Jennifer Davidson v. Kimberly-Clark Corp.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JENNIFER DAVIDSON, an individual No. 15-16173
on behalf of herself, the general
public and those similarly situated, D.C. No.
Plaintiff-Appellant, 4:14-cv-01783-
PJH
v.

KIMBERLY-CLARK CORPORATION; ORDER AND
KIMBERLY-CLARK WORLDWIDE, AMENDED
INC.; KIMBERLY-CLARK GLOBAL OPINION
SALES, LLC,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding

Argued and Submitted May 18, 2017
San Francisco, California

Filed October 20, 2017
Amended May 9, 2018
2 DAVIDSON V. KIMBERLY-CLARK CORP.

Before: Marsha S. Berzon and Mary H. Murguia, Circuit
Judges, and Jon P. McCalla, * District Judge.

Order;
Opinion by Judge Murguia;
Concurrence by Judge Berzon

SUMMARY **

False Advertising / Standing

The panel issued an order amending the opinion and
concurrence filed on October 20, 2017, and denying on
behalf of the court a petition for rehearing en banc. In the
amended opinion, the panel reversed the district court’s
dismissal of a complaint in an action, brought in state court
against Kimberly-Clark Corporation and removed to federal
court pursuant to the Class Action Fairness Act, alleging that
Kimberly-Clark falsely advertised that four types of
cleansing wipes they manufactured and sold were flushable.

Davidson sought to recover the premium she paid for the
allegedly flushable wipes, as well as an order requiring
Kimberly-Clark to stop marketing their wipes as flushable.
The panel held that the first amended complaint adequately
alleged that Kimberly-Clark’s use of the word “flushable”
was false because the wipes plaintiff purchased did not

*
The Honorable Jon P. McCalla, United States District Judge for
the Western District of Tennessee, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 DAVIDSON V. KIMBERLY-CLARK CORP. 3

disperse as a truly flushable product would have. The panel
further held that plaintiff was not required to allege damage
to her plumbing or pipes. Under California law, the
economic injury of paying a premium for a falsely advertised
product was sufficient harm to maintain a cause of action.
Because plaintiff only needed to allege an economic injury
to state a claim for relief, and because plaintiff alleged that
she paid a premium price for the wipes, plaintiff properly
alleged that she was injured by Kimberly-Clark’s allegedly
false advertising.

The panel held that the district court erred by dismissing
the original complaint on the ground that plaintiff failed to
allege facts showing how she came to believe that the wipes
were not flushable. The panel stated that it was aware of no
authority that specifically required a plaintiff bringing a
consumer fraud claim to allege how she “came to believe”
that the product was misrepresented when, as in this case, all
the Fed. R. Civ. P. 9(b) considerations had been met.

Finally, the panel held that a previously deceived
consumer may have standing to seek an injunction against
false advertising or labeling, even though the consumer now
knows or suspects that the advertising was false at the time
of the original purchase, because the consumer may suffer
an actual or imminent threat of future harm. The panel held
that because plaintiff’s allegations sufficiently identified a
certainly impending risk of her being subjected to Kimberly-
Clark’s allegedly false advertising, she had standing to
pursue injunctive relief.

Judge Berzon concurred fully in the majority opinion but
wrote separately to note that duplicating the standing
analysis – as the majority did for prospective relief by
performing a separate standing analysis for each “form of
4 DAVIDSON V. KIMBERLY-CLARK CORP.

relief” – did not give effect to the “case or controversy”
requirement of Article III.

COUNSEL

Matthew T. McCrary (argued), Kristen G. Simplicio, Seth
A. Safier, and Adam J. Gutride, Gutride Safier LLP, San
Francisco, California, for Plaintiff-Appellant.

Constantine L. Trela, Jr. (argued), Sidley Austin LLP,
Chicago, Illinois; Michelle Goodman and Amy Lally, Sidley
Austin LLP, Los Angeles, California; Naomi Igra, Sidley
Austin LLP, San Francisco, California; William R. Levi,
Eamon P. Joyce, and Kwaku A. Akowuah, Sidley Austin
LLP, Washington, D.C.; for Defendants-Appellees.

Anton Metlitsky, O’Melveny & Myers LLP, New York,
New York; Deanna M. Rice, O’Melveny & Myers LLP,
Washington, D.C.; Janet Galeria and Warren Postman, U.S.
Chamber Litigation Center Inc., Washington, D.C.; Leland
P. Frost, Quentin Riegel, and Linda E. Kelly, Manufacturers’
Center for Legal Action, Washington, D.C.; Karin F.R.
Moore, Grocery Manufacturers Association, Washington,
D.C.; for Amici Curiae Chamber of Commerce of the United
States of America, National Association of Manufacturers,
and Grocery Manufacturers Association.
 DAVIDSON V. KIMBERLY-CLARK CORP. 5

ORDER

The opinion and concurrence filed October 20, 2017, and
appearing at 873 F.3d 1103, is hereby amended. An
amended opinion and concurrence is filed herewith. Judges
Berzon and Murguia have voted to deny the petition for
rehearing en banc, and Judge McCalla so recommends.

The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED (Doc. 57).

No further petitions for rehearing or rehearing en banc
will be entertained in this case.

OPINION

MURGUIA, Circuit Judge:

Under California’s consumer protection laws, a
consumer who pays extra for a falsely labeled or advertised
product may recover the premium she paid for that product.
California law also permits that consumer to seek a court
order requiring the manufacturer of the product to halt its
false advertising. California has decided that its consumers
have a right, while shopping in a store selling consumer
goods, to rely upon the statements made on a product’s
packaging. Today, we hold that misled consumers may
properly allege a threat of imminent or actual harm sufficient
to confer standing to seek injunctive relief. A consumer’s
inability to rely on a representation made on a package, even
6 DAVIDSON V. KIMBERLY-CLARK CORP.

if the consumer knows or believes the same representation
was false in the past, is an ongoing injury that may justify an
order barring the false advertising.

In this case, Jennifer Davidson paid extra for wipes
labeled as “flushable” because she believed that flushable
wipes would be better for the environment, and more
sanitary, than non-flushable wipes. Davidson alleges that
the wipes she purchased, which were manufactured and
marketed by Kimberly-Clark Corporation, were not, in fact,
flushable. Davidson seeks to recover the premium she paid
for the allegedly flushable wipes, as well as an order
requiring Kimberly-Clark to stop marketing their wipes as
“flushable.” Davidson has plausibly alleged that Kimberly-
Clark engaged in false advertising. Davidson has also
plausibly alleged that she will suffer further harm in the
absence of an injunction. We therefore reverse the district
court and remand this case for further proceedings.

