Smith v. The Procter & Gamble Co.

Filing 25

STIPULATION AND ORDER STAYING CASE re 22 & re 23 . Signed by Magistrate Judge Elizabeth D. Laporte on 4/10/2012. ***Deadlines terminated. (kns, COURT STAFF) (Filed on 4/10/2012)

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Lara T. Kollios (State Bar No. 235395)
[e-mail]
Chantelle C. Egan (State Bar No. 257938)
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile:
[phone]
Hugh R. Whiting (admitted pro hac vice)
[e-mail]
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Defendant
THE PROCTER & GAMBLE CO.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHERISH M. SMITH, as an individual, and
on behalf of all other similarly situated,
Plaintiff,

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Case No. 3:12-cv-00557-EDL
JOINT STIPULATION AND
[PROPOSED] ORDER FOR STAY

v.
THE PROCTER & GAMBLE CO., a Ohio
corporation doing business as CREST,
Defendant.

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Pursuant to Civil Local Rule 6-1(a), Plaintiff Cherish M. Smith, individually and on

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behalf of a purported class (“Plaintiffs”) and Defendant The Procter & Gamble Company

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(“Defendant”) (jointly referred to herein as the “Parties”), through their duly authorized

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undersigned counsel, stipulate and request as follows:

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WHEREAS, currently, there are four separate lawsuits (including the above-captioned
matter) now pending in four different federal district courts, all filed within about three months,
JOINT STIPULATION AND [PROPOSED]
ORDER FOR STAY

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and all asserting similar claims based on allegations about marketing Crest Sensitivity Treatment

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& Protection toothpaste (“Crest STP”) – the other three cases are:

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(“Rossi”)
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Rossi v. The Procter and Gamble Company, D.N.J., Case No. 2:11-cv-07238-JLL-MAH

Gilbert v. The Procter & Gamble Company, S.D. Ohio, Case No. 1:12-cv-00040-TSB
(“Gilbert”)

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Immerman v. The Procter & Gamble Company, N.D. Ohio, Case No. 1:12-cv-00068

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(“Immerman”);

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WHEREAS, these cases all seek class certification and allege misleading marketing

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practices related to Crest STP;
WHEREAS, there are some substantive differences among the claims, they involve the
same core group of allegations;
WHEREAS, Rossi seeks certification of both a nationwide and a New Jersey-only class,

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Gilbert seeks certification of an Ohio-only class, Immerman seeks certification of both a

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nationwide and an Ohio-only class, and here, Plaintiffs seek certification of California-only class;

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WHEREAS, on February 7, 2012, Gilbert filed a motion with the JPML to transfer all of

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these actions to the Southern District of Ohio pursuant to 28 U.S.C. § 1407. (MDL No. 2348,

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Docket No. 1.), Plaintiff in this case filed a response on February 8 in support of consolidation

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and transfer seeking transfer to the Northern District of California, Immerman filed a response on

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February 28 with the JPML opposing the motion for transfer while arguing for transfer to the

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Northern District of Ohio if the JPML were to grant the transfer motion (MDL No. 2348, Docket

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No. 16.), Rossi filed a response with the JPML on February 28 supporting the motion for transfer

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and seeking transfer to the District of New Jersey, and on March 13, 2012, Defendant filed a

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response in support of transfer of all of these actions to the Southern District of Ohio (MDL No.

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2348, Docket No. 18);

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WHEREAS, the Parties believe that staying this case until the JPML’s ruling on the

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transfer motion will avoid conflicts, conserve resources, and will otherwise promote efficient

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determination of the actions. An example of the need for transfer to avoid conflicting rulings on
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JOINT STIPULATION AND [PROPOSED]
ORDER FOR STAY

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key questions and to conserve judicial resources, is the motions to dismiss for lack of subject-

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matter jurisdiction which Defendant has filed in all four cases. These motions raise similar issues

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of fact and law, they should be reviewed and decided consistently and efficiently, and they should

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not be the subject of four separate judicial considerations and potentially conflicting rulings;

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WHEREAS, three of the four courts have already entered case management schedules

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which conflict with one another and will cause unnecessary duplication and confusion if each

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case proceeds independently;

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WHEREAS, the parties have entered stipulations to stay proceedings in the Gilbert and
Immerman cases.

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IT IS HEREBY STIPULATED by and between the parties, through their respective

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counsel, that the case be stayed until further notice, including a stay of the May 22, 2012 Case

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Management Conference and all related pretrial matters until the pending request before the

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Judicial Panel on Multidistrict Litigation (“JPML”)—in a case that is substantially similar or

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identical to this case—can be decided.

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IT IS SO STIPULATED.

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Dated: April 6, 2012

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/s/ Benjamin M. Lopatin
Benjamin M. Lopatin (State Bar No. 281730)
LAW OFFICES OF HOWARD W.
RUBINSTEIN, P.A.
One Embarcadero Center, Suite 500
San Francisco, CA 94111
Telephone [phone], ext. 2
Facsimile [phone]
Attorney for Plaintiff Cherish M. Smith,
Individually and on behalf all others similarly
situated

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///

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///

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///

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JOINT STIPULATION AND [PROPOSED]
ORDER FOR STAY

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Dated: April 6, 2012

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/s/ Lara T. Kollios
Lara T. Kollios (State Bar No. 235395)
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Hugh R. Whiting (admitted pro hac vice)
[e-mail]
Ohio Bar No. 0015067
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant
The Procter & Gamble Company

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IT IS SO ORDERED.

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April 10, 2012
Dated: ________________, 2012

___________________________________
Magistrate Judge Elizabeth D. Laporte

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Dated: April __, 2012

Respectfully submitted,
Jones Day

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By:
Lara Kollios

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Counsel for Defendant

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JOINT STIPULATION AND [PROPOSED]
ORDER FOR STAY

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ATTESTATION PURSUANT TO GENERAL ORDER 45
I, Lara Kollios, attest that I obtained the concurrence of Benjamin M. Lopatin in the filing

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of this document. I declare under penalty of perjury under the laws of the United States that the

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forgoing is true and correct. Executed this 6th day of April, 2012, in San Francisco, California.

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Dated: April 6, 2012

JONES DAY,

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By: /s/ Lara Kollios
Lara Kollios
Attorneys for Defendant
THE PROCTER & GAMBLE CO.

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JOINT STIPULATION AND [PROPOSED]
ORDER FOR STAY