A federal judge ruled the maker of Dude Wipes can’t fully dispose of a class action lawsuit accusing the company of falsely marketing its products as flushable.
Arlene Wyant, Dexter Cobb and Josefina Darnall sued Dude Products in federal court in Chicago, alleging violations of California, New York and Illinois law because Dude Wipes moistened toilet tissue don’t sufficiently break down in sewer and septic systems. In an opinion issued March 3, U.S. District Judge Sharon Coleman partially denied the company’s motion to dismiss the complaint.
The plaintiffs’ complaint challenged three types of Dude Wipes packaging and included product labeling with a side panel disclaimer. Coleman said the plaintiffs didn’t read the disclaimer before purchasing and “experienced problems with their home plumbing systems.”
The company argued the plaintiffs shouldn’t be entitled to an injunction because they were unlikely to buy a product they believed to be defective. Although the plaintiffs said they would continue to buy Dude Wipes if the company ensured they were flushable, Coleman said the argument isn’t persuasive and ruled the plaintiffs lacked standing to pursue an injunction.
Coleman further dismissed claims for restitution and disgorgement, citing a 2020 U.S. Ninth Circuit Court of Appeals opinion in Sonner v. Premier Nutrition regarding application of California’s unfair competition and false advertising laws. Specifically, Coleman said, the plaintiffs didn’t allege they had no other legal remedies.
However, Coleman would not dismiss the plaintiffs’ proposed nationwide class and their consumer fraud multistate subclass, agreeing the question is better suited for when she determines if class certification is appropriate. Although the complaint alleges consumer fraud on behalf of residents of seven states beyond the three in which plaintiffs reside, Coleman noted the company’s “challenge goes to the heart of the named plaintiffs’ capacity to represent the class members’ state-law claims and not standing.”
With regard to the remaining consumer protection and false advertising allegations, Coleman sided with the plaintiffs’ citation of a 2020 Seventh Circuit Court of Appeals opinion in Bell v. Publix Super Markets to establish a judge can’t presume all reasonable consumers would read the fine print of a disclaimer.
“Even if reasonable consumers referenced the side panel to assess the front label’s assertion, the disclaimer language does not destroy plaintiffs’ claims,” Coleman wrote. “Plaintiffs have plausibly alleged that the packaging is likely to deceive reasonable consumers that the Wipes are flushable. Whether consumers indeed understood the Wipes to be flushable remains a question of fact.”
Coleman stipulated the disclaimer lists conditions under which flushing a Dude Wipe is and is not acceptable, and although that directly contradicts the allegations the wipes can’t ever be flushed, the disparity speaks to ambiguity. She further said claims of violating Illinois and New York consumer protection laws are not duplicative of their warranty breach claim, as Dude argued, but can stand alone because the plaintiffs alleged affirmative misrepresentation under the Illinois Consumer Fraud Act.
Finally, Coleman agreed to dismiss the breach of implied warranty allegation, agreeing the plaintiffs didn’t allege Dude Wipes aren’t suitable for ordinary use because whether they are flushable has no bearing on their personal hygiene applications. She said the plaintiffs didn’t adequately respond to the company’s defense and only effectively changed their argument in a response brief to say the wipes fail to “conform to the promise or affirmations of fact made on the… label” rather than the complaint’s allegation the wipes weren’t “of the same average grade, quality and value as similar goods sold under similar circumstance.”
The plaintiffs are represented in the lawsuit by attorneys Frederick J. Klorczyk III, Neal J. Deckant and Brittany S. Scott, of Bursor & Fisher, of New York and Walnut Creek, California; and Nick Suciu III, of Barbat Mansour Sucio & Tomina, of Bloomfield Hills, Michigan.
Dude is represented by attorneys Christine E. Skoczylas, Brian W. Lewis, Paul Olszowka and Cristina Alma Mcneiley, of the firm of Barnes & Thornburg, of Chicago.