# Kurtz v. Kimberly-Clark Corp.

> District Court, E.D. New York · March 27, 2017 · 321 F.R.D. 482

URL: https://www.frixlaw.com/law-library/cases/8777590

## Case

- **Full name:** D. Joseph KURTZ, Individually and on Behalf of All Others Similarly Situated v. KIMBERLY-CLARK CORPORATION & Costco Wholesale Corporation, Defendants Anthony Belfiore, Individually and on Behalf of All Others Similarly Situated v. The Procter & Gamble Company, Defendant Desmond R. Armstrong, Individually and on Behalf of All Others Similarly Situated v. Costco Wholesale Corporation & Nice-Pak Products, Inc., Defendants Gladys Honigman, Individually and on Behalf of All Others Similarly Situated v. Kimberly-Clark Corporation, Defendant Steven and Ellen Palmer, Individually and on Behalf of All Others Similarly Situated v. CVS Health & Nice-Pak Products, Inc., Defendants Eugene and Victoria Richard, Individually and on Behalf of All Others Similarly Situated v. Wal-Mart Stores, Inc. & Rockline Industries
- **Court:** District Court, E.D. New York
- **Decided:** March 27, 2017
- **Citations:** 321 F.R.D. 482; 2017 WL 1155398
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Weinstein
- **Judges:** Weinstein
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8777590

## How later opinions describe it (automated extraction)

- holding the class sufficiently specific to be ascertainable because it “identif[ied] a particular group of individuals who were harmed in a particular way (defrauded by labels and marketing materials) during a specific period in particular areas.” (alterations adopted) (citati…
- stating that conjoint analyses "have previously been approved in consumer class actions as reliable methodologies available for calculating the price premium attributable to a product characteristic"
- noting that statutory damages would be “available on a class basis in federal court” but that under New York law, “they would be barred by [New York Civil Practice Law and Rules] section 901(b) if the same action were to proceed in state court”
- stating, at class certification, that “precise statutory damages can be calculated on a classwide basis” only “once the injury is established” (emphasis added)

## Opinion text

MEMORANDUM & ORDER CERTIFYING CLASS ACTIONS
Jack B. Weinstein, Senior United States District Judge:
Table of Contents
I. Introduction ... 492
A. General Theory ... 492
B. Original Cases ... 493
II. Procedural Background ... 496
A. Overview of Cases ... 496
B. Motion to Dismiss for Lack of Standing Denied in Belfiore Action ... 497
C. Motions for Class Certification in the Belfiore and Kurtz Actions ... 498
D. Preliminary Rulings on Class Certification in Belfiore Action ... 498
1. Injunctive Class ... 499
2. Damages Class ... 499
E. Stay and FTC Referral ... 502
F. Motion to Reconsider Denied in Belfiore Action ... 502
G. Final FTC Consent Order with Nice-Pak ... 503
H. Motion to Lift Stay Denied in Kurtz Action ... 504
I. Continued Urging of Settlement Discussions ... 504
J. Aggregate Agency Adjudication ... 504
K. Conclusion of FTC Investigation of Kimberly-Clark ... 505
L. Belfiore Update Letter and Request for Conference ... 505
M. Request for Briefing on Lifting of Stay ... 506
N. Continued Encouragement to Aggregate and Settle ... 506
O. Instant Motion Practice ... 506
III. Deciding Class Certification Prior to Deciding Summary Judgment ... 507
IV. Facts ... 508
A. Plaintiff Belfiore ... 508
B. Plaintiff Kurtz ... 508
C. Procter & Gamble’s Charmin Fresh-mates. ... 509
D. Kimberly-Clark’s Flushable Wipes.... 511
E. Costco’s Kirkland Signature Moist Flushable Wipes ... 515
V. Definitions of “Flushability” ... 520
A. According to the FTC ... 520
B. According to the Plaintiffs ... 520
C. According to Plaintiffs’ Experts ... 520
D. According to Plaintiffs’ Counsel ... 521
E. According to Defendants’ Experts ... 521
F. According to Defendants’ Counsel ... 521
G. According to Defendants’ Labeling Practices ... 522
H. According to Dictionaries ... 523
I. Lack of Consumer Surveys ... 523
VI. Expert Reports ... 523
A. Plaintiffs’ Expert: Colin B. Weir ... 523
B. Procter & Gamble’s Expert: Carol A. Scott, Ph.D ... 524
*492 C. Costco’s Expert: Denise N. Martin, Ph.D. ... 524
D. Kimberly-Clark’s Expert: Keith R. Ugone, Ph.D. ... 525
VII. New York Law ... 525
A. New York General Business Law §§ 349 and 350 ... 525
B. Common Law Claims ,.. 526
1. Negligent Misrepresentation ... 526
2. Breach of Express Warranty ... 527
3. Unjust Enrichment ... 527
VIII. Class Certification in Kurtz and Belfiore ... 527
A. Rule 23(a)(1): Numerosity ... 529
B. Rule 23(a)(2): Commonality ,.. 529
C. Rule 23(a)(3): Typicality ... 532
1. Typicality in Belfiore ,,, 533
2. Typicality in Kurtz ... 534
D. Rule 23(a)(4): Adequacy of Repre» sentation ... 535
1. Adequacy in Belfiore .,, 536
2. Adequacy in Kurtz ... 536
E. Implied Requirement of Ascertaina-bility ... 538
F. Rule 23(b) Factors ... 539
1. Rule 23(b)(2) Injunctive Relief ... 540
2. Rule 23(b)(3) Damages ... 547
IX. Appointment of Class Counsel ... 554
X. Conclusion ... 554
I. Introduction
In a number of class actions, consumers sue vendors and manufacturers of “flushable toilet wipes.” Purchasers contend that the products are not flushable — they clog household plumbing.
From the beginning of this litigation it was clear that some form of consolidation of consumer complaint (as well as those of municipalities, if possible) was desirable. See Letter to Judges Phyllis Hamilton, Donald C. Nu-gent, and Leonard D. Wexler, 14-CV-1142, Sept. 11, 2014, ECF No. 39; Letter to Judge Robert L. Hinkle, 14-CV-1142, Feb. 18, 2015, ECF No. 77. Thus far, a constellation of class actions has appeared: suits by consumers’ lawyers have proliferated; dug in defenses by producers and sellers have slowed disposition; and failure by the courts and an administrative agency to apply mass tort solutions have left an unresolved, fractured litigation.
In the most recent round of briefing, the parties have directed attention to what they consider the most critical point in the litigation: the motions for class certification made in cases brought by New York purchasers D. Joseph Kurtz (14-CV-1142) and Anthony Belfiore (14-CV-4090). In the present memorandum and order, the court grants, in part, the motions for class certification in these two cases. The other actions have been stayed, transferred or dismissed, and in Kurtz, slimmed down to include only New York purchasers and law. See Palmer v. CVS Health & Nice-Pak Prod., Inc., 2017 WL 656767 (E.D.N.Y. Feb. 17,2017) (transferring action to the District of Maryland); Armstrong v. Costco Wholesale Corp. & Nice-Pak Prod., Inc., 234 F.Supp.3d 367 , 2017 WL 656768 (E.D.N.Y. Feb. 17, 2017) (transferring action to the District of Oregon); Kurtz v. Kimberly-Clark Corp., 320 F.R.D 10, 2017 WL 751231 (E.D.N.Y. Feb. 27, 2017) (severing and transferring New Jersey-based claims, denying certification of a nationwide class, and staying Hanigman & Kurtz v. Kimberly-Clark, 15-CV-2910); Richard & Richard v. Wal-Mart Stores, Inc. & Rockline Indus., Order Dismissing Case with Prejudice, 16-CV-4579, Jan. 19, 2017, ECF No. 95 (dismissing New Hampshire case with prejudice on consent), Kurtz and Belfiore are now New York consumer class actions.
A. General Theory
Six separate but related consumer class actions were before the court. They were brought by consumers who purchased moist toilet wipes sold by retailer defendants, produced by manufacturer defendants, and marked “flushable.” Alleged in all the cases are defects in labeling. Consumers seek mon *493 ey damages and injunctive relief against manufacturers and retailers of these moist wipes, which are labeled and advertised as “flushable” but alleged not to be “flushable.” See Kurtz v. Kimberly-Clark Corp., Costco Wholesale Corp., No. 14-CV-1142 (“Kurtz action”) (relying on New Jersey and New York law); Armstrong & Kurtz v. Costco Wholesale Corp. & Nice-Pak Prods., Inc., 15-CV-2909 (“Armstrong action”) (relying on Oregon law); Palmer & Palmer v. CVS Health & Nice-Pak Prods., Inc., 15-CV-2928 (“Palmer action”) (relying on Maryland law); Honigman v. Kimberly-Clark, 15-CV-2910 (“Honigman action”) (relying on New York law); Belfiore v. Procter & Gamble Co., 14-CV-4090 (“Belfiore action”) (relying on New York law); Richard & Richard v. Wal-Mart Stores, Inc. & Rockline Industries, 15-CV-4579 (“Richard action”) (relying on New Hampshire law).
In dealing with the kind of multiple-plaintiff versus multiple-defendant national consumer problems presented in the instant federal litigation, there are a number of ways to proceed. The goal is to achieve a single decision by a single court or administrative agency — preferably through a global settlement— that fairly decides all pending disputes, forestalls future similar’ disputes, and protects both consumers and suppliers. The American civil adjudicative system provides a number of flexible tools to achieve such a resolution. The memorandum issued by the court on November 18, 2016 explains these tools in detail. See Kurtz v. Kimberly-Clark Corp., — F.Supp.3d -, 2016 WL 6820405 (E.D.N.Y. Nov. 18, 2016). The parties, contrary to the court’s urging, have chosen to proceed independently and to litigate a dispute which could have been readily settled to the benefit of all parties and the public by relatively minor changes in labeling.
This court was faced with six individual class actions, while keeping its eye on related cases in other venues. See, e.g., City of Perry, Iowa v. Procter & Gamble Co., 188 F.Supp.3d 276 (S.D.N.Y. 2016) (a municipal waste disposal case); Meta v. Target Corp., 2016 WL 6076089 (N.D. Ohio Sept. 20, 2016) (consumer case); Belfiore v. Procter & Gamble Co., 311 F.R.D. 29, 43-45 (E.D.N.Y. 2015), reconsideration denied, 140 F.Supp.3d 241 (E.D.N.Y. 2015) (listing pending “flushable” wipes liti-gations brought by consumers and municipalities in other jurisdictions); Scheduling Order, 14-CV-4090, Oct. 13, 2016, EOF No. 209 at 3 (requiring the parties to “notify the court of any similar cases they are aware of involving flushable wipes’ efficacy and dangers pending in any court or administrative agency, whether consumer or municipality oriented, in the United States or abroad”).
Individual class case adjudication state by state is not satisfactory. Nevertheless, the plaintiffs have chosen this route — unchallenged by defendants — and the court is compelled to follow the pai'ties’ choice. It is certifying New York class actions in Kurtz and Belfiore and has transferred, stayed, or dismissed the other actions.
B. Original Cases
Consumers in all six cases claimed they paid a premium for what are known as “flushable wipes” — moist towelettes intended for use in place of, or in addition to, toilet paper — that are not flushable and clog household toilet facilities, While in some cases consumers seek damages for impairment by clogging of household human waste systems (leading into municipal sewers or private cesspools), the central injury claimed is payment of an unjustified premium for a product that was misrepresented as “flushable.” See, e.g., Belfiore, 311 F.R.D. at 64 (“The injury is the payment of an inflated price, not the clog. What happened after [the individual plaintiffs] purchase, as a result of his sewage disposal system or the condition of his pipes, is irrelevant to the class’s premium price theory.”). Damages for impairment of cesspools or household sewage systems or municipal systems by clogging or otherwise is not covered by the class certifications since they are either not before the court or are too variable and individual to be covered in a class action.
These are putative class actions by consumers and householders only. It might have been contended that consumers have standing not only to pursue their own claims, but also to advance municipal claims as taxpayers because clogging at sewage plants ultimately *494 puts in danger the system to which their household disposal systems are connected. Arguably, this would provide householders with an interest in the whole municipal operating system for disposing of toilet waste. But such municipal-based claims have not been advanced by plaintiffs. The instant consumer cases are distinguished from cases claiming clogging of municipal sewage systems and their machinery. See e.g., City of Perry, 188 F.Supp.3d.
The “flushable” industry has sales in the billion dollar range. It includes many manufacturers and retailers, different designs, and a variety of brands. It depends on convincing consumers that they will get the added comfort from “moist” wipes without fear that, because the fabric is stronger and less likely than toilet paper to break up quickly when flushed, the toilet will clog.
Factual and scientific hearings were conducted jointly by the court and magistrate judge to help determine how these cases should be administered. Extensive scientific testimony and demonstrations were introduced, showing advantages of the products and potential difficulties and concerns relied upon by the plaintiffs; enough evidence was produced to warrant consideration of certification issues. See, e.g., Science Day Part I Hr’g Tr., 14-CV-1142, 14-CV-4090, June 19, 2015 (“Science Day I”); Science Day Part II Hr’g Tr., 14-CV-1142, 14-CV-4090, July 21, 2015 (“Science Day II”).
In October 2015, the court stayed all related flushable actions pending in the Eastern District of New York. The issue of an appropriate definition of “flushable” wipes and related matters were respectfully referred to the Federal Trade Commission (“FTC”). See Belfiore, 311 F.R.D. at 39, 73-80 ; see also Order Staying Cases, 14-CV-1142, Oct. 13, 2015, EOF No. 183.
At that time, the Commission was considering claims against defendants in this court. The FTC had a filed complaint against Nice-Pak Products, Inc. (“Nice-Pak”). Nice-Pak is the manufacturer of the “flushable” wipes sold by retailers Costco Wholesale Corporation (“Costco”) and CVS Health (“CVS”). The Commission was separately conducting individual investigations into the “flushable” products of Kimberly-Clark Corporation (“Kimberly-Clark”) and Procter & Gamble Company (“Procter & Gamble”).
