Kurtz v. Kimberly-Clark Corporation et al

Filing 226

MEMORANDUM & ORDER. The cases captioned herein may be particularly appropriate for aggregate agency resolution. The parties are encouraged 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. Ordered by Judge Jack B. Weinstein on 6/28/2016. (Attachments: #1 Aggregation of Similar Claims in Agency Adjudication, 81 Fed. Reg. 119, 40259-61 (June 21, 2016), #2 Michael SantAmbrogio & Adam Zimmerman, Inside the Agency Class Action (June 15, 2016)) (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

___________________________________x
D. JOSEPH KURTZ, Individually and on
Behalf of All Others Similarly Situated,

MEMORANDUM & ORDER
14-CV-1142

Plaintiff,
-againstKIMBERLY-CLARK CORPORATION &
COSTCO WHOLESALE CORPORATION,
Defendants.

___________________________________x
ANTHONY BELFIORE, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

14-CV-4090

-againstTHE PROCTER & GAMBLE COMPANY,
Defendant.

___________________________________x
DESMOND R. ARMSTRONG, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,
-againstCOSTCO WHOLESALE CORPORATION &
NICE-PAK PRODUCTS, INC.,
Defendants.

___________________________________x

15-CV-2909

___________________________________x
GLADYS HONIGMAN, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

15-CV-2910

-againstKIMBERLY-CLARK CORPORATION,
Defendant.

___________________________________x
STEVEN and ELLEN PALMER, Individually and on
Behalf of All Others Similarly Situated,
Plaintiffs,

15-CV-2928

-againstCVS HEALTH &
NICE-PAK PRODUCTS, INC.,
Defendants.

___________________________________x
EUGENE and VICTORIA RICHARD, Individually and on
Behalf of All Others Similarly Situated,
Plaintiff,

15-CV-4579

-againstWAL-MART STORES, INC. & ROCKLINE INDUSTRIES,
Defendants.
---------------------------------x

JACK B. WEINSTEIN, Senior United States District Judge:
In October 2015, this court stayed class certification in the above-captioned cases and
referred the critical issue of an appropriate definition of “flushable” wipes and related matters to
the Federal Trade Commission (“FTC”). See Belfiore v. Procter & Gamble Co., 311 F.R.D. 29

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(E.D.N.Y. 2015), reconsideration denied, 140 F. Supp. 3d 241 (E.D.N.Y. 2015); Order Staying
Cases 14-CV-1142, 15-CV-2909, 15-CV-2910, 15-CV-2928, and 15-CV-4579, Oct. 9, 2015.
Motions to reconsider and lift the stay were denied in order to provide the FTC with time
to reach, in its discretion, a national “flushable” wipes definition applicable to manufacturers and
retailers—and protective of consumers nationwide. See Belfiore v. Procter & Gamble Co., 140 F.
Supp. 3d 241, 246 (E.D.N.Y. 2015) (“Referral to the FTC in the present case is appropriate. The
FTC is specifically granted broad power to regulate advertising and should be afforded the
opportunity to determine a uniform definition of ‘flushable’ applicable on a national, and perhaps
international, basis”); Kurtz v. Kimberly-Clark Corp., No. 14-CV-1142, 2015 WL 8481833, at *34 (E.D.N.Y. Dec. 10, 2015). It was noted that “allowing the FTC 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 246; see also Belfiore, 311 F.R.D at 78-79.
The cases before us are individual consumer cases. There is a larger issue of possible
liability to, and protection of, waste disposal plant operations by municipalities and others, not
before this court. See, e.g., City of Perry, Iowa v. Procter & Gamble Co., et al., --- F. Supp. 3d ---, 2016 WL 2939511 (S.D.N.Y. May 19, 2016).
At the time of this court’s December 10, 2015 memorandum and order in the case of Kurtz
v. Kimberly-Clark Corp., the FTC had entered into a final consent decree with Nice-Pak Products,
Inc. (“Nice-Pak”), concerning its “flushable” wipe product. See Kurtz, WL 8481833 at *4. The
agency was apparently continuing to investigate additional manufacturers of “flushable” wipes,
including two of the defendants in actions currently before this court. See id.

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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. 119, 40259-61 (June 21, 2016) (attached to this order). It
recognized “aggregation as a useful tool to be employed in appropriate circumstances.” Id. at
40260. Although the recommendation is non-binding, the Administrative Conference recognized
a federal agency’s broad discretion to aggregate cases:
The Administrative Procedure Act (APA) does not provide
specifically for aggregation in the context of adjudication, though it
also does not foreclose the use of aggregation procedures. Federal
agencies often enjoy broad discretion, pursuant to their organic
statutes, to craft procedures they deem ‘‘necessary and appropriate’’
to adjudicate the cases and claims that come before them. This
broad discretion includes the ability to aggregate common cases,
both formally and informally.
Id. (footnotes omitted).
The newly adopted recommendation presents an important route that will be carefully
considered by administrative and other agencies, as well as by the Bench, the Bar, and academia,
in connection with mass actions that should be aggregated. See Michael Sant’Ambrogio & Adam
Zimmerman, Inside the Agency Class Action (June 15, 2016) (unpublished manuscript) (on file
with the court and attached to this order) (analyzing the use of aggregate procedures in
administrative agencies as well as the challenges and benefits of aggregate agency adjudication);
see also Michael Sant’Ambrogio & 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.
The captioned cases may be particularly appropriate for aggregate agency resolution. The
parties are encouraged to explore the opportunity for aggregate adjudication of their claims before
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the FTC pursuant to the new federal recommendation by the Administrative Conference of the
United States.

Jack B. Weinstein
Senior United States District Judge

June 28, 2016
Brooklyn, New York

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