Melgar v. Zicam LLC, et al

Filing 21

MEMORANDUM AND ORDER granting Plaintiff's 18 Motion to Appoint Interim Class Counsel, signed by Chief Judge Morrison C. England, Jr., on 10/29/14. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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YESENIA MELGAR,

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No. 2:14-cv-00160-MCE-AC

Plaintiff,
v.

MEMORANDUM AND ORDER

ZICAM, LLC, et al.,

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Defendants.

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This putative class action proceeds on Plaintiff Yesenia Melgar’s (“Plaintiff”) First

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Amended Complaint (“FAC”). Presently before the Court is Plaintiff’s unopposed Motion

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to Appoint Interim Counsel (ECF No. 18). For the following reasons, that Motion is

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GRANTED.1

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ANALYSIS

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By way of this action, Plaintiff alleges that Defendants’ product Zicam, “The Pre-

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Cold Medicine,” is an over-the-counter homeopathic remedy that Defendants falsely

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represent prevents, shortens, and reduces the severity of the common cold. FAC, § 1.

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Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs. E.D. Cal. Local R. 230(g).

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Despite Defendants’ claims that, among other things, Zicam is “clinically proven to

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shorten colds” and “reduces duration and severity of the common cold,” Plaintiff

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contends that the Zicam products contain only highly diluted concentration of the

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purported “active ingredients” and are really nothing more than placebos. Id. at ¶ 2.

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Plaintiff alleges she purchased a Zicam product, did not obtain the advertised relief, and

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she thus initiated this action on behalf of a nationwide class of Zicam users pursuing

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causes of action under both state and federal law. Id. at ¶¶ 68-70. No class has yet

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been certified, but Plaintiff moves for the appointment of interim counsel on the basis

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that her existing counsel, Bursor & Fisher, P.A. (“Bursor & Fisher”), is best qualified to

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represent the class in this litigation.
Pursuant to Rule 23(g)(3), the Court may designate interim class counsel to

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represent the interests of the alleged class in initial proceedings, even before

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determining whether to certify the class as a whole. Courts have held that the same

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standards applicable to choosing class counsel at the time of class certification apply in

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choosing interim class counsel. See In re Air Cargo Shipping Services Antitrust

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Litigation, 240 F.R.D. 56, 57 (E.D.N.Y.2006) (“Although neither the federal rules nor the

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advisory committee notes expressly so state, it appears to be generally accepted that

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the considerations set out in [Fed.R.Civ.P. 23(g)(1)(A) and (B) ], which governs

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appointment of class counsel once a class is certified, apply equally to the designation of

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class counsel before certification.”).

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“In appointing class counsel, the Court . . . must consider: (i) the work counsel has

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done in identifying or investigating potential claims in the action; (ii) counsel's experience

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in handling class actions, other complex litigation, and the types of claims asserted in the

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action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel

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will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The Court may

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further consider, “any other matter pertinent to counsel's ability to fairly and adequately

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represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). In addition, “[c]lass

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counsel must fairly and adequately represent the interests of the class.” Fed. R. Civ. P.
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23(g)(4).
The Court has reviewed Plaintiff’s Motion and her supporting documentation and

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concludes that each of the relevant Rule 23 considerations supports appointment of

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Bursor & Fisher in this case. As to the work counsel has done in identifying and

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investigating potential claims, Bursor & Fisher has already conducted extensive

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investigation into the efficacy of homeopathic products, Defendants’ marketing strategies

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and representations, and Defendants’ corporate structure. Decl. of Annick M. Persinger,

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¶¶ 10-11. Counsel has also interviewed consumers and evaluated the role Defendants’

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claims play in purchasing decisions. Id., ¶ 11. Finally, counsel filed the instant action,

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served initial discovery, and anticipates engaging in further discovery and motion

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practice prior to the time a class would be certified. Id., ¶ 12-13. The work Bursor &

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Fisher has already completed will enable the firm to efficiently litigate this case through

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pre-certification proceedings and potential class certification.

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As for the remaining factors, which are interrelated, Plaintiff has provided ample

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support for her position that Bursor & Fisher is eminently qualitied to represent a class in

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this type of litigation. Counsel has extensive experience representing plaintiffs in large

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class actions, both in negotiating settlements and litigating through trial. Id., ¶¶ 3-9.

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Moreover, Bursor & Fisher has been appointed co-lead counsel in another similar class

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action focused on purchasers of a children’s homeopathic cold and flu remedies and in a

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separate multi-district litigation. Id., ¶¶ 6-7. Given counsel’s experience litigating not

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only high-stakes class actions, but also actions concerning allegations very similar to

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those before the Court here, Counsel has also demonstrated the requisite knowledge of

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the applicable law. In sum, Bursor & Fisher is a well-established, reputable firm that is

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up to handling the challenges of this litigation and is capable of committing the requisite

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resources to doing so. See id., ¶¶ 14-15. The Court is confident that Bursor & Fisher

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will fairly and adequately represent the interests of the class.

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CONCLUSION
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For the reasons just stated, Plaintiff’s Motion to Appoint Interim Class Counsel
(ECF No. 18), Bursor & Fisher, is GRANTED.
IT IS SO ORDERED.
Dated: October 29, 2014

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