After the stays were interposed in the instant court proceedings, the FTC entered into a final consent order with Nice-Pak. See Nice-Pak Final Consent Order, 14-CV-1142, Nov. 10, 2015, ECF No. 207-1 (“Nice-Pak Final Consent Order”). In addition to binding Nice-Pak, the final consent order reaches the retailers that market and sell Nice-Pak’s “flushable” wipes, including Costco and CVS. See Kurtz v. Kimberly-Clark Corp., 2015 WL 8481833 , at *2 (E.D.N.Y. Dec. 10, 2015).
The Nice-Pak final consent order includes the following flexible and somewhat amorphous definition of “flushability:”
[Disperses in a sufficiently short amount of time after flushing to avoid clogging, or other operational problems in, household and municipal sewage lines, septic systems, and other standard wastewater equipment[.]
See Nice-Pak Final Consent Order at 3. This definition is bland, written in generalities with no precision as to time of breakdown of the wipes once they are flushed or the extent of their break down into discrete pieces or shi-eddings. But the FTC order does present a reasonable attempt to devise a national standard protective of consumers, manufacturers and retailers.
In June 2016, while the cases were stayed and referred to the FTC, the Administrative Conference of the United States adopted a non-binding recommendation recognizing the value of “aggregation techniques to resolve similar claims in adjudications.” See Aggregation of Similar Claims in Agency Adjudication, 81 Fed. Reg. 40259 (June 21, 2016); see also Michael Sant’Ambrogio & Adam Zimmerman, Inside the Agency Class Action (June 15, 2016) (analyzing the use of aggregate procedures in administrative agencies as well as the challenges and benefits of aggregate agency adjudication); Michael Sant’Am-brogio & Adam Zimmerman, Administrative Conference of the United States, Aggregate Agency Adjudication (June 9, 2016), available at https://www.acus.gov/report/aggregate-agency-adjudication-final-report.
*495 This court then indicated that the instant cases might be “particularly appropriate for aggregate agency resolution;” it encouraged the parties “to explore the opportunity for aggregate adjudication of their claims before the FTC pursuant to the new federal recommendation by the Administrative Conference of the United States.” Kurtz v. Kimberly-Clark Corp., 315 F.R.D. 157, 159 (E.D.N.Y. 2016).
The Commission seems unlikely to take action in response to this court’s referral. In a letter responding to an inquiry by one of the plaintiffs in the instant cases, the agency indicated its intent to address “flushability”-related claims only on a case-by-case basis. It specified that: (1) it cannot engage in “aggregate adjudication” of claims, due to its administrative design; (2) it does not intend to prescribe trade regulation rules in relation to issues raised by this court’s referral; and (3) the parties and the court can look to the Nice-Pak final consent order for guidance on the Commission’s views regarding representations of “flushability.” See FTC Letter dated July 27, 2016, 14-CV-4090, Aug. 3, 2016, ECF No. 184-2 (“July 27, 2016 FTC Letter”) for the full FTC response.
The FTC has now closed its investigation of Kimberly-Clark without defining “flusha-bility” in that case. See FTC Closing Letter, 14-CV-1142, June 30, 2016, ECF No. 228-1. Apparently, the only remaining ongoing relevant investigation is the FTC’s inquiry into Procter & Gamble’s “flushability” claims. See Procter & Gamble Letter, 14-CV-4090, Aug. 4, 2016, ECF No. 185; Feb. 3, 2017 Hr’g Tr. at 14:3^4 (“[The FTC] remains engaged in an ongoing inquiry into P & G, Procter & Gamble’s Freshmates.”).
Given the number of cases challenging manufacturers’ and retailers’ representations of “flushability” that are currently pending before this court and other courts across the country, resolution of the instant consumer actions through a coordinated national federal administrative agency approach would have been desirable. See, e.g., Belfiore, 311 F.R.D. at 79 (noting the “substantial danger of inconsistent rulings among various courts and the FTC” and stating that “[w]hether wipes should be labeled ‘flushable’ is a national issue that requires a single national resolution.”).
As indicated in the court’s October 2015 memorandum and order in the Belfiore action, the FTC appeared to be particularly well-suited to lead such an effort. See id. at 76-80 . It is an agency “specifically tasked with addressing deceptive labeling.” Id. at 78 . It was already considering the “flushability”-related claims of several manufacturers and retailers of allegedly “flushable,” moist wipes. Development of a uniform definition of “flushability” through consolidated agency action — rather than through individual consumer class suits — could have led to regulation of the market and national advertising issues as a whole, avoiding inconsistent judgments and protecting consumers, producers and retailers nationwide:
Certification of a damages or an injunctive class might thwart the development of an integrated and transparent national market. With multiple cases before this court and others across the nation (each at a different phase and featuring different substantive state laws), the FTC’s engagement in an ongoing inquiry of defendant, and the agency’s pending agreement with another manufacturer, there is a substantial risk of inconsistent judgments regarding the meaning of “flushable.” A robust management of the “flushable” problem by the FTC, rather than by courts, could avoid unnecessary inconsistencies and controversies, helping manufacturers, retail vendors and consumers alike.
Id. at 39 (emphasis in original).
In the absence of action by the FTC, uniform resolution of “flushability” claims could have been achieved through a class-wide settlement, with industry-wide regulation through standards set by the relevant industry association, through multidistrict litigation, or by legislative action at the municipal, state, or federal level. See Kurtz, — F.Supp.3d -, 2016 WL 6820405 . These mechanisms have not been invoked by the parties, although an association of the producers of flushable wipes has been considering the problem, and relevant legislation has been proposed in New York State. See Belfiore, 311 F.R.D. at 47, 50 . In the absence of *496 an administrative, legislative, industry-wide or settlement approach, the court is compelled to address these consumers’ claims on a state-by-state basis.
This memorandum and order serves, in part, as a synopsis of the measures already taken in the six class actions pending before this court. It sets out a roadmap for the next steps to be addressed in each individual case that is still pending. All prior orders and memoranda are deemed included in this memorandum as follows: Belfiore v. Procter & Gamble Co., 94 F.Supp.3d 440 (E.D.N.Y. 2015) (denying defendant’s motion to dismiss); Belfiore v. Procter & Gamble Co., 311 F.R.D. 29 (E.D.N.Y. 2015) (outlining preliminary rulings on class certification, staying case and referring matters to the FTC); Belfiore v. Procter & Gamble Co., 140 F.Supp.3d 241 (E.D.N.Y. 2015) (denying plaintiffs motion for reconsideration); Kurtz v. Kimberly-Clark Corp., 2015 WL 8481833 (E.D.N.Y. Dec. 10, 2016) (denying motion to lift the stay); Kurtz v. Kimberly-Clark Corp., 315 F.R.D. 157 (E.D.N.Y. 2016) (encouraging the parties to explore aggregate agency adjudication of their claims with the FTC); Order, 14-CV-1142, Oct. 13, 2016, EOF No, 252 (recommending that the parties seek centralization of cases pending all over the nation in one court, through multidistrict litigation or the appointment by the court of a special master or masters to assist in settlement); Kurtz v. Kimberly-Clark Corp., 234 F.Supp.3d 367 , 2016 WL 6820405 (E.D.N.Y. Nov. 18, 2016) (describing methods of consolidation and resolution); Order Dismissing Case with Prejudice, 15-CV-4679, Jan. 20, 2017, ECF No. 95 (dismissing the Richard action with prejudice); Palmer v. CVS Health & Nice-Pak Prod., Inc., 2017 WL 656767 (E.D.N.Y. Feb. 17, 2017) (transferring the Palmer action to the District of Maryland); Armstrong v. Costco Wholesale Corp. & Nice-Pak Prod., Inc., 234 F.Supp.3d 367 , 2017 WL 656768 (E.D.N.Y. Feb. 17, 2017) (transfei-ring the Armstrong action to the District of Oregon); Kurtz v. Kimberly-Clark Corp., 320 F.R.D. 104 , 2017 WL 751231 (E.D.N.Y. Feb. 27, 2017) (severing and transferring New Jersey-based claims, denying certification of a nationwide class of consumers and staying the Honigman action).
As noted above and below, the motions for a New York State class certification are granted, in part, in Kurtz and Belfiore. See infra Part VIII.
II. Procedural Background
A. Overview of Cases
The nature and status of the six putative class actions originally pending before this court are set out below:
1. Kurtz v. Kimberly-Clark Corp. & Costco Wholesale Corp., No. 14-CV-1142 (E.D.N.Y. filed Feb. 21, 2014): This is a putative class action. Plaintiff has filed a motion to certify classes of consumers who pm-chased flushable wipes sold by defendant Costco — known as “Kirkland Signature Moist Flushable Wipes,” and manufactured by Nice-Pak — and flusha-ble wipes manufactured by defendant Kimberly-Clark. Alleged are violations of section 56:8-1 of the New Jersey Consumer Fraud Act, sections 349 and 350 of the New York General Business Law, and the common law. Injunctive and monetary relief are sought. This action remains open; the New Jersey aspects have been severed and ordered transferred to the District of New Jersey. See Kurtz v. Kimberly-Clark Corp., 320 F.R.D. 104 , 2017 WL 751231 (E.D.N.Y. Feb. 27, 2017).
2. Belfiore v. Procter & Gamble Co., No. 14-CV-4090 (E.D.N.Y. filed July 1, 2014): This is a putative class action filed by a consumer who purchased “flusha-ble” wipes manufactured by defendant Procter & Gamble. Claimed are violations of section 349 of the New York General Business Law. Plaintiff seeks monetary damages and injunctive relief. This action remains open.
3. Armstrong v. Costco Wholesale Corp. & Nice-Pak Products, Inc., No. 15-CV-2909 (E.D.N.Y. filed May 19, 2015): This is a putative class action filed by a consumer who purchased “flushable” wipes sold by defendant Costco and manufactured by defendant Nice-Pak. Alleged *497 are violations of Oregon’s Unlawful Trade Practices Act and its common law. Both injunctive and monetary relief are sought. Defendants have answered the complaint. No motion for class certification has been made. This case was transferred to the District of Oregon. See Armstrong v. Costco Wholesale Corp. & Nice-Pak Prod., Inc., 234 F.Supp.3d 367 , 2017 WL 666768 (E.D.N.Y. Feb. 17, 2017).
4. Honigman v. Kimberly-Clark Corp., No. 15-CV-2910 (E.D.N.Y. filed May 19, 2015; complaint filed May 20, 2015): This is a putative class action brought by a consumer who purchased “flushable” wipes manufactured by defendant Kimberly-Clark. Alleged are violations of sections 349 and 350 of the New York General Business Law and the common law. Both injunctive and monetary relief are sought. Defendant has answered the complaint. No motion for class certification has been made. No discovery has taken place. The case is stayed. Certification decisions in Kurtz and Belfiore will control the ultimate disposition of this case. See Kurtz v. Kimberly-Clark Corp., 320 F.R.D. 104 , 2017 WL 751231 (E.D.N.Y. Feb. 27, 2017).
6. Palmer & Palmer v. CVS Health & Nice-Pak Products, Inc., No. 15-CV-2928 (E.D.N.Y. filed May 20, 2015): This is a putative class action brought by consumers who purchased “flushable” wipes sold by defendant CVS and manufactured by defendant Nice-Pak. An amended complaint was filed on July 9, 2015. Alleged are violations of the Maryland Consumer Protection Act, section 13-301, and the common law. Both injunctive and monetary relief are sought. Defendants have answered the amended complaint. No class certification motion has been made. This case was transferred to the District of Maryland. See Palmer v. CVS Health & Nice-Pak Prod., Inc., 2017 WL 656767 (E.D.N.Y. Feb. 17, 2017).
6. Richard & Richard v. Wal-Mart Stores, Inc. & Rockline Indus., No. 15-CV-4579 (E.D.N.Y. filed Aug. 5, 2015): This was a putative class action brought by consumers who purchased “flushable” wipes manufactured by defendant Rockline Industries (“Rockline”) and sold by defendant Wal-Mart Stores, Inc. (“Wal-Mart”). Alleged were violations of New Hampshire Regulation of Business Practices for Consumer Protection, section 358-A:2, and the common law. Both in-junctive and monetary relief were sought. Upon suggestion by the court that it would transfer the case, the parties dismissed the ease with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(l)(a)(ii). Order, 16-CV-4579, Jan. 19,2017, ECF No. 96.
See generally Belfiore, 311 F.R.D. at 42-43 .
B. Motion to Dismiss for Lack of Standing Denied in Belfiore Action
Defendant in the Belfiore action moved, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the claim for injunctive relief for lack of standing; moved to dismiss under Rule 12(b)(6) for failure to state a claim; and moved to strike plaintiffs class action-related allegations under Rule 12(f). Belfiore, 94 F.Supp.3d at 443-44 .
Because plaintiff was unlikely to ever purchase the product again, defendant argued he could not show that the requested injunctive relief would “redress a real and immediate threat of future injury to him.” Id. at 444 (quotation marks and citation omitted).
Defendant’s motion was denied. Plaintiff was found to have standing to pursue injunc-tive relief even though he was unlikely to repurchase the product because he was trying to protect other consumers:
To hold otherwise would denigrate the New York consumer protection statute, designed as a major support of consumers who claim to have been cheated. The only way a consumer could enjoin deceptive conduct would be if he were made aware of the situation by suffering injury. But once the consumer learned of the deception, he would voluntarily abstain from buying and therefore could no longer seek an injunction.
An injunction in connection with a class action is designed to afford protection of future consumers from the same fraud. It
*498
does this by permitting the plaintiff to sue on their behalf.
Id. at 445 (emphasis added). It was determined that plaintiff had standing and defendant’s motion to strike the class allegations was denied. Id. at 445-47 .