I. BACKGROUND

A. Factual Allegations 1

Defendants-appellees Kimberly-Clark Corporation,
Kimberly-Clark Worldwide, Inc., and Kimberly-Clark
Global Sales, LLC (collectively “Kimberly-Clark”)
manufacture and market four types of pre-moistened wipes:
Cottonelle Wipes, Scott Wipes, Huggies Wipes, and Kotex
Wipes. Each of the four products is marketed and sold as
“flushable.” Kimberly-Clark charges a premium for these

1
The following allegations are taken from the operative first
amended complaint (“FAC”). At this stage of the proceedings, we must
“accept as true all well-pleaded allegations of material fact, and construe
them in the light most favorable to the non-moving party.” Daniels-Hall
v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
 DAVIDSON V. KIMBERLY-CLARK CORP. 7

flushable wipes, as compared to toilet paper or wipes that are
not marketed as “flushable.” Each of the four flushable
wipes products contains a statement on the package (or on
the website associated with the product) stating, in various
ways, that the product “breaks up after flushing.”

In 2013, Davidson was shopping at a Safeway in San
Francisco when she came across Scott Wipes. Davidson saw
the word “flushable” on the Scott Wipes package and
noticed that the Scott Wipes were more expensive than
wipes that did not have the word “flushable” on the package.
According to Davidson, flushable ordinarily means “suitable
for disposal down a toilet,” not simply “capable of passing
from a toilet to the pipes after one flushes.” Davidson
maintains that this ordinary meaning of flushable is
understood by reasonable consumers, who expect a flushable
product to be suitable for disposal down a toilet. Consistent
with that understanding, the Merriam-Webster dictionary
defines flushable as “suitable for disposal by flushing down
a toilet,” and a nonprofit organization of water quality
professionals states that a flushable item must completely
disperse within five minutes of flushing. In other words,
“truly flushable products, such as toilet paper, . . . disperse
within seconds or minutes.”

Davidson was concerned about products that were not
suitable for flushing because she remembered hearing stories
about people flushing items that should not be flushed,
which then caused problems with home plumbing systems
and municipal wastewater treatment facilities. Davidson did
not want to cause such damage to her plumbing or to San
Francisco’s wastewater treatment facilities. Davidson
reviewed the front and back of the Scott Wipes package and
did not see anything indicating that the wipes were not
suitable for flushing. Believing it would be easier and more
8 DAVIDSON V. KIMBERLY-CLARK CORP.

sanitary to flush wipes than to throw them in the garbage,
Davidson purchased the Scott Wipes.

Once Davidson began using the Scott Wipes, she noticed
that each wipe felt sturdy and thick, unlike toilet paper.
Davidson also noticed that the wipes did not disperse in the
toilet bowl like toilet paper. After using the wipes several
times, Davidson became concerned that the wipes were not
truly flushable, so she stopped using the Scott Wipes
altogether. Davidson investigated the matter further and
learned that flushable wipes caused widespread damage to
home plumbing and municipal sewer systems. This research
“further[ed] her concerns that the [Scott] Wipes were not in
fact appropriate for disposal by flushing down a toilet.”

Davidson has never again purchased flushable wipes.
Yet Davidson “continues to desire to purchase wipes that are
suitable for disposal in a household toilet,” and “would
purchase truly flushable wipes manufactured by [Kimberly-
Clark] if it were possible to determine prior to purchase if
the wipes were suitable to be flushed.” Davidson regularly
visits stores that sell Kimberly-Clark’s flushable wipes but
is unable to determine, based on the packaging, whether the
wipes are truly flushable. Davidson would not have
purchased the Scott Wipes, or would have paid less for the
Scott Wipes, had Kimberly-Clark not “misrepresented (by
omission and commission) the true nature of their Flushable
Wipes.”

In addition to her experience with the Scott Wipes she
purchased, Davidson alleges more broadly that all four
flushable wipes products Kimberly-Clark manufactured and
marketed “are not in fact flushable, because the wipes are
not suitable for disposal by flushing down a household
toilet.” Kimberly-Clark manufactures these products with
strong fibers that do not efficiently disperse when placed in
 DAVIDSON V. KIMBERLY-CLARK CORP. 9

a toilet. Kimberly-Clark’s own testing demonstrates that the
flushable wipes products break down in water at a
significantly lower rate than toilet paper. Numerous news
stories describe how flushable wipes have clogged
municipal sewage systems, thereby requiring costly repairs.
Consumers who have purchased some of the Kimberly-
Clark flushable wipes products have lodged complaints on
Kimberly-Clark’s website that the flushable wipes damaged
their septic tanks or plumbing.

Based on these allegations, Davidson brought four
California state law causes of action against Kimberly-Clark,
including for common law fraud and for violations of the
Consumer Legal Remedies Act (“CLRA”), California Civil
Code § 1750, et seq., False Advertising Law (“FAL”),
California Business & Professions Code § 17500, et seq.,
and Unfair Competition Law (“UCL”), California Business
& Professions Code § 17200, et seq. Davidson sought
restitution, injunctive relief, and actual, punitive, and
statutory damages on her CLRA claim; restitution and
injunctive relief on her FAL and UCL claims; and
compensatory and punitive damages on her common law
fraud claim. Davidson sought to certify a class of all persons
who purchased Cottonelle Wipes, Scott Wipes, Huggies
Wipes, and Kotex Wipes in California between March 13,
2010 and the filing of the FAC on September 5, 2014.

B. Procedural History

Davidson initially filed this case in state court, but
Kimberly-Clark removed it to federal court pursuant to the
Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). The
district court denied in part and granted in part Kimberly-
Clark’s motion to dismiss the original complaint. In
response, Davidson filed the operative FAC. Kimberly-
Clark moved to dismiss the FAC, and the district court
10 DAVIDSON V. KIMBERLY-CLARK CORP.

granted the motion, this time with prejudice. First, the
district court granted Kimberly-Clark’s Federal Rule of Civil
Procedure (“Rule”) 12(b)(1) motion to dismiss Davidson’s
injunctive relief claims, finding that Davidson lacked
standing to seek injunctive relief because she was unlikely
to purchase Kimberly-Clark’s flushable wipes in the future.
Second, the district court granted Kimberly-Clark’s motion
to dismiss the FAC pursuant to Rules 9(b) and 12(b)(6),
concluding that Davidson had failed to adequately allege
why the representation “flushable” on the package was false.
Finally, the district court concluded that Davidson “failed to
allege damage under the UCL/FAL/CLRA or common law
fraud” causes of action, because Davidson had not alleged
that she suffered any harm due to her use of the Scott Wipes.

Davidson filed a motion for reconsideration under Rules
59(e) and 60(b), which the district court denied. First, the
district court rejected Davidson’s argument that it should
have remanded the injunctive relief claims to state court.
Second, the district court rejected Davidson’s argument that
it should have dismissed the FAC without prejudice so that
Davidson could file a second amended complaint curing the
alleged defects in the FAC. Third, the district court rejected
Davidson’s argument that the district court erred by ruling
that Davidson had not adequately pled damages. Davidson
timely appealed.

