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From Products Liability Law Daily, March 26, 2015

“Flushable wipes” consumer may seek preliminary injunction without probable future harm

By Greg Hammond, J.D.

A consumer of “Charmin Freshmates” flushable wipes was deemed eligible to seek preliminary injunction against The Procter & Gamble Company (P&G) for alleged violations of New York’s deceptive acts and practices law, despite the unlikelihood that he would re-purchase the wipes again. To hold otherwise, according to the federal district court in Brooklyn, would “denigrate” the New York consumer protection statute (Belfiore v. The Procter & Gamble Co., March 25, 2015, Weinstein, J.).

Background. Anthony Belfiore filed a putative class action against P&G in May 2014, alleging that the company violated New York General Business Law section 349 by stating on the products’ packaging that the wipes are “flushable” and “septic safe.” Belfiore purportedly viewed the Charmin Freshmates packages and purchased the product in February 2014. After flushing one or two Freshmates at a time, pursuant to a suggestion on the product’s packaging, Belfiore’s toilet clogged and the sewer backed up. A plumber removed the wipes and charged Belfiore over $500. Belfiore consequently sought monetary damages and a permanent injunction to prevent and enjoin P&G from representing Freshmates as “flushable.”

P&G moved to dismiss the claim for injunctive relief for lack of standing. The company also moved to dismiss for failure to state a claim and moved to strike the consumer’s class action-related allegations.

Preliminary injunction. The main question, which has not yet been directly addressed by the Second Circuit, is whether a consumer who is dissatisfied with a defective product can seek an injunction under New York State law, even though it is improbable that he will ever purchase the product again.

Federal courts have held that plaintiffs have standing to seek injunctive relief based on allegations that a product’s labeling or marketing is misleading to a reasonable consumer, according to the court. It also noted that public policy supports the rule that Article III standing exists to seek injunctive relief. To hold otherwise, according to the court, would “denigrate” the New York consumer protection statute because every consumer who avoids an offending product would be effectively barred from seeking injunctive relief.

“An injunction in connection with a class action is designed to afford protection of future consumers from the same fraud,” the court stated. “It does this by permitting the plaintiff to sue on their behalf.” The motion to dismiss the claim for preliminary injunction was therefore denied.

The motion to dismiss for failure to state a claim and motion to strike the class action allegations were also denied because: (1) Belfiore pleaded causation in sufficient detail, establishing a reasonable inference that he saw the misleading statements and, as a result, purchased the product at issue; and (2) Belfiore’s allegations of one common motivation and one common injury—payment of a premium price—were sufficient.

The case is No. 14-CV-4090.

Attorneys: Lester L. Levy (Wolf, Popper, LLP) for Anthony Belfiore. Emily Henn, Andrew D. Schau, and Cortlin Lannin (Covington & Burling LLP) for The Proctor & Gamble Co.

Companies: The Proctor & Gamble Co.

MainStory: TopStory ClassActLitigationNews DamagesNews HouseholdProductsNews NewYorkNews

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