C. Motions for Class Certification in the Belfiore and Kurtz Actions
Prior to the October stay and FTC referral, plaintiff in the Belfiore case moved to certify a class action, pursuant to subsections (b)(2) and (b)(3) of Federal Rule of Civil Procedure 23. He defined the proposed class as: “all persons and entities who purchased Charmin Freshmates in the State of New York between May 23, 2011 and May 23, 2014[.]” Belfiore, 311 F.R.D. at 51 . In February 2015, defendant Procter & Gamble sought denial of Belfiore’s class certification motion. See Mot. to Deny Class Cert., 14-CV-4090, Feb. 27, 2015, ECF No. 59. In August 2015, the court heard oral argument on Belfiore’s. motion for class certification. Minute Entry, 14-CV-4090, Aug. 12, 2015, ECF No. 126. By a recent letter to the court, Belfiore defined the proposed class as: “All persons and entities who purchased Charmin Freshmates in the State of New York between May 23, 2011 and the present.” Letter, 14-CV-4090, Feb. 6, 2017, ECF No. 242.
Plaintiff in the Kurtz action moved for class certification pursuant to Federal Rule of Civil Procedure 23 subsections (b)(2) and (b)(3) in February 2015. See Kurtz Mem. in Supp. of Class Cert., 14-CV-1142, Feb. 27, 2015, ECF No. 81 at 1. He sought certification of classes of national, New York, and New Jersey purchasers of Kimberly-Clark and Costco products. Id. at 3. Kimberly-Clark and Costco opposed. See Kimberly-Clark Mot. to Deny Class Cert., 14-CV-1142, Feb. 27, 2015, ECF No. 82; Costco Mot. to Deny Class Cert., 14-CV-1142, Feb. 27, 2015, ECF No. 87. The court heard oral argument on plaintiffs motion for class certification in October 2015. See Kurtz Class Cert. Oral Arg. Hr’g Tr., 14-CV-1142, Nov. 10, 2015, ECF No. 204. By a recent letter to the court, Kurtz clarified that he is now seeking to certify three classes: (1) “All persons and entities who purchased Kimberly-Clark Flushable Products in the State of New York between February 21,- 2008 and the present.”; (2) “All persons and entities who purchased Kirkland Signature Flushable Wipes in the State of New York between July 1, 2011 and the present.”; and (3) “All persons and entities who purchased Kimberly-Clark Flushable Products from February 21, 2008 and the present or Kirkland Signature Flushable Wipes from July 1, 2011 to the present.” Letter, 14-CV-1142, Feb. 6, 2017, ECF No. 282. The third class would be national in scope.
D. Preliminary Rulings on Class Certification in Belfiore Action
Class certification motions remained pending until now.
Both damages and injunctive relief are sought by plaintiffs. Plaintiff Belfiore claims statutory damages of fifty dollars per purchase based on a premium price theory. Id.; see N.Y. Gen. Bus. Law § 349 (h) (permitting recovery of “actual damages or fifty dollars, whichever is greater”). He seeks to enjoin defendant Procter & Gamble from labeling its "wipes product as “flushable” and “safe for sewer and septic systems.” Belfiore, 311 F.R.D. at 51 (citation omitted).
In its memorandum and order staying the case and referring issues to the FTC, this court made preliminary rulings on Belfiore’s motion for class certification. See Belfiore, 311 F.R.D. at 59-73 . These findings remain in force. It was concluded that the Federal Rule of Civil Procedure 23(a) factors were satisfied:
• The numerosity requirement is satisfied. See id. at 61 (“Here, numerosity is obvious. The number of individual purchases of Freshmates in New York is over a million.”) (citations omitted).
• The commonality requirement is satisfied. The common injury was identified as “the price premium on every product sold.” Id. at 63 . Defendant’s argument that the injury depended on the individual purchaser’s expectations or experience after purchase was rejected: “Liability ... does not depend on whether class members relied upon the representation when they purchased Freshmates, nor does it de *499 pend on whether the product met their personal, subjective expectations. Rather, the ‘injury is the [excessive] purchase price.’ ... The purpose of New York General Business Law § 349, is to ‘punish companies that sell products using advertising that misleads the reasonable consumer.’” Id. at 62 (citations omitted). This position is strengthened by the New York Court of Appeals opinion in Borden v. 400 E. 55th St. Assoc., L.P., et al., providing an expansive and flexible definition of a New York State class action. See 24 N.Y.3d 382, 394-95 , 998 N.Y.S.2d 729 , 23 N.E.3d 997 (2014); Thomas A. Dickerson & Leonard B. Austin, New York State Class Actions in 2016, N.Y. Law Journal, Sept. 28, 2016 available at http://www.newyorklawj ournal.com/id= 1202768776871/N ew-Y ork-State-Class-Actions-in2016?slreturn= 20160917145328.
• The typicality requirement is satisfied. The central issue in the case is the alleged payment by consumers of a price premium for a product that misrepresented itself as flushable. “The injury is the payment of an inflated price, not the clog.” Belfiore, 311 F.R.D. at 64 . Individual plumbing damages are not relevant to the price premium theory and are not subsumed in the class action. Id. (“What happened after [plaintiffs] purchase, as a result of his sewage disposal system or the condition of his pipes, is irrelevant to the class’s premium price theory.”).
• The adequacy of representation requirement is satisfied. See id. at 64-65 . Counsel for plaintiff have handled the case with great skill and full attention.
• The implied requirement of ascertainability is satisfied. The proposed class comprising “all persons or entities who purchased [defendant’s ‘flushable’ product] Freshmates in New York State between May 23, 2011 and May 23, 2014” sufficiently “identifies a particular group of individuals [who were] harmed in a particular way (defrauded by labels and marketing materials [leading to higher prices]) during a specific period in particular areas. Only one product is at issue, and it was labeled in a uniform manner.” Id. at 66 (quotation marks and citations omitted). The fact that plaintiff did not retain receipts of purchase is not a bar to certification. Id. at 66-67 . The purchases and them price can be proven by other means.
1. Injunctive Class
This court rejected defendant Procter & Gamble’s position that plaintiff Belfiore did not have Article III standing to pursue in-junctive relief for a product he will not repurchase. Id. at 67 ; Belfiore, 94 F.Supp.3d at 444-45 ; supra Part II.B. If defendant’s theory were to be accepted, it would effectively bar injunctive classes in consumer deception cases, since purchasers who become aware of a harm and stop buying the offensive product would not be able to seek relief for the class. That result is undesirable as a matter of public and federal policy and practice:
To hold otherwise would denigrate the New York consumer protection statute, designed as a major support of consumers who claim to have been cheated. The only way a consumer could enjoin deceptive conduct would be if he were made aware of the situation by suffering injury. But once the consumer learned of the deception, he would voluntarily abstain from buying and therefore could no longer seek an injunction.
An injunction in connection with a class action is designed to afford protection of future consumers from the same fraud. It does this by permitting the plaintiff to sue on their behalf.
Given plaintiffs dissatisfaction with Fresh-mates, it is unlikely he will re-purchase the product again. No information to the contrary has been provided. Based on the law as interpreted, he has standing.
Belfiore, 94 F.Supp.3d at 445 .
The court noted that it would likely certify an injunctive class under Federal Rule of Civil Procedure 23(b)(2):
Here, certification of an injunctive class is appropriate. Rule 23(b)(2)’s rigorous requirements are satisfied. First, an injunction prohibiting defendant from labeling *500 Freshmates “ñushable” and “safe for sewer and septic systems” would provide a single solution, applicable to each class member. Second, the proposed class is cohesive .... Third, certification of an in-junctive class is necessary because an injunction, unlike monetary damages, will protect the rights of all consumers.
Belfiore, 311 F.R.D. at 68 .
Defendants now argue that certification of an injunctive class is not available because of the recent decision of the Court of Appeals for the Second Circuit in Nicosia v. Amazon, Inc., 834 F.3d 220 (2d Cir. 2016). See infra Part VIII.F.1.c.1. In Nicosia , the offending product had been completely taken off the market. See Nicosia, 834 F.3d at 239 . Because defendant continues to sell a version of the “flushable” wipes almost identical in construction and effect to the ones purchased by plaintiff, injunctive relief is appropriate. See infra Part VIII,F.1.c.1
2. Damages Class
In its October 2015 memorandum and order, this court preliminarily determined that the predominance requirement to certify a damages class was satisfied. See Belfiore, 311 F.R.D. at 68-71 . It noted that hedonic regression — the premium damages model set forth by plaintiffs expert — could be used to determine whether the class paid a premium for the product because it was marketed as “flushable.” Id. at 70 . Once the injury is established — i.e., the payment of a price premium for allegedly mislabeled “flushable” wipes — statutory damages can be calculated on a class-wide basis pursuant to section 349(h) of the New York General Business Law. See id.
The instant case is not barred by Zyprexa UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 133 (2d Cir. 2010):
There, the Second Circuit Court of Appeals held that certification of a putative class based on an “excess price theory” constituted an “abuse of discretion” because the damages model was “not susceptible to generalized proof with respect to either but-for or proximate causation.” But Zyprexa is distinguishable on two grounds. First, in that case the issue was whether plaintiffs demonstrated reliance, an element not required under New York General Business Law § 349, Second, in Zyprexa (as distinct from the instant case) the persons who purportedly relied on the misrepresentations were distinct from those who were allegedly harmed.
Belfiore, 311 F.R.D. at 70-71 (citations omitted) (emphasis in original).
Zyprexa remains inapplicable. In that case, involving medically prescribed drugs, the Court of Appeals for the Second Circuit’s opinion was premised, at least in part, on the fact that purchase depended on a doctor’s decision and prescription, in which price was a nominal or no factor, Zyprexa, 620 F.3d at 126 . In the instant eases the consumer makes the decision herself at the cash register based, at least in large part, on labeling and price.
The court indicated that it would likely deny certification of a damages class under Federal Rule of Civil Procedure 23(b)(3) because the superiority requirement was not satisfied. Belfiore, 311 F.R.D. at 73 . It explained that the FTC was in a better position to protect consumers in New York and nationally given its authority to investigate deceptive practices and the fact that it was already considering “flushable” claims by defendant Procter & Gamble and other manufacturers:
In the instant case, a class action seeking statutory damages is not a superior method of adjudication. The FTC is better suited to protect consumers nationally as well as those in New York. Not only does the FTC’s mandate encompass investigating deceptive practices in the labeling of consumer goods, the agency is already considering “flushable” claims made by this defendant, and those of at least one other manufacturer. In the interest of uniform protection of consumers, the FTC should address the instant case and related cases, lest inconsistent judgments and labeling abound. This risk is serious, as noted by the number of cases that have already reached varying dispositions. Consumers as well as vendors require a uniform defi *501 nition of “flushable,” and the FTC is best suited to announce it.
Id. (citations omitted) (emphasis in original).
The court also opined that an award of statutory damages could be excessive and in violation of New York State policy as embodied in section 901(b) of the New York Civil Practice Law and Rules (“CPLR”). See id. Section 349 of the New York Business Law, pursuant to which plaintiff is suing, permits an action to recover statutory damages. Specifically, the provision allows a plaintiff to initiate “an action .,, to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions.” N.Y. Gen. Bus. Law § 349 (h) (emphasis added). Section 901(b) of the New York CPLR prohibits the maintenance of New York State class actions seeking to recover “a penalty, or minimum measure of recovery created or imposed by statute,” unless that statute explicitly authorizes recovery through a class action. CPLR § 901(b).
Federal Rule of Civil Procedure 23, which sets forth the requirements for maintaining a class action in federal court, contains no such restriction. See Fed. R. Civ. P. 23. In Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 , 130 S.Ct. 1431 , 176 L.Ed.2d 311 (2010), the Supreme Court of the United States considered the interaction between Federal Rule of Civil Procedure 23 and New York CPLR section 901(b). A majority of the Court concluded that section 901(b) and Rule 23 do conflict, and that Rule 23 represents a lawful exercise of Congress’s procedural rulemaking power. Shady Grove, 559 U.S. at 399-401 , 130 S.Ct. 1431 ; see also Belfiore, 311 F.R.D. at 56-69 ; H. Korn, A. Miller, et al., N.Y. Civ. Prac. ¶ 901.29 (David L. Ferstendig ed., 2016) (addressing the Supreme Court’s rejection of recognition of section 901(b) under Federal Rule of Civil Procedure 23).
The dissenting opinion in Shady Grove was the right one according to academics in New York. See, e.g., H. Korn, A. Miller, et al., N.Y. Civ. Prac. ¶ 901.22 (first ed., 1995) (“Subdivision (b) of CPLR 901 expressly prohibits the maintenance of a class action to recover a penalty or minimum measure of recovery unless the statute creating or imposing such a remedy specifically authorizes recovery of the statutory remedy in a class action. The prohibition, which has no federal counterpart and does not stem from a recommendation of the Judicial Conference, would presumably protect businesses against catastrophic judgments considering that many of the statutes authorizing class actions to recover a penalty or minimum recovery also limit the total liability of the defendant. ,.. Statutory damages constitute a ‘penalty of minimum measure of recovery’ so as to bar a class action in the absence of specific authorization.”); H. Korn, A. Miller, et al., N.Y. Civ. Prac. ¶ 901.29 (David L. Ferstendig ed., 2016) (stating that, prior to the Supreme Court’s decision in Shady Grove, “[pjerhaps on the basis of comity and to discourage forum shopping, the federal courts have routinely denied class certification and referred to CPLR § 901(b)”); In re Zyprexa Prod. Liab. Litig., 671 F.Supp.2d 397, 463-64 (E.D.N.Y. 2009) (“If allowed to proceed in their entirety, the State’s claims could result in serious harm or bankruptcy for this defendant and the pharmaceutical industry generally. For the legal system to be used for this slash-and-burn-style of litigation would arguably constitute an abuse of the legal process. Constitutional, statutory, and common law rights of those injured to seek relief from the courts must be recognized. But courts cannot be used as an engine of an industry’s unnecessary destruction.”) (citation omitted).
The New York Court of Appeals has emphasized the desirability of a flexible interpretation of section 901(b) to permit effective use of a class action in protecting large numbers of people. See Borden, 24 N.Y.3d at 394-95 , 998 N.Y.S.2d 729 , 23 N.E.3d 997 ; see also H. Korn, A. Miller, et al., N.Y. Civ. Prac. ¶ 901.28 (David L. Ferstendig ed., 2016) (stating that in class actions alleging violations of section 349 of the New York General Business law, section 901 will not restrict recovery “if [statutory] damages are waived and class members are informed and given the right to opt-out of the proposed class action”).
