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Belfiore v. The Procter & Gamble Company

United States District Court, E.D. New York

March 25, 2015

ANTHONY BELFIORE, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
THE PROCTER & GAMBLE COMPANY, Defendant

Decided: March 20, 2015.

For Anthony Belfiore, on behalf of himself and all others similarly situated: Lester L. Levy, Michele Fried Raphael, Roy Herrera, Matthew Insley-Pruitt, Robert Scott Plosky, Wolf, Popper, LLP, New York, NY.

For The Procter & Gamble Company: Emily Henn, Covington & Burling LLP, Redwood Shores, CA; Andrew D. Schau, Claire Catalano Dean, Covington & Burling LLP, New York, NY; Cortlin Lannin, Sonya Winner, Covington & Burling LLP, San Francisco, CA.

MEMORANDUM & ORDER

Jack B. Weinstein, Senior United States District Judge.

Table of Contents

I. Introduction

II. Procedural History

III. Facts

IV. Motion to Dismiss Claim for Injunctive Relief Pursuant to

Fed. R. Civ. P. 12(b)(1)

V. Motion to Dismiss Pursuant to Fed. R. of Civ. P. 12(b)(6)

A. Standard of Review

B. Application of Law to Facts

VI. Motion to Strike Plaintiff's Class-Action Allegations Pursuant

to Fed.R.Civ.P. 12(f)

A. Standard of Review

B. Application of Facts to Law

VII. Conclusion

I. Introduction

Anthony Belfiore (" plaintiff" ), a resident of Great Neck, New York, brings an individual and putative class action against The Procter & Gamble Company (" defendant" ), an Ohio corporation with principal place of business in Ohio, for alleged damages stemming from the use of " Charmin Freshmates" flushable wipes (" Freshmates" ).

Claiming that defendant violated New York General Business Law section 349 by holding out the product as " flushable" and " septic safe," plaintiff requests monetary damages and a permanent injunction to prevent and enjoin defendant from representing Freshmates as " flushable." He seeks to represent, as a class, " [a]ll persons and entities residing in the State of New York who, at any time within the applicable statute of limitations . . . purchased Charmin Freshmates flushable wipes." Compl. ¶ 54.

This case raises an important question, apparently open in this circuit: can a consumer who is dissatisfied with a defective product seek an injunction under New York State law even though it is improbable that he will ever purchase that product again? This order holds he can seek an injunction.

II. Procedural History

On May 23, 2014, the case was filed in the Supreme Court of the State of New York, County of Nassau. See Notice of Removal, ECF No. 1.

On July 1, 2014, the case was removed to the Eastern District of New York, based on jurisdiction pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). See id.

Defendant moved, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the claim for injunctive relief for lack of standing; moved to dismiss under Rule 12(b)(6) for failure to state a claim; and moved to strike plaintiff's class action-related allegations under Rule 12(f).

Oral argument was heard on November 14, 2014. The motions were orally denied. H'rg Tr. Nov. 14, 2014. See also Order, ECF No.32, Nov. 17, 2014. This ...


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