Kurtz v. Costco Wholesale Corp.

Summary

In this unpublished Second Circuit summary order, the court affirmed certification of a damages class under Rule 23(b)(3) in a false advertising suit alleging that Costco and Kimberly-Clark misrepresented wipes as "flushable," holding that the plaintiff's expert hedonic regression analysis provided common evidence of a price premium sufficient to satisfy predominance. The court reversed certification of an injunctive relief class under Rule 23(b)(2), finding the plaintiff lacked Article III standing because he did not allege any intent to purchase the wipes again. The court also rejected challenges to the plaintiff's adequacy and typicality, and held that expert methodology critiques went to weight rather than admissibility at the certification stage.

Holdings

1. The district court did not abuse its discretion. No fundamental conflict exists between Kurtz and absent class members, and his purchasing history is irrelevant to typicality because injury occurred at purchase.
2. Kurtz lacks standing because he does not allege any intention to purchase flushable wipes in the future, so there is no imminent future injury.
3. The district court did not abuse its discretion. Weir's regression analysis provides common evidence of injury and causation, and Defendants' critiques go to weight, not admissibility.

Questions Presented

1. Whether the district court abused its discretion in finding that Kurtz satisfied Rule 23(a)'s adequacy and typicality requirements.
2. Whether Kurtz has standing to seek injunctive relief under Rule 23(b)(2).
3. Whether the district court abused its discretion in concluding that common issues predominate under Rule 23(b)(3).

Disposition

affirmed_in_part_reversed_in_part_remanded