Jennifer Davidson v. Kimberly-Clark Corp. ( 2018 )


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  •                  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.