties would be unnecessary and futile. At the time of sale or each Product, Defendants 28 knew, or should have known, of its misrepresentations and/or material omissions concerning the -57- Consolidated Class Action Complaint 50 1 Flushable Wipes inability to function as warranted, but nonetheless failed to rectify the situation 2 and/or disclose the defects. Under the circumstances, the remedies available under any informal 3 settlement procedure would be inadequate and any requirement that Plaintiffs or members of the 4 Class resort to an informal dispute resolution procedure and/or afford Defendants a reasonable 5 opportunity to cure its breach of warranties is excused and thereby deemed satisfied. 6 243. In addition, given the conduct described herein, any attempts by Defendants, in its 7 capacity as a warrantor, to limit the implied warranties in a manner that would exclude coverage 8 of the defects in the Flushable Wipes is unconscionable and any such effort to disclaim, or 9 otherwise limit, liability for the defects is null and void. 10 244. As a direct and proximate result of Defendants' breach of the written and implied 11 warranties, Plaintiffs and each member of the Class have suffered damages. 12 245. Plaintiffs, individually and on behalf of the Class, seek all damages permitted by 13 law, including compensation for the cost of purchasing the Flushable Wipes, along with all other 14 incidental and consequential damages, statutory attorney fees, and all other relief allowed by law. 15 SEVENTH CAUSE OF ACTION 16 BREACH OF EXPRESS WARRANTY U.C.C. § 2-313 17 On Behalf of Themselves and the Warranty Subclass in Accordance with Paragraph 165 18 246. Plaintiffs repeat and reallege the allegations above as if fully set forth herein. 19 247. For the court's convenience, attached to this complaint as Appendix 2 is a table 20 identifying each state statute adopting the U.C.C.'s provision, U.C.C. § 2 313, on express 21 warranties. Plaintiffs have met all requirements for pre-suit notice. 22 248. Defendants have expressly warranted to Plaintiffs and Class members through 23 written statements, descriptions, and affirmations of fact on its website, print advertising, 24 marketing materials, and its packaging materials that the Flushable Wipes are "flushable", safe 25 for sewers and septic tanks, and are designed to be consistent with the other Flushability 26 Representations appearing on the packages. 27 249. These affirmations of fact became the basis of the bargain between Defendants and 28 -58- Consolidated Class Action Complaint 50 1 Plaintiffs and all Class members, thereby creating express warranties that the Flushable Wipes 2 conform to Defendants' affirmations of fact, representations, promises, and descriptions. 3 250. As described herein, the Flushable Wipes (i) are not suitable for disposal by 4 flushing down a toilet; (ii) are not regarded as flushable by municipal sewage system operators; 5 (iii) do not disperse, i.e. break apart, in household plumbing, septic tanks, and in the sewer system 6 like toilet paper; (iv) dissolve using an ionic solution that is only activated under limited 7 conditions; and (v) after they are flushed, they routinely clog and damage plumbing pipes, fail to 8 properly break down in septic tanks, damage septic pumps, catch on screens in municipal sewage 9 lines and must be removed from the sewer system for disposal in landfills, and damage municipal 10 sewage lines and pumps, often due to the proclivity of the wipes to tangle with each other, tree 11 branches, rocks, and other non-flushable items, and form large masses or ropes. 12 251. By selling Flushable Wipes having these defects to consumers like Plaintiffs and 13 Class members when they already knew of the defects through internal testing, consumer 14 complaints, and published reports, Defendants failed to re-design or re-label its Flushable Wipes, 15 and breached its express warranty to provide Flushable Wipes that were consistent with its 16 affirmations of fact. 17 252. Plaintiffs and the members of the Class were injured as a direct and proximate 18 result of Defendants' breach of its express warranty because: (a) they would not have purchased 19 the Flushable, they would have paid less for them, or they would have used them differently if 20 they had known the true facts; (b) they paid a premium price for the Flushable Wipes as a result 21 of Defendants' misrepresentations and breach of its express warranties; and (c) they purchased 22 Flushable Wipes did not have the characteristics, qualities, or value affirmed and promised by 23 Defendants. 24 253. Defendants' breach of its expressed warranties damaged Plaintiffs and the Class 25 Members in an amount to be proven at trial. 26 254. Plaintiffs also allege the following on behalf of the Express Warranty Reliance 27 Subclass: 28 Plaintiffs and the proposed Class members relied upon Defendants' affirmations of fact -59- Consolidated Class Action Complaint 50 1 regarding the flushability of the Flushable Wipes in deciding to purchase the Flushable 2 Wipes. 3 EIGHTH CAUSE OF ACTION BREACH OF IMPLIED WARRANTY 4 U.C.C. §2-314 On Behalf of Themselves and the Warranty Subclass in Accordance with Paragraph 165 5 6 255. Plaintiffs repeat and reallege the allegations above as if fully set forth herein. 7 256. This claim is brought by Plaintiffs on behalf of the Warranty Subclass. 8 257. For the court's convenience, attached to this complaint as Appendix 3 is a table 9 identifying each state statute adopting the U.C.C.'s provision, U.C.C. § 2 314, on express 10 warranties. Plaintiffs have met all requirements for pre-suit notice. 11 258. Defendants, through the acts and omissions alleged herein, in the sale, marketing, 12 and promotion of Flushable Wipes impliedly warranted that the Flushable Wipes (i) are suitable 13 for disposal by flushing down the toilet; (ii) are regarded as flushable by municipal sewage 14 system operators; (iii) disperse, i.e. break apart, in household plumbing, septic tanks, and in the 15 sewer system like toilet paper; (iv) dissolve at all temperatures and regardless of other minerals, 16 elements chemicals, or substances present in the water; (v) after they are flushed, they will not 17 clog or damage plumbing pipes, will break down properly in septic tanks, will not damage septic 18 pumps, will not catch on screens in municipal sewage lines, and will not damage municipal 19 sewage lines and pumps. Defendants also imply that their Flushable Wipes are fit for their 20 intended purpose of being flushed. 21 259. Defendants are merchants with respect to the goods that were sold to Plaintiff and 22 the Class. 23 260. A warranty that the Flushable Wipes were in merchantable condition and fit for the 24 ordinary purpose of disposing them by flushing them down a household toilet is implied by law 25 pursuant to U.C.C. § 2 314. 26 261. Defendants' Flushable Wipes are in fact defective and fail to conform to 27 Defendants' implied and express representations about the flushability of the Flushable Wipes. 28 262. By selling Defendants' Flushable Wipes to consumers like Plaintiffs and Class -60- Consolidated Class Action Complaint 50 1 members when they already knew of the defects through internal testing, consumer complaints, 2 and published reports, Defendants breached their implied warranties. Despite having received 3 notice of these defects, Defendants continue to misrepresent the nature of their products and 4 breach their implied warranties. 5 263. Plaintiffs and the members of the Class were injured as a direct and proximate 6 result of Defendants' breach of their implied warranties, which was a substantial factor in the 7 harm they endured because: (a) they would not have purchased the Flushable Wipes, they would 8 have paid less for them, or they would have used them differently if they had known the true 9 facts; (b) they paid a premium price for the Flushable Wipes as a result of Defendants' 10 misrepresentations and breach of their implied warranties; (c) they purchased the Flushable 11 Wipes that did not have the characteristics, qualities, or value affirmed and promised by 12 Defendants, and (d) they were harmed by the defects. 13 Plaintiffs allege the following additional allegation for the Implied Warranty Privity 14 Subclass: 15 Plaintiffs and each member of the Class have had sufficient direct dealings with either 16 Defendants via its agents (icluding retailers) to establish privity of contract between 17 Defendants on the one hand, and Plaintiffs and each member of the Class, on the other 18 hand. 19 PLAINTIFFS' NINTH CAUSE OF ACTION Unfair, Unlawful and Deceptive Trade Practices, 20 Business and Professions Code § 17200, et seq. and the laws of states with broad deceptive practices prohibitions as set forth in Appendix 1 21 On Behalf of Themselves, the Class, and Subclasses in Accordance with Paragraph 165 22 264. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated 23 Class Action Complaint as if set forth herein. 24 265. Plaintiffs bring this claim individually and on behalf of the Consumer 25 Unfairness/Unlawfulness Subclass. 26 266. Plaintiffs and class members who purchased Flushable Wipes are "consumers" 27 under their states' unfair and deceptive practices statutes, which are identified with specificity for 28 this count in Appendix 1 -61- Consolidated Class Action Complaint 50 1 267. Within four (4) years preceding the filing of Davidson's original Class Action 2 Complaint, and at all times mentioned herein, Defendants have engaged, and continue to engage, 3 in unfair, unlawful and deceptive trade practices by engaging in the unfair, deceptive and 4 unlawful business practices desscribed in this Consolidated Class Action Complaint. In particular, 5 Defendants have engaged, and continue to engage, in unfair, unlawful and deceptive trade 6 practices by, without limitation, the following: 7 • deceptively representing to Plaintiffs, and those similarly situated, the Flushable 8 Wipes were suitable for flushing down a toilet; 9 • failing to inform Plaintiffs, and those similarly situated, that the Flushable Wipes 10 were not suitable for disposal by flushing down a toilet, and the wipes are not 11 regarded as flushable by municipal sewage systems; routinely damage or clog 12 pipes, septic systems, and sewage pumps; and do not disperse like toilet paper. 13 • labeling the Flushable Wipes as "flushable," even though, under the Uniform 14 Plumbing Code and the guidance issued by the Federal Trade Commission, the 15 wipes are not actually flushable, and accordingly, have caused, induced, abetted, 16 and contributed to illegal activity, namely, the flushing of non-flushable materials; 17 • engaging in fraud, deceit, and misrepresentation as described herein; 18 • violating the Magnuson-Moss Warranty Act 19 • breaching express and implied warranties 20 • violating the CLRA and UDAPs as described herein; and 21 • engaging in false, misleading and deceptive advertising as described herein; and 22 268. Plaintiffs and those similarly situated relied to their detriment on Defendants' 23 unfair, deceptive and unlawful business practices. Had Plaintiffs and those similarly situated been 24 adequately informed and not deceived by Defendants, they would have acted differently by not 25 purchasing (or paying less for) Defendants' Flushable Wipes. 26 269. Defendants' acts and omissions are likely to deceive the general public. 27 270. Defendant's acts and omissions are unfair in that they (1) offend public policy by 28 violating the statutory and common law provisions described herein and the Federal Trade -62- Consolidated Class Action Complaint 50 1 Commission standards; (2) are immoral, unethical, oppressive, or unscrupulous; and (3) cause 2 substantial injury to consumers. 3 271. Defendant's acts and omissions are also unfair in that they cause substantial injury 4 to consumers far in excess of any conceivable benefit; and are injuries of a nature that they could 5 not have been reasonably avoided by consumers. 6 272. Defendants engaged in these unfair practices to increase their profits. Accordingly, 7 Defendants have engaged in unfair and unlawful trade practices. 8 273. 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. 11 274. As a direct and proximate result of such actions, Plaintiffs and the other members 12 of the Class have suffered and continue to suffer injury in fact and have lost money and/or 13 property as a result of such deceptive and/or unlawful trade practices and unfair competition in an 14 amount which will be proven at trial, but which is in excess of the jurisdictional minimum of this 15 Court. Among other things, Plaintiffs, and those similarly situated, lost the amount they paid for 16 the Flushable Wipes. 17 275. As a direct and proximate result of such actions, Defendants have enjoyed, and 18 continue to enjoy, significant financial gain in an amount which will be proven at trial, but which 19 is in excess of the jurisdictional minimum of this Court. 20 276. Plaintiffs seek, on behalf of themselves and those similarly situated, full restitution 21 of monies, as necessary and according to proof, to restore any and all monies acquired by 22 Defendants from Plaintiffs, the general public, or those similarly situated by means of the 23 deceptive and/or unlawful trade practices complained of herein, plus interest thereon. 24 277. Plaintiffs seek, on behalf of those similarly situated, a declaration that the above- 25 described trade practices are fraudulent and/or unlawful. 26 278. Plaintiffs seek, on behalf of those similarly situated, an injunction to prohibit 27 Defendants from continuing to engage in the deceptive and/or unlawful trade practices 28 complained of herein. Such misconduct by Defendant, unless and until enjoined and restrained by -63- Consolidated Class Action Complaint 50 1 order of this Court, will continue to cause injury in fact to the general public and the loss of 2 money and property in that Defendants will continue to violate the laws of California, unless 3 specifically ordered to comply with the same. This expectation of future violations will require 4 current and future consumers to repeatedly and continuously seek legal redress in order to recover 5 monies paid to Defendants to which Defendants were not entitled. Plaintiffs, those similarly 6 situated and/or other consumers nationwide have no other adequate remedy at law to ensure 7 future compliance with the California Business and Professions Code alleged to have been 8 violated herein. 