Judge won't flush suit against Stop & Shop over moistened wipes

A federal judge ruled today that a Beverly man can go to trial in his lawsuit against Stop & Shop for selling flushable wipes that may not actually be flushable.

US District Court Judge Indira Talwani said Mark Schotte had advanced enough evidence that the supermarket chain needs to be held to account to warrant making his case to a jury.

Stop & Shop argued that Schotte's complaint, in which he is seeking to become lead plaintiff in a class-action lawsuit, failed to prove that studies showing many flushable wipes in fact could clog pipes if they were actually flushed did not specifically list their products and that, in any case, any idiot could see from the packaging that their wipes were not, in fact, flushable.

Talwani, however, wiped up those arguments.

[A]though the cited articles do not pertain to the brands of wipes at issue here, on a full factual record, it is plausible that Plaintiff could show the Wipes behave like those referenced in the Complaint.

In other words, a jury can hear the case and make up its own mind.

And, she continued, the tiny "†" that would lead a consumer from the large "flushable" on the front of the Stop & Shop packages to tiny type on the bottom or back of them that says, in considerable detail that the the wipes might not be flushable in all circumstances is hardly the "clear cross-symbol" that would quickly clear up any confusion about the word "flushable" that the chain seems to think it is.

[A] factfinder here could reasonably find that the disclaimer on the back of the Wipes packaging is neither sufficiently prominent nor unambiguous and, instead, that the small-print lists would not be noticed. And a factfinder could also find that even if the lists were noticed, the disclaimers would require consumers to have in-depth knowledge of the sewer or septic system they are using, its plumbing history, as well as "local rules" - not just for a toilet in their residence or office but any toilet they may wish to dispose of the Wipes in. ... A reasonable jury could find the disclaimer so small and vague that it does not relieve Defendant of any potential liability for its deceptive acts. Accordingly, despite Stop & Shop’s disclaimers on the packaging for the wipes, Plaintiff’s Complaint states a plausible deceptive act.

And is there a dispute over just what "flushable" means? If so, she cited a 2021 ruling by the US Court of Appeals for the First Circuit in Boston on a similar topic (whether "hazelnut-creme coffee" actually had to have hazelnut in it to deserve the name):

[T]he First Circuit has recognized that whether a term with multiple, contradictory definitions or interpretations has the capacity to mislead is best left to "six jurors, rather than three judges, [to] decide on a full record." (finding that plaintiff plausibly stated a 93A claim where “Hazelnut Crème” and “Freshly Ground 100% Arabica
Coffee” were displayed on the front label of a coffee containing no actual hazelnut). As such, Plaintiff has plausibly alleged that Stop & Shop engaged in deceptive acts or practices for the purpose of bringing a Chapter 93A claim.

Talwani also rejected Stop & Shop's claim that Schotte had not proven any economic harm from the wipes he purchased at his local supermarket. She said he had shown he paid a premium to buy the moistened wipes over boring old dry toilet paper.