Davidson appeals six of the district court’s rulings. First,
Davidson argues that the district court erred by dismissing
the FAC pursuant to Rule 9(b) for failure to adequately
allege why the representation “flushable” was false. Second,
Davidson argues that the district court erred by dismissing
the FAC pursuant to Rule 12(b)(6) on the basis that
Davidson had not suffered any damages. Third, Davidson
argues that the district court erred by dismissing the original
 DAVIDSON V. KIMBERLY-CLARK CORP. 11

complaint pursuant to Rule 12(b)(6) for failing to plead how
she came to believe the wipes were not flushable. Fourth,
Davidson argues that the district court abused its discretion
in striking, pursuant to Rule 12(f), references to newspaper
reports in the original complaint. Fifth, Davidson argues that
the district court abused its discretion by denying Davidson
leave to amend her FAC. Finally, Davidson argues that the
district court erred by dismissing her injunctive relief claims
pursuant to Rule 12(b)(1) for lack of standing.

II. STANDARD OF REVIEW

We review de novo dismissals under Rule 9(b) for failure
to plead fraud with particularity. Kearns v. Ford Motor Co.,
567 F.3d 1120, 1124 (9th Cir. 2009). We review de novo
dismissals under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted. Crowley v. Nevada ex. rel.
Nev. Sec’y of State, 678 F.3d 730, 736 (9th Cir. 2012). A
district court’s decision granting a motion to strike
allegations in a complaint pursuant to Rule 12(f) is reviewed
for abuse of discretion. Nurse v. United States, 226 F.3d
996, 1000 (9th Cir. 2000). Similarly, a district court’s
decision dismissing a complaint with prejudice, which
thereby denies the plaintiff an opportunity to amend her
complaint, is reviewed for abuse of discretion. Zucco
Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th
Cir. 2009). Finally, we review de novo dismissals under
Rule 12(b)(1) for lack of subject-matter jurisdiction. Novak
v. United States, 795 F.3d 1012, 1017 (9th Cir. 2015).

III. DISCUSSION

A. Theory of Fraud

The district court dismissed the FAC pursuant to Rule
9(b) because it concluded that Davidson failed to adequately
12 DAVIDSON V. KIMBERLY-CLARK CORP.

allege “why” the representation that the wipes were
flushable was false. Davidson argues that the district court
overlooked the FAC’s “numerous, detailed factual
allegations establishing that Defendants’ wipes fail to
disperse and therefore cause clogs and problems with sewer
and septic systems.” Kimberly-Clark argues that Davidson
must allege that she experienced problems with her home
plumbing or the relevant water treatment plant—allegations
that are indisputably lacking in the FAC.

Because Davidson’s common law fraud, CLRA, FAL,
and UCL causes of action are all grounded in fraud, the FAC
must satisfy the traditional plausibility standard of Rules 8(a)
and 12(b)(6), as well as the heightened pleading
requirements of Rule 9(b). Kearns, 567 F.3d at 1125 (“[W]e
have specifically ruled that Rule 9(b)’s heightened pleading
standards apply to claims for violations of the CLRA and
UCL.”); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
1103–04 (9th Cir. 2003) (explaining that even “[i]n cases
where fraud is not a necessary element of a claim, a plaintiff
may choose nonetheless to allege in the complaint that the
defendant has engaged in fraudulent conduct,” and in such
cases, Rule 9(b)’s heightened pleading requirement must be
met). “In alleging fraud . . . a party must state with
particularity the circumstances constituting fraud.” Fed. R.
Civ. P. 9(b). To properly plead fraud with particularity
under Rule 9(b), “a pleading must identify the who, what,
when, where, and how of the misconduct charged, as well as
what is false or misleading about the purportedly fraudulent
statement, and why it is false.” Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(internal quotation marks and alterations omitted); Vess,
317 F.3d at 1106 (“The plaintiff must set forth what is false
or misleading about a statement, and why it is false.”
 DAVIDSON V. KIMBERLY-CLARK CORP. 13

(quoting Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th
Cir. 1994))).

Assuming the truth of the allegations and construing
them, as we must, in the light most favorable to Davidson,
Daniels-Hall, 629 F.3d at 998, we hold that the FAC
adequately alleged why the term “flushable” is false. 2
Davidson’s theory of fraud is simple: “Unlike truly flushable
products, such as toilet paper, which disperse and
disintegrate within seconds or minutes, [Kimberly-Clark’s
flushable wipes] take hours to break down” or disperse,
creating a risk that the wipes will damage plumbing systems,
septic tanks, and municipal wastewater treatment facilities.
Davidson alleged that flushable means “suitable for being
flushed,” which requires an item to be capable of dispersing
within a short amount of time. This definition of flushable
is supported by multiple allegations in the FAC, including
dictionary definitions and Kimberly-Clark’s own statement
on its website that its flushable wipes “are flushable due to
patented technology that allows them to lose strength and
break up when moving through the system after flushing.”
In contrast to truly flushable or dispersible products,

2
Davidson argues that to survive Rule 12(b)(6), she need only plead
enough facts to plausibly demonstrate that a reasonable consumer may
be misled. Her observation is correct. See Williams v. Gerber Products
Co., 552 F.3d 934, 938 (9th Cir. 2008) (concluding that UCL, CLRA,
and FAL claims are governed by the “reasonable consumer standard,”
under which a plaintiff need only “show that members of the public are
likely to be deceived” (internal quotation marks omitted)). The district
court, however, did not dismiss the FAC only under Rule 12(b)(6), but
also under Rule 9(b). Under Rule 9(b), Davidson was required not
simply to adequately plead that reasonable consumers are likely to be
deceived by Kimberly-Clark’s use of the designation “flushable,” but
also why the designation “flushable” is false. See Kearns, 567 F.3d at
1125.
14 DAVIDSON V. KIMBERLY-CLARK CORP.

Davidson alleged, Kimberly-Clark’s flushable wipes “take
hours to begin to break down.”

Importantly, Davidson alleged that the actual wipes she
purchased failed to “disperse and disintegrate within seconds
or minutes.” For example, Davidson alleged that after using
the wipes, she “noticed that each individual wipe felt very
sturdy and thick, unlike toilet paper” and that “[s]he also
noticed that the wipes did not break up in the toilet bowl like
toilet paper but rather remained in one piece.” Her personal
experience is supported by additional allegations, including
Kimberly-Clark’s own testing of the wipes.