9 PRAYER FOR RELIEF 10 WHEREFORE, Plaintiffs prays for judgment against Defendants and in favor of Plaintiffs and the 11 other members of the Class as follows: 12 1. for restitution and injunctive relief; 13 2. actual and compensatory damages, the amount of which is to be determined at 14 trial; 15 3. punitive damages, the amount of which is to be determined at trial; 16 4. statutory damages, the amount of which is to be determined at trial; 17 5. for reasonable attorneys' fees; 18 6. for costs of suit incurred; and 19 7. for such further relief as this Court may deem just and proper. 20 21 JURY TRIAL DEMANDED 22 Plaintiffs hereby demand a trial by jury. 23 Dated: January 29, 2019 GUTRIDE SAFIER LLP 24 _/s/ Kristen G. Simplicio_____________ 25 GUTRIDE SAFIER LLP Adam J. Gutride, Esq. 26 Seth A. Safier, Esq. Kristen G. Simplicio, Esq. 27 Marie McCrary, Esq. 100 Pine Street, Suite 1250 28 San Francisco, California 94111 -64- Consolidated Class Action Complaint 50 TYCKO & ZAVARREEI LLP 1 Lorenzo B. Cellini 2000 L Street, N.W., Suite 808 2 Washington, DC 20036 3 SPANGENBERG SHIBLEY & LIBER LLP 4 Stuart E. Scott Daniel Frech 5 1001 Lakeside Avenue East, Suite 1700 Cleveland, OH 44114 6 Attorneys for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -65- Consolidated Class Action Complaint 50 Appendix 1 50 CHART OF 50 STATES AND WASHINGTON D.C.'S DECEPTIVE TRADE PRACTICES STATUTES STATE GENERAL ENUMERATED CATCHALL AND/OR BROAD NOTES STATUTORY PROHIBITIONS PRESENTED PROHIBITION ON DECEPTIVE CITATION IN THE COMPLAINT UNFAIR AND/OR UNLAWFUL CONDUCT Alabama Ala. Code § 8- Ala. Code § 8-19-5 Ala. Code § 8-19-5 19-1, et seq. (2) Causing confusion or (27) Engaging in any other misunderstanding as to the source, unconscionable, false, misleading, or sponsorship, approval, or deceptive act or practice in the certification of goods or services. conduct of trade or commerce. (3) Causing confusion or misunderstanding as to the affiliation, connection, or association with, or certification by another, provided that this section shall not prohibit the private labeling of goods or services. (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have. (7) Representing that goods or 50 services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. (9) Advertising goods or services with intent not to sell them as advertised. (24) Engaging in the sale, distribution, possession, acquisition, importation, or transportation of any cigarettes that do not comply with all applicable requirements imposed by or pursuant to federal law and federal implementing regulations. Alaska Alaska Stat. Alaska Stat. Ann. § 45.50.471(b) Alaska Stat. Ann. § 45.50.471 Alaska Stat. Ann. § Ann. 45.50.545 § 45.50.471, et (3) causing a likelihood of (a) Unfair methods of competition seq. confusion or misunderstanding as to and unfair or deceptive acts or In interpreting AS the source, sponsorship, or practices in the conduct of trade or 45.50.471 due approval, or another person's commerce are declared to be consideration and affiliation, connection, or unlawful. great weight should association with or certification of be given the goods or services (b) The terms "unfair methods of interpretations of 15 competition" and "unfair or U.S.C. 45(a)(1) (§ (4) representing that goods or deceptive acts or practices" include 5(a)(1) of the services have sponsorship, approval, the following acts: Federal Trade characteristics, ingredients, uses, (11) engaging in any other conduct Commission Act). benefits, or quantities that they do creating a likelihood of confusion or not have or that a person has a of misunderstanding and that sponsorship, approval, status, misleads, deceives, or damages a 2 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 affiliation, or connection that the buyer or a competitor in connection person does not have; with the sale or advertisement of goods or services; (6) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (8) advertising goods or services with intent not to sell them as advertised; (12) using or employing deception, fraud, false pretense, false promise, misrepresentation, or knowingly concealing, suppressing, or omitting a material fact with intent that others rely upon the concealment, suppression, or omission in connection with the sale or advertisement of goods or services whether or not a person has in fact been misled, deceived, or damaged; (14) representing that an agreement confers or involves rights, remedies, or obligations that it does not confer or involve, or that are prohibited by law; Arizona Ariz. Rev. This Arizona statute broadly Ariz. Rev. Stat. § 44-1522 Ariz. Rev. Stat. Stat. prohibits deceptive and unfair § 44-1522 3 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 § 44-1521, et conduct without enumeration. (A) The act, use or employment by seq. any person of any deception, (C) It is the intent of deceptive or unfair act or practice, the legislature, in fraud, false pretense, false promise, construing misrepresentation, or concealment, subsection A, that suppression or omission of any the courts may use material fact with intent that others as a guide rely on such concealment, interpretations given suppression or omission, in by the federal trade connection with the sale or commission and the advertisement of any merchandise federal courts to 15 whether or not any person has in fact United States Code been misled, deceived or damaged sections 45, 52 and thereby, is declared to be an 55(a)(1). unlawful practice. Arkansas Ark. Code Ark. Code Ann. § 4-88-107(a) Ark. Code Ann. § 4-88-107(a) Ark. Code Ann. § Ann. § 4-88- 4-88-107 101, et seq. (1) Knowingly making a false (10) Engaging in any other representation as to the unconscionable, false, or deceptive (b) The deceptive characteristics, ingredients, uses, act or practice in business, and unconscionable benefits, alterations, source, commerce, or trade; trade practices listed sponsorship, approval, or in this section are in certification of goods or services or addition to and do as to whether goods are original or not limit the types of new or of a particular standard, unfair trade quality, grade, style, or model; practices actionable at common law or (3) Advertising the goods or under other statutes services with the intent not to sell of this state. them as advertised; (8) Knowingly taking advantage of a consumer who is reasonably 4 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 unable to protect his or her interest because of: (A) Physical infirmity; (B) Ignorance; (C) Illiteracy; (D) Inability to understand the language of the agreement; or (E) A similar factor; Ark. Code Ann. § 4-88-108 (1) The act, use, or employment by any person of any deception, fraud, or false pretense; or (2) The concealment, suppression, or omission of any material fact with intent that others rely upon the concealment, suppression, or omission. California Cal. Civ. Code Cal Civ. Code § 1770(a) Bus. & Prof. Code § 17200 Cal. Civ. Code § § 1750, et seq.; 1780(b) (2) Misrepresenting the source, As used in this chapter, unfair Cal. Bus. & sponsorship, approval, or competition shall mean and include (1) Any consumer Prof. Code certification of goods or services. any unlawful, unfair or fraudulent who is a senior § 17200, et business act or practice and unfair, citizen or a disabled seq.; (3) Misrepresenting the affiliation, deceptive, untrue or misleading person, as defined in connection, or association with, or advertising and any act prohibited by subdivisions (f) and Cal. Bus. & certification by, another. Chapter 1 (commencing with Section (g) of Section 1761, Prof. Code 17500) of Part 3 of Division 7 of the as part of an action § 17500, et (5) Representing that goods or Business and Professions Code. under subdivision seq. services have sponsorship, approval, (a), may seek and be 5 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 characteristics, ingredients, uses, Bus. & Prof. Code § 17500 awarded, in addition benefits, or quantities that they do to the remedies not have or that a person has a It is unlawful for any person, firm, specified therein, up sponsorship, approval, status, corporation or association, or any to five thousand affiliation, or connection that he or employee thereof with intent directly dollars ($5,000) she does not have. or indirectly to dispose of real or where the trier of personal property or to perform fact does all of the (7) Representing that goods or services, professional or otherwise, following: services are of a particular standard, or anything of any nature whatsoever (A) Finds that the quality, or grade, or that goods are or to induce the public to enter into consumer has of a particular style or model, if any obligation relating thereto, to suffered substantial they are of another. make or disseminate or cause to be physical, emotional, made or disseminated before the or economic damage (9) Advertising goods or services public in this state, or to make or resulting from the with intent not to sell them as disseminate or cause to be made or defendant's conduct. advertised. disseminated from this state before (B) Makes an the public in any state, in any affirmative finding (14) Representing that a transaction newspaper or other publication, or in regard to one or confers or involves rights, remedies, any advertising device, or by public more of the factors or obligations that it does not have outcry or proclamation, or in any set forth in or involve, or that are prohibited by other manner or means whatever, subdivision (b) law. including over the Internet, any of Section 3345. statement, concerning that real or (C) Finds that an (19) Inserting an unconscionable personal property or those services, additional award is provision in the contract. professional or otherwise, or appropriate. concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading, or for any person, 6 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 firm, or corporation to so make or disseminate or cause to be so made or disseminated any such statement as part of a plan or scheme with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised. Any violation of the provisions of this section is a misdemeanor punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both that imprisonment and fine. Colorado Colo. Rev. Colo. Rev. Stat. § 6-1-105(1) Colo. Rev. Stat. § 6-1-105 Stat. § 6-1- 101, et seq. (b) Knowingly makes a false (3) The deceptive trade practices representation as to the source, listed in this section are in addition sponsorship, approval, or to and do not limit the types of unfair certification of goods, services, or trade practices actionable at common property; law or under other statutes of this state. (c) Knowingly makes a false representation as to affiliation, connection, or association with or certification by another; (e) Knowingly makes a false representation as to the characteristics, ingredients, uses, 7 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 benefits, alterations, or quantities of goods, food, services, or property or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith; (g) Represents that goods, food, services, or property are of a particular standard, quality, or grade, or that goods are of a particular style or model, if he knows or should know that they are of another; (i) Advertises goods, services, or property with intent not to sell them as advertised; (u) Fails to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction; Connecticut Conn. Gen. This Connecticut statute broadly Conn. Gen. Stat. § 42-110b Conn. Gen. Stat. Stat. prohibits deceptive and unfair § 42-110b § 42-110a, et conduct without enumeration. (a) No person shall engage in unfair seq. methods of competition and unfair or (b) It is the intent of deceptive acts or practices in the the legislature that 8 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 conduct of any trade or commerce. in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 USC 45(a)(1)), as from time to time amended. Delaware Del. Code Del. Code Ann. tit. 6, § 2532(a) Del. Code Ann. tit. 6, § 2513 Del. Code Ann. tit. Ann. tit. 6, § 6, § 2512 2511, et seq.; (2) Causes likelihood of confusion (a) The act, use or employment by or of misunderstanding as to the any person of any deception, fraud, The purpose of this Del. Code source, sponsorship, approval, or false pretense, false promise, subchapter shall be Ann. tit. 6, § certification of goods or services; misrepresentation, or the to protect consumers 2531, et seq. concealment, suppression, or and legitimate (3) Causes likelihood of confusion omission of any material fact with business enterprises or of misunderstanding as to intent that others rely upon such from unfair or affiliation, connection, or concealment, suppression or deceptive association with, or certification by, omission, in connection with the merchandising another; sale, lease or advertisement of any practices in the merchandise, whether or not any conduct of any trade (5) Represents that goods or person has in fact been misled, or commerce in part services have sponsorship, approval, deceived or damaged thereby, is an or wholly within this 9 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 characteristics, ingredients, uses, unlawful practice. State. It is the intent benefits, or quantities that they do of the General not have, or that a person has a Del. Code Ann. tit. 6, § 2532(a) Assembly that such sponsorship, approval, status, practices be swiftly affiliation, or connection that the (12) Engages in any other conduct stopped and that this person does not have; which similarly creates a likelihood subchapter shall be of confusion or of misunderstanding. liberally construed (7) Represents that goods or and applied to services are of a particular standard, promote its quality, or grade, or that goods are underlying purposes of a particular style or model, if and policies. they are of another; Del. Code Ann. tit. (9) Advertises goods or services 6, § 2532 with intent not to sell them as advertised; (b) In order to prevail in an action under this chapter, a complainant need not prove competition between the parties or actual confusion or misunderstanding. (c) This section does not affect unfair trade practices otherwise actionable at common law or under other statutes of this State. 