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Machlan v. Procter & Gamble Co.

United States District Court, N.D. California

January 7, 2015

PROCTER & GAMBLE COMPANY, et al., Defendants

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[Copyrighted Material Omitted]

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For David Machlan, an individual, on behalf of himself, the general public, and those similarly situated, Plaintiff: Seth Adam Safier, LEAD ATTORNEY, Adam Gutride, Kristen Gelinas Simplicio, Marie Ann McCrary, Gutride Safier LLP, San Francisco, CA.

For Procter & Gamble Company, Defendant: Emily Johnson Henn, LEAD ATTORNEY, Covington & Burling LLP, Redwood Shores, CA; Cortlin Hall Lannin, Sonya Diane Winner, Covington & Burling LLP, San Francisco, CA.

For Nehemiah Manufacturing Company, Defendant: William Charles Wilka, LEAD ATTORNEY, Dudnick Detwiler Rivin & Stikker LLP, San Francisco, CA; Donald J. Mooney, Jr., Ulmer and Berne LLP, Cincinnati, Oh.

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JAMES DONATO, United States District Judge.

Re: Dkt. Nos. 23, 25

In this consumer class action, named plaintiff David Machlan alleges that defendants Procter & Gamble Company (" P& G" ) and Nehemiah Manufacturing Company (" Nehemiah" ) deceptively marketed several lines of personal wipes as " flushable" when in fact they were not. After jointly removing the action, P& G and Nehemiah moved to dismiss the complaint. The Court grants the motions in part and denies them in part.[1]


Plaintiff alleges in his class action complaint that " [d]efendants deceptively market several lines of personal hygiene moistened wipes ('wipes') as 'flushable.' They charge a premium for these wipes, as compared to both toilet paper and to wipes that are not marketed as 'flushable.'" Dkt. No. 1-1 ¶ 1. According to plaintiff, defendants do not tell consumers that the allegedly " flushable" wipes are " not suitable for disposal by flushing down a toilet as they routinely damage or clog pipes, septic systems, and sewage pumps; they do not disperse, disintegrate, or biodegrade like toilet paper; and they are not regarded by municipal sewage systems as appropriate to flush down a toilet." Id. Plaintiff quotes, for example, the East Bay Municipal Utility District's statement to consumers that " '[d]isposable' and 'flushable' wipes and other products don't break down in the sewer" and instead " get tangled and clumped in hair and debris creating massive obstructions in the sewers," and that such wipes should therefore " never be flushed." Id. ¶ 30 (emphasis in original).

Two types of wipes are at issue in this case: the Charmin Freshmates flushable wipes (" Charmin wipes" ) and the Pampers Kandoo flushable wipes (" Pampers wipes" ). Id. ¶ 19. The Pampers wipes are marketed as being intended for toddlers and to assist with potty training; the Charmin wipes are alleged to have been marketed more generally for use " as part of a bathroom routine." Id. ¶ ¶ 18, 40-41.

Plaintiff alleges that defendants played different roles for the two kinds of wipes. The complaint states that P& G " manufactures and markets the Charmin Wipes." Id. ¶ 20. Nehemiah is not alleged to have had any involvement with the Charmin wipes. For the Pampers wipes, plaintiff alleges that P& G " invented" them and " invested in the initial research and development and marketing of those wipes," but that since 2009, P& G " had shared responsibility with Nehemiah for the manufacturing and/or marketing of the product." Id. ¶ 21. More specifically, plaintiff alleges that Nehamiah is a participant in P& G's " Connect Develop" program in which P& G partners with smaller manufacturers, and that Nehamiah is a licensee for the Pampers Kandoo product. Id. ¶ ¶ 17-18.

Plaintiff's interactions with the two wipes is also different. His complaint alleges only that he bought the Pampers Kandoo wipes. He purchased one 350-count package for $11.09 in January 2014, and began using them. Id. ¶ 74. According to the complaint, " [a]fter his children went to the bathroom, he would use 1-2 wipes to clean and dry them. He immediately had problems flushing the wipes, as the toilet clogged and backed up. After he

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unclogged the toilet, he noticed that the toilet paper had partially decomposed, but the wipes were completely intact. Concerned about a risk of expensive plumbing repairs, he stopped flushing the wipes." Id. ¶ ¶ 75-76. He claims that " [h]ad Defendants not misrepresented (by omission and commission) the true nature of their 'Flushable' Products, Plaintiff would not have purchased Defendants' product." Id. ¶ 77.

Plaintiff seeks to represent a class of California purchasers of the wipes from March 21, 2010 to the present. Id. ¶ 78. (The complaint contains a typo known to both sides that gives the beginning date for the class period as March 21, 2014. Plaintiff has stated that he intends to correct this typo " at an appropriate juncture." See Dkt. No. 43 at 2 n.1. He will have that opportunity in response to this order.) The complaint asserts four claims against defendants: (1) violation of the Consumer Legal Remedies Act (" CLRA" ), California Civil Code § 1750 et seq.; (2) false advertising in violation of California Business and Professions Code § 17500 et seq. (" FAL" ); (3) fraud, deceit and/or misrepresentation; and (4) unfair, unlawful and deceptive trade practices in violation of California Business and Professions Code § 17200 et seq. (" UCL" ). Dkt. No. 1-1 at 22-30. He asks the Court to grant him restitution and injunctive relief for his CLRA, FAL and UCL claims, and compensatory and punitive damages for his common law fraud claim. Id. at 30-31.

Plaintiff originally filed his complaint in the California Superior Court for the City and County of San Francisco, but P& G and Nehemiah jointly removed the action to this federal district court, invoking the Court's jurisdiction under the Class Action Fairness Act (" CAFA" ), 28 U.S.C. § 1332(d). Dkt. No. 1 at 3. Defendants asserted that the Court has jurisdiction because the case " is (1) a proposed class action within the meaning of CAFA, in which (2) 'any member of a class of plaintiffs is a citizen of a State different from any defendant,' (3) the 'number of members of all proposed plaintiff classes in the aggregate is [not] less than 100,' and (4) 'the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interests and costs.'" Id. (citing 28 U.S.C. § 1332(d)(2), (d)(5)(B)). Plaintiff did not contest the removal.

Before the Court is P& G's motion to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and/or 9(b). Dkt. No. 25. Nehemiah joins in certain of P& G's arguments, and additionally moves to dismiss the complaint or strike the class allegations from it pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(f), 23(c)(1)(A) and 23(d)(1)(D). Dkt. No. 26.



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