October 31, 2017 Practice Points

Is Injunctive Relief Available under California law after the Consumer Knows an Advertisement Is False?

The Ninth Circuit resolved a split among lower courts.

By Adam E. Polk – October 31, 2017

In Davidson v. Kimberly-Clark Corp., et al., the Ninth Circuit clarified the circumstances under which California false-advertising plaintiffs can obtain injunctive relief as to an alleged misrepresentation. Resolving a lower-court split, the Ninth Circuit held that a California plaintiff with past knowledge of a statement’s falsity can sue to force a defendant to stop making the statement. Regarding standing, the court reasoned that the alleged inability to rely on the statement going forward is an ongoing injury.

The Davidson case involves claims that the Kimberly-Clark Corporation falsely represented that certain of its cleansing wipes were flushable, meaning that they were “suitable for disposal down a toilet.” After buying the wipes, Jennifer Davidson learned that the wipes were not flushable, and she has not purchased the wipes since. Davidson did allege, however, that she “continues to desire to purchase wipes that are truly flushable wipes manufactured by [Kimberly-Clark].” Davidson alleged that the false statements violated California’s unfair-competition and false-advertising laws and sought, among other things, injunctive relief to prevent Kimberly-Clark from making the alleged false statement.

The district court dismissed Davidson’s claim for injunctive relief on grounds that she lacked standing because she was unlikely to buy the wipes in the future. The Ninth Circuit reversed, reasoning that Davidson’s inability to rely on the “flushable” representation in the future constitutes harm sufficient to confer standing to seek injunctive relief under Article III. The court acknowledged that district courts have found standing lacking in similar circumstances because consumers aware of the deceptive nature of an advertisement are not capable of being harmed again in the same way. The Davidson court rejected this reasoning however, finding, “[k]nowledge that the advertisement or label was false in the past does not equate to knowledge that it will remain false in the future.”

Moving forward, as long as a California false-advertising plaintiff plausibly alleges he or she will be unable to rely on the actionable misstatement in the future, standing to seek injunctive relief exists.

 

Adam E. Polk is a partner with Girard Gibbs LLP in San Francisco, California.


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