Bayol v. Health-Ade LLC et al

Filing 43

ORDER GRANTING BAYOL PLAINTIFFS' MOTION FOR APPOINTMENT OF INTERIM CLASS COUNSEL; DENYING GONZALEZ PLAINTIFFS' MOTION FOR APPOINTMENT OF INTERIM COUNSEL. Signed by Judge Maxine M. Chesney on August 23, 2018. (mmclc1, COURT STAFF) (Filed on 8/23/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GABRIELA BAYOL, et al.,
Plaintiffs,

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v.

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HEALTH-ADE LLC, et al.,

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Defendants.

United States District Court
Northern District of California

LYNETTE GONZALEZ, et al.,
Plaintiffs,

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v.
HEALTH-ADE LLC,
Defendant.

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Case No. 18-cv-01836-MMC
ORDER GRANTING BAYOL
PLAINTIFFS' MOTION FOR
APPOINTMENT OF INTERIM CLASS
COUNSEL; DENYING GONZALEZ
PLAINTIFFS' MOTION FOR
APPOINTMENT OF INTERIM
COUNSEL
Re: Dkt. No. 41

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ORDER GRANTING BAYOL
PLAINTIFFS' MOTION FOR
APPOINTMENT OF INTERIM CLASS
COUNSEL; DENYING GONZALEZ
PLAINTIFFS' MOTION FOR
APPOINTMENT OF INTERIM
COUNSEL
Re: Dkt. No. 33

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Case No. 18-cv-01462-MMC

Before the Court are two motions, each filed in one of the above-titled related

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actions: (1) "Motion for Appointment of Interim Class Counsel," filed June 28, 2018, by

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the plaintiffs in Bayol v. Health-Ade, LLC ("Bayol Plaintiffs"), by which said plaintiffs seek

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an order appointing their counsel of record as interim class counsel for both cases; and

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(2) "Motion for Appointment of Interim Class Counsel," filed July 12, 2018, by the plaintiffs

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in Gonzalez v. Health-Ade, LLC ("Gonzalez Plaintiffs"), by which said plaintiffs seek an

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order appointing their counsel of record as interim class counsel for both cases. The

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motions have been fully briefed. Having read and considered the parties' respective

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written submissions, the Court rules as follows.1

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By order filed August 21, 2018, the Court took the matters under submission.

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In each of the above-titled two actions, the plaintiffs allege that certain of the

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statements made on the labels and/or packaging of defendant Health-Ade LLC's

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("Health-Ade") kombucha beverages are false and misleading. Additionally, in each such

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action, the plaintiffs seek to proceed on behalf of a nationwide class of persons who

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purchased such products.

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Under Rule 23 of the Federal Rules of Civil Procedure, a "court may designate

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interim counsel to act on behalf of a putative class before determining whether to certify a

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class." See Fed. R. Civ. P. 23(g)(3). In determining whether to appoint an attorney as

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interim class counsel, the court "must consider: (i) the work counsel has done in
identifying or investigating potential claims in the action; (ii) counsel's experience in

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United States District Court
Northern District of California

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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." See Fed. R. Civ. P. 23(g)(1)(A). Additionally, a

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court "may consider any other matter pertinent to counsel's ability to fairly and adequately

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represent the interests of the class." See Fed. R. Civ. P. 23(g)(1)(B).

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Here, as to the first factor, counsel for the Bayol Plaintiffs and counsel for the

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Gonzalez Plaintiffs, prior to filing a complaint on behalf of their respective clients, each

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conducted an investigation into Health-Ade's practices (see Fisher Decl. ¶ 7; Grombacher

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Decl. ¶ 5), counsel in the Bayol Plaintiffs' case identifying a greater number of claims,

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namely claims based on both the alcohol content and the sugar content of Health-Ade's

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kombucha products (see Fisher Decl. ¶ 8), and counsel in the Gonzalez Plaintiffs' case,

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in which the claims are based on sugar content only, identifying a greater number of

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individuals who could serve as class representatives for potential sub-classes (see

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Grombacher Decl. ¶¶ 10-11).

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As to the second factor, although counsel in both cases have extensive

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experience in handling class actions, counsel for the Bayol Plaintiffs have significant

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experience in bringing class action lawsuits in which false advertising claims are alleged

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(see Fisher Decl. ¶ 6), whereas counsel for the Gonzalez Plaintiffs' experience has been
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primarily in connection with class actions alleging unlawful employment practices (see

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Grombacher Decl. ¶ 28) and privacy violations (see Gonzalez Pls.' Mot. Ex. A at 2).

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Next, as to the third factor, counsel for the plaintiffs in both cases appear to be

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generally knowledgeable about the governing law, although, as noted, counsel for the

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Bayol Plaintiffs have had more experience in cases involving false advertising claims.

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Further, in that regard, counsel for the Bayol Plaintiffs brought, in 2015, a nationwide

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class action against another manufacturer of kombucha beverages, which case was

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based on statements similar to those allegedly made by Health-Ade, and wherein a

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settlement providing both monetary and injunctive relief was obtained. See Retta v.

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Millennium Products, Inc., 2017 WL 5479637, *1-3, 11 (C.D. Cal. August 22, 2017).

United States District Court
Northern District of California

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Lastly, as to the fourth factor, all counsel have shown they have the resources

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necessary to effectively represent the putative class members. (See Fisher Decl. ¶¶ 11-

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13; Grombacher Decl. ¶ 33.)

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The Court finds that, on balance, the factors identified in Rule 23(g)(1) weigh in

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favor of appointing counsel for the Bayol Plaintiffs as interim class counsel. In particular,

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although the Gonzalez Plaintiffs are considerably greater in number than the Bayol

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Plaintiffs and reflect a wider range of geographic diversity, counsel for the Bayol Plaintiffs

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have more extensive experience in representing clients in false advertising cases,

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including a case factually similar to that here, and, in the instant case, have done a

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considerable amount of prefiling work in an effort to identify and plead potential claims.

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Accordingly, for the reasons stated above:

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1. The Gonzalez Plaintiffs' motion is hereby DENIED;

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2. The Bayol Plaintiffs' motion is hereby GRANTED and Burson & Fisher, P.A. is

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appointed as interim class counsel; and
3. As requested by the Bayol Plaintiffs, the Court orders that Burson & Fisher,

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P.A. shall be generally responsible for the overall conduct of the litigation on behalf of the

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putative classes and shall have sole authority to do the following:

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a. Determine and present to the Court and opposing parties the position of
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the named plaintiffs and putative class members on all matters arising during pretrial

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proceedings;
b. Enter into stipulations with opposing counsel as necessary for the

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conduct of the litigation;
c. Coordinate the initiation and conduct of discovery on behalf of the

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named plaintiffs and putative class members consistent with the requirements of the

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Federal Rules of Civil Procedure;
d. Hire expert witnesses and consultants on behalf of the named plaintiffs

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and putative class members, as needed to prepare for class certification or trial, and
advance other costs that may be reasonable and necessary to the conduct of the

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United States District Court
Northern District of California

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litigation;

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e. Conduct settlement negotiations on behalf of the named plaintiffs and

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putative class members, and, if appropriate, to enter into a settlement that is fair,

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reasonable, and adequate on behalf of the putative class members;

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f. Monitor the activities of all counsel to ensure that schedules are met and
unnecessary expenditures of time and funds are avoided; and
g. Perform such other duties as may be incidental to the proper

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prosecution and coordination of pretrial activities on behalf of plaintiffs and putative class

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members or authorized by further order of this Court.

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IT IS SO ORDERED.

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Dated: August 23, 2018
MAXINE M. CHESNEY
United States District Judge

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