Kimberly-Clark argues that Davidson was required to
allege damage to her pipes or her sewage system because
“suitable for flushing” means that the wipes “would not
cause problems in her plumbing or at the water treatment
plant.” But Kimberly-Clark justifies this theory by taking a
single allegation in the FAC out of context. The FAC
admittedly contains many allegations about how Kimberly-
Clark’s flushable wipes and other wipes marketed as
“flushable” can cause damage to pipes and sewage systems.
But these allegations are extraneous and do not detract from
Davidson’s basic theory of fraud: that “truly flushable
products . . . disperse and disintegrate within seconds or
minutes,” and Kimberly-Clark’s flushable wipes do not
“disperse and disintegrate within seconds or minutes.” Since
“[d]ismissal is proper only where there is no cognizable legal
theory or an absence of sufficient facts alleged to support a
cognizable legal theory,” Navarro v. Block, 250 F.3d 729,
732 (9th Cir. 2001), and since Davidson alleged a cognizable
legal theory, dismissal was not appropriate in this case. See
Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir. 1987)
(“[A] pleading satisfies the particularity requirement [of
Rule 9(b)] if it identifies the circumstances constituting fraud
 DAVIDSON V. KIMBERLY-CLARK CORP. 15

so that the defendant can prepare an adequate answer from
the allegations.” (internal quotation marks omitted)).

For these reasons, we hold that the FAC adequately
alleged that Kimberly-Clark’s use of the word “flushable”
was false because the Scott Wipes Davidson purchased did
not disperse as a truly flushable product would have.

B. Harm

The district court also dismissed Davidson’s FAC in part
because Davidson had not alleged that she suffered any
damages. When Davidson questioned this conclusion in her
motion for reconsideration, the district court clarified that
Davidson “had not pled facts showing that her use of the
wipes damaged her plumping, pipes, or septic system.”

However, Davidson was not required to allege damage
to her plumbing or pipes. Under California law, the
economic injury of paying a premium for a falsely advertised
product is sufficient harm to maintain a cause of action. See,
e.g., Cal. Bus. & Prof. Code § 17203 (requiring that an
individual plead that she lost “money or property” because
of the alleged deceptive conduct); Cal. Civ. Code § 1780(a)
(stating that a plaintiff asserting a cause of action under the
CLRA need only plead that she suffered “any damage”);
Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1104 (9th Cir. 2013)
(“The lost money or property requirement therefore requires
a plaintiff to demonstrate some form of economic injury as
a result of his transactions with the defendant.” (internal
quotation marks omitted)). Thus, a consumer’s allegation
that “she would not have bought the product but for the
misrepresentation . . . is sufficient to allege causation . . .
[and] to allege economic injury.” Kwikset Corp. v. Superior
Court, 246 P.3d 877, 890 (Cal. 2011).
16 DAVIDSON V. KIMBERLY-CLARK CORP.

To properly plead an economic injury, a consumer must
allege that she was exposed to false information about the
product purchased, which caused the product to be sold at a
higher price, and that she “would not have purchased the
goods in question absent this misrepresentation.” Hinojos,
718 F.3d at 1105. Davidson did that here. Davidson alleged
that “[h]ad [Kimberly-Clark] not misrepresented (by
omission and commission) the true nature of their Flushable
Wipes, [she] would not have purchased [Kimberly-Clark’s]
product or, at a very minimum, she would have paid less for
the product,” and that “[Kimberly-Clark] charge[d] a
premium price for flushable wipes.” Because Davidson only
needed to allege an economic injury to state a claim for
relief, and because Davidson alleges that she paid a premium
price for the Scott Wipes, Davidson has properly alleged that
she was injured by Kimberly-Clark’s allegedly false
advertising.

C. Dismissal of the Original Complaint

The district court stated in its order dismissing the
original complaint that “plaintiff has not alleged facts
showing how she came to believe that the [Scott Wipes]
were not flushable.” Davidson argues that this requirement
“does not exist in law.” According to Kimberly-Clark, the
statement simply reflected the district court’s observation
that Davidson had not alleged facts about her own
experience.

Davidson was required to “identify the who, what, when,
where, and how of the misconduct charged, as well as what
is false or misleading about the purportedly fraudulent
statement, and why it is false.” Cafasso, 637 F.3d at 1055
(internal quotation marks and alterations omitted). To the
extent the district court dismissed the original complaint
because Davidson failed to allege facts “showing how she
 DAVIDSON V. KIMBERLY-CLARK CORP. 17

came to believe that the [Scott Wipes] were not ‘flushable,’”
the district court erred. We are aware of no authority that
specifically requires a plaintiff bringing a consumer fraud
claim to allege how she “came to believe” that the product
was misrepresented when, as in this case, all the Rule 9(b)
considerations have been met.

D. Article III Standing for Injunctive Relief

Finally, we address the most challenging issue in this
case: whether Davidson has standing to seek injunctive
relief. 3 The district court concluded that Davidson lacked
standing to assert a claim for injunctive relief, because
Davidson “has no intention of purchasing the same
Kimberly-Clark product in the future.” Davidson argues that
she has alleged a cognizable injury that establishes Article
III standing to seek injunctive relief because (1) she will be
unable to rely on the label “flushable” when deciding in the
future whether to purchase Kimberly-Clark’s wipes, and
(2) Kimberly-Clark’s false advertising threatens to invade
her statutory right, created by the UCL, CLRA, and FAL, to
receive truthful information from Kimberly-Clark about its
wipes. We hold that Davidson properly alleged that she
faces a threat of imminent or actual harm by not being able
to rely on Kimberly-Clark’s labels in the future, and that this
harm is sufficient to confer standing to seek injunctive relief.
We therefore do not reach Davidson’s alternative statutory
standing argument.

3
We do not address the district court’s order granting the motion to
strike allegations in the original complaint, as that complaint was
replaced by the FAC, and we conclude that the FAC is sufficient as is to
survive the heightened pleading requirements of Rule 9(b). Similarly,
we do not address the district court’s order denying leave to amend the
FAC, as we conclude that the FAC is adequate as it stands.
18 DAVIDSON V. KIMBERLY-CLARK CORP.

Article III of the U.S. Constitution authorizes the
judiciary to adjudicate only “cases” and “controversies.”
The doctrine of standing is “an essential and unchanging part
of the case-or-controversy requirement of Article III.” Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The three
well-known “irreducible constitutional minim[a] of
standing” are injury-in-fact, causation, and redressability.
Id. at 560–61. A plaintiff bears the burden of demonstrating
that her injury-in-fact is “concrete, particularized, and actual
or imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.” Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 149 (2010).

