Jeff Jonah v. Kimberly-Clark Corporation et al

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

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7 Exhibit 3 7 Style Definition: Normal GUTRIDE SAFIER LLP Style Definition ... [1] ADAM J. GUTRIDE (State Bar No. 181446) Style Definition ... [2] SETH A. SAFIER (State Bar No. 197427) Style Definition ... [3] MARIE MCCRARY (State Bar No. 262670) Style Definition ... [4] KRISTEN G. SIMPLICIO (State Bar No. 263291) Style Definition ... [5] 100 Pine Street, Suite 1250 Style Definition ... [6] San Francisco, California 94111 Style Definition ... [7] Telephone: (415) 271-6469 Formatted: Normal Facsimile: (415) 449-6469 Deleted: Formatted: Normal, Widow/Orphan (additional counsel listed on signature page) control Formatted: Widow/Orphan control Formatted: Normal, Widow/Orphan Attorneys for Plaintiffs control Deleted: UNITED STATES DISTRICT COURT Deleted: TYCKO & ZAVAREEI LLP Formatted: Font:Not Bold NORTHERN DISTRICT OF CALIFORNIA Formatted ... [8] Deleted: LORENZO B. CELLINI ... [9] 2000 L Street, N.W., Suite 808 OAKLAND DIVISION Deleted: Washington, DC 20036 SUPERIOR Telephone: (202) Deleted: OF THE973-0900 STATE Facsimile: (202) 973-0950 Formatted: Indent: First line: 0.5" JENNIFER DAVIDSON, JEFF JONAH, CASE NO. 14-CV-1783-PJH SPANGENBERG Deleted: COUNTY SHIBLEY OF SAN & LIBER MATEOLLP STUART E. SCOTT ANGELA LEWIS, EDWARD COLATORTI, Formatted: DANIEL FRECH Indent: Left: 0.5" AMBER WALSH, and RISHA MATTINGLY, RELATED CASE NO. 15-CV-3243-PJH 1001 Lakeside Avenue Formatted: Body TextEast, 3, Suite 1700 Left: Indent: Cleveland, 0.5" OH 44114 individuals, on behalf of themselves, the Formatted: Indent: Telephone: (216) Hanging: 0.01" 696-3232 general public, and those similarly situated, UNLIMITED CIVIL CASE Facsimile: (216)Indent: Formatted: 696-3924 Left: 0" Formatted Table Plaintiffs, [PROPOSED] CONSOLIDATED CLASS Deleted: an individual ACTION COMPLAINT FOR Formatted: Indent: Left: 0" v. VIOLATION OF THE CALIFORNIA Deleted: ... [10] CONSUMERS LEGAL REMEDIES ACT himself Formatted ... [11] KIMBERLY-CLARK CORPORATION; AND OTHER STATE CONSUMER Formatted ... [12] KIMBERLY-CLARK WORLDWIDE, INC.; PROTECTION LAWS; FALSE Formatted: Indent: First line: 0.5" and KIMBERLY-CLARK GLOBAL SALES ADVERTISING; FRAUD, DECEIT, Formatted: Indent: Left: 0" LLC, AND/OR MISREPRESENTATION; Formatted: Font:Bold, (none) NEGLIGENT MISREPRESENTATION; Deleted:, Defendants. BREACH OF EXPRESS AND IMPLIED Formatted: Font:Bold, (none) WARRANTY; VIOLATIONS OF THE Deleted: AND DOES 1 THROUGH 50, MAGNUSON-MOSS WARRANTY ACT; Formatted: Indent: First line: 0.5" UNJUST ENRICHMENT; AND UNFAIR Formatted: Indent: First line: 0.5" BUSINESS PRACTICES Formatted: Font:Bold, (none) Formatted: (none) Formatted: Indent: Left: 0", First line: 0.5" Deleted: JURY TRIAL DEMANDED ... [13] Formatted ... [14] Formatted: Font:Times New Roman, 12 pt Deleted: ... [15] Section Break (Next Page) 7 1 Jennifer Davidson, Jeff Jonah, Angela Lewis, Edward Colatorti, Amber Walsh, and RiSha Deleted: his 2 Mattingly, by and through their counsel, bring this Consolidated Class Action Complaint against Deleted: s 3 Defendants Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., Kimberly-Clark Deleted: and Does 1 through 50, inclusive, 4 Global Sales, LLC on behalf of themselves and those similarly situated, for violations of state Deleted: himself Deleted: the Consumer Legal Remedies 5 consumer protection statutes and Magnuson-Moss Warranty Act, false advertising, unfair trade Deleted: and 6 practices, fraud, deceit and/or misrepresentation, negligent misrepresentation, breach of express Deleted: and Deleted: . 7 and implied warranty, and unjust enrichment. Formatted: Heading 1, Left, None, Line 8 INTRODUCTION spacing: single, Widow/Orphan control, Hyphenate, Tabs:Not at -1" + -0.5" + 1. For nearly twenty-five years, Defendants have run a long term advertising 0.5" + 1" + 1.5" + 3" 9 Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + 10 campaign designed to convince reasonable consumers that its strong, durable wet wipes have 1" + 1.5" + 3" 11 been specially designed to be suitable to flush down the toilet. As part of this campaign, they have Deleted: market 12 deceptively marketed four brands of personal hygiene moistened wipes as "flushable" when they Deleted: ." 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 Deleted: 305 23 flushing them is a violation of Section 714.1 of the Universal Plumbing Code, which prohibits Deleted: California Deleted: " 24 flushing any items that are "capable of causing damage to the public sewer, private sewer, or Deleted: other thing whatsoever 25 private sewage disposal system." Language identical to or substantially similar to this has been Deleted: is Deleted: drainage system or 26 adopted by a number of states, including California, Washington, Florida, and North Carolina. Deleted: ." 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. Deleted: - Deleted: - -1- Consolidated Class Action Complaint 7 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. Formatted: Heading 1, Left, Line spacing: 6 PARTIES single, Widow/Orphan control, Hyphenate, Tabs:Not at -1" + -0.5" + 3. Jennifer ("Davidson") is, and at all times alleged in this Consolidated Class Action 0.5" + 1" + 1.5" + 3" 7 Deleted: Jeff Jonah ("Plaintiff 8 Complaint was, an individual and a resident of San Francisco, California. Formatted: Line spacing: single, No 9 4. Jeff Jonah ("Jonah") is, and at all times alleged in this Consolidated Class Action bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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." Formatted: Line spacing: single, No 22 10. Defendant Kimberly-Clark Corporation is a corporation incorporated under the bullets or numbering, Tabs:Not at 1" + 1.5" + 3" 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. Deleted: - Deleted: - -2- Consolidated Class Action Complaint 7 Deleted: The true names and capacities 1 13. The Parties identified in paragraphs 10-12 of this Consolidated Class Action Deleted: Defendants sued as Does 1 through 50, inclusive, are unknown to Plaintiff, who therefore 2 Complaint are collectively referred to hereafter as "Defendants" or "Kimberly-Clark." sues said Defendants by such fictitious names pursuant to section 474 of the California Code of Civil Procedure. Plaintiff will seek leave of Court to 3 14. At all times herein mentioned, each of the Defendants was the agent, servant, amend Deleted: Class Action Complaint when said true 4 representative, officer, director, partner or employee of the other Defendants and, in doing the names and capacities have been ascertained. The Parties identified in paragraphs 4-7 of this 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. Deleted: each of the 8 15. At all times herein mentioned, Defendants, and each of them, were members of, Deleted: was a member 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. Deleted: each of the 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. Deleted: each of the 14 17. At all times herein mentioned, Defendants, and each of them, ratified each and Deleted: 15 every act or omission complained of herein. At all times herein mentioned, the Defendants, and Deleted: each of 16 each of them, aided and abetted the acts and omissions of each and all of the other Defendants in Deleted: 17 proximately causing the damages, and other injuries, as herein alleged. Formatted: Heading 1, Left, Line spacing: 18 JURISDICTION AND VENUE single, Widow/Orphan control, Don't keep with next, Hyphenate, Tabs:Not at -1" + 18. This action is brought by Plaintiffs pursuant, inter alia, to the California Business -0.5" + 0.5" + 1" + 1.5" + 3" 19 Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + 20 and Professions Code, section 17200, et seq. Plaintiffs and Defendants are "persons" within the 1" + 1.5" + 3" Deleted: Plaintiff 21 meaning of the California Business and Professions Code, section 17201. Deleted: Plaintiff 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 Deleted: San Mateo 26 business practices in the State of California, including in Alameda County. Deleted: Plaintiff has 27 21. In accordance with California Civil Code Section 1780(d), Davidson filed a Deleted: during the class period, 28 declaration establishing that, in 2013, she purchased at least one Kimberly-Clark product in San Deleted: - Deleted: - -3- Consolidated Class Action Complaint 7 Deleted: Mateo County. 1 Francisco. Deleted: Plaintiff 2 22. Plaintiffs accordingly allege that jurisdiction and venue are proper in this Court. Deleted: s Formatted: Heading 1, Left, Line spacing: 3 SUBSTANTIVE ALLEGATIONS single, Widow/Orphan control, Don't keep with next, Hyphenate, Tabs:Not at -1" + 4 a. Defendants Deceptively Market and Sell "Flushable" Wipes. -0.5" + 0.5" + 1" + 1.5" + 3" Deleted: (1) 5 Formatted: No underline 23. Defendants are manufacturers and marketers of consumer goods, including a Formatted: Heading 2, Left, Indent: Left: 6 0.5", Hanging: 0.5", Line spacing: single, variety of paper products, such as toilet paper, paper towels, feminine hygiene products, diapers, Widow/Orphan control, Don't keep with 7 next, Hyphenate, Tabs:Not at -1" + -0.5" and baby wipes. Its products are widely available for purchase in supermarkets, drug stores, and + 0.5" + 1" + 1.5" + 3" 8 Deleted: other retailers. Formatted: Line spacing: single, No 9 bullets or numbering, Tabs:Not at 0.5" + 24. Among Defendants' products are pre-moistened cloths, known as wet wipes, 1" + 1.5" + 3" 10 wipes, or moist towelettes, that can be used for personal hygiene, child care needs, pet care, or 11 Deleted: case focuses on cleaning. This four such pre-moistened cloths manufactured and marketed by Kimberly-Clark at Deleted: . These products 12 issue in this case are the following: 13 Formatted: Indent: Left: 0", First line: 1", a. Kleenex® Cottonelle® Fresh Care Flushable Wipes & Cleansing Cloths Line spacing: single, Tabs:Not at 0.5" + 1.5" + 3" 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 Formatted: Line spacing: single, No 25. In this Complaint, these products will be collectively referred to as the "Flushable bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 19 Wipes." 