10 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 District of D.C. Code § D.C. Code § 28-3904 D.C. Code § 28-3904 D.C. Code § 28- Columbia 28-3901, et 3901 seq. (a) represent that goods or services It shall be a violation of this chapter have a source, sponsorship, for any person to engage in an unfair (c) This chapter approval, certification, accessories, or deceptive trade practice, whether shall be construed characteristics, ingredients, uses, or not any consumer is in fact and applied liberally benefits, or quantities that they do misled, deceived, or damaged to promote its not have; thereby, including to: purpose. This chapter establishes (b) represent that the person has a an enforceable right sponsorship, approval, status, to truthful affiliation, certification, or information from connection that the person does not merchants about have; consumer goods and services that are or (d) represent that goods or services would be purchased, are of particular standard, quality, leased, or received grade, style, or model, if in fact they in the District of are of another; Columbia. (e) misrepresent as to a material fact (d) In construing the which has a tendency to mislead; term "unfair or deceptive trade (e-1) [r]epresent that a transaction practice" due confers or involves rights, remedies, consideration and or obligations which it does not weight shall be have or involve, or which are given to the prohibited by law; interpretation by the Federal Trade (f) fail to state a material fact if such Commission and the failure tends to mislead; federal courts of the term "unfair or 11 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (f-1) [u]se innuendo or ambiguity as deceptive act or to a material fact, which has a practice," as tendency to mislead; employed in section 5(a) of An Act To (h) advertise or offer goods or create a Federal services without the intent to sell Trade Commission, them or without the intent to sell to define its powers them as advertised or offered; and duties, and for other purposes, (r) make or enforce unconscionable approved September terms or provisions of sales or 26, 1914 (38 Stat. leases; in applying this subsection, 719; 15 U.S.C. § consideration shall be given to the 45(a)). following, and other factors: (1) knowledge by the person at the time credit sales are consummated that there was no reasonable probability of payment in full of the obligation by the consumer; (2) knowledge by the person at the time of the sale or lease of the inability of the consumer to receive substantial benefits from the property or services sold or leased; (3) gross disparity between the price of the property or services sold or leased and the value of the property or services measured by the price at which similar property or services are readily obtainable in transactions by like buyers or lessees; (4) that the person contracted for or 12 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 received separate charges for insurance with respect to credit sales with the effect of making the sales, considered as a whole, unconscionable; and (5) that the person has knowingly taken advantage of the inability of the consumer reasonably to protect his interests by reasons of age, physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of the agreement, or similar factors; (u) represent that the subject of a transaction has been supplied in accordance with a previous representation when it has not; (x) sell consumer goods in a condition or manner not consistent with that warranted by operation of sections 28:2-312 through 318 of the District of Columbia Official Code, or by operation or requirement of federal law. Florida Fla. Stat. This Florida statute broadly Fla. Stat. § 501.204 Fla. Stat. § 501.204 § 501.201, et prohibits deceptive and unfair seq. conduct without enumeration. (1) Unfair methods of competition, (2) It is the intent of unconscionable acts or practices, and the legislature that, unfair or deceptive acts or practices in construing in the conduct of any trade or subsection (1), due commerce are hereby declared consideration and 13 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 unlawful. great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2017. Fla. Stat. § 501.2077 contains special protections when companies target individuals with disabilities Georgia Ga. Code Ga. Code Ann. § 10-1-372(a) Ga. Code Ann. § 10-1-372(a) Ga. Code Ann. § Ann. § 10-1- 10-1-372 370, et seq.; (2) Causes likelihood of confusion (12) Engages in any other conduct or of misunderstanding as to the which similarly creates a likelihood (b) In order to Ga. Code. source, sponsorship, approval, or of confusion or of misunderstanding. prevail in an action Ann. § 10-1- certification of goods or services; under this part, a 390, et seq. Ga. Code. Ann. § 10-1-393 complainant need (3) Causes likelihood of confusion not prove or of misunderstanding as to (a) Unfair or deceptive acts or competition between affiliation, connection, or practices in the conduct of consumer the parties or actual association with or certification by transactions and consumer acts or confusion or another; practices in trade or commerce are misunderstanding. declared unlawful. 14 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (5) Represents that goods or (c) This Code services have sponsorship, approval, (b) By way of illustration only and section does not characteristics, ingredients, uses, without limiting the scope of affect unfair trade benefits, or quantities that they do subsection (a) of this Code section, practices otherwise not have or that a person has a the following practices are declared actionable at sponsorship, approval, status, unlawful: common law or affiliation, or connection that he under other statutes does not have; of this state. (7) Represents that goods or Ga. Code. Ann. § services are of a particular standard, 10-1-391 quality, or grade or that goods are of a particular style or model, if they (a) The purpose of are of another; this part shall be to protect consumers (9) Advertises goods or services and legitimate with intent not to sell them as business enterprises advertised. from unfair or deceptive practices Ga. Code. Ann. § 10-1-393(b) in the conduct of any trade or (2) Causing actual confusion or commerce in part or actual misunderstanding as to the wholly in the state. source, sponsorship, approval, or It is the intent of the certification of goods or services; General Assembly that such practices (3) Causing actual confusion or be swiftly stopped, actual misunderstanding as to and this part shall be affiliation, connection, or liberally construed association with or certification by and applied to another; promote its underlying purposes (5) Representing that goods or and policies. 15 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 services have sponsorship, approval, characteristics, ingredients, uses, (b) It is the intent of benefits, or quantities that they do the General not have or that a person has a Assembly that this sponsorship, approval, status, part be interpreted affiliation, or connection that he or and construed she does not have; consistently with interpretations given (7) Representing that goods or by the Federal Trade services are of a particular standard, Commission in the quality, or grade or that goods are of federal courts a particular style or model, if they pursuant to Section are of another; 5(a)(1) of the Federal Trade (9) Advertising goods or services Commission Act (15 with intent not to sell them as U.S.C. Section advertised; 45(a)(1)), as from time to time amended. Hawaii Haw. Rev. This Hawaii statute broadly Haw. Rev. Stat. § 480-2 Haw. Rev. Stat. Stat. § 480, et prohibits deceptive and unfair § 480-2 seq. conduct without enumeration. (a) Unfair methods of competition and unfair or deceptive acts or (b) In construing practices in the conduct of any trade this section, the or commerce are unlawful. courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade 16 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended. Idaho Idaho Code § Idaho Code § 48-603 Idaho Code § 48-603 Idaho Code § 48- 48-601, et seq. 604 (2) Causing likelihood of confusion (17) prohibits "[e]ngaging in any act or of misunderstanding as to the or practice which is otherwise (1) It is the intent of source, sponsorship, approval, or misleading, false, or deceptive to the the legislature that certification of goods or services; consumer" in construing this act due consideration (3) Causing likelihood of confusion and great weight or of misunderstanding as to shall be given to the affiliation, connection, or interpretation of the association with, or certification by, federal trade another; commission and the federal courts (5) Representing that goods or relating to section services have sponsorship, approval, 5(a)(1) of the federal characteristics, ingredients, uses, trade commission benefits, or quantities that they do act (15 U.S.C. not have or that a person has a 45(a)(1)), as from sponsorship, approval, status, time to time affiliation, connection, amended[.] qualifications or license that he does not have; 17 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (9) Advertising goods or services with intent not to sell them as advertised; (18) Engaging in any unconscionable method, act or practice in the conduct of trade or commerce, as provided in section 48-603C, Idaho Code, provided, however, that the provisions of this subsection shall not apply to a regulated lender as that term is defined in section 28-41-301, Idaho Code; Idaho Code § 48-603C (1) Any unconscionable method, act or practice in the conduct of any trade or commerce violates the provisions of this chapter whether it occurs before, during, or after the conduct of the trade or commerce. Illinois 815 Ill. Comp. 815 Ill. Comp. Stat. Ann. 510/2(a) 815 Ill. Comp. Stat. Ann. 505/2 815 Ill. Comp. Stat. Stat. Ann. Ann. 510/2 505/1, et seq.; (2) causes likelihood of confusion Unfair methods of competition and 18 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 or of misunderstanding as to the unfair or deceptive acts or practices, (b) In order to 815 Ill. Comp. source, sponsorship, approval, or including but not limited to the use prevail in an action Stat. Ann. certification of goods or services; or employment of any deception, under this Act, a 510/1, et seq. fraud, false pretense, false promise, plaintiff need not (3) causes likelihood of confusion misrepresentation or the prove competition or of misunderstanding as to concealment, suppression or between the parties affiliation, connection, or omission of any material fact, with or actual confusion association with or certification by intent that others rely upon the or another; concealment, suppression or misunderstanding. omission of such material fact, or the (5) represents that goods or services use or employment of any practice (c) This Section have sponsorship, approval, described in Section 2 of the does not affect characteristics, ingredients, uses, 'Uniform Deceptive Trade Practices unfair trade benefits, or quantities that they do Act,' approved August 5, 1965, in practices otherwise not have or that a person has a the conduct of any trade or actionable at sponsorship, approval, status, commerce are hereby declared common law or affiliation, or connection that he or unlawful whether any person has in under other statutes she does not have; fact been misled, deceived or of this State. damaged thereby. In construing this (7) represents that goods or services section consideration shall be given are of a particular standard, quality, to the interpretations of the Federal or grade or that goods are a Trade Commission and the federal particular style or model, if they are courts relating to Section 5(a) of the of another; Federal Trade Commission Act. (9) advertises goods or services with 815 Ill. Comp. Stat. Ann. 510/2(a) intent not to sell them as advertised; (12) engages in any other conduct which similarly creates a likelihood of confusion or misunderstanding. Indiana Ind. Code Ind. Code Ann. § 24-5-0.5-3(b) Ind. Code Ann. § 24-5-0.5-3 Ann. § 24-5- 19 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 0.5-1, et seq. (1) That such subject of a consumer (a) A supplier may not commit an transaction has sponsorship, unfair, abusive, or deceptive act, approval, performance, omission, or practice in connection characteristics, accessories, uses, or with a consumer transaction. Such an benefits it does not have which the act, omission, or practice by a supplier knows or should supplier is a violation of this chapter reasonably know it does not have. whether it occurs before, during, or after the transaction. An act, (2) That such subject of a consumer omission, or practice prohibited by transaction is of a particular this section includes both implicit standard, quality, grade, style, or and explicit misrepresentations. model, if it is not and if the supplier knows or should reasonably know (b) Without limiting the scope of that it is not. subsection (a), the following acts, and the following representations as (7) That the supplier has a to the subject matter of a consumer sponsorship, approval, or affiliation transaction, made orally, in writing, in such consumer transaction the or by electronic communication, by a supplier does not have, and which supplier, are