[co-author: Gail Jankowski]

In three related actions before the Eastern District of New York, consumer plaintiffs who purchased moist toilet wipes manufactured and produced by Kimberly-Clark and sold by Costco alleged that defendants mislabeled the wipes as “flushable.” The court denied certification of a nationwide class, but did certify three New York class actions all involving New York law and New York purchases but different defendants and a different product.

The court declined to certify the nationwide class because the named plaintiff failed to demonstrate the “financial or other capacity to adequately represent a national class of consumers.” The court based this decision on plaintiff’s “reluctance to conduct a scientific survey of consumers to determine a reasonable consumer’s understanding of the term ‘flushable’” and that “conducting such a survey on a national scale would be costly.” The court further found limiting certification to New York classes appropriate because “the events underlying [plaintiff’s] claim took place in New York and discovery has largely been confined to New York.” As such, the court limited its certification to three New York classes, two in the present case and one in a related case.

Kurtz v. Kimberly–Clark Corp., No. 14–CV–1142 (E.D.N.Y Feb. 27, 2017).