Cardenas v. NBTY, Inc. et al

Filing 81

STIPULATION and ORDER signed by District Judge Troy L. Nunley on 4/29/13 ORDERING that this action shall be STAYED pending final approval of the settlement. The attorney filing this document confirms that all other signatories listed, and on whose behalf the filing is submitted, concur in the filing's content and have authorized the filing. (Becknal, R) Modified on 4/30/2013 (Krueger, M).

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Kara L. McCall (admitted pro hac vice)
[e-mail]
Christopher M. Gaul (admitted pro hac vice)
[e-mail]
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]
David R. Carpenter, SBN 230299
[e-mail]
Sidley Austin LLP
555 West Fifth Street, Suite 4000
Los Angeles, California 90013
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
NBTY, Inc. and Rexall Sundown, Inc.
Elaine A. Ryan (admitted pro hac vice)
[e-mail]
Patricia N. Syverson, SBN 203111
[e-mail]
Lindsey M. Gomez-Gray (admitted pro hac vice)
[e-mail]
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
2325 E. Camelback Road, #300
Phoenix, AZ 85016
Telephone: [phone]
[Additional Plaintiffs’ Counsel Listed on Signature Page]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
LILIANA CARDENAS, an Individual, and
FRANCISCO PADILLA, an Individual, On
Behalf of Themselves and All Others Similarly
Situated,
Plaintiffs,

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vs.
NBTY, INC., a Delaware corporation and
REXALL SUNDOWN, INC., a Florida
corporation,
Defendants.

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Case No. 2:11-CV-01615-TLN-CKD
CLASS ACTION
JOINT STIPULATION AND ORDER FOR
A STAY OF ALL PROCEEDINGS
JUDGE: Hon. Troy L. Nunley

JOINT STIPULATION AND ORDER FOR A STAY OF ALL PROCEEDINGS

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Plaintiffs Liliana Cardenas and Francisco Padilla (“Plaintiffs”) and Defendants Rexall

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Sundown, Inc. and NBTY, Inc. (collectively with Plaintiffs, “the Parties”), by and through their

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undersigned counsel, hereby respectfully submit this joint stipulation for an order staying this action

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because Plaintiffs’ claims and the claims of the purported class they seek to represent have been

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settled. In support, the Parties state as follows:

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WHEREAS, in this matter, Plaintiffs have challenged statements used in the marketing of

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various Osteo Bi-Flex glucosamine joint health dietary supplement products, which are

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manufactured and sold by Rexall Sundown, Inc., a subsidiary of NBTY, Inc. (See Third. Am.

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Compl., Dkt. No. 66.)

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WHEREAS, this matter is one of six putative class actions challenging the marketing of

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glucosamine joint health dietary supplement products manufactured and/or sold by Rexall Sundown,

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Inc., NBTY, Inc., or their affiliates (collectively, “Rexall”), which are currently pending in five

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federal district courts throughout the country. The pending cases are: Liliana Cardenas and

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Francisco Padilla v. NBTY, Inc. and Rexall Sundown, Inc., No. 2:11-CV-01615-TLN-CKD (E.D.

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Cal. filed June 14, 2011); Jennings v. Rexall Sundown, Inc., No. 1:11-cv-11488-WGY (D. Mass.

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filed Aug. 22, 2011); Cecilia Linares and Abel Gonzalez v. Costco Wholesale, Inc., No. 3:11-cv-

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02547-MMA-RBB (S.D. Cal. filed Nov. 2, 2011); Nick Pearson v. Target Corp., No. 1:11-cv-07972

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(N.D. Ill. filed Nov. 9, 2011); Randy Nunez v. NBTY, Inc., Arthritis Research Corp., and Nature’s

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Bounty, Inc., No. 3:13-CV-0495 (S.D. Cal. filed Mar. 1, 2013); and Augustina Blanco v. CVS

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Pharmacy, Inc., No. 5:13-cv-00406-JGB-SP (C.D. Cal. filed Mar. 4, 2013).

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WHEREAS, on April 15, 2013, the Parties in this action executed a global, nationwide

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settlement agreement settling and releasing for consideration, inter alia, all of the claims made in

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this case. Plaintiff Francisco Padilla has been identified as a class representative on behalf of the

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settlement class, and Plaintiff Liliana Cardenas is a member of the settling class, which has been

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defined to include all purchasers of Osteo Bi-Flex products since 2005.