deceptive acts: the supplier knows or should reasonably know that the supplier does not have. (11) That the consumer will be able to purchase the subject of the consumer transaction as advertised by the supplier, if the supplier does not intend to sell it. Ind. Code Ann. § 24-5-0.5-10 (a) A supplier commits a deceptive act if the supplier gives any of the 20 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 following representations, orally or in writing, or does any of the following acts: (1) Either: (A) solicits to engage in a consumer transaction without a permit or other license required by law; (B) solicits to engage in a consumer transaction if a permit or other license is required by law to engage in the consumer transaction and the supplier is not qualified to obtain the required permit or other license or does not intend to obtain the permit or other license; or (C) engages in a consumer transaction without a permit or other license required by law. (2) Commits a violation of IC 24-5- 10. (b) A supplier commits an unconscionable act that shall be treated the same as a deceptive act under this chapter if the supplier solicits a person to enter into a contract or agreement: (1) that contains terms that are oppressively one sided or harsh; (2) in which the terms unduly limit the person's remedies; or (3) in which the price is unduly excessive; 21 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 and there was unequal bargaining power that led the person to enter into the contract or agreement unwillingly or without knowledge of the terms of the contract or agreement. There is a rebuttable presumption that a person has knowledge of the terms of a contract or agreement if the person signs a written contract. Iowa Iowa Code This Iowa statute broadly prohibits Iowa Code § 714H.3 § 714H.1, et deceptive and unfair conduct seq. without enumeration. (1) A person shall not engage in a practice or act the person knows or reasonably should know is an unfair practice, deception, fraud, false pretense, or false promise, or the misrepresentation, concealment, suppression, or omission of a material fact, with the intent that others rely upon the unfair practice, deception, fraud, false pretense, false promise, misrepresentation, concealment, suppression, or omission in connection with the advertisement, sale, or lease of consumer merchandise, or the solicitation of contributions for charitable purposes. Kansas Kan. Stat. Kan. Stat. Ann. § 50-626(b) Kan. Stat. Ann. § 50-626 (a) Ann. § 50-623, 22 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 et seq. (1)(A): Property or services have No supplier shall engage in any sponsorship, approval, accessories, deceptive act or practice in characteristics, ingredients, uses, connection with a consumer benefits or quantities that they do transaction. not have; (1)(B): the supplier has a sponsorship, approval, status, affiliation or connection that the supplier does not have; (1)(D): property or services are of particular standard, quality, grade, style or model, if they are of another which differs materially from the representation; (1)(F): property or services has uses, benefits or characteristics unless the supplier relied upon and possesses a reasonable basis for making such representation; (1)(G): use, benefit or characteristic of property or services has been proven or otherwise substantiated unless the supplier relied upon and possesses the type and amount of proof or substantiation represented to exist (2) the willful use, in any oral or written representation, of 23 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 exaggeration, falsehood, innuendo or ambiguity as to a material fact; (3) the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact; (5) offering property or services without intent to sell them; (8) falsely stating, knowingly or with reason to know, that a consumer transaction involves consumer rights, remedies or obligations; Kan. Stat. Ann. § 50-627 (a) No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction. Kentucky Ky. Rev. Stat. Ky. Rev. Stat. § 367.170 Ann. § 367.110, et (1) Unfair, false, misleading, or seq. deceptive acts or practices in the conduct of any trade or commerce 24 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 are hereby declared unlawful. (2) For the purposes of this section, unfair shall be construed to mean unconscionable. Louisiana La. Rev. Stat. This Louisiana statute broadly La. Rev. Stat. § 51:1405(a) § 51:1401, et prohibits deceptive and unfair seq. conduct without enumeration. Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful Maine Me. Rev. Stat. This Maine statute broadly prohibits Me. Rev. Stat. Ann. tit. 5 § 207 Me. Rev. Stat. Ann. Ann. tit. 5 deceptive and unfair conduct tit. 5 § 205-a § 207 § 205-a, et seq. without enumeration. Unfair methods of competition and unfair or deceptive acts or practices (1) Intent. It is the in the conduct of any trade or intent of the commerce are declared unlawful. Legislature that in construing this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act (15 United States Code 45(a)(1)), and from 25 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 time to time amended. Maryland Md. Code. Md. Code. Ann. Com. Law Md. Code. Ann. Com. Law § 13- Md. Code. Ann. Ann. Com. § 13-301 303 Com. Law § 13-105 Law § 13-101, et seq. Unfair or deceptive trade practices A person may not engage in any This title shall be include any: unfair or deceptive trade practice, as construed and defined in this subtitle or as further applied liberally to (1) False, falsely disparaging, or defined by the Division…: promote its purpose. misleading oral or written It is the intent of the statement, visual description, or General Assembly other representation of any kind that in construing which has the capacity, tendency, or the term "unfair or effect of deceiving or misleading deceptive trade consumers; practices", due consideration and (2) Representation that: (i) weight be given to Consumer goods, consumer realty, the interpretations of or consumer services have a § 5 (a)(1) of the sponsorship, approval, accessory, Federal Trade characteristic, ingredient, use, Commission Act by benefit, or quantity which they do the Federal Trade not have; . . . (iv) Consumer goods, Commission and the consumer realty, or consumer federal courts. services are of a particular standard, quality, grade, style, or model which they are not; (3) Failure to state a material fact if the failure deceives or tends to deceive; (5) Advertisement or offer of 26 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 consumer goods, consumer realty, or consumer services: (i) Without intent to sell, lease, or rent them as advertised or offered; (9) Deception, fraud, false pretense, false premise, misrepresentation, or knowing concealment, suppression, or omission of any material fact with the intent that a consumer rely on the same in connection with: (i) The promotion or sale of any consumer goods, consumer realty, or consumer service. . . . Massachusetts Mass. Gen. Massachusetts broadly prohibits Mass. Gen. Laws. ch. 93A § 2 Mass. Gen. Laws. Laws. ch. 93A deceptive and unfair conduct ch. 93A § 2 § 1, et seq. without enumeration. (a) Unfair methods of competition and unfair or deceptive acts or (b) It is the intent of practices in the conduct of any trade the legislature that or commerce are hereby declared in construing unlawful. paragraph (a) of this section in actions brought under sections four, nine, and eleven, the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to section 5(a)(1) of 27 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended. 940 Mass. Code Regs. 21.01 The purpose of 940 CMR 21.00 is to eliminate deception and unfairness in the way cigarettes, smokeless tobacco products, and electronic smoking devices are marketed, sold and distributed in Massachusetts in order to address the incidence of cigarette smoking, the use of smokeless tobacco and electronic smoking devices by youth. 940 CMR 21.00 imposes requirements and restrictions on the sale and distribution 28 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 of cigarettes and smokeless tobacco products and electronic smoking devices in Massachusetts in order to prevent access to such products by underage consumers and accidental injury to children as a result of ingestion of or contact with liquid nicotine. Michigan Mich. Comp. Mich. Comp. Laws Serv. § Laws Serv. § 445.903(1) 445.901, et seq. (a) Causing a probability of confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services. (c) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have. (e) Representing that goods or 29 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. (g) Advertising or representing goods or services with intent not to Wdispose of those goods or services as advertised or represented. (n) Causing a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction. (s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer. (t) Entering into a consumer transaction in which the consumer waives or purports to waive a right, benefit, or immunity provided by law, unless the waiver is clearly stated and the consumer has specifically consented to it. (x) Taking advantage of the consumer's inability reasonably to protect his or her interests by reason of disability, illiteracy, or inability 30 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 to understand the language of an agreement presented by the other party to the transaction who knows or reasonably should know of the consumer's inability. (bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is. (cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner. Minnesota Minn. Stat. Minn. Stat. Ann. § 325D.44 subd. Minn. Stat. Ann. § 325F.69 Ann. § 1 325D.43, et (subd, 1) The act, use, or seq.; (2) causes likelihood of confusion employment by any person of any or of misunderstanding as to the fraud, false pretense, false promise, Minn. Stat. source, sponsorship, approval, or misrepresentation, misleading Ann. § certification of goods or services; statement or deceptive practice, with 325f.68, et seq. the intent that others rely thereon in (3) causes likelihood of confusion connection with the sale of any or of misunderstanding as to merchandise, whether or not any affiliation, connection, or person has in fact been misled, association with, or certification by, deceived, or damaged thereby, is another; enjoinable as provided in section 325F.70. (5) represents that goods or services 31 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 have sponsorship, approval, Minn. Stat. Ann. § 325D.44 subd. 1 characteristics, ingredients, uses, benefits, or quantities that they do (13) engages in any other conduct not have or that a person has a which similarly creates a likelihood sponsorship, approval, status, of confusion or of misunderstanding. affiliation, or connection that the person does not have; (7) represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (9) advertises goods or services with intent not to sell them as advertised; Mississippi Miss. Code Miss. Code Ann. § 75-24-5(2) Miss. Code Ann. § 75-24-5 Miss. Code Ann. § Ann. § 75-24- 75-24-3 1, et seq. (b) Misrepresentation of the source, (1) Unfair methods of competition sponsorship, approval, or affecting commerce and unfair or (c) It is the intent of certification of goods or services; deceptive trade practices in or the Legislature that affecting commerce are prohibited. in construing what (c) Misrepresentation of affiliation, Action may be brought constitutes unfair or connection, or association with, or under Section 75-24-5(1) only under deceptive trade certification by another; the provisions of Section 75-24-9. practices that the courts will be (e) Representing that goods or (2) Without limiting the scope of guided by the services have sponsorship, approval, subsection (1) of this section, the interpretations given characteristics, ingredients, uses, following unfair methods of by the Federal Trade benefits, or quantities that they do competition and unfair or deceptive Commission and the not have or that a person has a trade practices or acts in the conduct federal courts to sponsorship, approval, status, of any trade or commerce are hereby Section 5(a)(1) of 32 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 affiliation, or connection that he prohibited: the Federal Trade does not have; Commission Act (15 USCS 45(a)(1)) as (g) Representing that goods or from time to time services are of a particular standard, amended. quality, or grade, or that goods are of a particular style or model, if they are of another; (i) Advertising goods or services with intent not to sell them as advertised; Missouri Mo. Rev. Stat. This Missouri statute broadly Mo. Rev. Stat. § 407.020 § 407.010, et prohibits deceptive and unfair seq. conduct without enumeration. (1) The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice. The use by any person, in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable 33 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 purpose, as defined in section 407.453, in or from the state of Missouri of the fact that the attorney general has approved any filing required by this chapter as the approval, sanction or endorsement of any activity, project or action of such person, is declared to be an unlawful practice. Any act, use or employment declared unlawful by this subsection violates this subsection whether committed before, during or after the sale, advertisement or solicitation. Montana Mont. Code This Montana statute broadly Mont. Code Ann. § 30-14-103 Mont. Code Ann. § Ann. prohibits deceptive and unfair 30-14-104 § 30-14-101, et conduct without enumeration. Unfair methods of competition and seq. unfair or deceptive acts or practices (1) It is the intent of in the conduct of any trade or the legislature that commerce are unlawful. in construing 30-14- 103 due consideration and weight shall be given to the interpretations of the federal trade commission and the federal courts relating