Garrett Llewellyn Quoted in Northern California Record on 9th Circuit False Advertising Case
Northern California Record has quoted Akin Gump litigation counsel Garrett Llewellyn in the article “Article III standing possible for consumers in future false advertising class actions.” The article follows a ruling by the U.S. Court of Appeals for the 9th Circuit in Davidson v. Kimberly-Clark Corp.
Discussing the decision, Llewellyn said companies that are currently accused of falsely advertising their products will have a tougher time defeating lawsuits filed against them under California consumer protection laws. “Before the ruling,” he said, “a company could argue that a plaintiff who had learned that advertising was allegedly ‘misleading’ was no longer at risk of being deceived in the future by the advertising in question. That argument has now been eliminated.”
In the Davidson case, as the article reports, the plaintiff had sued Kimberly-Clark for flushable wipes that did not tear apart, arguing the company violated the Consumer Legal Remedies Act. After the district court granted Kimberly-Clark’s motion to dismiss, holding that the plaintiff lacked standing because she was unlikely to purchase the wipes in the future, the 9th Circuit reversed the decision by ruling that the plaintiff’s inability to rely on Kimberly-Clark’s future representations constitutes a “threatened injury that is certainly impending,” thereby establishes Article III standing.
As for whether the case will make its way to the Supreme Court, Llewellyn said, “The 9th Circuit’s opinion in the Kimberly-Clark case discussed only the application of the federal Article III standing principle to California’s consumer protection laws. Accordingly, it is unlikely the Supreme Court would grant certiorari in this case.”
Llewellyn also suggested that lawyers experienced in these types of class actions “can mitigate the effect of the Kimberly-Clark holding through a well-tailored discovery and experienced litigation strategy.