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This case involves pre-moistened wipes bearing the word “flushable” and the brand name “Kandoo®” on the package label. It includes wipes that bear two or more brand names on the package label, as long as at least one of the brand names is “Kandoo®.” These wipes will be referred to in this website as the “Products.” The case is limited to sales of the Products in California between March 21, 2010 and December 9, 2016.
For purposes of settlement only, the Court has certified a settlement class. The settlement class is defined as “All Persons and Businesses who, on or after March 21, 2010 through December 9, 2016, purchased, in California, other than for purpose of resale, any pre-moistened wipes bearing the word “flushable” and the brand name “Kandoo®” on the package label.” (This definition includes flushable wipes that bear two or more brand names on the package label, as long as at least one of the brand names is “Kandoo®.”)
A lawsuit was brought against Nehemiah and P&G (collectively, “Defendants”). The lawsuit claims that Defendants improperly marketed the Products as “flushable” and “sewer and septic safe.” The lawsuit alleges that the Products were not appropriate for disposal in the sewer system. It also claims that the Products were not likely to dissolve and disperse in a sufficiently limited amount of time, which made them likely to clog toilets, drain lines, sewer pipes, and sewage treatment facilities. It contends that both Nehemiah and P&G had involvement in, and responsibility for, the misrepresentations. Plaintiff has brought various claims under California law challenging the alleged misrepresentations on behalf of him and consumers who bought the Products in California.
Defendants deny that there is any factual or legal basis for Plaintiff’s allegations. Nehemiah contends, and P&G concurs, that the labeling of the Products was truthful and non-misleading. P&G also contends that it first licensed the Products to Nehemiah in 2009 and then sold the Kandoo brand to Nehemiah in 2013, and accordingly has lacked any type of relevant control or authority over the Products, including control over the marketing or labeling of the Products. Defendants therefore deny any liability. They also deny that Plaintiff or any other members of the settlement class have suffered injury or are entitled to monetary or other relief. Defendants also deny that this case can be certified as a class action, except for purposes of settlement.
Plaintiff’s complaint contends that by marketing the Products as “flushable” and as “sewer and septic safe,” Defendants caused people to purchase the wipes who would not otherwise have done so. It also contends that the Products were sold at a higher price than they would have been sold without the misstatements. The complaint seeks to recover, on behalf of a class of all purchasers other than re-sellers, the dollar volume of extra sales, and the dollar amount of the “premium” price, that is attributable to the alleged misrepresentations. Plaintiff asserts that approximately 2.9 million packages of Products have been sold in California between April 2010 and October 2016, at an average retail price of $3.83. Plaintiff believes that, if he was successful at trial on all of his claims, he could win damages or restitution of up to the full amount of the retail purchase price.
Defendants deny that there is any legal entitlement to a refund or any other monetary relief.
This case has been pending since March 2014. Since then, Plaintiff’s counsel has investigated the manufacture, marketing, labeling, and performance of the Products. Defendants have produced more than 240,000 pages of documents for review by Plaintiff’s counsel. In addition, Plaintiff has taken depositions of eight of Defendants’ employees. The parties also have exchanged written responses, under oath, to questions posed by the other party. Plaintiff has also retained technical experts to evaluate the Products.
Based on this investigation, Plaintiff’s Counsel has determined that there are significant risks of continuing the litigation. In particular, there may be substantial difficulties establishing: (1) that Defendants’ marketing and advertising of the Products was likely to deceive or confuse reasonable persons about the performance of the Products; (2) that the alleged effects on sewer treatment facilities of flushing the Products were material to reasonable consumers; (3) that P&G exercised control or authority over the Products sufficient to form the basis of any liability; (4) that common questions predominate over individual issues such that a class may be certified on some or all claims; (5) that the class should include persons who did not personally experience plumbing issues (and if it should not include such persons, how the members of the class would be ascertained), and/or (6) that damages or restitution should be awarded or, if so, that any such award should be more than nominal. In particular, it may be difficult to establish that the volume of sales, or the pricing of individual Products, would have differed had the marketing and labeling been different.
From April through August 2016, Plaintiff and Defendants participated in several settlement conferences mediated by a judge of the San Francisco Superior Court. This settlement was reached as a result of those efforts.
After taking into account the risks and costs of further litigation, Plaintiff and his counsel believe that the terms and conditions of the settlement are fair, reasonable, adequate, and equitable, and that the settlement is in the best interest of the Settlement Class Members.
As a result of the lawsuit, Nehemiah has made changes to the material used in manufacturing the Products and the labeling of the Product packaging and has agreed to continue those changes. In particular, Nehemiah in 2015 introduced a new version of the Product and has agreed not to sell the prior version. It also has begun to remove the words “sewer and septic safe” from the labels of the Products, and to add a warning: “Flush only 1-2 wipes at a time. Use only in well-maintained toilets, drain lines, sewer lines and septic systems.” These changes will be incorporated in a court injunction.
In addition, as part of the settlement, Nehemiah will provide refunds to settlement class members and payments to class counsel and the named Plaintiff, as described in the next sections.
If you timely file a valid claim, you will receive a $1 refund for each package of the Product that your household or business purchased in California between March 21, 2010 December 9, 2016, regardless of the price you paid for each package or how many wipes it contained, subject to the following limitations:
(a) Proof of Purchase is not required to obtain the refund for up to 10 Product packages purchased (i.e., refund up to $10).
(b) Proof of Purchase is required to obtain the refund of more than $10 (i.e., for more than 10 Product packages purchased).