to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C., 45(a)(1)), as 34 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 amended. Nebraska Neb. Rev. Neb. Rev. Stat. § 87-302 Neb. Rev. Stat. § 59-1602 Stat. § 59-1601, et (a) A person engages in a deceptive Unfair methods of competition and seq.; trade practice when, in the course of unfair or deceptive acts or practices his or her business, vocation, or in the conduct of any trade or Neb. Rev. occupation, he or she: . . . commerce shall be unlawful. Stat. § 87-301, et seq (2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another; (5) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have. . .; (8) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (10) Advertises goods or services with intent not to sell them as 35 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 advertised. . .; (16) Uses any scheme or device to defraud by means of: (i) Obtaining money or property by knowingly false or fraudulent pretenses, representations, or promises. . . (22) In the manufacture, production, importation, distribution, promotion, display for sale, offer for sale, attempt to sell, or sale of a substance: (i) Makes a deceptive or misleading representation or designation, or omits material information, about a substance or fails to identify the contents of the package or the nature of the substance contained inside the package; or (ii) Causes confusion or misunderstanding as to the effects a substance causes when ingested, injected, inhaled, or otherwise introduced into the human body. A person shall be deemed to have committed a violation of the Uniform Deceptive Trade Practices Act for each individually packaged product that is either manufactured, produced, imported, distributed, 36 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 promoted, displayed for sale, offered for sale, attempted to sell, or sold in violation of this section. A violation under this subdivision shall be treated as a separate and distinct violation from any other offense arising out of acts alleged to have been committed while the person was in violation of this section. Neb. Rev. Stat. § 87-303.01 (1) An unconscionable act or practice by a supplier in connection with a consumer transaction shall be a violation of the Uniform Deceptive Trade Practices Act. Nevada Nev. Rev. Nev. Rev. Stat. § 598.0915 Nev. Rev. Stat. § 598.0915(15) Stat. § 598.0903, et A person engages in a "deceptive Broadly prohibits knowingly making seq. trade practice" if, in the course of any other false representation in a his or her business or occupation, he transaction. or she: . . . 2. Knowingly makes a false representation as to the source, sponsorship, approval or certification of goods or services for sale or lease. 3. Knowingly makes a false 37 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 representation as to affiliation, connection, association with or certification by another person. 5. Knowingly makes a false representation as to the characteristics, ingredients, uses, benefits, alterations or quantities of goods or services for sale or lease. . .. 7. Represents that goods or services for sale or lease are of a particular standard, quality or grade, or that such goods are of a particular style or model, if he or she knows or should know that they are of another standard, quality, grade, style or model. 9. Advertises goods or services with intent not to sell or lease them as advertised. 15. Knowingly makes any other false representation in a transaction. Nev. Rev. Stat. § 598.092 8. Knowingly misrepresents the legal rights, obligations or remedies of a party to a transaction. 38 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 14. Knowingly takes advantage of another person's inability reasonably to protect his or her own rights or interests in a consumer transaction when such an inability is due to illiteracy, or to a mental or physical infirmity or another similar condition which manifests itself as an incapability to understand the language or terms of any agreement. Nev. Rev. Stat. § 598.0923 A person engages in a "deceptive trade practice" when in the course of his or her business or occupation he or she knowingly: . . . 1. Conducts the business or occupation without all required state, county or city licenses. 2. Fails to disclose a material fact in connection with the sale or lease of goods or services. 3. Violates a state or federal statute or regulation relating to the sale or lease of goods or services. 4. Uses coercion, duress or intimidation in a transaction. 39 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Nev. Rev. Stat. § 598.0925 1 (a) Makes an assertion of scientific, clinical or quantifiable fact in an advertisement which would cause a reasonable person to believe that the assertion is true, unless, at the time the assertion is made, the person making it has possession of factually objective scientific, clinical or quantifiable evidence which substantiates the assertion; New N.H. Rev. N.H. Rev. Stat. Ann. § 358-A:2 N.H. Rev. Stat. Ann. § 358-A:2 N.H. Rev. Stat. Hampshire Stat. Ann. Ann. § 358-A:13 § 358-A:1, et II. Causing likelihood of confusion It shall be unlawful for any person to seq. or of misunderstanding as to the use any unfair method of It is the intent of the source, sponsorship, approval, or competition or any unfair or legislature that in certification of goods or services; deceptive act or practice in the any action or conduct of any trade or commerce prosecution under III. Causing likelihood of confusion within this state. this chapter, the or of misunderstanding as to courts may be affiliation, connection or association guided by the with, or certification by, another; interpretation and construction given V. Representing that goods or Section 5(a)(1) of services have sponsorship, approval, the Federal Trade characteristics, ingredients, uses, Commission Act (15 benefits, or quantities that they do U.S.C. 45(a)(1)), by not have or that a person has a the Federal Trade sponsorship, approval, status, Commission and the affiliation, or connection that such federal courts. 40 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 person does not have; VII. Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; IX. Advertising goods or services with intent not to sell them as advertised. New Jersey N.J. Stat. § This New Jersey statute broadly N.J. Stat. § 56:8-2 56:8-1, et seq. prohibits deceptive conduct without enumeration. The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice; provided, however, that nothing herein contained shall apply to the owner or 41 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 publisher of newspapers, magazines, publications or printed matter wherein such advertisement appears, or to the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher, or operator has no knowledge of the intent, design or purpose of the advertiser. New Mexico N.M. Stat. N.M. Stat. Ann. § 57-12-2 N.M. Stat. Ann. § 57-12-3 N.M. Stat. Ann. § Ann. 57-12-4 § 57-12-1, et D. "unfair or deceptive trade Unfair or deceptive trade practices seq practice" means an act specifically and unconscionable trade practices in It is the intent of the declared unlawful pursuant to the the conduct of any trade or legislature that in Unfair Practices Act [57-12-1 commerce are unlawful. construing Section 3 NMSA 1978], a false or misleading [57-12-3 NMSA oral or written statement, visual 1978] of the Unfair description or other representation Practices Act the of any kind knowingly made in courts to the extent connection with the sale, lease, possible will be rental or loan of goods or services guided by the or in the extension of credit or in the interpretations given collection of debts by a person in by the federal trade the regular course of his trade or commission and the commerce, which may, tends to or federal courts. does deceive or mislead any person and includes: (2) causing confusion or misunderstanding as to the source, sponsorship, approval or 42 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 certification of goods or services; (3) causing confusion or misunderstanding as to affiliation, connection or association with or certification by another; (5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that the person does not have; (7) representing that goods or services are of a particular standard, quality or grade or that goods are of a particular style or model if they are of another; (14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive; (15) stating that a transaction involves rights, remedies or obligations that it does not involve. N.M. Stat. Ann. § 57-12-3 43 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce are unlawful. New York N.Y. Gen. This New York statute broadly N.Y. Gen. Bus. Law § 349 Bus. Law § prohibits deceptive conduct without 349; enumeration. (a) Deceptive acts or practices in the conduct of any business, trade or N.Y. Gen. commerce or in the furnishing of any Bus. Law § service in this state are hereby 350 declared unlawful. N.Y. Gen. Bus. Law § 350 False advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful. North N.C. Gen. This North Carolina statute broadly N.C. Gen. Stat. § 75-1.1 Carolina Stat. § 75-1, et prohibits deceptive and unfair seq. conduct without enumeration. (a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful. North Dakota N.D. Cent. This North Dakota statute broadly N.D. Cent. Code § 51-15-02 Code prohibits deceptive conduct without § 51-15-01, et enumeration. The act, use, or employment by any 44 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 seq. person of any deceptive act or practice, fraud, false pretense, false promise, or misrepresentation, with the intent that others rely thereon in connection with the sale or advertisement of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is declared to be an unlawful practice. Ohio Ohio Rev. Ohio Rev. Code. Ann. Ohio Rev. Code. Ann. § 1345.02 Ohio Rev. Code. Code. Ann. § 1345.02(B): Ann. § 1345.02 (C) § 1345.01, et (A) No supplier shall commit an seq.; (1) That the subject of a consumer unfair or deceptive act or practice in In construing transaction has sponsorship, connection with a consumer division (A) of this Ohio Rev. approval, performance transaction. Such an unfair or section, the court Code Ann. § characteristics, accessories, uses, or deceptive act or practice by a shall give due 4165.01, et benefits that it does not have; supplier violates this section whether consideration and seq. it occurs before, during, or after the great weight to (2) That the subject of a consumer transaction. federal trade transaction is of a particular commission orders, standard, quality, grade, style, trade regulation prescription, or model, if it is not; (B) Without limiting the scope of rules and guides, division (A) of this section, the act or and the federal (9) That the supplier has a practice of a supplier in representing courts' sponsorship, approval, or affiliation any of the following is deceptive: interpretations of that the supplier does not have; [enumeration of examples of subsection 45 (a)(1) § 1345.03 also prohibits prohibited conduct]. of the "Federal unconscionable conduct. Trade Commission (C) In construing division (A) of this Act," 38 Stat. 717 Ohio Rev. Code Ann. § section, the court shall give due (1914), 15 U.S.C.A. 4165.02(A) consideration and great weight to 41, as amended. 45 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 federal trade commission orders, (2) Causes likelihood of confusion trade regulation rules and guides, and or misunderstanding as to the the federal courts' interpretations of source, sponsorship, approval, or subsection 45 (a)(1) of the "Federal certification of goods or services; Trade Commission Act," 38 Stat. 717 (1914), 15 U.S.C.A. 41, as (3) Causes likelihood of confusion amended. or misunderstanding as to affiliation, connection, or association with, or certification by, another; (7) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have; (9) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (11) Advertises goods or services with intent not to sell them as advertised; Oklahoma Okla. Stat. tit. Okla. Stat. tit. 15, § 753 Okla. Stat. tit. 15, § 753 15, § 751, et 46 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 seq. 2. Makes a false or misleading A person engages in a practice which representation, knowingly or with is declared to be unlawful under the reason to know, as to the source, Oklahoma Consumer Protection Act sponsorship, approval, or when, in the course of the person's certification of the subject of a business, the person: . consumer transaction; 20. Commits an unfair or deceptive 3. Makes a false or misleading trade practice as defined in Section representation, knowingly or with 752 of this title[.] reason to know, as to affiliation, connection, association with, or Okla. Stat. tit. 15, § 752 certification by another; 13. "Deceptive trade practice" means 5. Makes a false representation, a misrepresentation, omission or knowingly or with reason to know, other practice that has deceived or as to the characteristics, ingredients, could reasonably be expected to uses, benefits, alterations, or deceive or mislead a person to the quantities of the subject of a detriment of that person. Such a consumer transaction or a false practice may occur before, during or representation as to the sponsorship, after a consumer transaction is approval, status, affiliation or entered into and may be written or connection of a person therewith; oral; 7. Represents, knowingly or with 14. "Unfair trade practice" means reason to know, that the subject of a any practice which offends consumer transaction is of a established public policy or if the particular standard, style or model, practice is immoral, unethical, if it is of another; oppressive, unscrupulous or substantially injurious to consumers; 8. Advertises, knowingly or with reason to know, the subject of a consumer transaction with intent not to sell it as advertised; 47 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 