20 Deleted: <#>Throughout the class period, all 26. Throughout the class period, Defendants have engaged in a long term advertising packages of the Flushable Wipes state that the wipes are "flushable," despite the fact that the Flushable 21 Wipes have never been and continue not to be campaign to advertise that the Flushable Wipes are "flushable" in a substantially identical suitable for flushing. 22 Defendants advertise that their Flushable Wipes are manner. "flushable" in a substantially identical 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 Deleted: - representations that communicate that the Flushable Wipes (1) "break up after flushing" or Deleted: - -4- Consolidated Class Action Complaint 7 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. Formatted: (none) 7 28. In addition, although Defendants' Flushable Wipes are marketed under different Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + 8 brand names, the underlying products are the same with regard to the materials and design 1" + 1.5" + 3" Deleted: 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 Deleted: <#><sp> <#> 12 conditions, as discussed in more detail in paragraphs 68-69. Formatted: Normal, Indent: First line: 0", Line spacing: single, Tabs:Not at 0.5" + 13 29. On the front of the Cottonelle Wipes package, Defendants advertise the product as 1" + 1.5" + 3" Deleted: <#><sp> 14 "FLUSHABLE MOIST WIPES" or as "flushable cleansing cloths." <#> <#> <#> 15 <#> <#> <#> 16 <#>One of the packages further represents that the wipes are "SEWER AND SEPTIC SAFE.*" No 17 disclaimer appears to be associated with the asterisk. On the back of the package, Defendants represent that "Cottonelle Fresh Care Flushable Cleansing 18 Cloths break up after flushing." On the backs of some packages of the Cottonelle Wipes, Defendants further state, "For best results, flush only one or two 19 cloths at a time," but this warning does not appear on all packages, such as the smaller, travel size package 20 of wipes. <#>On the website for the Cottonelle Wipes, Defendants inform consumers that the "flushable 21 wipes use a patented dispersible technology, which means that when used as directed they break up after flushing and clear properly maintained toilets, 22 drainlines, sewers, pumps, and septic and municipal treatment systems." See 23 https://www.cottonelle.com/products/cottonelle- fresh-care-flushable-moist-wipes#faqs (last accessed Feb. 6, 2014). The website goes on to claim that the 24 Cottonelle Wipes are "Flushable," "Break up after flushing," and are "Sewer- and septic-safe." Id. 25 <#>On the front of the Scott Wipes package, Defendants similarly advertise the product as "Flushable Cleansing Cloths" and represent that each 26 of the wipes "breaks up after flushing." <#><sp> 27 Formatted: Indent: Left: 0.5", Line spacing: single, Tabs:Not at 0.5" + 1" + 28 1.5" + 3" Deleted: - Deleted: - -5- Consolidated Class Action Complaint 7 1 2 Deleted: <#> 3 30. One of the packages further represents that the wipes are "SEWER AND SEPTIC <#> On the back of the package, Defendants go on to state that "Scott Naturals* Flushable Cleansing 4 SAFE.*" No disclaimer appears to be associated with the asterisk. On the back of the package, Cloths break up after flushing and are sewer and septic system safe. For best results, flush only one or 5 Defendants represent that "Cottonelle Fresh Care Flushable Cleansing Cloths break up after two cleansing cloths at a time." Formatted: Line spacing: single, No flushing." On the backs of some packages of the Cottonelle Wipes, Defendants further state, "For bullets or numbering, Tabs:Not at 0.5" + 6 1" + 1.5" + 3" 7 best results, flush only one or two cloths at a time," but this warning has not appeared on all Deleted: The back of the package also states that the "flushable" cloths are "Septic Safe" and that each wipe "Breaks up after flushing." 8 packages sold throughout the class period, such as the smaller, travel size package of wipes. Deleted: <#>On the front of the Huggies Wipes 9 31. On the website for the Cottonelle Wipes, Defendants have touted the flushable package, Defendants similarly describe the product as "flushable moist wipes." <#> 10 nature of the product using assorted Flushability Representations. For many years, Defendants <#><sp> <#> 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 <#> On the back, Defendants represent that the wipes are 14 currently states that the wipes "use a patented SafeFlush Technology ® that starts to break down "Septic Safe" and that each "Breaks up after flushing," and only advise "For best results, flush only one or two wipes at a time." On the website for 15 immediately after flushing, making them disposable and safe for septic systems." the Huggies Wipes, Defendants claim the wipes are "sewer and septic safe and break up after flushing." 16 https://www.cottonelle.com/en-us/products/cottonelle-fresh-care-flushable-wipes#faqs (last See http Deleted: pull-ups 17 accessed January 24, 2019). And throughout the class period, Defendants have made a variety of Formatted: Font:Not Italic Deleted: Sept. 5, 2014). 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 Deleted: - Deleted: - -6- Consolidated Class Action Complaint 7 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 Deleted: - Deleted: - -7- Consolidated Class Action Complaint 7 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." Formatted: Line spacing: single, No 8 36. On the front of the Kotex Wipes package, Defendants likewise represent that the bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 9 product is "flushable." Deleted: 10 11 Formatted: Normal, Indent: First line: 0", 12 Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 13 Formatted: Indent: First line: 0.5", Line spacing: single, Tabs:Not at 0.5" + 1" + 14 1.5" + 3" 15 16 17 18 Formatted: Line spacing: single, 37. Defendants provide little additional information on the back, only reiterating that Tabs:Not at 0.5" + 1" + 1.5" + 3" 19 the product is "Flushable!" 20 Deleted: Nowhere on 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 Deleted: do Defendants disclose 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 Deleted: iii 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 Deleted: - Deleted: - -8- Consolidated Class Action Complaint 7 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- Formatted: (none) 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 Deleted: . 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 Formatted: Font:Bold, Italic 14 specially designed to be suitable to flush by consumers in any home and in any location, and not Formatted: Font:Bold, Italic Deleted: unique and specified 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. Deleted: on the website for the Cottonelle Wipes 24 41. Defendants' misrepresentations appear in all their advertising. For example, in Deleted: inform 25 2015 and likely at various other points during the class period, Defendants informed consumers Formatted: (none) Deleted: See 26 and the public on the Cottonelle website that the "Cottonelle® Flushable Cleansing Cloths are https://www.cottonelle.com/products/cottonelle- fresh-care-flushable-moist-wipes#faqs (last accessed 27 flushable due to patented technology that allows them to lose strength and break up when moving May 1, 2015). The Deleted: goes on 28 through the system after flushing." And during the class period, the website used other Deleted: - Deleted: - -9- Consolidated Class Action Complaint 7 Deleted: claim 1 Flushability Representations to persuade consumers that the Cottonelle Wipes are "Flushable," Deleted: Id. 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 Deleted: ." 10 representation that the product is "Flushable" and/or the Flushability Representations. Formatted: Line spacing: single, No 11 43. Defendants further intend for consumers to rely on the omissions that the bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 12 Flushable Wipes are not suitable for disposal by flushing down a toilet, and that the wipes: (i) are Deleted: are 13 not suitable for disposal by flushing down a toilet; (ii) are not regarded as flushable by municipal Deleted: 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 Deleted: iii 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 Deleted: clog and 19 landfills, and damage municipal sewage lines and pumps, often due to the proclivity of the wipes Deleted: . 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. Formatted: (none) 25 44. Consumers rely on Defendants' Flushability Representations because they Deleted: representations Formatted: (none) 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 Formatted: (none) 28 believe the wipes are suitable for flushing down a toilet, and therefore pose no greater risk to their Deleted: - Deleted: - -10- Consolidated Class Action Complaint 7 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 Deleted: For example, on Amazon.com, a 42- 3 Wipes. count package of Cottonelle Wipes retails for $6.27, or 14.9 cents per wipe. See http://www.amazon.com/Cottonelle-Fresh- 4 45. In a similar lawsuit against Defendants' main competitor, Procter & Gamble, an Flushable-Moist- Wipes/dp/B0000AN9KS/ref=sr_1_6?s=hpc&ie=UT 5 expert witness found that "flushable" wipes command a price premium of 9.19% over non- F8&qid=1430758250&sr=1- 6&keywords=cottonelle+wipes (last accessed May 4, 2015). But a 40 count package of Wet Ones, a non- 6 flushable wipes. Thus, Defendants are receiving almost 10% more per package than they would flushable wipe, retails for $2.28, or 5.7 cents per wipe. See http://www.amazon.com/Wet-Ones- Citrus-Antibacterial- 7 for wipes that were not advertised as flushable and/or advertised using other Flushability Canister/dp/B00H2F85H6/ref=sr_1_4?ie=UTF8&qi d=1430758258&sr=8-4&keywords=wet+ones (last 8 Representations. accessed May 4, 2015). Formatted: Line spacing: single, No 9 46. If consumers knew that the Flushable Wipes were not suitable for flushing down a bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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. Deleted: (2) Formatted: Heading 2, Left, Indent: Left: 12 b. The Flushable Wipes Are Not Flushable. 