Tobin v. Conopco, Inc., et al.

Filing 42

ORDER by Judge Jeffrey S. White DENYING 22 Motion to Intervene. (jswlc3, COURT STAFF) (Filed on 4/22/2013)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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COLLEN TOBIN, individually, and on behalf
of all others similarly situated,

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No. C 12-05881 JSW

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ORDER DENYING MOTION TO
INTERVENE AND TO APPOINT
INTERIM LEAD COUNSEL

v.
For the Northern District of California

United States District Court

Plaintiff,
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CONOPCO INC., and BEN & JERRY’S
HOMEMADE, INC.,

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Defendants.

(Docket No. 22)
/

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This matter comes before the Court upon consideration of the Motion to Intervene and

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to Appoint Interim Lead Counsel filed by Skye Astiana (“Ms. Astiana”). Defendants, Conopco,

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Inc. and Ben & Jerry’s Homemade, Inc. (“Ben & Jerry’s”) (collectively “Defendants”) do not

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oppose Ms. Astiana’s motion. Plaintiff, Colleen Tobin (“Ms. Tobin”), does oppose Ms.

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Astiana’s motion. The Court has considered the parties’ papers, relevant legal authority, the

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record in this case, and has had the benefit of oral argument. For the reasons set forth below,

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the Court DENIES Ms. Astiana’s motion.

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BACKGROUND
Ms. Astiana is the named Plaintiff in Astiana v. Ben & Jerry’s Homemade, Inc., 10-CV-

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4387-PJH (the “Astiana litigation”), in which she asserts claims against Ben & Jerry’s for

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common law fraud, violations of California’s Unfair Competition Law, violations of

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California’s False Advertising Law, and restitution based on “quasi-contract/unjust

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enrichment.” Each of these claims is based on allegations that Ben & Jerry’s labeled certain of

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its ice cream, frozen yogurt, and popsicle products as “All Natural,” when these products

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contained alkalized cocoa, a non-natural ingredient. (See Astiana, Docket No. 20 (Amended

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Complaint).) The parties in the Astiana case reached a settlement, but Judge Hamilton rejected

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the agreement at the final approval hearing.

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After Judge Hamilton denied the motion for final approval, Ms. Tobin filed the instant

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action in the United States District Court for the District of New Jersey, and the matter was

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transferred here by the consent of the parties. Ms. Tobin asserts claims against Defendants for

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violations of the New Jersey Consumer Fraud Act and breach of express written warranty under

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the Magnusson-Moss Warranty Act. These claims also are premised on an “All Natural” label,
and Ms. Tobin includes allegations regarding alkalized cocoa, as well as allegations that

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For the Northern District of California

United States District Court

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Defendants have used Genetically Modified Organism (“GMO”) food ingredients. (Docket No.

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1, Complaint.)

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Judge Hamilton denied a motion to relate this case with the Astiana litigation, and Ms.
Astiana now seeks to intervene in this litigation.

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ANALYSIS

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Ms. Astiana moves to intervene pursuant to Federal Rule of Civil Procedure 24(a),

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intervention of right, and under Rule 24(b), permissive intervention, and seeks to be appointed

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as interim lead class counsel pursuant to Rule 23(g). Pursuant to Federal Rule of Civil

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Procedure 24(a), an applicant seeking to intervene in a pending lawsuit “as of right” must meet

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four requirements. See Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). First, the

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applicant must show he or she “has a significant protectable interest relating to the property or

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transaction that is the subject matter of the action.” United States v. City of Los Angeles, 288

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F.3d 391, 397 (9th Cir. 2002). Second, the applicant must show the disposition of the action

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may, as a practical matter, impair or impede the applicant’s ability to protect its interest. Id.

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Third, the application must be timely. Finally, the applicant must show that the existing parties

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may not adequately represent the applicant’s interest. Id.

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Ms. Astiana’s argument on the second and fourth prongs are based on the fact that Ms.
Tobin and Defendants have submitted a proposed settlement to the Court for preliminary
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approval. However, the Court is not going to approve the preliminary settlement agreement,

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and Ms. Astiana has not offered any other reasons why Ms. Tobin would not adequately protect

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any interest she may have in prosecuting these claims. Second, if the Court ultimately were to

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approve a settlement, Ms. Astiana could opt out or object. Thus, her interests would be

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protected. Therefore, Ms. Astiana has not satisifed all for requirements of Rule 24(a). For

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these same reasons, the Court concludes that Ms. Astiana has not shown that permissive

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intervention is warranted under Rule 24(b).

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In light of this ruling, Ms. Astiana’s motion to be appointed interim lead counsel is
moot, and her alternative request to stay this litigation pending resolution of Astiana is denied,
because she is not a party to this case.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: April 22, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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