(c) A maximum of $50 will be paid to any Household or Business.
“Proof of purchase” means an itemized retail sales receipt or retail store club or loyalty card record showing, at a minimum, the purchase of a Product, the purchase price, and the date and place of the purchase.
If you bought the Products online, the purchase will be considered “in California” if the Products were delivered to an address in California.
If your claim is valid, it will be paid only after the Court approves the settlement.
To make a claim, you must fill out the claim form available on this website, by clicking here. You can submit the claim form online, or you can print it and mail it to the claim administrator at: Kandoo Wipes Settlement, c/o Heffler Claims Group, P.O. Box 58341, Philadelphia, PA 19102-8341. Claim Forms must be submitted online, or if mailed must be received by the Claim Administrator (not just postmarked), by March 1, 2017.
To date, Plaintiff’s lawyers have not been compensated for any of their work on this case. Plaintiff’s lawyers will present evidence to the Court that they have spent more than 1,200 hours litigating this case. In addition, Plaintiff’s lawyers will present evidence that they have paid out-of-pocket expenses (including deposition transcript fees, court reporter fees, filing fees, service costs, copying costs, and travel expenses) of approximately $45,000. None of these expenses has yet been reimbursed. As part of the settlement, Plaintiff’s lawyers may apply to the Court to award them up to $650,000 from Nehemiah to pay their attorneys’ fees and expenses.
In addition, the named Plaintiff in this case may apply to the Court for a class representative payment from Nehemiah of up to $5,000. This payment is designed to compensate the named Plaintiff for the time, effort and risks he undertook in pursuing this litigation and for executing a broader release of claims than other settlement class members.
Plaintiff and his lawyers will file a motion with the Court on or before Feburary 15, 2017, in support of their applications for attorneys’ fees, costs and expenses and a payment to the Plaintiff. A copy of that motion will be available on this website.
The Court will determine the amount of fees, costs, expenses, and payment to the Plaintiff to award.
The settlement releases all claims by settlement class members against Nehemiah, P&G, and their affiliates that were or could have been asserted by Plaintiff in this litigation, and that relate to the flushability or the safety for sewer and septic of the Products, or to statements concerning the Products’ flushability or safety for sewer and septic. This release includes claims that may not yet be known or suspected. However, there is no release of claims for personal injury or property damage (for example, costs of plumbing repairs) arising out of the use of the Products. For further information, please see Section 8.3 of the Settlement Agreement.
You can exclude yourself from the settlement class if you wish to retain the right to sue Nehemiah or P&G separately for the claims released by the settlement. If you exclude yourself, you cannot file a claim or object to the settlement. You need not exclude yourself if you merely want to retain a right to sue for personal injury or property damage arising out of your use of the Products.
To exclude yourself, you must complete and submit the online form at this website by clicking here or mail a request to exclude yourself from the settlement to the claim administrator at Kandoo Wipes Settlement, c/o Heffler Claims Group, P.O. Box 58341, Philadelphia, PA 19102-8341. If mailed, the exclusion request must contain your name, address, the words “I wish to be excluded from the Kandoo Class Action Settlement,” and your signature.
If submitted online, exclusion requests must be made by March 1, 2017. If mailed, exclusion requests must be received by the Claim Administrator (not postmarked) by March 1, 2017.
You can ask the Court to deny approval of the settlement by timely submitting an objection to the Claim Administrator. You can’t ask the Court to order a larger settlement; the Court can only approve or deny the settlement. If the Court denies approval to the entire settlement, no settlement payments will be sent out, and the lawsuit will continue.
You can also ask the Court to disapprove the requested payments to Plaintiff and to his attorneys. If those payments are disapproved, no additional money will be paid to the settlement class. Instead, the funds earmarked for Plaintiff and his attorneys will be retained by Nehemiah.
You may also appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. If you want to raise an objection to the settlement at the Final Approval hearing, you must first submit that objection in writing, by the objection deadline set forth above.
Any objection must include your name, address, and telephone number; must provide documents or testimony sufficient to establish your membership in the Settlement Class; and must provide a detailed statement of any objection asserted, including the grounds for the objection and reasons, if any, for requesting the opportunity to appear and be heard at the final approval hearing. Failure to include this information may be grounds for overruling and rejecting your objection.
All written objections and supporting papers must clearly identify the case name and number, Machlan v. Procter & Gamble Co., Case No. GCG 14-538168. They must be mailed or otherwise delivered to the Claim Administrator at 844-702-2784. Documents must be received by the Claim Administrator, not merely postmarked, on or before March 1, 2017.
If you object to the settlement but still want to submit a claim in the event the Court approves the settlement, you must still submit a timely claim according to the instructions described above.
The Court will hold a hearing on May 23, 2017 at 1:30pm, to consider whether to approve the settlement. The hearing will be held in the San Francisco Superior Court, 400 McAllister Street, San Francisco, CA 94102, Department 305. The hearing is open to the public. This hearing date may change without further notice to you. Consult this website or the Court docket in this case at http://www.sfsuperiorcourt.org/online-services (perform a case number query using case number 538168), for updated information on the hearing date and time.
You can inspect many of the court documents connected with this case on this website. Other papers filed in this lawsuit are available by accessing the Court docket in this case at http://www.sfsuperiorcourt.org/online-services (perform a case number query using case number 538168).
You can also obtain additional information by contacting Plaintiff’s Counsel at Kandoo Settlement, Gutride Safier LLP, 100 Pine Street, Suite 1250, San Francisco, CA 94111.