0.5", Hanging: 0.5", Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 13 i. "Flushable" Means "Suitable For Disposal by Flushing Down a Formatted: No underline Toilet." Formatted: No underline 14 Deleted: (2)(a) 47. As defined by Webster's Dictionary, "flushable" means "suitable for disposal by Formatted: Heading 3, Left, Line spacing: 15 single, Tabs:Not at 0.5" + 1" + 1.5" + 3" flushing down a toilet." Formatted: No underline 16 Formatted: No underline 17 48. Many objects and materials theoretically will pass from the toilet to sewer pipes Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + after being flushed, such as food scraps, jewelry, small toys, or cotton swabs, but that does not 1" + 1.5" + 3" 18 Deleted: 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 Deleted: - Deleted: - -11- Consolidated Class Action Complaint 7 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." Deleted:") 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. Formatted: Line spacing: single, No 8 51. For example, in the most recent edition of the INDA Guidelines, the Fourth bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 9 Edition, published in March 2018, INDA included the following: Deleted: Third Deleted: June 2013 10 11 12 13 14 15 16 Deleted: <#> https://www.edana.org/docs/default-source/default-document-library/guidelines-for-assessing- <#> <#><sp> 17 <#> the-flushability-of-disposable-nonwoven-products-ed-4- <#> <#> 18 finalb76f3ccdd5286df88968ff0000bfc5c0.pdf?sfvrsn=6 (last accessed January 24, 2019). <#> http://www.inda.org/wp- 19 content/uploads/2013/06/GD3-and-Code-of- 52. That definition is nearly identical to what appeared in the Third Edition, published Practice_Executive-Summary_June-2013- FINAL.pdf (last accessed March 24, 2015). Earlier 20 in June 2013: 21 22 23 24 25 26 27 28 Deleted: - Deleted: - -12- Consolidated Class Action Complaint 7 Formatted: Line spacing: single, 1 53. And earlier editions of the guidelines contained similar definitions. Tabs:Not at 0.5" + 1" + 1.5" + 3" Deleted: The Industry's 2 54. INDA's definition of the term "flushable" is similar to the generally accepted Deleted: consistent with 3 consumer understanding of the word. Reasonable consumers understand "flushable" to mean Formatted: (none) 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. Deleted: State of California also 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 Formatted: Line spacing: single, No 56. A number of states have adopted that section of the UPC, with only minor bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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 Deleted: (2)(b) 24 Formatted: No underline only minor wording variations, as have many other places. Formatted: Heading 3, Left, Indent: Left: 25 0", Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 26 Formatted: No underline ii. Products That Do Not Disperse Upon Flushing Are Not Flushable. Formatted: Line spacing: single, No 27 bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 28 57. The only products that uniformly do not damage damage plumbing pipes and Deleted: - Deleted: - -13- Consolidated Class Action Complaint 7 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 Formatted: (none) 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' . . . Deleted: February 26, 2014 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. Deleted: - Deleted: - -14- Consolidated Class Action Complaint 7 Formatted: Line spacing: single, No 1 59. Municipal wastewater treatment operators and water protection organizations, and bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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. Formatted: Indent: Left: 0.5", Right: 0", 10 Dispose of them in the trash, not the toilet! Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 11 See https://web.archive.org/web/20150206044138/http://www.casaweb.org/flushable-wipes (last Formatted: Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 12 accessed January 24, 2019). Deleted: February Deleted: 2015 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 Deleted: See 15 not be flushed. See https://archives.sfexaminer.com/sanfrancisco/flushable-wipes-cause- http://www.sfexaminer.com/sanfrancisco/flushable- wipes-cause-problematic-backups-at-local-sewage- plants/Content?oid=2514283 (last accessed February 16 problematic-backups-at-local-sewage-plants/Content?oid=2514283 (last accessed January 24, 24, 2015). 17 2019). Deleted: states 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 Deleted: See Previously available at https://www.ebmud.com/water-and-wastewater/pollution- Formatted: Font:Italic 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 Deleted: - Deleted: - -15- Consolidated Class Action Complaint 7 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- Deleted: February 8 wipes-and-other-things-you-should-not-flush (last accessed January 24, 2019). Deleted: 2015 Formatted: Line spacing: single, No 9 63. And in Contra Costa, County, the Central Contra Costa Sanitary District has said bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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- Deleted: March 30, 2015). 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- Deleted: March 30, 2015). 19 wipes/article_e4db48de-312f-11e3-843e-001a4bcf887a.html (last accessed Jauary 24, 2019). Deleted: (2)(c) Formatted: Heading 3, Left, Line spacing: 20 iii. The Flushable Wipes Are Not a Flushable Product. single, Widow/Orphan control, Don't keep with next, Hyphenate, Tabs:Not at -1" + 21 -0.5" + 0.5" + 1" + 1.5" + 3" 65. Even though Defendants have for years advertised the Flushable Wipes as Formatted: No underline 22 Formatted: Line spacing: single, No "flushable," and intend for this representation to mean that they are suitable for disposal by bullets or numbering, Tabs:Not at 0.5" + 23 1" + 1.5" + 3" flushing down a toilet without harming septic tanks or sewer systems, the Flushable Wipes are Deleted: advertise 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 Deleted: - proprietary paper blend, for which Defendants own the patent. To manufacture the paper, Deleted: - -16- Consolidated Class Action Complaint 7 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 Deleted: <#>Second, while Defendants 12 paper used to manufacture their Flushable Wipes, Defendants designed a paper that is strong acknowledge and admit that a "flushable" product must be one that is compatible with wastewater 13 enough to withstand months of soaking in wet environment and cannot possibly efficiently treatment facilities, as well as home plumbing and septic systems, Defendants have for years ignored wastewater treatment operators and organizations 14 disperse when placed in more water. which state that only dispersible products are flushable. Instead of using standards and guidelines 15 68. Second, Defendants utilize a solution that purports to aid in the dissolution, but recommended by those actually treating wastewater, Defendants have elected to test "flushability" using the flawed INDA Guidelines, which Defendants 16 fails to work real-world conditions. In particular, Defendants have patented an ionic solution that participated in drafting, and which were engineered to ensure that Defendants' wipes can pass them. Thus, while all of the Flushable Wipes can pass a 17 theoretically activates when the wipes are placed in sufficient amounts of water, i.e. in the toilet. self-serving set of guidelines, the guidelines are heavily flawed and do not adequately measure 18 When the ions are activated, Defendants intended for them dissolve the binder in the substrate, whether a product is safe for disposal by flushing down a toilet. For example, the Flushable Wipes purportedly have 19 permitting it to break apart easily. But the ionic solution is sensitive, and does not work in real passed the "Slosh Box Disintegration Test" or "FG502" test appearing in the Third Edition of the 20 world conditions. Rather, its effectiveness is diminished or eliminated all together under an array INDA Guidelines. The test purports to measure dispersability, as it assesses the potential for a product to disintegrate when it is submerged in water 21 of real world conditions, such as when certain chemicals, minerals, elements, or other substances and subjected to agitation. To conduct the test, the test material is placed in a box of tap water. Testers then mechanically agitate the water, and time how 22 in the water interfere or neutralize the ionic solution, or when the water is not at room long it takes for the test material to disintegrate. But the test is rigged so that even non-dispersible 23 temperature. products pass it: Defendants and INDA have agreed that the standard for "passing" this test is not whether the product mimics the flushable and 24 69. While Defendants often trumpet videos and tests that seemingly show that their dispersible toilet paper or even that the product will break down during or shortly after a flush. Rather, 25 wipes more readily disperse than others, these tests are rigged, as Defendants utilize water that the test only requires that after three hours of agitation in the slosh box, more than 25% of the wipe passes through a 12.5 millimeter (roughly a 26 contains the properties necessary for activation of the solution, i.e. is at room temperature, and half inch) sieve 80% of the time. See http://www.njwea.org/pdf/2013-guidelines-for- assessing-the-flushability-of-disposable-nonwoven- 27 does not contain minerals, elements, or chemicals that interfere with the ionic solution's product.pdf (last accessed March 24, 2015) (emphasis added). 28 dissolution process. Deleted: - Deleted: - -17- Consolidated Class Action Complaint 7 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. Deleted: - Deleted: - -18- Consolidated Class Action Complaint 7 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. Formatted: Line spacing: single, No 9 75. Defendants have rigged the tests in other ways. For example, the Flushable Wipes bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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 Deleted: - Deleted: - -19- Consolidated Class Action Complaint 7 Deleted: March 30, 2015). 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.) Deleted: 5 Rather, several years ago, Defendants' own website presented a video that reveals that the Wipes Deleted: . See http://www.kimberly- 6 begin to break down 35 minutes after flushing, and take hours to completely disperse.1 But after clark.com/newsroom/media_resources/safetoflush.as px?print=true (last accessed Feb. 21, 2014). 