Shady Grove was analyzed in Belfiore. It was concluded that the effect of section *502 901(b) on a proposed federal class action should be considered when deciding on certification, and the case would tend to weigh against use of Rule 23:
There is some justification for the prediction that Freshmates purchasers may be entitled to $95.5 million in “statutory damages.” While Shady Grove does not prohibit federal class actions seeking fixed statutory damages, such an award, in this case, is inconsistent with ... New York’s substantive policy animating § 901(b). An award of this projected magnitude would run counter to the policy of Congress in implementing the Class Action Fairness Act: to discourage excessively harsh results eclipsing plaintiffs actual damages.
Belfiore, 311 F.R.D. at 73 .
On further reflection, any weight given to the paragraph above would flout the Supreme Court’s Shady Grove decision, and that case is not relied upon in the instant cases as a basis for denying certification. While disagreeing with the Supreme Court majority opinion, the district court is bound by it. A certified damages class under Rule 23 is not controlled by section 901(b) — statutory damages under section 349(h) are available on a class basis in federal court, even though they would be barred by section 901(b) if the same action were to proceed in state court — an undesirable situation in view of Erie principles. See id. at 59.
E. Stay and FTC Referral
In October 2015, this court stayed all six pending cases pursuant to the primary jurisdiction doctrine and referred the controversy to the FTC. It ruled:
The case is stayed, pursuant to the primary jurisdiction doctrine, pending the conclusion of the FTC’s inquiry and any subsequent action by the agency. The stay may be lifted by the court to avoid unnecessary delays or for other reasons.
Id. at 78; see also Order Staying Cases, 14-CV-1142, Oct. 13, 2015, EOF No. 183 (“The issue of an appropriate definition of ‘flusha-ble’ and related issues are respectfully referred to the Federal Trade Commission. The stays may be lifted by the court to avoid unnecessary delays or for any other reason.”).
The court explained that the FTC was suited to protect all consumers in the nation. That agency was already considering several “flushable” claims, including those made by defendants in actions pending before this court. It was desirable to allow the FTC to address the instant cases and develop a uniform national definition of “flushability” — in order to avoid inconsistent judgments and better protect consumers nationwide. See Belfiore, 311 F.R.D. at 73 .
Noted was that “[djetermining whether the term ‘flushable’ is deceptive to a reasonable consumer is directly within the agency’s discretion.” Id. at 78 . Given the fact that the FTC was already investigating the “flushability” claims of several defendants, and that a number of cases had been brought by consumers and municipalities against manufacturers of purportedly “flushable” wipes, the court indicated that “[tjhere may be substantial danger of inconsistent rulings among various courts and the FTC.” Id. at 79 . Action by the Commission would save resources and assist in reaching “a single national resolution” of “a national issue.” Id.
F. Motion to Reconsider Denied in Belfiore Action
Plaintiff in the Belfiore action moved to reconsider the October 5, 2015 memorandum and order, including the court’s decision to stay the case and refer matters to the FTC. See Belfiore Mem. in Supp. of Recons., 14-CV-4090, Oct. 16, 2015, EOF No. 157. He pointed to the “flushable” definition included in the then draft consent order between the FTC and Nice-Pak, arguing that it was sufficient to “guide courts and legislative bodies to a ‘single national resolution.’ ” Id. at 2; see also Belfiore, 140 F.Supp.3d at 245 .
Plaintiffs motion for reconsideration was denied. The court again determined that referral to the FTC was appropriate; the agency should be given the opportunity to develop a uniform definition of “flushable” in order to reduce the risk of inconsistent directions to the industry:
Referral to the FTC in the present case is appropriate. The FTC is specifically grant *503 ed broad power to regulate advertising and should be afforded the opportunity to determine a uniform definition of “flusha-ble” applicable on a national, and perhaps international, basis. As noted in the October 5 memorandum and order, allowing the PTC to develop a common definition of “flushable” reduces the substantial risk of inconsistent judgments and facilitates the prospect of an injunctive class settlement, aiding manufacturers, retailers, and the public.
Belfiore, 140 F.Supp.3d at 245-46 (citations omitted).
The court reiterated its preliminary view on the question of class certification, stating that if it were to certify a damages class, it would be bound by Shady Grove to allow plaintiffs exorbitant New York statutory damages of fifty dollars a purchase:
The court reaffirms as presently appropriate what it had declared in the October 5 memorandum and order and at the October 21 hearing on plaintiffs motion for reconsideration: If the court were to grant money damages class certification now, it would be bound by Shady Grove to allow plaintiffs statutory damages claim. New York General Business Law § 349(h) allows injured consumers to bring an action to recover either actual damages or fifty dollars per purchase, whichever is greater. The actual damages at issue in the present ease (the price premium of the difference between wipes labeled “flushable” compared to other moist wipes not so labeled) are likely to be quite small compared to the fifty dollars per purchase statutory damages provided by § 349(h). If a damages class certification under Shady Grove were granted now, the class representative would have to seek the higher statutory amount, given his fiduciary obligation to attempt to obtain the best deal possible for class members. The court reserves the right to modify or reject this position when the stay is lifted.
In its memorandum and order the court noted that its present view on a damages class was based “primarily on the ground that certification would violate important New York State policy,” because of Shady Grove. But, the court considered other factors relevant to an analysis under Rule 23(b)(3) of the Federal Rules of Civil Procedure. They include the difficulty in determining actual damages, the availability of non-judicial alternatives such as refund programs, and the superiority of FTC administrative remedies in this case.
Id. at 246-47 (emphasis in original) (citations omitted).
G.Final FTC Consent Order with Nice-Pak
On October 30, 2015, the FTC finalized its consent order with Nice-Pak. See Nice-Pak Final Consent Order at 6. Nice-Pak was ordered to “not make any representation, in any manner, expressly or by implication ... unless the representation is non-misleading” that its wipes product:
A. is safe for sewer systems;
B. is safe for septic systems;
C. breaks apart shortly after flushing;
D. will not clog household plumbing systems;
E. will not clog household septic systems;
F. is safe for plumbing;
G. is safe to flush;
H. dissolves or disperses when interacting with water; or
I. is flushablef.]
Id. at 2. The FTC specified that
any tests, analyses, research, studies, or other evidence purporting to substantiate any of the above representations must at least:
A. demonstrate that the Covered Product disperses in a sufficiently short amount of time after flushing to avoid clogging, or other operational problems in, household and municipal sewage lines, septic systems, and other standard wastewater equipment; and
B. substantially replicate the physical conditions of the environment in which the Covered Product is claimed, directly or indirectly, expressly or by implication, to be properly disposed of; or, if no specific environment is claimed, then in all environ *504 ments in which the product will likely be disposed of.
Id. at 3.
The consent order provided that Nice-Pak send notice to its "trade customers, wholesalers, and retailers” requesting that they “immediately stop using all packaging, advertising, and marketing materials previously provided ... by Nice-Pak about these wipes.” Id. at 4 and Attachment A.
While not a perfect resolution of consumers’ claims in this court, the FTC did provide a solid basis for settlement of all cases with but minor tweaking, The parties, however, continued to resist court suggestions for settlement, including an offer to appoint settlement masters.
H.Motion to Lift Stay Denied in Kurtz Action
On November 10, 2015, plaintiff in the Kurtz action filed a motion to lift the October 9, 2015 order staying the case and referring issues to the FTC. See Kurtz Mem. in Supp. of Mot, to Lift Ct. Order, 14-CV-1142, Nov. 10, 2015, EOF No. 206.
Kurtz argued that, at a minimum, the stay should be lifted in Kurtz, Armstrong, and Palmer because the FTC had finalized its consent order with Nice-Pak, which included a definition of “flushability,” and had reached the retailers that market and sell Nice-Pak’s flushable wipes, including Costco and CVS. See Kurtz, 2015 WL 8481833 , at *2.
Plaintiffs motion was denied. The court ruled that the Nice-Pak final consent order did not sufficiently address the reasons for the referral. It did not “purport to create a single, uniform, ‘flushable’ definition applicable to manufacturers and retailers nationwide.” Id. at *4. Although final, the consent order was limited to the “wipes manufactured by Nice-Pak, and [was] binding only on Nice-Pak and the retailers who sold that product.” Id.
The court noted that, at the time of plaintiffs motion, the FTC was continuing to investigate additional manufacturers of “flusha-ble” wipes, including Kimberly-Clark and Procter & Gamble — two of the defendants in the actions currently before this court. Id. It concluded that lifting the stay would be premature:
The FTC must be given a meaningful opportunity to respond to the court’s referral. Only two months have passed since the court ordered the stay of the present action and referred issues to the FTC. The FTC received an electronic copy of the complete public record in the instant case, as well as related cases, on November 2, 2016. Lifting the stay at this time would be premature and would not further the public interest in a uniform and nationally applicable definition of “flushability.”
Id. (citations omitted).
I. Continued Urging of Settlement Discussions
The parties were reminded that the cases had not been stayed to prevent settlement discussions. They were encouraged to continue exploring settlement opportunities with the assistance of the magistrate judge:
Nothing prevents the parties in this and related cases, with or without the assistance of the magistrate judge or the judge, from seeking to arrange a global settlement or a case-by-case settlement. If the parties agree on the definition of “flusha-bility” provided by the FTC in its consent order with Nice-Pak, the parties might reach a settlement based on that definition.
Id. (citations omitted); see also Belfiore, 140 F.Supp.3d at 248 (stating that the stay does not affect settlement discussions, indicating possible settlement terns and referring all pending cases to the magistrate judge for the purpose of settlement).
J. Aggregate Agency Adjudication
On June 10, 2016, the Administrative Conference of the United States adopted a recommendation providing guidance to administrative agencies “on the use of aggregation techniques to resolve similar claims in adjudications.” See Aggregation of Similar Claims in Agency Adjudication, 81 Fed. Reg. 40259 (June 21, 2016). It recognized “aggregation as a useful tool to be employed in appropriate circumstances.” Id. at 40260.
*505 In an order filed in all six pending actions, this court indicated that the instant cases “may be particularly appropriate for aggregate agency resolution.” Kurtz, 315 F.R.D. at 159 .
While the cases were stayed, the court issued an order encouraging the parties to “explore the opportunity for aggregate adjudication of their claims before the FTC pursuant to the new federal recommendation by the Administrative Conference of the United States.” Id.
The FTC rejected this court’s suggestion that it take control as beyond its authority and capacity. See infra Part ILL; July 27, 2016 FTC Letter.
K. Conclusion of FTC Investigation of Kimberly-Clark
On July 15, 2016, Kimberly-Clark, a defendant in the Kurtz and Honigman actions, notified the court that the FTC had closed the investigation into the company’s advertising for flushable wipes. See Kimberly-Clark Letter, 14-CV-1142, July 16, 2016, ECF No. 228. It provided the court with a copy of a June 30, 2016 letter sent by the FTC to attorneys for Kimberly-Clark. The letter states that “[u]pon further review of the matter, it appears that no further action is required at this time.” FTC Closing Letter, 14-CV-1142, June 30, 2016, ECF No. 228-1. It ruled that the investigation into Kimberly-Clark “has been closed,” but cautioned that “[t]his action is not to be construed as a determination that no violation has occurred, just as the pendency of an investigation should not be construed as a determination that a violation has occurred.” Id.
L. Belfiore Update Letter and Request for Conference
On August 3, 2016, plaintiff in the Belfiore action by letter suggested a status conference to the court. It requested that the conference be scheduled in order for the court and the parties to “consider the next steps in this litigation.” Belfiore Request for Status Conference, 14-CV-4090, Aug. 3, 2016, ECF No. 184 at 2.
The letter reported that, in response to the court’s June 28, 2016 order encouraging the parties to “explore the opportunity for aggregate adjudication of their claims before the FTC pursuant to the new federal recommendation by the Administrative Conference of the United States,” plaintiff wrote a letter to the FTC, forwarding a copy of the order and asking whether the FTC intended to “further define ‘flushability' beyond what was provided in the consent decree in Nice-Pak,” and whether aggregate adjudication of the claims in this and related cases before the FTC was feasible. See id. at 1-2.
On July 27, 2016, the FTC responded to plaintiffs letter, indicating that it was unable to engage in aggregate adjudication of the referred cases. See July 27, 2016 FTC Letter. It declared that, “[b]y virtue of its administrative design,” it does not have the ability to “conduct an ‘aggregate adjudication’ of the private claims pending before the Court.” Id. at 2. Instead, it noted that it generally proceeds “on a case-by-case basis” when acting in its enforcement capacity. Id. (explaining that the Commission “generally acts in its enforcement capacity on a case-by-case basis to address specific representations that are false, misleading, or unsubstantiated”) (emphasis added). The FTC indicated that it “plans to proceed ... on a case-by-case basis through individual law enforcement actions.” Id. (footnote omitted).
While, in addition to its enforcement capacity, the Commission may also “prescribe trade regulation rules” defining “unfair or deceptive acts or practices,” the FTC indicated that it currently “has no plans to initiate a trade regulation rulemaking proceeding to address the issues raised in the Court’s October 2015 order.” Id, at 3 (footnote omitted).
The FTC suggested that the Nice-Pak final consent order might provide guidance on the Commission’s views and assist the court and the parties in the analysis of the currently pending cases. See id, at 2 (indicating that the FTC’s final consent order with Nice-Pak, which prohibits Nice-Pak from making certain “flushability” representations “without competent and reliable evidence to support such representations,” can provide “guidance on the Commission’s views regard *506 ing the substantiation required under Section 5 of the FTC Act when making a representation that a wipe is ‘flushable,’ ‘septic safe,’ or ‘safe for sewer and septic systems’ — or other similar representations.”) (footnote omitted). The Commission specified that, “[t]o the extent ... the representations in the pending cases are the same or similar to the representations addressed in the Nice-Pak matter ... FTC staff thinks that the Nice-Pak Consent Order can assist the parties and the Court in their analysis.” Id. (emphasis added).
According to plaintiff, the FTC’s response indicates that this court’s “stay is unlikely to have its intended effect.” Belfiore Request for Status Conference, 14-CV-4090, Aug. 3, 2016, EOF No. 184 at 2.
