Using the familiar "reasonable consumer standard" that applies in many jurisdictions regarding allegedly deceptive sales practices, a judge of the Northern District of California recently certified a class action of California consumers who purchased Charmin/Proctor & Gamble's "Freshmates" brand of "flushable" bathroom wet-wipes between April 6, 2011, and August 3, 2017.

The class claims centered on the allegation that Freshmates were not "flushable" as advertised because they were not compatible with municipal sewers and wastewater systems and did not properly degrade in the environment. On that basis, the class alleged violations of California's Unfair Competition Law, Legal Remedies Act, and False Advertising Law, as well as common-law claims for negligent misrepresentation, fraud, deceit, and/or misrepresentation.

The defendant resisted certification on the overarching basis that the class could not establish a uniform understanding of "flushable" across its membership. This assertion supported the defendant's arguments that the commonality, typicality, adequacy, predominance, and superiority certification elements were lacking.

However, the district court rejected the significance of that contention because the "reasonable consumer" standard is objective (not subjective) and, thus, does not require the representative plaintiff to prove a uniform definition of "flushable" across the class membership. Instead, it was sufficient that the plaintiff offered a consumer survey and other evidence that gave "rise to a probability that a significant portion of the relevant consumers acting reasonably could be misled" by the product's advertisement as "flushable," even if all of them did not share the same understanding of the adjective "flushable."

The court also rejected arguments about the fact that the class included purchasers of different versions of the Freshmates product. According to the court, all that mattered was that the plaintiff presented evidence that all of these versions – regardless of composition – were purportedly similar in that they were not "flushable" as advertised.

Another notable aspect of this decision was that the defendant made a lack-of-ascertainability argument to preserve that point for later appellate proceedings. It did so because the Ninth Circuit – unlike several other circuits – "does not require a class proponent [to] proffer an administratively feasible way to identify class members" as part of a Rule 23 certification analysis. Perhaps Proctor & Gamble intends to alter that Ninth Circuit precedent through an en banc request or, eventually, through a certiorari petition to the United States Supreme Court.

Finally, the district court clarified that injunctive relief remained an available remedy despite the representative plaintiff's testimony that she would never again purchase defendant's product. Per the court, that testimony did not deprive the plaintiff of standing to pursue the injunction against the product's "flushable" labeling because she nevertheless "has a cognizable interest in a market where prices are not distorted by any misrepresentations.

Pettit v. Proctor & Gamble Co., No. 15-CV-02150-RS, 2017 WL 3310692 (N.D. Cal. Aug. 3, 2017).

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