29. Falsely states or implies that any person, product or service is recommended or endorsed by a named third person. Oregon Or. Rev. Stat. Or. Rev. Stat. § 646.608: Or. Rev. Stat. § 646.608 § 646.605, et seq. (b) Causes likelihood of confusion (1) A person engages in an unlawful or of misunderstanding as to the practice if in the course of the source, sponsorship, approval, or person's business, vocation or certification of real estate, goods or occupation the person does any of services. the following: . . . (c) Causes likelihood of confusion (u) Engages in any other unfair or or of misunderstanding as to deceptive conduct in trade or affiliation, connection, or commerce. association with, or certification by, another. (e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that the real estate, goods or services do not have or that a person has a sponsorship, approval, status, qualification, affiliation, or connection that the person does not have. (g) Represents that real estate, goods or services are of a particular 48 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 standard, quality, or grade, or that real estate or goods are of a particular style or model, if the real estate, goods or services are of another; (i) Advertises real estate, goods or services with intent not to provide the real estate, goods or services as advertised, or with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity. (t) Concurrent with tender or delivery of any real estate, goods or services fails to disclose any known material defect or material nonconformity. (2) A representation under subsection (1) of this section or ORS 646.607 may be any manifestation of any assertion by words or conduct, including, but not limited to, a failure to disclose a fact. Or. Rev. Stat. § 646.607 (1) Employs any unconscionable tactic in connection with selling, renting or disposing of real estate, 49 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 goods or services, or collecting or enforcing an obligation; Pennsylvania 73 Pa. Stat. 73 Pa. Stat. Ann. § 201-2(4) 73 Pa. Stat. Ann. § 201-2(4) Ann. § 201-1, et seq. (ii) Causing likelihood of confusion (xxi) Engaging in any other or of misunderstanding as to the fraudulent or deceptive conduct source, sponsorship, approval or which creates a likelihood of certification of goods or services; confusion or of misunderstanding. (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (ix) Advertising goods or services with intent not to sell them as advertised; 50 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Rhode Island R.I. Gen. R.I. Gen. Laws § 6-13.1-1 R.I. Gen. Laws § 6-13.1-2 R.I. Gen. Laws § 6- Laws 13.1-3 § 6-13.1-1, et (ii) Causing likelihood of confusion Unfair methods of competition and seq. or of misunderstanding as to the unfair or deceptive acts or practices It is the intent of the source, sponsorship, approval, or in the conduct of any trade or legislature that in certification of goods or services; commerce are declared unlawful. construing §§ 6- 13.1-1 and 6-13.1-2 (iii) Causing likelihood of confusion R.I. Gen. Laws § 6-13.1-1 due consideration or of misunderstanding as to and great weight affiliation, connection, or (6) "Unfair methods of competition shall be given to the association with, or certification by, and unfair or deceptive acts or interpretations of the another; practices" means any one or more of Federal Trade the following: . . . Commission and the (v) Representing that goods or (xii) Engaging in any other conduct federal courts services have sponsorship, approval, that similarly creates a likelihood of relating to § 5(a) of characteristics, ingredients, uses, confusion or of misunderstanding; the Federal Trade benefits, or quantities that they do (xiii) Engaging in any act or practice Commission Act. 15 not have or that a person has a that is unfair or deceptive to the U.S.C. § 45(a)(1), as sponsorship, approval, status, consumer; from time to time affiliation, or connection that he or (xiv) Using any other methods, acts amended. she does not have; or practices which mislead or deceive members of the public in a (vii) Representing that goods or material respect[.] services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (ix) Advertising goods or services with intent not to sell them as advertised; 51 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (xvi) Failure to include the brand name and or manufacturer of goods in any advertisement of the goods for sale…; (xvii) Advertising claims concerning safety, performance, and comparative price unless the advertiser, upon request by any person, the consumer council, or the attorney general, makes available documentation substantiating the validity of the claim; South S.C. Code This South Carolina statute broadly S.C. Code Ann. § 39-5-20(a) S.C. Code Ann. § Carolina Ann. § 39-5- prohibits deceptive and unfair 39-5-20(b) 10, et seq conduct without enumeration. Unfair methods of competition and unfair or deceptive acts or practices It is the intent of the in the conduct of any trade or legislature that in commerce are hereby declared construing unlawful. paragraph (a) of this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to § 5(a) (1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time 52 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 amended. South Dakota S.D. Codified This South Dakota statute broadly S.D. Codified Laws § 37-24-6 Laws prohibits deceptive conduct without § 37-24-1, et enumeration of specific acts that It is a deceptive act or practice for seq. bear on the instant complaint. any person to: (1) Knowingly act, use, or employ any deceptive act or practice, fraud, pretense, false promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise, regardless of whether any person has in fact been misled, deceived, or damaged thereby. Tennessee Tenn. Code Tenn. Code Ann. § 47-18-104(b) Ann. § 47-18- 101, et seq. (2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services. This subdivision (b)(2) does not prohibit the private labeling of goods and services; (3) Causing likelihood of confusion or misunderstanding as to affiliation, connection or association with, or certification by, another. This subdivision (b)(3) does not prohibit the private labeling of goods or services; 53 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship approval, status, affiliation or connection that such person does not have; (7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (9) Advertising goods or services with intent not to sell them as advertised; (12) Representing that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law; (19) Representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve; provided, that nothing in this subdivision (b)(19) shall be construed to alter the implied warranty of merchantability 54 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 as defined in § 47-2-314; Texas Tex. Bus. & Tex. Bus. & Com. Code § 17.46(b) Tex. Bus. & Com. Com. Code § Code § 17.44 17.41, et seq. (2) causing confusion or misunderstanding as to the source, (a) This subchapter sponsorship, approval, or shall be liberally certification of goods or services; construed and applied to promote (3) causing confusion or its underlying misunderstanding as to affiliation, purposes, which are connection, or association with, or to protect consumers certification by, another; against false, misleading, and (5) representing that goods or deceptive business services have sponsorship, approval, practices, characteristics, ingredients, uses, unconscionable benefits, or quantities which they do actions, and not have or that a person has a breaches of sponsorship, approval, status, warranty and to affiliation, or connection which the provide efficient and person does not; economical procedures to secure (7) representing that goods or such protection. services are of a particular standard, quality, or grade, or that goods are Tex. Bus. & Com. of a particular style or model, if Code § 17.46 (c) they are of another; (1) It is the intent of (9) advertising goods or services the legislature that with intent not to sell them as in construing advertised; Subsection (a) of this section in suits 55 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (12) representing that an agreement brought under confers or involves rights, remedies, Section 17.47 of this or obligations which it does not subchapter the have or involve, or which are courts to the extent prohibited by law; possible will be guided by (20) representing that a guaranty or Subsection (b) of warranty confers or involves rights this section and the or remedies which it does not have interpretations given or involve, provided, however, that by the Federal Trade nothing in this subchapter shall be Commission and construed to expand the implied federal courts to warranty of merchantability as Section 5(a)(1) of defined in Sections 2.314 through the Federal Trade 2.318 and Sections 2A.212 through Commission Act [15 2A.216 to involve obligations in U.S.C.A. § excess of those which are 45(a)(1)]. appropriate to the goods; (2) In construing this subchapter the court shall not be prohibited from considering relevant and pertinent decisions of courts in other jurisdictions. Utah Utah Code Utah Code Ann. § 13-11-4.(2): Utah Code Ann. § 13-11-4 Ann. § 13-11-1, et (a) indicates that the subject of a (1) A deceptive act or practice by a seq. consumer transaction has supplier in connection with a sponsorship, approval, performance consumer transaction violates this 56 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Utah Code characteristics, accessories, uses, or chapter whether it occurs before, Ann. § 13- benefits, if it has not; during, or after the transaction. 11a-1, et seq. (b) indicates that the subject of a (2) Without limiting the scope of consumer transaction is of a Subsection (1), a supplier commits a particular standard, quality, grade, deceptive act or practice if the style, or model, if it is not; supplier knowingly or intentionally: [enumerating examples of deceptive (e) indicates that the subject of a practices]. consumer transaction has been supplied in accordance with a Utah Code Ann. § 13-11-2 previous representation, if it has not; This act shall be construed liberally to promote the following policies: . . (i) indicates that the supplier has a. sponsorship, approval, or affiliation the supplier does not have; (4) to make state regulation of consumer sales practices not (j) inconsistent with the policies of the (i) indicates that a consumer Federal Trade Commission Act transaction involves or does not relating to consumer protection; involve a warranty, a disclaimer of warranties, particular warranty (5) to make uniform the law, terms, or other rights, remedies, or including the administrative rules, obligations, if the representation is with respect to the subject of this act false; or among those states which enact (ii) fails to honor a warranty or a similar laws[.] particular warranty term; Utah Code Ann. § 13-11a-3 (s) solicits or enters into a consumer • (1) Deceptive trade practices transaction with a person who lacks occur when, in the course of a the mental ability to comprehend person's business, vocation, or the nature and consequences of: occupation that person. . . 57 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (i) the consumer transaction; or [enumerating deceptive practices, (ii) the person's ability to benefit including:] from • (t) engages in any other the consumer transaction; conduct which similarly creates a likelihood of confusion or of Utah Code Ann. § 13-11-5 misunderstanding. (1) An unconscionable act or practice by a supplier in connection with a consumer transaction violates this act whether it occurs before, during, or after the transaction. Utah Code Ann. § 13-11a-3 (b) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (c) causes likelihood of confusion or of misunderstanding as to affiliation, connection, association with, or certification by another; (e) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have; 58 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 (g) represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (i) advertises goods or services or the price of goods and services with intent not to sell them as advertised Vermont Vt. Stat. Ann. This Vermont statute broadly Vt. Stat. Ann. tit. 9, § 2453 Vt. Stat. Ann. tit. 9, tit. 9, § 2451, prohibits deceptive and unfair § 2453 et seq. conduct without enumeration. (a) Unfair methods of competition in commerce and unfair or deceptive (b) It is the intent of acts or practices in commerce are the Legislature that hereby declared unlawful. in construing subsection (a) of this section, the courts of this State will be guided by the construction of similar terms contained in Section 5(a)(1) of the Federal Trade Commission Act as from time to time amended by the Federal Trade Commission and the courts of the United States. 59 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Virginia Va. Code Va. Code Ann. § 59.1-200(A) Va. Code Ann. § 59.1-200(A) Ann. § 59.1- 196, et seq. 2. Misrepresenting the source, 14. Using any other deception, sponsorship, approval, or fraud, false pretense, false promise, certification of goods or services; or misrepresentation in connection with a consumer transaction; 3. Misrepresenting the affiliation, connection, or association of the supplier, or of the goods or services, with another; 5. Misrepresenting that goods or services have certain quantities, characteristics, ingredients, uses, or benefits; 6. Misrepresenting that goods or services are of a particular standard, quality, grade, style, or model; 8. Advertising goods or services with intent not to sell them as advertised, or with intent not to sell at the price or upon the terms advertised. 