Rosenwald v. Kimberly Clark Corporation

Background

The eight plaintiffs brought a proposed class action alleging that Kimberly-Clark Corporation’s marketing of Kleenex Wet Wipes Germ Removal violated consumer-protection laws in several states. The product’s front label said that it “safely wipes away 99% of germs from skin” and had “no harsh chemicals.” The back label described the product as alcohol-free and made with water, glycerin, aloe, and mild surfactants. The plaintiffs alleged that consumers would understand the product to be as effective as alcohol or other germicides, and more effective than ordinary soap, even though the product had no germicidal ingredients.

Two plaintiffs resided in California. The other plaintiffs resided in Wyoming, Washington, Colorado, Florida, Pennsylvania, and New Jersey and bought the product in their states of residence. The proposed classes included purchasers nationwide, purchasers in the plaintiffs’ states, purchasers in states with laws similar to California’s laws, and a California purchaser class. The complaint asserted claims under California’s Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law, similar claims under other states’ laws, and a claim for declaratory relief.

Defendant’s Motion

Kimberly-Clark moved to dismiss under Federal Rule of Civil Procedure 12(b)(2), which addresses personal jurisdiction, and Rules 12(b)(6) and 9(b), which address failure to state a claim and the required detail for fraud allegations. Kimberly-Clark argued that its California contacts did not establish general personal jurisdiction and that California lacked specific personal jurisdiction over claims based on purchases made elsewhere. It also argued that the product labels were not deceptive and that the plaintiffs had not pleaded fraud with sufficient particularity.

Personal Jurisdiction

The court held that Kimberly-Clark was incorporated in Delaware and headquartered in Dallas, Texas. Its California contacts included three locations, a past or possibly continuing manufacturing plant, California job postings, and employees located in California. The court held that these contacts were not so continuous and systematic as to make Kimberly-Clark essentially at home in California. It therefore concluded that California lacked general personal jurisdiction over Kimberly-Clark.

The court also held that the non-California plaintiffs had not shown specific personal jurisdiction. Specific personal jurisdiction generally requires a connection between the defendant’s forum-related conduct and the claims. The court concluded that the non-California plaintiffs’ claims arose from purchases made in their states of residence, not from Kimberly-Clark’s California contacts. It dismissed those plaintiffs’ claims for lack of personal jurisdiction.

Reasonable Consumer Analysis

The court evaluated the California plaintiffs’ claims under the reasonable-consumer test, which asks whether the challenged advertising would deceive a reasonable consumer. The court held that the front label said the wipes “wipe away” germs, not that they kill germs, and did not say that the product was a germicide. It also held that the front and back labels were accurate and consistent with each other.

The court rejected the plaintiffs’ arguments based on the ingredient list, the product’s orange color, and the placement of the product near alcohol-based products. It reasoned that the accurate back label confirmed rather than contradicted the front label, that the complaint did not allege the plaintiffs saw the other-colored products, and that selling similar products near one another was ordinary retail marketing. The court concluded that the plaintiffs had not plausibly alleged that the labels deceived a reasonable consumer and dismissed the California plaintiffs’ claims for failure to state a claim.

Disposition

The court granted Kimberly-Clark’s motion to dismiss and dismissed the non-California plaintiffs’ claims for lack of personal jurisdiction and the California plaintiffs’ claims for failure to state a claim. The court stated that the same labeling analysis seemingly applied to the similar state-law claims involving the non-California plaintiffs. Because the deficiencies were based on the labels, the court said that curing them appeared difficult, but it allowed the plaintiffs to file an amended complaint within 28 days if they could cure the deficiencies. The new filing had to include a blackline comparison with the current complaint. The order disposed of ECF No. 25.