Defendant Procter & Gamble responded to plaintiffs letter. It stated that the FTC’s investigation into its flushable wipes products is still ongoing, indicating that the language in the consent order with Nice-Pak may not be the agency’s final say on the question of “flushability.” See Procter & Gamble Letter, 14-CV-4090, Aug. 4, 2016, EOF No. 185 at 1-2.
M.Request for Briefing on Lifting of Stay
In response to the Belfiore submissions, the court scheduled a combined status conference in all six pending actions. It ordered “[t]he parties in all cases [to] submit briefs on further administration of the litigation.” See Order, 14-CV-4090, Aug. 8, 2016, EOF No. 188.
In a subsequent order, the court declared that “[i]n light of the status conference scheduled for September 26, 2016 at 4:30 p.m., the stay in the instant case (14-CV-4090), as well as all related eases (14-CV-1142,15-CV-2909,15-CV-2910,15-CV-2928, 15-CV-4579) is lifted. The stay is not lifted for purposes of additional discovery.” Order, 14-CV-4090, Aug. 25, 2016, EOF No. 191. It directed the parties to “submit briefs with proposed next steps in the litigation” in advance of the scheduled status conference. Id.
N. Continued Encouragement to Aggregate and Settle
On October 13, 2016, the court re-imposed a stay. Scheduling Order, 14-CV-4090, Oct. 13, 2016, EOF No. 209. The court declared that the cases “crie[d] out for a global settlement: one that can benefit consumers, producers, retailers, and the public paying the costs of allegedly affected municipal sewage systems.” Id. It again offered to appoint a special master to assist in crafting such a settlement, and also suggested that the parties might consider applying to the Panel on Multidistrict Litigation for pretrial consolidation of the consumer and municipal cases that had been filed. Id.
The court then issued a memorandum detailing the different ways a complex, multifaceted mass litigation like the instant one can proceed. Kurtz, — F.Supp.3d -, 2016 WL 6820405 . Available options include an administrative decision by a federal agency, adoption by legislation or stipulation a definition promulgated by an industry association, multidistrict consolidation, a single national class action (with subclasses as needed), district court transfer and consolidation, court-annexed mediation, and voluntary settlement. Id at -, 2016 WL 6820405 at *2-*4. The court reiterated its view that “individual case adjudication ... is not satisfactory.” Id. at -, 2016 WL 6820405 at *6.
O. Instant Motion Practice
On December 7, 2016, at a court conference attended by counsel for all the parties in the related cases, the court indicated that it was seriously considering an order “to dismiss [plaintiffs’] suit[s] for damages and to close the case. I don’t believe you’ve established enough in your discovery and in the science hearings that we’ve had.” See Dec. 7, 2016 Hr’g Tr. at 8:25-9:4. On December 12, 2016, the court — citing Federal Rules of Civil Procedure 1, 16(a), and 56(a), and 28 U.S.C. § 1404 (a) — invited the parties to move to terminate or transfer the instant cases. See Scheduling Order, 14-CV-1142, Dec. 12, 2016, EOF No. 263.
Procter & Gamble, the defendant in the Belfiore action, moved to dismiss Belfiore’s claim for injunctive relief, renewed its motion *507 for a denial of class certification, and, in the alternative, moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Kimberly-Clark, a defendant in the Kurtz and Honigman actions, renewed its motion to deny Kurtz’s motion for class certification, and upon denial of certification, to deny or hold as moot the plaintiffs claims for injunc-tive relief. Costco, a defendant in the Kurtz and Armstrong actions, CVS, a defendant in Palmer , and Nice-Pak, a defendant in Armstrong and Palmer , asked the court to deny Kurtz’s motion for class certification, and to dismiss the claims for injunctive relief sought by plaintiffs. The court heard extensive oral argument. See Feb. 2, 2017 Hr’g Tr.; Feb. 3, 2017 Hr’g Tr.
In a subsequent letter, Belfiore defined the proposed class he wishes to certify as: “All persons and entities who purchased Charmin Freshmates in the State of New York between May 23, 2011 and the present.” Letter, 14-CV-4090, Feb. 6, 2017, ECF No. 242.
Kurtz clarified that he is now seeking to certify only three classes: (1) “All persons and entities who purchased Kimberly-Clark Flushable Products in the State of New York between February 21, 2008 and the present.”; (2) “All persons and entities who purchased Kirkland Signature Flushable Wipes in the State of New York between July 1, 2011 and the present.”; and (3) “All persons and entities who purchased Kimberly-Clark Flushable Products from February 21, 2008 and the present or Kirkland Signature Flushable Wipes from July 1, 2011 to the present.” Letter, 14-CV-1142, Feb. 6, 2017, ECF No. 282. The court denied certification of Kurtz’s third proposed class — the nationwide class — because he has not demonstrated that he could adequately represent a national class of purchasers. See Kurtz, 320 F.R.D. at 106-07 , 2017 WL 751231, at *2 .
III. Deciding Class Certification Prior to Deciding Summary Judgment
Both in them briefs and at the hearings, the parties encouraged the court to decide the class certification motions before turning to summary judgment. See Feb. 2, 2017 Hr’g Tr. at 5:12-17. The rules merely provide that a decision on class certification must be made “[a]t an early practicable time.” Fed. R. Civ. P. 23(c)(1)(A). Courts are not required to decide class certification before reaching the merits of a case. See Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d Cir. 1998) (“Eisen [v. Carlisle & Jacquelin, 417 U.S. 156 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974) ] makes clear that the determination of whether a class meets the requirements of Rule 23 must be performed separately from the determination of the merits, but it does not require that class certification be addressed first. There is nothing in Rule 23 which precludes the court from examining the merits of plaintiffs claims on a proper Rule 12 motion to dismiss or Rule 56 motion for summary judgment simply because such a motion precedes resolution of the issue of class certification.”) (internal quotation marks omitted); Hyman v. First Union Corp., 982 F.Supp. 8, 11 (D.D.C. 1997) (granting summary judgment prior to a decision on class certification because “neither party will suffer significant prejudice, and it is more practicable to do so”); Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995) (granting a defendant’s motion for summary judgment prior to ruling on class certification moots the certification question); Linda S. Mullenix, Dropping the Spear: The Case for Enhanced Summary Judgment Prior to Class Certification, 43 Akron L. Rev. 1197 , 1211-12 (2010) (“Courts agree that ruling on a dispositive motion prior to addressing class certification may be appropriate where there is sufficient doubt regarding the likelihood of success on the merits of the plaintiffs claims. It is likewise appropriate to rule on a summary judgment motion prior to class certification to prevent inefficiency or avoid waste.”) (citing cases).
In the instant cases, following the traditional route — deciding class certification pri- or to deciding summary judgment — is sensible. Class discovery was prioritized over merits discovery. See Order, 14-CV-1142, Nov. 18, 2014, ECF No. 49. Belfiore claims that a ruling on summary judgment in his case would be premature because he has not had a sufficient opportunity to develop his claims through pretrial discovery. See Lester *508 L. Levy Decl., 14-CV-4090, Jan. 18, 2017, EOF No. 233-3; see also Fed. R. Civ. P. 56(d) (the court may defer decision on a summary judgment motion if the nonmovant “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition”). The parties have conducted sufficient discovery for the court to rule on class certification, but not enough to decide summaiy judgment. The pending motions for class certification are decided below, and Procter & Gamble’s motion for summary judgment is held in abeyance.
IV. Facts
A. Plaintiff Belfiore
Plaintiff Anthony Belfiore has lived in New York all his life. Before suffering a back injury, he worked as an ironworker, roofer, and carpenter. Belfiore, 311 F.R.D. at 39 , About February 2014, he purchased Charmin Freshmates from a local retailer. Before purchasing the product, he read the package and bought the wipes because the wipes were flushable. Id. at 41 , He and his wife used the wipes in their home. They would flush no more than two wipes down the toilet at a time. Id. at 41-42 .
Plaintiff subsequently had household plumbing problems, including clogging and sewer back-up. In March 2014, he hired a plumber, and the plumber removed Fresh-mates and other materials from his household’s sewage pipes and charged Plaintiff $526.83. Id. at 42 ; Decl. of Terrence O’Shea, Feb. 27, 2015, EOF No. 65 at ¶7. A subsequent inspection of plaintiffs house plumbing in December 2014 by defendant’s expert witness revealed flaws: root intrusions, pipe misalignments, and rust. The inspection also revealed two non-Freshmates materials that Dr. Darius Sabaliunas — a Procter & Gamble employee responsible for testing their products — testified were a non-flushable “Clorox” wipe and a non-flushable feminine hygiene product. Belfiore, 311 F.R.D. at 42 . While plaintiff and his wife testified that they did not flush baby wipes or feminine hygiene products down the toilet, they could not say with certainty that them adult children — who visited with their own young children — had not flushed baby wipes at the house. Id.
Plaintiff spoke about his potential role as class representative:
Q: ... [W]hat obligations would those be?
A: To do the best that I can for myself and all the other people involved in the case, go through with it, and to make sure I could see if I could do something about the product.
[[Image here]]
Q: But what ... activity ... would be required of you, as you understand it? A: I would probably have to go to court
[[Image here]]
Q: Anything else?
A: And to look out ... for them interest.
[[Image here]]
Q: —what do you expect to do? ... [And] I would include anything you have done and anything you would expect to do in the future.
A: I have answered depositions. I have been to court already [for the case]. I show an interest that I want to take care of it, and I would look out — that’s what I want to do. I want to do all I could, anything I could to take care of this problem.
Anthony Belfiore Dep., 14-CV-4090, Mar. 27, 2015, EOF No. 79-2 (“Belfiore Dep.”) at 102:4-104:13.
B. Plaintiff Kurtz
Dr. D, Joseph Kurtz first purchased Kimberly-Clark’s Cottonelle flushable wipes in 2004. D. Joseph Kurtz Dep., 14-CV-1142, Feb. 27, 2015, EOF No. 86-1 (“Kurtz Dep.”) at 133:11-15, From 2004 until February 2013, Kurtz and his family regularly used these flushable wipes without experiencing any plumbing or flushability issues. Id. at 133:16-25 ; 36:16-37:10. Kurtz purchased the Cotto-nelle wipes whenever he went grocery shopping, and also Costco’s Kirkland flushable wipes once every three months. Id. at 50:8— 20.
Kurtz experienced plumbing problems he attributed to flushable wipes only after moving to a new home in Brooklyn in February 2013. Within one week of being in the house, he had a clog that needed to be cleaned out *509 by a plumber. Id. at 17:10-20:3. Prior to the plumber’s visit to his new home, flushable wipes were not the only wipe product being used there; Dr, Kurtz’s wife flushed non-flushable baby wipes down the toilet. Id. at 61:17-62:2. The plumber informed him that there were “wipes” clogging the pipes. Id. at 20:12-21.
About two days after the plumber cleaned out the clog, the plumbers were called back to the Kurtz residence after there was a second clog. Id. at 22:20-23:24. Before clearing out the pipes again, the plumber reiterated something he had told Kurtz after his first visit: “no wipes are flushable.” Id. at 23:16-24. In the time between the first and second clog, Kurtz and his family only used wipes that were labeled “flushable.” Id.
Kurtz also experienced plumbing clogs at a rental home in New Jersey in the summers of 2012 and 2013. He noticed the first clog within a week of living there and using flush-able wipes. Id at 66:17-67:7. The plumber who cleared the clog advised the family to only flush toilet paper down the toilet. Id at 67:8-17. After another clogging incident in 2013, a plumber removed wipes from a pipe. Id, at 31:11-33:10. Plaintiff claims that he knows the removed wipes were “flushable” wipes because those were the only type of wipes they had been flushing at that time. Id at 33:4-10. Plaintiff does not know whether the plumbing of the house had ever been renovated or the house’s age. Id at 129:16-22. He believes that other people rent this house in the winter, but does not know who those people are or their hygiene habits. Id, at 34:13-36:3.
Defendants Kimberly-Clark and Costco arranged to inspect the plaintiffs house plumbing systems in both his Brooklyn and New Jersey homes. On December 8, 2014, a master plumber inspected the plumbing at the Kurtz home in Brooklyn. Boyer Report, 14-CV-1142, Feb. 27, 2015, ECF No. 86-26 (“Boyer Report”) at § 3.02.01. The inspection revealed that roots had infiltrated the sewer pipes and the trap was partially blocked. Id; Kurtz Dep. at 74:25-75:23. A December 9, 2014 inspection of the New Jersey property revealed root infiltration of pipes and indicia that a pipe was sagging, which can cause debris accumulation and blockages. Boyer Report at § 3.02.02.
Originally, Kurtz purchased flushable wipes to use when going to the bathroom, and he’d flush the wipes once he was finished. D. Joseph Kurtz Dep., 14-CV-1142, Feb. 27, 2015, ECF No. 83-28 (“Kurtz Dep.”) at 56:15-58:8; 63:12-64:5. After one of the clogging incidents, he no longer believed the wipes were flushable. Id. at 38:3-12. Nevertheless, he continued purchasing the wipes for himself and his family, using them — without flushing them — “in the car, to clean up messes, to clean the children,” Id. at 38:13— 39:20; 58:20-24.
Kurtz has given a deposition, attended court, and reviewed and responded to filings and discovery requests in his role as class representative. See Kurtz Mem. in Supp. of Class Cert., 14-CV-1142, Feb. 27, 2015, ECF No. 81 at 18-19.
C. Procter & Gamble’s Charmin Fresh-mates
Defendant Procter & Gamble manufactures bath tissues and bath wipes under the “Charmin” label. Marlene Otero Deck, Feb. 27, 2015, ECF No. 66 at ¶ 1. The product at issue in the instant case is “Freshmates,” which are advertised as “flushable wipes.” Scott Richards Deck, 14-CV-4090, Feb. 27, 2016, ECF No. 67 at ¶ 1. The packaging appears as follows:
*510 [[Image here]]
Ct. Ex. 23, June 19, 2015. In addition to the labels “flushable” and “flushable wipes,” the package states that the wipes are “Septic Safe” and “Safe for sewer and septic sys-terns”:
[[Image here]]
*511 Id. (emphasis added in the form of a red box). The claims are repeated in Spanish and French.
