Kimberly-Clark v. Davidson

Kimberly-Clark Corporation sells multiple brands of moistened wipes that it advertises and labels as “flushable” and “sewer and septic safe”—although they are not. In this case, Jennifer Davidson filed a class-action suit under California’s consumer protection laws, seeking to recover the premium that she and others paid for wipes falsely marketed as flushable and to obtain injunctive relief against Kimberly-Clark’s ongoing false advertising of its wipes. The court of appeals held that Ms. Davidson had standing to pursue damages for the economic injury she suffered by paying a premium for a product that did not live up to its billing and that she adequately alleged standing to seek injunctive relief because, absent an injunction preventing Kimberly-Clark from marketing its wipes as “flushable” unless they are actually flushable, she will continue to suffer injury: denial of accurate information to inform her decision whether to purchase Kimberly-Clark’s or others’ wipes. Kimberly-Clark then petitioned for review in the U.S. Supreme Court, challenging the holding that she had alleged sufficient facts to establish an ongoing injury that enables her to seek injunctive relief against Kimberly-Clark’s continuing false marketing campaign.

Serving as co-counsel in the Supreme Court, we helped to oppose the company’s petition. The brief in opposition explains that the question presented by the case—whether a consumer duped by a company’s false advertising into purchasing a product has properly alleged standing to seek injunctive relief against the company’s continued false advertising, where she alleges an ongoing desire to purchase the same type of product and an impending risk of being injured by the company’s false advertising—does not warrant review.