Procter & Gamble Co. Charmin brand flushable wipes. Photographer: Daniel Acker/Bloomberg

A pair of class actions brought against two manufacturers and bulk retailer Costco Wholesale Corp. over claims “flushable wipes” aren't so flushable were remanded back to the district court Tuesday by the U.S. Court of Appeals for the Second Circuit.

The appellate panel of Circuit Judges Guido Calabresi, Debra Ann Livingston and Raymond Lohier Jr. said the appeal by manufacturers Procter & Gamble and Kimberly-Clark, and Costco required more work by U.S. District Judge Jack Weinstein of the Eastern District of New York.

In March 2017, Weinstein certified class status in two suits before him that survived the court's review process, Kurtz v. Kimberly-Clark and Belfiore v. Procter & Gamble. The plaintiffs in each suit alleged the product claims of a flushable toilet wipe—purchased at a premium—were false. In fact, they claimed, the wipes ended up clogging plumbing.

On appeal, the companies argued that the plaintiffs failed to overcome elements of the Rule 23(b) test. Specifically, the defendants argued the district court erred in giving the plaintiffs a pass on the predominance requirement. They argued the plaintiffs failed to prove that common issues will predominate over the individual members of the class, as they were able to provide “common proof” of injuries and causation.

The defendants pointed to the plaintiff's expert—Colin Weir, vice president at a research and consulting firm—and his testimony regarding a so-called hedonic regression analysis. The defendants claim Weir's analysis alleges, but does not demonstrate, class members paid a premium for the benefit of the allegedly flushable toilet products.

The problem, for the appellate panel, was that the record simply didn't provide enough information to make a decision. The cases were remanded back to Weinstein for “further development of the record.”

In particular, the panel noted, it sought further factual development over its “specific concern with the plaintiffs' proof that they can establish the injury and causation elements of their claims at trial with common evidence.” After further review, the district court was asked to choose “whether to decertify the damages classes or maintain the current certification orders.”

Kurtz was represented on appeal by Robbins Geller Rudman & Dowd partner Douglas Wilens. Belfiore was presented by Wolf Popper chairman emeritus Lester Levy. Neither responded to requests for comment.

Costco's appellate legal team was led by Morrison & Foerster partner Brian Matsui. P&G was represented by Covington & Burling partner Mark Mosier and his team. Neither of the appellants' counsel responded to a request for comment.

Sidley Austin partner Eamon Joyce headed up Kimberly-Clark's appellate team. He declined to comment.

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