14. Using any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction; Washington Wash. Rev. This Washington statute broadly Wash. Rev. Code § 19.86.020 Wash. Rev. Code 60 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Code § prohibits deceptive and unfair § 19.86.920 19.86.010, et conduct without enumeration. Unfair methods of competition and seq. unfair or deceptive acts or practices The legislature in the conduct of any trade or hereby declares that commerce are hereby declared the purpose of this unlawful. act is to complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition. It is the intent of the legislature that, in construing this act, the courts be guided by final decisions of the federal courts and final orders of the federal trade commission interpreting the various federal statutes dealing with the same or similar matters and that in deciding whether conduct restrains or 61 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 monopolizes trade or commerce or may substantially lessen competition, determination of the relevant market or effective area of competition shall not be limited by the boundaries of the state of Washington. To this end this act shall be liberally construed that its beneficial purposes may be served. It is, however, the intent of the legislature that this act shall not be construed to prohibit acts or practices which are reasonable in relation to the development and preservation of business or which are not injurious to the public interest, nor be construed to authorize those acts 62 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 or practices which unreasonably restrain trade or are unreasonable per se. West Virginia W. Va. Code W. Va. Code § 46A-6-102(7) W. Va. Code § 46A-6-102(7) W. Va. Code § § 46A-6-101, 46A-6-101 et seq. (B) Causing likelihood of confusion (L) Engaging in any other conduct or of misunderstanding as to the which similarly creates a likelihood (1) The Legislature source, sponsorship, approval or of confusion or of misunderstanding; hereby declares that certification of goods or services; the purpose of this W. Va. Code § 46A-6-104 article is to (C) Causing likelihood of confusion complement the or of misunderstanding as to Unfair methods of competition and body of federal law affiliation, connection or association unfair or deceptive acts or practices governing unfair with or certification by another; in the conduct of any trade or competition and commerce are hereby declared unfair, deceptive (E) Representing that goods or unlawful. and fraudulent acts services have sponsorship, approval, or practices in order characteristics, ingredients, uses, to protect the public benefits or quantities that they do and foster fair and not have or that a person has a honest competition. sponsorship, approval, status, It is the intent of the affiliation or connection that he Legislature that, in does not have; construing this article, the courts be (G) Representing that goods or guided by the services are of a particular standard, policies of the quality or grade, or that goods are of Federal Trade a particular style or model if they Commission and are of another; interpretations given by the Federal Trade (I) Advertising goods or services Commission and the 63 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 with intent not to sell them as federal courts to advertised; Section 5(a)(1) of the Federal Trade (M) The act, use or employment by Commission Act (15 any person of any deception, fraud, U.S.C. § 45(a)(1)), false pretense, false promise or as from time to time misrepresentation, or the amended, and to the concealment, suppression or various other federal omission of any material fact with statutes dealing with intent that others rely upon such the same or similar concealment, suppression or matters. To this end, omission, in connection with the this article shall be sale or advertisement of any goods liberally construed or services, whether or not any so that its beneficial person has in fact been misled, purposes may be deceived or damaged thereby; served. Wisconsin Wis. Stat. This Wisconsin statute broadly Wis. Stat. Ann. § 100.18 Ann. § 100.18 prohibits deceptive and unfair conduct without enumeration. (1) No person, firm, corporation or association, or agent or employee thereof, with intent to sell, distribute, increase the consumption of or in any wise dispose of any real estate, merchandise, securities, employment, service, or anything offered by such person, firm, corporation or association, or agent or employee thereof, directly or indirectly, to the public for sale, hire, use or other distribution, or with intent to induce the public in any manner to enter into any contract or 64 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 obligation relating to the purchase, sale, hire, use or lease of any real estate, merchandise, securities, employment or service, shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or television station, or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to such purchase, sale, hire, use or lease of such real estate, merchandise, securities, service or employment or to the terms or conditions thereof, which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading. Wyoming Wyo. Stat. Wyo. Stat. Ann. § 40-12-105(a) Wyo. Stat. Ann. § 40-12-105(a) Ann. § 40-12- 101, et seq. (i) Represents that merchandise has (xv) Engages in unfair or deceptive 65 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 a source, origin, sponsorship, acts or practices; approval, accessories or uses it does not have; (ii) Represents that he has a sponsorship, approval or affiliation he does not have; (iii) Represents that merchandise is of a particular standard, grade, style or model, if it is not; (viii) Represents that a consumer transaction involves a warranty, a disclaimer of warranties, particular warranty terms, or other rights, remedies or obligations if the representation is false; (x) Advertises merchandise with intent not to sell it as advertised; 66 Appendix D (False Advertising/Deceptive Practice Laws by State), 1st Consol. Compl., In re JUUL Prods. Lit. 50 Appendix 2 50 STATE STATUTES ADOPTING U.C.C. § 2-313'S PROVISIONS ON EXPRESS WARRANTIES STATE STATUTE ADOPTING CITATION(S) REGARDING RELIANCE U.C.C. § 2-313'S PROVISION ON EXPRESS WARRANTIES Alaska Alaska Stat. § 45.02.313 Cusack v. Abbott Labs., Inc., No. 3:16-CV-00166-SLG, 2017 WL 3688149, at *4 (D. Alaska Jan. 17, 2017) (but relying on cases that do not appear to require reliance). Arizona Ariz. R.S. § 47-2313 Raatz v. Dealer Trade Inc., 261 F. Supp. 3d 997, 1000 (D. Ariz. 2017) (referring to plaintiff's reliance as satisfying basis-of-the- bargain requirement, though not clarifying what lesser showing might suffice). Arkansas Ark. Code Ann. § 4-2-313 Ciba–Geigy Corporation v. Alter, 834 S.W.2d 136, 147 (1992); Brooks v. Remington Arms Co., Inc., No. 1:09-CV-01054, 2010 WL 6971894, at *5 (W.D. Ark. Oct. 27, 2010), report and recommendation adopted sub nom. Rodgers v. Remington Arms Co., No. 09-CV-1054, 2011 WL 2746150 (W.D. Ark. July 12, 2011). California Cal. U. Com. Code § 2313 Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 546 (C.D. Cal. 2012). But see McVicar v. Goodman Global, Inc., 1 F. Supp. 3d 1044, 1057 (C.D. Cal. 2014) (citing Weinstat v. Dentsply Intern., Inc., 103 Cal. Rptr. 3d 614, 625–27 (Cal. Ct. App. 2010)); Hauter v. Zogarts, 534 P.2d 377, 383 (Cal. 1975). Colorado Colo. Rev. Stat. § 4-2-313 Porcell v. Lincoln Wood Products, Inc., 713 F. Supp. 2d 1305 (D.N.M. 2010) (citing Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 208 (Colo. 1984)). 50 Colorado Colo. Rev. Stat. § 4-2-313 Porcell v. Lincoln Wood Products, Inc., 713 F. Supp. 2d 1305 (D.N.M. 2010) (citing Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 208 (Colo. 1984)). But see Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 645 (10th Cir. 1991) (concluding that Colorado law does not require reliance). Connecticut Conn. Gen. Stat. § 42a-2-313 Criteria, II Ltd. v. Co-Opportunity Precision Wood Prod., Inc., No. CV000803309S, 2001 WL 1178333, at *1 (Conn. Super. Ct. Aug. 30, 2001). But see Pegasus Mgmt. Co. v. Lyssa, Inc., 995 F. Supp. 43, 45 (D. Mass. 1998) (Conn. law). Delaware Del. Code Ann. Tit. 6, § 2- DiIenno v. Libbey Glass Div., Owens–Illinois, Inc., 668 F. Supp. 313 373, 376 (D. Del. 1987). Florida Fla. Stat. § 672.313 Thursby v. Reynolds Metals Co., 466 So. 2d 245, 250 (Fla. Dist. Ct. App. 1984); Fitzpatrick v. Gen. Mills, Inc., 263 F.R.D. 687, 695 (S.D. Fla. 2010), vacated on other grounds, 635 F.3d 1279 (11th Cir. 2011). But see Lennar Homes, Inc. v. Masonite Corp., 32 F. Supp. 2d 396, 399–400 (E.D. La. 1998) (predicting that Florida courts would not require reliance for express warranty claims); S. Broad. Grp., LLC v. Gem Broad., Inc., 145 F. Supp. 2d 1316, 1324 (M.D. Fla. 2001) (same), aff'd sub nom. S. Broad. v. GEM Broad., 49 F. App'x 288 (Table) (11th Cir. 2002). Iowa Iowa Code § 554.2313 Sharp v. Tamko Roofing Products, Inc., 695 N.W.2d 43 (Table), 2004 WL 2579638, at *2 (Iowa Ct. App. 2004). Kentucky K.R.S. § 355.2-313 Overstreet v. Norden Labs., Inc., 669 F.2d 1286, 1288 (6th Cir. 1982). But see Prima Int'l Trading v. Wyant, 68 U.C.C. Rep. Serv. 2d 279 (E.D. Ky. 2009) (quoting U.C.C. comments that "no particular 2. . . need be shown in order to weave [statements] into the reliance fabric of the agreement."). 50 Maine Me. Rev. Stat. tit. 11, § 2-313 Me. Farmers Exch. v. McGillicuddy, 697 A.2d 1266, 1268 (Me. 1997). Maryland Md. Code Ann., Com. Law Rite Aid Corp. v. Levy-Gray, 894 A.2d 563 (Md. 2006) (concluding § 2-313 that a jury could find that consumer relied on statement and thus it constituted a warranty under Maryland law). Massachusetts Mass. Ann. Laws ch. 106, Hiller v. DaimlerChrysler Corp., No. 02-681, 2007 WL 3260199, at § 2-313 *4 (Mass. Super. Sept. 25, 2007). Michigan Mich. Comp. Laws Monte v. Toyota Motor Corp., 46 U.C.C. Rep. Serv. 2d 967 (Mich. § 440.2313 Ct. App. 2001) (final footnote states that plaintiff's claim would fail for lack of reliance). But see Fire Ins. Exch. v. Electrolux Home Prods., 61 U.C.C. Rep. Serv. 2d 181 (E.D. Mich. 2006) ("[T]he Court finds that the Michigan statute does not expressly require reliance."). Mississippi Miss. Code Ann. § 75-2-313 Cf. Austin v. Will-Burt Co., 361 F.3d 862 (5th Cir. 2004) (granting summary judgment because no express warranty existed under Mississippi law without proof of reliance on advertisements); In re FEMA Trailer Formaldehyde Prod. Liab. Litig., No. MDL 07-1873, 2008 WL 5217594, at *8 (E.D. La. Dec. 12, 2008) (denying motion to dismiss express warranty claim under Mississippi law because allegation that plaintiffs relied on unspecified "express factual representations" sufficed). But cf. Johnson v. Michaels of Or. Co., No. 1:07CV291-M-D, 2009 WL 458570, at *1–2 (N.D. Miss. Feb. 23, 2009) (recognizing that the Mississippi Supreme Court permitted liability even when plaintiff did not read warranty in Forbes v. Gen. Motors Corp., 935 So.2d 869, 876–78 (Miss. 2006)). Montana Mont. Code Ann. § 30-2-313 Woodahl v. Matthews, 639 P.2d 1165, 1168 (Mont. 1982) (relying on a 1915, pre-U.C.C. case). 3 50 But see Glacier Gen. Assur. Co. v. Cas. Indem. Exch., 435 F. Supp. 855, 860 (D. Mont. 1977). Nebraska Neb. Rev. Stat. § 2-313 Hillcrest Country Club v. N.D. Judds Co., 461 N.W.2d 55, 61 (Neb. 1990). North Carolina N.C. Gen. Stat. § 25-2-313 Prichard Enters., Inc. v. Adkins, 858 F. Supp. 2d 576, 584–585 (E.D.N.C. 2012) (citing Pake v. Byrd, 286 S.E.2d 588, 553 (N.C. Ct. App. 1982) for principle that reliance is required, but also noting that "the element of reliance can often be inferred from allegations of mere purchase or use. . .," quoting Bernick v. Jurden, 293 S.E.2d 405, 413 (N.C. 1982)). Ohio Ohio Rev. Code Ann. Nat'l Mulch & Seed, Inc. v. Rexius Forest By-Products Inc., 62 § 1302.26 U.C.C. Rep. Serv. 2d 371, 381 n.16 (S.D. Ohio 2007) (effectively requiring reliance although acknowledging that reliance is not a formal element of express warranty claims under Ohio law). But see Norcold, Inc. v. Gateway Supply Co., 798 N.E.2d 618, 623– 24 (Ohio Ct. App. 2003) (rejecting reliance requirement). Oklahoma Okla. Stat. tit. 12A, § 2-313 Speed Fastners, Inc. v. Newsom, 382 F.2d 395, 397 (10th Cir.1967) (Oklahoma law). Oregon Or. Rev. Stat. § 72.3130 Newman v. Tualatin Dev. Co., 597 P.2d 800, 803 (Or. 1979) (finding, at class certification stage, that plaintiffs' claims for breach of express warranty required individual determinations of reliance where warranty allegedly was made in a sales brochure given to all purchasers); cf. Strawn v. Farmers Ins. Co. of Oregon, 258 P.3d 1199, 1213 (Or. 2011) (distinguishing Newman and finding that determination of reliance in class action for fraud was susceptible to common evidence where promise appeared in a written insurance contract). Rhode Island R.I. Gen. Laws § 6A-2-313 Ralston Dry-Wall Co. v. United States Gypsum Co., 740 F. Supp. 926 (D.R.J. 1990) (stating that express warranty requires reliance under Rhode Island law, but citing Thomas v. Amway Corp., 488 4 50 Rhode Island R.I. Gen. Laws § 6A-2-313 Ralston Dry-Wall Co. v. United States Gypsum Co., 740 F. Supp. 926 (D.R.J. 1990) (stating that express warranty requires reliance under Rhode Island law, but citing Thomas v. Amway Corp., 488 A.2d 716, 720 (R.I. 1985), which relied on pre-U.C.C. caselaw), aff'd on other grounds, 926 F.2d 99 (1st Cir. 1991). South Dakota S.D. Codified Laws § 57A-2- Schmaltz v. Nissen, 431 N.W.2d 657, 660 (S.D. 1988). 