A plaintiff must demonstrate constitutional standing
separately for each form of relief requested. Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S.
167, 185 (2000). For injunctive relief, which is a prospective
remedy, the threat of injury must be “actual and imminent,
not conjectural or hypothetical.” Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009). In other words, the
“threatened injury must be certainly impending to constitute
injury in fact” and “allegations of possible future injury are
not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013) (internal quotation marks and alteration omitted).
Past wrongs, though insufficient by themselves to grant
standing, are “evidence bearing on whether there is a real
and immediate threat of repeated injury.” City of Los
Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal
quotation marks omitted). Where standing is premised
entirely on the threat of repeated injury, a plaintiff must
show “a sufficient likelihood that he will again be wronged
in a similar way.” Id. at 111. In determining whether an
injury is similar, we “must be careful not to employ too
narrow or technical an approach. Rather, we must examine
the questions realistically: we must reject the temptation to
 DAVIDSON V. KIMBERLY-CLARK CORP. 19

parse too finely, and consider instead the context of the
inquiry.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir.
2001), abrogated on other grounds by Johnson v. California,
543 U.S. 499 (2005).

It is an open question in this circuit to what extent a
previously deceived consumer who brings a false advertising
claim can allege that her inability to rely on the advertising
in the future is an injury sufficient to grant her Article III
standing to seek injunctive relief. With no guidance from
our court, district courts applying California law have split
dramatically on this issue. See Pinon v. Tristar Prods., Inc.,
No. 1:16-cv-00331-DAD-SAB, 2016 WL 4548766, at *4
(E.D. Cal. Sept. 1, 2016) (“The Ninth Circuit has not
addressed the specific question . . . [and] district courts
within this circuit are divided about whether a plaintiff
seeking to bring injunctive relief claims over deceptive
labeling can establish Article III standing once they are
already aware of an alleged misrepresentation.”); see also
Russell v. Kohl’s Dep’t Stores, Inc., No. ED CV 15-1143
RGK (SPx), 2015 WL 12781206, at *5 (C.D. Cal. Oct. 6,
2015) (describing the “split among the district courts in the
Ninth Circuit as to whether a plaintiff lacks Article III
standing to seek injunctive relief under the UCL and FAL
when the plaintiff has knowledge of the defendant’s alleged
misconduct”).

Courts concluding that such a plaintiff lacks standing to
seek injunctive relief generally reason that “plaintiffs who
are already aware of the deceptive nature of an
advertisement are not likely to be misled into buying the
relevant product in the future and, therefore, are not capable
of being harmed again in the same way.” Pinon, 2016 WL
4548766 at *4. For example, in Machlan v. Procter &
Gamble Company, the plaintiff alleged that the defendant
20 DAVIDSON V. KIMBERLY-CLARK CORP.

deceptively marketed its wipes as flushable, even though the
wipes did not disperse like toilet paper and clogged pipes and
sewage systems—facts nearly identical to those here. 77 F.
Supp. 3d 954, 957 (N.D. Cal. 2015). The district court in
Machlan concluded that the plaintiff lacked Article III
standing for injunctive relief because the plaintiff had
alleged that the use of the term “flushable” was deceptive,
so the plaintiff could not be deceived again, even if he
purchased the same wipes in the future. Id. at 960 (“[W]hen
the alleged unfair practice is deception, the previously-
deceived-but-now-enlightened plaintiff simply does not
have standing under Article III to ask a federal court to grant
an injunction.”). 4 Multiple district courts have held
similarly. See Pinon, 2016 WL 4548766 at *4 (collecting
cases).

Other district courts in this circuit have concluded that a
plaintiff has standing to seek an injunction against a
product’s misleading representation, even though the
plaintiff already knows or has reason to believe that the
representation is false. See id. (collecting cases). These
courts generally reason that the plaintiff faces an actual and
imminent threat of future injury because the plaintiff may be
unable to rely on the defendant’s representations in the

4
Interestingly, the Machlan court remanded the portions of the
plaintiff’s claims that sought injunctive relief, and then proceeded in
federal court on some of the claims seeking monetary damages. Id. at
960–62, 964–65. The court reasoned that injunctive relief is an
important remedy in California’s consumer protection statutes and that
allowing a defendant to undermine those statutes through removal to
federal court “is an unnecessary affront to federal and state comity.” Id.
at 961. Here, Davidson similarly argues that the district court erred by
denying her request to remand the injunctive relief “claim” to state court.
Because we conclude that Davidson’s alleged future injury justifies
Article III standing for injunctive relief, we need not reach this issue.
 DAVIDSON V. KIMBERLY-CLARK CORP. 21

future, or because the plaintiff may again purchase the
mislabeled product.

For example, in Ries v. Arizona Beverages USA LLC, the
plaintiffs alleged that the defendants engaged in false
advertising by marketing their “AriZona Iced Tea”
beverages as “All Natural” and “100% Natural” even though
the product contained the non-natural ingredients high
fructose corn syrup and citric acid. 287 F.R.D. 523, 527
(N.D. Cal. 2012). The defendants argued that the plaintiffs
were not threatened by future harm because the plaintiffs
became aware of the contents of the drink and could no
longer be deceived. Id. at 533. The district court rejected
this argument, reasoning that “[s]hould plaintiffs encounter
the denomination ‘All Natural’ on an AriZona beverage at
the grocery store today, they could not rely on that
representation with any confidence.” Id. The district court
in Ries also explained that “the record is devoid of any
grounds to discount plaintiffs’ stated intent to purchase [the
product] in the future.” Id.; see also Weidenhamer v.
Expedia, Inc., No. C14-1239RAJ, 2015 WL 1292978, at *5
(W.D. Wash. Mar. 23, 2015) (explaining that the plaintiff “is
entitled to rely on the statements made in [the] ad, even if he
previously learned that some of those statements were false
or deceptive,” and that the plaintiff had adequately alleged
that he likely would continue to be an Expedia customer);
Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 194–
95 (D.D.C. 2013) (finding that “the named plaintiffs,
knowledgeable about the misrepresentations, are likely to
suffer future harm in the absence of an injunction,” because
they will be unable “to rely on the [misleading] label with
any confidence” and “will have no way of knowing” whether
defendants “boost[ed] the label’s veracity”).
22 DAVIDSON V. KIMBERLY-CLARK CORP.

We resolve this district court split in favor of plaintiffs
seeking injunctive relief. We hold that a previously deceived
consumer may have standing to seek an injunction against
false advertising or labeling, even though the consumer now
knows or suspects that the advertising was false at the time
of the original purchase, because the consumer may suffer
an “actual and imminent, not conjectural or hypothetical”
threat of future harm. Summers, 555 U.S. at 493.
Knowledge that the advertisement or label was false in the
past does not equate to knowledge that it will remain false in
the future. 5 In some cases, the threat of future harm may be

5
Several other circuits have considered whether a previously
deceived consumer has standing to seek injunctive relief and have held
they do not. See Conrad v. Boiron, Inc., 869 F.3d 536 (7th Cir. 2017)
(holding that a consumer who brought a putative class action against the
manufacturer of a homeopathic flu remedy could not seek injunctive
relief); Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016)
(holding that a consumer who purchased a weight-loss product from an
online retailer lacked standing to pursue injunctive relief); McNair v.
Synapse Grp. Inc., 672 F.3d 213 (3d Cir. 2012) (holding that former
customers lacked standing to pursue injunctive relief in a putative class
action against a marketer of magazine subscriptions). These cases,
however, are factually distinguishable from the present case. In none of
these cases did the plaintiffs sufficiently allege their intention to
repurchase the product at issue as Davidson does here.

