Kimberly-Clark Corporation, et al. v. Jennifer Davidson

A party who seeks injunctive relief in federal court must first establish that she has standing by showing that she is “immediately in danger of sustaining some direct injury” that is “both real and immediate, not conjectural or hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983) (internal quotation marks omitted). The Third and Seventh Circuits have held that a consumer who alleges that a product’s marketing is misleading cannot make the showing of “real and immediate” future harm necessary to enjoin the speech because she already knows that the marketing is misleading and therefore is unlikely to be deceived by it again. The Ninth Circuit has departed from those decisions, holding that a consumer can establish standing to enjoin such marketing because “[k]nowledge that [an] advertisement or label was false in the past does not equate to knowledge that it will remain false in the future,” and therefore the consumer “may suffer” future harm. The question presented is: Whether a consumer, who after using a product and determining that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that she will be deceived by that same representation in the future so as to establish standing to seek an injunction.