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- Deleted: March 17 york-city-sewer-system-says-dont.html?_r=0 (last accessed January 24, 2019). Another explained Deleted: 2015 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 Deleted: http://www.aeanj.org/aea- 21 78. Because sewer systems typically move sewage to the plant via gravity, the water uploads/28932_Fall_low_res.pdf (last accessed March 24, 2015). 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. Deleted: - 2 In 2015, this statement appeared at http://www.aeanj.org/aea-uploads/28932_Fall_low_res.pdf. Deleted: - -20- Consolidated Class Action Complaint 7 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 Deleted: March 30, 2015). 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- Deleted: February 26, 2014). 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 Deleted: 68-70. 10 problems described in paragraphs 85-90. 11 81. The other tests run as part of the INDA Guidelines are similarly flawed. For Deleted: both 12 example, in the Third Edition, the Slosh Box Disintegration Test described in paragraph 75 and Deleted: 56 Formatted: (none) 13 the "Aerobic Biodisintegration" FG505 test, assess the wipes' ability to disintegrate under Deleted: See http://www.njwea.org/pdf/2013- 14 constantly agitated water. Since the Flushable Wipes are unlikely to be subjected to the same guidelines-for-assessing-the-flushability-of- disposable-nonwoven-product.pdf (last accessed March 24, 2015). 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. Formatted: (none) 19 82. The tests are further flawed in that they fail to take into account the wipes' Deleted: 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 Deleted: See 22 sewer lines for tens of feet. The tests however, assume that wipes are passing through pipes and http://www.hsconnect.com/page/content.detail/id/59 0706/Concerns-on-wipes-no-laughing- matter.html?nav=5005 (last accessed March 30, 23 pumps one at a time, instead of in clumps of rags and ropes. For example, while the Slosh Box 2015). 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 Deleted: March 30, 2015 28 accessed January 24, 2019). Deleted: - Deleted: - -21- Consolidated Class Action Complaint 7 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. Deleted: newly added 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 Deleted: See http://www.njwea.org/pdf/2013- 9 assess whether the pump can process the wipes. Because the non-dispersible Flushable Wipes are guidelines-for-assessing-the-flushability-of- disposable-nonwoven-product.pdf, p. 18 (last accessed March 24, 2015). 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. Deleted: (3) 13 c. Because the Flushable Wipes Are Not Suitable For Flushing Down a Toilet, Formatted: Heading 2, Left, Indent: Left: They Wreak Havoc When Flushed. 0.5", Hanging: 0.5", Line spacing: single, 14 Widow/Orphan control, Don't keep with next, Hyphenate, Tabs:Not at -1" + -0.5" 85. Consumers and municipalities all over the country have complained about the + 0.5" + 1" + 1.5" + 3" 15 Formatted: No underline 16 damage caused when flushing the Flushable Wipes. Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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 Deleted: Defendants' 23 example for many years, Defendants allowed consumers to leave comments on its own website,3 Deleted:, 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. Deleted: - Deleted: - -22- Consolidated Class Action Complaint 7 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 Formatted: Indent: Left: 0.5", Right: 0", 7 clogged the underground filter. I had the 1000 gallon storage tank pumped and it was Tabs:Not at 1" + 1.5" + 3" 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 Formatted: Indent: Left: 0.5", Right: 0", 12 (36 or 42 ?? nothing on wrapping indicating count). Being on a septic I checked to ensure Tabs:Not at 1" + 1.5" + 3" 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 Formatted: Indent: Left: 0.5", Right: 0", will clog the booster pump and then tangle in the air pump spinner, VERY costly repair. Tabs:Not at 1" + 1.5" + 3" 16 Doug - March 18, 2013 Deleted: <#> 17 Flushable Wipes are NOT flushable. Sure, they'll flush. Then they will clog your pipes ... Formatted: Indent: Left: 0.5", Right: 0", always. It may not be today or tomorrow, but they will clog. At my bed and breakfast I Tabs:Not at 1" + 1.5" + 3" 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 Deleted: <#> 88. For example, in Bakersfield, California, the city found that none of the brands of See https://www.cottonelle.com/products/cottonelle- fresh-care-flushable-moist-wipes/review (last 20 accessed September 3, 2014). "flushable" wipes tested, including Defendants' Cottonelle Wipes, actually broke apart in the Formatted: Line spacing: single, 21 Tabs:Not at 0" + 1" + 1.5" + 3" sewer; instead, they ended up as giant clogs at the treatment plant. Previously available at Deleted: 22 <#><sp> 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 See stations. If they do not, there is a risk that back flow damage will spill inside homes. The city has Formatted: Font:Italic 27 documented one of the clogs: 28 Deleted: - Deleted: - -23- Consolidated Class Action Complaint 7 Formatted: Line spacing: single, 1 Tabs:Not at 0.5" + 1" + 1.5" + 3" 2 3 4 5 6 7 8 9 10 Formatted: Line spacing: single, 11 Id. Tabs:Not at 0" + 1" + 1.5" + 3" Formatted: Font:Italic 12 89. In Jacksonville Beach, Florida, in response to city official concerns, a news outlet Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 1" + 13 broadcasted a "Consumer Alert" to explain that while Cottonelle and Scott Wipes are advertised 1.5" + 3" 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/- Deleted: August 28, 2014). 16 /t5h2vrz/-/index.html (last accessed January 24, 2019). Formatted: Indent: Left: 0.5", Line 17 spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 18 19 20 21 22 23 24 25 26 Formatted: Indent: Left: 0.5", Line 27 spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 28 Deleted: - Deleted: - -24- Consolidated Class Action Complaint 7 Formatted: Line spacing: single, 1 Tabs:Not at 0" + 1" + 1.5" + 3" 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: Deleted: <#> 8 <#><sp> <#> <#> 9 <#> <#> <#> 10 <#> 11 12 13 14 15 Formatted: Line spacing: single, 16 Id. Tabs:Not at 0.5" + 1" + 1.5" + 3" Formatted: Line spacing: single, No 17 90. In San Antonio, Texas, the San Antonio Water System has said that flushable bullets or numbering, Tabs:Not at 1" + 1.5" + 3" 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 Deleted: August 28, 2014). Deleted: 21 January 24, 2019). Sewer workers are responding to dozens of clogs, and to repair, they retreive (4) Formatted: Heading 2, Left, Indent: Left: 22 large "rope like mass[es]" from the pipes. Id. 0.5", Hanging: 0.5", Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 23 d. Defendants Intend To Continue To Market And Sell Non-Flushable Products Formatted: No underline as "Flushable." Deleted: " 24 Formatted: No underline 25 91. Defendants' marketing campaign has been extremely successful. Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 26 92. The market for flushable wipes is a burgeoning one. It has been doubling in sales Deleted: grow 12.1% annually to reach 27 every five years, and is projected to be worth $2.7 billion in 2020. See Deleted: 4 Deleted: by 2018. 28 http://www.prweb.com/releases/2017/05/prweb14358353.htm (last accessed January 4, 2019). Deleted: - Deleted: - -25- Consolidated Class Action Complaint 7 Deleted: http://www.giiresearch.com/report/apex2 1 93. Defendants' brands are widely popular, and the Flushable Wipes are sold in 79326-future-flushable-wipes.html (last accessed March 25, 2015). 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 Formatted: Line spacing: single, No 18 95. Because Defendants know consumers rely on representations about flushability on bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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. Deleted: - Deleted: - -26- Consolidated Class Action Complaint 7 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 Deleted: 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- Deleted: March 10 2300/ab_2256_cfa_20100617_172920_sen_comm.html (last accessed January 24, 2019). Similar Deleted: 2015 11 bills have been proposed in other states, including Maine and New Jersey, though all have been Deleted: and none have been successful. 12 opposed by INDA. Deleted: Wastewater treatment operators have 13 98. In December 2016, the city council in the District of Columbia passed legislation criticized the industry's failure 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. Formatted: Line spacing: single, No 26 99. Central to the efforts to block and kill legislation is the fact that the flushable bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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. Deleted: - Deleted: - -27- Consolidated Class Action Complaint 7 Deleted: PLAINTIFF'S EXPERIENCE 1 and have stated that the Third Edition of the INDA Guidelines "may be a step backwards" from Formatted: Left, Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 2 previous editions. See http://www.weat.org/Presentations/04%20Villee_Non-dispersibles.pdf Formatted: Font:Not Bold, No underline 3 (last accessed March 31, 2015). Deleted: <#>Plaintiff is a consumer of Cottonelle brand toilet paper. Plaintiff first learned of the Cottonelle Wipes in 2010, while shopping at a 4 100. Defendants have also refused to engage seriously with other stakeholders, such as Safeway store in Belmont, near his home in San Carlos. The wipes were located in the section of the 5 wastewater professionals and environmental organizations, who have tried to develop better store that contained toilet paper. He was interested in the fact that the product was a pre-moistened wipe, and that the package stated that the wipes were 6 standards for assessing flushability. For example, the International Organization for "flushable." He also read labeling on the package stating that the wipes were "SEWER AND SEPTIC SAFE" and that "Cottonelle Fresh Care Flushable 7 