The packaging, which has not changed since 2011, also advises consumers: “for best results, flush only one or two wipes at a time.” Id.; Science Day I at 189:15-24; Marlene Otero Dep., 14-CV-4090, Jan. 26, 2015, ECF No. 62-2 (“Otero Dep.”) at 46:2 — 4 (stating that she was unaware of any packaging changes between 2011 and January 2015).
Freshmates are sold in 40, 80, and 120-count packages. Otero Dep. at 49:7-20. They cost more than ordinary toilet paper and non-flushable wipes. Belfiore Class Cert. Oral Arg. Hr’g Tr., 14-CV-4090, Aug. 12, 2015, ECF No. 127 (“Belfiore Class Cert. Hr’g Tr.”) at 18:2-19:15.
Freshmates “are pre-moistened wipes ... intended for personal hygiene use in the bathroom setting.” Science Day I at 184:15-17. The wipes are formed and bonded though a process of “hydroentanglement,” in which fine, powerful jets of water are used to entangle a wood-pulp base. Id. at 185:14-18. The base, which is moistened with a “soaking liquid,” is structurally supported by a chemical binder. Id. at 184:25-186:7. Intended by defendant is that their wipes lose strength and begin to disintegrate when dropped into the toilet and exposed to physical forces and biological factors found in wastewater systems. Id. at 187:13-18.
Procter & Gamble has altered the composition of Freshmates in the time that has elapsed since Belfiore filed this lawsuit. Until February 2016, Freshmates were manufactured using a nonwoven substrate composed of wood pulp, rayon fibers, and between 1% and 2.5% “Bicomponent” fibers. Darius Sa-baliunas Deck, 14-CV-4090, Dee. 30, 2016, ECF No. 223-2 at ¶ 10. Beginning on February 1, 2016, Procter & Gamble began shipping a new version of Freshmates that did not contain any “Bieomponent” fibers. Id. at ¶ 12. The purpose of removing these fibers from the Freshmates substrate is to increase the wipe’s dispersibility. Id. at ¶¶ 11-12. This new version of Freshmates is the only version currently on the market. Id. at ¶ 12. Nothing in the record suggests any substantial difference in flushability among the versions manufactured by Procter & Gamble.
Procter & Gamble offers full reimbursements to consumers who claim that Fresh-mates caused a clog. Belfiore Class Cert. Hr’g Tr. at 45:13-17. These reimbursements include a full refund of the purchase price, and a “goodwill” reimbursement — up to $250 — if the consumer complains that Fresh-mates caused plumbing damage. Mary Bush Decl., 14-CV-4090, Dec. 30, 2016, ECF No. 224 at ¶¶ 5-7. On the Freshmates packaging, there is a toll-free customer service telephone number, but no information about Procter & Gamble’s refund policies. See Feb. 3, 2017 Hr’g Tr. at 14:22-24,15:22-16:3.
D. Kimberly-Clark’s Flushable Wipes
Kimberly-Clark first began selling flusha-ble wipes in the mid-1990s. Kimberly-Clark Resp. to Interrog., 14-CV-1142, Feb. 27, 2015, ECF No. 86-3 at 14. Since then, the company has manufactured and sold flusha-ble wipes under many different brand names. See Product Chart, 14-CV-1142, Feb. 27, 2015, ECF No. 86-2. Most of Kimberly-Clark’s brands include the word “flushable” in the title of the product; some only contain flushability claims elsewhere on the packaging. See Kurtz Mem. in Supp. of Class Cert., 14-CV-1142, Feb. 27, 2015, ECF No. 81 at 4-5; Kimberly-Clark Mem. in Opp. to Kurtz Mot. For Class Cert., Mar. 27, 2015, ECF No. 103 (“Kimberly-Clark Opp.”) at 3.
Plaintiff Kurtz purchased “Cottonelle” flushable wipes manufactured by Kimberly-Clark. As presented to the court at its Science Day hearing, the front panel of a “refills” package describes the product as “flushable cleansing cloths”. There is also a logo on the front panel stating the wipes are “sewer and septic safe”:
*512 [[Image here]]
*513 Ct. Ex. 14, June 19, 2015; Ct, Ex. 1, Feb. 2, 2017. A side panel contains the same “sewer and septic safe” logo. Id. Beneath that logo on the side panel, the packaging states: “COTTONELLE FRESH CARE Flushable Cleansing Cloths break up after flushing.” Id. It then has the same statement in French, and further down states, in French and English: “For best results, flush only one or two cloths at a time,” Id. The side panel, as a whole, is as follows:
[[Image here]]
Id.
The relevant representations on the current packaging are largely the same. Ct. Ex. 4, Feb. 2, 2017. The words “flushable cleansing cloths” are much smaller. Id. The “sewer and septic safe” logo is absent, Now, in several places on the package, there is a logo depicting a wipe hovering over a toilet bowl accompanied by the words: “SafeFlush Technology”:
*514 [[Image here]]
Id. Elsewhere on the package, it states: “Sa-feFlush Technology ensures that Cottonelle PreshCare Flushable Cleansing Cloths break up after flushing, and are sewer and septic safe. For best results, flush only one or two cloths at a time”:
[[Image here]]
Id.
*515 Though Kimberly-Clark manufactures and sells different brands of flushable wipes, the actual wipes — and the flushable technology they employ — are essentially the same regardless of brand. See Product Chart, 14-CV-1142, Feb. 27, 2015, ECF No. 86-2; Powling Email, 14-CV-1142, Feb. 27, 2015, ECF No. 83-11 (the “basesheet” for all Kimberly-Clark brands are the same); Science Day I at 93:10-14 (Kimberly-Clark uses the “same technology” across its various flusha-ble products). Kimberly-Clark has changed the composition of its wipes multiple times over the past few years in an effort to improve their dispersibility. In late 2011, it reduced the molecular weight of the binder to increase the speed of dispersion. David Powling Dep., 14-CV-1142, Feb. 27, 2015, ECF No. 86-5 at 25:17-26:1. It also changed the binder of the wipes in December 2013 to improve the way the product dissolves. Id. at 27:12-18. Kimberly-Clark altered the wetting solution in 2013 to improve the product’s softness and dispensability, which may have had a minimal impact on the product’s flush-ability. Id. at 29:6-30:25. In total, there were three versions of flushable wipes manufactured and sold by Kimberly-Clark during the relevant time period. Product Chart, 14-CV-1142, Feb. 27, 2015, ECF No. 86-2.
Though the technology changed slightly, the engineering principles underlying the wipes and their flushability remained essentially the same. Kimberly-Clark wipes are made of wood pulp fibers which are bound together by a chemical binder. After the sheets are made, they are moistened with a wetting solution made of water, a surfactant, and sodium-chloride. Science Day I at 91:19— 92:12, 94:18-97:1. The sodium chloride is the key ingredient stabilizing the binder; it “maintain[s] the wet strength in-pack and provides the point for the trigger later.” Id. at 96:2-6.
“[A]s the wipe contacts water ... the salt in the wetting solution is diluted. By reducing the salt concentration, we’re now allowing the water to attack the binder. The binder begins to rehydrate and soften, and that starts the process of strength loss, and ultimately some release of the fibers. ... [Once] it contacts water, [the process of strength loss] begins very quickly.”
Id. at 96:15-23. Nothing in the record suggests any substantial difference in flushability among different versions manufactured by Kimberly-Clark.
The manufacturer suggested retail prices of its -wipes vary widely depending on the product and the retailer, ranging from $0.99 to $16.99. Kimberly-Clark Resp. to Interrog., 14-CV-1142, Feb. 27, 2015, ECF No. 86-3 at 17-18. Final sales prices that consumers pay depend on what product is purchased, the sales channel through which it is distributed, the retailer, where the product is purchased, if any promotion is used, the type of packaging, and the number of wipes per package. Keith R. Ugone Deck, 14-CV-1142, Feb. 27, 2015, ECF No. 86-25 (“Ugone Deck I”) at ¶¶ 51-52.
According to Kurtz, flushable wipes are sold at a higher price than toilet paper and non-flushable products manufactured and sold by Kimberly-Clark. See Mark S. Reich Deck, 14-CV-1142, July 1, 2014, ECF No. 31 at ¶ 2 (according to Amazon.com, as of June 27, 2014, Cottonelle FreshCare Flushable Cleansing Cloths cost more per wipe than Huggies baby wipes or Cottonelle toilet paper).
E. Costco’s Kirkland Signature Moist Flushable Wipes
Under its private label “Kirkland Signature” brand, Costco sells four types of wipes: flushable wipes, baby wipes, facial wipes, and surface cleaning wipes. Kim Wailor Deck, 14-CV-1142, Feb. 27, 2015, ECF No. 90 (“Wai-lor Deck”) at ¶¶ 5-6. Costco began selling the product at issue, “Kirkland Signature Moist Flushable Wipes,” in July 2011. Kim Babusik Deck, 14-CY-1142, Feb. 27, 2015, ECF No. 91 (“Babusik Deck”) at ¶ 12. They are sold in cartons containing 10 packets of 60 wipes each, for a total of 600 wipes per carton. Id. At all relevant times, most cartons have been sold for $14.99 at Costco warehouses. Costco Resp. to Interrog., 14-CV-1142, Feb. 27, 2015, ECF No. 89-12 at 2.
The front panel of the carton’s packaging describes the product as “moist flushable wipes” in large print. Ct. Ex. 18, June 19, 2015. A logo appears in the upper right cor *516 ner indicating that the product is “made with ecoflush technology”. Id.
The warning against use of multiple wipes before flushing is probably more satisfactory in precluding clogs than those of competing products which suggest use of up to two wipes before flushing. A logo in the lower left section of the panel states: “NEVER PLUSH MORE THAN 1 WIPE AT A TIME.” Id.
Unlike competing products, there is a warning about not using the product in inadequate plumbing. A bullet point states: “Safe for Wellr-Maintained Sewer & Septics*”. Id. (emphasis added). The front panel as a whole appears as follows:
[[Image here]]
Ct. Ex. 18, June 19, 2016.
The back panel contains more detailed representations, including: “Kirkland Signature Moist Flushable wipes are made with Eco-Flush technology from 100% plant-based materials, and are free of chemical binders, chlorine and alcohol. They are safe for well-maintained sewer and septics*.” Id. The asterisk leads to yellow capitalized text, reading: “*NOT RECOMMENDED FOR USE IN MOTOR HOMES OR WITH BASEMENT PUMP SYSTEMS.” Id. Nearby text, in the same font, states: “NEVER FLUSH MORE THAN ONE WIPE AT A TIME”, and “BABY, FACIAL AND CLEANING WIPES, PAPER TOWELS, AND FEMININE HYGIENE PRODUCTS ARE NOT FLUSHABLE AND SHOULD BE DISPOSED OF PROPERLY.” The back panel, in relevant part, appears as follows:
*517 [[Image here]]
Id,
The individual packets within the cartons contain slightly different warnings. On the package represented to be the “current” one at the court’s Science Day hearings (see Science Day I at 148:7-13), the top panel of the individual packet contains a logo in the upper right comer stating that the wipe “BREAKS APART after flushing”:
*518 [[Image here]]
Ct. Ex. 17, June 19, 2015.
The bottom panel of the packet stated that “They are safe for sewer and septic systems because they begin to break down after flushing”:
[[Image here]]
Id, Costco apparently removed the claim that the wipes “break apart after flushing” from the packaging at some point in 2013. Babusik Email, 14-CV-1142, Feb. 27, 2015, EOF No. 83-1 (“We removed the [breaks apart after flushing] logo, because we felt it created an unrealistic expectation on the part of the consumer that it would break apart immediately upon dropping it in the toilet”).
The current individual packet, as presented to the court at the February 2, 2017, is different. The top panel is sparse, and contains an explicit warning to “NEVER FLUSH MORE THAN ONE WIPE AT A TIME”:
*519 [[Image here]]
Ct. Ex. 2, Peb. 2, 2017. One part of the bottom panel states:
[[Image here]]
The asterisk on the sentence “They are safe for well-maintained sewer and septics*” leads to another section of the bottom panel, which appears as follows:
[[Image here]]
Id.
Costeo’s flushable wipes, which are manufactured by Nice-Pak, are made of wood and synthetic fibers. While the wipes used to be bound thermally, the more recent Costco wipes are bound through hydroentangling. Science Day I at 155:20-159:13. Whereas the Kimberly-Clark wipes rely on a chemical reaction for dispersability, Nice-Pak relies on “mechanical dispersibility” to break down the wipe — that is to say, Nice-Pak’s wipes disintegrate due to the energy and velocity of being transported through a system of pipes. Id. at 159:14-160:6. Nice-Pak has changed the applicator/basesheet of the Kirkland Signature Moist Flushable Wipe during the rele *520 vant time period. The first wipe Costco sold was comprised of a nonwoven substrate made by Buckeye Technologies. Around late 2013 to early 2014, Costco switched to a nonwoven substrate manufactured by Sigma Technologies. Jeff Hurley Dep., 14-CV-1142, Mar. 3, 2015, ECF No. 97-7 (“Hurley Dep.”) at 37:17-39:23; Babusik Deel. at ¶ 13. The change was made, in part, to improve the dispersibility of the wipe. Hurley Dep. at 61:10-62:10; Wailor Decl. at ¶ 8. Nothing in the record suggests any substantial difference in flushability among possible different versions produced by Nice-Pak,
Costco offers its customers a full refund — ■ no questions asked — if they are not 100% satisfied with a purchased product. Wailor Deck at ¶3. The customer service phone number provided on the packaging, however, is not Costco’s phone number, but the phone number for Nice-Pak. Id. at ¶ 10; Ct. Ex. 18, June 19, 2015; Babusik Deck at ¶ 17. If a customer complains about a plumbing issue, the information is forwarded to Nice-Pak to resolve the matter. Wailor Deck at ¶ 11. Nice-Pak sometimes reimburses a complainant for reasonable plumbing costs upon receipt of documentation from the customer. Babusik Deck at ¶¶ 20-21. The customer is not informed on the packaging of this refund policy.