In McNair, the court determined there was no reasonable likelihood
that the former customers would be injured by the marketer’s techniques
in the future because the former customers did not allege that they
intended to subscribe to magazines through the marketer again—they
alleged only that they “may, one day, become Synapse [magazine
marketer] customers once more because ‘Synapse’s offers are
compelling propositions . . . .’” 672 F.3d at 224–25.

In Nicosia, the plaintiff had purchased a diet product on
Amazon.com that contained sibutramine, a controlled substance that had
previously been removed from the market. 834 F.3d at 226. The court
held that the plaintiff could not establish a likelihood of future or
 DAVIDSON V. KIMBERLY-CLARK CORP. 23

the consumer’s plausible allegations that she will be unable
to rely on the product’s advertising or labeling in the future,
and so will not purchase the product although she would like
to. See, e.g., Ries, 287 F.R.D. at 533; Lilly v. Jamba Juice
Co., No. 13-cv-02998-JT, 2015 WL 1248027, at *4 (N.D.
Cal. Mar. 18, 2015) (“[U]nless the manufacturer or seller has
been enjoined from making the same representation, [the]
consumer . . . won’t know whether it makes sense to spend
her money on the product.”). In other cases, the threat of
future harm may be the consumer’s plausible allegations that
she might purchase the product in the future, despite the fact
it was once marred by false advertising or labeling, as she
may reasonably, but incorrectly, assume the product was
improved. See, e.g., L’Oreal, 991 F. Supp. 2d at 194–95.
Either way, we share one district court’s sentiment that we
are “not persuaded that injunctive relief is never available
for a consumer who learns after purchasing a product that

continuing harm for the purposes of injunctive relief because the plaintiff
did not show that he was likely to be subjected to further sales by
Amazon of products containing sibutramine given that Amazon had
ceased selling the diet product and the plaintiff did not allege “that he
intends to use Amazon in the future to buy any products, let alone food
or drug products generally or weight loss products in particular.” Id. at
239.

Finally, in Conrad, the court held that an injunction would not
redress the consumer’s potential injury because the injury was already
redressed by the merchant’s refund program for the deceptive product,
and no other injury justifying injunctive relief was pled. 869 F.3d at
542–43.

Unlike the cases cited above, here, Davidson sufficiently alleges that
she would purchase truly flushable wipes manufactured by Kimberly-
Clark.
24 DAVIDSON V. KIMBERLY-CLARK CORP.

the label is false.” Duran v. Creek, 2016 WL 1191685, at *7
(N.D. Cal. Mar. 28, 2016) (emphasis added).

We observe—although our conclusion is not based on
this consideration—that our holding alleviates the anomalies
the opposite conclusion would create. As the Machlan court
aptly recognized, “[a]llowing a defendant to undermine
California’s consumer protection statutes and defeat
injunctive relief simply by removing a case from state court
is an unnecessary affront to federal and state comity [and]
. . . an unwarranted federal intrusion into California’s
interests and laws.” 77 F. Supp. 3d at 961; see also
Henderson v. Gruma Corp., 2011 WL 1362188, at *8 (C.D.
Cal. Apr. 11, 2011) (“[T]o prevent [plaintiffs] from bringing
suit on behalf of a class in federal court would surely thwart
the objective of California’s consumer protection laws.”).
This is because “the primary form of relief available under
the UCL to protect consumers from unfair business practices
is an injunction,” In re Tobacco II, 207 P.3d 20, 34 (Cal.
2009)—a principle the California Supreme Court recently
reaffirmed. 6 See McGill v. Citibank, N.A., 393 P.3d 85, 90,

6
At the same time, we note that the risks to plaintiffs in cases such
as this are occasionally overstated based on the mistaken impression that
the only remedy for an improper removal is dismissal without prejudice.
As a general rule, if the district court is confronted with an Article III
standing problem in a removed case—whether the claims at issue are
state or federal—the proper course is to remand for adjudication in state
court. See 28 U.S.C. § 1447(c); Polo v. Innoventions Int’l, LLC,
833 F.3d 1193, 1196 (9th Cir. 2016). We do not resolve here whether
severance and remand, as opposed to dismissal, is the appropriate option
where standing is lacking for only some claims or forms of relief. See
Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 1006–07. But it bears noting
that the end result is likely the same in any event: In prevailing on a
motion to dismiss only as to some claims for lack of standing, a
defendant is also making the case against the removal of those claims
once they are refiled in state court unaccompanied by the claims over
 DAVIDSON V. KIMBERLY-CLARK CORP. 25

93 (Cal. 2017) (explaining that “public injunctive relief
under the UCL, the CLRA, and the false advertising law is
relief that has the primary purpose and effect of prohibiting
unlawful acts that threaten future injury to the general
public,” and that “public injunctive relief remains a remedy
to private plaintiffs” under the UCL, FAL, and CLRA
(internal quotation marks omitted)).

Since we hold that a previously deceived plaintiff may
have standing to seek injunctive relief, we must turn our
attention to whether Davidson adequately alleged that she
faces an imminent or actual threat of future harm caused by
Kimberly-Clark’s allegedly false advertising. Davidson
alleged that she “continues to desire to purchase wipes that
are suitable for disposal in a household toilet”; “would
purchase truly flushable wipes manufactured by [Kimberly-
Clark] if it were possible”; “regularly visits stores . . . where
[Kimberly-Clark’s] ‘flushable’ wipes are sold”; and is
continually presented with Kimberly-Clark’s flushable
wipes packaging but has “no way of determining whether the
representation ‘flushable’ is in fact true.”

We are required at this stage of the proceedings to
presume the truth of Davidson’s allegations and to construe
all of the allegations in her favor. Daniels-Hall, 629 F.3d at
998. Though we recognize it is a close question, based on
the FAC’s allegations, we hold that Davidson adequately
alleged that she faces an imminent or actual threat of future
harm due to Kimberly-Clark’s false advertising. Davidson
has alleged that she desires to purchase Kimberly-Clark’s
flushable wipes. Her desire is based on her belief that “it

which the district court did have jurisdiction. See 28 U.S.C. § 1447(a).
A “perpetual loop” of removal to federal court and dismissal for lack of
standing should not occur. Cf. Machlan, 77 F. Supp. 3d at 961.
26 DAVIDSON V. KIMBERLY-CLARK CORP.

would be easier and more sanitary to flush the wipes than to
dispose of them in the garbage.” As in Ries, the FAC is
“devoid of any grounds to discount [Davidson’s] stated
intent to purchase [the wipes] in the future.” 287 F.R.D. at
533.