Standardization ("ISO") formed a working group to create flushability standards. Initially, Cleansing Cloths break up after flushing." <#>Plaintiff reasonably understood the 8 members of the industry, including Defendants, participated in these discussions. But Defendants representations described in paragraph 77 to mean that the Cottenelle Wipes could be safely disposed like toilet paper – by flushing down a toilet, as they 9 pulled out of those discussions, no doubt because they grew frustrated that they could not would break apart after flushing. And he reasonably understood the representations to mean that if he 10 influence the process the same way they could with INDA or because the standards would have disposed of the wipes via his toilet, the wipes would not cause clogs or backups in his plumbing or that the risk of this occurring was no greater than if he 11 been too rigorous. had used toilet paper. <#>Plaintiff's home plumbing is connected to the City of San Carlos's sewer system via a lateral 12 e. Officials and Regulators Are Increasingly Concerned About the False drainline from his house. Accordingly, he also and Misleading Use of the Term "Flushable reasonably believed the representations described in 13 paragraph 77 to mean that the Cottonelle Wipes could travel safely from his home drainline and into the city's sewer system without causing clogs, 14 101. In April 2015, the City of Wyoming, Minnesota filed a lawsuit against Defendant blockages, or backups. <#>Relying on the representation described in 15 P&G Corporation and other manufacturers of "flushable" wipes on behalf of a class of paragraph 77, Plaintiff decided to buy the Cottonelle Wipes for home use. He first purchased them at Belmont Safeway in or around 2010. Shortly 16 municipalities. The City of Wyoming seeks damages for the harm caused to municipalities' sewer thereafter, Plaintiff removed the Cottonelle Wipes from their package for the first time, and he noticed that they were quite thick and strong. The material 17 systems. That lawsuit is ongoing and a motion for class certification was filed in 2018, but has surprised him because he did not think a product with such a consistency would be flushable. He 18 not yet been ruled upon. decided to double check the labeling on the package to confirm that it said the wipes were safe to flush before using them, which it did. 19 102. In 2016, the Australian Competition and Consumer Commission, a government <#>Plaintiff continued to purchase the Cottonelle Wipes on a regular basis over the next several years, 20 agency, launched an investigation into Defendants for their misleading "flushable" until approximately 2013. He typically purchased the wipes at the Safeway store in Belmont and typically paid approximately $5-7 dollars per package. 21 representations. It explained: <#>When using the wipes during the 2010 to 2013 time period, he flushed 1-2 wipes at a time. Other than human waste, Plaintiff did not flush other items 22 "Consumers rightly expect that a product labelled 'flushable' won't damage their pipes or or materials, such as toilet paper, at the same time as the Cottonelle Wipes. In addition, Plaintiff did not 23 our waterways. The consumer law exists to protect consumers from harmful, misleading dispose of non-dispersible items, such as other kinds of pre-moistened disposable wipes, by flushing down the toilet in their San Carlos home. Plaintiff noticed 24 advertising and we're sure that the thousands of people who joined our campaign are that the wipes did not break apart rapidly in the toilet bowl like toilet paper, but instead remained largely 25 pleased to see the law being used to clean up dodgy claims." intact. <#>Plaintiff had moved into his home in San Carlos in or around February 2006, during the first four 26 https://www.news.com.au/finance/business/manufacturing/accc-takes-action-over-flushable- years in the home, the toilet never clogged. During the period when he was using the Cottonelle Wipes, however, the toilet in his San Carlos home would 27 wipes/news-story/4901228416651a420330e08cefd9c3d8 (last accessed January 27, 2019). clog approximately once a week, and he would often have to plunge the toilet right after flushing or...use a [16] 28 103. Recently, the Federal Trade Commission began an investigation into the use of the chemical drain cleaner such as Drano or Liquid Deleted: - Plumber to remove the blockage. Deleted: <#>Plaintiff- initially did not know what was causing -28- the clogs. Plaintiff's spouse, who was the only other individual regularly using the toilet in the San Carlos Consolidated Class Action Complaint home, informed him that she was not flushing non- dispersible products. But the problem eventually got so bad that he was forced to purchase a plumbing "snake" to clear the blockages. The "snake" is a 7 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 Deleted: - Deleted: - -29- Consolidated Class Action Complaint 7 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- Deleted: - cv01142 (E.D. N.Y.), Dkt. # 228-1. Deleted: - -30- Consolidated Class Action Complaint 7 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 Deleted: - Deleted: - -31- Consolidated Class Action Complaint 7 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 Deleted:, Plaintiff 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 Deleted: - 116. Jonah reasonably understood the representations described in paragraph 115 to Deleted: - -32- Consolidated Class Action Complaint 7 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 Deleted: - Deleted: - -33- Consolidated Class Action Complaint 7 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. Deleted: - Deleted: - -34- Consolidated Class Action Complaint 7 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. Formatted: Line spacing: single, No 6 129. As long as Defendants may use the word "Flushable" to describe their Flushable bullets or numbering, Tabs:Not at 1" + 1.5" + 3" 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. Deleted: Plaintiff 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 Formatted: (none) 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 Deleted: - would be cheaper to purchase non-flushable wipes. Deleted: - -35- Consolidated Class Action Complaint 7 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 Deleted: - 138. He began regularly using the Cottonelle Wipes in his apartment and in Florida. In Deleted: - -36- Consolidated Class Action Complaint 7 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. Deleted: - Deleted: - -37- Consolidated Class Action Complaint 7 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 Deleted: - disposed of in the garbage after being used. Deleted: - -38- Consolidated Class Action Complaint 7 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 Deleted: - wipes. She typically shops at Food Lion, and saw the Cottonelle Wipes there. She saw that they Deleted: - -39- Consolidated Class Action Complaint 7 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. Deleted: - Deleted: - -40- Consolidated Class Action Complaint 7 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 Formatted: Heading 1, Left, Line spacing: 10 CLASS ALLEGATIONS single, Widow/Orphan control, Don't keep with next, Hyphenate, Tabs:Not at -1" + 165. Plaintiffs bring this action against Defendants on behalf of themselves and all -0.5" + 0.5" + 1" + 1.5" + 3" 11 Deleted: Plaintiff brings 12 others similarly situated, as a class action pursuant to Rule 23 of the Federal Rules of Civil Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 13 Procedure. Plaintiffs seek to represent groups of similarly situated persons as set forth below: Deleted: himself 14 Deleted: section 382 Class Definition Class Representatives Causes of Action Deleted: California Code 15 Class: All persons who, between Jennifer Davidson Unjust Enrichment Deleted: and section 1781 of the California Civil March 13, 2010 and the present, Jeff Jonah (Count V); Violations of Code. Plaintiff seeks 16 purchased, in 49 States and the Angela Lewis the Magnuson-Moss Deleted: a group District of Columbia, excepting Edward Colatori Warranty Act (Count Deleted: (the "Class"), defined 17 all purchases in the State of New Amber Walsh VI) Deleted: follows: York, any of the following RiSha Mattingly Deleted: All persons who, between June 8, 18 products: Cottonelle® Fresh 2011 and the present, purchased in California Care Flushable Wipes & any of the following products: Cottonelle® 19 Cleansing Cloths, Scott Fresh Care Flushable Wipes & Cleansing Cloths, Scott Naturals® Flushable Moist Naturals® Flushable Moist Wipes, Huggies® Pull-Ups® Flushable Moist 20 Wipes, Huggies® Pull-Ups® Wipes, and U by Kotex® Refresh flushable Flushable Moist Wipes, and U wipes. 