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WHEREAS, this settlement will be submitted to the Honorable Judge James B. Zagel in the

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Northern District of Illinois for preliminary approval. (Judge Zagel is presiding over the Pearson

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case (N.D. Ill., Case No. 1:11-cv-07972), one of the cases being settled.)
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JOINT STIPULATION AND ORDER FOR A STAY OF ALL PROCEEDINGS

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WHEREAS, to facilitate this global, nationwide settlement, Plaintiffs have filed a Second

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Amended Class Action complaint in the Pearson case on behalf of a nationwide class of all persons

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in the United States who purchased the products covered by the settlement, which include Osteo Bi-

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Flex products (Ex. A hereto). Plaintiff Francisco Padilla is a named plaintiff in the Pearson Second

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Amended Class Action Complaint (id. ¶¶ 15–16); plaintiff Liliana Cardenas is a member of the

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nationwide class as defined in the Pearson Second Amended Class Action Complaint (id. ¶ 51).

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WHEREAS, pursuant to the settlement agreement, Plaintiffs and Rexall are jointly moving

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for a stay of this case pending final approval of the class action settlement. Similar motions will be

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filed in the other related cases.

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WHEREAS, in light of the settlement, the Parties respectfully request the Court to exercise

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its inherent authority to stay this action. See, e.g., Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)

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(“[T]he power to stay proceedings is incidental to the power inherent in every court to control the

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disposition of the causes on its dockets with economy of time and effort for itself, for counsel, and

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for litigants.”); Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis for the

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proposition that a “district court has discretionary power to stay proceedings in its own court”). A

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stay is appropriate where, as here, it is efficient to suspend an action pending resolution of

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proceedings in another jurisdiction that bear upon the case. See, e.g., Sinclair v. Fox Hollow of

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Turlock Owners Ass’n, No. 1:03-cv-05439, 2011 WL 219924, at *2 (E.D. Cal. Jan. 21, 2011)

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(“When there is an independent proceeding related to a matter before the trial court, the Ninth

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Circuit has held that a trial court may ‘find it efficient for its own docket and the fairest course for

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the parties to enter a stay of an action before it, pending resolution of independent proceedings

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which may bear upon the case.’”) (quoting Mediterranean Enters., Inc. v. Ssangyong Corp., 708

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F.2d 1458, 1465 (9th Cir. 1983)).

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WHEREAS, the proposed stay promotes judicial economy by permitting both the Court and

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the Parties to suspend their work on this case while the settlement process moves forward in the

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Northern District of Illinois. When final approval has been given, the settlement requires Plaintiffs

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to voluntarily dismiss with prejudice this action. Accordingly, entering the proposed stay will

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conserve the resources of the Court, the litigants, and their counsel.
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JOINT STIPULATION AND ORDER FOR A STAY OF ALL PROCEEDINGS

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NOW, THEREFORE, the Parties stipulate as follows:

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1.

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The attorney filing this document confirms that all other signatories listed, and on whose

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This action shall be stayed pending final approval of the settlement.

behalf the filing is submitted, concur in the filing’s content and have authorized the filing.

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Dated: April 24, 2013

By: /s/ Patricia N. Syverson
BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
Elaine A. Ryan
Patricia N. Syverson (203111)
Lindsey M. Gomez-Gray
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
[e-mail]
[e-mail]
[e-mail]
Telephone: [phone]
BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
Manfred Muecke (222893)
600 W. Broadway, Suite 900
San Diego, California 92101
[e-mail]
Telephone: [phone]
STEWART M. WELTMAN LLC
Stewart M. Weltman
122 S. Michigan Avenue, Suite 1850
Chicago, IL 60603
[e-mail]
Telephone: [phone]
(Of Counsel Levin Fishbein Sedran & Berman)
LEVIN FISHBEIN SEDRAN & BERMAN
Howard J. Sedran
510 Walnut Street
Philadelphia, Pennsylvania 19106
[e-mail]
Telephone: [phone]
Attorneys for Plaintiffs Liliana Cardenas and
Francisco Padilla

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JOINT STIPULATION AND ORDER FOR A STAY OF ALL PROCEEDINGS

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Dated: April 24, 2013

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By: /s/ Kara L. McCall
Kara L. McCall
Christopher M. Gaul
One South Dearborn Street
Chicago, Illinois 60603
[e-mail]
[e-mail]
Telephone: [phone]
Attorneys for Defendants NBTY, Inc. and
Rexall Sundown, Inc.

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IT IS SO ORDERED.

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Dated: April 29, 2013

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Troy L. Nunley
United States District Judge

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JOINT STIPULATION AND ORDER FOR A STAY OF ALL PROCEEDINGS