Davidson has also sufficiently alleged an injury that is
“concrete and particularized.” See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1548 (2016), as revised (May 24, 2016)
(quoting Lujan, 504 U.S. at 560). The alleged injury is
particular to Davidson because it would affect her, as a direct
consumer of Kimberly-Clark’s wipe products, in a personal
and individual way. See id. At this motion to dismiss stage,
based on Davidson’s allegations that she would purchase
truly flushable wipes manufactured by Kimberly-Clark if it
were possible, her injury is concrete—it is real and not
merely abstract. See id. Indeed, “‘[c]oncrete’ is not . . .
necessarily synonymous with ‘tangible.’” Id. at 1549.
Davidson’s alleged harm is her inability to rely on the
validity of the information advertised on Kimberly-Clark’s
wipes despite her desire to purchase truly flushable wipes.
This court recognizes a history of lawsuits based on similar
informational injuries. See id. (stating that in considering
whether a harm is concrete, it is instructive to consider
whether the harm has a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit
in American courts); Wilderness Soc., Inc. v. Rey, 622 F.3d
1251, 1258 (9th Cir. 2010) (discussing the history of
informational injury serving as an injury-in-fact sufficient
for standing).
 DAVIDSON V. KIMBERLY-CLARK CORP. 27

As necessary where standing for prospective injunctive
relief is premised entirely on the threat of repeated injury, 7
Davidson has also shown “a sufficient likelihood that [s]he
will again be wronged in a similar way.” Lyons, 461 U.S. at
111. Despite now knowing that the “flushable” labeling was
false at the time of purchase, “[s]hould [Davidson] encounter
the denomination [‘flushable’] on a [Kimberly-Clark wipes
package] at the grocery store today, [she] could not rely on
that representation with any confidence.” Ries, 287 F.R.D.
at 533. In other words, Davidson faces the similar injury of
being unable to rely on Kimberly-Clark’s representations of
its product in deciding whether or not she should purchase
the product in the future. See Lyons, 461 U.S. at 111; see
also Armstrong, 275 F.3d at 867.

Finally, Davidson meets the redressability prong of
standing because a favorable ruling would likely provide
redress for her alleged injury. See Monsanto Co., 561 U.S.
at 149. The injunction Davidson seeks would prohibit
Kimberly-Clark from using the term “flushable” on their
wipes until the product is truly flushable. This injunctive
relief would likely redress Davidson’s injury by requiring
that Kimberly-Clark only make truthful representations on

7
Although courts in this circuit occasionally imply otherwise, see,
e.g., Pinon v. Tristar Prods., Inc., No 1:16-cv-00331-DAD-SAB, 2016
WL 4548766, at *4 (E.D. Cal. Sept. 1, 2016); Anderson v. The Hain
Celestial Grp., Inc., 87 F. Supp. 3d 1226, 1234 (N.D. Cal. 2015), there
is no reason prospective injunctive relief must always be premised on a
realistic threat of a similar injury recurring. A sufficiently concrete
prospective injury is sufficient. See, e.g., Chapman v. Pier 1 Imports
(U.S.) Inc., 631 F.3d 939, 951 (9th Cir. 2011) (en banc) (“Had the
prospect of future injury been more concrete, the absence of a past injury
. . . would not have precluded Article III standing.”).
28 DAVIDSON V. KIMBERLY-CLARK CORP.

their wipe products upon which Davidson could reasonably
rely.

We therefore hold that Davidson’s allegation that she has
“no way of determining whether the representation
‘flushable’ is in fact true” when she “regularly visits stores
. . . where Defendants’ ‘flushable’ wipes are sold”
constitutes a “threatened injury [that is] certainly
impending,” thereby establishing Article III standing to
assert a claim for injunctive relief. See Clapper, 568 U.S. at
409.

IV. CONCLUSION

We hold that the FAC adequately alleges that Kimberly-
Clark’s use of the word “flushable” was false because the
Scott Wipes that Davidson purchased did not adequately
disperse as a truly flushable product would have. The
district court erred in concluding that Davidson failed to
allege harm and how she came to believe the wipes were not
flushable. Finally, because Davidson’s allegations
sufficiently identified a certainly impending risk of her being
subjected to Kimberly-Clark’s allegedly false advertising,
Davidson had standing to pursue injunctive relief. We
therefore REVERSE and REMAND.
 DAVIDSON V. KIMBERLY-CLARK CORP. 29

BERZON, Circuit Judge, concurring:

I concur in the majority opinion with the following
observations:

As to prospective relief, the majority opinion rests on the
proposition that we are required to perform a separate
standing analysis for each “form of relief,” and concludes
that Davidson has separately established standing for her
requests for restitution and for an injunction. There is case
law supporting both points, as the opinion states.

I write separately to note that duplicating the standing
analysis in this way does not give effect to the “case or
controversy” requirement of Article III. Instead, it appears
to be an artifact of the discredited practice of conflating the
prerequisites for injunctive relief with the Article III
prerequisites for entry into federal court. Although we said
in Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1
(9th Cir. 1999) (en banc), purporting to overrule earlier
precedents, 1 that City of Los Angeles v. Lyons, 461 U.S. 95
(1983), requires this result, in my view it does not.

1
See Smith v. City of Fontana, 818 F.2d 1411, 1423 (9th Cir. 1987)
(holding that standing for a damages claim satisfies Article III standing
with respect to other forms of relief “involv[ing] the same operative facts
and legal theory”); Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir. 1984)
(treating the presence of a related damages claim as satisfying Article III
standing, thereby allowing the court to consider “whether relief in
addition to damages is appropriate”); Gonzales v. City of Peoria,
722 F.2d 468, 481 (9th Cir. 1983) (concluding that the presence of a
damages claim “present[ed] a case in controversy as to injunctive
relief”).

Error! Main Document Only.I note that only equitable relief was
sought in Hodgers-Durgin. 199 F.3d at 1040. The question presented
30 DAVIDSON V. KIMBERLY-CLARK CORP.

The present case well illustrates the problem. Davidson
seeks restitution for the premium she paid for a falsely
labeled product, and no one doubts that she has standing in
federal court to do so. Under California law, if Davidson
prevails on her false advertising claim and is entitled to
restitution, she is equally entitled to an injunction. See Cal.
Bus. & Prof. Code §§ 17202–03; see also Kwikset Corp. v.
Superior Court, 246 P.3d 877, 894–95 (Cal. 2011). No
further showing, equitable or otherwise, is needed to trigger
her right to injunctive relief. It follows that we have a single
dispute—a single case, a single controversy—giving rise to
multiple forms of relief.