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 Deleted: - Hampshire, New Mexico, Ohio, Deleted: - -41- Consolidated Class Action Complaint 7 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 Deleted: - Deleted: - -42- Consolidated Class Action Complaint 7 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); Deleted: - Deleted: - -43- Consolidated Class Action Complaint 7 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. Formatted: Line spacing: single, No 17 166. This action has been brought and may properly be maintained as a class action bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 18 against Defendants pursuant to Rule 23, as there is a well-defined community of interest in the Deleted: the provisions of California Code of Civil Procedure section 382 because 19 litigation and the proposed class is easily ascertainable. Deleted: Plaintiff does 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. Deleted: 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 Deleted: 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 Deleted: - Deleted: - -44- Consolidated Class Action Complaint 7 1 member of the Class to recover. Among the questions of law and fact common to the class are: Formatted: Indent: Left: 0.5", Hanging: 2 • Whether Defendants' Flushable Wipes are suitable for flushing down a toilet; 0.5", Line spacing: single, Bulleted + Level: 1 + Aligned at: 0.5" + Indent at: • Whether Defendants unfairly, unlawfully and/or deceptively failed to inform class 0.75", Tabs:Not at 1" + 1.5" + 1.88" + 3" 3 4 members that their Flushable Wipes were not flushable; Formatted: Indent: Left: 0.5", Hanging: 5 • Whether Defendants unfairly, unlawfully and/or deceptively failed to inform class 0.5", Line spacing: single, Bulleted + Level: 1 + Aligned at: 0.5" + Indent at: members that their Flushable Wipes are capable of causing damage to the drainage 0.75", Tabs:Not at 1" + 1.5" + 1.88" + 3" 6 Deleted: not suitable for flushing; 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; Formatted: Indent: Left: 0.5", Hanging: 19 • Whether Defendants' advertising and marketing regarding their Flushable Wipes 0.5", Line spacing: single, Bulleted + Level: 1 + Aligned at: 0.5" + Indent at: sold to class members was likely to deceive class members or was unfair; 0.75", Tabs:Not at 1" + 1.5" + 1.88" + 3" 20 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 Deleted: moneys 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, Deleted: - Deleted: - -45- Consolidated Class Action Complaint 7 1 what is the nature of such relief. Formatted: Line spacing: single, No 2 79. Typicality: Plaintiffs' claims are typical of the class because, throughout the class bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 3 period, they purchased packages of the Flushable Wipes, in reliance on Defendants' Deleted: Plaintiff's Deleted: he 4 misrepresentations and omissions that they were flushable. Thus, Plaintiffs and class members Deleted: Plaintiff 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. Deleted: Plaintiff 8 80. Adequacy: Plaintiffs will fairly and adequately protect the interests of all class Deleted: his 9 members because it is in their best interests to prosecute the claims alleged herein to obtain full Deleted: his 10 compensation due to them for the unfair and illegal conduct of which they complain. Plaintiffs Deleted: she complains. Plaintiff Deleted: has 11 also have no interests that are in conflict with or antagonistic to the interests of class members. Deleted: Plaintiff has 12 Plaintiffs have retained highly competent and experienced class action attorneys to represent their Deleted: his Deleted: his 13 interests and the interests of the class. By prevailing on their own claims, Plaintiffs will establish Deleted:, Plaintiff 14 Defendants' liability to all class members. Plaintiffs and their counsel have the necessary Deleted: Plaintiff Deleted: his 15 financial resources to adequately and vigorously litigate this class action, and Plaintiffs and Deleted: Plaintiff 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. Deleted: 19 81. 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 Deleted: - Deleted: - -46- Consolidated Class Action Complaint 7 1 important public interest will be served by addressing the matter as a class action. 2 82. 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. Deleted: Plaintiff is Deleted: PLAINTIFF'S 7 83. Plaintiffs are unaware of any difficulties that are likely to be encountered in the Formatted: Font:Not Bold, Not Italic management of this action that would preclude its maintenance as a class action. Deleted:) 8 Deleted: Himself and the 9 CAUSES OF ACTION Deleted: Plaintiff realleges Formatted: Line spacing: single, No 10 FIRST CAUSE OF ACTION bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" (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) Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + On Behalf of Themselves, the Class, Three Consumer Deception Subclasses, and the Five 1" + 1.5" + 3" 12 State Subclasses in Accordance with Paragraph 165 Deleted:") 13 84. Plaintiffs reallege and incorporates the paragraphs of this Consolidated Class Deleted: Plaintiff Deleted:). 14 Action Complaint as if set forth herein. <#>The Flushable Wipes that Plaintiff (and others similarly situated class members) purchased from Defendants were "goods" within the meaning of 15 85. Plaintiffs bring this claim individually, on behalf of the Nationwide Class, and on California Civil Code § 1761(a). By engaging 16 behalf of the Consumer Deception Subclasses and the State Subclasses. Deleted: the Deleted: set forth in this Class Action Complaint, 17 86. This cause of action is brought pursuant to the California Consumers Legal Defendants Deleted:, § 1770(a)(2), § 1770(a)(5), § 1770(a)(7), 18 Remedies Act, California Civil Code § 1750, et seq. ("CLRA") and the states shown on Appendix § 1770(a)(8), and § 1770(a)(9) of Deleted: . In violation of California Civil Code 19 A as having enumerated prohibitions on deceptive conduct. §1770(a)(2), Defendants' acts Deleted: practices constitute improper 20 87. Defendants' actions, representations and conduct have violated, and continue to representations regarding the source, sponsorship, approval, or certification of the goods 21 violate the CLRA, because they extend to transactions that are intended to result, or which have Deleted: sold. In violation of California Civil Code §1770(a)(5), Defendants' acts and practices constitute improper representations that the goods 22 resulted, in the sale or lease of goods or services to consumers. they sell have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities, which they do not have. In violation of California Civil Code 23 88. Plaintiffs and other class members are "consumers" as that term is defined by the §1770(a)(7), Defendants' acts and practices constitute improper representations that the goods 24 CLRA in California Civil Code § 1761(d) and the other states' unfair and deceptive practices they sell are of a particular standard, quality, or grade, when they are of another. In violation of California Civil Code §1770(a)(8), Defendants have 25 statutes, which are identified with specificity for this count in Appendix 1 ("UDAPs"). disparaged the goods, services, or business of another by false or misleading representation of fact. 26 89. Defendant's actions, representations and conduct have violated, and continue to In violation of California Civil Code §1770(a)(9), Defendants have advertised goods or services with intent not to sell them as advertised. Specifically, in 27 violate the CLRA and UDAPs of other states, because they extend to transactions that are violation of sections 1770 (a)(2), (a)(5), (a)(7) and (a)(9), Defendants' acts and practices 28 intended to result, or which have resulted, in the sale or lease of goods or services to consumers. Deleted: - Deleted: - -47- Consolidated Class Action Complaint 7 1 90. 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. Formatted: Line spacing: single, No 4 91. Defendant violated each of these statutes set forth in Appendix 1 by using bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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 Deleted: . In violation of section 1770(a)(8), 7 that that their Flushable Wipes were suitable for flushing down a toilet and that unlike products Defendants falsely or deceptively market Deleted: advertise 8 not specifically denominated as flushable, the Flushable Wipes are suitable for flushing down a Deleted:, 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: Deleted: <#>Plaintiff requests that this Court 11 o Omitting, concealing, and suppressing material facts in the labeling and enjoin Defendants from continuing to employ the unlawful methods, acts and practices alleged herein pursuant to California Civil Code 12 advertising of its Flushable Wipes; § 1780(a)(2). If Defendants are not restrained from engaging in these types of practices in the 13 o Misrepresenting that the Flushable Wipes that they sell have future, Plaintiff and the other members of the Class will continue to suffer harm. CLRA § 1782 NOTICE. Irrespective of any 14 characteristics, ingredients, uses, benefits, or quantities, which they do not have; representations to the contrary in this Class Action Complaint, Plaintiff specifically disclaims, at this time, any request for damages 15 o Misrepresenting that the Flushable Wipes that they sell are of a particular under any provision of the CLRA. Plaintiff, however, hereby provides Defendants with notice 16 standard, quality, or grade, or that goods are of a particular style or model, when they are and demand that within thirty (30) days from that date, Defendants correct, repair, replace or otherwise rectify the unlawful, unfair, false and/or 17 not; deceptive practices complained of herein. Defendants' failure to do so will result in Plaintiff 18 o Advertising Flushable Wipes with intent not to sell them as advertised; amending this Class Action Complaint to seek, pursuant to California Civil Code § 1780(a)(3), 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, Deleted: - Deleted: - -48- Consolidated Class Action Complaint 7 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 92. 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 93. 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 94. 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 95. 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. Formatted: Line spacing: single, No 23 96. More than thirty days prior to the filing of this complaint, Plaintiffs gave notice bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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 Deleted: himself 28 behalf of themselves and those similarly situated class members, compensatory damages, punitive Deleted: - Deleted: - -49- Consolidated Class Action Complaint 7 1 damages and restitution of any ill-gotten gains due to Defendants' acts and practices. Deleted: Plaintiff 2 97. Plaintiffs also request that this Court award them costs and reasonable attorneys' Deleted: s Deleted: his 3 fees. Deleted: pursuant to California Civil Code § 1780(d). 4 SECOND CAUSE OF ACTION Deleted: PLAINTIFF'S (False Advertising, Business and Professions Code § 17500, et seq. ("FAL")) Formatted: Indent: Left: 0.5", Space 5 On Behalf Of Themselves and the California Class Before: 0 pt, Line spacing: single, Tabs:Not at 0.5" + 1" + 1.5" + 3" 6 98. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated Deleted: Himself Deleted: Plaintiff realleges 7 Class Action Complaint as if set forth herein. Formatted: Line spacing: single, No 8 bullets or numbering, Tabs:Not at 0.5" + 99. Beginning at an exact date unknown to California Plaintiffs, but within three (3) 1" + 1.5" + 3" Deleted: s 9 years preceding the filing of the Consolidated Class Action Complaint, Defendants made untrue, Deleted: Plaintiff 10 false, deceptive and/or misleading statements in connection with the advertising and marketing of 11 their Flushable Wipes. 