When sold at regular, non-discounted prices, flushable wipes are more expensive than Kirkland Signature Baby Wipes. Denise N. Martin Deck, 14-CV-1142, Feb. 27, 2015, ECF No. 89-1 (“Martin Deck I”) at ¶¶ 32-33.
V. Definitions of “Flushability”
There are many available definitions of the word “flushable.”
A.According to the FTC
The FTC, in its consent order with Nice-Pak, defined “flushability” as:
[Disperses in a sufficiently short amount of time after flushing to avoid clogging, or other operational problems in, household and municipal sewage lines, septic systems, and other standard wastewater equipment[.]
See Nice-Pak Final Consent Order at 3.
B. According to the Plaintiffs
The plaintiffs have a more narrow definition of flushability. Kurtz believes that “flushable would mean that I can take a product, flush it down the toilet, and it would not cause any problem to any part of my flushing system, any pipes.” Kurtz Dep., 14-CV-1142, May 28, 2016, ECF No. 142-1 at 37:14-20 (emphasis added). Belfiore similarly stated that he only cares about his own residential system when evaluating flushability; he would buy Freshmates again if in the future “you had confidence that Charmin flushable wipes would flush down your toilet and not clog your septic system or your sewer line or your pipes.” Anthony Belfiore Dep., Dec. 18, 2014, 14-CV-4090, ECF No. 63-1 (“Belfiore Dep.”) at 122:16-21 (emphasis added).
C. According to Plaintiffs’ Experts
Belfiore’s expert, Robert Villée, is Executive Director of the Plainfield Area Sewerage Authority, a Regional Interceptor. He has expertise in municipal sewage systems, but not in consumer’s plumbing or cesspools. Science Day II at 6:12-8:6, 72:10-12. Villée offers a narrow, pragmatic definition of consumer expectations:
For the consumer, they just want it to go away when they push the little silver handle on the big white thing in the bathroom. As long as it goes awcuy and doesn’t cause them problems they consider the product to be flushable ...
Id. at 47:17-20 (emphasis added). When pressed, he offered: a “flushable” wipe must, from the perspective of a consumer or a municipality, “disperse in a short period of time .,. [and] begin to lose strength almost after it’s flushed.” Id. at 49:18-19, 50:21-23 (emphasis added).
Kurtz’s expert, Daniel H. Zitomer, is an environmental engineer who has served as a consultant for wastewater districts. He proffered a broad definition that extended to municipal sewage and wastewater treatment systems.
*521 Q: When asked at your recent deposition what flushable means ... [y]ou said that when used appropriately and flushed, it shouldn’t cause any impairments of the function or damage to plumbing system, its sewerage system or the treatment system.
Is that right?
A: Yes, that’s correct.
Science Day I 48:12-20 (emphasis added).
D. According to Plaintiffs’ Counsel
Kurtz’s counsel believes that all the proffered definitions of “flushable” “have a common theme that basically a product must break apart in a reasonable period of time. ... Reasonable is going to be determined by a reasonable consumer.” Feb. 2, 2017 Hr’g Tr. at 61:17-62:3. Belfiore’s counsel adopts the FTC’s definition of flushable, as articulated in the Nice-Pak Final Consent Order. See Feb. 3, 2017 Hr’g Tr. at 29:16-19.
E. According to Defendants’ Experts
Jeffrey Scott Hurley, Vice President for Nonwovens for Nice-Pak Products Inc., a competitor of defendant, defined “flushable,” according to a consumer, as being able to pass through one’s property — a definition that, according to him, included a golf ball:
Q: [W]hat is your definition of flushable?
A: Say the consumer, because I’m not wastewater, I’m a consumer, that flushable is the product is passing out through my house and it’s off my property.
Q: So a paper towel would be flushable then?
A: To a consumer, yes,
Q: A golf ball?
A: A wristwatch, golf ball, Matchbox car.
Science Day 1 178:16-23 (emphasis added).
Dr. Darius Sabaliunas, Associate Director of Global Products Stewardship for Procter & Gamble, offered a specific definition with respect to a consumer’s understanding of “flushable”:
A: ... If you ask a consumer, consumer’s understanding would be, well, it has to clear the toilet. It has to clear the drain-line. It has to successfully leave their home. Probably that is what they care about. P & G looks beyond that. And we agree, obviously, with the consumer and we have tests to show that wipes do just that, you know, they’re compatible with home systems. But then also we have tests that ensure compatibility of flushable products with municipal sewer systems, too, as well as treatment plants,
Q: How do you measure whether a product is flushable?
A: We use [the Association of the Nonwoven Fabrics Industry] guidelines ....
Science Day I at 190:8-18 (emphasis added).
Dr. Sabaliunas reiterated reliance on a proposed industry-wide standard in a declaration, tying the definition of flushable to the capacity of the product to comply with industry standards and tests:
The tests described in the INDA [Association of the Nonwoven Fabrics Industry] guidelines measure how a product performs in a consumer’s toilet and household pipe system, its compatibility with waste-water conveyance, treatment, reuse, and disposal systems, and whether the product is unrecognizable in effluent and digested sludge that is generated in the normal course by wastewater treatment facilities. Products that pass the battery of flushability tests described in these INDA guidelines may be labeled as “flushable.”
Darius Sabaliunas Deck, 14-CV-4090, Feb. 27, 2016, ECF No. 68 at ¶ 7; see also Procter & Gamble Mem. in Opp. to Belflore Mot. for Class Cert., Mar. 27, 2015, ECF No. 81 (“Procter & Gamble Opp.”) at 9 n.5 (“[I]t is undisputed that Freshmates passes all of the tests required for the product to be labeled as ‘flushable’ under these [INDA] guidelines.”). He also stated that “flushable products do not have to fully disintegrate in home drain lines for them to be compatible with toilet and drain lines and not to clog them.” Science Day I at 208:1-4.
F.According to Defendants’ Counsel
For the purposes of this litigation, defendants’ counsel argue that there is no one consumer definition of “flushable” — “flusha-bility” is a highly individualized inquiry. Defendant Procter & Gamble contends that *522 whether a wipe is “flushable” is a subjective inquiry, unique to each purchaser’s experience:
[T]he claim that Freshmates is not “flusha-ble” because it clogged Mr. Belfiore’s pipes is unique to Mr, Belfiore’s actual experience; plaintiff has not shown (and could not show) through common evidence that the product is actually “non-flushable” for everyone. Mr. Belfiore’s experience is not typical of the majority of purchasers, many of whom have been using the product for years, and for whom the product has always been fully “flushable.”
Procter & Gamble Opp. at 7. When pushed to provide a definition, counsel for defendant stated: “what Procter & Gamble knows consumers believe [flushable] to mean is that it will not cause problems in their home system.” Belfiore Class Cert. Hr’g Tr. at 46:15-18.
Defendant Kimberly-Clark agrees that a wipe’s flushability is based on an individualized inquiry; whether a consumer considers a wipe to be “flushable” may turn not only on the individual’s knowledge of her own plumbing, but even what toilet she chooses to use in conjunction with the wipe:
I think many of us have those individualized inquiries in our homes. You may know that you’re perfectly comfortable flushing your toilet upstairs, triple-ply toilet paper, whatever you want to stick in there, because it’s good, it’s new, it’s fast. But you go downstairs and you’re limited to the single-ply stuff or what have you.
Feb. 2, 2017 Hr’g Tr. at 9:18-18.
Costco agrees that “flushability” must be determined on a case-by-case basis. “ ‘Flush-able’ is a claim about what the consumer can do with the product. If someone buys flusha-ble wipes and then flushes them without suffering any plumbing problems, they got what they paid for and have suffered no injury ... there is no injury unless something went wrong when they flushed it.” Costco Reply in Supp. of Mot. to Deny Class Cert., 14-CV-1142, Apr. 30, 2015, EOF No. 129 (“Costco Reply”) at 7 (emphasis in original).
G. According to Defendants’ Labeling Practices
For the purposes of labeling their products, all defendants followed the guidelines of the Association of the Nonwoven Fabrics Industry (“INDA”). In June 2008, INDA, an organization of United States companies in the “nonwoven/engineered fabrics industry,” and EDANA, its European counteipart, formulated the first edition of guidelines that assessed the flushability of nonwoven consumer products. See Guidelines for Assessing the Flushability of Disposable Nonwoven Prod., Third Edition, 14-CV-4090 June 22, 2015, ECF No. 108-1 (“INDA Guidelines”) at 3-4. The third edition of the flushability guidelines, released in June 2013, addresses how nonwoven products effect both the consumer and wastewater treatment systems. For a product to be “operationally defined as flushable,” it must:
Clear toilets and properly maintained drainage pipe systems when the supplier’s recommended usage instructions are correctly followed;
Pass[ ] through wastewater conveyance systems and is compatible with wastewater treatment, reuse and disposal systems without causing system blockage, clogging or other operational problems; and
Is unrecognizable in effluent leaving onsite and municipal wastewater treatment systems and in digested sludge from wastewa-ter treatment plants that are applied to soil.
INDA Guidelines at 19. A fourth edition of the guidelines is under consideration. Science Day II at 15:3-5.
Some of the defendants have worked closely with INDA in developing their flushability guidelines. David Powling, a Technical Leader in Kimberly-Clark’s flushable wipes division, was a technical expert for INDA. Science Day I at 85:4-5. Dr. Darius Sabaliunas, Procter & Gamble’s Associate Director of Global Products Stewardship, testified that Procter & Gamble is an active member of INDA and had suggested establishing a flushability task force. Id. at 191:10-23.
Ml three defendants label their products as “flushable” in accordance with the INDA *523 guidelines. According to defendants, all of their flushable products have always complied with the applicable INDA guidelines for “flushability.” Id. at 106:16-107:13; 128:8-17 (Powling from Kimberly-Clark so testifying); 190:8-18 (Sabaliunas from Procter & Gamble so testifying); 180:26-181:6 (Hurley from Niee-Pak so testifying).
H. According to Dictionaries
Dictionaries offer differing definitions of “flushable.” See, e.g., Flushable, Merriam-Webster, http://www.meniam-webster.com/ dictionary/flushable (last visited Apr. 22, 2017) (“suitable for disposal by flushing down a toilet”); Flushable, Oxford English Dictionary (3rd ed. 2007), available at http://www. oed.com/view/Entry/268411?redirected From=flushable#eid (“designed to be flushed down a toilet after use. Also more generally: of a size which admits of disposal down a toilet.”); Flushable, Webster’s New World College Dictionary (6th ed. 2014), available at http://www.yourdictionary.com/ flushable#websters (“designed to be disposed of by flushing down the toilet”).
I. Lack of Consumer Surveys
No scientifically-designed survey has been offered indicating consumer understanding of the term. An acceptable survey would be expensive. Plaintiffs have been non-committal on whether they are willing to pay for such a survey. Feb. 2, 2017 Hr’g Tr. at 62:10-16 (“[A survey is] something that has been considered. We’re not sure whether or not that’s something that’s absolutely necessary.”). Limitation of classes to New York buyers rather than national consumers would reduce the cost and probably increase the accuracy of any class survey.
VI. Expert Reports
A. Plaintiffs’ Expert: Colin B. Weir
Plaintiffs Kurtz and Belfiore submitted expert reports from Colin B. Weir, Vice President of Economics and Technology, Inc., “a research and consulting firm specializing in economics, statistics, regulation and public policy.” Colin B. Weir Deck, 14-CV-4090, Feb. 27, 2015, EOF No. 62-3 (“Belfiore Weir Expert Report”) at 1; Colin B. Weir Rebut. Deck, 14-CV-4090, Apr. 29, 2015, EOF No. 89-3 (“Belfiore Weir Rebuttal”); Colin B. Weir Deck, 14-CV-1142, Feb. 27, 2015, EOF No. 84 (“Kurtz Weir Expert Report”) at 1; Colin B. Weir Rebut. Deck, 14-CV-1142, Mar. 27, 2015, EOF No. 102 (“Kurtz Weir Rebuttal”). Mr. Weir has provided expert testimony before federal and state courts, the Federal Communications Commission, and state regulatory commissions. Belfiore Weir Expert Report ¶ 1.
Mr. Weir’s “hedonic regression” analysis has been accepted by the federal district court for the Southern District of New York to demonstrate a price premium associated with the specific representation “50% thicker” on the defendant’s seed packaging. In re Scotts EZ Seed Litig., 304 F.R.D. 397, 413-14 (S.D.N.Y. 2015). His calculation of a price premium, attributable to a challenged 0% olive oil dilution, was also accepted in the Southern District in Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 571-72 (S.D.N.Y. 2014) (calculating price premium based on a difference in value calculation).
Classwide calculation of a price premium attributable to the representation that a vitamin C supplement is “The Better Vitamin C” was recently rejected in the federal district court for the Eastern District of New York because the methodology was unable to isolate what better” meant in the context of a label that contained many representations that could have accounted for why the vitamin C at issue was “better.” Hughes v. The Ester C Company, 317 F.R.D. 333, 355-56 (E.D.N.Y. 2016).
In the instant litigation, Mr. Weir proposed three damages models: full compensatory damages, statutory price premium damages, and statutory damages. See generally Belfiore Weir Expert Report at ¶¶ 10-53; Kurtz Weir Expert Report at ¶¶ 15-61. His price premium model is relevant to establishing injury; his statutory model is relevant to calculating damages.
In order to ascertain a price premium, Mr. Weir proposes using hedonic regression analysis, a tool that purports to measure the value of various product attributes in order to demonstrate the existence of, and to iso *524 late the amount of, a price premium attributable to defendants’ use of “flushable” in merchandising. Belfiore Weir Expert Report, at ¶ 15; Kurtz Weir Expert Report at ¶ 19. The analysis would rely on evidence gleaned from the defendants’ own business records, industry resources, and independent market research data obtained from companies like Nielsen and Information Resources, Inc. Belfiore Weir Expert Report at ¶¶ 41-49; Kurtz Weir Expert Report at ¶¶ 19-60.