It is mechanically possible, in this case, to define
Davidson’s “case or controversy” differently, and to assign
the requirements of injury, causation, and redressability
separately to each remedy she seeks. But it turns Article III
on its head to let the remedies drive the analysis, where state
law clearly envisions those remedies as the product of a
single adjudication of a single issue. See Korea Supply Co.
v. Lockheed Martin Corp., 63 P.3d 937, 943 (Cal. 2003).
And proceeding in that way undermines, substantively, the
enforcement of state laws in federal court, as it adds new
elements to the entitlement to state-law relief. Cf. Erie R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Congress has no
power to declare substantive rules of common law applicable

in the cases cited in Hodgers-Durgin was thus not at issue. It is therefore
far from clear that Hodgers-Durgin’s disapproval of those cases is
controlling precedent. See Alcoa, Inc. v. Bonneville Power Admin., 698
F.3d 774, 796–97 (9th Cir. 2012) (Tashima, J., concurring); id. at 804
n.4 (Bea, J., concurring in part and dissenting in part); Miranda B. v.
Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam).
 DAVIDSON V. KIMBERLY-CLARK CORP. 31

in a state . . . . And no clause in the Constitution purports to
confer such a power upon the federal courts.”).

It was in recognition of this anomaly that the district
court in Machlan v. Procter & Gamble Co. remanded only
the injunctive aspect of that similar false advertising case to
state court. 77 F. Supp. 3d 954, 960–61 (N.D. Cal. 2015).
Such an approach may not be entirely consonant with the
California law here at issue. 2 But the impetus to sever the
forms of relief over which the court lacks jurisdiction springs
from the same problem I have identified—that a defendant
should not be able to strip a plaintiff of remedies dictated by
state law by removing to federal court a case over which
there surely is Article III jurisdiction over the liability issues.
Cf. Larson v. Valente, 456 U.S. 228, 238–39 (1982) (“The
essence of the standing inquiry is whether the parties seeking
to invoke the court’s jurisdiction have alleged such a
personal stake in the outcome of the controversy as to assure

2
One ordinarily thinks of severing separate claims joined in a single
action, not separate forms of relief flowing from a single claim. See Fed.
R. Civ. P. 21. But severing and remanding discrete forms of relief is no
less anomalous than separately analyzing forms of relief for the purposes
of Article III standing. And as remand is required if the district court
lacks jurisdiction over a removed case, 28 U.S.C. § 1447(c), the
Machlan approach makes a certain amount of sense. See Lee v. Am. Nat’l
Ins. Co., 260 F.3d 997, 1007 n.8 (9th Cir. 2001).

In any event, as the main opinion notes, the Machlan approach is
considerably more efficient than the likely alternative—dismissing the
“claim” for injunctive relief without prejudice, only to have that “claim”
refiled in state court absent the request for restitution that justified
removal. See 28 U.S.C. § 1441(a); Polo v. Innoventions Int’l, LLC,
833 F.3d 1193, 1196 (9th Cir. 2016); Lee, 260 F.3d at 1006–07
(observing that the result of partial dismissal of a removed case for lack
of Article III standing is not the end of litigation on the dismissed claims,
but renewed litigation in state court).
32 DAVIDSON V. KIMBERLY-CLARK CORP.

that concrete adverseness which sharpens the presentation of
issues . . . .” (internal quotation marks omitted)).

Federal courts have a history of improperly elevating the
prerequisites for relief to the status of jurisdictional hurdles.
See Lexmark Int’l, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377, 1387–88 & n.4 (2014). Notably, although
Lyons is now widely credited as the origin of the rule that
injunctive relief always requires its own standing inquiry,
see, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009); Hodgers-Durgin, 199 F.3d at 1040 n.1, that case, as
I read it, did not make that jurisdiction/remedy mistake.
Rather, after determining that there was no independent
standing to seek injunctive relief, Lyons separately noted that
there was also a pending request for damages. Lyons,
461 U.S. at 111. The Court then inquired into whether the
nonjurisdictional requirements for equitable prospective
relief were met, and concluded they were not. Id. at 111–12.
In my view, this aspect of Lyons recognized that there was a
case or controversy regarding liability issues because of the
damages claim, but precluded injunctive relief on
nonjurisdictional grounds specific to the equitable
requirements for such relief—the absence of a likelihood of
irreparable harm. Id. Were this not what Lyons meant, the
entire discussion of the equitable principles governing
prospective relief would have been superfluous.

Conflating the elements of relief with the elements of
standing is of little consequence in most cases following
Lyons. Where the availability of injunctive relief is
governed by federal common law, the common-law
prerequisites for injunctive relief must eventually be
satisfied, and largely mirror the standing prerequisites. See,
e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
153–56 (2010); Adarand Constructors, Inc. v. Pena,
 DAVIDSON V. KIMBERLY-CLARK CORP. 33

515 U.S. 200, 210–12 (1995). Furthermore, although later
Supreme Court cases have cited Lyons for the proposition
that standing is relief-specific, none has actually found a lack
of standing to pursue a particular form of relief where there
was otherwise Article III standing over the same claim
advanced by the same party. 3 As a result, the Supreme Court
has had no occasion to consider the logic of relief-specific
standing. But in a state-law case such as this, adhering to the
proper scope of the standing inquiry is uniquely important.
For here, collapsing the standing and relief inquiries
threatens to impose substantive limits on the availability of
relief under state law in the service of constitutional interests
that aren’t actually under threat.

Despite these concerns, I nonetheless concur fully in the
majority opinion. The Supreme Court has read Lyons as
requiring a separate standing analysis with regard to
prospective injunctive relief, even when a party otherwise
has standing to advance a claim. And, as the majority
opinion explains, assuming a separate standing analysis is

3
See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)
(applying Lyons to a claim involving only injunctive relief); Davis v.
Fed. Election Comm’n, 554 U.S. 724, 733–34 (2008) (applying Lyons to
claims only for injunctive and declaratory relief, and conducting a single
standing analysis); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 184–88 (2000) (conducting a separate
standing analysis for civil penalties, but concluding that deterrence of
ongoing harm suffices for constitutional standing); Adarand, 515 U.S. at
210–12 (applying Lyons to claims only for injunctive and declaratory
relief, and conducting a single standing analysis); see also Town of
Chester, N.Y. v. Laroe Estates, 137 S. Ct. 1645, 1650 (2017) (invoking
Lyons in support of the proposition that a plaintiff intervenor must show
standing to seek relief of its own, distinct form that sought by the original
plaintiff); DaimlerChryster Corp. v. Cuno, 547 U.S. 332, 350–53 (2006)
(invoking Lyons in support of the proposition that standing is claim-
specific).
34 DAVIDSON V. KIMBERLY-CLARK CORP.

necessary despite the state prescription of effectively
automatic prospective relief, that requirement is met here.