12 100. 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 Formatted: (none) 14 down the toilet without problem. Defendants deceptively failed to inform California Plaintiffs, Deleted: Deleted: Plaintiff 15 and those similarly situated, that the Flushable Wipes were not suitable for disposal by flushing Deleted: ir 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. Deleted: Plaintiff 19 101. California Plaintiffs relied on Defendants' false, misleading and deceptive 20 advertising and marketing practices, including each of the misrepresentations and omissions set Deleted: 24-25, 32, and 76 21 forth in paragraphs 26-42 above. Those similarly situated to Plaintiffs relied to their detriment on Deleted: Deleted: Plaintiff 22 Defendants' false, misleading and deceptive advertising and marketing practices, including each Deleted: 24-32 and 76 23 of the misrepresentations and omissions set forth in paragraphs 26-42, above. Had Plaintiffs and Deleted: Deleted: Plaintiff 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. 27 102. Defendants' acts and omissions are likely to deceive the general public. 28 103. Defendants engaged in these false, misleading and deceptive advertising and Deleted: - Deleted: - -50- Consolidated Class Action Complaint 7 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. Formatted: No bullets or numbering 4 104. 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. Deleted: Plaintiff 7 105. As a direct and proximate result of such actions, California Plaintiffs and Deleted: Class 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. Deleted: Plaintiff seeks 12 106. 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 Deleted: Plaintiff, the general public, or 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. Deleted: Plaintiff seeks 17 107. California Plaintiffs seek, on behalf of those similarly situated, a 18 declaration that the above-described practices constitute false, misleading and deceptive 19 advertising. Deleted: Plaintiff seeks 20 108. 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 Deleted: - Deleted: - -51- Consolidated Class Action Complaint 7 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. Deleted: PLAINTIFF'S 3 Formatted: No underline THIRD CAUSE OF ACTION Formatted: Space Before: 0 pt, Line 4 (Fraud, Deceit and/or Misrepresentation) spacing: single, Tabs:Not at 0.5" + 1" + On Behalf of Themselves and the California Class 1.5" + 3" Font:Bold Formatted: 5 Deleted: Himself 109. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated 6 Deleted: Plaintiff realleges Class Action Complaint as if set forth herein. Formatted: Line spacing: single, No 7 bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 110. In the time period from 2010 to 2018, Defendants fraudulently and deceptively led 8 Deleted: s the California Plaintiffs to believe that the Flushable Wipes were suitable for flushing down a Deleted: 2013 9 Deleted: Plaintiff toilet. Defendants also failed to inform the California Plaintiffs that the Flushable Wipes were not Deleted: Plaintiff 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. 13 111. These misrepresentations and omissions were material at the time they were made. 14 Deleted: Plaintiff They concerned material facts that were essential to the analysis undertaken by the California 15 Plaintiffs as to whether to purchase Defendants' Flushable Wipes. 16 112. Defendants made identical misrepresentations and omissions to members of the 17 Class regarding Defendants' Flushable Wipes. 18 Deleted: Plaintiff 113. The California Plaintiffs and those similarly situated relied to their detriment on 19 Deleted: Plaintiff 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. 23 114. 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 Deleted: Class this information to class members. Subclass members relied to their detriment on Defendants' 28 Deleted: - Deleted: - -52- Consolidated Class Action Complaint 7 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. 4 115. 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. Formatted: Line spacing: single, No 7 116. By and through such fraud, deceit, misrepresentations and/or omissions, bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 8 Defendants intended to induce the California Plaintiffs and those similarly situated to alter their Deleted: Plaintiff 9 position to their detriment. Specifically, Defendants fraudulently and deceptively induced Deleted: Plaintiff 10 Plaintiffs and those similarly situated to, without limitation, purchase the Flushable Wipes. Deleted: to Deleted: their 11 117. The California Plaintiffs and those similarly situated justifiably and reasonably 12 relied on Defendants' omissions, and, accordingly, were damaged by the Defendants. Formatted: Line spacing: single, No 13 118. As a direct and proximate result of Defendants' misrepresentations and omissions, bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 14 the California Plaintiffs and those similarly situated have suffered damages, including, without Deleted: Plaintiff 15 limitation, the amount they paid for the Flushable Wipes. 16 119. 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 Deleted: Plaintiff 18 and harm to the California Plaintiffs and those similarly situated. 19 FOURTH CAUSE OF ACTION Deleted: PLAINTIFF'S (Negligent Misrepresentation) 20 On Behalf of Themselves and the California Class Deleted: Himself Deleted: Plaintiff realleges 21 120. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + 22 Class Action Complaint as if set forth herein. 1" + 1.5" + 3" Deleted: s 23 121. In the time period from 2010 to the present, Defendants provided false and Deleted: 2013 24 misleading information regarding the Flushable Wipes, representing that the wipes were Deleted: Plaintiff 25 "flushable," leading the California Plaintiffs to believe that the Flushable Wipes were flushable, 26 i.e., suitable for flushing down a toilet. 27 122. These representations were material at the time they were made. They concerned Deleted: Plaintiff 28 material facts that were essential to the analysis undertaken by Plaintiffs as to whether to purchase Deleted: - Deleted: - -53- Consolidated Class Action Complaint 7 1 the Flushable Wipes. Formatted: Line spacing: single, No 2 123. Defendants made identical misrepresentations and omissions to members of the bullets or numbering, Tabs:Not at 0.5" + 1" + 1.06" + 1.5" + 3" 3 Class regarding Defendants' Flushable Wipes. Formatted: Line spacing: single, No 4 124. Defendants should have known their representations to be false and had no bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 5 reasonable grounds for believing them to be true when they were made. 6 125. By and through such negligent misrepresentations, Defendants intended to induce Deleted: Plaintiff 7 California Plaintiffs and those similarly situated to alter their position to their detriment. Deleted: Plaintiff 8 Specifically, Defendants negligently induced Plaintiffs and those similarly situated to, without Deleted: their 9 limitation, to purchase the Flushable Wipes. Deleted: Plaintiff 10 126. Plaintiffs and those similarly situated relied to their detriment on Defendants' Deleted: Plaintiff 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. Deleted: Plaintiff 14 127. Plaintiffs and those similarly situated have suffered damages, including, without 15 limitation, the amount they paid for the Flushable Wipes. Defendants' negligent representations Deleted: 16 and omissions were a substantial factor in causing the damage. Deleted: PLAINTIFF'S 17 18 FIFTH CAUSE OF ACTION Formatted: Indent: Left: 0.5" Unjust Enrichment Deleted: (Unfair, Unlawful and Deceptive 19 On Behalf of Themselves and the Class and Subclasses in Accordance with Trade Practices, Business and Professions Code § 17200, et seq.) Paragraph 165 On Behalf of Himself and the Class 20 Deleted: <#>Plaintiff realleges and incorporates 128. Plaintiffs reallege and incorporate each and every allegation set forth above as if by reference the paragraphs of this Class Action 21 Complaint as if set forth herein. fully set forth herein. Within four (4) years preceding the filing of this 22 Class Action Complaint, and at all times mentioned herein, Defendants have engaged, and continue to 129. By means of Defendants' wrongful conduct alleged herein, Defendants knowingly engage, in unfair, unlawful and deceptive trade 23 practices in California by engaging in the unfair, deceptive and unlawful business practices outlined in sold Flushable Wipes to Plaintiffs and members of the Class in a manner that was unfair, this Class Action Complaint. 24 unconscionable, and oppressive. 25 130. Plaintiffs and class members directly conferred a benefit on Defendants by 26 purchasing the Wipes. 27 131. Defendant knowingly received and retained these wrongful benefits and funds 28 Deleted: - Deleted: - -54- Consolidated Class Action Complaint 7 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. 4 132. In so doing, Defendant acted with conscious disregard for the rights of Plaintiffs 5 and members of the Class. 6 133. 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. 9 134. Defendants' unjust enrichment is traceable to, and resulted directly and 10 proximately from, the conduct alleged herein. 11 135. 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. 16 136. 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. 19 137. 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 22 138. Plaintiffs reallege and incorporate each and every allegation set forth above as if 23 fully written herein. 24 139. 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). 26 140. Plaintiffs and members of the Class are "consumers" within the meaning of 15 27 U.S.C. § 2301(3). 28 Deleted: - 141. Each Defendant is a "supplier" and "warrantor" within the meaning of 15 U.S.C. Deleted: - -55- Consolidated Class Action Complaint 7 1 § 2301(4) and (5), respectively. 2 142. The Flushable Wipes are "consumer products" within the meaning of 15 U.S.C. § 3 2301(1). 4 143. 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). 