In his report and rebuttal, Mr. Weir presented the hedonic regression function in detail and provided a “preliminary” list of product attributes upon which he would rely, See Belfiore Weir Expert Report at ¶¶ 19-25, 33-36; Belfiore Weir Rebuttal at ¶¶ 25-29; Kurtz Weir Expert Report at ¶¶ 21-31, 38-41; Kurtz Weir Rebuttal at ¶48. He describes the “iterative” process that can be used to determine the “best regression specification before finalizing the results.” Belfiore Weir Expert Report at ¶34; Kurtz Weir Expert Report at ¶ 40.
In the alternative, Mr. Weir presents in a footnote two different methods for determining a price premium:
It would also be possible to evaluate the difference in price attributable to the “flushable” label ... using statistical sui’-vey techniques such as contingent valuation (a representative survey technique that asks people to directly report their willingness to pay to obtain a specific good or product attribute, or willingness to accept to give up a good or product attribute) or conjoint analysis (a representative survey technique where survey panelists are confronted with various choices of product attributes, prices, and other alternatives, and asked either to rank their preferences, or to choose the most preferred attribute or combination thereof) the results of which permits an economist to analyze the value of various product attributes.
Belfiore Weir Expert Report ¶ 14, n. 7; Kurtz Weir Expert Report ¶ 20, n. 14.
To determine the statutory damages under New York law, Weir proposed a simple mathematical calculation based on the New York statutory penalty of $50 a purchase. Belfiore Weir Expert Report at ¶ 63; Kurtz Weir Expert Report at ¶ 61; see New York General Business Law §§ 349, 350.
B. Procter & Gamble’s Expert: Carol A. Scott, Ph.D.
Defendant Procter & Gamble submitted two expert reports from Carol A. Scott, Ph. D., professor emeritus of marketing at the Anderson Graduate School of Management, University of California, Los Angeles. Carol A. Scott Deck, 14-CV-4090, Feb. 27, 2015, EOF No. 69 (“Scott Decl. I”); Carol A. Scott Deck, 14-CV-4090, March 27, 2015, EOF No. 82 (“Scott Deck II”).
Dr. Scott calls hedonic regression “not an ‘ideal’ method to determine a price premium.” Scott Deck II ¶¶ 6, 10-14, 20. Assuming it is suitable, she challenges Mr. Weir’s proposal because it does not provide sufficient details about the model or define parameters for the: (1) dependent variable (the price of the product); (2) set of independent or predictor variables (the product attributes); and (3) set of brands against which these variables will be analyzed. Id. at ¶ 15. She also questions differences in the format of several of the available datasets. Id. at ¶¶ 16, 26-42.
C. Costco’s Expert: Denise N, Martin, Ph.D.
Defendant Costco submitted two expert reports from Denise N. Martin, Ph,D,, a Senior Vice President at NERA Economic Consulting. Martin Deck I; Denise N. Martin Deck, 14-CV-1142, Apr. 16, 2015, EOF No. 118-1 (“Martin Deck II”).
Dr. Martin analyzed consumer transaction data and found that Costco customers who purchased Kirkland Signature flushable wipes varied widely as to when they purchased the wipes, how often they purchased the wipes, how many wipes they purchased, and whether they purchased other flushable and non-flushable wipes. Martin Deck I at ¶¶ 14-24. Dr. Martin also questioned whether a “comparable, non-flushable” product could be identified to compare against Kirkland Wipes to learn if there is a price premium associated with the “flushability” characteristic, noting that different products have many different characteristics. Id. at ¶¶ 25-30. She *525 contends that an analysis of the price differential between Costco’s flushable and non-flushable wipes demonstrates that any higher price attributable to flushable wipes could be explained by volume discounting. Id. at ¶¶ 32-36.
According to Dr. Martin, “Mr. Weir’s proposed application of hedonic regression to estimate damages in this case” is “critically flawed.” Martin Decl. II at ¶ 6. In particular, she criticizes his proposed model because, among other reasons: (1) the “flushable” characteristic it seeks to isolate is not sufficiently defined; (2) there are bundled attributes and omitted variables that cannot be accounted for; and (3) it assumes that prices would be fundamentally the same in a hypothetical world where flushable wipes were not labeled “flushable.” Id. at ¶¶ 6-8; 32-64.
D. Kimberly-Clark’s Expert: Keith R. Ugone, Ph.D.
Defendant Kimberly-Clark submitted two expert reports from Keith R. Ugone, Ph.D., an economist and the Managing Principal at Analysis, Group, Inc. Ugone Decl. I; Keith R. Ugone, Deck, 14-CV-1142, Mar. 27, 2016, EOF No. 106 (“Ugone Decl. II”).
Dr. Ugone argued that classwide proof of damages is not possible because individualized inquiries are necessary to determine why a consumer purchased a flushable wipes product, how it worked for that consumer in his or her home, and how much the consumer paid for the product. Ugone Decl. I at ¶¶ 17-56. He attacked Mr. Weir’s proposed hedonic regression methodology because the flushability representations on the challenged products have changed periodically, and the model lacked detail and clarity concerning variables, comparator products, and whether one or multiple regressions would be needed. Ugone Decl. II at ¶¶6-7; 20-31. He also critiqued Mr. Weir’s proposed survey techniques — contingent valuation and conjoint analysis — as (1) only being able to demonstrate a “willingness” of consumers to pay a precise premium, without' demonstrating if such a price premium existed; (2) potentially biasing the survey participants about relevant product features; and (3) unable to measure the value of the “flushability” attribute during the putative class time period. Id. at ¶¶ 36-43.
VII. New York Law
Plaintiffs Belfiore and Kurtz allege that the defendants violated New York General Business Law § 349. Plaintiff Kurtz also alleges that the defendants violated New York General Business Law § 360, and asserts common law claims for negligent misrepresentation, breach of express warranty, and unjust enrichment,
A, New York General Business Law §§ 349 and 350
Section 349 of New York’s General Business Law declares consumer fraud unlawful:
Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.
N.Y.G.B.L. § 349(a).
Section 350 of the New York General Business Law makes unlawful “false advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y.G.B.L. § 350. “The term ‘false advertising' means advertising, including labeling.” N.Y.G.B.L. § 350-a.
The elements of the plaintiffs’ claims under these two sections of the New York General Business Law are the same. See In re Scotts, 304 F.R.D. at 409 ; Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940 , 944 N.Y.S.2d 452 , 967 N.E.2d 675, 675-76 (2012). To establish a •prima facie case, “a plaintiff must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts [we]re misleading in a material way, and (3) the plaintiff has been injured as a result.” In re Scotts, 304 F.R.D. at 409 (citing Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000)).
Materiality is an objective inquiry; a plaintiff must show that the act complained of was likely to “mislead a reasonable consumer acting reasonably under the circumstances.” Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009) (emphasis added) (citation omitted). Courts “view each allegedly *526 misleading statement in light of its context on the product label or advertisement as a whole.” Delgado v. Ocwen Loan Servicing, LLC, 2014 WL 4773991 , at *8 (E.D.N.Y. Sept. 24, 2014) (citation and quotation marks omitted), “The entire mosaic” is “viewed rather than each tile separately.” Time Warner Cable, Inc. v. DIRECTV, Inc., 2007 WL 1138879 , at *4 (S.D.N.Y. Apr. 16, 2007) (citation omitted). The “issue may be a question of law or of fact as individual cases require.” Delgado, 2014 WL 4773991 , at *8 (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20 , 623 N.Y.S.2d 529 , 647 N.E.2d 741, 745 (1995)).
“Intent to defraud and justifiable reliance by the plaintiff are not elements of the statutory claim.” Oscar v. BMW of N. Am., LLC, 274 F.R.D. 498, 512 (S.D.N.Y. 2011) (emphasis added) (citing Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 , 698 N.Y.S.2d 615 , 720 N.E.2d 892, 897 (1999)); In re Avon Anti-Aging Skincare Creams & Prods. Mktg. & Sales Practices Litig., 2015 WL 5730022 , at *7 (S.D.N.Y. Sept. 30, 2015) (“Plaintiffs need not show justifiable reliance”). But “proof that a material deceptive act or practice caused actual, although not necessarily pecuniary, harm is required to impose compensatory damages.” Id. (citation omitted).
A violation of New York General Business Law § 349 permits an action to “enjoin such unlawful act or practice, an action to recover actual damages or fifty dollars [per transaction], whichever is greater, or both such actions.” N.Y.G.B.L. § 349(h) (emphasis added). The provision also provides for trebling of actual damages and fees for plaintiffs attorney:
The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney’s fees to a prevailing plaintiff.
Id.
“Section 349(h) is substantially modelled on the Federal Trade Commission Act.” Genesco Entm’t, a Div. of Lymutt Indus., Inc. v. Koch, 593 F.Supp. 743, 752 (S.D.N.Y. 1984). A violation of New York General Business Law § 350 provides for almost identical relief, except that the statutory award is five hundred dollars per transaction. N.Y.G.B.L. § 350-e (emphasis added).
The statutory damages for many multiple purchasers is potentially enormous: it is $50 or $500 per purchase plus attorneys’ fees. Yet, as previously noted supra at Part II.D.2, the Shady Grove opinion of the Supreme Court permits such damages. Though plaintiffs would not be able to obtain such statutory damages through a class action if this action were litigated in New York state court (see CPLR § 901(b)), the Supreme Court of the United States in Shady Grove held that such a class action for statutory damages is maintainable in federal court. 559 U.S. at 399-401 , 130 S.Ct. 1431 . This holding binds district courts. See Belfiore, 311 F.R.D. at 59 ; supra, Part II.D.2.
B. Common Law Claims
1. Negligent Misrepresentation
“It is well settled that a claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173 , 919 N.Y.S.2d 465 , 944 N.E.2d 1104, 1109 (2011) (internal quotation marks omitted). “In general, a simple commercial relationship, such as that between a buyer and seller or franchisor and franchisee, does not constitute the kind of special relationship necessary to support a negligent misrepresentation claim.” Century Pac., Inc. v. Hilton Hotels Corp., 2004 WL 868211 , at *8 (S.D.N.Y. Apr. 21, 2004) (citation omitted) (internal quotation marks omitted). Where a party holds itself out as possessing special expertise, privity may exist, See Kimmell v. Schaefer, 89 N.Y.2d 257 , 652 N.Y.S.2d 715 , 675 N.E.2d 450, 454 (1996) (“[A] fact finder should consider whether the person making *527 the representation held or appeared to hold unique or special expertise; whether a special relationship of trust or confidence existed between the parties; and whether the speaker was aware of the use to which the information would be put and supplied it for that purpose.”). Certification of a class on the negligent misrepresentation claim is not warranted. See infra at VIII.F.2.C. The claims of defendants were arguably well founded and supported in part by research.
2. Breach of Express Warranty
“To state a claim for breach of express warranty, a plaintiff must allege (1) the existence of a material statement amounting to a warranty, (2) the buyer’s reliance on this warranty as a basis for the contract with the immediate seller, (3) breach of the warranty, and (4) injury to the buyer caused by the breach.” In re Scotts, 304 F.R.D. at 410 (internal quotation marks omitted). Certification of a class on the breach of express warranty claim is not warranted, particularly since there is a standing offer of a full refund. See infra at VIII.F.2.C.
3. Unjust Enrichment
“Under New York law, a plaintiff seeking damages for a claim of unjust enrichment must establish three elements: “(1) that the defendant benefitted; (2) at the plaintiffs expense; and (3) that equity and good conscience require restitution.” Digizip.com, Inc. v. Verizon Servs. Corp., 139 F.Supp.3d 670, 682 (S.D.N.Y. 2016) (internal quotation marks omitted). “An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim.” Corsello v. Verizon New York, Inc., 18 N.Y.3d 777 , 944 N.Y.S.2d 732 , 967 N.E.2d 1177, 1186 (2012). Certification of a class on the unjust enrichment claim is not warranted. See infra at VIII.F.2.C.
VIII. Class Certification in Kurtz and Belfíore
Belfiore seeks to certify the following class: “All persons and entities who purchased Charmin Freshmates in the State of New York between May 23, 2011 and the present.” Letter, 14-CV-4090, Feb. 6, 2017, ECF No. 242.
Kurtz seeks to certify the following three classes: (1) “All persons and entities who purchased Kimberly-Clark Flushable Products in the State of New York between February 21, 2008 and the present.”; (2) “All persons and entities who purchased Kirkland Signature Flushable Wipes in the State of New York between July 1, 2011 and the present.”; and (3) “All persons and entities who purchased Kimberly-Clark Flushable Products from February 21, 2008 and the present or Kirkland Signature Flushable Wipes from July 1, 2011 to the present.” Letter, 14-CV-1142, Feb. 6, 2017, ECF No. 282. The court defines “Kimberly-Clark Flushable Wipes” as flushable moist wipe products sold under Kimberly-Clark’s Cotto-nelle, Scott, Huggies, PullUps, U by Kotex, and Poise brands. See id; Compl., 14-CV-1142, Feb. 21, 2014, ECF No. 1 at ¶2. This definition excludes flushable products manufactured by Kimberly-Clark that were never sold in the United States. See Kimberly-Clark Mem. in Supp. of Mot. to Deny Class Cert., 14-CV-1142, Feb, 27, 2016, ECF No. 85 at 4 n. 2 (two lines of products listed in plaintiffs complaint — Scottex and Andrex— were never sold in the United States). The court may later amend the definition further if needed. Fed. R. Civ. P. 23(e)(1)(C).
Kurtz’s third proposed class, the nationwide class, is denied on adequacy of representation grounds. See Kurtz, 320 F.R.D. 104 , 2017 WL 761231 (E.D.N.Y. Feb. 27, 2017).
“[T]he class action is one way of equalizing the power of enfeebled individuals and the powerful entities they confront.” Essay, Notes on Uniformity and Individuality in Mass Litigation, 64 DePaul L. Rev. 251 , 266 (2015). “The policy at the very core of [Federal Rule of Civil Procedure 23] ... is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 , *528 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).
“Rule 23 class actions are designed to promote efficiency and economy of litigation ... without sacrificing procedural fairness.” Ackerman v. Coca-Cola Co. & Energy Brands, Inc., 2013 WL 7044866 , at *6 (E.D.N.Y. July 18, 2013) (report and recom

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8777590. Public record. Not legal advice.