313 But see Cmty. Television Servs., Inc. v. Dresser Indus., Inc., 586 F.2d 637, 640 (8th Cir. 1978) (defendant's provision of a catalog to the plaintiff must be considered basis of the bargain absent clear affirmative proof to the contrary). Tennessee Tenn. Code Ann. § 47-2-313 Coffey v. Dowley Mfg., Inc., 187 F. Supp. 2d 958, 969 (M.D. Tenn. 2002), aff'd, 89 F. App'x 927 (6th Cir. 2003); Smith v. Bearfield, 950 S.W.2d 40,41 (Tenn. Ct. App. 1997). Texas Tex. Bus. & Com. Code PPG Indus., Inc. v. JMB/Houston § 2.313 Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 99 (Tex. 2004). Utah Utah Code Ann. § 70A-2-313 Mgmt. Comm. of Graystone Pines Homeowners Ass'n on Behalf of Owners of Condominiums v. Graystone Pines, Inc., 652 P.2d 896, 900 (Utah 1982). Washington Wash. Rev. Code § 62A.2- Reece v. Good Samaritan Hosp., 953 P.2d 117, 123 (Wash. Ct. App. 313 1998). But cf. Baughn v. Honda Motor Co., 727 P.2d 655, 669 (Wash. 1986)Plaintiffs' 49 states have adopted U.C.C. § 2-313, which governs (reliance unnecessary but buyer express warranty must claims. be aware Some states,ofhowever, seller's statement). Wyoming arguably Wyo. require a showing of Stat. Ann.to§34.1-2-313 reliance McLaughlin demonstrate that v. Michelin the warranty Tire of was the basis Corp., 778 P.2d the bargain 59, 90 the between (Wyo. 1989). warrantor and the consumer. See, e.g., In re Rust-Oleum Restore Mktg., Sales Practices & Prod. Liab. Litig., 155 F. Supp. 3d 772, 808 (N.D. Ill. 2016) (grouping states between those that arguably require reliance and those that do not); see also Keegan v. 5 50 Am. Honda Motor Co., 284 F.R.D. 504, 546 (C.D. Cal. 2012); In re Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig., No. 1:14-CV-3722 JBS-JS, 2015 WL 4591236, at *25 (D.N.J. July 29, 2015) (discussing express warranty requirements and finding that New York and Ohio do not require reliance but Utah does). Plaintiffs do not believe any other distinction between express warranty law is likely to impact the Court's analysis materially for purposes of Rule 12 briefing.1 STATE THAT MAY REQUIRE RELIANCE FOR EXPRESS WARRANTY CLAIMS STATES THAT DO NOT REQUIRE RELIANCE FOR EXPRESS WARRANTY CLAIMS STATE STATUTE ADOPTING CITATION(S) REGARDING RELIANCE U.C.C. § 2 313'S PROVISION ON 1 Although pre-suit notice requirements for express warranty claims vary by state, notice is a question of fact for the jury and inappropriate for resolution on Rule 12 motions. Rust-Oleum, 155 F. Supp. 3d at 801–02 (collecting cases); Caterpillar, 2015 WL 4591236, at *28. 6 50 EXPRESS WARRANTIES Alabama Ala. Code § 7-2-313 Neff v. Kehoe, 708 F.2d 639, 644 (11th Cir. 1983) (Ala. law); Massey-Ferguson, Inc. v. Laird, 432 So. 2d 1259 (Ala. 1983). Georgia Ga. Code Ann. § 11-2-313 Horn v. Boston Scientific Neuromodulation Corp., No. Civ. 409– 074, 2011 WL 3893812, at *11 (S.D.Ga. Aug.26, 2011). Hawaii Haw. Rev. Stat. § 490:2-313 Torres v. Northwest Eng'g Co., 949 P.2d 1004, 1013 (1997). Idaho Idaho Code § 28-2-313 Keller v. Inland Metals All Weather Conditioning, Inc., 76 P.3d 977, 981 (Idaho 2003). Illinois 810 Ill. Comp. Stat. 5/2-313 Felley v. Singleton, 705 N.E.2d 930, 934 (Ill. App. Ct. 1999) (holding that reliance is not required, and acknowledging but disagreeing with opposite statement in Coryell v. Lombard LincolnMercury Merkur, Inc., 544 N.E.2d 1154, 1158 (Ill. App. Ct. 1989)). But see Pressalite Corp. v. Matsushita Elec. Corp., 50 U.C.C. Rep. Serv. 2d 410 (N.D. Ill. 2003) (citing Coryell on reliance). Indiana Ind. Code Ann. § 26-1-2-313 Carpetland U.S.A. v. Payne, 536 N.E.2d 306, 308 (Ind. Ct. App. 1989). Kansas Kan. Stat. Ann. § 84-2-313 Unified Sch. Dist. No. 500 v. U.S. Gypsum Co., 788 F. Supp. 1173, 1177 (D. Kan. 1992) (citing Young & Cooper, Inc. v. Vestring, 521 P.2d 281, 291 (Kan. 1974)). But see Land v. Roper Corp., 531 F.2d 445, 448–49 (10th Cir. 1976) (holding that reliance is required, but relying on primarily pre-U.C.C. sources). Minnesota Minn. Stat. § 336.2-313 In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 619 (8th Cir. 2011) (citing Peterson v. Bendix Home Sys., Inc., 318 N.W.2d 50, 52–53 (Minn. 1982) (listing elements of warranty claims without reliance)); Drobnak v. Andersen Corp., 67 U.C.C. Rep. Serv. 2d 487 (D. Minn. 2008) (distinguishing Hendricks v. 7 50 Callahan, 972 F.2d 190, 194 (8th Cir. 1992), which required reliance for common-law warranty claims), aff'd on other grounds, 561 F.3d 778 (8th Cir. 2009). Missouri Mo. Rev. Stat. § 400.2-313 lnterco, Inc. v. Randustrial Corp., 533 S.W.2d 257, 261 (Mo. Ct. App. 1976) (concluding that the U.C.C. had abandoned the concept of reliance, but noting that a brochure or advertisement must at least have been read to have been part of the basis of the bargain); Power Soak Sys., Inc. v. Emco Holdings, Inc., 482 F. Supp. 2d 1125, 1134 (W.D. Mo. 2007) (concluding that no reliance is required and citing Interco). Nevada Nev. Rev. Stat. § 104.2313 Allied Fid. Ins. Co. v. Pico, 656 P.2d 849, 850 (Nev. 1983). New Hampshire N.H. Rev. Stat. Ann. § 382- Werner v. Montana, 378 A.2d 1130, 1136 (N.H. 1977); cf. A:2-313 Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 891 A.2d 477, 502 (N.H. 2002) (adopting an intermediate approach in which plaintiff need not show reliance but must have been aware of the affirmation of fact or promise during the bargaining process). New Jersey N.J. Stat. § 12A:2-313 Smith v. Merial Ltd., No. CIV. 10-439, 2011 WL 2119100, at *7 (D.N.J. May 26, 2011). New Mexico N.M. Stat. Ann. § 55-2-313 Porcell v. Lincoln Wood Prods., Inc., 713 F. Supp. 2d 1305, 1318–19 (D.N.M. 2010). North Dakota N.D. Cent. Code, § 41-02-30 Cf. Alligood v. Taurus Int'l Mfg., Inc., No. CV 306-003, 2009 WL 8387645, at *4 (S.D. Ga. Mar. 4, 2009) ("the courts of North Dakota have not clearly articulated a position on either privity or reliance"). Pennsylvania 13 Pa. Con. Stat. § 2313 Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 24–25 (Pa. 2011). South Carolina S.C. Code Ann. § 36-2-313 Jones v. Ram Med., Inc., 807 F. Supp. 2d 501, 508 (D.S.C. 2011). Vermont Vt. Stat. Ann. Tit. 9A, § 2- Allen v. Am. Honda Motor Co., 264 F.R.D. 412, 430 (N.D. Ill. 8 50 313 2009), rev'd on other grounds, 600 F.3d 813 (7th Cir. 2010) (stating that Vermont does not require reliance without analysis); Alligood v. Taurus Int'l Mfg., Inc., No. CV 306-003, 2009 WL 8387645, at *4 (S.D. Ga. Mar. 4, 2009) (noting plaintiffs' representation that Vermont does not require reliance without analysis). Virginia Va. Code Ann. § 8.2-313 Martin v. Am. Med. Sys., Inc., 116 F.3d 102 (4th Cir. 1997) (citing Daughtrey v. Ashe, 413 S.E.2d 336, 338 (Va. 1992)); Yates v. Pitman Mfg., Inc., 5 14 S.E.2d 605, 607 (Va. 1999). West Virginia W. Va. Code § 46-2-313 Michael v. Wyeth, LLC, No. CIV.A. 2:04-0435, 2011 WL 2150112, at *8 (S.D. W. Va. May 25, 2011) (predicting that West Virginia courts would create a rebuttable presumption that a seller's affirmations relating to goods are part of the basis of the bargain); Allen v. Am. Honda Motor Co., 264 F.R.D. 412, 430 (N.D. Ill. 2009), rev'd on other grounds, 600 F.3d 813 (7th Cir. 2010) (stating that West Virginia does not require reliance without analysis). Wisconsin Wis. Stat. § 402.313 Ewers v. Eisenzopf, 276 N.W.2d 802, 805 (Wis. 1979). But see Selzer v. Brunsell Bros., Ltd., 652 N.W.2d 806, 811 (Wis. Ct. App. 2002) (listing reliance as an element, but citing only a case under a pre-U.C.C. statute that explicitly required reliance). 9 50 Appendix 3 50 STATE STATUTES ADOPTING U.C.C. § 2-314's PROVISIONS ON IMPLIED WARRANTIES 49 states have adopted U.C.C. § 2-314, which governs Plaintiffs' implied warranty claims. Some states, however, require privity of contract in order to recover for economic loss. See, e.g., In re Rust-Oleum Restore Mktg., Sales Practices & Prod. Liab. Litig., 155 F. Supp. 3d 772, 806 (N.D. Ill. 2016) (grouping states between those that require privity and those that do not).1 Plaintiffs do not believe any other distinction between implied warranty law is likely to impact the Court's analysis materially. STATE STATUTES REQUIRING PRIVITY OF CONTRACT STATE STATUTE ADOPTING U.C.C. § 2- CITATIONS AND NOTES REGARDING PRIVITY 314'S PROVISION ON IMPLIED REQUIREMENT WARRANTIES Alabama Ala. Code § 7-2-314 Rampey v. Novartis Consumer Health, Inc., 867 So. 2d 1079, 1089 (privity requirement for cases of economic injury). Arizona Ariz. R.S. § 47-2314 See Adelman v. Rheem Mfg. Co., No. 2:15-CV-00190 JWS, 2015 WL 4874412, at *4 (D. Ariz. Aug. 14, 2015) (citing Flory v. Silvercrest Indus., 633 P.2d 383, 387 (Ariz. 1981)). California Cal. U. Com. Code § 2314 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023–24 (9th Cir. 2008) (but an exception "when the plaintiff relies on written labels or advertisements of a manufacturer"). Connecticut Conn. Gen. Stat. § 42a-2-314 Source One Fin. Corp. v. Rd. Ready Used Cars, Inc., No. CV136034341S, 2014 WL 1013121, at *6 (Conn. Super. Ct. Feb. 14, 2014). Florida Fla. Stat. § 672.314 Brisson v. Ford Motor Co., 349 F. App'x 433 (11th Cir. 2009) (Fla. law). 1 Plaintiffs respectfully note that their research regarding the states that require privity varies slightly from the list provided in Rust-Oleum. In particular, caselaw suggests that Arizona, Connecticut, Kentucky, Oregon, and Wisconsin require privity, while Indiana does not. 50 STATE STATUTE ADOPTING U.C.C. § 2- CITATIONS AND NOTES REGARDING PRIVITY 314'S PROVISION ON IMPLIED REQUIREMENT WARRANTIES Georgia Ga. Code Ann. § 11-2-314 Gill v. Blue Bird Body Co., 147 F. App'x 807, 809 (11th Cir. 2005). Idaho Idaho Code § 28-2-314 Am. W. Enterprises, Inc. v. CNH, LLC, 316 P.3d 662, 668 (Idaho 2013); Nelson v. Anderson Lumber Co., 99 P.3d 1092, 1101 (Idaho Ct. App. 2004). Illinois 810 Ill. Comp. Stat. 5/2-314 Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516 (7th Cir. 2003); but see Rothe v. Maloney Cadillac, Inc., 518 N.E.2d 1028 (Ill. 1988). Kentucky K.R.S. § 355.2-314 Compex Int'l Co. v. Taylor, 209 S.W.3d 462, 465 (Ky. 2006) ("[T]he legislature expressly established the privity requirement"). North Carolina N.C. Gen. Stat. § 25-2-314 Energy Inv'rs Fund, L.P. v. Metric Constructors, Inc., 525 S.E.2d 441, 446 (N.C. 2000). Ohio Ohio Rev. Code Ann. § 1302.27 Curl v. Volkswagen of Am., Inc., 871 N.E.2d 1141 (Ohio 2007). Oregon Or. Rev. Stat. § 72.3140 Davis v. Homasote Company, 574 P.2d 1116 (Or. 1978). Tennessee Tenn. Code Ann. § 47-2-314 First Nat'l Bank v. Brooks Farms, 821 S.W.2d 925 (Tenn. 1991). Washington Wash. Rev. Code § 62A.2-314 Baughn v. Honda Motor Co., 727 P.2d 655, 669 (Wash. 1986). Wisconsin Wis. Stat. § 402.314 St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623 (7th Cir. 2008). 2 50 STATE STATUTES NOT REQUIRING PRIVITY OF CONTRACT STATE STATUTE ADOPTING U.C.C. § 2- CITATION REGARDING PRIVITY REQUIREMENT 314'S PROVISION ON IMPLIED WARRANTIES Alaska Alaska Stat. § 45.02.314 Morrow v. New Moon Homes, Inc., 548 P.2d 279, 289-91 (Alaska 1976) (cited in Czuchaj v. Conair Corp., No. 13-CV- 1901-BEN (RBB), 2016 WL 1240391, at *2 (S.D. Cal. Mar. 30, 2016)). Arkansas Ark. Code Ann. § 4-2-314 Mack Trucks of Arkansas, Inc. v. Jet Asphalt & Rock Co., 437 S.W.2d 459, 462 (Ark. 1969). Delaware Del. Code Ann. Tit. 6, § 2-314 S&R Assocs., L.P. v. Shell Oil Co., 725 A.2d 431, 437 (Del. Super. Ct. 1998). Hawaii Haw. Rev. Stat. § 490:2-314 Am. Auto. Ins. Co. v. Hawaii Nut & Bolt, Inc., No. CV 15- 00245 ACK-KSC, 2016 WL 8677213, at *9 (D. Haw. Dec. 16, 2016). Indiana Ind. Code Ann. § 26-1-2-314 Hyundai Motor America v. Goodin, 822 N.E.2d 947, 959 (Ind. 2005). Iowa Iowa Code § 554.2314 Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 762 N.W.2d 463, 476 (Iowa 2009). Kansas Kan. Stat. Ann. § 84-2-314 Gonzalez v. Pepsico, Inc., 489 F. Supp. 2d 1233, 1244 (D. Kan. 2007). Maine Me. Rev. Stat. tit. 11, § 2-314 Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1147 n.4 (Me. 1983). Maryland Md. Code Ann., Com. Law § 2-314 Pulte Home Corp. v. Parex, Inc., 923 A.2d 971, 999 (Ct. Spec. App. Md. 2007). Massachusetts Mass. Ann. Laws ch. 106, § 2-314 Jacobs v. Yahama Motor Corp., 649 N.E.2d 758, 762 (Mass. 1995). Michigan Mich. Comp. Laws § 440.2314 Cova v. Harley Davidson Motor Co., 182 N.W.2d 800, 802, 804 (Mich. 1995). Minnesota Minn. Stat. § 336.2-314 Minn. Mining & Mfg. Co. v. Nishika Ltd., 565 N.W.2d 16, 19– 21 (Minn. 1997). Mississippi Miss. Code Ann. § 75-2-314 Watson Quality Ford Inc. v. Casanova, 999 So.2d 830, 845 3 50 STATE STATUTE ADOPTING U.C.C. § 2- CITATION REGARDING PRIVITY REQUIREMENT 314'S PROVISION ON IMPLIED WARRANTIES (Miss. 2009). Missouri Mo. Rev. Stat. § 400.2-314 Smith v. Old Warson Development Co., 479 S.W.2d 795, 798 (Mo. 1972) (citing Morrow v. Caloric Appliance Corp., 372 S.W.2d 41, 55-56 (Mo. 1963) (en banc)). Montana Mont. Code Ann. § 30-2-314 Whitaker v. Farmhand, Inc., 567 P.2d 916 (Mont. 1977); Plant Food Co-op v. Wolfkill Feed and Fertilizer 633 F.2d 155 (9th Cir. 1980). Nebraska Neb. Rev. Stat. § 2-314 Peterson v. N. Am. Plant Breeders, 354 N.W.2d 625 (Neb. 1984). Nevada Nev. Rev. Stat. § 104.2314 Cosgriff Neon Co. v. Mattheus, 371 P.2d 819, 820 (Nev. 1962). New Hampshire N.H. Rev. Stat. Ann. § 382-A:2-314 Lempke v. Dagenais, 130 N.H. 782, 788, 547 A.2d 290, 294 (N.H. 1988). New Jersey N.J. Stat. § 12A:2-314 Spring Motors Distributors, Inc. v. Ford Motor Co., 489 A.2d 660, 663 (N.J. 1985). New Mexico N.M. Stat. Ann. § 55-2-314 Badilla v. Wal-Mart Stores E. Inc., 357 P.3d 936, 940 (N.M. 2015). North Dakota N.D. Cent. Code, § 41-02-31 Hagert v. Hatton Commodities, Inc., 350 N.W.2d 591 (N.D.1984); Air Heaters, Inc. v. Johnson Electric, Inc., 258 N.W.2d 649 (N.D.1977). Oklahoma Okla. Stat. tit. 12A, § 2-314 Old Albany Estates, Ltd. v. Highland Carpet Mills, Inc., 604 P.2d 849, 852 (Okl. 1979). Pennsylvania 13 Pa. Con. Stat. § 2314 Spagnol Enterprises, Inc. v. Digital Equip. Corp., 568 A.2d 948, 951 (Pa. 1989). Rhode Island R.I. Gen. Laws § 6A-2-314 Rousseau v. K.N. Const., Inc., 727 A.2d 190, 193 (R.I. 1999). South Carolina S.C. Code Ann. § 36-2-314 JKT Co. v. Hardwick, 265 S.E.2d 510, 512 (S.C. 1980). South Dakota S.D. Codified Laws § 57A-2-314 Horizons, Inc. v. Avco Corp., 551 F. Supp. 771 (D.S.D. 1982), affirmed in part, reversed in part 714 F.2d 862 (8th Cir. 1983). Texas Tex. Bus. & Com. Code § 2.314 Church & Dwight Co., Inc. v. Huey, 961 S.W.2d 560 (Tex. Ct. 4 50 STATE STATUTE ADOPTING U.C.C. § 2- CITATION REGARDING PRIVITY REQUIREMENT 314'S PROVISION ON IMPLIED WARRANTIES App. 1997). Utah Utah Code Ann. § 70A-2-314 Utah Code Ann. § 70A-2-318 Vermont Vt. Stat. Ann. Tit. 9A, § 2-314 Deveny v. Rheem Mfg. Co., 319 F.2d 124 (2d Cir. 1963). Virginia Va. Code Ann. § 8.2-314 Genito Glenn, Ltd P'ship v. Nat'l Hous. Bldg. Corp., 50 Va. Cir. 71 (1999). West Virginia W. Va. Code § 46-2-314 Louk v. Isuzu Motors, Inc., 479 S.E.2d 911 (W. Va. 1996). Wyoming Wyo. Stat. Ann. § 34.1-2-314 W. Equip. Co. v. Sheridan Iron Works, Inc., 605 P.2d 806, 808 (Wyo. 1980). 5