7 144. 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. 9 145. 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). 13 146. 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. 16 147. 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. 22 148. 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 Deleted: - Deleted: - -56- Consolidated Class Action Complaint 7 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. 4 149. 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. 6 150. 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. 17 151. 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. 26 152. 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 Deleted: - Deleted: - -57- Consolidated Class Action Complaint 7 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. 6 153. 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. 10 154. 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. 12 155. 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 18 156. Plaintiffs repeat and reallege the allegations above as if fully set forth herein. 19 157. 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. 22 158. 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. 27 159. These affirmations of fact became the basis of the bargain between Defendants and 28 Deleted: - Deleted: - -58- Consolidated Class Action Complaint 7 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. 3 160. 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. 12 161. 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. 17 162. 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. 24 163. Defendants' breach of its expressed warranties damaged Plaintiffs and the Class 25 Members in an amount to be proven at trial. 26 164. 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 Deleted: - Deleted: - -59- Consolidated Class Action Complaint 7 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 6 165. Plaintiffs repeat and reallege the allegations above as if fully set forth herein. 7 166. This claim is brought by Plaintiffs on behalf of the Warranty Subclass. 8 167. 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. 11 168. 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. 21 169. Defendants are merchants with respect to the goods that were sold to Plaintiff and 22 the Class. 23 170. 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. 26 171. 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. 28 172. By selling Defendants' Flushable Wipes to consumers like Plaintiffs and Class Deleted: - Deleted: - -60- Consolidated Class Action Complaint 7 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. 5 173. 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 22 174. Plaintiffs reallege and incorporate by reference the paragraphs of this Consolidated 23 Class Action Complaint as if set forth herein. 24 175. Plaintiffs bring this claim individually and on behalf of the Consumer 25 Unfairness/Unlawfulness Subclass. 26 176. 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 Deleted: - Deleted: - -61- Consolidated Class Action Complaint 7 Formatted: Line spacing: single, No 1 177. Within four (4) years preceding the filing of Davidson's original Class Action bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 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: Formatted: Indent: Left: 0.5", Hanging: 7 • deceptively representing to Plaintiffs, and those similarly situated, the Flushable 0.5", Line spacing: single, Bulleted + Level: 1 + Aligned at: 0.5" + Indent at: Wipes were suitable for flushing down a toilet; 0.75", Tabs:Not at 0.5" + 1.5" + 3" 8 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. Deleted: Sec. 305 of 13 • labeling the Flushable Wipes as "flushable," even though, under the Uniform Deleted: California 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 Formatted: Indent: Left: 0.5", Hanging: • violating the CLRA and UDAPs as described herein; and 0.5", Line spacing: single, Bulleted + 20 Level: 1 + Aligned at: 0.5" + Indent at: 0.75", Tabs:Not at 0.5" + 1.5" + 3" 21 • engaging in false, misleading and deceptive advertising as described herein; and Deleted: violating the FAL 3. Plaintiffs and those similarly situated relied to their detriment on Defendants' Deleted: . 22 Deleted: Plaintiff 23 unfair, deceptive and unlawful business practices. Had Plaintiffs and those similarly situated been Formatted: Line spacing: single, No bullets or numbering, Tabs:Not at 0.5" + adequately informed and not deceived by Defendants, they would have acted differently by not 1" + 1.5" + 3" 24 Deleted: Plaintiff 25 purchasing (or paying less for) Defendants' Flushable Wipes. Formatted: (none) Deleted: Defendants engaged in these unfair 26 4. Defendants' acts and omissions are likely to deceive the general public. practices to increase their profits. Accordingly, Defendants have engaged in unlawful trade practices, as defined and prohibited by section 27 5. Defendant's acts and omissions are unfair in that they (1) offend public policy by 17200, et seq. of the California Business and Professions Code 28 violating the statutory and common law provisions described herein and the Federal Trade Deleted: - Deleted: - -62- Consolidated Class Action Complaint 7 1 Commission standards; (2) are immoral, unethical, oppressive, or unscrupulous; and (3) cause 2 substantial injury to consumers. 3 6. 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. Formatted: Line spacing: single, No 6 7. Defendants engaged in these unfair practices to increase their profits. Accordingly, bullets or numbering, Tabs:Not at 0.5" + 1" + 1.5" + 3" 7 Defendants have engaged in unfair and unlawful trade practices. 8 8. 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. Deleted: Plaintiff 11 9. 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 Deleted: 15 Court. Among other things, Plaintiffs, and those similarly situated, lost the amount they paid for 16 the Flushable Wipes. 17 10. 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. Deleted: Plaintiff seeks 20 11. 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. Deleted: Plaintiff seeks 24 12. Plaintiffs seek, on behalf of those similarly situated, a declaration that the above- 25 described trade practices are fraudulent and/or unlawful. Deleted: Plaintiff seeks 26 13. 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 Deleted: - Deleted: - -63- Consolidated Class Action Complaint 7 Deleted: <#> 1 order of this Court, will continue to cause injury in fact to the general public and the loss of Deleted: Formatted: Indent: Left: 0", First line: 0", 2 money and property in that Defendants will continue to violate the laws of California, unless Tabs:Not at 0.5" + 1.5" Deleted: Plaintiff 3 specifically ordered to comply with the same. This expectation of future violations will require Deleted: as follows: A. On Cause of Action Number 1 4 current and future consumers to repeatedly and continuously seek legal redress in order to recover Deleted: Plaintiff 5 monies paid to Defendants to which Defendants were not entitled. Plaintiffs, those similarly Deleted:: Formatted: Indent: Left: 0", First line: situated and/or other consumers nationwide have no other adequate remedy at law to ensure 0.5" 6 Deleted: pursuant to California Civil Code section 1780; 7 future compliance with the California Business and Professions Code alleged to have been Formatted: Body Text, Indent: Left: 0", First line: 0.5", Widow/Orphan control, violated herein. Tabs:Not at 1" + 1.5" 8 Deleted: [Reserved]; and 9 PRAYER FOR RELIEF Deleted: [Reserved]. Deleted: B. On Causes of Action Numbers 2 and 10 WHEREFORE, Plaintiffs prays for judgment against Defendants and in favor of Plaintiffs and the Formatted: Body Text, Indent: Left: 0", First line: 0.5", Widow/Orphan control, 11 other members of the Class as follows: Tabs:Not at 0.5" + 1" + 1.5" + 3" Deleted: against Defendants and in favor of 12 1. for restitution and injunctive relief; Plaintiff and the other members of the Class: Deleted: 1. for restitution pursuant to, 13 2. actual and compensatory damages, the amount of which is to be determined at without limitation, the California Business & Professions Code §§ 17200, et seq. and 17500, et seq.; and 14 trial; 2 Deleted: injunctive relief pursuant to, 15 3. punitive damages, the amount of which is to be determined at trial; without limitation, the California Business & Professions Code §§ 17200, 16 4. statutory damages, the amount of which is to be determined at trial; et seq. and 17500, et seq.; C. On Cause of Action Number 3 against Defendants and in favor of Plaintiff 17 5. for reasonable attorneys' fees; and the other members of the Class: 1. an award of compensatory damages, the amount of which is to be determined 18 6. for costs of suit incurred; and at trial; and 2. an award of punitive damages, the 19 7. for such further relief as this Court may deem just and proper. amount of which is to be determined at trial. D. On Cause of Action Number 4 against 20 Defendants and in favor of Plaintiff and other members of the Class: 21 JURY TRIAL DEMANDED 1. An award of compensatory damages, the amount of which is to be determined at trial; 22 Plaintiffs hereby demand a trial by jury. E. On all causes of action against Defendants and in favor of Plaintiff, class ... [17] members and the general public: 23 Dated: January 29, 2019 GUTRIDE SAFIER LLP Formatted ... [18] <#>for reasonable attorneys' fees according to proof pursuant Deleted: Plaintiffto, without limitation, the California Legal Remedies Act and California 24 Deleted: Code ofs Civil Procedure § 1021.5; _/s/ Kristen G. Simplicio_____________ for Deleted: 25 GUTRIDE SAFIER LLP Formatted: Indent: Left: 0" Adam J. Gutride, Esq. 26 Seth A. Safier, Esq. Deleted: August 3, 2015 Kristen G. Simplicio, Esq. Deleted: 27 Marie McCrary, Esq. ... [19] 100 Pine Street, Suite 1250 Deleted: _________ 28 San Francisco, California 94111 Deleted: - Deleted: - -64- Consolidated Class Action Complaint 7 TYCKO & ZAVARREEI LLP Formatted: Font:Bold 1 Lorenzo B. Cellini 2000 L Street, N.W., Suite 808 2 Washington, DC 20036 3 SPANGENBERG SHIBLEY & LIBER LLP Formatted: Font:Bold 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 Deleted: - Deleted: - -65- Consolidated Class Action Complaint