Clean Water Current

In a victory for NACWA member Charleston Water System (CWS), the U.S. District Court for the District of South Carolina recently preliminarily approved a proposed class action settlement agreement between CWS and major U.S. wipes manufacturer Kimberly-Clark concerning the performance and labeling of certain wipes products.  The court also entered a schedule for approving the settlement, including a deadline of December 29, 2021, to file any objections to the agreement.

The settlement is being proposed in the context of broader litigation CWS filed against multiple manufacturers and distributers of so-called “flushable” wipes seeking to have the court enjoin them from labeling their products as “flushable” in light of the damage they cause to sewer systems.

CWS’s first-of-its-kind settlement would require Kimberly-Clark to bring its Cottonelle Flushable Wipes products into compliance with the flushability standards developed by international municipal wastewater associations, including NACWA, and to change its labeling practices for other non-flushable wipes in exchange for marketing opportunities and indemnification against certain future suits from the clean water community.

In addition to preliminarily approving the settlement, the court’s order also preliminarily certifies all U.S. sewage and wastewater conveyance and treatment system owners and operators as a national class that will be bound by the terms of the settlement, and names NACWA Legal Affiliate AquaLaw, who has represented CWS throughout the litigation, as well as the firm Robbins Geller Rudman & Dowd LLP, as counsel for the class. 

Notice of the proposed settlement agreement will be sent to all class members – including the tens of thousands of public utilities nationwide – in the coming weeks, and a settlement website will soon be set up.  All class members will have the opportunity to file objections to the settlement until December 29.  NACWA continues to encourage all public utility members that have not yet done so to review the proposed settlement terms and consult with their legal counsel if they have any questions. 

Importantly, in addition to preliminarily approving CWS’s settlement with Kimberly-Clark, the court also denied Costco, CVS, Target, and other defendants’ motion to dismiss the case based on a failure to show standing.  Standing has in the past proved to be a hurdle to the clean water community being able to seek legal redress against the wipes industry, but the court’s order means that the current litigation against the other defendants can continue. 

CWS CEO Kin Hill will be addressing the litigation as part of his luncheon remarks at this year’s NACWA Clean Water Law & Enforcement Seminar next month in Charleston.  In the interim, please contact NACWA Chief Legal Counsel Amanda Aspatore with any questions.