Update: Ninth Circuit Softens Its Decision In Flushable Wipes Case

On May 9, 2018, the Ninth Circuit issued an Opinion amending its previous decision in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017).  As we noted in our December 4, 2017 post on the 2017 decision, the Ninth Circuit had held that the fact that a plaintiff now knows the "truth" of an allegedly false advertisement does not foreclose injunctive standing.  (See https://classdismissed.mofo.com/consumer-products/ninth-circuit-finds-lower-court-erred-in-flushing-flushable-wipes-false-advertising-claims/.)

In its amended Opinion, the panel clarifies its decision and refines the requirements for injunctive standing in the misbranding context in three ways: (1) it confirms that Article III injunctive standing requires plaintiffs to allege an intent to repurchase the product at issue; (2) it changes its previous stance that consumer protection laws would be gutted without injunctive relief; and (3) it holds that Plaintiff sufficiently alleged a "concrete